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Court rules doctors can operate on baby’s brain, despite parents’ objection

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The boy was in Lady Cilento Children’s Hospital in Brisbane.
Photo: Christopher Frederick JoneH

A baby suffering from a severe form of epilepsy will undergo brain surgery in a bid to stop his seizures, after the Supreme Court ruled it was in the child’s best interests.

The boy, known as “baby K”, was born with a brain abnormality that causes him to have frequent and serious convulsions.

He has had alternative treatments including cannabis oil and a ketogenic diet, as well as conventional medical treatments such as anticonvulsive drugs, some of which have had serious side-effects and effectively sedated him.

The child’s social worker told the court he had also received traditional remedies from his parents’ home country, including treatment with holy water, prayers by a monk and traditional ceremonies in which smoke has been administered to him at the parents’ request.

But the court found all the treatments had been “ineffective”, resulting in numerous admissions into the paediatric intensive care unit.

Baby K’s seizures are felt only on the left side of his brain, but as time has gone on, the seizures have begun to affect the other “good” side of his brain, the court heard.

His doctors told the court they were of the “firm opinion” that the only way to preserve his brain and give him the best chance of a future life was to perform a functional hemispherectomy.

They described it as a “serious operation” that would involve disconnecting the two sides of his brain to preserve the intact “good” side, with the aim of preventing or reducing the child’s constant seizures.

K’s parents refused to consent to the operation so the matter ended up in court.

“That is not because they do not love their baby – they clearly do – but because they retain hope that traditional remedies might provide what might be described as a miracle cure. This is in accordance with their sincerely held religious and cultural beliefs,” the judgement stated.

“However, for further traditional remedies to be attempted, that would now require a flight to their home country with the baby which, no matter how efficiently it was done, would be very arduous. There is no evidence that he could receive the expert level of expert medical care that is available to him in Brisbane, in addition to the traditional remedies, if he were to return to his parents’ home country.”

In her ruling, Justice Roslyn Atkinson said she had “thought long and hard about it” because it was not the parents’ preference.

“He is their child, and it is they who will be bringing him up,” she said.

“It is they who will be with him before the operation and be with him while he recuperates and once he is discharged from hospital.

“But I am satisfied that the operation is in his best interests, and … that their love for their child and involvement in his physical, emotional and spiritual development will stay with him through the days and weeks, months and years to come.”

Justice Atkinson authorised the boy’s medical team to perform the procedure and to undertake any necessary care and intervention including a pre-operative MRI, blood transfusions and the placement of a shunt in the event he develops hydrocephalus after surgery.

NSW gun law reforms considered after John Edwards murder-suicide

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NSW Police Minister Troy Grant

NSW Police Minister Troy Grant

Asking partners and ex-partners for a character reference before a gun licence is issued is one of the gun reforms being considering in the wake of the shooting deaths of Sydney teenagers Jack Edwards and Jennifer Edwards last Thursday.

NSW Police Minister Troy Grant is today meeting with NSW Police Commissioner Mick Fuller to discuss the possible changes to the state’s gun laws.

Other options on the table are to allow police to perform gun checks when courts, including the Family Court, deem children to be at risk and allowing GPs to raise the alarm when a patient has mental health issues.

Legislation that improves communication between the Family Court, gun clubs, doctors and police could be a way to help prevent deadly shooting attacks, the NSW police minister says.

The 68-year-old financial advisor legally bought the powerful handguns used in the killing months earlier while he was involved in a drawn-out custody battle with the children’s 38-year-old mother.

Mr Grant said his government won’t be making “policy on the run” but was open to revising gun laws, as is being advocated by the NSW opposition.

Improving communication between legal, firearm and other authorities was one option on the table, he said, noting that the Family Court of Australia offered a “big opportunity” for information sharing.

“Information flow is always among the most critical opportunities that are out there,” he said.

“That’s something we’re absolutely exploring.”

NSW Premier Gladys Berejiklian said the government doesn’t want a repeat of such a tragedy and will make changes if necessary – but without “overreach”.

“We want to make sure what we have in place is as strong as it can be and that nobody falls through the cracks,” she told reporters.

