Judgments

FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Stay of costs order sought pending appeal – costs to be paid after the determination of the appeal.

FAMILY LAW – PROPERTY – final hearing – oral reasons – very short de-facto relationship – purchased former matrimonial home – conceived one child – main issue distribution of residue of $216,721 from sale of FMH – each party claims 100% - husband’s step-mother intervenor claiming repayment of post separation loans to husband from residue. Husband - significant adverse credit findings non-disclosure – gambling waste – no financial contribution to child - s128 Evidence Act certificate regarding alleged loans. Wife made greater contributions –wife will have sole financial responsibility for 8 year old child – adjustment in favour of wife. Liability to third party contractor who fixed FMH for sale to be paid first from residue. Intervenor unable to establish loan rather than gift – unable to establish nexus to residue. As between parties wife to receive entire residue after payment of contractors debt. All other assets, debts and superannuation to remain with the party.

FAMILY LAW – PARENTING – Family violence by the mother against the father – Emotional abuse by the mother – Unreliable allegations by the mother against the father – Manipulation of the child to further conflict between the parties – Consideration of the risk of mother spending time with the child balanced with the benefit of a meaningful relationship – Order for recognition time with the mother – Injunction heavily restraining mother’s communication with child – Time spent with mother to be determined by taking into account child’s wishes after a certain age.

FAMILY LAW – PARENTING – Where the only remaining issue was how much time, and under what conditions, the child would spend with the father – Where there is a substantiated history of family violence against the child’s siblings and mother – Where the father did not demonstrate any insight or attitudinal change – Where frequent contact would disrupt the family unit – The child is to spend supervised time with the father four times per year.

FAMILY LAW – PARENTING – Where the mother sought leave to remove child from the Commonwealth of Australia for the purpose of attending the funeral of the maternal grandfather – Where the child has not spent substantial time with the father during her life and therefore not being a suitable candidate to care for the child – Where the mother has unilaterally removed the child to the United Kingdom on a prior occasion – Where the High Court of the United Kingdom ordered the child be returned to Australia – Where the mother is prepared to deposit $20,000 into trust as security – Where the child has specific care requirements – Orders made permitting the mother and child to return to the United Kingdom for a short period of time to allow for participation in funeral ceremonies. 

FAMILY LAW – PARENTING – Where the father seeks a stay of final parenting orders pending determination of an appeal – Where those orders require the child to live with the mother and eliminate the father from the child’s life for three months before the graduated restoration of their relationship – Where the father’s appeal would not be rendered nugatory by dismissal of his stay application – Where a stay of the appealed orders would cause disturbance to the child’s residence – Application dismissed – Costs ordered in a fixed sum in favour of the respondent and the Independent Children’s Lawyer.

FAMILY LAW – PARENTING – final orders – where the orders provide for the children to live with the mother and spend time with the father – where eldest child has complex needs – where father’s time with eldest child is in accordance with child’s wishes – where orders are in the best interests of the children.

FAMILY LAW – PROPERTY – final orders by consent – just and equitable division of property.

FAMILY LAW – PARENTING – Family violence by the mother against the father – Emotional abuse by the mother – Unreliable allegations by the mother against the father – Manipulation of the child to further conflict between the parties – Consideration of the risk of mother spending time with the child balanced with the benefit of a meaningful relationship – Order for recognition time with the mother – Injunction heavily restraining mother’s communication with child – Time spent with mother to be determined by taking into account child’s wishes after a certain age.

FAMILY LAW – PARENTING – INTERIM – Final consent orders made in 2021 – Where the mother unilaterally moved the child’s residence without informing the father or obtaining his prior consent – Where the mother asserts the unilateral removal of the child was a protective measure in the best interests of the child – Where the mother has unilaterally relocated with the child in the past – Child to be returned to the father’s care immediately.

FAMILY LAW – STAY APPLICATION – Application to stay an award that the wife vacate a property of the husband, pending the determination of her application to review the award –Where the wife does not seek to retain the property on a final basis – Where the balance of convenience favours not granting a stay – Where the wife’s application for review will not be rendered nugatory if the award is enforced – Application to stay award refused – Order for the wife to vacate the husband’s property.

