Judgments

Division 2 - Family law

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FAMILY LAW – REVIEW – Whether interim orders made by a Senior Judicial Registrar should be varied by changing the living arrangements of the children – Whether it is in the bests interests of the children to live with the Father and/or spend significant time with him – Whether either party poses an unacceptable risk to the children.

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FAMILY LAW – PARENTING – Undefended hearing as against the father – Where the paternal grandfather and paternal uncle make the same application for time with the child – Findings of family violence – Mother’s evidence mostly uncontradicted – Father incarcerated at the time of hearing – Father pled guilty and convicted of a serious criminal offence relating to a member of the mother’s family –Where the father has not spent time with the child since his incarceration – Child to spend no time with the father or the paternal family – Where order for the mother to have sole decision-making for long-term issues is in the best interests of the child

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FAMILY LAW – Parenting – Application for recovery order – Child under a NSW Children’s Court order – Child welfare officer of State of NSW consent in writing to orders – Where orders were made for return of child by father several days prior – Child not returned pursuant to earlier orders – Recovery order made.

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FAMILY LAW – COURTS AND JUDGES – Disqualification. FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal.

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FAMILY LAW – De facto property proceedings – one child of the parties – dispute over commencement and conclusion of relationship – short relationship – contributions significantly favour the de facto husband – no likely future needs adjustment – leave out of time – hardship – whether there is a significant likelihood of success – inadequate reasons for delay – prejudice to the respondent due to the significant passage of time – costs of property proceedings likely to outweigh the de facto wife’s entitlement – application dismissed.

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FAMILY LAW – Parenting – Urgent interim hearing – Whether a recovery order can be made for child governed by a very old children’s court order – Longstanding arrangement – Conflict between teenager and ‘live with’ parent – Child not attending school – Child now living with previous ‘spend time’ parent – Child to live with long term ‘live with’ parent – Matter adjourned pending advice from NSW Child Protection.

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FAMILY LAW – contravention application – multiple allegations of contravention of orders – allegations predate the last contested final hearing – unnecessary to determine whether application an abuse of process – allegations not made out on balance of probabilities – some allegations de minimis – contravention application dismissed

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FAMILY LAW – PARENTING – Both parents with limited capacity to act in best interests of children – Findings of family violence – Weight given to views of Children – Leaving door open for children to have relationship with the other parent

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FAMILY LAW – Property – part-heard – drawdown - injunction – administration of justice

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FAMILY LAW – PROPERTY – Final hearing – De facto relationship of some 30 years – Out of time issue – De facto husband seeks leave to proceed out of time and a property settlement of 55% in his favour – De facto wife opposes the out of time application – De facto wife argues that it is not just and equitable to alter the parties’ interests – Stanford sought to be applied – Assets and liabilities at trial in the individual names of the parties – Where the Court declares a de facto relationship existed between 1991 and 2021 – Just and equitable for there to be an adjustment of the parties’ interests – Orders made for the sale of real property – Division of property 45/55% in favour of the de facto wife – Justice and equity.

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FAMILY LAW – Procedural - threshold issues - hearing vacated – fixed for final property hearing – costs reserved

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FAMILY LAW – PROPERTY – Adjustment of property interests pursuant to s79 of the Family Law Act 1975 (Cth)  – Where there are substantial issues as to the nature and composition of the property with the wife contending the husband has a legal interest in an overseas financial enterprise operating a business – Where the material and case presented by each of the parties was contradictory and confusing and did little to assist in the finding of facts - Where the wife contends that the husband made her contributions more onerous arising from the principles enunciated in Kennon v Kennon (1997) FLC 92-757 – Where the wife’s contention is not established - Where the husband made superior financial contributions - Where the husband’s failure to provide a full and frank disclosure makes it difficult to ascertain his true financial position- Where a ten percent adjustment is made to the contribution findings in the wife’s favour as a result of the husband’s disclosure failures - Where the husband was granted legal representation funded by the Commonwealth Family Violence and Cross-Examination of Parties Scheme despite living overseas and the husband concedes he did not advise of this when making his application – Where a copy of this judgement will be provided to the Legal Aid Commission and liberty granted to make such application as the Commission sees fit.

