Judgments

FAMILY LAW – PRACTICE AND PROCEDURE – Injunctive orders – Where the de facto wife seeks injunctive orders to receive notice prior specified dealings with a unit trust and a discretionary trust of which she contends the de facto husband directs the conduct of – Where the appointor and the trustees of those trusts, being the second, fourth, and fifth respondents, oppose the injunctive orders as sought – Where those respondents contend the evidence does not establish that the de facto wife has an arguable case to justify preservation of the status quo and that, in absence of a risk of dealing with assets to frustrate a judgment, an injunction cannot be grounded by application of the “chicken soup” principle – Where the balance of convenience favours the injunctive orders broadly as sought by the wife amended to a defined scope – Notification orders made.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the de facto wife seeks to join the de facto husband’s mother and other corporate and trust entities in which she contends the husband controls as additional respondents to the proceeding – Where the proposed additional respondents oppose the joinder – Where the de facto wife abandoned or withdrew her contentions of sham – Where she instead contends control – Consideration of whether to refuse an application for joinder if there is no merit – Where the de facto wife’s claim could not be said to be unsuccessful – Where r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) mandates the joinder of the additional respondents as necessary parties to the proceeding – Order for the joinder of the proposed additional respondents.

FAMILY LAW – FINAL PARENTING ORDERS – Allegations of family violence – Mother’s allegations accepted in part – Where the children live with the mother – Where the children have not spent any time with the father for in excess of four years – Consideration of the impact on the mother in the event of any order for time between the children and their father - Children to live with the mother – No orders for time between the children and their father.

APPLICATION FOR DISQUALIFICATON – Apprehended bias – Where an application for disqualification is made during contested final parenting proceedings – Whether comments from the bench and/or the conduct of the judicial officer with respect to the use of an interpreter for the father might cause a fair-minded lay observer to conclude that the Court will decide the competing parenting applications other than on its legal and factual merit – All grounds fail – application dismissed.

FAMILY LAW – LEGAL PRACTITIONERS – Conduct of solicitor – Where the legal practitioner has failed to comply with orders for the filing of documents – Where the legal practitioner has failed to attend three Court hearings – Where the legal practitioner has breached the South Australian Legal Practitioners Conduct Rules – Referral to the Legal Profession Conduct Commissioner.

FAMILY LAW – PROPERTY - Short marriage – Application by the wife for an adjustment of property interests - Where the marriage lasted two months - Where no compelling reasons exist to make a property adjustment as per s79(4) of the Family Law Act 1975 (Cth) - Application refused.

PROPERTY – Disputed asset pool – Where applicant wife claims that the husband is the beneficial owner of millions of dollars’ worth of tangible and intangible property in Australia and overseas - Where wife asserts that the husband has not made a full and frank disclosure - Where the court is not satisfied of beneficial ownership - Where even if the Husband did own some or all of the assets, no adjustment would be warranted.

PRACTICE AND PROCEDURE - Where applicant wife seeks a spouse maintenance claim despite leave being refused under s44(3) and appeal against refusal being dismissed. Application is dismissed.

CONSTITUTIONAL LAW - Practice and Procedure- Where applicant wife asserts that her case requires intervention by the Attorney General - Where applicant therefore seeks adjournment of hearing - Where no evidence or specific claims are made to advance this proposition - Where adjournment application is opposed by all other parties -Adjournment application is refused.

FAMILY LAW – PARENTING – Ex Tempore Reasons – undefended hearing - best interests – decision-making authority – live with – passport – where the father withheld consent to passport applications for the children – where there were allegations of family violence against the father – where the father disengaged from proceedings – where the matter proceeded in the absence of the father – sole decision-making authority to the mother – the children to live with the mother and spend time with the father as agreed between the parents – passports to be issued for the children without the consent of the father.

FAMILY LAW – PROPERTY – Interim application for sale of a property – where prior sale orders made by consent – where sale has not yet been executed due to a dispute about what the ‘best arm’s length price’ obtainable means –– orders for the property to be sold at auction.

