Judgments

Division 1 - Appellate division

Judgment delivery date:

FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from final property settlement orders – Procedural fairness – Whether the primary judge failed to afford the husband procedural fairness – Where the husband failed to comply with orders to file affidavit material – Where the final hearing proceeded on an undefended basis – Whether the primary judge failed to consider relevant matters – Where there was no evidence of the purported matters before the primary judge – Whether there was a miscarriage of justice – Where no ground of appeal is successful – Appeal dismissed – Orders made for the filing of written submissions on costs.

Judgment delivery date:

FAMILY LAW – APPLICATION IN AN APPEAL – Leave to appeal – Vexatious proceedings – Where the applicant seeks leave to appeal against the dismissal of an application to review the decision of a Senior Judicial Registrar – Where the applicant failed to comply, or substantially comply, with s 102QE(3)(b) of the Family Law Act 1975 (Cth) – Application dismissed.

Judgment delivery date:

FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the applicant seeks review of the decision of the appeal registrar summarily dismissing the appeal – Where the applicant appeals from orders joining him as a party to the original proceedings between the spouses – Where appeals from orders joining a party to proceedings are prohibited by s 26(2)(b)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the applicant contends the primary judge fell into jurisdictional error – Where no jurisdictional fact needed to be established as an intrinsic component of the interlocutory decision about joining the applicant to the substantive matrimonial proceeding – Where the appeal has no reasonable prospects of success – Application dismissed – Costs ordered in favour of the respondent on a party/party basis in a fixed amount.

Judgment delivery date:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal from orders dismissing the appellant husband’s applications to set aside three judgments on the basis of fraud and for leave to seek a variation in a child support assessment out of time – Where the wife is deceased and her estate is the first respondent to the appeal – Whether leave to appeal is required – Primary judge exercised jurisdiction pursuant to s 111 of the Child Support (Assessment) Act 1989 (Cth) – An order dismissing application to set aside a judgment is interlocutory – Leave to appeal required – Appellant failed to demonstrate the wife’s representations of her assets were fraudulent – Materiality of the fraud to the decision – Appellant failed to demonstrate sufficient doubt and substantial injustice – Leave to appeal refused – Appeal dismissed – Appellant to pay the first and second respondents’ costs in fixed sum.

APPLICATIONS IN AN APPEAL – Adduce further evidence – Written and oral applications advanced – Where the evidence would not have affected the outcome of the appeal – Majority of evidence available at trial – No new cogent evidence – Applications dismissed.

Judgment delivery date:

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders changing the child’s residence from the mother to the paternal aunt – Where the orders were the product of judicial review of orders made by a senior judicial registrar – Where the object of the father’s review application was to expand the time the child spends with him – Whether the primary judge denied the mother procedural fairness by changing the child’s residence – Where the review hearing by the primary judge entailed an original hearing of the competing applications before the registrar, including the contest over the child’s residence – Where the mother was accorded procedural fairness – Where the mother’s complaint the primary judge erred by failing to follow the guideline decision of Goode & Goode (2006) FLC 93-286 is rejected – Where the primary judge considered the relevant factors under s 60CC of the Family Law Act 1975 (Cth) – Appeal dismissed – Where no application for costs was made – No order as to costs.

Judgment delivery date:

FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from final orders made under Part VIII of the Family Law Act 1975 – Where the wife’s grounds of appeal allege error by the manner in which the primary judge evaluated single expert opinion evidence – Where the primary judge was entitled to rely upon unchallenged expert opinion evidence – Appeal dismissed – Where the appeal was wholly unsuccessful – Where the respondent sought costs of the appeal – Appellant to pay the respondent’s costs of the appeal in a fixed sum.

