Judgments

FAMILY LAW – PRACTICE AND PROCEDURE – Objection to subpoena – Where the husband caused a subpoena to issue to the wife’s former solicitors – Where the substantive proceedings relate to a challenge to a Binding Financial Agreement – Where the solicitors the subject of the subpoena were retained by the wife in respect of a claim made pursuant to s 79 of the Act – Where the wife objected to the subpoena on grounds of legal professional privilege and relevance – Where the husband contended the wife had waived legal professional privilege and that the subpoena had apparent relevance – Where the Court is not satisfied that the wife had waived privilege – Where the Court is not satisfied that the subpoena had apparent relevance – Subpoena is set aside.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment – Where the matter has been accorded significant priority – Where the parties have undertaken significant preparations for the trial – Where the application is dismissed.

FAMILY LAW – PROPERTY – Modest pool – Assessment of contributions – Final property adjustment orders made that achieve justice and equity for both parties.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife made an oral application to adduce further evidence from an expert other than a ch 7 single expert on the morning of the first day of a three day trial – Where orders had been made directing the parties to cause any ch 7 single expert evidence to be obtained and/or updated on or before the trial – Where the wife did not avail herself of the procedures pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the wife served the evidence proposed to be adduced on the husband one business day before the commencement of the trial – Where the husband contends prejudice due to the lateness of the evidence – Where there may be a significant likelihood that the time and cost of the trial will be impacted should the wife be successful in her oral application – Where the husband must be afforded procedural fairness – Where the wife is not foreclosed from challenging the relevant single ch 7 expert evidence – Where the interests of justice are not compromised by refusing the adducing of the evidence – Wife’s oral application to adduce expert evidence is dismissed.

FAMILY LAW – PROPERTY – Application for final property settlement orders – Dispute in relation to property pool and value of assets – Where applicant husband operates a business and respondent wife performed homemaker duties – Insufficient disclosure by the husband caused complications in the valuation of the business – Initial contributions favour the husband – No medical evidence as to future needs or capacity – Property to be divided 52.5 per cent to the husband and 47.5 per cent to the wife – Five per cent adjustment in favour of the wife pursuant to s 75(2) of the Family Law Act 1975 (Cth) – No matters of principle.

FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Where the Independent Children’s Lawyer made an application for the parties to share the ICL’s costs – Where the relevant principles prohibit costs orders despite the parties conduct.

FAMILY LAW – COSTS – Between parties – Where a Notice of Discontinuance was filed – Where an application is made for costs – Where the applicant has been wholly unsuccessful – Where it does not appear the application had any reasonable prospect of success – Where costs are ordered on an indemnity basis fixed in the amount of $239,000.

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – adjournment application by the first respondent – adjournment sought to allow time for adversarial expert to produce a report – intended adversarial expert engaged two weeks prior to trial – application dismissed.

FAMILY LAW – CHILDREN – Oral application for interim change of residence – Where trial adjourned part-heard due to the mother having some kind of episode during cross-examination and leaving the court by ambulance for hospital – Where unchallenged psychiatric expert opinion points to the mother’s likely erratic behaviour and serious safety concerns for the children if the mother perceived her case may not prevail – Where the father and ICL seek an interim change of residence of the children to the father and moratorium on the children’s time with the mother – Where father is able to promote children’s safety – Orders made for change of residence on an interim basis and moratorium on the mother’s time.

FAMILY LAW – Application for Review of Registrar’s Decision – where recent circumstances have overtaken the utility of the application – application dismissed.

FAMILY LAW – PROPERTY – Where the matter was listed for a final hearing in relation to both parenting and financial proceedings but where the parenting issues consumed the majority of the trial – Where final parenting orders were made and judgment was reserved in relation in financial issues following the filing of written submissions – Where both parents appealed the final parenting orders resulting in, ultimately by consent, the parenting proceedings being remitted for hearing – Where such rehearing has already consumed six days of judicial resources in late July and early August 2025 and remains part heard, with the second tranche of that hearing to commence in late October 2025 for a further four days – Where the father seeks there be no further delay to final financial orders being made, noting the children are presently in his primary care – Where the mother seeks financial orders issue following the finalisation of the parenting proceedings – Financial proceedings to remain reserved until the finalisation of the parenting proceedings due to the nature of the parties’ financial applications before the Court.

