Judgments

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.

FAMILY LAW – PRACTICE AND PROCEDURE – Slip Rule – Where applicant brings an application to amend final orders pursuant to the Slip Rule – Orders made amending final orders pursuant to the Slip Rule.

FAMILY LAW – PARENTING – Application for final parenting orders – Where the children have been living with the mother since the parties’ separation in 2019 – Where the children have spent supervised time with the father since June 2023 – Where the Secretary of the NSW Department of Communities and Justice intervened in the proceedings – Where both parents suffer from conditions which compromise their parenting capacity – Where the Secretary proposed the Minister having parental responsibility for the children for a period of 12 months and they live with the father – Where the Independent Children’s Lawyer railed against the children living with either parent – Where the father has remained abstinent from alcohol for the past 18 months – Where after years of intensive involvement by the child welfare agency with the mother, the agency has no faith in her parenting capacity – Where the physical, developmental, medical and educational needs of the children are likely to be better met if they live with the father – Ordered the father have parental responsibility for decisions about the children’s residence and they live with him – Ordered the Minister have parental responsibility in respect of all other major long-term issues affecting the children for 12 months – Ordered the children spend substantial and significant time with the mother.

FAMILY LAW – INJUNCTIONS – Exclusion from matrimonial home – Where the wife seeks the sole use and occupation of the matrimonial home – Where the husband opposes the wife’s application and submits that the parties can co-exist under one roof – Consideration of the circumstances of the parties and whether an exclusive occupation order is necessary – Order for the exclusive use and occupation of the home made.

FAMILY LAW – PARENTING – time with the Father – whether the Father should have regular unsupervised time with the child and if so the nature of such time – whether the Father’s drug use places the child at an unacceptable risk of harm – whether Mother’s capacity to parent is discernibly impacted if the child spends regular unsupervised time with the Father – whether the Father should be involved in the decision making regarding major long-term issues – whether the child’s name should be changed to the Mother’s surname or become a hyphenated version of the Mother and Fathers surnames’ – whether the Father should be restrained from filing further proceedings – whether there should be a ‘guillotine order’ to operate if the Father misses visits. 

FAMILY LAW – Costs application – where the Mother seeks unquantified costs pursuant to section 117 of the Family Law Act 1975 (Cth) – Mother’s substantive application for adult child maintenance summarily dismissed – Father’s substantive application wholly successful – no cost orders made. 

FAMILY LAW – Costs application – heard on the papers – where the Father discontinued his application – where the Mother sought costs – where the Mother incurred costs in preparation of response to the Father’s application – where the court is satisfied a costs order be made.  

FAMILY LAW – PARENTING – Findings of family violence – Benefit of a relationship with father – Arrangements that would promote safety of the children – Aboriginal culture considerations.  

FAMILY LAW – FORUM  NON CONVENIENS – DIVORCE AND PARENTING – Where Wife files application for divorce and application for parenting orders – Where the Wife and the child are domiciled in Australia, whilst the Husband is domiciled in India – Where the Husband subsequently files proceedings in India petitioning for a restitution of conjugal rights and custody of the parties’ child – Where the Husband seeks a restraint on the Wife from continuing with both of the Wife’s applications on the basis that Australia is a clearly inappropriate forum. 

FAMILY LAW — COSTS — Whether costs should be ordered, and if so, on an indemnity basis –  Where the Respondent filed but later abandoned contravention applications after a number of hearing days.

FAMILY LAW – PARENTING – application for review – orders of registrar dismissing application under section 65DAAA – application out of time – substantial issue to be tried – delay not prejudice the respondent – review allowed out of time – significant change of circumstances but not in children’s best interests to revisit the final parenting orders – application for review dismissed. 

FAMILY LAW – PARENTING – where interim consent orders are in place – application by the father to increase the time the child spends with him – insufficient change of circumstances to justify reconsideration of the consent orders in respect of time spent arrangements – where the parties are in dispute about the child’s enrolment in early learning – where the parties are in dispute about whether the child should travel interstate to visit the paternal grandmother – interim orders made for the child to be enrolled in early learning education – interim orders made permitting the child to travel interstate to spend time with the paternal grandmother  FAMILY LAW – PROPERTY – application by the wife to commence proceedings for spousal maintenance and an alteration of property interests outside of the statutory time period – application for a litigation funding order – exercise of the discretion to not grant leave – application for leave and associated orders dismissed 

FAMILY LAW – Parenting – Matter listed as interim hearing – Decision to proceed in absence of mother – Where mother has recently disclosed problematic drug use – Where mother has told parties she does not intend to be involved in proceedings – Decision to proceed undefended on final orders – Where father and second respondent paternal grandparents seek orders for live with and spend time arrangements to be determined by agreement – Where previous orders have not been followed but parties have made arrangements by agreement – Final orders made. 

FAMILY LAW – Parenting – Interim defended hearing turned undefended final hearing – Where applicant mother put to extensive cost and effort to serve respondent father – Where respondent father on notice of proceedings – Where father has taken head-in-the-sand approach to proceedings – Mother’s orders sought in best interests of child – Final orders made as sought by mother – Costs order against father.  

