Judgments

FAMILY LAW – CHILDREN –Where the father has refused to disclose details of his mental health – Where the father has inability to manage and control his aggression –Where father’s use of force and excessive disciplining of children leaves them at risk of harm in his care – Where father lacks insight - Where mother found to have acted protectively– Where father’s tendency to lie about his conduct and his negative narrative about mother to external agencies’ responsible for protecting children has exposed children to harm – What weight to place on views of eldest child who is resistant to spending time with the father.  FAMILY LAW – PROPERTY – Value of property.   FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Contribution by third party – Future needs.

 FAMILY LAW – parenting – final orders – parental responsibility – live with arrangements – mother’s allegations of coercion or control by father – what constitutes coercion or control – findings that father’s behaviour did not amount to coercion or control – not necessary to make definitive findings in respect allegations of sexual assault – order for joint parental responsibility on conditions – order for significant and substantial time progressing to equal shared care  

FAMILY LAW – PARENTING – SPEND TIME ARRANGEMENTS – Applicant father seeks order that the three-year-old child spend supervised time with him – Child has spent limited time with father since parental separation three years – Consideration of matters under Part VII Family Law Act 1975 (Cth) – Consideration of the safety of the child and mother –Where father has perpetrated family violence –Where father has conviction for drug offences – Where father has not accepted full responsibility for his harmful conduct – Where father has not taken action to change his pattern of harmful behaviour – Whether there is a benefit to the child of being able to have a relationship with both parents – Consideration of what arrangements will promote the safety of the child – Where supervision of the child’s time with the father will ameliorate identified risks – Whether order for supervised time will promote the child’s safety and meet the child’s developmental, psychological, emotional and cultural needs – Whether mother’s capacity to provide for the child’s needs is preserved if there is an order for supervised time for the child with the father – Where an order for supervised time for the child is in the best interests of the child-Where order for supervised time will meet the child’s psychological and cultural needs – Where order for supervised time will not expose the child or the mother to an unacceptable risk of family violence – Order for supervised time for child with father six times each year – ALLOCATION OF DECISION MAKING – Where it is in the best interests of the child for the mother to have sole decision-making for all major long-term issues relating to the child-RESTRAINTS-COSTS – Independent Children’s Lawyer seeks an order that father pay a proportion of the costs of the Independent Children’s Lawyer – order for costs will create hardship for father – application refused  

FAMILY LAW – Parenting proceedings - best interests of child – two children aged 4 and 6 - where the Father resides in Queensland and the Mother resides in Sydney – where the Mother seeks a gradual increase in the Father’s time commencing as supervised and moving to unsupervised – where the Mother seeks orders for her to travel with the Children – where the Mother’s allegations of drug abuse against the Father are unsubstantiated - where the Father seeks his time be unsupervised – where the Father seeks orders permitting both parents to travel with the Children - where the Court orders the Father’s time be unsupervised – where the Court orders both parents be permitted to travel with the Children. 

 FAMILY LAW – PARENTING – where the parties have been involved in litigation for much of the subject child’s life – where the mother seeks the child have time with the father on three occasions per year and the father ultimately seeks an equal time arrangement – where the child has steadfastly refused to spend time with the father – where the mother alleges the child is fearful of the father and the father alleges the mother is unable to facilitate a relationship – where it is found that the father has assaulted the child and supervised visits have been troubling – where the parties positions are extremely polarised – where the single expert engaged in a fact finding exercise contrary to his role – where there are significant limitations to the single expert’s report – where significant weight is not placed on the single expert’s ultimate opinion that the child should be forced to spend time with the father on the threat that if he does not comply he will be moved to live with the father – where it is found the father’s capacity for emotional dysregulation places the child at risk and cumulatively the father’s capacities place the child at significant risk of harm – where such risk is ameliorated by the child spending supervised time with the father as sought by the mother – where the Independent Children’s Lawyer’s  proposal that the mother determine how and when such time occurs is rejected.   

