Judgments

FAMILY LAW – COSTS – Application for costs thrown away for two adjourned final hearings – Costs order made in a fixed amount.

FAMILY LAW – PARENTING – father presently incarcerated for rape and concurrently for sexual abuse of the mother’s younger sisters when they were children and in her care – father seeks communication from prison – communication opposed by mother and ICL – application for communication refused. Consent orders made regarding children’s time with paternal grandparents.

FAMILY LAW – PARENTING – Where final parenting orders provided for the father to have sole decision-making responsibility, for the child to live with him, for a moratorium of the mother’s time for 10 weeks, and for long term supervised time thereafter – Where the child left the father’s care and self-placed with the maternal family – Where the father sought a recovery order and injunctions against the mother and maternal family – Where the child was returned to the father’s care rendering the application for the recovery order otiose – Where the Court is satisfied that the maternal aunt had notice of the application but did not attend the hearing – Where the Court needs to take steps to protecting the integrity of its processes, to ensure compliance with its order and to protect the welfare of the child – Injunctions granted.

FAMILY LAW – PARENTING – Where matter proceeded on an undefended basis as a result of persistent refusal on part of father to comply with court orders – Unacceptable risk – Family violence – Parental mental health – Order for no time.

FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where the applicant is the eldest sibling – Where subject child is the youngest sibling – Where no orders are sought for the middle sibling who is 17 years old – Where both parents are deceased – Where urgent orders were required to facilitate the applicant, her baby and youngest sibling securing accommodation – Where the applicant has taken steps to promote all siblings’ safety – Where the Orders will not impede the siblings’ connection with and positive appreciation of their shared Aboriginal culture – Final Orders made.

FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where child’s mother died – Where father unknown – Where child in care of maternal grandparents – Where s 67ZBD Reports received –Where there is no reason for the parties to return to Court for a further hearing –Final Orders made.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the Court made findings at an interim hearing which were highly critical of the mother – A consideration of the “double might” test – Where the primary Judge has, of his own motion, recused himself from further hearing the matter including the hearing of an extant application by the father for a Vexatious Proceedings Order against the mother.

FAMILY LAW – PROPERTY — Application to extend time of caveat — Transfer of proceedings from the Supreme Court of ACT — Final property orders made in the FCFCOA (Division 2) — Application dismissed.

FAMILY LAW – PARENTING – Undefended hearing – Where the mother attended the final hearing – Parental responsibility – Spend time with arrangements – Whether the mother’s time with the children should remain supervised until 2028 – Whether the mother should be restrained from bringing the children into contact with her brother – Costs of supervision.

FAMILY LAW – PARENTING – Spend time with arrangements – Parental responsibility – Where the mother seeks to relocate to the United States with the child – Allegations of family violence perpetrated by the father – Orders made permitting the mother to relocate to the United States with the child – Orders made for the child to live with the mother and spend time with the father – Orders made for the mother to have sole parental responsibility.

FAMILY LAW – COSTS - Where the wife seeks costs of and incidental to two interlocutory applications – Where the circumstances do not warrant an order for indemnity costs – Where the wife is awarded costs on a party/party basis and at scale.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father did not appear at the hearing – Where the father made an application by way of email to adjourn the current trial dates, in circumstances where he resides in the United States of America, and in which he submits he is in financial difficulty and is unable to obtain legal representation by way of the scheme pursuant to s 102NA of the Family Law Act 1975 (Cth) – Where, pursuant to a liberty provided by way of previous orders of the Court, the mother seeks for the matter to proceed on an undefended basis as against the father – Application for adjournment dismissed – Application to proceed on an undefended basis dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Disclosure – Where the wife sought that the husband disclose two medical reports that were prepared for the purposes of proceedings before the Supreme Court of New South Wales – Where the husband opposed the application and sought that if the court determines that any likely diminished life expectancy of the husband is likely to assume probative relevance in these proceedings, then a single expert geriatrician be appointed – Where the wife did not accept the offer of the appointment of a single expert geriatrician – Where the parties are each approximately 78 years of age and were married for over fifty years – Where the property pool is contended to be approximately $200 million – Where the husband contends that no adjustment is sought in his favour in relation to matters of health – Where the wife contends that no adjustment is sought in the husband’s favour in relation to matters of health – Where the health of the husband is not a matter in issue and the medical reports are not relevant to an issue in the proceedings – Application dismissed.

