Judgments

FAMILY LAW – application for interim parenting orders – where interim parenting orders previously made following contested hearing – where mother asserts 18 month old child having difficulties with drinking, feeding and sleeping – where mother asserts 7 and 8 year old children are struggling to cope with time spent away from mother – where father seeking to further progress spend time with children – where father seeking to align changeover time for children.

FAMILY LAW - NULLITY OF MARRIAGE – Application for a decree of nullity of marriage – Where the applicant contends that the respondent was lawfully married to another person at the time of marriage – Where the applicant contends that the divorce was not recognised in the respondent’s country of birth at the time of re-marriage – Overseas decree – Application dismissed

FAMILY LAW – PARENTING – Best interests of the child.

FAMILY LAW – PRACTICE AND PROCEDURE –inaccurate list of legal authorities tendered by practitioner (solicitor appearing as agent) at an enforcement hearing – list of authorities generated by a legal software package which uses artificial intelligence – practitioner afforded an opportunity make submissions as to why conduct in tendering the list of authorities should not be referred to the Victorian Legal Services Board and Commissioner.

FAMILY LAW – Parenting – interim hearing – mother seeks recovery of child – child aged two – father alleges child is at risk in mother’s care – child to be returned to mother – child to spend time with father four nights a fortnight – child impact report ordered.

FAMILY LAW – Property – Warrant for possession of property issued – Emails stand as application and responses – Not disputed that respondent has not vacated subject property – Interests of justice provide that a warrant for possession should be issued – Orders mean what they say.

FAMILY LAW – COSTS – multiple offers made by the Father during the course of the protracted litigation – Mother made two counter-offers – consideration of principles regarding costs especially where there are offers of settlement – the Father’s penultimate offer of settlement regarding costs was one-sixth his ultimate costs – Full Court authority that refers to rejection of offers where doing so is more than just unwise but actually “imprudent” – Father sought as his primary position indemnity costs against the Mother – indemnity costs Application refused but a limited costs Order in keeping with the “generous” costs offer made by the Father in November 2023 made – payment of costs by the Mother to be made in six months.

FAMILY LAW – REVIEW – Application brought by the father to review a senior judicial registrar’s decision – Hearing de novo – Where the father filed a Notice of Discontinuance and the senior judicial registrar made orders as sought by the mother and awarded costs in the mother’s favour – Where the mother seeks costs pursuant to s 117 of the Family Law Act 1975 (Cth) of the father’s Application for Review on an indemnity basis – Father’s Application for Review is dismissed – Father to pay the mother’s costs in a fixed sum.

FAMILY LAW – PARENTING – relocation Sydney to the City B area – nearly 3 year old child – no risk issues – both parents have loving relationship with child and able to meet child’s needs – parents agree on shared care in event there is no relocation – mother’s family have moved to City B – mother has mental health issues – mother’s treating psychologist unavailable to give evidence – mother seeks family support – financial and accommodation benefits of moving to City B – opportunities to pursue tertiary education in City B – father’s ability to move – relocation not permitted

FAMILY LAW – Parenting – four children aged 17, 16, 14 and 12 – final parenting orders made in November 2021 – mother and independent children’s lawyer seeking that the younger two children spend no time with the father – father seeking that the 12 year old spend alternate weekends and the 14 year old spend week about with mother – multiple periods of the father withholding the children – spend time with father suspended at last interim hearing – significant age difference between parties at commencement of relationship – mother alleging coercive control from commencement of relationship – father was in a position of authority at the parties’ church – allegations that father used religion to exert control over the mother during the relationship – coercive control findings – father criticising mother’s lifestyle and minimising her relationship with children – parental capacity – father failing to act in the children’s best interests – conduct driven by wish to exert control rather than needs of the children – sibling relationship – delay in medical assessment and treatment – child with ASD being bullied at current school and engaging in self-harming – dispute as to school – parental alignment – children’s views coloured by attempts to appease the father – held – parties to make joint decisions with respect to eldest two children – eldest children to spend time with each parent according to their wishes – mother have sole decision making with respect to youngest two children – youngest two children to live with the mother and spend no time with the father.