FAMILY LAW – ARBITRATION – PRACTICE AND PROCEDURE – Consideration of the time limitation on filing an application for review of an award pursuant to s 13J of the Family Law Act 1975 (Cth) – Consideration of the nature and character of a s 13J review – Review of an arbitral award pursuant to s 13J mirrors an appeal from an order of the court, and is to be conducted and determined consistent with ordinary appellate procedures and principles – Application for review to be filed within 28 days of registration of an award.

FAMILY LAW – PARENTING – CHILDREN – Best interests - With whom the child lives with – With whom the child communicates with - Where the father remains residing in Country C – Where the child was born in Australia and continues to live in Australia with the mother – Evidence relating to family violence.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by mother to review a decision of a Senior Judicial Registrar in respect to interim parenting arrangements – where the child lives with the mother – where the mother seeks the father’s time with the child to be increased gradually –where the father wants overnight time fortnightly and significant time during school holidays – Orders that the child spend time with the father on an alternating cycle and for half of all school holidays – hearing de novo.

FAMILY LAW – PARENTING – Child’s wishes – Where the child has experienced significant stress and anxiety in anticipation of and being in the father’s care – Where the father is critical of the mother’s parenting – Where the child has communicated that he does not wish to spend time with the father at this point in time – Where the father sought that the proceedings proceed to trial – Where the father failed to comply with trial directions and engage a lawyer privately or by the s 102NA cross examination scheme – Where the father did not appear at the trial –No finding made as to whether the child is at risk in the father’s care –Final orders made which allow for the child to communicate with the father if he so wishes.

FAMILY LAW – PROPERTY – Where the Applicant has communicated informally with the Court that he has ongoing health complications – Where the Applicant has not engaged in proceedings – Where the Applicant had filed caveats during the course of proceedings over three properties being the subject to an Application previously before the Court – Where the Respondent sought orders in to remove those caveats –Final orders were made in accordance with the Respondent’s Application.

FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Where the father’s interim application for the child to spend time with him was dismissed – Allegations of abuse – Where an expedited trial is due to commence in four months where the evidence can be tested – Court not persuaded it is in the child’s best interests for her to be introduced to the father now – Review Application dismissed.

FAMILY LAW – CHILDREN – Supervised time – Where the parties agree to final Consent Orders save as to the father’s proposed supervisor – Where the role of a supervisor is potentially onerous and to ensure no harm comes to the children – Consideration of whether the father’s proposed supervisor would be suitable and capable – Where the Court is not satisfied that the proposed supervisor fully understands the onerous nature of the obligation that is imposed upon a supervisor – Where the proposed supervisor would allow more latitude to the father than might be considered in the children’s best interests – No Order made.

FAMILY LAW – PARENTING – Best interests decision – Where there is no forensic or other corroborative evidence to support the allegations made by the eldest child of sexual abuse – Mother to have sole parental responsibility of the eldest child –Father to have sole parental responsibility for the second child – Where the parents have equal shared responsibility for the youngest child – Final orders made by consent.

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – JOINDER – Where the wife seeks to join 15 further respondents – s 90AE and s 90AF of the Family Law Act 1975 (Cth) (“Act”) – Discussion of r 3.01 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – Whether third parties’ rights may be directly affected – Whether participation necessary – Whether s 90AE and s 90AF may be invoked after s 79 proceedings completed – Joinder of one further respondent ordered – Joinder of other proposed respondents disallowed because their participation only possibly necessary.

FAMILY LAW – PARENTING PROCEEDINGS - Holding of passports.

FAMILY LAW – INJUNCTIONS – Ex parte application – Where the wife sought orders on an ex parte basis in relation to both parenting and financial matters – Where there are various entities that are parties to the proceedings which the husband has an interest in or is in control of – Where the wife contends that the husband has made threats to take the children from her – Where the wife contends that the husband has made threats to deal with the assets such that her application before the Court would be imperilled – Where the Court is satisfied that it is necessary to make ex parte orders – Ex parte orders made – Orders made for the wife to direct service upon the respondents and for the matter to come back to Court.

