High Court of Australia
Court or Tribunal: High Court of Australia
Catchwords: Assisted Reproduction, Biological Father, Biological Mother, Birth Mother, Parentage, Parental Rights, Same Sex Parents, Same Sex Relationship, Sperm Donation, With whom a child spends time with
Judges: Bell JEdelman JGageler JGordon JKeane JKiefel CJNettle J
Background: Mr Masson had donated his genetic material in 2006 in a private, personal insemination to his friend of about 25 years, named under a pseudonym as Susan Parsons. Mr Masson agreed on the understanding he would help as a parent, provide financial support and physical care. He is named as the girl’s father on her birth certificate. He was actively involved in the life and care of the girl and her younger sister, with both calling him “Daddy”, court documents show. Issues arose when the mother and her partner, Margaret, tried to take the girls, then aged 10 and 9, to live in New Zealand, where the couple married in 2015.
[Legal Issue]Mr Masson’s lawyers argued that, under the Commonwealth law, Mr Masson should be the parent, as he is the biological father and was involved in the child’s life.
He had donated his genetic material in 2006 in a private, personal insemination to his friend of about 25 years, named under a pseudonym as Susan Parsons.
Mr Masson was at first successful in fighting their move overseas, but the Parsons appealed before a full court of the Family Court, which agreed with the women that he was not a legal parent.
They successfully argued that the laws in most of the states rule out a sperm donor from being a father and that Mr Masson was therefore not a parent.
Mr Masson appealed to the High Court where the case was heard in April.
He argued that the Commonwealth law should apply
[Court Orders]The High Court has found a man who donated his sperm to a lesbian friend to have a child is the father, due to his involvement in the child’s life.
Catchwords: Assisted Reproduction, Biological Father, Biological Mother, Birth Mother, Parentage, Parental Rights, Same Sex Parents, Same Sex Relationship, Sperm Donation, With whom a child spends time with
Judges: Bell JEdelman JGageler JGordon JKeane JKiefel CJNettle J
Background: Mr Masson had donated his genetic material in 2006 in a private, personal insemination to his friend of about 25 years, named under a pseudonym as Susan Parsons. Mr Masson agreed on the understanding he would help as a parent, provide financial support and physical care. He is named as the girl’s father on her birth certificate. He was actively involved in the life and care of the girl and her younger sister, with both calling him “Daddy”, court documents show. Issues arose when the mother and her partner, Margaret, tried to take the girls, then aged 10 and 9, to live in New Zealand, where the couple married in 2015.
[Legal Issue]Mr Masson’s lawyers argued that, under the Commonwealth law, Mr Masson should be the parent, as he is the biological father and was involved in the child’s life.
He had donated his genetic material in 2006 in a private, personal insemination to his friend of about 25 years, named under a pseudonym as Susan Parsons.
Mr Masson was at first successful in fighting their move overseas, but the Parsons appealed before a full court of the Family Court, which agreed with the women that he was not a legal parent.
They successfully argued that the laws in most of the states rule out a sperm donor from being a father and that Mr Masson was therefore not a parent.
Mr Masson appealed to the High Court where the case was heard in April.
He argued that the Commonwealth law should apply
[Court Orders]The High Court has found a man who donated his sperm to a lesbian friend to have a child is the father, due to his involvement in the child’s life.
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: High Court of Australia
Catchwords: Family Trust, Wills & Probate
Judges: French CJGummow CJHayne JHeydon JKiefel J
Background: This involved a senior Melbourne QC. Before he was married he had set up a trust, and he was the trustee and was entitled to vary the terms of the trust. The beneficiaries were himself, his siblings, their children and their spouses. By two amendments, both the husband and the wife were excluded from the list of beneficiaries. The last amendment was effected at a time when the marriage was in trouble. The husband as trustee subsequently moved several million dollars from the trust to their children and to trusts for the children.
