Judgments
Division 1 - First instance
FAMILY LAW – PARENTING – Family violence – Where the children have not spent time with the father for five years – Whether the father should spend supervised time with the children – Whether the mother’s parenting capacity would be adversely impacted if the Court makes an order for the children to spend time with the father – Permanent separation from a parent – No matters of principle.
FAMILY LAW – PROPERTY – Final orders – s 79A– Where issues of non-disclosure – Where miscarriage of justice by reason of the failure to disclose relevant information and documents amounting to a suppression of evidence – Orders set aside and new orders made. FAMILY LAW – PRACTICE AND PROCEDURE – Application to adduce expert evidence – Retrospective market valuation of real property – Allegation of fraud – Delay – Application dismissed.
FAMILY LAW – PROPERTY – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where wife seeks a 55/45 division in her favour – Where wife seeks equalisation of superannuation –Non-compliance with filing directions – Non-disclosure – Where two pools approach applied – Where myriad of contributions assessed as equal – Consideration of s 75(2) factors – Where husband is 20 years older than wife – Where husband has retired and wife has an income – Where wife has ongoing care of the children of the marriage – Where husband’s financial position is unknown due to non-disclosure – Where 5 per cent adjustment made in favour of wife under s 75(2) – Where 55/45 division of non-superannuation pool in favour of wife is just and equitable – Consideration of the nature, form and characteristics of the respective superannuation interests – Where equalisation of superannuation is just and equitable.
FAMILY LAW – PRACTICE & PROCEDURE – Husband’s unopposed application to appear by audio visual link granted – Application by the wife to proceed on an undefended basis – Where husband did not file any response material or evidence in the proceedings – Where husband was warned the matter is likely to proceed on an undefended basis if he does not comply with filing directions – Where husband is unrepresented – Consideration of Re F: Litigants in Person Guidelines (2001) FLC 93-072 – Procedural fairness – Application to proceed undefended refused – Husband granted leave to cross-examine, tender documents, and make submissions.
FAMILY LAW – PROPERTY – Where the wife seeks a 70:30 split in her favour and the husband seeks a 60:40 split in his favour – Where there was a long marriage – Where the wife made submissions about her contributions citing Kennon & Kennon (1997) FLC 92-757 – Where the Court finds that the wife made greater contributions – Where the Court finds that the wife’s contributions were made significantly more arduous by the family violence perpetrated by the husband – Where a small adjustment is made in favour of the wife under s 75(2) of the Family Law Act 1975 (Cth) – Where the Court orders a division of property as to 62.5 per cent in the wife’s favour.
FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – discovery – documents sought by litigation funders –respondents seeking the imposition of conditions to the release of documents sought – implied undertaking – adequacy of confidential undertaking.
FAMILY LAW – PROPERTY – application for property adjustment between the husband and wife – whether interim distributions should be added back into the pool – where the husband contends the single expert valuation of a real property is flawed – where it is just and equitable to make an order – consideration of the parties’ contributions – where the parties’ contributions are assessed as equal – where a modest adjustment pursuant to s75(2) in favour of the wife is appropriate – where the overall pool will be adjusted and divided 52.5% to the wife and 47.5% to the husband.
FAMILY LAW – LEGAL PRACTITIONERS – Where the wife makes an application to restrain the husband’s lawyers from acting for him – Where the trial in the matter is part-heard – Where the cross examination of the parties has concluded – Where the issue of conflict had been raised prior to trial commencing – Where the husband’s solicitors resumed acting following the conclusion of the first tranche of the trial – Where there is insufficient basis to deny the husband the legal representation of his choice – Where it is not concluded that a fair minded reasonably informed member of the public might conclude that the integrity of the judicial process will be impacted by the husband’s solicitor continuing to act.
