Jaswinder (Jas) Sekhon, Author at Goldman Law

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Discover Why Clients Trust Goldman Lawyers

Chel Chappy

I highly recommend Goldman Law. 
Every contact I had with the firm was friendly, professional and understanding.
Jennifer is an outstanding lawyer. I had had a difficult ongoing children’s matter...

Quentin Carmont

A family law matter is never pretty emotions are running hot, everyone thinks they’re right when in reality no one is.
Goldman made the process very easy for me to choose them.
Initial contact with Kim and then a small consultation with Jass there senior lawyer...

Paul Northrop

I have used G&C on numerous occasions for business matters. I have always found them to be incredibly responsive with sound advice. I know that with the G&C team working on my legal matters, it takes the pressure off me and allows me to concentrate on running my business!

Pauline Von Czapiewski

Wonderful team of professionals to deal with from office support to solicitors. Always has a quick response time, and good advice. Incredibly impressed and will be sure to use again in the future...

 

Jane Mac

I have found Goldman’s to be a highly skilled and caring group of lawyers who have guided me many times during periods of uncertainty and stress. I couldn’t do without their considered and professional advice for our businesses.

 

Talia Falo

Goldman & Co handled my case extremely well, gave fantastic advice and overall eased up the tension of the entire situation immensely. I felt they genuinely cared for my well-being and what I am going through so great thanks to them. Would highly recommend...
 

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Award-Winning Sydney Lawyers
for Discerning Private Clients

Welcome to Goldman Lawyers, a Premier Law Firm

Strategic, Discreet, Private Client-Focused Legal Services

Specialist Legal Advisory for Banks, Advisors & Private Clients

At Goldman Lawyers, we pride ourselves on being Australia’s preferred law firm for private clients seeking personalised service and exceptional outcomes.

Our expert legal team specialises in complex matters ranging from Family Law and Wills & Estates to International Tax and Trusts, ensuring your interests are protected with meticulous care and strategic insight.

For over 30 years, our award-winning team of senior lawyers has empowered high-net-worth individuals, families, and businesses with expert legal counsel.

We deliver outstanding results for exceptional clients – protecting your interests, reputation, and wealth every step of the way.

Goldman Lawyers offers the personal attention of a private firm with the reach and expertise of a global practice.

Awarded Experience & Trust

With deep local and international expertise for over 30 years.

Growing and protecting successful individuals, family offices and business.

Experience & trust built through sheer hard work

Hear from Our Satisfied Clients

Discover Why Clients Trust Goldman Lawyers

Chel Chappy

I highly recommend Goldman Law. 
Every contact I had with the firm was friendly, professional and understanding.
Jennifer is an outstanding lawyer. I had had a difficult ongoing children’s matter...

Quentin Carmont

A family law matter is never pretty emotions are running hot, everyone thinks they’re right when in reality no one is.
Goldman made the process very easy for me to choose them.
Initial contact with Kim and then a small consultation with Jass there senior lawyer...

Paul Northrop

I have used G&C on numerous occasions for business matters. I have always found them to be incredibly responsive with sound advice. I know that with the G&C team working on my legal matters, it takes the pressure off me and allows me to concentrate on running my business!

Pauline Von Czapiewski

Wonderful team of professionals to deal with from office support to solicitors. Always has a quick response time, and good advice. Incredibly impressed and will be sure to use again in the future...

 

Jane Mac

I have found Goldman’s to be a highly skilled and caring group of lawyers who have guided me many times during periods of uncertainty and stress. I couldn’t do without their considered and professional advice for our businesses.

 

Talia Falo

Goldman & Co handled my case extremely well, gave fantastic advice and overall eased up the tension of the entire situation immensely. I felt they genuinely cared for my well-being and what I am going through so great thanks to them. Would highly recommend...
 

Practice Areas

Family lawyer meeting with parents and children to resolve custody, parenting, and property matters in Sydney.

Family Law

Outstanding results from our expert team in mediation, parenting, financial and court action or appeals in family law matters nationally across Sydney.

Criminal Law

Expert senior criminal team with proven results in local court, defended matters, appeals and complex criminal including financial and fraud .

Trusts & Wealth

Wealthy families set up trusts to protect, increase, reduce tax and distribute wealth. Our experience means trusts can be set-up by all.

Health law expert advising and defending medical professionals in AHPRA matters, misconduct claims, and registration issues.

Medical & Health

Outstanding results from our expert team in mediation, parenting, financial and court action or appeals in family law matters nationally across Sydney.

Estate planning lawyer helping clients protect assets, draft wills, and structure plans with over 20 years of experience.

Estates & Wills

Estate planning means understanding your needs and desires, for the best course of action that safeguards assets and your family. More than just a will. We have over 20 years of experience and are a fellow of STEP.

Corporate & Commercial

Practical sensible advice for business to limit your liabilities including company structures and regulation. Planning, growth, and expansion including shares, finance, assets, asset protection and global structures. 

Litigation lawyer handling complex disputes, ADR, and multi-jurisdictional tax and finance litigation with proven results.

Litigation & Disputes

Leading lawyers in complex litigation; accredited as mediators for alternative dispute resolution. Multi-jurisdictional tax and finance litigation.

