Recently I was doing the introductory small talk thing with a new school mum when she asked: And what does your partner do? She’s a lawyer, I replied.
Oh I hate lawyers, she said. Actually she didn’t say it; she spat it, with venom.
I was tempted to say: And what does your partner do? Because I hate accountants/plumbers/estate agents, but I didn’t. Sarah is used to it now, but it still narks.
Coincidently, I’d just been talking to a lawyer for this blog. Earlier this year I approached Sally Nicholes, of Nicholes Family Lawyers, about sponsoring the Rainbow Families Council stall at Midsumma. We ended up having a long chat about the work she does with the GLBTIQ community: co-parenting, single women and donors, gender diverse and intersex kids, surrogacy, and same-sex family breakdown. I thought it would be good to get some of this information out into the community. Plus, it’s about time lawyers got some good press.
I’m often asked if I ‘know any good lawyers’ which I translate to mean: Can I recommend someone who is a) supportive of the GLBTIQ community, and b) actually knows something about how the law relates to our families and relationships. Sally Nicholes ticks both boxes.
Jacqui: The message you wanted to convey at Midsumma was: ‘How to avoid using our services’ which I thought was great. With that in mind, let’s start with co-parenting. I think this is an area where some advice and clarity could be really helpful.
Sally: Yes, absolutely. At the very start – when an approach is made by a couple or a single woman to a potential donor – I think all parties need to sit down with an appropriate counsellor and have some detailed discussions about what everybody wants for this potential little person. I’d really like to see any donor/dad thrash out the issues with himself first and then with the mums concerned.
For example: Is the donor going to be called Dad? What is his role going to be? What does everyone feel about the child’s right to know their extended family and their biological heritage? What role is the extended family of the donor going to have? What are everyone’s expectations about how much time the donor will spend with the child? Will the donor be coming to all the birthday parties and special occasions? If the donor has a partner and that partnership breaks down, or a new partner comes on the scene, how is that going to impact on the family?
And then there are questions about money, education, values, religion; it’s a long list and I think a degree of robustness in these early conversations is really, really important so nobody ends up coming to see us later. And everyone needs to agree that if there is a disagreement they will go back to the counsellor rather than rushing off to lawyers, because that is just not in the family’s best interests.
I think if it’s a home insemination – not through a clinic – there might be some additional medical and practical considerations. I might urge people to go through a clinic to make sure all those important safety issues are dealt with and I do get a bit fearful for our lesbian clients who access a donor through the internet.
Things can change and I think a really good counsellor can work with all the parties to make sure they have a framework for resolving disputes. I think that if all that homework is done, and channels of communication are clear, that’s a real help. It’s exciting and it’s wonderful and people can get overwhelmed, so to have that sort of counselling beforehand would be ideal.
I think many people don’t actually imagine what things will be like down the track. I know that often parents don’t bond, or feel that amazing attachment to a child, until the child is physically there. You don’t necessarily appreciate the wave of emotion you experience when you first see that little person.
Jacqui: The legal status of the donor is a concern for lots of people and it seems to change. Where are we with that right now?
Sally: We recently dealt with a case where the ruling basically said that, if a woman is single and not in a relationship at the time of conception, then a donor is effectively a dad with all the presumptions that dads have and that is a change. The Victorian legislation is currently inconsistent with this Commonwealth decision. So the Victorian legislation will say that if a child is conceived by artificial means the donor has no parental rights, but if the woman is single at the time of conception then the donor will have the rights of the father and obligations such as child support.
I think people are also unaware that the law can give a donor a right to seek orders in respect of a child as a person concerned about the care, welfare and development of that child, though there are certain hoops he would have to go through to meet that threshold. In that situation a lot will hang on the extent to which the donor has had involvement with the child and bonded with the child.
They wouldn’t necessarily be regarded as a father, but as a person who has some rights in relation to the child and that’s all a little grey too. I think that’s a bit unsatisfactory for everybody as it can rely on quite insidious arguments and it can actually destroy the relationship between the donor and the mums even further, for example, if everyone is trying to jockey for position and saying: You aren’t really bonded with that child and the donor is saying: Yes I am.
That’s why I am very keen to recommend to anyone who comes before us that they draw up an agreement which isn’t legally binding, but a court will take notice of the terms of the agreement as a really good guide and contemporaneous record of what everyone was thinking at the time and what everyone wants to achieve. At least it is there as a framework and can be revisited, rather than racing off to court if there is a breakdown. Communication is the key here.
Jacqui: I know you’ve done some work with gender diverse kids. Can you tell me about that?