FAMILY LAW – PARENTING – Where both the mother and father seek sole parental responsibility and that the children live with them – Where there is high conflict between the parties – Where there is family violence perpetrated upon the mother and children by the father- Where there is an unacceptable risk to the children in remaining in the care of the father- Where the children’s safety cannot be assured in the care of the father – Where the Court finds the father incapable of supporting the children’s relationship with the mother – Where there is parental alienation of the mother by the father and his partner – Where the father and his partner have engaged in criminal activity and fraud in pursuit of that alienation – Where the Court has made interim orders for the children to spend time with the mother and the children have absconded – Where the younger of the two children is to have no contact or communication with the father and live with the mother – Where the older child is to live with the mother subject to his wishes – The mother to have sole parental responsibility of both children – Changeover of the children to be enacted at the Melbourne Registry with attendance by the ICL and a Family Consultant.
FAMILY LAW – PROPERTY SETTLEMENT – Alteration of property interests – Where wife alleges waste by husband – Where wife asserts there should be an addback of husband’s gambling losses – Where husband asserts the gambling occurred with wife’s knowledge and agreement – Whether husband’s expenditure on gambling should be regarded as waste – Whether there should be an inclusion of property as an addback or adjustment based on s 75(2) – Where Kowaliw and Kowaliw (1981) FLC 91-092 applied – Where husband’s gambling losses found to constitute waste – Where husband failed to make full and frank financial disclosure – Net assets divided as to 72 per cent in the wife’s favour – Section 75(2) adjustments made.
FAMILY LAW – PROPERTY – De Facto Relationship – Where a child of the relationship lives with the wife and spends no time with the husband – Where there is a family trust that owned two properties with the applicant, the first respondent and the third respondent having an interest and/or entitlement in respect of the trust – Where the applicant seeks to wind up the trust and pay out all liabilities from the trust – Where the first respondent and the third respondent did not participate in the trial – Where the applicant has experienced extensive and serious family violence – Where the second respondent intervenor seeks repayment of a litigation loan incurred by the first respondent –– Where the litigation funder’s claim to priority when considering the competing claims of the applicant and first respondent is not accepted - Where the application of the applicant succeeds.
FAMILY LAW – PARENTING – Applicant proposed relocating with children to the United Kingdom – Children aged six and three – Children have good relationship with respondent – Where relationship will still be one of positive significance following relocation – Where applicant’s parenting currently adequate despite poor mental health – Where applicant’s wellbeing will be improved if permitted to relocate – Whether best interests adversely affected to justify imposition on parent’s right to relocate – Order made permitting relocation.
FAMILY LAW – PRACTICE AND PROCEDURE – Release from Hearne v Street obligations – Leave given for use of documents in Federal Court proceedings – Where an order was sought that the applicants will not be in breach of any provisions of Part XIVB of the Family Law Act 1975 (Cth) by using any of the documents for the purpose specified – Where jurisdiction or power for such an order is not apparent – Parties to file written submissions in relation to this proposed order if it is pursued.
FAMILY LAW – CONTRAVENTION – PENALTY – Where contravention made out – Consideration of penalty –Where the applicant sought the imposition of the maximum fine of 60 penalty units – Where the respondent sought that no penalty be imposed – Where the most appropriate sanction is a fine.
FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties are engaged in protracted and highly vexatious litigation – Where the wife seeks various orders in relation to disclosure, injunctions and the release of documents pursuant to the Harman undertaking – Where the husband agrees to the release of documents – Where the Court makes various orders in relation to disclosure in accordance with the Rules – Consideration of injunctions sought by the wife – Where the wife seeks the husband be restrained from enabling the children to use an e-scooter – Consideration of relevant state law and regulations – Orders made.
FAMILY LAW – PARENTING – Final parenting orders – Where the parties have a highly conflictual relationship – Where the parties do not reside in close proximity – Where both parties agree to joint parental responsibility – Where the mother seeks injunctions restraining the father – Where the child is to continue to live with the mother and spend time with the father – Where the Court finds that injunctions would not function in child’s best interests.
FAMILY LAW – PARENTING – Consideration of “safety” pursuant to s 60CC(2)(a) and “safe” pursuant to s 60CC(2)(e) – Where there is a risk to the safety of the children arising from the mother's serious mental health conditions – Where the parties agree that the children will live with the father and spend time with mother – Disagreement as to whether the children's time with the mother should be professionally supervised or supervised by the mother's family or merely in the substantial presence of the mother’s family – Orders for mother to direct treating practitioners to advise the father of certain events – Father to hold sole parental decision-making responsibility in relation to health and education related issues.