Tax lawyer advising on cross-border wealth, expat income, and international tax planning for individuals and private entities.

International & Domestic tax

Assist with cross-border wealth, expat income and investments. Comprehensive domestic and international wealth and tax planning. 

Cyber law expert advising on data breaches, regulatory response, and legal risk management for tech and digital businesses.

Cyber Law

We assist in identifying, mitigating and responding to cyber law as well as managing responsibility resulting from legal action or regulatory scrutiny.

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Cross Border Family Law

Leading Australian Cross-Border
Family Lawyers

International Divorce, Custody & Asset
Solutions for International Families

OUR INTERNATIONAL FAMILY LAW EXPERTISE

Families, Family Offices & Expatriates

At Goldman Law, we specialise in international and cross-border family law matters — from international child custody disputes and relocation cases to division of overseas assets in complex, high-net-worth separations.

With over 30 years of legal experience across Australia, the United Kingdom, New Zealand, India, the UAE and Southeast Asia, we provide trusted advice to individuals and families navigating multi-jurisdictional family law challenges.

We are one of the few Australian family law firms with the capability to manage cross-border parenting and financial disputes, including matters involving Interpol alerts, overseas property, or competing legal systems.

Contact Goldman Law today to schedule your free initial consultation with one of our senior international family lawyers.

GOLDMAN IS UNIQUE IN INERNATIONAL
MARRIAGES, CUSTODY & Financial DISPUTES

Based in Australia — Operating Globally

Whether your family lives across two countries, or you own property or businesses internationally, you need a
legal team that understands the legal frameworks of multiple jurisdictions. We regularly advise clients on:

  • Disputes over offshore trusts and foreign assets, including hidden assets & secret trusts
  • Asset tracing and forensic investigations to find the money
  • Hindu Marriage Act & Sharia divorce
  • Our international reach, combined with strategic alliances in major jurisdictions, ensures your case is handled with precision — no matter how complex. 
  • International child relocation & parental abduction
  • Hague convention parenting matters  
  • Trans-Tasman divorce and custody
  • Guardianship for expats

OUR Local LEADERSHIP TEAM

Servicing The Greater Sydney Region

Jaswinder (Jas) Sekhon

Senior Lawyer & Principal 
Australia | London | Dubai

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Jaswinder (Jas) Sekhon

Senior Lawyer & Principal 
Australia | London | Dubai

For over 30 years, Jaswinder (Jas) Sekhon has been a leader in international law, delivering outstanding results for private clients and corporations through unwavering dedication, discretion, and excellence. His career escalated when at 27, he was seconded from Sydney to London, gaining invaluable experience in cross-border tax planning for high-net-worth individuals and corporations. This formative experience laid the foundation for Goldman Law, a firm that reflects Jas’s vision of delivering bespoke legal services tailored to the unique needs of clients, prioritizing individuality over wealth or connections.

Jas has an impressive litigation record, excelling in medico-legal matters, patents, and class actions, and is widely respected for achieving exceptional outcomes in high-stakes cases.

His expertise extends across global tax planning, finance, commercialization, cross-border transactions, trusts, estate planning, commercial litigation, and family law. Beyond practice, Jas has co-authored the seminal tax book, Barrett’s Principles of Income Tax and edited or co-authored numerous other international publications on taxation and wealth management.

Jas holds two undergraduate law degrees from the University of New South Wales and a Master of Laws from Sydney University. He is admitted as a solicitor in Australia, England & Wales, the Eastern Caribbean Supreme Court, and New Zealand. Additionally, he has served as a Legal Consultant in the UAE, further solidifying his global influence.

Jas’s career highlights include leading structured finance banking experience with the commercialization of blockbuster films (The Matrix and The Lord of the Rings) and Merck’s world leading drug, Gardasil, as well as co-founding the EU airline start-up Cobalt Air.

Kerry Turner

Senior Manager | Client Liaison & Operations

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Kerry Turner

Senior Manager
Client Liaison & Operations

With over 15 years of experience in client relations and operations, Kerry Turner is the cornerstone of our firm’s coordination and client management. Beyond her vital local role, she serves as a key liaison for our London and Dubai offices, ensuring seamless communication and consistent service delivery across jurisdictions.

As the first point of contact for clients, Kerry exemplifies professionalism, practical insight, and genuine care. She handles inquiries with compassion and directs client needs to our senior lawyers, prioritizing tailored, effective solutions. Her steadfast commitment to understanding and addressing client needs has set the “gold standard” for client service within our firm, transforming how our legal team operates to better serve our diverse clientele.

Kerry’s empathetic nature shines particularly in her interactions with elderly or distressed clients requiring special care. Drawing on her extensive background in human resources, international experience, and the hospitality industry, she brings a unique, human-centric perspective that elevates the standard of our client management. Despite not holding a legal qualification, her ability to connect with clients on a deeply personal level fosters trust and ensures every client feels valued and respected.

In addition to managing client relationships, Kerry fosters seamless collaboration across our legal team, promoting efficiency and unity in daily operations. Her personalized approach ensures that every client’s legal experience is not only stress-free but also positive and productive.

Through her integrity, dedication, and pursuit of excellence, Kerry has become an indispensable leader at the firm. Her compassionate and tireless approach truly embodies the “Goldman Lawyers standard,” inspiring both colleagues and clients alike.

