FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Review of decision – Where the appeal registrar dismissed the appellant’s application for the court to procure the trial transcript at its expense – Where in default of the transcript being filed, the final appeal hearing will proceed without it – Where the cost of the transcript seems disproportionate to its utility – Application dismissed.

FAMILY LAW – PARENTING – With whom the child lives and spends time with – Where the parties are unable to agree parenting arrangements for a nine year old child – Where the child currently lives with the respondent and spends five nights per fortnight with the applicant – Where the applicant seeks a change of primary care – Where the respondent seeks to reduce the child’s current time with the applicant to three nights per fortnight – Where the child experiences high levels of anxiety – Consideration of best interests – Where a change in primary care is likely to cause the child extreme distress and anxiety – Where the evidence supports a reduction in time from five nights to three nights per fortnight with the applicant – Sole parental responsibility for decision-making to the respondent – Orders.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – where subpoena objected to on the basis of protected confidence – whether party is a professional service – whether the communications are protected confidences – whether likely harm outweighs desirability of production – application objecting to subpoena dismissed.

FAMILY LAW – PARENTING – Final orders proposed with consent of all parties – Proposed orders suitable to ameliorate the risk to the children associated with the father in circumstances where the mother’s parental capacity is compromised – Final orders made in line with the terms provided by the parties.

FAMILY LAW – PROPERTY – APPLICATION FOR ENFORCEMENT – Where both parties filed applications seeking the other comply with final orders regarding sale of the matrimonial property – Where both parties assert the other is responsible for the non-compliance with the orders – Where both parties seek alterations to the orders that deal with the sale of such property – Where enacting the husband’s proposed alterations would result in a substantive change to the orders – Sale of the property and avoidance of future litigation in the interest of both parties – Discharge and substitution of the order regarding sale of the property.

FAMILY LAW – COSTS – where the wife seeks an order for costs on an indemnity basis – where the husband filed no response to the wife’s submissions – where the husband has not complied with previous court orders – where the husband’s conduct has delayed court proceedings – where the husband has been wholly unsuccessful in the proceedings – consideration of s 117(2A) factors – costs ordered on an indemnity basis in the wife’s favour.

FAMILY LAW – CONTEMPT – Sentencing – Respondent pleaded guilty to ten charges of contempt – Seriousness of contempt – Desirability of determining appropriate sentence for each charge – Totality of sentence should not exceed totality of offending – Imprisonment as sentence of last resort – Circumstances warrant imprisonment – Concurrency and cumulation - Part suspension of imprisonment – Good behaviour bond.

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – TRIAL SEQUENCE – the applicant submits that the respondent should file his case outline first as the applicant does not understand the case advanced by the respondent – held, case outlines should be filed concurrently.

MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – EXPERT EVIDENCE – the respondent submits that the applicant should be restricted to a single expert witness per issue – held, the applicant should not be so restricted.

FAMILY LAW – PARENTING – Interim hearing – Where the matter is part-heard – Where the applicant sought to remove the requirement for professionally supervised time – Where the applicant failed to disclose mental health concerns – Where the respondent contended that professionally supervised time is still warranted – Where the applicant proposed the two paternal aunts as alternate private supervisors – Where the paternal aunts fail to address or acknowledge the father’s mental health conditions – Where the respondent opposed the paternal aunts as alternate private supervisors – Where the applicant sought a video communication order – Where the Court made orders for video communication between the applicant and the child – Where the Court otherwise dismissed the applicant’s interim application.

FAMILY LAW – PARENTING – With whom the children live – Where the father and the Independent Children’s Lawyer contend that the risk of harm arising from psychological abuse perpetrated by the mother is so high that it requires limitation ad supervision of the children’s time with the mother into the future – Where the father proposes orders in terms similar to the orders promoted by the Independent Children’s Lawyer – Where the Court finds that there is unacceptable risk that the children will suffer psychological harm in the mother’s care – Where the evidence supports the making of an order that the father have sole parental responsibility for the children.

