Judgments

FAMILY LAW – Property – both parties seeking orders for adjustment of financial interests – de facto husband’s phoenix operation post-separation of previously jointly operated business – disputed identification of assets and liabilities – contest about add backs for parental loans, post-separation inheritance largely dispersed, reduction of business account balance – limited positive findings about add backs – allegations of incomplete or non-disclosure by de facto husband – dispute about adjustments for future needs – adjustments made for future needs and egregious conduct including non-disclosure pursuant to section 90SF(3)(r)

FAMILY LAW – PROPERTY – proposed consent orders did not reflect a just and equitable alteration of property interests – s 114 injunction – preservation of the property pool - procedural orders

FAMILY LAW – Application to review decision of Senior Judicial Registrar (‘SJR’) – application dismissed – application for costs made and dismissed.

FAMILY LAW – COSTS – Application to review orders made by a Registrar – where application to review by the husband was not successful – application by the wife for indemnity costs – application for indemnity costs refused but order for costs on the scale made.

FAMILY LAW – PARENTING – Interim hearing – Best interests of child.

FAMILY LAW – COSTS – Interlocutory application wholly unsuccessful

FAMILY LAW – INTERIM PROPERTY – Sale of property – payment of mortgage – spousal maintenance – applications dismissed.  FAMILY LAW – INTERIM PARENTING – Best interests of children – orders made.

FAMILY LAW – Child Support – Child Support Registrar unable to retrospectively consider assessment past 18 months ago – whether leave should be given to the Registrar to consider further than 18 months- balance of prejudice – explanation for delay – prima facie case – leave granted

FAMILY LAW - Costs.

FAMILY LAW – PROPERTY – Application for property adjustment – 14 year relationship with the parties living separately under the same roof for a further 4 years post separation - Where the husband’s assertion that an inheritance received by him post separation should be excluded from the property pool available for adjustment between the parties is rejected -  Where the wife's credibility was impacted due to frequent exaggeration in both her written and oral evidence - Where a disproportionate amount of hearing time encompassed issues of homemaker and parenting contributions - Where the wife was the primary income earner and the husband was the primary carer of the children - Where both parties seek a Kennon adjustment – Where a finding made that the husband’s contributions were made discernibly more onerous by the conduct of the wife - Where the wife made greater parenting contributions upon the husband vacating the former matrimonial home in circumstances where she cares for the children twelve nights a fortnight and the husband does not pay child support-  Where the parties’ superannuation entitlements are dealt with in a separate pool of property – Finding of equal contributions to the superannuation property pool and 54% in the husband’s favour to the non-superannuation property pool - no adjustment made to the contribution findings.

FAMILY LAW – PARENTING – Best interests of children.

FAMILY LAW - CHILDREN – Previous orders made – Third application – Child 11 years at trial – Child withheld then compliance with order – Parents not lived together since child’s birth – Co-parenting relationship – Support for other parent’s relationship – Lack of support in the past – Lack of support affecting school attendance – Risk of repetition – Sibling relationships – Risk of future disruption of parental relationship

FAMILY LAW – PARENTING – Where maternal grandparents have cared for the children for over 2 years – Where mother has history of alcohol abuse – Where mother recently lived transient lifestyle – Where mother has no clear plans for the care of the children – Where children at risk whilst in mother’s care

FAMILY LAW – Costs – enforcement application – where some but not all orders made – costs power engaged – whether circumstances justify indemnity costs – whether conduct occurring after the enforcement application relevant to costs assessment – where costs are compensatory and not punitive – fixed costs order made

FAMILY LAW – Application for review – review of judicial registrar’s orders making parenting orders by consent on a final basis – father seeks orders be set aside and made as interim orders only – whether there was agreement that the orders be final – not satisfied that there was agreement to orders being final ones – orders discharged and orders made in terms of proposed interim orders by consent signed by the father and agreed by mother’s representative

FAMILY LAW – Interim defended hearing – both parents prohibited from consuming alcohol while children in his or her care – children live with mother – gradual increase of time for the father with the children – consideration for meaningful relationship for the children with both parents – further hair follicle test ordered for next year

FAMILY LAW – PARENTING – Undefended hearing as against the applicant father – Repeated failure to comply with Court orders – Circumstances where father has an injury – Views of the child given significant weight due to age and maturity – Circumstances where the father has spent supervised time with the child for prolonged period

FAMILY LAW – PARENTING – Circumstances where mother was overseas for prolonged period and had little contact with child – Significant change of circumstance – History of non-compliance with Court Orders by the mother – History of unilateral decision-making by the mother – Change of residence – Child’s best interests

FAMILY LAW – PARENTING – where 16 and 11 year old children have consistently failed to spend overnight time with their father – whether orders should be made increasing that time to week about time contrary to their views – where the father has perpetrated extensive family violence, including assaulting the children

FAMILY LAW – PROPERTY – where both parties seek to retain the former matrimonial home – where neither party sought a superannuation split despite the significant disparity between the value of their respective superannuation interests

FAMILY LAW – PARENTING – Child has spent no time with father for six years – Lack of insight on the part of the father – Whether there is any benefit to child having a relationship with the father

FAMILY LAW – final hearing – Aboriginal child in care of non-Aboriginal putative paternal grandparents – risks arising in relation to each of the mother and the putative father – where putative father lives with putative paternal grandparents – where child has experienced significant change in her living arrangements to date-orders for parenting arrangements.

