Judgments

FAMILY LAW – COSTS – Where the wife seeks an order that the husband pay her costs of proceedings that resulted in consent orders, proceedings pursuant to s 79A of the Act, and the costs of the application – Where the wife seeks costs on an indemnity basis in a set amount, alternatively in such amount as the Court determines on an indemnity basis, alternatively on a party/party basis in a set amount and alternatively as agreed or assessed – Where the husband sought that each party pay their own costs – Consideration of which costs provision should apply – Where the final hearing had commenced prior to the effective date provided for in the Family Law Amendment Act 2024 (Cth)– Where s 117 of the Act as previously enacted should apply – Where the Court is satisfied that the circumstances of the husband’s non-disclosure and its consequence warrant an order for indemnity costs.

FAMILY LAW – PROPERTY – Where the parties are unable to agree upon a final division of their property – Where applications for ‘add backs’ were made – Equalisation of superannuation entitlements.

FAMILY LAW – PRACTICE AND PROCEDURE - COSTS – Where final parenting orders were made – Where the mother filed an Application for a Stay of the final parenting orders – Where the Appeal Division of the Court dismissed the mother’s appeal – Where the husband seeks his costs of and incidental to the Application for a Stay in a fixed sum – Where the father is awarded his costs of and incidental to the Application for a Stay in a fixed amount.

FAMILY LAW – PROPERTY – modest pool of net assets divided as to 55% to the wife and 45% to the husband.

FAMILY LAW – CHILDREN – Where proposed minute of final consent orders sent to chambers – Where, contrary to directions, no explanation provided as to best interests – Where proposed change of residence contrary to experts’ recommendations and the child's views in those reports – Where proposed orders placed child in household with older sibling who was accused of indecently dealing with child – Where court not a rubber stamp – Where hearing held – Where father’s material inadequate – Where mother disengaged from proceedings – Where mother afforded procedural fairness – Where some proposed final orders made – Where other orders made differing from those proposed.

FAMILY LAW – PARENTING – the father seeking a change of residence – the mother proposing the children remain living with her – the mother alienating the children from the father – mother’s mental health posing an unacceptable risk to the children – the mother unable to facilitate a meaningful relationship between the children and the father – it is in the best interests of the children for them to have a meaningful relationship with the father – orders made substantially in accordance with the father’s and independent children’s lawyer’s proposals – imposition of a 16 week moratorium period and change of residence order made – spend time arrangements with the mother ordered after conclusion of 16 week moratorium.

FAMILY LAW – PROPERTY – where wife alleges physical and financial abuse by husband – where wife alleges significant financial non-disclosure by husband – where wife did not fully submit to cross-examination – whether the parties will meet significant future expenses for their children – whether the wife's future capacity to work is reduced – whether allowance should be made for capital gains tax – orders made for property split of 55-45 in husband's favour – orders made for equalisation of superannuation.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the adult daughter of the First Respondent seeks to be removed as a Respondent to these proceedings – Application allowed.

FAMILY LAW – INTERLOCTUORY – Costs – Where the wife sought an anti-suit injunction against her daughters who had filed a Summons in the Supreme Court of New South Wales – Where orders were made granting the anti-suit injunction – Where the wife sought orders against her daughter’s solicitor for costs of the anti-suit injunction application –Where the applicant contended that no instructions could have been given that would have removed the impropriety or unreasonableness on the part of the solicitor in commencing the proceedings in the Supreme Court of New South Wales – Where the solicitor contends there had been no waiver of privilege – Consideration of the Court’s power to order a solicitor to pay costs – Where the Court’s order is remedial, not punitive – Where the Court is not satisfied that there are circumstances that justify the making of a costs order – Application dismissed.

FAMILY LAW – PROCEDURAL – UNDEFENDED HEARING – Where the mother has failed to file material in accordance with Court orders – Where the mother has not properly particularised the final orders she seeks.

PARENTING – Where the mother currently resides in the United States of America under a pending application for asylum – Where the father resides in Australia with the children and is a permanent resident – Final Orders made for the children to remain living with the father in Australia and have regular telephone time with the mother, until such time she is able to travel to Australia.