FAMILY LAW – appointment and removal of litigation guardian – where proposed litigation guardian is a manager of the affairs of the husband pursuant to rule 3.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – consideration of whether litigation guardian holds interests adverse to the husband – consideration of Thorn & Thorn [2017] FamCA 950 –where the litigation guardian is a director of and shareholder in various entities that form part of the asset pool – where litigation guardian may be called as a witness at the final hearing – finding that the litigation guardian unable to satisfy r 3.14(b) of the Rules – orders for transfer to Division 1 and the Brisbane registry by consent  

FAMILY LAW – PARENTING – application for final parenting orders – children aged 12 and 9 – mother diagnosed with a mental illness – where father critical and doubtful of mother’s ability to care for children – consideration of best interests of the children under section 60CC of the Family Law Act 1975 (Cth) – consideration of risk – final parenting orders made 

FAMILY LAW – interim parenting decision -  one child aged 3 - whether the interim consent orders made on 2 April 2024 providing for the child to spend time with the father at a supervised contact centre should be discharged – whether the child should spend unsupervised time with the father progressing to one overnight each alternate weekend – whether amendments should be made to the father’s current alcohol and drug testing regime – where the court orders that the father’s time be increased but remain supervised – where the court declines to vary interim orders in place with respect to drug and alcohol testing for the father. 

FAMILY LAW – PROPERTY – adjustment to the wife for greater contributions and in accordance with the principles in Kennon – further adjustment to the wife for s.75(2) factors – referral of husband to the Commonwealth DPP for consideration of investigation of potential fraud against the Commonwealth.   

FAMILY LAW – PARENTING – dispute in relation to parenting responsibility and care arrangements for two children aged (9 and 13) – parties each allege the other has perpetrated family violence – father alleges mother has abused the children – competing allegations of risk – assessment of risk – finding children would be exposed to an unacceptable risk of psychological or emotional harm in the care of the father and not in the care of the mother – orders for mother to have sole parental responsibility and for children to live with her and spend limited time with the father, professionally supervised each calendar month – orders permitting the mother to travel internationally with the children –  injunctions made (unopposed) pursuant to section 114(3) restraining the father from contacting the independent children’s lawyer, her counsel and family members, attending at her office or publishing material about the independent children’s lawyer and her family online 

FAMILY LAW – Parenting -  Where final parenting orders were made on 7 April 2022 for children to live in equal time arrangement and for parents to have joint decision making – Where Mother filed an application to reconsider parenting orders 18 months later – Where Father opposes change to orders – Where family report does not recommend a change to care arrangements under current parenting orders – Where section 65DAAA applies – where there has been no significant change in circumstances 

 FAMILY LAW – PARENTING – child abuse and neglect – child left alone for lengthy periods of time at 2 years of age – criminal conviction – no time order sought – child abuse and neglect substantiated – past allegations of abuse proven – supervised time considerations – whether orders can ameliorate risk of harm to child – risk of harm to child balanced against long-term risks of severing maternal relationship 

FAMILY LAW – PRACTICE AND PROCEDURE – Application to be released from the Harman undertaking – Where the applicant is defending serious criminal charges in the District Court – Where the applicant seeks the release of documents filed in these proceedings for use in the criminal proceedings – Where the Court is satisfied that special circumstances exist which would justify release from the implied undertaking – Order. 

FAMILY LAW – DIVORCE – clearly inappropriate forum – application for divorce filed by the wife in Australia – where civil and criminal proceedings are ongoing in Country B – where the husband’s application to stay Australian proceedings is dismissed – where the wife’s application for divorce is granted 

 FAMILY LAW – Property – where the matter was listed for final hearing for three days – where after discussion with counsel, it was submitted that this matter could be a five or six day matter – where there was as issue of waiver from professional legal privilege with respondents previous solicitor – where there was a single expert witness appointed to undertake a valuation of the parties business –  where the respondent seeks to admit further evidence of an adversarial witness of another valuation of the parties business – where there is discrepancy between both valuations – where the court ordered for both parties objections to be sent to chambers – where counsel was directed to email their revised objections and their response to these objections to chambers.

FAMILY LAW – PARENTING – relocation – reconsideration of a final parenting order made in 2019 where the mother seeks to relocate with the child where the father opposes the relocation and proposes the child live with the parties on a week about basis – where the co parenting relationship is characterised by significant, multifaceted and sustained conflict – consideration of the extent of the conflict between the parents and the impact on the child – consideration of whether it is in the child’s best interests to remain in City B or relocate to City C – consideration of parental responsibility – orders made permitting the mother to relocate with the child 

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the father seeks an adjournment – Where the mother and Independent Children’s Lawyer oppose the adjournment – Where the reason for the adjournment is unmeritorious – Consideration of the overarching purpose – Where there is no entitlement to an adjournment – Waste of Court resources if adjournments are granted without cogent reasons – Oral application for adjournment dismissed. 