Judgment delivery date:

FAMILY LAW – APPEAL – PROPERTY AND SPOUSAL MAINTENANCE – Appeal from orders made under Part VIII of the Family Law Act 1975 (Cth) – Where the primary judge ordered, inter alia, the appellant husband to pay to the respondent wife three years’ worth of arrears of spousal maintenance – Where there was no operative spousal maintenance order – Where interim orders were made in November 2011 for weekly payments of spousal maintenance – Where the financial cause between the parties was dismissed in March 2014 – Where the proceedings were re-commenced in July 2014 but the interim order for spousal maintenance was not revived – Where the primary judge was in error to assume the interim spousal maintenance order subsisted without interruption from November 2011 until the trial in February 2023 – Where the respondent conceded the erroneous calculation – Where the parties agreed the error could be rectified by variation of the appealed orders – Where the parties did not address the arithmetical error made by the primary judge in calculating the net value of the parties’ assets – Where the sum payable by the appellant to the respondent is corrected as permitted by s 36(1)(a) and s 36(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the respondent submitted the re-calculated sum should be increased by adding accrued interest – Where that submission is rejected – Where there are no circumstances to justify departure from the ordinary rule that the parties should bear their own costs of the appeal – No order as to costs – Appeal allowed.

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FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge erred in adopting a two pool approach to the adjustment of the parties’ property in treating the parties’ superannuation as separate to the remaining assets – Where both parties advanced a one pool approach – Inadequate reasons for departing from a one pool approach – Appeal allowed – Re-exercise of discretion – Consideration of contributions and future needs – Finding of 65 per cent adjustment in favour of the appellant as just and equitable – 65 per cent to the appellant and 35 per cent to the respondent adjustment to apply to the totality of the parties’ property, including superannuation – Written submissions as to costs.

Judgment delivery date:

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders – Where the appellant is self-represented – Where the grounds of appeal do not expose any complaint of appealable error – Where the appeal enjoys no reasonable prospect of success in its current form – Where the appellant has 14 days within which to file an Amended Notice of Appeal in default of which the appeal is summarily dismissed – Orders made.

Judgment delivery date:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PARENTING – Interim parenting orders – Appeal against orders for sole parental responsibility and injunctions – No error identified – Where insufficient doubt attends the orders sought to be challenged – Where no substantial injustice would result if leave is not granted – Application for leave to appeal dismissed.

Judgment delivery date:

FAMILY LAW – APPEAL – Relocation – Where the primary judge made orders permitting the respondent to relocate to Country D with the child – Where the appellant contended that the primary judge did not follow the statutory requirements mandated by s 65DAA of the Family Law Act 1975 (Cth) – Where the primary judge delivered reasons after the first hearing but did not make any orders – Where the primary judge’s reasons following the second hearing comprise four parts, with Part II being the reasons delivered after the first hearing – Where it would have been preferable for the reasons to systematically have addressed the evidence through the prism of the statutory considerations – Where the primary judge made an order for equal shared parental responsibility but did not thereafter consider s 65DAA – Where the primary judge did not consider the appellant’s proposal on its merits – Where the primary judge treated the respondent’s application for relocation as the primary issue for determination instead of evaluating the competing proposals – Error established – Appeal allowed – Matter remitted for rehearing – Costs certificates issued to both parties.

Judgment delivery date:

FAMILY LAW – APPEAL – Application in an Appeal – Reinstatement – Where the appeal was deemed abandoned due to a failure to file the draft appeal index in time – Where the appellant’s solicitor filed an affidavit stating that he inadvertently mistook the date for filing – Where the need for reinstatement is through no fault of the appellant – Where the Notice of Appeal needs amendment and it cannot be said that it is without merit – Where there is more substantial prejudice to the appellant if the appeal is not reinstated – Appeal reinstated – Appellant to file draft appeal index with 72 hours.

Judgment delivery date:

FAMILY LAW – APPEAL – Costs – Where the primary judge ordered the appellant husband to pay the respondent wife’s costs in property settlement proceedings – Where the appellant complains the primary judge denied him of natural justice and discretion miscarried – Where the appellant’s complaints are baseless – Where the appellant’s complaint of inadequate reasons is baseless – Where the primary judge regularly exercised discretion under s 117 of the Family Law Act 1975 (Cth) – Where the costs order against the appellant was not incongruent with the primary judge’s findings or established legal principles – Where the appeal was wholly unsuccessful – Where the respondent sought costs of the appeal – Appellant to pay the respondent’s costs of the appeal in a fixed amount.

Judgment delivery date:

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against the primary judge appointing a case guardian – Where the ground of appeal does not comply with the Federal Circuit and Family Court of Australia (Rules) 2021 (Cth) r 13.02 – Where a ground of appeal is against an interlocutory order – No leave sought by appellant – Ground abandoned.