FAMILY LAW – Question of whether the Court is seized of jurisdiction pursuant to s 111CD(1)(e) of the Family Law Act 1975 (Cth) – where the applicant submitted that for Subdivision B, Division 4 of Part XXXIIIAA of the Act to apply the existence of a foreign competent authority and the nature and extent of its jurisdiction in relation to the person of a child, over whom this Court could also exercise jurisdiction, must be resolved by evidence – where the independent children’s lawyer and the respondent did not provide evidence on the issue assuming the applicability of s 111CD(1)(e) – where Subdivision B, Division 4 of Part XXXIIIAA of the Act does not apply.

FAMILY LAW – PARENTING – Urgent interim application – Urgent oral application brought by the Independent Children’s Lawyer – Where previous Orders for child to live with mother – Where child and mother living in women’s shelter – Where mother and child asked to leave women’s shelter due to mother’s drug use – Where mother admits to current drug use – Where father has assumed child into his care due to concerns regarding the mother – Where Final Hearing is listed – Previous live with orders suspended – Child to live with the father – Child to spend supervised time with the mother.

FAMILY LAW – COSTS – Costs ordered for contravention finding – Costs ordered for 50% of the father’s costs determined on a party and party basis – Application for indemnity costs rejected – The mother’s financial circumstances considered – The mother failed to comply with previous orders of the court – The mother did not respond to settlement proposals – The mother’s conduct during a changeover not considered to be ‘conduct in relation to the proceedings’ under section 114UB(3)(c) of the Family Law Act 1975 (Cth).

FAMILY LAW – JURISDICTION – Whether a Judge of the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to determine a review of a decision of a registrar exercising powers of the Federal Circuit and Family Court of Australia (Division 2) – Where an order was made by a registrar exercising the powers of the Federal Circuit and Family Court of Australia (Division 2) – Where the registrar transferred the matter to the Federal Circuit and Family Court of Australia (Division 1) – Where an Application for Review was filed by the respondent in the substantive proceedings after the transfer – Consideration of ss 100 and 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the Court requests the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) transfer the proceedings to the Federal Circuit and Family Court of Australia (Division 2).

FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to re-open made by the Independent Children’s Lawyer – Where leave is granted to re-open the proceedings to adduce further evidence.

FAMILY LAW – REVIEW APPLICATION – decision of registrar not to accord the injunction application urgency – held, registrar erred in not according this case urgency.

FAMILY LAW – FAMILY LAW – PRACTICE AND PROCEDURE – Where mother applies to adjourn the trial and seeks extension to file material contrary to Trial Directions – Where mother caused two earlier trials to be adjourned – Where the mother is legally represented – Where the serious allegations made by each parent need to be tested and a best interests determination without further delay – Where any prejudice to the mother outweighed by injustice to the other parties and the best interests of the children – Application to adjourn dismissed – Application for filing extension falls away.

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the mother seeks an adjournment one month before final hearing– Where the father and Independent Children’s Lawyer oppose adjournment – Where adjournment is not warranted – Consideration of AON Risk Services v ANU – Consideration of s 69ZN of the Family Law Act – Where adjournment application dismissed – Orders made extending time for mother to file material.

FAMILY LAW – JURISDICTION – Where the husband has commenced proceedings in Australia and the wife has commenced proceedings in Hong Kong – Where the wife has filed an application to stay the proceedings in Australia – Where the husband sought an anti-suit injunction –Where Australia is a clearly inappropriate forum – Where the husband’s application for property adjustment is permanently stayed.