FAMILY LAW – FINAL PARENTING – Where the parties have competing applications about with whom the children should live - Parental responsibility – Where each party seeks an order for sole parental responsibility – Parties unable to communicate with each other – Where parties communicating is not in the best interests of the children – Orders designed to avoid contact between the parties – Where the issues narrowed during the course of proceedings – Family violence – Unacceptable risk – Children’s exposure to family violence – Whether the children are at an unacceptable risk of harm in the care of either parent – Where the father has previously been assaulted at changeover – Where the mother and her partner are convicted of assaulting the father – Where interim orders prevent contact between the mother’s partner and the children – Whether the children having contact with the mother’s partner places them at an unacceptable risk of harm – Parenting capacity – Drug use – Where the parties at various times have used illicit drugs – School attendance – Where the children have previously had significant periods of non-attendance.

FAMILY LAW – PARENTING – Where consent orders as between the mother and the Independent Children’s Lawyer were presented to the Court on day one of the final hearing– where the father did not join in consenting to the orders as he sought to withdraw his Application – Final Orders made as sought by the mother and supported by the Independent Children’s Lawyer.

FAMILY LAW – PARENTING – Parental responsibility – Where each parent seeks sole parental responsibility – Where the father has not seen the child since separation – Where the mother has unilaterally relocated the child – Where the mother alleges the father is an unacceptable risk – Where the mother makes sexual abuse allegations – Where the father denies allegations – No finding of sexual abuse – Orders for equal shared parental responsibility, save the father to have sole parental responsibility regarding educational decisions – The mother to relocate child’s residence – Restraint on the mother further relocating the child – Child to attend upon a counsellor – Child to live with the mother and spend supervised time with father – Child’s time with the father to increase – Recovery Order to be issued if the mother does not relocate the child’s residence – The mother to continuing attending upon a psychiatrist.

FAMILY LAW – PRACTICE AND PROCEDURE – joinder – application by the second and third respondent for joinder of an entity and the ex-director of the aforementioned entity – whether it is necessary to join the two respondents to the proceedings – where the two respondents should be joined to the proceedings.

FAMILY LAW – PARENTING PROCEEDINGS - Refusal of application to adjourn trial, Property proceedings - Adjournment of trial.

FAMILY LAW – SPOUSE MAINTENANCE – Where the wife is unable to adequately support herself – Where the husband has a capacity to pay spouse maintenance – Order for the husband to pay the wife spouse maintenance until the wife re-partners or the wife secures employment subsequent to a permanent visa being granted to her.

FAMILY LAW – PROPERTY – Competing applications for property settlement – Substantial assets in Australia and Country B – Whether Country B assets should be included in asset pool for division between the parties – Previous proceedings between the parties in Country B – Dispute about composition of the asset pool – Dispute about valuations of Country B assets – Assessment of contributions and future needs of the parties – Where husband imprisoned – Consideration of lack of financial disclosure by the husband – Held Country B and Australian Assets should be divided 60 per cent to the wife and 40 per cent to the husband.FAMILY LAW – PROPERTY – Competing applications for property settlement – Substantial assets in Australia and Country B – Whether Country B assets should be included in asset pool for division between the parties – Previous proceedings between the parties in Country B – Dispute about composition of the asset pool – Dispute about valuations of Country B assets – Assessment of contributions and future needs of the parties – Where husband imprisoned – Consideration of lack of financial disclosure by the husband – Held Country B and Australian Assets should be divided 60 per cent to the wife and 40 per cent to the husband.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife sought urgent spousal maintenance pursuant to s 77 of the Family Law Act 1975 (Cth) – Where ex parte orders have been and the husband has not yet had an opportunity to respond and file material – Where the Court is satisfied that the wife is in a parlous financial position – Order made for the husband to pay a lump sum amount of $20,000, which the Court is satisfied is reasonable and the husband has capacity to pay.

FAMILY LAW – PROCEDURE – Where the trial judge has stayed final orders pending the completion of an appeal on conditions – Where one of the conditions requires prosecuting the appeal expeditiously - Where the appellant has failed to comply with the order to file his Summary of Argument on the due date –Where a party seeks for the matter to be relisted.

