Judgments

FAMILY LAW – PROPERTY – interim – sole use and occupation of former matrimonial home – whether parties prevented from making application by operation of s 114AB(2) of the Family Law Act 1975 (Cth) – de facto spousal maintenance – where capacity to pay maintenance not in issue – whether expenses claimed by de facto wife are reasonable – application by de facto wife for litigation funding reflecting significant disparity in the financial circumstances of the parties – application of costs power for litigation funding orders – whether payment should be characterised prior to trial

FAMILY LAW – FINANCIAL AGREEMENT – whether each of the parties each received independent legal advice as required by subsection 90UJ(1)(b) of the Family Law Act 1975 (Cth) – whether unjust or inequitable if agreement were not binding on the parties pursuant to section 90UJ(1A) of the Family Law Act 1975 (Cth)

FAMILY LAW – CONTRAVENTION – Where the applicant father alleges that the respondent mother has contravened final parenting orders on five occasions between 2 February 2024 and 28 March 2024 by failing to provide the two children to spend time with him for the weekend as required – Where the respondent admits contravening the orders but contends that she has a reasonable excuse for the contraventions – Where the respondent has regularly personally supervised time for the children with the applicant throughout the period of the contravention – Whether the respondent believed on reasonable grounds that not allowing the children to spend time with the applicant unsupervised was necessary to protect the health or safety of the children – Where the court is satisfied that the respondent did believe on reasonable grounds that not allowing the children to spend time with the applicant unsupervised was necessary to protect their health and safety – Where the court is satisfied that the period during which the children and the applicant did not spend time together because of the contravention was not longer than necessary to protect the health and safety of the children – Where all Counts in the application for contravention are dismissed – 

VARIATION OF FINAL ORDERS – Whether the primary orders should be varied pursuant to s70NBA of the Act – Where both parents seek variation – Where it is found to be in the best interests of the children to suspend final orders which require the children to spend time with the applicant unsupervised – Where it is in the best interests of the children to make an order until further order that the time that the children spend with the applicant is supervised by a children’s contact service – Where the parents agree that it is in the children’s best interests to communicate with the applicant using a Messaging app – Where the respondent’s agreement is subject to the proviso that use of the Messaging app will not reveal the children’s location to the applicant – Where there is no evidence before the court about how the Messaging app operates – Order made for the children to communicate with the applicant using the Messaging app subject to the proviso sought by the respondent – Where the respondent is directed to file and serve an Initiating Application and her supporting documents by no later than 4.00 pm on 18 February 2025.

FAMILY LAW – PARENTING – variation of parenting orders – father in prison - potential for adverse emotional and psychological impact from excluding the father from the children’s lives

FAMILY LAW- Parenting – where this hearing was listed originally as a 65DAAA hearing – where the applicant seeking “minor” variation to order – where the initial application regarding 65DAAA alleged a deterioration of the respondents mental health – where the respondent undertook a psychological assessment – where there was found to be no deterioration in the fathers mental health – where the applicant still seeks a “minor” variation in the orders following the psychological assessment – where the applicant wishes to relocate to another city for a job opportunity – where the applicant is seeking leave to amend her initiating application – where leave was granted – where the 65DAAA hearing is adjourned and consolidated with variation of orders hearing.

FAMILY LAW – INTERIM PROPERTY – Sale of property – payment of mortgage – spousal maintenance – applications dismissed.  FAMILY LAW – INTERIM PARENTING – Best interests of children – orders made.

FAMILY LAW – COSTS – Interlocutory application wholly unsuccessful

FAMILY LAW – PARENTING – Interim hearing – Best interests of child.

FAMILY LAW – COSTS – Application to review orders made by a Registrar – where application to review by the husband was not successful – application by the wife for indemnity costs – application for indemnity costs refused but order for costs on the scale made.

FAMILY LAW – Application to review decision of Senior Judicial Registrar (‘SJR’) – application dismissed – application for costs made and dismissed.

FAMILY LAW – PROPERTY – proposed consent orders did not reflect a just and equitable alteration of property interests – s 114 injunction – preservation of the property pool - procedural orders

FAMILY LAW – Property – both parties seeking orders for adjustment of financial interests – de facto husband’s phoenix operation post-separation of previously jointly operated business – disputed identification of assets and liabilities – contest about add backs for parental loans, post-separation inheritance largely dispersed, reduction of business account balance – limited positive findings about add backs – allegations of incomplete or non-disclosure by de facto husband – dispute about adjustments for future needs – adjustments made for future needs and egregious conduct including non-disclosure pursuant to section 90SF(3)(r)

FAMILY LAW – PRACTICE AND PROCEDURE – ex tempore reasons – wife’s application for stay of final property orders – property orders made by consent at the conclusion of a final hearing of seven days – application to appeal out of time – property orders part executed in favour of wife – wife seeks stay only of orders conferring benefit on husband – court not satisfied of bona fides of application or that appeal would be rendered nugatory if stay refused – preliminary assessment of merits of appeal –  application for stay dismissed – costs reserved

