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Lesbian divorcees in modern age dispute over embryos

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divorced lesbians fight over embryosA Sydney woman has ordered for the destruction of her ex-wife’s 12 embryos even though she has no genetic link to them, a court has heard.

The couple used IVF to have twins, which were created using the first woman’s eggs, and another child, which was created using the second woman’s eggs.

The first woman and the second, referred to in court documents as Ms B Selkirk, are currently in an ongoing battle to divide their property and determine the custody of their children.

As part of their dispute, the first woman has asked the Family Court to destroy the embryos.

When the couple signed up for IVF treatment they signed a form which stated the embryos would be discarded if they were to break up.

‘It’s horrifying that someone would try to prevent someone else from having children that are not in any way related to them,’ Ms Selkirk told The Australian.

‘I think if people believed they wouldn’t have ultimate control over their genetic material then they might be more hesitant to go through the process.’

Ms Selkirk said new legislation needed to be introduced which gave people more information and control over what could happen to their embryos.

During an interim hearing last year, Ms Selkirk asked the judge to transfer the embryos into her name as they were allegedly put in her ex-wife’s name by mistake.

The judge denied this request and said the destruction of the embryos should be determined in court.

Family lawyer, Stephen Page, said he was told by Australian IVF clinics that battles over who retains the rights to embryos happened regularly but most people did not go to court.

‘But most people aren’t prepared to go to court over it. So then these embryos remain on ice, not being used and not being able to be donated to anyone else,’ he told The Australian.

In 2007, the Family Court of Western Australia ordered the destruction of embryos after a husband and wife separated.

When they signed up for IVF, they stated if they were to divorce the embryos would be destroyed.

The wife wanted to go through with the destruction of the embryos like they agreed, but the husband changed his mind and wanted them retained.

The judge ruled in favour of the wife as the embryos were created for her to get pregnant while they were together, but since they were divorced, they were no longer needed.

IVF win for Vic women split from spouse

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Women separated from their husbands, but not divorced, will no longer have to get their estranged spouse’s permission to access IVF in Victoria.

It follows the advice of an interim report iIVF rightsnto reproductive treatment and a Federal Court ruling in September, which found the current law discriminated against the woman on the basis of her marital status.

“We’re changing the law to reflect contemporary values of our society and ensure that women do have control over their bodies, their futures and their ability to freely access this assisted reproductive technology,” Health Minister Jenny Mikakos told reporters.

The amendments remove the requirement that women need the approval of their former partner to access IVF using their own eggs and donor sperm.

Victorian Assisted Reproductive Treatment Authority chief executive Louise Johnson said there were many women who were missing out on the chance to become a mum because of the current law.

“Only a few weeks ago I had a phone call from one of the clinics, saying one of their patients was considering treatment interstate because she was affected, she was in the process of going through a divorce and wouldn’t be able to have treatment here,” Ms Johnson said.

“For women, time really matters, particularly for women in their late 30s, early 40s. Waiting a year for a divorce proceeding to go through can be the difference between succeeding with treatment or not.”

Changes to the law will be introduced into parliament on Tuesday.

Related Family Law Judgments

Want to save your marriage? Start by taking these steps

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Saving-Your-MarriageTimes are tough. Your relationship is in the emergency room and the last rites are being read. The person you fell in love with has the capacity and the inside knowledge to destroy you. It is time for drastic interventions.

Divorce has few victors. Children suffer. Everyone, almost invariably, loses. There may be exceptions to this but if you can consider avoiding divorce in your life, do it.

This is about the moment when your partner is on the brink of being out the door or is at the point of running you out, and it’s not what you want. Before you connect again we need to build respect, then protect and then re-connect.

First, if you do not want your relationship to end it is likely you are grieving, hurt and sad. Your partner may want to rush things along to a quick separation. For this reason slow the process down, if you can.

People who want to end a relationship abruptly are almost always out of the resilient zone. They are feeling agitated and usually ascribing the reason they feel this way to you. Usually they are in the ‘flight’ mode. Alternatively, they are absent and attributing the reason for feeling deadened to you.

