Frequently Asked Questions
General FAQ’s
Does my case have to go to court?
No. Many disputes are resolved through negotiation, often through the process of alternate dispute resolution. Those cases don’t need to go to court although it is important that any agreement reached is properly formalised. Even of the cases that start in court, the vast majority are resolved through negotiations. Statistics show that of all the cases started in court, only about 5% will proceed all of the way to a final hearing before a judge.
What are the options for settling out of court?
Please see our attached brochure on settling out of court which explains the various alternatives.
Do I need a lawyer?
No. However having legal advice is likely to be of great assistance to you so that you understand your rights, entitlements and responsibilities. It is also likely to assist you greatly in negotiating with your former partner in trying to resolve the matter by agreement or in assisting you with the court process. It is important to engage a lawyer to assist you to formalise any agreement reached and advise you the best way to protect your interests.
How long will it take?
This is very hard to say as it depends upon a number of variables and varies from case to case. It also depends on how quickly or slowly you want to proceed and the attitude of your former partner and their willingness to co-operate and negotiate. In general, matters which go through the court process will take much longer to resolve than matters resolved through negotiation.
When should I get legal advice?
As soon as possible. It is often useful to obtain legal advice if you are contemplating separating so that you can prepare. Other people wait to obtain legal advice until after they have separated. Either way, it is very likely to be of the most assistance if you obtain advice at an early stage. Delaying obtaining advice can put you at a significant disadvantage. For example, your former partner may dispose of assets which could reduce your property settlement entitlement.
How can I resolve my matter quickly?
The quickest and most inexpensive way for any family law dispute to be resolved is by agreement. Preservation of your relationship with your former partner is more likely when an amicable agreement can be reached and this will most likely benefit your children.
We can assist you in reaching an early agreement by providing you with accurate advice, ensuring your matter is well prepared and advising and guiding you as to the most appropriate and cost effective way to resolve your dispute. This will sometimes involve third parties such as mediators and arbitrators.
What happens at the first consultation?
The first consultation is important. It enables us to gather a great deal of information from you, consider your matter and give you our initial advice about your rights, entitlements and responsibilities. It enables us to explain your options to you, the likely cost, the process and what assistance we are able to provide to you in the future. We charge for the first consultation at a reduced rate. Whilst we prefer clients to come to our office so we can meet them, if that is a problem we can arrange for a consultation by Skype or phone.
What if my former partner refuses to negotiate or refuses to be reasonable?
Our aim is to try to ensure your matter is resolved as amicably and quickly as possible but at the same time try to achieve the best result we can for you. But you cannot force your former partner to negotiate or to be reasonable. However, we can assist to create the conditions to assist in reaching an agreement. It is usually preferable to be respectful and courteous in dealings with your former partner and their lawyer because this will create the best opportunity for an agreement to be reached. However in doing this, we will stand up for your rights and those of your children and not put up with unreasonable demands, abuse or unacceptable behaviour.
If your matter cannot be resolved through negotiation, then the best option may be for you to make an application to court. By making an application to court, it will often cause your former partner to enter into reasonable negotiations which often leads to a resolution of the dispute.
What happens at mediation?
In many cases mediation will help to resolve a dispute with the help of an independent mediator who is often an experienced lawyer, psychologist or social worker. In parenting matters the mediator is known as a Family Dispute Resolution Practitioner.
The mediator’s role is to facilitate negotiations between the parties with the aim of assisting parties to reach an agreement. Mediation is a voluntary process and you cannot be forced to reach an agreement against your will.
In most cases, mediation is compulsory before making an application to court for a parenting order. In property matters, in most cases the judge will refer the matter to mediation after the court proceedings have commenced if a mediation has not already occurred.
Of the matters that go to mediation about 85% to 90% are resolved by agreement either at the mediation or shortly afterwards. It is desirable to have a lawyer to represent you at a property mediation and also sometimes at a parenting mediation.
Property Matters FAQ’s
How do we advise about a property settlement claim?
We advise about your property settlement entitlement based upon the five step process the court would use. That five step process is set out in the attached brochure. Each relationship in every family is different and the court has a wide discretion in making property settlement orders and outcomes can vary considerably from case to case.
Does the Family Law Act apply to de facto and same-sex couples?
Yes. Since 2009 the Act applies to such couples. What is a de facto relationship is defined in the Act as being a relationship between two people (whether the same sex or opposite sex) who are unmarried and unrelated but have been living together on a “genuine domestic basis”. The court looks at a number of criteria to determine whether a couple has been living together on a genuine domestic basis.
