Judgments

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the paternal grandparents review interim parenting orders made by a Senior Judicial Registrar (“the registrar”), which provide for the children to spend supervised time with them – Where the paternal grandparents seek orders for the children to live with them and spend supervised time with the mother – Where the paternal grandparents assert the mother poses a risk of physical and psychological harm to the children – Where the mother has passed the psychological assessments given by the single expert – Where the younger child made allegations of his sexual abuse by the paternal grandfather – Where the allegations were not substantiated by the authorities but the risk of harm is not eradicated – Where the trial is the time and place to settle factual controversies – Where the father lives overseas and is not a residential option for the children – Orders made to vary the length of supervised time the children spend with the paternal grandparents.

FAMILY LAW – PARENTING – Application for final parenting orders – Where the children have been living with the mother since the parties’ separation in 2019 – Where the children have spent supervised time with the father since June 2023 – Where the Secretary of the NSW Department of Communities and Justice intervened in the proceedings – Where both parents suffer from conditions which compromise their parenting capacity – Where the Secretary proposed the Minister having parental responsibility for the children for a period of 12 months and they live with the father – Where the Independent Children’s Lawyer railed against the children living with either parent – Where the father has remained abstinent from alcohol for the past 18 months – Where after years of intensive involvement by the child welfare agency with the mother, the agency has no faith in her parenting capacity – Where the physical, developmental, medical and educational needs of the children are likely to be better met if they live with the father – Ordered the father have parental responsibility for decisions about the children’s residence and they live with him – Ordered the Minister have parental responsibility in respect of all other major long-term issues affecting the children for 12 months – Ordered the children spend substantial and significant time with the mother.

FAMILY LAW – INJUNCTIONS – Exclusion from matrimonial home – Where the wife seeks the sole use and occupation of the matrimonial home – Where the husband opposes the wife’s application and submits that the parties can co-exist under one roof – Consideration of the circumstances of the parties and whether an exclusive occupation order is necessary – Order for the exclusive use and occupation of the home made.

FAMILY LAW – CHILDREN –Where the father has refused to disclose details of his mental health – Where the father has inability to manage and control his aggression –Where father’s use of force and excessive disciplining of children leaves them at risk of harm in his care – Where father lacks insight - Where mother found to have acted protectively– Where father’s tendency to lie about his conduct and his negative narrative about mother to external agencies’ responsible for protecting children has exposed children to harm – What weight to place on views of eldest child who is resistant to spending time with the father.  FAMILY LAW – PROPERTY – Value of property.   FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Contribution by third party – Future needs.

FAMILY LAW – COSTS – Application for costs following conclusion of defended parenting proceeding – Applicant wife seeks indemnity costs – In the alternative costs order sought on a party and party basis calculated at Scale – Consideration of general rule that each party bear their own costs in proceedings under the Act – Consideration of whether there are circumstances which justify an order for costs – Consideration of what, if any, order for costs is appropriate. FAMILY LAW – INDEMNITY COSTS – Solicitor and client cost – Settled practice to order costs on a party and party basis – Consideration of whether there is a circumstance which justifies a departure from settled practice. FAMILY LAW – HELD no exceptional, unusual or extreme circumstance. FAMILY LAW – PARTY AND PARTY COSTS – Costs awarded in a fixed amount calculated in accordance with Scale

FAMILY LAW – CHILDREN – Where the parties agree that the mother should hold sole parental responsibility for the child and that the child should live with the mother – Whether the child should spend time with the father – Where the child has never met the father – Where there are allegations by the mother of significant family violence perpetrated by the father, including coercive and controlling family violence – Where findings are made that the father poses an unacceptable risk of harm to the child and the mother as a result of family violence – Where the father has long-term mental health issues – Where findings are made that the father’s mental health presents an unacceptable risk of harm to the child’s safety – Where the Court cannot be satisfied that the father is drug-free – Where the child is vulnerable due to developmental delays – Where orders are made that the child shall spend no time with nor communicate with the father – Where injunctive orders are made pursuant to section 68B of the Family Law Act 1975 (Cth)

