Judgments

FAMILY LAW – APPLICATION FOR STAY – EX TEMPORE – Where appeal has been filed – Where father has sole parental responsibility – Where there is no basis upon which to order a stay – Where there is a significant delay in filing an appeal and application for stay – Where final orders provided for a moratorium of time based on the single expert’s evidence to assist in transitioning to another household – Where delay in bringing the application is material – Where it would be adverse to the child’s interests to order a stay – Where granting stay would interrupt the child’s period of stability – Where applicant did not discharge the onus to grant a stay – Application dismissed.

FAMILY LAW – PROPERTY SETTLEMENT – contributions – short marriage of 3 years during which parties cohabitated for 2 years – one child born to parties.

PROPERTY SETTLEMENT – contributions – arranged marriage – identification of dowry – treatment of dowry – treatment of wedding expenses – treatment of costs of wife’s visas and immigration requirements from Country G to Australia.

PROPERTY SETTLEMENT – contributions – where wife’s contribution was almost exclusively as homemaker and parent and husband’s contribution was very largely financial – where contributions are assessed at 65/35 in favour of the husband – where s75(2) factors favour wife and uplift of 10 percent is ordered.

PROPERTY SETTLEMENT – Just and equitable – where parties both want to retain former matrimonial home – where they agree to sequential options to retain home – what informs court’s discretion to order which party gets first option – where exercise of power must be just and equitable but not punitive.

PROPERTY SETTLEMENT – credibility – where neither husband nor wife considered to be truthful witnesses – where wife lied on her application for a loan.

PRACTICE & PROCEDURE – witness – where witness from Country G not adequately prepared to give evidence remotely – list of guidelines for witnesses giving evidence remotely – where court appointed interpreters were not sufficiently skilled and disrupted hearing.

PRACTICE & PROCEDURE – Registrar – where direction to Registrar for reasons for decision to be referred to OPP (Vic) and to the professional standards body for investigation of actions of wife’s accountant.

COSTS – costs reserved.

FAMILY LAW – COSTS – costs awarded against practitioner – where the applicant brought an application against the respondent’s counsel for costs thrown away – where the final hearing was unable to proceed on its listed date – where the respondent’s counsel failed to appear when called – where the respondent’s counsel was not adequately prepared for the final hearing – where the respondent’s counsel submits costs can only be awarded against a solicitor and not counsel – consideration of s 117(2A) factors – costs order made.

FAMILY LAW – PRACTICE AND PROCEDURE – Objection to subpoena – Where the proceedings have been referred to arbitration – Where the wife issued a subpoena to the husband personally and in his capacity as the sole director of a corporation of which she was a shareholder and used to be employed – Where the categories of documents sought to be produced are not particularised and include thousands of emails – Where the wife did not identify the apparent relevance of the documents she sought to be produced – Where the sheer volume of documents sought to be produced amount to a fishing expedition – Objection to subpoena upheld – Order for costs to be paid upon the making of the arbitral award.

FAMILY LAW – PROPERTY – Where the husband seeks an order for 40 per cent of the asset pool in his favour – Where the wife contends it would not be just and equitable to make any order for adjustment of the existing property interests – Consideration of Stanford v Stanford [2012] HCA 52 – Where the marriage was of short duration – Where there is one child of the marriage – Where Consent Orders were made for the child to live with the wife and spend no time with the husband – Consideration of family violence – Where the main asset is the home – Where the wife owned the home with her first husband – Where most of the financial contributions made by the husband were repaid by the wife – Where the husband made insignificant non-financial contributions – Consideration of the lack of disclosure provided by the husband – Where the Court found the husband was an unreliable witness – Where the Court finds it is not just and equitable to alter the existing property interests – Consideration of Fielding & Nichol (2014) FLC 93-617 – Consideration of the alternative approach – No orders.

