Judgments

FAMILY LAW – APPLICATION IN AN APPEAL – Application in an Appeal for review of an appeal judicial registrar’s decision – Where the husband sought an extension of time to file an appeal out of time – Where the appeal judicial registrar dismissed the husband’s application – Where there is no substantial issue to raise on the proposed appeal other than that challenged in appeal NAA313/2026 – Where the proposed grounds of appeal are either duplicates of the grounds in the earlier appeal or have no merit – Application in an Appeal for review dismissed.

FAMILY LAW – APPEAL – Where the appellant is incarcerated – Where the appellant’s assertions of appellate errors are difficult to follow – Where the appellant asserts a denial of procedural fairness – Where the appellant submits incorrect valuations ascribed to overseas properties – Appeal wholly unsuccessful

FAMILY LAW – APPLICATION IN AN APPEAL – Applicant is subject to a harmful proceedings order pursuant to s 102QAC of the Family Law Act 1975 (Cth) and therefore requires leave to appeal – Where the applicant seeks leave to appeal against final property settlement orders – Application for leave to file a Notice of Appeal allowed on limited grounds.

FAMILY LAW – APPEALS – Where the appellant asserts discretionary error by the primary judge – Where the respondent cross-appeals from mathematical or clerical errors infecting the appealed orders – Where the primary judge ascribed an individual percentage value to different contributory stages of a 20-year relationship – Appeal allowed – Matter remitted for re-hearing by a judge other than the primary judge in the circumstances of outdated valuations

FAMILY LAW – APPEAL – PROPERTY – De facto relationship – Leave to apply for property settlement orders outside the time limit provided in s 44(6) of the Family Law Act 1975 (Cth) – Whether open to primary judge to limit leave to apply under s 90SM to superannuation issues – Appeal allowed by consent

FAMILY LAW – APPEAL – PARENTING – Appeal from interlocutory parenting orders – Where the child had lived with the appellant pursuant to final parenting orders – Where the respondents retained the child and raised allegations of abuse and risk in the appellant’s care – Where the primary judge ordered that the child live with the second respondent pending further order and that the appellant’s time occur under professional supervision – Where the appellant contended that the primary judge failed to properly consider the child’s best interests and failed to give adequate weight to relevant evidence, including the child’s relationship with the appellant, police observations and allegations of coaching – Whether the primary judge’s assessment of risk and weighing of the evidence were open on the material before the Court – Where the appellant contended that the orders were plainly unjust or unreasonable – Where none of the grounds of appeal identify any appealable error made by the primary judge – Appeal dismissed – Appellant ordered to pay the costs of the respondents and the Independent Children’s Lawyer in a fixed sum.

FAMILY LAW – APPEAL – PROPERTY – Where appellant wife argued that the primary judge erred in finding that the husband’s shares and rights to receive a withdrawal payment were not capable of being ascribed a value and consequently not identified as property for the purpose of the Family Law Act 1975 (Cth) s 79(3)(a) – The Court held that the husband’s interests were not capable of valuation on the evidence presented to the primary judge.

APPEAL – PROPERTY – Where appellant and respondent agreed that the primary judge erred in ‘double counting’ several adjustments – Court held there was error in the primary judge’s inclusion of these adjustments – Appeal allowed in part – Court made orders deleting these adjustments from the final orders.

APPEAL – PROPERTY – Where the appellant wife argued that the primary judge failed to undertake steps required under Family Law Act 1975 (Cth) s 79(4)(ca) – Appellant argued that the primary judge was required to make findings of the family violence allegations prior to considering the impact on contributions – Court held it would have been preferable for the primary judge to firstly, determine whether the appellant had been subject to family violence, secondly, to assess the nature, extent and context of that violence and, consequently, assess whether it had any discernible impact upon the appellant’s contributions in terms of s 79(4)(ca) – Court held that the primary judge nevertheless could not have made the family violence findings due to the lack of specificity of the allegations – Court held the primary judge adequately dismissed the remainder of the appellant’s allegations.

APPEAL – PROPERTY – Appellant argued that the primary judge’s findings in relation to the parties’ contributions were unreasonable or plainly unjust and that the primary judge did not give specific reasons as to what led to that conclusion – Court held that the primary judge’s reasons were adequate and the findings in relation to contributions were well within the range of outcomes available.

FAMILY LAW – APPEAL – Parenting – Where the primary judge refused to make orders for time – Absence of unacceptable risk of harm to the child does not create a presumption in favour of orders for time – Where it was open to the primary judge to make findings as to likely future events – Where it was accepted that the first respondent’s capacity to parent would likely be impacted by an order for time – Appeal dismissed – Appellants to pay the respondent’s costs of the appeal fixed in the amount of $25,000.