“I feel personally responsible to make sure we keep the community safe at all times and if there is something we should be tweaking or doing, we will do that.”

It’s believed the talks will consider whether police should conduct checks on firearms when court custody disputes are linked to a “notice of risk” to children.

In order to get a gun licence in NSW, a person must not have been subject to an apprehended violence order within the past 10 years.

Meanwhile, a petition by the Women’s Domestic Violence Court Advocacy Service NSW has called on the government to ensure women are consulted if their current or former partner applies for a gun.

“Women must be consulted before dangerous weapons are issued, especially where there is a history of domestic and family violence,” the organisation’s president Renata Field said in a statement.

The Shooters Fishers and Farmers Party’s Robert Borsak said the Mr Grant was wrongly putting the blame on law-abiding gun owners.

“The NSW Police Firearms Registry has a lot of questions to answer, but this is being drowned-out by the police minister and the commissioner as they try and manipulate the message and scapegoat law-abiding shooters,” he said in a statement.

Narcissistic Personality Disorder in the Family Court

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Why can’t you both just get along for the sake of the children?

Narcissistic-Personality-DisorderThose words are like nails on a chalkboard to anyone who has been through a divorce with someone who suffers from Narcissistic Personality Disorder (NPD). While divorce can bring out the worst in a healthy person, a divorce involving someone with NPD is like inviting the devil himself onto the battlefield. The narcissist appears to be charming, charismatic and endearing to those whom he encounters yet outside of the courtroom, he is calculated, manipulative and many times, downright dangerous. The untrained observer may perceive the situation to be about two immature parents who are not capable of putting their children first.

Sadly, many of the untrained observers are the very people who are tasked with deciding the fate of the children caught in the middle of these highly contentious custody battles. A narcissist is like the modern day version of Dr. Jekyll and Mr. Hyde. I once tried to explain to the Judge in my own divorce case that I didn’t know the man sitting 5-feet to my left. The man sitting next to me in the courtroom was not the same man who I was attempting to co-parent with. This man claimed to love his children and want to spend time with them however; his actions did not match his words.

According to the DSM IV-TR, between 2 percent and 16 percent of the population in clinical settings are diagnosed with Narcissistic Personality Disorder. Some argue that we should be working diligently to educate the Family Court on these individuals however, such education seems to be the last thing the Family Court is interested in pursuing. After a contentious custody battle with a narcissist which spanned over four years, I have witnessed many of the cracks in the Family Court first-hand.

  • Words vs. Actions: When words and actions are not in alignment, further investigations should take place. Narcissists are master manipulators yet their actions are never in alignment with their words.
  • Perjury: Changes need to be made when it comes to individuals who are caught lying. Perjury is taken very seriously in every courtroom except the Family Court System.
  • Education on Personality Disorders: Education on NPD needs to begin in law school and continuing education on personality disorders should be mandatory for each person who has a hand in the Family Court such as Independent Children’s Lawyers, Judges, Counsellors, Family Report Writers and Solicitors.
  • The Best Interest of the Child: Cases are often pushed through the courtroom like cattle. Ample time needs to be devoted to hearing high-conflict cases. When it takes longer to adopt a puppy from the dog pound than it does to decide the fate of a child, something is very wrong.
  • Court Orders: Even with court orders in hand, it can be difficult to enforce court orders. When dealing with individuals with NPD, court orders need to be very concise and void of wiggle room. If there is any room for manipulation in court orders, a narcissist will find it.
  • Parental Rights vs. Best Interest of the Child: While the Family Court System is supposed to act in the best interest of the child, this is not happening. Parental rights seem to carry more weight than what is truly in the best interest of the child. The ability to procreate should not automatically guarantee rights that override a child’s well-being.

Related Family Law Judgments

Husband cleared to sue family lawyer over prenup

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prenup-agreementA court has given the green light for a family lawyer to be sued for misleading and deceptive conduct over claims he failed to properly advise a woman about the consequences of signing a prenuptial agreement.

The decision known as Bolden & Woodruff [2018] FCCA 1439 is likely to add to reluctance among family lawyers to advise clients on binding financial agreements, or “prenups”.