FAMILY LAW – de-facto property – asset pool in dispute – admissibility of medical records – admissibility of redbook valuation – admissibility of parties’ own estimate of value in financial statement – initial contributions – springboard – inheritance – post-separation care of children – impact on earning capacity of care of children

FAMILY LAW – Property proceedings – seven year de facto relationship – mature aged couple – where the parties lived in the property owned by the respondent – where the parties did not acquire any joint assets or liabilities during their relationship – where the applicant seeks a cash settlement equal to 30% of the value of the net equity in the property – where the respondent seeks that the applicant’s application for a property settlement be dismissed – where the Court considers it would not be just and equitable to make an order altering the parties’ respective property interests – application dismissed – just and equitable outcome.

FAMILY LAW – sensible hearing on the papers without appearances – leave to proceed pursuant to s 44(6) – sufficient likelihood of success to prove hardship – incomplete explanation for delay – 4 months outside of 2 year standard period - caveat lodged at start of standard 2 year period - financial disclosure agitated from 12 days after expiry of standard two year - prejudice to respondent considered-modest pool of assets-leave granted.

FAMILY LAW – parenting – discrete issue for Court to determine – whether children live with father or mother – parents living in different states – family violence and illicit substance allegations against father by mother – mother’s history of ill-health – need for stability and avoidance of untested long-term care with the mother in a new environment – no risk of unacceptable harm if children remain living with the father – order made for children to live with father – alternate order made for equal time and live with if mother relocates to Tasmania

FAMILY LAW – application under s.44(6) of the Family Law Act 1975 to bring a de facto property proceeding out of time – applicant being held in remand – hardship – exercise of discretion.

FAMILY LAW– Application in a Proceeding – payment of legal fees costs from trust account

FAMILY LAW – INJUNCTIONS – Where Husband has failed to attend court and comply with Orders – ex parte Anton Piller order made to enable search of premises and seizure of cash and financial documents – Appointment of independent solicitor – Undertakings as to damages given by Wife – Restraints on conduct of Husband towards Wife – Suppression of orders

FAMILY LAW – PROPERTY – Where it is alleged that the Husband improperly removed funds from the parties’ self-managed superannuation fund – where there is a consequential dispute as to finalisation of the accounts of the fund

FAMILY LAW – PARENTING – allegations of emotional manipulation of children and ‘pathogenic parenting’ by Mother – where Mother found not to pose an unacceptable risk to children  FAMILY LAW – PARENTING – unacceptable risk – where the Father conducted himself throughout the proceedings in a manner which was abusive, threatening and intimidating towards the Mother, the Mother’s legal representatives, the Independent Children’s Lawyer and the Court – where the Father subjected the Mother to coercive and controlling violence – where the Father refused to comply with an order for a psychiatric assessment – where the Father poses an unacceptable risk to the children – no time or communication ordered between Father and children  FAMILY LAW – PARENTING – application by paternal grandparents – where children refused to spend time with grandparents at contact centre – where grandparents declined to pursue reunification therapy – where there is a risk that time with grandparents would result in exposure to Father – where paternal grandparents found to be unlikely to shield children from hostility towards Mother – no time or communication ordered between paternal grandparents and children  FAMILY LAW – PRACTICE AND PROCEDURE - Where an order made pursuant to section 102NA of the Family Law Act 1975 (Cth) applies and the Father refused to avail himself of legal representation through the Family Violence and Cross-Examination of Parties Scheme – where Mother’s evidence is largely unchallenged and is accepted

FAMILY LAW – PROPERTY – Final hearing – Where the parties’ two adult daughters have joined as the Second and Third respondents – Marriage of 27 years – Where the First Respondent husband’s case is ad idem with the Second and Third Respondent daughters – Where the parties had various family business ventures and arrangements in which the wife was not a named partner or director – Comingling of familial finances – Equitable interests – Where the wife asserts that she has a beneficial interest in the real properties – Limitations as to the evidence made available at Trial – Consideration of the existence of equitable interests – Consideration of add backs – Assessment of contributions and future needs – Where it is not just and equitable to include the real properties owned by the Second and Third Respondent daughters in the net asset pool – Orders for the sale of property – 55 per centum division in favour of the wife subject to the add back of the wife’s superannuation amount – Justice and equity.

FAMILY LAW – parenting – interim orders – whether children should continue to have overnight time with their father – father’s alcohol use – father’s mental health.

FAMILY LAW – costs application – whether section 102NA scheme is “legal aid” – whether unintended consequence of section 102NA scheme – order for proportion of scale costs to be paid by Wife to Husband – where Wife was unsuccessful in several claims – where Wife had rejected offers in writing which “beat” the amount she received at trial – order for scale costs to be paid by Wife to Second and Third Respondents – where Wife was wholly unsuccessful in her claim against Second and Third Respondents – orders for costs are by way of compensation, not punishment.

