Judiciary
Court or Tribunal: Supreme Court of Queensland
Catchwords: Assisted Reproduction, In Vitro Fertilisation, Parens Patriae, Posthumous Sperm Donation, Sperm Donation, Succession
Judges: Brown J
Background: A Queensland woman applied to the Qld Supreme Court in Brisbane for the right to use her dead boyfriend’s sperm to have a baby. Ayla Cresswell’s partner Joshua Davies died suddenly in August 2016, and within hours the court granted permission for his sperm to be harvested. Ms Cresswell sought approval from the court to use the sperm, which is being held at an IVF clinic.
[Legal Issue]The court decided the sperm was capable of being deemed “property” and that Ms Cresswell was entitled to permanent possession of it.
Ms McMillan said while the resulting child would not have the benefit of a father, there was support from a paternal and maternal grandfather.
[Court Orders]The applicant is entitled to possession and use of the spermatozoa to facilitate pregnancy and the Queensland Fertility Group (QFG) is to transfer directly the spermatozoa to Women’s Health Only (WHO) on the applicant’s direction.
Catchwords: Assisted Reproduction, In Vitro Fertilisation, Parens Patriae, Posthumous Sperm Donation, Sperm Donation, Succession
Judges: Brown J
Background: A Queensland woman applied to the Qld Supreme Court in Brisbane for the right to use her dead boyfriend’s sperm to have a baby. Ayla Cresswell’s partner Joshua Davies died suddenly in August 2016, and within hours the court granted permission for his sperm to be harvested. Ms Cresswell sought approval from the court to use the sperm, which is being held at an IVF clinic.
[Legal Issue]The court decided the sperm was capable of being deemed “property” and that Ms Cresswell was entitled to permanent possession of it.
Ms McMillan said while the resulting child would not have the benefit of a father, there was support from a paternal and maternal grandfather.
[Court Orders]The applicant is entitled to possession and use of the spermatozoa to facilitate pregnancy and the Queensland Fertility Group (QFG) is to transfer directly the spermatozoa to Women’s Health Only (WHO) on the applicant’s direction.
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: Full Court of the Family Court of Australia
Catchwords: Binding Financial Agreement, Binding Financial Agreement, Post-Nuptial Agreement, Pre-Nuptial Agreement, Pre-Nuptial Agreement
Judges: Aldridge JCronin JStrickland J
Background: The parties met over the internet in early to mid-2006. She was a 36 year old, born and living overseas with limited English skills. She was previously divorced, had no children and no assets of substance. He was a 67 year old, was a property developer and worth approximately $18 to $24 million. He was divorced from his first wife, with whom he had three children, now all in adulthood. Having met on a dating website in early to mid-2006, the parties then commenced speaking with each other on the telephone. They spoke in English and in (language omitted). The applicant agreed that the deceased said to her: “I will come to (country omitted) and we will see if we like each other. If I like you I will marry you but you will have to sign paper. My money is for my children.”
[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.
[Court Orders]The appeal be allowed.
Catchwords: Binding Financial Agreement, Binding Financial Agreement, Post-Nuptial Agreement, Pre-Nuptial Agreement, Pre-Nuptial Agreement
Judges: Aldridge JCronin JStrickland J
Background: The parties met over the internet in early to mid-2006. She was a 36 year old, born and living overseas with limited English skills. She was previously divorced, had no children and no assets of substance. He was a 67 year old, was a property developer and worth approximately $18 to $24 million. He was divorced from his first wife, with whom he had three children, now all in adulthood. Having met on a dating website in early to mid-2006, the parties then commenced speaking with each other on the telephone. They spoke in English and in (language omitted). The applicant agreed that the deceased said to her: “I will come to (country omitted) and we will see if we like each other. If I like you I will marry you but you will have to sign paper. My money is for my children.”
[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.
[Court Orders]The appeal be allowed.
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.
Court or Tribunal: Family Court of Australia
Catchwords: Discretion to Admit Evidence, Evidence, Recorded conversations
Judges: McClelland J
Background: This is a case where the applicant mother secretly recorded the respondent father making threats of violence against the children. Counsel for the Applicant mother sought to tender these voice recordings and transcripts of these conversations, made without the father's consent, to the hearing. The recordings and transcript were only provided to the father's legal representatives less than a week prior to the commencement of the hearing. This did not comply with the pre-trial directions for the filing of evidence.
