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Court upholds islander practice to give up baby

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family-courtTHE Family Court has formally recognised the decision of a Torres Strait Islander couple to give their newborn baby away to an infertile couple in accordance with a traditional child rearing practice.

Under the practice of ”Kupai Omasker”, Torres Strait Islander children can be given to other members of the community for a range of reasons, including the maintenance of family inheritance rights, and more equal distribution of the sexes among families.

In a special hearing last month on Thursday Island, the Family Court heard that a child – referred to as A – had been given to another couple unable to have children of their own.

Justice Gary Watts made a formal order under the Family Law Act that A was to live with the new couple and, in accordance with traditional practice, have no contact with her biological parents other than the occasional social function.

The court heard that A’s biological mother and her new mother were ”akin to sisters” and had talked on a number of occasions about how the latter was having difficulty getting pregnant because of her partner’s low sperm count.

On one occasion the first woman asked: ”If I am pregnant would you want the baby?”

When she became pregnant, A’s biological mother approached her friend and offered her the baby.

The woman accepted the offer on the condition that her friend refrain from drinking, smoking or catching planes during her pregnancy.

”During the pregnancy [the biological mother] kept telling her friend the baby was hers,” Justice Watts said in his judgment on the matter, published yesterday on the NSW Caselaw website.

”She stopped her partner from rubbing her stomach and talking to the baby, telling him that it belonged to [the other couple] …”

A’s non-biological mother attended the unborn baby’s scans and the birth itself, and neither biological parent held or kissed A when she was born. A then left with her new parents.

However, they had a shock three days later when A contracted meningitis, a condition which nearly claimed her life.

After an extended period in hospital, A recovered and was said to now be ”developing well”.

A’s biological mother told the court she believed her friends would be good parents and she said she felt ”really happy” about them getting formal recognition from the court.

Paul Bibby

Source

Mega-rich divorcees in court squabble over loose change

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family-court-gavelYOU can be forgiven for misplacing the odd $70,000 when more than $151 million is at stake.

Having split the family’s $151,037,015 wealth with his ex-wife, a mega-rich businessman realised he had overpaid her and went to the Family Court to get his money back.

After 47 years of marriage, the couple, both 71, were given a serve by the judge because never mind the disputed $69,995, they couldn’t even work out for themselves how the husband could get his personal bits and pieces out of their former home.

“It is sad if the (couple) can’t work out the delivery of those personal items,” Justice Paul Cronin said. “The whole argument did little credit to the (couple) after their many years of marriage and accrued wealth.”

Then there is the artwork the husband wants but it is built into the architect-designer matrimonial home, in which the wife lives by court order.

The couple separated in 2006 and are now divorced.

Their wealth grew from shrewd investments, property development and inheritances and was settled two years ago by the Family Court when the husband got 53.3 per cent – $80,502,729.

Most of the estate has now been split up with the husband at one stage paying $43,496,041 into the wife’s bank account.

But the Family Court was told that he wants $69,995 back. The wife agreed and it was signed off by the court.

Reference

Court told parents pressured man to wed

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annulmentA MAN has asked for his 72-hour marriage to be annulled because he was pressured into it by his parents.

The husband, 27, claimed he had to follow his parents wishes and they told him their health would suffer if he did not.

He told the Family Court he “succumbed to pressure from his parents to obtain permanent residency in Australia and because his religious and cultural obligations obliged him to do what his parents wanted”.

The man claimed he was married under duress and the psychological manipulation of his family.

The court heard he met his wife while studying in Australia on a student visa in 2007.

He applied for permanent residency but was rejected in 2009.

The couple broke up and he returned to Indonesia for a few months, during which time the girlfriend travelled there and they reunited.

The court heard an appeal to the Migration Review Tribunal failed and he was told unless he applied for a partner visa he would have to stay in Indonesia.

In January 2011 he was granted a prospective marriage visa and travelled to Sydney, where he married the Australian woman in March 2011.

The court heard the couple separated three days later and the husband went home when his visa expired last October.

The wife agreed to the annulment, but Justice Judith Rees said the woman’s consent was not enough.

Justice Rees rejected the husband’s application, saying a nullity could not be issued lightly and there was no admissible evidence of the level or type of pressure exerted on the husband by his parents.

Wife gets payout order years after separation

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superannuationA WIFE should pay her estranged husband about $25,000 more than seven years after the couple separated and reached an informal property settlement, a court has ruled.

Their situation had changed since the agreement, and it would be unjust to hold them to it, even though the husband had been violent and had spent considerable amounts of money on alcohol, drugs and gambling, the Federal Court magistrate Philip Burchardt said.

The Melbourne couple, who cannot be named, had been married for more than 20 years and had four children under 20 when they separated in 2004. They have not been divorced.