As hard as it is to think about their perspective at this time, it is important. Realise that there is often just as much pain the person wanting to leave. This can be hard to believe, especially if there has been infidelity, and they will often put on the appearance that they are determined to be rid of you. In the dark recesses of their mind, however, a shred of doubt will always linger.

We are going to use that shred of doubt to increase your chances of not getting divorced.

Respect

The first thing to know is that the person you hope beyond hope will care for you and love you is not able to do that for you at the the moment. Even if they don’t show it, they are going through their own turmoil and pain. Most likely they are concealing this and instead directing their anger and blame towards you. You may well think, ‘Well, let them, it’s their fault after all – they’re the person who wants to leave!’

Make sure that the people you vent to or confide in do not make emotional submissions on your behalf.

If you really don’t want to separate and divorce, you need to think clearly and be strategic. This means you may need a lot of support from friends and family as you process your feelings.

First, avoid begging, pleading or cajoling. Make sure that the people you vent to or confide in do not make emotional submissions on your behalf.

 There is a part of you that is probably hurting like hell. There is probably another part that is furious. The fragile part of you that is in pain wants to cling on. However, if you chase your partner they will feel suffocated or hunted and shift to the agitated zone. They will begin to feel trapped and that everything has to happen quickly. Needing to cope with this will switch them into the avoidant zone. It is time to stop giving your partner reason to leave you.
This is going to be very hard, but don’t be put off by the challenge. It may be the best thing you ever do.

Stop discussing the relationship for a time

Trying to reason with or persuade a partner who wants to end a relationship rarely works. It is never just a matter of convincing the other person. You may be distressed and upset. They are also likely to be confused, reactive and defensive. This situation involves a powerful cocktail of emotions.

Stop pursing them

Immediately stop anything that your partner might view as trying to keep them involved. This means stopping: frequent phone calls, texts or emails; loving messages of any kind; begging, pleading; describing all the good times in your relationship; following your partner around; encouraging talk about the future; asking for reassurances; buying them gifts or flowers; planning holidays or trips away together; trying to schedule dates together; the surveillance program – no spying on them, checking their phone or computers or their arrangements.

Stop saying ‘I love you’. Completely stop. Every time you say ‘I love you’, you might be reminding your partner that they might not love you.

Get a life

As shattered as you likely are, get a life. While this is a really big ask, you do need ot act as if you are moving forward with your life. Otherwise, you might as well seek legal advice and draw up the documents.

I expect you are asking yourself, ‘How can I do this when I feel like crap? I can hardly function, it’a  miracle getting out of bed each day, and things are horrible at home.’

Start to treat yourself better. Start doing things that are out of character compared with the way you have been acting lately. Move gently beyond helplessness into action and power.

Edited extract from The Revolutionary Art of Changing Your Heart by Andrew Fuller, published by Hachette Australia on 28 May 2019, $29.99 Trade Paperback.

Dr Andrew Fuller is an Australian clinical psychologist.

Domestic violence perpetrators to be given crisis housing in SA trial

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Crisis-AccommodationSome domestic violence perpetrators will be removed from their family homes under a new scheme by a state government, but experts warn it could leave the victims struggling financially.

The South Australian government last month announced a small trial under which perpetrators will be removed and placed in crisis accommodation, giving victims the option to stay at home.

It is part of a $4 million initiative which will see 40 new crisis accommodation beds rolled out in the state – a small number of which will be for perpetrators.

SA human services minister Michelle Lensink said in announcing the pilot that it would result in less disruption to victims’ lives at an already very traumatic time.

“The trial is also an opportunity to explore what interventions might work as perpetrators will have an opportunity to engage with support services,” she said.

Experts have welcomed the trial but have concerns; not just about the safety risk of a perpetrator returning to the home, but also the victim’s ability to keep the roof over their head.

It is a good idea in theory, says Shelter SA executive director Alice Clark, because it provides stability and continued access to support networks.

But dropping from a dual-income household to one meant victims may be unable to meet rent or mortgage repayments and would need additional financial support.

“It’s like a drop in the bucket,” said Dr Clark. “We see thousands of women going back to violent situations and partners because of [poor] housing affordability.”

She added an increase in public and community housing was crucial to support victims. It was a sentiment echoed by housing consultant Sue Cripps.