FAMILY LAW – PRACTICE AND PROCEDURE – Father’s application to adjourn upcoming final hearing – Where the adjournment application is opposed by the mother and Independent Children’s Lawyer – Where the bests of the children are best served by finality to the proceedings – Where there remains time prior to the final hearing to address the extant financial matters – Application dismissed – Section 102NA orders made.

FAMILY LAW – EX TEMPORE – Objection by the husband to paragraph in wife’s trial affidavit – Where the Court is not satisfied the evidence is relevant pursuant to s 55 of the Evidence Act 1995 (Cth) (“Evidence Act”) – Where the Court is not satisfied the evidence is admissible as tendency evidence under s 97 of the Evidence Act – Objection upheld.

FAMILY LAW – PROPERTY - INTERLOCUTORY APPLICATION – Whether parenting and property proceedings ought be bifurcated – Orders for freehold and leasehold valuation of real properties – Orders for updated family report.

FAMILY LAW – ADOPTION – Where child’s biological father has not participated in these proceedings – Leave granted to the Second Applicant stepfather to make an application pursuant to the Adoption Act 2009 (Qld).

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the appointment of receiver and manager to various companies – Where the 5th and 6th respondents proposed an alternately named receiver and manager – Where the registered mortgagee over some of the properties owned by the companies appeared as an interested party and did not oppose the orders being made –Where the husband opposed the making of any of the orders – Where the wife opposed the necessity for her company to be valued and raised issues as to cost – Where the Court is not to proceed in ignorance of the legal ownership of company assets and upon an assumption that a value of a company is constituted by reference to only one asset of the company and a secured liability – Orders made for the appointment of a receiver and manager and that the wife in the first instance meet the costs of the report for the valuation of her business.

FAMILY LAW – EX TEMPORE – Application by the wife for leave to rely upon four additional affidavits at final hearing – Where the wife raises her application on day three of final hearing – Where the Court is not satisfied a proper basis has been demonstrated for leave to be granted – Application refused.

FAMILY LAW – PARENTING AND PROPERTY – Defended hearing – Final Hearing – Parenting – Where mother alleges long-standing family violence perpetrated by the father towards herself and the children – Where the older children of the marriage have corroborated this account of family violence – Where father has a history of substance abuse – Where the father's mental health is a relevant issue – Where the younger children view the father positively – Where these views are treated cautiously – Order made for the mother to have sole parental responsibility for all children – Order for father to have conditional time with the youngest children – Property – Disputed property pool – Where creditors seek payment from the matrimonial asset pool – Where asset pool is insufficient to satisfy all claims – Where various claims for security are made over the former matrimonial home – Where various instruments purporting to create security were created after the fact – Where only one remaining creditor had a secured interest over the former matrimonial home – Where wife's contributions to the marriage were significantly greater than the husband's – Where the wife has significant and continuing parenting obligations – Order made for the balance of the proceeds of sale for the former matrimonial home to be split between the wife and the fourth respondent – Order made for any other property to be retained by the husband and wife in their own names – Claims of all other (unsecured) creditors dismissed.

CONSUMER LAW – Where a creditor (the sixth respondent) seeks, as an alternative relief, damages pursuant to Australian Consumer Law – Finding made that the husband engaged in "Misleading or deceptive conduct" – Order made for damages to be paid to the sixth respondent in relation to the funds he personally invested with the husband.

FAMILY LAW – PROPERTY – Where the wife made an enforcement application seeking payment by the husband of $330,000 pursuant to final orders made in the absence of the husband on 4 June 2015 – Where the husband remarried – Where the husband and his new wife are alleged to now be separated – Where the husband’s new wife seeks orders pursuant to s 79 of the Family Law Act 1975 (Cth) against the husband – Where the asset pool between the husband and his new wife is modest – Where the husband and his new wife seek that the final orders of 4 June 2015 be set aside – Orders made staying the relevant order and the enforcement application.

