Who is a Parent for the Sake of Parental Responsibility?

Mar 12, 2022 | Family Law

The term ‘parent’ has expanded beyond merely describing a person who is the biological mother and father to a child, which has created legal difficulties in determining who has parental responsibility and their rights in relation to non-biological children. ‘Parent’ is not defined within the Family Law Act 1975 (Cth), leaving it to the court to interpret the term with its ordinary dictionary meaning.

Being a parent requires more than common biology

Being legally considered a parent is about more than sharing biological data or genes. This is recognised at common law by the interpretation of the Family Law Act 1975 (Cth) in cases involving children conceived through Assisted Reproductive Technology (ART) or IVF procedures. Sperm donors supply their genetic material for a child’s conception, and thereby fit the definition of a biological father to the conceived child.

However, the courts will not impose parental obligations on a person who merely donated biological material and has no other involvement in the child’s life in terms of parenting capacity. This further demonstrates that being a ‘parent’ requires more than just common biology.

Can a genetic donor be a parent?

The High Court in Masson v Parsons & Ors [2019] HCA 21 held that a sperm donor can be found to be the legal parent of a conceived child in certain circumstances, which significantly extends the scope of the definition of a “parent” beyond the traditional mother and father. In 2006, Masson provided his semen to his friend, Parsons, so she could conceive a child through IVF under the presumption that he would be involved in the child’s life. Parsons commenced a de facto relationship after the child’s conception with another person, and Parsons then sought to move to New Zealand in 2015 with the child. Masson commenced proceedings to order a restraint on relocating the child and to seek equal shared parental responsibility.

The High Court of Australia upheld Masson’s appeal from the Full Court of the Family Court, ordering that Masson was a legal parent of the child, despite him only being a sperm donor. Masson’s inclusion on the birth certificate as the child’s biological father, contributions of financial support and act of taking on the responsibilities of being a parent who had the intention of ongoing involvement regarding the child’s health, education and general welfare, were pertinent factors in making the decision. The High Court held that as a legal parent, Masson was entitled to equal shared parental responsibility which required him to be consulted on major long term decisions, including potential relocation to New Zealand.

Can a de facto partner be a parent?

Parsons’ de facto partner was not held to be the legal parent of the child. The High Court noted the significance that they had not been involved in a de facto relationship at the time of conception. The Family Law Act 1975 (Cth) provides that a partner to a woman who has a child via IVF must prove they were married or in a de facto relationship at the time of conception to establish that they are a parent of the conceived child. This meant that despite the de facto partner’s substantial presumed involvement in the child’s life after the conception, the High Court determined they were not a legal parent.

Relevance for parental responsibility

Determining who legally constitutes a child’s parent is relevant for deciding who has parental responsibility for the child. Parental responsibility involves decision making powers relating to the child and significant choices in their life. A presumption exists that it is in the child’s best interests for their parents to have equal shared parental responsibility. Equal shared parental responsibility, as ordered between Masson and Parsons, requires both parents to partake in major long term decisions, such as relocation, health care or education (as discussed in another article).

How Etheringtons Solicitors can help you

A solicitor at Etheringtons Solicitors can provide clarification you with of the relevant family laws and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with navigating proceedings for parenting orders or assigning parental responsibility.

If you need further advice or assistance with family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Divorce in the Cryptocurrency Age

Mar 11, 2022 | Family Law

The adoption of Bitcoin, cryptocurrency, and other digital assets is the new normal in this day and age. However, the legal treatment of digital assets is unclear. This presents many legal challenges in the area of Family Law and questions as to the proper division of digital assets upon divorce.

Additionally, these speculative assets are incredibly volatile and it is almost impossible to predict their value. There are many viral stories that demonstrate how unpredictable Bitcoin is – such as one UK investor who invested £80,000, which rose to £1 million in 2017, then dropped to £600,000 in 2018. A recent case in the Family Court of Australia provides some initial insight into how the Australian courts may determine property settlements involving cryptocurrency.

What is cryptocurrency?

Cryptocurrencies are a form of digital currency with self-contained systems that allow investors to exchange and trade currency without a central bank. Each unit moves within a network, and as such are not subject to any bank fees or charges. However, cryptocurrencies such as Bitcoin are defined as property under Australian law, and as such, any profits upon sale would be subject to Capital Gains Tax.

