Judgments

FAMILY LAW – Application in a Proceeding - adjournment application – adjournment dismissed.  

FAMILY LAW – PARENTING – one child (aged 4) – parties each make allegations of family violence against the other, including of coercive and controlling behaviour – finding father has engaged in family violence against the mother, including coercive and controlling family violence – finding mother has not acted to coerce and control the father as he believes – rather, mother has acted to safely promote child’s relationship with father – father assessed to be at high risk of suicide – child spending regular time with father a factor protective of his mental health – assessment of risk posed by father’s mental health, anxious and inaccurate beliefs about the mother, alcohol use disorder, occasional illegal drug use and regular use of prescribed cannabis – order for mother to have sole decision-making responsibility – order for child to live with mother and spend regular time with father – child’s time with father to be supervised by members of his family to safeguard against identified risks – no orders for further drug or alcohol testing or provision of mental health treatment information which father perceives as coercive and controlling and is likely to have a detrimental impact on his mental health – change of child’s surname to include mother’s surname, hyphenated with father’s surname – other parenting orders made upon consideration of child’s best interests

FAMILY LAW – Parenting – by consent trial adjourned part heard – parents to undertake therapy – parents to undergo psychiatric examination and report – Family Report to be updated – substantial agreeance as to interim orders by dispute as to aspects of agreed orders – weight placed on inferred apparent parental authority – costs as to therapy of 80% father and 20% mother.  

FAMILY LAW – PARENTING – Final Orders – Where the Respondent’s mother’s case was determined as having no reasonable likelihood of success part way through the final hearing.

FAMILY LAW – Parenting – Where the Independent Children’s Lawyer applied for the appointment of a Litigation Guardian for the Respondent Mother – Where the Applicant Father supported the application – Where the Mother opposed the appointment – Where the Court considered the capacity of the Mother to understand the nature and consequences of the proceedings – Application for appointment dismissed 

FAMILY LAW – De facto property settlement proceedings filed out of time – where the respondent seeks that the application be dismissed on the basis that she disputes the existence of a ‘de facto relationship’ and in the alternative that the application has been filed out of time – where the Court considers that a de facto relationship existed – consideration of hardship – where the Court considers that leave should be granted to apply out of time. 

FAMILY LAW – PROPERTY – Where the de-facto wife received an inheritance from her father’s estate late into the relationship – Where the de-facto husband claims that he made significant financial and non-financial contributions to the properties comprising most of the deceased estate – Assessment of contributions – Whether certain sums should be added back to the asset pool – assessment of other factors – Just and equitable outcome

FAMILY LAW - The child is to live-with mother – sole parental responsibility granted to mother – the child is to spent time with the father – the father is permitted to communicate with the child by audio-visual means – the child is removed from the Airport Watch List – the mother and child are permitted to travel internationally – the mother is to provide the father with a copy of the paid return airline ticket and travel insurance. 

FAMILY LAW – PROPERTY – interim defended hearing – application to rely on an adversarial expert of the husband’s business – experts use same methodology – difference of opinion about which data to use – difference of opinion about the multiple – substantial difference in business value – significant prejudice to the husband. 

FAMILY LAW – PROPERTY – Where final orders and ancillary orders for real property abroad to be sold have not been complied with – Where an Application in a Proceeding was brought to give effect to the final orders – Where multiple unmeritorious applications then brought by the respondent – Respondent’s applications dismissed – Harmful proceedings order made – Costs orders made as to liability but not as to quantum 

FAMILY LAW - PRACTICE & PROCEDURE – CONTEMPT – Despite final orders made by consent over three years ago, a real property in Ireland has still not been sold and the proceeds have not been disbursed between the parties – Where the Court initiated a charge of contempt pursuant to s 112AP(1)(b) of the Family Law Act 1975 (Cth) against the husband – Despite many findings made against the husband, the charge is bad for duplicity and is invalid - Charge of contempt dismissed 

