Judgments

FAMILY LAW – Divorce – contested application – validity of Country B marriage – forum non conveniens – whether Australia is a clearly inappropriate forum – pending application for restitution of conjugal rights in Country B – unsuccessful application for anti-suit injunction in Country B – presumption of validity of the marriage is not rebutted – nature of the order sought by the wife in the Country B proceedings – parties having connections to Australia – divorce granted.  

FAMILY LAW – CHILDREN – where Mother alleges coercive controlling violence and manipulation of children by Father – where Mother seeks continuation of longstanding equal time arrangement – where Father seeks the children live with him and spend time with Mother in accordance with their wishes – orders made as sought by Mother.  FAMILY LAW – PROPERTY – where De Facto Wife’s evidence is preferred because De Facto Husband’s evidence is found to be unsatisfactory and unreliable – where the De Facto Husband has failed to comply with disclosure obligations – where transactions asserted by De Facto Husband found not to be genuine – where obfuscatory conduct on the part of the De Facto Husband hampered the ability of the Court to make findings sought by him – where expenditure on legal fees is added back – where significant adjustment in favour of De Facto Wife pursuant to s 90SF(3) found to be warranted.

FAMILY LAW – Property – Where wife alleges substantial failure to disclose by husband – Husband unrepresented – Application for adjournment in circumstances where husband recently became unrepresented – Not infrequent difficulties with section 102NA representation in this court – Unintended consequences of section 102NA – Decision not to proceed undefended – Final hearing adjourned to allow appointment of another solicitor for husband by Legal Aid Victoria – Not insignificant volume of documents and material to be prepared – Costs thrown away by reason of adjournment fixed but to be determined at final hearing. 

FAMILY LAW – PARENTING – Benefit of meaningful relationship to the child – Need for self-awareness and impact of behaviours – Risks capable of being minimised – time to incrementally increasing  FAMLY LAW – PROPERTY – Small property pool – Greater overall financial contributions by one party – Future needs adjustment  

FAMILY LAW – PARENTING - issue of telephone communication – use of carriage service to make a threat – audio only communication - parties reached a consent position  

FAMILY LAW – De facto property settlement proceedings – ten-year relationship – two children – modest property – financial proceedings re-opened due to inheritance – who retains the family dog – hearing conducted on the papers – just and equitable outcome. 

FAMILY LAW – Parenting – Child aged 9 – Where the child has not interacted with the father for four years – Where the father seeks parenting orders to resume a relationship with the child – Where the relationship was severed as he was sentenced to a term of imprisonment – Where the mother seeks a decree pursuant to s 102QAB of the Family Law Act 1975 (Cth) – Consideration of the welfare of the child’s primary carer – Whether the continued proceedings amount to harm – Family violence – Assessment of harm – Harmful proceedings order made – Application dismissed 

FAMILY LAW – Child support enforcement application – where Father in arrears of child support – whether a superannuation payment split order can be made pursuant to Child Support Act – superannuation payment split orders can only be in section 79 or 90SM property proceedings – parties seek to settle debt by way of cash payment and superannuation split – section 105 of Child Support (Registration and Collection) Act 1988 does not vary section 90XS & 90XT of the Family Law Act 1975 –  informal procedures adopted –  where final property orders have already been made – final property orders set aside by consent –  see s 79A(1A) not section 79A(1)(a) applied –  new property orders made – superannuation split orders made by consent – procedural fairness must be provided to Trustee of superannuation fund –  after orders and reasons provided evidence of procedural fairness provided –  orders made.  

FAMILY LAW – COSTS – costs application following unmeritorious application to review interim parenting orders made by a Senior Judicial Registrar

nding the valuation of the wife’s pension arrived at by applying the provisions of Family Law Act and Regulations regard must be had to the nature, form and characteristics of such superannuation interest - Where the Husband can elect to receive a splitting order in his favour as a tax free cash lump sum and the time for the wife to be able, as of right, to commute her pension has passed - Where the requirement to achieve justice and equity permeates the entire s 79 process - Where the wife’s pension ought to be dealt with in a separate pool of property – Finding of equal contributions to both pools of property – Finding that no adjustment ought to be made in respect of either party – Finding that to effect a percentage adjustment of a figure calculated by the Regulations is an artificial exercise and is neither just or equitable - Orders made for an equal distribution of the substantive property pool – Orders made for a lump sum payment to be made to the husband out of the wife’s pension.

