Judgments

FAMILY LAW – COSTS – De Facto property proceedings – Where respondent de facto husband continued to deny allegations of physical family violence until confronted with criminal history – Where respondent refused reasonable offer or compromise – Where respondent’s conduct of the trial increased the costs of the applicant

FAMILY LAW – COSTS – Where relevant factors considered – Where court satisfied that there are circumstances which justify a costs order

FAMILY LAW – COSTS – Applicant seeks indemnity costs – Where settled practice is to order costs on a party and party unless there is an exceptional, unusual or extreme circumstance.

FAMILY LAW – COSTS – Party and party costs – Costs awarded in a fixed amount calculated in accordance with Scale

FAMILY LAW – Defacto relationship – Threshold issue – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the respondent denies the existence of a defacto relationship – Consideration of the nature of the parties’ 21 year relationship – Where the parties lived together – Where the parties had a non-exclusive sexual relationship – Where the applicant was financially dependent on the respondent – Whether the parties had a mutual commitment to a shared life together – Costs reserved.

FAMILY LAW – Final Parenting Orders made in 2016 after defended  hearing – Father seeks to change final orders where he has previously applied in 2018 and 2020 –Father was found guilty of contravention of orders in 2024 – Section 65DAAA applied - No significant change of circumstances found - Final Parenting Orders in best interests of child – where Mother seeks declaration that Father is vexatious litigant pursuant to section102Q – declaration made

FAMILY LAW – PROPERTY– Where wife seeks to vary or set aside Final Orders made on 2 May 2013 pursuant to s 90SN(1)(b) – (c) – Where husband seeks to enforce those Final Orders – Finding of default by both parties – The Final Orders be varied or set aside in substantive proceedings.

FAMILY LAW – PROPERTY SETTLEMENT PROCEEDINGS – Applicant alleges breakdown of 23 year de facto relationship and files Initiating Application seeking property settlement orders – Respondent files Response seeking s 90RD declaration that there had been no de facto relationship – Respondent subsequently dies – Respondent’s legal personal representative files application for summary judgment on basis that the proceedings have abated as a result of the Respondent’s death – proper construction of s 90RD and s 90SM(8) of the Family Law Act - questions of jurisdiction considered – application for summary judgment dismissed

FAMILY LAW – Parenting – three children, aged 15, and two twins aged 10 – extremely high conflict – where the siblings are separated – where both parents have engaged in “psychological warfare against their ex-partner at the detriment of their children” – where both parents have involved the children in adult issues and the Court proceedings, engaged in open denigration of the other in front of the children, attempted alienation/alignment of one or more of the children, verbal and psychical abuse on one another, emotional neglect of the children – where the Court holds concerns about both parents and their attitude – where the Court considers that the mother should be allowed to relocate – where the Court considers that the twin girls should remain living with the mother and only have electronic communication with the father – where the Court considers that the eldest boy should continue to live with the father and spend time with the mother in accordance with his wishes – electronic communication between all three children – best interests.

FAMILY LAW – Property – where the parties were together for 22 years – where the matrimonial assets are modest – jointly owned home with modest equity – where there are various items and vehicles – superannuation splitting order – just and equitable.

FAMILY LAW – PROPERTY – no binding financial agreement between the parties – redraws on the mortgage by the wife – equal financial contributions – slightly greater non-financial contributions by the wife impacted by duration of marriage and relatively small property pool- husband has reduced earning capacity –after future needs adjustment - 48% in favour of husband and 52% in favour of wife - no order as to cost

FAMILY LAW – PARENTING – Where the mother seeks a suite of interim parenting orders including that the children live with her, that she is granted sole parental responsibility and that the father is restrained from contacting the mother or children – Where allegations of parental alienation are a live issue and require determination at final hearing – Where the father challenges the opinions of the single expert – Where an order changing the children’s place of residence has the potential to cause significant emotional distress – Where there is no evidence that the children are at an ongoing risk in respect to their physical safety in the mother’s care – Where the supervision reports are overwhelmingly positive – Orders made allowing the children to spend additional time with the mother on an unsupervised basis.

FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – Where criminal proceedings are on foot – Where the mother sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – Where the application is opposed by the father – Where the mother seeks to use the documents in aid of her defence in criminal proceedings – Consideration of r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the Court is satisfied that special circumstances exist – Order releasing parties from Harman undertaking

FAMILY LAW – PARENTING – Orders made in the best interests of the children.

FAMILY LAW – PROPERTY – Just and equitable property adjustment orders made.

FAMILY LAW – CHILDREN – Where the parties agree that the mother should hold sole parental responsibility for the child and that the child should live with the mother – Whether the child should spend time with the father – Where the child has never met the father – Where there are allegations by the mother of significant family violence perpetrated by the father, including coercive and controlling family violence – Where findings are made that the father poses an unacceptable risk of harm to the child and the mother as a result of family violence – Where the father has long-term mental health issues – Where findings are made that the father’s mental health presents an unacceptable risk of harm to the child’s safety – Where the Court cannot be satisfied that the father is drug-free – Where the child is vulnerable due to developmental delays – Where orders are made that the child shall spend no time with nor communicate with the father – Where injunctive orders are made pursuant to section 68B of the Family Law Act 1975 (Cth)

FAMILY LAW – subpoena objection - where the mother sought a subpoena from the Office of the Health Ombudsman – where the Office of the Health Ombudsman objected to that subpoena on the grounds of relevance, insufficient particulars and confidentiality – where the material sought in the subpoena is relevant – where the relevant statute provides the Office of the Health Ombudsman is not required to disclose confidential information to a court or tribunal.

FAMILY LAW – PARENTING – adjournment application - promote cooperative and child focused parenting by the parties - advance a meaningful relationship between the father and the children – permitting the father to address the significant evidentiary shortcomings – adjournment granted with condition imposed – interim parenting orders

FAMILY LAW – PARENTING – adjournment granted 7 December 2023 – Social media post by suggesting he had manipulated the Court - application for disqualification by the father’s Counsel on the grounds of alleged apprehended bias - fair-minded lay observer – oral application for recusal dismissed.

FAMILY LAW – COSTS – Application for costs following conclusion of defended parenting proceeding – Applicant wife seeks indemnity costs – In the alternative costs order sought on a party and party basis calculated at Scale – Consideration of general rule that each party bear their own costs in proceedings under the Act – Consideration of whether there are circumstances which justify an order for costs – Consideration of what, if any, order for costs is appropriate. FAMILY LAW – INDEMNITY COSTS – Solicitor and client cost – Settled practice to order costs on a party and party basis – Consideration of whether there is a circumstance which justifies a departure from settled practice. FAMILY LAW – HELD no exceptional, unusual or extreme circumstance. FAMILY LAW – PARTY AND PARTY COSTS – Costs awarded in a fixed amount calculated in accordance with Scale

FAMILY LAW – CHILDREN – Where the parties agree that the children shall live with the father and the eldest child (15 years of age) shall spend time with the mother in accordance with her wishes – Whether orders should be made for time and communication between the youngest child (11 years) and the mother – Whether the father should hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties – Where the children have spent no time with the mother since September 2023 – Where the children hold strong views that there be no orders to spend time with the mother – Impact of protracted litigation on the children – Parental conflict – Where both children have experienced mental health difficulties – No positive findings of family violence – Findings made that coercive orders for the youngest child to spend time with the mother would not be in her best interests – Orders made for each child to spend time with and communicate with the mother in accordance with their wishes – Orders made for the father to hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties

FAMILY LAW – property – whether the parties were in a de facto relationship – the Applicant alleges that the parties were in a de facto relationship from late 2013 to February 2017 – the Respondent alleges that the parties were in a relationship from late 2013 to mid-2014 and friends from mid-2014 to February 2017 – where the parties have joint property

FAMILY LAW – PROPERTY – Just and equitable – orders made.

FAMILY LAW – Parental responsibility –spend time arrangements – family violence allegations – intervention order – COVID-19 restriction breaches – child’s medical needs

FAMILY LAW – Parenting – application to vary final orders – where mother seeks to move to a not-too-distant suburb for work and to be closer to family – where mother says current orders significantly hamper career and earning capacity – where father opposes change to final orders – application to vary final orders successful – orders made to accommodate mother’s new residence – recusal application reserved – costs reserved – all extant applications are otherwise dismissed.

