Judgments

FAMILY LAW – CONTRAVENTION – contravention of final parenting orders – not making a child available to spend time – involving the child in the proceedings – plea of guilty with reasonable excuse based on the child’s wishes – court found no reasonable excuse on each count – failure to encourage the child to spend time with the mother – failure to assert parental authority – matter adjourned for submissions on sentencing.

FAMILY LAW – PARENTING – psychological risk to child of having no relationship with her mother – impact on child of change of residence, change of state and change of school – mental health issues – ADHD – parent’s ability to meet child’s needs – history of moving countries, houses, and schools – child engaged with psychologist and school counsellor – need for stability – child’s best interest met by remaining in father’s primary care – father not likely to comply with orders – father not permitted to take child overseas – watch list order to remain in place.

FAMILY LAW – Ex tempore – parenting arrangements for a child aged 4 years old –allegations of coercive and controlling family violence – enquiry into the best interests of the child – where the parties have very limited capacity to coparent – where the respondent has failed to prosecute the proceedings with due diligence – where the applicant and the Independent Children’s Lawyer submits it is not in the best interests of the child to continue litigation – where the proceedings are to be concluded – matters to be considered

FAMILY LAW – PARENTING APPLICATION – parenting arrangements for the child – change of name

FAMILY LAW – PARENTING – The Mother did not appear at the Final Hearing and the Father sought leave to proceed on an undefended basis – Father sought orders he have sole decision making for the parties’ two children, a daughter 12 years of age and a son 10 years of age, the children live with the Father and spend supervised time with the Mother as determined by the Father.

FAMILY LAW – HELD – Father have leave to seek orders on an undefended basis – orders made in the terms sought by the Father.

FAMILY LAW – PROPERTY – The Wife did not appear at the Final Hearing and the Husband sought leave to proceed on an undefended basis –Parties had previously reached a private agreement as to property that was partially executed – the Husband is seeking the agreement reached be formalised, such that the former matrimonial home be sold, the proceeds of sale from be used to pay the associated costs of sale, discharge the mortgage and the balance to be paid to the Wife – The Husband also sought orders the Wife transfer monies held in the children’s account to new accounts opened by the Husband to be held on trust for the children.

FAMILY LAW – HELD – Husband have leave to seek orders on an undefended basis – orders made in the terms sought by the Husband.

FAMILY LAW – CHILDREN – Children in primary care of mother – Unacceptable risk – Children exposed to volatile parental conflict – Where father holds fixed and negative view of the mother – Where the father has invited the frequent involvement of other agencies in the mother and children's lives to gain advantage – Where the father's unpredictable and sometimes inappropriate behaviour has exposed the children to harm – Children now experiencing psychological difficulties stemming from their exposure to the conflict – Where the father lacks insight into impact of his behaviour – Orders made for sole parental responsibility – Children to live with the mother – No communication between the father and the children – Indefinite supervised time ordered, where no time order would impact on attachment of children to father.

FAMILY LAW – PRACTICE AND PROCEDURE – Where mother seeks harmful proceedings order pursuant to s 102QAC(1) – Substantial litigation history – Psychological harm as a result of proceedings – Harmful proceedings order made. 

FAMILY LAW – Property – where leave was granted to file an application out of time – where the applicant seeks the sale of the property – undefended hearing – where the court is satisfied the respondent was notified of proceedings – final property orders.  

FAMILY LAW – Parenting – interim hearing – where the father be ordered to have sole decision-making responsibility in relation to decisions pertaining to education for the children – where the father must still consult the mother of any decision he intends to make – where there is a concern of the children’s school attendance while in the mothers care – where the court balanced the best interest of the children in determining where the children should live – where the court is satisfied the children’s attendance at school will improve in the father’s care – where residence of the children be moved to the fathers primary care – where the children still live with the mother on a shared care arrangement – where the form of the orders show that the children “live with” both parents – where the mother has increased school holiday time with the children 

FAMILY LAW - review of registrar’s decision – consideration of s 65DAAA.

FAMILY LAW – PARENTING – Where the respondent unilaterally relocated to City B from Sydney with the children – Where the respondent currently resides in City B with the children and the applicant resides in Sydney – Where neither party is willing to move closer to the other – Where the children have close and loving relationships with each party – Where many minor matters dominate the parties’ evidence – Where the parties view each other negatively – Where the parties have both behaved poorly – Need for self-awareness and impact of behaviours –  No unacceptable risk of harm or family violence.

FAMILY LAW – PROPERTY – Overall contributions equal – Future needs adjustment – Only one asset of significance being the former matrimonial home which is held in the applicant’s sole name – Where one party is to retain the home and one party is to receive a lump sum payment.

FAMILY LAW – Property – composition of asset pool – where contributions are assessed as equal – where there should be an adjustment to the wife of 5% having regard to the factors under section 75(2) of the Family Law 1975 (Cth) – orders made accordingly and are just and equitable.