APPEAL - PROPERTY – Estoppel – Where the parties entered into a Deed of Settlement following separation – Error by the primary judge in refusing to make a property adjustment order by reason of estoppel – Whether error was material – Error by primary judge did not result in a miscarriage of justice – Where primary judge found it was not just and equitable to make a property adjustment order – no error in applying principles in Stanford v Stanford (2012) 247 CLR 108– Evidentiary basis for the primary judge’s conclusion not squarely addressed by appellant – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.

Judgment delivery date:

FAMILY LAW – APPEAL – PROPERTY – Appeal from order requiring husband to pay the wife a lump sum amount to acquire her interest in the parties’ company – Whether the primary judge considered the husband’s capacity to pay the lump sum amount – Whether adequate reasons were given for rejecting husband’s proposal for sale of the company – Multiple judgments delivered – Inappropriateness of delegating responsibility for drafting the nature and form of final orders to the parties – Husband’s capacity to pay was a fundamental and obvious issue requiring consideration – Error established – Matter remitted – No order as to costs as both parties well resourced.

Division 1 - First instance

Judgment delivery date:

FAMILY LAW – PARENTING – application by wife for parenting orders that husband spend no time-with or communicate with the children – serious allegations of family violence – allegations of sexual abuse – allegations of cruelty to animals in the presence of the children – orders that children live with the wife – orders that wife have sole parental responsibility for the children – orders for the personal protection of the wife and the children.

FAMILY LAW - PROPERTY – application by wife for property settlement – marriage of 13 years - allegations of family violence perpetrated by the husband - Kennon v Kennon considerations – section 75(2) factors – where it is just and equitable to adjust the parties’ net property interests as to 80 per cent to the wife and 20 per cent to the husband.

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FAMILY LAW – PROPERTY – Vexatious litigant –Application for leave to institute Proceedings – Proposed Proceedings for a Stay of Orders – Application for leave to institute Proceedings dismissed.

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FAMILY LAW – CHILDREN – Interim hearing –14 year old child has unilaterally removed herself from the care of the father – child wants to live with mother – mother facing criminal charges re child exploitation material of child – inappropriate for child to live with mother – mother placed child with maternal grandmother – maternal grandmother relatively safe option – maternal grandmother traveling overseas in May 2024 – further evidence required – “interim interim” orders until further interim hearing in one month.

FAMILY LAW – INTERIM ORDERS – child to live with the maternal grandmother – Child may spend time with the father – Child may spend supervised time with the mother.

Judgment delivery date:

FAMILY LAW – PARENTING – Where the mother alleges the father poses an unacceptable risk of harm – Where orders sought for the father to spend no time with the children – Where it is alleged the father sexually abused the child – Where the father has perpetrated family violence against the mother –Where the child has spent no time with the father since separation – Whether there is a meaningful relationship between the father and the child – Whether the mother’s mental fragility poses an unacceptable risk of harm if the child spends time with the father. Where unacceptable risk is found – Whether the mother can cope with the child spending time with the father – Whether the risk can be ameliorated by supervision – Where orders made for the father to spend no time – Where orders made for the mother to hold sole parental responsibility.

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FAMILY LAW – APPLICATION FOR REVIEW – Where the wife seeks to review the failure of a Senior Judicial Registrar to determine three Notices of Objection to subpoena subsequent to reserving judgment on the issue – Whether the review is competent – Consideration of ch 14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in circumstances where no decision or order has been made by a delegated judicial officer – Application for Review dismissed – Where no prejudice is identified as to the objection being heard afresh – Orders made as to listing for hearing.

Judgment delivery date:

FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer following completion of final hearing and delivery of final judgment – Where the parties oppose the application by the Independent Children’s Lawyer – Where the final orders were made substantially in accordance with the orders proposed by the Independent Children’s Lawyer – Where the parties conduct in the proceedings caused delay – Orders made for the parties to pay the costs of the Independent Children’s Lawyer in a fixed sum.

