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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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.

FAMILY LAW – forum dispute – where applicant contends Australia is most appropriate forum to determine property dispute and seeks declaration to that effect– where respondent contends New Zealand most appropriate forum and seeks Australian process be stayed – stay application dismissed – restraint sought against respondent dealing with property interest in New Zealand granted – no declaration about forum made

FAMILY LAW – PARENTING – time with the Father – whether the Father should have regular unsupervised time with the child and if so the nature of such time – whether the Father’s drug use places the child at an unacceptable risk of harm – whether Mother’s capacity to parent is discernibly impacted if the child spends regular unsupervised time with the Father – whether the Father should be involved in the decision making regarding major long-term issues – whether the child’s name should be changed to the Mother’s surname or become a hyphenated version of the Mother and Fathers surnames’ – whether the Father should be restrained from filing further proceedings – whether there should be a ‘guillotine order’ to operate if the Father misses visits. 

FAMILY LAW – Contested divorce application – where the parties disagree when the marital relationship ended – where this is one child of the relationship – where an occasional sexual relationship continued after either parties date of the end of martial relationship – where the parties continue to live under one roof – where one party had frequently attempted to have the other removed from the house by calling the police – determined that the parties had been separated for more than 12 months at the time of the divorce application – divorce granted. 

FAMILY LAW – PROPERTY – Long marriage – Where both parties made significant financial and non-financial contributions – Where the Wife claims that her contributions were made more arduous as a result of family violence perpetrated by the Husband towards herself and the children – Whether the Husband committed family violence as alleged – Whether the Husband made full disclosure of his income working as a self-employed builder – Where the Husband allowed others to use his building licence to take on projects for which he claimed he received no financial benefit – Whether there should be an adjustment to the Wife because of the Husband’s greater income earning capacity – Just and equitable division. 

FAMILY LAW – Review application – de facto maintenance – alleged failure to seek employment – no proper basis for maintenance order. 

FAMILY LAW – PARENTING – Where the applicant and the children make numerous allegations against the respondent – Where the respondent was charged but all criminal charges were later withdrawn – Where the applicant views the respondent negatively – Where the children’s relationships with the respondent are fractured – Where the children currently spend supervised time with the respondent – Where the children have expressed interest in spending time with the respondent – Where the children will benefit from having a relationship with the respondent – Assessment of risk – Where the respondent does not pose an unacceptable risk of harm to the children. 

FAMILY LAW – Application to review decision of Senior Judicial Registrar – application for review partially upheld. 

FAMILY LAW – Parenting – second tranche of parenting proceedings with final orders previously made in 2023 – s65DAAA satisfied – where mother had alleged father posed an unacceptable risk of harm and unilaterally suspended time – where mother no longer alleged unacceptable risk at trial – court considers ‘meaningful relationship’ and phraseology informing s60CC(2)(e) – court satisfied father did not perpetrate family violence or sexual abuse upon child – court satisfied mother poses an unacceptable risk of harm to child’s emotional/ psychological safety – unacceptable risk posed by mother able to be ameliorated – child to live with father and father to have sole parental responsibility– initial moratorium on child’s time with mother – progression of supervised to unsupervised time with mother. 

FAMILY LAW – CHILDREN – two teenage girls – with whom the children live with – high parental conflict – alignment by the father – breakdown of the mother’s parental relationship with the children – children’s mental health concerns – weighing up of future risk factors – consideration of the girls’ firm views – best interests require the girls live with father – only realistic option.   

FAMILY LAW – Costs and default application – dispute as to appropriate orders to be made in default of property settlement –necessary circumstances for a section 106A order – costs application following final property orders – whether section 117 or section 114UB applied – no material difference in any event – whether a party wholly unsuccessful – whether conduct of the proceedings justified an order for indemnity and/or party/party costs – whether oral offers made during mediation were admissible – mediation agreement provided anything said in mediation was not to be put in evidence – where oral offerer party did not make a written offer in compliance with rule 4.11 – oral offers made in mediation not relevant – therefore oral offers in mediation not admissible pursuant to section 117(2A)(g) – if long and oral offer in mediation is admissible then no weight given to oral offers – general law authorities relating to section 131(2)(h) of Evidence Act discussed – Family Law Act authorities applied – application for costs dismissed – application for costs of the unsuccessful costs application dismissed.   

FAMILY LAW – Interim parenting – father seeking increased time with child – where family report writer identifies attachment issues and developmental trauma of child – family report writer recommends increased time with father – where mother highly critical of recommendations of family report writer – where mother submits that the child’s young age contends against increased time with father until final hearing and the testing of evidence – applicable law on interim hearing – significant weight given to family report on interim hearings. 