However, to have an entitlement to some of the property of the other party, it is necessary to establish that they:
- have been living together for a period of at least 2 years; or
- have a child together; or
- have made substantial contributions to the acquisition, conservation or improvement of any of the property of the parties; or
- the failure to make an order would result in a serious injustice.
Is superannuation included in the pool?
Yes. Since 2002 superannuation has been treated as property and can be distributed between the parties like other assets. The court has the power to make orders to distribute superannuation interests. Sometimes superannuation will be distributed in different proportions to other assets.
What is spouse maintenance?
Spouse maintenance is money required to be paid by one spouse to the other in circumstances where the receiving spouse is unable to support themselves adequately following separation. In determining spouse maintenance, the court must take into account a range of criteria including whether one party has a need for the other to financially support them and the capacity of the other spouse to provide financial support for them.
Will assets I acquire or income I earn after separation be included in the pool?
In most cases yes. The court will generally consider the property of the parties at the time of agreement or the date of the trial. This means for example money received from a post appropriate and cost effective way to resolve your dispute. This will sometimes involve third parties such as mediators and arbitrators.
However, in determining what is the appropriate division of property the court will consider what assets have been contributed post separation and any change of values since the separation.
Parenting Matters FAQ’s
How does the court decide parenting matters?
The court decides parenting matters based upon what is in the best interests of the children. The Family Law Act set out a list of factors required to be taken into account in determining the best interests of children. Those factors are set out in the attached brochure.
If we can’t agree on parenting arrangements is it automatically 50/50 or equal time?
The court must consider making an order for equal time if it has made an order for equal shared parental responsibility (which it does in most cases). However, this does not mean that there is automatically equal time and in many cases the court will decide that children should spend more time with one parent than the other. Just how much time depends upon a number of factors and each case is different. You should obtain legal advice before entering into negotiations for arrangements for the children.
What if I want to relocate (move to another city or town) with my children?
It is essential that you obtain legal advice before doing so. If you relocate without the knowledge and consent of the other parent, they can make an application to court and most likely the court will make an order for you to return with the children. It is likely that the case will be determined at the nearest registry to where you are currently living. The case will then be decided based upon the best interests of the children and at that stage you may be able to relocate with the children.
What if my former partner is harming my children?
You should seek legal advice immediately. Depending upon the evidence, the circumstances and the degree of harm, you may be justified in some circumstances in preventing your former partner from seeing or spending time with the children. If there is a court order in place, you may only breach the other if you have a reasonable excuse for doing so (such as to protect the health or safety of you or the children). It is important that you get legal advice because if you breach a court order without justification penalties may apply.
What is a parenting plan?
A Parenting plan is an informal document signed by both parents agreeing on arrangements for the children. Whilst a Parenting plan is not legally binding, a court is required to have regard to the terms of the Parenting plan if doing so would be in the best interests of the children. Therefore it is important to obtain legal advice before entering into a Parenting plan even though it is an informal agreement.
Fertility Law FAQ’s
Do I need a lawyer when I want to have a child through surrogacy?
The simple answer is yes. If you are undertaking surrogacy in Australia, State law requires each side to have independent legal advice from an Australian legal practitioner (but in South Australia, the advice needs to be from a barrister or solicitor admitted to the Supreme Court of South Australia. Our Partner Stephen Page is admitted as a barrister and solicitor of the Supreme Court of South Australia).
Surrogacy is the most complex way of becoming a parent. International surrogacy is the most complex form of surrogacy. With an international surrogacy journey, it is wise to have legal representation at both ends. If you or your child is entitled to multiple citizenships, then further international representation might be desirable. We can refer you to surrogacy lawyers in most places around the world, to help you on your journey to become parents.
Do we need a lawyer when we have a known sperm donor?
When there is a sperm donation by a known sperm donor to a single woman or a couple, there can be uncertainty about his role- and if not handled carefully, there can be a terrible court case.
It is wise to plan these arrangements very carefully. Having expert legal advice at the beginning sets out both the risk of something going wrong and ways of minimising that risk.
When buying a house, it is not compulsory to check whether the house might have a termite infestation. However, a wise purchaser will have an expert check over the home and get a clearance first before proceeding with the sale. Obtaining advice about a proposed sperm donor arrangement is not expensive and pales into insignificance with potential legal costs in the Family Law Courts if something goes wrong.
Can I use my late husband’s sperm to become pregnant or via surrogacy?
The posthumous use of gametes (i.e. sperm and eggs) or embryos is very tricky. Each State has different rules. You may be able to use the sperm. It depends. You are best checking with us first. We have handled a number of cases when our clients were told elsewhere that they couldn’t use the sperm- but with our assistance and medical help then went on to become mothers.
