Judgments

FAMILY LAW –  Final Property Alteration Orders – Marriage of 8 years until separation – 6 years of contributions prior to marriage – Disparate initial contributions – Weight to be given to gifts and/or inheritances when considering section 79(4) contribution – One party seeks s 79(4) contribution assessment of 85/15 – Other party seeks s 79(4) contribution assessment of 50/50 – Difficulty with the parties organising appropriate evidence for trial – Where one party alleges “double shift” contribution – Where one party seeks to retain the farm and pay out the other party and other party seeks orders for sale of all/most assets – Dispute as to form of default of payment provisions in orders – Dispute as to whether payment to departing party should be fixed by reference only to agreed pool or whether actual sale proceeds and likely capital gains tax should be taken into account – Whether the party seeking to retain the farm should have up to one year to fund property settlement – Whether party to receive payment should leave farm immediately or upon receipt of property settlement – Whether parties should be responsible for drafting of default provisions of orders after determination and reasons delivered – Where neither party provided evidence of extent of potential capital gains tax – Orders for 80/20 division would not be just and equitable – Orders for 50/50 division would not be just and equitable – Party seeking to retain farm should have up to 6 months to fund property settlement – Party to leave former matrimonial home when property settlement received – s 79(4) contribution assessed at 72.5/27.5 – s 75(2) adjustment of 3% – Division of assets 69.5/30.5 – Party retaining farm to have 6 months raise payment before default provisions take effect – Orders made for a payment calculated on basis of a 31/69 division of property and for parties to bring in draft orders as to default of payment provisions and for default of payment provisions to take into account selling costs and any taxes arising from sale. 

FAMILY LAW – Parenting – where the matter was set down for final hearing – where the court was unable to hear this matter – where the matter is adjourned to another Judge of this court – where interim orders are made – where there be orders for counselling for the child. 

FAMILY LAW – COSTS – review of decision – where the father was ordered by a senior judicial registrar to pay the mother’s costs in relation to interim proceedings in a fixed sum – finding that the senior judicial registrar did not have the power to make a costs order in circumstances where interim orders were made by consent without an interim hearing – review application allowed – costs of the interim hearing reserved. 

FAMILY LAW – Parenting – Interim hearing – Where parties settle all but one issue on interim basis – Remaining dispute over when overnight time to commence with the mother – Where father ceased time between children and mother for significant period – Where father alleges children at risk in mother’s care – Where mother acquiesced in supervised time in order to see children – No significant risk identified in untested child impact report – Overnight time to commence at earlier date – Psychological reports of parents ordered. 

FAMILY LAW – PROPERTY – Long marriage – Where there is dispute as to the value and nature of goodwill in the husband’s corporation – Where the single expert valuer opines that the goodwill component determined by him in the valuation of the corporation is enterprise goodwill – Where the husband asserts that inalienable personal goodwill exists and ought not to be part of the value of the company – Where this submission is accepted and the value of the goodwill ascribed by the single expert is deducted from the value – Where monies expended by the wife on legal fees and tax debt post separation are notionally added back to the pool for division – Where contributions throughout the relationship are found to be equal as agreed by the parties – Post-separation contributions favour the wife – Both parties assert that an adjustment should be made to the contribution findings pursuant to s79(4)(d)-(g) of the Family Law Act – Where adjustment made in favour of the husband owing to the disparity in income earning capacity.  

FAMILY LAW –PRACTICE & PROCEDURE – application by the wife for leave to reopen for purpose of adducing further evidence after the close of the final hearing – where closing submissions were agreed to be made in writing – where judgment on the substantive application was reserved – leave to reopen granted on a limited basis to adduce specific documents – leave granted to the husband to adduce confined evidence in rebuttal to alleviate possible procedural unfairness. 

FAMILY LAW – Parenting – section 65DAAA threshold hearing – where reasons were delivered orally a short time after the conclusion of the hearing – where mother alleges a change in circumstances from the final orders of September 2023 – where father asserts there is no significant change of circumstances – where it is alleged there is a serious breakdown in the co-parenting relationship between the parents – where the court is satisfied there is a change in circumstances and s 65DAAA satisfied – interim hearing – change of school enrolment – order for Child Impact Report – order for Independent Children’s Lawyer – different evidentiary tests for s 65DAAA compared to interim hearing.  

FAMILY LAW – CHILDREN – Interim hearing. 

