Judgments

FAMILY LAW – PROPERTY – where the applicant seeks an Order under section 102NA of the Family Law Act 1975 (Cth) – where the first respondent spent one year in prison for a breach of Domestic Violence Order – where section 102NA of the Act mandatorily applies – where the applicant seeks litigation funding – where joint funds of the applicant and first respondent are held on trust –  where the respondent does not seek litigation funding.   

FAMILY LAW – ALLEGED APPREHENDED BIAS – application for recusal – where ore tenus application made on the morning of the sixth day of trial – two alleged instances of bias – the double might test – relevant test not made out on application – recusal application dismissed.

FAMILY LAW – EVIDENCE – expert evidence – concurrent expert evidence – hot tub – relevant principles.

FAMILY LAW – LIQUIDATOR – Where the wife sought to discharge orders appointing receivers to a group of companies – Where the wife sought the appointment of liquidators and the consequent winding up of the companies – Where the husband opposed the application citing issues of costs – Where the third respondent proposed that the current receiver be appointed the liquidator – Where potential issues as to conflict of interest arise if the current receiver is appointed liquidator – Orders made terminating the appointment of receiver, the winding up of the companies, and the appointment of a liquidator.

FAMILY LAW – EX TEMPORE – Where the wife failed to comply with an order of the Court – Where the husband filed an Application in a Proceeding seeking leave to amend his Amended Response to Initiating Application – Leave granted.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks leave to read and rely upon adversarial expert evidence – Where a single expert witness had been appointed under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) – Where the Court is not satisfied the evidence should be allowed under r 7.08(2) of the Rules – Application dismissed with costs reserved.

FAMILY LAW – PRACTICE AND PROCEDURE – abuse of process – attempt to relitigate issue determined by earlier consent order – application by beneficiary of deceased estate of husband to intervene in property proceedings – application for substitution of legal personal representative of deceased husband – discovery sought against non-party – request for leave to issue subpoena.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – where subpoena objected to on the basis of protected confidence – whether party is a professional service – whether the communications are protected confidences – whether likely harm outweighs desirability of production – application objecting to subpoena dismissed.

FAMILY LAW – PARENTING – Final orders proposed with consent of all parties – Proposed orders suitable to ameliorate the risk to the children associated with the father in circumstances where the mother’s parental capacity is compromised – Final orders made in line with the terms provided by the parties.

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 – COSTS – where the wife seeks an order for costs on an indemnity basis – where the husband filed no response to the wife’s submissions – where the husband has not complied with previous court orders – where the husband’s conduct has delayed court proceedings – where the husband has been wholly unsuccessful in the proceedings – consideration of s 117(2A) factors – costs ordered on an indemnity basis in the wife’s favour.

FAMILY LAW – CONTEMPT – Sentencing – Respondent pleaded guilty to ten charges of contempt – Seriousness of contempt – Desirability of determining appropriate sentence for each charge – Totality of sentence should not exceed totality of offending – Imprisonment as sentence of last resort – Circumstances warrant imprisonment – Concurrency and cumulation - Part suspension of imprisonment – Good behaviour bond.

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – TRIAL SEQUENCE – the applicant submits that the respondent should file his case outline first as the applicant does not understand the case advanced by the respondent – held, case outlines should be filed concurrently.

MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – EXPERT EVIDENCE – the respondent submits that the applicant should be restricted to a single expert witness per issue – held, the applicant should not be so restricted.

FAMILY LAW – PARENTING – With whom the child lives and spends time with – Where the parties are unable to agree parenting arrangements for a nine year old child – Where the child currently lives with the respondent and spends five nights per fortnight with the applicant – Where the applicant seeks a change of primary care – Where the respondent seeks to reduce the child’s current time with the applicant to three nights per fortnight – Where the child experiences high levels of anxiety – Consideration of best interests – Where a change in primary care is likely to cause the child extreme distress and anxiety – Where the evidence supports a reduction in time from five nights to three nights per fortnight with the applicant – Sole parental responsibility for decision-making to the respondent – Orders.

