Judgments

FAMILY LAW – PRACTICE AND PROCEDURE – Application for Review – where orders made by Judicial Registrar staying financial proceedings pending the respondent wife’s compliance with requisite pre-action procedures – where the wife’s Genuine Steps Certificate is contrary to assertions made by her legal representative in court – where the wife has failed to file an Undertaking as to Disclosure as is required prior to First Return – where the wife provides no evidence as to compliance with pre-action procedures and did not seek an exemption – where this court expects compliance and practitioners must assist clients with this duty – where delegated judicial officer has proactively and appropriately case managed a matter in accordance with the overarching principles - Application for Review dismissed.  
 

FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Application for leave to issue property settlement proceedings out of time pursuant to section 44(3) of the Family Law Act 1975 (Cth) – Marriage of seven years –Application filed two years and seven months out of time – Consideration of length of delay – Whether the applicant has established a prima facie case – Where hardship is established – Prospective costs considered – Where the Court declines to exercise its discretion to proceed out of time – Anticipated legal costs disproportionate to ultimate likely claim – Application dismissed. 
 

FAMILY LAW – PARENTING – where at commencement of trial the parties had agreed to do family therapy – where court declined to make orders until evidence tested - where the children live with the mother – where the children have had no face-to-face time with the father since July 2021 and no electronic time since September 2023 – where father convicted of two family violence offences including a strangulation offence perpetrated against the mother – where the father unsuccessfully appealed the criminal convictions - where the father had undertaken courses but continued to deny the offences – where the father was critical of the mother – where the position of the mother and the ICL changed after the evidence was tested - family therapy not ordered - no time order  
 

FAMILY LAW – CHILDREN – Best interests of child. 

 FAMILY LAW –Parenting-father mental health -not properly managed over seven and half years- lack of empathy for children/mother- lack of insight- continuing denigration of mother- high likelihood of undermining or destroying primary carers relationship - lack of parenting capacity- unacceptable risk – identity time only 
 

FAMILY LAW – Parenting proceedings – proceeding subject to ban on cross-examination due to family violence – father has failed to secure funding for legal assistance and to file affidavit material for trial – application by mother for proceedings to be determined on undefended basis – father seeks to adjourn proceedings – high conflict – matters to be considered – child concerned almost thirteen years of age – family report writer advises child stressed by proceedings and seeks their end – best interests – application determined on undefended basis 
 

 FAMILY LAW – Urgent legislation needed to protect by caveat the property interests of spouses and de facto relationships in property proceedings and to extend part VIIIAA to de facto relationships - property pool was not able to be properly preserved – remaining proceeds of sale is $8,411 - s 128 certificate issued to the husband – possible clawback of funds through the joinder of new parties by the wife - stood over part heard to 15 August 2025.     
 

FAMILY LAW – Procedure – leave granted to the applicant to use documents filed in these proceedings for criminal proceedings. 
 

FAMILY LAW – PRACTICE AND PROCEDURE – Institution of proceedings – Leave to institute proceedings refused.  
 

 FAMILY LAW – Subpoena objection on behalf of respondent – on grounds of oppression and a fishing expedition – further objection on grounds of legal professional privilege over documents produced by his solicitor relating to a discretionary trust – Subpoena not oppressive - whether documents produced subject to legal professional privilege – whether legal professional privilege has been waived – legal professional privilege was waived by conduct  
 

FAMILY LAW – PRACTICE AND PROCEDURE –application to adjourn application for costs 
 

FAMILY LAW – COSTS – applications for costs by Father and Independent Children’s Lawyer following determination of parenting and financial proceedings  
 

FAMILY LAW – PARENTING – CONTRAVENTION APPLICATION – Where the mother concedes that she contravened final parenting orders, resulting in the father spending no time with the child, because the child talked about holding a ‘secret’  – Whether the Mother has a reasonable excuse for contravening the Orders – Whether the breach was for long as necessary to protect the health and safety of the child
 

FAMILY LAW – Child-related proceedings – Where previous final orders made – Where parents unable to agree on education issues – Where both parents agree joint decision making is not working – Parallel parenting arrangements.

