Monthly Archives: August 2014

Couples Now Inserting Social Media Clauses into Pre-Nups

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Social media postings about ex-partners

“My ex-boyfriend was a pig” or “Here is a nude pic of my ex-girlfriend”. Not uncommon to see these posts on social media, right?

Well, so much so that some couples have taken pre-emptive measures in pre-nuptial agreements, in order to protect themselves from such posts in the event that their relationship fails in the future.

With over 1.23 billion users (approximately one sixth of the world’s population), Facebook and other popular social media sites such as Twitter and Instagram are a daily part of our lives whether we like (to admit) it or not.

When new relationships first begin to develop these social media sites can be great ways of learning more about your new partner and keeping connected. However, in America, some couples are starting to think about the ways in which these public forums may be used against them in the future if their relationships turn sour.

To prevent nasty or embarrassing media being aired, some American couples are now including “social media clauses” in their prenuptial agreements to prevent unwanted photographs, videos and even comments about them from being posted on social media sites by disgruntled ex-partners.

These pre-nuptial agreements can specify the websites concerned, the types of media that are relevant, what would be considered inappropriate or offensive and require consent before public posting. Some of these agreements go so far as to prevent spouses from communicating with new ‘friends’ online without the other spouse’s consent.

With content able to be accessed by friends, colleagues and even family (sometimes including children) it is understandable that parties might be worried about what is posted. So can we expect to see Australians locking down their future partners’ social media habits before agreeing to commit?

The short answer is no. Whilst it is possible to include provisions about almost anything in a binding financial agreement entered into before marriage (a ‘pre-nuptial’ agreement), this does not mean that every provision will be enforceable.

In Australia ‘pre-nuptial’ agreements relate to the substitution of the financial rights of the parties. Therefore, the inclusion of the type of injunctive relief sought by way of a ‘social media clause’ in a binding financial agreement is unlikely to be successful. Instead, a court will likely completely sever any such clause from the agreement, rendering it useless.

In Australia parties are able to enter into binding financial agreements before they get married or enter into a de facto relationship, whilst they are married or in a de facto relationship as well as after the marriage or de facto relationship has ended.  Agreements drafted before or during a relationship or marriage can be used to clarify financial matters whilst everything is still ‘Rosy’. In particular, ‘pre-nuptial’ agreements can be beneficial where parties have been married before and/or have accumulated substantial assets.

Related Family Law Judgments

Nick and Kathryn Greiner Divorce After 44 Years Marriage

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Nick and Kathryn Greiner separate after more than four decades of marriage.

Former NSW premier Nick Greiner and his wife, Kathryn Greiner, have agreed to separate after more than four decades of marriage.

Nick and Kathryn Greiner are the latest high-profile couple emerging from difficult negotiations which threatened to lay bare the personal wealth of the one-time premier of NSW.

Mr Greiner, the premier and treasurer of NSW between 1988 and 1992, married Kathryn Callaghan in 1970.

The couple have a son, Justin, and daughter, Kara, the latter of which was the subject of Mr Greiner’s recent public support of gay marriage, of which he said:

“I have a family member, a daughter, who’s in a gay marriage, or a gay relationship, so I could be said to have a bias. But I think the notion of not giving people a conscience vote on what is quintessentially a conscience vote issue is just bizarre.”

The Greiners have stated that the decision to divorce is mutual and amicable. “They remain good friends and are completely devoted to their family. They will not be making any further comment.”

It is not the first time the couple have separated. The couple, both 66, split up in 1996 with the Budapest-born businessman and politician admitting to having a marital affair.

They reconciled and were said to have reconnected over a healthy respect for one another and their commitment to their children.

A friend of the former Liberal Party MP said the couple had taken months to arrive at a settlement following their marriage breakdown last October.

Nick-and-Kathryn-Greiner

Nick and Kathryn Greiner.

“It has not been an easy settlement. She has hired an excellent divorce lawyer and has worked hard to try and ensure she is looked after. She did, after all, devote four decades of her life to supporting Nick, who rose to become a very wealthy man,” a friend said.

At a recent lunch, Greiner, who sits on a number of boards and owns a magnificent parkside mansion in Lang Rd, Centennial Park, was overheard apologising to a business associate as he rushed away to attend to the latest in a series of difficult meetings with the pair’s divorce lawyers.

Undoubtedly making the settlement a good deal trickier was the recent arrival on the scene of Greiner’s new lady companion, whose identity remains a mystery.

Judging by the success of some of Sydney’s top-notch divorce lawyers, Mrs Greiner might expect to leave the marriage with 60 per cent of the couple’s assets, which should leave her in good shape.

A great many Australian men have found that despite their power and authority in the boardrooms and halls of power, when their marriages go bust they can be reduced to rubble.

Word that Solomon Lew’s wife Rosie hopes to walk away from the couple’s 45-year marriage with a settlement worth $300 million made Paul Hogan’s $6.25 million settlement to Linda Kozlowski look meagre by comparison.

