Judgments

Division 1 - First instance

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FAMILY LAW – INTERIM PROPERTY – Where the parties each seek to exclusively retain net sale proceeds from properties – Where the husband asserts he will apply the proceeds toward family expenses and pressing financial needs – Where the husband’s financial affairs are less than transparent – Where there has been no independent valuation of the assets – Where the denial of interim funds to the husband may increase the likelihood of insolvency – Where the wife requires funds to pay her expenses – Orders made releasing net sale proceeds to both parties.

INTERIM SPOUSAL MAINTENANCE – Where the wife seeks maintenance – Where the wife was the primary carer and homemaker during the marriage – Where after separation the husband initially paid, but ultimately withdrew, a monthly allowance to the wife – Where, given the interim settlement received, the wife did not establish an inability to support herself such that she required a periodic payment.

ADULT CHILD MAINTENANCE – Where the wife seeks that the husband pay maintenance for the parties’ adult child – Where the parties are at issue about whether the child is disabled – Where the Court is unable to resolve the conflict in interim proceedings– Where the wife’s evidence did not establish that that the child is disabled and requires maintenance – Application dismissed.

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FAMILY LAW – PARENTING – Discrete issues – Where all outstanding parenting issues were resolved by consent on a final basis barring the retention of the child’s name on the airport watchlist and the question of international travel – Where father holds concerns of the mother absconding with the child and wishes for the child to remain on the airport watchlist – Where parties have Country B heritage – Where mother is a permanent resident in Australia and father is an Australian citizen – Where mother has strong employment ties to Australia – Where risk of the mother absconding with the child is low – Consideration of security – Orders made permitting international travel.

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FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks to join the husband’s company and a partner pursuant to Pt 3 of the Federal Circuit and Family Court Rules of Australia (Family Law) Rules 2021 (Cth) – Where the orders sought are by way of enforcement in the event the husband is in default – Where the wife has not established a basis for joinder – Consideration of alternative remedies – Consideration of s 233 and s 461 of the Corporations Act 2001 (Cth) – Consideration of s 40 of the Law of Property Act 2000 (NT) – Application dismissed.

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FAMILY LAW – CHILDREN – Interim proceedings – application by mother for review and subsequent application in a proceeding – mother seeking interim time with child – mother charged with multiple counts of sexual offending against stepchild – mother found not guilty on all counts – in circumstances where mother has not spent time with the child in almost three years – finding that expert opinion would greatly assist in the judicial decision of whether interim time should commence – expert opinion available in about 8 weeks - matter listed for continuation of the interim defended hearing on receipt of single expert report.

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FAMILY LAW – PARENTING – Where the child experienced significant emotional dysregulation which settled following interim orders for a change of residence into his father’s primary care – Where the father seeks a continuation of the interim orders on a final basis – Where the mother seeks an increase of the child’s time in her care – Where the mother has engaged in intensive personal therapy – Allocation of parental responsibility – Application for a change of the child’s surname.

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FAMILY LAW – STAY – Where wife seeks stay of final orders pending outcome of the appeal – Where wife’s previous application for a stay dismissed – Where wife seeks to found second application for a stay on new grounds of appeal – Where no prospects of success in grounds of appeal – Application dismissed.

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FAMILY LAW – NULLITY – Where the applicant brings an application for a decree of nullity of marriage – Where the application was not opposed by the respondent – Where the applicant was legally married to another person at the time of marriage with the respondent – Where the marriage was therefore void – Decree of nullity granted.

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FAMILY LAW – PRACTICE AND PROCEDURE – INJUNCTIONS – Where the wife seeks for an adjournment of the final trial, litigation funding by way of a dollar-for-dollar order, for the discharge of an order restraining her from dealing with her entitlements received on the distribution of the estates of her late parents without first giving notice to the husband and to provide a copy of orders made in this proceeding to the NSW Director of Public Prosecutions as an adjunct to the husband’s pending criminal charges – Where the husband opposes the relief sought by the wife and seeks orders to provide copies of affidavits and case outline documents filed by the wife in these proceedings to be provided to the NSW Department of Public Prosecutions and/or the District Court and Supreme Court of NSW, and for the previous injunctive orders to be varied to require his written consent to any dealings of those funds by the wife – Where these proceedings have been on foot for over eight years – Where the husband does not particularise the prejudice to him of the wife accessing her own property – Application for adjournment of the trial dates and for a litigation funding order dismissed – Injunctive orders discharged – Costs reserved to trial.

