Judgments

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 – 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 – 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 - CHILDREN – Previous orders made – Third application – Child 11 years at trial – Child withheld then compliance with order – Parents not lived together since child’s birth – Co-parenting relationship – Support for other parent’s relationship – Lack of support in the past – Lack of support affecting school attendance – Risk of repetition – Sibling relationships – Risk of future disruption of parental relationship

FAMILY LAW – PARENTING – Best interests of children.

FAMILY LAW – Child Support – Child Support Registrar unable to retrospectively consider assessment past 18 months ago – whether leave should be given to the Registrar to consider further than 18 months- balance of prejudice – explanation for delay – prima facie case – leave granted

FAMILY LAW - Costs.

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.

FAMILY LAW – Costs – enforcement application – where some but not all orders made – costs power engaged – whether circumstances justify indemnity costs – whether conduct occurring after the enforcement application relevant to costs assessment – where costs are compensatory and not punitive – fixed costs order made

FAMILY LAW – PARENTING – Where maternal grandparents have cared for the children for over 2 years – Where mother has history of alcohol abuse – Where mother recently lived transient lifestyle – Where mother has no clear plans for the care of the children – Where children at risk whilst in mother’s care

FAMILY LAW – PARENTING – Child has spent no time with father for six years – Lack of insight on the part of the father – Whether there is any benefit to child having a relationship with the father

FAMILY LAW – Interim defended hearing – both parents prohibited from consuming alcohol while children in his or her care – children live with mother – gradual increase of time for the father with the children – consideration for meaningful relationship for the children with both parents – further hair follicle test ordered for next year

FAMILY LAW – Application for review – review of judicial registrar’s orders making parenting orders by consent on a final basis – father seeks orders be set aside and made as interim orders only – whether there was agreement that the orders be final – not satisfied that there was agreement to orders being final ones – orders discharged and orders made in terms of proposed interim orders by consent signed by the father and agreed by mother’s representative

FAMILY LAW – PARENTING – where 16 and 11 year old children have consistently failed to spend overnight time with their father – whether orders should be made increasing that time to week about time contrary to their views – where the father has perpetrated extensive family violence, including assaulting the children

FAMILY LAW – PROPERTY – where both parties seek to retain the former matrimonial home – where neither party sought a superannuation split despite the significant disparity between the value of their respective superannuation interests

FAMILY LAW – PARENTING – Circumstances where mother was overseas for prolonged period and had little contact with child – Significant change of circumstance – History of non-compliance with Court Orders by the mother – History of unilateral decision-making by the mother – Change of residence – Child’s best interests

FAMILY LAW – PARENTING – Undefended hearing as against the applicant father – Repeated failure to comply with Court orders – Circumstances where father has an injury – Views of the child given significant weight due to age and maturity – Circumstances where the father has spent supervised time with the child for prolonged period

FAMILY LAW – final hearing – Aboriginal child in care of non-Aboriginal putative paternal grandparents – risks arising in relation to each of the mother and the putative father – where putative father lives with putative paternal grandparents – where child has experienced significant change in her living arrangements to date-orders for parenting arrangements.

FAMILY LAW – Opposed divorce application – whether there is an extant marriage – recognition of overseas divorce in Australia – where the parties were married in Country B – where the parties migrated to Australia – where the parties have resided in Australia until 2023 – where the respondent returned to Country B in 2023 to visit family and while there retained lawyer for a divorce application – where the respondent filed for divorce in Country B – residence or domicile or last place of cohabitation qualifications of section 104(3) not satisfied – whether common law rules of private international law of recognition of overseas divorce satisfied – whether applicant for Australian divorce “appeared” in overseas divorce proceedings – where the fact of overseas law required to be proved by admissible evidence – matter requiring expert evidence – where there was no admissible evidence – where not in the interests of justice for court to call expert evidence – apparent anomaly of overseas divorce does not activate section 44(3) time period-section 55A declaration where children not seeing one parent –  where none of section 104(3) or common law recognition of overseas divorce conditions satisfied – divorce order made

FAMILY LAW – Parenting – application for stay of final orders pending an appeal – immediate risk to child of physical and psychological harm outweighs long term risks identified at final hearing – stay application granted.

FAMILY LAW – REVIEW – PROCEDURAL – Whether the listing date should be moved forward and the time for the Respondent to file their material be shortened – Whether the decision is reviewable – Whether the matter is urgent such that it would justify the matter being given precedence over other matters before the court – Whether there is evidence of an alternative judicial officer to deal with the matter if it is brought forward.

FAMILY LAW – REVIEW – PROCEDURAL – Father seeking an urgent hearing date and that the listing on 30 October 2024 be brought forward – no alternative available date before a judicial officer detailed – Whether the matter is reviewable and, if so, has sufficient urgency to warrant it taking precedence over other matters before the court.

