Judgments

FAMILY LAW – PRACTICE AND PROCEDURE – where party is subject to vexatious proceeding order in one relationship applies for leave to institute proceedings in another relationship – leave granted.

FAMILY LAW – PROPERTY – Application by the wife for the husband’s motor vehicle and associated keys to be placed in her care – Where no evidence has been provided to suggest that the husband is not currently in possession of the motor vehicle – Where there are orders preventing the husband from dissipating the marital pool – Husband to deliver the motor vehicle and associated keys to the wife’s solicitors.

FAMILY LAW – ORDERS – Application to vary/set aside final property settlement consent order pursuant to s 79A(1)(c) Family Law Act 1975 (Cth) – Threshold determination of whether there has been a default in carrying out an obligation of the final order – Where numerous breaches of the obligations of the final order are pleaded – Where the Court is satisfied that there has been default in carrying out an obligation of the final order.

FAMILY LAW – COSTS – Applications by the husband and other respondents for costs against a barrister and firm of solicitors who previously acted for the wife, or alternatively, against the applicant wife – Whether there has been exceptional circumstances to justify an order for costs on an indemnity basis – Where it is found that the barrister and firm of solicitors engaged in improper and unreasonable conduct – Where the conduct caused significant costs to be incurred unnecessarily and a waste of Court resources – An order for costs to be paid jointly and severally made against the former barrister and solicitor for the applicant wife – Legal practitioners referred to the relevant state Legal Services Commissioners.

FAMILY LAW – COSTS – PARENTING – Where the mother seeks costs following final consent orders made in relation to parenting proceedings – Consideration of relevant principles under s 117 of the Family Law Act 1975 (Cth) – Where the father should have resolved the parenting proceedings at the dispute resolution conference prior to the trial, because he knew his alcohol consumption had escalated and he was armed with the results of his hair follicle test – Circumstances warranting departure from the usual principle that each party bear his or her own costs – Order that the father pay the mothers costs fixed at $3,300 – Payment to be made in instalments.

FAMILY LAW – PRACTICE AND PROCEDURE – Slip Rule – Where applicant brings an application to amend final orders pursuant to the Slip Rule – Orders made amending final orders pursuant to the Slip Rule.

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING – EQUITABLE RELIEF – ACCRUED JURISDICTION – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the intervener seeks that the Federal Circuit and Family Court of Australia (Division 1) exercise its accrued jurisdiction to determine his claim in the s 79 proceeding – Where the husband made significant direct financial contributions at the commencement of cohabitation, including by way of an interest in a prosperous trading enterprise – Where the intervener claims a 30 per cent interest in that enterprise as recorded in two written agreements made between he and the husband, one of which was entered years before the marriage – Where the husband concedes the claim of the intervener – Where the wife contends that the two written agreements made between the husband and the intervener purporting to allocate 30 per cent of the husband’s interest to the intervener were “fabricated and not genuine” – Claim of the intervener established – Where the nature of the relationship between the husband and the wife was to some extent commercial and characterised by arm’s length dealings, including the clear maintenance of separate financial identities – Where the wife has attempted to machine aspects of her case, including evidence, to obtain a forensic advantage – Where homemaking contributions do not loom large – Where the wife has failed to adhere to her disclosure obligations – Where the wife will have the first opportunity to retain a real property in specie – Orders made adjusting the property of the husband and the wife 83.5 per cent to the husband and 16.5 per cent to the wife.

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 – Parenting – interim hearing – section 65DAAA – change in circumstances – clarification of the law at [79] of Radecki – where both parents seek to either vary or obtain further orders – whether change of residence of one parent necessitates a change of school – whether a change of residence and change of residence is only a “small change” and does not qualify the section 65DAAA test – sufficient change of circumstances for the court to reconsider the final orders found and interim orders made for a change of the children’s school.    