Judgment delivery date:

FAMILY LAW – PRACTICE AND PROCEDURE – where matter is unsatisfactorily prepared – where application made for applicant to attend final hearing electronically – where both parties require interpreters – where interpreter for the applicant was not able to provide simultaneous interpretation which delayed proceedings - where both parties are unrepresented – where final hearing of the matter cannot proceed reasonably or fairly by electronic means

Judgment delivery date:

FAMILY LAW – COSTS – Where the applicant and respondent are in dispute as to having been in a de facto relationship – Where the applicant filed an Application in a Proceeding seeking an anti-suit injunction as to proceedings commenced by the respondent in the Supreme Court of NSW in which the applicant was not a party, and seeking the Supreme Court transfer its proceeding to this Court – Where the applicant withdrew that Application on his own motion – Where the respondent makes an application for costs – Costs ordered in fixed sum.

Judgment delivery date:

FAMILY LAW – PROPERTY – Interim application – Where the wife seeks orders for a company to be wound up pursuant to s 461(k) of the Corporations Act 2001 (Cth) – Where the company appears to be insolvent – Where the husband opposes the orders and seeks for the application to be dismissed – Where the original jurisdiction expressly conferred upon Division 1 is invoked – Consideration of the relevant legal principles and Rules –Orders made for the winding up.

Judgment delivery date:

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks to pose questions to a single expert witness pursuant to r 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the wife objects to the majority of the questions on the basis – Consideration as to the scope of the rule and the terms of the instructions provided to the expert – Questions objected to by the wife disallowed.

Judgment delivery date:

FAMILY LAW – THRESHOLD – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant alleges the parties were in a de facto relationship between 1988 and November 2021 – Where the respondent alleges the relationship ended in 1997 or 2000 – Where the applicant bears the burden of proving the existence of a de facto relationship as defined by s 4AA of the Family Law Act 1975 (Cth) – Where the respondent spent most of each year outside of Australia – Where the parties had a relationship as a couple living together on a genuine domestic basis – Where the Court finds a de facto relationship existed between the parties.

FAMILY LAW – PRACTICE AND PROCEDURE – Oral application for leave to re-open – Factors informing the exercise of discretion – Oral application dismissed.

Judgment delivery date:

FAMILY LAW – CHILDREN – Final parenting orders – Mutual allegations of family violence – Parties’ relationship was toxic and volatile – Not satisfied the father poses a risk of harm to the children – Objective evidence of the mother’s dysregulated behaviour including her behaviour at hearing – General consensus that the mother has a psychological disorder marked by emotional dysregulation – Final hearing was adjourned for two months with consent orders for family therapy and supervised time with the mother – Family therapy did not proceed – Final hearing was adjourned for a further 12 months with consent orders for the mother to undertake behaviour behaviour therapy  – Mother did not seek therapy and consequently did not spend time with the children – Children would benefit from meaningful relationship with both parents if that could be safely achieved – Mother poses an unacceptable risk of psychological and emotional harm to the children – Best interests of the children require that they live with the father – Father to have sole parental responsibility for the children.

FAMILY LAW - PRACTICE AND PROCEDURE – Application for further adjournment following 12 month adjournment and additional three month adjournment – Where the mother became self-represented and had been refused legal aid – Appeal against refusal of legal aid was unsuccessful – Mother asserted investigations were ongoing but provided no supporting documents – Proceedings on foot for four years – Further delay not in the best interests of the children – Adjournment refused.

FAMILY LAW - PRACTICE AND PROCEDURE – Application for removal of the father’s solicitor – Solicitor emailed court documents to an email address obtained from the mother’s workplace’s website – Solicitor communicated unprofessionally with court staff on one occasion – No basis for finding there was any other communication with court staff as suggested by the mother – Inherent jurisdiction of the court over its officers is exceptional in nature – Solicitor’s removal not justified – Application refused.

FAMILY LAW - PRACTICE AND PROCEDURE – Mother objected to three exhibits tendered by the father on the basis they were illegally or improperly obtained – Exhibits are video and audio recordings taken by the father – Consideration of the Surveillance Devices Act 2007 (NSW) and the Evidence Act 1995 (NSW) – Significant purpose of the recordings was evidence gathering – Recordings were not reasonably necessary for the protection of the father’s lawful rights – Recordings bear upon significant issues in the proceedings – Desirability of admitting the recordings outweighed undesirability of admitting them.

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FAMILY LAW – JURISDICTION – Pseudolegal argument – Where the applicant alleges assents to legislation and appointments by the sovereign are invalid – Where the applicant alleges that wrong seal/signet was used by sovereign – Application dismissed.