DIVORCE – Where the wife seeks a stay of the husband’s application for a Divorce Order as an abuse of process – Where the husband filed an Application for Divorce in Australia some eight months after the wife had filed a Divorce Petition in Hong Kong – Where the Court is satisfied that the husband’s application for a Divorce Order is an abuse of process.

FAMILY LAW – PARENTING – Whether either parent poses an unacceptable risk of harm to the child – Where mother maintains her belief the father poses a risk to the child – Where mother has perpetrated family violence – Where mother poses an unacceptable risk of harm to the child – Where the Court is satisfied that such risk can be ameliorated through long term professional supervision – Where maintaining the child’s relationship with the mother outweighs the identified risks.

PROPERTY – Where initial contributions were in dispute – Where the parties made equal contributions during the relationship – Where notional property not added back but where appropriate to consider under s 75(2)(o) of the Act – Where adjustment under s 75(2) of the Act is warranted – Where father has primary care of the child – Where just and equitable outcome found to be that the parties’ property be divided 55/45 in favour of the father.

FAMILY LAW – INTERIM PARENTING – Where the mother sought that orders made in August 2024 for the children to spend supervised time with the father be discharged until the children engage with a psychiatrist– Where the father sought that the application be dismissed – Where the children have spent no time with the father despite the August 2024 order – Where the mother contended further evidence about the children’s mental health constituted a significant change – Where the father contended that none of the information was truly new but was more a continuation of the same – Where the parties were asked to make submissions about the potential of two periods of supervised time between the father and children pursuant to s 65L of the Family Law Act 1975 (Cth) – Where orders are made to dismiss the mother’s application – Where supervised time is ordered to occur pursuant to s 65L of the Act.

FAMILY LAW – BINDING FINANCIAL AGREEMENT – Where the parties signed an agreement for the property and maintenance of the parties – whether the agreement is a financial agreement – where provision made for maintenance of the spouse parties – where there is failure to provide for how the property or financial resources of the parties will be dealt with on the breakdown of the marriage – Orders made that agreement is a financial agreement with respect to spousal maintenance only.

FAMILY LAW – PRACTICE AND PROCEDURE – application for stay of property and maintenance orders pending final hearing.

FAMILY LAW – PARENTING – consent orders reached in relation to most issues in dispute pertaining to parental responsibility, live with and spend time arrangements – two outstanding issues to be determined relating to who the father resides with and spend time arrangements with the father over summer holidays.

FAMILY LAW – LEGAL PRACTITIONER – Where Counsel accepted a brief in a five-day parenting trial before this Court – Where Counsel was already briefed to appear in a part-heard trial before another Judge of Division 2 of the Court during the five-day parenting matter – Where the part-heard trial was adjourned – Where show cause orders made by this Court – Where show cause order included an order requiring Counsel to file any affidavits he had previously been ordered to file in relation to his conduct – Where order made by another Judge of Division 1 of this Court for Counsel to file an affidavit about his conduct – Where Counsel did not comply – Where second order made by that other Division 1 Judge for him to comply – Where Counsel complied – Where Counsel chose not to file that affidavit in this Court contrary to the specific order in the show cause Order – Where Counsel submits he “chose” not to file that affidavit contrary to Orders – Where Counsel referred to the Queensland Legal Services Commission.

FAMILY LAW – PRACTICE AND PROCEDURE – Professional conduct –– Where an adjournment of proceedings was sought at the commencement of the third day of a four day trial due to counsel’s ill health – Where counsel for the mother was briefed in two matters in different courts listed on the same date – Where an adjournment was granted due to unavailability of the mother’s counsel – Where Counsel was given an opportunity to explain the circumstances but failed to clearly do so – Where conduct is referred to the Queensland Legal Services Commission.