FAMILY LAW – PARENTING – Interim hearing – Where the matter is part-heard – Where the applicant sought to remove the requirement for professionally supervised time – Where the applicant failed to disclose mental health concerns – Where the respondent contended that professionally supervised time is still warranted – Where the applicant proposed the two paternal aunts as alternate private supervisors – Where the paternal aunts fail to address or acknowledge the father’s mental health conditions – Where the respondent opposed the paternal aunts as alternate private supervisors – Where the applicant sought a video communication order – Where the Court made orders for video communication between the applicant and the child – Where the Court otherwise dismissed the applicant’s interim application.

FAMILY LAW – PARENTING – With whom the children live – Where the father and the Independent Children’s Lawyer contend that the risk of harm arising from psychological abuse perpetrated by the mother is so high that it requires limitation ad supervision of the children’s time with the mother into the future – Where the father proposes orders in terms similar to the orders promoted by the Independent Children’s Lawyer – Where the Court finds that there is unacceptable risk that the children will suffer psychological harm in the mother’s care – Where the evidence supports the making of an order that the father have sole parental responsibility for the children.

PARENTING – Where the mother amended her application on the first morning of trial - Where the mother promotes unsupervised time between the children and the father – Where the Court finds that the mother will never voluntarily facilitate time between the children and their father.

PRACTICE AND PROCEDURE – Where the mother filed an Application in a Proceeding in the evening prior to the competing applications being listed for Closing Submissions – Where the application was dismissed – Where the mother filed a further Application in a Proceeding subsequent to Judgment being reserved – Where the mother seeks a variety of orders including to adduce further evidence – Where the father and the Independent Children’s Lawyer oppose the application – application refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Injunctive orders – Where the de facto wife seeks injunctive orders to receive notice prior specified dealings with a unit trust and a discretionary trust of which she contends the de facto husband directs the conduct of – Where the appointor and the trustees of those trusts, being the second, fourth, and fifth respondents, oppose the injunctive orders as sought – Where those respondents contend the evidence does not establish that the de facto wife has an arguable case to justify preservation of the status quo and that, in absence of a risk of dealing with assets to frustrate a judgment, an injunction cannot be grounded by application of the “chicken soup” principle – Where the balance of convenience favours the injunctive orders broadly as sought by the wife amended to a defined scope – Notification orders made.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the de facto wife seeks to join the de facto husband’s mother and other corporate and trust entities in which she contends the husband controls as additional respondents to the proceeding – Where the proposed additional respondents oppose the joinder – Where the de facto wife abandoned or withdrew her contentions of sham – Where she instead contends control – Consideration of whether to refuse an application for joinder if there is no merit – Where the de facto wife’s claim could not be said to be unsuccessful – Where r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) mandates the joinder of the additional respondents as necessary parties to the proceeding – Order for the joinder of the proposed additional respondents.

FAMILY LAW – FINAL PARENTING ORDERS – Allegations of family violence – Mother’s allegations accepted in part – Where the children live with the mother – Where the children have not spent any time with the father for in excess of four years – Consideration of the impact on the mother in the event of any order for time between the children and their father - Children to live with the mother – No orders for time between the children and their father.

APPLICATION FOR DISQUALIFICATON – Apprehended bias – Where an application for disqualification is made during contested final parenting proceedings – Whether comments from the bench and/or the conduct of the judicial officer with respect to the use of an interpreter for the father might cause a fair-minded lay observer to conclude that the Court will decide the competing parenting applications other than on its legal and factual merit – All grounds fail – application dismissed.

FAMILY LAW – LEGAL PRACTITIONERS – Conduct of solicitor – Where the legal practitioner has failed to comply with orders for the filing of documents – Where the legal practitioner has failed to attend three Court hearings – Where the legal practitioner has breached the South Australian Legal Practitioners Conduct Rules – Referral to the Legal Profession Conduct Commissioner.