FAMILY LAW – Parenting – Final Order made on 31 May 2021 – father’s application pursuant to s 65DAAA to re-open parenting matters – decision made under the rule Rice v Asplund in 2023 on same evidence – opposed by the mother – father required to undertake hair follicle drug testing - no evidence that the medicinal cannabis does or does not impact his capacity to parent – no independent expert evidence to differentiate between prescribed cannabis and illicit drug use – father’s Application dismissed   FAMILY LAW – Harmful Proceedings Order – the mother seeks that father be restrained from filing further proceedings without the leave of the court – second attempt to re-open child matters - the father has also filed Contravention proceedings and multiple Applications in a proceedings since the final order was made, the father has also filed proceedings in the State jurisdiction and a Human Rights claim alleging discrimination by the mother and the court –mother gives evidence of mental distress and financial harm - application granted 

FAMILY LAW – PARENTING – Best interests of child – Relocation – Orders made 

FAMILY LAW – Application for adult child maintenance – Where mother seeks an order for adult child maintenance on the basis that it is necessary to enable the adult child to complete university studies – Where child no longer lives with mother – Where father contributes financially to adult child and has done so throughout his minority – Application for summary dismissal of mother’s application – No reasonable prospect of success in circumstances where adult child does not live with mother and father has and continues to make significant contributions to adult child – Where adult child does not wish to be involved in proceedings – Where application for adult child maintenance for parties’ older adult child previously dismissed and costs ordered – Application for adult child maintenance dismissed. 

FAMILY LAW – PARENTING – Best interests of child – Orders made.   

FAMILY LAW – PRACTICE AND PROCEDURE – adjournment application made where Mother failed to attend Court while under cross-examination – application refused  

FAMILY LAW – PROPERTY – Application for interim sale of property – application dismissed. 

FAMILY LAW - Property – Application to consolidate proceedings - where Wife seeks consolidation of the Family Law Act proceeding with Fair Work Act proceedings – where Husband commenced Family Law Act proceedings for property settlement first – where Wife claims similarity of factual dispute and increased legal costs of two actions requires the proceedings to be consolidated – where there is no power to consolidate the two proceedings – Application to consolidate dismissed – Husband’s costs reserved to trial 

FAMILY LAW – review application – interim parenting proceedings – where the father alleges that the mother’s new partner is a risk to the children – assessment of risk in interim parenting proceedings – order restraining the mother from leaving the children alone in the presence of her new partner for more than 3 hours  

FAMILY LAW – Parenting – registration of overseas child orders – child orders made in State B, USA – requirements of s.70G of the Family Law Act 1975 and reg.23 of the Family Law Regulations 1984 – discretion as to registration – application granted – orders registered.

FAMILY LAW – Jurisdiction – overseas parenting order registered in Australia – application by mother for this Court to exercise jurisdiction and make a parenting order – application of s.70J of the Family Law Act 1975 – consideration of first step, s.70J(1); whether the Court is satisfied that there are substantial grounds for believing that the child’s welfare requires that this Court exercise its jurisdiction – Court being satisfied – jurisdiction enlivened – insufficient evidence before the Court for consideration of second step, s.70J(2) – matter adjourned for case management.

FAMILY LAW – review application – interim parenting proceedings – where the father alleges that the mother’s new partner is a risk to the children – assessment of risk in interim parenting proceedings – cautious approach – order restraining the mother from leaving the children alone in the presence of her new partner  

FAMILY LAW – PARENTING – where the biological father of the child is not known to the child – where the mother had an extramarital affair with the biological father for many years – history of abuse alleged by the mother during her relationship with the biological father – whether there is an unacceptable risk of harm to the child in being told about her biology and being introduced to the biological father at this stage of her life – biological father found to have engaged in family violence against the mother – finding that there is an unacceptable risk of harm to the child – orders that the biological father spend no time and have no communication with the child 

FAMILY LAW – PROPERTY – trial of proceeding – the parties have not prepared a balance sheet – the applicant wishes to adduce valuation evidence – no application of his intention to do so.