FAMILY LAW – CHILDREN – Where the two eldest children resist spending time with the mother – Where the two youngest children live with the mother and she seeks a change of care for the elder two children – Where the mother seeks a moratorium on the father’s time with all four children – Where the father seeks all four children live with him – Where there is ongoing inter-parental conflict – Where the father alleges the mother’s physical chastisement and discipline of the children is a form of coercion and control – Where court finds that mother’s excessive disciplining of children was not behaviour that coerces and controls – Where the mother alleges the father has and continues to perpetrate family violence against her – Where both parents lacked insight – Where need to balance the impact of removing the two eldest children from the father’s care against potential that they will not have a relationship with their mother – Where placing older children in care of mother places them at risk of harm but risk to younger children of living with mother can be mitigated – Costs.

FAMILY LAW – PROPERTY – undefended final hearing in a Priority Property Pool case – husband has not participated in proceeding – marriage with cohabitation of approximately six years – post-separation period of 12.5 years – parties aged 71 and 65, with no children of their relationship – modest assets consisting primarily of an unencumbered rural real property and superannuation – assessment of contributions and current and future circumstances – just and equitable for wife to receive 73% of parties’ known assets and husband to receive 27%, consisting predominantly of his superannuation.

FAMILY LAW – Final parenting orders – undefended hearing – where the father did not appear at the final hearing – where the court is satisfied to proceed in the absence of the father – where the court is satisfied to proceed undefended – where the children live with the mother – where the mother have sole parental responsibility for the children – where the children have no contact or communication with the father.   

FAMILY LAW – Enforcement of a Binding Financial Agreement – Hearing in the absence of the respondent – Where respondent has been served with the Application and other court documents but has not participated in the proceedings – Where the wife seeks orders pursuant to s 90UN(c) of the Family Law Act 1975 (NSW) (“the Act”) to require the respondent to execute all necessary documents to transfer his right and interest in a parcel of real property – Where the Agreement is enforced as an order of the Court.  

FAMILY LAW – PARENTING – Allegations of grooming and sexualised behaviour – Unilateral suspension of time – Whether there is an unacceptable risk of harm to the children including of sexual harm – Where s 69ZT applies to some of the evidence – Where the evidence of each parties’ case is lacking – Where the children can have a meaningful relationship.  

MIGRATION – deportation – application for urgent injunction –applicant provided false information on visa application – visa cancelled at immigration clearance – injunction to prevent Minister removing applicant – no jurisdictional error. 

FAMILY LAW – Application to remove children from the Airport Watchlist – Application to take the children on an overseas holiday – Where the mother seeks to take the Children to a non-Hague Convention country – Where the mother is not a flight risk and has significant ties to Australia- where the Independent Children’s Lawyer went above and beyond the call of her duty by explaining the orders to the children outside of normal business hours – where the Independent Children’s Lawyer went above and beyond the call of her duty by making her firm’s trust account available to the parties for the purpose of depositing and retaining a surety during the pendency of the overseas travel. 

FAMILY LAW - Parenting - interlocutory application - subpoena objection - protected confidence considered - costs. 

FAMILY LAW – PROPERTY – removal of shareholder as party. 

FAMILY LAW – Application for Review – Interim parenting – substantive review of a Senior Judicial Registrar’s decision about child’s unsupervised time with the father – the father has commenced unsupervised time – the mother now accepts unsupervised time – the father seeks to significantly increase time as of 2026 and enrol the child in school close to his home about 100kms from where the child lives with the mother – orders made to vary the days on which time occurs in 2025  – orders made for time in 2026 – overnight time on special occasions only – changeover location moved to the midway point –  order for vaccinations - Application otherwise dismissed. 

FAMILY LAW – Summary decree – s 102QAB - no reasonable prospect of orders other than those identified – no time or communication other than in accordance with the child’s wishes. 

FAMILY LAW – PROPERTY –– where issue exists as to the value of the property of the parties available for adjustment –where issue exists as to the value of the payment to be made by the husband to the wife - where the wife seeks 65 percent of the property as she asserts in her favour – where the husband seeks that he achieve 75 percent of the property as he asserts in his favour- where there are evidentiary deficiencies and vacuums in the evidence adduced by each party and neither complied with their obligations of disclosure - where there is agreement as to how property is to be adjusted in specie- where neither party impressed as a compelling witness -where the material sought to be relied upon by the parties was disproportionate and unnecessary - where the husband made the overwhelming majority of the direct financial contributions directing weight to the use made of those contributions – where no orders made adjusting the contribution finding - orders made for the wife to receive 35 percent and the husband 65 percent of the found property pool. 

 FAMILY LAW – Where a witness was called to provide “messenger” communication to the court – where the witness declined to provide the communication – where the court made a ruling for the communication to be provided.   

FAMILY LAW – Contravention application – where the father alleges 6 counts of contravention – where the father alleges contravention of the final orders of 2022 – where the father alleges contravention of the 2023 orders – where the mother has been found to have previously contravened the orders in 2023 – where the mother enters into a bond – where there be three conditions of that bond.