The couple, who had been in a de facto relationship for about 11 years, entered into a ­financial agreement in 2015.

The wife, known as “Ms Bolden”, is now seeking to set aside the agreement on the ground she was not properly advised ­by the Brisbane family lawyer ­before she signed it, as required by the Family Law Act.

The husband, known as “Mr Woodruff”, sought leave to join the wife’s solicitor as a respondent so he could sue the solicitor for damages under the Competition and Consumer Act for misleading and deceptive conduct.

In a decision published last week, Federal Circuit Court judge Margaret Cassidy agreed the solicitor should be joined as a respondent, because she said the same set of facts gave rise to the wife’s claim against the husband to set aside the agreement, and the husband’s claim against the wife’s solicitors for misleading and deceptive conduct. She said the Federal Circuit Court had jurisdiction to deal with both legal claims.

Paul Sansom SC said there were difficulties entering into binding financial agreements for couples who were starting out in married life because it was not possible to predict what the ­future held.

Related Family Law Judgments

Can your SMS Text Messages be used as Evidence in the Family Court?

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Social-MediaCan SMS Text Messages be used as Evidence in the Family Court? The short answer to this is YES, YES and YES again.

In fact, not only are SMS text messages admissible as evidence in the Family Court (and all other family law jurisdictions), but so are emails, Facebook posts, Twitter tweets, skype transcripts, and YES, even comments on our very own Family Law Express forum, and any other electronic messaging that have become ubiquitous in the time of accessible mass communication.

free trialTry ReadNotify for FREE – register online for a free no-obligation trial.

For instance, in a recent hearing at the Federal Circuit Court,  Judge Warwick Neville ordered a marshal to investigate Facebook postings made by a father involved in an acrimonious child custody dispute. The unnamed father had reportedly made harsh criticisms of the court system on the social networking site. The man had also revealed confidential information about the case, claimed the magistrate and expert witnesses had been duped by the mother and even alleged that the mother abused their children.

In another case, a mother in the middle of a custody dispute hds been caught boasting on her Facebook page how she thought about ripping her husband off for another $20,000. “Felt like being a smart arse,” she wrote, signing off “Bwahahaha lol.”  Lawyers are now advising their clients locked in Family Court fights to take down their Facebook pages as the networking site has become both the latest weapon and target for warring spouses.

Did you know that Family Law Express are on Twitter? Yes indeed, and we have almost 500 followers. So why not join the two-way instant communication revolution. http://twitter.com/familylawxpress

But this ominous warning is one that is simply not being heard by many parents, with emails and SMS text messages now being the single most relied upon form of evidence submitted in family law proceedings in Australia, even carrying significantly more weight because they are often not disputed.

outlook pluginHowever, apart from the obvious, electronic messages can play a vital role in your family law circumstances, even if you are not planning on going to Court. Many disputes hinge on whether one parent or the other has received (or read) a particular email, which can be very hard to prove sometimes.

I recently attended a hearing in Court in assistance of one of the members of Family Law Express. In this case there was an interesting dispute over evidence, being an alleged email.

The father  insisted that he sent an email to the mother on the day that the child was to be returned to her, advising her that the child was ill and that she may be returned late. The child was ultimately returned back to the mother late.

As the parents had a poor relationship, email correspondence was the standard way that they would communicate, so the fact that the father had alleged that he sent an email advising the mother of this event was not out of the ordinary.

The mother however claimed that there was no email. She alleged that this was all part of a pattern by the father of late deliveries, and that the ‘email’ story was a concoction made up as an excuse for Court.

Now this issue, as it so happens, was not further investigated by the Court, but had it been, it could have ended up being a key deciding issue leading to the credibility of both of the parties.

Outlook ExpressHad proper measures been taken by the father, for instance, he could have, assuming he was telling the truth, proven that not only did he send the email, but that his ex-wife actually read the email. He could also have also shown what time she read the email, for how long she read it, from what location and internet account, and even from which computer.

As it should be clear in this instance, with a little preparation, the ex-wife could have been conclusively shown to have ‘lied’ or mis-represented the facts in Court on this matter, had she in fact been untruthful.