PARENTING – Where the mother amended her application on the first morning of trial - Where the mother promotes unsupervised time between the children and the father – Where the Court finds that the mother will never voluntarily facilitate time between the children and their father.

PRACTICE AND PROCEDURE – Where the mother filed an Application in a Proceeding in the evening prior to the competing applications being listed for Closing Submissions – Where the application was dismissed – Where the mother filed a further Application in a Proceeding subsequent to Judgment being reserved – Where the mother seeks a variety of orders including to adduce further evidence – Where the father and the Independent Children’s Lawyer oppose the application – application refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Injunctive orders – Where the de facto wife seeks injunctive orders to receive notice prior specified dealings with a unit trust and a discretionary trust of which she contends the de facto husband directs the conduct of – Where the appointor and the trustees of those trusts, being the second, fourth, and fifth respondents, oppose the injunctive orders as sought – Where those respondents contend the evidence does not establish that the de facto wife has an arguable case to justify preservation of the status quo and that, in absence of a risk of dealing with assets to frustrate a judgment, an injunction cannot be grounded by application of the “chicken soup” principle – Where the balance of convenience favours the injunctive orders broadly as sought by the wife amended to a defined scope – Notification orders made.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the de facto wife seeks to join the de facto husband’s mother and other corporate and trust entities in which she contends the husband controls as additional respondents to the proceeding – Where the proposed additional respondents oppose the joinder – Where the de facto wife abandoned or withdrew her contentions of sham – Where she instead contends control – Consideration of whether to refuse an application for joinder if there is no merit – Where the de facto wife’s claim could not be said to be unsuccessful – Where r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) mandates the joinder of the additional respondents as necessary parties to the proceeding – Order for the joinder of the proposed additional respondents.

FAMILY LAW – FINAL PARENTING ORDERS – Allegations of family violence – Mother’s allegations accepted in part – Where the children live with the mother – Where the children have not spent any time with the father for in excess of four years – Consideration of the impact on the mother in the event of any order for time between the children and their father - Children to live with the mother – No orders for time between the children and their father.

APPLICATION FOR DISQUALIFICATON – Apprehended bias – Where an application for disqualification is made during contested final parenting proceedings – Whether comments from the bench and/or the conduct of the judicial officer with respect to the use of an interpreter for the father might cause a fair-minded lay observer to conclude that the Court will decide the competing parenting applications other than on its legal and factual merit – All grounds fail – application dismissed.

FAMILY LAW – LEGAL PRACTITIONERS – Conduct of solicitor – Where the legal practitioner has failed to comply with orders for the filing of documents – Where the legal practitioner has failed to attend three Court hearings – Where the legal practitioner has breached the South Australian Legal Practitioners Conduct Rules – Referral to the Legal Profession Conduct Commissioner.

FAMILY LAW – PROPERTY - Short marriage – Application by the wife for an adjustment of property interests - Where the marriage lasted two months - Where no compelling reasons exist to make a property adjustment as per s79(4) of the Family Law Act 1975 (Cth) - Application refused.

PROPERTY – Disputed asset pool – Where applicant wife claims that the husband is the beneficial owner of millions of dollars’ worth of tangible and intangible property in Australia and overseas - Where wife asserts that the husband has not made a full and frank disclosure - Where the court is not satisfied of beneficial ownership - Where even if the Husband did own some or all of the assets, no adjustment would be warranted.

PRACTICE AND PROCEDURE - Where applicant wife seeks a spouse maintenance claim despite leave being refused under s44(3) and appeal against refusal being dismissed. Application is dismissed.

CONSTITUTIONAL LAW - Practice and Procedure- Where applicant wife asserts that her case requires intervention by the Attorney General - Where applicant therefore seeks adjournment of hearing - Where no evidence or specific claims are made to advance this proposition - Where adjournment application is opposed by all other parties -Adjournment application is refused.

FAMILY LAW – PARENTING – Ex Tempore Reasons – undefended hearing - best interests – decision-making authority – live with – passport – where the father withheld consent to passport applications for the children – where there were allegations of family violence against the father – where the father disengaged from proceedings – where the matter proceeded in the absence of the father – sole decision-making authority to the mother – the children to live with the mother and spend time with the father as agreed between the parents – passports to be issued for the children without the consent of the father.