“If a woman is left behind in a house with a massive mortgage or rent she’s going to end up homeless herself because she can’t afford it,” Ms Cripps said.

However Ms Cripps sees merit in the approach as long it comes with support services for both victims and perpetrators,

“How many years have we been creating safety for women at refuges and one woman a week is still getting murdered,” Ms Cripps said. “It actually makes you think it’s time for something different, but it has to be in addition, it can’t diminish what is available.”

While many may question providing accommodation for perpetrators, and prefer it if they were just kicked out, Ms Cripps said that would not solve the problem or keep victims safe.

“Just putting them out on the street does nothing to reduce anger and violence,” Ms Cripps said. “You cannot expect people to do the deep therapeutic work if they don’t know where they’re sleeping at night.”

Dr Sarah Wendt, professor of social work at Flinders University, said to seriously tackle domestic violence attention needed to turn to perpetrators, but it could not be at the expense of victims.

“If you think about the resources and intensity of moving women and children around versus one man there is some economic argument for it,” she added.

Dr Sarah Wendt believed that with the right support services a victim could address the housing affordability issue, but warned few perpetrators would move out of their own accord. She added the composition of such crisis accommodation would be crucial in helping perpetrators recover, but they would need more than a few weeks of support.

She said there are a very small number of similar programs in Australia, including Communicare Breathing Space in Western Australia and Room 4 Change in the ACT. There’s also Fixed Address, a new program on the mid-north coast of NSW, which will assist with support services and transitional housing for perpetrators at eight properties.

While no one has been housed yet under the Fixed Address program, Kempsey Families executive officer June Will said requests have come from victims, family members, correction services and the perpetrators themselves. While there has been some community backlash to the housing of perpetrators, Ms Will said that without alternative accommodation, they would simply try to go home.

“This is not about supporting perpetrators because of their violence, it is supporting them to reduce their violence,” she said. “For us it’s about a far greater reduction in risk … and you can provide a range of support for the perpetrator with more success.”

Dr Sarah Wendt warned the sector not to underestimate the potential or risk of this “brave” trial, and said initiatives should be thoroughly evaluated before they were scaled up.

Secret recordings flooding Family Court trials

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secret-recordings-in-family-courtAustralian judges are increasingly being presented with covert recordings of family disputes in Family Court trials. Even though they’re frequently made illegally, that doesn’t necessarily stop then being admitted as evidence.

If you wanted to provide evidence of a family member mistreating you or your child, chances are you might look to your smartphone.

It’s becoming common practice for Family Courts in Australia to be presented with home-recorded audio and video material.

Lawyers estimate more than 30 per cent of family law litigation cases now see parties submit recordings, typically recorded covertly, as prospective evidence to support their arguments.

But when are they actually admissible as evidence? Are they even legal?
In many Australian jurisdictions it’s illegal to surreptitiously record a conversation. In others, secret recordings can be made but it’s illegal to publish or communicate those conversations.

The Chief Justice of the Family Court of Australia, Diana Bryant, says under certain circumstances, such recordings can have significant probative value—that is, provide non-prejudicial evidence that contributes to a trial.

In the 2014 family violence case of Gorman & Huffman, Justice Hannam said she was inclined to allow unlawfully obtained recordings to be admissible as evidence.

Dave (not his real name) was encouraged by police to make recordings of interactions with his ex-wife after she made serious allegations against him, which the Family Court labelled as ‘groundless’.

‘I was advised by a police officer to record any contact,’ he says. ‘”She is out to get you” were the words that were actually said to me.’

He made recordings of his ex-spouse during conversations in front of their children, and used them later in his affidavits. But recordings made by a family member in the aftermath of a dramatic violent event were ultimately deemed inadmissible by the court.

Involving children can be considered ‘problematic’
‘My ex-wife’s partner hit me with a car and stabbed me five times and I was in hospital in a very serious condition,’ Dave says.

‘They were recordings that my sister made when she was arranging for my children to come and see me in the hospital, and that would have certainly given rise to some concerns about the attitude of my ex-wife.

‘They were inadmissible as they were, as the judge put it, illegally obtained.’

Judges are particularly less inclined to allow recordings, surreptitiously recorded or otherwise, that involve children.