PRACTICE AND PROCEDURE – where the applicant requests another judge to hear the property case – whether the overall veracity of the applicant has been adversely determined in parenting application – the case is transferred to the National Assessment Team for allocation.
 

FAMILY LAW – PRACTICE AND PROCEDURE – application in a proceeding – application to reopen evidence of final hearing – application dismissed.  

FAMILY LAW – parenting – mother alleging unacceptable risk due to father’s pervasive family violence including coercion or control – meaning of coercion or control – exercise of powers by child safety services without adequate assessment of facts – factual findings that children’s views not coerced or controlled by the father – child safety services actions adverse to interests of the children – resulting entrenched alignment of older children to father – younger child removed from father’s care and placed with mother without prior warning – not in the best interests of older children to live with mother – older children have made assessment of parenting and have strong wishes not to have contact with the mother – no unacceptable risk to children in father’s care – parenting orders for father to have sole decision making responsibility for the older children and that they reside with him – parenting orders for mother to have sole decision making responsibility for the younger child and that she reside with her – separation of siblings required 

FAMILY LAW – Necessary to vacate imminent final hearing – Impact of ill-health – Longer estimates of time of trial than previously – Division 1 set up to deal with longer and/or more complex cases – Transferral to Division 1   

FAMILY LAW – PROPERTY – Application in a Proceeding -seeking an order asserting that there was no jurisdiction in this Court - wife was 16 at the time of Marriage - jurisdiction conferred on this Court is not subject to the Marriage Act – Response filed raised no jurisdictional issue– wife submitted to jurisdiction of the Court - no substance in the contention of any unenforceability or invalidity of rights under Part VIII – Application in a Proceeding vexatious – dismissed.    

FAMILY LAW – PARENTING - mother to have decision-making responsibility for all major long term issues including schooling - best advance the developmental, psychological, emotional and cultural needs of the child – six nights per fortnight – permit overseas travel with the mother subject to conditions

FAMILY LAW – PARENTING - where the child lives primarily with the mother who seeks sole decision making and a reduction in the child’s time with the father, where father proposes joint decision making for major long term issues and increased time, where there are allegations of family violence and issues regarding the mental health of the child and the father, where the father argues the mother struggles to facilitate father/child relationship

FAMILY LAW – PROPERTY - where there are addbacks sought, where the asset pool is in dispute, where contributions and future needs are in issue

FAMILY LAW – CHILD SUPPORT – Application for departure – where mother seeks departure order for school fees and other expenses - where father seeks dismissal

FAMILY LAW –Parenting - Where the child, now 5, has lived with the Mother all her life and spent only sporadic time with the Father largely on a supervised basis - Where multiple orders have been made for child’s supervised time with Father to move to unsupervised time – Where the Mother initially sought an order for the child to spend no time with the Father and have no contact with him whatsoever – Where the Mother changed her position mid-way through the trial to child spend increasing time with Father – Where the Father’s case now seeks a change in residence to ensure the child has a relationship with both parents – Where the Independent Children’s Lawyer supports child moving to live with Father - Where the Mother is unable or unwilling to support the child’s relationship with her Father – Where the evidence supports orders for the child to immediately move to the Father’s care

FAMILY LAW - parenting – cultural identity – whether the father poses an unacceptable risk – what is the nature of the children’s relationship with the father? - where the mother is opposed to the children having any contact with the father or alternatively only limited professionally supervised time - whether the mother’s parental capacity would be impaired if the children spent time with the father - capacity of parents to meet children’s needs - taking into account the children’s views – family consultants – what weight should be given to the designated family consultant’s opinions? - role and function of family consultants – best interests of the children

FAMILY LAW – costs application – whether each party should equally contribute to the independent children’s lawyers costs – not necessary to find a clear case to make a costs order – financial hardship – costs application dismissed 

FAMILY LAW – APPLICATION TO PROCEED OUT OF TIME – COSTS – Procedural matters – Interim proceedings – Orders made on 28 May 2024 by Senior Judicial Registrar dismissing the proposed intervenor’s application to intervene – Where the proposed intervenor now makes an application seeking leave to file an application for review of Senior Judicial Registrar’s decision out of time – Where the proposed intervenor is 57 days out of time – Consideration of hardship – Where the proposed intervenor has not met the legal threshold for out of time – Practitioners should not communicate unilaterally with Chambers – Application dismissed – Costs ordered.