FAMILY LAW – Property – Enforcement application – Where wife seeks to enforce consent order providing her sole use and occupation of former matrimonial home – Where existing intervention order pursuant to state law prohibits husband from attending former matrimonial home – No jurisdiction for this court to make consent order in circumstances where matter had already been agitated pursuant to prescribed state law – Application dismissed – Where wife seeks to join husband’s parents to cause them to vacate former matrimonial home – Application for joinder on discrete issue of enforcement application dismissed. 

FAMILY LAW – Parenting – regional circuit matter – undefended hearing – long period where 5-year-old child separated from primary care giver – child impact report made when equal time proceeding – orders made for a 5/9 nights (3 + 1 + 1), half school holidays and equal decision making responsibility as sought by mother. 

FAMILY LAW – Parenting – Where detailed and careful affidavits of service filed – regional circuit matter – where the matter was listed for mention – where the father did not appear at the hearing – where the court was satisfied the father had been recently released from prison – where the mother made an application to proceed undefended – where the mother sought final orders – where the court is satisfied the father had an opportunity to participate in the proceedings – where there is serious allegations of family violence – where the court proceeded on an undefended basis – where a family violence intervention order was already in place – application for personal protection order refused because of section 114AB(2) – where the orders made were otherwise in line with the mother’s amended application. 

FAMILY LAW – PARENTING – allegations of sexualised behaviour on part of child – competing allegations of risk to child including concerns relating to parental mental health and substance abuse – Father presents as unduly suspicious and critical of Mother and her parenting - longstanding equal time arrangement no longer suitable

FAMILY LAW – Application for review – final parenting orders – application for extension of time to file a review application

FAMILY LAW – PARENTING – unacceptable risk – mutual allegations of family violence – illicit drug abuse – mental health concerns – history of non-compliance with court orders – limited parental insight – conditions to be attached to progression from supervised to unsupervised time.

FAMILY LAW – CHILDREN – International relocation – Where mother seeks to relocate to United States with child who has a medical condition – Where child requires lifelong medical treatment and support – Where the mother has a disability – Where limited weight is placed on the Single Expert Report – Mother permitted to relocate with the child.  

FAMILY LAW – PARENTING – Best interests of children – orders made. 

FAMILY LAW – DIVORCE – husband’s application for divorce in relation to an overseas marriage – respondent wife opposes application for divorce asserting the marriage the subject of the husband’s amended application was to a person other than her – court satisfied the respondent wife was a party to the marriage the subject of the amended divorce application – application for divorce granted – court satisfied proper arrangements have been made for the care, welfare and development of the child of the marriage – divorce order made, to take effect after the expiration of a period of one month.

FAMILY LAW – PARENTING – where the mother who had a psychiatric disorder passed away shortly after giving birth to twins – children initially placed with the Department who organise for children to live temporarily with the maternal grandparents and then supported the twins being placed with father – maternal grandparents seek orders for twins to live with them – grandparents subsequently agree to Consent Orders for twins to live with the father who is of aboriginal descent and for father to relocate in to the future with the children – when the father relocates the grandparents refuse to return children to his care and commence a second round of family law litigation – grandparents re-agitate issues of father’s mental health and allegations he lived in a household where he was subjected to family violence – where maternal grandparents now blame the father for the suicide death of the mother – family violence has occurred in both households – children of mixed racial heritage – maternal grandparents dispute Aboriginal father’s cultural knowledge – considerations of the children’s right to enjoy their culture with others within that culture

FAMILY LAW – DE-FACTO RELATIONSHIP – INTERIM MAINTENANCE – Whether applicant can adequately support herself – Capacity to meet an order for maintenance 

FAMILY LAW – EXTENSION OF TIME – Where an application for a property order is filed four years out of time – Whether the Court should grant leave to institute proceedings – Whether the Applicant will suffer from hardship if leave is not granted – The impact of the legal costs to be paid by the parties on the question of hardship – Whether there is a reasonable explanation for delay – Whether the Respondent will be prejudiced if leave allowed 

FAMILY LAW – PROPERTY – Just and equitable orders made.  

