Judgments

FAMILY LAW – INTERIM HEARING – Stay Application – Where the Applicant seeks a stay of interim parenting orders pending the determination of an appeal – Where the Applicant has filed a Notice of Appeal – Where the Applicant was self-represented and was directed to authoritative case law concerning stay applications – Where the Applicant contended that the supervised time provided for in the interim orders is not in the best interests of the children – Where there is no evidence that the previously identified risks of unsupervised time have been ameliorated – Where it is currently difficult to assess the prospects of success of the appeal – Where the appeal will not be rendered nugatory in the absence of a stay – Where it is not in the children’s best interests to stay the interim orders providing for supervised time with the Applicant – Application dismissed.

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 – PARENTING – Practice and procedure – applications made for two parties to attend the hearing via electronic means – adequate arrangements made – applications allowed.

FAMILY LAW – PROPERTY – Final Orders – Where a company controlled by the wife purchased and sold several properties over the duration of the relationship of the parties – Where the wife contends that the shares in a company were held on trust for her parents – Where the husband contends that he and the wife used the company for the benefit of the parties jointly and the properties purchased by the company should be part of the matrimonial pool – Where the second respondent contends that the company is the property of herself and her husband – Where the wife after separation transferred all of the shares in the company to the second respondent – The Court finds that there was not a legally enforceable obligation to repay the second respondent and that the wife was at all times the legal and beneficial owner of the shares in the company – The Court finds that the wife sought to reduce the pool of assets in these proceedings for division between her and the husband by transferring the shares to the second respondent.
PROPERTY – Final Orders – Where both parties seek an adjustment of property interests pursuant to s 79 – Where husband conceded contributions favoured wife as to 65 percent – – Where the wife contends family violence occurred throughout the relationship – Where the husband denied all incidents of family violence – Where the Court finds that the husband perpetrated family violence such that the wife’s contributions have been made more arduous – The Court finds that a just and equitable outcome was found to be a 70/30 percentage division of the parties’ property in favour of the wife.

PROPERTY – Final Orders – s 75(2) – Where the wife sought an adjustment in her favour of 10 percent by reason of her future ongoing care of the parties’ children –Where the wife has sole parental responsibility and the children are in her primary care – Where the wife receives Child Support payments from the husband – Where the wife’s income greatly exceeds the husband’s income – Where the husband sought an adjustment in his favour of 10 percent – Where the husband did not articulate a clear submission as to why there should be an adjustment in his favour – The Court find that there is no call for a further adjustment in favour of either party.

PRACTICE AND PROCEDURE – s 95 – Overarching purpose – Statutory obligation for efficient use of judicial resources, effective disposal of cases, timely and proportionate resolution of disputes – Where matter was transferred from Division 2 to Division 1 for final hearing – Where it is unclear to the Court why the matter was transferred from Division 2 to Division 1 – Division 1 is not a dumping ground.
 

FAMILY LAW – PARENTING – Consent orders – Oral reasons – Where father has withdrawn from proceedings but failed to file a formal notice of discontinuance – Where father is self-represented – Where correspondence from father accepted as withdrawal from proceedings – Where rule requiring filing of notice of discontinuance dispensed with – where Court Child Expert recommends no time and no communication with father – Where serious but untested allegations of family violence – Undefended hearing - Where ICL proposes court accept Court Child Expert’s recommendations and mother supports that proposal – Orders as proposed by ICL for sole parental responsibility to mother, children to live with mother, no time and no communication or at mother’s discretion, travel and passport orders for mother.

FAMILY LAW – PROPERTY – Major complex financial proceedings list – Interim applications – Where the wife alleges the husband has divested himself of the matrimonial pool – Application for joinder – Application to strike out pleadings – Application for security for costs – Order made for the proposed respondents to be joined as parties to the proceedings – Leave granted to amend the wife’s further amended points of claim.

FAMILY LAW – PROPERTY LAW – Where consent orders were made on the second day of trial – Where those orders are in terms which are just and equitable.

FAMILY LAW – ENFORCEMENT – Where the wife seeks a declaration to enforce various paragraphs of a final Consent Order made in 2016 – Where the order provided that the husband pay the wife 60% of WIP received from the husband’s business – Where the wife contends the husband has collected at least $1.3 million in WIP – Where the husband asserts the order provides for a 60% payment of a reconciliation adjustment – Where there has been no reconciliation adjustment – Where the husband asserts the payment obligation has not crystalised – Where the Court finds that the Consent Order does not reference a “reconciliation” or “adjustment” payment – Where the wife seeks a declaration that she be entitled to a sum certain –Consideration of calculation of the WIP received by the husband – Where the husband has failed to provide requisite disclosure – Orders for the husband to pay the wife a sum certain.

FAMILY LAW – INTERIM HEARING – Disqualification application – Where the Applicant makes allegations of actual bias and apprehended bias – Where the Applicant was self-represented and directed to the respective tests for actual bias and apprehended bias – Where the Applicant’s perception of bias is not sufficient to establish actual bias or apprehended bias – Where the Applicant’s dissatisfaction with the outcome is not sufficient to establish actual bias or apprehended bias – Application dismissed.

FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – ENFORCEMENT – Where a return order to Belgium was made – Where there are orders providing a mechanism for what is to occur in circumstances of non-compliance with the orders – Where the respondent has a history of non-compliance – Warrant activated for the apprehension or detention of the child.

FAMILY LAW – PARENTING – Where the mother alleges the child is exhibiting sexualised behaviours – Where the mother concedes the father does not pose an unacceptable risk to the child – How major long-term issues should be determined for the child – Time the child should spend with the father – Consideration of the best interests of the child.

FAMILY LAW – CHILDREN – Where there is a challenge to the psychiatric report of the single expert psychiatrist – Where the report raised the risk of kidnapping and fleeing, as well as filicide-suicide by the mother – Where a child was removed from the mother and placed with the father on an interim basis – Where significant restrictions were placed on the mother – Where it is conceded psychiatric evidence relied upon does not support finding of unacceptable risk of harm – Where it is submitted that the single expert report should be afforded little or no weight – Where risks have been identified in the mother’s household – Where it is accepted the risks are not unacceptable – Where the child will remain living with father on an interim basis until trial.

FAMILY LAW – CHILDREN – Parenting orders – Where mother wished to relocate to United Kingdom – Where the legitimate interests of an adult conflict with the best interests of children – Where the advantages and disadvantages to the children of living in Australia or relocating overseas are considered – What orders/injunctions are necessary to minimise the children’s exposure to conflict between the parents – Whether the mother poses an unacceptable risk of harm to the children by reason of ongoing denigration of the father and family violence.

FAMILY LAW – COST ORDERS – Where an applicant seeks to depart from the principle that each party bear their own costs – Where jurisdictional issues preclude the application of the respondent – Where the respondent seeks time to pay.

FAMILY LAW – PROPERTY – Consent orders made regarding division of property interests – Where limited issues in dispute were mechanics as to timing of implementation of the orders and costs associated with redevelopment – Orders made.

FAMILY LAW – CONTEMPT – Where the husband filed an application for the wife to be dealt with for 16 counts of contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) – Where the husband prosecutes nine alleged contempts of an order and/or undertaking by the wife – Where the wife asserts she has no case to answer – Whether there was a flagrant challenge to the Courts authority – Where the Contempt Application against the wife is dismissed.

FAMILY LAW – PROPERTY – Where husband holds significant family lands at time of marriage – Long relationship - Lengthy period between separation and trial – Uncertainties as to the value of the husband’s superannuation entitlements at the time of the hearing – Dispute as to which part of the various land holdings each party retains.

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.