FAMILY LAW – PROPERTY – Interim application for sale of a property – where prior sale orders made by consent – where sale has not yet been executed due to a dispute about what the ‘best arm’s length price’ obtainable means –– orders for the property to be sold at auction.

FAMILY LAW – PRACTICE AND PROCEDURE – Amendment to final Order - Where the parties provided a jointly signed minute of order on 12 August 2024 seeking an amendment to the final Order made 29 May 2024 pursuant to s 79A(1A) of the Family Law Act 1975 (Cth) – Where this Court was functus officio upon the making of the final Order – Where an Application for Consent Order was filed by the parties on 22 August 2024 and given a new file number – Where the Application was transferred to this Court on 26 August 2024 and an Order made in chambers in terms of the minute Where family law or child support proceedings cannot be instituted in this Court and the result of such jurisdictional problems creates uncertainty and unnecessary costs for litigants.

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the mother seeks an adjournment one month before final hearing– Where the father and Independent Children’s Lawyer oppose adjournment – Where adjournment is not warranted – Consideration of AON Risk Services v ANU – Consideration of s 69ZN of the Family Law Act – Where adjournment application dismissed – Orders made extending time for mother to file material.

FAMILY LAW – CASE MANAGEMENT– Interim Property – Where wife seeks injunctions to operate on savings accounts of the husband – Where husband opposes this on the basis that he needs these savings to pay tax and other financial obligations – Injunction granted for a portion of the funds in Australian bank account – Held that husband is free to use the remainder of his savings to pay creditors on condition that he provide evidence of this to the wife.

FAMILY LAW – PROPERTY – MAJOR COMPLEX FINANCIAL PROCEEDING – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the husband’s parents both personally and by way of corporations they control have made significant advances of funds to the husband prior to, during the course of, and subsequent to, the parties marriage – Where the husband contends an advance in 2001 and a series of advances from 2015 to 2020 were by way of loan agreements, being liabilities in the balance sheet identifying the property of the parties – Where the wife contends that the evidence does not establish loan agreements in the terms contended by the husband, or in the alternative that recovery of the 2001 advance is statute-barred, or in the further alternative that it is not likely that either advance will be called upon to be repaid (Biltoft and Biltoft (1995) FLC 92-614) – Where the husband’s initial financial contributions and the financial support provided by his parents during the marriage attracts significant weight when consideration is given to the use made of those contributions (Pierce v Pierce (1999) FLC 92-844) – Where both the parties worked hard in their respective spheres throughout the marriage relationship – Where the wife makes a Kennon v Kennon (1997) FLC 92-757 contention that her contributions were made more onerous and arduous – Orders made adjusting the property of the parties 45.5 per cent to the wife and 54.5 per cent to the husband.

FAMILY LAW – CONTRAVENTION APPLICATION – Breach of procedural order– Where the application for contravention was not dealt with at the principal proceedings – Where the application was brought in terrorem – Where the application was found to be trivial and lacking significance – Where the application for contravention is dismissed.

FAMILY LAW – EX TEMPORE – COSTS – Where the wife seeks costs of interlocutory applications by the husband for appointment of a litigation guardian and injunctions – Where the proceedings were before the Court three times and the parties entered into consent orders – Where the wife seeks costs as agreed or assessed on a party/party basis – Where the husband’s application for a litigation guardian was inappropriate and should not have been brought on the basis of the available evidence – Where the husband’s conduct in bringing the application for a litigation guardian justifies an award of costs in the wife’s favour – Where both parties made offers in writing to resolve claims for injunctive relief – Where the ultimate consent position reached by the parties was closer to what was proffered by the wife than the husband – Where the conduct of the husband in relation to the injunctive orders sought does not justify an order of costs in the wife’s favour – Order for the husband to pay the wife’s costs of his interlocutory application as agreed or assessed as to 30 per cent only of those costs.