FAMILY LAW – Parenting – Defended Final Hearing - Dispute as to arrangements for one child who is four years old – Where there are allegations of family violence – Where the parents live on the border in two different states – Where there is a dispute about which state the child will attend school – Where the court not satisfied that the father perpetrated coercive and controlling family violence – Order made for joint decision-making for major long term issues – Order made for child to live with the mother progressing to week about 

FAMILY LAW – PRACTICE AND PROCEDURE – application for leave to file a notice of ceasing to act made the day before the commencement of the trial – applicant lawyer not physically present at the hearing – whether there are special circumstances that render it expedient to retain the lawyer on record – whether the trial can fairly proceed by AVL representation – application granted and procedural orders made n

FAMILY LAW – PARENTING – Review of consent order made in exercise of delegated judicial power – overarching purpose – costs  

FAMILY LAW – PROPERTY – lengthy marriage – two children – small asset pool – loan from husband’s parents in dispute – husband’s parents joined as third parties – loan agreement signed by all parties early in marriage – third parties to be repaid funds owed – various contributions deemed to be equal over time – section 75(2) factors favour the wife including care of children and earning capacity – orders for 65 per cent of all assets to be divided in favour of the wife. 

FAMILY LAW – Parenting – Recusal application by the Father  – Where proceedings are part-heard – Where the Mother and Father have both been cross-examined in the first tranche of the proceedings – Where the trial was adjourned part-heard to enable a psychiatric assessment and new family report – Where the Father delayed bringing recusal application by more than 3 months – Where Father claims excessive judicial intervention and lack of procedural fairness – Application dismissed   

FAMILY LAW – PROPERTY – adjustment to the wife for greater contributions and in accordance with the principles in Kennon – further adjustment to the wife for s.75(2) factors – referral of husband to the Commonwealth DPP for consideration of investigation of potential fraud against the Commonwealth.   

FAMILY LAW – appointment and removal of litigation guardian – where proposed litigation guardian is a manager of the affairs of the husband pursuant to rule 3.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – consideration of whether litigation guardian holds interests adverse to the husband – consideration of Thorn & Thorn [2017] FamCA 950 –where the litigation guardian is a director of and shareholder in various entities that form part of the asset pool – where litigation guardian may be called as a witness at the final hearing – finding that the litigation guardian unable to satisfy r 3.14(b) of the Rules – orders for transfer to Division 1 and the Brisbane registry by consent  

FAMILY LAW – interim parenting decision -  one child aged 3 - whether the interim consent orders made on 2 April 2024 providing for the child to spend time with the father at a supervised contact centre should be discharged – whether the child should spend unsupervised time with the father progressing to one overnight each alternate weekend – whether amendments should be made to the father’s current alcohol and drug testing regime – where the court orders that the father’s time be increased but remain supervised – where the court declines to vary interim orders in place with respect to drug and alcohol testing for the father. 

FAMILY LAW – PARENTING – application for final parenting orders – children aged 12 and 9 – mother diagnosed with a mental illness – where father critical and doubtful of mother’s ability to care for children – consideration of best interests of the children under section 60CC of the Family Law Act 1975 (Cth) – consideration of risk – final parenting orders made 

 FAMILY LAW – parenting – final orders – parental responsibility – live with arrangements – mother’s allegations of coercion or control by father – what constitutes coercion or control – findings that father’s behaviour did not amount to coercion or control – not necessary to make definitive findings in respect allegations of sexual assault – order for joint parental responsibility on conditions – order for significant and substantial time progressing to equal shared care  

FAMILY LAW – Parenting proceedings - best interests of child – two children aged 4 and 6 - where the Father resides in Queensland and the Mother resides in Sydney – where the Mother seeks a gradual increase in the Father’s time commencing as supervised and moving to unsupervised – where the Mother seeks orders for her to travel with the Children – where the Mother’s allegations of drug abuse against the Father are unsubstantiated - where the Father seeks his time be unsupervised – where the Father seeks orders permitting both parents to travel with the Children - where the Court orders the Father’s time be unsupervised – where the Court orders both parents be permitted to travel with the Children. 