[Legal Issue]The Court found that the audio recordings fall within the exception contained in sub-section 7(3)(b) of the Surveillance Devices Act 2007 (NSW), as the recordings were reasonably necessary to protect the lawful interests of the mother. The Court also exercised its discretion to admit the audio recordings and transcripts into evidence. A certificate was issued to the mother pursuant to section 128 of the Evidence Act 1995 (Cth).
[Court Orders]The bulk of the audio recordings and the transcript of the audio recordings between the parties were accepted as evidence in the proceedings.
Catchwords: Discretion to Admit Evidence, Evidence, Recorded conversations
Judges: McClelland J
Background: This is a case where the applicant mother secretly recorded the respondent father making threats of violence against the children. Counsel for the Applicant mother sought to tender these voice recordings and transcripts of these conversations, made without the father's consent, to the hearing. The recordings and transcript were only provided to the father's legal representatives less than a week prior to the commencement of the hearing. This did not comply with the pre-trial directions for the filing of evidence.
[Legal Issue]The Court found that the audio recordings fall within the exception contained in sub-section 7(3)(b) of the Surveillance Devices Act 2007 (NSW), as the recordings were reasonably necessary to protect the lawful interests of the mother. The Court also exercised its discretion to admit the audio recordings and transcripts into evidence. A certificate was issued to the mother pursuant to section 128 of the Evidence Act 1995 (Cth).
[Court Orders]The bulk of the audio recordings and the transcript of the audio recordings between the parties were accepted as evidence in the proceedings.
Court or Tribunal: Family Court of Australia
Catchwords: Allegations of Child Abuse, Emotional Abuse, Equal Shared Parental Responsibility, False Allegations of Child Abuse, Parental Disorders, Risk of Psychological Harm, Sole Parental Responsibility, Unacceptable Risk, Unsubstantiated Allegations
Judges: Tree J
Background: The mother of children aged 10 and 7 years was in her third long term relationship. The first relationship commenced when she was aged 18 years and produced 3 children. The second relationship commenced when the mother was aged 25 years and lasted for 12 years, producing 3 children. The mother alleged that the father had sexually abused one child and the child protection department removed two children from the mother’s care and stopped contact with the father for a period, deeming that the father presented an unacceptable risk of harm to the children. This assessment was later reviewed and reversed when it was found that the mother had made false allegations of sexual abuse by the father. The children were then placed in the care of the father. The mother commenced supervised co
[Legal Issue]The family consultant opined that an allocation of equal shared parental responsibility and equal division of time between the parents might overcome the reluctance of the father to facilitate a meaningful relationship between the mother and the children, as it would effect a balance in power between the parents. The judge described this view as hope triumphing over experience. The judge found that the consultant had not considered the effect of the mother’s allegations on the father. The judge noted that the family consultant had not spoken to the mother’s therapist whom the mother had seen monthly for 8 years.
The judge ordered that the children live with the father and spend time with the mother, and that the father have sole parental responsibility.
[Court Orders]The children B born ... 2004 and C born ... 2008 (“the children”) shall live with the father.
The father shall have sole parental responsibility for all decisions concerning the long-term care and welfare and development of the children, but otherwise each parent shall have the sole responsibility for all decisions concerning day-to-day care, welfare and development of the children for the time that they are in that parent’s care.
The father is to notify the mother in writing of all
Catchwords: Allegations of Child Abuse, Emotional Abuse, Equal Shared Parental Responsibility, False Allegations of Child Abuse, Parental Disorders, Risk of Psychological Harm, Sole Parental Responsibility, Unacceptable Risk, Unsubstantiated Allegations
Judges: Tree J
Background: The mother of children aged 10 and 7 years was in her third long term relationship. The first relationship commenced when she was aged 18 years and produced 3 children. The second relationship commenced when the mother was aged 25 years and lasted for 12 years, producing 3 children. The mother alleged that the father had sexually abused one child and the child protection department removed two children from the mother’s care and stopped contact with the father for a period, deeming that the father presented an unacceptable risk of harm to the children. This assessment was later reviewed and reversed when it was found that the mother had made false allegations of sexual abuse by the father. The children were then placed in the care of the father. The mother commenced supervised co
[Legal Issue]The family consultant opined that an allocation of equal shared parental responsibility and equal division of time between the parents might overcome the reluctance of the father to facilitate a meaningful relationship between the mother and the children, as it would effect a balance in power between the parents. The judge described this view as hope triumphing over experience. The judge found that the consultant had not considered the effect of the mother’s allegations on the father. The judge noted that the family consultant had not spoken to the mother’s therapist whom the mother had seen monthly for 8 years.
The judge ordered that the children live with the father and spend time with the mother, and that the father have sole parental responsibility.