 FAMILY LAW – Interim hearing – parenting arrangements – father seeks to move children overseas to where he works – where the children live with the mother and spend time with the father on an almost equal shared care arrangement when the father is in the country – where the father travel overseas regularly for work – where there are allegations of alcohol abuse – where there are allegations of manipulation – where on the this interim hearing there should be no change to the existing spend time arrangement – where there be orders for school holiday time – short time until final hearing – no substantial change to existing interim orders.  

FAMILY LAW - PARENTING – where there are allegations of significant risk of harm to the child in the father’s care – where the mother seeks supervised time continue indefinitely on account of such risk – where the father seeks unsupervised day time on alternate Sundays and one afternoon per week – where the father has a connection to child sexual abuse material – where the mother submits that the father presents a risk of harm with respect to his cyclical alcohol dependency – where the father’s consistent lack of insight is compounded by his propensity to fabricate events and information – where the father’s capacity to take accountability for his actions is wholly deficient – where the father’s written and oral evidence is uncompelling – where it is uncontested the child idealises the father – where the risks associated with continuing supervised time between the child and the father need to be considered against the risks posed by unsupervised time commencing – where the Independent Children’s Lawyer largely supports the mother’s position – where it is found that an unacceptable risk of harm exists in the child spending unsupervised time with the father – where it is found that the risks posed by the father can be mitigated by time being supervised until the child commences Year 8 – where the father’s time progressing to be unsupervised is contingent on a raft of protective safeguards with respect to the father’s alcohol intake – orders made for the mother to hold sole decision-making – section 68B injunctive orders for the protection of the mother are found to be appropriate.    

FAMILY LAW – Interim s 90SM property distribution in the amount of $200,000 to both the de facto husband and defacto wife - an interim s 90SE spousal maintenance order for the de facto wife in the sum of $714.00 per week – property proceedings adjourned part heard.  

FAMILY LAW – PARENTING – family violence – unacceptable risk of harm to children if they spend time with the father – significant non-compliance with court orders – father unwilling or unable to comply with court orders – power imbalance – no insight into parental behaviour – father had no evidence before the court – ongoing risk – risk not ameliorated by supervised time or orders for counselling or courses – children to have no time or communication with the father – sole parental responsibility to the mother – mother permitted to obtain passports for the children and to take them out of Australia without the consent of the father. 

FAMILY LAW – Parenting – Discharge of section 102NA order – Where section 102NA made under discretionary limb of section 102NA tree – Where party unable to retain legal representation under section 102NA – Where parties consent to discharge of section 102NA order. FAMILY LAW – Parenting – Contravention – Interpretation of Division 13A – Whether the Commonwealth Criminal Code applicable – Interpretation of “offence” – “Offence” found to be intentionally distinguished by Parliament from Division 13A contraventions in the Act – Interpretation of “aids and abets” – Literal interpretation – Adoption of common law interpretation.  

FAMILY LAW – Property – Continuing property trial – Expert evidence – Where husband seeks to rely on affidavit of adversarial witness regarding valuation of property – Orders for single expert valuation of properties did not provide unless all properties valued, none are to be – Where affidavit not in proper form of expert witness valuation – Where both husband and wife allege insufficient disclosure of the other’s property interests – Where wife made no objection to reliance upon adversarial witness report until just before trial – Benefit to administration of justice of single expert valuer rules – Held in the interests of justice to permit husband to rely on report. 

FAMILY LAW – Joint decision-making responsibility in respect of all major long term decisions – no ICL costs order. 
 

FAMILY LAW – PRACTICE AND PROCEDURE – adjournment application – lawyers’ professional responsibilities – concerns as to capacity of party – adjournment granted – consequential interim parenting orders
 

FAMILY LAW – Varying existing orders to confine the task of the expert valuer – identify the applicable multiplier to be applied to the EBITDA - accelerating the provision of relevant information to assist the parties try and achieve a consensual outcome – listed for final property hearing.
 

FAMILY LAW – Contravention application – respondent father convicted of counts 1 to 12 of the contravention application – stood over for sentencing. 
 

FAMILY LAW – Parenting – two subject children, aged 16 and 11 – where the children have been exposed to the parental conflict – where the father has had a relatively limited involvement in the children’s lives – where the disputed parenting orders are limited – best interests of the children.   FAMILY LAW – Property – net matrimonial assets worth a little over $4M – where each party seeks to retain 60% of the net non-superannuation property – where the wife seeks to retain 60% of the combined superannuation and the husband seeks that it be equalised – where the Court must weigh up each party’s contributions and their future needs – just and equitable outcome.  
 

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

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

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

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

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-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 – CHILDREN – Best interests of child. 

 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 – Notice of objection hearing – subpoena material confined to inspection by legal practitioners only – no further subpoenas to be issued without leave of the Court – notices of objection otherwise dismissed.   

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

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

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 – 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 – 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 – 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 – 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 – 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 – 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.