In 2012–13, judges of the Family Court of Australia handed down judgments at both first instance and appellate levels. The decisions reflect the Court’s expansive jurisdiction, the wide variety of issues that it addresses, and its position as a superior specialist federal court that deals with the most complex and serious family law cases.

A selection of significant and noteworthy first instance and Full Court judgments are published here.

The Court recognises that the accessibility of its judgments to the public is important. It commits the resources required to ensure that every final judgment delivered is anonymised and published consistent with s 121 of the Family Law Act 1975 (Cth).

Virtually all judgments, after anonymisation, are published in full text on the Australasian Legal Information Institute (AustLII) website. There is a link to the AustLII site from the Court’s website (www.familycourt.gov.au). Recent decisions are also published on the Court’s website for a period of two months. This policy has enabled the Court to better respond to community interest and concerns about particular cases highlighted in the media and demonstrates the commitment of the Court to being open and accountable for its judgments.

Selen & Selen

[2013] FamCAFC 39 (22 March 2013) (Coleman, Ainslie-Wallace and Rees JJ)

Appeal—accrued jurisdiction—intergenerational transfer of property by way of deed—absence of consideration—deed unenforceable

This appeal, brought by one of the sons (“C”) of a divorced couple, concerned the status of a deed designed to effect the intergenerational transfer of property.

In 2005, the husband and wife, along with a corporation beneficially owned and controlled by them, arranged to transfer property of the husband, wife and corporation to the couple’s two sons. The sons would take legal ownership of the properties, while the husband and wife would retain a life interest so that they could continue to reside in their home.

The deed instrument purporting to covenant the intended transfers was signed by all five parties (the four family members and the corporation) in or around May 2005. Within that same month, the parties came into dispute about how to implement the terms of the deed. The husband and wife executed new wills bequeathing their property to each other. Together with the company and one of their sons, the husband and wife also signed a document purporting to revoke the deed. However, their other son, C, refused to provide his signature, asserting that he did not wish to abandon his entitlements under the deed. None of the transfers of land foreshadowed by the deed were carried out.

Later, in 2007, the husband and wife separated. Property proceedings under s 79 were commenced by the husband in August 2007. Those proceedings were still on foot at the time of the husband’s death in July 2010.

In July 2009, prior to the husband’s death, C issued proceedings in equity in the Supreme Court of NSW, naming as respondents to the action the other four parties to the deed. The Supreme Court on 20 August 2009 transferred the equitable claim to the Family Court. From this point onwards, both the s 79 application for property distribution, as between the husband and wife, and C’s equitable suit, seeking compliance with the terms of the deed, were before the Family Court.

The first instance judge accepted that the equitable claim attracted the accrued jurisdiction of the Family Court. The wife unsuccessfully challenged this point on appeal. After analysis of the authorities, the Full Court held that the issues at large in the equitable claim were “a ‘subset’ of the issues underlying the matrimonial cause” (at [48]). The property to be available for distribution pursuant to s 79 was directly dependent on the outcome of C’s claim. C’s success would see a “substantial” reduction in—if not elimination of—the marital pool (at [6]). The Full Court observed at [47] that “the existence of a single justiciable controversy does not require” that the proceedings entertained under the exercise of the accrued jurisdiction raise issues “identical” to those in the federal proceedings.

Nonetheless, the wife was ultimately successful in her appeal, by way of her challenge to C’s asserted rights in equity to compliance with the deed.

At first instance, the deed was deemed contractually enforceable on the basis that C had provided good consideration to his parents via “the grant of life interests and rights of occupation” to them (at [64]). Thus the first instance orders compelled the wife to “perfect the gifts” provided for in the deed (at [73]).

The Full Court accepted that the deed represented an imperfect and incomplete gift because the husband and wife had not executed transfers of land in accordance with the terms of the deed (at [81], [101]). While promises had been made under the deed, no steps had been taken to materialise the promised gifts.

The key issue, according to the Full Court (at [65]), was

whether [the deed] constituted a promise to make gifts from which the purported donors resiled before the gifts were perfected, in circumstances where, it is not in doubt, neither the instruments of transfer [nor certificates of title] necessary to perfect the gifts ... were provided, or whether ... the promises ... were supported by consideration from C in circumstances entitling C to rectification and specific performance ...

Their Honours acknowledged that “the distinction between a gift and an agreement supported by consideration ‘is not always obvious’” (at [81]).