FAMILY LAW – PARENTING – Where the final hearing proceeded undefended – Where final orders were made by consent of the mother and the Independent Children’s Lawyer – Where the mother is the primary carer of two of the parties’ three children – Where the father travelled to India with the parties’ eldest child without the knowledge or consent of the mother – Where there is family violence as perpetrated by the father against the mother – Mother to have sole responsibility for decision-making relating to long-term issues in respect of the two children of which she is the primary carer and who shall continue to live with her – Airport Watch List order made naming all three of the parties’ children.

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 – INTERLOCUTORY APPLICATIONS – Where the husband made several applications in a contravention proceeding – Where a harmful proceedings order was made – Where the husband made an application for recusal – Where the husband sought a s 102NA order for interlocutory hearings – Where the husband sought to restrain the wife’s solicitors and barrister from acting – Where the husband sought the issue of subpoenas – Where the husband sought a stay of earlier orders – Applications of the husband dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – Where the wife sought to be released from the Harman undertaking in respect of documents produced on subpoena – Where the wife seeks to use the documents in Supreme Court of NSW proceedings – Where the husband did not oppose the orders sought by the wife – Where the Court still needs to be satisfied that leave should be granted – Where the Court is satisfied that special circumstances exist – Leave granted.

FAMILY LAW – PROPERTY – Assessment of contributions – Small pool of interests – Final property adjustment orders made that achieve justice and equity to both parties.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother to vacate trial dates – Where the application is opposed by the father and consented to by the ICL – Where trial directions for the filing of material have not been the subject of compliance – Where the mother contends she is unable to prepare her matter due to extenuating circumstances – Where both parties have had adequate opportunity to present evidence – Where the availability of a single expert for trial is contested – Case management principles considered – Application refused.

FAMILY LAW – EX TEMPORE – Where the wife seeks to tender a document that purports to be an agreement finalising the relationship between the parties – Where the privilege attaching to the document under s 131(1) of the Evidence Act 1995 (Cth) is removed by the application of s 131(2)(b) – Where the Court is satisfied the document is not irrelevant – Document received into evidence.

FAMILY LAW – EX TEMPORE – Where final hearing has commenced – Where the wife made extensive allegations of family violence in her trial affidavit but failed to mention some allegations in earlier affidavits – Where the wife gave oral evidence of advice not to pursue family violence allegations by prior solicitors – Where the husband called for documents and the Court issued subpoenas for communications between the wife and her solicitors – Where the Court is satisfied the documents have apparent relevance – Where the Court is satisfied the wife's oral evidence constituted an implied waiver of legal professional privilege – Orders made for the wife to produce documents to the Court.

FAMILY LAW – PARENTING – INTERIM - Where the children have resided with the mother since March 2023 and spent no time with the father – Where the elder child requested of her father to be picked up from school in July 2025 and has resided with the father since – Where the mother filed an urgent interim application for recovery of the child – Recovery order made – No orders for the child to spend time with the father pending the trial in November 2025.

FAMILY LAW – EX TEMPORE – Where the wife seeks leave to issue four subpoenas to individuals to attend and give evidence – Where the wife seeks leave at the time final hearing is listed to commence – Where relevance of the subpoenas is not established – Where there is potential risk to the completion of the trial if leave is granted – Where the Court is not satisfied that leave should be granted – Leave refused.

FAMILY LAW – PARENTING –– Where the mother sought to relocate the child’s residence on a final basis – Where the father would not move residence if the Court made orders that it was in the best interests of the child to relocate – Where both parties sought joint decision-making responsibility – Where the parties have a good co-parenting relationship – Where no allegation of risk or family violence – Where the parties agreed on a suite of ancillary orders to be made by consent – Where the mother suffers from adverse mental health conditions – Where it was contended that the mother’s mental health condition has worsened post-separation – Where the relationship between the father and the child is able to be beneficially maintained and supported if the child relocates – Where it is in the child’s best interests for the child to relocate such that the mother’s parenting capacity will be strengthened by additional supports – Orders made for the child to relocate.