FAMILY LAW – PROPERTY – s 106B claim by wife against incoming mortgagee- claim by wife against certifier under Australian Consumer Law for loss from alleged misleading conduct – husband dissipates equity in only real property that would have been in property pool – wife would have received alteration of property interest- absence of caveat facilitated husband fraudulent encumbrance and dissipation of equity – husband encumbers property in breach of injunction – contravention application filed – cross claim by incoming mortgagee against certifier and husband- judgment for incoming mortgagee against husband in sum of $8,242,144.97- wife’s – wife’s claims dismissed – urgent law reform needed to permit caveat for proceedings under Part VIII, Part VIIIAA and Part VIIIAB

FAMILY LAW – COSTS – where 92 count contravention application egregious – where contravention application was withdrawn on the morning of hearing - where an order in accordance with the scale of costs is not sufficient

FAMILY LAW – PROPERTY – Leave to institute proceedings out of time – Prima facie case not established – Hardship not established – leave refused

FAMILY LAW – parenting – application for the school the two children are to attend from 2025 – mother seeks children attend non-denominational private school – father seeks children attend private and faith-based school.

FAMILY LAW – PROCEDURE- dispensing with the need to comply with the Notice to Produce under r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

FAMILY LAW — PARENTING — time with Father –– Father charged with serious criminal offences — Mother proposing he have indefinite supervised time — allegations of family violence — whether Father poses unacceptable risk to the child – whether the Mother’s parenting will be significantly impacted if the child spends unsupervised time with Father — Re Andrew argument — impact of the Father having time with the child upon Mother’s other children — whether the Mother ‘coached’ her other children to provide a negative view of the Father to the Expert — whether the child should live with the Father if found that the Mother is unable to promote a relationship with him.

FAMILY LAW – Property – thirty-one year relationship – where there are two major assets, being the two jointly owned properties from the relationship – where the wife seeks to retain the property she resides in – where the Court must consider the value of the two real properties – where the wife seeks an adjustment under Kennon – where the Court must assess the husband’s conduct and non-disclosure throughout the proceedings – whether there should be any s75(2) adjustments – just and equitable outcome.

FAMILY LAW– Divorce application – order made

FAMILY LAW – parenting – allegations that father poses unacceptable risk – allegations involving family violence, mental health and alcohol and substance abuse – dispute about whether there should be joint or sole decision making about major or long-term issues – whether there should be an order that the father not spend time with the children – mother withholding children who wish to spend time with father – allegations not all established – no contest that children should primarily live with the mother – interim orders for children to spend time with the father

FAMILY LAW – parenting – final orders – order for mother to have sole decision making responsibility – no live with or spend time orders made for oldest child – order that father spend no time with the children due to unacceptable risk

FAMILY LAW – Interim hearing – parenting – where the parents are in dispute as to the schooling arrangements for the two youngest children and the time the youngest should spend with the father – where the father seeks to progress to one overnight on alternate weekends – where the mother seeks that the time remain as daytime only – where the Court considers it appropriate to move to one overnight – where the Court considers that the children should continue to remain at their respective schools and that the mother be restrained from enrolling them in any other school – various restraints – best interests of the children.   FAMILY LAW – Interim hearing – property – two real properties – where each party resides in one – where the wife seeks the sale of the both properties and for the sale proceeds to be held in the solicitors trust account – where the wife does not seek an interim distribution upon sale – where the husband seeks to retain the property he resides in – where the Court must consider whether it is just and equitable to sell the property the husband resides in – just and equitable outcome. 

FAMILY LAW – PROCEDURE - application in a proceeding - adjournment dismissed

FAMILY LAW – PROPERTY – final hearing – marriage of 28 years – marriage produced two children whom are now adult – where the parties operated a small family business – where the husband attended to the physical aspects of business and the wife attended to administration and accounts aspects – where the husband placed the company into liquidation during the part-heard trial without notice to the wife – where loans were taken from the business in respect no liability for tax has been calculation – where the parties have an inchoate debt to the Australian Tax Office – where the family Trust holds various properties – consideration of one party’s non-compliance with previous orders of this court – consideration of add backs – where a two pool approach is adopted – assessment of future needs – considerations of just and equitable – waste – matters to be considered

FAMILY LAW – PROCEDURE - challenge to jurisdiction dismissed – clearly not inappropriate forum - application for a stay on the grounds of an inappropriate forum dismissed – application for instituting proceedings under Part VI of the Family Law Act 1975 (Cth) are by order also treated as instituting proceedings under Part VII and Part VIII – injunction under s 68B restraining proceedings in Country B.

FAMILY LAW – PRACTICE & PROCEDURE – Interlocutory application for an adjournment part way through a final hearing – Sudden unavailability of counsel – Consideration of legal representation pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme – Where any confusion about legal representation is an unsatisfactory state of affairs that is a menace to procedural fairness.