Zeinab Elzein

General Counsel | Senior Lawyer

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Zeinab Elzein

General Counsel
Senior Lawyer

With over a decade of legal experience, Zeinab Elzein (“Zee”) is a highly regarded General Counsel and senior lawyer specializing in family and commercial law.

She has extensive expertise in Australian family law, including complex international matters, and is known for her meticulous approach, unwavering dedication, and deep compassion.

Zee’s commitment to achieving the best possible outcomes has earned her a reputation as a trusted advocate who provides unparalleled support to her clients during challenging times.

While family law is her primary focus, Zee’s background in commercial law sets her apart. Her expertise spans commercial dealings, civil litigation, property law, debt recovery, and even some criminal law matters. Zee has extensive courtroom experience, appearing in the Federal Courts, the Supreme Court of NSW, the NSW Court of Appeal, and the Local and District Courts of NSW.

Zee’s commercial law experience is particularly valuable in family law property settlements, where she excels in uncovering hidden or undisclosed assets.

Her sharp investigative skills have repeatedly delivered successful outcomes. Additionally, her criminal law background has been critical in contested parenting matters involving clients with criminal records or Apprehended Domestic Violence Orders (ADVOs).

While Zee is an experienced litigator, she prioritizes negotiated settlements, believing they often serve her clients’ best interests by reducing conflict.

Outside of work, Zee describes herself as a fearless competitor who enjoys boxing and running—reflecting her drive, determination, and commitment to excellence in every area of her life.

Mathew Nott

General Counsel | Senior Lawyer

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Mathew Nott

General Counsel
Senior Lawyer

Mathew joined Goldman Lawyers in 2020 as an experienced solicitor, bringing with him years of high-level legal expertise and exceptional communication skills that benefit both clients and colleagues alike. Since his admission to the Supreme Court of New South Wales in 2017, Mathew has dedicated his career to providing outstanding legal representation across a broad range of practice areas.

His primary focus lies in criminal and commercial law, as well as estates and trusts, where he works tirelessly to deliver the best possible outcomes for his clients. Mathew’s expertise also extends to property law, medical disputes, family law, and other critical areas, demonstrating his adaptability and depth of knowledge. His ability to think critically and communicate effectively ensures his clients are always informed and empowered throughout the legal process, no matter the complexity of their case.

Before pursuing law, Mathew enjoyed a diverse professional career as a journalist and editor, honing his communication and analytical skills. He also spent over a decade as a senior public health executive in New South Wales and Queensland, experiences that have enriched his perspective and enhanced his ability to connect with clients on a human level.

Mathew holds a Diploma of Law (LPAB), a Bachelor of Arts in Communication (Journalism), and a Certificate of Business Skills from the College of Law Sydney. His varied background and academic achievements underscore his commitment to excellence.

As General Counsel at Goldman Lawyers, Mathew’s unique combination of skills, life experience, and legal expertise positions him as a standard-bearer for client advocacy and legal excellence. His pragmatic and well-rounded approach makes him an invaluable asset to the firm and its clients.

Our Services in Cross-Border Family Law

We Assist With All Aspects of International Family Breakdowns

  • Expert handling of overseas property settlements 
  • Navigating multi-country court proceedings and jurisdictional issues 
  • Cross-border tax, trust, and superannuation concerns 
  • Coordination with legal professionals in foreign countries for recognition and enforcement of orders 

International Child Custody & Parenting

  • Resolving parental relocation disputes and preventing wrongful removal 
  • Hague Convention cases and child abduction response 
  • Drafting and enforcing parenting orders across borders 
  • Helping clients manage long-distance parenting arrangements with dignity and clarity 

Asset Protection & Offshore Interests

  • Preserving wealth through international trust structuring 
  • Managing business valuations and joint ventures across countries 
  • Dealing with crypto assets, real estate, and banking across multiple legal systems 
  • Preventing partner-driven asset concealment in foreign jurisdictions 

Trusted by Successful Individuals & Families

We Bring Our Cross Border Commercial Experience to Family Law

Our clients include:

  • Australian nationals with overseas spouses or children 
  • Families relocating internationally after separation 
  • High-net-worth individuals with businesses or trusts across Asia, the Middle East or the EU 
  • Parents in urgent need of help to prevent unauthorised child relocation or resolve custody disputes under the Hague Convention 
  • Families with children from multiple marriages
  • As a STEP member firm we advise on and protect wealth across generations
  • Clients with assets in multiple countries and unwinding complex business structures when separating

Whether you are in Australia with international assets — or based abroad with family law issues in Australia — we can help. 

Book Your Confidential Strategy Consultation

An Initial Strategy Discussion is Free & Without Charge

You don’t have to manage complex family matters across borders alone. Contact Goldman Law today to schedule your free initial consultation with one of our senior international family lawyers.

🕵️‍♀️ Discreet. Strategic. Experienced.

📍 Offices in Sydney, Melbourne & Brisbane

💬 Rapid responses

Why Clients Choose Goldman Law?

Specialist Cross Border Expertise

“We have successfully handled international family cases involving abduction, dual court filings, offshore asset tracing, and multijurisdictional custody – often under extreme pressure and high financial stakes.”