FAMILY LAW – Parenting – three children, aged 14 and twins aged ten – mother’s application to relocate the children from Melbourne to regional Queensland – father’s primary application for the children to remain living in Melbourne and gradually transition to a week about arrangement – children currently spending time with father three nights per fortnight – allegations of multiple instances of family violence perpetrated against the mother and the children – blanket denials made by father – findings made – mother diagnosed with PTSD – expert evidence given by each party’s psychologist and the mother’s psychiatrist – mother experiencing emotional and physical dysregulation when required to communicate with the father – father lacking insight and minimising the impact of his behaviours – one child experiencing behavioural problems – one child experiencing learning difficulties – children having a loving relationship with both parents – mother having purchased property in Queensland to establish a business with her new partner – mother’s proposal for children to spend time with the father almost monthly in Melbourne, at her cost – significant delays in neuropsychological assessment of a child due to parental disagreement – held – relocation permitted – spend time with the father in accordance with his proposed secondary position – the mother make sole decisions with respect medical assessment and treatment – the parties to otherwise make joint decisions.

FAMILY LAW – parenting – children aged 8 and 6 years old – father failing to comply with court orders – father breaching an interim intervention order – father’s family violence being at the lower end of the spectrum – father being associated with the B Organisation – father accusing court of gender bias – father pretending to transition to being female – father lodging complaints about police, the mother’s solicitor, the independent children’s lawyer, registrars of this court and the psychiatrist, Dr C – father threatening to name and shame people involved in this case in a documentary he plans to make – father sending abusive emails to practitioners involved in this case – father sending text message to his 21 year old daughter saying she is “disgusting” – father telling his 25 year old daughter in a text message that she is an “evil” person – father declining to attend supervised visits with his children – father being in arrears of child support – supervision report showing children had a positive time with their father – the psychiatrist, Dr E, describing the father as venomous and lacking empathy – whether there should be equal or sole parental responsibility – whether the children should spend equal time with their father, no time, or two hours per month supervised –  whether orders should be made requiring the annulment of the children’s US citizenship – whether the children’s passports should be retained in the registry

FAMILY LAW – PARENTING – Best interests of child.  FAMILY LAW – PROPERTY – Resulting trust – constructive trust – express trust – trust contentions not made out – just and equitable division of property.

FAMILY LAW – Parenting – two children, aged 15 and 13 – where the co-parenting relationship has been highly conflictual – where the children’s medical needs have been a large portion of the conflict – where each parent seeks sole parental responsibility – where the Court considers the mother should have sole parental responsibility and with the father to provide his input before the mother makes a decision – where the Court considers an equal time, week-about arrangement would be in the best interests of the children – best interests outcome.

FAMILY LAW – property proceedings – wife’s application in a proceeding – enforcement of previous orders – where husband provided undertaking to comply with orders –  husband’s non-compliance

FAMILY LAW – PARENTING – long history of litigation between parties – expert psychologist described the contest between the parties as one of the highest levels of conflict he has seen and, in turn, the flow-on effects for the two children as one of the worst – findings by the Court against the Father of ongoing, relentless coercive and controlling behaviour – clear power imbalance between the parties due to age and current and former workplace positions – clear stalking behaviour by the Father including rummaging through the Mother’s re-cycle bins looking for “evidence” together with threats of more action against her in the future – Mother’s older estranged daughter from an earlier relationship weaponised against the Mother by the Father – police used in a form of harassment of the Mother in doing regular welfare checks one of which resulted in the Mother being charged with assault in relation to one of the children, and incarcerated overnight, yet these charges were later either not pressed or dismissed following findings adverse to the Father – Father made complaints to the Mother’s workplace that resulted in investigations against her but without any adverse findings – Mother and children in need of protection and “safe haven” from the Father’s relentless pursuit of them, including by the very regular filing of Applications in this Court – best interests and protective considerations require the children to live with their Mother who shall have sole parental responsibility and spend no time with the Father.