FAMILY LAW – PARENTING – schooling and living arrangements – whether 15 year old child is to remain living on a full-time basis in Australia with her mother or return to boarding school in the USA contrary to her strongly expressed wishes and the recommendations of a Court Child Expert in accordance with the proposal of her father, who does not reside in Australia or the USA.

FAMILY LAW – PARENTING – Unacceptable risk – Where mother alleges family violence – Where mother alleges father is unable to regulate his behaviour sufficiently to protect child from emotional harm – Where mother seeks no time and no communication between father and child.

FAMILY LAW – PROPERTY – Significant financial contribution made by husband at commencement of relationship – Substantial parenting contributions made by mother – Family violence – Where wife is higher income earner – Where wife is carer for young child – Where husband’s compliance with disclosure obligations was inadequate.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother made an application seeking a variation to final parenting orders made 5 November 2025 to include an injunctive order pursuant to s 68B of the Family Law Act 1975 (Cth) either by use of either the common law slip rule in the form of machinery or consequential orders or alternatively utilising the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where application opposed by the father on the basis that it constitutes a de facto appeal or re-litigation – Neither course available to the Court – Orders made dismissing the application.

FAMILY LAW – PROPERTY – Alteration of property interests – Where the parties had a 20-year relationship – Where the wife has in interest in two properties in Country B – Where the wife argued that the Country B properties represented a “financial resource” as opposed to “property” – Where the Court finds that the Country B properties are amenable to an order for adjustment – Where the Court finds that the ordinary principles applicable under s 79 of the Act apply.

PROPERTY - Where the parties were the beneficiary of rent-free accommodation as a consequence of the generosity of the maternal family during the relationship – Where the Court finds that such generosity represents a significant contribution on behalf of the wife.

PRACTICE AND PROCEDURE – Where no application made pursuant to s 7 of the Foreign Evidence Act 1991 (Cth) – Where the husband had no evidence to meet s 102C of the Family Law Act 1975 (Cth) or rr 15.16 and 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

FAMILY LAW – PROPERTY – APPLICATION FOR ENFORCEMENT – Where both parties filed applications seeking the other comply with final orders regarding sale of the matrimonial property – Where both parties assert the other is responsible for the non-compliance with the orders – Where both parties seek alterations to the orders that deal with the sale of such property – Where enacting the husband’s proposed alterations would result in a substantive change to the orders – Sale of the property and avoidance of future litigation in the interest of both parties – Discharge and substitution of the order regarding sale of the property.

FAMILY LAW – PARENTING – Interim proceedings – Rice & Asplund – Where the mother disclosed that her partner had been convicted of child sexual abuse offences – Where the father sought an undertaking that the mother be restrained from bringing the children into contact with her new partner pending the final hearing – Where the parties had previously reached agreement in the terms of a consent order which provided that on a without admissions basis the mother would be restrained from allowing the children to have any contact with her partner – Where notwithstanding the consent order, the father sought a variation of the orders in respect of the children’s time with their mother – Held that no significant change in circumstance had been established and it was not in the children’s best interests to reconsider the parenting orders – Application dismissed.

FAMILY LAW – PARENTING – Where the applicant father was coercive and aggressive toward the respondent mother – Where the applicant was intimidating and aggressive to the children’s treating medical practitioners – Where the applicant is affected by significant psychiatric and neurodevelopmental conditions – Where communication with the applicant will expose the children to adult conflict or distressing narratives – Where the children will spend no time nor have communication with the applicant.

COSTS – Where the applicant should pay the respondent’s costs of preparation for trial and appearance at final hearing.

FAMILY LAW – PARENTING – What, if any, time the children should spend with the father – Allegations of family violence – Where the Court finds the father has perpetrated family violence upon the mother in the presence, at times, of the children – Where the father has not demonstrated any real insight into his actions and behaviour – final Orders made for the children to spend time with the father as agreed and for the mother to have sole decision making responsibility.

FAMILY LAW – PARENTING – Final orders made by consent for the mother to have sole-decision making responsibility and for the children to live with the mother – Where the Independent Children’s Lawyer does not oppose the final orders but seeks an opportunity to meet with the children prior to the making of the orders to consider whether there should be an order for the children to attend therapy – Where the Independent Children’s Lawyer clearly has confidence in the mother’s sole-decision making responsibility – Where a further delay in finalising the Consent Orders is in no party’s interest – Orders made in accordance with the Consent Orders.