– Jas Sekhon, Managing Partner​

Award-Winning Lawyers Dedicated to Your Success

Our Past Achievements Reflect Our Commitment

Hear from Our Satisfied Clients

Discover Why Clients Trust Goldman Lawyers

Chel Chappy

I highly recommend Goldman Law. 
Every contact I had with the firm was friendly, professional and understanding.
Jennifer is an outstanding lawyer. I had had a difficult ongoing children’s matter...

Quentin Carmont

A family law matter is never pretty emotions are running hot, everyone thinks they’re right when in reality no one is.
Goldman made the process very easy for me to choose them.
Initial contact with Kim and then a small consultation with Jass there senior lawyer...

Paul Northrop

I have used G&C on numerous occasions for business matters. I have always found them to be incredibly responsive with sound advice. I know that with the G&C team working on my legal matters, it takes the pressure off me and allows me to concentrate on running my business!

Pauline Von Czapiewski

Wonderful team of professionals to deal with from office support to solicitors. Always has a quick response time, and good advice. Incredibly impressed and will be sure to use again in the future...

 

Jane Mac

I have found Goldman’s to be a highly skilled and caring group of lawyers who have guided me many times during periods of uncertainty and stress. I couldn’t do without their considered and professional advice for our businesses.

 

Talia Falo

Goldman & Co handled my case extremely well, gave fantastic advice and overall eased up the tension of the entire situation immensely. I felt they genuinely cared for my well-being and what I am going through so great thanks to them. Would highly recommend...
 

Experience & Trust

With deep local and international expertise for over 30 years.

Growing and protecting successful individuals, family offices and business.

Experience & trust built through sheer hard work

WATCH US & LISTEN TO LEGAL "SECRETS"

Legal Tips & Secrets Revealed! What Lawyers Don’t Tell Their Clients.

INTERNATIONAL & CROSS-BORDER FAMILY LAW FAQS

Compiled With Over 10Years of Data From Real Client Questions

Can I get divorced in Australia if I married overseas or my spouse lives in another country?

Yes. You can pursue a cross-border divorce in Australia as long as you or your spouse has a sufficient connection to Australia (for example, being an Australian citizen or having lived in Australia for at least 12 months).

Australian law recognizes valid overseas marriages, so if your marriage was legally performed abroad, you can still apply for divorce under Australian family law. You’ll need to meet the normal requirements (such as 12 months’ separation) and provide your foreign marriage certificate (with an English translation if necessary), but the process is largely the same as any divorce in Australia.

Call Goldman Law for a free strategy discussion to see if you are eligible under Australian law.

We live in different countries – which country’s laws apply to our divorce and custody case?

If you and your spouse are in separate countries, deciding where to file for divorce and child custody is a strategic decision. In international family law, the choice of jurisdiction can greatly affect the outcome, since different countries have different rules on property division, spousal maintenance, and child custody.

Often, more than one country could have authority (for example, Australia if one partner is Australian, or another country where the other partner lives), and usually the court where proceedings are started first will take control of the case.

It’s wise to seek expert legal advice early From Goldman Law – a lawyer can analyze your situation and advise whether an Australian court or an overseas court would best protect your interests.

How are international child custody disputes handled under Australian law?

International child custody disputes are handled in Australia with the child’s best interests as the paramount consideration, just like any domestic case.
Australian courts can deal with custody (parenting) matters even if one parent is overseas, provided Australia is the appropriate forum – usually this is the case if the child is living in Australia or has a strong connection here.

These cases can be complex: the Family Court may need to coordinate with foreign courts or use international agreements to ensure the parenting arrangements are upheld across borders. In practice, an Australian court will make orders for things like parental responsibility and visitation, and you may then need to have those orders recognized or enforced overseas if the other parent is abroad.

Contact us and a senior Goldman Law lawyer will guide you.

Can I relocate overseas with my child after separation in Australia?

You cannot unilaterally relocate a child overseas after a separation without either the other parent’s agreement or a court order. If one parent wants to move overseas with the child and the other parent does not consent, the relocating parent must apply to the Australian Family Court for permission (often called a relocation order).

The court will carefully consider whether the proposed international move is in the child’s best interests – weighing factors like the child’s relationship with both parents, the reasons for relocation, education and cultural opportunities, and how contact with the left-behind parent would be maintained. It’s crucial to follow the proper legal process and get advice before planning an overseas move with a child, because taking a child abroad without consent can breach Australian law and international treaties.

Contact us and a senior Goldman Law lawyer will guide you.

What is the Hague Convention on child abduction and how does it apply in Australia?

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that Australia has signed to protect children from wrongful removal or retention across borders. It provides a legal process to promptly return abducted children to their country of habitual residence for custody matters to be resolved there. In practice, if your child is taken overseas without your permission (or not returned from an overseas trip), you can invoke the Hague Convention by applying through the Australian Central Authority, as long as the country where the child was taken is also a signatory.

This mechanism doesn’t decide long-term custody – it simply ensures the child is quickly brought back to their home country’s jurisdiction. International child abduction cases are very time-sensitive, so it’s important to act quickly and consult Goldman Lawyers who are very experienced in international family law to guide you through the process.

How are overseas assets divided in an Australian divorce?