FAMILY LAW – PARENTING – Allocation of decision making for major long term issues – LIVE WITH – SPEND TIME WITH – Two children 12 years and 10 years of age – Consideration of what orders will promote the safety of the children – Consideration of the children’s views – Consideration of the capacity of each parent to meet the children’s needs – Impact on the children of the mother’s overvalued beliefs and emotionally driven behaviour – Capacity of the mother to provide for the emotional needs of the children – Consideration of the benefit to each child of having a relationship with each of their parents – Children’s ages and stage of development – Benefits to the children of being able to have more regular and natural interactions with mother than possible in a supervised setting – Consideration of the impact on the children of long term supervision of their time and communication with mother – Restraints – Orders for International travel and passports.

FAMILY LAW – COSTS APPLICATION – Where there are circumstances which justify the court making an order that each parent pays a proportion of the costs of the Independent Children’s Lawyer – Costs order made in a fixed amount with time to pay 

FAMILY LAW – MARRIAGE – Whether the Applicant’s marriage to the Respondent is void – whether decree of nullity should be issued – where the Applicant was married to a third party at time of her marriage to Respondent. 

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

FAMILY LAW – PARENTING – CONTRAVENTION APPLICATION – Where the mother concedes that she contravened final parenting orders, resulting in the father spending no time with the child, because the child talked about holding a ‘secret’  – Whether the Mother has a reasonable excuse for contravening the Orders – Whether the breach was for long as necessary to protect the health and safety of the child

FAMILY LAW – Parenting – Where the children are aged 15 and 12 – Where Father has a history of family violence – Where the parties agree that the 15 year old child ought to live with the Mother and spend time with the Father in accordance with the child’s wishes – Where there was unacceptable risk of emotional harm for the 12 year old child spending time with the Father because of continuing family violence and other factors – Whether there are methods of risk amelioration available to avoid a no time orders as a last resort – Orders for no time made 

FAMILY LAW – Joinder of third parties – injunction or undertaking – sham transactions alleged – one party joined – undertaking sufficient.   

FAMILY LAW – PARENTING – Competing applications for live with orders and sole parental responsibility – Serious allegations of family violence – Mother alleges rape – Mother alleges attempts to kill – Violence occurred in front of the child – Mother’s allegations denied – Father alleges Mother has serious mental illness and possible delusion – Child Protection suggest possible systems abuse by Mother– Single expert opined that, whichever account the Court accepts, the other party would likely be showing signs of significant and enduring personality dysfunction – Evidence does not support Mother’s allegations – Evidence suggests Father’s allegations credible – Live with orders made on final basis – Not possible to determine final spend time orders at this stage – Interim supervised spend time orders – Orders for further psychiatric assessment of Mother – Matter to return to Court following assessment 

FAMILY LAW – PRACTICE AND PROCEDURE – where matter previously listed in the Defaulters’ List for non-compliance with procedural orders and a lack of progression in the matter – where on previous occasion the competing relief sought by the parties was dismissed – where Orders were made by a Senior Judicial Registrar on an interim basis subsequent to such dismissal and therefore absent power - where the Applicant now seeks to set aside the orders dismissing the proceedings pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – where s138 and 254(4) of the Federal Circuit and Family Court of Australia Act (2021) thus applies - where Applicant submits she would be prejudiced if proceedings not reinstated – where the Respondent previously submitted that the proceedings should not be dismissed but now opposes the application - where all property located in Australia is registered in the name of the Respondent - where the parties are divorced – where the discretion is exercised to discharge the Orders made in the Applicant’s absence dismissing the proceedings and the Orders made by the Senior Judicial Registrar confirmed. 

FAMILY LAW – PROPERTY – Threshold hearing – date of separation – leave out of time. 

FAMILY LAW – Stay of proceedings until 2 pm – oral application for an adjournment - adjournment granted – matter listed part heard.