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 – Where final property orders were made by consent in the Supreme Court of NSW in 2008 – Application to exclude evidence based on estopped – Where the parties were in a relationship for a further 12 years – Contributions assessment – Whether the parties initial contributions were equal – Where the husband contends greater initial contributions – Where the wife seeks a contributions adjustment pursuant to Kennon & Kennon (1997) FLC 92-757 –Where the husband denied all incidents of family violence – Where the Court finds that the husband perpetrated family violence such that a contributions adjustment is warranted – Whether the husband provided full and frank disclosure – Where the husband unilaterally borrowed funds pre and post separation without knowledge or consent – Where the wife seeks adjustment under s 75(2)(o) of the Family Law Act 1975 (Cth) – Court determines 70/30 in favour of the wife is just and equitable.

FAMILY LAW – PARENTING – Practice and procedure – Application to vacate five day final hearing on first day of trial – Where father’s legal representatives and ICL advise court father does not appear to have cognitive capacity to give instructions – Where father has cancer – Father on strong medications – Where medical history and treated consistent with possible declining cognitive capacity as noted by Court Child Expert – Final hearing vacated and father’s representatives to seek evidence of cognitive capacity.

FAMILY LAW – PROPERTY – Financial agreement – Where judgment was entered against the husband in favour of the applicant in another court – Where the day after judgment the husband and wife entered into a binding financial agreement under which the husband transferred the matrimonial home to the wife – Where the husband subsequently became bankrupt – Where the trustee in bankruptcy and the wife entered two deeds under which the trustee gave up any rights under the Family Law Act 1975 (Cth) (“Family Law Act”) – Where the applicant is a creditor of the husband – Where the applicant sought to set aside the binding financial agreement and the two later deeds – Claims under s 90K and s 106B of the Family Law Act – Jurisdiction under the Bankruptcy Act 1966 (Cth) – Claims under s 90-15 of the Insolvency Practice Schedule (Bankruptcy) – Claims under s 37A of the Conveyancing Act 1919 (NSW) – Where the binding financial agreement is liable to be set aside under s 90K of the Family Law Act – Where there is no basis to impugn the trustee’s intention or regard his decisions as commercially unsound – No merit in claims against the later two deeds – Futile to set aside the binding financial agreement where it has been superseded by the two later deeds – Application dismissed.

FAMILY LAW – PROPERTY – Application for property division – Balance sheet items – Loan between de facto parties – Claim the first respondent has a beneficial interest in a property owned by his parents by way of a resulting trust – Where contributions to a mortgage do not give rise to a resulting trust – Claim for damages pursuant to undertakings given by the applicant in support of interlocutory injunctions – No liability for damages established – Whether it is just and equitable for any adjustment of property to be made – Short relationship – Where the applicant made the bulk of the financial contributions – Where the first respondent was the primary homemaker and carer of the child – Where the first respondent will continue to be the child’s primary carer – Where the applicant holds all of the assets – Property adjustment just and equitable – Property pool distorted by the loan between the de facto parties – Order cancelling the liability under the loan – Where the parties will otherwise retain their own property.

FAMILY LAW – COSTS – Between parties – Where an application is made for costs – Where the wife made an early offer to settle – Where the offer was rejected – Where the wife submits the offer would have afforded the husband a superior outcome than he received at trial – Where the wife alleges the husband’s conduct in unnecessarily pursuing issues with no prospect of success increased her costs – Where the husband allegedly died after written submissions were filed – Where no death certificate – Where the Court has jurisdiction to determine the costs application – Where a costs order is made.

FAMILY LAW – Question of whether the Court is seized of jurisdiction pursuant to s 111CD(1)(e) of the Family Law Act 1975 (Cth) – where the applicant submitted that for Subdivision B, Division 4 of Part XXXIIIAA of the Act to apply the existence of a foreign competent authority and the nature and extent of its jurisdiction in relation to the person of a child, over whom this Court could also exercise jurisdiction, must be resolved by evidence – where the independent children’s lawyer and the respondent did not provide evidence on the issue assuming the applicability of s 111CD(1)(e) – where Subdivision B, Division 4 of Part XXXIIIAA of the Act does not apply.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Whether subpoenas should be set aside – Objection to subpoena by a non-party – Non-party does not have standing to object to subpoena – Challenging a previous factual assertion found to be a legitimate forensic purpose.

