Judgments

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

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

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

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

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

FAMILY LAW – Parenting – whether the child lives with the mother or father – 13 year old child with entrenched negative views of the father largely influenced by the mother – balancing of risks of harm – consideration of 60CC factors prior to amendment of Family Law Act – child to remain living with mother – child to spend time with father in accordance with her wishes

FAMILY LAW – PARENTING – interim schooling application – all schools more than prima facie satisfactory and otherwise capable of meeting the children’s needs – parents intentions for the children’s education – children’s expectations – impact on children of a change of school – best interests of children met by remaining at current school

FAMILY LAW - Leave to review out of time orders made by consent considered - alternate application under s 79A considered

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 – REVIEW – interim parenting – where orders for equal time varied with the Father only permitted to spend supervised time with the children – where the children are expressing views to live or spend substantial time with the Father – whether the Father poses an unacceptable risk to the children as opined by the Single Expert – where the Single Expert applies a risk assessment tool and concludes that the father poses a serious threat to the Mother and the children - whether the children should live with the Father or spend substantial unsupervised time with him - where a cautious and conservative approach to be adopted

FAMILY LAW – PROPERTY – interim – sole use and occupation of former matrimonial home – whether parties prevented from making application by operation of s 114AB(2) of the Family Law Act 1975 (Cth) – de facto spousal maintenance – where capacity to pay maintenance not in issue – whether expenses claimed by de facto wife are reasonable – application by de facto wife for litigation funding reflecting significant disparity in the financial circumstances of the parties – application of costs power for litigation funding orders – whether payment should be characterised prior to trial

FAMILY LAW – FINANCIAL AGREEMENT – whether each of the parties each received independent legal advice as required by subsection 90UJ(1)(b) of the Family Law Act 1975 (Cth) – whether unjust or inequitable if agreement were not binding on the parties pursuant to section 90UJ(1A) of the Family Law Act 1975 (Cth)

FAMILY LAW – CONTRAVENTION – Where the applicant father alleges that the respondent mother has contravened final parenting orders on five occasions between 2 February 2024 and 28 March 2024 by failing to provide the two children to spend time with him for the weekend as required – Where the respondent admits contravening the orders but contends that she has a reasonable excuse for the contraventions – Where the respondent has regularly personally supervised time for the children with the applicant throughout the period of the contravention – Whether the respondent believed on reasonable grounds that not allowing the children to spend time with the applicant unsupervised was necessary to protect the health or safety of the children – Where the court is satisfied that the respondent did believe on reasonable grounds that not allowing the children to spend time with the applicant unsupervised was necessary to protect their health and safety – Where the court is satisfied that the period during which the children and the applicant did not spend time together because of the contravention was not longer than necessary to protect the health and safety of the children – Where all Counts in the application for contravention are dismissed – 

VARIATION OF FINAL ORDERS – Whether the primary orders should be varied pursuant to s70NBA of the Act – Where both parents seek variation – Where it is found to be in the best interests of the children to suspend final orders which require the children to spend time with the applicant unsupervised – Where it is in the best interests of the children to make an order until further order that the time that the children spend with the applicant is supervised by a children’s contact service – Where the parents agree that it is in the children’s best interests to communicate with the applicant using a Messaging app – Where the respondent’s agreement is subject to the proviso that use of the Messaging app will not reveal the children’s location to the applicant – Where there is no evidence before the court about how the Messaging app operates – Order made for the children to communicate with the applicant using the Messaging app subject to the proviso sought by the respondent – Where the respondent is directed to file and serve an Initiating Application and her supporting documents by no later than 4.00 pm on 18 February 2025.

FAMILY LAW – PARENTING – variation of parenting orders – father in prison - potential for adverse emotional and psychological impact from excluding the father from the children’s lives

FAMILY LAW- Parenting – where this hearing was listed originally as a 65DAAA hearing – where the applicant seeking “minor” variation to order – where the initial application regarding 65DAAA alleged a deterioration of the respondents mental health – where the respondent undertook a psychological assessment – where there was found to be no deterioration in the fathers mental health – where the applicant still seeks a “minor” variation in the orders following the psychological assessment – where the applicant wishes to relocate to another city for a job opportunity – where the applicant is seeking leave to amend her initiating application – where leave was granted – where the 65DAAA hearing is adjourned and consolidated with variation of orders hearing.

