2017 Family Law Case Watch
20th December 2017
By Lisa Wagner
As 2017 draws to a close, we reflect on some of the key cases that have shaped the year in Family law. Read on for a snapshot into the unique and diverse area of Family Law…
Bernieres and Anor & Dhopal and Anor (2017)
In 2017 for the first time ever, the Family Court ruled on the issue of ‘parentage’ in relation to a child born as the result of a surrogacy arrangement.
In this case, the sperm of the child’s biological father was used to fertilise an egg sourced as a result of a commercial surrogacy arrangement, with the surrogate mother living in India.
The first and second appellants to the Family Court decision were the biological father (whose sperm was used to fertilise the egg sourced via the commercial surrogacy arrangement) and his partner, who has no biological link to the child.
The Full Court held that even despite the ‘father’ being the child’s biological father, for the purpose of the Family Law Act, it does not necessarily equate to him being a ‘parent’ for the purposes of the Act. His partner, with no biological links to the child, is even less likely to be considered a legal ‘parent’.
The basis for the Appeal was whether the primary judge had failed to make declarations of parentage in relation to the child, however the Full Court upheld the primary judge’s decision. Sadly, the child’s parentage remained undetermined.
There is no doubt that as commercial surrogacy arrangements become more prevalent, there will be increasing discussion in relation to this judgement. Watch this space…
Calvin & McTier (2017)
Attempting to achieve an amicable post-separation relationship with your former spouse may not always result in the best outcome in Family Law matters…
This 2017 case explores the important and often unthought of connection between post separation inheritances and finalising property orders as quickly as possible following separation.
In this case the parties, who enjoyed an amicable post-separation relationship, had been separated for three years when the husband received a substantial inheritance from his father in the amount of $430,686. Neither the husband nor the wife had taken steps to deal with the division of their property between the date of separation and the date at which the husband received the inheritance.
The magistrate ruled that the inheritance should be included in the matrimonial asset pool, which would see it comprise some 32% of same. The husband appealed to the Full Court arguing that his inheritance should be dealt with separately to the rest of the matrimonial asset pool.
This case serves to highlight the discretionary nature of family law proceedings which may result in entirely different outcomes depending on the judge presiding over the matter. The second lesson flowing from this case is to remember that property orders serve to finalise your financial relationship with your ex-spouse and that in the absence of property orders, your financial relationship will continue.
The Full Court upheld the magistrate’s decision.
In this case, there were interim parenting orders in place that provided for the parties three children to live with their father and spend time with their mother. The two elder children were boys aged 16 and 14 and the parties also had a 12-year-old daughter.
The children’s father took the two elder children on an overseas holiday to New York. The father ultimately decided not to return the two children to Australia at the end of their holiday.
In this case, the trial judge ordered the return of the children to Australia. One of the live issues in the case was whether the trial judge had erred in failing to consider the wishes of the children who were almost 17 and 15 years of age. It was the wish of the two boys to remain in New York with their father.
The Full Court in upholding the decision accepted that whilst the children expressed a desire to remain in New York, he considered that there were other matters about which the boys did not appear to have given any thought. Principal amongst them was the effect of their separation from their mother and their sister and their relationship with their mother and their sister. In addition, the effect on their sister who was separated from her brothers.
Furthermore, the Full Court held that the father evidenced a ‘flagrant disregard’ for the parenting orders that were currently in place which was a matter relevant to his consideration of what was in the best interests of the children. The Full Court held that the father expressed an attitude towards the responsibilities of parenthood that, if left unchecked, would send a poor message to his two sons, who on the evidence, were considered to be very impressionable.
Official Trustee in Bankruptcy v Galanis (2017)
This 2017 case dealt with the ability of a trustee in bankruptcy to set aside a financial agreement.
The facts of the case concerned a husband and wife who purchased a property together as tenants-in-common with the wife owning 60% and the husband 40%, respectively. The wife had met 100% of the purchase price of the property. When the parties separated, the husband was discharged from bankruptcy. Two years later, they entered into a financial agreement pursuant to section 90 of the Family Law Act which required that the husband transfer all of his right title and interest in the matrimonial home to his former wife.
The official trustee of the husband’s estate sought an order that the agreement reached between the husband and wife should be set aside and that 40% of the net profits of the sale of the former matrimonial home should be paid to the official trustee in order to be distributed amongst the creditors of the husband.
The Full Court held that a discharged bankrupt does not have standing pursuant to the Family Law Act to set aside a financial agreement. However, if the husband was an undischarged bankrupt, the trustee would have had standing pursuant to the Family Law Act.
The 2017 case of Surridge is a sage reminder to parties to Family Law proceedings and their solicitors to ensure that the obligation to provide full and frank disclosure of financial circumstances is adhered to.
The case concerned non-compliance with this obligation by the husband. The applicant wife appealed against the property orders on the basis of a number of appealable errors, including the husband’s consistent failure to comply with his duty to provide full and frank disclosure of his financial circumstances. These errors ultimately produced a set of orders that were manifestly unfair to the wife and therefore prompted her appeal.
The wife was successful in her appeal and the husband’s failure to comply with his obligation ultimately positioned him as somebody who lacked credibility and furthermore, turned on its head an outcome which may have been deserved in his favour, but for his lack of adherence to this obligation.
Wallis & Manning (2017)
The Full Court in this 2017 case approached the issue of assessing significant contributions made by both of the parties at the commencement of a long marriage.
In so doing, the Full Court analysed a number of cases in order to compare significant factors including the nature and length of the relationship, the nature and characteristics of the contributions made by the parties, and the timing of the contributions.
While recognising that no two cases nor their factual matrixes are the same, the Full Court held in this case that the comparison of like cases should be utilised more widely to assess contributions pursuant to section 79 of the Family Law Act, especially in light of the highly discretionary Family Law jurisdiction.
The full Court allowed the appeal and provided an opportunity for the parties to provide further submissions, and to re-exercise its discretion. It considered in detail a number of comparable cases referred to by the parties and others with similar facts and circumstances.
Stay tuned to see what 2018 brings for Family Law. We will be investigating the trailblazing cases of 2018 as they emerge and we look forward to sharing them with you.
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