Not everyone can afford to be as generous as James Packer, who signed away more than $100 million of assets to his second wife Erica Packer — throw in the $50 million Vaucluse house and that’s $150 million — after only seven years of marriage.

For some, the threat of financial annihilation is enough to prompt them to delay divorce indefinitely in the hope that the primary breadwinner can build his wealth to a level that provides a better split for both parties.

One who is said to be using just such a strategy is Kyle Sandilands.

He and his estranged wife Tamara Jaber are yet to divorce, with sources saying the shock jock, whose value on paper appears substantial thanks to million-dollar radio contracts, is delaying formalising their split in the hope of building his personal wealth to ensure the divorce doesn’t wipe him out.

“Kyle has never been a savvy investor. Building wealth has never been as important to him as spending wealth,” said an observer.

Jaber has suggested as much in her social media posts.

Other high profile Sydney men who felt the pinch have included politicians Graham Richardson and Peter Collins and television executive Sam Chisholm while Russell Crowe and estranged wife Danielle Spencer seem to have found a happy still-married balance for the time being, though for what reason is unclear.

Protecting Gifts to Children in the Event of Divorce

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gifting-propertyThe constant news of how unaffordable the Australian housing market has become is a major cause of concern for first home buyers and parents.

There are a number of ways that parents can help their children buy their first home. However, if the wrong method is used capital gains tax can be payable or the financial help can be wasted.

One resource that in most cases cannot be used is superannuation. This is because super must be used to provide retirement benefits and cannot be accessed unless a condition of release has been met, such as reaching 65 or retiring from full-time employment. Also a super fund cannot lend money to, or purchase a house for, members or their children.

Parents wanting to help children buy their first home, but who want to retain control, can buy a property in their name or that of a trust. The problem is at some point the property must be transferred into the son or daughter’s name. In this situation the child lives in the home and either becomes the owner upon the death of the parents or when title of the property is transferred to them.

Using this method can protect the parent’s investment in the event of a divorce, but when the house is transferred capital gains can be payable. Once ownership of a property transfers, either upon death or transfer, a capital gains tax event occurs. This results in the parents or their estate paying tax on the increase in its value.

Another method of providing financial assistance is for the parents to give money to assist with the purchase of the home. This could be an amount for the deposit, or it could be enough to fund the full purchase price of the property.

Using a gift can result in a transfer of wealth out of the family in the event of divorce. When parents make gifts to children the resulting asset, whether it is cash or property, becomes an asset counted by the Family Court in the event of a relationship breakdown. Parents can then see more than 50 per cent of the gift ending up in someone else’s hands.

The best way for most parents to help children, and not face the risk of their financial assistance going to their son or daughter’s ex-partner, is to treat the amount provided as a loan. For this to be effective it is vitally important that the loan be properly drawn up.

Neil Collins, a family law specialist with Westminster Lawyers, said, ‘‘Preferably the loan would be in writing with the document signed by all parties and setting out the terms of the loan, such as the interest payable and the mode of repayment. The loan may be repayable in full or in part on demand. Binding Financial Agreements, drawn pursuant to the Family Law Act, are also an excellent way to remove doubt as to the existence of the advance and how it is to be treated in the event of a separation’’.

As a part of drawing up a loan agreement the parent should also consider having some form of charge over the property. This could be done as a mortgage, if it will not affect the chances of getting a loan, or as a caveat.

No matter what choice of financial assistance will be used it is vitally important for parents to get professional advice before the funds are advanced.

How to Bring an Overseas-born Surrogate Child Back to Australia

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gammy-surrogacyThe recent baby Gammy case has exposed the pitfalls of the international commercial surrogacy trade.

Gammy, a baby with Down syndrome, was left with his Thai surrogate mother while his healthy twin sister returned to Western Australia to live with her biological father and his wife.

Since then, two Australian couples have been temporarily stopped from leaving Thailand with their surrogate children. Thai authorities are considering draft legislation that may shut down the commercial surrogacy trade.

A Family Law Council report, recently released by Attorney-General George Brandis, says “a significant and apparently growing number of children are being born as a result of commercial surrogacy arrangements outside Australia (more than several hundred each year)”.

The spate of cases raises questions about the legal rights a child born to an overseas surrogate has in Australia, and what rights Australians who engage in surrogacy agreements have in Thailand and other countries.

Thai surrogate mums ‘not compelled to give up the child’

Thai parentage law does not mention surrogacy. In Thailand, a birth mother is considered the legal mother of the child. If a Thai surrogate mother is married, her husband becomes the legal father.

The Australian embassy in Bangkok says Thailand currently has no laws or published court decisions directly relating to the practice of surrogacy.

Dr Sonia Allan from Macquarie University says the surrogate mother “is not compelled to give up the child to the commissioning or biological parents”.