FAMILY LAW – PROPERTY – Interim distribution – Where a $170,000 interim costs order is sought for litigation funding – Where the respondent seeks the former matrimonial home be sold immediately – Where extensive property valuations may be required and there is a dispute on how the costs will be met – Where it is determined no ‘justifying circumstances’ exist to make an interim costs order – Where the former matrimonial home is to be sold and the balance of the sale proceeds equally distributed between the parties – Where the cost of any necessary property valuations is to be paid equally – Where the applicant must particularise the final property orders sought within 7 days.

FAMILY LAW – PRACTICE AND PROCEDURE – Non-compliance with directions – Where the matter has been relisted to show cause as to why the applicant’s Initiating Application should not be dismissed and the matter proceed on only the respondent’s evidence – Where the applicant sought the vacation of orders and sought a suite of orders, including an extension for the parties file their affidavits – Where the respondent has complied with directions and filed trial evidence – Orders for the extension of filing trial material for the applicant only and that if the applicant fails to comply, his Application will be dismissed and the matter will proceed on the evidence of the respondent and that of any single expert and evidence adduced by the Independent Children’s Lawyer.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife applies for costs in relation to the trial – Where husband appealed primary orders - Where consent orders made deferring the costs application to after disposition of the appeal – Where appeal upheld on one discrete issue and discretion re-exercised – Where the husband contends the costs application was dismissed by dint of the appeal – Where no order dismissing the costs application has been made – Where the justiciable controversy has not been quelled - Where the husband, in the alternate, seeks an extended timeline for filing documents because he is now self-representing and may be going on holidays – Where the wife’s timeline provides ample time for the parties to file material.

FAMILY LAW – PRACTICE AND PROCEDURE – Requirements of s 102NA(2) of the Family Law Act 1975 (Cth) ordered to apply.

FAMILY LAW – PROPERTY – Marriage of 48 years where neither party brought significant initial assets into the pool – Where the husband made greater financial contributions during employment – Where the wife made the majority of homemaker and parenting contributions and assisted in the business – Where the Court found the husband subjected the wife to family violence over the course of their marriage that adversely impacted the wife’s contributions – Where the husband withdrew significant cash sums pre-separation for his sole benefit – Where the husband failed to comply with orders for sale and disputed multiple valuations – Where the collective addbacks were considered under section 75(2)(o) – Where the wife shall receive 57 per cent of the pool and the husband 43 per cent.

PRACTICE AND PROCEDURE – Where counsel for the husband made an oral application for the Judge to recuse herself on the basis of apprehended bias – Where the application was based on refusal of adjournment, comments made to counsel, remoteness of interpreter arrangements and refusal to allow spontaneous cross-examination of an interpreter – Where the application was dismissed.

FAMILY LAW – PROPERTY – Financial agreement – Where the applicant seeks to pursue property division under s 79 of the Family Law Act 1975 (Cth) (“the Act”) – Where the respondent contends an agreement between the parties is a binding financial agreement under s 90C of the Act – Agreement entered into during the marriage – Agreement provided for the immediate sale of a property and division of the proceeds – Agreement does not refer to the breakdown of the marriage or maintenance – Where the agreement is not a financial agreement within the meaning of s 90C.

FAMILY LAW – PROPERTY – Where the Applicant wife passed away after commencing proceedings – the parties’ adult daughter was substituted as the Applicant – Where the First Respondent husband’s wife is the Second Respondent – Property interests outside of Australia – Overseas political unrest prevented valuation evidence to be produced – Where the Applicant contends several overseas properties were more likely than not paid for by the husband rather than the Second Respondent and that the husband at the very least holds an interest in the overseas and it is more likely than not that he is the true beneficial owner of them – Where the Applicant bore the onus to establish the husband’s interest in those properties and she has failed to do so – Applications for declarations against the Second Respondent dismissed – Evidence of overseas transactions and their effect on the value of company shareholdings held personally by the husband and the estate is so deficient that caution must be exercised in attributing any definitive valuation – The corporate interests constituted as a separate pool.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties require the court to settle a joint letter of instruction to be provided to the single expert – Where the parties each provide proposed letters of instruction for the court to consider – Where the joint instructions to be provided to the single expert are settled by the court and made an exhibit to the reasons for judgment – Where the settled instructions address the key issues only.

