Judgments

FAMILY LAW – PRACTICE AND PROCEDURE – Slip Rule – Where applicant brings an application to amend final orders pursuant to the Slip Rule – Orders made amending final orders pursuant to the Slip Rule.

FAMILY LAW – PROPERTY – Application by the wife for the husband’s motor vehicle and associated keys to be placed in her care – Where no evidence has been provided to suggest that the husband is not currently in possession of the motor vehicle – Where there are orders preventing the husband from dissipating the marital pool – Husband to deliver the motor vehicle and associated keys to the wife’s solicitors.

FAMILY LAW – COSTS – PARENTING – Where the mother seeks costs following final consent orders made in relation to parenting proceedings – Consideration of relevant principles under s 117 of the Family Law Act 1975 (Cth) – Where the father should have resolved the parenting proceedings at the dispute resolution conference prior to the trial, because he knew his alcohol consumption had escalated and he was armed with the results of his hair follicle test – Circumstances warranting departure from the usual principle that each party bear his or her own costs – Order that the father pay the mothers costs fixed at $3,300 – Payment to be made in instalments.

FAMILY LAW – PRACTICE AND PROCEDURE – where party is subject to vexatious proceeding order in one relationship applies for leave to institute proceedings in another relationship – leave granted.

FAMILY LAW – ORDERS – Application to vary/set aside final property settlement consent order pursuant to s 79A(1)(c) Family Law Act 1975 (Cth) – Threshold determination of whether there has been a default in carrying out an obligation of the final order – Where numerous breaches of the obligations of the final order are pleaded – Where the Court is satisfied that there has been default in carrying out an obligation of the final order.

FAMILY LAW – COSTS – Applications by the husband and other respondents for costs against a barrister and firm of solicitors who previously acted for the wife, or alternatively, against the applicant wife – Whether there has been exceptional circumstances to justify an order for costs on an indemnity basis – Where it is found that the barrister and firm of solicitors engaged in improper and unreasonable conduct – Where the conduct caused significant costs to be incurred unnecessarily and a waste of Court resources – An order for costs to be paid jointly and severally made against the former barrister and solicitor for the applicant wife – Legal practitioners referred to the relevant state Legal Services Commissioners.

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING – EQUITABLE RELIEF – ACCRUED JURISDICTION – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the intervener seeks that the Federal Circuit and Family Court of Australia (Division 1) exercise its accrued jurisdiction to determine his claim in the s 79 proceeding – Where the husband made significant direct financial contributions at the commencement of cohabitation, including by way of an interest in a prosperous trading enterprise – Where the intervener claims a 30 per cent interest in that enterprise as recorded in two written agreements made between he and the husband, one of which was entered years before the marriage – Where the husband concedes the claim of the intervener – Where the wife contends that the two written agreements made between the husband and the intervener purporting to allocate 30 per cent of the husband’s interest to the intervener were “fabricated and not genuine” – Claim of the intervener established – Where the nature of the relationship between the husband and the wife was to some extent commercial and characterised by arm’s length dealings, including the clear maintenance of separate financial identities – Where the wife has attempted to machine aspects of her case, including evidence, to obtain a forensic advantage – Where homemaking contributions do not loom large – Where the wife has failed to adhere to her disclosure obligations – Where the wife will have the first opportunity to retain a real property in specie – Orders made adjusting the property of the husband and the wife 83.5 per cent to the husband and 16.5 per cent to the wife.

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the paternal grandparents review interim parenting orders made by a Senior Judicial Registrar (“the registrar”), which provide for the children to spend supervised time with them – Where the paternal grandparents seek orders for the children to live with them and spend supervised time with the mother – Where the paternal grandparents assert the mother poses a risk of physical and psychological harm to the children – Where the mother has passed the psychological assessments given by the single expert – Where the younger child made allegations of his sexual abuse by the paternal grandfather – Where the allegations were not substantiated by the authorities but the risk of harm is not eradicated – Where the trial is the time and place to settle factual controversies – Where the father lives overseas and is not a residential option for the children – Orders made to vary the length of supervised time the children spend with the paternal grandparents.

FAMILY LAW – PARENTING – Application for final parenting orders – Where the children have been living with the mother since the parties’ separation in 2019 – Where the children have spent supervised time with the father since June 2023 – Where the Secretary of the NSW Department of Communities and Justice intervened in the proceedings – Where both parents suffer from conditions which compromise their parenting capacity – Where the Secretary proposed the Minister having parental responsibility for the children for a period of 12 months and they live with the father – Where the Independent Children’s Lawyer railed against the children living with either parent – Where the father has remained abstinent from alcohol for the past 18 months – Where after years of intensive involvement by the child welfare agency with the mother, the agency has no faith in her parenting capacity – Where the physical, developmental, medical and educational needs of the children are likely to be better met if they live with the father – Ordered the father have parental responsibility for decisions about the children’s residence and they live with him – Ordered the Minister have parental responsibility in respect of all other major long-term issues affecting the children for 12 months – Ordered the children spend substantial and significant time with the mother.

FAMILY LAW – INJUNCTIONS – Exclusion from matrimonial home – Where the wife seeks the sole use and occupation of the matrimonial home – Where the husband opposes the wife’s application and submits that the parties can co-exist under one roof – Consideration of the circumstances of the parties and whether an exclusive occupation order is necessary – Order for the exclusive use and occupation of the home made.