COSTS – Where the Independent Children’s Lawyer made an application for costs fixed in the sum of $7,134.88 – Where the mother opposed an order for costs – Where the father conceded to an order to pay half of the Independent Children’s Lawyer’s costs – Where the mother and the Independent Children’s Lawyer were afforded the opportunity to provide written submissions to chambers as to costs – Order made for the father to pay half of the Independent Children’s Lawyer’s costs – Further orders made for the outstanding costs dispute as between the mother and the Independent Children’s Lawyer to be determined in chambers on the papers.

FAMILY LAW – PROPERTY – TRUSTS – PROPER PURPOSE RULE – Declaration sought – Whether declaration necessary – Where a determination is sought that trusts and/or trust assets are property of the marriage or either of them within the meaning of the Family Law Act 1975 (Cth) – Where it is determined that the trusts are not a sham or alter ego of the husband – Where the wife is an excluded beneficiary of the trusts – Where the assets of the trusts do not represent labours or contributions of either party –Where the husband and wife have accumulated significant wealth outside the trusts from which a just and equitable settlement may be achieved – Where it is conceded that the trusts’ assets are a financial resource of the husband for the purposes of s 79 – Where it is decided that the trusts and/or trust assets are not property within the meaning of s 79.

FAMILY LAW – SLIP RULE – COSTS – ENFORCEMENT – Consideration of rule 10.13 of the Federal Circuit and Family Court Rules of Australia (Family Law) (2021) (Cth) –Where a two-pool approach was adopted at Final Hearing – Where it was argued that legal fees were added back to the incorrect pool – Where there was a difference of opinion as to the Court’s intention for making the relevant orders – Where the slip rule application to vary final orders was dismissed – Where the Court found that the remedy sought by the slip rule application could only be achieved by a successful appeal– Where a party unreasonably rejected an offer of settlement – Where ownership of property was passed between the parties by way of partial property distribution and the obligation to deliver the property remained– Where the enforcement application did not permit the Court to order the payment of monetary compensation in respect to the loss of the property – Where an s 79A application was required to set aside final orders in the event of impracticability – Where one party prosecuted a case based on insufficient evidentiary material in respect of alleged criminal conduct.

FAMILY LAW – PROPERTY – Where first respondent wife and her adult son, the second respondent, claimed real property held on trust by wife for adult son – Where trust case abandoned on the last day of trial – Where wife says it is not just and equitable to make a s 79 Order – Where husband seeks a 50-50 adjustment of property – Where just and equitable to make an order – Where s 79 adjustment Order made – Where property to be sold – Where valuation old and wife has no capacity to pay out the husband.

FAMILY LAW – ARBITRATION – PRACTICE AND PROCEDURE – Joint application for orders pursuant to s 102NA of the Family Law Act 1975 (Cth) in proceedings referred to s 13E arbitration – Where it is uncontroversial that the mandatory provisions of s 102NA would apply to a s 79 trial – Where it was submitted that an arbitration hearing is in essence a court sitting exercising identical jurisdiction – Where s 13E of the Act does not confer judicial power on an arbitrator – Where the production of an arbitral award is not an exercise of a s 79 power – Application refused.

FAMILY LAW – PROPERTY ADJUSTMENT PROCEEDINGS – not just and equitable to make any adjustment – lavish and extravagant lifestyle founded on apparent but hollow wealth – $300 million shortfall to creditors of corporate entities – intervening liquidators – husband living in Country P – lack of disclosure by husband in relation to Country P properties – wife left with care of children absent financial support for such from husband – whether a property is held on constructive trust by wife for her mother – no constructive trust.

LEGAL PRACTITIONERS – intervening solicitors – solicitors seeking to enforce debts – void fee agreement – no fee agreement – failure to comply with Legal Profession Uniform Law 2014 (NSW) requirements – restraint from commencing enforcement proceedings due to non-compliance with Legal Profession Uniform Law 2014 (NSW) – Judiciary Act 1903 (Cth) – restraint on commencing proceedings to enforce debt picked up –restraint does not prevent proceedings to establish existence of security – declaration as to charge – whether a solicitor was retained as a solicitor – solicitor undertaking support as friend and as solicitor – mixing of non-legal and legal assistance – solicitor’s claim of possessory lien over jewellery – jewellery purportedly secured to prevent removal by husband – solicitor exercising control over jewellery without consent – conflict of interest – no lien arising – fruits of litigation lien – lack of fruit – lack of proof of causal connection to fruit – no fruits of litigation lien – repeated attempts to tender privileged communications in proceedings – referral to Legal Service Commissioner.

