Judgments

FAMILY LAW – parenting – allegations that father poses unacceptable risk – allegations involving family violence, mental health and alcohol and substance abuse – dispute about whether there should be joint or sole decision making about major or long-term issues – whether there should be an order that the father not spend time with the children – mother withholding children who wish to spend time with father – allegations not all established – no contest that children should primarily live with the mother – interim orders for children to spend time with the father

FAMILY LAW – PROPERTY – final hearing – marriage of 28 years – marriage produced two children whom are now adult – where the parties operated a small family business – where the husband attended to the physical aspects of business and the wife attended to administration and accounts aspects – where the husband placed the company into liquidation during the part-heard trial without notice to the wife – where loans were taken from the business in respect no liability for tax has been calculation – where the parties have an inchoate debt to the Australian Tax Office – where the family Trust holds various properties – consideration of one party’s non-compliance with previous orders of this court – consideration of add backs – where a two pool approach is adopted – assessment of future needs – considerations of just and equitable – waste – matters to be considered

FAMILY LAW – Interim hearing – parenting – where the parents are in dispute as to the schooling arrangements for the two youngest children and the time the youngest should spend with the father – where the father seeks to progress to one overnight on alternate weekends – where the mother seeks that the time remain as daytime only – where the Court considers it appropriate to move to one overnight – where the Court considers that the children should continue to remain at their respective schools and that the mother be restrained from enrolling them in any other school – various restraints – best interests of the children.   FAMILY LAW – Interim hearing – property – two real properties – where each party resides in one – where the wife seeks the sale of the both properties and for the sale proceeds to be held in the solicitors trust account – where the wife does not seek an interim distribution upon sale – where the husband seeks to retain the property he resides in – where the Court must consider whether it is just and equitable to sell the property the husband resides in – just and equitable outcome. 

FAMILY LAW — PARENTING — time with Father –– Father charged with serious criminal offences — Mother proposing he have indefinite supervised time — allegations of family violence — whether Father poses unacceptable risk to the child – whether the Mother’s parenting will be significantly impacted if the child spends unsupervised time with Father — Re Andrew argument — impact of the Father having time with the child upon Mother’s other children — whether the Mother ‘coached’ her other children to provide a negative view of the Father to the Expert — whether the child should live with the Father if found that the Mother is unable to promote a relationship with him.

FAMILY LAW – Parenting – international travel – where mother seeks that she be able to take children to Country B to visit maternal grandmother – where father opposes the application due to fear of abscondment and travel advice for Country B – where father opposes travel on the basis of impact on schooling and health concerns – where mother has demonstrated ties to Australia – Where Country B is a Hague Convention country – where overseas travel is in the children’s best interests – unacceptable risk not established – application allowed

FAMILY LAW – parenting and property– final hearing – parental responsibility – sole parental responsibility for medical decisions only – shared care versus nine/five arrangement – school holiday time – special needs of children – insight into needs – family violence – insight into parental behaviour – high parental conflict – where court disagrees with recommendations of the Family Report writer – add backs – legal fees – loans – contributions – inheritance – s 75(2)(o) – failure to disclose – increased legal fees due to conduct of a party – dissipation of assets post-separation – lump sum child support – chattels

FAMILY LAW - PARENTING – final hearing date vacated – mother not aware of concept of s 102NA order – interim parenting orders – refixing parenting and property for final hearing

FAMILY LAW – property – no appearance by the husband – matter proceeding on an undefended basis – where the matter has been on foot since 2021 – where there have been significant delays in the finalisation of the property proceedings due to the conduct of the husband   FAMILY LAW -practice and procedure– leave to proceed out of time – costs – considerations of indemnity costs – ordered to pay costs

FAMILY LAW – PARENTING – two children the eldest, aged 12 years, is completely estranged from her Mother and has lived exclusively with her Father and with limited contact with her 9 year old brother who lives primarily with the Mother in the former marital residence – both experts agree that forcing the 12 year old daughter even to attend “therapy” with the Mother is fraught and not recommended – the 9 year old in the Mother’s household effectively “drives the parenting bus” with the Mother arrogating significant parental responsibility and decision-making to her son – complete breakdown in trust between the parents – 9 year old son regularly absent from school even though the Father pays for a private driver to pick up the child and deliver him to school at a weekly cost of $600 per week – significant lack of insight on the Mother’s part regarding needs and best interests of the children – Orders proposed by the Independent Children’s Lawyer, supported by the Father, are in the children’s best interests – both children to live primarily with the Father, with son spending regular time with the Mother, and daughter in accordance with her wishes.  FAMILY LAW – PROPERTY - all financial support for the relationship and the family has come from the Husband – the Mother newly but provisionally qualified as a healthcare professional – Husband’s financial contributions far exceed those of the Wife accepting that the Wife was the primary care of the children when they were younger – certain levels of extravagance in the Wife’s spending during the relationship and her appropriation of $210,000 from a mortgage off-set account was in appropriate – various levels of financial distress for both parties – future needs of the parties, with the Father having primary care of both children, significant at the same time that while the Wife will be in full-time employment, the Husband’s income as a healthcare professional significantly exceeds that of the Wife – just and equitable Orders made as sought by the Husband.

