Assisted Reproductive Technologies and Surrogacy

Unhindered access to Assisted Reproductive Technologies (ART) in recent years has provided an enormous boost to loving families who have previously found it difficult to navigate the medico-legal restrictions on their decisions to expand their family.

For those entering the ART landscape, as donors, birth parents, surrogates or intended parents, understanding issues around parentage is critical. It is important that before embarking on your journey you obtain legal advice to ensure that you and your loved ones have clarity and comfort as you move forward.

At elringtons, our lawyers are expert in advising people on parenting and family law matters, as well as on ART and surrogacy laws.

Elringtons Resources

If you would like to discuss your ART or surrogacy journey, you can speak to Anya Aidman, one of our senior solicitors specialising in ART and surrogacy law.

e: aaidman@elringtons.com.au  | p: +61 2 6206 1300

Family Court consent no longer required for treatment of Gender Dysphoria in Children

By Anya Aidman

In the judgment of Re Kelvin delivered in November 2017, the Full Court of the Family Court held that it was no longer necessary to apply to the Family Court for a determination of whether a child is ‘Gillick’ competent where Stage 2 treatment of a child for Gender Dysphoria is proposed if:

  • The child consents to the treatment;
  • The treating medical practitioners agree that the child is Gillick competent to give that consent; and
  • The parents of the child do not object to the treatment.

‘Gender dysphoria’ is a formal diagnosis used by clinicians with respect to children who express a sustained period of discontent regarding their biological sex, assigned gender or both. For a child experiencing Gender Dysphoria, he or she may feel more comfortable dressing as the opposite gender or having a different pronoun used by their parents, friends and school. For the children with Gender Dysphoria and are lucky enough to have the support and understanding of their parents or carers, eventually a child and their support team may seek medical assistance with respect to bringing into line their physical characteristics with their experienced gender identity.

There are 3 stages of medical involvement that can be engaged, as follows:

  1. Stage one treatment involved certain hormone blocking drugs known as ‘puberty blockers’ which can delay development of certain secondary sexual characteristics. Stage one treatments are generally reversible or could be discontinued without significant long term effect on a child.
  2. Stage two treatment involves the administration of testosterone or estrogen to a child which can significantly alter their physical development. Stage two treatment is not reversible and may not be able to be discontinued without some long term effects on the child, depending on the volume and duration of treatment administered.
  3. Stage three treatment involves surgical intervention such as removal of breasts or the creation or augmentation of sexual organs.

The above treatments have the potential to have a serious and far reaching impact on a child’s life. They are not, in our experience, undertaken lightly by children, their parents, or their medical practitioners. It was confirmed by the Courts in 2003 that the Court’s consent was not required for Stage 1 treatment. However, an Application to the Court was required for Stage 2 and Stage 3 treatment until November 2017.

The November 2017 Family Court ruling means that an application to the Court to determine whether the child was capable of giving informed consent (known as a finding about ‘Gillick competence’) no longer needs to be brought for Stage 2 treatment if the other conditions mentioned above are met.

When children and their supporting loved ones are faced with important decisions such as Gender Dysphoria treatment and transition it is important that you obtain comprehensive medical and legal advice.

If you want to discuss your matter further you can contact Anya Aidman, one of our experienced family law solicitors.

e: aaidman@elringtons.com.au | p: 02 6206 1300

Children and Consent to Medical Procedures

Everyday decisions about a child’s health and medical care can be made by either a parent of a child, or any other person exercising parental responsibility for a child.  Major long-term medical decisions in relation to a child must be made in consultation with both parents or all persons who have been granted parental responsibility in relation to the child.

Parental Responsibility

Under section 61C of the Family Law Act (“the Act”), each parent of a child shares joint parental responsibility for the child unless that responsibility have been displaced by a court order.

Under s61B of the Act, parental responsibility in relation to a child means “all the duties, powers, responsibilities and authority, which, by law, parents have in relation to children”.

Parenting orders can be made granting parental responsibility to any other person determined by the court under section 64C of the Act. However, section 65C provides that parenting orders can only be applied for by:

  1. a) a parent of the child;
  2. b) the child;
  3. c) a grandparent of the child; or
  4. d) any other person concerned with the care, welfare or development of the child.

Parental Responsibility and Consent

Health and medical treatment is illegal unless a patient consents to it.  In relation to child, there must be consent from someone with parental responsibility for the child.  This differs slightly in life threatening situation, where limited treatment may be provided when it is not possible to obtain consent beforehand. For example, a car accident involving both parents and a child, where the parents are unable to consent to treatment for the child.