“Arguably, a child born in Thailand acquires Thai citizenship, due to the legal status of the mother,” she says. Gammy’s Thai birth mother has not given up her parental rights, and Professor Allan says citizenship is determined by the legal parents, not by the biological parents.

Putting a commissioning, and often biological, father’s name on the Thai birth certificate does not give rise to legal paternity, and does not give him an automatic right to custody, she says.

In the case of baby Gammy, Professor Jenni Millbank from the University of Technology Sydney told Fact Check: “There is no legislation in either country to compel her to relinquish – she is a legal parent in both jurisdictions.”

The Australian Department of Foreign Affairs and Trade says: “Current advice is that Thai authorities are enforcing documentation requirements upon exit of the country when they suspect a child has been born by surrogacy in Thailand.” It says required documents may include:

  • Child’s birth certificate;
  • Copy of birth mother’s ID card;
  • Copy of intended parents’ passport(s);
  • Surrogacy contract; and/or
  • A court order issued by the Thai Family Juvenile Court to confirm that the birth mother has given up her rights to custody of the child.

Inconsistency across jurisdictions

The Thai law that confers parental rights on the surrogate is not mirrored in India, where the surrogate mother is not viewed as the legal parent.

The inconsistency in the laws raises the vexed issue of who is ultimately legally responsible for a baby born to a surrogate across international jurisdictions.

Professor Millbank says: “In the absence of Australian parentage the child would, in some circumstances (such as birth in India), be both stateless and parentless; in others the child would have the citizenship of the birth country (United States, Thailand) but no parents (California, British Columbia); or only a mother there (Thailand).”

Dr Allan told Fact Check: “There is good reason to see the birth mother as the legal mother in the first instance”, arguing it is “a way of protecting the woman carrying the child if she does not want to relinquish it.”

Obtaining Australian citizenship

When a baby is born to a surrogate mother in Thailand or India, euphoria may be quickly overcome by the legal minefield that must be navigated to get the baby Australian citizenship, a passport, and eventually to achieve thelegal status having an Australian parent.

In order to obtain Australian citizenship for a child born to a surrogate overseas, the Australian parents need to lodge an application for Australian citizenship by descent.

If at least one person who was your parent at the time of your birth was also an Australian citizen at the time of your birth, you are eligible.

It is the same process any Australian parent needs to undertake when a child is born overseas.

In addition to the general documents required for Australian citizenship, the Australian embassy in Thailand says when a child is born as a result of a surrogacy arrangement there needs to be a certified copy of the agreement and evidence that the child is the biological child of the “commissioning” parent. The embassy says the commissioning parent and child “need” to undergo DNA testing.

The application is determined in accordance with the Australian Citizenship Act (2007) and citizenship is ultimately conferred by the Department of Immigration and Citizenship.

Professor Millbank says parents commonly misunderstand that the granting of citizenship – which applies only for that sole legislative purpose – is a grant of parental status under Australian state and federal law.

Would baby Gammy be eligible for Australian citizenship? “Technically it appears the answer would be no – citizenship by descent is determined by the citizenship of the legal parents (and not necessarily genetics),” Dr Allan says.

“I think that granting baby Gammy Australian citizenship would require making a special exception in this case.”

The Minister for Immigration has the ultimate power to confer citizenship.

A spokesperson for Immigration Minister Scott Morrison says: “The child may be eligible for Australian citizenship. The Australian Citizenship Act 2007 does not differentiate how a child came to be born. Any application for Australian citizenship by descent is predicated on the link between parent and child.”

Applying for an Australian passport

When a child born of a surrogate mother in Thailand applies for an Australian passport, the Department of Foreign Affairs and Trade recognises the legal rights of the Thai surrogate mother. She must consent in writing to the issue of an Australian passport to the child and explicitly consent to removal of the child from the country of birth.

“The written consent of all persons with parental responsibility for a child’s passport must be obtained for each new passport application until the child turns 18 years old,” the department says.

Earlier this year, there were reports that Israel refused to issue passports to children born to Thai surrogate mothers because it was concerned about Thai domestic law that stipulates that children born to surrogate mothers are Thai citizens and their mothers have full custody rights.

There was commentary suggesting the Israeli government was concerned about potential child trafficking or kidnapping.

Overseas commercial surrogacy on the rise despite state bans

While all states ban commercial surrogacy in Australia, NSW, QLD and the ACT also ban overseas commercial surrogacy, and people who engage in it can be subject to fines and prosecution.

According to a 2011 Family Court judgment, state laws “have aimed to protect women and children from what the legislature has seen as abusive practices which potentially surround the commercialisation of surrogacy”.

Although some states have banned overseas surrogacy agreements, the Family Law Council report notes “the number of children conceived as a result of overseas commercial surrogacy arrangements has increased dramatically in the past several years, despite the existence of laws prohibiting such arrangements, and that, to its knowledge, none of the intended parents in these cases has been prosecuted”.