FAMILY LAW – COSTS – where the Respondent was wholly unsuccessful – where proceedings were necessitated by the Respondent’s repeated failure to comply with previous Orders – where indemnity costs are warranted due to the Respondent’s misconduct

FAMILY LAW – Parenting – whether hearsay allegations of intimate partner violence from three partners of Father indicate substantial risk to the children – whether father had been violent to Mother – where psychometric tests relied upon by single expert witness – where expert witness refuses to make all data available for examination by Father’s lawyers – where parents not informed that some data from psychometric tests would not be available for examination by parties lawyers – whether diagnosis of Father should have any weight in circumstances – whether alleged psychological impact on Mother of any time with parents’ two children means only limited 4 times each year professionally supervised – assessment of risk of unsupervised time – whether Father has “evolved”, progressed or rehabilitated himself – examination of extent of “criminality” of the Father – whether Paternal Grandparents suitable supervisors of any time – or whether they are “enablers” of Father’s violence – where Mother relies on advice from service that has not met the Paternal Grandparents – whether all overnight time should be at the Paternal Grandparents’ home – whether all time with children should be tethered to involvement of Grandparents – final orders for time gradually moving from supervised time to substantial attendance to unsupervised time but all overtime time and police station changeovers to involve Paternal Grandparents.

FAMILY LAW – PARENTING – Applicant father seeks a final order that the three children spend equal time with each parent – Respondent mother opposes order for equal time and seeks an order that the children continue to live with her and spend time with the father – Parties agree that there will be an order that the parents have equal shared parental responsibility for the children – Consideration of whether it is in the best interests of the children and reasonably practicable for the children to spend equal time with each parent – Consideration of whether it is in the best interests of the children and reasonably practicable for the children to spend substantial and significant time with each of the parents – HELD that it is in the best interests of the children to live with the mother – HELD that it is in the best interests of the children and reasonably practicable to spend substantial and significant time with the father 

FAMILY LAW – Parenting – Interim hearing – Orders made largely pursuant to consent minute – Scheme of consent orders changed slightly to delay progression of spend time – Where parties disagree on whether to appoint an Independent Children’s Lawyer – Where both parties’ allegations include some form of abuse – Decision to appoint Independent Children’s Lawyer.

FAMILY LAW – Parenting – where final orders were made in 2020 – where the matter was reopen by the consent of both parties – where the judgment of 2020 made findings of family violence – whether those determinations bind these proceedings – decision of these proceedings bound by the 2020 judgment.

FAMILY LAW – parenting – urgent hearing – where the independent children’s lawyer made an application via email for a watchlist order against the respondent – where the respondent wishes to travel to Country B with the child – where the respondent has travelled to Country B with the child previously and returned to Australia – where a watchlist order has been dismissed previously in these proceedings – where the independent children’s lawyer and the applicant believe there is a real concern the respondent and/or the child will stay in Country B – where the applicant is concerned of potential legal proceedings in Country B concerning the child while the respondent and child are overseas – where the respondent gave an undertaking in court that he would not commence proceedings overseas – where both parties are to contact and engage with Q Contact Centre to facilitate time with the child and applicant  

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 – Application for orders to ban personal cross-examination – Section 102NA requirements – whether satisfied – concerns about use of legal aid cross-examination scheme – time when requirements for making order are to be satisfied – one party still legally represented – financial impecuniosity not a pre-requisite to making order – inference that both parties will be self-represented by defended hearing and each will cross-examine – necessity to ensure defended hearing dates are held - mutual Section 102NA orders made based on discretion pursuant to s102NA(1(c)(iv) of the Family Law Act 1975 (Cth)

FAMILY LAW – PARENTING – where there are two children aged 7 and 6 – where the children live with the father and have spent no time with the mother since 2022 – where the mother has neglected the children and they have expressed a desire not to see her - where the mother has perpetrated family violence and repeatedly failed to produce hair follicle tests – where the mother has not taken steps as recommended by the Family Report writer

FAMILY LAW – PARENTING – where the mother has neglected the child - where the child’s views are given reduced weight in circumstances where the child has been significantly influenced by the mother – where it remains in the child’s best interests not to spend time with the mother - where the father will continue to have sole parental responsibility.

FAMILY LAW – PROPERTY – where the matter proceeded on the husband’s evidence – where there is to be a 55/45 non-superannuation asset split in favour of the husband – where there is an equal superannuation split – where joint proprietorships are severed - where proceeds of sale of a property go to the wife and a property be transferred to the husband

FAMILY LAW – Parenting – Undefended final hearing – Where respondent mother has had opportunity to participate in proceedings but has chosen not to – Where respondent mother unilaterally relocated with child overseas – Recovery order – Watchlist order – Orders for child to live with applicant father in Australia – Any orders for spend time with mother to be determined if or when she chooses to engage in proceedings.

FAMILY LAW – Parenting - whether children aged 6 and 4 remain living with mother or live with father - whether either party poses an acceptable risk to children - held mother poses an unacceptable risk and children unsafe in her care - children live with the father - children spend limited supervised time with mother.

