Judiciary
Court or Tribunal: Family Court of Australia
Catchwords: Allegations of Child Abuse, Child Abuse, Complaint against ICL, Emotional Abuse, False Allegations of Child Abuse, Falsified Documents, Risk of Psychological Harm, Sole Parental Responsibility, Unacceptable Risk, Unsubstantiated Allegations
Judges: Rees J
Background: The parents separated in January 2009 when the children were three and eight weeks old, respectively. The mother moved away from the matrimonial home with the children, who lived with her. This case has a signification history of litigation since then, culminating into these proceedings. In this case, the mother has made serious allegations of child sexual abuse by the father against a child of the marriage. As a result she has requested that the children live with her and that any time that the children spend with the father be supervised. After investigation, the allegations were deemed to be 'false'. The family report went so far as to recommend that the children be 'immediately' removed from the mother's care because of her unrepentant beliefs that the father was a paedophile
[Legal Issue]This case hinged on whether the allegations made by the mother that the father had sexually abused the child or children of the marriage were reliable and plausible to the extent that they would raise the issue of "unacceptable risk".
The family courts responsibility is not to determine whether child sexual abuse did or did not occur, unlike the criminal courts. However when faced with an allegation of child sexual abuse, it refers to the standard of proof of "unacceptable risk".
[Court Orders]-That X (“X”) born ... 2005 and Y (“Y”) born ... 2008 (“the children”) live with their father, Mr Rowe (“the father”).
-That the father have sole parental responsibility for the children.
-That the father inform Ms Helbig (“the mother”) in writing (including by email or text message) as soon as practical of any specialist medical appointments for either of the children with any medical consultant.
-That the father do all acts and things to ensure that the mother is provide
Catchwords: Allegations of Child Abuse, Child Abuse, Complaint against ICL, Emotional Abuse, False Allegations of Child Abuse, Falsified Documents, Risk of Psychological Harm, Sole Parental Responsibility, Unacceptable Risk, Unsubstantiated Allegations
Judges: Rees J
Background: The parents separated in January 2009 when the children were three and eight weeks old, respectively. The mother moved away from the matrimonial home with the children, who lived with her. This case has a signification history of litigation since then, culminating into these proceedings. In this case, the mother has made serious allegations of child sexual abuse by the father against a child of the marriage. As a result she has requested that the children live with her and that any time that the children spend with the father be supervised. After investigation, the allegations were deemed to be 'false'. The family report went so far as to recommend that the children be 'immediately' removed from the mother's care because of her unrepentant beliefs that the father was a paedophile
[Legal Issue]This case hinged on whether the allegations made by the mother that the father had sexually abused the child or children of the marriage were reliable and plausible to the extent that they would raise the issue of "unacceptable risk".
The family courts responsibility is not to determine whether child sexual abuse did or did not occur, unlike the criminal courts. However when faced with an allegation of child sexual abuse, it refers to the standard of proof of "unacceptable risk".
[Court Orders]-That X (“X”) born ... 2005 and Y (“Y”) born ... 2008 (“the children”) live with their father, Mr Rowe (“the father”).
-That the father have sole parental responsibility for the children.
-That the father inform Ms Helbig (“the mother”) in writing (including by email or text message) as soon as practical of any specialist medical appointments for either of the children with any medical consultant.
-That the father do all acts and things to ensure that the mother is provide
Court or Tribunal: Full Court of the Family Court of Australia
Catchwords: Appeal, Child Support, Departure Determination
Judges: May JStrickland JThackray CJ
Background: The appellant father in this case sought a review of a child support departure determination and a subsequent Social Security Appeals Tribunal decision which both determined an increased taxable income for child support purposes. The father’s appeal to the Federal Circuit Court on this matter was dismissed and the father now seeks to appeal that decision.
[Legal Issue]This was an application for leave to appeal from the dismissal of an appeal from the Social Security Appeals Tribunal which increased the appellant’s taxable income for child support purposes. The application was dismissed with costs. In its judgment, the court analysed and determined a number of significant questions of law arising out of the interpretation of the Child Support (Assessment) Act 1989 (Cth) which would be of interest to family law specialists.