Nonetheless, the bans on overseas surrogacy agreements in some states raise a number of questions for a couple returning with a surrogate child from Thailand or India.

While the federal Immigration Department may grant the child citizenship, the department warns commissioning parents that overseas surrogacy arrangements may not fulfil the requirements for a transfer of legal parentage under state law.

The department says this “may be because the arrangement entered into is commercial in nature and/or the parties may not have received counselling or independent legal advice”.

The Department of Foreign Affairs says “under Australian law, the surrogate mother may have parental responsibility for the child she gave birth to regardless of whether she has a biological connection, is listed on the child’s birth certificate or is considered to have parental responsibility under local law”.

The Family Law Council report says “a birth certificate that is issued in an international jurisdiction, or a parentage declaration made by a foreign court, is not binding on an Australian court”.

It warns that adoption of the children born from overseas surrogacy arrangements can also be difficult, and adoption – which is also governed by state law – is highly regulated.

It says “it would seem that a large number of young children are growing up in Australia without any secure legal relationship to the parents who are raising them”.

“Council notes the importance of protecting the child’s right to know of their birth parentage, the concerns expressed about the potential for exploitation of surrogates, and the need to ensure that children enjoy ‘the same status, protection and support irrespective of the circumstances of the child’s birth’,” it says.

The report recommends the introduction of a federal Status of Children Act, which would make orders about the status of children and legal parentage.

Dr Allan says: “The Australian approach to legal parentage is particularly complex in the context of trans-national surrogacy arrangements. Australian law does not recognise parental status granted in other jurisdictions unless specifically prescribed under legislation for particular purposes.”

Recent cases: Obtaining ‘parentage’ rights

There have been a number of cases in the federal Family Court in recent years which have involved surrogacy arrangements where applications for ‘parentage’ have failed to meet the requirements of state or territory law.

One case raised in the Family Law Council report involved a Queensland couple, Mr and Ms Dudley, and a Thai surrogate mother, Ms Chedi. In 2011, the Family Court heard an application by the intending father, who was the biological parent of twin children born to Ms Chedi. “The parents were not able to obtain a transfer of parentage order from the relevant state court as the commercial surrogacy arrangement used by the parties was not permitted by Queensland law,” the report says.

However, given the children’s need for a legal relationship of some kind with the intended parents, Justice Garry Watts made parenting orders giving the applicants parental responsibility for the children during their minority.

It should be noted that Justice Watts declined to make a finding that Mr Dudley in that case was a parent.

Dr Allan says: “When people have broken state laws, the Family Court may still have had to determine legal parentage of children born as a result. This may arguably be seen as a ‘conflict’ as it places the Family Court judges in a difficult position.”

The judgment noted that not having full parenting rights may have an impact in areas such as:

  • Medical treatment for the child;
  • Registering with Medicare and health funds;
  • Applications for passports or schools that require a birth certificate specifying the child’s parents;
  • Rights for a child arising upon the death of a parent, including rights to an intestacy and superannuation;
  • The ability of a child to be referred to as “a child” in a will; and
  • Complications in relation to recognition as to entitlements and liabilities under the child support regime and recognition of a child’s rights to entitlements on injury or death of a parent in schemes of workers’ compensation.

While it is not illegal for people from Western Australia to engage in commercial surrogacy overseas, baby Gammy’s parents, David and Wendy Farnell, said in an interview with 60 Minutes on August 8 that they are still not recognised as the parents of baby Gammy’s twin sister, Pipah, who is living with them in Bunbury, WA.

Mr Farnell told the program: “Everybody is saying we don’t recognise her, because she is not born in Australia, and she is not not under our name. So we are desperately trying to get her our name and be recognised as the parents.”

Sources

  • Department of Foreign Affairs and Trade, Thailand travel advice, August 2014
  • Family Law Council, Report on Parentage and the Family Law Act, December 2013
  • Department of Immigration and Border Protection, Application for Australian citizenship by descent
  • Australian Embassy Thailand, Children born as a result of a surrogacy arrangement in Thailand
  • Australian Citizenship Act 2007
  • Thailand Civil and Commercial Code Title 11 Parent and Child Chapter 1 Parentage Law Code
  • Australian Embassy, Thailand, Children born as a result of a surrogacy arrangement in Thailand
  • Department of Foreign Affairs and Trade, Applying for a passport for a child born through surrogacy
  • Professor Jenni Millbank, Resolving the dilemma of legal parentage of Australian engaged in International Surrogacy
  • Department of Immigration and Border Protection, Fact Sheet 36a – International Surrogacy Arrangements
  • Family Court of Australia, Dudley and Anor & Chedi, June 30, 2011
  • Department of Foreign Affairs and Trade, Birth of an Australian citizen abroad
  • 60 Minutes interview, David and Wendy Farnell, August 8, 2014
  • Australian Government, smarttraveller.gov.au, Overseas births, adoptions and surrogacies

Family Law Council Recommendations on Surrogacy Laws

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Parentage-and-the-Family-Law-ActThe Attorney-General, George Brandis, has released the Family Law Council’s report on Parentage and the Family Law Act, which calls for a coordinated international response to the issue of overseas surrogacy arrangements.