The wife, known as Mrs Dixon, told the court they had agreed she would remain in the mortgaged matrimonial home with the children, while he kept an investment property, a car, and his larger superannuation.

Even though her husband denied such a deal had existed, the magistrate – who described the wife as an ”excellent witness … and transparently honest” – said he had no doubt they had come to the agreement Mrs Dixon had described.

Both sides had considered it a fair agreement at the time and ”as a matter of very superficial impression” it would have been appropriate, he said.

But, Mr Dixon’s life ”went into something of a tailspin” after the separation, the court heard. He had drunk six to 12 stubbies a night and smoked cannabis almost daily during the couple’s marriage, but this increased after their separation, when he also started to gamble.

Mr Dixon, now 53, also lost his job and ”conducted his affairs so inefficiently and negligently that he was made bankrupt”.

His health worsened, he is an invalid pensioner and rents accommodation cheaply.

Lawyers for Mrs Dixon, 52, strongly argued the 2004 agreement should stand, even though it had not been formalised.

But Magistrate Burchardt said: ”Their positions have changed radically since then. The parties simply did not foresee the very unfortunate march of events that has transpired and to hold them to their bargain as a matter of justice and equity at this stage would plainly be unconscionable.”

A family law barrister Grahame Richardson, SC, said a 12-month time limit applied to property claims only after divorce. In cases where parties had separated, ”the court’s hands aren’t tied by anything the parties [agreed] informally”, he said.

Geesche Jacobsen

Reference

Father banned from asking daughter about school

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school report cardA NSW father has been ordered by the Family Court not to ask his daughter about her school reports or force her to eat meals.

The order was made following a dispute between the divorced parents of a 13-year-old intellectually disabled girl and an 11-year-old boy, the Daily Telegraph reports.

The mother alleged the father was in denial about their daughter’s disability and he was damaging her self-esteem by interrogating her about her school results in front of her brother.

She also told the court the father forced the children to eat and would yell at them if they did not want to.

The court heard the father, who has spent time in jail for kidnapping a child from another relationship and suffers from bipolar disorder, already had to be supervised by his mother or ex-wife’s mother while spending time with the children.

In the judgement published last week, Family Court Justice Stuart Fowler ordered that the father be allowed access to the girl’s school reports but not discuss them with his daughter.

He also ordered the father not to force the children to eat, abuse them, physically discipline them, insist they do tasks beyond their abilities or smoke or drink in front of them.

The father is appealing the judgement.

Wife’s AIDS lie ‘doesn’t violate marriage consent’

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deceitA MAN whose bride did not tell him she had AIDS has lost a battle to have his marriage declared void.

The court case is believed to be the first of its kind in Australia.

A court heard that the wife, in her 30s, was diagnosed with AIDS in 2006.

The husband, in his 50s, said that if he had known she had AIDS he never would have married her the following year.

The wife filed for divorce last year but the husband asked the court to dismiss the application and grant a decree of nullity “on the ground of fraud”.

It was revealed he wanted a decree of nullity rather than having the marriage dissolved because he believed it would mean the wife would not be able to pursue him for a property settlement.

The Full Court of the Family Court of Australia last week rejected the man’s bid.

It also said the husband was mistaken in his view there could be no property settlement if the marriage was found to be void.

The husband claimed the case was the first where a court had been asked to consider an application for nullity on the basis that one of the parties had failed to disclose they suffered from a communicable disease that could lead to the death of the other party.

It is not known if the husband contracted the AIDS virus.

Slater & Gordon family law expert Ian Shann said the moral of the case was simple: “Check out people’s stories before you marry them.”

Had the man been successful it would have opened Pandora’s Box, Mr Shann said.

“I don’t think there’s much difference between lying about your health or lying about your financial circumstances or lying about your financial intentions,” he said.

A lower court dismissed the husband’s application for a decree of nullity last year and he lodged his appeal in the Full Court of the Family Court.

The Marriage Act says a marriage is void in the event that “the consent of either of the parties is not a real consent because … it was obtained by … fraud”.

The Full Court said the wife’s failure to inform the husband of her condition “did not vitiate the husband’s consent to marriage”.

In the earlier judgment, a judge said there was no question the husband married the woman he thought he was marrying and the parties went through what they knew to be a valid marriage ceremony.

Mr Shann said grounds for getting a decree of nullity included bigamy, being too young to be married, being in a phony marriage, being pressured into a marriage and a case of fraud, such as mistaken identity.

“This particular case did not fall within any of those circumstances, although the wife clearly lied and although the husband was clearly placed in a precarious position because of the lie,” Mr Shann said.

The wife did not participate in the hearing.

Inquiry ousts overseas parent kidnap law

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ken-thompson-child-abductionTHERE should not be a specific criminal offence for a parent who kidnaps their child and takes them overseas, a Senate inquiry has recommended.