Some of the more well-known cryptocurrencies are Bitcoin and Ethereum which have seen substantial fluctuation in their value. For example, in 2016 a Bitcoin was worth $200, but by 2017, it was worth nearly 100 times that amount ($19,783).

Since divorce and other family law proceedings can often stretch over many months, the unpredictability of such investments makes accurate disclosure incredibly difficult. Importantly, property settlements following divorce proceedings affect estate planning, and we have discussed the specific impact of these digital currencies in the article here.

The recent case of Powell v Christensen [2020] FamCA 944 

In late 2020, the Family Court heard a matter involving the disclosure and valuation of cryptocurrency assets. The husband in these proceedings had purchased personal and business assets in the form of cryptocurrency during the course of the relationship. In the property settlement proceedings, he failed to provide any substantial documentation to indicate the contemporary value of those assets. He contended that the tracking of value was a ‘non-trivial’ task and that exchanges are unable to provide certified statements. In the absence of any disclosure detailing current values or market patterns the Court determined that the purchase price of the cryptocurrency should be added back to the wife’s asset pool. This decision effectively disregarded any depreciation in the value of the cryptocurrency held by the husband, placing the onus on him to account for any difference between purchase price and actual value of the assets.

The importance of financial disclosure for divorce

In property settlement proceedings, each party has a duty to provide full and frank disclosure of their assets and liabilities accrued before and during the marriage. Although in Powell v Christensen the Court found that the husband had wilfully failed to provide disclosure of such assets and their value, the lack of certified or official statements associated with trading cryptocurrency was apparent. As such, parties may need to establish and track a chain of transactions before and during any property settlement proceedings to adequately show their value in the assessment of the asset pool.

Furthermore, cryptocurrency can be hidden more easily than tangible money held in a bank as it does not need to be tied to a particular account or user. Hiding assets by transferring them to cryptocurrency is a significant risk to disclosure obligations between parties. While digital forensics can be hired to determine if assets are being hidden from the other party, this is a time consuming and expensive process which will only lengthen divorce and property settlement proceedings.

As cryptocurrencies are relatively new, persuasive precedent on how the courts should handle these cases is yet to be set. However, it is anticipated that these new forms of digital currency will continue to pose challenges within the realm of family law.

How Etheringtons Solicitors can help you

Property settlement and family law proceedings are often complex and burden parties emotionally and mentally. If you would like further information regarding property settlements or if you have any general family law enquiries, please do not hesitate to contact one of our experienced solicitors on 9963 9800 for a confidential discussion or via our contact form.

How the New Family Court Structure Will Affect You

Mar 5, 2022 | Family Law

In February of 2021, Parliament passed the Federal Circuit and Family Court of Australia Act 2021 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Arrangements) Act 2021 which essentially proposed to merge the Family Court and Federal Circuit Court into a single unified structure. As the official merger was on the 1^st of September 2021, this article will provide an update on how these reforms will impact you.

Navigating the Family Law system can be incredibly challenging at the best of times so it is essential, if you are experiencing familial issues, that you seek experienced legal advice to assist you in navigating these challenges as the Family Law landscape undergoes significant change.

Review of the Changes

We have previously written an article which gave a detailed overview of the proposed changes. By way of summary, the new Federal Circuit and Family Court of Australia will consist of two divisions:

• Division 1: will only deal with complex Family Law matters and appeals; and
• Division 2: is the single entry point for all other Family Law matters. Judges will preside over a combination of Family Law and Federal Law matters such as employment and immigration.

The reforms have also resulted in a change to the rules of the family courts. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 were recently finalised and also came into effect on the 1^st of September.

One of the important features of these reforms is the establishment of a nationally uniform case management pathway which will operate to make proceedings less complex and prioritise alternative methods of dispute resolution.

The new Family Law Rules will also retain the need for parties to fulfil the required pre-action procedures. This means that parties should not file proceedings until they have engaged in dispute resolution, exchanged documents and made a genuine attempt to settle the dispute outside of litigation. Undertaking these pre-action procedures can be acrimonious, so it is best to seek out legal advice early to ensure your interests are well represented.