FAMILY LAW – PARENTING – Time Arrangements – Where the applicant sought to increase the time he spends with the child in a progressive regime – Where the applicant proposes that such regime span 10-weeks and result in time between him and the child for three-nights per-fortnight and on one other afternoon – Where the respondent opposed any increase in time between the applicant and the child – Where the Independent Children’s Lawyer proposed a progressive regime which results in time between the applicant and child reaching six-hours per week – Where the Court finds that time between the applicant and the child should only occur during the daytime – Where the Court orders a gradual increase in time between the child and the applicant.

PARENTING – Expert Evidence – Where the applicant alleges bias on behalf of the Single Expert appointed in parenting proceedings between the parties – Where the applicant sought that the Single Expert be discharged – Where the applicant sought that a new Single Expert be appointed to prepare a report for any upcoming hearing – Where the respondent and Independent Children’s Lawyer sought that the current Single Expert prepare an updating Expert Report –Where the Court finds there is no jurisdiction to discharge a Single Expert –Where the Court orders an updating Expert Report – Where the Court and sets the matter down for final hearing.
 

FAMILY LAW – PROPERTY – Where consent orders were made between the respondents finalising property proceedings between them – Where the applicant is a creditor of the second respondent arising from proceedings in Country N  – Where the applicant seeks that the consent orders be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the second respondent has not participated in the proceedings but the application is opposed by the first respondent – Where the matter was listed for a threshold hearing – Where the applicant pressed an application for summary judgment at the threshold hearing – Application dismissed.

FAMILY LAW – PARENTING – Whether the father’s time with the child should be unsupervised – Where the child has a variety of special needs – Where both parties have mental health vulnerabilities – Orders made for the child to spend supervised time with the father each fortnight for two years, followed by unsupervised time for three hours each fortnight.

FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where applicant is the maternal uncle – Where the mother and her child of a previous relationship are deceased – Where the father is charged with their murder – Where the applicant is working with the Department to support the children – Where the Department support the children remaining with the applicant – Where the applicant can support the children’s connection with and positive appreciation of their shared Aboriginal culture – Where the father consents to final orders being made – Where there is no reason to delay finalisation of the matter – Final Orders made.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for order pursuant to section 102NA of the Family Law Act 1975 (Cth) – Where mandatory aspects of the provision do not apply – Where there are limited allegations as between the parties – Where the trial is imminent – Application refused.

FAMILY LAW – STAY – Where the applicant sought a stay of final parenting orders the subject of appeal – Where the orders involve a change of residence from the applicant’s care to the third respondent’s care and relocation of the child – Where the third respondent opposed the stay and sought a recovery order issue – Where the third respondent contends that the appeal would not be rendered nugatory in the event a stay was not granted – Consideration of the child’s best interests – Where the Court is persuaded that the application is brought bona fide – Application granted.

FAMILY LAW – PROPERTY – Appointment of adversarial experts – Parties unable to agree on terms of expert appointment – Intractable conflict between parties – Parties granted leave to each engage an expert witness to prepare report – Matter involves trading of cryptocurrency.

FAMILY LAW – PARENTING – Application for adjournment of resumption of final hearing – Where the final hearing was adjourned by consent with structured orders for the child to be re-introduced to the father – Where no time has occurred – Where the father failed to pay the costs of the updating expert report – Where the father failed to file his updating evidence in accordance with the orders – Where no explanation is offered by the father – Where ethical issues arose between the father and his solicitors on the morning of the resumption – Consideration of the child’s best interests – Adjournment refused – Counsel granted leave to withdraw.

FAMILY LAW – NULLITY – Where the parties jointly make application for a decree of nullity of marriage – Where the Second Applicant was married to another person at the time of the purported marriage – Where a divorce order in respect of the Second Applicant’s first marriage was obtained after the Applicants’ purported marriage – Where the marriage between the Applicants is void – Decree of nullity made – Where referral made to Office of the Commonwealth Director of Public Prosecutions for consideration of whether the Second Applicant should be prosecuted for bigamy or other offences.

FAMILY LAW – COSTS – Where subpoenaed party seeks order that their compliance costs are paid for by the applicant wife – Where wife seeks that this application be dismissed or, alternatively, that the husband pay the costs – Where subpoenaed party seeking costs has been found not to have complied with the notice requirements set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Application for costs dismissed.

FAMILY LAW – MARRIAGE - Nullity – Where the applicant’s domicile was determined by her parent’s domicile -Domiciled in Australia – Applicant under the age of 18 at time of marriage – Marriage void.