FAMILY LAW – No appearance by the father – undefended hearing - deliberate failure by the father to comply with the Court's orders for drug testing and refrain from attending the children’s daycare centres and sending inappropriate communications to the mother and improper threats - the father continues to struggle with addiction to methamphetamine and marijuana – father convicted of driving under the influence of methamphetamine and breaching ADVOs protecting the mother and children– father continues to have no insight as to his own conduct – not safe for children to have a relationship with the father - risk to the children is sufficiently real and has a catastrophic consequence for the children unless arrangements as identified in these parenting orders were made.

FAMILY LAW – PARENTING – Change of residence – Illicit substance use – Family violence – Demonstrated ability to care for the child.

FAMILY LAW – PARENTING – LIVE WITH -RELOCATION – Where the mother seeks an order to relocate the two children from City B to Melbourne – Where the mother will not move to Melbourne unless she is permitted to relocate the children – Where the father opposes the relocation – Where the parents agree that if they live in the same city the children will live in an equal time week about arrangement with each parent – Where there are no safety issues in the household of either parent – Where the children have additional needs due to their diagnoses – Where the children have meaningful relationships with both parents – Where the mother’s capacity to financially support herself and the children will be enhanced if she is permitted to relocate to Melbourne – Where the mother’s mental health and sense of wellbeing will be enhanced by emotional and practical support from her family in Melbourne – Where the mother’s parenting capacity will be enriched by moving to Melbourne – Where father and his partner and child are able to relocate to Melbourne – Order made permitting relocation of children to Melbourne.

ALLOCATION OF RESPONSIBILITY FOR DECISION MAKING – Parents agree that they will share decision making for major long-term issues relating to the children except long-term medical issues – Where the mother seeks sole decision making for long-term medical issues relating to the children – Where the children’s long term medical needs will be met if the mother has sole responsibility for decision-making about long-term medical issues relating to the children – Where it is necessary to eliminate opportunities for parental conflict and avoid delay in obtaining appropriate medical assistance for the children – Order made that mother will have sole decision  making for all major long-term issues relating to the children.

FAMILY LAW – FINANCIAL – SPOUSAL SUPPORT – Mother seeks order for de facto spousal maintenance – Father opposes order – Where the Court is satisfied that the mother is currently unable to support herself adequately – Where the Court is satisfied that the father has the capacity to pay spouse maintenance – Order made for payment of periodic spouse maintenance for six months from the date of these Orders.

FAMILY LAW – COSTS – Between parties.

FAMILY LAW – Application in a proceeding seeking child to be included on airport watchlist – alleged fear of child being abducted to Country B – Country B is not a Hague convention country - potential abuse of system – independent children’s lawyer appointed - application dismissed. 

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of litigation guardian – Identity of litigation guardian. 
 

FAMILY LAW – COSTS – father wholly unsuccessful in his application for further interim parenting orders, made after the matter was listed for a compliance and readiness hearing – father wholly unsuccessful in his application to discharge the appointment of the single expert family report writer and for an updated report to be prepared by an alternate expert – applications for costs made and written submissions filed prior to the commencement of Part XIVC of the Act relating to costs, introduced by the Family Law Amendment Act 2024 (Cth), but determination not made until after the commencement of those changes – parties invited to make submissions in respect of legislative change – mother and independent children’s lawyer submit Part XIVC applies to determination of the costs applications but with no substantive impact on the determination – the father submits the provisions of the former section 117 continue to apply – Part XIVC applied but with no impact on determination – order for father to pay mother’s costs at scale – no order made in respect of the costs of the independent children’s lawyer, which were not quantified or the subject of submissions 
 

FAMILY LAW – Parenting - family violence – where father admits acts of family violence but says he has changed – whether father is an unacceptable risk to the children – HELD that father is an unacceptable risk to the children – orders that the children spend no time with the father 
 

FAMILY LAW – PARENTING – where there is no immediate prospect of the children’s time with the father progressing beyond supervised time - where time with the father would negatively impact the mother’s parenting capacity - where it is in the children’s best interest to live with the mother and spend no time with the father.  
 

FAMILY LAW – PARENTING – ex-tempore reasons – where the mother has not participated in proceedings – where the child will continue to live with the paternal grandmother and spend time with the father each weekend.  
 

FAMILY LAW – Review application – consent orders made – two remaining issues in dispute - whether the father should have FaceTime in the off weeks - whether or not the address of the mother should be disclosed – the Court is not satisfied it is in the best interests of the child to facetime the father in the off weeks or require the mother to disclose her address to the father.    
 

FAMILY LAW – Review of decision – review of orders made by a Senior Judicial Registrar for the mother to return the child to reside in the Sydney area – where the mother relocated with the child with the consent of the father for a period – where the father did not consent to the relocation on a permanent basis – review dismissed  
 

FAMILY LAW – CONTRAVENTION – Penalty. 
 