APPEAL – Reasons – Where appellant alleged reasons inadequate – Primary judge presumed to know the law – Claims of inadequate reasons alleged far too often in appeals – Primary judge’s reasons adequate.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks to review the decision of a senior appeal judicial registrar rejecting his Notice of Appeal for filing – Where the Notice of Appeal sought to challenge parenting orders that had already been the subject of appellate consideration – Where the controversy between the parties had been finally determined – Where the applicant sought to re-agitate issues previously resolved – Where parties are entitled to finality in litigation – Where the proposed appeal constituted an abuse of process – Application dismissed.

FAMILY LAW – APPEAL – Appeal from a personal costs order against a legal practitioner – Where the primary judge held that an employed practitioner holding a restricted practising certificate did not have a right to appear at a case management hearing – Where the appellant is a principal solicitor who conducted a legal practice involving the acceptance of legal aid assignments in family law matters from the Legal Services Commission of South Australia – Where the right of practitioners holding restricted practising certificates to appear before federal courts is considered – Whether the employed practitioner’s right to appear was affected by the arrangements between the appellant and the Legal Services Commission of South Australia with respect to the provision of legally aided services in South Australia considered – Where error is established – Where there is a re-exercise of the Court’s discretion – Where the applications for costs are dismissed – Appeal allowed – No order as to costs.

FAMILY LAW – APPEAL – Determinations pursuant to s 90RD of the Family Law Act 1975 (Cth) as to the date of termination of a de facto relationship and an alternative application pursuant to s 44(6) of the Family Law Act 1975 (Cth) to extend time to commence Pt VIIIAB proceedings – Where the assessment of s 4AA considerations pivoted from global or blanket credibility findings made against the appellant and in favour of the respondent – Where those findings embrace a challenge to the reasoning process – Where the adverse credit findings against the appellant were used as a basis to reject his version of events – Where intermediate findings as to s 4AA considerations were contrary to compelling inferences or demonstrably wrong in the face of incontrovertible facts, materially contributing to the outcome – Where the pathway of reasoning does not adequately explain findings critical to the outcome – Where an error of law is established in the alternate s 44(6) conclusion to warrant the granting of leave to appeal and allowing the appeal as to that issue – Appeal allowed – Matter remitted for rehearing.

FAMILY LAW – APPEAL – LEGAL PRACTITIONERS – Appeal by a law practice which intervened in the financial proceedings between the first respondent and her estranged husband seeking to recover costs pursuant to a costs agreement – Consideration of the Legal Practitioners Uniform Law 2014 (NSW) s 174(1) and s 178 and the Legal Profession Uniform General Rules 2015 (NSW) r 72A – Held the law practice did not provide disclosure and a costs agreement as soon as practicable – Arguments not raised before the primary judge are unavailable on appeal – Whether a charging clause in a costs agreement can be relied upon where the agreement was not provided to the client “as soon as practicable” – Consideration of equitable fruits of litigation lien in circumstances where the claims for property division under the Family Law Act 1975 (Cth) were dismissed and property was retained as opposed to recovered – Held no fruits of litigation lien – No necessity to determine the priority of asserted charges between the appellant and the second respondent – Appeal dismissed – Appellant to pay the second respondent’s costs.

FAMILY LAW – APPEAL – Appeal from a declaration made pursuant to s 90RD of the Family Law Act 1975 (Cth) as to the fact and period of a de facto relationship – Where the grounds of appeal as to procedural, legal, factual and discretionary error and as to inadequate reasons have no merit – Where the appellant’s written material recited generalised and unsupported legal concepts and language, failing to engage with the requirement to demonstrate legal error – Where the appellant’s oral submissions revealed her lack of familiarity with the terms she had endeavoured to employ in writing – Appeal dismissed – Where the appellant persisted with the appeal after interlocutory reasons were delivered highlighting that her grounds of appeal faced significant obstacles – Where the appellant’s conduct of the appeal was contrary to the overarching purpose identified in s 95 and s 96 of the Family Law Act 1975 (Cth) – Where the circumstances justify an order for indemnity costs – Orders made for the appellant to pay the respondent’s costs on an indemnity basis in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks to review the decision of a senior appeal judicial registrar rejecting his Notice of Appeal for filing – Where the proposed appeal challenges orders dismissing an Application for Review of a deputy registrar’s allocation of a first return date – Where the substantive proceedings sought a recovery order and urgent interim parenting orders following the children’s relocation interstate – Where s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) prohibits appeals from determinations dealing with the expedition of a hearing – Where the allocated first return date has passed – Where the proposed appeal lacks utility – Application in an Appeal dismissed.