FAMILY LAW – PARENTING – time with the Father – whether the Father should have regular unsupervised time with the child and if so the nature of such time – whether the Father’s drug use places the child at an unacceptable risk of harm – whether Mother’s capacity to parent is discernibly impacted if the child spends regular unsupervised time with the Father – whether the Father should be involved in the decision making regarding major long-term issues – whether the child’s name should be changed to the Mother’s surname or become a hyphenated version of the Mother and Fathers surnames’ – whether the Father should be restrained from filing further proceedings – whether there should be a ‘guillotine order’ to operate if the Father misses visits. 

FAMILY LAW – PARENTING – family violence – unacceptable risk of harm to children if they spend time with the father – significant non-compliance with court orders – father unwilling or unable to comply with court orders – power imbalance – no insight into parental behaviour – father had no evidence before the court – ongoing risk – risk not ameliorated by supervised time or orders for counselling or courses – children to have no time or communication with the father – sole parental responsibility to the mother – mother permitted to obtain passports for the children and to take them out of Australia without the consent of the father. 

FAMILY LAW – Parenting – Matter listed as interim hearing – Decision to proceed in absence of mother – Where mother has recently disclosed problematic drug use – Where mother has told parties she does not intend to be involved in proceedings – Decision to proceed undefended on final orders – Where father and second respondent paternal grandparents seek orders for live with and spend time arrangements to be determined by agreement – Where previous orders have not been followed but parties have made arrangements by agreement – Final orders made. 

FAMILY LAW – PARENTING – where interim consent orders are in place – application by the father to increase the time the child spends with him – insufficient change of circumstances to justify reconsideration of the consent orders in respect of time spent arrangements – where the parties are in dispute about the child’s enrolment in early learning – where the parties are in dispute about whether the child should travel interstate to visit the paternal grandmother – interim orders made for the child to be enrolled in early learning education – interim orders made permitting the child to travel interstate to spend time with the paternal grandmother  FAMILY LAW – PROPERTY – application by the wife to commence proceedings for spousal maintenance and an alteration of property interests outside of the statutory time period – application for a litigation funding order – exercise of the discretion to not grant leave – application for leave and associated orders dismissed 

 FAMILY LAW – Interim hearing – parenting arrangements – father seeks to move children overseas to where he works – where the children live with the mother and spend time with the father on an almost equal shared care arrangement when the father is in the country – where the father travel overseas regularly for work – where there are allegations of alcohol abuse – where there are allegations of manipulation – where on the this interim hearing there should be no change to the existing spend time arrangement – where there be orders for school holiday time – short time until final hearing – no substantial change to existing interim orders.  

FAMILY LAW – Parenting – Discharge of section 102NA order – Where section 102NA made under discretionary limb of section 102NA tree – Where party unable to retain legal representation under section 102NA – Where parties consent to discharge of section 102NA order. FAMILY LAW – Parenting – Contravention – Interpretation of Division 13A – Whether the Commonwealth Criminal Code applicable – Interpretation of “offence” – “Offence” found to be intentionally distinguished by Parliament from Division 13A contraventions in the Act – Interpretation of “aids and abets” – Literal interpretation – Adoption of common law interpretation.  

FAMILY LAW – Parenting – Interim defended hearing turned undefended final hearing – Where applicant mother put to extensive cost and effort to serve respondent father – Where respondent father on notice of proceedings – Where father has taken head-in-the-sand approach to proceedings – Mother’s orders sought in best interests of child – Final orders made as sought by mother – Costs order against father.  

FAMILY LAW – Property – Continuing property trial – Expert evidence – Where husband seeks to rely on affidavit of adversarial witness regarding valuation of property – Orders for single expert valuation of properties did not provide unless all properties valued, none are to be – Where affidavit not in proper form of expert witness valuation – Where both husband and wife allege insufficient disclosure of the other’s property interests – Where wife made no objection to reliance upon adversarial witness report until just before trial – Benefit to administration of justice of single expert valuer rules – Held in the interests of justice to permit husband to rely on report. 

FAMILY LAW - PARENTING – where there are allegations of significant risk of harm to the child in the father’s care – where the mother seeks supervised time continue indefinitely on account of such risk – where the father seeks unsupervised day time on alternate Sundays and one afternoon per week – where the father has a connection to child sexual abuse material – where the mother submits that the father presents a risk of harm with respect to his cyclical alcohol dependency – where the father’s consistent lack of insight is compounded by his propensity to fabricate events and information – where the father’s capacity to take accountability for his actions is wholly deficient – where the father’s written and oral evidence is uncompelling – where it is uncontested the child idealises the father – where the risks associated with continuing supervised time between the child and the father need to be considered against the risks posed by unsupervised time commencing – where the Independent Children’s Lawyer largely supports the mother’s position – where it is found that an unacceptable risk of harm exists in the child spending unsupervised time with the father – where it is found that the risks posed by the father can be mitigated by time being supervised until the child commences Year 8 – where the father’s time progressing to be unsupervised is contingent on a raft of protective safeguards with respect to the father’s alcohol intake – orders made for the mother to hold sole decision-making – section 68B injunctive orders for the protection of the mother are found to be appropriate.    

FAMILY LAW – Interim s 90SM property distribution in the amount of $200,000 to both the de facto husband and defacto wife - an interim s 90SE spousal maintenance order for the de facto wife in the sum of $714.00 per week – property proceedings adjourned part heard.  

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

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

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

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

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

 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 – 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 – 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 – CHILDREN – Best interests of child. 

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

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