FAMILY LAW – PARENTING – Short form reasons – Urgent oral interim application for parenting orders – Immediate change of residence – Whether there is an unacceptable risk to the child

FAMILY LAW – Property – Where the parties have property in the United Kingdom and Australia – Where the Respondent wife raised an issue of forum non conveniens – Where part of the property pool is situated in company assets – Where the Applicant husband received substantial post-separation inheritance – Where inheritance is treated as a separate pool – Where the Court makes an equal contributions finding as to the non-inheritance pool – Where s 75(2) adjustment made in favour of the wife

FAMILY LAW – Interim hearing – issue of interstate relocation – where the mother now resides in Town B with the children – where the father resides in Queensland – where the father alleges the mother unilaterally relocated with the children – where the mother alleges the father was aware her intention to move – where the mother moved to Town B for a better job opportunity – where there is a real issue of the mother promoting the relationship of the father to the children – where the mother previously made monetary requests of father to see the children – where the mother changes her position during the hearing – where time with the father is to re-commence – where the children are to live with the mother in Town B until the final hearing – where a family dispute resolution conference is ordered – trial directions made.

FAMILY LAW – COSTS – where the applicant wife was wholly unsuccessful in bringing an application for property division pursuant to s90SM – the wife’s application lacked any merit – wife’s refusal to accept reasonable offers – where indemnity costs were considered – where costs pursuant to the scale are inadequate – special costs payable 

FAMILY LAW – Parenting – where final orders were made in February 2024 – where the father was given sole parental responsibility – where the children were to live with the father – where the orders did not allow for the children to spend time with the mother unless otherwise agreed between the parties – where child protection were notified of risk to the children in the fathers care the same day as the final orders and reasons were handed down to the parties – where the court makes no finding on that notification to the department – where the department appeared amicus curae – where the department intervened – where there are orders made in City B children’s court – where the department did not have access to the reasons of the proceedings in this court – where the department did not give consent for orders in this court be made under section 69ZK – children court proceedings in October – parties are directed to advise chambers of future children court proceedings – fixed for a further hearing on a date to be advised.

FAMILY LAW – Application to review decision of Registrar – effect of notice of discontinuance –where Applicant filed notice of discontinuance – where no response filed – where Registrar ordered matter be set down for ‘undefended hearing’ after notice of discontinuance filed at urging of Independent Children’s Lawyer (‘ICL’) – where Court is no longer seized of the matter – where ICL has no standing to maintain the proceeding – Registrar orders of no effect – application for review upheld and proceeding discontinued.

FAMILY LAW – Property proceedings – long marriage – asset pool in dispute – litigation guardian – 11 years since separation – substantial post-separation contributions – section 75(2) factors – NDIS funding meeting needs – whether proposed division is just and equitable.

FAMILY LAW – Parenting – Urgent application for international recovery order – Where mother has taken child overseas without notice to father – Where mother appears to have no intention to return to the Commonwealth of Australia any time soon – Decision to proceed in absence of mother – Decision to proceed ex parte – Recovery order made – Where recovery order pressed in form of a request, not as a demand or in any way interfering or usurping the courts and authorities of overseas jurisdiction.

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

FAMILY LAW- Final hearing- determination of parenting arrangements- where father not engaged in final hearing- where risk of exposure to drugs and alcohol to the children- where consideration of best interests of the children- consideration of benefit of time with father.

FAMILY LAW – Enforcement application - $80,000 from settlement held in trust – one party, without agreement, undertook work on the former matrimonial home – interpretation of orders – whether unilaterally chosen work with “selling conditions” – whether unilaterally chosen work within “jointly” market – whether oral application pursuant to section 90SN(1)(a) & (c) to set aside orders sought to be enforced should be accepted – oral application accepted – no miscarriage of justice – section 90SN application dismissed – order to give effect to final orders made – costs ordered

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

FAMILY LAW – Interim defended hearing – where the child lives with the mother – where no long term parental decision making orders were made – appointment of an independent children’s lawyer – where the father seeks an increase of time – where the mother raises concerns of the father’s living arrangements – where the mother raises concerns of the father’s mental health – where the mother believes there is a risk of harm to the child in the father’s care – where the court found no proper basis of risk –  where the mother seeks the father to enrol in a men’s behavioural change program – where the father’s time increases to 6 hours each alternate Saturday – where the court placed no restrictions of where the child can attend with the father – where the father has begun attending upon a psychologist prior to the hearing – where the court did not order the father to enrol in a men’s behaviour change program

FAMILY LAW – CHILDREN – Interim parenting orders sought – Department for Child Protection and South Australia Police reports made by the mother – mother has made historical allegations of sexual abuse against father – allegations of father hurting the child physically – ongoing investigations by South Australia Police – Independent Children’s Lawyer appointed - ex tempore reasons delivered – orders made

FAMILY LAW – PROPERTY – De facto relationship – non-compliance with trial directions – complete non-disclosure by respondent – failure to file or challenge evidence.

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

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

FAMILY LAW – PARENTING – supervised time – alternate weekends

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

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

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

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

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

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

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

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

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

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

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