FAMILY LAW – COSTS APPLICATION – granted – Respondent to pay costs of the applicant on a party and party basis in a fixed sum

FAMILY LAW – Property – Application to reopen matter after conclusion of final hearing – Application to adduce further evidence – Where judgment remains reserved – Where respondent claimed no interest in estate of recently deceased parent at final hearing – Where applicant claims respondent stands to inherit significant sum from deceased parent’s estate – Submission that matter can be dealt with via written submissions – Where serious allegations of misleading the court in final hearing warrant further hearing – Matter listed for further half-day of final hearing.

FAMILY LAW – CHILDREN – Consideration of s 65DAAA of the Family Law Act 1975 (Cth) – Where final parenting orders were made in May and December 2022 – Where the Applicant father seeks to reopen the proceedings – Where the Respondent mother seeks to dismiss the father’s application – Where the parental conflict has impacted the children’s access to therapeutic and medical assistance – Where the parents have demonstrated no joint decision-making capacity in respect of the children as required by the final parenting orders – Where the Court is satisfied that there has been a significant change in circumstances since the final parenting orders were made – Where the Court is satisfied that it is in the best interests of the children to reconsider the final parenting orders

FAMILY LAW – PARENTING – Relocation – Where the applicant mother seeks an order which permits her to relocate the child from Region B in New South Wales to Region C in Queensland – Where the respondent father opposes relocation of the child on the basis that it will adversely impact the child’s relationships with the father and extended paternal and extended maternal family members in New South Wales – Where the father seeks an order that the child live with each parent in an equal time arrangement – Where the mother intends to relocate to Queensland with or without the child to live with her husband– Where the mother’s wellbeing is most likely to be enhanced by the financial and practical support she will gain by living with her husband in Region C – Where the child has a meaningful relationship with both parents – Where the child has an important relationship with his maternal half-sibling – Where the child’s relationship with the mother might be diminished from feelings of rejection if the mother relocates without him and his healthy development may be impacted – Where the mother’s parenting capacity will be enriched by moving to Region C and the child will benefit – Where the child will continue to have the benefit of a meaningful relationship with the father if the mother is permitted to relocate the child – Relocation permitted – Spend time with arrangements – Discrete issues

FAMILY LAW – PROPERTY – interlocutory – application for leave to commence proceedings for property adjustment out of time – consideration of respondent’s jurisdictional objection – consideration of prima facie case for relief – whether the applicant has demonstrated sufficient likelihood of success – where claim is not trifling – consideration of hardship – exercise of discretion – consideration of delay – consideration of prejudice to the respondent – leave granted

FAMILY LAW – PARENTING - application for an injunction under s 68B restraining the removal of the child from the Commonwealth of Australia - concern expressed for the welfare of the child - child has dual passports for both Country B and Australia – Country B is a Hague Convention Country – Court not satisfied that there is a real risk -Court declines to grant an injunction.

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious Proceedings Order – Where the Applicant sought an order pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) prohibiting the Respondent from instituting further proceedings without leave – Where the proceedings have a long history – Application granted

FAMILY LAW – PARENTING – children (aged 12 and 16) do not wish to spend time with father – acknowledged family violence by father – mother facilitated children spending time with him on an intermittent basis and not at all for extended periods – mother made major long-term decisions without consulting with father, including moving to a suburb some distance away and changing the children’s schools – children have now spent extended professionally supervised time and then unsupervised time with the father – mother does not contend children would be unsafe in father’s care – father found to have capacity to meet children’s needs, including emotional needs – mother found to lack capacity to support children’s relationship with the father, where she sees no benefit to them spending time with him – children’s expressed views incongruent with their interactions with father – finding children will benefit from relationship with father and paternal family – orders for parties to have joint decision-making responsibility – children to spend regular unsupervised time with father, arranged by agreement in consultation with the children and in default of agreement at fixed times – ancillary orders made as agreed or as determined in the children’s best interests