FAMILY LAW – PARENTING – child (aged 11) exposed to family violence between parties and subjected to family violence and problematic behaviour by mother – child has lived with father since 2022 and spent professionally supervised time with mother since February 2023 – mother claims her use of family violence and problematic behaviour is a response to family violence by the father and resultant trauma (PTSD) and her neurodivergence is misunderstood – single expert psychologist opinion mother presents with atypical personality traits posing a high risk to child’s emotional wellbeing – consideration of mother’s mental health and parenting capacity – finding mother lacks insight into and has not adequately addressed her problematic behaviour and child would be exposed to unacceptable risk of psychological and physical harm by spending unsupervised time with her – orders made for father to have sole parental responsibility, child to live with father and to spend limited, privately supervised time with the mother – mother’s communication with child to be by letters, cards and gifts only due to history of inappropriate communications

FAMILY LAW – Property – Failure to file amended response – Failure to articulate quantum of litigation funding sought – Oral application for litigation funding dismissed

FAMILY LAW – PARENTING – Final orders – father has a long criminal history of violent offences and breaches of court orders – multiple community corrections orders with treatment component and programs for anger management – multiple breaches of intervention orders – breaches of suspended sentences – father incarcerated for much of children lives – alcohol abuse – drug abuse – father found in 2018 judgment to be unacceptable risk to other children – father not spent time with the two children in this matter for three years – father diagnosed with attention deficit hyperactivity disorder – no substantial evidence of change – no insight into his violence or offending – ongoing risk – risk not ameliorated by supervised time – no time with father – change of surname.

FAMILY LAW – PARENTING – Serious allegations of family violence – Lack of insight by the father – Children have not spent time with father for period of almost four years – Leaving the door open for relationship with the father

FAMILY LAW – Parenting – final orders – child live with mother – mother have sole decision making relating to health and education – father spend each alternate Saturday with child – further time between father and child including overnight time as agreed between parties – where the father changes his position during proceedings – father to enrol in a parenting program 

FAMILY LAW – PROCEDURE- dispensing with the need to comply with the Notice to Produce under r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

FAMILY LAW – PROPERTY – Interim hearing – partial property settlement – spousal maintenance – sale of property – orders made, inter alia, for partial property settlement and spousal maintenance.

FAMILY LAW –  recovery order arising from after hours service – subsequent attempt to comply with order for return of child made before recovery order – subsequent order that recovery order “lie in the registry” – subsequent advise child returned – recovery order vacated

FAMILY LAW – PARENTING – Where the subject child is 7 years of age – Where the child has spent supervised time with the father for a period of two years – Where both parties have unilaterally taken the child overseas post separation - Where there are significant allegations of family violence perpetrated against the mother and the child by the father –Where the mother seeks orders that the child spend no time with the father - Where the father alleges that the mother’s partner has sexually abused the child – Where despite the father’s allegations of sexual abuse perpetrated by the mother’s new partner he seeks that the child live with the parties on an equal shared care arrangement – Where the Father alleges the mother has fabricated allegations to alienate the child from him - Where the father relies on the mother allowing unsupervised time between him and the child post separation as the basis of the orders sought by him – Findings made that the father perpetrated family violence including coercive and controlling behaviours upon the mother and the child – Finding made that the father cannot positively support a relationship between the child and the mother – Finding that the parties’ parenting relationship is reflective of a dynamic arising from the father’s controlling family violence - Finding that the family violence perpetrated by the father is a contradiction to an order for equal shared parental responsibility - Finding that the culmination of risks posed by the father cannot be sufficiently ameliorated by supervision or otherwise – Orders made that the child spend no time with the father.  

FAMILY LAW – CONTRAVENTION – Costs – Parenting – Where it was alleged the father contravened by overholding the child following periods of time spending – Where the father admitted the breaches at the commencement of Trial but maintained he had a reasonable excuse – Where after giving evidence at Trial, the father plead guilty to each count without reasonable excuse – Father to enter into a Bond – Orders for costs. 

FAMILY LAW – Harman and/or implied obligation – are special circumstances required the documents in another court – whether special circumstances in this application – very late application – whether costs should be ordered – special circumstances found – applicant released from implied obligation

FAMILY LAW – PARENTING – interim application after matter not reached – stood over till final hearing date

FAMILY LAW – Parenting – two male children aged 11 and 9 – second round of parenting proceedings – where the parties consented to final orders in December 2018 – where the parties had difficulty implementing the final orders – where the parties’ communication was unproductive – where the two boys where being dragged into the conflict by both parents – where the relationship between the father and the children began to break down in part due to disclosures of physical abuse in the father’s care by the children – where the children became resistant to spending time and communicating with the father – where the children are now estranged from the father and fearful of him – where the Court considers there would be an emotional or psychological risk to the children if they were required to spend time with the father – best interests of the children.