Dispute Resolution

As part of creating a consistent internal case management pathway, dispute resolution has been placed at the forefront to ensure just outcomes are achieved for parties in an efficient manner. It is an expectation of the court that both parties and their legal representatives make every effort to participate in dispute resolution. There are a number of different types of dispute resolution including mediation, negotiation and conciliation, and we have written previous articles explaining these processes.

Under the new case management pathway, dispute resolution must occur within 5-6 months of the date of filing. However, we should note that in circumstances where it is unsafe to conduct alternative dispute resolution, the parties will be given an opportunity to raise these concerns with the Registrar in formal court proceedings.

What the changes hope to achieve

The overarching purpose of these structural reforms is to ensure that the resolution of family disputes is achieved as quickly, inexpensively and efficiently as possible. In a Media Release from the office of the Attorney-General, Christian Porter stated that;

‘bringing the courts together under one amalgamated structure creates a single point of entry for families who will no longer be bounced around between different courts – an issue that occurs too often in the current system and can lead to lengthy delays for families because matters have to begin again.’

The unification of the family courts is hoped to resolve up to 90% of disputes within a 12 month timeframe by:

• Improving risk identification and the safety of vulnerable parties;
• Encouraging alternative methods of separation which are less burdensome on the parties;
• Improving compliance with court orders; and
• Enhancing access to justice for those from remote or vulnerable communities through the use of technology.

Additionally, as we noted in our previous article, judges hearing Family Law matters in the new amalgamated court will need to satisfy additional appointment criteria to guarantee they are suitable to dealing with more complex Family Law matters, including family violence.

How Etheringtons Solicitors can help?

Understanding the Family Law system can be a confusing and emotionally exhausting task. Our dedicated Family Law solicitors are ready and willing to assist you with your parenting or Family Law concerns. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles on family and other areas of law, see our blog here.

Unpacking the Family Court Structural Reforms

May 6, 2021 | Family Law

Disclaimer: Following the publishing of this blog, the Federal Circuit and Family Court of Australia Act 2021 was passed into law. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.

The government has introduced the Federal Circuit and Family Court of Australia Bill 2019 in order to structurally reform the Federal Circuit Court and Family Court of Australia, both of which currently have responsibility for family law matters. This merger has been proposed to help reduce delays and backlogs in the family law courts, leading to greater efficiency in the way family law matters are dealt with in Australia. This hotly debated reform passed the lower house late December 2020 despite much opposition. In this blog, we review the proposed court merger and other changes under this bill.

The Court Merger

The Federal Circuit and Family Court of Australia Bill 2019 aims to bring the Federal Circuit Court of Australia and the Family Court of Australia together into an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia (FCFC). The structural reforms facilitated by the Bill purport to create a framework in the Court for common leadership, common management and a comprehensive and consistent internal case management approach.

There is a clear emphasis on efficiency, evident under section 5 of the Bill which states that the aim of this legislative instrument is:

• to ensure that justice is delivered by federal courts effectively and efficiently; and
• to provide for just outcomes, in particular, in family law or child support proceedings; and
• to provide a framework to facilitate cooperation between the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) with the aim of ensuring:
• common rules of court and forms; and
• common practices and procedures; and
• common approaches to case management

In a media release from the office of the Attorney-General, Christian Porter has said that ‘bringing the courts together under one amalgamated structure creates a single point of entry for families who will no longer be bounced around between different courts – an issue that occurs too often in the current system and can lead to lengthy delays for families because matters have to begin again.’ However, it is worth noting that some legal experts, while acknowledging the difficulties presented by a duplicate court system, worry that the merger will be an abolition of the specialist Family Court of Australia.

Other Changes

The legislation also requires that judges hearing family law matters in either Division will need to satisfy additional appointment criteria to guarantee they are suitable to dealing with family law matters, including family violence. Many matters that come before the family court tend to have elements of family violence, therefore family law judges will also need to have a strong understanding of family violence and its implications for the safety of women and children.

The Government has provided $4 million in funding to the federal courts to review court rules and assist with implementing the reforms as well as a $3.7 million boost to court resources.

Get Legal Advice

Navigating the family law system can be a confusing and emotionally exhausting task. Our dedicated family law solicitors are ready and willing to assist you with your parenting or family law concerns. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles on family and other areas of law, see our blog here.