 FAMILY LAW – PARENTING – where the parties have been involved in litigation for much of the subject child’s life – where the mother seeks the child have time with the father on three occasions per year and the father ultimately seeks an equal time arrangement – where the child has steadfastly refused to spend time with the father – where the mother alleges the child is fearful of the father and the father alleges the mother is unable to facilitate a relationship – where it is found that the father has assaulted the child and supervised visits have been troubling – where the parties positions are extremely polarised – where the single expert engaged in a fact finding exercise contrary to his role – where there are significant limitations to the single expert’s report – where significant weight is not placed on the single expert’s ultimate opinion that the child should be forced to spend time with the father on the threat that if he does not comply he will be moved to live with the father – where it is found the father’s capacity for emotional dysregulation places the child at risk and cumulatively the father’s capacities place the child at significant risk of harm – where such risk is ameliorated by the child spending supervised time with the father as sought by the mother – where the Independent Children’s Lawyer’s  proposal that the mother determine how and when such time occurs is rejected.   

FAMILY LAW – PARENTING – SPEND TIME ARRANGEMENTS – Applicant father seeks order that the three-year-old child spend supervised time with him – Child has spent limited time with father since parental separation three years – Consideration of matters under Part VII Family Law Act 1975 (Cth) – Consideration of the safety of the child and mother –Where father has perpetrated family violence –Where father has conviction for drug offences – Where father has not accepted full responsibility for his harmful conduct – Where father has not taken action to change his pattern of harmful behaviour – Whether there is a benefit to the child of being able to have a relationship with both parents – Consideration of what arrangements will promote the safety of the child – Where supervision of the child’s time with the father will ameliorate identified risks – Whether order for supervised time will promote the child’s safety and meet the child’s developmental, psychological, emotional and cultural needs – Whether mother’s capacity to provide for the child’s needs is preserved if there is an order for supervised time for the child with the father – Where an order for supervised time for the child is in the best interests of the child-Where order for supervised time will meet the child’s psychological and cultural needs – Where order for supervised time will not expose the child or the mother to an unacceptable risk of family violence – Order for supervised time for child with father six times each year – ALLOCATION OF DECISION MAKING – Where it is in the best interests of the child for the mother to have sole decision-making for all major long-term issues relating to the child-RESTRAINTS-COSTS – Independent Children’s Lawyer seeks an order that father pay a proportion of the costs of the Independent Children’s Lawyer – order for costs will create hardship for father – application refused  

FAMILY LAW – Parenting -  Where final parenting orders were made on 7 April 2022 for children to live in equal time arrangement and for parents to have joint decision making – Where Mother filed an application to reconsider parenting orders 18 months later – Where Father opposes change to orders – Where family report does not recommend a change to care arrangements under current parenting orders – Where section 65DAAA applies – where there has been no significant change in circumstances 

 FAMILY LAW – Property – where the matter was listed for final hearing for three days – where after discussion with counsel, it was submitted that this matter could be a five or six day matter – where there was as issue of waiver from professional legal privilege with respondents previous solicitor – where there was a single expert witness appointed to undertake a valuation of the parties business –  where the respondent seeks to admit further evidence of an adversarial witness of another valuation of the parties business – where there is discrepancy between both valuations – where the court ordered for both parties objections to be sent to chambers – where counsel was directed to email their revised objections and their response to these objections to chambers.