FAMILY LAW – FAMILY LAW – PARENTING – Where the mother’s poor mental health remains unaddressed – Where the child to live with the father as primary carer – Being proposed consent orders between father, Independent Children’s Lawyer and mother’s litigation guardian found to be in the child’s best interests.

PROPERTY – Short relationship – Where the father’s substantial initial contributions significantly outweighed the mother’s – Where the father will continue as the child’s primary carer – Adjustment to the mother pursuant to section 79(5) of the Family Law Act 1975 (Cth) for her future needs – Where the Court was satisfied the proposed orders were just and equitable.

FAMILY LAW – PARENTING – undefended Final Hearing – where the father, 76, had a stroke causing severe receptive and expressive aphasia – no capacity to parent, give instructions, or engage in Final Hearing – institutionalised with poor prognosis – where the father’s solicitors have withdrawn due to inability to obtain instructions – where no litigation guardian available – where father subject to unresolved criminal proceedings for alleged sexual abuse of another child – where Independent Children’s Lawyer seeks undefended hearing – where it is appropriate to conduct an undefended final hearing – where the children are to live with the mother and the mother is to have parental responsibility and sole decision making responsibility – no orders concerning time with father – where the father may have grounds to have final parenting orders reconsidered should he regain cognitive capacity.

FAMILY LAW – PRACTICE & PROCEDURE – a variety of contested interlocutory applications debated ahead of trial.
DERIVATIVE ACTION APPLICATION – hearing of application deferred to 20 April 2025.
 

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Application for stay of orders of the Federal Circuit and Family Court of Australia (Division 1) pending appeal hearing – Circumstances in which a stay should be granted – Appeal dismissed – Stay application dismissed.

FAMILY LAW – PROPERTY – Where the wife has a litigation guardian – Where the wife has not signed a Deed of Release – Where the wife or her litigation guardian is required to sign a Deed of Release in settlement of proceedings in the Supreme Court of Queensland – Order made to require the wife to sign the Deed of Release.

FAMILY LAW – CHILDREN – Parenting Orders – Where the father resisted an Autism assessment maintaining that the child’s developmental delays were the mother’s fault – Where there is significant conflict regarding the child’s health needs – Where the father’s focus on blaming the mother hindered professionals being able to give the best advice for the child – Where both parents have capacity to provide for the child’s needs – Where an equal time arrangement with frequent time each week with each parent is in the child’s best interests – Where the mother will have sole decision-making responsibility for health, medical and allied health treatment for the child.

PROPERTY SETTLEMENT – Just and equitable –Where the wife received significant inheritances before and during the marriage – Where the parties had no joint loans and maintained separate bank accounts – Where each party held assets in their own name – Where the parties lived in property owned by the wife and the husband paid rent – Where it was argued there was no conscious decision to keep separate finances – Where there is no principled reason to adjust the existing property interests – Where the application is dismissed.

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer made an application to the Court for the mother to pay the costs of the Independent Children’s Lawyer in their entirety – Circumstances justifying order – Where the mother was not wholly unsuccessful - Where the Court makes an order for the mother to pay one half of the costs incurred by the Independent Children’s Lawyer.

FAMILY LAW – COSTS – Where following the making of consent orders the ICL sought the parties pay the ICL’s costs in equal shares – Where the parties requested the Court make orders for the filing of written submissions as to costs by all parties – Where the ICL complies with the orders – Where the applicant and respondent fail to comply with the orders they requested the Court make – Consideration of s 114UB of the Family Law Act 1975 (Cth) – Consideration of the overarching purpose of family law litigation – Where the conduct of the applicant and respondent in putting the ICL to the cost of preparing written submissions as to costs seeking a very modest amount by way of costs was inconsistent with the overarching purpose – Where the conduct of the applicant and respondent in having put the ICL to the cost of preparing written submissions as to costs and not then bothering to comply with orders they sought the court make is discourteous and contemptuous – Where the Court considers that both parties have the financial capacity to contribute to the costs of the ICL – Orders made that parties pay the ICL’s costs.