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FAMILY LAW – PRACTICE AND PROCEDURE – Costs – Where husband seeks orders for costs incurred throughout the entirety of proceedings – Circumstances justifying order – Consideration of whether the order would place the mother in considerable financial hardship – Consideration of s 117 of the Family Law Act 1975 (Cth) – Order for cost made.

Judgment delivery date:

FAMILY LAW – CHILDREN – Interim Orders - Paternal grandfather and paternal cousin contacting child - attempting to influence child in favour of the father – causing child emotional distress – where child has recorded these conversations – where child has raised the issue with the Independent Childrens Lawyer.

FAMILY LAW – ORDERS  – 68B and 114 Injunction against paternal grandfather, paternal cousin and father from contacting child directly or indirectly.

Judgment delivery date:

FAMILY LAW – COSTS – where the mother unilaterally relocated the child from Country B to Australia – where the child ordinarily resided in Country B with the respondent father – where the mother instituted proceedings in the Federal Circuit and Family Court of Australia (Division 1) seeking orders that the child remain in Australia and live with the mother – where the father sought orders providing for the child to return to Country B with him – where orders made by consent that the child return with the father to Country B – where the father seeks a costs order against the mother – where the father submits the mother has been wholly unsuccessful in her application – where the father submits the mother’s conduct warrants a costs order against her – orders made for mother to pay father’s costs.

Judgment delivery date:

FAMILY LAW – CHILDREN – parental responsibility – where the children are aged 17, 13 and 11 – where both parents seek sole parental responsibility – where in the alternative, the father seeks equal shared parental responsibility – where the father seeks the family engage in intensive family therapy – where there have been proceedings in Country H and state Courts in Australia – where there are significant allegations of family violence by both parties – where the father alleges the mother suffers from a mental illness – where the father alleges the mother has alienated the children – where the children have not spent time with the father since November 2020 – where the expert accepts the children’s fear of the father is genuine –ordered mother have sole parental responsibility – ordered no time spent with father – father be permitted to communicate with children via text messages and cards.

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FAMILY LAW – COSTS – Where the Court is not satisfied that there are circumstances justifying the making of an order for costs – Application dismissed.

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FAMILY LAW – PROPERTY – De facto relationship –Where relationship was approximately five years – Where parties resided in separate countries for the majority of the relationship – Where the initial contributions of the parties similar apart from substantial retained earnings in partnership of father’s business – Where retained earnings treated as a financial resource in assessment of initial contributions – Where the father made the greater financial contribution during the relationship – Where the mother made the greater parenting contribution – Where the father’s financial contribution not outweighed by the mother’s almost sole care of the child – Where loans to the mother’s parents included as liabilities on the balance sheet – Where parties made numerous unsuccessful arguments as to add backs – Contributions assessed as 42 per cent to the mother and 58 per cent to the father – 1 per cent adjustment pursuant to s 90SF(3) of the Family Law Act 1975 (Cth) – Where retained earnings treated as chose in action and considered under s 90SF – Orders for father to discharge the mortgage on and transfer his interest in the jointly held property – Adjustment payment to the mother.

FAMILY LAW - PARENTING – One child aged nearly nine years – Where child lives in Australia with the mother – Where the father resides in the United Kingdom – Where the child has spent limited time with the father – Where the child has a loving relationship with the father – Where father alleged the mother had engaged in denigration of him and the child’s step-mother – Where the mother has supported the father’s relationship with the child – Where debate centred on when time with the father in the United Kingdom should commence and the duration of that time – Where the father sought orders that time commence in June 2024 – Where the evidence favoured a more cautious approach to the child’s time with the father in the United Kingdom – Orders made for time to commence in 2025 and for the mother to accompany the child for the first two trips – Where the father sought to argue that the mother would use sole parental responsibility as a means to exert control over him – Where no such finding is available on the evidence – Where parties are unable to communicate effectively – Presumption of equal shared parental responsibility rebutted – Order made for the mother to have sole parental responsibility – Orders made for holiday time with the father.

Judgment delivery date:

FAMILY LAW –  PRACTICE AND PROCEDURE – Review of a decision - Applicant seeks review of an order by Senior Judicial Registrar dismissing an application for litigation funding against a third party company – Application granted.

FAMILY LAW – PRACTICE AND PROCEDURE – Application that the third party company be joined as a third respondent to the proceedings for litigation funding – Application granted.