FAMILY LAW – PARENTING – Where there are allegations of family violence – Where the father seeks equal time with the children and the mother seeks three nights per fortnight – Where both parties seek sole parental responsibility – The Court finds the father has engaged in behaviour that is coercive and controlling towards the mother – Where the children have been impacted by the parties’ conflict and the family violence perpetrated by the father – Order for the mother to have sole parental responsibility – Order for the children to live with the mother and spend four nights per fortnight with the father – Order prohibiting the father from causing surveillance of the mother.

PROPERTY – Where the father seeks an 80:20 adjustment in his favour and the mother seeks a 65:35 adjustment in her favour – Where there was a relatively short marriage – Where the father made far greater initial contributions and greater post-separation contributions – Where the father has a greater earning capacity and the mother has greater future needs – Order for a 55:45 division of property in favour of the father.

FAMILY LAW – PARENTING – Dispute as to the progression of the children’s time with the father and what if any conditions should apply to that time because of the father’s medical condition – Final orders made in the best interests of the children.

FAMILY LAW – PROPERTY – Binding Financial Agreement – Wife contends that Financial Agreement is non-binding pursuant to non-compliance with s 90G(1)(b) of the Family Law Act 1975 (Cth) – Alternatively that the Financial Agreement be set aside pursuant to s 90K(1)(d) and or that Financial Agreement is void, voidable or unenforceable – or that wife’s signature and execution of document was obtained by unconscionable conduct of the husband.

FAMILY LAW – PARENTING – Interim Orders – Where the anterior question about the Court’s exercise of jurisdiction was previously determined – Commonwealth Personal Protection Measures – Where the father resides in Australia – Where the mother and children have resided in Country B since July 2023 – Where the children have not spent time or communicated with the father for 12 months – Where the father sought orders comprising alternate regimes, depending on whether the children live in Country B or Australia – Where the father’s preference is for the children to live in Australia – Where the mother sought orders requiring the children to live with her in Country B and provision for the children to communicate with the father and spend supervised time with him should he travel to Country B – Where family violence was allegedly committed by both parties – Where no factual findings concerning allegations of family violence are presently feasible – Where the mother has unstable psychological health – Where the mother has limited financial resources – Where the children’s best interests are promoted by them remaining in the mother’s residential care – Where forcing the mother to return to Australia could deleteriously affect her parenting capacity – Where the children have an emotional need to restore and maintain healthy relationships with the father – Ordered the parties retain parental responsibility for the children, however mother vested with sole decision-making authority in relation to the children’s education and place of residence – Ordered children live with mother, subject to certain geographical restraints – Ordered children spend time and communicate with the father, the terms of which vary depending on whether the children reside in Country B or Australia

FAMILY LAW – PROPERTY – Where parties previously agreed that the matrimonial assets should be divided 53.5 per cent in the wife’s favour – Where the wife sought add backs in the amount of $17,765,446 – Where the husband rejected the inclusion of any add backs save for paid legal fees and the wife’s share of paid single expert fees – Where the primary dispute related to the decrease in value of a sizeable share portfolio – Where the share portfolio decreased significantly in value from the date of separation to the final hearing – Wife sought to have the decrease in the value included in the balance sheet as an add back – Where there were allegations of non-disclosure and frustration of the single expert’s ability to explain the decrease in value of the share portfolio – Court found that the expert was able to adequately explain the decrease in value and arguments as to wastage or premature dissipation of assets with respect to the share portfolio were not supported – Other largesse on the part of the husband, including wedding expenses, payments directed to his new wife and interest incurred on unpaid taxation liabilities added back – Where Court not bound by the percentage split as agreed by the parties – Court held it is necessary for there to be an additional 2.5 per cent adjustment in favour of the wife, pursuant to s 79(4)(e) of the Family Law Act 1975 (Cth) – Property division of 56 per cent in favour of the wife and 44 per cent to the husband.

FAMILY LAW – PARENTING – application for sole parental responsibility by the father – children under the primary care of the mother – mother’s allegation of sexual abuse by the father – allegation not made out, orders made in accordance with the independent children’s lawyer proposal.