FAMILY LAW – PARENTING – Interim parenting orders – Application to reconsider recently made final parenting orders – Where the parties agree that there has been a significant change in circumstances such that it is in the children’s best interests for the final parenting orders to be reconsidered – Where each parent proposes competing orders to address alleged risk of harm to the children when in the other parent’s care – Where the children are not presently living with or spending time with the mother pursuant to the final orders – Where the s 65DAAA application is granted – Where orders are made on an interim basis for the children to live with the father and spend day time only with the mother – Where the mother is restrained from contacting the children’s medical practitioners and therapists – Orders made progressing the matter to the preparation of a Child Impact Report.

FAMILY LAW – PARENTING – Final parenting orders – Where the parents separated in early 2022 and the children have since lived with the maternal grandparents – Where the father pleaded guilty to assaulting the mother – Where the children witnessed acts of family violence between the parents – Where the father relocated to New Zealand in late 2022 – Where the time spent by the children with the father has been professionally supervised – Where the maternal grandparents joined the proceedings in August 2023 – Where at final hearing the residence of the children was a contest between the maternal grandparents and the father – Where the mother has been beset by an excessive use of alcohol – Where the mother acknowledged her deteriorated parenting capacity necessitates the supervision of any time the children spend with her for the foreseeable future – Where the mother, the maternal grandparents and the Independent Children’s Lawyer agree the children should live with the maternal grandparents – Where the children told the family consultant they wish to retain their residence with the maternal grandparents – Where the father’s beliefs the children will not be properly supported by the maternal grandparents are not probative – Where the maternal grandparents have the capacity to meet the children’s physical, emotional and intellectual needs – Ordered the children’s residence should remain with the maternal grandparents – Where the parties agreed conferral of parental responsibility for the children would follow the residence order – Ordered the children spend time with the father during school holidays – Ordered the children spend time with the mother once per week and on special occasions to be supervised by the maternal grandparents.

FAMILY LAW – Children – child live with mother – child spend unsupervised time with father.

FAMILY LAW – COSTS – application for costs following delivery of judgment in parenting matter – where one party largely unsuccessful – no order for costs.

FAMILY LAW – PARENTING AND PROPERTY – Defended hearing – Final orders – Parenting – Where the children live with the mother and have spent limited daytime with the father – Where the parents live in different States – Where since interim orders were made in April 2024 neither party has applied for interim orders requiring the children to spend time with the father – Where the mother told the court child expert she considers the children are responsible for the time they spend with the father – Where the father’s deep mistrust of the mother’s willingness to support the children’s relationships with him is not objectively explicable by the evidence – Where the children all express the desire to spend more time with the father – Where the father’s insistence the children live with him implies the prioritisation of his desire over the children’s needs – Orders made – Children to remain living with the mother and that she have sole decision-making authority – Children to spend three weekends of each school term and half school holidays with the father – Property – Where it is just and equitable to make orders adjusting the parties’ property interests – Where the mother and her sibling are registered legal owners of a property purchased by the maternal grandparents – Where the mother asserts the property is the subject of a resulting trust – Where the mother was impelled to admit the presumption of advancement ousted the presumption of a resulting trust – Where loans entered into by the parties to pay for legal fees are ignored as liabilities – Contribution-based entitlement assessed as 65/35 with a 12 per cent adjustment in favour of the mother – Orders made – Where the parties’ agree for the mother to retain the former matrimonial home and other real properties, provided she pay the father a cash sum – Where the parties otherwise agree to retain their personal property and superannuation entitlements.

FAMILY LAW – CHILDREN – Interim order - Ex tempore – Where a trial is adjourned part-heard due to illness – Where there are cross allegations of family violence – Where findings of fact are yet to be made – Where the mother is not currently spending any time with the children – Where the mother has previously withheld the children and a recovery order issued – Where risk that changes to the current arrangements would subject the children to further trauma – Where the application is dismissed.