In an Australian divorce, all assets – including overseas property, foreign bank accounts, investments, or other international holdings – must be disclosed and will be considered in the property settlement. The Family Court in Australia includes international or offshore assets as part of the total marital asset pool to achieve a fair division between the parties.

You cannot exclude assets located overseas from the settlement; the court can make orders affecting those assets just as it can for assets in Australia.

While enforcement of orders on overseas property may require additional steps or cooperation with foreign courts, this process ensures a fair offshore asset division under Australian divorce laws.

Contact us and a senior Goldman Law lawyer will guide you.

Are assets held in overseas trusts or companies included in a divorce settlement?

Yes. The Family Court of Australia can look beyond complex structures like overseas trusts or companies to identify assets that really belong to either party. If a spouse has control over, or benefits from, assets held in an overseas trust or corporate entity, the court can treat those assets as part of the property pool (or at least as a financial resource) when deciding the property settlement. In other words, you generally cannot shield or hide assets offshore in trusts or shell companies to avoid division.

Goldman Lawyers are very experienced at uncovering such arrangements to ensure a just outcome. It’s wise to get legal advice on these complex offshore asset structures, as untangling them requires expertise.

If we have connections to multiple countries, should we file for divorce in Australia or overseas?

When a couple has ties to multiple countries, choosing where to file for divorce (and handle related matters like property and child arrangements) is a crucial decision in any cross-border divorce.

Different countries’ laws can lead to different outcomes – for example, one country might divide assets differently or have another approach to spousal support or child custody.

Often, more than one country could potentially hear your case, and generally the country where proceedings are initiated first will be the one that proceeds with the divorce.

This makes timing and strategy important: by consulting a senior Goldman Law lawyer we will guide you as specialists in international family law.

Then you can determine which jurisdiction is most favourable for your situation and act quickly to secure that forum.

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BEST DIVORCE & FAMILY LAWYERS E-book

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Court Intervention Held Necessary For General Dyshoria-Related Medical

Keywords:

Family Law – Medical Procedures – Childhood gender dysphoria – Where the child is 15 years of age – Consideration of whether the child is Gillick competent.

In Re: Quinn [2016] FamCA 617 (29 July 2016) the mother and father (“the Applicants”) were the parents of “Quinn”, who was born in 2001. Quinn, who was born a girl, but identifies as male, was seeking to have a bilateral mastectomy, which is often referred to as “top surgery”. The Applicants had requested that the Family Court determines whether Quinn was competent himself to authorise the surgery. Failing that, they sought alternatively, for the Court to make an order that they, the Applicants could authorise the surgery.

Currently Australia requires young people to seek the permission of the Family Court before undertaking any medical treatment before they transition. This is regardless of whether they have family support and the endorsement of a doctor.

The WPATH Guidelines

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 Law – Gillick Competency

The Court looked at an earlier case, Re Jamie [2013] FamCAFC 110, which involved an adolescent with childhood gender identity disorder. In Re Jamie, the Court had held that in cases where the intended treatment was irreversible, the issue for the Court to determine was whether the child was “competent within the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, known as “Gillick competent”. If the child was found to be Gillick competent, the authority of the Court was not required to endorse the procedure.

The Court pointed out that gender identity disorder was not a medical procedure or treatment that falls into the jurisdiction of the Family Court of Australia under section 67ZC of the Family Law Act 1975 (Cth). It would only be relevant should there be a dispute about whether treatment – in stages one or two – should be provided, and what form the treatment should take. In terms of stage 2 interventions, the Court’s recommendation to grant the parents the decision-making authority was appropriate unless the child was deemed Gillick competent.

If the child was found to be Gillick competent, the child could consent to the treatment, and the court’s authorisation was not required. The question of determining whether a child was Gillick competent was a matter for the Court. According to the Court: “The ability of a child to make his or her own decision in respect of medical treatment depends on that child having sufficient understanding and intelligence to make the decision.”

Was Quinn Gillick competent?

According to his mother, Quinn had been dressing as a boy since he was four years old. She also stated that Quinn was very aware of the implications of surgery, the pain and discomfort it would entail, and the fact that it would affect his ability to breastfeed should he change his mind. She deposed that he had never faltered in his desire to have the operation and had become increasingly depressed as surgery had been put off pending the outcome of court processes. He had also independently researched hormone therapy and wanted to start testosterone treatment within the next twelve months. She deposed that she was confident that Quinn was “taking an intelligent, mature and measured approach to his future …” Quinn’s father and some of his treating doctors also provided evidence in terms of Quinn’s Gillick competence.

The Court examined whether there was a dispute or controversy. Although Quinn wished to have irreversible surgery, termed a stage 3 intervention, prior to commencing stage 2 treatment, there were guidelines by WPATH that considered when deviation from the stages may be suitable – for instance when the circumstances of the individual child and clinical judgment would require it. In Quinn’s particular situation, he had not yet embarked on stage 2 treatment, which he wished to start once he turned sixteen, but he wished to have “top surgery” as soon as possible.