[Legal Issue]The existence of a family trust has caused difficulties in Family Law property disputes, because if, say, the husband is a beneficiary under a trust, he does not actually own anything until a distribution is decided upon. The Family Court's power is to deal with "property", and so there were real doubts about the court's ability to make orders about a possible entitlement under a trust.
[Court Orders]The legal ramifications with family trusts as a result of Kennon and Spry suggests that a family trust is not intended to be used to disadvantage a spouse following a marriage breakdown. The use of s.106B, s.85A are powerful weapons and when you weave in submissions concerning the right of due administration and due consideration these make it very difficult to exclude a spouse from some entitlement under a trust.
However we may not have heard the end of the case as questions of enforcement
Catchwords: Family Trust, Wills & Probate
Judges: French CJGummow CJHayne JHeydon JKiefel J
Background: This involved a senior Melbourne QC. Before he was married he had set up a trust, and he was the trustee and was entitled to vary the terms of the trust. The beneficiaries were himself, his siblings, their children and their spouses. By two amendments, both the husband and the wife were excluded from the list of beneficiaries. The last amendment was effected at a time when the marriage was in trouble. The husband as trustee subsequently moved several million dollars from the trust to their children and to trusts for the children.
[Legal Issue]The existence of a family trust has caused difficulties in Family Law property disputes, because if, say, the husband is a beneficiary under a trust, he does not actually own anything until a distribution is decided upon. The Family Court's power is to deal with "property", and so there were real doubts about the court's ability to make orders about a possible entitlement under a trust.
[Court Orders]The legal ramifications with family trusts as a result of Kennon and Spry suggests that a family trust is not intended to be used to disadvantage a spouse following a marriage breakdown. The use of s.106B, s.85A are powerful weapons and when you weave in submissions concerning the right of due administration and due consideration these make it very difficult to exclude a spouse from some entitlement under a trust.
However we may not have heard the end of the case as questions of enforcement
Court or Tribunal: High Court of Australia
Catchwords: Appeal, Proceedings to Alter Property Interests, Property, Property Settlement
Judges: Bell JFrench CJHayne JHeydon J
Background: The husband and wife married in 1971. In December 2008, the wife suffered a stroke and moved into full time residential care. She was later diagnosed with dementia. The husband continued to provide for her care and set aside money in a bank account to meet the costs of her medical needs or requirements. He continued to live in the matrimonial home. In 2009, the wife (by one of her daughters as case guardian) applied to the Family Court for orders altering interests in the marital property between the wife and her husband. Under the Family Law Act 1975 (Cth), a court can make a property settlement order if it is "just and equitable" to do so. At first instance, a magistrate ordered that the husband pay his wife $612,931, which represented the amount assessed as her contribution to the ma
[Legal Issue]The wife (on behalf of one of her daughters as case guardians), sought to have the family home sold, and half the proceedings to go to the daughters. The legal pretext to this action was the albeit involuntary physical separation of the couple. The husband was still residing in the family home, while the wife was moved into full time residential care because of a stroke and dementia.
The husband argued that the bare fact of physical separation, when involuntary, does not on its own make it just and equitable to make a property settlement order.
[Court Orders]The Court held that there was no basis to conclude that it would have been just and equitable to make a property settlement order had the wife been alive. She had not expressed a wish to divide the property, a property settlement order would require the husband to sell the matrimonial home, in which he still lived, and the Full Court had found, on the material before the magistrate, that her needs were being met or could be met by a maintenance order. The bare fact of physical separation, when i
Catchwords: Appeal, Proceedings to Alter Property Interests, Property, Property Settlement
Judges: Bell JFrench CJHayne JHeydon J
Background: The husband and wife married in 1971. In December 2008, the wife suffered a stroke and moved into full time residential care. She was later diagnosed with dementia. The husband continued to provide for her care and set aside money in a bank account to meet the costs of her medical needs or requirements. He continued to live in the matrimonial home. In 2009, the wife (by one of her daughters as case guardian) applied to the Family Court for orders altering interests in the marital property between the wife and her husband. Under the Family Law Act 1975 (Cth), a court can make a property settlement order if it is "just and equitable" to do so. At first instance, a magistrate ordered that the husband pay his wife $612,931, which represented the amount assessed as her contribution to the ma
[Legal Issue]The wife (on behalf of one of her daughters as case guardians), sought to have the family home sold, and half the proceedings to go to the daughters. The legal pretext to this action was the albeit involuntary physical separation of the couple. The husband was still residing in the family home, while the wife was moved into full time residential care because of a stroke and dementia.
