The Court considered the World Professional Association for Transgender Health, Standards of Care (“the Guidelines”). These Guidelines set out the generally accepted interventions:

Stage 1: Fully reversible interventions, which include therapies to suppress oestrogen or testosterone production and thus inhibit the physical changes of puberty.
Stage 2: Partially reversible interventions which include hormone therapy to either masculinise or feminise the body. Some of these changes may require reconstructive surgery to reverse the effect; and lastly
Stage 3: Irreversible interventions, these are surgical procedures.
These guidelines recommend a staged process, to enable young people to keep their options open in the first two stages. Additionally, this staged process allows for the adolescent and their parents to assimilate fully the effects of the preceding intervention before moving onto the next stage.

Quinn had not yet started Stage 2 treatment, but his treating doctors recommended that he underwent Stage 3 treatment, “top surgery” immediately.

The case of Bass & Bass and Anor [2016] FamCAFC 64 (29 April 2016) was heard in the Full Court of the Family Court of Australia in front of judges Strickland, Murphy and Kent. The case considered a child support trust established pursuant to orders made between the parties. The case involved the husband appealing Judge Aldridge’s previous decision refusing the return of $300,000 held in the trust to the husband. The husband claimed the trust money was not being used for the purpose of financing the remaining children’s private school education as the children were not attending private school.

The husband argued that the beneficial interest in the monies settled by him was for the main purpose of providing private school education for the children. It was argued by the husband that $30,000 of the $300,000 was attributable to the trust’s purpose and the rest was a resulting trust for the husband. The husband’s appeal was dismissed as it was found that there was no merit in the husband’s argument and that he did not retain any beneficial interest in the child support trust.

The father’s position was summarised by his Honour in that, the father viewed his incarceration as a positive feature and unlike other cases, the Court did not need to be concerned with the children’s lives being negatively disrupted according to the father.

Contrary to the father’s appeal argument, his Honour cleverly concluded the risk factors based on evidence into 3 categories, with each overlapping. They are as a follows;

1. The nature and extent of the father’s criminal sexual behaviour; and
2. The opinion evidence of the Family Consultant and the father’s lack of insight into the impact of his offending behaviour on the children; and
3. The Children’s lack of knowledge of the father’s unacceptable sexual activity and such knowledge could impact them moving forward through adolescents.

The real issue then became the risk of psychological harm to the children. Whilst it was obviously unknown, the risk was real and that the evidence of the family consultant was compelling. In addition, the mother had given evidence that the children presented with a range of difficulties and developmental issues but also substantial emotional fragility, which needed to be considered by his Honour.

His Honour recognised that parenting orders have the effect of eliminating any contact or communication between a parent and his children in exceptional circumstances. However the best interests of the children always remains paramount to the court.

In this case allowing the father’s proposed orders would have exposed the children to a real risk of psychological harm. In addition, it was also found that it was not in the best interests of the children to be interviewed by the Family Consultant at the time, and therefore no miscarriage of justice was found.

Kent & Austin JJ had agreed, and the father’s appeal was unanimously dismissed.

On 17 June 2011 the defendant offered an extension of the 2006 facility in the sum of $7,050,000.00. This was referred to as the “fixed interest facility”. The interest rate was fixed at 8.54% per annum, with a default rate of 10.54%.

A distinction was made in the lower courts between minor and major defaults and if such an interest rate was applied to minor defaults it could be that this may be seen as a penalty and therefore unenforceable.

The characterization of a clause as penal needs to be assessed by reference to the evidence.
Naturally there is a distinction between commercial lending contracts and those lending contracts which are provided to non-commercial borrowers (such as residential home loans).

It is important to note that in certain circumstances then the unfair contract terms legislation may apply as well.
If you are going to assert that a clause as penal in nature then you have the onus of proof in establishing the claim.

In this particular case it is useful to look at the expert evidence and the distinction between the relevant experts as to whether a clause is reasonable unconscionable and therefore may be seen as penal.

Justice Berman recognised that although the parties were attempting to reconcile, though unsuccessful, did not rebut the fact that the pair were in a de facto relationship at the time of conception. For these reasons, Justice Berman ordered that the child live with the Applicant and spend time with the Respondent.

The Applicant recently appealed the decision to the Full Court alleging that Berman J had erred in law. The Full Court upheld the decision and costs were awarded.

The husband appealed the orders made by Macmillan J arising out of property, as well as spousal maintenance and child support proceedings. Following the husband’s total lack of participation in the trial, the wife, perhaps unsurprisingly, submitted that the husband had his opportunity to participate and should not subsequently be heard to complain about the outcome.

An essential aspect of the appeal was the value of the husband’s interest and the control he held within the companies. The husband challenged two main findings of the trial judge that:

• The husband could access funds sufficient to pay the sum ordered whilst still retaining his shareholdings, so it was not necessary to apply a discount; and
• The husband would most likely have the support of the other shareholders for the purposes of implementing the payment to the wife.

In the reasons, the trial judge acknowledged that due to the husband’s lack of participation she had ‘no way of knowing how he proposed to meet his obligation to the wife or arrange his affairs’.

The Full Court was not clear as to how the trial judge found that the total value of the property (excluding superannuation) was approximately $25 million. The trial judge had accepted the expert’s valuation of the husband’s interest in TPL at approximately $10.6 million and his interest in TH at $3.6 million. The Parties were otherwise limited to $1.12, to which the wife already had $1.05 million. Therefore, excluding the company interests, the husband’s interests were minimal.

The husband submitted that the trial judge drew an inference that there would be no sale, and that her Honour was in error in doing so because the $12 million could not come from any source other than through the disposal of shares.

Further, it was submitted that the absence of evidence could not support the positive conclusion that the husband would retain his shares. As a minority shareholder, it was not open to conclude that the husband could access money other than through dealings with his shareholdings and there was no evidence of whether the other shareholders would assist.

The only inference open to the trial judge, according to the husband, was that the husband would have to sell his shares or alternatively borrow, as there were no other assets that could possibly provide the sum as ordered. Thus notwithstanding his absence from the proceedings before the trial judge, the husband argued that the trial judge did not come to a just and equitable determination. The wife argued that there was no onus on her to produce evidence about a possible sale of shares. She submitted that the trial judge applied her broad discretion pursuant to s 79 of the Act correctly.