 FAMILY LAW – PRACTICE AND PROCEDURE – Substantive review – where a declaration is made that the husband owes the wife $22,200 pursuant to final orders – where the husband by way of Review Application seeks that such declaration be discharged – where the wife seeks the Review Application be dismissed, but does not seek orders for enforcement – where the Review Application appears to have arisen on a misunderstanding as to the effect of the declaration – where a declaration as to a sum of money due and payable is not an order as to enforcement – where submission of husband not to exercise discretion is wholly misconceived - where the husband is represented by a litigation guardian – Review Application dismissed.  

FAMILY LAW – PROPERTY – Final orders – Where both parties sought to retain the land and farming enterprise and to pay out the other – Where both parties have genuine and meritorious cases 

FAMILY LAW – PROCEDURAL – Where the respondent mother and wife did not file any trial material and did not appear at final hearing – Where proceedings continued in her absence but not on an undefended basis.  FAMILY LAW - PARENTING – Parental responsibility and living arrangements in issue for 12 and 14 year old boys – Turbulent period post-separation including child absconding, school refusing, sleeping rough, antisocial behaviour involving police, being taken into protective custody for being intoxicated, fighting and hospitalisation and refusal of support services – Where behaviour improved markedly in the care of the father.  FAMILY LAW - PROPERTY – Division of property to provide for unequal post separation contributions and provision for commitments necessary to enable the father’s support of the children – Where husband appointed trustee for sale of investment properties and mechanism for capital gains tax liabilities to be taken into account. 

FAMILY LAW – PARENTING – Final Orders – One child 14 years of age – Where mother presents as unacceptable risk of serious psychological harm to the child – Where there are cogent reasons to justify indefinite supervision 

FAMILY LAW – PARENTING – application for costs arising out of final hearing – application dismissed
 

FAMILY LAW – Procedural – second respondent removed as party to proceedings – s 102NA order made. 

FAMILY LAW – Parenting – Subpoena objections – Where mother seeks documents relating to father’s health – Where mother alleges family violence – Where mother alleges coercive control from father by misrepresenting terminal medical illness – Where father alleges he suffers from cardiac condition – Mother seeks documents and information from health services – Subpoena objections by health services for lack of forensic purpose, lack of relevance and ambiguity of drafting – Subpoenas found to be relevant – Forensic purpose demonstrated – Subpoenas sufficiently clear to be interpreted – Objections dismissed. 

FAMILY LAW – PARENTING – Final Orders – One child 10 years old – Where the mother has relocated three hours away – Where both parties have significant and unaddressed mental health vulnerabilities – Where child at risk of harm in care of either parent but benefits from her relationship with both parents – Child to remain living with the father and spend regular time with the mother – ICL to remain appointed for 12 months with liberty to apply to ensure the child’s diagnostic assessment and treatment and to mitigate against either parent’s non-compliance. 

FAMILY LAW – APPLICATION FOR REVIEW – review of orders for enforcement of final orders – wife required leave to proceed out of time with her application – leave not granted – application for review dismissed – order for costs made – payable from proceeds of sale. 

FAMILY LAW – Child-related proceedings – Final orders – Two children with special needs – Parental responsibility in issue – Where each parent found to be genuine in their pursuit of what is in the best interests of the children but still at loggerheads - To shield the children from exposure to conflict, it is necessary for there to be an order for the mother to have sole parental responsibility – Time arrangements in issue – Where minimisation of changes is touchstone for orders progressing time with the father – Where certainty of orders is preferable over the likelihood of disagreement between the parents about readiness to progress

FAMILY LAW – Final hearing – parenting and property orders sought – where the applicant became unrepresented a short time prior to the final hearing – where the applicant was represented pursuant to the section 102NA Cross-Examination Scheme – where an adjournment application was sort by the parents – adjournment application granted – allegation of noncompliance with previous disclosure orders – where the applicant sought an interim hearing for the spend time arrangements with the child pending the adjourned final hearing – interim hearing denied

FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to list matter on urgent basis – application dismissed 

FAMILY LAW – PROPERTY – Where the court made orders by consent – Where the wife commenced child-related proceedings the husband joined property proceedings by seeking to have the consent orders set aside.  FAMILY LAW – PRACTICE & PROCEDURE – Where the husband subsequently became and remains a bankrupt – Where the wife argued that the husband does not have a sufficient interest in the outcome to afford him standing – Where the husband found to have standing due to his interest in regulated superannuation funds – Sloane followed – Where the husband’s application under s 79A is summarily dismissed on the finding that the husband has no reasonable prospect of successfully prosecuting the proceedings.