FAMILY LAW – Parenting – Final hearing to determine discrete issue of where one child is to attend for the remainder of primary school – Where father seeks additional changes to final orders – Where father is unrepresented – Orders sought in father’s filed response to mother’s application treated as section 65DAAA application – Section 65DAAA issue adjourned for hearing at a later date to allow for procedural fairness to mother – Final orders as to child’s schooling – Circumstances where significant commute for mother to take child to current school – impacts on mother’s mental health – Where mother’s housing situation is precarious – Where mother has care of parties’ children as well as an infant from another relationship – father better able to cope with child not allegedly attending school of his choice – real risk for child either way – Change of school ordered

FAMILY LAW – CONTEMPT – Where the Applicant alleges 13 grounds of contempt by the Respondent – Where no prima facie case is found in relation to any of the grounds – Where the parties are invited to provide written submissions as to the Respondent’s application that the Applicant be prohibited from instituting further proceedings without leave pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) – Where both children are adults at the date of hearing

FAMILY LAW – CONTRAVENTION – PARENTING – Final orders made by consent in March 2021 – Three children aged 15, 13 and 11 years – Where the father originally alleged numerous counts of contravention of the final consent orders by the mother – By the final date of trial, 17 alleged counts of contravention remaining – Where all remaining contraventions were admitted by the mother but with reasonable excuse – Where the mother was legally represented for the first tranche of Trial and was self-represented on the final day of Trial – Two further counts dismissed – 15 counts established without reasonable excuse – Legal fees incurred grossly disproportionate to the issues in dispute – No sanctions imposed – Orders altered.

FAMILY LAW – LEGAL PRACTITIONERS – Where the wife seeks orders restraining the husband’s solicitors from continuing to act for him – Where there was inadvertent disclosure to the husband’s solicitors of confidential and privileged communication between the wife and her solicitors – Where the husband’s solicitors failed to provide disclosure to the wife’s solicitors of the inadvertent disclosure – Where the husband’s solicitors failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

FAMILY LAW – CHILDREN – Interim proceedings – Where the mother ceased the father’s time with the children – Whether the father poses an unacceptable risk to the children – What time the children should spend with the father – Allegations of family violence – Impact on the children of parental conflict

FAMILY LAW – CHILDREN – Whether the children should spend time with the father – Allegations of family violence, including coercive and controlling family violence – Exposure of the children to family violence – Drug use – Where the father made concessions as to falsifying negative drug test results – Where the father made concessions as to falsifying evidence in criminal proceedings – Where the father made concessions as to falsifying medical records – Where the father made concessions as to falsifying financial records – Alcohol use – Where findings are made that the father poses an unacceptable risk of harm to the children and the mother as a result of family violence – Where findings are made that the father’s drug use poses an unacceptable risk of harm to the children – Where findings are made that an order for no time is not in the children’s best interests – Where orders are made for ongoing supervised time between the father and the children, with such time to be supervised by a professional supervised contact service

FAMILY LAW – COSTS – Where the matter was listed for interim hearing in September 2023 in relation to the mother’s Application for the father’s solicitors at that time to be restrained from acting for the father – Where the mother’s Application for restraint was based on inadvertent disclosure to the father’s solicitors of confidential and privileged communication between the mother and her solicitors – Where findings were made that the father’s solicitors failed to provide disclosure to the mother’s solicitors of the inadvertent disclosure, and failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – Where the mother seeks orders as to her costs in seeking that the father’s former solicitors be restrained from acting – No order as to costs made against the father’s former solicitors – Order made for the father to pay the costs of the mother on an indemnity basis in relation to the mother’s Application for restraint – Costs to be paid as agreed or assessed

FAMILY LAW – PRACTICE AND PROCEDURE – Whether the Court should refer the papers to the New South Wales Director of Public Prosecutions – Where findings were made at final hearing that the father fraudulently amended hospital records for use in criminal proceedings in the Local Court – Where both parties seek the referral not be made – Referral made

FAMILY LAW – PROCEDURE – leave granted to the applicant to use the Family Report filed in these parenting proceedings for criminal proceedings

FAMILY LAW – PROPERTY – Just and equitable orders made.

