Judgments

FAMILY LAW – Parenting – Final Order made on 31 May 2021 – father’s application pursuant to s 65DAAA to re-open parenting matters – decision made under the rule Rice v Asplund in 2023 on same evidence – opposed by the mother – father required to undertake hair follicle drug testing - no evidence that the medicinal cannabis does or does not impact his capacity to parent – no independent expert evidence to differentiate between prescribed cannabis and illicit drug use – father’s Application dismissed   FAMILY LAW – Harmful Proceedings Order – the mother seeks that father be restrained from filing further proceedings without the leave of the court – second attempt to re-open child matters - the father has also filed Contravention proceedings and multiple Applications in a proceedings since the final order was made, the father has also filed proceedings in the State jurisdiction and a Human Rights claim alleging discrimination by the mother and the court –mother gives evidence of mental distress and financial harm - application granted 

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the father seeks an adjournment – Where the mother and Independent Children’s Lawyer oppose the adjournment – Where the reason for the adjournment is unmeritorious – Consideration of the overarching purpose – Where there is no entitlement to an adjournment – Waste of Court resources if adjournments are granted without cogent reasons – Oral application for adjournment dismissed. 

FAMILY LAW – PARENTING – relocation – reconsideration of a final parenting order made in 2019 where the mother seeks to relocate with the child where the father opposes the relocation and proposes the child live with the parties on a week about basis – where the co parenting relationship is characterised by significant, multifaceted and sustained conflict – consideration of the extent of the conflict between the parents and the impact on the child – consideration of whether it is in the child’s best interests to remain in City B or relocate to City C – consideration of parental responsibility – orders made permitting the mother to relocate with the child 

 FAMILY LAW – Property – where the matter was listed for final hearing for three days – where after discussion with counsel, it was submitted that this matter could be a five or six day matter – where there was as issue of waiver from professional legal privilege with respondents previous solicitor – where there was a single expert witness appointed to undertake a valuation of the parties business –  where the respondent seeks to admit further evidence of an adversarial witness of another valuation of the parties business – where there is discrepancy between both valuations – where the court ordered for both parties objections to be sent to chambers – where counsel was directed to email their revised objections and their response to these objections to chambers.

FAMILY LAW – DIVORCE – clearly inappropriate forum – application for divorce filed by the wife in Australia – where civil and criminal proceedings are ongoing in Country B – where the husband’s application to stay Australian proceedings is dismissed – where the wife’s application for divorce is granted 

FAMILY LAW – PRACTICE AND PROCEDURE – Application to be released from the Harman undertaking – Where the applicant is defending serious criminal charges in the District Court – Where the applicant seeks the release of documents filed in these proceedings for use in the criminal proceedings – Where the Court is satisfied that special circumstances exist which would justify release from the implied undertaking – Order. 

 FAMILY LAW – PARENTING – child abuse and neglect – child left alone for lengthy periods of time at 2 years of age – criminal conviction – no time order sought – child abuse and neglect substantiated – past allegations of abuse proven – supervised time considerations – whether orders can ameliorate risk of harm to child – risk of harm to child balanced against long-term risks of severing maternal relationship 

FAMILY LAW – Parenting -  Where final parenting orders were made on 7 April 2022 for children to live in equal time arrangement and for parents to have joint decision making – Where Mother filed an application to reconsider parenting orders 18 months later – Where Father opposes change to orders – Where family report does not recommend a change to care arrangements under current parenting orders – Where section 65DAAA applies – where there has been no significant change in circumstances 

FAMILY LAW – PARENTING – dispute in relation to parenting responsibility and care arrangements for two children aged (9 and 13) – parties each allege the other has perpetrated family violence – father alleges mother has abused the children – competing allegations of risk – assessment of risk – finding children would be exposed to an unacceptable risk of psychological or emotional harm in the care of the father and not in the care of the mother – orders for mother to have sole parental responsibility and for children to live with her and spend limited time with the father, professionally supervised each calendar month – orders permitting the mother to travel internationally with the children –  injunctions made (unopposed) pursuant to section 114(3) restraining the father from contacting the independent children’s lawyer, her counsel and family members, attending at her office or publishing material about the independent children’s lawyer and her family online 

FAMILY LAW – PROPERTY – adjustment to the wife for greater contributions and in accordance with the principles in Kennon – further adjustment to the wife for s.75(2) factors – referral of husband to the Commonwealth DPP for consideration of investigation of potential fraud against the Commonwealth.   

FAMILY LAW – interim parenting decision -  one child aged 3 - whether the interim consent orders made on 2 April 2024 providing for the child to spend time with the father at a supervised contact centre should be discharged – whether the child should spend unsupervised time with the father progressing to one overnight each alternate weekend – whether amendments should be made to the father’s current alcohol and drug testing regime – where the court orders that the father’s time be increased but remain supervised – where the court declines to vary interim orders in place with respect to drug and alcohol testing for the father. 