The report, which the government has been in possession of since December last year, was commissioned by the previous Labor government.

Surrogacy has been thrust into the spotlight after a baby born to a Thai surrogate mother was allegedly abandoned by an Australian couple.

David and Wendy Farnell, from Bunbury in Western Australia, were accused of abandoning Gammy because he has Down’s syndrome, and keeping his healthy sister. They later told media they wanted to keep both children but were forced to leave Thailand with just the girl when the Thai surrogate threatened to involve police.

It was also revealed the Australian father has multiple convictions for child sex offences.

Following the international controversy, the Thai military government this week gave preliminary approval for draft legislation to ban commercial surrogacy.

The Family Law Council’s report on parentage and the Family Law Act, released by Brandis on Thursday, “considers whether the outcome of a family law matter is affected by the way in which a child’s family was formed and who is considered to be a ‘parent’ under the act.”

Included in the terms of reference was the request to explore “any amendments that would assist the family courts to determine the parentage of children born as a result of assisted reproductive technology, including surrogacy, where the state and territory acts do not apply.”

Hundreds of children have been born to Australian couples through commercial overseas surrogacy arrangements despite its prohibition, and are at risk of having no secure legal relationship to their parents, the report said.

The former department of immigration and citizenship told the council it estimated there were at least 100 cases each year.

Family courts have received applications for parenting orders from families in this situation because the surrogacy arrangement didn’t meet legal requirements for a “transfer of parentage.”

The report said there was a wide range of submissions received on the subject, including people calling for the law to stay as it is, and others proposing changes to allow the courts to give automatic effect to overseas birth certificates and surrogacy agreements.

“Council is conscious that the number of children conceived as a result of overseas commercial surrogacy arrangements has increased dramatically in the past several years, despite the existence of Australian laws prohibiting such arrangements,” read its executive summary.

“Council believes this issue requires a coordinated international regulatory response of the kind embodied in the Hague Adoption Convention.”

The Hague convention “protects children and their families against the risks of illegal, irregular, premature or ill-prepared adoptions” overseas.

In the meantime, it said the family courts should be assisted in “addressing the concerns that underpin current state and territory surrogacy laws (such as concerns about exploitation of surrogates and to protect children’s identity rights) whilst also recognising the need to ensure that children born of illegal surrogacy arrangements are not disadvantaged by a lack of legal status.”

Among its 19 recommendations covering multiple aspects of the Family Law Act, the council said there should be easier transfer of parentage from a surrogate and her partner to parents after the baby is born, as long as “safeguard criteria” is met.

“Council believes that a process of judicial oversight (rather than a contract-based presumption, or prescribing overseas jurisdictions) is necessary given the current, largely unregulated, circumstances of some overseas surrogacy markets. These unregulated markets give rise to concerns about the arrangements, including issues of full, informed consent of surrogate mothers and the (identity) rights of the child.”

It recommended new status of children legislation with requirements to ensure that any change to parentage was subject to the best interests of the child, including provisions for when parties change their mind, and the requirement of evidence of a surrogacy arrangement, including any payments made.

Requirements also covered a child’s access to information on his or her genetic or cultural origins, and that orders must be made in relation to all children in the case of multiple births.

“Consideration should be given to whether the intending parents have acted in good faith in relation to the surrogate mother,” it continued.

It also recommended that “The law should provide scope for the recognition of more than two people to have parental responsibility for a child where that reflects the social reality of that family.’’ This would allow children to have more than two parents.

It also found that  children born in overseas surrogacy arrangements are at risk of having “no secure legal relationship” to their Australian parents.

The Family Law Council also found that there is uncertainty about the parental status of known donors of genetic material in assisted reproductive cases, noting that when a single woman has a child through measures like IVF, the Family Law Act does not explicitly exclude the donor from being found to be a parent.

The Council also said the family courts should have a power to affect a post-birth transfer of parentage from the surrogate (and her partner) to the intended parents where certain safeguards had been met.

It said the grant of citizenship by descent did not mean the intending parents were considered legal parents in Australian law and this meant these children were vulnerable if there is no legally-recognised parent in Australia.

Grey Divorce Rates Soaring in Australia

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divorce-in-waOlder Australians are divorcing more than ever before, with many struggling to get back on their feet financially after a split.

Grey divorce rates in particular are soaring, with big jumps in the number of men and women divorcing aged 50 and above.

Apart from coming to terms with the emotional pain, one of the biggest problems for older people after a divorce is figuring out how to rebuild their finances.

With the bulk of working years behind them and limited assets after the expensive child rearing years, it can be difficult to recover their married standard of living.