FAMILY LAW – PARENTING – Where the parties entered into a final consent order for the mother to have sole parental responsibility for major long term issues – Where parties agreed the three children should continue to live with the mother – Where the mother seeks orders for the two older children aged 15 and 12 years to spend time with the father in accordance with their wishes and prescribed time for the youngest child aged 10 years – Where the father seeks prescribed time orders for all three children – Where the father seeks an increase in time including overnight time and block time during school holidays – Where there is a history of allegations of family violence and verbal abuse perpetrated by the father – Where the father has engaged in treatment with a psychiatrist and has shown insight into his past behaviours – Where the mother’s proposal that the two older children can spend as much time as they wish with the father inherently acknowledges any continuing risks are not unacceptable – Where there are no unacceptable risk factors to the safety of the children whilst in the father’s care – Where the children expressed resistance to overnight time with the father to the Family Report Writer in 2022 but have since been compliant with overnight time orders – Where one-on-one time with the father may be beneficial for the youngest child – Orders for increased time with the father including overnight time for all children for a prescribed period, thereafter the two older children to spend time with the father only in accordance with their wishes – Order for the youngest child to spend time with the father only in accordance with his wishes upon reaching the age of 13 years.
PROPERTY – Adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) – Assessment of contributions – Where the mother sought 65/35 division with 10 per cent adjustment under s 79(4)(e) of the Act in her favour – Where the father sought 50/50 division with no further adjustment – Where the mother is the founder and sole director of a company in which the father has no proprietary interest – Where the mother has a practice of cycling director loans from the company into the spouse parties’ joint account to the benefit of both parties – Where the father sought addbacks in the amount of $559,043 for legal fees paid by the mother with director loans – Where the mother sought to include a liability of $2,436,144 for director loans – Where the mother’s liability has already been accounted for in the expert valuation of the company she claimed as an asset – Where the mother has made an uncertain sum of repayments for the loans and the Court cannot be satisfied the value of the company has been changed by any repayments – Where the liability recorded by the expert valuation cannot be taken as accurate but the expert evidence is the only secure valuation of the mother’s interest in the company and liabilities for director loans – Whether the mother’s liability for director loans should be included on the balance sheet or taken into account under s 79(4)(e) of the Act – Where a 3 per cent adjustment is made in favour of the father – Final division of 62/38 per cent in favour of the mother.
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 – PROPERTY – Interim orders – Consideration of the application of funds in various offset accounts towards various mortgages – Where the parties propose to retain the mortgage to ensure redraw facilities are available – Where there is no opposition by the husband – Where the wife provided a proposed Minute of Order – Where the husband was given the opportunity to forward a schedule of the revised balances in the various accounts – Where no schedule was received – Orders made in terms of the wife’s proposed Minute of Order.
FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Best interests of a child – Where two children live with the wife and one child lives with the husband – Where the husband seeks orders for the children to live with him – Where there is no evidence as to whether the children will be beneficially or adversely impacted by the husband’s proposal – Where the matter has a trial listing date – Where the Court declines to change the current arrangements prior to trial.
FAMILY LAW – SPOUSAL MAINTENANCE – Interim orders – Where the wife’s primary claim is for a lump sum of $150,000 for spouse maintenance – Where the husband has capacity to pay a lump sum from funds held for both parties in solicitors’ trust accounts – Where any interim lump sum ordered can be adjusted in the final property orders – Where the wife requires leave of the Court pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to institute spouse maintenance proceedings four months after the expiration of the 12 month period from the date the parties’ divorce orders took effect – Whether the wife would suffer hardship if leave was not granted to institute her spouse maintenance claim – Where the wife’s delay in instituting spouse maintenance proceedings is not material and not sufficient reason to refuse leave – Residual discretion exercised to grant leave for the wife to commence proceedings for spouse maintenance pursuant to s 44(3) of the Act – Order for lump sum interim spouse maintenance of $50,000 in favour of the wife.