[Court Orders]The appeal application was dismissed. The Court found no error in law by failing to refer to s 117(7A) of the Child Support (Assessment) Act 1989 (Cth).
No issue of procedural fairness arises – Application for leave to appeal dismissed – Appellant father ordered to pay costs.
Catchwords: Appeal, Child Support, Departure Determination
Judges: May JStrickland JThackray CJ
Background: The appellant father in this case sought a review of a child support departure determination and a subsequent Social Security Appeals Tribunal decision which both determined an increased taxable income for child support purposes. The father’s appeal to the Federal Circuit Court on this matter was dismissed and the father now seeks to appeal that decision.
[Legal Issue]This was an application for leave to appeal from the dismissal of an appeal from the Social Security Appeals Tribunal which increased the appellant’s taxable income for child support purposes. The application was dismissed with costs. In its judgment, the court analysed and determined a number of significant questions of law arising out of the interpretation of the Child Support (Assessment) Act 1989 (Cth) which would be of interest to family law specialists.
[Court Orders]The appeal application was dismissed. The Court found no error in law by failing to refer to s 117(7A) of the Child Support (Assessment) Act 1989 (Cth).
No issue of procedural fairness arises – Application for leave to appeal dismissed – Appellant father ordered to pay costs.
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: Family Court of Australia
Catchwords: Allegations of Child Abuse, Discretion to Admit Evidence, Emotional Abuse, Recorded conversations
Judges: Hannam J
Background: The mother is 42 years old 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 alleged child abuse. To support his case, the father has submitted transcripts of recorded conversations between himself and the mother. These recordings were made covertly, without the knowledge of the mother.
[Legal Issue]At issue is the admissibility of transcripts of covertly recorded conversations made by the father, alleged to have captured various unguarded conversations between the mother and the father.
The mother objected to the admission of the transcripts of audio recordings on the basis that the evidence was unlawfully obtained and was inadmissible.
Both the father and the Independent Children’s Lawyer sought to have the evidence admitted and argued that even if it were prima facie inadmissible the court should exercise its discretion to admit it.
[Court Orders]The evidence, which refers to transcripts of recorded conversations in the father's affidavit in paragraphs 25, 128 to 150 and 235 filed on 23 September 2014, is admissible.
Catchwords: Allegations of Child Abuse, Discretion to Admit Evidence, Emotional Abuse, Recorded conversations
Judges: Hannam J
Background: The mother is 42 years old 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 alleged child abuse. To support his case, the father has submitted transcripts of recorded conversations between himself and the mother. These recordings were made covertly, without the knowledge of the mother.
[Legal Issue]At issue is the admissibility of transcripts of covertly recorded conversations made by the father, alleged to have captured various unguarded conversations between the mother and the father.
The mother objected to the admission of the transcripts of audio recordings on the basis that the evidence was unlawfully obtained and was inadmissible.
Both the father and the Independent Children’s Lawyer sought to have the evidence admitted and argued that even if it were prima facie inadmissible the court should exercise its discretion to admit it.
[Court Orders]The evidence, which refers to transcripts of recorded conversations in the father's affidavit in paragraphs 25, 128 to 150 and 235 filed on 23 September 2014, is admissible.