FAMILY LAW – PROPERTY – lengthy relationship with two children with special needs – husband inherited an interest in three real properties – wife’s post-separation parenting made more onerous by the husband’s behaviour – children live with wife and spend no overnights with the husband – wife reliant on government benefits and the National Disability Insurance Scheme – complete lack of disclosure by the husband – section 75(2) factors of the Family Law Act 1975 (Cth) favour the wife – payment to wife to be deferred pending termination of a life interest in one of the real properties. 
 

FAMILY LAW – Varying existing orders to confine the task of the expert valuer – identify the applicable multiplier to be applied to the EBITDA - accelerating the provision of relevant information to assist the parties try and achieve a consensual outcome – listed for final property hearing.
 

FAMILY LAW – Contravention application – respondent father convicted of counts 1 to 12 of the contravention application – stood over for sentencing. 
 

FAMILY LAW – Joint decision-making responsibility in respect of all major long term decisions – no ICL costs order. 
 

FAMILY LAW – PRACTICE AND PROCEDURE – adjournment application – lawyers’ professional responsibilities – concerns as to capacity of party – adjournment granted – consequential interim parenting orders
 

FAMILY LAW – Parenting – two subject children, aged 16 and 11 – where the children have been exposed to the parental conflict – where the father has had a relatively limited involvement in the children’s lives – where the disputed parenting orders are limited – best interests of the children.   FAMILY LAW – Property – net matrimonial assets worth a little over $4M – where each party seeks to retain 60% of the net non-superannuation property – where the wife seeks to retain 60% of the combined superannuation and the husband seeks that it be equalised – where the Court must weigh up each party’s contributions and their future needs – just and equitable outcome.  
 

FAMILY LAW – CHILDREN – Best interests of child. 

FAMILY LAW – PARENTING – where at commencement of trial the parties had agreed to do family therapy – where court declined to make orders until evidence tested - where the children live with the mother – where the children have had no face-to-face time with the father since July 2021 and no electronic time since September 2023 – where father convicted of two family violence offences including a strangulation offence perpetrated against the mother – where the father unsuccessfully appealed the criminal convictions - where the father had undertaken courses but continued to deny the offences – where the father was critical of the mother – where the position of the mother and the ICL changed after the evidence was tested - family therapy not ordered - no time order  
 

FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Application for leave to issue property settlement proceedings out of time pursuant to section 44(3) of the Family Law Act 1975 (Cth) – Marriage of seven years –Application filed two years and seven months out of time – Consideration of length of delay – Whether the applicant has established a prima facie case – Where hardship is established – Prospective costs considered – Where the Court declines to exercise its discretion to proceed out of time – Anticipated legal costs disproportionate to ultimate likely claim – Application dismissed. 
 

 FAMILY LAW – Notice of objection hearing – subpoena material confined to inspection by legal practitioners only – no further subpoenas to be issued without leave of the Court – notices of objection otherwise dismissed.   

FAMILY LAW – PRACTICE AND PROCEDURE – Application for Review – where orders made by Judicial Registrar staying financial proceedings pending the respondent wife’s compliance with requisite pre-action procedures – where the wife’s Genuine Steps Certificate is contrary to assertions made by her legal representative in court – where the wife has failed to file an Undertaking as to Disclosure as is required prior to First Return – where the wife provides no evidence as to compliance with pre-action procedures and did not seek an exemption – where this court expects compliance and practitioners must assist clients with this duty – where delegated judicial officer has proactively and appropriately case managed a matter in accordance with the overarching principles - Application for Review dismissed.  
 

FAMILY LAW – Parenting proceedings – proceeding subject to ban on cross-examination due to family violence – father has failed to secure funding for legal assistance and to file affidavit material for trial – application by mother for proceedings to be determined on undefended basis – father seeks to adjourn proceedings – high conflict – matters to be considered – child concerned almost thirteen years of age – family report writer advises child stressed by proceedings and seeks their end – best interests – application determined on undefended basis 
 

FAMILY LAW – PRACTICE AND PROCEDURE – Institution of proceedings – Leave to institute proceedings refused.  
 

 FAMILY LAW –Parenting-father mental health -not properly managed over seven and half years- lack of empathy for children/mother- lack of insight- continuing denigration of mother- high likelihood of undermining or destroying primary carers relationship - lack of parenting capacity- unacceptable risk – identity time only 
 

 FAMILY LAW – Urgent legislation needed to protect by caveat the property interests of spouses and de facto relationships in property proceedings and to extend part VIIIAA to de facto relationships - property pool was not able to be properly preserved – remaining proceeds of sale is $8,411 - s 128 certificate issued to the husband – possible clawback of funds through the joinder of new parties by the wife - stood over part heard to 15 August 2025.     
 