I raise this story because time and time again I have cautioned separating parents to think carefully about the emails they send during the ‘difficult’ early periods of separation.

I also urge separated parents who correspond primarily via email to safeguard their correspondence by either BCCing a trusted friend, by using a standard Return Receipt facility if available in your email client, or ideally by using a professional email forensics service such as ReadNotify, which not only provides Court admissible proof that an email has been sent, but also when it has been read by the other party. (and provides extra services like self-destructing messages after having been opened once, which makes it difficult to copy or print the email contents.

ReadNotify - track your emailsFor a free trial of ReadNotify , simply register via teh below website, or download the email client add-ons, as listed below/

The free trial lasts for two weeks or 25 emails (whichever comes first). 

Try ReadNotify for FREE – register online for a free no-obligation trial.

or Download the email client add-ons: Windows (All versions inc Vista and Win7) | v4.0 for Windows XP | Mac OSX

These add-ons work with your existing email client on your computer. When you send an email, you will see a new button that will give you the option to track it if you wish. After you sent the first tracked email, the system will register you for the Free Trial.

What Does ReadNotify Do?

  • ReadNotify provides email tracking and proof of sending as well as reading.
  • Readnotify records when, where and how long an email was read.
  • Location, ISP and computer settings are also recorded, as well as which attachments or links are opened/clicked
  • ReadNotify can also send messages that self-destruct after having been opened once.
  • ReadNotify can make it difficult for the email recipient to copy or print the message contents.
  • A Windows tool plugs into many programs and catches all outgoing mail seamlessly.
  • ReadNotify integrates with Hotmail and Yahoo! Mail in Internet Explorer.
  • You can also send a tracked email simply by adding “.readnotify.com” to the recipient’s address.
  • You decide whether tracking is transparent to the recipient or “invisible”.
  • “Ensured-receipt” messages are kept at ReadNotify servers and thus tracked under all circumstances.
  • ReadNotify uses PGP signatures including time-stamps to prove sending and opening of emails.
  • In addition to the recipient’s location, ReadNotify can track forwarded emails and attachments.

Domestic violence offenders no longer allowed to question abuse victims in Family Court

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dv-shadow“I wanted to end my life the day that our community allowed this man to cross-examine me in court.”

Eleanor (not her real name) is a mother of four and a primary school teacher in regional Victoria.

She escaped an abusive relationship about a decade ago — a relationship in which she had been repeatedly raped and kicked by her partner wearing steel cap work boots.

But that was not the end of the trauma she experienced at the hands of her former partner.

“When I turned up for the Family Court hearing, I found out on the day that he had become a self-litigant, and that he was going to be representing himself, and that he was going to be given the privilege of being able to cross-examine me directly,” she told the ABC.

“Why would they give him the right to cross-examine me in court, knowing the trauma that women have faced?”

Self-represented litigants have had the ability, in certain circumstances, to cross-examine their victims during family law matters.

But the Federal Government will today introduce legislation scrapping the practice, citing significant community concern and a desire to avoid further trauma of victims.

“In the criminal jurisdiction, many years ago, the practice was ended where a self-represented litigant would be able to cross-examine their victim in a sexual violence or in a rape matter,” Attorney-General Christian Porter told ABC News Breakfast.

“That situation, unfortunately, persists in a very small number of incidences in the Family Court.

“For those very small number of cases where there are clear allegations or indeed convictions of violence, the perpetrator of the violence should not be able to cross-examine the victim of the violence.”

Eleanor’s case would have been one of those covered by the new proposal.

“In the very same court room, only a couple of weeks before, a judge had actually said it was unsafe for him to be within 200 metres of me,” she said.

“And then in the very same court room, with a different court, they then said it was appropriate for him to be able to cross-examine me directly.

“I can remember nearly running out of the room, and seeing people to the sidelines looking at me going ‘what’s wrong with her’, as I was hyperventilating.”

Courts would also have the discretion to stop the direct cross-examination where domestic violence was alleged, and would be required to put in place extra protections for alleged victims — including screens or video links in court rooms — where questioning was allowed to occur.

Where questioning is allowed, it would have to be done by a lawyer, including legal aid lawyers where an alleged abuser does not have their own representation.

