Thackray J
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: Federal Circuit Court of Australia
Catchwords: Briginshaw test, Contributions, De Facto Relationship, De Facto Relationships, Meaningful Relationship, Proceedings to Alter Property Interests, Property, Substantial Relationship
Judges: Judge Brewster
Background: The case involved a sex worker who made a claim for a property order against a former client turned partner of 8 years. The applicant alleged that she lived in a de facto relationship with the respondent from 2003 until 2011. The parties met in 1999 when the applicant “was employed as a sex worker and the respondent was one of her clients”, their relationship evolving to a point where the “applicant began to involve the respondent with her family” and from “2000 onwards the sexual relationship between the parties ceased to be a commercial one”
[Legal Issue]The Court ultimately found that whilst the parties did have a relationship that exceeded “friendship”, it was not enough to constitute a de-facto relationship. There was no financial interdependence or children of the relationship and the applicant did not give up sex work for the respondent. In any event, the Court held that on the facts, it would not be just and equitable to make orders altering the party’s property interests.
Parties to a supposed de-facto relationship must evidence more than a mere sexual relationship. The Court will consider the totality of the relationship including amongst others, living arrangements and financial interdependence to establish the existence of a de-facto relationship.
[Court Orders]The Court found that the couple were not in a de facto relationship and as such the claim for property fails.
Catchwords: Briginshaw test, Contributions, De Facto Relationship, De Facto Relationships, Meaningful Relationship, Proceedings to Alter Property Interests, Property, Substantial Relationship
Judges: Judge Brewster
Background: The case involved a sex worker who made a claim for a property order against a former client turned partner of 8 years. The applicant alleged that she lived in a de facto relationship with the respondent from 2003 until 2011. The parties met in 1999 when the applicant “was employed as a sex worker and the respondent was one of her clients”, their relationship evolving to a point where the “applicant began to involve the respondent with her family” and from “2000 onwards the sexual relationship between the parties ceased to be a commercial one”
[Legal Issue]The Court ultimately found that whilst the parties did have a relationship that exceeded “friendship”, it was not enough to constitute a de-facto relationship. There was no financial interdependence or children of the relationship and the applicant did not give up sex work for the respondent. In any event, the Court held that on the facts, it would not be just and equitable to make orders altering the party’s property interests.
Parties to a supposed de-facto relationship must evidence more than a mere sexual relationship. The Court will consider the totality of the relationship including amongst others, living arrangements and financial interdependence to establish the existence of a de-facto relationship.
[Court Orders]The Court found that the couple were not in a de facto relationship and as such the claim for property fails.
Court or Tribunal: Full Court of the Family Court of Australia
Catchwords: Appeal, Biological Mother, Birth Mother, Contravention, Meaningful Relationship, Non-Parent, Parentage, Parental, Parental Rights, Parenting Orders, Relocation, Same Sex Parents, Same Sex Relationship, Step Parent
Judges: Coleman JJarrett FMMay JWarnick J
Background: Two women had lived in an intimate relationship for 9 years and two children were born during this time using IVF, with each woman being the biological parent of one child (same sex relationship). One woman then left the relationship taking her birth child with her. Orders were issued for the two children to spend significant time with the other woman and to see their sibling. One woman then relocated further away making the order impractical and the other woman appealed arguing that the first woman was not facilitating an ongoing meaningful relationship between her and the child whom she considered that she had parented.
[Legal Issue]Each woman claimed to be a parent of the other’s child, although the trial judge found to the contrary as only a biological parent or an adoptive parent meets the legal definition of being a parent. Both women submitted that each child regarded each of the women as a mother.
The Appeal Court found that if a child is born by an artificial conception procedure while the woman is married to a man and the procedure is carried out with the joint consent of both adults, then the child is their child for the purposes of the Act, or both the woman and man are parents of the child.
The Appeal Court supported the ruling by the trial judge that the women were not parents of the child whom they did not give birth to (non-parent). The appeal was dismissed.
[Court Orders]The Appeal Court supported the ruling by the trial judge that the women were not parents of the child whom they did not give birth to (non-parent).
The appeal was dismissed.
Catchwords: Appeal, Biological Mother, Birth Mother, Contravention, Meaningful Relationship, Non-Parent, Parentage, Parental, Parental Rights, Parenting Orders, Relocation, Same Sex Parents, Same Sex Relationship, Step Parent
Judges: Coleman JJarrett FMMay JWarnick J
Background: Two women had lived in an intimate relationship for 9 years and two children were born during this time using IVF, with each woman being the biological parent of one child (same sex relationship). One woman then left the relationship taking her birth child with her. Orders were issued for the two children to spend significant time with the other woman and to see their sibling. One woman then relocated further away making the order impractical and the other woman appealed arguing that the first woman was not facilitating an ongoing meaningful relationship between her and the child whom she considered that she had parented.
[Legal Issue]Each woman claimed to be a parent of the other’s child, although the trial judge found to the contrary as only a biological parent or an adoptive parent meets the legal definition of being a parent. Both women submitted that each child regarded each of the women as a mother.
The Appeal Court found that if a child is born by an artificial conception procedure while the woman is married to a man and the procedure is carried out with the joint consent of both adults, then the child is their child for the purposes of the Act, or both the woman and man are parents of the child.
The Appeal Court supported the ruling by the trial judge that the women were not parents of the child whom they did not give birth to (non-parent). The appeal was dismissed.
[Court Orders]The Appeal Court supported the ruling by the trial judge that the women were not parents of the child whom they did not give birth to (non-parent).
The appeal was dismissed.