FAMILY LAW – Parenting – two subject children, aged 16 and 11 – where the children have been exposed to the parental conflict – where the father has had a relatively limited involvement in the children’s lives – where the disputed parenting orders are limited – best interests of the children.   FAMILY LAW – Property – net matrimonial assets worth a little over $4M – where each party seeks to retain 60% of the net non-superannuation property – where the wife seeks to retain 60% of the combined superannuation and the husband seeks that it be equalised – where the Court must weigh up each party’s contributions and their future needs – just and equitable outcome.  

FAMILY LAW – Parenting – Where the children are aged 15 and 12 – Where Father has a history of family violence – Where the parties agree that the 15 year old child ought to live with the Mother and spend time with the Father in accordance with the child’s wishes – Where there was unacceptable risk of emotional harm for the 12 year old child spending time with the Father because of continuing family violence and other factors – Whether there are methods of risk amelioration available to avoid a no time orders as a last resort – Orders for no time made 

FAMILY LAW – Property – Where both parties had substantial property before the marriage and Husband had relatively greater assets than the Wife – Short relationship of approximately three years – Where three pool approach – First pool comprised of assets each party owned before the relationship and neither party sought to alter property in first pool – Where third pool comprised parties’ superannuation and neither party sought an order altering interest in superannuation in the third pool – Where property in the second pool comprised of property acquired during the relationship principally comprised of two pieces of real estate purchased to earn short term rental income – Finding that it was just and equitable to alter interests in the property in the second pool –Where Husband’s pre-relationship assets necessary for the parties to procure finance to purchase real estate – Where Wife made relatively greater contribution to the purchase of the real estate by increasing debt secured against her pre-relationship assets – Where no special rule applies to the assessment of contributions in a short marriage – Where contributions assessed  67.5%/32.5% in favour of the Wife – Section 75(2) – No further adjustment because of  s. 75(2) factors  

FAMILY LAW – PARENTING – Best interests of child – orders made.
orders made.  FAMILY LAW – PROPERTY – Just and equitable orders made. 

FAMILY LAW – PARENTING – interim hearing – two children of the relationship and two children of a previous relationship – allegations of sexual abuse concerning siblings not the children of proceedings – investigation by authorities discloses no abuse – allegations of family violence and alienation – application for the delivery up of children – orders for the appointment of Independent Children’s Lawyer – children’s best interests – orders made for children to live with father and time with mother – Child Impact Report – early callover for trial 

FAMILY LAW – Final hearing – where the matter was set for two days – where the mother became unrepresented in January 2025 – where the eldest child is not the biological child of the respondent – where service was dispensed with on the eldest child’s biological father – where there is a history of significant drug and alcohol use – where the court is satisfied the respondent has ceased illicit substance use – where there is concerns for the mothers mental health – where the mother did not attend court – where the mother was called in the courtroom by the Independent Children’s Lawyer and was aware of proceedings – where the matter proceeded in the absence of the mother notwithstanding she was telephoned in court – where the children began to live with the father in October 2022 – where final orders were made – children live with the father – father have sole decision making responsibility – where the children spend time with their mother in accordance with their wishes.   

FAMILY LAW – Children - interim parenting orders sought - where the child conceived through artificial conception procedure - where applicant and respondent are listed on the birth certificate - where the respondent seeks declarations that the parties were not in a de facto relationship as contemplated by section 60H of the Family Law Act and seeks to rebut the presumption of parentage under section 69R of the Act - where the Court cannot determine at an interim hearing whether the parties were in a de facto relationship or whether the presumption in section 69R is rebutted - where the presumption of parentage under section 69R should be taken to operate in an interim hearing - best interests considerations applied - where Court found not in the best interests of the child to spend time with the Applicant.

FAMILY LAW – PARENTING – relocation – where Mother seeks to relocate with parties’ three year old child from Adelaide to Canberra – where both parties are committed and competent parents 

FAMILY LAW – Parenting – one child, aged eleven – fairly narrow issues in dispute – where the child has significant mental health issues – where the parents have difficulty in co-parenting – where both parents display distrust of each other – where the Court must make orders in respect of decision making responsibility and how the child’s time with the father should be structured – best interests outcome.  