“In those circumstances, cross-examination can and should probably still happen, but it will have to be conducted by an independent counsel,” Mr Porter said.

A meeting of state and territory leaders in October 2016 called for direct cross-examination to be banned, and was met with widespread support from the legal community.

“I do think that people are surprised, with all of our knowledge about domestic violence, that the court is a place where this can still happen,” Angela Lynch from Women’s Legal Services Australia said.

“It’s basically using the court system to abuse your victim.”

Ms Lynch said it was not a case of denying alleged abusers their day in court, but argued the practice of direct cross-examination meant the court was not getting the full picture of abuse because victims would hold back on sharing all information.

“If your abuser is asking you those questions, the victims of violence are scared about the repercussions for them, for them and their children, after the court proceedings have been finalised,” she said.

Ms Lynch argued there were ongoing concerns with the announcement last month that the Family Court and Federal Circuit Court would be merged.

Critics of the changes claim that domestic violence allegations, many of which are frivolous, malicious and false, are being made at an alarmingly escalating rate, precisely because there are very little checks and balances, and ultimately consequences, to weed out the false allegations from the genuine ones.

It is claimed that this new restriction will make it even more difficult for innocent victims of false allegations to challenge these allegations with facts, doing even more damage to the relationship of that parent with their children, simply because the system does not place any importance on dealing with false allegations as seriously as it deals with genuine allegations.

Allegations of domestic violence will ultimately become even more difficult to be tested in Court, despite growing evidence that many allegations are false, malicious or misleading.

A wide-ranging review of the family law system is due to report to Government next March.

Protecting your SMSF savings in the event of a divorce

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self-managed super fundThe prospect of a divorce is not something that most people getting married would be contemplating and when it comes to your client’s SMSF things can become more complicated.

Whilst it is said that around 50% of marriages end in divorce, the actual number is around 1 in 3.

Of course, just because the real number is less than perception, this is nothing to be applauded. The real statistic, perhaps, is the obvious fact that 100% of divorces start with a marriage.

The prospect of a divorce is not something that most people getting married would be contemplating, but for those entering second or subsequent marriages, protecting assets and wealth built up in the past may be a higher consideration. The same considerations should apply for those entering de-facto relationships as well.

When it comes to your client’s super, and if your client is in a self-managed super fund (SMSF), things can become more complicated. There are considerations not only about what happens to your client’s super, but also their ongoing membership of the SMSF.

Dealing to your client’s super

Superannuation savings (whether in accumulation or pension) have been regarded as “property” for divorce purposes since late 2002. This means that not only can they be taken into account when valuing combined assets for determining a split upon divorce, but the savings themselves can also be split.

Now, how the split actually occurs may be determined through Family Court proceedings, or could be by agreement between the members of the couple. And obviously it’s possible that your client could be on either side of the equation – the one losing some of their super, or the one gaining. So what’s important to know?

Firstly, the amount to be split could be a percentage or an agreed figure, and the split could take effect now, or the split could be flagged to take effect at a future point in time. Flagging may be more likely to occur where the superannuation interest can’t be easily split now, or can’t be valued until some future point in time. A defined benefit pension, which is really only valued when it commences is a good example of where a flag may be used.

Secondly, your client can’t choose the components of what is split. For example, if a person’s super comprises $300,000 tax free components and $200,000 taxable components (a 60:40 split), and it is determined that $200,000 will be transferred to a receiving spouse, the $200,000 will be comprised of $120,000 tax free and $80,000 taxable components – retaining the 60:40 ratio. Your client can’t choose to split / receive all of the tax free or all of the taxable components.

In addition, the split occurs in proportion to the preservation status. Using the example above, if the splitting member had access to all their super (for example being age 65 or older), but the receiving spouse wasn’t yet able to access their own super, when the receiving spouse received the $200,000 they will have access to it, even though it may have remained within the super system.

The SMSF specifics

Life can be a bit more complicated with an SMSF. Whilst your client’s super in an SMSF is dealt with under the same rules outlined above (that apply in other superannuation environments), when it comes to an SMSF, you need to remember that your client’s responsibilities extend beyond just their own account balance.