We have a number of friends in this situation so here are our observations on how to handle marital problems when you’re over 50, and where to turn if things are really going pear shaped.

WHY DOES GREY DIVORCE HAPPEN?

Your 50s is a decade of massive change. Kids leave the nest, work slows down and the body gently reminds you to take things a bit easier.

Some empty nesters, after the distractions of raising kids stops, realise that with so much else going on, their relationship has been left behind.

But before calling quits on any serious relationship, it’s in your financial and emotional interest to try to work it out with your partner first.

Lorraine Murphy, director of clinical services at Relationships Australia, says that it’s important for both partners to come together to focus on making things work.

If there hasn’t been a serious indiscretion to cause the relationship to fail and you’ve simply grown apart, then you could try counselling, being more open with each other or just spending more time together.

In your 50s, there’s a good chance you’ve spent some of the best years (or decades) of your life with each other and done some amazing things, so why not give it another shot?

GETTING A DIVORCE

If things have gone seriously downhill and the relationship can’t be salvaged, then be smart about how you handle the settlement.

Women have to be especially careful. The average Australian woman will live five years longer than a man but has a superannuation balance that’s 43 per cent lower. So dividing the family assets fairly in a split is important to maintaining quality of life.

Some women may not have a complete picture of the family finances, particularly if they’ve left the workforce to focus on raising children. Make sure you are fully informed about all aspects of your financial relationship – bank accounts, investments and insurance. Know where all the important documents are kept.

When the decision to split is made, protect your access to joint bank accounts, cancel joint credit cards and set up your own, change passwords and generally be on guard about any funds that may “walk”.

One of the most important considerations will be what to do with the family home and any investment properties. While it may seem like a great idea for one partner to keep the house, consider the ongoing maintenance fees and the fact it ties up money in an illiquid asset.

For a couple that is asset rich but cash poor, a good option can be to sell the house and split the proceeds.

Lastly, while your split may be amicable, it’s always wise to secure copies of all financial documentation and engage the services of a lawyer to organise the settlement.

Murphy recommends visiting your local Family Relationship Centre for information and confidential assistance. Otherwise, in the event things do get ugly, the Family Court may have to resolve the situation.

MOVING ON AFTER DIVORCE

Once the divorce has been finalised and you’re out on your own, it’s more important than ever to be smart about finances.

With one income and set of assets, you’ll need to put together a plan about how you’ll make things work and achieve your desired quality of life.

It’s a good idea to seek financial advice to ensure you’re on the right track.

And finally, don’t forget about estate planning. Update the will to reflect your new situation.

Bias Against the Gay Parent in Family Court Proceedings

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gay-parentWhen it comes to child custody and same-sex parents, the Family Court has stated on numerous occasions that there is no presumption against the non-biological same-sex parent in the event of separation.

But what if both parents are the biological parents, and upon separation one declares themselves to be gay? Does a presumption exist against the gay parent in such circumstances?

New research suggests that despite a sea-change in attitudes over the past decade, some presumption may still exist, at least according to this research of some jurisdictions outside Australia.

Court decisions that favour a heterosexual parent over a gay or lesbian parent in a custody dispute often do not consider important social science research on parenting by gay and lesbian individuals, according to a new review from Drexel University.

Previous research shows that gay and lesbian individuals are as effective in parenting as heterosexuals, and that children raised by gay or lesbian parents are as well-adjusted as their peers raised by heterosexual parents. This research could greatly impact how legislatures and courts make decisions regarding custody for gay and lesbian parents. However, in many states, sexual orientation is still a deciding factor in custody decisions.

For a gay or lesbian individual, coming out as gay at the end of a heterosexual partnership can mean that he or she could be denied custody of the children from that partnership or face restrictions on visitation. For same-sex couples with children, the end of their relationship can mean difficulties in establishing parental rights for both parents when one partner is not recognized as a legal parent by the state and by the court, and therefore is not granted custody or visitation.

The Drexel researchers recommend that legislators and other policy makers take into account the research on gay parenting. They believe that this research should be used to help guide policy, which would have the potential to assist judges in complex decisions regarding custody and parental rights — and could help ensure that such legal decisions genuinely reflect the best interest of the child.

The review, entitled “Lesbian and Gay Parents and Determination of Child Custody: The Changing Legal Landscape and Implications for Policy and Practice,” was published in the first issue of the American Psychological Association’s (APA) new journal, Psychology of Sexual Orientation and Gender Diversity, which was released in March 2014. The full article is available here or by request.

The review was conducted by Emily Haney-Caron, a third-year JD/PhD candidate in Drexel’s joint program in psychology and law in the College of Arts and Sciences and School of Law, and Kirk Heilbrun, PhD, a professor of psychology in Drexel’s College of Arts and Sciences. They presented their research at the APA’s American Psychology-Law Society (APLS) conference in March.