FAMILY LAW – PRACTICE & PROCEDURE – Interlocutory application for an adjournment part way through a final hearing – Sudden unavailability of counsel – Consideration of legal representation pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme – Where any confusion about legal representation is an unsatisfactory state of affairs that is a menace to procedural fairness.

FAMILY LAW – Contempt application – Where contravention of financial obligation alleged to be contempt pursuant to section 112AP – Prima facie case established – Matter adjourned part-heard – Application for watchlist order – Watchlist order application refused – Where respondent has substantial ties to the jurisdiction.

FAMILY LAW – Application to review decision of Senior Judicial Registrar – application by mother to reopen proceedings – consideration of Rice & Asplund and section 65DAAA of the Family Law Act 1975 (Cth) – HELD no significant change of circumstances and not in the best interests of the child to reopen proceedings – application for review dismissed.

FAMILY LAW - Property Proceedings – Threshold Hearing – Binding Financial Agreement – Binding Financial Agreement Set Aside. 

FAMILY LAW – REVIEW – Parenting proceedings – Children ordered to live with Father – Where the Father retained the children in his care in October 2023 due to concern that the children unsafe in the Mother’s care – Youngest child with serious medical condition –  Whether children should relocate closer to Brisbane to live with the Mother to be closer to medical services – Whether the child at risk of harm due to geographical location – Whether the Mother poses an unacceptable risk to the children. 

FAMILY LAW – de facto relationship – threshold issue – where respondent seeks a declaration pursuant to s 90RD of the Family Law Act 1975 that a de facto relationship never existed – applicant asserts that a de facto relationship existed – declaration that de facto relationship existed

FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking - where the applicant father and his legal representative sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – where the mother opposed such release – where the father seeks to use a Single Expert report prepared for the purpose of these proceedings in aid of his defence in criminal proceedings where he is facing serious criminal charges – where no evidence as to putting the Expert on notice for the application for leave is provided – where the father has not established how an untested hearsay opinion would contribute to achieving justice – where the father has not engaged in any meaningful manner with the best interests of the children, both of whom were interviewed for the purposes of the report – where the is no evidence as to how the report’s release may impact the children – where the Court is not satisfied that special circumstances exist – Application dismissed.

FAMILY LAW – interim spousal maintenance – respondent husband’s financial circumstances opaque – parties assets in chaos – whether Hall & Hall inference is able to be drawn – what are reasonable needs – party may need to borrow to fund maintenance order – whether order should be from date of application – when payment “clock” starts – order to operate from after delivery of reasons

FAMILY LAW – application for adjournment refused – application in a proceeding dismissed

FAMILY LAW – Contempt application – Where contravention of financial obligation alleged to be contempt pursuant to section 112AP – Where attempts at personal service not successful – Where amended application and affidavit served by email – Rules as to personal service varied for this case – Application for adjournment refused.

FAMILY LAW – PARENTING – international “relocation” – mother seeks to return to live in Country B with parties’ child (aged 5) – child lived predominantly in Country B until September 2023 – father seeks child remain living in Australia and continue spending time with him on alternate weekends (Friday to Monday) and on one afternoon in intervening weeks – evaluation of competing proposals – order made for child to live with the mother in Country B and to spend time with the father as proposed by the mother, in Australia twice each year and in Country B twice each year – child’s return to Country B not to be deferred as sought by the father in the alternative – mother to have sole decision-making responsibility for education and health issues – parties to have joint decision-making responsibility for all other major long-term issues – other orders agreed by parties found to be in child’s best interests.

FAMILY LAW – PROPERTY – Enforcement – Orders made.

FAMILY LAW – property proceedings – long marriage – value of property – conflicting expert evidence – assessment of wife’s “wastage” argument – arguments regarding wastage related to transactions during the relationship – assessment of wife’s ‘Kennon claim’ – where Court dismisses the wife’s “wastage” argument – where Court dismisses the wife’s ‘Kennon claim’ - where Court finds it just and equitable for Wife to receive 60% of the property pool and Husband 40% .