FAMILY LAW – PARENTING – Where the Mother alleges serious family violence by the Father – Where the evidence does not establish family violence – Where it is found that the Mother has prevented the children from having a relationship with their Father – Orders made for the children to live with the Father – Orders made for the Father to have sole parental responsibility – Orders made for a six-month moratorium period where the Mother is not to see or contact the children – Where the Mother will thereafter spend time with the children.

FAMILY LAW – PARENTING – Where the husband seeks time with the children on a fortnightly basis for five nights per fortnight extending to six nights per fortnight in 2026 and for half of all school holidays – Where wife opposes the husband’s application and proposes that the children remain living with her and spend time with the husband each alternate weekend and on special occasions – Orders that parents share sole parental responsibility and joint decision making for the children save for the wife having sole parental responsibility for the medical and therapeutic issues regarding the children – Orders that the children spend time with the husband for four nights per fortnight and from Term 1 in 2026 for five nights per fortnight – Orders that children spend time with the husband during school holidays and special occasions.

PROPERTY – Where the husband argues for a 60 per cent distribution of a contentious property pool based on a 5 per cent adjustment on each of contributions and factors pursuant to s 75(2) of the Family Law Act 1975 (Cth) in his favour – Where the wife opposes the husband’s application and proposes that the net property pool of the parties be divided as to 70 per cent to her and 30 per cent to the husband – Where the wife makes a Kennon claim – Where the husband fails to adduce corroborative evidence without explanation in relation to the sale of his business – Orders that there be a distribution of the net property pool inclusive of superannuation as to 65 per cent to the wife and 35 per cent to the husband – Justice and Equity.

FAMILY LAW – PARENTING – Recovery Order – Where final parenting orders were made providing for the youngest child to live with the mother on condition the mother relocated her residence closer to the father – Where the father contends the mother has not complied with the relocation conditions – Where the mother provided the father with redacted and incomplete residential tenancy agreements – Where the mother alleged her fear of family violence by the father and refused to divulge her new address to him – Where the mother offered to secretly reveal her address to the Court – Where all evidence must be weighed and assessed having regard to the capacities of the parties to adduce and contradict it – Where the mother has failed to comply with final orders – Where the standing orders require the youngest child to live with the father – Recovery Order issued.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by respondent for adjournment of hearing as to whether an agreement is enforceable as a binding financial agreement – Where the respondent’s lawyers were granted leave to withdraw – Order under the s 102NA cross-examination scheme – Failure to attend previous hearings – Failure to comply with directions – Prejudice to applicant if proceedings delayed – Effect of adjournment on other litigants awaiting court dates – Application refused.

FAMILY LAW – PROPERTY – Where the Applicant wife passed away after commencing proceedings – the parties’ adult daughter was substituted as the Applicant – Where the First Respondent husband’s wife is the Second Respondent – Property interests outside of Australia – Overseas political unrest prevented valuation evidence to be produced – Where the Applicant contends several overseas properties were more likely than not paid for by the husband rather than the Second Respondent and that the husband at the very least holds an interest in the overseas and it is more likely than not that he is the true beneficial owner of them – Where the Applicant bore the onus to establish the husband’s interest in those properties and she has failed to do so – Applications for declarations against the Second Respondent dismissed – Evidence of overseas transactions and their effect on the value of company shareholdings held personally by the husband and the estate is so deficient that caution must be exercised in attributing any definitive valuation – The corporate interests constituted as a separate pool.

FAMILY LAW – Interim hearing – children.

FAMILY LAW – FINANCIAL – Interim orders – Where the wife sought an interim property order in the sum of $400,000 for the payment of legal fees – Where the wife also sought enforcement of orders made 16 January 2024 ordering the husband to pay the wife the sum of $100,000 – Where the husband opposed the orders sought by the wife contending that a payment to the wife of the magnitude sought would defeat his ultimate claim and could not be considered at a final hearing – Where the Court is required to act conservatively and be satisfied that the order is capable of being reversed or not defeat the husband’s final claim – Where the Court is satisfied that a lesser amount of $200,000 is a just and equitable order.