“There’s been a sea-change within the past five to 10 years — several states are currently going through the process of legalizing same-sex marriage — and a by-product of that change is that there are more people in same-sex relationships that have been legitimized by society,” said Heilbrun. “This means that there are also more children involved in custody disputes where one parent is in a same-sex relationship. This has become an increasingly relevant issue and one that needs to be addressed.”

“As our views as a society change, we want our courts to reflect that,” said Haney-Caron. “Our legal system should reflect the values and the realities that we hold.”

Haney-Caron and Heilbrun reviewed the current law relating to gay and lesbian parents and child custody decisions as well as the research on gay and lesbian parenting.

Based on this review, the authors offer several recommendations for stakeholders:

  • For psychologists conducting evaluations for custody disputes involving a gay or lesbian parent, it is important to understand the relevant law and research, ensure that personal biases do not influence the evaluation or conclusions, and consider how the nature of these cases may influence both the evaluation and the information provided to the judge in the case.
  • For judges presiding over custody matters, the relevant social science research should help to inform decisions involving families with a lesbian or gay parent.
  • For legislators, research should also help to inform lawmaking in this area. Examples might include legislation restricting judges from considering sexual orientation in child custody disputes, or legislation making it easier for same-sex couples to establish legal bonds with their children.

“By allowing the research to influence legal decision-making in this area, our society can help ensure that the best interest of the children whose custody is at issue will be served,” said Haney-Caron.

Haney-Caron first addressed this topic in a paper for Heilbrun’s course on forensic assessment in 2013. “A conversation in class first triggered my interest,” she said. “And then I saw that there was nothing else out there on this topic in psychology literature.”

“This is a prime example of the kind of work we do in the JD/PhD program,” said Haney-Caron. “It brings together two disciplines — law and psychology — and creates scholarship in the space between them.”

What is a Power of Attorney? Easy to Understand Guide

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power-of-attorney-formA power of attorney (POA) can be an important, practical and useful legal solution that not only provides you with peace of mind but can also help you avoid costly and complex legal problems.

A POA is a legal document that allows a person to act on your behalf in areas such as financial property or medical matters.

The person delegating the power is known as the principal (also referred to as a donor or grantor) and the person receiving the power is known as the attorney (also known as the donee, grantee or agent). The relationship between the principal and attorney is that of principal and agent.

A general POA (see below) can be set up to give the attorney the authority to:

  • do just one thing;
  • do a restricted range of things; or
  • make any financial or legal decisions on the principal’s behalf.

A general POA with limited powers is usually granted to cover a specific event for a fixed period of time. This could include selling shares, buying property or signing a legal agreement.

If the grantor of the POA becomes mentally incapacitated and legally incompetent, the POA ceases to be active and no longer applies.

What are the attorney’s responsibilities?

An attorney must:

  • avoid conflicts between their interests and yours
  • maintain proper records of their dealings with your money and property
  • keep your money and property separate from theirs
  • act in your best interest at all times
  • not pay or give gifts or benefits to themselves or other people using your finances, unless you specifically say they can.

However, the attorney can claim out-of-pocket expenses directly connected with carrying out the power of attorney duties.

Who can make a power of attorney?

In general, a principal must be 18 years of age and legally competent. In other words, the principal should understand the nature and effect of the POA in terms of what he/she as an attorney can do, when the attorney can make decisions and what kind of decisions, and the impact of this decision making.

Who should be appointed as the attorney?

An attorney must be at least 18 years of age if they are required to sign contracts, for instance.

People often appoint relatives, close friends or an independent person such as an accountant, lawyer or doctor as their attorney. You can also appoint a trustee company, but there will invariably be fees associated with this.

An attorney should be a person whom you trust and who understands the decisions you would be likely to make in certain circumstances.

Types of POAs

Specific: Enables the person to act on your behalf for a specified purpose.

Limited: Enables the person to carry out a particular transaction on your behalf.

General: Enables the person to carry out any business for you or deal with your affairs and assets.

Enduring: While specific, limited and general POAs cover you while you are alive and of sound mind, an enduring POA will cover you up until your death, even if you become physically or mentally impaired and are unable to manage your affairs.

This person will be able to take care of your investments and other financial matters.

The powers that a POA may confer on another person may differ between the various states and territories of Australia. Therefore it would be wise to seek professional legal advice before making a POA.

Sample Legal Documents

Surrogate Father of Twins labels Australia’s Surrogacy laws A DISGRACE

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Jake Docker & twins surrogacy daughters

The commercial surrogacy laws in essentially all Australian states and territories have been criticised far and wide. Implemented to prevent the commercialisation and ultimately exploitation of people involved in the practice, all it seems to have achieved is drive people under-ground, and forced many Australians to seek overseas, that which they have been denied access to in Australia.

When Jake Docker discovered the NSW government was about to ban international commercial surrogacy in 2010, he immediately signed a contract with an agency in India to ensure he would be able to achieve his dream of fatherhood.