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FAMILY LAW – INTERIM PARENTING – Where the applicant mother filed an urgent interim application substantially seeking the same relief sought in her previous interim application which was largely unsuccessful – Where the applicant mother and children previously returned to Country C  by interim order by consent upon an undertaking she would return for court appearances and she would return with the children for family report interviews – Where the respondent father sought a final order that the children live with him in Australia and a recovery order issue if the applicant mother failed to return the children to Australia – Where there has not been a sufficient change to the applicant mother’s circumstances since the previous application to be relieved of her undertaking – Where the applicant mother is bound by her undertaking to participate in the trial and family report interviews with the children in person in Australia.

INTERIM PROPERTY – Where the applicant also sought relief in her interim application in relation to the property proceedings – Where the respondent sought summary dismissal of the property proceedings and the injunction preventing him from disposing of or encumbering assets be discharged – Where both parties criticise the other for not complying with their ongoing disclosure obligations – Where there was limited or no evidence on many issues – Where aside from enforcing a previous order for the payment of valuation fees, the interim application and response are dismissed.

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FAMILY LAW – PRACTICE & PROCEDURE – Oral application by mother seeking that the father be removed from the court room while she gives evidence – Allegations of family violence – Capacity for the father to observe in another court room by audio-visual-link – Application granted – Oral application by father seeking the mother to remove her niqab during cross examination – Whether a niqab impacts the assessment of credibility – Where mother’s religious beliefs are on basis that she does not wish to expose her face to men – Where mother did not oppose the application if father was in a separate courtroom and a screen was put in place – Application granted – Screen put in place to block witness from the bar table.

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FAMILY LAW – PARENTING – With whom a child spends time with – Where the children live with the mother – Where the older two children spend time with the father in accordance with their wishes – Consideration of what time the younger child should spend with the father – Consideration of risk – Concession that it is important for the children to have a meaningful relationship with the father – Consideration of the extent to which the younger should be permitted to negotiate her time spending arrangements – Where the single expert opines that fixed orders are in the younger child’s best interest – Fixed orders made for the child to spend time with the father.

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FAMILY LAW – PRIVILEGE – where the mother was required to produce all electronic communications between her and a child pursuant to Orders of 14 March 2024 – where the mother asserts the privilege against self-incrimination - where the Court exercises its jurisdiction to review the documents.

REASONABLE EXCUSE – Where on the material provided by the mother she had a reasonable excuse for all but one communication with the child – no privilege arises where there is no actionable breach because of clear reasonable excuse – all but one communication to be produced to the other parties.

PRIVILEGE – mother is not required to produce to the parties the one communication which might, arguably, not be the subject of an obvious defence of reasonable excuse.

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FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay of final property adjustment Orders.

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FAMILY LAW – PRACTICE AND PROCEDURE – Where an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) was made by a judge of Division 2 – Where the father does not reside in Australia and does not intend to travel to Australia for the purposes of a trial – Where his oral application to attend the trial by way of electronic communication was refused – Where the scheme pursuant to s 102NA of the Act is not available to non-Australia residents who are not attending the trial personally – Where the allegations of violence are historic – Where s 102NB of the Act can be invoked to ensure there are appropriate protections in place during any cross-examination, if it occurred, during the trial.

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FAMILY LAW – ADOPTION – Whether leave to commence adoption proceedings is in the best interests of the child – Leave granted under s 60G of the Family Law Act 1975 (Cth) to commence proceedings.

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FAMILY LAW – PRACTICE AND PROCEDURE – Where wife has in her possession a laptop containing documents over which the husband claims privilege – Where wife claims privilege was waived by the husband – Where wife claims the device also has documents over which she claims privilege – Where it is necessary for the Court to know what documents are contained on the device prior to determining arguments pertaining to privilege – Where husband’s proposal protects the privilege of both parties – Orders made in accordance with regime proposed by husband.

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FAMILY LAW – PARENTING – Jurisdiction – Application for parenting orders where child lives in Country B with the mother – Where child is an Australian citizen and was born in Australia –Whether the child is habitually resident in Australia – Where the child lived in Australia for the first seven months after birth and has lived in Country B for over three years – Where the child is in the primary care of mother, who does not intend to return to Australia – Father obtained parenting orders in India and is pursuing contempt proceedings in Country B – Finding that the child is “habitually resident” in Country B – Parenting proceedings dismissed.