FAMILY LAW – CHILDREN – Where the parties agree that the children shall live with the father and the eldest child (15 years of age) shall spend time with the mother in accordance with her wishes – Whether orders should be made for time and communication between the youngest child (11 years) and the mother – Whether the father should hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties – Where the children have spent no time with the mother since September 2023 – Where the children hold strong views that there be no orders to spend time with the mother – Impact of protracted litigation on the children – Parental conflict – Where both children have experienced mental health difficulties – No positive findings of family violence – Findings made that coercive orders for the youngest child to spend time with the mother would not be in her best interests – Orders made for each child to spend time with and communicate with the mother in accordance with their wishes – Orders made for the father to hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties

FAMILY LAW – subpoena objection - where the mother sought a subpoena from the Office of the Health Ombudsman – where the Office of the Health Ombudsman objected to that subpoena on the grounds of relevance, insufficient particulars and confidentiality – where the material sought in the subpoena is relevant – where the relevant statute provides the Office of the Health Ombudsman is not required to disclose confidential information to a court or tribunal.

FAMILY LAW – PARENTING – adjournment application - promote cooperative and child focused parenting by the parties - advance a meaningful relationship between the father and the children – permitting the father to address the significant evidentiary shortcomings – adjournment granted with condition imposed – interim parenting orders

FAMILY LAW – PARENTING – adjournment granted 7 December 2023 – Social media post by suggesting he had manipulated the Court - application for disqualification by the father’s Counsel on the grounds of alleged apprehended bias - fair-minded lay observer – oral application for recusal dismissed.

FAMILY LAW – property – whether the parties were in a de facto relationship – the Applicant alleges that the parties were in a de facto relationship from late 2013 to February 2017 – the Respondent alleges that the parties were in a relationship from late 2013 to mid-2014 and friends from mid-2014 to February 2017 – where the parties have joint property

FAMILY LAW – PROPERTY – Just and equitable – orders made.

FAMILY LAW – CHILDREN – Consideration of s 65DAAA of the Family Law Act 1975 (Cth) – Where final parenting orders were made in May and December 2022 – Where the Applicant father seeks to reopen the proceedings – Where the Respondent mother seeks to dismiss the father’s application – Where the parental conflict has impacted the children’s access to therapeutic and medical assistance – Where the parents have demonstrated no joint decision-making capacity in respect of the children as required by the final parenting orders – Where the Court is satisfied that there has been a significant change in circumstances since the final parenting orders were made – Where the Court is satisfied that it is in the best interests of the children to reconsider the final parenting orders

FAMILY LAW – PROPERTY – interlocutory – application for leave to commence proceedings for property adjustment out of time – consideration of respondent’s jurisdictional objection – consideration of prima facie case for relief – whether the applicant has demonstrated sufficient likelihood of success – where claim is not trifling – consideration of hardship – exercise of discretion – consideration of delay – consideration of prejudice to the respondent – leave granted

FAMILY LAW – Parental responsibility –spend time arrangements – family violence allegations – intervention order – COVID-19 restriction breaches – child’s medical needs

FAMILY LAW – PARENTING – Relocation – Where the applicant mother seeks an order which permits her to relocate the child from Region B in New South Wales to Region C in Queensland – Where the respondent father opposes relocation of the child on the basis that it will adversely impact the child’s relationships with the father and extended paternal and extended maternal family members in New South Wales – Where the father seeks an order that the child live with each parent in an equal time arrangement – Where the mother intends to relocate to Queensland with or without the child to live with her husband– Where the mother’s wellbeing is most likely to be enhanced by the financial and practical support she will gain by living with her husband in Region C – Where the child has a meaningful relationship with both parents – Where the child has an important relationship with his maternal half-sibling – Where the child’s relationship with the mother might be diminished from feelings of rejection if the mother relocates without him and his healthy development may be impacted – Where the mother’s parenting capacity will be enriched by moving to Region C and the child will benefit – Where the child will continue to have the benefit of a meaningful relationship with the father if the mother is permitted to relocate the child – Relocation permitted – Spend time with arrangements – Discrete issues

FAMILY LAW – Parenting – application to vary final orders – where mother seeks to move to a not-too-distant suburb for work and to be closer to family – where mother says current orders significantly hamper career and earning capacity – where father opposes change to final orders – application to vary final orders successful – orders made to accommodate mother’s new residence – recusal application reserved – costs reserved – all extant applications are otherwise dismissed.