FAMILY LAW – PROPERTY - Short marriage – Application by the wife for an adjustment of property interests - Where the marriage lasted two months - Where no compelling reasons exist to make a property adjustment as per s79(4) of the Family Law Act 1975 (Cth) - Application refused.

PROPERTY – Disputed asset pool – Where applicant wife claims that the husband is the beneficial owner of millions of dollars’ worth of tangible and intangible property in Australia and overseas - Where wife asserts that the husband has not made a full and frank disclosure - Where the court is not satisfied of beneficial ownership - Where even if the Husband did own some or all of the assets, no adjustment would be warranted.

PRACTICE AND PROCEDURE - Where applicant wife seeks a spouse maintenance claim despite leave being refused under s44(3) and appeal against refusal being dismissed. Application is dismissed.

CONSTITUTIONAL LAW - Practice and Procedure- Where applicant wife asserts that her case requires intervention by the Attorney General - Where applicant therefore seeks adjournment of hearing - Where no evidence or specific claims are made to advance this proposition - Where adjournment application is opposed by all other parties -Adjournment application is refused.

FAMILY LAW – PARENTING – Ex Tempore Reasons – undefended hearing - best interests – decision-making authority – live with – passport – where the father withheld consent to passport applications for the children – where there were allegations of family violence against the father – where the father disengaged from proceedings – where the matter proceeded in the absence of the father – sole decision-making authority to the mother – the children to live with the mother and spend time with the father as agreed between the parents – passports to be issued for the children without the consent of the father.

FAMILY LAW – CONTRAVENTION APPLICATION – Breach of procedural order– Where the application for contravention was not dealt with at the principal proceedings – Where the application was brought in terrorem – Where the application was found to be trivial and lacking significance – Where the application for contravention is dismissed.

FAMILY LAW – PROPERTY – MAJOR COMPLEX FINANCIAL PROCEEDING – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the husband’s parents both personally and by way of corporations they control have made significant advances of funds to the husband prior to, during the course of, and subsequent to, the parties marriage – Where the husband contends an advance in 2001 and a series of advances from 2015 to 2020 were by way of loan agreements, being liabilities in the balance sheet identifying the property of the parties – Where the wife contends that the evidence does not establish loan agreements in the terms contended by the husband, or in the alternative that recovery of the 2001 advance is statute-barred, or in the further alternative that it is not likely that either advance will be called upon to be repaid (Biltoft and Biltoft (1995) FLC 92-614) – Where the husband’s initial financial contributions and the financial support provided by his parents during the marriage attracts significant weight when consideration is given to the use made of those contributions (Pierce v Pierce (1999) FLC 92-844) – Where both the parties worked hard in their respective spheres throughout the marriage relationship – Where the wife makes a Kennon v Kennon (1997) FLC 92-757 contention that her contributions were made more onerous and arduous – Orders made adjusting the property of the parties 45.5 per cent to the wife and 54.5 per cent to the husband.

FAMILY LAW – PROPERTY – Interim application for sale of a property – where prior sale orders made by consent – where sale has not yet been executed due to a dispute about what the ‘best arm’s length price’ obtainable means –– orders for the property to be sold at auction.

FAMILY LAW – CASE MANAGEMENT– Interim Property – Where wife seeks injunctions to operate on savings accounts of the husband – Where husband opposes this on the basis that he needs these savings to pay tax and other financial obligations – Injunction granted for a portion of the funds in Australian bank account – Held that husband is free to use the remainder of his savings to pay creditors on condition that he provide evidence of this to the wife.