CHILD MAINTENANCE – Where mother is seeking child maintenance – Where mother and child live in Country B – Where father lives in Australia – Child is Australian citizen – Relevant “overseas authority” – Mother should apply for child support in Country B – Australian court has no jurisdiction –No power to make maintenance order if party may apply for child support – Application dismissed.

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FAMILY LAW – PARENTING – Relocation – Where the mother sought to relocate to the United Kingdom with the parties’ one year old child – Where the father and the Independent Children’s Lawyer opposed the mother’s application – Where the Family Report Writer opined that the child will not develop a secure attachment relationship with the father if he relocates to the UK – Where all parties proposed that the mother be the primary carer – Where the child lived in the UK with the mother for a substantial part of his life – Where the mother was significantly assisted in the child’s care by her parents – Where the father conceded he was not as available as he should have been to care for the child – Where the Court is satisfied that there are risks to the mother’s mental health, if she was not permitted to relocate, that would compromise her ability to care for the child – Where the Court has an obligation to consider the primary carer’s right to freedom of movement – Where the Court determined that, on balance, the child’s best interests are met by permitting relocation.

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FAMILY LAW – PARENTING – Practice and procedure – Review of decision – Where the mother seeks the review of a decision of a senior judicial registrar (“the registrar”) which introduced overnight time between the child and the father – Where the father was previously spending unsupervised time with the child on one day per week – Where the dispute is confined to a single overnight stay each fortnight – Where the orders of the registrar are supported by the father and the Independent Children’s Lawyer (“the ICL”) – Where on the available evidence there is no need to protect the child from either subjection or exposure to physical or psychological harm caused by the father – Where courts cannot impulsively react to litigants’ subjective fears – Review application dismissed – Costs ordered in a fixed sum in favour of the father and the ICL.

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FAMILY LAW – PROPERTY – Application for final property orders – Small property pool – Add backs for interim distributions of property – Where the husband terminated the wife’s access to funds following separation – Where the wife obtained various personal loans for living expenses and legal fees – Loans for post-separation living expenses included as liabilities of the parties – Husband provided financial support for the family up to separation – Wife was and remains virtually the sole carer of the children – Net assets to be divided 60 per cent to the wife and 40 per cent to the husband.

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FAMILY LAW – CHILDREN – Interim proceedings – application by the father for review – further application by the father seeking leave to re-open the proceedings for the purpose of providing updated CDT tests – mother’s subsequent application to re-open the hearing to adduce further evidence – father seeking to spend overnight time with the child - in circumstances where father has historically failed to comply with CDT testing orders – father relied on expert opinions that there is no evidence of ongoing alcohol misuse and overnight time with the child should commence – discussion as to the weight to be given to expert opinion – finding that the risk of the father’s alcohol abuse and possible disregard for court orders cannot be ameliorated by CDT testing or any other safeguard – mother’s application to reduce time not in child’s best interests - current interim orders to stand.

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FAMILY LAW – PARENTING – Interim proceedings – where the child lives with the paternal grandmother and spends time with the mother – where there are issues of risk in both households – held that it is in the best interests of the child to maintain stability and remain with the paternal grandmother pending final trial – where the father faces criminal proceedings – where it was agreed between the parties for the child to spend professionally supervised time with the father.

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FAMILY LAW – CHILDREN – Where the children spent very little time with the father for two and a half years following separation – Where the parents agreed to a moratorium on the children’s time and communication with the mother on the third day of trial – Where re-introduction therapy with the father was successful – Where the matter returned for a part-heard defended hearing to determine what care arrangements are in the children’s best interest – Where limiting the children’s relationship with their mother is unnecessarily restrictive – Where the presumption of equal shared parental responsibility does not apply – Where equal shared parental responsibility is nonetheless in the children’s best interests – Where the children will live in an equal time arrangement with the parents after a gradual re-introduction to the mother.

PROPERTY SETTLEMENT – Just and equitable – Where the parties are in dispute about the weight to be given to the husband’s greater financial contributions and wife’s greater homemaking contributions – Whether there should be an adjustment based on the disparity in parties’ incomes – Where contributions favour the husband in the proportion 55/45 – Where there is a five percent adjustment in favour of the wife for earning disparity – Where the property will be subject to equal division including a superannuation splitting order.

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FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties disagree on which single expert should be appointed to prepare a report – Where the final hearing commences in four months – Whether a psychologist or social worker should be appointed – It is ordered that a psychologist be appointed to prepare a fulsome report and a social worker be appointed to prepare a specific report on Indigenous issues.