FAMILY LAW – COSTS APPLICATION – granted – Respondent to pay costs of the applicant on a party and party basis in a fixed sum

FAMILY LAW – Property – Application to reopen matter after conclusion of final hearing – Application to adduce further evidence – Where judgment remains reserved – Where respondent claimed no interest in estate of recently deceased parent at final hearing – Where applicant claims respondent stands to inherit significant sum from deceased parent’s estate – Submission that matter can be dealt with via written submissions – Where serious allegations of misleading the court in final hearing warrant further hearing – Matter listed for further half-day of final hearing.

FAMILY LAW – CHILDREN – Whether the children should spend time with the father – Allegations of family violence, including coercive and controlling family violence – Exposure of the children to family violence – Drug use – Where the father made concessions as to falsifying negative drug test results – Where the father made concessions as to falsifying evidence in criminal proceedings – Where the father made concessions as to falsifying medical records – Where the father made concessions as to falsifying financial records – Alcohol use – Where findings are made that the father poses an unacceptable risk of harm to the children and the mother as a result of family violence – Where findings are made that the father’s drug use poses an unacceptable risk of harm to the children – Where findings are made that an order for no time is not in the children’s best interests – Where orders are made for ongoing supervised time between the father and the children, with such time to be supervised by a professional supervised contact service

FAMILY LAW – CHILDREN – Interim proceedings – Where the mother ceased the father’s time with the children – Whether the father poses an unacceptable risk to the children – What time the children should spend with the father – Allegations of family violence – Impact on the children of parental conflict

FAMILY LAW – LEGAL PRACTITIONERS – Where the wife seeks orders restraining the husband’s solicitors from continuing to act for him – Where there was inadvertent disclosure to the husband’s solicitors of confidential and privileged communication between the wife and her solicitors – Where the husband’s solicitors failed to provide disclosure to the wife’s solicitors of the inadvertent disclosure – Where the husband’s solicitors failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

FAMILY LAW – PRACTICE AND PROCEDURE – Whether the Court should refer the papers to the New South Wales Director of Public Prosecutions – Where findings were made at final hearing that the father fraudulently amended hospital records for use in criminal proceedings in the Local Court – Where both parties seek the referral not be made – Referral made

FAMILY LAW – CONTEMPT – Where the Applicant alleges 13 grounds of contempt by the Respondent – Where no prima facie case is found in relation to any of the grounds – Where the parties are invited to provide written submissions as to the Respondent’s application that the Applicant be prohibited from instituting further proceedings without leave pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) – Where both children are adults at the date of hearing

FAMILY LAW – COSTS – Where the matter was listed for interim hearing in September 2023 in relation to the mother’s Application for the father’s solicitors at that time to be restrained from acting for the father – Where the mother’s Application for restraint was based on inadvertent disclosure to the father’s solicitors of confidential and privileged communication between the mother and her solicitors – Where findings were made that the father’s solicitors failed to provide disclosure to the mother’s solicitors of the inadvertent disclosure, and failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – Where the mother seeks orders as to her costs in seeking that the father’s former solicitors be restrained from acting – No order as to costs made against the father’s former solicitors – Order made for the father to pay the costs of the mother on an indemnity basis in relation to the mother’s Application for restraint – Costs to be paid as agreed or assessed

