Category: Separation

In January 2018, the Family Court of Australia held in the matter of Sigley and Sigley [2018] FamCA 3 (10 January 2018) that Australian parents who had entered into a commercial surrogacy agreement in the USA, could register the American Court Order which gave them parenting rights over their child in an Australian Court.

The Applicants in this case were seeking to register Orders made by a Court in the United States of America. The Applicants were the biological parents of twin daughters however, the children were born as a result of a surrogacy agreement between the Applicants and a “gestational carrier”.

The Applicants are both Australian citizens, originally from Victoria. They met and married in the United States in 2015 and continue to reside there.

The Applicant Mother suffers from a medical condition which prevents her from carrying a baby through pregnancy to full-term. As such, the Applicants’ twin daughters were conceived through assisted reproductive technology by the in vitro fertilisation of the Applicant Mother’s ova using the Applicant Father’s sperm, and with the help of another woman into whose womb the embryos were transferred. The children were born in 2017.

The birth of the twins was facilitated in the United States (the State is not identified on the Court record for privacy reasons) through what the Applicants concede was a “commercial” surrogacy agreement between the Applicants and the woman who carried the baby through gestation to birth. A copy of this “commercial” gestational surrogacy agreement was adduced in evidence. It provides for payments by the Applicants to the gestational carrier at various stages during the pregnancy for various things, but it describes them as “reimbursement for pregnancy-related expenses.” It expressly states that the agreement is “not an agreement for payment for the children or payment for the relinquishment of parental rights to the children.” Nevertheless, the Judge observed that the Applicants and their solicitors describe the surrogacy agreement as a “commercial” one.

A key consideration for the Judge in this matter was whether the overseas child Order that came into existence as a consequence of a “commercial” surrogacy agreement might have difficulty attracting the favourable exercise of jurisdiction to register it in an Australian Court for public policy reasons. These include the fact that in Queensland, New South Wales and the Australian Capital Territory, to enter into “commercial” surrogacy arrangements abroad by persons ordinarily resident in those jurisdictions is a criminal offence.

In his reasons for judgment, the Judge identified that the Applicants reside in the USA and not one of those jurisdictions. He noted that whilst they intend to return to live in Australia sometime in the future, it is not to one of the three jurisdictions mentioned above, but rather the State of Victoria. The Applicants had entered into a “commercial” surrogacy agreement and they sought the registration by the Family Court in Australia of an American Court Order that gives them the parenting rights over their child. If they were residents of Queensland, New South Wales or the Australian Capital Territory, they would have, prima facie, committed a criminal offence.

However, as the solicitor for the Applicants pointed out in his submissions, Victoria allows intended parents to enter into “commercial” surrogacy arrangements overseas and has not sought to criminalise such behaviour. Entry by the Applicants into the “commercial” surrogacy agreement was lawful in the USA, particularly in the state where the twins were conceived.  In addition, the Australian government has not determined to criminalise entry by Australian citizens or residents into commercial surrogacy agreements overseas as, arguably, it could do.

The judge decided that the commercial nature of the surrogacy agreement alone in this particular case should not determine the exercise of discretion against the Applicants.

The judge was satisfied that the Order made in the American Court should be registered in Australia.

If you have recently separated or have a Family Law enquiry, please contact us on 94370010 or enquiries@familylawyersdw.com.au to discuss in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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.

Bondelmonte (2017)

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.

Surridge (2017)

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.

We provide clear advice about protecting your family law interests in both complex and simple matters. Conveniently located in St Leonards on Sydney’s North Shore, we are within easy walking distance of the train station. Please contact us to find out more or speak to one of our lawyers on (02) 9437 0010 or email enquiries@familylawyersdw.com.au

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Are you thinking of separating? Do you want to ensure common sense prevails through your separation and that legal fees are only incurred where necessary? Are you concerned you will dissipate significant assets just by stepping into a family lawyer’s office?

In a decision handed down in the Family Court on 11 December 2017 the presiding Judge criticised the collective costs incurred by the husband and wife of $860,000 in their parenting and property proceedings labelling them “outrageous”.

Justice Benjamin explained in his decision in Simic & Norton 2017 FamCA (11 December 2017) that he has “observed what seems to be a culture of bitter, adversarial and highly aggressive family law litigation” and made specific reference to the responsibility of lawyers acting in these matters to ensure that the action taken by them is a “fair, reasonable, competent and proportional professional service”.

Given that the collective legal fees incurred were close to $1,000,000, His Honour said that in this case, investigation was warranted.

As family lawyers, we work with people who are usually in a situation they do not want to be in or have not foreseen. Separation is out of our client’s control, and clients can find themselves lumped into a complicated process which they are not at all familiar with. Family lawyers are in a unique position to assist people with disputes that could not otherwise resolve because of our particular knowledge, skill set and problem solving abilities. Given the nature of the territory, family lawyers are in a position of responsibility that they must take very seriously.