The surgery would greatly improve Quinn’s quality of life, in terms of reducing his gender dysphoria as well as decreasing the physiological and physical pain he was experiencing due to his large bust. Moreover, the stage 2 hormonal treatment would masculinise Quinn’s appearance, creating a hairy face and chest. The Court stated that “[t]his would be incongruent with a person with an E cup breast and would certainly contribute and potentially provoke abuse and stigmatisation” which could have a detrimental impact on Quinn’s mental state. Although society had begun to accept transgender individuals, the Court nevertheless felt that they may be less inclined to accept an individual with large breasts, coupled with facial and chest hair. This could create more confusion for Quinn, as he would have a mix of both male and female secondary sexual characteristics.

The primary disadvantage for Quinn in proceeding with “top surgery” prior to stage 2 treatment, is that the hormonal treatment is usually undertaken for 12 months, giving the person time to become socially accustomed to his new gender, before undertaking surgical procedures that are on the whole irreversible. However, Quinn’s case was unique in that his large breasts caused him both physical and psychological pain. And once he embarked on hormonal treatment, his breasts would still be noticeable, exacerbating his gender dysphoria. Quinn also had a history of depression and anxiety, and self-harm. The Court found that any risk of proceeding with the surgery was outweighed by the benefits that Quinn would derive from it.

The Court therefore held that it had no concerns about Quinn undergoing the surgery, rather it was concerned about the impact on Quinn were surgery to be delayed.

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Full Court of Family Court Finds No Child Support Resulting Trust Favouring the

Keywords:

child support; private agreement; school fees; repaid; trust; resulting trust; beneficial interest; administrative assessment; child support trust.

Relative Law:

Family Law Act 1975 (Cth); Child Support (Assessment) Act 1989 (Cth)

Introduction

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.

Background

On 17 July 2008, consent orders were made to establish a child support trust for the children to undertake private school education. At the time the consent orders were made, three of the six children were aged over 18 years of age and the remaining children were 16, 14 and 10 years old. One of the children had an intellectual disability and special needs.

The consent orders included that pursuant to the Child Support (Assessment) Act 1989 the husband was to pay child support to the wife as and by way of departure from administrative assessment. As a result the husband’s annual rate of child support by administrative assessment was reduced to nil. Included in the terms of the agreement was that any arrears of child support were annulled and the wife’s application for child support maintenance be dismissed.

The husband’s intention was to establish a child support trust to eliminate any past, present or future administrative assessment of child support. The husband was ordered to pay $350,000 into a bank out of which both the husband and wife were appointed trustees.

Order 22(4) specified the five following mandatory terms of the child support trust that both parties had to follow:

22(4)(1) until the child support trust is wound up, its capital must be applied to meet the obligations in Order 16.

22(4)(2) the trustee shall pay education or tutoring expenses additional to those specified in Order 16 as agreed between the parties in writing.

22(4)(3) the trustee shall cause the child support trust to be wound up on 31 December 2015, unless the parties agree in writing to extend the date for the winding up of the trust.

22(4)(4) upon the winding up of the trust, the trustee shall hold any residual corpus in the child support trust for the child absolutely.

22(4)(5) all income of the child support trust is to be paid to the husband as and when it is received, on the basis that the Husband is solely responsible for:

1 all costs associated with the administration of the child support trust (except the costs referred to in Order 22.2); and

2 all tax arising on income received by the CST.

The Appeal

The primary ground of the husband’s appeal asserted that the main purpose of the trust was for the sole purpose of financing private school fees for the children.

Judge Aldridge concluded that from the terms that ‘the surplus is there for his [the child’s] benefit’. Judge Aldridge disagreed that the primary purpose of the trust was for education alone and therefore the trust had not failed.

Judges Strickland, Murphy and Kent agreed with Judge Aldridge that the child support trust did fulfill its primary purpose and that the child support trust had several purposes.

With the husband’s resulting trust argument, the court thought there was nothing novel nor contentious about the proposition that a resulting trust be set up in favour of the settlor as “part of the beneficial interest of the property in question which has not been disposed of by the express trust”.

Their Honours determined that with trusts, the circumstance determine the issue. They cited Byrnes v Kendle (2011) 243 CLR 253 where the legal effect of the child support trust was not affected by the secret intentions of the parties but the overall manifest intentions of the parties. The intentions of the parties was clear from the terms establishing the child support trust and reinforced by the circumstances. There was no express terms that the residue of the trust was to revert to the husband, nor was there any term alluding to such an outcome.

In their joint judgement Judges Strickland, Murphy and Kent stated that there was merit in the submissions made by the case guardian that:

The ordinary rules of construction as applied to the construction of contracts are applied in the interpretation of a Court Order: JKB Holdings Pty Ltd v de la Vega[2013] NSWSC 501 Lindsay J at 87;b. The fact that an inter partes contract/agreement was intended to be, and was in fact, given expression in orders of the Court must be taken into account: JKB Holdings Pty Ltd v de la Vega (above) at [82] citing Morgan v 45 Flers Avenue Pty Ltd(1987) 11 NSWLR 573 at 579;c. Where the terms of the Court’s order are sufficiently clear to govern the parties’ rights, the Court does not resort to extrinsic evidence of their intention: at 85 citing Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352: Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 at 3 to 5; andd. The same rules of construction of contracts apply to trusts: Byrnes v Kendle per Heydon and Crennan JJ at 102.
Judges Strickland, Murphy and Kent found no merit in the husband’s contention that he retain any beneficial interest in the child support trust. Their Honours consequently rejected the husband’s claim that the residue of the trust be held in a resulting trust in the husband’s favour.