Recordings can backfire in eyes of the courts
The executive officer with the New South Wales Women’s Legal Service, Helen Campbell, says the courts have to be extremely wary of recordings involving children in acrimonious high conflict separation disputes. The court tends to believe involving the child in a covert recording is a manipulative situation and is using the child for the furtherance of a dispute between the parents, Campbell says.

In some cases, the judge has said that this lacks insight, and has even gone so far as to say it’s nearly child abuse, to use the child to perpetrate your arguments for you in that way! She says parents can go to extreme lengths to produce recordings involving their children, but it can actually serve to backfire in the eyes of the courts.

‘There was a case where the parent secretly put a recording device in a child’s toy, just for the purpose of recording what was being said at the time of handover,’ she says.

‘I believe that the evidence was admitted, but it was considered negatively against the person who made the recording as well as the person who was recorded. But the judge thought both parties were equally not good.’

Earlier this year, Justice McLennan warned of an ‘opening of the floodgates’ with parents submitting recorded material to the Family Court.

Yet it seems even in instances where recording have been made illegally, judges will continue to grant them serious consideration for admission as evidence if they are deemed to have sufficient probative value.

Related Family Law Judgments

Break-up coaches are exploiting the vulnerable

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break-up-coaches-family-law-expressHas the love of your life broken up with you? It hurts, I know. It’s fantastically painful. You’ve lost your other half, your best friend, the life you thought you’d have. You’d do anything to stop the pain. You’d do anything to get them back.

Well, according to the internet – and a variety of “break up coaches” – you can. You could read the Five Step Plan to Get Your Ex Running Back to You! by dating coach Matthew Hussey, or watch The Number One Secret to Getting Your Ex Back! by Brad Browning. You could go with Kevin, from the website Ex Back Permanently, or get private coaching from online service, The Art of Love.

You will generally begin with a 30 day “no contact” period, to give your ex-partner time to miss you. (The idea that they may be perfectly delighted to be free of your daily phone calls isn’t generally up for discussion.)

When the campaign for reconciliation begins, there are a variety of techniques to try.

Women can use social media to “re-seduce” their ex with enticing pictures of their exercise and travel. Men can use their “emotional masculinity” to “re-attract” their ex whilst at the same time letting the woman “feel like she’s in control”.

None provide statistics on how many clients succeed in “getting their ex back”, or follow up with happy couples who have worked through the techniques.

Of course, many couples do reconcile after a breakup, but it depends largely on the reason for the split.

According to Elisabeth Shaw, CEO of Relationships Australia NSW, many couples separate because they’ve reached a relationship impasse – a destructive conflict cycle, or infidelity, or betrayal. Others end their relationships due to anger, frustration or resentment, rather than a lack of love.

Some couples, however, break up for a simpler reason: one partner has fallen out of love, or feels the relationship has run its course. And in these cases, Shaw tells me, trying to call the other partner back into the relationship is not in your interests, or theirs.

“If you did manage to talk them into coming back it won’t have a great chance of success,” she warns. “It might work for a while if they are lonely or nostalgic, but then you’ll encounter the same problems and break up again.”

So when and how can one get their ex back? What actually works, when there’s still love and hope?

Well, even when there is a possibility of reconciliation, the path lies not in the tricks recommended by the breakup coaches. The path, according to Elisabeth Shaw, is self-reflection and hard work, and, possibly, couples counselling.

Some couples, however, break up for a simpler reason: one partner has fallen out of love, or feels the relationship has run its course. And in these cases, Shaw tells me, trying to call the other partner back into the relationship is not in your interests, or theirs.

“If you did manage to talk them into coming back it won’t have a great chance of success,” she warns. “It might work for a while if they are lonely or nostalgic, but then you’ll encounter the same problems and break up again.”

So when and how can one get their ex back? What actually works, when there’s still love and hope?

Well, even when there is a possibility of reconciliation, the path lies not in the tricks recommended by the breakup coaches. The path, according to Elisabeth Shaw, is self-reflection and hard work, and, possibly, couples counselling.

“Take stock of yourself and your own behaviour,” she advises. “Have a good hard think about why the relationship failed. The only way forward is to do the work and do the relationship differently.”