FAMILY LAW – Procedure – leave granted to the applicant to use documents filed in these proceedings for criminal proceedings. 
 

 FAMILY LAW – Subpoena objection on behalf of respondent – on grounds of oppression and a fishing expedition – further objection on grounds of legal professional privilege over documents produced by his solicitor relating to a discretionary trust – Subpoena not oppressive - whether documents produced subject to legal professional privilege – whether legal professional privilege has been waived – legal professional privilege was waived by conduct  
 

FAMILY LAW – PRACTICE AND PROCEDURE –application to adjourn application for costs 
 

FAMILY LAW – COSTS – applications for costs by Father and Independent Children’s Lawyer following determination of parenting and financial proceedings  
 

FAMILY LAW – PARENTING – CONTRAVENTION APPLICATION – Where the mother concedes that she contravened final parenting orders, resulting in the father spending no time with the child, because the child talked about holding a ‘secret’  – Whether the Mother has a reasonable excuse for contravening the Orders – Whether the breach was for long as necessary to protect the health and safety of the child
 

FAMILY LAW – Final hearing – parenting and property orders sought – where the applicant became unrepresented a short time prior to the final hearing – where the applicant was represented pursuant to the section 102NA Cross-Examination Scheme – where an adjournment application was sort by the parents – adjournment application granted – allegation of noncompliance with previous disclosure orders – where the applicant sought an interim hearing for the spend time arrangements with the child pending the adjourned final hearing – interim hearing denied

FAMILY LAW – Child-related proceedings – Final orders – Two children with special needs – Parental responsibility in issue – Where each parent found to be genuine in their pursuit of what is in the best interests of the children but still at loggerheads - To shield the children from exposure to conflict, it is necessary for there to be an order for the mother to have sole parental responsibility – Time arrangements in issue – Where minimisation of changes is touchstone for orders progressing time with the father – Where certainty of orders is preferable over the likelihood of disagreement between the parents about readiness to progress

FAMILY LAW – Parenting – Subpoena objections – Where mother seeks documents relating to father’s health – Where mother alleges family violence – Where mother alleges coercive control from father by misrepresenting terminal medical illness – Where father alleges he suffers from cardiac condition – Mother seeks documents and information from health services – Subpoena objections by health services for lack of forensic purpose, lack of relevance and ambiguity of drafting – Subpoenas found to be relevant – Forensic purpose demonstrated – Subpoenas sufficiently clear to be interpreted – Objections dismissed. 

FAMILY LAW – PROCEDURAL – Where the respondent mother and wife did not file any trial material and did not appear at final hearing – Where proceedings continued in her absence but not on an undefended basis.  FAMILY LAW - PARENTING – Parental responsibility and living arrangements in issue for 12 and 14 year old boys – Turbulent period post-separation including child absconding, school refusing, sleeping rough, antisocial behaviour involving police, being taken into protective custody for being intoxicated, fighting and hospitalisation and refusal of support services – Where behaviour improved markedly in the care of the father.  FAMILY LAW - PROPERTY – Division of property to provide for unequal post separation contributions and provision for commitments necessary to enable the father’s support of the children – Where husband appointed trustee for sale of investment properties and mechanism for capital gains tax liabilities to be taken into account. 

FAMILY LAW – PARENTING – Final Orders – One child 14 years of age – Where mother presents as unacceptable risk of serious psychological harm to the child – Where there are cogent reasons to justify indefinite supervision 

FAMILY LAW – PARENTING – application for costs arising out of final hearing – application dismissed
 

FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to list matter on urgent basis – application dismissed 

FAMILY LAW – PARENTING – Final Orders – One child 10 years old – Where the mother has relocated three hours away – Where both parties have significant and unaddressed mental health vulnerabilities – Where child at risk of harm in care of either parent but benefits from her relationship with both parents – Child to remain living with the father and spend regular time with the mother – ICL to remain appointed for 12 months with liberty to apply to ensure the child’s diagnostic assessment and treatment and to mitigate against either parent’s non-compliance. 

 FAMILY LAW – PRACTICE AND PROCEDURE – Substantive review – where a declaration is made that the husband owes the wife $22,200 pursuant to final orders – where the husband by way of Review Application seeks that such declaration be discharged – where the wife seeks the Review Application be dismissed, but does not seek orders for enforcement – where the Review Application appears to have arisen on a misunderstanding as to the effect of the declaration – where a declaration as to a sum of money due and payable is not an order as to enforcement – where submission of husband not to exercise discretion is wholly misconceived - where the husband is represented by a litigation guardian – Review Application dismissed.