Do you know anything about the law where I live?
Yes we do! We are experts on fertility law across Australia. We have advised clients in every Australian State and Territory – in every capital city and in many regional and rural areas, from the wheat belt of Western Australia, to Launceston, rural Victoria, to the far south coast of New South Wales, from rural South Australia to Byron Bay and Cairns.
Many years ago, Queensland was the only State that criminalised all forms of surrogacy. In those days, our partner Stephen Page was asked by clients:
“If we can’t do surrogacy here, where can we do it?”
This meant that he had to become expert about surrogacy laws Australia wide.
From the beginning, we have become expert at fertility laws Australia wide. We have also advised clients from 30 countries overseas from as far afield as the US, Malaysia, Hong Kong, Solomon Islands and Brazil.
We have also acted for IVF clinics and sperm and egg banks.
Is surrogacy legal in Australia?
Yes, it is. In Australia it’s legal to do non-commercial surrogacy, called altruistic surrogacy. Each State and the ACT have laws regulating surrogacy.
The Northern Territory has no laws about surrogacy. In practice for a number of reasons, this means that NT residents typically go overseas or interstate.
Isn’t it illegal to go overseas for surrogacy?
No, it’s not. It is illegal in Queensland, New South Wales and the ACT to go overseas for commercial surrogacy. It is open to interpretation whether it is illegal in South Australia to go overseas for commercial surrogacy. In some circumstances in Western Australia it is illegal to go overseas for commercial surrogacy.
It’s legal for those residing in Victoria, Tasmania and the Northern Territory to go overseas for commercial surrogacy.
What is commercial surrogacy?
There is no consistent definition. What is commercial surrogacy varies State by State. For example, an agreement that would be considered in Queensland to be altruistic (and legal) surrogacy may well be commercial (and illegal) surrogacy in Victoria.
Have you done surrogacy for people where I come from?
If you live in Australia, yes. We have advised clients about both domestic and international surrogacy wherever they might live in Australia. We have also advised clients who have lived in 30 countries overseas. We liaise and work closely with overseas lawyers so as to make that advice as seamless as possible.
Do I need a surrogate from around here?
Maybe. If you live in Tasmania or the ACT, your surrogate must come from that place. Elsewhere, the surrogate is not restricted to your home State. However, there may be practical and legal restrictions about where your surrogate comes from that should be carefully considered at the commencement of your journey. The sooner we can give advice, the better.
We are at the very start of our journey to become parents. What happens next?
It depends on whether you are going through egg/sperm/embryo donation or surrogacy or even both. The journey of every intended parent is unique. In our first meeting with you, we will identify what you want to achieve and then set out viable options to enable you to get there. Our aim is to make your journey to parenthood as quick and as stress-free as possible.
We don’t live in Brisbane. How can we have a meeting with you?
Only a relatively small number of our clients live in Brisbane. Most of our clients live interstate or overseas. Typically we would use an app like Zoom or Skype for the first meeting or, if you prefer, the phone.
Do I have to do IVF here for surrogacy?
If you are on a domestic surrogacy journey, the answer is maybe, depending on the local law in your State. In Queensland, New South Wales and Tasmania, IVF doesn’t have to happen locally – but there might be great reasons, including convenience and cost, for doing it locally.
In the ACT, Victoria, South Australia and Western Australia some or all of the IVF needs to be done locally.
None of the IVF can occur in the Northern Territory, so Territory residents need to go somewhere else.
Australia is one country. Surely the same rules apply across the country?
No, they don’t. Assisted reproductive treatment, egg/sperm and embryo donation and surrogacy are primarily regulated at a State and Territory level. These laws are broadly similar but as often happens with the law, the devil is in the detail. You are best checking with us before proceeding.
If we are overseas, can we commit an offence to do with surrogacy and egg donation in Australia?
Yes, you may commit an offence to do with egg/sperm or embryo donation in Queensland, New South Wales, ACT, South Australia, Western Australia and the Northern Territory – if you are temporarily overseas.
You may commit a surrogacy offence in Queensland, New South Wales, the ACT and Western Australia if you are temporarily overseas.
If you are living overseas but not domiciled there, you may commit an offence to do with surrogacy under New South Wales law if you are domiciled in New South Wales.
Is it lawful to advertise for an egg donor?
It varies. In Victoria, for example, it is illegal to advertise for an egg donor without approval of VARTA. In New South Wales, for example, it is legal to advertise for an egg donor.