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 – PRACTICE AND PROCEDURE – Amendment to final Order - Where the parties provided a jointly signed minute of order on 12 August 2024 seeking an amendment to the final Order made 29 May 2024 pursuant to s 79A(1A) of the Family Law Act 1975 (Cth) – Where this Court was functus officio upon the making of the final Order – Where an Application for Consent Order was filed by the parties on 22 August 2024 and given a new file number – Where the Application was transferred to this Court on 26 August 2024 and an Order made in chambers in terms of the minute Where family law or child support proceedings cannot be instituted in this Court and the result of such jurisdictional problems creates uncertainty and unnecessary costs for litigants.

FAMILY LAW – PROPERTY

FAMILY LAW – PRACTICE AND PROCEDURE – Application for release from Harman undertaking – Where the husband seeks leave to use affidavit evidence filed in proceedings under the Family Law Act 1975 (Cth) for the purpose of proceedings in the Supreme Court of Victoria – Where the affidavits sought to be used traverse personal and sensitive information of the parties and their adult children.

FAMILY LAW – CHILDREN – Whether either parent poses an unacceptable risk of harm to the child – Whether either parent has capacity to promote the child’s relationship with the other parent – Where it is found that the mother made false claims that the father coerced her into having sex and/or raped her – Where the mother’s claim that the father sexually abused the child is groundless – Whether the child can have a relationship with both parents if she remains in the primary care of the mother – Where it is found that it is in the child’s best interests to live with the father – Where the mother will be restrained from spending any time or communicating with the child for a period of six weeks – Where following the moratorium, the mother’s time with the child will be professionally supervised until 2027.

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 – forum dispute – where applicant contends Australia is most appropriate forum to determine property dispute and seeks declaration to that effect– where respondent contends New Zealand most appropriate forum and seeks Australian process be stayed – stay application dismissed – restraint sought against respondent dealing with property interest in New Zealand granted – no declaration about forum made

FAMILY LAW – Final Parenting – where multiple risk factors including family violence, substance abuse, father’s criminality and impulsivity, where both parties have mental health diagnoses – where father continues to use medicinal marijuana - where mother alleges child exposed to family violence and was shaken as a baby – where mother a vulnerable person - where restraints made as to the conduct of both parties – where section 64D(2) order made - order for identification contact only. 

FAMILY LAW – PARENTING – Where the mother alleges and the father denies historical family violence – Conflict did not rise to the level of family violence – Father not a risk of harm – Children to spend gradually increased time with the father.

FAMILY LAW – SURROGACY – Where the child is born through commercial surrogacy – Where the parents entered into the surrogacy agreement overseas – Where the child was artificially conceived – Where the father provided the genetic material for the child to be conceived – Where the child is an Australian citizen – PARENTING – Where there is a high conflict co-parenting relationship – Where there are some safety risks for the child in the father’s household – Where it is not in the child’s best interest to live in an equal time arrangement with each parent – Where the mother’s mental health is stable – Where the mother displays greater insight into the child’s needs – Where the father has provided misleading information about his mental health – Where the father has failed in his duty of disclosure – Where it is in the best interest of the child to live in the primary care of the mother – Where the child benefits from his relationship with the father – Where it is in the bests interests of the child to spend regular time with the father, including overnight time– DECISION MAKING – RESTRAINTS – PASSPORTS AND OVERSEAS TRAVEL.

FAMILY LAW – FINANCIAL – Interim Hearing – Where the wife seeks an order for periodic spousal maintenance – Where the wife considers her health conditions hinder her ability to support herself adequately – Where the husband contends that the wife is overstating her health conditions – Consideration of s 75(2) factors in justifying an order for periodic spousal maintenance –Where the wife seeks a “dollar for dollar” order in respect of her legal costs – Where the husband opposes the wife's application for litigation funding – Consideration of factors set out in s 114UB(3) – Orders for the husband to pay to the wife periodic spousal maintenance – Costs orders made for “dollar for dollar” litigation funding in favour of the wife – Interim applications dismissed. 