FAMILY LAW – PARENTING – Final orders – Where the eldest child does not wish to spend time with the father – Where it was accepted that no orders should be made with respect of eldest child, aged 13 – Orders made by consent for the mother to have sole parental responsibility – Where until August 2023 the youngest child, aged seven, was spending supervised by the father – Where the child has spent no time with the father after August 2023 – Where father concedes that he perpetrated family violence against the mother – Where it is accepted that the children should live with the mother – Where the father seeks a short period of supervised time progressing to significant unsupervised time with the younger child – Where mother seeks orders for no time – Where Independent Children’s Lawyer seeks interim orders to allow for the child to obtain an assessment for ADHD or Autism Spectrum Disorder and for the matter to be relisted in mid-2025 – Where the child has struggled with severe emotional dysregulation – Where the child’s presentation is likely multi-factorial but one factor is past trauma and the child’s response to the father – Where the child’s emotional regulation and ability to attend school significantly improved following the suspension of supervised time with the father – Where there are significant long term risks to the child if his emotional regulation regresses as a result of a reintroduction of time with the father – Where father lacks insight into the impact of his own behaviours and does not take responsibility for his past actions – Where the father is a contributing factor to the child’s dysregulation – Consideration of risk of harm – Held child is at risk of unacceptable harm that cannot be ameliorated by supervision – Where orders are made for the father to spend time with the eldest time in accordance with her wishes – Where orders are made for the father to spend no time with the youngest child.

FAMILY LAW – PROPERTY –- Division of property following a short marriage – Where the Court finds that contributions to the parties’ assets were largely made by the respondent – Where the Court takes into account the respondent’s poor health – Where there are mutual allegations of family violence – Where there is an absence of corroboratory evidence - Where there are no children to the marriage – Where it is just and equitable to make an order – Where there is no further adjustment pursuant to s 75(2) factors - Where the property will be divided 5 per cent to the applicant and 95 per cent to the respondent.

FAMILY LAW – PROPERTY – Interim Application – Where the husband seeks an order to set aside a financial agreement – Where the financial agreement was procured by the wife unconscionably – Where the financial agreement is set aside – Where the husband seeks to set aside the transfer of the spouses’ property to the second respondent – Where the transfer of the property cannot be set aside when the property has since been sold to an innocent third party at arm’s length – Where the second respondent submitted to the injunctions sought against her by the husband – Where the three respondents submitted to disclosure orders sought against them by the husband – Orders made.

FAMILY LAW – PRACTICE & PROCEDURE – Application to adduce further evidence – Expert evidence – Valuation evidence – Value of overseas property in which the applicant contends the respondent has a beneficial interest – Where the application is part-way through the trial – Where the evidence is non-compliant with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and inadmissible – Valuation evidence rejected – Revisiting of earlier evidentiary rulings – Leave granted to the applicant to adduce further lay evidence.

FAMILY LAW – PARENTING – Assessment of risk – Where there are serious allegations of family violence towards the mother and the children – Where the applicant father did not participate – Where the mother and the ICL’s proposed orders are substantively aligned – Risk of future family violence – Where the relationship between the father and the eldest child is ‘irrecoverable’ – Where extreme risk also warrants no time between the youngest child and the father – Mother to have sole parental responsibility – Children to live with the mother – No time or communication with the father – ICL discharged.

FAMILY LAW – CHILDREN – Magellan – interim defended hearing - where matter is set down for nine day final hearing in four months – where female child has disclosed sexual abuse by her father to her psychologist and the DFFH – where child has disclosed abuse to her sibling – where neither child is currently receiving mental health treatment or support – where previous orders provide for attendance at a psychologist and family therapist – where court is to determine the appropriate therapy and counselling for the children between now and final hearing – where it is ordered the psychologist who previously treated the daughter is to see both on an ongoing basis for non-reportable therapy.