In this case, though, their Honours concluded that the failure of the husband and wife to take steps to transfer property to C in accordance with the deed effectively barred C from being able to provide consideration such as would compel compliance with the promises in the deed: “the only consideration upon which C could seek to rely was the granting of the right to occupy the main homestead upon the lands which were to be transferred to him pursuant to the [deed]” (at [82]). Contrary to the decision at first instance, the Full Court did not accept that the “reciprocal” promises of the parties, as manifest in the deed, constituted appropriate consideration (at [102]). There had thus been “a total failure of consideration” (at [82]).

Further, the Full Court observed that C had not argued the existence of an “inducement” to sign the deed nor demonstrated some form of other reliance upon the deed (at [99]). In all the circumstances, the Full Court held at [102] that equity was not available to rectify the imperfect gift: C “was a volunteer who required equity’s assistance to complete the gifts, which [it] cannot do” (at 101]).

Upon allowing the appeal, the Full Court declined to remit the matter for re-hearing. Their Honours noted that the wife’s matrimonial cause remained on foot, and that C remained a party to those proceedings, in which he may “amend his claim to seek such relief as he is advised ... whether that be pursuant to s 79 ... or ... equitable principles” (at [141]).

Pascarl & Oxley (Edited)

[2013] FamCAFC 47 (26 March 2013) (Bryant CJ, Faulks DCJ and Finn J)

Appeal—choice of forum—principles governing jurisdictional discretion determined by the nature of the application

In this matter, child-related proceedings were on foot in both the Family Court of Australia and the Family Division of the High Court of Justice of England and Wales. The father was resident in Australia. It was thus not in question that the Family Court had jurisdiction to hear and determine the application for parenting orders before it. However, because there were two competing fora—Australia and the United Kingdom—the Family Court was able to exercise its discretion in deciding whether or not to hear the case.

On appeal, the Full Court was asked to elucidate the appropriate test to be applied towards the exercise of that discretion. The appellant father asserted that the wrong test had been applied. The Full Court concurred, and allowed the appeal on this ground.

In its edited judgment, the Full Court first closely examined existing case law on the exercise of jurisdictional discretion. The Full Court concluded at [86] that the character of the application before the Family Court itself establishes the principles to be applied in resolving whether or not to accept jurisdiction:

[T]he principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.

As such, if, as in this case, an application is made for parenting orders under s 64B, then the Court must consider the best interests of the child as the paramount consideration going to the jurisdictional discretion.

Mason & Mason

[2013] FamCA 424 (7 June 2013) (Ryan J)

Surrogacy—parenting orders—statutory interpretation—declaration as to parentage not available in the circumstances

In 2011, twins were born in India pursuant to a gestational surrogacy agreement between the applicant and first respondent (“the respondent”; collectively “the parties”) and the Indian birth mother. The parties are a same-sex couple and they are Australian. The applicant is the biological father of the twins; the identity of their biological mother is unknown, as she donated her ova anonymously. Because their father is an Australian citizen, the children have been granted Australian citizenship by descent. There is no biological kinship between the respondent and the children.

In preliminary remarks, Ryan J observed that it was “troubling” that the contractual document, governing conception, gestation, birthing and eventual transfer of the children to the parties, was written in English and signed by the birth mother with only a thumb print (at [4]).1 However, at the behest of the Court, the parties eventually produced sufficient documentation to demonstrate that the birth mother had understood and consented to the surrogacy agreement, that she had been served with the applicant’s application to the Court, and that she had consented to the application proceeding before the Court.

By his application, the applicant sought parenting orders and a declaration of parentage under the Family Law Act 1975 (Cth). The applicant was successful in obtaining parenting orders in favour of both himself and the respondent. There was compelling evidence as to the parties’ parenting capacity and devotion to each other and the twins, and in circumstances where neither the birth mother nor biological mother sought ongoing involvement in the children’s lives, the parties were granted equal shared parental responsibility. A further order provided that the children were to continue to live with the parties.