FAMILY LAW – Parenting – Application to stay parenting orders – Where applicant mother seeks to limit spend time with father and require professional supervision – Where respondent father concedes partial stay of parenting orders pending the mother’s appeal – Mother’s application to adjourn hearing of the stay application for a second time dismissed – Consideration of the First XI of principles determining a stay application – Where mother has not complied with final orders – Where children have not spent time with father since just after the final hearing – Paternal grandparents appropriate supervisors – Partial stay granted in terms of orders sought by the father – Stay assumes appellant prosecutes appeal with proper expedition. 

FAMILY LAW – PROPERTY – Where final orders have not been complied with causing financial loss to the non-defaulting party – Orders made under s 80 of the Family Law Act 1975 to enable the implementation and enforcement of property settlement orders

COSTS – Where the applicant is entitled to a costs order – Indemnity costs sought but insufficient evidence to establish what the wife’s legal obligation as to costs is and the reasonableness of the amount sought on an indemnity basis.

FAMILY LAW – PROPERTY – Application for interlocutory injunction to freeze funds refused. 

FAMILY LAW – PARENTING – Final Orders – Where the Respondent’s mother’s case was determined as having no reasonable likelihood of success part way through the final hearing.

FAMILY LAW – PARENTING – one child (aged 4) – parties each make allegations of family violence against the other, including of coercive and controlling behaviour – finding father has engaged in family violence against the mother, including coercive and controlling family violence – finding mother has not acted to coerce and control the father as he believes – rather, mother has acted to safely promote child’s relationship with father – father assessed to be at high risk of suicide – child spending regular time with father a factor protective of his mental health – assessment of risk posed by father’s mental health, anxious and inaccurate beliefs about the mother, alcohol use disorder, occasional illegal drug use and regular use of prescribed cannabis – order for mother to have sole decision-making responsibility – order for child to live with mother and spend regular time with father – child’s time with father to be supervised by members of his family to safeguard against identified risks – no orders for further drug or alcohol testing or provision of mental health treatment information which father perceives as coercive and controlling and is likely to have a detrimental impact on his mental health – change of child’s surname to include mother’s surname, hyphenated with father’s surname – other parenting orders made upon consideration of child’s best interests

FAMILY LAW - The child is to live-with mother – sole parental responsibility granted to mother – the child is to spent time with the father – the father is permitted to communicate with the child by audio-visual means – the child is removed from the Airport Watch List – the mother and child are permitted to travel internationally – the mother is to provide the father with a copy of the paid return airline ticket and travel insurance. 

FAMILY LAW – PARENTING – Best interests of child – orders made. 

FAMILY LAW – Application in a Proceeding - adjournment application – adjournment dismissed.  

FAMILY LAW – PROPERTY – Where the de-facto wife received an inheritance from her father’s estate late into the relationship – Where the de-facto husband claims that he made significant financial and non-financial contributions to the properties comprising most of the deceased estate – Assessment of contributions – Whether certain sums should be added back to the asset pool – assessment of other factors – Just and equitable outcome

FAMILY LAW – Parenting – Where the Independent Children’s Lawyer applied for the appointment of a Litigation Guardian for the Respondent Mother – Where the Applicant Father supported the application – Where the Mother opposed the appointment – Where the Court considered the capacity of the Mother to understand the nature and consequences of the proceedings – Application for appointment dismissed 

FAMILY LAW – PARENTING – Allocation of decision making for major long term issues – LIVE WITH – SPEND TIME WITH – Two children 12 years and 10 years of age – Consideration of what orders will promote the safety of the children – Consideration of the children’s views – Consideration of the capacity of each parent to meet the children’s needs – Impact on the children of the mother’s overvalued beliefs and emotionally driven behaviour – Capacity of the mother to provide for the emotional needs of the children – Consideration of the benefit to each child of having a relationship with each of their parents – Children’s ages and stage of development – Benefits to the children of being able to have more regular and natural interactions with mother than possible in a supervised setting – Consideration of the impact on the children of long term supervision of their time and communication with mother – Restraints – Orders for International travel and passports.