FAMILY LAW – PARENTING – Where the parties agree that the children should live with the mother and that the mother be granted sole decision-making responsibility – Where the mother seeks a positive order that the children have no contact with the father – Where the father resides in Country B – Where the father did not return from Country B to participate in these proceedings – Where the father has no immediate plans to return to Australia – Where the trial proceeded in the absence of the father’s affidavit – Where the Court accepts the mother’s evidence in full – Best interests considerations – Where the father failed to complete a men’s behavioural  change course – Where the father is in arrears of spousal maintenance payments – Where the father has engaged in family violence, including coercive and controlling conduct – Where the Court is cautious in creating a parenting regime underpinned by indefinite supervision – Where it is not appropriate for the Court to make a positive order that the children either spend time or communicate with the father – Orders made for the children to live with the mother – Sole decision-making granted to the mother – Costs of the Independent Children’s Lawyer to be shared by the mother and father equally.  

FAMILY LAW - CHILD SUPPORT – Enforcement of a purported Binding Child Support Agreement – Whether the Binding Child Support Agreement is a valid agreement – Binding Child Support agreement found to be void ab initio.  FAMILY LAW - CHILD SUPPORT – Departure Application – Orders sought in the alternative for a Departure of Child Support Assessment – Procedural fairness – Where application not properly pleaded – Application dismissed. 

FAMILY LAW – PARENTING – family violence – coercion and control – risk to children of enmeshed relationship with father – school absences – unacceptable risk of harm to children which can be ameliorated by limited overnight time – father unwilling or unable to communicate with the mother – restraints on attendance at school and communication with children at school – sole parental responsibility to the mother. 

FAMILY LAW – application for review – parenting only – unacceptable risk– family violence - where the independent children’s lawyer has spoken to the child prior to the interim hearing – illicit substance use – whether the child lives with the mother or the father – spend time arrangements – the parties’ mental health – letter to the child – emotional and psychological pressure of the child from the parties – child highly involved in the parties’ dispute 

FAMILY LAW – PARENTING – final orders – five-year-old child – nine/five arrangement – insight into parental behaviour – high parental conflict – parent’s abilities to meet the child’s needs – child’s best interests met by swapping nine/five arrangement in favour of father’s time – child live with the father and sole parental responsibility for decision making. 

FAMILY LAW – PARENTING – Where an order for joint decision-making is in the best interests of the children – Live with and spend time with orders – Where the court made an order for the children’s principal residence to be maintained in a defined area   FAMILY LAW – PROPERTY – Assessment of contributions adjustment under s. 75(2)  FAMILY LAW – SPOUSAL MAINTENANCE – Whether the wife is unable adequately to support herself – Amount of maintenance – Payment of maintenance as lump sum 

FAMILY LAW – Parenting – Parents separated shortly after birth of child – Where father initially sought orders for 2-year-old child to live with him and spend time with the mother – Father changes orders sought on third day of trial – Father then seeks joint decision making, child live with mother and spend time with father in graduated regime – Where mother facilitated time between father and child following separation – Where father made unreasonable demands for time whilst child still breastfeeding – Serious allegations made by father against mother and mother’s friend – Transactional nature of allegations raised by father against mother –– Father’s evidence found to be unreliable –  Orders made largely as sought by mother. 

FAMILY LAW – PARENTING – Unacceptable risk of harm – Father is a perpetrator of family violence against the children and mother – No time  

FAMILY LAW – PARENTING – children now aged 11 and 9 have spent limited time with father – relationship is developing – father seeks joint decision-making responsibility and for children to spend time with him on alternate weekends and mid-week during school terms and for half of school holidays – father submits mother undermines his relationship and time with the children – finding father subjected mother and children to family violence – father assessed to have an authoritarian and mocking parenting approach – children fear father – father lacks insight into impact of his behaviour and lacks capacity to emotionally support the children – order for mother to have sole decision-making responsibility and for children to spend four hours with the father on alternate weekends, with professionally supported changeovers for one year – order permitting mother to travel overseas with children.

