Judgments

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 – PARENTING – time with the Father – whether the Father should have regular unsupervised time with the child and if so the nature of such time – whether the Father’s drug use places the child at an unacceptable risk of harm – whether Mother’s capacity to parent is discernibly impacted if the child spends regular unsupervised time with the Father – whether the Father should be involved in the decision making regarding major long-term issues – whether the child’s name should be changed to the Mother’s surname or become a hyphenated version of the Mother and Fathers surnames’ – whether the Father should be restrained from filing further proceedings – whether there should be a ‘guillotine order’ to operate if the Father misses visits. 

FAMILY LAW – Contested divorce application – where the parties disagree when the marital relationship ended – where this is one child of the relationship – where an occasional sexual relationship continued after either parties date of the end of martial relationship – where the parties continue to live under one roof – where one party had frequently attempted to have the other removed from the house by calling the police – determined that the parties had been separated for more than 12 months at the time of the divorce application – divorce granted. 

FAMILY LAW – CHILDREN – two teenage girls – with whom the children live with – high parental conflict – alignment by the father – breakdown of the mother’s parental relationship with the children – children’s mental health concerns – weighing up of future risk factors – consideration of the girls’ firm views – best interests require the girls live with father – only realistic option.   

FAMILY LAW – Application to review decision of Senior Judicial Registrar – application for review partially upheld. 

FAMILY LAW – PARENTING – Where the applicant and the children make numerous allegations against the respondent – Where the respondent was charged but all criminal charges were later withdrawn – Where the applicant views the respondent negatively – Where the children’s relationships with the respondent are fractured – Where the children currently spend supervised time with the respondent – Where the children have expressed interest in spending time with the respondent – Where the children will benefit from having a relationship with the respondent – Assessment of risk – Where the respondent does not pose an unacceptable risk of harm to the children. 

FAMILY LAW – PROPERTY – Long marriage – Where both parties made significant financial and non-financial contributions – Where the Wife claims that her contributions were made more arduous as a result of family violence perpetrated by the Husband towards herself and the children – Whether the Husband committed family violence as alleged – Whether the Husband made full disclosure of his income working as a self-employed builder – Where the Husband allowed others to use his building licence to take on projects for which he claimed he received no financial benefit – Whether there should be an adjustment to the Wife because of the Husband’s greater income earning capacity – Just and equitable division. 

FAMILY LAW – Parenting – second tranche of parenting proceedings with final orders previously made in 2023 – s65DAAA satisfied – where mother had alleged father posed an unacceptable risk of harm and unilaterally suspended time – where mother no longer alleged unacceptable risk at trial – court considers ‘meaningful relationship’ and phraseology informing s60CC(2)(e) – court satisfied father did not perpetrate family violence or sexual abuse upon child – court satisfied mother poses an unacceptable risk of harm to child’s emotional/ psychological safety – unacceptable risk posed by mother able to be ameliorated – child to live with father and father to have sole parental responsibility– initial moratorium on child’s time with mother – progression of supervised to unsupervised time with mother. 

FAMILY LAW – Review application – de facto maintenance – alleged failure to seek employment – no proper basis for maintenance order. 

FAMILY LAW – Costs and default application – dispute as to appropriate orders to be made in default of property settlement –necessary circumstances for a section 106A order – costs application following final property orders – whether section 117 or section 114UB applied – no material difference in any event – whether a party wholly unsuccessful – whether conduct of the proceedings justified an order for indemnity and/or party/party costs – whether oral offers made during mediation were admissible – mediation agreement provided anything said in mediation was not to be put in evidence – where oral offerer party did not make a written offer in compliance with rule 4.11 – oral offers made in mediation not relevant – therefore oral offers in mediation not admissible pursuant to section 117(2A)(g) – if long and oral offer in mediation is admissible then no weight given to oral offers – general law authorities relating to section 131(2)(h) of Evidence Act discussed – Family Law Act authorities applied – application for costs dismissed – application for costs of the unsuccessful costs application dismissed.   