FAMILY LAW – PARENTING – Ex Tempore Reasons –Where a raft of final parenting orders were made by consent on the final day of the trial – Where the only issue remaining to be determined by the Court is the children’s school term time spending.

FAMILY LAW – PRACTICE AND PROCEDURE – application by the applicant for an adjournment of the trial – adjournment application refused.

FAMILY LAW – PROPERTY – Practice and Procedure – Where the Court determines a contested interim application for valuation – Where the Respondent concedes that a valuation should occur – Where the Respondent suggests that her safety is at risk if the Applicant were to attend the former matrimonial home with the proposed expert valuer – Where the Respondent does not lead sufficient evidence to validate her allegations of safety risk at an interim stage –Where the Court makes consent orders permitting valuation to occur – Where the Court makes contested orders permitting the Applicant to attend the former matrimonial home with the proposed expert valuer.

FAMILY LAW – FAMILY LAW – COSTS – Application made for the parents to contribute to the costs of the Independent Children’s Lawyer – Where the mother would suffer financial hardship – Orders made for the father to pay half of the costs of the Independent Children’s Lawyer.

FAMILY LAW – PROPERTY – Assessment of contributions – relatively short relationship – Where the husband had intermingled/messy financial transactions with family members in business ventures – Final property adjustment orders made that achieve justice and equity to both parties.

FAMILY LAW – EX-TEMPORE – PARENTING – Jurisdiction – Child is an Australian citizen – Child taken to Lebanon contrary to wishes of the applicant – Applicant has established prima facie case that child is habitually resident in Australia.

FAMILY LAW – PROPERTY – Where the parties have limited financial assets – Where the financial proceedings remained reserved whilst the parenting proceedings, subject to appeal and cross-appeal, where subsequently remitted – Where it was appropriate for the financial proceedings to remain reserved until finalisation of the remitted parenting proceedings – Final orders made to achieve finality between the parties.

FAMILY LAW – ENFORCEMENT – Where final orders had been made in 2017 – Where the orders required the applicant to pay the respondent $34,000 within 30 days and for him to transfer to her his right, title and interest in a property – Where contemporaneously with the transfer, the applicant was to release the respondent from his personal covenants to a bank – Where the respondent contends the applicant did not comply with the 2017 orders and that it would now be inequitable to enforce the orders – Where the Court is not persuaded that it would be inequitable to enforce the orders.

FAMILY LAW – COSTS – Application for costs made a Respondent – Where the Applicant in the substantive proceedings has been entirely unsuccessful in maintaining his joinder of the Respondent – Costs order made as agreed and failing agreement as assessed on scale on a solicitor and own client basis.

FAMILY LAW – PROPERTY – De facto relationship – Where the applicant seeks leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) to commence proceedings out of time for financial adjustment – Where applicant filed over 10 years out of time – Where respondent opposed the application – Where hardship is established – Leave granted to the applicant to commence proceedings out of time – Where it is just and equitable to make orders adjusting the parties’ property interests –Where the applicant’s financial contributions at the commencement of the relationship were vastly superior – Where a two pools approach is appropriate – Where the parties’ contributions were equivalent during the relationship – Where the applicant’s contributions to the care and welfare of the children outstripped those of the respondent since separation in 2011 and continues – Contributions entitlement in respect of the first pool assessed as 73/27 – Where the respondent contended he failed to pay taxation liabilities due to paying mortgage – Where the applicant and respondent have significant and comparable earnings as a specialised professional advisor and principal of a professional advisory service – Where adjustment is made of the first pool and no adjustment of the second pool is warranted – where modest adjustment of two per cent in the favour of the applicant in circumstances where she continues to have the primary care of the children who both have special needs – Where no order adjusting superannuation is sought – Where orders are made for applicant to receive 75 per cent of the first pool and no adjustment on the second pool and the respondent to receive 25 per cent of the first pool and no adjustment of the second pool.

FAMILY LAW – COSTS – Application for costs made by the Respondent – Where the Applicant in the substantive proceedings was wholly unsuccessfully in his application for property adjustment orders – Costs order made in a fix sum.

FAMILY LAW – PROPERTY – Enforcement application – where the husband seeks further payment from the wife in relation to final property orders – where the wife seeks that her liability be offset – wife ordered to pay fixed amount.

PRACTICE & PROCEDURE – Slip Rule – where the wife seeks to amend final property orders pursuant to the Slip Rule – where the alleged slip related to a finding of fact – no slip - application refused.