Judgments

FAMILY LAW – EX TEMPORE – Where the wife seeks to rely upon a report of her psychologist as expert evidence – Where the psychologist not appointed as Single Expert under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the husband objected to the admissibility of the report because the opinion evidence failed to satisfy s 79 of the Evidence Act 1995 (Cth) – Where the psychologist possessed sufficient relevant expertise – Where it was not clear exactly what opinion was expressed in the report and the reasoning that led to it – Where the Court was not satisfied that opinion was wholly or substantially based on specialised knowledge, training or expertise – Order that the report be rejected.

FAMILY LAW – PARENTING – Best interests of the child – Mother exposed to a pattern of coercive and controlling conduct during the relationship, which continued post-separation – Where the mother has suffered Post-Traumatic Stress Disorder as a result of the father’s coercive and controlling conduct – Where the mother is the primary caregiver of the child – Child to live with the mother –Where a Single Expert Psychiatrist cautions against the mother being re-traumatised from ongoing contact with the father – Where it is not in the best interests of the child or their primary caregiver to have substantial time with the father – Spend time arrangements ordered in accordance with the mother’s proposal to ensure the mother can cope with the exposure she has to the father – Child to spend time with the father increasing incrementally as the child matures – Sole parental responsibility to the mother – Change of the child’s name.

PROPERTY – Application for an adjustment under s 90SM of the Family Law Act 1975 (Cth) – Father’s contributions superior to the mother’s – Where the mother’s future earning capacity is significantly less than the father’s – Where the mother is the primary caregiver to the parties’ child – Where the mother has received significant funds during proceedings by way of interim property distribution – Father to pay the mother a settlement sum and the parties otherwise retain their assets and liabilities in their sole names – Child Support Departure Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – Where the husband’s delay in making the application for a stay in part rendered a stay otiose – Where it is not accepted that a failure to order a stay will render the appeal nugatory – Where a generous consideration of the grounds of appeal produces a scarcity of merit, in turn generating a compelling circumstance attracting weight against the exercise of discretion to order a stay – Where the balance of convenience favours the dismissal of the stay – The husband’s Application in a Proceeding is dismissed.

FAMILY LAW – PARENTING – Spend time with arrangements – Parental responsibility – Where the mother seeks to relocate to the United States with the child – Allegations of family violence perpetrated by the father – Orders made permitting the mother to relocate to the United States with the child – Orders made for the child to live with the mother and spend time with the father – Orders made for the mother to have sole parental responsibility.

FAMILY LAW – CHILDREN – Application to stay no-time parenting orders pending appeal – where applicant father seeks to resume supervised time pending appeal – where applicant father seeks to prevent international relocation of children pending appeal – where respondent mother consents to stay on relocation of children pending appeal but not on international travel – where children have not spent time with father since Final Hearing – where appeal is listed for hearing within one month: international travel order stayed - stay otherwise refused.

FAMILY LAW – PROPERTY – Financial agreement – De facto relationship – Where the applicant seeks for the financial agreement to be set aside – Where the respondent contends it would be unjust and inequitable for the Court to find the agreement was not binding – Consideration of legal advice – Advice given by someone who was not a legal practitioner – No evidence of content of advice – Respondent’s claim fails – Agreement not binding.

FAMILY LAW – Application to discharge Independent Children’s Lawyer – Application dismissed.

FAMILY LAW – COSTS – Where substantive proceedings involved an application to set aside property orders made by consent – Where that application was dismissed after a “threshold hearing” – Where that application was thoroughly unmeritorious – Where respondent to that application now seeks costs – Where respondent to that application gave false evidence –Where applicant for costs is in receipt of legal aid – Where caveat lodged by NSW Legal Aid over property of applicant for costs – Where any costs awarded will be paid to NSW Legal Aid – Where respondent to costs application has modest financial circumstances – Where s 117 of the Family Law Act 1975 (Cth) considered – Application dismissed.

FAMILY LAW – PARENTING – CRITICAL INCIDENT LIST – Where an application is brought by the paternal uncle – Where both the mother and father have passed away – Where the maternal and paternal family support final orders being made in the applicant’s favour – Where the Department and Police hold no child protection concerns about the children residing with the applicant – Where it is in the children’s best interest for final orders to be made as expeditiously as their best interests allow – Final Orders made.

FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where the mother is deceased and the father is charged with her murder – Where an application is brought by the maternal aunt, uncle and grandmother – Where the father has not participated but has notice of the proceedings and orders sought – Where the Department has no concerns with the children residing with the maternal aunt and uncle – Where the children have expressed a wish to change their surnames and it is in their best interests to be allowed to do so – Where final orders made.

FAMILY LAW – PRACTICE & PROCEDURE – Further affidavits to be filed.