FAMILY LAW – Interim parenting – father seeking increased time with child – where family report writer identifies attachment issues and developmental trauma of child – family report writer recommends increased time with father – where mother highly critical of recommendations of family report writer – where mother submits that the child’s young age contends against increased time with father until final hearing and the testing of evidence – applicable law on interim hearing – significant weight given to family report on interim hearings. 

FAMILY LAW – PROPERTY – undefended final hearing in a Priority Property Pool case – husband has not participated in proceeding – marriage with cohabitation of approximately six years – post-separation period of 12.5 years – parties aged 71 and 65, with no children of their relationship – modest assets consisting primarily of an unencumbered rural real property and superannuation – assessment of contributions and current and future circumstances – just and equitable for wife to receive 73% of parties’ known assets and husband to receive 27%, consisting predominantly of his superannuation.

FAMILY LAW – CHILDREN – Where the two eldest children resist spending time with the mother – Where the two youngest children live with the mother and she seeks a change of care for the elder two children – Where the mother seeks a moratorium on the father’s time with all four children – Where the father seeks all four children live with him – Where there is ongoing inter-parental conflict – Where the father alleges the mother’s physical chastisement and discipline of the children is a form of coercion and control – Where court finds that mother’s excessive disciplining of children was not behaviour that coerces and controls – Where the mother alleges the father has and continues to perpetrate family violence against her – Where both parents lacked insight – Where need to balance the impact of removing the two eldest children from the father’s care against potential that they will not have a relationship with their mother – Where placing older children in care of mother places them at risk of harm but risk to younger children of living with mother can be mitigated – Costs.

FAMILY LAW – Final parenting orders – undefended hearing – where the father did not appear at the final hearing – where the court is satisfied to proceed in the absence of the father – where the court is satisfied to proceed undefended – where the children live with the mother – where the mother have sole parental responsibility for the children – where the children have no contact or communication with the father.   

FAMILY LAW – PARENTING – Allegations of grooming and sexualised behaviour – Unilateral suspension of time – Whether there is an unacceptable risk of harm to the children including of sexual harm – Where s 69ZT applies to some of the evidence – Where the evidence of each parties’ case is lacking – Where the children can have a meaningful relationship.  

FAMILY LAW – Enforcement of a Binding Financial Agreement – Hearing in the absence of the respondent – Where respondent has been served with the Application and other court documents but has not participated in the proceedings – Where the wife seeks orders pursuant to s 90UN(c) of the Family Law Act 1975 (NSW) (“the Act”) to require the respondent to execute all necessary documents to transfer his right and interest in a parcel of real property – Where the Agreement is enforced as an order of the Court.  

MIGRATION – deportation – application for urgent injunction –applicant provided false information on visa application – visa cancelled at immigration clearance – injunction to prevent Minister removing applicant – no jurisdictional error. 

FAMILY LAW – PROPERTY – removal of shareholder as party. 

FAMILY LAW – PROPERTY –– where issue exists as to the value of the property of the parties available for adjustment –where issue exists as to the value of the payment to be made by the husband to the wife - where the wife seeks 65 percent of the property as she asserts in her favour – where the husband seeks that he achieve 75 percent of the property as he asserts in his favour- where there are evidentiary deficiencies and vacuums in the evidence adduced by each party and neither complied with their obligations of disclosure - where there is agreement as to how property is to be adjusted in specie- where neither party impressed as a compelling witness -where the material sought to be relied upon by the parties was disproportionate and unnecessary - where the husband made the overwhelming majority of the direct financial contributions directing weight to the use made of those contributions – where no orders made adjusting the contribution finding - orders made for the wife to receive 35 percent and the husband 65 percent of the found property pool. 

FAMILY LAW - Parenting - interlocutory application - subpoena objection - protected confidence considered - costs. 

 FAMILY LAW – Where a witness was called to provide “messenger” communication to the court – where the witness declined to provide the communication – where the court made a ruling for the communication to be provided.   

FAMILY LAW – Summary decree – s 102QAB - no reasonable prospect of orders other than those identified – no time or communication other than in accordance with the child’s wishes. 