Court or Tribunal: Supreme Court of Queensland
Catchwords: Estate Planning, Estoppel by Conduct, Family Provision, Family Provision, Family Trust, Family Trust, High Value Estates, Large Estate, Requirement of Adequate Maintenance, Succession, Succession, Wills
Judges: Martin J
Background: Steven Darveniza, the eldest son of Bojan Darveniza, took his father’s widow to the Supreme Court to get a share of the estate, claiming he had worked for his father for many years. Bojan Darveniza died in 2010, aged 78, leaving most of his estate to his second wife, Xiao Hong Darveniza, now known as Jane, who was 30 years younger than him. Multi-millionaire Bojan Darveniza was a hardworking, astute investor with a talent for turning run-down properties into rental goldmines, amassing a fortune. But to his older children, Bojan was a tyrant who ruled them with an iron rod, making them work hard in the family business after school and on weekends. Bojan had eight children – Steven and Tania with first wife Lindsay; Natasha, Jonathon and Andrea with his ex-housekeeper de fact
[Legal Issue]This case involves an examination of the familial and financial relationships of the Darveniza family. Steven Darveniza has brought two matters before the Court. In the first he seeks an order for provision (pursuant to s 41 of the Succession Act 1981) from the estate of his deceased father, Bojan Darveniza (“the provision claim”). In the second, he seeks declarations about, and transfers of interests in, a number of family companies (“the trust claim”). He also seeks damages pursuant to s 82 of the Trade Practices Act 1974 and consequential orders (“the company claim”).
[Court Orders]Bojan’s personal estate was worth $40 million at the time of his death, but the net value was now between $26 and $28 million, the court heard.
Justice Martin said Steven deserved better provision from his father’s very large estate because he had worked long and hard for Bojan, contributing to the growth of his property interests.
Two reasons for his father not providing for him in his will were misconceived or based on a misunderstanding, the judge said.
He also accepted Steven co
Catchwords: Estate Planning, Estoppel by Conduct, Family Provision, Family Provision, Family Trust, Family Trust, High Value Estates, Large Estate, Requirement of Adequate Maintenance, Succession, Succession, Wills
Judges: Martin J
Background: Steven Darveniza, the eldest son of Bojan Darveniza, took his father’s widow to the Supreme Court to get a share of the estate, claiming he had worked for his father for many years. Bojan Darveniza died in 2010, aged 78, leaving most of his estate to his second wife, Xiao Hong Darveniza, now known as Jane, who was 30 years younger than him. Multi-millionaire Bojan Darveniza was a hardworking, astute investor with a talent for turning run-down properties into rental goldmines, amassing a fortune. But to his older children, Bojan was a tyrant who ruled them with an iron rod, making them work hard in the family business after school and on weekends. Bojan had eight children – Steven and Tania with first wife Lindsay; Natasha, Jonathon and Andrea with his ex-housekeeper de fact
[Legal Issue]This case involves an examination of the familial and financial relationships of the Darveniza family. Steven Darveniza has brought two matters before the Court. In the first he seeks an order for provision (pursuant to s 41 of the Succession Act 1981) from the estate of his deceased father, Bojan Darveniza (“the provision claim”). In the second, he seeks declarations about, and transfers of interests in, a number of family companies (“the trust claim”). He also seeks damages pursuant to s 82 of the Trade Practices Act 1974 and consequential orders (“the company claim”).
[Court Orders]Bojan’s personal estate was worth $40 million at the time of his death, but the net value was now between $26 and $28 million, the court heard.
Justice Martin said Steven deserved better provision from his father’s very large estate because he had worked long and hard for Bojan, contributing to the growth of his property interests.
Two reasons for his father not providing for him in his will were misconceived or based on a misunderstanding, the judge said.
He also accepted Steven co
Court or Tribunal: Family Court of Australia
Catchwords: Allegations of Child Abuse, Child Abuse, Emotional Abuse, False Allegations of Child Abuse, Parental Disorders, Psychological Disorders, Unacceptable Risk, Unsubstantiated Allegations
Judges: Tree J
Background: Mr & Ms Wylie met and married in 2000, bought and renovated and sold houses in the property boom, travelled and worked through Europe. Their twin girls were born through IVF in 2007, when Mr Wylie was establishing his own small business. They experienced increasing conflicts within their relationship, until Mr Wylie eventually suggested that they should separate. One day soon after, Mr Wylie received a text message from Ms Wylie: “You need to talk to the Department of Child Safety, they’ve got some concerns.” However an assessment determined that there was no evidence of sexual abuse, but there was evidence of emotional abuse, stemming from fabricated allegations by the mother. Ms Wylie also advised that she too was sexually abused as a child.