FAMILY LAW – PARENTING – Final hearing – Three children aged almost 15, 12 and 10 years –  Where the applicant is the maternal grandmother and the first respondent is the mother – Where the second respondent father has not engaged in the proceedings to date – Where the applicant maternal grandmother seeks time spending with the children – Applicant maternal grandmother alleges the children are at risk in the first respondent mother’s care – Where the first respondent mother opposes the application – Views of the children – Consideration of best interests – Where the Court considers that time spending with the applicant maternal grandmother is not in the best interests of the children – Orders for cards and gifts.

FAMILY LAW – Interim parenting arrangement - recommendation in family report for the child to spend overnight time with the father -  child has not progressed to spending overnight time with the father - ongoing mental health engagement by the father – promote the safety of the child  - co-sleeping is not in the best interests of the developmental, psychological and emotional needs of the child - best interest of the child to advance to overnight time with the father

FAMILY LAW – Final Parenting Orders made by consent – Father re-commenced proceedings less than two years later – s 65DAAA hearing – Father withdrew his application upon concluding his cross-examination – Mother seeks costs – whether to order indemnity costs – special costs order made – Mother seeks prohibition order pursuant to s 106QAC – Harmful proceedings order granted

FAMILY LAW – PARENTING – where the Father withdrew his parenting application after the Mother obtained an anti-suit injunction in Country B – where the Mother prosecuted her parenting application – where no objection to the Court exercising jurisdiction was taken – where orders sought by the Mother were supported by the Independent Children’s Lawyer – where the Mother made a harmful proceedings order application

 FAMILY LAW – PARENTING – Ex Parte – injunction restraining removal of the children from the Commonwealth of Australia – Airport Watchlist

FAMILY LAW – Parenting – trial vacated – parties unrepresented – whether section 102NA(2) order should be made – section 102NA(c)(iv) invoked – section 102NA(2) orders made – related parties restrained from personally cross examining each other – further trial directions made – airport watchlist order remain in place.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the Court has ordered that the parties each attend the final hearing in person – Application for father to give evidence remotely – Where the father lives in Country B – Consideration of r 15.16 and r 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the father failed to file his application for leave to appear electronically within 28 days of the final hearing – Where the Court required the father to make appropriate inquiries to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication and there is no evidence of the father having done so – Application in a Proceeding for the father to remotely give evidence dismissed.

FAMILY LAW – Third application in aid of enforcement of final property orders – where orders require sale of property – where first respondent retains original paper Certificate of Title and has failed to produce it – where sale cannot proceed without the Certificate of Title – where applicant seeks cancellation of current Certificate of Title and creation of new electronic Certificate of Title – no engagement by the first respondent – orders and declarations of interest made – order for payment by first respondent of indemnity costs

FAMILY LAW – Parenting – Application by Paternal Aunt – Undefended hearing – Father has passed away and the biological mother is unknown – Respondent Surrogate does not wish to participate

FAMILY LAW – Parenting – Where one party seeks leave on first day of trial to rely on a therapist’s report – Where therapist’s report had not been filed on affidavit – Where parties had not previously identified dispute over admissibility of report – Where one party claims report is confidential – Where the affidavit and report be deemed admissible

FAMILY LAW – PROPERTY – where the husband is in default of his obligations to file material and make full and frank disclosure – where the husband failed to appear at the final hearing – where final Orders made as sought by the wife

FAMILY LAW – PROPERTY – Financial Agreement – where the wife seeks a declaration that a s90C Financial Agreement is not binding – Where the husband opposes such relief –Where it is found that the wife did not receive the advice prescribed by s90G(1)(b) of the Family Law Act 1975 (Cth) ––Where the husband has not established that it would be unjust and inequitable if the Financial Agreement were not binding - Declaration made that the Financial Agreement is not binding - Where submissions are sought as to why the husband’s conceded conduct in forging the signature of both the wife and a retired barrister on a prior Application for Divorce of the parties should not be referred to the Department of Public Prosecutions for investigation and possible prosecution. 

FAMILY LAW – PARENTING – agreed by consent except for restraint concerning third party- restraint imposed- no order as to costs of ICL.