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FAMILY LAW – PROPERTY – Consent terms – Where a litigation guardian has been appointed for the applicant wife – Just and equitable as demanded by s 79 of the Family Law Act 1975 – Orders made in accordance with proposed consent terms.

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FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking orders as to property, spouse maintenance, and child support – Where the husband has commenced proceedings in Country B as to divorce, property orders, and cost orders – Where the wife seeks orders restraining the husband by injunction from dealing with specific assets – Where the husband contends that this Court has no jurisdiction to hear to the wife’s Initiating Application – Where the proceedings are adjourned part heard and interlocutory orders as made are to continue without prejudice.

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FAMILY LAW – COSTS – Litigation funding – Where the wife sought the husband pay her legal costs on a dollar for dollar basis – Where the Court is not satisfied it is just to make an order pursuant to s 117 of the Family Law Act 1975 (Cth) – Application for dollar for dollar order dismissed.

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FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Circumstances justifying order – Where the father seeks costs – Where the mother did not attend the hearing and sought an adjournment – Adjournment application in an incompetent form – Where the cost application will not take the mother by surprise – Where the mother’s opposition to the orders is wholly unsuccessful – Cost order made.

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FAMILY LAW – PROPERTY – Loans asserted from applicant’s family – Loans not proven – Further loan from applicant’s mother – Where further loan was utilised unilaterally by applicant – Whether applicant should be solely responsible for loan.

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FAMILY LAW – FINAL PARENTING ORDERS – Unacceptable risk – Where the applicant father asserts that the children are at risk of serious psychological harm in the care of the mother arising out of her fixed view that the children have been sexually abused by him – Where the respondent mother’s asserts that the children are at risk of serious and psychological harm including sexual harm in the father’s care – Finding that the children have not been sexually abused by the father – Where the children are at a risk of psychological harm in the mother’s care – Order for change of live with parent – Order for the children to spend no time with their primary carer for a period of 12 months.

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FAMILY LAW – PROPERTY – Application in a proceeding – Disclosure – Where the husband asserts that the requested disclosures have been made following the wife’s application – Where the wife has not thoroughly inspected the documents provided to her by the husband – Application refused.

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FAMILY LAW – CHILDREN – With whom a child spends time with – Where the parties reach agreement for the children to live with the father and spend time with the mother – Where the mother has terminal illness – Where the mother seeks additional time with the children during the school holidays – Where the father opposes the orders – Consideration of children’s wishes – Consideration of the mother’s circumstances – Orders.

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FAMILY LAW – PARENTING – Where children are living with a grandparent – Where parents have been seconded overseas– Where the parents have moved for postings leaving children with the grandparent – Where the children have spent a substantial amount of their lives living with the maternal grandmother - Where the mother’s visits with the children have been supervised for an extended period of time – Whether continued supervised time is in the best interests of the children – where application is made to discharge and remove the evidence of a single expert from the Court record where that expert has had their licence to practice as a psychologist suspended following the preparation of family reports and giving evidence.

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FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – two pools sought – one pool involving land in Country B the other involving property situated in Australia – “financial resource” – review of authorities – held, one pool approach adopted.

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FAMILY LAW – PROPERTY – Where the matter was listed for a three day trial – Where the husband had failed to file trial material and sought an adjournment of the trial – Where there is a significant uncrystallised taxation debt – Oral application by the wife for partial property settlement orders – Where the partial property adjustment order will not inhibit the Court making a final property adjustment order to achieve justice and equity for both parties – Partial property settlement orders made – Notice to be given to the Australian Taxation Office

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FAMILY LAW – PROPERTY – where the liquidator seeks approval of debt settlement compromise under s 477 Corporations Act 2001 – where some creditors opposed the compromise – approval granted. 

FAMILY LAW – PROPERTY – application by the liquidator for direction under s 90-15 Schedule 2 – Insolvency Practice Schedule (Corporations) 2016 – application approved – costs of liquidator included in costs of winding up company.

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FAMILY LAW – PRACTICE AND PROCEDURE – Review of a decision – husband seeks a review of interim spousal maintenance orders made by a Senior Judicial Registrar – application dismissed

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FAMILY LAW – PRACTICE AND PROCEDURE – Application to adjourn trial – Applicant did not comply with trial directions – Applicant alleged mental health

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FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where upon the conclusion of the trial, the matter was adjourned for 6 months to enable the father to engage in a therapeutic process – Where the father did not engage – Where final orders can now be contemplated – Where the father made an oral application acceding to the orders sought by the mother – Orders sought by the father for the provision of sending letters and gifts – Consideration of the frequency – Orders.