FAMILY LAW – PARENTING – Final parenting orders – Where the subject children are aged 13 and 10 – Where the mother and Independent Children’s Lawyer propose the children should continue living with the mother and spend limited supervised time with the father – Where the father seeks orders that the children live with him and spend time with the mother – Where there is extensive past involvement by the State child welfare agency with the family – Where the father has made commendable attempts to improve his parenting capacity but failed to accept responsibility for his gross family violence – Where the father lacks insight as to how his cognitive deficit, physical disability, and drug use affect his parenting capacity – Where the mother’s parenting capacity is superior to the father’s – Where the parties live nearly eight hours apart by car – Where the father suffers from spine and neck injuries and complains of the long travel – Where the father is supported by an NDIS worker – Ordered the children live with the mother and she have sole parenting responsibility for them – Ordered the younger child spend an eight hours unsupervised visit with the father every second month – Where no orders are made for the elder child who may spend time and communicate with the father as she wishes.

PROPERTY – Final property orders – Where the only substantial asset between the parties is the former matrimonial home – Where the father received compensation for the injuries he suffered in an accident in 2008 – Where the father used the compensation payment to purchase the former matrimonial home – Where the contributions of the parties are assessed globally to be equal – Where the father conceded an adjustment in the mother’s favour was proper – Where the court orders a 60/40 split in the mother’s favour – Where if the father is unable to raise the funds he must sell the former matrimonial home to pay the mother.
 

FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where applicant is the mother’s eldest child of an earlier relationship – Where subject children are the mother’s youngest children from a subsequent relationship – Where applicant’s and subject children’s mother recently deceased – Where subject children’s father also deceased – Where sibship of applicant, her children and subject children close – Where applicant and subject children indigenous – Where applicant will support and encourage the children’s connection with and positive appreciation of their shared culture – Where paternal family support subject children living with applicant – Final Orders made.

FAMILY LAW – Practice and procedure – application to stay parenting orders for change of residence – where the father is entitled to the benefit of judgment – application dismissed.

FAMILY LAW – ENFORCEMENT – Where the parties have been engaged in protracted litigation for over five years – Where the wife seeks enforcement of a final order made at trial in terms that were constructed by the parties – Whether specified items were the property of a trust as at 30 June 2024 – Relief sought by the wife achieved in part –,Orders made to facilitate the delivery of items of property.

FAMILY LAW – PRACTICE & PROCEDURE – a variety of contested interlocutory applications debated ahead of trial.

COMPANY LAW – DERIVATIVE ACTION APPLICATION – hearing of application deferred to 17 November 2025.

DISCLOSURE – affidavit of documents – whether second respondent should be ordered to make an affidavit deposing to what happened to documents not disclosed.

FAMILY LAW – COSTS – Where a third-party company seeks its costs in respect of subpoenas set aside by the Court – Where a third-party company seeks its costs arising from the proceedings in respect of those subpoenas – Where the wife was wholly unsuccessful with respect to twenty-two subpoenas to which objection was taken by the company.

FAMILY LAW – COSTS – Where the wife sought the joinder of a third-party company – Where the application was dismissed - Wife to pay the costs of the third-party company fixed in a specific amount.

FAMILY LAW – PROPERTY – Whether any property still exists or is likely to still exist from which a property settlement order can be made – Where the wife seeks a property settlement order – Where the husband contends that any property either did not exist in the first place or has been lost by him as a result of unscrupulous unidentified third parties – Where the wife seeks an add back of the proceeds of sale of the former matrimonial home – Where the Court is unable to be satisfied that any of the sale proceeds still exist – Where the wife invites the Court to infer that an overseas transfer of substantial funds was legitimate – Where the Court describes the alleged receipt of such a payment as ‘fanciful’ – Discussion of add backs – Where the Court is not persuaded that property exists – Where the wife’s application is dismissed.