CHILDREN – where there appears to have been no consideration by parties or the Court when arranging for therapy for children whether it is consistent with each individual child’s best interests that the therapy can be the subject of evidence – where when ordering that parents facilitate the attendance of a child at therapy or counselling, particularly where allegations of child abuse are made against a parent, it is incumbent on the Court and the practitioners to turn their minds to the purpose of the treatment and whether it is in the child’s best interests to allow the child’s participation, statements and views to be made evidence in the proceeding – where any parameters which it is decided should be set around the evidence (including confidentiality) should be clearly articulated in the Order.

CHILDREN – where Article 3(1) of the Convention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration – where there is a distinction between the best interests of a child and the best interest of parents in parenting litigation concerning that child.

EVIDENCE – Expert witnesses – where the father made an application for the family to attend a reportable “Therapeutic Inclusive Intervention Conferencing” program – a program that costs $16,500 – where the father argues there is evidentiary value in having additional experts – where there is a comprehensive Magellan report – where father does not establish the necessity of appointing additional expert witnesses – where updated Magellan Family Report ordered.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife filed an Application in a Proceeding seeking leave to extend the time for filing of affidavit material for trial – Where the husband seeks leave to extend the time for filing his Response to the wife’s Application in a Proceeding, and for the wife’s Application in a Proceeding to be dismissed – Where the husband has not demonstrated material prejudice should the indulgence of leave be afforded to the wife – Time for the wife to file affidavit material extended on the condition that she pay the intervener’s costs and 50 per cent of the costs of the husband – Time for the intervenor to file an affidavit in reply extended.

FAMILY LAW – PROPERTY SETTLEMENT – Where the husband contends the asset pool is negative and the wife contends that the asset pool, including numerous add backs, is positive – Where it is just and equitable to make an order – Where the single expert and adversarial expert valuers differ on whether the main business has goodwill and the proportion of tax losses that should be treated as an asset – Where the evidence of the single expert is preferred – Where the net assets of the group of entities which have a negative value are treated as a separate pool and retained by the husband – Where the husband will nevertheless retain ongoing income and benefits from the negative pool – Where the contributions are assessed in a proportion of 80/20 in favour of the husband – Where an appropriate adjustment in favour of the wife is 10 percent – Where the assets in the positive pool will be divided in the proportion 70/30 in favour of the husband.

FAMILY LAW – COSTS – Where an application for costs is made following substantive property proceedings – Where the applicant seeks indemnity costs – Where it is claimed that the applicant’s conduct bars her from relief – Where the existence of a sham offer is asserted – Where the offer was found to be reasonable – Where the refusal of the offer was unreasonable – Where the respondent’s conduct justifies indemnity costs for the substantive proceedings – Where a fixed costs order is made regarding the costs of the costs application.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks leave to adduce expert evidence other than by a single expert evidence pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where each of the three r 7.08 factors relied upon by the husband are considered individually and by aggregate in the exercise of discretion – Weighing the failure of the husband to engage with the processes prescribed by the Rules to address concerns as to an updated opinion – Where there are flaws in the opinion sought to be adduced with leave which reduce the value and cogency of that opinion – Consideration of prejudice in the shadow of the trial – Where it is acknowledged that the Rules are to be applied flexibly to meet the interests of justice – Where refusal of the husband’s application will not foreclose the single expert opinion from effective challenge – Application in a Proceeding dismissed – Costs reserved.