FAMILY LAW – DIVORCE – clearly inappropriate forum – application for divorce filed by the wife in Australia – where civil and criminal proceedings are ongoing in Country B – where the husband’s application to stay Australian proceedings is dismissed – where the wife’s application for divorce is granted 

FAMILY LAW – Application for adult child maintenance – Where mother seeks an order for adult child maintenance on the basis that it is necessary to enable the adult child to complete university studies – Where child no longer lives with mother – Where father contributes financially to adult child and has done so throughout his minority – Application for summary dismissal of mother’s application – No reasonable prospect of success in circumstances where adult child does not live with mother and father has and continues to make significant contributions to adult child – Where adult child does not wish to be involved in proceedings – Where application for adult child maintenance for parties’ older adult child previously dismissed and costs ordered – Application for adult child maintenance dismissed. 

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the father seeks an adjournment – Where the mother and Independent Children’s Lawyer oppose the adjournment – Where the reason for the adjournment is unmeritorious – Consideration of the overarching purpose – Where there is no entitlement to an adjournment – Waste of Court resources if adjournments are granted without cogent reasons – Oral application for adjournment dismissed. 

FAMILY LAW – Parenting – Final Order made on 31 May 2021 – father’s application pursuant to s 65DAAA to re-open parenting matters – decision made under the rule Rice v Asplund in 2023 on same evidence – opposed by the mother – father required to undertake hair follicle drug testing - no evidence that the medicinal cannabis does or does not impact his capacity to parent – no independent expert evidence to differentiate between prescribed cannabis and illicit drug use – father’s Application dismissed   FAMILY LAW – Harmful Proceedings Order – the mother seeks that father be restrained from filing further proceedings without the leave of the court – second attempt to re-open child matters - the father has also filed Contravention proceedings and multiple Applications in a proceedings since the final order was made, the father has also filed proceedings in the State jurisdiction and a Human Rights claim alleging discrimination by the mother and the court –mother gives evidence of mental distress and financial harm - application granted 

 FAMILY LAW – PARENTING – child abuse and neglect – child left alone for lengthy periods of time at 2 years of age – criminal conviction – no time order sought – child abuse and neglect substantiated – past allegations of abuse proven – supervised time considerations – whether orders can ameliorate risk of harm to child – risk of harm to child balanced against long-term risks of severing maternal relationship 

FAMILY LAW – PARENTING – Best interests of child – Relocation – Orders made 

FAMILY LAW – PRACTICE AND PROCEDURE – Application to be released from the Harman undertaking – Where the applicant is defending serious criminal charges in the District Court – Where the applicant seeks the release of documents filed in these proceedings for use in the criminal proceedings – Where the Court is satisfied that special circumstances exist which would justify release from the implied undertaking – Order. 

FAMILY LAW – PARENTING – dispute in relation to parenting responsibility and care arrangements for two children aged (9 and 13) – parties each allege the other has perpetrated family violence – father alleges mother has abused the children – competing allegations of risk – assessment of risk – finding children would be exposed to an unacceptable risk of psychological or emotional harm in the care of the father and not in the care of the mother – orders for mother to have sole parental responsibility and for children to live with her and spend limited time with the father, professionally supervised each calendar month – orders permitting the mother to travel internationally with the children –  injunctions made (unopposed) pursuant to section 114(3) restraining the father from contacting the independent children’s lawyer, her counsel and family members, attending at her office or publishing material about the independent children’s lawyer and her family online 

FAMILY LAW – PARENTING – relocation – reconsideration of a final parenting order made in 2019 where the mother seeks to relocate with the child where the father opposes the relocation and proposes the child live with the parties on a week about basis – where the co parenting relationship is characterised by significant, multifaceted and sustained conflict – consideration of the extent of the conflict between the parents and the impact on the child – consideration of whether it is in the child’s best interests to remain in City B or relocate to City C – consideration of parental responsibility – orders made permitting the mother to relocate with the child 

FAMILY LAW - Property – Application to consolidate proceedings - where Wife seeks consolidation of the Family Law Act proceeding with Fair Work Act proceedings – where Husband commenced Family Law Act proceedings for property settlement first – where Wife claims similarity of factual dispute and increased legal costs of two actions requires the proceedings to be consolidated – where there is no power to consolidate the two proceedings – Application to consolidate dismissed – Husband’s costs reserved to trial