Judgment delivery date:

FAMILY LAW – APPLICATION FOR REVIEW – Interim property orders – Where the applicant seeks to be relieved of the obligation to make mortgage repayments pursuant to an order and proposes that the mortgage arrears accrue pending the ordered sale of the property – Where the default interest is significant and the respondent asserts the applicant has alternate sources of capital to meet the mortgage payments – Where there is insufficient evidence that the order that the applicant be responsible for mortgage payments should be discharged – Amounts to be paid upon sale of the property – Where the applicant is unable to satisfy that the monies sought to be paid upon sale of the property are presently repayable – Where the respondent’s case for final relief claims that some of the liabilities may fall to be borne by the applicant alone – Where orders for the payment of those monies upon sale of the property may defeat the respondent’s claim for final relief.

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FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant did not appear – Where this is in the context of egregious non-compliance by the applicant – Hearing to continue on an undefended basis.

Judgment delivery date:

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Objection to subpoena – Where the wife caused subpoena to be issued for the purposes of the final trial as to the adjustment of property between she and the husband – Where the recipients object on the basis of absence of apparent relevance and oppression – Where the wife establishes apparent relevance – Where no oppression is made out – Notice of Objection to subpoena dismissed.

Judgment delivery date:

FAMILY LAW – PRACTICE AND PROCEDURE – vacation of final hearing dates close to trial – child court expert strongly recommends against placement with either parent – paternal half-sibling and her husband joined as second respondents – second respondents assessed as suitable by the child court expert – second respondents withdraw for personal reasons - request for the Department of Communities and Justice to intervene – vacate final hearing.

Judgment delivery date:

FAMILY LAW – SPOUSAL MAINTENANCE – CHILD SUPPORT DEPARTURE – The wife seeks an increase in spousal maintenance – Where it has been 13 years since separation – The wife has long standing health issues – The husband seeks that his child support arrears be waived – The wife seeks that the administrative assessment for her to pay child support be reduced to nil – It is ordered that the husband is to pay the wife $695 per week for spousal maintenance for a period of five years – The Court declines to make any orders in relation to a child support departure.

Judgment delivery date:

FAMILY LAW – PROPERTY – Final orders – Where parenting matters settled on day three of the final hearing – Allegations of family violence – Where the wife seeks an opportunity to retain the former matrimonial home – Discussion of housing needs for a family – s 75(2) factors – It is determined that the matrimonial pool is to be divided 52:48 in the wife’s favour – Consideration of whether a superannuation splitting order should be made – It is ordered that the husband is to pay the wife $450,000 and the remainder as a superannuation splitting order.

Judgment delivery date:

FAMILY LAW – INTERIM PROPERTY – Where parties agreed on sale of unit in which husband resides – Where husband seeks sale of former matrimonial home too, were wife and children reside – Where both parties sought interim distributions of funds – Where trial in six months time ­– Orders made for sale of unit and distribution of the proceeds.

Judgment delivery date:

FAMILY LAW – PROPERTY – Assessment of contributions – Where the parties had a relationship of 14 years – Where there are no children of the relationship – Where the husband has three children from a prior relationship who lived with the parties for half the time – Where the initial contributions of the husband exceeded the wife’s – Where during the relationship, both parties used their best endeavours and applied their energies toward the relationship – Where interests that the husband had in various corporate entities at the commencement of the relationship provided significant financial benefits to the parties – Where after separation, the companies ultimately failed – Where the wife submitted that the Court should consider this when weighing contributions – Where there was no suggestion put to the husband that he was reckless or acting in other than what he perceived to be in the best interests of the companies – Where this is a matter of history rather than fault or conduct – Where the failure of the companies did not diminish the husband’s contributions.

FAMILY LAW - PROPERTY – Addbacks – Paid legal fees – Where the husband contended that the Court should exclude his paid legal fees from the Balance Sheet, apart from an amount allegedly sourced from capital, as the funds were allegedly derived from his post-separation income – Where the wife submitted that the Court should either include or exclude all paid legal fees – Where it is artificial to draw the distinction sought by the husband – Where the husband was able to pay his legal fees from post-separation income because he retained the benefit of income from his businesses and his earning capacity, to which the wife contributed – Where other paid legal fees are excluded from the Balance Sheet.