As a member of an SMSF, they are also a trustee. This means they have ongoing obligations as a trustee and they need to decide if they want to remain in that fund, open a new SMSF, or move to a different super fund.

The answer for this differs for each person, as it can be affected by how amicable (or not) the split is with their former partner, and possibly by the underlying assets. For example, even though your client is getting divorced, they could still be on good terms with the other fund members / trustees and therefore happy to remain in the fund. There may also be certain assets in the fund that would need to be sold if they were trying to leave the SMSF and move to another fund, but now might not the right time to liquidate them.

And if there are other members, such as children, involved – which fund should they be in?

Divorce can be difficult at the best of times, and can become more complicated when it comes to the impact on your client’s super. If so inclined, they can put in place a superannuation agreement up-front (before marriage) that details how their super will be split in the event of a future relationship breakdown. Most importantly though, your client should consider access to legal advice through a marriage breakdown to help support the financial advice you could offer them.

Bryan Ashenden is Head of Financial Literacy and Advocacy at BT Financial Group.

Karl Stefanovic’s and Cassandra Thorburn’s Divorce Details Revealed

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karl-and-cassandra

Karl Stefanovic and his ex-wife Cassandra Thorburn at the 2011 Logie Awards. Picture: Barbour/Getty Images

Channel 9 presenter Karl Stefanovic will reportedly pay his ex-wife, Cassandra Thorburn, $35,000 of child support a month, following the recent divorce of the couple.

The 43-year-old, who is the highest paid person on Australian television, making an estimated $3 million a year, left his wife of 21 years in September 2016.

In total, Stefanovic has left $6 million in assets to his wife.

According to a friend, Stefanovic put up little resistance during the negotiations with custody of his children being the main priority. In what was described by friends of the pair as a “tough settlement”, Stefanovic walked away from the marriage with about $500,000 in cash and assets including his white Mercedes.

“There was always the sense that it would be a big settlement and obviously not in his favour,” a friend of Stefanovic said.

“He was quite prepared to walk away with nothing, hand everything over with the one condition that he be able to see his children whenever he wanted.

“And I think they have managed to agree on that.”

The couple will reportedly share custody of their three children, Jackson, 17, Ava, 12 and River, 10.

In an interview with Woman’s Day in 2017, Thorburn opened up about the divorce.

“There were days in the beginning I would get up, put on a brave face and drop the kids at school, then I’d get to the back door and I would lie in a heap for the rest of the day unable to move,” she said.

“I slept on the couch in front of the fire for months because I didn’t want to go near the marital bed. I was in a very dark place.”

“I realised I was going through stages of grief, and to me it was like someone had died.”

“The children still have a father but I don’t have a husband. “He really is dead to me and no, we won’t ever be friends again,” she continued.

More recently, Karl Stefanovic has also opened up publicly about the breakdown of his marriage to ex-wife Cassandra Thorburn in a tell-all radio interview with Kyle Sandilands and Jackie O.

The Today host said, ‘It’s hard. I think for some out there, what happened is here was a guy a couple of years ago who was married with three kids.’

He added, ‘I think this happens to people, and I’m sorry for any hurt that it caused and causes. But this happened to me…and I fell in love not long after that.

‘At the end of the day, it is what it is and I’m sorry if that causes anyone hurt. But I won’t be apologising to my nearest and dearest because I don’t need to.’

Cassanda Thorburn was given the couple’s $8 million waterfront mansion in Cremorne in the settlement. The waterfront mansion was another of the high-priced assets the former journalist walked away with in the divorce.

The former couple has sold their old family home in Linfield for $3.8 million, and Thorburn now resides in the family’s Cremorne home.

Earlier this year, Stefanovic and his 34-year-old girlfriend Jasmine Yarbrough exchanged vows at a commitment ceremony in Sydney’s Palm Beach.

The ceremony, in which the pair exchanged vows and rings, was not believed to be legally binding.The couple is getting married in Cabo, Mexico, later this year.