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FAMILY LAW – PARENTING – Application for review – unilateral removal from school and enrolment at new school – common intention of parties – views of the child – acrimonious co-parenting relationship – best interests of the child – application for review dismissed

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FAMILY LAW – PARENTING – supervised time – alternate weekends

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FAMILY LAW – Spousal maintenance liability order discharged – all outstanding amounts reduced to a nil sum – significant change of circumstances of both the applicant and respondent - respondent remarried

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FAMILY LAW - PROPERTY – de facto relationship – 20 years – 2 daughters – relationship ended March 2009 - ongoing financial connection with joint property- de facto husband acquired whole of joint property as a result of debtor’s petition by de facto wife- proceedings commenced 2017 – unfortunate procedural history- alteration of property interests under s90SM – orders for payment of $75,000 and otherwise sale of property

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FAMILY LAW – PARENTING – where the mother seeks orders that the children live with her and she have responsibility for major long-term decisions, where the children have lived with the paternal grandparents since late 2021, where there are issues of family violence, alcohol and drug abuse, child neglect and child protection – where it is in the best interests of the children to remain in the primary care of the paternal grandparents

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FAMILY LAW – property proceedings – length of relationship – short de facto relationship – initial contributions – inheritance – loans – post-separation contributions – impact of short relationship on earning capacity – unreliable witness

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FAMILY LAW – Property – Priority Property Pool case – Application to restrain a solicitor from acting – Where respondent defacto husband claims to have contacted community legal service representing defacto wife – Decision not to restrain legal service from acting for de facto wife – Not in interests of justice to delay proceedings further – Application for extension of time to apply for property orders due to hardship pursuant to section 44(6) accepted – Orders to divide chattels between parties.

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FAMILY LAW – PROPERTY – Modest asset pool – 40 years of cohabitation – Broad-brush approach – Overall contributions equal – Future needs adjustment

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FAMILY LAW – PARENTING – drug use – physical discipline – verbal abuse – neglect – lack of parenting boundaries – parental denigration – lack of insight – stability for children – evidence of current risks – amelioration of risk – injunctions – joint decision making – international travel – trial commenced pre-6 May amendments to the Family Law Act

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FAMILY LAW – Parenting – serious allegations of family violence – Father charged with serious criminal offences against Mother – Father withdraws on first day of final hearing – consideration of unacceptable risk – where the three eldest children refuse to spend time and communicate with Father – where safety of children and the Mother requires a no time order FAMILY LAW – Parenting – serious allegations of family violence – Father charged with serious criminal offences against Mother – Father withdraws on first day of final hearing – consideration of unacceptable risk – where the three eldest children refuse to spend time and communicate with Father – where safety of children and the Mother requires a no time order

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FAMILY LAW – PROPERTY – leave to proceed out of time application – five years after the statutory date when proceedings ought to have been instituted - where the Applicant submits he has a prima facie case – where the applicant fails to satisfy the hardship requirement – no prima facie case – where the wife would be at detriment to plead her case after such time – delay not explained satisfactorily – application dismissed

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FAMILY LAW – PARENTING - Substantial consent orders made – child aged 11 – benefit of overseas travel for the child – family therapy to continue until the child turns 15 - no orders as to the ICL’s costs

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FAMILY LAW – Application summarily dismissed – proceedings are frivolous, vexatious and an abuse of process, and have no reasonable prospect of success within the meaning of s 102QAB of the Family Law Act 1975 (Cth) – application sought to re-agitate issues other previous proceedings

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FAMILY LAW –  parenting and property – final orders – determination of whether one parent reneged on agreement for the family to move and live overseas – whether one parent coercive and controlling – whether the child should live with her mother or her father – father lives in Melbourne and mother lives in Country B – question of which parent will best support the child’s relationship with the other parent – whether child settled where currently living – choice between child lives with one of two good parents – property division proceedings – determination of extent of one parents inheritance and weight to be given to that inheritance – determination of disputed items in pool of property including treatment of paid legal fees and proceeds of sale of shares – consideration of contribution – whether equal as alleged by father or 60/40 as alleged by mother – contribution determined to be 57/43 – consideration of section 75(2) factors – whether should be nil or 10% - determination section 75(2) factors should be 7% - consideration of dollar amount of adjustments as well as percentage – overall division of assets 64/36 – agreed equality of superannuation split – proposed orders in default of payment need clarification – final orders made with direction for parties to bring in agreed default provision

