Australia

On 19 June 2019, the High Court handed down its decision in the matter of Masson v Parsons. The case concerned whether a man engaged as a sperm donor was a parent within the meaning of the Family Law Act. Mr Masson had donated sperm to a lesbian mother on the understanding that he would…

On the 12 June 2019, the High Court of Australia handed down its decision in the matter of the Australian Securities and Investment Commission v Kobalt. The case concerned whether the provision of ‘book-up’ credit to customers of the general store in a remote Aboriginal community amounted to unconscionable conduct. Unconscionable conduct is prohibited under…

A fundamental principle of our legal system is that a judge or magistrate must not sit on a case in which he or she is biased. This is important both so that justice is done and so that justice is seen to be done. There are well established tests for actual and apprehended judicial bias…

A long-established principle of the common law is “de minimis non curat lex”, which translates as ‘the law does not concern itself with trifles.’ The de minimis rule has application both in civil and in criminal jurisdictions. It effectively means that the law should not get involved in circumstances where what has occurred is extremely…

Family trusts are a structure frequently used to arrange the financial affairs of a family. They provide many benefits, particularly in tax planning and estate planning. A trust has an appointed trustee, who is a legal owner of any assets held in the trust and who holds and manages assets on behalf of the beneficiaries.…

When courts decide whether a matter has been proven, they do so according to a benchmark which the party initiating the proceeding must reach. This is commonly referred to the standard of proof. All forums, including courts and tribunals, must apply the appropriate standard of proof when deciding if a matter has been proven. The…

Family law appeals are relatively uncommon. However, appeals are a vital part of the legal system to ensure that matters are decided according to the law and that judges exercise their discretion appropriately. An appeal may be the only means to seek to remedy an unfavourable judgment. For those with an unfavourable interim result, an…

The cross-examination of survivors by perpetrators of family violence will soon be banned in family law proceedings. The ban, which comes into effect in September 2019, will apply in certain circumstances where allegations of family violence have been raised. The ban was introduced with the passing of the Family Law Amendment (Family Violence and Cross-examination…

Beyond a reasonable doubt is the highest standard of proof in our judicial system. Our system has two differing standards of proof, namely on the balance of probabilities in a civil jurisdiction and beyond a reasonable doubt in a criminal jurisdiction. Criminal law in Australia is underpinned by the the presumption of innocence, which does…

Before the Family Court or Federal Circuit Court can decide how best to finalise the financial arrangements between parties following the breakdown of a relationship, it must have all relevant information as to the parties’ financial circumstances. Each party to a Family Court proceeding is required to provide the other parties with all documents which…

In recent years the family courts have seen a significant rise in the number of cases where parents are exposing children to potential harm by consuming or being under the influence of illicit substances. Where there are allegations of drug abuse in a parenting matter, orders will often be made that the party submit to…

A criminal conviction can have a significant impact on your life. It can be used adversely against you with respect to travel, rental applications, employment, loans and more. For this reason, should you be convicted of an offence (regardless of whether you plead guilty to the charge or are found guilty at trial), it is…

Acclaimed author Fiona Wright was last week refused entry onto a Qantas flight From Sydney to Alice Springs, resulting in her missing the NT Writers’ Festival. Wright claims the decision was ‘out and out discrimination’ against her as a person who suffers from a mental illness and requires the help of an assistance dog. She…

The 1959 High Court decision of Jones v Dunkel established an important principle of evidence law, which has become known as the Jones v Dunkel rule. The case concerned an action in negligence where the defendant failed to give evidence in circumstances where he could reasonably be expected to have done so. The court considered…

A recent decision handed down by the Federal Circuit Court examined the question of whether the court ought to make property orders after a de facto relationship of less than two years duration. The 2019 decision of Adesso v Payton concerned a 14-month relationship between a pilot and a woman who was unemployed while caring…

The balance of family test is integral to determining who is eligible for a parent visa. A person applying for a parent visa on a temporary or a permanent basis must pass the balance of family test, which is contained in Section 105 of the Migration Regulations and tests an applicant’s family links with Australia.…