FAMILY LAW – Application to review decision of Registrar – effect of notice of discontinuance –where Applicant filed notice of discontinuance – where no response filed – where Registrar ordered matter be set down for ‘undefended hearing’ after notice of discontinuance filed at urging of Independent Children’s Lawyer (‘ICL’) – where Court is no longer seized of the matter – where ICL has no standing to maintain the proceeding – Registrar orders of no effect – application for review upheld and proceeding discontinued.

FAMILY LAW – COSTS – where the applicant wife was wholly unsuccessful in bringing an application for property division pursuant to s90SM – the wife’s application lacked any merit – wife’s refusal to accept reasonable offers – where indemnity costs were considered – where costs pursuant to the scale are inadequate – special costs payable 

FAMILY LAW – Parenting – where final orders were made in February 2024 – where the father was given sole parental responsibility – where the children were to live with the father – where the orders did not allow for the children to spend time with the mother unless otherwise agreed between the parties – where child protection were notified of risk to the children in the fathers care the same day as the final orders and reasons were handed down to the parties – where the court makes no finding on that notification to the department – where the department appeared amicus curae – where the department intervened – where there are orders made in City B children’s court – where the department did not have access to the reasons of the proceedings in this court – where the department did not give consent for orders in this court be made under section 69ZK – children court proceedings in October – parties are directed to advise chambers of future children court proceedings – fixed for a further hearing on a date to be advised.

FAMILY LAW – Property – Where the parties have property in the United Kingdom and Australia – Where the Respondent wife raised an issue of forum non conveniens – Where part of the property pool is situated in company assets – Where the Applicant husband received substantial post-separation inheritance – Where inheritance is treated as a separate pool – Where the Court makes an equal contributions finding as to the non-inheritance pool – Where s 75(2) adjustment made in favour of the wife

FAMILY LAW – Interim hearing – issue of interstate relocation – where the mother now resides in Town B with the children – where the father resides in Queensland – where the father alleges the mother unilaterally relocated with the children – where the mother alleges the father was aware her intention to move – where the mother moved to Town B for a better job opportunity – where there is a real issue of the mother promoting the relationship of the father to the children – where the mother previously made monetary requests of father to see the children – where the mother changes her position during the hearing – where time with the father is to re-commence – where the children are to live with the mother in Town B until the final hearing – where a family dispute resolution conference is ordered – trial directions made.

FAMILY LAW – PARENTING – Short form reasons – Urgent oral interim application for parenting orders – Immediate change of residence – Whether there is an unacceptable risk to the child

FAMILY LAW – Parenting – application for stay of final orders pending an appeal – immediate risk to child of physical and psychological harm outweighs long term risks identified at final hearing – stay application granted.

FAMILY LAW – REVIEW – PROCEDURAL – Whether the listing date should be moved forward and the time for the Respondent to file their material be shortened – Whether the decision is reviewable – Whether the matter is urgent such that it would justify the matter being given precedence over other matters before the court – Whether there is evidence of an alternative judicial officer to deal with the matter if it is brought forward.

FAMILY LAW – REVIEW – PROCEDURAL – Father seeking an urgent hearing date and that the listing on 30 October 2024 be brought forward – no alternative available date before a judicial officer detailed – Whether the matter is reviewable and, if so, has sufficient urgency to warrant it taking precedence over other matters before the court.

FAMILY LAW – Opposed divorce application – whether there is an extant marriage – recognition of overseas divorce in Australia – where the parties were married in Country B – where the parties migrated to Australia – where the parties have resided in Australia until 2023 – where the respondent returned to Country B in 2023 to visit family and while there retained lawyer for a divorce application – where the respondent filed for divorce in Country B – residence or domicile or last place of cohabitation qualifications of section 104(3) not satisfied – whether common law rules of private international law of recognition of overseas divorce satisfied – whether applicant for Australian divorce “appeared” in overseas divorce proceedings – where the fact of overseas law required to be proved by admissible evidence – matter requiring expert evidence – where there was no admissible evidence – where not in the interests of justice for court to call expert evidence – apparent anomaly of overseas divorce does not activate section 44(3) time period-section 55A declaration where children not seeing one parent –  where none of section 104(3) or common law recognition of overseas divorce conditions satisfied – divorce order made

FAMILY LAW – CHILDREN – Interim parenting orders sought – Department for Child Protection and South Australia Police reports made by the mother – mother has made historical allegations of sexual abuse against father – allegations of father hurting the child physically – ongoing investigations by South Australia Police – Independent Children’s Lawyer appointed - ex tempore reasons delivered – orders made

FAMILY LAW – Enforcement application - $80,000 from settlement held in trust – one party, without agreement, undertook work on the former matrimonial home – interpretation of orders – whether unilaterally chosen work with “selling conditions” – whether unilaterally chosen work within “jointly” market – whether oral application pursuant to section 90SN(1)(a) & (c) to set aside orders sought to be enforced should be accepted – oral application accepted – no miscarriage of justice – section 90SN application dismissed – order to give effect to final orders made – costs ordered

FAMILY LAW – REVIEW – Whether interim orders made by a Senior Judicial Registrar should be varied by changing the living arrangements of the children – Whether it is in the bests interests of the children to live with the Father and/or spend significant time with him – Whether either party poses an unacceptable risk to the children.

