Judgments

FAMILY LAW – PARENTING APPLICATION – parenting arrangements for the child – change of name

FAMILY LAW – PARENTING – The Mother did not appear at the Final Hearing and the Father sought leave to proceed on an undefended basis – Father sought orders he have sole decision making for the parties’ two children, a daughter 12 years of age and a son 10 years of age, the children live with the Father and spend supervised time with the Mother as determined by the Father.

FAMILY LAW – HELD – Father have leave to seek orders on an undefended basis – orders made in the terms sought by the Father.

FAMILY LAW – PROPERTY – The Wife did not appear at the Final Hearing and the Husband sought leave to proceed on an undefended basis –Parties had previously reached a private agreement as to property that was partially executed – the Husband is seeking the agreement reached be formalised, such that the former matrimonial home be sold, the proceeds of sale from be used to pay the associated costs of sale, discharge the mortgage and the balance to be paid to the Wife – The Husband also sought orders the Wife transfer monies held in the children’s account to new accounts opened by the Husband to be held on trust for the children.

FAMILY LAW – HELD – Husband have leave to seek orders on an undefended basis – orders made in the terms sought by the Husband.

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.  

FAMILY LAW – Parenting – interim hearing – where the father be ordered to have sole decision-making responsibility in relation to decisions pertaining to education for the children – where the father must still consult the mother of any decision he intends to make – where there is a concern of the children’s school attendance while in the mothers care – where the court balanced the best interest of the children in determining where the children should live – where the court is satisfied the children’s attendance at school will improve in the father’s care – where residence of the children be moved to the fathers primary care – where the children still live with the mother on a shared care arrangement – where the form of the orders show that the children “live with” both parents – where the mother has increased school holiday time with the children 

FAMILY LAW – PARENTING – Where the respondent unilaterally relocated to City B from Sydney with the children – Where the respondent currently resides in City B with the children and the applicant resides in Sydney – Where neither party is willing to move closer to the other – Where the children have close and loving relationships with each party – Where many minor matters dominate the parties’ evidence – Where the parties view each other negatively – Where the parties have both behaved poorly – Need for self-awareness and impact of behaviours –  No unacceptable risk of harm or family violence.

FAMILY LAW – PROPERTY – Overall contributions equal – Future needs adjustment – Only one asset of significance being the former matrimonial home which is held in the applicant’s sole name – Where one party is to retain the home and one party is to receive a lump sum payment.

FAMILY LAW – Property – composition of asset pool – where contributions are assessed as equal – where there should be an adjustment to the wife of 5% having regard to the factors under section 75(2) of the Family Law 1975 (Cth) – orders made accordingly and are just and equitable.

FAMILY LAW – COSTS – where the Respondent was wholly unsuccessful – where proceedings were necessitated by the Respondent’s repeated failure to comply with previous Orders – where indemnity costs are warranted due to the Respondent’s misconduct

FAMILY LAW – Parenting – whether hearsay allegations of intimate partner violence from three partners of Father indicate substantial risk to the children – whether father had been violent to Mother – where psychometric tests relied upon by single expert witness – where expert witness refuses to make all data available for examination by Father’s lawyers – where parents not informed that some data from psychometric tests would not be available for examination by parties lawyers – whether diagnosis of Father should have any weight in circumstances – whether alleged psychological impact on Mother of any time with parents’ two children means only limited 4 times each year professionally supervised – assessment of risk of unsupervised time – whether Father has “evolved”, progressed or rehabilitated himself – examination of extent of “criminality” of the Father – whether Paternal Grandparents suitable supervisors of any time – or whether they are “enablers” of Father’s violence – where Mother relies on advice from service that has not met the Paternal Grandparents – whether all overnight time should be at the Paternal Grandparents’ home – whether all time with children should be tethered to involvement of Grandparents – final orders for time gradually moving from supervised time to substantial attendance to unsupervised time but all overtime time and police station changeovers to involve Paternal Grandparents.

FAMILY LAW – PARENTING – Applicant father seeks a final order that the three children spend equal time with each parent – Respondent mother opposes order for equal time and seeks an order that the children continue to live with her and spend time with the father – Parties agree that there will be an order that the parents have equal shared parental responsibility for the children – Consideration of whether it is in the best interests of the children and reasonably practicable for the children to spend equal time with each parent – Consideration of whether it is in the best interests of the children and reasonably practicable for the children to spend substantial and significant time with each of the parents – HELD that it is in the best interests of the children to live with the mother – HELD that it is in the best interests of the children and reasonably practicable to spend substantial and significant time with the father 

FAMILY LAW – Parenting – Interim hearing – Orders made largely pursuant to consent minute – Scheme of consent orders changed slightly to delay progression of spend time – Where parties disagree on whether to appoint an Independent Children’s Lawyer – Where both parties’ allegations include some form of abuse – Decision to appoint Independent Children’s Lawyer.