FAMILY LAW – PARENTING – final orders – 13 year old child – child has strong views of not wanting to see mother – mother seeks shared care arrangement between two states – mother has no insight into child’s needs – no time spent between mother and child since the child was 8 months old – not in the best interests of the child to spend any time or have any contact with the mother.

FAMILY LAW – PARENTING - mother to have decision-making responsibility for all major long term issues including schooling - best advance the developmental, psychological, emotional and cultural needs of the child – six nights per fortnight – permit overseas travel with the mother subject to conditions

FAMILY LAW - Parenting proceedings – one child aged six - best interests of child – whether the Father’s time be supervised or unsupervised – court finds that it is in the best interests of the child for the Father’s time to be unsupervised.

FAMILY LAW – Property proceedings - small property pool – where court finds it is just and equitable for Wife to receive 70% of the property pool and Husband 30%

FAMILY LAW – Parenting – one child, age seven – where the father has a history of alcohol abuse and mental health difficulties – where the father behaved in a coercive and controlling manner throughout the parents’ relationship and continues to do so with his current partner – where the father has perpetrated high level family violence against the mother and more recently towards his current partner – where the father denies being a perpetrator of family violence and seeks to initially spend supervised time with the child – where the mother seeks a no time order – where the Court considers that the father poses a serious risk of harm to the child – where the Court considers that the father should spend no time and have no communication with the child – best interests of the child.

FAMILY LAW – NULLITY - Where parties thought respondent divorced from first wife in a foreign jurisdiction - Where parties then married in Australia thinking the respondent was free to do so - Where parties both seek the Australian marriage be declared null and void - Where s 23B(1)(a) Marriage Act 1996 (Cth) engaged - Where respondent will perfect divorce in the foreign jurisdiction - Where parties will then lawfully marry in Australia - Order that Australian marriage be declared null and void.

FAMILY LAW – PARENTING – psychological risk to child of having no relationship with her mother – impact on child of change of residence, change of state and change of school – mental health issues – ADHD – parent’s ability to meet child’s needs – history of moving countries, houses, and schools – child engaged with psychologist and school counsellor – need for stability – child’s best interest met by remaining in father’s primary care – father not likely to comply with orders – father not permitted to take child overseas – watch list order to remain in place.

FAMILY LAW – COSTS – following final hearing in relation to validity of divorce order made in 2020 – application to declare divorce void dismissed – applicant seeking indemnity costs in circumstances where husband was both wholly unsuccessful and due to his conduct – limited information about each party’s financial situation – costs awarded on scale.

FAMILY LAW – Where final parenting orders were made on 15 November 2017 for equal time and equal shared parental responsibility – Where Mother is relocating to Perth from City B with or without the children –– Where Mother seeks orders to relocate children to Perth in time for start of new school year - Where final parenting orders are not workable – Where Father opposes relocation and seeks orders that the children live within City B with him – Mother seeks costs for s65DAAA 

FAMILY LAW – CONTRAVENTION – contravention of final parenting orders – not making a child available to spend time – involving the child in the proceedings – plea of guilty with reasonable excuse based on the child’s wishes – court found no reasonable excuse on each count – failure to encourage the child to spend time with the mother – failure to assert parental authority – matter adjourned for submissions on sentencing.

FAMILY LAW – CHILDREN – Children in primary care of mother – Unacceptable risk – Children exposed to volatile parental conflict – Where father holds fixed and negative view of the mother – Where the father has invited the frequent involvement of other agencies in the mother and children's lives to gain advantage – Where the father's unpredictable and sometimes inappropriate behaviour has exposed the children to harm – Children now experiencing psychological difficulties stemming from their exposure to the conflict – Where the father lacks insight into impact of his behaviour – Orders made for sole parental responsibility – Children to live with the mother – No communication between the father and the children – Indefinite supervised time ordered, where no time order would impact on attachment of children to father.

FAMILY LAW – PRACTICE AND PROCEDURE – Where mother seeks harmful proceedings order pursuant to s 102QAC(1) – Substantial litigation history – Psychological harm as a result of proceedings – Harmful proceedings order made. 

FAMILY LAW – Property – where leave was granted to file an application out of time – where the applicant seeks the sale of the property – undefended hearing – where the court is satisfied the respondent was notified of proceedings – final property orders.