Child Support and Custody
Family Court of WA Confirms that Gay Dads are on an Equal Legal Footing re Children if they separate
In a recent decision Gornik and Thorburn [2022] FCWA 77 the Family Court of Western Australia confirmed that after separation, both the biological and non-biological gay dad start on an equal legal footing when it comes to rights re caring for and spending time with the child. Sometimes, non-biological dads mistakenly feel that they have less legal rights. This case confirms once again that both gay dads start on an equal basis. The test is not who is the biological father but rather, whether one or both dads are “concerned with the care, welfare or development” of the child. That is not to say that equal care will be ordered. That’s a matter of determining what is in the best interests of the child- as in all children’s cases.
The push for fertility law overhaul so gay men can become parents
Did you know WA’s in-vitro fertilisation and surrogacy laws are the only ones in Australia that deny access to same-sex male couples? As reported in the West Australian on 19th of December 2021, more than 68 per cent of West Australians think that should change.
The study, based on a survey by Painted Dog Research, was commissioned by Kavanagh Family Lawyers, which assisted advocacy group GayDads WA in its submission to a 2018 review of the laws, leading to a standing committee concluding they were discriminatory.
Shared custody & the Coronavirus outbreak
Family lawyers are being asked how best to manage shared custody arrangements given that people are being encouraged to observe social distancing and isolation during the coronavirus outbreak. ABC news discusses this issue with family lawyers in their article here.
Making sure your international holiday is lawful when you’re separated
Planning a holiday for yourself and your kids can be fun and exciting – but it can also be illegal if you haven’t obtained the consent of your ex-partner.
Whether it’s a quick long weekend getaway to Bali or an entire summer in Europe, legally you cannot take your children out of the State without consent of the other parent. If there are proceedings in the Family Court, it would constitute an offence under the Family Law Act and you risk being stopped by immigration at the airport and denied permission to board flights, and in rare cases, imprisonment.
Obtaining Consent
Of course, family law disputes aren’t always simple. Your ex-partner might choose to unreasonably withhold consent, they might not be contactable, or there might be urgent circumstances that necessitate the travel. In these circumstances you can apply to the Court for permission to take your children overseas. Applying to the Court for permission to travel can take time. You should always consult a lawyer and plan ahead when making international travel plans whilst Family Court proceedings are on foot.
Please note that the above information does not constitute legal advice and every case turns on its own unique facts. If you would like to obtain legal advice about family law matters, please contact Kavanagh Lawyers on 08 6557 5888 or email reception@kavlaw.com.au.
Don’t damage your case online – social media and Family Court proceedings
Whether we like it or not, social media plays a major part in our daily lives. Facebook and Instagram can be useful tools for communicating with your ex or sharing photos of your children. However, if you have ongoing proceedings in the Family Court then you should always be aware that what you share online can make its way into the courtroom and this can have disastrous consequences.
When can my social media presence damage my own case?
Parenting Matters
It is an offence to identify parties to a family law case. Remember those drunken photos you posted to Instagram while you were out with your friends on Friday night? Or the angry status you posted on Facebook after you found out that your ex cheated on you? Or that story you posted on Snapchat where you ranted about the recent court hearing in your matter?
These posts might not be so bad in context, but once they’re annexed to an affidavit and presented to the court, they can be seen as a breach of the confidentially rules and evidence of your character and capacity to parent, no matter how #SorryNotSorry you are.
Financial Matters
Doing something as simple as updating your LinkedIn with your new job or posting a picture of your new #TreatYourself purchase can be hazardous if you post it before first disclosing it to your ex!
How do I use social media responsibly during a family law dispute?
- Respect the rules of confidentiality and don’t identify parties to a case.
- Think before you click – don’t use social media to blow off steam or comment on Court proceedings. Better yet, consider staying off social media until your matter is resolved.
- When in doubt, don’t – if you think there’s even the smallest chance that a post could be misinterpreted and land you in hot water with your ex or the Court, then don’t post it.
- Update your privacy settings – whether you’re an Instagram influencer or an infrequent Facebooker, it is always best to try and minimise your presence during Family Court proceedings.