FAMILY LAW – Parenting – where final orders were made in 2020 – where the matter was reopen by the consent of both parties – where the judgment of 2020 made findings of family violence – whether those determinations bind these proceedings – decision of these proceedings bound by the 2020 judgment.

FAMILY LAW – parenting – urgent hearing – where the independent children’s lawyer made an application via email for a watchlist order against the respondent – where the respondent wishes to travel to Country B with the child – where the respondent has travelled to Country B with the child previously and returned to Australia – where a watchlist order has been dismissed previously in these proceedings – where the independent children’s lawyer and the applicant believe there is a real concern the respondent and/or the child will stay in Country B – where the applicant is concerned of potential legal proceedings in Country B concerning the child while the respondent and child are overseas – where the respondent gave an undertaking in court that he would not commence proceedings overseas – where both parties are to contact and engage with Q Contact Centre to facilitate time with the child and applicant  

FAMILY LAW – CHILDREN – International relocation – Where mother seeks to relocate to United States with child who has a medical condition – Where child requires lifelong medical treatment and support – Where the mother has a disability – Where limited weight is placed on the Single Expert Report – Mother permitted to relocate with the child.

FAMILY LAW – Application for orders to ban personal cross-examination – Section 102NA requirements – whether satisfied – concerns about use of legal aid cross-examination scheme – time when requirements for making order are to be satisfied – one party still legally represented – financial impecuniosity not a pre-requisite to making order – inference that both parties will be self-represented by defended hearing and each will cross-examine – necessity to ensure defended hearing dates are held - mutual Section 102NA orders made based on discretion pursuant to s102NA(1(c)(iv) of the Family Law Act 1975 (Cth)

FAMILY LAW – PARENTING – Final hearing – Child aged 4 – Where the child is of a mixed cultural background – Relationship of 6 years – Where the mother and child relocated to Adelaide with the consent of the father in 2022 – Where the father relocated to Adelaide during the trial and without notice to the mother – Where the father seeks an equal shared care arrangement – Where the mother and the ICL seek the child spend no time with the father – Where the parties have no capacity to co-parent – Considerations of family violence – Overseas travel – Matters to be considered

FAMILY LAW – Parenting – Where final orders already in place – Where mother has unilaterally withheld child against final orders – Where mother has indicated intention not to be involved in proceedings – Decision to proceed undefended – Where father and Independent Children’s Lawyer seek final orders to remain in place – Final orders reinforced – Orders and reasons for judgment to be provided to Child Protection for any future involvement.

FAMILY LAW – FINANCIAL – Interim proceedings – Where both parties seek sole use and occupancy of the former matrimonial home – Where the applicant wife seeks further interim orders for lump sum interim spousal maintenance, a partial property settlement and injunctive relief – Where the respondent husband broadly opposes the wife’s application but makes a counter proposal for financial support – Orders for lump sum interim spousal maintenance of $35,000 in favour of the applicant wife – Orders for a partial property settlement of $35,000 in favour of the applicant wife – Orders for the respondent husband to have sole use and occupancy of the former matrimonial home until final orders can be made. 

FAMILY LAW – Parenting - whether children aged 6 and 4 remain living with mother or live with father - whether either party poses an acceptable risk to children - held mother poses an unacceptable risk and children unsafe in her care - children live with the father - children spend limited supervised time with mother.

FAMILY LAW – Parenting – Undefended final hearing – Where respondent mother has had opportunity to participate in proceedings but has chosen not to – Where respondent mother unilaterally relocated with child overseas – Recovery order – Watchlist order – Orders for child to live with applicant father in Australia – Any orders for spend time with mother to be determined if or when she chooses to engage in proceedings.

FAMILY LAW – PARENTING – where the mother has neglected the child - where the child’s views are given reduced weight in circumstances where the child has been significantly influenced by the mother – where it remains in the child’s best interests not to spend time with the mother - where the father will continue to have sole parental responsibility.

