Dawson J
Court or Tribunal: High Court of Australia
Catchwords: Appeal, Binding Financial Agreement, Binding Financial Agreement, Post-Nuptial Agreement, Pre-Nuptial Agreement, Pre-Nuptial Agreement
Judges: Bell JEdelman JGageler JGordon JKeane JKiefel CJNettle J
Background: He was a multi-millionaire property developer, she was his much younger Eastern European bride who spoke little English. The couple met online in 2006 on a “website for potential brides” when the husband was 67 and she was 36. The husband, known as Mr Kennedy, had assets of at least $18 million. He was divorced from his first wife and had three adult children. Soon after he met the wife online, he told her that if they married, “you will have to sign paper. My money is for my children.” The agreement said the wife was to receive a total payment of $50,000 adjusted for inflation in the event of separation after at least three years of marriage. It also provided for the wife to receive a penthouse worth up to $1.5m, a Mercedes and continuing income, in the event the husband die
[Legal Issue]The Federal Circuit Court initially set aside the agreements, finding that they were signed “under duress born of inequality of bargaining power where there was no outcome to her that was fair and reasonable”.
However, the Full Family Court ruled the agreements were binding, and said there had not been duress, undue influence or unconscionable conduct on the husband’s part.
The High Court disagreed. It said the primary judge’s conclusion of undue influence was open on the evidence and it was unnecessary to decide whether the agreements could have also been set aside for duress.
The case will now be sent back for the Federal Circuit Court to decide how the property pool should be divided between the two.
Ms Thorne is seeking orders for a further $1.1 million plus a lump
[Court Orders]1.Appeal allowed.
2.Set aside the orders of the Full Court of the Family Court of Australia made on 26 September 2016 and, in their place, order that the appeal to that Court be dismissed with costs.
3.The respondent pay the appellant's costs of the appeal to this Court.
Catchwords: Appeal, Binding Financial Agreement, Binding Financial Agreement, Post-Nuptial Agreement, Pre-Nuptial Agreement, Pre-Nuptial Agreement
Judges: Bell JEdelman JGageler JGordon JKeane JKiefel CJNettle J
Background: He was a multi-millionaire property developer, she was his much younger Eastern European bride who spoke little English. The couple met online in 2006 on a “website for potential brides” when the husband was 67 and she was 36. The husband, known as Mr Kennedy, had assets of at least $18 million. He was divorced from his first wife and had three adult children. Soon after he met the wife online, he told her that if they married, “you will have to sign paper. My money is for my children.” The agreement said the wife was to receive a total payment of $50,000 adjusted for inflation in the event of separation after at least three years of marriage. It also provided for the wife to receive a penthouse worth up to $1.5m, a Mercedes and continuing income, in the event the husband die
[Legal Issue]The Federal Circuit Court initially set aside the agreements, finding that they were signed “under duress born of inequality of bargaining power where there was no outcome to her that was fair and reasonable”.
However, the Full Family Court ruled the agreements were binding, and said there had not been duress, undue influence or unconscionable conduct on the husband’s part.
The High Court disagreed. It said the primary judge’s conclusion of undue influence was open on the evidence and it was unnecessary to decide whether the agreements could have also been set aside for duress.
The case will now be sent back for the Federal Circuit Court to decide how the property pool should be divided between the two.
Ms Thorne is seeking orders for a further $1.1 million plus a lump
[Court Orders]1.Appeal allowed.
2.Set aside the orders of the Full Court of the Family Court of Australia made on 26 September 2016 and, in their place, order that the appeal to that Court be dismissed with costs.
3.The respondent pay the appellant's costs of the appeal to this Court.
Court or Tribunal: Full Court of the Family Court of Australia
Catchwords: Divorce, Inheritance, Inheritance, Property, Property
Judges: Aldridge JBryant CJRyan J
Background: The Full Court of the Family Court of Australia in Western Australia heard an Appeal by a husband who argued that an inheritance received 4 years after separation should not be included in the property to be divided between him and his ex-wife. The parties were married for 8 years and were divorced in 2011.They had one child who was 5 years old at the time of separation. In 2014 the husband received an inheritance from his father’s estate. The wife commenced proceedings more than 3 years after separation and was granted the Court’s leave under Section 44 (3) of the Family Law Act to pursue a property settlement claim.
[Legal Issue]The central issue on appeal was whether the trial Judge erred by including the husband’s post separation inheritance within the parties’ property pool available for division. The husband argued that his inheritance should not be included in the pool because of the degree of “connection” or more to the point, the lack of connection, between the inheritance and the parties’ matrimonial relationship. The husband was unsuccessful in taking that position and his appeal was dismissed.