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Property – Where the husband seeks review of a selection of interim orders made by a senior judicial registrar (“the registrar”) concerning the treatment of six properties pending trial – Where the husband sought to rely upon an Amended Application for Review circulated late on the last business day before the hearing – Where it would be procedurally unfair to expect the wife to meet the amended application – Where the husband was confined to his initial Application for Review – Where the wife opposed the husband’s review application and was content to abide by the registrar’s orders – Where the husband does not presently hold a proprietary interest in the six properties – Where the wife should not be compelled to complete the purchases of the six properties – Where the contract to purchase one of the properties has been rescinded – Where the wife will be the sole registered proprietor of the properties if the purchases are completed – Where the wife intends to sell the properties and seeks to retain responsibility for the sales – Where there is no need for an order appointing the wife as trustee for sale of properties when she will be the exclusive owner – Where the husband seeks appointment of professional trustees to manage the sale of the properties due to his distrust of the wife – Where appointment of professional trustees is not a sensible solution – Where the wife is free to use the net proceeds of sale to retire debt and place any residue in trust with her solicitors – Where certain orders by the registrar are set aside – Where the husband’s application to substitute proposed orders for some of those set aside is dismissed – Husband’s stay application consensually dismissed – Wife’s costs application dismissed.

FAMILY LAW – PARENTING – Where orders made for the mother to have sole parental responsibility by consent – Where the mother alleges the father is an unacceptable risk of harm – Where the mother alleges the father perpetrated coercive and controlling family violence against her – Where the mother alleges the father perpetrated physical family violence against her – Where the mother alleges the father poses an unacceptable risk of harm due to his mental health – Where the father has not engaged in treatment of his mental health – Where the father alleges the mother poses a risk of harm due to her mental health – Where the father has not spent time with the children since separation – Consideration of Re Andrew principles – Where the father poses an unacceptable risk of harm – Orders made for the father to spend no time and have no communication with the children.

FAMILY LAW – PARENTING – Jurisdiction – Where the father makes an application for orders compelling the mother to return the children from Country B to Australia – Where Country B is not a signatory polity to the 1980 Convention on the Civil Aspects of International Child Abduction – Where the parties agree Australian parenting orders could not be automatically enforced in Country B – Where the Court considers the enforceability of Australian orders in Country B – Where the mother argues the Australian litigious process would be futile – Where the father contends Australian parenting orders would be influential in Country B – Where the Court finds the children are habitually resident in Australia – Where the jurisdiction of the Court will be exercised – Where the matter is listed for an interim hearing.

FAMILY LAW – CHILDREN – Interim parenting – Where the final hearing is imminent – Where the father seeks a change of residence for the child until the final hearing – Where the father seeks for the child to spend professionally supervised time with the mother – Where the parties struggle to coparent – Where orders were made by consent for a Family Law Watchlist order and a mutual restraint on applying for a passport for the child – Where the Court dismisses all other interim applications.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife sought and adjournment of the final hearing twice on the first day of trial – Where the final hearing had been adjourned previously – Where the husband has a serious health condition – Application refused.

FAMILY LAW – PROPERTY – Where the parties produced final consent orders to the Court prior to the evidence being heard – Final orders by consent found to be just and equitable to both parties.

FAMILY LAW – PRACTICE AND PROCEDURE – Application to amend final orders pursuant to the slip rule – Mother seeks orders extending the father’s liability to pay child support – Where the word “not” was omitted from the reasons but the final orders give effect to the intention expressed in the judgment as a whole – Application dismissed.

FAMILY LAW – PARENTING – Surrogacy arrangement – Undefended hearing – Where the applicant father seeks orders for parental responsibility for the children and passport orders – Where the respondent surrogate mother lives in Country B and has not sought any orders in the proceeding – Where there has been no objection by the respondent to any of the proposed orders of the applicant – Where the former joint applicant mother has passed away – The father have sole parental responsibility for the children – The children live with the father – The father be permitted to obtain passports for the children without the consent of the respondent.

FAMILY LAW – PRACTICE AND PROCECDURE – failure by subpoenaed non-party to produce documents – application to file late notice of objection – application dismissed.