FAMILY LAW – APPEAL – Parenting – Where the appellant advances a series of grounds of error – Where the appellant’s Notice of Appeal and Summary of Argument are prolix, confusing and incorporates pseudo-legal terms – Where the appellant asserts denial of procedural fairness and apprehension of bias – Where the appellant advances legal and factual error – Where the primary judge is alleged to have misapprehended the law – Appeal wholly unsuccessful and dismissed with costs.

FAMILY LAW – APPEAL – PROPERTY – Where the parties jointly proposed that the appeal be allowed by consent – Where an appellate court must be satisfied of error and give reasons accordingly – Where the primary judge made material errors of fact in determining the property pool available for division – Where the primary judge denied the parties procedural fairness – Appealable error established – No occasion to re-exercise discretion – Error of law established – Costs certificates awarded to both parties in respect of the appeal.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant appeals against an order made pursuant to r 15.26 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and a consequential injunction – Where the applicant is engaged in litigation with the second respondent in the NSW Supreme Court – Where the applicant asserts a denial of procedural fairness, factual, legal and discretionary error – Where the applicant’s submissions are prolix and difficult to follow – Where the appeal is wholly lacking merit – Leave not granted – Appeal dismissed with costs

FAMILY LAW – APPEAL – Appeal from final parenting and property orders – Challenges to indefinite supervision orders – Consideration of the Court’s role in making indefinite supervision orders – Court’s role to make best interests decision based on the facts at the time of trial – Complaints as to the form of orders for property division and spouse maintenance – Whether there were errors caused by accidental slip or omission in the orders of the primary judge – Consideration of the appropriate invocation of appellate jurisdiction – Orders made pursuant to the slip rule – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Appeal from orders for property division of 52/48 in favour of the appellant – Where the grounds of appeal allege that the primary judge erred in the assessment of initial contributions, had inadequate reasons in the assessment of overall contributions, had inadequate reasons to explain non-disclosure translation into a dollar or percentage adjustment, erred by not attributing a greater percentage entitlement to the appellant by reason of the respondent’s disclosure deficiencies and conducted an inaccurate contributions assessment – No appealable error established – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs in the event the appeal was unsuccessful – Where the circumstance justifies a costs order – Appellant to pay respondent’s costs in a fixed sum.

FAMILY LAW – APPEAL – Property – Where the primary judge made orders splitting the respondent’s superannuation in a different form to those proposed by the parties – Failure to provide procedural fairness to the superannuation trustee – Where the order was therefore made without power – Appeal allowed – Re-exercise of discretion.

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where the applicant is subject to a harmful proceedings order and therefore requires leave to appeal – Where the applicant seeks to appeal interlocutory orders dismissing an application seeking to discharge the harmful proceedings order and recusal of the primary judge – Where reasons for the interlocutory orders have not yet been delivered – Where the application is brought solely to preserve alleged appeal rights pending delivery of reasons – Consideration of whether the applicant was denied procedural fairness by the reservation of reasons – Where all purported grounds of appeal are devoid of merit and therefore vexatious – Leave refused – Application in an Appeal dismissed.

FAMILY LAW – APPEAL – Contravention application brought under Division 13A of Part VII of the Family Law Act 1975 (Cth) – Where the primary judge dismissed all charges of contravention – Where the appellant asserted the primary judge applied the incorrect legal test for summary dismissal – Where the appellant asserts a denial of procedural fairness arising from the primary judge’s refusal to permit the appellant to amend the contravention application – No miscarriage of justice caused by error of law – Appeal dismissed – No order as to costs

FAMILY LAW – COSTS – parenting and property proceedings – disclosure failures – non-compliance with orders – subpoena process – whether circumstances justified costs order – standard and indemnity costs ordered.

FAMILY LAW – SECURITY FOR COSTS – property settlement proceedings – where the wife resides in Australia – where the husband resides in Country B – where the parties jointly own the matrimonial property in Melbourne – where the wife filed an application seeking security for costs close to the final hearing – where husband has title of two properties in Country B that had not been disclosed – where the husband’s financial circumstances are opaque and somewhat unknown – where the Court considers that the general rule in s 114UB be set aside – where the Court orders security for costs in the sum of $40,000 – costs of the application reserved.