FAMILY LAW – Application to remove children from the Airport Watchlist – Application to take the children on an overseas holiday – Where the mother seeks to take the Children to a non-Hague Convention country – Where the mother is not a flight risk and has significant ties to Australia- where the Independent Children’s Lawyer went above and beyond the call of her duty by explaining the orders to the children outside of normal business hours – where the Independent Children’s Lawyer went above and beyond the call of her duty by making her firm’s trust account available to the parties for the purpose of depositing and retaining a surety during the pendency of the overseas travel. 

FAMILY LAW – Application for Review – Interim parenting – substantive review of a Senior Judicial Registrar’s decision about child’s unsupervised time with the father – the father has commenced unsupervised time – the mother now accepts unsupervised time – the father seeks to significantly increase time as of 2026 and enrol the child in school close to his home about 100kms from where the child lives with the mother – orders made to vary the days on which time occurs in 2025  – orders made for time in 2026 – overnight time on special occasions only – changeover location moved to the midway point –  order for vaccinations - Application otherwise dismissed. 

FAMILY LAW – Parenting – final orders – oral reasons delivered soon after the hearing – where the mother have sole parental responsibility – where the children live with the mother – where the time spent between the father and children be decided by the mother and on such conditions by her – where the mother be authorised to obtain passports for children – where the mother be authorised to travel with the children outside the Commonwealth of Australia – where the mother be permitted to change the last names of the children. 

FAMILY LAW – Contravention application – where the father alleges 6 counts of contravention – where the father alleges contravention of the final orders of 2022 – where the father alleges contravention of the 2023 orders – where the mother has been found to have previously contravened the orders in 2023 – where the mother enters into a bond – where there be three conditions of that bond.   

MIGRATION – application for review of decision made by Registrar to summarily dismiss judicial review application – review application set aside – application listed for final hearing – Administrative Appeals Tribunal not satisfied applicant met cl 500.211 of the Migration Regulations – whether the Tribunal’s decision was affected by jurisdictional error – no jurisdictional error established – application dismissed.

FAMILY LAW - Parenting – Where Mother had historically been children’s primary carer – Where Father perpetrated serious family violence including physical violence and coercive control – Where both parents were using drugs during relationship – Where Mother and children were living in shelters for periods of time – Where in January 2022 the paternal grandfather withheld the children after a contact period with their Father – Where the children have been living in the Father’s primary care since January 2022 – Where the Mother has ceased drug use and has engaged in counselling – Where Father uses medicinal cannabis but where there is no medical evidence as to why – Where there are risks to children remaining in the Father’s primary care – Where neither parent seeks supervised time for the other parent - Where the risks can be ameliorated – Where orders are made for the children to live with the Mother.  

FAMILY LAW – Children – contravention of parenting orders – contraventions of earlier interim orders replaced by final orders – contraventions of current orders.

FAMILY LAW – s 102NA – broad construction. 

FAMILY LAW - CONTRAVENTION - sentenced to twelve concurrent nine-month bonds – no basis for pecuniary penalty or imprisonment. 

FAMILY LAW – DIVORCE – where the Wife asserts reconciliation remains a reasonable possibility – where the Husband considers the marriage to be over – where the divorce is granted. 

FAMILY LAW – PARENTING – Findings of family violence – Benefit of a relationship with father – Arrangements that would promote safety of the children – Aboriginal culture considerations.  

FAMILY LAW – PARENTING – application for review – orders of registrar dismissing application under section 65DAAA – application out of time – substantial issue to be tried – delay not prejudice the respondent – review allowed out of time – significant change of circumstances but not in children’s best interests to revisit the final parenting orders – application for review dismissed. 

FAMILY LAW – Costs application – where the Mother seeks unquantified costs pursuant to section 117 of the Family Law Act 1975 (Cth) – Mother’s substantive application for adult child maintenance summarily dismissed – Father’s substantive application wholly successful – no cost orders made. 

FAMILY LAW – FORUM  NON CONVENIENS – DIVORCE AND PARENTING – Where Wife files application for divorce and application for parenting orders – Where the Wife and the child are domiciled in Australia, whilst the Husband is domiciled in India – Where the Husband subsequently files proceedings in India petitioning for a restitution of conjugal rights and custody of the parties’ child – Where the Husband seeks a restraint on the Wife from continuing with both of the Wife’s applications on the basis that Australia is a clearly inappropriate forum. 