FAMILY LAW – contravention – alleged contravention by failure to transfer title to investment property as required by final consent orders – transferee entitled to property not willing to complete transfer unless rental income from date of final orders to date of transfer paid to her – dispute as to obligations created by terms of final orders – contravention not established – application dismissed

FAMILY LAW – parenting – final orders – parental responsibility – conflictual relations and exposure of child to same – previous order for equal shared parental responsibility agreed not to be workable and no longer in child’s best interests – order for mother to have sole parental responsibility – live with arrangements – equal shared care – not persuaded it is necessary or in best interests of the child to vary live with orders

FAMILY LAW – costs certificates – where Court has had previous involvement with one party but this was not realised until part way through cross-examination – where it is not appropriate for Court to continue hearing the matter – where the familiarity would not have been realised in the usual conflict checks

FAMILY LAW – PRACTICE AND PROCEDURE – Costs.

FAMILY LAW – property – application for section 102NA order – both parties allege family violence by the other – fourth branch of third limb of section 102NA satisfied – trial adjourned to allow parties to apply to section 102NA scheme.

FAMILY LAW – PROPERTY – Movement of moneys through businesses and trust accounts – Intermingling of business, trust, and personal moneys – Non disclosure by parties – Unexplained discrepancies in evidence – Jones v Dunkel inference – Adjustment for future needs – Just and equitable

FAMILY LAW – PARENTING – limited issues concerning parental responsibility and “time-with” arrangements – Applicant Father’s focus notably on his time with his daughters rather than on their time with him – Father’s constant contests with health care specialists for the children – sole parental responsibility for health and education issues in the Mother’s favour – regular but slightly limited time between the children and the Father.

FAMILY LAW – practice and procedure –- mother seeking to be relieved of her Harman undertaking – mother seeks various documents to be made available in the criminal proceedings between the mother and the child – mother facing multiple criminal charges and possible jail sentence – father opposes release of expert reports – Independent Children’s Lawyer opposes release of subpoenaed material – child’s right to privacy – child is the complainant in the criminal proceedings

FAMILY LAW – COSTS – Application for the Respondents to pay the Applicants’ costs of an Application for Review - where the Application for Review was wholly unsuccessful – where reasons for the SJR’s judgment were reserved and never delivered – where it is submitted that receiving reasons may have discharged the need for a Review and may have assisted the parties in reaching further agreement – where exercising a delegated judicial function carries with it an obligation to act judicially and provide reasons - where SJR failed to act in accordance with the delegated judicial function – where costs sought by the applicants are not sufficiently particularised – orders made for the respondents to pay a proportion of the applicants’ costs as assessed at scale

FAMILY LAW – PARENTNG – Rice v Asplund – as now codified in the Family Law Act 1975 (Cth) s 65DAAA – final orders in August 2022 – father having no time with children – significant mental health issues – drug use – family violence – father’s failure to obtain treatment – lack of insight – father’s regular attendance upon two psychologists and a psychiatrist – completion of lengthy Men’s Behavioural Change Program and provision of multiple clean hair follicle tests – demonstration of insight – significant change of circumstances – best interests of children for final orders to be reconsidered

FAMILY LAW – REVIEW – whether a bank account controlled by the Husband should be subject to an injunction – whether there is a risk that the Husband will dissipate the funds in the account and jeopardise the Wife’s claim at trial.

FAMILY LAW – Parenting – Declaration of parentage – Child support – Where Mother seeks leave to file application for assessment of child support out of time – Whether to proceed ex parte – Where Father has not participated in the proceedings – Pre-action procedures do not apply

FAMILY LAW – PARENTING – Change of name – where mother seeks her surname be hyphenated and included in the child’s surname – international travel to non-Hague Convention countries – international travel to Hague Convention countries – orders made.

FAMILY LAW - PRACTICE & PROCEDURE – supplementary reasons regarding whether to re-open or not to re-open (that is the question) – arithmetical errors in Husband’s balance sheet used by the Court in judgment but which were not brought to Court’s attention until later Directions Hearing post-judgment – judgment not “perfected” – considerations regarding use of “slip-rule” compared to re-opening – evidence re-opened on Court’s own motion to correct inadvertent error and to admit evidence of which the Court was unaware at the time of preparing judgment – parties provided written submissions regarding re-opening – later agreed balance sheets from each party admitted into evidence – no need to re-visit or re-consider findings by the Court on the evidence at trial.