FAMILY LAW – PROPERTY – MAJOR COMPLEX FINANCIAL PROCEEDING – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the husband’s parents both personally and by way of corporations they control have made significant advances of funds to the husband prior to, during the course of, and subsequent to, the parties marriage – Where the husband contends an advance in 2001 and a series of advances from 2015 to 2020 were by way of loan agreements, being liabilities in the balance sheet identifying the property of the parties – Where the wife contends that the evidence does not establish loan agreements in the terms contended by the husband, or in the alternative that recovery of the 2001 advance is statute-barred, or in the further alternative that it is not likely that either advance will be called upon to be repaid (Biltoft and Biltoft (1995) FLC 92-614) – Where the husband’s initial financial contributions and the financial support provided by his parents during the marriage attracts significant weight when consideration is given to the use made of those contributions (Pierce v Pierce (1999) FLC 92-844) – Where both the parties worked hard in their respective spheres throughout the marriage relationship – Where the wife makes a Kennon v Kennon (1997) FLC 92-757 contention that her contributions were made more onerous and arduous – Orders made adjusting the property of the parties 45.5 per cent to the wife and 54.5 per cent to the husband.

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the mother seeks an adjournment one month before final hearing– Where the father and Independent Children’s Lawyer oppose adjournment – Where adjournment is not warranted – Consideration of AON Risk Services v ANU – Consideration of s 69ZN of the Family Law Act – Where adjournment application dismissed – Orders made extending time for mother to file material.

FAMILY LAW – CASE MANAGEMENT– Interim Property – Where wife seeks injunctions to operate on savings accounts of the husband – Where husband opposes this on the basis that he needs these savings to pay tax and other financial obligations – Injunction granted for a portion of the funds in Australian bank account – Held that husband is free to use the remainder of his savings to pay creditors on condition that he provide evidence of this to the wife.

FAMILY LAW – PRACTICE AND PROCEDURE – Amendment to final Order - Where the parties provided a jointly signed minute of order on 12 August 2024 seeking an amendment to the final Order made 29 May 2024 pursuant to s 79A(1A) of the Family Law Act 1975 (Cth) – Where this Court was functus officio upon the making of the final Order – Where an Application for Consent Order was filed by the parties on 22 August 2024 and given a new file number – Where the Application was transferred to this Court on 26 August 2024 and an Order made in chambers in terms of the minute Where family law or child support proceedings cannot be instituted in this Court and the result of such jurisdictional problems creates uncertainty and unnecessary costs for litigants.

FAMILY LAW – CONTRAVENTION APPLICATION – Breach of procedural order– Where the application for contravention was not dealt with at the principal proceedings – Where the application was brought in terrorem – Where the application was found to be trivial and lacking significance – Where the application for contravention is dismissed.

FAMILY LAW – PARENTING – Gender Dysphoria –Where consent orders are made – Where the Court distinguishes this case from the facts of that in Re Kelvin – – Where all parties seek a declaration of Gillick competence for the subject child – Where the subject child wishes to undergo “stage two” gender affirming treatment – Where the Court declares that the child is Gillick competent – Where an auxiliary name change order is sought to affirm the new gender identity of the child – Where the Court considers that the proposed name change will benefit the welfare of the child – Where the Court discusses the benefit of including subject children of advanced age in gender affirming proceedings.

FAMILY LAW – CHILDREN – Whether the mother should have sole parental responsibility – Spend time with arrangements – Where the mother alleges that the father sexually abused his niece – Where the mother alleges family violence by the father – Orders made for sole parental responsibility – Orders for the father to spend time with the child two occasions per week supervised or in a public place.

FAMILY LAW – EX TEMPORE – COSTS – Where the wife seeks costs of interlocutory applications by the husband for appointment of a litigation guardian and injunctions – Where the proceedings were before the Court three times and the parties entered into consent orders – Where the wife seeks costs as agreed or assessed on a party/party basis – Where the husband’s application for a litigation guardian was inappropriate and should not have been brought on the basis of the available evidence – Where the husband’s conduct in bringing the application for a litigation guardian justifies an award of costs in the wife’s favour – Where both parties made offers in writing to resolve claims for injunctive relief – Where the ultimate consent position reached by the parties was closer to what was proffered by the wife than the husband – Where the conduct of the husband in relation to the injunctive orders sought does not justify an order of costs in the wife’s favour – Order for the husband to pay the wife’s costs of his interlocutory application as agreed or assessed as to 30 per cent only of those costs.