Woman wins right to dead boyfriend’s sperm

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jocelyn-edwards-and-mark-edwards

Jocelyn Edwards & Mark Edwards

 

Back in 2011, Jocelyn Edward‘s applied to the NSW Supreme Court to “claim” her late husband’s sperm, in order to travel interstate to have pregnancy treatment, because NSW law prevented her from having an IVF baby without written consent from the donor.

Mr Edwards, 39, died after falling from a balcony the day before the couple were to sign consent forms to undertake IVF treatment.

Ms Edward’s lawyers sought an application in the NSW Supreme Court for it to make her husband’s sperm her property.

In that case, 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.

In an eerily similar case yesterday, a Queensland woman applied to the Qld Supreme Court in Brisbane for the right to use her dead boyfriend’s sperm to have a baby.

Ayla Cresswell’s partner Joshua Davies died suddenly in August 2016, and within hours the court granted permission for his sperm to be harvested.

Ms Cresswell sought approval from the court to use the sperm, which is being held at an IVF clinic.

The court heard Ms Cresswell and Mr Davies were in a relationship for three years, were saving for a house and planning to get married and have a family.

ayla-cresswell-joshua-davies

Ayla Cresswell & Joshua Davies

The judgement said Mr Davies “without any apparent warning signs or any obvious trigger, took his own life” and had sought help for depression.

On the day of Joshua’s passing, Ms Cresswell told Mr Davies’ father, John Davies, that she wished that she was pregnant.

John Davies spoke with his wife Iona Davies and they decided to support Ms Creswell gaining a court order.

The early hours of August 24, 2016, Ms Cresswell instructed her legal representatives to file an urgent application to the court, seeking orders for the removal of sperm.

Mr Davies’ sperm was removed some 48 hours after his death.

Justice Brown said she agreed with submissions made on behalf of Ms Cresswell that the way in which the sperm was removed meant it was capable of being classed as property.

The court previously heard Ms Cresswell had the full support and blessing of Mr Davies’ family as well as her own, and several of Joshua’s friends provided affidavits that shortly before his death, he expressed a desire to settle down and have children.

Last year, Ms Cresswell’s lawyer Kathryn McMillan QC told the hearing the passage of time was important.

“She’s thought about it, had counselling, gone through many hoops, and had many tests to see if she can conceive.”

The court made the orders subject to a number of conditions, including that Ms Cresswell was the only person who had a relevant interest in the sperm and the practitioners who removed the sperm did so for her benefit.

The court further decided the sperm was capable of being deemed “property” and that Ms Cresswell was entitled to permanent possession of it.

Ms McMillan said while the child would not have the benefit of a father, there was support from a paternal and maternal grandfather.

Queensland Law Society deputy president Bill Potts said it was a “landmark decision”.

“Never before in Queensland has the sperm of a dead person been allowed to be extracted and then used for the purposes of procreation,” he said.

“It is indeed an historic and very interesting decision that’s been made, which has significant implications both for family law and for succession law.”

Mr Potts said legislation needed to keep up with the technology and “developing morality” around this area.

“Whilst I’m sure the applicant is overjoyed and she has every right to be, this is an area which is ripe for legislation,” he said.

“In the last 10 years, the technology has developed where a baby can be born literally from a sperm extracted from a dead person.”

Related Family Law Judgments

How to Protect Your Child’s Inheritance from a Future Divorce

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testamentary trustMore than 50 per cent of wills are being contested in courts, typically by family members fighting over how parents’ estates should be divided between siblings.

Disputes over potentially trillions of dollars worth of savings, investments and assets are generating a mini-industry of lawyers offering “no win, no fee” offers to aggrieved family (or friends) of the deceased who think they deserve more.

Courts are unwittingly encouraging the litigation boom by ruling in favour of the parties bringing the actions in about three of four cases, according to University of Queensland research.

“While nearly 60 per cent of Australians have a will, many still remain vulnerable to having their wills contested,” says Adnan Glinac, Australian Unity’s general manager of life and super. “Ensuring safeguards are in place so that the money goes where it is intended is a big part of estate planning. This means financial structuring to protect the transfer of wealth from one generation to the next.”

He recommends reviewing a will every three years and making required amendments with a codicil, a document that makes minor changes.