If you are keen to get your ex back, you will to bring something to the table, not just hollow seduction.

 “It’s not about promising things your partner wants to hear,” Shaw explains. “It’s about working on yourself and making changes.”
Ultimately, however, all the self-improvement in the world won’t work if your ex has shut the door on your relationship. As hard as it is to be rejected, sometimes there is no “getting the ex back”. You can choose to spend hours frantically googling strategies, or you can get on with the process of acceptance and recovery.

Your ex may find their way back to you one day, but it has to be through growth, and not manipulation.

Either way, the solution to the pain of a breakup isn’t to get your ex back. The solution is to get yourself back, and rebuild your life.

 

High Court to decide if a sperm donor can be a parent

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sperm-donor

 

A man who donated his sperm to a lesbian couple so they could have a child will argue in the High Court today that he is legally the girl’s parent and should be able to object to her moving overseas.

A contest over two little girls, the women who raised them and the elder child’s biological father has framed the terms for a High Court showdown over what it means to be a parent.

Robert Masson is trying to block the mother of his biological daughter from moving to New Zealand with her partner and the girls, claiming that his role in their lives has always been larger than that of a “sperm donor”.

“We went away on holiday together and cooked up that we would have a child, and the stipulation from my side of it was ‘I have to be Dad,’ ” Mr Masson said.

“I have to be part of that child’s life because I didn’t know my own father.”

Mr Masson and Susan Parsons (using their court pseudonyms) had been friends for 20 years when they conceived a baby “privately and informally” in December 2006, at a time Ms Parsons was beginning her relationship with her current partner, Margaret Parsons, the Family Court found.

Mr Masson has been involved in the girl’s life since he cut her umbilical cord 12 years ago, which has included overnight visits, attending countless ballet rehearsals – “it takes over your life” – and fostering a close relationship between the girl and his mother. His name is listed on her birth certificate and she and her younger sister, who is not his biological child, both call him “daddy”.

It was not until he took legal action to prevent the women from moving to New Zealand that he saw himself referred to as a “sperm donor”, he said. “Every time I read it I get upset about it.”

The case has implications for hundreds of single women whose children were conceived with known donors and responds to a phenomenon that has outpaced legislation.

Single women make up the largest proportion of women who have undergone artificial insemination with donor sperm.

Under NSW state law, a sperm donor is presumed not to be the father of any child conceived using his sperm unless he is the husband or de facto partner of the mother and the presumption is “irrebuttable”.

But Family Court judges have relied on Commonwealth laws that do not define the rights of a sperm donor if the mother does not have a partner at the time of conception. Nowhere is the term “parent” defined.

La Trobe University law lecturer Hannah Robert said the clash between state and Commonwealth laws had left families “in a very uncertain position” and there should be legislation to provide for preconception agreements or the ability to list more than two parents on a birth certificate.

“In a lot of families, particularly gay and lesbian families, the donor is known but they’re not a parent,” Dr Robert said.

“It’s the sort of halfway space between donor and parent and I don’t think the law has kept up with that.”

Justice Margaret Cleary applied the Commonwealth law and found in October 2017 that Mr Masson was the father of the girl, taking into account his intentions at the time of her conception, his involvement in her life and his genetic contribution.

But the full Family Court overturned her finding, concluding that the state act should be applied and Mr Masson could not be considered the girl’s parent.

The potential ramifications of the case have prompted an intervention from Attorney-General Christian Porter, who has argued that the state act should not apply and the term “parent” should bear its “ordinary, contemporary” meaning.

The Federal Government has intervened to support the man, saying he was legally the child’s father under the Family Law Act.

The state of Victoria has taken the more radical position that the court should make an explicit finding that sperm donors cannot be parents to give more clarity to birth mothers and sperm donors.

Related Family Law Judgments

Nine most common traps for DIY wills

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DIY-WillsWhile more Australians are aware of the importance of having a will, simply buying a do-it-yourself will kit from a newsagent and filling it out yourself can cause more problems than it solves.

The main concern isn’t that you end up with a will that is ineffective or invalid. It is that you end up with a valid will that is legally binding but doesn’t achieve what you wanted.