FAMILY LAW – CHILDREN – Whether the mother should have sole parental responsibility – Spend time with arrangements – Where the mother alleges that the father sexually abused his niece – Where the mother alleges family violence by the father – Orders made for sole parental responsibility – Orders for the father to spend time with the child two occasions per week supervised or in a public place.

FAMILY LAW – PARENTING – Gender Dysphoria –Where consent orders are made – Where the Court distinguishes this case from the facts of that in Re Kelvin – – Where all parties seek a declaration of Gillick competence for the subject child – Where the subject child wishes to undergo “stage two” gender affirming treatment – Where the Court declares that the child is Gillick competent – Where an auxiliary name change order is sought to affirm the new gender identity of the child – Where the Court considers that the proposed name change will benefit the welfare of the child – Where the Court discusses the benefit of including subject children of advanced age in gender affirming proceedings.

FAMILY LAW – PROPERTY

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – adjournment application by all parties – proceeding fixed for one month duration – application dismissed.

FAMILY LAW – PARENTING - parental responsibility – where s 102NA applies – where the matter has a long and complex history - where a recovery order was previously executed – where the children have not seen the mother since April 2024 – where an Order had been made that neither party and no third party seek the children's views – where a third party asked the children their views – where the Family Report writer recommends time and communication with the mother is suspended on an interim basis – where time Orders are suspended – where telephone communication with the younger children is permitted – where the matter is set down for final hearing.

FAMILY LAW – CHILDREN – Whether either parent poses an unacceptable risk of harm to the child – Whether either parent has capacity to promote the child’s relationship with the other parent – Where it is found that the mother made false claims that the father coerced her into having sex and/or raped her – Where the mother’s claim that the father sexually abused the child is groundless – Whether the child can have a relationship with both parents if she remains in the primary care of the mother – Where it is found that it is in the child’s best interests to live with the father – Where the mother will be restrained from spending any time or communicating with the child for a period of six weeks – Where following the moratorium, the mother’s time with the child will be professionally supervised until 2027.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife’s Application in a Proceeding seeks wide-ranging orders, primarily about disclosure – Extensive disclosure provided by the husband – Consideration of the overarching purpose and requirements of efficiency, timeliness, cost and proportionality confining the scope of arguments about disclosure – Rules about and obligations of disclosure generally not intended to place one party in a position to undertake an unreasonable, overly detailed, unnecessarily fastidious or obsessive audit of another party’s expenditure, dealings and transactions over many years – Where the evidence did not establish the husband’s existing disclosure was oppressive to the wife – Where some disclosure sought by the wife was not relevant to issues in the proceeding – Where the wife sought to discharge earlier court orders on the basis of non-compliance by the husband – Where the husband provided acceptable explanation for non-compliance – Husband granted an extension of time for compliance with orders – Application dismissed – All questions of costs reserved.

FAMILY LAW – PRACTICE AND PROCEDURE – Slip Rule – Where applicant brings an application to amend final orders pursuant to the Slip Rule – Orders made amending final orders pursuant to the Slip Rule.

FAMILY LAW – PROPERTY – Application by the wife for the husband’s motor vehicle and associated keys to be placed in her care – Where no evidence has been provided to suggest that the husband is not currently in possession of the motor vehicle – Where there are orders preventing the husband from dissipating the marital pool – Husband to deliver the motor vehicle and associated keys to the wife’s solicitors.

FAMILY LAW – COSTS – PARENTING – Where the mother seeks costs following final consent orders made in relation to parenting proceedings – Consideration of relevant principles under s 117 of the Family Law Act 1975 (Cth) – Where the father should have resolved the parenting proceedings at the dispute resolution conference prior to the trial, because he knew his alcohol consumption had escalated and he was armed with the results of his hair follicle test – Circumstances warranting departure from the usual principle that each party bear his or her own costs – Order that the father pay the mothers costs fixed at $3,300 – Payment to be made in instalments.

FAMILY LAW – PRACTICE AND PROCEDURE – where party is subject to vexatious proceeding order in one relationship applies for leave to institute proceedings in another relationship – leave granted.