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 – Final Hearing – Child aged 10 years old – Where the child has lived in the primary care of the paternal grandparents since 2019 – Where the father has disengaged in the proceedings and resides in China – Where the mother resides in Sydney – Lack of trust between the parties – Where the child has been cared for by a combination of the paternal family, the maternal family and the mother – Where the COVID-19 pandemic has impacted the child’s care arrangements – Consideration of the child’s stability with the paternal grandparents in Adelaide – Where each party seeks primary care of the child – Where the mother has proposed relocating to Adelaide – Consideration of the child’s connection to her Chinese heritage – Consideration of best interests – Orders made for the child to remain in the paternal grandparents primary care – Orders made largely as promoted by the Independent Children’s Lawyer.

FAMILY LAW – interim hearing – where both parties previously consented to reconsideration of final orders – where the parties have three children – where the orders sought only concern the youngest child – where the father seeks a week-about arrangement – where the mother seeks supervised time – where there is serious denigration of the mother by the father – where father denigrates the mother to the child via text messages – where there is incontrovertible evidence of denigration – where the court is unable to make any findings on an interim hearing – where the court has to weigh the benefit of the relationship between the child and the father with the development and psychological needs of the child – where the court finds there is a serious risk of the psychological and developmental needs of the child being exposed to severe parental conflict – where the court orders supervised time – where the court orders both parents to enrol in different courses – where the matter remains listed for a directions hearing in November.

FAMILY LAW – Final Parenting – where multiple risk factors including family violence, substance abuse, father’s criminality and impulsivity, where both parties have mental health diagnoses – where father continues to use medicinal marijuana - where mother alleges child exposed to family violence and was shaken as a baby – where mother a vulnerable person - where restraints made as to the conduct of both parties – where section 64D(2) order made - order for identification contact only. 

FAMILY LAW – PROPERTY – where the husband borrowed money from his parents to purchase a property – where the husband was unable to discharge the onus of establishing the quantum of the debt – where the wife should not be liable for the debt where it is vague, uncertain or unlikely to be enforced – where the wife was primarily responsible for the care of the child – where the wife will retain the former matrimonial home.

FAMILY LAW – interlocutory property – dispute regarding valuation – alleged nondisclosure – delay in preparation of expert report – costs sought – where neither parties’ proposal in the interests of justice – proceeding not ready for trial – concerns raised regarding both parties’ conduct throughout course of proceeding– no finding as to costs.

FAMILY LAW – PARENTING – Where the mother alleges and the father denies historical family violence – Conflict did not rise to the level of family violence – Father not a risk of harm – Children to spend gradually increased time with the father.

FAMILY LAW – SURROGACY – Where the child is born through commercial surrogacy – Where the parents entered into the surrogacy agreement overseas – Where the child was artificially conceived – Where the father provided the genetic material for the child to be conceived – Where the child is an Australian citizen – PARENTING – Where there is a high conflict co-parenting relationship – Where there are some safety risks for the child in the father’s household – Where it is not in the child’s best interest to live in an equal time arrangement with each parent – Where the mother’s mental health is stable – Where the mother displays greater insight into the child’s needs – Where the father has provided misleading information about his mental health – Where the father has failed in his duty of disclosure – Where it is in the best interest of the child to live in the primary care of the mother – Where the child benefits from his relationship with the father – Where it is in the bests interests of the child to spend regular time with the father, including overnight time– DECISION MAKING – RESTRAINTS – PASSPORTS AND OVERSEAS TRAVEL.

FAMILY LAW – FINANCIAL – Interim Hearing – Where the wife seeks an order for periodic spousal maintenance – Where the wife considers her health conditions hinder her ability to support herself adequately – Where the husband contends that the wife is overstating her health conditions – Consideration of s 75(2) factors in justifying an order for periodic spousal maintenance –Where the wife seeks a “dollar for dollar” order in respect of her legal costs – Where the husband opposes the wife's application for litigation funding – Consideration of factors set out in s 114UB(3) – Orders for the husband to pay to the wife periodic spousal maintenance – Costs orders made for “dollar for dollar” litigation funding in favour of the wife – Interim applications dismissed. 

FAMILY LAW – PARENTING – one child (now aged 12) – high conflict between parents – each allege family violence by the other but neither asserts it is unsafe for child to spend time with the other – mother relocated with child from Queensland to Victoria in February 2023, without father’s knowledge – each parent seeks child live with them (mother in Victoria, father in Queensland) and spend time with the other parent – evaluation of proposals – order for joint decision-making as agreed – order for child to live with mother and to spend time with father found to be in child’s best interests, notwithstanding mother’s past failure to support child’s relationship with father – order for parents to accompany child when travelling interstate if child refuses to travel unaccompanied, to support time with father – consideration of other orders sought by parties, some ultimately agreed and some in dispute.