FAMILY LAW – PROPERTY

FAMILY LAW – CHILDREN – Whether either parent poses an unacceptable risk of harm to the child – Whether either parent has capacity to promote the child’s relationship with the other parent – Where it is found that the mother made false claims that the father coerced her into having sex and/or raped her – Where the mother’s claim that the father sexually abused the child is groundless – Whether the child can have a relationship with both parents if she remains in the primary care of the mother – Where it is found that it is in the child’s best interests to live with the father – Where the mother will be restrained from spending any time or communicating with the child for a period of six weeks – Where following the moratorium, the mother’s time with the child will be professionally supervised until 2027.

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 – Final Parenting – where multiple risk factors including family violence, substance abuse, father’s criminality and impulsivity, where both parties have mental health diagnoses – where father continues to use medicinal marijuana - where mother alleges child exposed to family violence and was shaken as a baby – where mother a vulnerable person - where restraints made as to the conduct of both parties – where section 64D(2) order made - order for identification contact only. 

FAMILY LAW – interlocutory property – dispute regarding valuation – alleged nondisclosure – delay in preparation of expert report – costs sought – where neither parties’ proposal in the interests of justice – proceeding not ready for trial – concerns raised regarding both parties’ conduct throughout course of proceeding– no finding as to costs.

FAMILY LAW – PARENTING – Where the mother alleges and the father denies historical family violence – Conflict did not rise to the level of family violence – Father not a risk of harm – Children to spend gradually increased time with the father.

FAMILY LAW – FINANCIAL – Interim Hearing – Where the wife seeks an order for periodic spousal maintenance – Where the wife considers her health conditions hinder her ability to support herself adequately – Where the husband contends that the wife is overstating her health conditions – Consideration of s 75(2) factors in justifying an order for periodic spousal maintenance –Where the wife seeks a “dollar for dollar” order in respect of her legal costs – Where the husband opposes the wife's application for litigation funding – Consideration of factors set out in s 114UB(3) – Orders for the husband to pay to the wife periodic spousal maintenance – Costs orders made for “dollar for dollar” litigation funding in favour of the wife – Interim applications dismissed. 

FAMILY LAW – PROPERTY – where the husband borrowed money from his parents to purchase a property – where the husband was unable to discharge the onus of establishing the quantum of the debt – where the wife should not be liable for the debt where it is vague, uncertain or unlikely to be enforced – where the wife was primarily responsible for the care of the child – where the wife will retain the former matrimonial home.

FAMILY LAW – PROPERTY – financial and non-financial contributions – just and equitable – global approach – tax debt – beneficiary of a trust – future financial needs.

FAMILY LAW – PARENTING – one child (now aged 12) – high conflict between parents – each allege family violence by the other but neither asserts it is unsafe for child to spend time with the other – mother relocated with child from Queensland to Victoria in February 2023, without father’s knowledge – each parent seeks child live with them (mother in Victoria, father in Queensland) and spend time with the other parent – evaluation of proposals – order for joint decision-making as agreed – order for child to live with mother and to spend time with father found to be in child’s best interests, notwithstanding mother’s past failure to support child’s relationship with father – order for parents to accompany child when travelling interstate if child refuses to travel unaccompanied, to support time with father – consideration of other orders sought by parties, some ultimately agreed and some in dispute.

FAMILY LAW – SURROGACY – Where the child is born through commercial surrogacy – Where the parents entered into the surrogacy agreement overseas – Where the child was artificially conceived – Where the father provided the genetic material for the child to be conceived – Where the child is an Australian citizen – PARENTING – Where there is a high conflict co-parenting relationship – Where there are some safety risks for the child in the father’s household – Where it is not in the child’s best interest to live in an equal time arrangement with each parent – Where the mother’s mental health is stable – Where the mother displays greater insight into the child’s needs – Where the father has provided misleading information about his mental health – Where the father has failed in his duty of disclosure – Where it is in the best interest of the child to live in the primary care of the mother – Where the child benefits from his relationship with the father – Where it is in the bests interests of the child to spend regular time with the father, including overnight time– DECISION MAKING – RESTRAINTS – PASSPORTS AND OVERSEAS TRAVEL.

FAMILY LAW – PROPERTY – breach of disclosure obligation by husband – value of UK company – more arduous contributions by wife due to family violence – one child with special needs.  