Greater control

Grantley and Judy Selth, a retired couple from Mount Eliza, 48 kilometres south-east of Melbourne, are aware of what a poisoned legacy a deficient will can leave and are determined they will have the final say  over their estate.

The couple, who have three adult children aged between 39 and 45, have added a testamentary trust to their will that provides a greater level of control over the distribution of assets to beneficiaries.

It’s estimated about $2.4 trillion worth of assets – equivalent to the gross domestic product of Spain – will be transferred from Baby Boomers (those born between 1946 and 1964) to their successors.

But big estates are creating even bigger headaches for brawling beneficiaries, which courts often have to resolve.

For example, successful television producer Reg Grundy died in 2016, aged 92, leaving his second wife Joy beneficiary of his $715 million estate, including a luxury mansion in Bermuda.

Her husband’s only child from his first marriage, Viola La Valette, is contesting the will in a court case scheduled for later this year.

The estate of famous racing car driver Peter Brock took several costly Supreme Court appearances, teams of lawyers and nearly a decade to settle between his second wife and children from the previous marriage.

Modest assets

Lawyers are even fighting it out over modest estates when families believe parents failed to adequately consider a loved one’s needs.

Julie Ward, chief judge in equity for the NSW Supreme Court, recently ruled on a case involving a son contesting an estate that included just $8000 cash and a 99-year leasehold in a retirement village bequeathed to his second wife.

“It cannot seriously be suggested that community expectation would be that the deceased should put his long-standing wife in a position where she is required to vacate her villa in the retirement village,” Judge Ward said.

Legal fees can rip shark-bite size chunks from an estate that different sides are  attempting to maximise for their own benefit.

For example, a barrister will cost between $5000 and $10,000 a day in court. Instructing solicitors will add to the legal bills arranging the action, briefing counsel and preparing pleadings, briefs and mediations.

Some solicitors will charge $9 for merely reading clients’ email – a reply costs extra.

A typical dispute costs individuals and the estate about $26,000 and takes nine months to resolve, according to University of Queensland research.

“Contested estates end up a free-for-all,” says Glinac. “Your wishes and what’s outlined in your estate often is not met,” he says. “It happens a lot.”

Blended families are adding to the toxic mix of bitter disputes as children of one, or both,  partners dispute a will.

“Often traditional will structures lack the flexibility to meet the changing needs,” Glinac says

More equitable

The Selths believe their testamentary trust strategy will make it more transparent and equitable for all beneficiaries.

Grantley, a former dentist who retired about eight years ago, says:  “We had a will but it didn’t embrace everything we wanted. We knew where we wanted the money to go but we wanted to be sure the beneficiaries were our kids but that they were protected in the case of divorce.”

Their testamentary trust, which was written with the assistance of a lawyer, holds their financial assets until the children reach 50.

“We told them all. We felt they should know if anything happened to us where the will was kept, what was in it and that there was no disagreement,” says Grantley.

Testamentary trusts have tax advantages because income distributed to minors is taxed at full adult marginal rates, according to chartered accountant William Buck.

Each beneficiary is eligible for the $18,200 tax-free threshold and the relief afforded by the lower tax scales. The income distributed is known as “excepted trust income”.

Beneficiaries under 18 who receive income from other types of trusts only receive $416 tax-free before penalty tax rates apply.

Judy says a key consideration was devising a strategy that lowers the risk of disagreements between siblings.

“I don’t think there is any way they could dispute the proportions they’re getting,” she says. “It’s set up evenly, and they know that. There is no point not telling them and them fighting over the assets. Until they’re 50 they’ll just be able to draw income from the trust.”

The assets include property, which will have to be sold and split three ways, and shares held in a self-managed superannuation fund.

Testamentary trusts can be tailored to meet the executor’s requirements.

For example, under a discretionary trust the beneficiary has the power to remove and appoint the trustee, including appoint themselves to manage their inheritance inside the trust.

A protective trust requires the beneficiary to take their inheritance from the trust and excludes options to appoint or remove trustees. This is popular where the beneficiary is unable to responsibly manage their inheritance. For example, they might be a spendthrift or addicted to drugs.

 
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