FAMILY LAW – PRACTICE AND PROCEDURE –– Application by the father to review a decision of a Senior Judicial Registrar where orders were made which substantially reduced the time the child spends with the father – Where the child who is under 3 years of age was previously in a shared cared arrangement – Where the Application for Review was filed out of time – Hearing de novo.

FAMILY LAW – CHILDREN – Where final consent orders were previously made according the respondents parental responsibility for the child other than in relation to any decision regarding the child’s treatment for gender dysphoria – Where the child seeks to formally change the child’s first and last name – Where the applicant parents oppose a formal change of the child’s first and last name – Where the Court found that it was in the child’s best interests for the child’s first and last name to be changed.

FAMILY LAW – PROPERTY – Where the Respondent was in a relationship with each of the other parties to the proceedings – Where each of the parties reside in Australia, except for the Respondent husband – Where a statutory trustee of sale was appointed in to sell a number of real properties – Where the husband is no longer engaging in the proceedings – Where the parties who are presently engaged in the proceedings attended a Conciliation Conference with a Senior Judicial Registrar and reached final agreement – - Final property orders made.

FAMILY LAW – COSTS – Application for costs by liquidator – Where the liquidator seeks the payment of liquidator’s remuneration – Application granted.

FAMILY LAW – PROPERTY – Interim – Application for spouse maintenance by the wife – Where the wife has now remarried – Order made for a lump sum payment of $20,000 characterised as partial property settlement – Application by the wife for further litigation funding in the sum of $363,000 – Order made for the payment of litigation funding to the wife in the sum of $60,000.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter was remitted after appeal – Where the remitted hearing is limited in scope – Where the parties provided written submissions regarding the scope of the remitted hearing and trial directions – The remitted hearing is only to consider factors under s 90SF(3) of the Family Law Act 1975 (Cth) – Trial directions made.

FAMILY LAW – PRACTICE & PROCEDURE – Where the husband lives in the USA – Where the wife remains in Australia with the parties’ children – Where the husband seeks appointment of a single expert to advise on the tax consequences of disposing of shares in his employer.

PRACTICE & PROCEDURE – Where the husband seeks leave to appear via electronic means at the final hearing – Where the wife opposes the application – Where the husband’s application is refused.

FAMILY LAW – CONTEMPT – Preliminary application by the Husband – Where the wife seeks to proceed with an Application for Contempt in respect of nineteen charges – Eight of those nineteen charges formed part of previous Contempt proceedings filed by the wife – Where the earlier Contempt proceedings were withdrawn by the wife in March 2021 – Abuse of process – The filing of new Contempt proceedings in respect of eight charges that had previously been withdrawn amounts to an abuse of process – Where the Court ordered those eight charges of Contempt be dismissed – Where the remaining charges of Contempt are yet to be determined.

FAMILY LAW – PRACTICE AND PROCEDURE – Compliance with orders – Where the wife relisted the matter because of the husband’s failure to comply with the orders – Where the husband’s solicitor informed the Court that there was no non-compliance – Where the representation made to Court was incorrect – Orders made extending the time for the husband’s compliance – Where the matter was listed for interim hearing as a consequence of representations made by the husband’s solicitor – Costs order made against the husband on an indemnity basis in a fixed sum.

FAMILY LAW – COSTS – Where the putative second respondent sought a costs order after the wife’s withdrawal of proceedings against him – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Where an offer of settlement had been made – Costs ordered as agreed or assessed.