FAMILY LAW – property – no appearance by the husband – matter proceeding on an undefended basis – where the matter has been on foot since 2021 – where there have been significant delays in the finalisation of the property proceedings due to the conduct of the husband   FAMILY LAW -practice and procedure– leave to proceed out of time – costs – considerations of indemnity costs – ordered to pay costs

FAMILY LAW - PARENTING – final hearing date vacated – mother not aware of concept of s 102NA order – interim parenting orders – refixing parenting and property for final hearing

FAMILY LAW – PARENTING – two children the eldest, aged 12 years, is completely estranged from her Mother and has lived exclusively with her Father and with limited contact with her 9 year old brother who lives primarily with the Mother in the former marital residence – both experts agree that forcing the 12 year old daughter even to attend “therapy” with the Mother is fraught and not recommended – the 9 year old in the Mother’s household effectively “drives the parenting bus” with the Mother arrogating significant parental responsibility and decision-making to her son – complete breakdown in trust between the parents – 9 year old son regularly absent from school even though the Father pays for a private driver to pick up the child and deliver him to school at a weekly cost of $600 per week – significant lack of insight on the Mother’s part regarding needs and best interests of the children – Orders proposed by the Independent Children’s Lawyer, supported by the Father, are in the children’s best interests – both children to live primarily with the Father, with son spending regular time with the Mother, and daughter in accordance with her wishes.  FAMILY LAW – PROPERTY - all financial support for the relationship and the family has come from the Husband – the Mother newly but provisionally qualified as a healthcare professional – Husband’s financial contributions far exceed those of the Wife accepting that the Wife was the primary care of the children when they were younger – certain levels of extravagance in the Wife’s spending during the relationship and her appropriation of $210,000 from a mortgage off-set account was in appropriate – various levels of financial distress for both parties – future needs of the parties, with the Father having primary care of both children, significant at the same time that while the Wife will be in full-time employment, the Husband’s income as a healthcare professional significantly exceeds that of the Wife – just and equitable Orders made as sought by the Husband.

FAMILY LAW – Parenting – international travel – where mother seeks that she be able to take children to Country B to visit maternal grandmother – where father opposes the application due to fear of abscondment and travel advice for Country B – where father opposes travel on the basis of impact on schooling and health concerns – where mother has demonstrated ties to Australia – Where Country B is a Hague Convention country – where overseas travel is in the children’s best interests – unacceptable risk not established – application allowed

FAMILY LAW – parenting and property– final hearing – parental responsibility – sole parental responsibility for medical decisions only – shared care versus nine/five arrangement – school holiday time – special needs of children – insight into needs – family violence – insight into parental behaviour – high parental conflict – where court disagrees with recommendations of the Family Report writer – add backs – legal fees – loans – contributions – inheritance – s 75(2)(o) – failure to disclose – increased legal fees due to conduct of a party – dissipation of assets post-separation – lump sum child support – chattels

FAMILY LAW – REVIEW – Parenting proceedings – Children ordered to live with Father – Where the Father retained the children in his care in October 2023 due to concern that the children unsafe in the Mother’s care – Youngest child with serious medical condition –  Whether children should relocate closer to Brisbane to live with the Mother to be closer to medical services – Whether the child at risk of harm due to geographical location – Whether the Mother poses an unacceptable risk to the children. 

FAMILY LAW - Property Proceedings – Threshold Hearing – Binding Financial Agreement – Binding Financial Agreement Set Aside. 

FAMILY LAW – Contempt application – Where contravention of financial obligation alleged to be contempt pursuant to section 112AP – Prima facie case established – Matter adjourned part-heard – Application for watchlist order – Watchlist order application refused – Where respondent has substantial ties to the jurisdiction.

FAMILY LAW – Application to review decision of Senior Judicial Registrar – application by mother to reopen proceedings – consideration of Rice & Asplund and section 65DAAA of the Family Law Act 1975 (Cth) – HELD no significant change of circumstances and not in the best interests of the child to reopen proceedings – application for review dismissed.

FAMILY LAW – Contempt application – Where contravention of financial obligation alleged to be contempt pursuant to section 112AP – Where attempts at personal service not successful – Where amended application and affidavit served by email – Rules as to personal service varied for this case – Application for adjournment refused.