FAMILY LAW – PARENTING – Application for Review filed by the father of interim orders made on a defended basis by a Senior Judicial Registrar for the children’s time with the father be graduated, culminating in unsupervised time – Where the mother is the uncontested resident parent – Where all parties agree that the interim orders as to the children’s time with the father should be varied – Where the father seeks further unsupervised time with the children supported by the ICL and the mother seeks supervised time – Where both parents depose that the relationship was marred by family violence – Where the mother alleges unacceptable risk in the father’s care - Where the father’s contention that a denial of family violence can be corroborated by contemporaneous messages of love and support during the relationship is not accepted - Where a party speaking fondly of their relationship is not indicative of an absence of family violence - Where findings as to family violence can only be determined after the testing of evidence - Where the power dynamic of the parties arising from any such findings will require the assistance of expert evidence - Where the placement of the matter in the Evatt list will ensure that resources are allocated to the matter as a priority, including the allocation of a final hearing – Orders made aligning with mother’s proposal and discharging the orders made for unsupervised time.

FAMILY LAW – Parenting – one child aged 5 years – very short relationship – mother alleges that the father has behaved in a physically and emotionally abusive manner – allegations that the paternal family have also perpetrated family violence – threats to harm mother and child – father says that all allegations are false and that the mother has behaved abusively towards him – father interviewed by police on numerous occasions, no charges laid – extensive Child Protection involvement – extensive intervention order proceedings – Court declaring the mother a vexatious litigant and ordering an extended litigation restraint order – pending criminal proceedings in respect of allegations that the mother assaulted her father’s partner – mother initially being the primary carer – spend time with the father being initially supervised, progressing to unsupervised, and then to overnights – mother withheld the child 10 weeks before the final hearing, resulting in the making and execution of a recovery order – the child’s time with the mother being supervised prior to the hearing – mother having fixed and destructive hostility towards the father and the paternal family – credibility findings in respect of the mother – fabrication of evidence and attempts to mislead the Court – no findings of family violence perpetrated by the father – mother posing an unacceptable risk of emotional and psychological harm to the child – child thriving in the care of the father and his partner – consideration of indefinite supervision order – held – father have sole parental responsibility – live with the father and spend supervised time with the mother four occasions each year.

FAMILY LAW – Parenting – final hearing – care arrangements for the parties one child aged 11 years old – parties separated in 2014 – high conflict co-parenting relationship – deficits in communication – following separation the mother and child spent two years in the UK with the mother’s family – where the child lives with the mother – where the father works two weeks on two weeks off roster – where the child is experiencing reluctance to spend overnight time with the father – how parental responsibility is to be allocated – best interests of the child – emotional needs of the child

FAMILY LAW – Property settlement following undefended hearing – de facto relationship of 12 years – relationship produced two children now aged 19 & 14 – where the respondent is currently incarcerated – where the court is satisfied that the respondent is aware of the proceedings – leave to proceed out of time – parties separated in difficult and uncertain circumstances in 2016/2017 – application commenced in 2023 – explanation for delay – where the court is satisfied the applicant will suffer hardship if unable to proceed with application – waste – considerations of just and equity

FAMILY LAW – PROPERTY – Final hearing – Relationship of over 14 years – Where the parties share care of the two children of the relationship – Whether the Court should approach the property division on a one-pool or a two-pool basis – Dispute as to contributions – Consideration of section 75(2) factors – Where the parties’ joint enterprise in commencing unfinished renovations on the former matrimonial home has resulted in a negative financial contribution to the value of the former matrimonial home – Where the wife seeks for the former matrimonial home be sold and to be sole signatory for its sale – Where the husband opposes the sale and seeks to retain the property – Justice and equity – One pool approach adopted – Orders for a 65/35 per centum division in favour of the wife.

FAMILY LAW – PROPERTY – very short de facto relationship of approximately 2 years – difficulties in assessing contributions based on the limited evidence and especially because the Respondent de facto Husband did not give evidence due to mental health issues and was represented by his litigation guardian – precise arithmetical calculation of contributions to be balanced with considerations of justice and equity – each party to pay their own costs. 

FAMILY LAW – PROPERTY – Assessment of contributions & future needs – Children reside solely with one parent – adverse credit findings – Poorly prepared case. FAMILY LAW – PARENTING – No submissions made at hearing – Orders made in accordance with respondent’s uncontested application

FAMILY LAW – stay application for stay of final parenting and property orders pending appeal –s61DB should not have been repealed - requirements for reconsideration of final parenting orders not satisfied -application for stay refused - costs