Interesting Family Law Cases of 2016

Judge in court room

As 2016 draws to an end, I thought some of you LinkedIn folk might be interested to read a short summary of some of the more interesting cases that have come before the Courts throughout the year. The cases that the Family and Federal Circuit Courts are asked to deal with are many and varied, these few are but just a sample.

1.        Elford & Elford (29 March 2016)

This case involved a lottery win twelve months after the commencement of cohabitation of the parties. The lottery win was approximately $622,000.00 which the husband won and which became and remained a term deposit in his name. There was approximately $1,400,000.00 in net assets and superannuation to be divided including the lotto winnings and two encumbered houses. The Trial Judge ordered that the wife was entitled to only ten percent (10%) of the net asset pool and that decision was upheld on appeal. 

Whilst on the face of it this judgment appears grossly unfair to the wife, additional facts of the case included that:

a)        the husband suffered a stroke in 2011, approximately twelve months prior to separation, which left him blind and unable to read or drive a motor vehicle, requiring kidney dialysis three times per week and paid carers to assist him on a daily basis;

b)        the husband was twenty-two years older than the wife; and

c)        during the marriage the parties had largely led separate financial lives.

 

2.        Baby Gammy (14 April 2016)

A baby with Down syndrome at the centre of an international surrogacy dispute was held by the Family Court of Western Australia not to have been abandoned in Thailand by his Australian parents.

This case involved twin children, Gammy, and his sister, Pipah, born in Thailand to a surrogate mother (“the surrogate”) using a Western Australian man’s sperm (“the father”) and an anonymous donor’s eggs. The father returned to Australia with Pipah, but not Gammy. It was claimed by the surrogate that the father had abandoned Gammy in Thailand because Gammy had Down Syndrome. The surrogate issued proceedings in Western Australia seeking the return to her of Pipah to live with her. The father opposed the Application and wanted Pipah to stay living with him. The father had previous convictions going back to 1999 for child sex offences.

The Judge made the following findings:

  • The surrogate fell in love with the children whilst pregnant and decided to keep Gammy;
  • The father did not abandon Gammy, instead he left Thailand with Pipah after being advised by the Australian Embassy to leave because of political turmoil in that country;
  • Pipah was to remain living with the father, who had a “loving network of family and friends”;
  • Gammy appeared to be thriving in Thailand where he too had the loving support of the surrogate’s family;
  • The judge said, “I have decided Pipah should not be removed from the only family she has ever known, in order to be placed with people who would be total strangers to her, even though I accept they would love her and would do everything they could to care for all her needs.”
  • The father and his family had suffered great humiliation and enormous stress for things he did not do.

This case highlighted the massive potential problems with international commercial surrogacy arrangements. The judge said “surrogate mothers are not baby-growing machines…this case highlights the dilemmas that arise when the reproductive capacities of women are turned into saleable commodities.”

 

3.        Hall (8 June 2016)

This case went to the High Court and involved interim spousal maintenance and the subpoenaing of the Will of the wife’s later father. The Judge originally ordered that the husband pay to the wife interim spousal maintenance of $10,383.00 per month. The husband appealed and ultimately the Full Court of the Family Court of Australia upheld the Appeal which meant the previous Order was discharged. The wife then appealed to the High Court and her Appeal was upheld by the High Court. 

Part of the complex issues in this case involved the contents of the wife’s late father’s Will which expressed a “wish” that the wife receive voluntary annual payments from the family business controlled by the wife’s brothers. The Subpoena to produce the wife’s father’s Will was successfully opposed, however, it was disclosed that there was a clause in the Will that expressed the wish that the wife should receive a lump sum payment from the group of companies controlled by the wife’s father a lump sum payment of $16,500,000.00 in the event of the wife divorcing from the husband and should also receive an annual payment from the same group of companies of $150,000.00 until the date of the lump sum payment.

The High Court found that the finding of the Full Court that the wife would have received the annual payment of $150,000.00 from the group of companies if she had only asked her brothers was not open on the evidence. Evidence put before the lower Courts did not allow the inference to be drawn that the payment would be made if requested by the wife and that the conclusion that the Full Court came to was correct. 

Therefore, the original Order that $10,383.00 per month be paid by the husband to the wife was reinstated.

 

4.        Kennedy & Thorne (26 September 2016)

This case involved a Binding Financial Agreement (also known colloquially as a pre-nuptial agreement) where the wife alleged she was placed under duress by the husband at the time of signing the Agreement and sought to have the Agreement set aside. It was found that the wife:

  1. was at all times financially and emotionally dependent on the husband;
  2. had permanently left and cut her ties with her country of birth,
  3. was in Australia on a limited visa; and
  4. was told by the husband that the terms of the Agreement were non-negotiable and if she did not sign the Agreement the wedding would be called off.

It was also clear from the Court’s findings that:

a)         the wife had been advised verbally and in writing not to sign the Agreement but she had done so against that advice; and

b)       she signed a second Agreement after the wedding despite, again, being advised not to do so.

It was found by the Court that:

a)       illegitimate or unlawful pressure was not found to have been asserted against the wife by the husband;

b)       the husband requiring an agreement before entering marriage was not a basis for finding duress; and

c)        the wife’s concern was not what would happen to her financially if she and the husband were to separate but rather, what would happen if she died.

The fact that the wife sought and obtained independent legal advice and despite that advice insisted that she sign the Agreement also told against her.

The wife’s Application was dismissed.

 

5.        Drake & Drake (7 December 2016)

This case involved a husband and wife, aged 28 and 23 years respectively, who were in a marriage for 2 years with no children. The net assets including superannuation were worth approximately $412,000.00. The husband brought into the marriage 85% of the assets including super, the wife 15%.

Both parties worked, the husband having earned $180,000.00 in the 2 years and the wife having earned $68,000.00.

The judge decided that the percentage of what they each initially contributed should be what they ended up with and therefore ordered a 85/15 split in the husband’s favour.

 

6.        Lincoln (13 December 2016)

Lincoln was born on in 2001. Although born female Lincoln identified as male. He had the condition of gender dysphoria. Lincoln had a very strong desire to have a bilateral mastectomy or what is referred to within the transgender community as “top surgery”. Lincoln’s parents filed an application seeking orders that the Court find that Lincoln was competent to consent to male chest reconstruction surgery for the purpose of treating his gender dysphoria.

In the event that the Court found Lincoln not to be competent to consent to the surgery proposed, his parents sought an order that they be permitted to authorise the surgery. The Secretary of the relevant State Government Department made submissions. The Secretary did not oppose the surgery desired by Lincoln and his parents on the basis that the Secretary considered this to be in the best interests of the child.

At the hearing on 6 December 2016 it was submitted that if the Court was satisfied that Lincoln was competent to consent to the proposed treatment it would be in Lincoln’s best interests to avail himself of an appointment which was available on 9 December 2016 for the proposed surgery. The judge accepted this submission and made orders on 6 December 2016, that Lincoln was competent to consent to the treatment.  

 

Summary

These are but a sample of some of the interesting cases that have come before the Courts relating to different aspects of family law throughout 2016.

 

Ben Farmer