The Justices of the Full Court of the Family Court of Australia, Chief Justice Bryant, Justice Ryan and Justice Aldridge concluded that the Court retained a discretion as to how to approach the treatment of property acquired after separation.
Conversely in the case of Holland & Holland [2017] FamC
[Court Orders](1) The appeal against the orders made by Magistrate Calverley on 17 November 2016 is dismissed.
(2) The appellant pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed.
The husband was unsuccessful in excluding his post-separation inheritance from the asset pool. The trial judge assessed contributions as 65%/35% in the husband’s favour, which included a 10% adjustment to the wife for future needs.
No appealable error established – Appeal dismissed
Catchwords: Divorce, Inheritance, Inheritance, Property, Property
Judges: Aldridge JBryant CJRyan J
Background: The Full Court of the Family Court of Australia in Western Australia heard an Appeal by a husband who argued that an inheritance received 4 years after separation should not be included in the property to be divided between him and his ex-wife. The parties were married for 8 years and were divorced in 2011.They had one child who was 5 years old at the time of separation. In 2014 the husband received an inheritance from his father’s estate. The wife commenced proceedings more than 3 years after separation and was granted the Court’s leave under Section 44 (3) of the Family Law Act to pursue a property settlement claim.
[Legal Issue]The central issue on appeal was whether the trial Judge erred by including the husband’s post separation inheritance within the parties’ property pool available for division. The husband argued that his inheritance should not be included in the pool because of the degree of “connection” or more to the point, the lack of connection, between the inheritance and the parties’ matrimonial relationship. The husband was unsuccessful in taking that position and his appeal was dismissed.
The Justices of the Full Court of the Family Court of Australia, Chief Justice Bryant, Justice Ryan and Justice Aldridge concluded that the Court retained a discretion as to how to approach the treatment of property acquired after separation.
Conversely in the case of Holland & Holland [2017] FamC
[Court Orders](1) The appeal against the orders made by Magistrate Calverley on 17 November 2016 is dismissed.
(2) The appellant pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed.
The husband was unsuccessful in excluding his post-separation inheritance from the asset pool. The trial judge assessed contributions as 65%/35% in the husband’s favour, which included a 10% adjustment to the wife for future needs.
No appealable error established – Appeal dismissed
Court or Tribunal: Family Court of Western Australia
Catchwords: Assisted Reproduction, Biological Father, Biological Mother, Birth Mother, Child of a marriage, Evidence, Parentage, Parental, Parental Responsibility, Parental Rights, Perjury, Surrogacy
Judges: Thackray CJ
Background: 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 conv
[Legal Issue]With whom a child lives – The applicants entered into surrogacy arrangement with the respondent birth mother – Twins born in Thailand as a result – The girl was brought to Western Australia to live with the applicants, while the boy remained in Thailand with the birth mother – The applicants seek an order for the girl to continue living with them – The birth mother seeks an order for the girl to live with her in Thailand – The male applicant is a convicted sex offender but expert evidence indicates that there is a low risk of him abusing the girl – This risk must be weighed against the high risk of harm to the girl if she is removed from her current home
[Court Orders]Orders for the girl to live with the applicants and for them to have parental responsibility – No orders requiring the applicants to allow the birth mother to spend time with or communicate with the girl – Applicants required to send some of the girl's schoolwork to the birth mother – Formal findings made that the applicants did not abandon the boy and did not try to access his trust fund.
Catchwords: Assisted Reproduction, Biological Father, Biological Mother, Birth Mother, Child of a marriage, Evidence, Parentage, Parental, Parental Responsibility, Parental Rights, Perjury, Surrogacy
Judges: Thackray CJ
Background: 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 conv
[Legal Issue]With whom a child lives – The applicants entered into surrogacy arrangement with the respondent birth mother – Twins born in Thailand as a result – The girl was brought to Western Australia to live with the applicants, while the boy remained in Thailand with the birth mother – The applicants seek an order for the girl to continue living with them – The birth mother seeks an order for the girl to live with her in Thailand – The male applicant is a convicted sex offender but expert evidence indicates that there is a low risk of him abusing the girl – This risk must be weighed against the high risk of harm to the girl if she is removed from her current home
[Court Orders]Orders for the girl to live with the applicants and for them to have parental responsibility – No orders requiring the applicants to allow the birth mother to spend time with or communicate with the girl – Applicants required to send some of the girl's schoolwork to the birth mother – Formal findings made that the applicants did not abandon the boy and did not try to access his trust fund.