FAMILY LAW – application for adjournment refused – application in a proceeding dismissed

FAMILY LAW – de facto relationship – threshold issue – where respondent seeks a declaration pursuant to s 90RD of the Family Law Act 1975 that a de facto relationship never existed – applicant asserts that a de facto relationship existed – declaration that de facto relationship existed

FAMILY LAW – interim spousal maintenance – respondent husband’s financial circumstances opaque – parties assets in chaos – whether Hall & Hall inference is able to be drawn – what are reasonable needs – party may need to borrow to fund maintenance order – whether order should be from date of application – when payment “clock” starts – order to operate from after delivery of reasons

FAMILY LAW – PARENTING – international “relocation” – mother seeks to return to live in Country B with parties’ child (aged 5) – child lived predominantly in Country B until September 2023 – father seeks child remain living in Australia and continue spending time with him on alternate weekends (Friday to Monday) and on one afternoon in intervening weeks – evaluation of competing proposals – order made for child to live with the mother in Country B and to spend time with the father as proposed by the mother, in Australia twice each year and in Country B twice each year – child’s return to Country B not to be deferred as sought by the father in the alternative – mother to have sole decision-making responsibility for education and health issues – parties to have joint decision-making responsibility for all other major long-term issues – other orders agreed by parties found to be in child’s best interests.

FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking - where the applicant father and his legal representative sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – where the mother opposed such release – where the father seeks to use a Single Expert report prepared for the purpose of these proceedings in aid of his defence in criminal proceedings where he is facing serious criminal charges – where no evidence as to putting the Expert on notice for the application for leave is provided – where the father has not established how an untested hearsay opinion would contribute to achieving justice – where the father has not engaged in any meaningful manner with the best interests of the children, both of whom were interviewed for the purposes of the report – where the is no evidence as to how the report’s release may impact the children – where the Court is not satisfied that special circumstances exist – Application dismissed.

FAMILY LAW – LEGAL PRACTITIONERS – duties of solicitors – solicitor appearing as agent tendered a list and summary of authorities which are acknowledged by the solicitor not to exist – list and summary generated using software relying on artificial intelligence (AI) – accuracy of the document produced was not verified by the solicitor – unconditional apology offered by the solicitor for what is acknowledged to be a breach of the professional standards expected of a solicitor in this court –  referral made to the Office of the Victorian Legal Services Board and Commissioner, being the statutory body and officer responsible for the maintenance of professional standards of solicitors in Victoria – decision for referral not intended to be punitive – responsible use of AI tools in litigation an issue of public interest.

FAMILY LAW - threshold hearing - determine whether or not parties lived in a de facto relationship

FAMILY LAW – PROPERTY – Enforcement – Orders made.

FAMILY LAW – Application for enforcement – distinction between substantive and machinery orders – where final orders comprehensive and deal with different contingencies to fund settlement sum – where limited orders made by way of enforcement

FAMILY LAW – PROCEDURE – notices of objections dismissed – raising claim for forensic purpose and claim of legal professional privilege

FAMILY LAW – property proceedings – long marriage – value of property – conflicting expert evidence – assessment of wife’s “wastage” argument – arguments regarding wastage related to transactions during the relationship – assessment of wife’s ‘Kennon claim’ – where Court dismisses the wife’s “wastage” argument – where Court dismisses the wife’s ‘Kennon claim’ - where Court finds it just and equitable for Wife to receive 60% of the property pool and Husband 40% .

FAMILY LAW – Interim parenting – Proposed orders by consent – Whether proposed order in conflict with Family Violence Orders – Whether orders in best interests of children – Potential problem with “siloisation” of information – All authorities to be provided with prior reports.

FAMILY LAW – PARENTING – Property matters settled by consent during trial – High conflict relationship – Significant history of family violence – Children rejecting Father – Extensive family therapy ineffective – Whether children reacting to own lived experience – Consideration of how to interpret video recordings – Father seeks change of residence – Eldest child self-harming at suggestion of time with Father – Further efforts to repair children’s relationship with Father unlikely to succeed, likely to be distressing to children – Forced change of residence unlikely to succeed, likely to be distressing to children – Importance of finality – No time between children and Father – Children live with Mother – Cards, gifts and letters

FAMILY LAW – EVIDENCE – CONTRAVENTION – admissibility of evidence – whether videos can be accepted into evidence – whether recordings of the father were illegally obtained – where the recordings reasonably necessary to protect the children’s lawful interest – if the recordings were illegal can they still be admitted in the Court’s discretion

FAMILY LAW – Parenting – two children aged 7 and 4 – where the father is currently incarcerated and will be eligible for parole in 2029 – where the father pleaded guilty to a serious offence against the oldest child – where the father seeks parenting orders to resume a relationship with the children – where the mother seeks a decree pursuant to s 102QAB of the Family Law Act 1975 (Cth) – consideration of the welfare of the children’s primary carer – whether there is a real issue of fact or law to be determined – family violence – assessment of harm – harmful proceedings order made – application dismissed