JURISDICTION – Where the wife previously sought leave to commence spousal maintenance proceedings in the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) and the Court lacked jurisdiction pursuant to s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the wife filed an initiating application in the Federal Circuit and Family Court of Australia (Division 2) seeking leave to institute spousal maintenance proceedings out of time pursuant to s 44(3) of the Act – Where the wife’s application was transferred to Division 1 removing previous jurisdictional impediments.
FAMILY LAW – PARENTING – Where the mother sought that a recovery order issue to return the child to her care – Where there is two weeks until the next listed appearance before the Court – Where the parties’ adult child has been recently released from an extended stay at a mental health facility – Where that adult child has been released into the care of the mother – Where there is a lacuna of evidence of the adult child’s functioning since his release – Where it is not in the best interests of the child to issue a recovery order.
FAMILY LAW – PARENTING – where the mother made an oral application for the child to attend upon a new treating psychologist – where the mother submits the current treating psychologist is not independent – where the father and ICL submit the child has a longstanding therapeutic relationship with his current treater – oral application dismissed.
FAMILY LAW – INTERLOCUTORY – INJUNCTIVE RELIEF – Major Complex Financial Proceedings List – Where the Applicant has not established primarily any real risk of unjustified disposition of Australian assets – Where the wife has not pointed to any evidence of funds leaving Australia – Where the difficulties in being able to enforce any Australian Court order against overseas assets is but one issue to be considered in the exercise of discretion – Where the scope of the Applicant’s orders sought have the potential of restraining the Respondent in a way that cannot be justified at this time – Application for injunctive relief dismissed.
FAMILY LAW – CHILDREN - CRITICAL INCIDENT LIST - Where children’s mother passed away – Where children’s father passed away - Where no parent available to care for the children – Where children are Aboriginal and living on Country - Where interim orders had been made to allow for the applicant paternal grandmother to access service providers for two of the three children – Where the respondent maternal grandmother, with care of the third child, has not participated in the proceedings but has communicated with the applicant about them – Where the grandmothers live in a small community and the siblings see each other regularly - Where the Department is not working with the families – Final orders made.
FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding – Where the wife is required to seek leave to file any interim applications – Where the wife seeks leave to file an Application in a Proceeding – Where the wife seeks orders for recusal on the basis of actual bias and apprehended bias – Where the wife does not establish any basis for recusal – Application for recusal refused –Where a stay order sought by the wife is made – Where the wife seeks a range of additional orders that are incompetent and/or have no reasonable prospect of success – Where the balance of the wife’s Application in a Proceeding is dismissed.
FAMILY LAW – PARENTING – Allegations of child sexual abuse and family violence perpetrated by the father – Where the mother, at the conclusion of the trial, concedes that the evidence does not support a finding that the father poses an unacceptable risk to the children – Where the mother nevertheless maintains her belief that the child was sexually abused by the father – Finding that the father has not sexually abused the child and the mother’s allegations are groundless – Finding that the mother poses an emotional and psychological risk to the children emanating from her fervent belief the father has sexually abused the child absent any objective evidence – Where the father seeks the children live with him and spend substantial and significant time with the mother – Where the mother seeks a week about arrangement – Best interests of the children – Where the father is best placed to ensure an ongoing relationship between the children and both parents – Change of residence – Order for sole parental decision making to be vested in the father and for the children to spend significant and substantial time with the mother.
FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – Property – Where the wife filed a Notice of Appeal – Where the wife made application for recusal on the ground of actual bias – No actual or apprehended bias established –– Recusal refused – Stay of totality of orders made by the trial judge as sought by the wife not granted – Agreed orders stayed - The wife to pay the husband’s party and party costs.
FAMILY LAW – CHILDREN – Where the father seeks unsupervised time – Children have spent no time with the father since 2022, save for family report interviews – Children have expressed a desire to spend time with the father – Where the Court finds the father presents as an unacceptable risk of psychological harm to the children – Final orders made for the children to spend supervised time with the father on a three-week rotation.
FAMILY LAW – CHILDREN – Where the Court previously ordered the two children to live in separate homes, with no prescribed order for them to have time with each other, or the other parent with whom they did not live – Issue of alleged sexual abuse of the younger child by the older child – Specialist report obtained – Both children to live with the father until a final hearing.