FAMILY LAW – PARENTING – Interim parenting orders – Where previous interim orders were made – Where the child lives with the mother and spends two nights per week with the paternal grandmother – Where the paternal grandmother seeks fresh interim orders for the child to live with her and spend professionally supervised time with the mother – Where the mother has breached orders by returning a positive drug test – Where the current evidence falls short of exposing the seriousness of the mother’s illicit drug use – Where the court child expert reported the child is meeting his general developmental milestones – Where the matter is listed for trial in six weeks – Where orders reversing the child’s residence deserve much more thorough consideration at trial – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – abuse of process – attempt to relitigate issue determined by earlier consent order – application by beneficiary of deceased estate of husband to intervene in property proceedings – application for substitution of legal personal representative of deceased husband – discovery sought against non-party – request for leave to issue subpoena.

FAMILY LAW – APPLICATION FOR A STAY OF FINAL PARENTING ORDERS – Where appeal has been filed – Where it would be adverse to the children’s interests to order a stay - Refusal to grant a stay pending determination of substantive parenting appeal – Application dismissed.

FAMILY LAW – CHILDREN – Parenting Orders – Where the father has been convicted of possessing and creating child exploitation material – Where some of the child exploitation material created was of the child – Whether the risk of sexual harm by the father can be ameliorated – Where the paternal grandparents dismissed or minimised any risk posed by the father – Whether long-term supervised time with the father is in the child’s best interests – Where a no contact, no communication order is made – Where the family is well known to Child Safety – Where living with the mother exposes the child to further serious risks of harm – Where there is no viable alternative but to leave the child with the mother.

FAMILY LAW – PARENTING – Spend time arrangements – Best interests of the children – Where there are allegations of family violence – Where the children live with the mother – Where Final Parenting Orders were made in 2022 which provided for a 9/5 regime – Where the children require ongoing clinical support – Consent orders made for the mother to have sole parental decision-making responsibility for the children – Supervised time to continue between the father and the children.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – where subpoena objected to on the basis of protected confidence – whether party is a professional service – whether the communications are protected confidences – whether likely harm outweighs desirability of production – application objecting to subpoena dismissed.

FAMILY LAW – COSTS – where the wife seeks an order for costs on an indemnity basis – where the husband filed no response to the wife’s submissions – where the husband has not complied with previous court orders – where the husband’s conduct has delayed court proceedings – where the husband has been wholly unsuccessful in the proceedings – consideration of s 117(2A) factors – costs ordered on an indemnity basis in the wife’s favour.

FAMILY LAW – PARENTING – Final orders proposed with consent of all parties – Proposed orders suitable to ameliorate the risk to the children associated with the father in circumstances where the mother’s parental capacity is compromised – Final orders made in line with the terms provided by the parties.

FAMILY LAW – PARENTING – With whom the children live – Where the father and the Independent Children’s Lawyer contend that the risk of harm arising from psychological abuse perpetrated by the mother is so high that it requires limitation ad supervision of the children’s time with the mother into the future – Where the father proposes orders in terms similar to the orders promoted by the Independent Children’s Lawyer – Where the Court finds that there is unacceptable risk that the children will suffer psychological harm in the mother’s care – Where the evidence supports the making of an order that the father have sole parental responsibility for the children.

PARENTING – Where the mother amended her application on the first morning of trial - Where the mother promotes unsupervised time between the children and the father – Where the Court finds that the mother will never voluntarily facilitate time between the children and their father.

PRACTICE AND PROCEDURE – Where the mother filed an Application in a Proceeding in the evening prior to the competing applications being listed for Closing Submissions – Where the application was dismissed – Where the mother filed a further Application in a Proceeding subsequent to Judgment being reserved – Where the mother seeks a variety of orders including to adduce further evidence – Where the father and the Independent Children’s Lawyer oppose the application – application refused.

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

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – TRIAL SEQUENCE – the applicant submits that the respondent should file his case outline first as the applicant does not understand the case advanced by the respondent – held, case outlines should be filed concurrently.

MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – EXPERT EVIDENCE – the respondent submits that the applicant should be restricted to a single expert witness per issue – held, the applicant should not be so restricted.

FAMILY LAW – PARENTING – With whom the child lives and spends time with – Where the parties are unable to agree parenting arrangements for a nine year old child – Where the child currently lives with the respondent and spends five nights per fortnight with the applicant – Where the applicant seeks a change of primary care – Where the respondent seeks to reduce the child’s current time with the applicant to three nights per fortnight – Where the child experiences high levels of anxiety – Consideration of best interests – Where a change in primary care is likely to cause the child extreme distress and anxiety – Where the evidence supports a reduction in time from five nights to three nights per fortnight with the applicant – Sole parental responsibility for decision-making to the respondent – Orders.