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FAMILY LAW – CONTRAVENTION – No intentional failure to comply – Made reasonable attempts at complying – Lack of evidence of contraventions – Contravention dismissed

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MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student visa – whether open to Tribunal to affirm delegate’s decision on different basis to delegate – whether denial of procedural fairness – whether Tribunal’s refusal to grant adjournment was unreasonable – whether Tribunal failed to have regard to matters

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FAMILY LAW – PARENTING – Contravention – Mother concedes all charged contraventions without reasonable excuse – Mother argues no sanction should apply – Mother refuses to enter bond – Father seeks maximum penalty – Mother has previously been found to have contravened orders without reasonable excuse – Sanction necessary – Degree of appropriate penalty – Whether a fine can be order in lieu of bond – Where it is found that a bond must be ordered first, and a fine can only occurred after a party has failed to enter the ordered bond – Father seeks costs – Costs awarded – Whether claimed costs are reasonable

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 FAMILY LAW –PROCEDURE - Stay application refused – further opportunity to reagitate – Appellate Court more appropriate forum

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 FAMILY LAW – Parenting – partial agreement on consent orders- remaining issue time with father – recusal application during father’s evidence -supported by ICL –  orders for recusal made

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FAMILY LAW – Review of interlocutory property orders - 4 subject children – complex medical, behavioural and learning needs for both 17-year-old and 12-year-old subject children - Where the parties seek to vary interlocutory orders to sell the family home – Wife brings evidence to support the maintenance of the family home - Whether there has been a change of circumstances and/or the existence of a new fact that warrants the setting aside of the interlocutory orders – Whether the interlocutory orders should be enforced with a variation - Interlocutory orders set aside and fresh orders made. 

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FAMILY LAW – Application to review orders of Judicial Registrar.

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FAMILY LAW – Parenting – application for adjournment – family report writer unavailable for cross examination – notice to the family report writer was not sufficiently given – not in the best interest of the child to adjourn the matter – application dismissed.

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FAMILY LAW – ICL Costs – financial hardship – ICL’s request for costs against the mother dismissed

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FAMILY LAW – PARENTING – where the subject child is almost 12 years old – where the child suffers anxiety – where the father seeks to have the child live with him full-time in circumstances where the child has never lived with the father nor had overnight time and has expressed anxiety and fear at the thought of spending overnight time with father – child feels unsafe with the father – child has suffered from further anxiety upon mother being diagnosed with life threatening illness –father’s lack of insight - child to live with mother – spend no time with the father 

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FAMILY LAW – DIVORCE – respondent lacks capacity to participate in proceedings – efforts of court and solicitor for the application to appoint a litigation guardian for respondent unsuccessful, including by request to Attorney-General pursuant to rule 3.16(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – hearing of application in absence of respondent or a litigation guardian appointed on her behalf – consideration of evidence of separation under the one roof in context of respondent’s illness and disability and applicant’s role caring for her – unreliable corroborative evidence – application dismissed.

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FAMILY LAW – PROPERTY – marriage of seven years; cohabitation of four years and two months – no children of marriage – husband seeks alteration of property interests – wife opposes application – application of Stanford – consideration of ss79(2) and 79(4) Family Law Act 1975 (Cth) – husband made no direct financial contributions and only limited indirect financial and non-financial contributions – finding it is not just and equitable to make an order pursuant to section 79 – application dismissed.

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FAMILY LAW – Parenting – final orders – child live with mother – mother have sole decision making relating to health and education – father spend each alternate Saturday with child – further time between father and child including overnight time as agreed between parties – where the father changes his position during proceedings – father to enrol in a parenting program 

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FAMILY LAW – CHILDREN – Spend time with orders – Where term poor parental communication was inappropriately used to describe an entrenched pattern of behaviour towards the mother and child – Where no physical violence – Where father alleged to control mother by range of behaviours including harassment, intimidation, humiliation, monitoring, constant criticism – Whether father posed risks arising from alcohol use, mental health condition or family violence  – Where father lacked insight – Where child has a loving and meaningful relationship with the father – Where child would be exposed to unacceptable risk of psychological and emotional harm in the care of the father – Whether parenting coordinator and/or use of AI tool to moderate father’s communication style can mitigate the identified risks of harm – Where the risk posed by the father can only be mitigated by final orders for supervised and restricted time. 

