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Family Law judgments

Family Law judgments

By Robert Glade-Wright and Craig Nicol

Child Welfare Courts Family Court Finance Judgment Real Property 

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Financial agreements

Fiancée (and as wife) wins appeal to the High Court

In Thorne & Kennedy [2017] HCA 49 (8 November 2017) the High Court allowed with costs Ms Thorne’s appeal against a decision of the Full Court of the Family Court of Australia. In a joint judgment Kiefel CJ, Bell, Gageler, Keane and Edelman JJ (Nettle and Gordon JJ giving separate reasons) said at [1]-[2]:

“This appeal concerns . . . a pre-nuptial agreement and a post-nuptial agreement which replaced it . . . between a wealthy property developer . . . and his fiancée . . . The parties met online on a website for potential brides and they were soon engaged. In the words of the primary judge, Ms Thorne came to Australia leaving behind ‘her life and minimal possessions . . . If the relationship ended, she would have nothing. No job, no visa, no home, no place, no community’ . . . The pre-nuptial agreement was signed, at the insistence of Mr Kennedy, very shortly before the wedding . . . [where] Ms Thorne was given emphatic independent legal advice that the agreement was ‘entirely inappropriate’ and that Ms Thorne should not sign it.

“One of the issues before the primary judge, Judge Demack, was whether the agreements were voidable for duress, undue influence or unconscionable conduct. The primary judge found that Ms Thorne’s circumstances led her to believe that she had no choice, and was powerless, to act in any way other than to sign the pre-nuptial agreement. Her Honour held that the post-nuptial agreement was signed while the same circumstances continued, with the exception of the time pressure. The agreements were both set aside for duress, although the primary judge used that label interchangeably with undue influence, which is a better characterisation of her findings. The Full Court of the Family Court of Australia . . . allowed an appeal . . . concluding that the agreements had not been vitiated by duress, undue influence, or unconscionable conduct [saying at [167] that the wife’s ‘real difficulty’ was that she had received independent legal advice]. . . . [T]he findings and conclusion of the primary judge should not have been disturbed. The agreements were voidable due to both undue influence and unconscionable conduct.”

After a discussion of case law as to duress (at [26]-[29]), undue influence (at [30]-[36]) and unconscionable conduct (at [37]-[40]), the majority said at [60]:

“ . . . [S]ome of the factors which may have prominence include . . . (i) whether the agreement was offered on a basis that it was not subject to negotiation; (ii) the emotional circumstances in which the agreement was entered including any explicit or implicit threat to end a marriage or to end an engagement . . . (iii) whether there was any time for careful reflection; (iv) the nature of the parties’ relationship; (v) the relative financial positions of the parties; and (vi) the independent advice that was received and whether there was time to reflect on that advice.”

Children

Court’s approval no longer required for Stage 2 treatment of gender dysphoria if child can give informed consent or the parentally responsible authorise it

In Re: Kelvin [2017] FamCAFC 258 (30 November 2017) a full bench of the Full Court (Thackray, Strickland, Ainslie-Wallace, Ryan & Murphy JJ) heard a case stated by Watts J as to an application by the father concerning the administration of “Stage 2” medical treatment for gender dysphoria for his then 16 year old child (“Kelvin”) who was born female but “transitioned socially as a transgender person” from Year 8 (at [27]). The Court said at [6] that gender dysphoria was “the distress experienced by a person due to incongruence between their gender identity and their sex assigned at birth”.

The child’s father sought the Court’s sanction for the commencement of Stage 2 treatment in accordance with Re: Jamie [2013] FamCAFC 110. The Full Court held in that case that the Court’s approval under s67ZC FLA was not required in respect of “Stage 1” treatment (“puberty blocking treatment”) but that Stage 2 treatment (“gender affirming hormone treatment”) involving the use of oestrogen or testosterone with irreversible effects would require the Court’s approval.

Thackray, Strickland & Murphy JJ described at [35]-[41] Kelvin’s experience of gender dysphoria since he was nine; his anxiety and self-harming; his distress from experiencing female puberty due to not undergoing Stage 1 treatment; the improvement in his mental health since “taking steps towards a medical transition”; his parents support; the necessity of Stage 2 treatment for his future wellbeing and his wish (at 17) to commence such treatment.