[Legal Issue]Previous consent orders. Urgent application following almost immediate failure to comply with orders.
Allegations of sexual abuse and violence against the father.
Allegations of manipulative and alienating behaviours against the mother.
Consideration of argument as to admissibility of statements attributable to the mother being made to Department of Communities officers and communicated to police officers – finding of admissibility – consideration of the objects of the Act and principles and application of relevant considerations – consideration of whether the behaviour of one or other of the parties constitutes an “unacceptable risk” to the children – determination on an interim basis that a risk of psychological harm of an unacceptable nature does arise – orders a
[Court Orders]Family Court judge Justice Peter Tree, “after eight days of trial before me of fiercely contested competing parenting applications relating to the parties’ six-year-old twin girls”, ordered that Mr Wylie have sole parental responsibility for the major long-term care of his children and that Ms Wylie ask her GP for referral to a psychiatrist. “I am satisfied, on the material before me, that the concerns which inevitably would otherwise have flowed from the mother’s notice of abuse, have
Catchwords: Allegations of Child Abuse, Child Abuse, Emotional Abuse, False Allegations of Child Abuse, Parental Disorders, Psychological Disorders, Unacceptable Risk, Unsubstantiated Allegations
Judges: Tree J
Background: Mr & Ms Wylie met and married in 2000, bought and renovated and sold houses in the property boom, travelled and worked through Europe. Their twin girls were born through IVF in 2007, when Mr Wylie was establishing his own small business. They experienced increasing conflicts within their relationship, until Mr Wylie eventually suggested that they should separate. One day soon after, Mr Wylie received a text message from Ms Wylie: “You need to talk to the Department of Child Safety, they’ve got some concerns.” However an assessment determined that there was no evidence of sexual abuse, but there was evidence of emotional abuse, stemming from fabricated allegations by the mother. Ms Wylie also advised that she too was sexually abused as a child.
[Legal Issue]Previous consent orders. Urgent application following almost immediate failure to comply with orders.
Allegations of sexual abuse and violence against the father.
Allegations of manipulative and alienating behaviours against the mother.
Consideration of argument as to admissibility of statements attributable to the mother being made to Department of Communities officers and communicated to police officers – finding of admissibility – consideration of the objects of the Act and principles and application of relevant considerations – consideration of whether the behaviour of one or other of the parties constitutes an “unacceptable risk” to the children – determination on an interim basis that a risk of psychological harm of an unacceptable nature does arise – orders a
[Court Orders]Family Court judge Justice Peter Tree, “after eight days of trial before me of fiercely contested competing parenting applications relating to the parties’ six-year-old twin girls”, ordered that Mr Wylie have sole parental responsibility for the major long-term care of his children and that Ms Wylie ask her GP for referral to a psychiatrist. “I am satisfied, on the material before me, that the concerns which inevitably would otherwise have flowed from the mother’s notice of abuse, have
Court or Tribunal: Supreme Court of NSW
Catchwords: Posthumous Sperm Donation, Rights of Executors and Administrators, Sperm Donation, Succession
Judges: R A Hulme J
Background: What right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child? Ms Jocelyn Edwards seeks a declaration that she, as the administrator of the estate of her late husband, Mr Mark Edwards, is entitled to possession of sperm that was extracted from his body shortly after his death. Although there is no direct evidence, the clear and only inference is that she desires to have a child with the aid of assisted reproductive treatment.
[Legal Issue]Ms Edwards argued that, as the administrator of her late husband's estate in relation to the disposal of his body, she has a right to possession of any part thereof and no other party has a superior right.
The Attorney General however argued that there is a right of property, but the right of an executor or administrator to possession of the deceased's body is limited to fulfilling the duty to ensure prompt and decent burial or cremation.
[Court Orders]The Court made the order that Ms Jocelyn Edwards is entitled to possession of the sperm recovered from the body of her late husband, Mr Mark Edwards.