FAMILY LAW – PROPERTY – where the matter proceeded on the husband’s evidence – where there is to be a 55/45 non-superannuation asset split in favour of the husband – where there is an equal superannuation split – where joint proprietorships are severed - where proceeds of sale of a property go to the wife and a property be transferred to the husband

FAMILY LAW – PARENTING – where there are two children aged 7 and 6 – where the children live with the father and have spent no time with the mother since 2022 – where the mother has neglected the children and they have expressed a desire not to see her - where the mother has perpetrated family violence and repeatedly failed to produce hair follicle tests – where the mother has not taken steps as recommended by the Family Report writer

FAMILY LAW – PROPERTY SETTLEMENT PROCEEDINGS – Applicant alleges breakdown of 23 year de facto relationship and files Initiating Application seeking property settlement orders – Respondent files Response seeking s 90RD declaration that there had been no de facto relationship – Respondent subsequently dies – Respondent’s legal personal representative files application for summary judgment on basis that the proceedings have abated as a result of the Respondent’s death – proper construction of s 90RD and s 90SM(8) of the Family Law Act - questions of jurisdiction considered – application for summary judgment dismissed

FAMILY LAW – PARENTING – Orders made in the best interests of the children.

FAMILY LAW – PROPERTY – Just and equitable property adjustment orders made.

FAMILY LAW – PROPERTY– Where wife seeks to vary or set aside Final Orders made on 2 May 2013 pursuant to s 90SN(1)(b) – (c) – Where husband seeks to enforce those Final Orders – Finding of default by both parties – The Final Orders be varied or set aside in substantive proceedings.

FAMILY LAW – Parenting – three children, aged 15, and two twins aged 10 – extremely high conflict – where the siblings are separated – where both parents have engaged in “psychological warfare against their ex-partner at the detriment of their children” – where both parents have involved the children in adult issues and the Court proceedings, engaged in open denigration of the other in front of the children, attempted alienation/alignment of one or more of the children, verbal and psychical abuse on one another, emotional neglect of the children – where the Court holds concerns about both parents and their attitude – where the Court considers that the mother should be allowed to relocate – where the Court considers that the twin girls should remain living with the mother and only have electronic communication with the father – where the Court considers that the eldest boy should continue to live with the father and spend time with the mother in accordance with his wishes – electronic communication between all three children – best interests.

FAMILY LAW – Property – where the parties were together for 22 years – where the matrimonial assets are modest – jointly owned home with modest equity – where there are various items and vehicles – superannuation splitting order – just and equitable.

FAMILY LAW – PARENTING – Where the mother seeks a suite of interim parenting orders including that the children live with her, that she is granted sole parental responsibility and that the father is restrained from contacting the mother or children – Where allegations of parental alienation are a live issue and require determination at final hearing – Where the father challenges the opinions of the single expert – Where an order changing the children’s place of residence has the potential to cause significant emotional distress – Where there is no evidence that the children are at an ongoing risk in respect to their physical safety in the mother’s care – Where the supervision reports are overwhelmingly positive – Orders made allowing the children to spend additional time with the mother on an unsupervised basis.

FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – Where criminal proceedings are on foot – Where the mother sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – Where the application is opposed by the father – Where the mother seeks to use the documents in aid of her defence in criminal proceedings – Consideration of r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the Court is satisfied that special circumstances exist – Order releasing parties from Harman undertaking

FAMILY LAW – PROPERTY – no binding financial agreement between the parties – redraws on the mortgage by the wife – equal financial contributions – slightly greater non-financial contributions by the wife impacted by duration of marriage and relatively small property pool- husband has reduced earning capacity –after future needs adjustment - 48% in favour of husband and 52% in favour of wife - no order as to cost

FAMILY LAW – Final Parenting Orders made in 2016 after defended  hearing – Father seeks to change final orders where he has previously applied in 2018 and 2020 –Father was found guilty of contravention of orders in 2024 – Section 65DAAA applied - No significant change of circumstances found - Final Parenting Orders in best interests of child – where Mother seeks declaration that Father is vexatious litigant pursuant to section102Q – declaration made

FAMILY LAW – Defacto relationship – Threshold issue – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the respondent denies the existence of a defacto relationship – Consideration of the nature of the parties’ 21 year relationship – Where the parties lived together – Where the parties had a non-exclusive sexual relationship – Where the applicant was financially dependent on the respondent – Whether the parties had a mutual commitment to a shared life together – Costs reserved.

