Judgments

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.  

FAMILY LAW – PROPERTY – Where the court made orders by consent – Where the wife commenced child-related proceedings the husband joined property proceedings by seeking to have the consent orders set aside.  FAMILY LAW – PRACTICE & PROCEDURE – Where the husband subsequently became and remains a bankrupt – Where the wife argued that the husband does not have a sufficient interest in the outcome to afford him standing – Where the husband found to have standing due to his interest in regulated superannuation funds – Sloane followed – Where the husband’s application under s 79A is summarily dismissed on the finding that the husband has no reasonable prospect of successfully prosecuting the proceedings.

FAMILY LAW – APPLICATION FOR REVIEW – review of orders for enforcement of final orders – wife required leave to proceed out of time with her application – leave not granted – application for review dismissed – order for costs made – payable from proceeds of sale. 

FAMILY LAW – Procedural – second respondent removed as party to proceedings – s 102NA order made. 

FAMILY LAW – Parenting – Application to stay parenting orders – Where applicant mother seeks to limit spend time with father and require professional supervision – Where respondent father concedes partial stay of parenting orders pending the mother’s appeal – Mother’s application to adjourn hearing of the stay application for a second time dismissed – Consideration of the First XI of principles determining a stay application – Where mother has not complied with final orders – Where children have not spent time with father since just after the final hearing – Paternal grandparents appropriate supervisors – Partial stay granted in terms of orders sought by the father – Stay assumes appellant prosecutes appeal with proper expedition. 

FAMILY LAW – Child-related proceedings – Where previous final orders made – Where parents unable to agree on education issues – Where both parents agree joint decision making is not working – Parallel parenting arrangements.

FAMILY LAW – PROPERTY – Final orders – Where both parties sought to retain the land and farming enterprise and to pay out the other – Where both parties have genuine and meritorious cases 

FAMILY LAW – PROPERTY – Where final orders have not been complied with causing financial loss to the non-defaulting party – Orders made under s 80 of the Family Law Act 1975 to enable the implementation and enforcement of property settlement orders

COSTS – Where the applicant is entitled to a costs order – Indemnity costs sought but insufficient evidence to establish what the wife’s legal obligation as to costs is and the reasonableness of the amount sought on an indemnity basis.

FAMILY LAW – PROPERTY – Application for interlocutory injunction to freeze funds refused. 

FAMILY LAW – parenting – unjustified allegations of medical neglect – allegations maintained despite no evidence – lack of insight into children’s emotional needs – risk of emotional and psychological harm – greater the time the greater the risk – balancing of competing considerations – overseas travel – equal shared parent responsibility  

FAMILY LAW – Parenting – application for adjournment – family report writer unavailable for cross examination – notice to the family report writer was not sufficiently given – not in the best interest of the child to adjourn the matter – application dismissed.  

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

FAMILY LAW – Parenting – final orders – child live with mother – mother have sole decision making relating to health and education – father spend each alternate Saturday with child – further time between father and child including overnight time as agreed between parties – where the father changes his position during proceedings – father to enrol in a parenting program 

FAMILY LAW – PROCEDURE- dispensing with the need to comply with the Notice to Produce under r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

FAMILY LAW – PROPERTY – Interim hearing – partial property settlement – spousal maintenance – sale of property – orders made, inter alia, for partial property settlement and spousal maintenance.

FAMILY LAW –  recovery order arising from after hours service – subsequent attempt to comply with order for return of child made before recovery order – subsequent order that recovery order “lie in the registry” – subsequent advise child returned – recovery order vacated

FAMILY LAW – PARENTING – Where the subject child is 7 years of age – Where the child has spent supervised time with the father for a period of two years – Where both parties have unilaterally taken the child overseas post separation - Where there are significant allegations of family violence perpetrated against the mother and the child by the father –Where the mother seeks orders that the child spend no time with the father - Where the father alleges that the mother’s partner has sexually abused the child – Where despite the father’s allegations of sexual abuse perpetrated by the mother’s new partner he seeks that the child live with the parties on an equal shared care arrangement – Where the Father alleges the mother has fabricated allegations to alienate the child from him - Where the father relies on the mother allowing unsupervised time between him and the child post separation as the basis of the orders sought by him – Findings made that the father perpetrated family violence including coercive and controlling behaviours upon the mother and the child – Finding made that the father cannot positively support a relationship between the child and the mother – Finding that the parties’ parenting relationship is reflective of a dynamic arising from the father’s controlling family violence - Finding that the family violence perpetrated by the father is a contradiction to an order for equal shared parental responsibility - Finding that the culmination of risks posed by the father cannot be sufficiently ameliorated by supervision or otherwise – Orders made that the child spend no time with the father.  

FAMILY LAW – CONTRAVENTION – Costs – Parenting – Where it was alleged the father contravened by overholding the child following periods of time spending – Where the father admitted the breaches at the commencement of Trial but maintained he had a reasonable excuse – Where after giving evidence at Trial, the father plead guilty to each count without reasonable excuse – Father to enter into a Bond – Orders for costs. 

FAMILY LAW – Harman and/or implied obligation – are special circumstances required the documents in another court – whether special circumstances in this application – very late application – whether costs should be ordered – special circumstances found – applicant released from implied obligation

FAMILY LAW – PARENTING – interim application after matter not reached – stood over till final hearing date

FAMILY LAW – Parenting – two male children aged 11 and 9 – second round of parenting proceedings – where the parties consented to final orders in December 2018 – where the parties had difficulty implementing the final orders – where the parties’ communication was unproductive – where the two boys where being dragged into the conflict by both parents – where the relationship between the father and the children began to break down in part due to disclosures of physical abuse in the father’s care by the children – where the children became resistant to spending time and communicating with the father – where the children are now estranged from the father and fearful of him – where the Court considers there would be an emotional or psychological risk to the children if they were required to spend time with the father – best interests of the children.