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.

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

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’.

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.

 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.

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.

During the parties’ relationship they had one child together in 2012.  In December 2012 they separated.  Interim parenting orders were made on 28 September 2013 and final parenting orders were made by consent on 3 June 2014 providing for equal shared parental responsibility of the child.

Thereafter, the child was to live with the mother and have contact with the father on an increasing basis over time.  However, after August 2014 the mother stopped allowing the father to have contact with the child.

As the mother was withholding care of the child from the father despite the court orders requiring such contact, the father filed a contravention application in January 2015.  The father alleged that the mother was withholding the child from the father without reasonable excuse.  On 25 March 2015, the contravention application was heard before the trial judge.  However, the trial judge adjourned the hearing after the mother filed an affidavit on 20 March 2015 alleging that the father had sexually abused the child.

The father responded by making an application for costs which was to be heard at the contravention hearing scheduled before the Court in May 2016.  On 21 and 22 May 2015, the contravention application was heard before the trial judge.

During the trial, the mother was cross-examined with regard to her sexual abuse allegations made against the father.  The trial judge made the following observation:

The mother’s evidence was concerning, in that she seemed to be having difficulty in remembering any of the sequences of events; who had told who anything at any point in time; who had made notifications to the Department of Child Safety; why she had done anything at any point in time; including why she had persisted in sending the child to spend unsupervised time with the father notwithstanding having had concerns apparently since April 2014 that the child was at risk of sexual harm in the father’s care; why she then entered into final parenting Orders in June 2014 notwithstanding these apparent concerns…

On the next day of the trail, the mother collapsed in the Courtroom and the matter was adjourned.  The matter was heard later in 2015.

In the hearing the mother’s legal representatives told the court that the mother admitted she had no legal excuse for contravened the parenting orders.  On that basis, the father orally applied to have the parenting orders varied so the child could live with him and asked for costs.  The trial judge refused to vary the parenting orders.

After a 20-year marriage, the parties separated finally when the husband left to move in with his de facto partner. The parties divorced some 10 years later in 2014. The wife remained in the matrimonial home which was owned by the parties as joint tenants. In 2014 the husband filed an initiating application seeking orders for the division of assets between himself and the wife.

The husband died early in 2015. His death fell between the dates the proceedings commenced and the trial in February 2016. In May 2015, probate of the husband’s estate was granted to the husband’s brother, Mr Paxton. Pursuant to orders made, Mr Paxon was substituted as applicant in the proceeding in his capacity of the husband’s legal personal representative. As joint tenants, the wife became the sole proprietor by survivorship of the matrimonial home.  Her status as a surviving joint tenant, however, was yet to be registered and she sought an order permitting her to ‘remain in the matrimonial home as a home for her and her children’.

Both parties agreed that the matrimonial home would have to be sold if any division of property in favour of the husband were to be ordered and agreed on the value of $380,000. The wife was of very poor health, financially destitute and had no apparent prospect of future employment. The adult son was mentally infirm, and the adult daughter suffered from a form of cerebral palsy as well as learning difficulties.

The wife continued to be the primary homemaker and care-giver to her children, although adults, who continued to reside with her. The physical and intellectual difficulties of the children meant they would likely reside with her well into the future. The ultimate question for the Court was whether it was just and equitable that the matrimonial home be sold in light of the factors above.

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.

It was  clearly the view of the father that the children remain with the mother. The fact that the father had a preference that the children remain with their mother in Sydney shows the Court that the father has a sensible, proper and realistic approach to who the children should remain with. The children had always been cared for by their mother while the father pursued his career and financially supported the family. The Court recognised that the father can only purse his employment in Sydney. The mother’s partner is now pursuing his career, which is taking him to Perth.  The mother never contemplated for one moment the father would challenge her taking the children to Perth and the children all along believed they would move to Perth to be with their mother. The mother gave clear reasons for moving which were not malicious and all which were acceptable to the Court.