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FAMILY LAW – PARENTING – Final form of orders consistent with Reasons delivered.

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FAMILY LAW – PRACTICE AND PROCEDURE – objection to subpoena – where father and Independent Children’s Lawyer have issued subpoenas to the children’s treating therapists and Child Protection Authorities – where the mother objects – where mother’s notice of objection to subpoenas be dismissed

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FAMILY LAW – PARENTING – Magellan List – Where the mother has made repeated allegations of the father sexually abusing the daughter – Where allegations of sexual abuse are unsubstantiated –Where the mother has subjected the daughter to medical examinations - Where the mother has paranoid ideations in relation to the father – Where the mother has failed to file any trial affidavit – Where the Court ordered that the hearing proceed on an undefended basis - Where a longer block of time with the father may create less opportunity for the mother to negatively impact the health of the children if she is minded to do so and may provide some safeguards for the children.

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FAMILY LAW – PRACTICE AND PROCEDURE – Parenting – Where the parties’ relationship is of high conflict – Where there are prior concerns by the respondent with respect to the applicant’s alcohol use – Where restraints made on an interim basis require the applicant to maintain a blood alcohol level above 0.0 when the child is in their care – Where the Court proposed orders requiring the applicant to undergo Carbohydrate-Deficient Transferrin (“CDT”) testing for alcohol consumption – Where the respondent sought to rely upon any adverse inferences drawn if the applicant did not produce evidence with respect to alcohol consumption at final hearing – Parties afforded opportunity to provide Written Submissions – Where the applicant consents to undergoing testing – No matters of principle – Orders made in accordance with applicant’s proposed terms for CDT testing.

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FAMILY LAW – PROPERTY – Where the wife has made multiple requests of the husband seeking disclosure of documents and information including as to real property in which the husband asserts a beneficial interest currently subject to Supreme Court litigation – Where the husband contends that he has properly abided by his disclosure obligations codified in ch 6 of the Rules – Where he has not in fact fulfilled those obligations – Orders made for his obligations to be fulfilled – Orders as costs made in favour of the wife.

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FAMILY LAW – COSTS – Application by husband for costs against the wife and her solicitor following dismissal of the wife’s Application-Contempt – Where the husband contended the wife’s solicitor’s conduct was unreasonable and should be held personally liable for his costs – Where the wife’s solicitor’s conduct was not so unreasonable as to engage her liability for costs – Where the wife’s Application-Contempt was wholly unsuccessful – Order made for the wife to pay the husband’s costs on a party/party basis in a fixed sum.

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FAMILY LAW – STAY – Where the wife has filed a Notice of Appeal and argues error of fact – Where the appeal would be rendered nugatory if the stay was not granted – Orders stayed pending determination of the appeal – Order made for 30 per cent of the net sale proceeds of the former matrimonial home to be released to the husband by way of partial property distribution.

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FAMILY LAW – PROPERTY – Long marriage – Where the parties benefited from interest free loans from family members – Where those family members intervened in these proceedings – Where the husband has had the benefit of a high income for several years – Where the wife was the primary carer of the parties’ three children.

CHILD SUPPORT – Where the mother seeks a departure order – Where the father has a significantly higher earning capacity than the mother – Where the children’s lifestyle as engineered by both parents incurs costs which are not able to be sustained by the mother’s income – Where the father concedes he will pay private school fees but opposes a non-periodic child support order.

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FAMILY LAW – CHILDREN – Where the parties provided a minute for a final parenting order resolving all issues in dispute on the second day of trial – Where an Order is made in terms of the minute provided.

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FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where applicant alleges that two children were wrongfully retained by the father in Australia and seeks their return to New Zealand – Where the father resists the making of a return order on the basis that the children will be exposed to a grave risk of physical or psychological harm – Where the Central Authority submits that the evidence does not attract a qualitative description of “grave”, given the active involvement of New Zealand Police and Oranga Tamariki and the mother’s history of engaging in protective behaviours toward the children – Where return order made on condition that the Central Authority provide a copy of the order and these reasons to Oranga Tamariki and to police in New Zealand.

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FAMILY LAW – PROPERTY – agreed balance sheet and the assets each party are to retain – hearing conducted on the papers and by submissions – husband seeks a 4 per cent adjustment for an initial superior contribution to the parties’ current assets and in respect of relevant 75(2) factors being a payment to him of $375,000 in an asset pool of 7.4 million – orders made as sought by the husband.