FAMILY LAW — COSTS — Whether costs should be ordered, and if so, on an indemnity basis –  Where the Respondent filed but later abandoned contravention applications after a number of hearing days.

FAMILY LAW – Costs application – heard on the papers – where the Father discontinued his application – where the Mother sought costs – where the Mother incurred costs in preparation of response to the Father’s application – where the court is satisfied a costs order be made.  

FAMILY LAW – Final Parenting Orders – Warrnambool circuit sitting – undefended hearing – where the matter was listed for mention – where the Father did not participate – where the court raised whether to proceed on a final basis – where the court is satisfied the Father has been served in the Northern Territory – where it is in the best interests of the child to proceed on a final basis – where the child lives with the Mother – whether the child should spend time with the Father as agreed between the parents – whether the Mother should have sole parental responsibility for the child – final orders made as sought by the Mother. 

FAMILY LAW – COSTS – Parenting and property proceedings – Costs application filed by the Applicant following final hearing – Where the First Respondent and Second Respondents oppose the application – Where the First Respondent and Second Respondents are self-represented – Consideration of the factors set out in section 117(2A) – Where the Applicant received a section 102NA grant of legal aid partway through the proceedings and was previously privately represented – Where the Applicant seeks costs that pre-date the grant of legal aid – Where the First and Second Respondents failed to accept reasonable offers of settlement – Where the Respondents have the financial means to meet a costs order – Order for costs in relation to property applications only – Costs to be paid to the Applicant by the First and Second Respondents at scale. 

FAMILY LAW – PROPERTY – Long marriage – Where there is dispute as to the value and nature of goodwill in the husband’s corporation – Where the single expert valuer opines that the goodwill component determined by him in the valuation of the corporation is enterprise goodwill – Where the husband asserts that inalienable personal goodwill exists and ought not to be part of the value of the company – Where this submission is accepted and the value of the goodwill ascribed by the single expert is deducted from the value – Where monies expended by the wife on legal fees and tax debt post separation are notionally added back to the pool for division – Where contributions throughout the relationship are found to be equal as agreed by the parties – Post-separation contributions favour the wife – Both parties assert that an adjustment should be made to the contribution findings pursuant to s79(4)(d)-(g) of the Family Law Act – Where adjustment made in favour of the husband owing to the disparity in income earning capacity.  

FAMILY LAW – APPLICATION FOR REVIEW –mother unilaterally relocated with the children – review of orders for mother to return children to area where parties had been living – best interests of children – allegations of coercion and control – freedom of movement –determination that children return from Suburb B to Suburb C pending a final hearing – application for review dismissed.  

FAMILY LAW – PRACTICE & PROCEDURE – Interlocutory application to restrain the husband’s solicitor from acting for him – where the parties have a high conflict co-parenting relationship – highly adversarial proceedings – where the husband’s solicitors adult son provided child minding services to the husband – potential conflict of interest – integrity of judicial system – entitlement to solicitor of choice – what might a fair-minded, reasonably informed member of the public conclude – balance of public interests considerations – inherent jurisdiction of the court – application dismissed with costs. 

FAMILY LAW – COSTS – review of decision – where the father was ordered by a senior judicial registrar to pay the mother’s costs in relation to interim proceedings in a fixed sum – finding that the senior judicial registrar did not have the power to make a costs order in circumstances where interim orders were made by consent without an interim hearing – review application allowed – costs of the interim hearing reserved. 

FAMILY LAW – Property only - weight to be given to various contributions - 29-year marriage - whether there should be an adjustment pursuant to s.75(2) - income earning disparity - wife seeking periodic spousal maintenance. 

FAMILY LAW – PARENTING – Review of a senior judicial registrar’s decision – Three children aged 11, 8 and 7 - Parents in high conflict - Where the registrar made orders for the children to live with the mother – Where the eldest child refuses to live with the mother and continues to return to the father – Where the mother seeks a recovery order – Where the father seeks a review of the totality of the registrar’s decision on an urgent basis –Where all previous parenting orders are discharged and interim orders made to protect the children from psychological and emotional harm.