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Convicted Paedophile Father’s Appeal Against a No Communication Order

Keywords Family Law Act, s 60CE; paedophile father; no communication order; psychological harm 

Introduction

Malak & Mairie (No. 2)[2016] FamCAFC 120 (6 July 2016) the Full Court (Murphy, Kent & Austin JJ) heard an appeal by the father who was serving an 18 year prison sentence for sexual offences. The Full Court had the difficult decision determining whether the father had a parental right to have contact with his children.

Background

The Appellant is the father of three children: a girl (“C”) aged 16 and a twin boys, (“D and E”) aged 12. The father had been serving an 18 year sentence with non- parole for a period of 13 years for a number of sexual offences. These offences were “vile and serious” in nature against his stepchild (“K”), aged 12, at the time of the offence and C.

On 21 July 2015, Berman J made parenting orders, which was to exclude the father from having parental responsibility for the children, and to prevent him from communicating with them by any means. At the time the orders were made the children had not seen their father for a period of 5 years. From those orders the father appealed.

On appeal the Father had argued that his Honour erred in considering the views of the children as the views were not ascertained by the Family Consultant.  The Family Law Act 1975, s 60CE provides specifically that ‘[n]othing in [Part VII] permits the court or any person to require the child to express his or her views in relation to any matter’. Secondly, mandatory principles for conducting child-related proceedings require the court to ‘consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings’.

Decision

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.

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Insolvency – Challenging The Lender and Default Penalty Interest

The recent case in Arab Bank the importance of ensuring that default interest rate clauses are properly analysed and considered. Whilst it is open to challenge their ease becomes a question of fact and expert evidence in this case illustrates some useful starting points.

It may be that the lender has contributed to an insolvency or has over claimed the interest on interest and a legal challenge by the liquidator may lead to a suitable settlement being reached.

EXECUTIVE SUMMARY

Arab Bank provided a loan to a property developer and included in the documents a 2% default interest rate and the question was whether this 2% default interest rate was a penalty? The borrower repaid the whole of the loan but had to repay a significant extra amount

The court came to the conclusion that this default interest rate (which was added to the existing interest rate) was not a penalty because it was not seen to be punishing the borrower, it was not extravagant or unconscionable and it was not out of all proportion compared to the maximum conceivable loss that the lender could incur.

Incentive vs Penalty

The court agreed the law recognises a distinction between a clause which provides an incentive for prompt payment and a clause where the applicable rate of interest is increased upon failing to make a prompt payment.

The court further recognised that provisions which operate prospectively when the increased interest rate applied only to outstanding payable amounts post the event of default is seen not as a punishment for default, if they constitute a genuine pre-estimate of compensation to the bank for late payment.

Ultimately the court considered the imposition of the penalty rate for a minor. Arab Bank provided a loan to a property developer and included in the documents a 2% default interest rate and the question was whether this 2% default interest rate was a penalty? The borrower repaid the whole of the loan but had to repay a significant extra amount

The court came to the conclusion that this default interest rate (which was added to the existing interest rate) was not a penalty because it was not seen to be punishing the borrower, it was not extravagant or unconscionable and it was not out of all proportion compared to the maximum conceivable loss that the lender could incur.

WHY SHOULD I READ THIS. What This Means For You!

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.

THE MEATY PART

The 24 payments referred to were made between 20 April 2009 and 21 June 2013. Of the total sum, $50,244.44 represented default interest that was charged by the defendant in respect of repayments not paid by the due date, but which repayments were paid within three working days of the due date. Those payments represent the plaintiff’s alternative claim.
The issue in the plaintiff’s primary case therefore, is whether the charges paid by the defendant for late payment, which it referred to as “penalty interest”, charged at the default rate of interest under the facilities, on the whole amount of the debt outstanding, were penal in nature and therefore repayable to the plaintiff. Determination of that issue involves a consideration of the relevant contractual arrangements between the parties, consideration of the evidence, and in particular, the expert evidence relied on by both parties, and the application of well settled legal principles.(See table- insert)The court found that the payments charged, by way of penalty interest by the defendant, on the plaintiff’s account, and paid by the plaintiff on the relevant dates set out above, constituted a penalty and therefore are repayable to the plaintiff and a verdict and judgment for the plaintiff in the amount claimed of $352,302.00.

Who else is this important for implications for lenders and borrowers!

• Provisions that aim to recover legitimate business costs that are not out of all proportion to the interest that it is intended to protect will not be a penalty.
• The courts will take a commercial approach in assessing similar default interest clauses. The costs that may be considered include both direct and indirect costs. These include, but are not limited to:
1. capital adequacy costs;
2. regulatory costs (compliance with Australian Prudential Standards, Basel II);
3. recovery costs;
4. provisioning costs;
5. reserve costs; and
6. head office and labour costs.

Takeaway points and follow-up

The Court adopted the commercial approach taken in the recent High Court decision in Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28 which affirmed ANZ’s right to charge late payment fees in relation to credit card transactions. In upholding the default interest clause by reference to evidence as to the bank’s costs arising on default, the latest decision has provided greater certainty concerning default interest charges.