Catchwords: Posthumous Sperm Donation, Rights of Executors and Administrators, Sperm Donation, Succession
Judges: R A Hulme J
Background: What right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child? Ms Jocelyn Edwards seeks a declaration that she, as the administrator of the estate of her late husband, Mr Mark Edwards, is entitled to possession of sperm that was extracted from his body shortly after his death. Although there is no direct evidence, the clear and only inference is that she desires to have a child with the aid of assisted reproductive treatment.
[Legal Issue]Ms Edwards argued that, as the administrator of her late husband's estate in relation to the disposal of his body, she has a right to possession of any part thereof and no other party has a superior right.
The Attorney General however argued that there is a right of property, but the right of an executor or administrator to possession of the deceased's body is limited to fulfilling the duty to ensure prompt and decent burial or cremation.
[Court Orders]The Court made the order that Ms Jocelyn Edwards is entitled to possession of the sperm recovered from the body of her late husband, Mr Mark Edwards.
Court or Tribunal: Supreme Court of South Australia
Catchwords: Blood Transfusions, Cancer, Medical, Parens Patriae, Parental Responsibility, Parental Rights, Religious Beliefs, Special Medical Procedure
Judges: White J
Background: A 10 year-old South Australian boy was suffering from an aggressive form of cancer that doctors feared would spread throughout his entire body if not treated with an intense 39-week regime of chemotherapy and surgery. The speed of that process would not have allow his blood cells time to regenerate, require blood transfusions so that the chemotherapy can continue to be effective. In a statement read to the court, the boy said transfusions carried spiritual consequences. "The doctors have told me I might die and I don't want to - but I don't want blood," he said. "The blood will change me... when you take blood, you are taking someone else's life. "I really don't want this and my heart is ripping apart." On May 10, doctors discovered a tumour in his left leg. The boy co
[Legal Issue]The hospital asked the Supreme Court of South Australia to invoke its power of parens patriae, allowing it to look after those incapable of looking after themselves, in order to rule on behalf of the child in this dilemma between religious beliefs and the very real risk of death if a blood transfusion was not permitted, despite the child's parents objections to the blood transfusion.
[Court Orders]In a South Australian legal first, the Supreme Court gave the Women's and Children's Hospital the right to give a 10-year-old boy - a member of the Jehovah's Witness faith - transfusions as part of his cancer treatment, despite the objections from the boy's family.
The decision, in line with similar rulings from around the world, paves the way for hospitals to take action in future debates with religious parents.
Catchwords: Blood Transfusions, Cancer, Medical, Parens Patriae, Parental Responsibility, Parental Rights, Religious Beliefs, Special Medical Procedure
Judges: White J
Background: A 10 year-old South Australian boy was suffering from an aggressive form of cancer that doctors feared would spread throughout his entire body if not treated with an intense 39-week regime of chemotherapy and surgery. The speed of that process would not have allow his blood cells time to regenerate, require blood transfusions so that the chemotherapy can continue to be effective. In a statement read to the court, the boy said transfusions carried spiritual consequences. "The doctors have told me I might die and I don't want to - but I don't want blood," he said. "The blood will change me... when you take blood, you are taking someone else's life. "I really don't want this and my heart is ripping apart." On May 10, doctors discovered a tumour in his left leg. The boy co
[Legal Issue]The hospital asked the Supreme Court of South Australia to invoke its power of parens patriae, allowing it to look after those incapable of looking after themselves, in order to rule on behalf of the child in this dilemma between religious beliefs and the very real risk of death if a blood transfusion was not permitted, despite the child's parents objections to the blood transfusion.
[Court Orders]In a South Australian legal first, the Supreme Court gave the Women's and Children's Hospital the right to give a 10-year-old boy - a member of the Jehovah's Witness faith - transfusions as part of his cancer treatment, despite the objections from the boy's family.
The decision, in line with similar rulings from around the world, paves the way for hospitals to take action in future debates with religious parents.
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.