FAMILY LAW - PROPERTY – alteration of property interests - wife made the greater initial contributions – wife made the greater financial and homemaker contributions during the relationship- greater earning capacity of the wife - both parties have the physical and mental capacity for appropriate gainful employment wife to pay the husband the sum of $115,000 within 90 days – sale of property if default of payment to the husband – just and equitable

FAMILY LAW – COSTS – De Facto property proceedings – Where respondent de facto husband continued to deny allegations of physical family violence until confronted with criminal history – Where respondent refused reasonable offer or compromise – Where respondent’s conduct of the trial increased the costs of the applicant

FAMILY LAW – COSTS – Where relevant factors considered – Where court satisfied that there are circumstances which justify a costs order

FAMILY LAW – COSTS – Applicant seeks indemnity costs – Where settled practice is to order costs on a party and party unless there is an exceptional, unusual or extreme circumstance.

FAMILY LAW – COSTS – Party and party costs – Costs awarded in a fixed amount calculated in accordance with Scale

FAMILY LAW – CHILDREN – Where the parties agree that the children shall live with the father and the eldest child (15 years of age) shall spend time with the mother in accordance with her wishes – Whether orders should be made for time and communication between the youngest child (11 years) and the mother – Whether the father should hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties – Where the children have spent no time with the mother since September 2023 – Where the children hold strong views that there be no orders to spend time with the mother – Impact of protracted litigation on the children – Parental conflict – Where both children have experienced mental health difficulties – No positive findings of family violence – Findings made that coercive orders for the youngest child to spend time with the mother would not be in her best interests – Orders made for each child to spend time with and communicate with the mother in accordance with their wishes – Orders made for the father to hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties

FAMILY LAW – subpoena objection - where the mother sought a subpoena from the Office of the Health Ombudsman – where the Office of the Health Ombudsman objected to that subpoena on the grounds of relevance, insufficient particulars and confidentiality – where the material sought in the subpoena is relevant – where the relevant statute provides the Office of the Health Ombudsman is not required to disclose confidential information to a court or tribunal.

FAMILY LAW – CHILDREN – Where the parties agree that the mother should hold sole parental responsibility for the child and that the child should live with the mother – Whether the child should spend time with the father – Where the child has never met the father – Where there are allegations by the mother of significant family violence perpetrated by the father, including coercive and controlling family violence – Where findings are made that the father poses an unacceptable risk of harm to the child and the mother as a result of family violence – Where the father has long-term mental health issues – Where findings are made that the father’s mental health presents an unacceptable risk of harm to the child’s safety – Where the Court cannot be satisfied that the father is drug-free – Where the child is vulnerable due to developmental delays – Where orders are made that the child shall spend no time with nor communicate with the father – Where injunctive orders are made pursuant to section 68B of the Family Law Act 1975 (Cth)

FAMILY LAW – COSTS – Application for costs following conclusion of defended parenting proceeding – Applicant wife seeks indemnity costs – In the alternative costs order sought on a party and party basis calculated at Scale – Consideration of general rule that each party bear their own costs in proceedings under the Act – Consideration of whether there are circumstances which justify an order for costs – Consideration of what, if any, order for costs is appropriate. FAMILY LAW – INDEMNITY COSTS – Solicitor and client cost – Settled practice to order costs on a party and party basis – Consideration of whether there is a circumstance which justifies a departure from settled practice. FAMILY LAW – HELD no exceptional, unusual or extreme circumstance. FAMILY LAW – PARTY AND PARTY COSTS – Costs awarded in a fixed amount calculated in accordance with Scale

FAMILY LAW – PARENTING – adjournment application - promote cooperative and child focused parenting by the parties - advance a meaningful relationship between the father and the children – permitting the father to address the significant evidentiary shortcomings – adjournment granted with condition imposed – interim parenting orders

FAMILY LAW – PARENTING – adjournment granted 7 December 2023 – Social media post by suggesting he had manipulated the Court - application for disqualification by the father’s Counsel on the grounds of alleged apprehended bias - fair-minded lay observer – oral application for recusal dismissed.

FAMILY LAW – PROPERTY – Just and equitable – orders made.

FAMILY LAW – property – whether the parties were in a de facto relationship – the Applicant alleges that the parties were in a de facto relationship from late 2013 to February 2017 – the Respondent alleges that the parties were in a relationship from late 2013 to mid-2014 and friends from mid-2014 to February 2017 – where the parties have joint property

FAMILY LAW – Parenting – application to vary final orders – where mother seeks to move to a not-too-distant suburb for work and to be closer to family – where mother says current orders significantly hamper career and earning capacity – where father opposes change to final orders – application to vary final orders successful – orders made to accommodate mother’s new residence – recusal application reserved – costs reserved – all extant applications are otherwise dismissed.

