Heard and De Laine [1996] FamCA 31 (29 March 1996).
http://www.austlii.edu.au/au/cases/cth/FamCA/1996/31.html
Sydney, Australia
1300 00 2088
Category Archives: Family Law
G v H [1994] HCA 48
G v H [1994] HCA 48; (1994) 181 CLR 387; (1994) 124 ALR 353 (19 October 1994).
http://www.austlii.edu.au/au/cases/cth/high_ct/181clr387.html
A child’s paternity had been inferred by the Full Court of the Federal Court of Australia by reason of matters including the father’s refusal to undergo a paternity test.
On appeal to the High Court, it was argued that the adverse inference was not just in the light of the evidentiary rule set out in Briginshaw v Briginshaw (that for issues of importance and gravity arising in a civil case, serious consideration be given as to whether the necessary degree of reasonable satisfaction or persuasion that the alleged facts are more likely than not to exist).
The High Court held that whilst paternity is a serious matter, it was just to draw the adverse inference against the putative father because the paternity test was capable of conclusively determining the child’s paternity and that the child’s right to maintenance and support should not depend on establishing paternity in accordance with the Briginshaw test.
“ Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided … Paternity is a serious matter, both for father and for child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. After all, paternity can be determined easily and, for practical purposes, conclusively. And now that that is so, it is difficult to see why, if a person who could be the father declines to participate in procedures which will provide proof one way or the other, the child’s rights to maintenance and support should nonetheless depend on the biological fact of paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrongdoing. …”
Sydney, Australia
1300 00 2088
ZP v PS [1994] HCA 29
ZP v PS [1994] HCA 29; (1994) 181 CLR 639; (1994) 122 ALR 1; (1994) 68 ALJR 554 (29 June 1994).
http://www.austlii.edu.au/au/cases/cth/high_ct/181clr639.html
Sydney, Australia
1300 00 2088
Salacup and Salacup [1993] FamCA 120
Salacup and Salacup [1993] FamCA 120; (1993) FLC 92-431 (23 November 1993).
http://www.austlii.edu.au/au/cases/cth/FamCA/1993/120.html
Sydney, Australia
1300 00 2088
In the Appeal Of: Suzanne Best Appellant and Gary William Best [1993] FamCA 107
In the Appeal Of: Suzanne Best Appellant and Gary William Best [1993] FamCA 107 (8 October 1993).
http://www.austlii.edu.au/au/cases/cth/FamCA/1993/107.html
Sydney, Australia
1300 00 2088
Department of Health & Community Services v JWB & SMB (“Marion’s case”) [1992] HCA 15
ON 6 May 1992, the High Court of Australia delivered Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992).
“Children – Intellectual disability – Sterilization – Power of parents to consent – Assault – Parens patriae jurisdiction of court – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187 188.
Family Law (Cth) – Family Court – Jurisdiction – Welfare – Parens patriae – Intellectually disabled child – Sterilization – Power of Court to authorize operation – Effect of authorization on criminal law – Family Law Act 1975 (Cth), ss. 63, 64, 64E – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187, 188.”
The court held that the parents of a 14 year old mentally retarded girl from the Northern Territory could not lawfully authorize a sterilization procedure on their child without an order of a court.
The court held that the Family Court of Australia has the jurisdiction to authorize the carrying out of a sterilization procedure but could not approve consent being given to the parents unless the court authorizes the procedure.
Whilst parents or guardians may authorize or consent to the carrying out of a therapeutic treatment of their child, they have no such power regarding non-therapeutic treatment.
Sterilization of an intellectuallly disabled minor falls outside of the ordinary scope of parenal powers if the procedure is not obviously necessary.
Children have the right to personal integrity under domestic and international law. Procedures, such as sterilization, are “invasive, irreversible and major surgery”. It is up to the court, not the parents or guardians, to decide the appropriate circumstances that are in the best interests of the child.
http://www.austlii.edu.au/au/cases/cth/HCA/1992/15.html
1300 00 2088
Harris v Caladine [1991] HCA 9
ON 17 APRIL 1991, the High Court of Australia delivered Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991).
Parts of the Family Law Act 1975 (Cth) allowing Judges of the court to make rules delegating judicial powers to registrars and non-judical officers were held to be valid and not in breach of the doctrine of separation of powers found in s71 and Chapters II and III of the Australian Constitution.
Family Court Judges may make rules and delegate their powers as long as they continue to bear the major responsibility for the exercise of judicial power. The delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions must be subject to review or appeal by a Judge.
Sydney, Australia
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M v M [1988] HCA 68
M v M [1988] HCA 68; (1988) 166 CLR 69; (1988) 82 ALR 577; (1988) 63 ALJR 108 (8 December 1988).
http://www.austlii.edu.au/au/cases/cth/HCA/1988/68.html
Sydney, Australia
1300 00 2088
Baumgartner v Baumgartner [1987] HCA 59
ON 10 DECEMBER 1987, the High Court of Australia delivered Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 (10 December 1987).
http://www.austlii.edu.au/au/cases/cth/HCA/1987/59.html
The parties had lived together in a de facto relationship. They pooled their earnings to meet all outgoings of the joint relationship, including mortgage payments over the family home purchased with the husband as the only registered proprietor.
After about four years the relationship came to an end. The wife sought a declaration that she held an interest in the property in trust. The husband asserted that only he held the legal title to the property.
The court held that the wife held a beneficial interest in the property by way of constructive trust.
Per Mason CJ, Wilson and Deane JJ at 149:
“The case is accordingly one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant’s assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.”
The High Court declared that the parties hold beneficial interests in the property of 55% to the husband and 45% to the wife, subject to adjustments.
Sydney, Australia
1300 00 2088
Norbis v Norbis [1986] HCA 17
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 (30 April 1986).
http://www.austlii.edu.au/au/cases/cth/high_ct/161clr513.html
Sydney, Australia
1300 00 2088
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