FAMILY LAW – PROPERTY – Where there is a dispute about whether the husband has a legal and equitable interest in multiple properties in Country K – Where there is an absence of corroboratory evidence – Where the husband has failed to comply with his duty to make full and frank disclosure and it is necessary to adopt a broad brush approach in assessing the parties’ assets and liabilities – Where the contributions made by each party over their 19 year marriage should be considered equal – Where there is to be no adjustment under s 75(2) as there are factors favouring each party which effectively cancel each other out – Where, to achieve equality, an order is made for the wife to pay the husband the sum of $388,245

FAMILY LAW – CHILDREN – With whom a child lives with – Relocation – Where the mother lived in Country B until 2021 – Where the child was born in Country B – Where the mother has employment, housing and family support in Country B – Where the mother cannot work in Australia because of her visa – Where the mother cannot afford rental accommodation – Where the father has not financially assisted the mother – Where there is a significant disadvantage in not affording the mother the ability to relocate with the child – Consideration of whether the child could develop a meaningful relationship with the father if relocated – Consideration of the child’s young age – Orders providing for the father to establish a relationship with the child free of the condition of supervision prior to relocation permitted.

CHILDREN – With whom a child spends time with – Where the mother alleges family violence and inappropriate sexualised behaviour by the father – Where the court finds that the mother’s evidence was not reliable and that the father does not present as a risk to the child – Whether the mother is able to support the child’s relationship with the father –Where the mother is opposed to the father spending any time with the child that is not supervised – Consideration of the extent to which a final order that a party’s time with a child should be the subject of long term supervision – Consideration of orders that would best maintain the child having a meaningful relationship with the father until the mother is permitted to relocate – Orders.

CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the parties have a demonstrably poor relationship – Where the parties are unable to communicate – Where equal shared parental responsibility would not be in the child’s best interest – Orders.

FAMILY LAW – PARENTING – PARENTING – With whom the child should live – Where the child has been the subject of family law litigation for over 10 years – Where the father remains cyclically imprisoned upon offences including breaches of Family Violence Orders – Where Court appointed experts strongly recommend the child should no longer be subjected to any further forensic investigation –Final orders made to allow the child to establish communication with the father should the child wish to do so –Injunctions made restraining the father from contacting and/or approaching the child and the mother.

FAMILY LAW – INTERIM PARENTING – Where the mother and father both seek to vary a previous final parenting order made by consent – Where it appears that the principles of Rice & Asplund are likely to apply in the circumstances – Where the matter cannot be finally determined on an interim basis – Where the requirement for the father to relocate with the child to City B and for the mother to spend supervised time with the child in City B be suspended until further order.

FAMILY LAW – PROPERTY PROCEEDINGS - Adjournment - Vacation of trial dates - Late disclosure of in excess of 3,000 pages - Interests of justice.

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the second respondent sought a stay of orders that are the subject of appeal – Where the second respondent contended that that his appeal would be rendered nugatory if the stay was not granted – Where the Court is not satisfied that the second respondent has discharged the onus that there is a proper basis to stay the orders other than on terms consented to by him – Second respondent’s application dismissed – Costs ordered against the second respondent as agreed or assessed on a party/party basis.

FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – PRACTICE AND PROCEDURE – Mother’s application to appear electronically at Interim Hearing granted.

FAMILY LAW – PRACTICE AND PROCEDURE – LITIGATION GUARDIAN – Where an order for a litigation guardian was previously made – Affidavit confirming eligibility to be a litigation guardian pursuant to r 3.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 filed – Proposed litigation guardian not opposed – Litigation guardian appointed.

FAMILY LAW – PARENTING – Where the child currently lives with the mother and spends alternate weekends with the father – Where it is neither necessary nor desirable to make findings as to historical allegations of family violence – Consideration of the best interests of the child – Where the child is 16 years of age – Where the child expressed his wish to live in a week about shared care arrangement – Where it is in the child’s best interests to spend equal time with each parents – Equal shared parental responsibility.

FAMILY LAW – LEAVE TO COMMENCE ADOPTION PROCEEDINGS – Where the applicants are the step-father and mother and they seek leave to commence adoption proceedings in relation to a 16 year old child – Where the respondent biological father does not oppose the adoption– Where leave is granted.

JURISDICTION – where the Court has jurisdiction.

FAMILY LAW – PARENTING PROCEEDINGS – Undefended – Parents complicit in disappearance of child – Parents pose unacceptable risk of harm to the child – Risk of further abduction – No contact with parents – Child to live with maternal grandmother – Sole parental responsibility to maternal grandmother.