The husband argued that the bare fact of physical separation, when involuntary, does not on its own make it just and equitable to make a property settlement order.
[Court Orders]The Court held that there was no basis to conclude that it would have been just and equitable to make a property settlement order had the wife been alive. She had not expressed a wish to divide the property, a property settlement order would require the husband to sell the matrimonial home, in which he still lived, and the Full Court had found, on the material before the magistrate, that her needs were being met or could be met by a maintenance order. The bare fact of physical separation, when i
Court or Tribunal: High Court of Australia
Catchwords: Appeal, Equal Parenting Time, Reasonable Practicality, Shared Parenting
Judges: Bell JFrench CJGummow JHayne JKiefel J
Background:
[Legal Issue]
[Court Orders]
Catchwords: Appeal, Equal Parenting Time, Reasonable Practicality, Shared Parenting
Judges: Bell JFrench CJGummow JHayne JKiefel J
Background:
[Legal Issue]
[Court Orders]
Court or Tribunal: High Court of Australia
Catchwords: Appeal, Paternity Fraud
Judges: Crennan JGleeson JGummow CJHayne JHeydon JKirby J
Background: Ms Magill had made false representations in the course of the marriage concerning the paternity of children born during the marriage. DNA testing after the marriage ended revealed two children of the marriage were not the biological children of the Mr Magill.
[Legal Issue]At issue in these proceedings was the notion of paternity fraud, and whether the tort of deceit can be applied in a marital context in relation to false representations of paternity.
Once finding out that he was not the father of his two youngest children, and his ex-wife aware that he was likely not the father, he sued, launching a case for deceit in the Victorian County Court, claiming damages for personal injury in the form of anxiety and depression resulting from fraudulent misrepresentations.
He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father, plus exemplary damages.
The County Court awarded him $70,000 from his ex-wife, including $30,000 for gen
[Court Orders]The judges unanimously ruled that the case for paternity fraud brought by Liam Neale Magill failed.
Three judges held that no action for deceit could lie in representations about paternity made between spouses.
Three other judges held that there could be circumstances in which such an action might succeed but they were exceptional and did not cover Mr Magill's situation.
However, the court also rejected an argument put by Mr Magill's former wife Meredith that the Family Law Act ruled ou
Catchwords: Appeal, Paternity Fraud
Judges: Crennan JGleeson JGummow CJHayne JHeydon JKirby J
Background: Ms Magill had made false representations in the course of the marriage concerning the paternity of children born during the marriage. DNA testing after the marriage ended revealed two children of the marriage were not the biological children of the Mr Magill.
[Legal Issue]At issue in these proceedings was the notion of paternity fraud, and whether the tort of deceit can be applied in a marital context in relation to false representations of paternity.
Once finding out that he was not the father of his two youngest children, and his ex-wife aware that he was likely not the father, he sued, launching a case for deceit in the Victorian County Court, claiming damages for personal injury in the form of anxiety and depression resulting from fraudulent misrepresentations.
He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father, plus exemplary damages.
The County Court awarded him $70,000 from his ex-wife, including $30,000 for gen
[Court Orders]The judges unanimously ruled that the case for paternity fraud brought by Liam Neale Magill failed.
Three judges held that no action for deceit could lie in representations about paternity made between spouses.
Three other judges held that there could be circumstances in which such an action might succeed but they were exceptional and did not cover Mr Magill's situation.
However, the court also rejected an argument put by Mr Magill's former wife Meredith that the Family Law Act ruled ou