The Senate Legal and Constitutional Affairs committee has been investigating international parental child abduction to and from Australia.

In a report tabled to the Senate yesterday, the committee recommended it was not necessary for a new criminal offence to be created.

Committee chair Liberal senator Gary Humphries told the Senate yesterday afternoon all though the practice of international parental child kidnapping should be discouraged it was “not helpful” to have a stand alone offence.

“To criminalise too readily an abducting parent runs the risk of making it more difficult for abducted children to be returned home,” he said.

He said the committee was reassured the Australian Federal Police and state police had adequate powers to prevent abductions happening.

The inquiry recommended the government should improve public awareness of existing offences in the Family Law Act and maintain a “watching brief” on the issue.

It recommended setting up a website with information for parents.

International parental child abduction screening and risk-assessment processes should be part of the family law system, the report recommended

Reasons for international parent child abduction to and from Australia included a wish to control the cultural upbringing of the child, fear of loss of relationship, frustration with parenting arrangements or desire to escape family violence.

The inquiry heard evidence from Ken Thompson whose story made headlines after he cycled 6500km around Europe in a bid to find his son, leading to a tip-off that the youngster was in the Netherlands.

Mr Thompson, whose son was taken in 2008 and returned this year, said the AFP often had its hands tied, and prevented from acting without the consent of the signatory country.

The former NSW deputy fire chief said the system was full of holes and provided inadequate protection.

Spending up to $100,000 was not unusual, and parents sometimes had to fight for financial assistance or even to halt child support payments.

Teenager says marriage a ‘sham for visa’

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marriage-annulmentA TEENAGER who claims her Indian husband only married her so he could get Australian citizenship has failed to have the marriage declared null and void.

The 19-year-old said her 23-year-old boyfriend had overstayed his Australian visa when the pair married in Sydney in May last year.

She admits she entered the marriage willingly and consummated the relationship because she loved her new husband.

But she claims to have later realised he was “using her” to obtain Australian citizenship.

The pair separated in January this year after the relationship broke down and the man returned to India because the teenager refused to continue sponsoring his visa.

In applying to have the marriage declared void, the woman told the Family Court that since leaving the country her husband had telephoned her, threatened her and asked her to maintain a “paper marriage” so he could obtain Australian citizenship.

She based her application for the marriage to be declared void on several grounds including a claim that her husband had not given “real consent” to the marriage because he was influenced by his desire to obtain Australian citizenship.

In dismissing the application Justice Peter Young ruled that none of the issues raised by the teenager were grounds to declare the marriage void.

He was not convinced the husband had been adequately notified about the court proceedings and therefore had not been given a chance to respond to the wife’s claims.

“In any event, even if I did accept the (wife’s) unchallenged evidence, she has not established any of the grounds for a decree of nullity of marriage,” he said.

Divorced couples share custody of pets

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pet-custodyMORE divorced couples are going to war over their pets and organising custody agreements.

Experts say the trend is most common in separating partners without children and, as four-legged friends take on an increasingly important role in family life, guardianship after a break-up is more hotly contested.

Tindall Gask Bentley partner and family-law specialist Jane Miller said pets usually entered divorce negotiations when property agreements were being discussed.

These included one client who settled for $10,000 less from her ex-husband to keep the couple’s two dogs.

“People are reaching formal agreements that the pet may live with one person once a week and the other another week, or doing quite a big trade-off so they can keep a pet,” Ms Miller said.

“It’s usually something that’s done outside of court.”

Ms Miller said while there were instances in which litigation had been sought in the Family Court to decide who should own a pet, it was not common. “The court is normally frustrated with people bringing these matters up – they deal with child abuse and domestic violence, serious issues to tackle,” she said.

Australian Association of Relationship Counsellors SA president Krys Noah agreed more parting couples were drawing up their own custody arrangements for pets and it was an agonising topic for many. “There’s absolutely no doubt it’s happening; couples usually try to negotiate what I’d call visitation rights, like a child,” she said.

“I don’t think the relationship with pets has been as strong in the past and, even if a partner has a tendency to be violent, a woman in particular might choose to stay in that relationship to make sure the dog is OK.”

Ms Noah said it was more common for arguments to ensue over a dog and, if children were involved, the pets usually went wherever they did to help them cope with the split.

Farm animals kept on hobby farms had also been dragged into disputes, Ms Miller said.

At the Animal Welfare League, about 30 per cent of the 20,000 cats and dogs handed to the Wingfield shelter each year, including two-year-old kelpie Lava, are given away because a couple have split.

“It (a separation) often results in one or both people moving out of the home, and finding a rental property that allows pets can be hard,” the organisation’s animal care manager, Leanne Page, said.