FAMILY LAW – PROCEDURE – notices of objections dismissed – raising claim for forensic purpose and claim of legal professional privilege

FAMILY LAW – LEGAL PRACTITIONERS – duties of solicitors – solicitor appearing as agent tendered a list and summary of authorities which are acknowledged by the solicitor not to exist – list and summary generated using software relying on artificial intelligence (AI) – accuracy of the document produced was not verified by the solicitor – unconditional apology offered by the solicitor for what is acknowledged to be a breach of the professional standards expected of a solicitor in this court –  referral made to the Office of the Victorian Legal Services Board and Commissioner, being the statutory body and officer responsible for the maintenance of professional standards of solicitors in Victoria – decision for referral not intended to be punitive – responsible use of AI tools in litigation an issue of public interest.

FAMILY LAW - threshold hearing - determine whether or not parties lived in a de facto relationship

FAMILY LAW – Application for enforcement – distinction between substantive and machinery orders – where final orders comprehensive and deal with different contingencies to fund settlement sum – where limited orders made by way of enforcement

FAMILY LAW – Interim parenting – Proposed orders by consent – Whether proposed order in conflict with Family Violence Orders – Whether orders in best interests of children – Potential problem with “siloisation” of information – All authorities to be provided with prior reports.

FAMILY LAW – PARENTING – Property matters settled by consent during trial – High conflict relationship – Significant history of family violence – Children rejecting Father – Extensive family therapy ineffective – Whether children reacting to own lived experience – Consideration of how to interpret video recordings – Father seeks change of residence – Eldest child self-harming at suggestion of time with Father – Further efforts to repair children’s relationship with Father unlikely to succeed, likely to be distressing to children – Forced change of residence unlikely to succeed, likely to be distressing to children – Importance of finality – No time between children and Father – Children live with Mother – Cards, gifts and letters

FAMILY LAW – EVIDENCE – CONTRAVENTION – admissibility of evidence – whether videos can be accepted into evidence – whether recordings of the father were illegally obtained – where the recordings reasonably necessary to protect the children’s lawful interest – if the recordings were illegal can they still be admitted in the Court’s discretion

FAMILY LAW –  ex-tempore - final parenting orders made January 2023 – father has not complied with orders to facilitate the child spending time with the mother and maternal grandmother –where the father was on notice from the previous proceedings about his ability to facilitate a relationship between the child and the maternal family - significant concerns regarding the father’s ability to facilitate a relationship between the child and the mother and maternal family – concerns regarding the father’s ability to support the emotional and psychological wellbeing of the child – the father keeping the child from attending school - child impact report released – interim change of residence ordered – interim change of parental decision making to the maternal grandmother

FAMILY LAW – child support – where father provided undertakings in 2004 not to bring further applications without leave of the court – where father has unsuccessfully brought applications and filed appeals since then – where father now seeking enforcement proceedings as to child support debt– where father not sought leave of the court – where father failed to appear at court event – where application defective – held application be dismissed

FAMILY LAW – Parenting – two children aged 7 and 4 – where the father is currently incarcerated and will be eligible for parole in 2029 – where the father pleaded guilty to a serious offence against the oldest child – where the father seeks parenting orders to resume a relationship with the children – where the mother seeks a decree pursuant to s 102QAB of the Family Law Act 1975 (Cth) – consideration of the welfare of the children’s primary carer – whether there is a real issue of fact or law to be determined – family violence – assessment of harm – harmful proceedings order made – application dismissed

FAMILY LAW – Review of decision of Registrar – where applicant was a child and subject to proceedings in this court – where applicant is now an adult and wants access to the Court file relating to her parents dispute – where the applicant has a proper interest – where there exists other reasons supporting disclosure – application granted for applicant to access the Court file.

FAMILY LAW – PARENTING – family violence – alienation – 12-year-old with entrenched views – balancing of risks of psychological harm of leaving child with mother or changing residence – meaningful relationship – benefits of further family therapy – consideration of s 60CC factors prior to amendments – child moved to live with father – moratorium on time

FAMILY LAW – PROCEDURAL – Application to restrain wife’s solicitor from acting – inherent jurisdiction.  FAMILY LAW – INTERLOCUTORY – Financial application – spouse maintenance

FAMILY LAW – Contravention – Parenting – Where father alleges mother failed to comply with orders allowing father to spend time with children – Where father alleges mother failed to comply with orders not to communicate through children – Where father alleges mother failed to comply with “live with” orders – Differences between “old” and “new” Division 13A – Parents to use their parental authority to ensure that the orders are complied with – “Live with” orders not a mandatory injunction or obligation on the Mother to actually keep the children in her care at all times – Two contraventions established – Mother ordered to enter into bond.

FAMILY LAW – spousal maintenance – remittance of the wife’s application for the husband to pay interim periodic spousal maintenance –whether the wife had a unrealised income-earning capacity – whether the wife’s alleged expenses are reasonable – whether the wife can adequately support themselves – what is a reasonable amount for the husband to pay to support the wife – whether spousal maintenance should be capitalised and deducted from the impending sale proceeds of the family home or alternatively be a non-characterised lump-sum payment from the sale proceeds – two subject children with complex medical needs for the 5-year-old child – weekly spousal maintenance to be paid to the wife

FAMILY LAW – final hearing adjourned – section 102NA complications – interim orders made – family report observations untested – family report of assistance to interim decision – assistance of DFFH sought by section 67ZBD order – order for supervised time.