FAMILY LAW – PROPERTY – where the husband borrowed money from his parents to purchase a property – where the husband was unable to discharge the onus of establishing the quantum of the debt – where the wife should not be liable for the debt where it is vague, uncertain or unlikely to be enforced – where the wife was primarily responsible for the care of the child – where the wife will retain the former matrimonial home.

FAMILY LAW – PARENTING – one child (now aged 12) – high conflict between parents – each allege family violence by the other but neither asserts it is unsafe for child to spend time with the other – mother relocated with child from Queensland to Victoria in February 2023, without father’s knowledge – each parent seeks child live with them (mother in Victoria, father in Queensland) and spend time with the other parent – evaluation of proposals – order for joint decision-making as agreed – order for child to live with mother and to spend time with father found to be in child’s best interests, notwithstanding mother’s past failure to support child’s relationship with father – order for parents to accompany child when travelling interstate if child refuses to travel unaccompanied, to support time with father – consideration of other orders sought by parties, some ultimately agreed and some in dispute.

FAMILY LAW – PROPERTY – financial and non-financial contributions – just and equitable – global approach – tax debt – beneficiary of a trust – future financial needs.

FAMILY LAW – interlocutory property – dispute regarding valuation – alleged nondisclosure – delay in preparation of expert report – costs sought – where neither parties’ proposal in the interests of justice – proceeding not ready for trial – concerns raised regarding both parties’ conduct throughout course of proceeding– no finding as to costs.

FAMILY LAW – PROPERTY – breach of disclosure obligation by husband – value of UK company – more arduous contributions by wife due to family violence – one child with special needs.  

FAMILY LAW – PARENTING - application filed by the father sought a change of primacy and for supervised time with the mother - application for a change of primacy, and for supervised time stood over.   

FAMILY LAW – PARENTING – husband and wife self-represented – section 102NA order prohibited cross-examination by either – husband relocated to Country B – family violence including choking means increased risk of lethality – sole parental responsibility to the wife – children live with the wife – children to have no contact or communication with the husband save that husband permitted to send cards and gifts to children – wife permitted to travel with children out of Australia – removal of watchlist order. 

FAMILY LAW – PROPERTY – matrimonial home is only significant asset in Australia – majority of equity in mortgage transferred to Country B by husband along with his superannuation – wife to receive 100 per cent of the pool due to her post-separation contributions, for her future needs and because of the transfer of the mortgage funds under section 75(2)(o) of the Act.

FAMILY LAW – PARENTING – partial consent orders – major long-term decision making – an unacceptable risk of developmental, psychological, and emotional harm – limited capacity to engage in child focucsed communications – all earlier interim parenting orders vacated – mother granted sole parental responsibility – spend time with father.   

FAMILY LAW – CHILDREN – one child, aged 12 – child with high needs – high parental conflict – breakdown of the father’s parental relationship with the child exacerbated by both parents – consideration of the child’s firm views and her ongoing need for high level support – time with the father as per her wishes – best interests outcome. 

CHILD SUPPORT – Application for leave to commence proceedings against the Child Support Registrar – leave refused.

FAMILY LAW – PARENTING – Final orders – Where the mother makes allegations of family violence perpetrated by the father against her herself historically and the child currently - Absence of stand out or obvious incidents of violence or abuse and key aspects of mother’s evidence unreliable – Nevertheless, father has behaved in at least odd, or at worst frightening, behaviour which has had a cumulative effect on both the mother and child - Father lacks insight into the effect of his behaviour on the mother and child - Where father diagnosed with rare mental health condition – Where the only available finding on the evidence is that supervision is the only arrangement that would support the safety of the child in the care of the father at this time.

FAMILY LAW – PARENTING – partial consent orders - two remaining narrow issues of overseas travel and passport – mother pressed application relating to a security bond for the father in respect of overseas travel and adult supervision for the child whilst overseas with the father - no reasonably arguable case to sustain the proposition that there should be a bond or a prescriptive order for adult supervision -  application dismissed.