FAMILY LAW – INTERIM PROPERTY – Sale of property – payment of mortgage – spousal maintenance – applications dismissed.  FAMILY LAW – INTERIM PARENTING – Best interests of children – orders made.

FAMILY LAW – COSTS – Interlocutory application wholly unsuccessful

FAMILY LAW – PARENTING – Interim hearing – Best interests of child.

FAMILY LAW – COSTS – Application to review orders made by a Registrar – where application to review by the husband was not successful – application by the wife for indemnity costs – application for indemnity costs refused but order for costs on the scale made.

FAMILY LAW – Application to review decision of Senior Judicial Registrar (‘SJR’) – application dismissed – application for costs made and dismissed.

FAMILY LAW – PROPERTY – proposed consent orders did not reflect a just and equitable alteration of property interests – s 114 injunction – preservation of the property pool - procedural orders

FAMILY LAW – Property – both parties seeking orders for adjustment of financial interests – de facto husband’s phoenix operation post-separation of previously jointly operated business – disputed identification of assets and liabilities – contest about add backs for parental loans, post-separation inheritance largely dispersed, reduction of business account balance – limited positive findings about add backs – allegations of incomplete or non-disclosure by de facto husband – dispute about adjustments for future needs – adjustments made for future needs and egregious conduct including non-disclosure pursuant to section 90SF(3)(r)

FAMILY LAW – PRACTICE AND PROCEDURE – ex tempore reasons – wife’s application for stay of final property orders – property orders made by consent at the conclusion of a final hearing of seven days – application to appeal out of time – property orders part executed in favour of wife – wife seeks stay only of orders conferring benefit on husband – court not satisfied of bona fides of application or that appeal would be rendered nugatory if stay refused – preliminary assessment of merits of appeal –  application for stay dismissed – costs reserved

FAMILY LAW – PARENTING – child (aged 11) exposed to family violence between parties and subjected to family violence and problematic behaviour by mother – child has lived with father since 2022 and spent professionally supervised time with mother since February 2023 – mother claims her use of family violence and problematic behaviour is a response to family violence by the father and resultant trauma (PTSD) and her neurodivergence is misunderstood – single expert psychologist opinion mother presents with atypical personality traits posing a high risk to child’s emotional wellbeing – consideration of mother’s mental health and parenting capacity – finding mother lacks insight into and has not adequately addressed her problematic behaviour and child would be exposed to unacceptable risk of psychological and physical harm by spending unsupervised time with her – orders made for father to have sole parental responsibility, child to live with father and to spend limited, privately supervised time with the mother – mother’s communication with child to be by letters, cards and gifts only due to history of inappropriate communications

FAMILY LAW – Property – Failure to file amended response – Failure to articulate quantum of litigation funding sought – Oral application for litigation funding dismissed

FAMILY LAW – PARENTING – Final orders – father has a long criminal history of violent offences and breaches of court orders – multiple community corrections orders with treatment component and programs for anger management – multiple breaches of intervention orders – breaches of suspended sentences – father incarcerated for much of children lives – alcohol abuse – drug abuse – father found in 2018 judgment to be unacceptable risk to other children – father not spent time with the two children in this matter for three years – father diagnosed with attention deficit hyperactivity disorder – no substantial evidence of change – no insight into his violence or offending – ongoing risk – risk not ameliorated by supervised time – no time with father – change of surname.

FAMILY LAW – PARENTING – Serious allegations of family violence – Lack of insight by the father – Children have not spent time with father for period of almost four years – Leaving the door open for relationship with the father

FAMILY LAW – PROPERTY – Application for property adjustment – 14 year relationship with the parties living separately under the same roof for a further 4 years post separation - Where the husband’s assertion that an inheritance received by him post separation should be excluded from the property pool available for adjustment between the parties is rejected -  Where the wife's credibility was impacted due to frequent exaggeration in both her written and oral evidence - Where a disproportionate amount of hearing time encompassed issues of homemaker and parenting contributions - Where the wife was the primary income earner and the husband was the primary carer of the children - Where both parties seek a Kennon adjustment – Where a finding made that the husband’s contributions were made discernibly more onerous by the conduct of the wife - Where the wife made greater parenting contributions upon the husband vacating the former matrimonial home in circumstances where she cares for the children twelve nights a fortnight and the husband does not pay child support-  Where the parties’ superannuation entitlements are dealt with in a separate pool of property – Finding of equal contributions to the superannuation property pool and 54% in the husband’s favour to the non-superannuation property pool - no adjustment made to the contribution findings.