FAMILY LAW – PROPERTY – De facto relationship – non-compliance with trial directions – complete non-disclosure by respondent – failure to file or challenge evidence.

FAMILY LAW – PARENTING – Undefended hearing as against the father – Where the paternal grandfather and paternal uncle make the same application for time with the child – Findings of family violence – Mother’s evidence mostly uncontradicted – Father incarcerated at the time of hearing – Father pled guilty and convicted of a serious criminal offence relating to a member of the mother’s family –Where the father has not spent time with the child since his incarceration – Child to spend no time with the father or the paternal family – Where order for the mother to have sole decision-making for long-term issues is in the best interests of the child

FAMILY LAW – Interim defended hearing – where the child lives with the mother – where no long term parental decision making orders were made – appointment of an independent children’s lawyer – where the father seeks an increase of time – where the mother raises concerns of the father’s living arrangements – where the mother raises concerns of the father’s mental health – where the mother believes there is a risk of harm to the child in the father’s care – where the court found no proper basis of risk –  where the mother seeks the father to enrol in a men’s behavioural change program – where the father’s time increases to 6 hours each alternate Saturday – where the court placed no restrictions of where the child can attend with the father – where the father has begun attending upon a psychologist prior to the hearing – where the court did not order the father to enrol in a men’s behaviour change program

FAMILY LAW- Final hearing- determination of parenting arrangements- where father not engaged in final hearing- where risk of exposure to drugs and alcohol to the children- where consideration of best interests of the children- consideration of benefit of time with father.

FAMILY LAW – Parenting – Urgent application for international recovery order – Where mother has taken child overseas without notice to father – Where mother appears to have no intention to return to the Commonwealth of Australia any time soon – Decision to proceed in absence of mother – Decision to proceed ex parte – Recovery order made – Where recovery order pressed in form of a request, not as a demand or in any way interfering or usurping the courts and authorities of overseas jurisdiction.

FAMILY LAW – Property proceedings – long marriage – asset pool in dispute – litigation guardian – 11 years since separation – substantial post-separation contributions – section 75(2) factors – NDIS funding meeting needs – whether proposed division is just and equitable.

FAMILY LAW – COURTS AND JUDGES – Disqualification. FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal.

FAMILY LAW – PARENTING – Both parents with limited capacity to act in best interests of children – Findings of family violence – Weight given to views of Children – Leaving door open for children to have relationship with the other parent

FAMILY LAW – contravention application – multiple allegations of contravention of orders – allegations predate the last contested final hearing – unnecessary to determine whether application an abuse of process – allegations not made out on balance of probabilities – some allegations de minimis – contravention application dismissed

FAMILY LAW – PROPERTY – Final hearing – De facto relationship of some 30 years – Out of time issue – De facto husband seeks leave to proceed out of time and a property settlement of 55% in his favour – De facto wife opposes the out of time application – De facto wife argues that it is not just and equitable to alter the parties’ interests – Stanford sought to be applied – Assets and liabilities at trial in the individual names of the parties – Where the Court declares a de facto relationship existed between 1991 and 2021 – Just and equitable for there to be an adjustment of the parties’ interests – Orders made for the sale of real property – Division of property 45/55% in favour of the de facto wife – Justice and equity.

FAMILY LAW – Property – part-heard – drawdown - injunction – administration of justice

FAMILY LAW – PARENTING – Application for review – unilateral removal from school and enrolment at new school – common intention of parties – views of the child – acrimonious co-parenting relationship – best interests of the child – application for review dismissed

FAMILY LAW – De facto property proceedings – one child of the parties – dispute over commencement and conclusion of relationship – short relationship – contributions significantly favour the de facto husband – no likely future needs adjustment – leave out of time – hardship – whether there is a significant likelihood of success – inadequate reasons for delay – prejudice to the respondent due to the significant passage of time – costs of property proceedings likely to outweigh the de facto wife’s entitlement – application dismissed.

FAMILY LAW – Parenting – Urgent interim hearing – Whether a recovery order can be made for child governed by a very old children’s court order – Longstanding arrangement – Conflict between teenager and ‘live with’ parent – Child not attending school – Child now living with previous ‘spend time’ parent – Child to live with long term ‘live with’ parent – Matter adjourned pending advice from NSW Child Protection.

FAMILY LAW – Procedural - threshold issues - hearing vacated – fixed for final property hearing – costs reserved

FAMILY LAW – Parenting – Application for recovery order – Child under a NSW Children’s Court order – Child welfare officer of State of NSW consent in writing to orders – Where orders were made for return of child by father several days prior – Child not returned pursuant to earlier orders – Recovery order made.