FAMILY LAW – CONTRAVENTION – Costs. 

FAMILY LAW – DIVORCE – stay of proceedings – prejudice to proceedings - not inappropriate forum - challenge to jurisdiction dismissed – response seeking a stay for dismissal – Divorce order made – wife undertaking - stay of order for 28 days and if appealed by wife – no order as to costs 

FAMILY LAW – Parenting – Very reluctant adjournment of final hearing on first day of hearing – Where investigations regarding children’s safety arose in the week before trial – Where father made aware of investigations on morning of final hearing – Allegations of abuse and/or neglect of children – Not in children’s best interests to proceed with final hearing before investigations concluded. FAMILY LAW – Property – Self-represented husband seeking to call witnesses not on affidavit for cross-examination – Where wife not on notice of evidence sought to be adduced through husband’s witnesses – Not trial by ambush – Not trial by “whack-a-mole” – Final hearing adjourned – Orders for husband to file and serve affidavits of proposed witnesses to be relied upon at final hearing. 

FAMILY LAW - Application for recusal dismissed – refusal of stay beyond 2 pm.  

FAMILY LAW –  PROPERTY – both parties seeking an alteration of property interests after a 38 year marriage – whether the husband made full and frank disclosure – whether addbacks should be made – whether the husband engaged in wastage – allegations of coercive control and financial abuse – whether a Kennon adjustment should be made – whether a Jones v Dunkel inference should be made due to the husband’s failure to call his accountant to give evidence – whether the husband’s evidence is credible – just and equitable property adjustment orders made – whether an order for spousal maintenance should be made 

FAMILY LAW – Property – Applicant seeking an injunction to freeze the bank accounts held in the Respondent's name – Application dismissed 

FAMILY LAW – COSTS – father seeks cost of multiple sets of proceedings – mother’s conduct in ceasing time – non-compliance with orders – mother not wholly unsuccessful – inability to meet costs order not a reason in itself not to award costs – limited costs awarded on scale. 

FAMILY LAW – COSTS – Conduct of the Respondent – Imprudent Failure to Accept Offers. 

FAMILY LAW – Parenting application – with which parent the children live – where mother lives in New South Wales and father lives in Tasmania – consideration of the children’s best interests in s 60CC of the Family Law Act 1975 (Cth) – weight to be given to children’s views – promotion of the children’s Aboriginal identity and culture – finding of family violence during relationship and around separation by the father – balance of relevant considerations including “stability” weighing in favour of children remaining in the primary care of the father – orders for the children to spend time with the mother in New South Wales and Tasmania.  

FAMILY LAW – PARENTING – relocation – mother seeks children (now aged 11 and 8 years) live with her in Region B and for the children to spend time with the father on alternate weekends (from Friday to Sunday), for one additional weekend each month, and for additional holiday time – application resisted by the father who seeks children continue to spend equal time with both parents – evaluation of competing proposals – mother’s application refused – order for children to continue spending equal time with both parents – no order made confining the area in which the parties may live with the children – all other parenting orders made by consent.

FAMILY LAW –  PRACTICE AND PROCEDURE –  Obligation on parties under Court’s Family Violence Best Practice Principles to ensure appropriate safety arrangements.

FAMILY LAW – CONTRAVENTION – Whether the father intentionally failed to comply with the Order – Where Orders made in father’s absence – Whether the father understood obligations imposed upon him – Held that the mother failed to demonstrate the father had sufficient knowledge of the Orders – Father did not understand obligations at time of Counts 1 to 4, but did understand obligations at time of Count 6.

FAMILY LAW – CONTRAVENTION – Whether the father approached the mother in contravention of Orders by delivering letter to her home – Count proved – Reasonable excuse not established – Adjourned for penalty.