Goldman lawyers are skilled and analysing these requirements under the family Law act, trusts, litigation and complex property and securities law.

Speak to a Goldman & Co senior lawyer if you are either a lender or borrower and are concerned about being overcharged or penalized or seek to review the terms of your loan agreement(s).

Technical case reference

Arab Bank Australia v Sayde Developments Pty Ltd [2016] NSWCA 328

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“The Bank Took My Estate!” Bank or credit card lending penalty clauses – is interest on interest legal?

Keywords: Family Law; parenting; artificial insemination; Family Laaw Act, section 60.

Introduction

The Family Law Act identifies children born as a result of artificial conception procedures under section 60H. The child’s parents are recognised by the following two elements:

  1. the woman was married to, or a de facto partner of, another person, that being the other intended parent; and
  2. if the intended parent provides consent to the procedure.

In the case Clarence & Crisp [2016] FamCAFC 157, a mother and her former same sex partner engaged in costly court proceedings to determine who was the rightful parent of their five year old child.

Background

 The parties commenced their de facto relationship in 2004, with the parties separating in 2011. The birth mother of the child, Ms Clarence, the Applicant, alleged that her former partner, Ms Crisp, the Respondent, had vacated the joint dwelling in March 2011, 4 months before the procedure.

The Respondent was of a different opinion, as she believed the separation date to be one month after the conception of the child. Ms Crisp had donated her eggs because she knew the importance of motherhood to the other party and had hoped for the parties to reconcile after implantation. The presiding  judge was of the opinion that:

“If the parties were in a de facto relationship on that day [of     conception] then they were both the child’s ‘parents’ for the purposes of [s 60H of] the Family Law Act 1975 … ”

In addition the court considered evidence of 850 text messages between the parties whom had exchanged their love and commitment up to the implantation of the Respondent’s eggs. Despite the parties living separately at the date of conception, they were deemed to be in a de facto relationship. Further evidence suggested that the parties remained romantic, with the respondent arguing that she continued to spend overnight stays weekly at the birth mother’s home.

Decision

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.

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Husband’s Appeal Against Order To Pay $12m from Family Business to Ex-Wife Upheld

Keywords: Family Law Act, s79(2), 79(4); contributions; assessment of business assets; distribution of matrimonial property; appeal against original property orders.

Introduction

The case of Turner and Anor [2016] FamCAFC 121 (8 July 2016) (May, Ainslie-Wallace & Cronin JJ) heard the husband’s appeal against an order made by Macmillan J that the wife be paid a lump sum of $12 million following an undefended hearing, whereby the husband failed to participate in the proceedings ‘in any meaningful way’.  The order was made in respect of an asset pool of $25 million, largely comprising of the husband’s minority interests in a family-owned private company and unlisted public company.

The basis of the appeal was that the trial judge did not come to a just and equitable determination, required in family law property proceedings pursuant to s 79(2) of the Family Law Act 1975 (“the Act”), and erred in the judge’s determination of the husband’s interest in and level of control over the finances of the companies.

Background

Following a 19-year marriage and one child (age 17), the husband separated from the wife and left the matrimonial home. The husband was an employee, shareholder, director and Chairman of the Board of Turner Holdings (“TH”). He was also a director, shareholder and the Company Secretary of Turner Pty Ltd (“TPL”), which was a family-owned and controlled investment vehicle. The wife had the role of a homemaker and primary carer for their child.

The wife commenced proceedings in 2013. From the outset, the husband was totally ‘unwilling to grasp the reality and inevitability of the wife’s entitlement to property settlement’. The trial judge placed emphasis on the husband’s failure to ‘participate in the proceedings’ and his failure to meet his obligations of disclosure, particularly those in the corporate valuation exercise.

The husband appeared on first mention along with the second named defendant, TPL, which was represented by its solicitor. Three days before the final hearing the husband sent an e-mail to the trial judge’s associate concerned that the financial information presented by the wife was ‘grossly exaggerated’ and requested a telephone call to discuss the matter. Following a reply sent by the Registry explaining it was not appropriate for him to communicate with the chambers of the Judge, the husband failed to appear and was unrepresented at the final hearing.

The trial Judge agreed with the wife’s submissions that the ‘way in which the husband conducted proceedings, his failure to provide full and frank disclosure and his refusal to co-operate with single experts in the case’ are relevant considerations in relation to the identification and valuation of the property. The Court therefore accepted the wife’s valuation of property and an expert forensic accountant, that the parties’ assets were valued at just over $25 million. After considering the relevant provisions of s 79(4) of the Act (dealing with contributions made during marriage in determining a property settlement), the trial judge determined that the husband should pay the wife a $12 million lump sum.

The Appeal

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.

Decision on Appeal

The Full Court agreed with the husband’s submission that there was some onus on the wife seeking orders in an undefended hearing to establish, on the balance of probabilities, that the fixed money order could be met from sources other than the sale of shares if she was urging the court to ignore otherwise probable deductions. The Full Court found the trial judge failed to note that access to funds in TH required co-operation from other shareholders and therefore her Honour was in error for concluding that no discount should be applied. Thus the appeal was allowed and the case remitted for re-hearing.

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