PRACTICE AND PROCEDURE – costs application by the applicant against the subpoenaed party – subpoenaed party to pay costs of the day.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where husband issued six subpoenas – Where wife filed Notices of Objections to each subpoena – Where wife contended that subpoenas were excessively broad and did not serve a legitimate forensic purpose – Party issuing impugned subpoena must demonstrate that documents sought have “apparent relevance” to an issue in proceedings – Where subpoena must reasonably particularise the documents it calls for – Where subpoena is impermissibly broad if it requires recipient to make judgments about issues or relevance – Where the subpoenas require a third party to interpret imprecise definitions in order to determine what documents are called for – Consideration of r 6.30 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) requiring service on “any interested person” – No service as required – Objections to the subpoenas upheld and the subpoenas set aside.

FAMILY LAW – PARENTING – Where the mother alleges the father has sexually abused the children – Where the father has not spent time with the children since July 2022 – Where the paternal grandmother has been joined to the proceedings – Whether the father presents an unacceptable risk to the children – Where the mother has failed to comply with orders for supervised time and family therapy – Orders made for a gradual change of residence into the father’s care supported by the paternal grandmother and family therapy – Interim orders made for the children’s time with the mother.

FAMILY LAW – CHILDREN – Interim parenting – Where the final hearing is imminent – Where the father seeks a change of residence for the child until the final hearing – Where the father seeks for the child to spend professionally supervised time with the mother – Where the parties struggle to coparent – Where orders were made by consent for a Family Law Watchlist order and a mutual restraint on applying for a passport for the child – Where the Court dismisses all other interim applications.

FAMILY LAW – PARENTING – application for sole parental responsibility by the father – children under the primary care of the mother – mother’s allegation of sexual abuse by the father – allegation not made out, orders made in accordance with the independent children’s lawyer proposal.

FAMILY LAW – COSTS – costs awarded against practitioner – where the applicant brought an application against the respondent’s counsel for costs thrown away – where the final hearing was unable to proceed on its listed date – where the respondent’s counsel failed to appear when called – where the respondent’s counsel was not adequately prepared for the final hearing – where the respondent’s counsel submits costs can only be awarded against a solicitor and not counsel – consideration of s 117(2A) factors – costs order made.

FAMILY LAW – PARENTING – application for sole parental responsibility by the father – children under the primary care of the mother – mother’s allegation of sexual abuse by the father – allegation not made out, orders made in accordance with the independent children’s lawyer proposal.

FAMILY LAW – CHILDREN – Magellan – interim defended hearing - where matter is set down for nine day final hearing in four months – where female child has disclosed sexual abuse by her father to her psychologist and the DFFH – where child has disclosed abuse to her sibling – where neither child is currently receiving mental health treatment or support – where previous orders provide for attendance at a psychologist and family therapist – where court is to determine the appropriate therapy and counselling for the children between now and final hearing – where it is ordered the psychologist who previously treated the daughter is to see both on an ongoing basis for non-reportable therapy.

CHILDREN – where there appears to have been no consideration by parties or the Court when arranging for therapy for children whether it is consistent with each individual child’s best interests that the therapy can be the subject of evidence – where when ordering that parents facilitate the attendance of a child at therapy or counselling, particularly where allegations of child abuse are made against a parent, it is incumbent on the Court and the practitioners to turn their minds to the purpose of the treatment and whether it is in the child’s best interests to allow the child’s participation, statements and views to be made evidence in the proceeding – where any parameters which it is decided should be set around the evidence (including confidentiality) should be clearly articulated in the Order.

CHILDREN – where Article 3(1) of the Convention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration – where there is a distinction between the best interests of a child and the best interest of parents in parenting litigation concerning that child.

EVIDENCE – Expert witnesses – where the father made an application for the family to attend a reportable “Therapeutic Inclusive Intervention Conferencing” program – a program that costs $16,500 – where the father argues there is evidentiary value in having additional experts – where there is a comprehensive Magellan report – where father does not establish the necessity of appointing additional expert witnesses – where updated Magellan Family Report ordered.

FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Consideration of family violence – Allegations of sexual abuse – Where the wife seeks a finding that the children were sexually abused by the husband – Where the Court finds that sexual abuse could have only occurred at the paternal grandparents’ home following supervised time – Consideration of the reliability of the children’s disclosures – Where the children have been subjected to repeated investigations, assessments, interviews and discussions – Where the wife used every opportunity to notify and raise allegations – Where the Court finds the husband did not sexually abuse the children – Where the wife’s beliefs are genuine nonetheless without foundation – Consideration of unacceptable risk of harm – Where the evidence does not support a finding of the husband being an unacceptable risk of harm – Consideration of meaningful relationship – Where the children have not spent time with the husband for two years – Where the children fulsomely engaged with the husband during supervised visits – Where the wife asserts that she will support a relationship if no finding of sexual abuse – Where the Court finds that the children would benefit from a meaningful relationship with the husband – Where the ICL promotes significant time with the children and the husband – Orders made for a graduated increase in time with the husband.

FAMILY LAW – PROPERTY – Modest asset pool – Where the parties’ proposals are 10 per cent apart – Consideration of contributions – Where the parties’ took on traditional roles within the marriage – Contributions considered equal – Consideration of future needs factors – Where the husband has a greater income earning capacity – Where the wife is the primary carer – Consideration of a child’s significant medical needs – Adjustment made in the wife’s favour – Consideration of addbacks – Where the legal fees incurred are disproportionate to the issues – Where the Court declines to addback legal fees – Orders made for the interim property settlement funds to be added back – Orders.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim and lump sum – where the husband concedes that the wife is entitled to spousal maintenance – Consideration of quantum of spousal maintenance – Assessment of reasonable expenses – Orders made for a lump sum payment.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the final hearing to proceed on an undefended basis as against the first respondent – Where the first respondent’s conduct and failure to comply with orders justifies the final hearing proceeding on an undefended basis as against the first respondent.

FAMILY LAW – PROPERTY – Long marriage with periods of separation – Kennon adjustment considered – Two pools approach – Differential contribution adjustment.

FAMILY LAW – PROPERTY – Consideration of s 90SN of the Family Law Act 1975 (Cth) – where applicant seeks to set aside final orders made 10 August 2018 on the basis of s 90SN(1)(a), (b) or (c) – orders made by Berman J on 10 August 2018 be set aside – trial directions made in relation to the substantive proceedings.

FAMILY LAW – PRACTICE AND PROCEDURE – Expert evidence – Assertion by the applicant that images of text messages annexed to affidavits in the respondent’s case are fake – Application for the appointment of a single expert to analyse the authenticity or otherwise of the images of text messages – Where a single expert is necessary for the issue to be resolved – Orders for the parties to appoint a single expert and prepare a joint letter of instruction – Costs reserved.

FAMILY LAW – PARENTING – Whether the father has sexual abused the child and/or exposed her to the manufacture, supply and use of illicit substances – Whether the mother has coached the child to make those allegations – Where both parties allege the other poses an unacceptable risk of harm to the child – Where the mother and Independent Children’s Lawyer propose the child spend no time and have no communications with the father – Where the father seeks a change of residence, counselling and a short moratorium on the child’s time with the mother, or, that he have supervised time with the child and on either proposal, the child’s time culminate in a week about arrangement – Orders made for the child to spend no time and have no communication with the father.

FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where the children have not spent time with the father in three years – Where the father seeks orders for equal shared care – Where the mother proposes the children spend time with the father in accordance with their wishes – Consideration of risk – Where there is no basis for the children to have a total opposition towards the father – Where the Court finds the mother does not have any capacity or desire to support the children’s relationship with the father – Consideration of best interests – Where the Court finds it unlikely that the children would comply with orders – Where orders for time spending would place the children at a high level of emotional and psychological risk – Consideration of children’s wishes – Where the children lack insight – Where the ambivalence of the children towards the father is a direct result of the parties’ conflict – Orders made for the children to spend time with father in accordance with their wishes.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the Applicant sought leave to tender reports and rely upon evidence from a number of expert witnesses in respect of the valuation of properties in the parties’ property pool – Where the Respondent sought that the Application be dismissed – Where there was a significant difference in value of the properties and different methodology was used – Where it is ordered that leave be granted to the Applicant to rely upon additional expert evidence.