FAMILY LAW – PARENTING – children (aged 12 and 16) do not wish to spend time with father – acknowledged family violence by father – mother facilitated children spending time with him on an intermittent basis and not at all for extended periods – mother made major long-term decisions without consulting with father, including moving to a suburb some distance away and changing the children’s schools – children have now spent extended professionally supervised time and then unsupervised time with the father – mother does not contend children would be unsafe in father’s care – father found to have capacity to meet children’s needs, including emotional needs – mother found to lack capacity to support children’s relationship with the father, where she sees no benefit to them spending time with him – children’s expressed views incongruent with their interactions with father – finding children will benefit from relationship with father and paternal family – orders for parties to have joint decision-making responsibility – children to spend regular unsupervised time with father, arranged by agreement in consultation with the children and in default of agreement at fixed times – ancillary orders made as agreed or as determined in the children’s best interests

FAMILY LAW – PROCEDURE – leave granted to the applicant to use the Family Report filed in these parenting proceedings for criminal proceedings

FAMILY LAW – Parenting – Final hearing to determine discrete issue of where one child is to attend for the remainder of primary school – Where father seeks additional changes to final orders – Where father is unrepresented – Orders sought in father’s filed response to mother’s application treated as section 65DAAA application – Section 65DAAA issue adjourned for hearing at a later date to allow for procedural fairness to mother – Final orders as to child’s schooling – Circumstances where significant commute for mother to take child to current school – impacts on mother’s mental health – Where mother’s housing situation is precarious – Where mother has care of parties’ children as well as an infant from another relationship – father better able to cope with child not allegedly attending school of his choice – real risk for child either way – Change of school ordered

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious Proceedings Order – Where the Applicant sought an order pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) prohibiting the Respondent from instituting further proceedings without leave – Where the proceedings have a long history – Application granted

FAMILY LAW – PARENTING - application for an injunction under s 68B restraining the removal of the child from the Commonwealth of Australia - concern expressed for the welfare of the child - child has dual passports for both Country B and Australia – Country B is a Hague Convention Country – Court not satisfied that there is a real risk -Court declines to grant an injunction.

FAMILY LAW – CONTRAVENTION – PARENTING – Final orders made by consent in March 2021 – Three children aged 15, 13 and 11 years – Where the father originally alleged numerous counts of contravention of the final consent orders by the mother – By the final date of trial, 17 alleged counts of contravention remaining – Where all remaining contraventions were admitted by the mother but with reasonable excuse – Where the mother was legally represented for the first tranche of Trial and was self-represented on the final day of Trial – Two further counts dismissed – 15 counts established without reasonable excuse – Legal fees incurred grossly disproportionate to the issues in dispute – No sanctions imposed – Orders altered.

FAMILY LAW – Parenting – trial vacated – parties unrepresented – whether section 102NA(2) order should be made – section 102NA(c)(iv) invoked – section 102NA(2) orders made – related parties restrained from personally cross examining each other – further trial directions made – airport watchlist order remain in place.

FAMILY LAW – PARENTING – Final hearing – Three children aged almost 15, 12 and 10 years –  Where the applicant is the maternal grandmother and the first respondent is the mother – Where the second respondent father has not engaged in the proceedings to date – Where the applicant maternal grandmother seeks time spending with the children – Applicant maternal grandmother alleges the children are at risk in the first respondent mother’s care – Where the first respondent mother opposes the application – Views of the children – Consideration of best interests – Where the Court considers that time spending with the applicant maternal grandmother is not in the best interests of the children – Orders for cards and gifts.

FAMILY LAW – Final Parenting Orders made by consent – Father re-commenced proceedings less than two years later – s 65DAAA hearing – Father withdrew his application upon concluding his cross-examination – Mother seeks costs – whether to order indemnity costs – special costs order made – Mother seeks prohibition order pursuant to s 106QAC – Harmful proceedings order granted

FAMILY LAW – PRACTICE AND PROCEDURE – Where the Court has ordered that the parties each attend the final hearing in person – Application for father to give evidence remotely – Where the father lives in Country B – Consideration of r 15.16 and r 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the father failed to file his application for leave to appear electronically within 28 days of the final hearing – Where the Court required the father to make appropriate inquiries to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication and there is no evidence of the father having done so – Application in a Proceeding for the father to remotely give evidence dismissed.