The father of twin daughters, Pippa and Millie, born to a surrogate in India in January last year, now questions why he rushed into it, saying hundreds of couples continue to skirt the law.

Since March 2011, NSW parents who engage in compensated surrogacy overseas have risked two years’ imprisonment and fines of $275,000, although those who signed contracts with agencies before that date are protected.

“I look back and think, ‘what was all that panic about?’ People are still doing it. Nobody has been prosecuted under that law,” he said.

“The laws banning commercial surrogacy are rubbish laws which haven’t had an effect on anybody.”

But Mr Docker, who is gay, is deeply worried that legal issues raised after baby Gammy might lead to a crackdown on overseas commercial surrogacy, which is only illegal in NSW, the ACT and Queensland.

“I am concerned there will be a federal legislation that bans international commercial surrogacy outright,” he said. “That’s punitive. It’s a real shame.”

The 28-year-old said further restrictions on surrogacy would create a black market for babies.

“Stamping out Australians doing commercial surrogacy anywhere in the world is not the answer,” he said. “It will only drive it underground, it will only marginalise people that are trying to access surrogacy. People who really want to have a baby will always find a way.”

He has nothing but praise for the Indian clinic which handled his surrogacy arrangement but he encountered problems with the Indian government when trying to take his babies home.

“I was put through the ringer by the [former] minister of home affairs in India,” he said. “I was interrogated by one of the senior officials there who told me I could be taking them to harvest their organs and all sorts of stuff.

“They do interrogate you and give you a hard time about taking the babies out of the country and that’s after you already have a birth certificate and an Australian passport for them.”

Mr Docker, who works in law enforcement, turned to surrogacy after exhausting other options in Australia, such as inter-country or local adoption.

‘‘I went on the adoption waiting list in NSW a couple of years ago and the response was: ‘When a child in need of adoption becomes available, we’ll get back to you’. I’ve never had an email and that was about four years ago,’’ he said. ‘‘I looked at inter-country adoption. If you say that you’re gay, don’t even bother.’’

Mr Docker, who moved from Sydney to Melbourne six weeks ago to find more family-friendly accommodation for his toddlers , still has 11 embryos in storage in India and hopes to have more children.

‘‘As a single parent, it’s only finances that are preventing me from having more, but I wouldn’t change my circumstances for the world. I love being a dad.’’

Baby Gammy and the long arm of the Family Court

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David-John-FarnelThai authorities have ruled out taking legal action against the Australian biological parents of Gammy, the baby with Downs syndrome separated from his twin sister in Australia when allegedly abandoned in Thailand by his biological parents.

However, Australian authorities seem to be singing a different tune.

West Australian child protection services have been called in by police to investigate the “suitability” of the Australian biological father of baby Gammy following the public disclosure of sex offences against children.

Court documents have revealed that David John Farnell, the fifty-six-year-old Australian father at the centre of the international surrogacy controversy, has been convicted of more than 20 child sex offences.

It has now been revealed Mr Farnell has 22 child sex convictions, including unlawful and indecent dealing with girls when he was in his twenties. See 60 Minutes story.

Western Australia’s Department for Child Protection has launched an investigation into the safety of Gammy’s twin sister.

In a further development, WA’s Minister for Child Protection says she has asked her department to consider whether baby Gammy and his sister should be reunited.

Speaking to 720 ABC Perth, Minister Helen Morton said the department’s immediate concern was the safety of the baby girl living in Australia, but that she has asked staff to look at “whether there is a requirement for us to facilitate some bonding between Gammy and his sister.”

“We are interested in the fact that these two babies are twins,” she said.

“I’ve asked the department to give me an understanding of the impact of separation and needs for bonding for these two children, and what that may mean.”

Dr Alan Campbell is a research fellow in social work at Curtin University, and previously spent 10 years as a psychologist at the WA Family Court.

He said that while the case of Gammy and his sister is atypical, the trauma caused by splitting up siblings is well understood.

“There’s a lot of literature to suggest that twins and siblings, when they are separated from each other, experience a lot of ongoing trauma,” he said.

These concepts of separation anxiety are mostly heard within the context of family court proceedings, where one of the litigants, being either a parent or a child representative, argues for ongoing contact between siblings, despite the contact or residential outcome.

Some critics have argued that too much emphasis has been placed on contact between extremely young siblings, however these ideologies are so firmly entrenched within the psychological adjunct of family law, that it would be hard to resist these zealous demands lest it be claimed that it would further damage the children involved.

It seems the real battle for these children is soon to begin, and with all this publicity from around the globe, the Department for Child Protection will be under extreme pressure to not only act in the best interests of both children.

Let’s hope that unlike the Western Australian Family Court, it can achieve these goals without needing to immerse itself in some of the bizarre ideologies on child welfare that can ultimately forget that children are part of families as well.