FAMILY LAW – PARENTING – Where the mother seeks to reconsider parenting orders under s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) – Where the father opposes this – Where the Court considers the nature and scope of s 65DAAA – Where s 65DAAA is materially different to the previous common law position – Where the Court declines to reconsider the parenting orders – Where the parties disagree on the utility of additional expert evidence – Where no further evidence is required.

PROCEDURE – Where the father seeks to dismiss the Independent Children’s Lawyer – Where the mother and the Independent Children’s Lawyer oppose this – Where the Court finds that the Independent Children’s Lawyer has fulfilled their role – Where the Independent Children’s Lawyer remains appointed.

INJUNCTION – Where the father alleges that the children’s treating psychologist is biased against him – Where the father seeks a s 68B injunction against the mother from causing the children to receive therapy from the psychologist – Where the Court finds that the psychologist had acted outside of her role and caused additional conflict – Where the Court restrains the mother under s 68B of the Act.

FAMILY LAW – NULLITY – Where the applicant asserts the marriage is null and void – Where the single expert concluded the applicant was not capable of understanding the nature and effect of the marriage – Marriage is null and void – Decree of nullity made.

COSTS – Where the applicant seeks costs against the respondent – No costs awarded against the respondent.

FAMILY LAW – CHILDREN – Whether the father or paternal grandmother should have time and/or communication with the child – Where the father has an extensive criminal history – Where the father poses an unacceptable risk of harm to the child that cannot be ameliorated by supervision – Where even if the paternal grandmother was minded to restrain the father from coming into contact with the child if he were in her care, she likely not have the physical or mental strength to withstand any pressure brought to bear upon her by the father to see the child – Where the potential benefit of the child spending time with the paternal grandmother is posed against the risk of exposure of the child to conflict and/or to the father – Where the father will play no role in the child’s life and as such the mother should have sole decision-making power – Where the child will live with the mother and the father is restrained from spending time or communicating with the child – Where the paternal grandmother will have monthly electronic communication with the child and be at liberty to send a gift and/or card and/or letter with a photograph once per month.

FAMILY LAW – COSTS – Where the third party objector sought a costs order against the wife in relation to a subpoena – Where both costs of compliance and legal costs are sought – Where the third party objector sought costs against the wife 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 not satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered in a fixed sum of $1,320.

FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking – Where the parties were engaged in parenting proceedings in which judgment was delivered and final orders made in 2019 – Where each of the single forensic psychologist expert’s report and the mother’s trial affidavit that the father seeks leave to utilise were both adduced in evidence at the trial – Where the father seeks to use of these documents and the non-anonymised reasons for judgment from in his response to the Office of the Children’s Guardian, or any review process, or any appeal proceedings, relating to his holding of a Working With Children Check – Where the mother opposes the relief sought and seeks an injunction restraining the father from providing a copy of her trial affidavit to any third party – Where the father makes reckless submissions – Where one purpose of obtaining leave to use the documents sought is to reengineer the findings of fact contained in the 2019 judgment – Where the evidentiary foundations relied upon by the father to support leave are deficient – Where the father does not engage with any consideration as to the interests of the children – Application dismissed save as to leave granted for the father to use the anonymised published reasons for specific purposes – Orders made as to the filing of material for costs.

FAMILY LAW – PARENTING – Where final parenting orders made by consent – Where father sought leave to amend final orders sought to include orders for the parties to attend family therapy in the event of dispute – Where the mother opposed the order to attend family therapy – Where orders made by consent for the mother to hold sole responsibility for major long term decision making – Where it is not in the children’s best interests to make orders for family therapy – Application refused.