If there is a “rule 101” of estate planning, it is that the document itself isn’t important – it’s the advice that goes with it. The following are some of the most common mistakes with DIY wills – whether from a newsagent or not.

  1. Not dating the will

This becomes a problem if two or more versions of a will are located, but one is not dated. A court will need to ascertain which document was intended as the last will and testament, and is required to review all wills and question all beneficiaries to determine which document is to be recognised as the will.

There is no such thing as a “test” or “draft” will – if there is a document in existence that is signed in some way and appears to be intended as the final will (even if the person who signed it did not intend for it to be so), there are obligations on the executor to put it forward to be interpreted – often at significant expense.

2. Leaving wrong assets

It is surprisingly common for people to leave assets in their will that they don’t actually own. Superannuation is the classic example. A will cannot bind a trustee of a superannuation fund to direct a member balance to a certain beneficiary. This can only be done via a binding death nomination to the superannuation trustee.

Another common example is business assets. A person may own the business, but this doesn’t mean that he or she owns the assets of the business, and they can’t therefore be left to a beneficiary separate to the business.

3. Misunderstanding legal definitions

People often don’t realise that there are legal definitions of certain terms that could cause serious confusion for beneficiaries. Take the situation where a parent had left “all their shares” to one child and other assets to the other child. By this, they had meant their shares in companies listed on the ASX, but legally speaking, the term “shares” also encompassed their shares in a private company which was the trustee of their family trust.

4. Losing the will

There have been numerous instances of family members knowing that a person had written a will, but not being able to find it after they die. In this situation, there must be a search made for a will, including advertising for witnesses or law firms who may have been involved to come forward. This may involve significant costs and delay in administering an estate.

5. Not witnessed properly

All wills require two witnesses. If there is only one (or no) witness then it becomes an “informal will” and needs to be tested in court.

In addition, the details of the witnesses should be recorded so that they can be contacted. If they can’t be easily identified, the executor will need to prove that they have made every effort to track down witnesses, and this can become very expensive and time-consuming.

Another consideration is that a will can’t be updated or edited after it has been witnessed. The document that the witnesses viewed and signed is a legally binding document, and any changes must be witnessed again.

6. Unintended tax consequences

One area where advice can be particularly valuable is when different classes of assets, with different tax consequences, are directed to specific beneficiaries. Generally speaking, most assets can be transferred to beneficiaries without any immediate tax liabilities, but there are exceptions. For example, the transfer of assets to a beneficiary via a deceased estate is not generally a capital gains tax (CGT) event. This is not the case for a person who is not an Australian resident for tax purposes. In this case, CGT must be realised at the time it is transferred to the beneficiary and must be paid by the estate.

Testamentary trusts also allow for streaming of income to minor beneficiaries who are then taxed on that income at adult tax rates, thus potentially minimising the amount of income tax paid. Without advice, a person writing their own DIY will may create unintended taxation liabilities for their beneficiaries that a testamentary trust could have avoided.

7. Appointing the wrong executor

There are a number of misconceptions about executors. One is that an executor can’t also be a beneficiary of the will. This isn’t true but it does mean that people sometimes don’t name the most appropriate person as their executor, because they also want to ensure they benefit from their will.

Another mistake is choosing multiple children as executor, but not taking into account wider family conflicts or the fact that the children do not get on with each other. This can cause all sorts of problems when it comes to estate administration. While many will makers are concerned about the expense of a professional executor, the reality is that there is often a cost saving overall as the estate can then be efficiently and effectively administered, without family conflict.

8. Ignoring potential beneficiaries

While most people would consider that they have a right to distribute their estate in whatever way they want, this is overlaid by obligations to certain beneficiaries – for example, financial dependents.

It may be impossible to prevent a challenge to an estate but obtaining proper legal advice will minimise the chance of a successful challenge – and at least people will be aware of the potential issues that may occur.

9. Guardianship of children

One of the most common drivers for those drafting a will is to ensure that their chosen guardians will be in place for their children. Unfortunately, the reality is that the guardians listed in a will are only ever a “wishlist”. The Family Court will consider who the most appropriate person is at the relevant time, taking a number of factors into account.