[Court Orders]The children B born ... 2004 and C born ... 2008 (“the children”) shall live with the father.
The father shall have sole parental responsibility for all decisions concerning the long-term care and welfare and development of the children, but otherwise each parent shall have the sole responsibility for all decisions concerning day-to-day care, welfare and development of the children for the time that they are in that parent’s care.
The father is to notify the mother in writing of all
Court or Tribunal: Family Court of Australia
Catchwords: Allegations of Child Abuse, Emotional Abuse, Entrenched Parental Conflict, False Allegations of Child Abuse, Meaningful Relationship, Parental Disorders, Property, Psychological Disorders, Recorded conversations, Risk of Psychological Harm, Unacceptable Risk, Unsubstantiated Allegations, With whom a child lives with
Judges: Hannam J
Background: The mother is 42 and the father is 43 years old. The parties commenced a relationship in 1999 when they were in their late twenties. The case involves competing claims of domestic violence and property dispute. In relation to parenting matters there are three significant factual disputes. First, the father contends that he was the victim of serious systematic violence perpetrated by the mother for most the relationship. The mother contends that it was the father who was violent towards her and that if she also engaged in violence, it was in response to the father’s antagonism. Second, the mother contends that the father and his (second) wife Mrs H abused the children after separation, which is denied by the father. Finally, it is central to the father and the ICL’s ca
[Legal Issue]No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The ICL’s proposal is based to a large extent upon the recommendations of Dr K. In his report Dr K was of the view that the children should live with their father and he should have sole parental responsibility for them. He then said:
After a significant period of time to allow the children to develop security and connection in their father’s home, it would be ideal for the children to maintain some time spent with the m
[Court Orders]The children shall live with their father, Mr Huffman (“the father” or “the husband”).
The father shall have sole parental responsibility for the children.
The children shall spend no time with their mother, Ms Gorman (“the mother” or “the wife”), for a period of 12 months from the date of these orders.
Thereafter, the children shall spend supervised time with their mother each second month, at a supervised contact centre.
The father shall do all acts and things neces
Catchwords: Allegations of Child Abuse, Emotional Abuse, Entrenched Parental Conflict, False Allegations of Child Abuse, Meaningful Relationship, Parental Disorders, Property, Psychological Disorders, Recorded conversations, Risk of Psychological Harm, Unacceptable Risk, Unsubstantiated Allegations, With whom a child lives with
Judges: Hannam J
Background: The mother is 42 and the father is 43 years old. The parties commenced a relationship in 1999 when they were in their late twenties. The case involves competing claims of domestic violence and property dispute. In relation to parenting matters there are three significant factual disputes. First, the father contends that he was the victim of serious systematic violence perpetrated by the mother for most the relationship. The mother contends that it was the father who was violent towards her and that if she also engaged in violence, it was in response to the father’s antagonism. Second, the mother contends that the father and his (second) wife Mrs H abused the children after separation, which is denied by the father. Finally, it is central to the father and the ICL’s ca
[Legal Issue]No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The ICL’s proposal is based to a large extent upon the recommendations of Dr K. In his report Dr K was of the view that the children should live with their father and he should have sole parental responsibility for them. He then said:
After a significant period of time to allow the children to develop security and connection in their father’s home, it would be ideal for the children to maintain some time spent with the m
[Court Orders]The children shall live with their father, Mr Huffman (“the father” or “the husband”).
The father shall have sole parental responsibility for the children.
The children shall spend no time with their mother, Ms Gorman (“the mother” or “the wife”), for a period of 12 months from the date of these orders.
Thereafter, the children shall spend supervised time with their mother each second month, at a supervised contact centre.
The father shall do all acts and things neces
Court or Tribunal: Federal Circuit Court of Australia
Catchwords: Evidence, Recorded conversations
Judges: Judge Sexton
Background: Corby and Corby regarded the use of four non-consensual audio recordings between the parties as evidence in a custody hearing. The applicant, the mother in the estranged partnership, contended that the respondent was sexually coercive, intimidating and physically violent during their relationship.
[Legal Issue]The question before Sexton J was whether the applicant had a lawful interest under section 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW).137 Her Honour decided that the applicant had a lawful interest in protecting herself from intimidation, harassment and sexual coercion.138 Moreover, the recordings were reasonably necessary because, similarly to R v Coutts, it may not have been a realistic option to report her predicament to the police139 and the recordings were important evidence as they demonstrated the difference between the public and private ‘faces’ of the respondent.140 Further, and similarly to other cases, Sexton J observed that even if she had been unable to find that the mother had a lawful interest in ma
[Court Orders](1) The audio recordings between the parties made by the Mother on 25 March, 24 June and 8 July 2012 be marked Exhibit 4.