FAMILY LAW – ORDERS – Application to vary/set aside final property settlement consent order pursuant to s 79A(1)(c) Family Law Act 1975 (Cth) – Threshold determination of whether there has been a default in carrying out an obligation of the final order – Where numerous breaches of the obligations of the final order are pleaded – Where the Court is satisfied that there has been default in carrying out an obligation of the final order.

FAMILY LAW – COSTS – Applications by the husband and other respondents for costs against a barrister and firm of solicitors who previously acted for the wife, or alternatively, against the applicant wife – Whether there has been exceptional circumstances to justify an order for costs on an indemnity basis – Where it is found that the barrister and firm of solicitors engaged in improper and unreasonable conduct – Where the conduct caused significant costs to be incurred unnecessarily and a waste of Court resources – An order for costs to be paid jointly and severally made against the former barrister and solicitor for the applicant wife – Legal practitioners referred to the relevant state Legal Services Commissioners.

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING – EQUITABLE RELIEF – ACCRUED JURISDICTION – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the intervener seeks that the Federal Circuit and Family Court of Australia (Division 1) exercise its accrued jurisdiction to determine his claim in the s 79 proceeding – Where the husband made significant direct financial contributions at the commencement of cohabitation, including by way of an interest in a prosperous trading enterprise – Where the intervener claims a 30 per cent interest in that enterprise as recorded in two written agreements made between he and the husband, one of which was entered years before the marriage – Where the husband concedes the claim of the intervener – Where the wife contends that the two written agreements made between the husband and the intervener purporting to allocate 30 per cent of the husband’s interest to the intervener were “fabricated and not genuine” – Claim of the intervener established – Where the nature of the relationship between the husband and the wife was to some extent commercial and characterised by arm’s length dealings, including the clear maintenance of separate financial identities – Where the wife has attempted to machine aspects of her case, including evidence, to obtain a forensic advantage – Where homemaking contributions do not loom large – Where the wife has failed to adhere to her disclosure obligations – Where the wife will have the first opportunity to retain a real property in specie – Orders made adjusting the property of the husband and the wife 83.5 per cent to the husband and 16.5 per cent to the wife.

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the paternal grandparents review interim parenting orders made by a Senior Judicial Registrar (“the registrar”), which provide for the children to spend supervised time with them – Where the paternal grandparents seek orders for the children to live with them and spend supervised time with the mother – Where the paternal grandparents assert the mother poses a risk of physical and psychological harm to the children – Where the mother has passed the psychological assessments given by the single expert – Where the younger child made allegations of his sexual abuse by the paternal grandfather – Where the allegations were not substantiated by the authorities but the risk of harm is not eradicated – Where the trial is the time and place to settle factual controversies – Where the father lives overseas and is not a residential option for the children – Orders made to vary the length of supervised time the children spend with the paternal grandparents.

FAMILY LAW – PARENTING – Application for final parenting orders – Where the children have been living with the mother since the parties’ separation in 2019 – Where the children have spent supervised time with the father since June 2023 – Where the Secretary of the NSW Department of Communities and Justice intervened in the proceedings – Where both parents suffer from conditions which compromise their parenting capacity – Where the Secretary proposed the Minister having parental responsibility for the children for a period of 12 months and they live with the father – Where the Independent Children’s Lawyer railed against the children living with either parent – Where the father has remained abstinent from alcohol for the past 18 months – Where after years of intensive involvement by the child welfare agency with the mother, the agency has no faith in her parenting capacity – Where the physical, developmental, medical and educational needs of the children are likely to be better met if they live with the father – Ordered the father have parental responsibility for decisions about the children’s residence and they live with him – Ordered the Minister have parental responsibility in respect of all other major long-term issues affecting the children for 12 months – Ordered the children spend substantial and significant time with the mother.

FAMILY LAW – INJUNCTIONS – Exclusion from matrimonial home – Where the wife seeks the sole use and occupation of the matrimonial home – Where the husband opposes the wife’s application and submits that the parties can co-exist under one roof – Consideration of the circumstances of the parties and whether an exclusive occupation order is necessary – Order for the exclusive use and occupation of the home made.