Child Custody
Shared care dead as mother stands firm on no access
A QUEENSLAND father has been banned from having any contact with his five-year-old daughter until she reaches 18 after the Family Court accepted that the child’s mother would “destroy” the relationship rather than agree to shared care.
In a decision that suggests the “shared care” law introduced by the Howard government was effectively dead, a full bench of the Family Court said “the mother would ignore any order for contact” and, as a result, it was pointless to order her to co-operate.
Shared care of children after divorce was a policy goal of the previous government, but the law is now being rolled back, with key changes to the Family Law Act (1975) passing through the Senate this week.
Under the old law, mothers were sent to prison or lost custody of children when they refused to allow them to have contact with their father. While this is still possible, the full bench of the court has now said that in some cases there is nothing it can do.
The full bench ruled on the matter after a father, known as Mr Summerby, appealed against a 90-page judgment by a Brisbane federal magistrate, Keith Wilson, which effectively ended his relationship with his daughter.
Mr Wilson agreed that the loss of the girl’s relationship with her father “would be distressful in the short term and may also be emotionally damaging to her in the long term”.
Lesbian Mother to remove Father from child’s birth certificate
By Order of the District Court of New South Wales, we have been required to anonymise the names and identities of the persons involved in this case.
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A man was so excited about the impending birth of his child 10 years ago he discussed building a home in the Blue Mountains for himself and the lesbian couple who had used his donated sperm to conceive.
The man, who can only be known by court order as BB, said they agreed he should be involved in his daughter’s life but exactly how was never decided.
After answering the couple’s advertisment in a magazine, BB said he provided sperm to the birth mother, paid $5000 for her fertility treatments at an Eastern suburbs clinic and paid for the midwife who managed the home birth of their daughter in 2001.
Ten years on, after a tumultuous relationship among the three parents, the woman’s ex-partner, AA, is taking the NSW Registry of Births, Deaths and Marriages and BB to court to have his name removed from the girl’s birth certificate.
It is the first case of its kind since the introduction of a retrospective law in 2008 giving lesbian couples equal parenting responsibilities or legal status.
Of 94,354 birth registrations last year, 117 were for children born to same-sex parents.
BB said he had gone through “10 years of hell” and spent $50,000 on legal fees.
He has seen the girl for five hours a fortnight since she was one. He paid $150 a week support for her first year, though he was not obliged to, and paid one-third of her school fees for two years.
Last year he had allowed the birth mother, listed on the birth certificate as a funeral celebrant, to stay at his home for three months when she was unable to pay rent at her own home, he said.
The girl is the major beneficiary in his will and she calls his mother “Nan.”
He is devastated that he may be taken off the birth certificate.
“It’s a very depressing situation … the birth certificate is more than a bit of paper; it tells people who you are,” he said.
“No one seems to care about fathers these days.”
He said the three had been “all wrapped up in the moment of having the child” and were on good terms until the birth.
“I was going to build this great big house and live together … Everything was fine until the baby was born … they used me and they took my money and now they’ve got what they want, they really just didn’t want to know me.”
Both women have declined to comment.
A sperm donor does not have legal parenting responsibilities – and thus cannot make decisions about the child’s education or medical needs – even if a court grants visitation rights and he is on the birth certificate.
It is not possible under NSW law to have three parents with legal responsibilities. Had BB had sexual intercourse with the woman or married her, he would have gained that legal status.
Partners of lesbian mothers gained that right automatically with the introduction of the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008.
A family law expert, Paul Boers, said there was still confusion among gay and lesbian parents.
“I get lesbian couples concerned about whether the sperm donor might come back and seek parenting orders [to spend time with the child]. I tell them that he’s got to get over the hurdle of convincing a court that he’s concerned with the care, welfare and development of the child and he’s got an established relationship with the child.”
The case is set down for hearing on August 2.
investigations@smh.com.au
Perverted Child Custody & Child Support laws reach NEW LOW
UK: A couple who lost custody of their baby daughter to her surrogate mother have been ordered to hand over more than $1000 a month maintenance for the child.
Today they spoke of their disgust that they would be forced to pay for someone else to raise the child they will never see.
The father, a leading chef, said the decision by the Child Support Agency ‘added insult to injury’ and that he would appeal against it.
He and his wife, who had suffered six late-stage miscarriages including four sets of twins, used a surrogacy website to find a single mother of two on benefits who was willing to carry the baby they longed for.
They made an informal agreement to pay her $20,000 in expenses.
But halfway through the pregnancy she decided she wanted to keep the baby and a judge ordered that the woman, who was also the biological mother, could keep the child despite her earlier promise.
The couple, referred to as Mr and Mrs W to protect the child’s identity, later relinquished their contact rights because they said it would be too difficult emotionally and that it was unfair for the baby to be split between two homes.
They allowed the surrogate, known as Miss N, to keep the $9000 they had already given to her.
But now Mr W must also pay over $1000 in child support every month as the biological father of the eight-month-old girl.
‘She cannot say, “I am keeping your child and now you must pay for itâ€Â,’ he said.
‘She has taken away our baby and now she is taking our money. To me, that is completely wrong. The CSA has made the decision as if we were a couple who had broken up, but our situation is unique.
‘We were not having a baby together, we had agreed for her to carry a child for myself and my wife.
‘I have written to Downing Street and my MP to call for a change in the law.’
Mr W said he now suspected it may have been Miss N’s plan all along to have a child with a wealthy man from whom she could claim child support over the next 18 years.
‘We should have seen the signs when she started asking for more than we had agreed. I don’t think this was ever about her suddenly wanting to keep the baby, I think this was about getting an income.’
The chef said he would feel more comfortable paying for vouchers which could be redeemed on food and clothing than money which would not necessarily go towards the child.
‘If I need to pay $1000 a month because otherwise the child will be living in poverty then that is another reason why the baby should be with us. We would have given her all the things she needed.’
Mrs W, who is in her late 30s, had cancer of the womb in her 20s and complications from surgery meant it was difficult for her to carry a baby to full term.
After she and her husband contacted her via a website, Miss N agreed to be inseminated with Mr W’s sperm, meaning they were both the baby’s biological parents.
But the relationship between the two parties turned sour after Miss N apparently began asking for more money.
Three months before the baby was due, she sent a text message to the couple to say she was keeping the child.
In July last year she gave birth to baby T and a bitter six-month custody battle ensued.
Miss N accused Mr W of being violent towards his wife, which the couple denied. They accused Miss N of neglecting her sons and of living in a filthy home.
In January, in a rare case, Miss N was awarded custody after a judge deemed it was in the child’s best interests because there was a ‘clear attachment’ between the mother and daughter.
At the time, Mr Justice Baker warned that the risks of entering into a surrogacy agreement were ‘very considerable’.
Surrogacy agreements are not legally binding in court, even with a formal written contract.
It is illegal to profit from surrogacy but ‘reasonable expenses’ are permitted.