FAMILY LAW – APPLICATION FOR REVIEW – Where the wife seeks to review orders of a senior judicial registrar as to disclosure and the appointment of single valuation experts – Where the wife has access to documents in her capacity as a director of a corporation and does not have the right to possession or control of the documents sought to be disclosed in her personal capacity – Where the wife has an obligation pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to provide disclosure of information achieved in her personal capacity relevant to the proceedings – Where orders are made in accordance with the purpose of litigation as contained in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and to progress the litigation including as to the filing of an affidavit pursuant to r 6. 06(6) of the Rules and the issue of subpoena for the production of documents directed to the trustee of a trust – Application for Review otherwise dismissed.
FAMILY LAW – PRACTICE & PROCEDURE – relief from Harman undertaking – provision of documents in concluded parenting proceedings to Magistrates Court for use by parties in family violence proceedings.
FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Review partially successful – Property –Order made by Senior Judicial Registrar to sell the former matrimonial home stayed – Matter to progress to Case Management Hearing with prospect of an expedited final hearing.
FAMILY LAW – SECURITY FOR COSTS – Where the second and third respondents seek an order for costs and for security for costs as against the applicant wife subsequent to the final determination of the substantive proceedings – Where the wife opposes the application for security for costs – Where the second and third respondents are third parties to the marriage, were joined to the litigation by the wife, and where the wife was unsuccessful in her equitable claim affecting their interests – Where the second and third respondents enjoy a likelihood of success in obtaining a costs order in their favour – Where there is a risk that such costs order, if achieved, may not be able to be enforced – Where an order is made for security for costs in favour of the second and third respondents in a reduced quantum from that sought.
FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother seeking to restrain the father’s counsel from acting for him at final hearing – Where the mother alleges that she contacted the father’s counsel previously and sought to engage her and as a consequence she has knowledge of the matter – Where the father’s counsel submits that she was never engaged to act for the mother and does not recall the preliminary enquiries made by the mother – Where the mother has failed to identify the relevant confidential information with sufficient particularity in her affidavit – Application dismissed – Order for costs.
FAMILY LAW – COSTS – Where the third respondent seeks an order that the applicant pay its costs – Where the court is not of the opinion that there are circumstances justifying an order for costs.
FAMILY LAW – NULLITY DECLARATION – PRACTICE AND PROCEDURE – Applicant seeks dispensation of service and to proceed ex parte on an application for final orders – Where applicant alleges danger if respondent is served – Whether dispensing with service would be a denial of procedure fairness – Application to proceed ex parte dismissed.
FAMILY LAW – COSTS – Where the respondent sought a costs order against the applicant – Where the applicant was wholly unsuccessful – Where the respondent sought costs against the applicant on an indemnity basis or alternatively costs in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court is satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered on an indemnity basis.
FAMILY LAW – INTERIM PARENTING –Whether the father is permitted to take the child overseas for two weeks to see his family – Where country is a Hague Convention Country – Where mother opposes the visit -– Whether the child should change schools to a school that might make her happier–– Where the mother opposes the child changing school - Interim Orders made – Travel allowed but school not changed.
COSTS – Where parties required to read s 67 and 68 of the FCFCOA Act if contemplating an application for costs – Where costs pressed, parties required to particularise costs and how apportioned between the travel application and school application on affidavit.
FAMILY LAW – PARENTING – Interim consent orders – Where the father has been accused of sexually touching a close friend of one of the children, aged under 14 – Where the family report raises risk questions relating to coercive and controlling conduct on the part of the father – Importance of both protecting against risk and preserving the close relationship between the father and the children – Orders made for weekly supervised time between the father and the children.
FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – application by the first respondent for a freezing order against the second respondent – claim that matrimonial assets were used in the acquisition of three properties – insufficient evidence to support such contention – application dismissed.
FAMILY LAW – PROPERTY – Application in a Proceeding – Where the wife is seeking a part property distribution – Where the wife has previously received part property distributions – Where the husband opposes the wife’s application – Where the delay in judgment for the final hearing is substantially caused by the husband’s change of proposals at the ‘door of the court’ and his failure to adduce evidence – Where the husband has control of the vast majority of the asset pool – Where the wife has the primary care of four children and limited income – Where it is appropriate to exercise the power to order a further partial property distribution to the wife – orders made for further payment.