In the event that two or more people hold parental responsibility, they will need to consent to a medical procedure. If parties are not able to agree, they may need to seek that a court make a determination on the issue.

However, there are some major medical procedures which cannot be performed on a child without first obtaining the consent of a court, regardless of whether the parents and medical practitioners have consented to the procedure.

Situations where Court involvement may be required

There are many different circumstances which require the Court to become involved in relation to consent and children’s medical procedures.

If parents, or those with parental responsibility, disagree with each other in regard to medical procedures or treatment, the court may need to decide on the treatment. This can range from less invasive procedures such as orthodontic treatment to something as serious as deciding whether to keep a person’s life support on.

In cases where the child is considered mature enough to make decisions regarding their own medical treatment, the child may be considered to be ‘Gillick competent.’ This means that the child has reached a level of understanding and intelligence required to make their own decisions in relation to their medical treatment.

In instances where a hospital or medical practitioner’s views on treatment differ to the parents’, a court order again may be necessary. In the case of Director Clinical Service, Child & Adolescent Health Services & Kiszko & Anor an order was made requiring a child to undergo chemotherapy treatment against the wishes  of both parents.

Similarly, there are certain procedures which require court orders, regardless of whether the parents’ consent.

Special medical procedures and Court involvement

There are some medical procedures, known as ‘special medical procedures’ that require permission from the court in order to be performed on a child.

Some examples of special medical procedures include:

  • sterilisation;
  • Stage two gender reassignment; or
  • Certain other major surgeries.

The reason that court orders are required for such procedures is that they are considered to extend outside of the usual parental powers, meaning they are permanent, irreversible or significantly life-altering. Importantly, the court becomes involved to take into account the best interests of the child.

The orders the court will make varies with the circumstances of each case. In as the case of Re Marion, it was found that the performance of a hysterectomy on a 14 year old girl living with severe intellectual and physical disabilities was in the child’s best interests. By contrast, in the case of L & GM & MM it was found the proposed sterilisation of a 17 year old physically and intellectually disabled girl was not in the child’s best interests. Furthermore, some cases require the court to go further than making a simple “yes or no” ruling and may prescribe the particulars of a procedure to be carried out on a child.

In situations where stage 2 gender reassignment treatment is proposed for a child with gender dysphoria, an order must be obtained by a court pursuant to section 67ZC of the Act unless the child is considered to be Gillick competent.

If your child or children are facing a medical procedure that may require court involvement or if you simply want to discuss your options in this complex space, you can contact Anya Aidman or another one of our experienced family law solicitors to discuss your matter further. In addition to our experienced family law team, elringtons specialises in health law, meaning we have the expertise and experience to resolve complex issues which arise from health and medical treatment.

For more information or to make and appointment in either our Canberra or Queanbeyan office please contact:

e: aaidman@elringtons.com.au     | p: 02 6206 1300

e: pryan@elringtons.com.au         | p: 02 6206 1300

 

Further reading:

Consenting to Health and Medical Treatment

Choosing and Refusing Medical Treatment

The many stages in your family law matter

Are you going to Court?

The many stages in your family law matter

A number of clients start off their initial appointment with me saying something like:

“I definitely don’t want this to end up in Court.”

And what I like to impress upon them is this:

“Keeping your matter out of Court is absolutely our objective. The optimum outcome is when parties resolve their dispute without going to Court.”

About ninety-five per cent (95%) of all family law matters settle.  That number of settlements includes matters settling at different stages of the case including, sometimes, after court proceedings have commenced. Sometimes, matters settle “at the steps of the Court” on the day of the final hearing

Going to Court /why parties commence Court proceedings?

There are many reasons why parties commence Court proceedings. Normally, parties do so reluctantly when other methods to resolve a dispute have failed. Sometimes, parties commence proceedings as a strategic move to force the other party to end the dispute. In our experience the most common reasons why our clients decide to commence proceedings are:

  • The other party is refusing to engage in negotiations, for example, ignoring correspondence, failing to respond to requests for disclosure, failing to engage a solicitor;
  • Where mediation/counselling has been attempted and was unsuccessful, with limited signs of ability to resolve any practical issues;
  • Due to urgency, for example, relocation or removal of children, in circumstances of dire financial hardship and property matters and so-on.