MIGRATION – Judicial review – Administrative Appeals Tribunal (as it then was) – whether the Tribunal erred in finding that there was a ground of cancellation under s 116(1AA) – whether the Tribunal failed to give proper, genuine and realistic consideration to the risk of harm to the applicants if returned to home country – whether the Tribunal failed to consider the best interests of the applicants’ Australian citizen children and the harm they would face if returned to Sri Lanka – Court finds no jurisdictional error made by the Tribunal – Application dismissed 

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

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to his judicial review application – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).  

MIGRATION – Judicial Review – protection visa – credibility findings – allegation of denial of procedural fairness – allegation of bias – whether error arose out of Tribunal’s misstatement of an aspect of country information – whether error disclosed in Tribunal’s consideration of the applicant’s delay in lodging the protection visa application – no jurisdictional error – application dismissed.

MIGRATION – application for judicial review - Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) – whether Tribunal failed to engage with and properly consider evidence relating to family violence – whether Tribunal failed to afford procedural fairness - application dismissed  

MIGRATION – Judicial Review – Protection (Class XA) (Subclass 866) visa – whether application to Tribunal was lodged out of time – meaning of ‘end of day’ in section 494C of the Migration Act 1958 (Cth) – meaning of ‘transmit’- held that application was lodged out of time – application dismissed. 

MIGRATION – application for judicial review of a decision of the Administrative Review Tribunal affirming a decision not to grant the applicant a protection visa – whether the ART failed to consider, or gave insufficient weight to, the applicant’s evidence and claims – whether the ART denied the applicant procedural fairness – whether the ART failed to comply with s 367A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.  

PRACTICE AND PROCEDURE – application for an extension of time to file a general protections court application under the Fair Work Act 2009 (Cth) – extension of time granted.   

MIGRATION – Review of summary dismissal by Registrar – protection visa application – where Tribunal dismissed application after applicants failed to appear at hearing and failed to apply for reinstatement within prescribed period – whether application has no reasonable prospect of success – where applicants claim they did not receive invitation to Tribunal hearing – where Tribunal invitation transmitted to last email address provided by the applicant in connection with the application – application allowed. 

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to her judicial review application – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).    

 MIGRATION - Protection (Class XA) (subclass 866) visa– application seeking constitutional writ of Tribunal decision to affirm Ministers decision – no jurisdictional error – application dismissed. 

DEFAMATION – assessment of damages  

MIGRATION – Application for student visa – criterion for visa enrolment in course of study - where applicant consented to matter being dealt with without a Tribunal hearing – where Tribunal afforded applicant 8 months to submit evidence in support of review and refused request for additional time – not unreasonable for Tribunal to so proceed where applicant claimed to be awaiting Tribunal decision before obtaining Confirmation of Enrolment – criteria for grant of the visa not met – Tribunal affirmed decision under review – application dismissed

MIGRATION – application for constitutional writ of a decision of the ART – refusal to grant a Subclass 500 student visa – considerations for GTE criterion – strength of incentives to return to home country – value of the course of study to future employment prospects – Court found no jurisdictional error – application dismissed.  

MIGRATION – Application for student visa – applicant a citizen of Nepal – Tribunal determined applicant did not satisfy criterion in cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – no jurisdictional error identified – application dismissed.

MIGRATION  – judicial review of a decision of the Immigration Assessment Authority to not grant a protection visa – where grounds of review are unparticularised – where the Applicant challenged the merits of the decision – where no jurisdictional error could be established 

MIGRATION – Extension of Time – Delay of eight years, six months and eleven days – Non-attendance of applicant – Extension of time dismissed pursuant to rr 5.08(c), 5.10(a) and 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

MIGRATION - Protection (Class XA) (subclass 866) visa– application seeking constitutional writ of Tribunal decision to affirm Ministers decision – no jurisdictional error – application dismissed.  

MIGRATION – Application for student visa – primary applicant citizen of Nepal – Tribunal determined applicant did not satisfy criterion in cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide an interpreter – applicant did not seek assistance of interpreter – applicant did not demonstrate any subversion of the review – Tribunal did not fail to give proper, genuine and realistic consideration to application – no jurisdictional error – application dismissed. 

 FAIR WORK – applicant has failed to appear – appropriate to exercise the Court’s powers under r 5.10 of the rules to dismiss the applicant's proceedings – proceedings dismissed 

CONSUMER LAW – application for orders requiring delivery of a vehicle subject to a security interest registered under the Personal Property Securities Act 2009 (Cth) – evidence that the vehicle was transferred to the second respondent, a non-party to the security agreement – orders made requiring delivery of the vehicle and keys by the second respondent according to a specified procedure – opportunity for the second respondent to seek discharge or variation of the orders within a specified period 

CHILD SUPPORT – Costs - where the appeal was dismissed - where the Child Support Registrar is seeking costs in respect to the failed appeal - held that the respondent pay to the Child Support Registrar costs in the sum of $7,543 

BANKRUPTCY - property jointly owned by the respondent and the bankrupt - proceeds of sale currently in the trustee's trust account as a result of realising the property of the bankrupt - the legal title is what the trustee was entitled to act upon