FAMILY LAW - PROPERTY – s 75(2) adjustment – Alleged uncrystallised liability – Where the husband asserts there should be an adjustment in his favour because of the likelihood he will be pursued by the ATO in consequence of the liquidator seeking to recover allegedly unfair preference payments – Where there is no evidence before the Court as to the quantum of the amount that may be pursued – Where there is no evidence that the liquidator will actually seek to recover the payments – Where there is no evidence of the husband’s potential defences – Where it was within the husband’s purview to adduce such evidence – No adjustment made.

FAMILY LAW - PROPERTY – s 75(2)(o) adjustment – Where the wife submitted there should be an adjustment made in her favour for her contributions toward the care of the husband’s children from his prior relationship – Where it was found that the wife’s contribution was a significant and substantial contribution – Adjustment made in the wife’s favour – 6 per cent adjustment to the wife for 75(2) factors.

FAMILY LAW - PRACTICE AND PROCEDURE –Where there are a number of entities in the asset pool – Where the parties’ proposed orders were complex – Where the Court wishes to ensure that its orders give effect to the various mechanical provisions contained in the parties’ proposed orders – Reasons for judgment delivered without corresponding orders to effect that division – Parties directed to provide the Court an agreed Minute of Order, or respective Minutes of Orders, which reflect the Court’s reasons and percentage determination.

Judgment delivery date:

FAMILY LAW – PROPERTY - Interim hearing – real property owned by a company owned by the husband and wife – company in liquidation – liquidator a party – all parties agree real property to be sold – issue whether husband should vacate property prior to sale as sought by liquidator and wife or only after sale when vacant possession required – issue as to work to be carried out – issue as to liquidator keeping informed – issue as to costs: Husband to vacate the property by no later than 23 March 2024 – no works to be carried out on the property without consent of all parties – liquidator to keep other parties informed – reserve all parties costs.

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FAMILY LAW – PRACTICE AND PROCEDURE – Stay Application – Parenting – Where the mother sought a stay of final orders preventing her from having immediate contact and/or spend time with the children – Where the mother had filed a Notice of Appeal – Where the father and the Independent Children’s Lawyer opposed the mother’s application – Application for stay refused – Application dismissed with costs.

Judgment delivery date:

FAMILY LAW – PRACTICE AND PROCEDURE –Where the wife made an application for adjournment on the basis of her capacity to conduct proceedings – Where the wife’s counsel advised that he was unable to obtain instructions from the wife – Adjournment granted – Appointment of litigation guardian on the Court’s own initiative.

Judgment delivery date:

FAMILY LAW – PROPERTY – joinder application by the applicant filed after commencement of trial – no meaningful explanation for delay – application dismissed.

Judgment delivery date:

FAMILY LAW – PROPERTY – Where the marriage was relatively short – Where the parties’ liabilities exceeded their assets – Both parties acquired several properties prior to and during their relationship – Where the properties in the husband’s sole name were sold prior to the final hearing with the proceeds applied to discharging the debt – The three remaining properties held in the wife’s sole name – Where the husband made a significant cash contribution to purchase of the former matrimonial home – Where wife entered into substantial mortgage – Where the husband sought a declaration that the wife holds 87.5 per cent of the former matrimonial home on resulting trust in his favour – Presumption of advancement – Where add backs sought were largely unsubstantiated and misconceived – Where parties’ contributions were largely equal – Where wife sought a Kennon adjustment – Where no secure finding that the alleged family violence perpetrated by the husband made the wife’s contributions more arduous – Evidence fails to establish any basis for just and equitable orders – No order for property adjustment made – No order for superannuation split made – No order as to costs.

Judgment delivery date:

FAMILY LAW – CHILDREN – overseas travel – where maternal grandmother is primary carer for child aged 5 – where maternal grandmother wants to go to Country C with the child for 10 days – where father does not oppose – where mother opposes – where no material was filed by or on behalf of the mother – where mother made oral submissions – assessment of s60CC factors.

Judgment delivery date:

FAMILY LAW – EX TEMPORE REASONS – Where both parties are in default of trial direction orders – Where both parties’ applications are ultimately dismissed – Where neither party opposes the matter being finalised in terms of interim parenting orders in place since 2020 – Where the Court makes final orders.