FAMILY LAW – COSTS APPLICATION – Where there are circumstances which justify the court making an order that each parent pays a proportion of the costs of the Independent Children’s Lawyer – Costs order made in a fixed amount with time to pay 

FAMILY LAW – PARENTING – CONTRAVENTION APPLICATION – Where the mother concedes that she contravened final parenting orders, resulting in the father spending no time with the child, because the child talked about holding a ‘secret’  – Whether the Mother has a reasonable excuse for contravening the Orders – Whether the breach was for long as necessary to protect the health and safety of the child

FAMILY LAW - PRACTICE & PROCEDURE – CONTEMPT – Despite final orders made by consent over three years ago, a real property in Ireland has still not been sold and the proceeds have not been disbursed between the parties – Where the Court initiated a charge of contempt pursuant to s 112AP(1)(b) of the Family Law Act 1975 (Cth) against the husband – Despite many findings made against the husband, the charge is bad for duplicity and is invalid - Charge of contempt dismissed 

FAMILY LAW – De facto property settlement proceedings filed out of time – where the respondent seeks that the application be dismissed on the basis that she disputes the existence of a ‘de facto relationship’ and in the alternative that the application has been filed out of time – where the Court considers that a de facto relationship existed – consideration of hardship – where the Court considers that leave should be granted to apply out of time. 

FAMILY LAW – MARRIAGE – Whether the Applicant’s marriage to the Respondent is void – whether decree of nullity should be issued – where the Applicant was married to a third party at time of her marriage to Respondent. 

FAMILY LAW – Parenting – by consent trial adjourned part heard – parents to undertake therapy – parents to undergo psychiatric examination and report – Family Report to be updated – substantial agreeance as to interim orders by dispute as to aspects of agreed orders – weight placed on inferred apparent parental authority – costs as to therapy of 80% father and 20% mother.  

FAMILY LAW – PROPERTY – Where final orders and ancillary orders for real property abroad to be sold have not been complied with – Where an Application in a Proceeding was brought to give effect to the final orders – Where multiple unmeritorious applications then brought by the respondent – Respondent’s applications dismissed – Harmful proceedings order made – Costs orders made as to liability but not as to quantum 

FAMILY LAW – PROPERTY – interim defended hearing – application to rely on an adversarial expert of the husband’s business – experts use same methodology – difference of opinion about which data to use – difference of opinion about the multiple – substantial difference in business value – significant prejudice to the husband. 

FAMILY LAW – Final hearing – where the matter was set for two days – where the mother became unrepresented in January 2025 – where the eldest child is not the biological child of the respondent – where service was dispensed with on the eldest child’s biological father – where there is a history of significant drug and alcohol use – where the court is satisfied the respondent has ceased illicit substance use – where there is concerns for the mothers mental health – where the mother did not attend court – where the mother was called in the courtroom by the Independent Children’s Lawyer and was aware of proceedings – where the matter proceeded in the absence of the mother notwithstanding she was telephoned in court – where the children began to live with the father in October 2022 – where final orders were made – children live with the father – father have sole decision making responsibility – where the children spend time with their mother in accordance with their wishes.   

FAMILY LAW – Parenting – Where the children are aged 15 and 12 – Where Father has a history of family violence – Where the parties agree that the 15 year old child ought to live with the Mother and spend time with the Father in accordance with the child’s wishes – Where there was unacceptable risk of emotional harm for the 12 year old child spending time with the Father because of continuing family violence and other factors – Whether there are methods of risk amelioration available to avoid a no time orders as a last resort – Orders for no time made 

FAMILY LAW – Stay of proceedings until 2 pm – oral application for an adjournment - adjournment granted – matter listed part heard.

FAMILY LAW – PARENTING – relocation – where Mother seeks to relocate with parties’ three year old child from Adelaide to Canberra – where both parties are committed and competent parents 

FAMILY LAW – Parenting – one child, aged eleven – fairly narrow issues in dispute – where the child has significant mental health issues – where the parents have difficulty in co-parenting – where both parents display distrust of each other – where the Court must make orders in respect of decision making responsibility and how the child’s time with the father should be structured – best interests outcome.