FAMILY LAW – FINANCIAL – Interim proceedings – Where both parties seek sole use and occupancy of the former matrimonial home – Where the applicant wife seeks further interim orders for lump sum interim spousal maintenance, a partial property settlement and injunctive relief – Where the respondent husband broadly opposes the wife’s application but makes a counter proposal for financial support – Orders for lump sum interim spousal maintenance of $35,000 in favour of the applicant wife – Orders for a partial property settlement of $35,000 in favour of the applicant wife – Orders for the respondent husband to have sole use and occupancy of the former matrimonial home until final orders can be made. 

FAMILY LAW – Parenting – Where final orders already in place – Where mother has unilaterally withheld child against final orders – Where mother has indicated intention not to be involved in proceedings – Decision to proceed undefended – Where father and Independent Children’s Lawyer seek final orders to remain in place – Final orders reinforced – Orders and reasons for judgment to be provided to Child Protection for any future involvement.

FAMILY LAW – PARENTING – Final hearing – Child aged 4 – Where the child is of a mixed cultural background – Relationship of 6 years – Where the mother and child relocated to Adelaide with the consent of the father in 2022 – Where the father relocated to Adelaide during the trial and without notice to the mother – Where the father seeks an equal shared care arrangement – Where the mother and the ICL seek the child spend no time with the father – Where the parties have no capacity to co-parent – Considerations of family violence – Overseas travel – Matters to be considered

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.

MIGRATION – protection visa – application for review of a summary dismissal decision made by a Registrar – where an application for review of the delegate’s decision was lodged out of time and therefore Tribunal lacked jurisdiction – no jurisdictional error identified - application cannot succeed and is dismissed with costs

MIGRATION – Protection (Class XA) (subclass 866) visa – Refugee Review Tribunal – Application for Extension of Time – Delay of 5,184 days – No arguable jurisdictional error on proposed grounds – Extension of Time refused – Application for judicial review dismissed with costs

MIGRATION – Protection (subclass 866) visa – Application for review of Registrar’s dismissal of reinstatement application – Extension of time sought – Consideration of length of time and reasons for delay in filing review application – Consideration of reinstatement application –  Reasons for non-attendance at court leading to dismissal of substantive application wholly inadequate – evidence of applicant unreliable – Substantive application raised no arguable grounds – Extension of time refused  – Application for review dismissed with costs

BANKRUPTCY – VESTING ORDER AS TO DISCLAIMED PROPERTY – Where a bankrupt was the registered proprietor of Torrens system land – Where the Trustee disclaimed the property – Where the State of Victoria sought a vesting order – Where the Court considered it was just and equitable for the vesting of the property in the State of Victoria – Orders made

FAIR WORK – general protections application lodged one day after proscribed time – where short delay due to representative error - no particular prejudice to the respondent - at least the basis of a claim articulated – extension of time granted

BANKRUPTCY – Interlocutory Application – Ex tempore judgment – Application dismissed

MIGRATION – Extension of time in which to commence s 476 Migration Act review – foreshadowed challenge to rationally based credit findings of the Tribunal cannot succeed – not in the interests of justice to extend time – application to do so dismissed

MIGRATION – Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether wrong legal test applied – Correct criteria applied – Whether unreasonable finding of effective state protection – Finding of effective state protection open on country information - Decision not legally unreasonable – No jurisdictional error found – Application for judicial review dismissed – Costs ordered.

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA’s decision was legally unreasonable –whether the IAA failed to consider relevant considerations or claims – application dismissed

MIGRATION – Decision of Administrative Appeals Tribunal – protection visa – where three Tribunal hearings held – whether failure by Tribunal to consider or engage with relevant evidence – jurisdictional error established – writs issued

CONSTITUTION – Exercise of delegated power by Registrar – nature of de novo review

MIGRATION – Registrar’s decision affirmed and review dismissed as no arguable case for extension of time

FAIR WORK – alleged breach of contract – alleged underpayments and unlawful deductions in contravention of the Fair Work Act 2009 (Cth) with cross claim to rectify alleged overpayment – where the Applicant’s remuneration was reduced following the First Respondent’s loss of a significant contract and, subsequently, unilateral deductions were made.

GENERAL PROTECTIONS – various adverse actions including dismissal taken in alleged contravention of s.340 of the Act – where Applicant had complained about remuneration and was summarily dismissed for alleged serious misconduct in respect of communications with clients. 

BANKRUPTCY – Interlocutory Application – Application to set aside sequestration order – Application to recuse – Procedural fairness – Actual or apprehended bias – Application dismissed  

MIGRATION – application for an extension of time – decision made by the Immigration Assessment Authority – protection visa – whether the underlying application for judicial review has merit – whether the Authority’s decision was unreasonable – underlying application has limited prospects of success – extension of time refused. 

MIGRATION – protection visa – decision of the Administrative Review Tribunal – failure to appear before the Tribunal – where Tribunal dismissed the application pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) – whether the applicant was afforded sufficient time to prepare materials – whether the Tribunal failed to consider the applicant’s grounds – no jurisdictional error established – application dismissed.