FAMILY LAW – PARENTING – partial consent orders – major long-term decision making – an unacceptable risk of developmental, psychological, and emotional harm – limited capacity to engage in child focucsed communications – all earlier interim parenting orders vacated – mother granted sole parental responsibility – spend time with father.   

FAMILY LAW – CHILDREN – one child, aged 12 – child with high needs – high parental conflict – breakdown of the father’s parental relationship with the child exacerbated by both parents – consideration of the child’s firm views and her ongoing need for high level support – time with the father as per her wishes – best interests outcome. 

FAMILY LAW – PARENTING – Final orders – Where the mother makes allegations of family violence perpetrated by the father against her herself historically and the child currently - Absence of stand out or obvious incidents of violence or abuse and key aspects of mother’s evidence unreliable – Nevertheless, father has behaved in at least odd, or at worst frightening, behaviour which has had a cumulative effect on both the mother and child - Father lacks insight into the effect of his behaviour on the mother and child - Where father diagnosed with rare mental health condition – Where the only available finding on the evidence is that supervision is the only arrangement that would support the safety of the child in the care of the father at this time.

CHILD SUPPORT – Application for leave to commence proceedings against the Child Support Registrar – leave refused.

FAMILY LAW – parenting only – family violence – where the father denies all accusations of family violence - where the father has not spent time with the children since December 2021 - where the children are fearful of the father – where the father shows no insight into the feelings of the children – mother seeks sole decision making and no time between the children and the father.

FAMILY LAW – parenting – Evatt matter – two day final contested hearing listed before me – where the Mother and Father were represented by solicitors and counsel – where the Father did not attend court – where no contact could be made to the Father – where counsel for the Father was unable to obtain instructions – where the matter proceeded undefended – where there is significant allegations of family violence – where there is significant drug abuse – where the orders made were in line with the orders sought by the Independent Children’s Lawyer and the Mother – child live with Mother – child spend no time or communicate with the Father.   

FAMILY LAW – PARENTING – husband and wife self-represented – section 102NA order prohibited cross-examination by either – husband relocated to Country B – family violence including choking means increased risk of lethality – sole parental responsibility to the wife – children live with the wife – children to have no contact or communication with the husband save that husband permitted to send cards and gifts to children – wife permitted to travel with children out of Australia – removal of watchlist order. 

FAMILY LAW – PROPERTY – matrimonial home is only significant asset in Australia – majority of equity in mortgage transferred to Country B by husband along with his superannuation – wife to receive 100 per cent of the pool due to her post-separation contributions, for her future needs and because of the transfer of the mortgage funds under section 75(2)(o) of the Act.

FAMILY LAW – parenting – notice of objection – set aside.  

FAMILY LAW – PARENTING – partial consent orders - two remaining narrow issues of overseas travel and passport – mother pressed application relating to a security bond for the father in respect of overseas travel and adult supervision for the child whilst overseas with the father - no reasonably arguable case to sustain the proposition that there should be a bond or a prescriptive order for adult supervision -  application dismissed.

FAMILY LAW – PARENTING - application filed by the father sought a change of primacy and for supervised time with the mother - application for a change of primacy, and for supervised time stood over.   

FAMILY LAW – Costs – whether an application for costs is made following consent orders – whether the conduct of the Applicant necessitates a costs order being made – whether indemnity or fixed costs ought to be awarded – costs order made.

FAMILY LAW - partial consent parenting orders – three remaining issues in dispute – parental responsibility – commencement and duration of father’s time – Christmas – mother’s proposed orders are in the best interest of the child.   

FAMILY LAW – Parenting – Mention following afterhours ex parte orders placing child on the watch list – Where parties seek final orders by consent at mention – Where court satisfied that final orders are in the best interests of the child – Final orders made by consent – watchlist order – authenticated consent.  

FAMILY LAW – PARENTING – where a conflictual relationship does not prohibit equal time arrangements – where it is in the child’s best interests to spend equal time with each parent.

FAMILY LAW – PROPERTY – where legal liabilities are excluded from the pool – where an adjustment to non-superannuation assets would be fanciful – where a 10% adjustment of superannuation is made in favour of the wife.