FAMILY LAW – PROPERTY – Urgent interim hearing – Where a caveat is lodged over real property – Where settlement cannot proceed without the caveat’s removal –– Orders made for the joinder of the caveator – Orders made for removal of the caveat – Costs ordered.
FAMILY LAW – PARENTING – Leave for mother to proceed undefended – Extensive history of family violence perpetrated by the father upon the mother and children – Unacceptable risk of harm to the children as a result of family violence perpetrated by the father – Children to have no contact with the father – Mother to have sole decision-making responsibility.
FAMILY LAW – PARENTING – Interim hearing – Where mother sought orders for change of residence – Where the mother sought orders for the child to live with her – Where father sought orders for child to live with and spend time with each parent in accordance with her wishes – Where child is currently living with the father despite orders previously made for child to live with mother – Where mother alleges child is at risk of neglect in father’s care – Where concerns that the child has been self-harming – Consideration of child’s views – Where child expressed wishes for no court orders – Orders made for ongoing therapeutic support for child – Orders made for specific issues report to be expanded to cover issue of child’s schooling – Orders made for the child to live with, spend time with and communicate with each parent in accordance with her wishes.
FAMILY LAW – PROPERTY – Application for property adjustment between the husband and wife – Where there is a judgment debt arising from the husbands misappropriation of company funds when he was a director of the intervenor – Where the asset pool of the husband and wife is insufficient to satisfy the judgment debt – Where the intervenor claims the wife’s application is an attempt to defeat the intervenor’s capacity to recovery the judgment debt from the husband – Consideration as to whether it is just and equitable to alter the property interests – Assessment of notional addback of funds – Rights of a creditor – Where the contributions are assessed in a proportion of 45/55 in favour of the wife – No adjustment for future needs – Where the assets in the overall pool will be adjusted and divided in the proportion of 40% to the wife and 60%/ to the husband/intervenor.
FAMILY LAW – DISCHARGE OR VARIATION OF INTERLOCUTORY INJUNCTIONS – Where interlocutory injunctions previously made restrained the husband from further dealing with, disposing of, encumbering or diminishing the value of two real properties – Where further injunctions subsequently made relating to other assets – Finding that there has been a material change of circumstances such as to warrant variation of earlier injunctions.
FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – Return application to Türkiye – Where there is an allegation of wrongful removal – Where the respondent is not the biological mother of the children – Where the father is the biological father of the children – Children conceived via surrogacy and born in Ukraine – Where surrogacy is illegal in Türkiye – Where the children’s birth certificates name the mother and father as the parents, thus conceal the linage of children – Regulatory exceptions to return raised by the mother – Concerns of family violence, possible criminal proceedings, and the mother’s potential lack of custodial rights in Türkiye – Finding that the children were habitually resident in Türkiye and all other jurisdictional facts– Grave risk of psychological harm and intolerable situation demonstrated – Discretion to return – Application dismissed
FAMILY LAW – PARENTING – Where the children live with the mother and spend time with the father – Where the children have spent limited overnight time with the father – Where there is a high level of animosity between the parties – Where neither party presents as a risk to the children’s safety – Where the scope of the dispute is narrow – Orders for the children to live with the mother and spend significant time with the father – Parties to have joint decision-making responsibility.
FAMILY LAW – PRACTICE AND PROCEDURE – No appearance by either party – Emails sent late to chambers requesting leave to appear by telephone – Requests for electronic attendance to be made in accordance with the Rules.
FAMILY LAW – STAY APPLICATION – Where the father seeks a stay of all but two final orders made pending appeal – Where the mother opposes the stay application – Where the Independent Children’s Lawyer consents to an order requiring her to meet with the children to be stayed – Where this order is stayed – Where the Court finds that granting the stay application is not in the children’s best interests – Where the Court finds that failing to grant the stay application will not render the father’s appeal nugatory – Where the Court grants the mother an extension time to comply with the final orders to discharge and refinance the mortgage over the matrimonial home into her sole name.
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