The family consultant gave evidence as to various issues it was anticipated the children may confront. Their parents’ sexuality and their own effective distance from their Indian cultural heritage represent potential loci for identity confusion, according to the family consultant. However, the family consultant opined that as a family unit, the applicant and respondent exhibit significant “protective factors” that “suggest good outcomes for these babies in term of their emotional and psychological development”:

The emotional availability of the parents and their responsiveness to their infant children may prove to be one of the strongest indicators for positive self esteem. The parents are warm and open, without significant psychological issues and they are able to acknowledge and separate their own issues from those of their children’s. [The applicant and the respondent’s] capacity to reflect on their babies’ experiences and their ability to ponder the road ahead for them and take into account their future needs are indicators of a strong reflective capacity in parents, a significant positive factor in parenting. The other factor that [the children] will benefit from is their parent’s healthy, intact relationship and the positive role model of their conflict resolution. [The applicant] and [the respondent] are assessed as having a strong commitment to the long term welfare of [the children].

(family consultant’s report as cited in reasons for judgment at [64])

Ryan J wholly accepted the family consultant’s evidence that the twins “‘will thrive’ in the care of the applicant and respondent” (at [68]) and found that it was in the children’s best interests that parenting orders be made in the parties’ favour.

However, her Honour declined to make a declaration of parentage as sought by the applicant. Although observing that “declarations along those lines are in the children’s best interests” (at [6]), her Honour was constrained by the Family Law Act and the NSW state legislation prescribed by it. As her Honour noted at [7], the fact of the children’s Australian citizenship by descent is not determinative of “the children’s parentage for the purpose of parenting orders”, meaning that although the applicant is the biological father of the children, he is not automatically recognised as their parent at law.

Under Part VII of the Family Law Act, “children may variously be deemed, presumed or declared the child of a person” (at [15]). For children born of artificial conception procedures or through surrogacy arrangements, ss 60H and 60HB operate respectively to determine parentage. Her Honour held that, under the generalia specialibus rule of statutory construction, these specific provisions apply to the exclusion of more general provisions in the Family Law Act pertaining to parentage. At [33], her Honour explained:

it is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions.

Further, her Honour concluded on similar grounds that s 60HB, rather than s 60H, is the relevant provision for determining parentage in surrogacy cases. While surrogate pregnancies usually proceed via technologically-assisted conception, and therefore “would appear [to] meet the definition of an artificial conception procedure” in accordance with s 60H, her Honour considered that the simultaneous introduction of ss 60H and 60HB reflected the intention of Parliament to contain surrogacy parentage to the ambit of the specific provision, namely s 60HB. This has the effect of mimicking in federal law the various state-based schema for determination of parentage, creating “on a state by state (and territory) basis, a uniform system” (at [33] and see also [28]).

Section 60HB(1) provides that where a state or territory court makes an order under a prescribed law that “a child is the child of one or more persons” or “each of one or more persons is a parent of a child”, then the child is the child of each of those persons for the purposes of the Family Law Act. Section 12 of the Surrogacy Act 2010 (NSW) (“the Surrogacy Act”) is the prescribed NSW legislation. It in turn reads that the Supreme Court of NSW “may make a parentage order in relation to a child of a surrogacy arrangement” (s 12(1)). A parentage order so made has the purpose of transferring the parentage of a child born via surrogacy (by s 12(2)). Thus, as her Honour describes,

[i]t would seem, that in relation to children born by a surrogacy arrangement, the scheme of the [Status of Children Act 1996 (NSW)] and Surrogacy Act is that presumptions of parentage are dealt with by the former Act and the transfer of parentage from persons presumed to be parents to persons who are not presumed to be parents is dealt with by the Surrogacy Act …

According to her Honour’s reasoning, the applicant could only be recognised under the Family Law Act as the parent of the child if a parentage order was first made by the Supreme Court of NSW. Her Honour therefore stood the application for a declaration of parentage out of the list, pending any further submissions that the applicant may wish to make in response to her Honour’s articulated reasons for judgment.

Noll & Noll

[2013] FamCAFC 24 (28 February 2013) (Bryant CJ, Finn and Strickland JJ)

Appeal—accrued jurisdiction—financial agreement—cross claim against law firm for damages—jurisdiction not enlivened

In this case, the appellant husband challenged a first instance finding that the Family Court’s accrued jurisdiction did not extend to the determination of a damages claim against a law firm, Law Firm A, in circumstances where Law Firm A had advised the respondent wife on the effect of a financial agreement to be entered into by herself and the husband pursuant to s 90C of the Family Law Act 1975 (Cth) (“the Act”).