Is it legal to advertise for a surrogate?
Generally it is illegal to advertise for a surrogate, but it may be legal to find a surrogate on a Facebook forum. It varies with local law.
It is legal in the Northern Territory to advertise for a surrogate – but IVF and transfer of parentage are not available.
My mother/friend/aunt/sister-in-law has offered to have a baby for us. Can she?
Yes – provided that she is medically and psychologically suitable, in Victoria that there are no criminal history or child protection history concerns and it is an altruistic surrogacy.
What is surrogacy?
This is when a woman has a baby for someone else, hands over the baby and in the process transfers parentage (either from the woman herself or the woman and her partner) to the intended parent or parents. Surrogacy is a legal process. Assisted reproductive treatment (such as IVF) is a medical process.
What is traditional surrogacy?
The woman is not only a surrogate for someone else but also the genetic mother.
What is gestational surrogacy?
The woman who is the surrogate has no genetic link with the child. She is pregnant and therefore gestates a baby who is genetically someone else’s.
Is traditional surrogacy legal?
Yes – except in Victoria through an IVF clinic. Traditional surrogacy at home in Victoria is legal. Whether it is wise is another matter.
IVF clinics may decline to treat because of concerns that the surrogate may not give up the baby. We help clients identify surrogacy options that are right for them, appropriate clinics and identify and deal with risk factors with traditional surrogacy – to minimise risk.
What is the point of having a sperm donor agreement?
Prevention is better than cure. Minimising risk. A sperm donor agreement won’t eliminate risk but will reduce the level of risk in something going wrong. There have been catastrophic cases before the Family Law Courts where arrangements have gone terribly wrong.
When we bring our child back home to Australia, surely we are the parents?
Unfortunately, there is no consistent Federal and State rule about who is a parent. You may be a parent for some purposes, such as citizenship but not for other purposes, such as family law and inheritance. Every case is different, in part depending on where you live and the formal nature of the surrogacy journey that you have completed.
Does the law apply to me when I live in Australia but I am not an Australian citizen?
Yes it does.
I am single. Is surrogacy available to me?
Currently it is not available to you in the ACT, South Australia or if you are male, in Western Australia. There are proposals to change the law to remove this discrimination in South Australia and Western Australia, but they have not yet been enacted.
Surrogacy is not available in effect in the NT for people living there- due to a lack of laws. Other surrogacy options may be available.
We are in a same-sex relationship. Can we do surrogacy?
Yes – except if you are a male couple living in Western Australia. Currently there is a bill before the Western Australian Parliament to remove this discrimination, but it has not yet been enacted.
Surrogacy is not available in effect in the NT for people living there- due to a lack of laws. Other surrogacy options may be available.
Where can I go for overseas surrogacy?
Many intended parents go overseas due to a lack of surrogates in Australia or because they are going back to their homeland. Going overseas is complicated and needs to be planned carefully.The sooner we give advice, the better. There are a number of factors to be taken into account:
- Legal settings overseas – to make sure that you are recognised as the parents, and that the human rights of the surrogate and baby are protected.
- Quality and reliability of IVF.
- Exchange rates and cost of the surrogacy journey.
- Health care costs overseas.
- The ease or difficulty in having your child come back to Australia.
- Whether your journey overseas is lawful in that country.
- Whether the surrogacy journey is commercial surrogacy and therefore may be a criminal offence at home.
I live in Sydney but I am not an Australian citizen. Can I do surrogacy overseas?
The same rules apply to you as anyone else. You should have no difficulty ultimately in having your child live in Australia with you. We will refer you to a migration agent to assist so that you can receive the right advice about the appropriate visa for your child.
How old do I have to be to become a parent through surrogacy?
The rules in each State vary, but commonly 25 is the youngest age. In some States this can be lowered if there is demonstrated maturity.
How old does the surrogate have to be?
The rules in each State vary, but commonly 25 is the youngest age. In some States this can be lowered if there is demonstrated maturity.
How old is too old to become a parent through surrogacy?
Clinics are bound by the Age Discrimination Act 2004 (Cth), but also there may be rules requiring them to take into account the best interests of a child. We have had clients who have been refused treatment in Australian clinics when they are aged in their mid-50s. Overseas clinics may or may not treat.
What is the oldest the surrogate can be?
This depends on medical science. Just because a woman is in her 20’s may not make her suitable medically to be a surrogate. Older women who are pregnant have greater rates of things going wrong during the pregnancy, including their death and the death of the child. Our team has had a number of cases where mothers have been surrogates for their daughters. The older surrogates we have seen have been aged in their early 50s.
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