Please note that the above information does not constitute legal advice and every case turns on its own unique facts. If you would like to obtain legal advice about family law matters, please contact Kavanagh Lawyers on 08 6557 5888 or email reception@kavlaw.com.au.
Can I get child support?
There are two main ways to get child support:
- You can enter into a binding child support agreement with your former partner; or
- You can get a child support assessment from the Department of Human Services.
Binding Child Support Agreements
Much like Binding Financial Agreements, Binding Child Support Agreements (BCSA) are private agreements between you and your former partner.
While the payment can be any amount, a written agreement needs to be drawn up. Both parties need to get independent legal advice about the proposed agreement. The BCSA must also be registered with the Department of Human Services. In order to be legally binding, it must also be filed at the Family Court.
Child Support Assessments
You can apply for a child support assessment online. The Department of Human Services will decide how much child support you should receive. Their assessment depends on a number of factors, including your combined income and the extent to which you have care of your child.
If you would like more information about your options, please contact Kavanagh Lawyers on 6557 5888 or email reception@kavlaw.com.au to arrange an initial appointment.
High Court of Australia rules in favour of biological Father
On 19 June 2019, in the decision in Masson v Parsons [2019] HCA 21 the High Court of Australia upheld a decision of the Judge at first instance that a man who was actively involved in a child’s life and who was also her biological father was her “parent”.
- The case involved much constitutional law but ultimately the HCA concluded that the issue of who is a “parent” can be determined within the meaning of the Family Law Act.
- NSW state law and the Family Law Act did not mean that the biological father was irrefutably not a parent.
- Who is a parent is a question of fact and degree to be determined according to the normal contemporary understanding of the word and the relevant facts and circumstances at hand.
- Biology is but one fact, sometimes a very important fact – but it is not the only fact.
- In submissions from counsel for the father, it was asserted, and the HCA did not disagree, that a ‘parent’ signifies “a social relationship to another person” and includes factors like commitment to the child, biology, and conduct before and after birth.
- The decision opens up the real possibility of applications to the Family Court for declarations/orders from many parents previously thought to not be parents to their children are in law their parents.
- It’s possible that the federal or state parliament could change the definition of parents and presumptions could apply and such parents would not be required to bring applications to the Court.
- Alternatively, the state and federal governments may decide to leave the issue of parentage to the discretion of the Family Court which will necessitate case by case applications to the Court.
- Masson was argued in the context of NSW and Federal Law in circumstances where federal law determined de facto relationships and parental declarations. The situation in WA is different in that there is a state act- The Family Court Act. This may not be a significant matter- time will tell.
The High Court rules in favour of sperm donor in landmark case
In a landmark case regarding parenting rights, the judgment in Masson v. Parsons & Ors (S6/2019) was handed down on 19 June 2019 ruling in favour of the biological father who had donated his sperm. The High Court decision was made following the mother’s decision to move to New Zealand with their biological child.
ABC news reports that the decision overturns an appeal the girl’s mother and her wife won and reaffirms an earlier ruling ordering they remain in Australia as well as consult him on major parenting decisions.
High Court to decide whether ‘biological father’ is a “legal parent”.
The High Court of Australia will hear the matter of Parsons and Anor & Masson mid-2019. Interest in the case has focused on whether a biological father (sometimes referred to as a ‘sperm donor’) is a “legal parent”. Hopes that the High Court may decide in favour of the biological father (and by extension many other biological fathers) may be misplaced. The issue before the High Court is framed within the context of the Family Law act 1975 which many legal experts suggest would not permit a such a conclusion. However, anything is possible from the High Court, but most commentators are cautious. However, it is open to the High Court to suggest that legislative change is required. Then it is a matter for parliament to decide.
Allegations of child abuse
The decision of the Chief Justice Thackray of the Family court of WA in Western Australian Newspapers and Cuzens [2016] FCWA 6 provides a useful and succinct summary of the difficulties faced by parents, counsellors, lawyers and the Court when allegations of child abuse or risk of child abuse are made.
View the decision here: Cuzens and WA Newspapers 2016 FCWA 6