FAMILY LAW – PROPERTY – financial and non-financial contributions – just and equitable – global approach – tax debt – beneficiary of a trust – future financial needs.

FAMILY LAW – PROPERTY – breach of disclosure obligation by husband – value of UK company – more arduous contributions by wife due to family violence – one child with special needs.  

FAMILY LAW – parenting – notice of objection – set aside.  

FAMILY LAW – PARENTING – husband and wife self-represented – section 102NA order prohibited cross-examination by either – husband relocated to Country B – family violence including choking means increased risk of lethality – sole parental responsibility to the wife – children live with the wife – children to have no contact or communication with the husband save that husband permitted to send cards and gifts to children – wife permitted to travel with children out of Australia – removal of watchlist order. 

FAMILY LAW – PROPERTY – matrimonial home is only significant asset in Australia – majority of equity in mortgage transferred to Country B by husband along with his superannuation – wife to receive 100 per cent of the pool due to her post-separation contributions, for her future needs and because of the transfer of the mortgage funds under section 75(2)(o) of the Act.

FAMILY LAW – PARENTING – partial consent orders - two remaining narrow issues of overseas travel and passport – mother pressed application relating to a security bond for the father in respect of overseas travel and adult supervision for the child whilst overseas with the father - no reasonably arguable case to sustain the proposition that there should be a bond or a prescriptive order for adult supervision -  application dismissed.

CHILD SUPPORT – Application for leave to commence proceedings against the Child Support Registrar – leave refused.

FAMILY LAW – PARENTING – partial consent orders – major long-term decision making – an unacceptable risk of developmental, psychological, and emotional harm – limited capacity to engage in child focucsed communications – all earlier interim parenting orders vacated – mother granted sole parental responsibility – spend time with father.   

FAMILY LAW – PARENTING - application filed by the father sought a change of primacy and for supervised time with the mother - application for a change of primacy, and for supervised time stood over.   

FAMILY LAW – CHILDREN – one child, aged 12 – child with high needs – high parental conflict – breakdown of the father’s parental relationship with the child exacerbated by both parents – consideration of the child’s firm views and her ongoing need for high level support – time with the father as per her wishes – best interests outcome. 

FAMILY LAW – parenting – Evatt matter – two day final contested hearing listed before me – where the Mother and Father were represented by solicitors and counsel – where the Father did not attend court – where no contact could be made to the Father – where counsel for the Father was unable to obtain instructions – where the matter proceeded undefended – where there is significant allegations of family violence – where there is significant drug abuse – where the orders made were in line with the orders sought by the Independent Children’s Lawyer and the Mother – child live with Mother – child spend no time or communicate with the Father.   

FAMILY LAW – parenting only – family violence – where the father denies all accusations of family violence - where the father has not spent time with the children since December 2021 - where the children are fearful of the father – where the father shows no insight into the feelings of the children – mother seeks sole decision making and no time between the children and the father.

FAMILY LAW – PARENTING – Final orders – Where the mother makes allegations of family violence perpetrated by the father against her herself historically and the child currently - Absence of stand out or obvious incidents of violence or abuse and key aspects of mother’s evidence unreliable – Nevertheless, father has behaved in at least odd, or at worst frightening, behaviour which has had a cumulative effect on both the mother and child - Father lacks insight into the effect of his behaviour on the mother and child - Where father diagnosed with rare mental health condition – Where the only available finding on the evidence is that supervision is the only arrangement that would support the safety of the child in the care of the father at this time.

FAMILY LAW – Costs – whether an application for costs is made following consent orders – whether the conduct of the Applicant necessitates a costs order being made – whether indemnity or fixed costs ought to be awarded – costs order made.

FAMILY LAW – COSTS – Circumstances justifying order – Father left the country – Father’s application doomed to fail – Costs awarded to the mother on a party and party basis.

FAMILY LAW - partial consent parenting orders – three remaining issues in dispute – parental responsibility – commencement and duration of father’s time – Christmas – mother’s proposed orders are in the best interest of the child.   

FAMILY LAW – parenting – partial consent parenting orders – restraint of physical discipline pursuant to s 68B – orders restraining application of gun licence – overseas travel allowed – child's name removed from airport watch list – identity contact.