Judgments

FAMILY LAW – Property – Enforcement application – Where wife seeks to enforce consent order providing her sole use and occupation of former matrimonial home – Where existing intervention order pursuant to state law prohibits husband from attending former matrimonial home – No jurisdiction for this court to make consent order in circumstances where matter had already been agitated pursuant to prescribed state law – Application dismissed – Where wife seeks to join husband’s parents to cause them to vacate former matrimonial home – Application for joinder on discrete issue of enforcement application dismissed. 

FAMILY LAW – PARENTING – Best interests of children – orders made. 

FAMILY LAW – DIVORCE – husband’s application for divorce in relation to an overseas marriage – respondent wife opposes application for divorce asserting the marriage the subject of the husband’s amended application was to a person other than her – court satisfied the respondent wife was a party to the marriage the subject of the amended divorce application – application for divorce granted – court satisfied proper arrangements have been made for the care, welfare and development of the child of the marriage – divorce order made, to take effect after the expiration of a period of one month.

FAMILY LAW – PARENTING – where the mother who had a psychiatric disorder passed away shortly after giving birth to twins – children initially placed with the Department who organise for children to live temporarily with the maternal grandparents and then supported the twins being placed with father – maternal grandparents seek orders for twins to live with them – grandparents subsequently agree to Consent Orders for twins to live with the father who is of aboriginal descent and for father to relocate in to the future with the children – when the father relocates the grandparents refuse to return children to his care and commence a second round of family law litigation – grandparents re-agitate issues of father’s mental health and allegations he lived in a household where he was subjected to family violence – where maternal grandparents now blame the father for the suicide death of the mother – family violence has occurred in both households – children of mixed racial heritage – maternal grandparents dispute Aboriginal father’s cultural knowledge – considerations of the children’s right to enjoy their culture with others within that culture

FAMILY LAW – PARENTING – unacceptable risk – mutual allegations of family violence – illicit drug abuse – mental health concerns – history of non-compliance with court orders – limited parental insight – conditions to be attached to progression from supervised to unsupervised time.

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 – PROPERTY – lengthy marriage – two children – small asset pool – loan from husband’s parents in dispute – husband’s parents joined as third parties – loan agreement signed by all parties early in marriage – third parties to be repaid funds owed – various contributions deemed to be equal over time – section 75(2) factors favour the wife including care of children and earning capacity – orders for 65 per cent of all assets to be divided in favour of the wife. 

FAMILY LAW – DE-FACTO RELATIONSHIP – INTERIM MAINTENANCE – Whether applicant can adequately support herself – Capacity to meet an order for maintenance 

FAMILY LAW – PARENTING – Review of consent order made in exercise of delegated judicial power – overarching purpose – costs  

FAMILY LAW – PROPERTY – Just and equitable orders made.  

FAMILY LAW – EXTENSION OF TIME – Where an application for a property order is filed four years out of time – Whether the Court should grant leave to institute proceedings – Whether the Applicant will suffer from hardship if leave is not granted – The impact of the legal costs to be paid by the parties on the question of hardship – Whether there is a reasonable explanation for delay – Whether the Respondent will be prejudiced if leave allowed 

FAMILY LAW – Parenting – Defended Final Hearing - Dispute as to arrangements for one child who is four years old – Where there are allegations of family violence – Where the parents live on the border in two different states – Where there is a dispute about which state the child will attend school – Where the court not satisfied that the father perpetrated coercive and controlling family violence – Order made for joint decision-making for major long term issues – Order made for child to live with the mother progressing to week about 

FAMILY LAW – PRACTICE AND PROCEDURE – application for leave to file a notice of ceasing to act made the day before the commencement of the trial – applicant lawyer not physically present at the hearing – whether there are special circumstances that render it expedient to retain the lawyer on record – whether the trial can fairly proceed by AVL representation – application granted and procedural orders made n

FAMILY LAW – Parenting – Recusal application by the Father  – Where proceedings are part-heard – Where the Mother and Father have both been cross-examined in the first tranche of the proceedings – Where the trial was adjourned part-heard to enable a psychiatric assessment and new family report – Where the Father delayed bringing recusal application by more than 3 months – Where Father claims excessive judicial intervention and lack of procedural fairness – 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.