The husband and wife signed the financial agreement in February 2007. They did so prior to the public float of a company of which the husband was a director and also in which he held shares. Under the agreement, the husband’s shareholding in the company was to be excluded from the marital property pool should the husband and wife divorce.

In February 2009, the wife commenced property proceedings in the Family Court as the marriage had come to an end. On 1 September 2011, as part of those proceedings, the wife filed an amended initiating application seeking, inter alia, to have the s 90C agreement either set aside or declared not binding. Various grounds were advanced by her in support.

The husband, in turn, filed a further amended response encompassing both a reply to the wife and a cross claim for damages against Law Firm A. The husband sought to have the cross claim heard in the Family Court under the aegis of the Court’s accrued jurisdiction. On 28 October 2011, Le Poer Trench J heard argument on whether the accrued jurisdiction captured the putative cross claim.

His Honour held that it did not. According to his Honour, there was no nexus between the wife’s federal claim, being for relief from the s 90C agreement in the context of s 79 property proceedings, and the husband’s cross claim against Law Firm A, such that they together constituted a single justiciable controversy. As his Honour explained at [40]:

It is not necessary to determine the action against [Law Firm A] in order to determine what property the parties have for distribution by court order pursuant to section 79 or otherwise. The fact is, as pointed out above, quite the reverse is the case, namely the damages the husband seeks against [Law Firm A] could not be assessed until the court has made orders for property division under section 79 or otherwise.

This result was upheld on appeal. Firstly, it was not evident on the material before the Full Court that the husband’s damages claim arose from the same factual matrix as the wife’s claim against the husband: it was not “certain … that the entire factual basis for the husband’s claim against Law Firm A would coincide with the factual basis for the wife’s claim against the husband” (at [37]).

Having thus held that there was no perfect commonality of fact—the claims did “not wholly coincide” (at [38])—the Full Court acknowledged that, following Re Wakim; Ex parte McNally (1999) 198 CLR 511, the accrued jurisdiction can nonetheless arise where there is a “sufficiently common substratum of facts” (at [38]). Their Honours opined that, in this case, “[t]here would certainly be some facts relating to the entry by the husband and wife into the financial agreement and the dealings which each had with Law Firm A which would form some common substratum” (at [37]).

The Full Court then turned to the “central task”: “there remains the need to identify one justiciable controversy, or matter, in order to attract the accrued jurisdiction” (at [38]). In examining this issue, the Full Court recognised that the husband’s prospective claim for damages was “entirely different” to the wife’s claim that the s 90C agreement was not binding (at [43]). Accordingly, adopting the terminology of Re Wakim, their Honours found that the two claims were “completely disparate … completely separate and distinct”, but did not go so far as to say that the claims were “unrelated” (at [43]).

Following Re Wakim, the Full Court indicated that the accrued jurisdiction will be engaged where claims are “so related that the determination of one is essential to the determination of the other” (at [44]). However, the Full Court found that the connection between the wife’s federal case, brought under the Act, and the husband’s suit for damages against Law Firm A, was not so strong as to annex the damages claim to the federal claim. It was particularly pertinent, according to the Full Court, that husband’s claim would not materialise until a finding had been made in respect of the wife’s challenge to the s 90C agreement, and even then, the extent of the damages claim, if any, would not be known until orders were issued under s 79: “it might well be said that the attached claim will not even arise until the proceedings relating to the financial agreement are determined, and are determined adversely to the husband, and on a basis which could provide him with a claim against Law Firm A” (at [48]).

On this basis, the appeal was dismissed.

In its discussion, the Full Court also made two observations about the nature of the accrued jurisdiction. First, the jurisdiction is not discretionary. Once engaged, it must be exercised, regardless of “considerations of time and delay” engendered by the annexing of the attached claim (at [24]). Secondly, where claims are related but are not to be heard together because the accrued jurisdiction is not enlivened (as in this case), the Full Court suggested that the risk of conflicting findings between jurisdictions, as agitated by the husband, is “more hypothetical than real” (at [50]). This is particularly so where hearing transcripts could be made available to the other court. In and of itself, such a consideration would not result in the attraction of the accrued jurisdiction.


1 It was also “troubling”, according to her Honour, that under the contract the birth mother was to be paid more for a caesarean section than a vaginal birth, thus establishing financial incentives within the scheme of the contract “which limit the birth mother’s ability to manage her health during the pregnancy and make decisions about the delivery of her babies” (at [4]).