(2) The Mother’s solicitor email the audio recordings (admitted and marked Exhibit 4) to the Father's new solicitor by the close of business on Tuesday 21 April 2015.
(3) The Mother’s solicitor save the audio recordings onto a USB flashdrive and present the flashdrive to the Exhibits counter at the Sydney Registry by no later than 4.00p.m on Friday 24 April 2015.
Catchwords: Evidence, Recorded conversations
Judges: Judge Sexton
Background: Corby and Corby regarded the use of four non-consensual audio recordings between the parties as evidence in a custody hearing. The applicant, the mother in the estranged partnership, contended that the respondent was sexually coercive, intimidating and physically violent during their relationship.
[Legal Issue]The question before Sexton J was whether the applicant had a lawful interest under section 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW).137 Her Honour decided that the applicant had a lawful interest in protecting herself from intimidation, harassment and sexual coercion.138 Moreover, the recordings were reasonably necessary because, similarly to R v Coutts, it may not have been a realistic option to report her predicament to the police139 and the recordings were important evidence as they demonstrated the difference between the public and private ‘faces’ of the respondent.140 Further, and similarly to other cases, Sexton J observed that even if she had been unable to find that the mother had a lawful interest in ma
[Court Orders](1) The audio recordings between the parties made by the Mother on 25 March, 24 June and 8 July 2012 be marked Exhibit 4.
(2) The Mother’s solicitor email the audio recordings (admitted and marked Exhibit 4) to the Father's new solicitor by the close of business on Tuesday 21 April 2015.
(3) The Mother’s solicitor save the audio recordings onto a USB flashdrive and present the flashdrive to the Exhibits counter at the Sydney Registry by no later than 4.00p.m on Friday 24 April 2015.
Court or Tribunal: Administrative Appeals Tribunal of Australia
Catchwords: Appeal, Child Care Benefit, Family Assistance, Family Tax Benefit, Family Tax Benefit Part A, Family Tax Benefit Part B, SchoolKids bonus, Social Security Fraud
Judges: C Ermert Member
Background: From 2003 over the course of a decade, the woman was overpaid family tax and childcare benefits, and the Schoolkids bonus because of incorrect Centrelink computer coding. The woman contacted Centrelink in 2011 after her husband received a sizable pay rise, querying whether she was still entitled to the payments. Centrelink ruled she was, but three years later the agency discovered its error and asked her to repay the money, which the woman then disputed.
[Legal Issue]The woman was alerted by Centrelink to the overpayments on July 2012, but kept on receiving the overpayments.
The woman asserted she should not have to repay the overpayed amounts, including the amounts paid prior to July 2012, and the amounts paid after July 2012, because the debts had resulted solely from errors made by Centrelink.
[Court Orders]Tribunal member Conrad Ermert agreed the woman should not have to repay the $77,000 paid to her before July 2012, finding Centrelink raised the issue too late and the woman had received them in good faith.
"There is no evidence that [she] held any suspicions or doubts that she was not entitled to the payments. She said in evidence that she simply trusted the Department to make the correct payments," Mr Ermert said.
But he found the woman was still required to repay the money received after
Catchwords: Appeal, Child Care Benefit, Family Assistance, Family Tax Benefit, Family Tax Benefit Part A, Family Tax Benefit Part B, SchoolKids bonus, Social Security Fraud
Judges: C Ermert Member
Background: From 2003 over the course of a decade, the woman was overpaid family tax and childcare benefits, and the Schoolkids bonus because of incorrect Centrelink computer coding. The woman contacted Centrelink in 2011 after her husband received a sizable pay rise, querying whether she was still entitled to the payments. Centrelink ruled she was, but three years later the agency discovered its error and asked her to repay the money, which the woman then disputed.
[Legal Issue]The woman was alerted by Centrelink to the overpayments on July 2012, but kept on receiving the overpayments.
The woman asserted she should not have to repay the overpayed amounts, including the amounts paid prior to July 2012, and the amounts paid after July 2012, because the debts had resulted solely from errors made by Centrelink.
[Court Orders]Tribunal member Conrad Ermert agreed the woman should not have to repay the $77,000 paid to her before July 2012, finding Centrelink raised the issue too late and the woman had received them in good faith.
"There is no evidence that [she] held any suspicions or doubts that she was not entitled to the payments. She said in evidence that she simply trusted the Department to make the correct payments," Mr Ermert said.
But he found the woman was still required to repay the money received after