Sally: I’ve worked with kids ranging from 12 years old to about 17 and obviously they are minors for the purpose of dealing with issues about their treatment for Gender Identity Disorder. They are all very special kids; they are so genuine and it’s really rewarding to work with them. They know a lot about their identity and I think it is just so important for them to be recognised as themselves, and especially to be able to present at school as the gender they want to affirm.
I think puberty hits them really hard; that’s where we get the depression and the crisis. They want to stop the onset of their biological puberty, because how they are presenting physically isn’t who they feel they are and that’s really difficult.
Jacqui: Why do they need your help?
Sally: The first stage medical treatment is normally something like a puberty suppressant, so in girls identifying as boys it’s often the contraceptive pill. Until very recently you had to get court authorisation for even the administration of the pill, because it was seen as the first stage towards an irreversible treatment.
Stage two treatment is the administration of either testosterone or oestrogen which has irreversible consequences affecting fertility and that’s currently characterised as a special medical procedure which requires a court authorisation and that’s why they have to see me. What that means is parents cannot consent to a treatment that will have such long term devastating consequences; it’s beyond what a parent can consent to.
The process needs to be reviewed because the cost to parents – if they were paying for this intervention – would be around $30,000 and the State is actually compelling them to do it. I think it’s a really important human rights issue and that’s why we do it either pro bono, or at severely reduced rates. I would love to see some sort of change where the issue could be dealt with by another authority so the kids could get prompt treatment and it would be less traumatic for them.
Jacqui: Are those kids coming along with the support of their parents?
Sally: Often they’re not. The saddest cases for me are the ones that are contested; where one parent doesn’t actually agree with the treatment. And they are tragic because the treatment is not recommended without a group of very thoughtful expert medical practitioners from various fields supporting it, and with the child’s strong wishes. So if one parent objects it just adds to the trauma for the child. It’s really, really sad because then we do have to contest the matter and the child is very aware of that.
Jacqui: And you’ve also worked with intersex kids?
Sally: Yes. The issues are very similar to the special medical procedure cases I was talking about in relation to the gender diverse kids. The intersex kids can be born with ambiguous genitalia and often that can be a very traumatic time for parents.
Depending on the medical cause, treatment may not require court intervention because therapeutically it is required; for example, it might be a medical emergency that requires immediate surgery. But in other cases a decision may need to be made early because, in medical opinion, surgery later on in life will be very invasive and very traumatic for a child.
But ethically there is a big decision here because some intersex people say: I wish I had been given the choice, or I wish I’d remained ambiguous, or I wish I’d had the opportunity to make the decision when I was competent to do so. And that’s set against a scene where the medical practitioners believe that medically a decision should be made and that’s when court intervention comes into it.
Jacqui: What is the legal situation with surrogacy right now?
Sally: The inconsistency between the states is of real concern. In Victoria it’s not illegal as yet to undertake international commercial surrogacy, but it is in a number of states and we have already had one matter referred for prosecution in Queensland. The couple actually breached the state laws by engaging in commercial surrogacy overseas. And if you end up in the Family Court seeking parental orders, for example, there is a chance that a court could refer you off if it happens to be illegal in your state.
Some of the concerns that have been raised are human rights issues in relation to the conditions of the surrogates in some countries where they have been treated quite poorly and that is something that needs to be taken into consideration with those sorts of issues.
We have had some success stories around surrogacy, but I do feel for people because we have both heterosexual and gay couples coming to see us who are devastated by difficulties with IVF or just infertility generally and it’s a really emotional, really difficult issue.
Jacqui: You’ve also worked with same-sex families going through a break up?
Sally: Yes and that might be dealing with property, or arrangements for children, or where the status of a donor may have changed in the eyes of a parenting couple. In those circumstances we are always governed by what is best for the child, but we are hampered a bit by the law not always giving us an appropriate framework to really deal adequately in the child’s best interests. One big, fundamental problem is the lack of marriage equality and the fact that current legislation hasn’t come to grips with the changing dynamics of what is considered a family.
Jacqui: It was great sharing the day with you at Midsumma this year and I think we made a good team!
Sally: We were really happy to support the Rainbow Families Council as we work with so many clients in this area and the RFC is such a positive and wonderful resource. Our big message on the day was how to avoid seeing us in the future, how to avoid ending up in court and I think we share that ethos. If people can avoid the absolute emotional and financial cost of litigation then we are doing a good job, so it was a real delight to be there.
Jacqui: Thanks Sally. It’s great to have you on side.
Sally: I’m a family lawyer and to me family law is riddled with human rights issues and I’ve always been very interested in that area of the law. I think the fact that the law is lagging behind when it comes to looking after same sex families is a huge human rights issue so I’m happy to be on side.