FAMILY LAW – Parental responsibility –spend time arrangements – family violence allegations – intervention order – COVID-19 restriction breaches – child’s medical needs

FAMILY LAW – COSTS APPLICATION – granted – Respondent to pay costs of the applicant on a party and party basis in a fixed sum

FAMILY LAW – CHILDREN – Consideration of s 65DAAA of the Family Law Act 1975 (Cth) – Where final parenting orders were made in May and December 2022 – Where the Applicant father seeks to reopen the proceedings – Where the Respondent mother seeks to dismiss the father’s application – Where the parental conflict has impacted the children’s access to therapeutic and medical assistance – Where the parents have demonstrated no joint decision-making capacity in respect of the children as required by the final parenting orders – Where the Court is satisfied that there has been a significant change in circumstances since the final parenting orders were made – Where the Court is satisfied that it is in the best interests of the children to reconsider the final parenting orders

FAMILY LAW – PROPERTY – interlocutory – application for leave to commence proceedings for property adjustment out of time – consideration of respondent’s jurisdictional objection – consideration of prima facie case for relief – whether the applicant has demonstrated sufficient likelihood of success – where claim is not trifling – consideration of hardship – exercise of discretion – consideration of delay – consideration of prejudice to the respondent – leave granted

FAMILY LAW – PARENTING – Relocation – Where the applicant mother seeks an order which permits her to relocate the child from Region B in New South Wales to Region C in Queensland – Where the respondent father opposes relocation of the child on the basis that it will adversely impact the child’s relationships with the father and extended paternal and extended maternal family members in New South Wales – Where the father seeks an order that the child live with each parent in an equal time arrangement – Where the mother intends to relocate to Queensland with or without the child to live with her husband– Where the mother’s wellbeing is most likely to be enhanced by the financial and practical support she will gain by living with her husband in Region C – Where the child has a meaningful relationship with both parents – Where the child has an important relationship with his maternal half-sibling – Where the child’s relationship with the mother might be diminished from feelings of rejection if the mother relocates without him and his healthy development may be impacted – Where the mother’s parenting capacity will be enriched by moving to Region C and the child will benefit – Where the child will continue to have the benefit of a meaningful relationship with the father if the mother is permitted to relocate the child – Relocation permitted – Spend time with arrangements – Discrete issues

FAMILY LAW – Property – Application to reopen matter after conclusion of final hearing – Application to adduce further evidence – Where judgment remains reserved – Where respondent claimed no interest in estate of recently deceased parent at final hearing – Where applicant claims respondent stands to inherit significant sum from deceased parent’s estate – Submission that matter can be dealt with via written submissions – Where serious allegations of misleading the court in final hearing warrant further hearing – Matter listed for further half-day of final hearing.

FAMILY LAW – LEGAL PRACTITIONERS – Where the wife seeks orders restraining the husband’s solicitors from continuing to act for him – Where there was inadvertent disclosure to the husband’s solicitors of confidential and privileged communication between the wife and her solicitors – Where the husband’s solicitors failed to provide disclosure to the wife’s solicitors of the inadvertent disclosure – Where the husband’s solicitors failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

FAMILY LAW – COSTS – Where the matter was listed for interim hearing in September 2023 in relation to the mother’s Application for the father’s solicitors at that time to be restrained from acting for the father – Where the mother’s Application for restraint was based on inadvertent disclosure to the father’s solicitors of confidential and privileged communication between the mother and her solicitors – Where findings were made that the father’s solicitors failed to provide disclosure to the mother’s solicitors of the inadvertent disclosure, and failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – Where the mother seeks orders as to her costs in seeking that the father’s former solicitors be restrained from acting – No order as to costs made against the father’s former solicitors – Order made for the father to pay the costs of the mother on an indemnity basis in relation to the mother’s Application for restraint – Costs to be paid as agreed or assessed

FAMILY LAW – CHILDREN – Whether the children should spend time with the father – Allegations of family violence, including coercive and controlling family violence – Exposure of the children to family violence – Drug use – Where the father made concessions as to falsifying negative drug test results – Where the father made concessions as to falsifying evidence in criminal proceedings – Where the father made concessions as to falsifying medical records – Where the father made concessions as to falsifying financial records – Alcohol use – Where findings are made that the father poses an unacceptable risk of harm to the children and the mother as a result of family violence – Where findings are made that the father’s drug use poses an unacceptable risk of harm to the children – Where findings are made that an order for no time is not in the children’s best interests – Where orders are made for ongoing supervised time between the father and the children, with such time to be supervised by a professional supervised contact service