FAMILY LAW – application of recission of a divorce order made before the divorce order took effect - whether the parties have been separated for 12 months prior to the divorce application being filed – the wife claims the parties are not separated – consideration of provisions dealing with recission of divorce - application dismissed

FAMILY LAW – application for interim parenting orders – where interim parenting orders previously made following contested hearing – where mother asserts 18 month old child having difficulties with drinking, feeding and sleeping – where mother asserts 7 and 8 year old children are struggling to cope with time spent away from mother – where father seeking to further progress spend time with children – where father seeking to align changeover time for children.

FAMILY LAW - NULLITY OF MARRIAGE – Application for a decree of nullity of marriage – Where the applicant contends that the respondent was lawfully married to another person at the time of marriage – Where the applicant contends that the divorce was not recognised in the respondent’s country of birth at the time of re-marriage – Overseas decree – Application dismissed

FAMILY LAW – Property – Warrant for possession of property issued – Emails stand as application and responses – Not disputed that respondent has not vacated subject property – Interests of justice provide that a warrant for possession should be issued – Orders mean what they say.

FAMILY LAW – Parenting – interim hearing – mother seeks recovery of child – child aged two – father alleges child is at risk in mother’s care – child to be returned to mother – child to spend time with father four nights a fortnight – child impact report ordered.

FAMILY LAW – PRACTICE AND PROCEDURE –inaccurate list of legal authorities tendered by practitioner (solicitor appearing as agent) at an enforcement hearing – list of authorities generated by a legal software package which uses artificial intelligence – practitioner afforded an opportunity make submissions as to why conduct in tendering the list of authorities should not be referred to the Victorian Legal Services Board and Commissioner.

FAMILY LAW – PARENTING – Best interests of the child.

FAMILY LAW – REVIEW – Application brought by the father to review a senior judicial registrar’s decision – Hearing de novo – Where the father filed a Notice of Discontinuance and the senior judicial registrar made orders as sought by the mother and awarded costs in the mother’s favour – Where the mother seeks costs pursuant to s 117 of the Family Law Act 1975 (Cth) of the father’s Application for Review on an indemnity basis – Father’s Application for Review is dismissed – Father to pay the mother’s costs in a fixed sum.

FAMILY LAW – COSTS – multiple offers made by the Father during the course of the protracted litigation – Mother made two counter-offers – consideration of principles regarding costs especially where there are offers of settlement – the Father’s penultimate offer of settlement regarding costs was one-sixth his ultimate costs – Full Court authority that refers to rejection of offers where doing so is more than just unwise but actually “imprudent” – Father sought as his primary position indemnity costs against the Mother – indemnity costs Application refused but a limited costs Order in keeping with the “generous” costs offer made by the Father in November 2023 made – payment of costs by the Mother to be made in six months.

FAMILY LAW – PARENTING – relocation Sydney to the City B area – nearly 3 year old child – no risk issues – both parents have loving relationship with child and able to meet child’s needs – parents agree on shared care in event there is no relocation – mother’s family have moved to City B – mother has mental health issues – mother’s treating psychologist unavailable to give evidence – mother seeks family support – financial and accommodation benefits of moving to City B – opportunities to pursue tertiary education in City B – father’s ability to move – relocation not permitted

FAMILY LAW – Parenting – four children aged 17, 16, 14 and 12 – final parenting orders made in November 2021 – mother and independent children’s lawyer seeking that the younger two children spend no time with the father – father seeking that the 12 year old spend alternate weekends and the 14 year old spend week about with mother – multiple periods of the father withholding the children – spend time with father suspended at last interim hearing – significant age difference between parties at commencement of relationship – mother alleging coercive control from commencement of relationship – father was in a position of authority at the parties’ church – allegations that father used religion to exert control over the mother during the relationship – coercive control findings – father criticising mother’s lifestyle and minimising her relationship with children – parental capacity – father failing to act in the children’s best interests – conduct driven by wish to exert control rather than needs of the children – sibling relationship – delay in medical assessment and treatment – child with ASD being bullied at current school and engaging in self-harming – dispute as to school – parental alignment – children’s views coloured by attempts to appease the father – held – parties to make joint decisions with respect to eldest two children – eldest children to spend time with each parent according to their wishes – mother have sole decision making with respect to youngest two children – youngest two children to live with the mother and spend no time with the father.

FAMILY LAW – PROPERTY – Where it is alleged that the Husband improperly removed funds from the parties’ self-managed superannuation fund – where there is a consequential dispute as to finalisation of the accounts of the fund