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Family Law & High Court Decisions

Family Law & High Court Decisions

Posted On: 16 November

Family Law Queensland
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Recent High Court decision

Some Family Lawyers get excited (maybe not Rebecca) when the High Court hears and decides on a Family Law matter.  Partly because it doesn’t happen that much, partly because the Judges that get to tell us what to do have been told what to do by their superiors, but mostly because the High Court decisions usually provide clear and articulate answers to emerging holes in caselaw – the very thing which helps lawyers form an opinion on how the law gets applied to particular situations.

Case: Thorne v Kennedy

Family law matter – Thorne v Kennedy [2017] HCA 49.  This case revolved around a Binding Financial Agreement (BFA) entered into between an elderly, wealthy, Australia gentleman (Mr Kennedy) and his young, Eastern European, poor fiancé (Ms Thorne).  Mr Kennedy actually died during the original trial before the Federal Circuit Court Judge.

At the outset of the internet courting, Mr Kennedy read Ms Thorne’s profile on a dating website which read ‘I am single female with no children. I don’t smoke or drink. I am of (religion omitted) religion and speak a little (language omitted) and English. I wish to marry and have a good life.’ Seeing Ms Thorne was quite direct about her intentions’, Mr Kennedy responded directly himself, saying:

‘I will come to (country omitted) and we will see if we like each other. If I like you I will marry you but you will have to sign paper. My money is for my children.’ 

How romantic.

The ‘paper’ Ms Thorne was required to sign was a Binding Financial Agreement, and she was made to sign one drafted by Mr Kennedy’s lawyer 11 days before the wedding. Which in the words of Ms Thorne’s advising lawyer, was ‘entirely inappropriate’.  The wedding would have been called off, amongst other undesirable outcomes for Ms Thorne, if the agreement was not signed.

It has been a long-held practice at Parry Coates Family Law to avoid ‘last minute’ Binding Financial Agreements, for this very real reason.

High Court Ruling

The High Court ruled that the BFA was not binding on Ms Thorne or Mr Kennedy (and his estate at that time).  This means that instead of Ms Thorne receiving a sum of $50,000 (plus CPI indexed increase), she is able to seek property settlement orders in the Federal Circuit Court. She can now seek an adjustment of property order in the amount of $1.1 million, and a lump sum spousal maintenance order of $104,000 from Mr Kennedy’s estate (valued between $18 and $24M).

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