Their Honours observed at [51] that between 2013 and 2017 the Family Court had “dealt with 63 cases involving applications for Stage 2 or Stage 3 treatment for Gender Dysphoria” and that “[i]n 62 of those cases the outcome ha[d] allowed treatment”.

The majority said from [147]:

“ . . . [T]he Full Court [in Re: Jamie held that] Stage 1 treatment is therapeutic in nature, and is fully reversible. Further, that it is not attended by grave risk if a wrong decision is made, and it is for the treatment of a malfunction or disease, being a psychological rather than a physiological disease. Thus, absent a controversy, it fell within the wide ambit of parental responsibility reposing in parents when a child is not yet able to make his or her own decisions about treatment . . . (at [147]).

“As to Stage 2 treatment . . . the Full Court agreed . . . that although Stage 2 treatment is therapeutic in nature, it was also irreversible in nature (at least not without surgery) . . . (at [149]).

The consensus of the applicant, the ICL and all but one of the intervenors is that the development in the treatment of and the understanding of Gender Dysphoria allows this Court to depart from the decision of Re Jamie. In other words, the risks involved and the consequences which arise out of the treatment being at least in some respects irreversible, can no longer be said to outweigh the therapeutic benefits of the treatment, and court authorisation is not required . . . (at [162]).

The treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the Court . . . (at [164]).

We note though that . . . we are not saying anything about the need for court authorisation where the child in question is under the care of a State Government Department. Nor, are we saying anything about the need for court authorisation where there is a genuine dispute or controversy as to whether the treatment should be administered; e.g., if the parents, or the medical professionals are unable to agree. There is no doubt that the Court has the jurisdiction and the power to address issues such as those” at [167]).

Ainslie-Wallace & Ryan JJ at [187]-[188] agreed on different reasoning.

Property

No provision for husband who murdered wife after she began property proceedings

In Neubert (Deceased) & Neubert and Anor (No. 2) [2017] FamCA 829 (18 October 2017) the wife was murdered by the husband in 2015 after the ending of the parties’ 18 year marriage in 2014 when the wife began property proceedings in the Federal Circuit Court, later transferred to the Family Court of Australia. The proceedings were continued by the wife’s estate. When the husband shot the wife dead he also shot a friend of hers with whom the wife was travelling, permanently injuring her.

The friend, who intervened in the case, brought civil proceedings in which she was awarded damages of $2.3 million which with taxed costs and interest amounted to a judgment debt of $2.5 million. The husband was found guilty of murder and sentenced to 25 years imprisonment and a cumulative three year sentence for the grievous bodily harm of the intervenor. The husband was 75 years old and ineligible for parole until he was “almost 90”.

Benjamin J accepted at [94] that at the date of the wife’s death the Court would have made an order in her favour for the purpose of s79(8) of the Family Law Act, saying at [100] that “there should be an adjustment . . . in the light of the findings as to the parties’ respective contributions, including the husband’s significant initial contributions [land sold during the marriage for $590,000, savings $100,000 and shares $300,000] . . . [having] regard to the size of the pool [$2,168,153 excluding the damages] . . .” His Honour assessed contributions at [173] as to 35 per cent to the late wife and 65 per cent to the husband, ordering that the husband’s share be “paid to the intervenor and set off against the judgment debt”.

The Court then reiterated at [182] the statement of Coleman J in Homsy & Yassa and Yassa; the Public Trustee (1994) FLC 92-442 that “the husband, having murdered the late wife, cannot have the benefit of the s75(2) factors” and that “[t]o do so would be offensive to justice and equity”.

 

Robert Glade-Wright, a former barrister and accredited family law specialist, is the founder of The Family Law Book, a looseleaf and online service: see www.thefamilylawbook.com.au. He is assisted by accredited family law specialist

Craig Nicol. References to sections of an Act in the text refer to the Family Law Act 1975 (Cth) unless otherwise specified. The full text of these judgments can be found at www.austlii.edu.au. The numbers in square brackets in the text refer to the paragraph numbers in the judgment.


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