FAMILY LAW – PROPERTY – APPLICATION FOR ENFORCEMENT – Where both parties filed applications seeking the other comply with final orders regarding sale of the matrimonial property – Where both parties assert the other is responsible for the non-compliance with the orders – Where both parties seek alterations to the orders that deal with the sale of such property – Where enacting the husband’s proposed alterations would result in a substantive change to the orders – Sale of the property and avoidance of future litigation in the interest of both parties – Discharge and substitution of the order regarding sale of the property.

FAMILY LAW – PARENTING – Interim hearing – Where the matter is part-heard – Where the applicant sought to remove the requirement for professionally supervised time – Where the applicant failed to disclose mental health concerns – Where the respondent contended that professionally supervised time is still warranted – Where the applicant proposed the two paternal aunts as alternate private supervisors – Where the paternal aunts fail to address or acknowledge the father’s mental health conditions – Where the respondent opposed the paternal aunts as alternate private supervisors – Where the applicant sought a video communication order – Where the Court made orders for video communication between the applicant and the child – Where the Court otherwise dismissed the applicant’s interim application.

FAMILY LAW – CONTEMPT – Sentencing – Respondent pleaded guilty to ten charges of contempt – Seriousness of contempt – Desirability of determining appropriate sentence for each charge – Totality of sentence should not exceed totality of offending – Imprisonment as sentence of last resort – Circumstances warrant imprisonment – Concurrency and cumulation - Part suspension of imprisonment – Good behaviour bond.

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

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

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

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

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

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

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

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

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

FAMILY LAW – EX TEMPORE – Where the wife seeks orders for recusal on the basis of apprehended bias – Where no basis for recusal is established – Application for recusal refused – Where the Court is not satisfied final hearing dates should be vacated – Where the wife seeks a range of orders which are incompetent or have no reasonable prospect of success – Application dismissed – Costs reserved.

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

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

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

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

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

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

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

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

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

FAMILY LAW – PROPERTY

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – adjournment application by all parties – proceeding fixed for one month duration – application dismissed.

FAMILY LAW – PARENTING - parental responsibility – where s 102NA applies – where the matter has a long and complex history - where a recovery order was previously executed – where the children have not seen the mother since April 2024 – where an Order had been made that neither party and no third party seek the children's views – where a third party asked the children their views – where the Family Report writer recommends time and communication with the mother is suspended on an interim basis – where time Orders are suspended – where telephone communication with the younger children is permitted – where the matter is set down for final hearing.

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

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife’s Application in a Proceeding seeks wide-ranging orders, primarily about disclosure – Extensive disclosure provided by the husband – Consideration of the overarching purpose and requirements of efficiency, timeliness, cost and proportionality confining the scope of arguments about disclosure – Rules about and obligations of disclosure generally not intended to place one party in a position to undertake an unreasonable, overly detailed, unnecessarily fastidious or obsessive audit of another party’s expenditure, dealings and transactions over many years – Where the evidence did not establish the husband’s existing disclosure was oppressive to the wife – Where some disclosure sought by the wife was not relevant to issues in the proceeding – Where the wife sought to discharge earlier court orders on the basis of non-compliance by the husband – Where the husband provided acceptable explanation for non-compliance – Husband granted an extension of time for compliance with orders – Application dismissed – All questions of costs reserved.

FAMILY LAW – ORDERS – Application to vary/set aside final property settlement consent order pursuant to s 79A(1)(c) Family Law Act 1975 (Cth) – Threshold determination of whether there has been a default in carrying out an obligation of the final order – Where numerous breaches of the obligations of the final order are pleaded – Where the Court is satisfied that there has been default in carrying out an obligation of the final order.

FAMILY LAW – PRACTICE AND PROCEDURE – where party is subject to vexatious proceeding order in one relationship applies for leave to institute proceedings in another relationship – leave granted.

FAMILY LAW – COSTS – PARENTING – Where the mother seeks costs following final consent orders made in relation to parenting proceedings – Consideration of relevant principles under s 117 of the Family Law Act 1975 (Cth) – Where the father should have resolved the parenting proceedings at the dispute resolution conference prior to the trial, because he knew his alcohol consumption had escalated and he was armed with the results of his hair follicle test – Circumstances warranting departure from the usual principle that each party bear his or her own costs – Order that the father pay the mothers costs fixed at $3,300 – Payment to be made in instalments.

FAMILY LAW – PROPERTY – Application by the wife for the husband’s motor vehicle and associated keys to be placed in her care – Where no evidence has been provided to suggest that the husband is not currently in possession of the motor vehicle – Where there are orders preventing the husband from dissipating the marital pool – Husband to deliver the motor vehicle and associated keys to the wife’s solicitors.