While family law litigation is sometimes necessary, there are many strategies family lawyers (and their clients) can utilise in order to avoid unnecessarily entering into Court proceedings, or minimising costs once Court has commenced. A couple of the options are the following:

Mediation

Mediation is an opportunity for the parties to discuss options for settlement with the benefit of an independent third party who can both facilitate discussions and provide reality testing for what could happen in that particular case. In specific cases, the parties may agree to an evaluative process whereby the mediator gives an opinion as to the merits of each party’s arguments and potentially a view on the likely outcome.

Ordinarily, the parties each attend a mediation with their respective lawyers. Mediation can be very effective for parties who do not wish to engage with the Court process but have particular important issues that require discussion and legal intervention. For example, the particulars of how property can be divided, mechanics of complicated orders required and or specific needs or requirements that must be considered for the best interests of the parties children to be provided for.

Mediation can occur in “shuttle” form where the parties would prefer not to be in the same room as one another and the mediator simply moves between two rooms and facilitates the conversation.

One mediation session can explore many issues during the allocated time. By contrast if the same issues were only dealt with via legal letters, both parties would incur significant fees and may not reach a result.

The costs of a mediator can be shared equally, or paid by one party or the other.

Roundtable Conference

Roundtable Conferences are a discussion between the parties along with their lawyers.

Roundtable Conferences suit particular matters, one example would be where the parties have a modest asset pool or, where there are defined disputes between the parties that do not necessarily require an independent party to resolve.

One of the benefits of a Roundtable Conference is that it is relatively low cost as the parties do not need to pay the costs of a mediator.

While Mediation and Roundtable Conference are two good examples of ways to minimise legal costs in a family law matter, in some cases, neither of these approaches will be appropriate. The best action for a particular case will always be to determine the strategy having regard to the specific facts, the means and attitudes of the parties and their respective representatives.

Irrespective of how much money is involved in a dispute, people (rightly so) have things they would much rather prioritise spending their money on than legal fees. I am sure the parties in Simic & Norton would happily receive their $860,000 back into their bank accounts.

Doolan Wagner Family Lawyers dedicated team works with their clients and undertakes a genuine cost benefit analysis of each possible approach to their matter when providing family law advice. If you wish to reach the best outcome for your particular matter having regard to your budget, we encourage you to contact us to discuss your matter today.

Doolan Wagner Family Lawyers is located in St Leonards on the North Shore of Sydney and are just a short walk from St Leonards Train Station and the Crows Nest shops. Doolan Wagner Family Lawyers service clients all over the Sydney Metropolitan and Northern Beaches areas. Call us today on 94370010 or enquiries@familylawyersdw.com.au

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Have you recently separated? Are you concerned that your former spouse might be concealing information from you? Are you eager to progress a timely settlement of your matter?

If so then continue reading as the below information is likely to be of great assistance to you.

Anton Pillar Orders or ‘search orders’ (as they are more widely recognized) are gaining increasing traction in Family Law.

What is an Anton Pillar Order?

An Anton Pillar Order is the result of an Application to the Court, typically made on an urgent, ‘ex parte’ basis i.e. in the absence of and without notice to the recipient. The Order, if made, is designed to preserve important evidence pending the hearing of the Applicant’s case, for example, where the Court deems that there is a significant risk that such evidence might otherwise be tampered with or destroyed. An Anton Pillar Order compels the recipient of the Order to permit specified persons comprising the ‘search party’ to enter the recipient’s home or business premises to search, inspect, copy and remove the items described in the Anton Pillar Order.

An Anton Pillar Order is considered an extraordinary remedy given its highly disruptive and intrusive nature.

Why do they arise in Family Law Matters?

1. Financial matters.Family Law solicitors attempting to progress a property matter may encounter a ‘stalemate’ when their opposing party is not forthcoming with disclosing documents in relation to their financial circumstances. Issuing a subpoena to compel the production of such documents is the first port of call. There are, however, increasing incidents of non-compliance in relation to subpoenas. This is especially the case in complex financial matters where third parties are involved. For an Anton Pillar Order to be justified, it would have to be proved that the sought-after documents are at risk of being imminently destroyed, thereby creating the need to ‘catch-out’ the recipient of the order.
2. Parenting matters where there is an allegation of risk.In parenting matters where there are very serious allegations of risk, the Family Court may waive a person’s right to privacy so that harmful or illegal material may be seized in order to protect the best interests of a child. This may assist the Court to determine necessary conditions for a parent to communicate and spend time with a child. It is however imperative that when carrying out a search order not only the objectives of the order are met. Of equal importance is keeping the potential for disruption or damage to the recipient to a minimum and similarly, avoiding a breach of the Court’s processes. For example, the search party must include an Independent Lawyer who will supervise the search (and the Applicant’s solicitors) in addition to explaining the terms of the order to the recipient and making them aware of their rights in relation to the order.

If you would like advice in relation to the above information or assistance in relation to your separation, please contact us on 94370010 or enquiries@familylawyersdw.com.au to discuss in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.