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FAMILY LAW - PROCEDURE – leave granted to the applicant and the respondent to use documents filed in these proceedings for criminal proceedings

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FAMILY LAW – De facto property settlement proceedings – ten-year relationship – two children – modest property – financial proceedings re-opened due to inheritance – who retains the family dog – hearing conducted on the papers – just and equitable outcome. 

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FAMILY LAW – Property – Where wife alleges substantial failure to disclose by husband – Husband unrepresented – Application for adjournment in circumstances where husband recently became unrepresented – Not infrequent difficulties with section 102NA representation in this court – Unintended consequences of section 102NA – Decision not to proceed undefended – Final hearing adjourned to allow appointment of another solicitor for husband by Legal Aid Victoria – Not insignificant volume of documents and material to be prepared – Costs thrown away by reason of adjournment fixed but to be determined at final hearing. 

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FAMILY LAW – Parenting – Child aged 9 – Where the child has not interacted with the father for four years – Where the father seeks parenting orders to resume a relationship with the child – Where the relationship was severed as he was sentenced to a term of imprisonment – Where the mother seeks a decree pursuant to s 102QAB of the Family Law Act 1975 (Cth) – Consideration of the welfare of the child’s primary carer – Whether the continued proceedings amount to harm – Family violence – Assessment of harm – Harmful proceedings order made – Application dismissed 

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FAMILY LAW – Divorce – contested application – validity of Country B marriage – forum non conveniens – whether Australia is a clearly inappropriate forum – pending application for restitution of conjugal rights in Country B – unsuccessful application for anti-suit injunction in Country B – presumption of validity of the marriage is not rebutted – nature of the order sought by the wife in the Country B proceedings – parties having connections to Australia – divorce granted.  

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FAMILY LAW – PARENTING – Benefit of meaningful relationship to the child – Need for self-awareness and impact of behaviours – Risks capable of being minimised – time to incrementally increasing  FAMLY LAW – PROPERTY – Small property pool – Greater overall financial contributions by one party – Future needs adjustment  

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FAMILY LAW – CHILDREN – where Mother alleges coercive controlling violence and manipulation of children by Father – where Mother seeks continuation of longstanding equal time arrangement – where Father seeks the children live with him and spend time with Mother in accordance with their wishes – orders made as sought by Mother.  FAMILY LAW – PROPERTY – where De Facto Wife’s evidence is preferred because De Facto Husband’s evidence is found to be unsatisfactory and unreliable – where the De Facto Husband has failed to comply with disclosure obligations – where transactions asserted by De Facto Husband found not to be genuine – where obfuscatory conduct on the part of the De Facto Husband hampered the ability of the Court to make findings sought by him – where expenditure on legal fees is added back – where significant adjustment in favour of De Facto Wife pursuant to s 90SF(3) found to be warranted.

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FAMILY LAW – PARENTING - family violence – pornography - real and significant risk of emotional and psychological harm - best interests of the children – no time   

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FAMILY LAW – Parenting and Property orders – 9-year-old subject child – where the father has been inconsistent with complying with spend time with orders – history of family violence – where the mother seeks sole parental responsibility and conditions subsequent should the father fail to spend time with child –– where the father seeks to jointly make decisions –  where the father seeks to amend child’s name to include his last name –  property adjustment orders – where a global approach is taken – where there is a stark financial disparity between the parties –  where the mother seeks a property adjustment reflective of the impact of family violence and there being no prospect of the payment of child support – adjustment of 60% of property pool in favour of the mother  

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FAMILY LAW – Parenting – final hearing – discreet issue – where the Mother seeks an absolute restraint on the child being exposed to firearms – where the Mother has traumatic personal experience involving firearms – where the Father is a keen, responsible gun owner and enjoys hunting – where there is a meaningful relationship between the Father and child without exposure to firearms – whilst there is no unacceptable physical risk to the child being exposed to firearms in Father’s presence and supervision, dismissing the Mother’s application would likely result in the child becoming embroiled in a ‘loyalty conflict’, strain co parenting trust and communication and have an adverse impact on the Mother’s long term mental health with flow on adverse effects on her parenting capacity – best interests of child to order restraint on exposure to firearms until 18 years of age.