The Different Stages in a Family Law Matter

We welcome you enquires with our Family Law Team.  We are committed to resolving your matter at the earliest stage possible in your Family Law dispute.   We will work with you to develop solutions to your problem, and do our utmost to ensure that we do so in a timely and cost effective manner.

We aim to resolve your matter amicably and through alternative dispute resolution, without the need to resort to costly and time consuming litigation.  In the event that we do need to engage in litigation for you, we are experienced and well equipped to defend your interests and progress your matter successfully through the Court system.

For more information or to make an appointment with a Family Law Solicitor in either our Canberra or Queanbeyan office use our contact form or contact:

e: aaidman@elringtons.com.au     | p: 02 6206 1300

e: cturini@elringtons.com.au         | p: 02 6206 1300

 

Bankruptcy and Family Law

By Anya Aidmananya bw 2 cropped

We have recently had an increase in family law clients coming to us for advice in cases where their former spouse has been declared bankrupt. A common misconception is that if a spouse/partner is bankrupt[1], the other has no recourse in the family law jurisdiction.

The good news is: bankruptcy does not prevent the non-bankrupt spouse in such circumstances from pursuing an adjustment to property interests under the Family Law Act.

The Family Court has comprehensive powers to deal with proceedings for property settlement and spousal maintenance in circumstances where a bankruptcy trustee[2] has been appointed, and property of the bankrupt spouse/partner has been vested in the trustee under the Bankruptcy Act 1966. Family courts have sweeping powers to interfere with the interests and rights of third parties, including Trustees and creditors in the context of bankruptcy.

The Bankruptcy and Family Law Legislation Amendment Act 2005 (“BFLAA”) provides the non-bankrupt spouse with protection of his/her interest in matrimonial or jointly owned property and even the opportunity to obtain a share in the bankrupt spouse’s vested assets for the benefit of the non-bankrupt and his/her dependents.

Moreover, it is not a prerequisite of the proceedings that the spouses be separated with the amendments applying whether the marriage is intact or not[3].

This is by no means to suggest that pursuing family law matters in the context of bankruptcy is an easy task.

Unfortunately, if somebody has been declared bankrupt, it is extremely likely that his/her spouse may need to commence legal proceedings in Court to protect his/her, interest in matrimonial assets. Once a bankruptcy order has been made – whether voluntary or forced – the bankrupt’s financial affairs effectively become managed by the Trustee and the other spouse’s ability to negotiate with the bankrupt directly is very limited.

Every case is different and in a limited number of matters it may be that a Trustee administering the bankrupt’s estate has some power and willingness to reach a negotiated settlement that is advantageous to his/her spouse.

Most commonly, however, it will be necessary to commence proceedings in the Federal Circuit Court or the Family Court.

The family courts have the power under section 79 of the Family Law Act to adjust property interests between the spouses whatever the legal title might say about an asset or liability, the Court can interfere and reapportion this.

The most common example is regarding the matrimonial home. Even in circumstances where the registered title to the property is in the bankrupt’s name, the Court may conclude that it is a joint matrimonial property and the non-bankrupt’s interest in the property must be protected from the bankruptcy. The Court has the power to make various possible orders, for example, to require the property’s sale and the distribution of proceeds to one or the other spouse.

In making any order adjusting property interests, the Court considers several factors under section 79 (4) Family Law Act, including the contributions (financial and non-financial) each spouse made to the relationship and the future needs of the non-bankrupt (whether that spouse is caring for children, what is his/her employment status and prospects, health and so on).

A bankruptcy does not mean that the non-bankrupt spouse is without recourse in the family law jurisdiction. However, careful consideration needs to be given to each case and it is important to act quickly to ensure that the Trustee administering the bankrupt’s estate does not start disposing of matrimonial assets.

If you would like to discuss your matter involving bankruptcy or any other family law matter, you may contact Anya Aidman one of our senior solicitors experienced in these types of matters or any other of our experienced family law team.

e: aaidman@elringtons.com.au        | p: 02 6206 1300

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[1] Bankrupt –  (see  Section  5  of  the Bankruptcy  Act  1966) – a person:

(a) against whose estate a sequestration order has been made, or

(b) who has become a bankrupt because of a debtor’s petition.

[2] Trustee (in bankruptcy) – the trustee is the person who administers  the  estate  of  the  bankrupt.

[3] see Stanford v Stanford (2012) HCA, 15/11/2012.