FAMILY LAW – SPOUSAL MAINTENANCE - where the husband concedes the wife has need for maintenance – where the husband’s liabilities cannot be ignored - where the wife could not satisfy the Court the husband has the capacity to pay maintenance. 

FAMILY LAW – PARENTING – one child (aged 10) – final parenting orders made by consent on fourth day of final hearing in respect of most issues – child’s schooling for final year of primary school and secondary school in dispute – order for child to remain at his current primary school unless otherwise agreed – insufficient evidence to determine child’s secondary schooling.

FAMILY LAW – PROPERTY – alleged loans by second and third respondent to spouse parties, exceeding value of spouse parties’ non-superannuation assets – finding monies were advanced by way of loan and are repayable by spouse parties – order for repayment of funds to second and third respondent from sale of spouse parties’ real estate – spouse parties liable in respect of remaining debt as reflected in loan agreements – remaining assets and superannuation of modest value – order for spouse parties to retain those remaining assets in their possession and an adjusting payment by husband for wife to receive 55% of remaining assets and superannuation and husband 45% - directions for filing of submissions in relation to costs. 

FAMILY LAW – PROPERTY – husband and wife separated in 2000 – purchased a real property in joint names in 2001 – parties divorced in 2004 – there was never a formal property settlement – wife lived in and maintained the real property for 24 years – third parties seek sale of real property to satisfy a criminal compensation order against husband for sexual offending after separation – husband in prison and filed a submitting notice – competing applications pursuant to section 78 of the Family Law Act 1975 (Cth) (“the Act”) and/or section 79 of the Act – principles of constructive trusts and proprietary estoppel – found that husband is estopped from now arguing he has a beneficial interest in the real property – held that the husband holds his interest in the real property on trust for the wife – orders made under section 78(2) to give effect to the change of title – in the alternative an assessment was made as to what orders (if any) would be just and equitable under section 79 of the Act – determined the wife should receive 100 per cent of the pool. 

FAMILY LAW – Property enforcement – payment of interest – where final property adjustment orders made by the Court requiring that the respondent pay a sum of money to the applicant within 60 days and interest for late payment – where the applicant seeks interest for late payment of the judgment debt – finding that the respondent paid the judgment debt to the applicant 59 days late – finding that in the circumstances the respondent owes the applicant interest for late payment of the judgment debt – orders that the respondent pay the applicant interest on the judgment debt at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

FAMILY LAW – Property enforcement – division of recovered funds – where final property adjustment orders made provision for division of monies recovered from a third party after the deduction of “reasonable legal expenses” – where the parties agree that the respondent recovered the monies in full and paid a sum to the applicant – where the applicant disputes the respondent’s claimed deductions and seeks a further payment – findings in respect of which of the respondent’s claimed deductions constitute “reasonable legal expenses” – orders that the respondent make a further payment to the applicant.

FAMILY LAW – parenting – partial consent parenting orders – restraint of physical discipline pursuant to s 68B – orders restraining application of gun licence – overseas travel allowed – child's name removed from airport watch list – identity contact.  

FAMILY LAW – REVIEW – Procedural – Applicant seeks to review a decision of a deputy registrar who rejected the filing of the Applicant’s initiating application due to the non-filing of a certificate from a Family Dispute Resolution practitioner pursuant to section 60I(7) of the Family Law Act 1975 (Cth).

FAMILY LAW – property proceedings – undefended hearing – where the applicant sought to dissolve a partnership between her and the respondent and indemnity in circumstances where the respondent continued to operate businesses owned by the partnership – where the respondent has since separation used partnership funds to purchase other businesses and assets – where the applicant seeks payment of a lump sum to her by the respondent as a final property adjustment – orders for the unilateral dissolution of the partnership under state law and payment of a fixed sum to the applicant by the respondent.

FAMILY LAW – COSTS – where the applicant seeks that the respondent pay her costs of the property proceedings – findings that the respondent’s non-engagement with the proceedings has necessitated the applicant incurring legal expenses – orders that the respondent pay the applicant’s legal costs as assessed in accordance with the rules of court.

FAMILY LAW – Parenting – Applicant a former stepfather seeking shared decision-making and equal time with child – First Respondent mother opposing any time –– finding of coercion and control – unacceptable risk – orders made for sole decision-making to the First Respondent mother and limited time with the Applicant.