By getting proper advice, an appropriate support document can be developed to explain why that guardian was chosen (or, potentially, why another one was not).

Identical twins both pay child support after inconclusive paternity test

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baby dummyIdentical twin brothers in Brazil have both been ordered to pay child support for a baby after allegedly impersonating each other to trick as many women as possible into sex.

The twins, identified only as Fernando and Fabricio, tried to shirk responsibility for the newborn as DNA tests came back inconclusive, reports The Sun.

The mystifying results are said to have failed to provide a solid answer because the men are so genetically similar.

Each brother tried to blame the other, Brazilian news outlet Globo reports.

But a judge ruled they were denying the innocent child a right to know her biological dad.

District judge Filipe Luis Peruca, at the Cachoeira Alta Court in the central state of Goias, said both brothers must be included on the girl’s birth certificate.

The ruling forces both men to pay maintenance of 30 per cent of the minimum wage — 230 reais ($AU84) a month.

Luckily for the tot this means she will get twice as much as other children from the same economic background.

“It was clear they each used the other’s name, either to attract as many women as possible, or to hide betrayal in their relationship,” the judge concluded.

The mother of the infant told the court she had a brief relationship with the father, who she thought was Fernando.

In her testimony she said she had met the man at a mutual friend’s party.

She said: “He told me he had a twin brother, but I did not get introduced. At the time I did not suspect anything.”

But she later began to question the man’s identity, adding: “The strange thing about the day is that he presented himself as Fernando, but he was with the yellow motorcycle that he said was Fabricio’s.

The judge continued: “One of the brothers, in bad faith, seeks to conceal fatherhood.

“Such behaviour, of course, should not receive a guarantee from the judiciary which, on the contrary, must repress clumsy behaviour, especially in the case in which the defendants seek to benefit from their own clumsiness.

“Given the peculiarities of the case, I believe the decision that most embodies the concept of justice is the one that honours the interests and rights of the child, to the detriment of the tortuous defendants.”

Woman’s dying wishes determined by Facebook relationship status

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Melissa Dunn, a mother-of-two from Dapto, died on March 11 after a short battle with cervical cancer.

Melissa Dunn, a mother-of-two from Dapto, died on March 11 after a short battle with cervical cancer.

The Facebook profile of a woman who recently died from cancer is among the resources used by a court to determine who should carry out her final wishes.

Melissa Dunn, a mother-of-two from Dapto, south of Wollongong, died on March 11 after a short battle with cervical cancer.

However, she failed to leave a will outlining what she wanted to happen to her body, leading to a dispute between her mother Sharon, and Nikola Dragarski, the father of one of her children, about whether she should be cremated (her mother’s wishes) or buried (her partner’s preference).

Mr Dragarski sought urgent orders in the NSW Supreme Court on Wednesday seeking to have himself named as Ms Dunn’s defacto partner and next of kin.

The court heard the pair’s relationship began in 2003, they started living together in 2010 and their daughter was born the following year.

The couple then separated in March 2016 and, in August that year, Ms Dunn moved into her own house at Dapto.

Despite this, Mr Dragarski still spent time with Ms Dunn, visited her at the Dapto house and they continued having sex. Mr Dragarski told the court he considered they had resumed their relationship, especially when she moved back in with him in March 2018.

However, in a judgment delivered on Thursday, Justice Michael Pembroke ultimately found the relationship had not resumed – despite Mr Dragarski wanting it to – and that he could not legally be considered Ms Dunn’s next of kin.

He pointed to Ms Dunn listing herself as “single” on her Facebook profile, the fact that Mr Dragarski wasn’t on her ‘friends’ list and noted that another status update she wrote on January 9 this year read: “I am still at his house, we still [sic] not together though. Kids are great”.

 He also noted Ms Dunn was a member of an online dating website around May 2018, had listed her mother as her emergency contact on her admission to hospital, and was receiving a single parenting payment from Centrelink.

He rejected Ms Dunn’s decision to move in with Mr Dragarski in March 2018 as evidence of their relationship resuming, instead finding that she had done so in order to be closer to her daughter.

Mr Dragarski’s application was dismissed and control of Ms Dunn’s affairs awarded to her mother.