FAMILY LAW – PROPERTY – Just and equitable orders made.

 FAMILY LAW – PARENTING – Ex Parte – injunction restraining removal of the children from the Commonwealth of Australia – Airport Watchlist

FAMILY LAW – PROPERTY – where the husband is in default of his obligations to file material and make full and frank disclosure – where the husband failed to appear at the final hearing – where final Orders made as sought by the wife

FAMILY LAW – Parenting – Where one party seeks leave on first day of trial to rely on a therapist’s report – Where therapist’s report had not been filed on affidavit – Where parties had not previously identified dispute over admissibility of report – Where one party claims report is confidential – Where the affidavit and report be deemed admissible

FAMILY LAW – Third application in aid of enforcement of final property orders – where orders require sale of property – where first respondent retains original paper Certificate of Title and has failed to produce it – where sale cannot proceed without the Certificate of Title – where applicant seeks cancellation of current Certificate of Title and creation of new electronic Certificate of Title – no engagement by the first respondent – orders and declarations of interest made – order for payment by first respondent of indemnity costs

FAMILY LAW – Parenting – Application by Paternal Aunt – Undefended hearing – Father has passed away and the biological mother is unknown – Respondent Surrogate does not wish to participate

FAMILY LAW – PARENTING – where the Father withdrew his parenting application after the Mother obtained an anti-suit injunction in Country B – where the Mother prosecuted her parenting application – where no objection to the Court exercising jurisdiction was taken – where orders sought by the Mother were supported by the Independent Children’s Lawyer – where the Mother made a harmful proceedings order application

FAMILY LAW – Interim parenting arrangement - recommendation in family report for the child to spend overnight time with the father -  child has not progressed to spending overnight time with the father - ongoing mental health engagement by the father – promote the safety of the child  - co-sleeping is not in the best interests of the developmental, psychological and emotional needs of the child - best interest of the child to advance to overnight time with the father

FAMILY LAW – REVIEW – interim parenting – where orders for equal time varied with the Father only permitted to spend supervised time with the children – where the children are expressing views to live or spend substantial time with the Father – whether the Father poses an unacceptable risk to the children as opined by the Single Expert – where the Single Expert applies a risk assessment tool and concludes that the father poses a serious threat to the Mother and the children - whether the children should live with the Father or spend substantial unsupervised time with him - where a cautious and conservative approach to be adopted

FAMILY LAW – PARENTING – agreed by consent except for restraint concerning third party- restraint imposed- no order as to costs of ICL.

FAMILY LAW – PROPERTY – Financial Agreement – where the wife seeks a declaration that a s90C Financial Agreement is not binding – Where the husband opposes such relief –Where it is found that the wife did not receive the advice prescribed by s90G(1)(b) of the Family Law Act 1975 (Cth) ––Where the husband has not established that it would be unjust and inequitable if the Financial Agreement were not binding - Declaration made that the Financial Agreement is not binding - Where submissions are sought as to why the husband’s conceded conduct in forging the signature of both the wife and a retired barrister on a prior Application for Divorce of the parties should not be referred to the Department of Public Prosecutions for investigation and possible prosecution. 

FAMILY LAW – PARENTING – interim schooling application – all schools more than prima facie satisfactory and otherwise capable of meeting the children’s needs – parents intentions for the children’s education – children’s expectations – impact on children of a change of school – best interests of children met by remaining at current school

FAMILY LAW – Parenting – whether the child lives with the mother or father – 13 year old child with entrenched negative views of the father largely influenced by the mother – balancing of risks of harm – consideration of 60CC factors prior to amendment of Family Law Act – child to remain living with mother – child to spend time with father in accordance with her wishes

FAMILY LAW - Leave to review out of time orders made by consent considered - alternate application under s 79A considered

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