FAMILY LAW – PARENTING – application for final parenting orders – children aged 12 and 9 – mother diagnosed with a mental illness – where father critical and doubtful of mother’s ability to care for children – consideration of best interests of the children under section 60CC of the Family Law Act 1975 (Cth) – consideration of risk – final parenting orders made 

FAMILY LAW – appointment and removal of litigation guardian – where proposed litigation guardian is a manager of the affairs of the husband pursuant to rule 3.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – consideration of whether litigation guardian holds interests adverse to the husband – consideration of Thorn & Thorn [2017] FamCA 950 –where the litigation guardian is a director of and shareholder in various entities that form part of the asset pool – where litigation guardian may be called as a witness at the final hearing – finding that the litigation guardian unable to satisfy r 3.14(b) of the Rules – orders for transfer to Division 1 and the Brisbane registry by consent  

 FAMILY LAW – PARENTING – where the parties have been involved in litigation for much of the subject child’s life – where the mother seeks the child have time with the father on three occasions per year and the father ultimately seeks an equal time arrangement – where the child has steadfastly refused to spend time with the father – where the mother alleges the child is fearful of the father and the father alleges the mother is unable to facilitate a relationship – where it is found that the father has assaulted the child and supervised visits have been troubling – where the parties positions are extremely polarised – where the single expert engaged in a fact finding exercise contrary to his role – where there are significant limitations to the single expert’s report – where significant weight is not placed on the single expert’s ultimate opinion that the child should be forced to spend time with the father on the threat that if he does not comply he will be moved to live with the father – where it is found the father’s capacity for emotional dysregulation places the child at risk and cumulatively the father’s capacities place the child at significant risk of harm – where such risk is ameliorated by the child spending supervised time with the father as sought by the mother – where the Independent Children’s Lawyer’s  proposal that the mother determine how and when such time occurs is rejected.   

FAMILY LAW – Parenting proceedings - best interests of child – two children aged 4 and 6 - where the Father resides in Queensland and the Mother resides in Sydney – where the Mother seeks a gradual increase in the Father’s time commencing as supervised and moving to unsupervised – where the Mother seeks orders for her to travel with the Children – where the Mother’s allegations of drug abuse against the Father are unsubstantiated - where the Father seeks his time be unsupervised – where the Father seeks orders permitting both parents to travel with the Children - where the Court orders the Father’s time be unsupervised – where the Court orders both parents be permitted to travel with the Children. 

FAMILY LAW – PARENTING – SPEND TIME ARRANGEMENTS – Applicant father seeks order that the three-year-old child spend supervised time with him – Child has spent limited time with father since parental separation three years – Consideration of matters under Part VII Family Law Act 1975 (Cth) – Consideration of the safety of the child and mother –Where father has perpetrated family violence –Where father has conviction for drug offences – Where father has not accepted full responsibility for his harmful conduct – Where father has not taken action to change his pattern of harmful behaviour – Whether there is a benefit to the child of being able to have a relationship with both parents – Consideration of what arrangements will promote the safety of the child – Where supervision of the child’s time with the father will ameliorate identified risks – Whether order for supervised time will promote the child’s safety and meet the child’s developmental, psychological, emotional and cultural needs – Whether mother’s capacity to provide for the child’s needs is preserved if there is an order for supervised time for the child with the father – Where an order for supervised time for the child is in the best interests of the child-Where order for supervised time will meet the child’s psychological and cultural needs – Where order for supervised time will not expose the child or the mother to an unacceptable risk of family violence – Order for supervised time for child with father six times each year – ALLOCATION OF DECISION MAKING – Where it is in the best interests of the child for the mother to have sole decision-making for all major long-term issues relating to the child-RESTRAINTS-COSTS – Independent Children’s Lawyer seeks an order that father pay a proportion of the costs of the Independent Children’s Lawyer – order for costs will create hardship for father – application refused  

 FAMILY LAW – parenting – final orders – parental responsibility – live with arrangements – mother’s allegations of coercion or control by father – what constitutes coercion or control – findings that father’s behaviour did not amount to coercion or control – not necessary to make definitive findings in respect allegations of sexual assault – order for joint parental responsibility on conditions – order for significant and substantial time progressing to equal shared care  

FAMILY LAW – review application – interim parenting proceedings – where the father alleges that the mother’s new partner is a risk to the children – assessment of risk in interim parenting proceedings – cautious approach – order restraining the mother from leaving the children alone in the presence of her new partner  

FAMILY LAW – Jurisdiction – overseas parenting order registered in Australia – application by mother for this Court to exercise jurisdiction and make a parenting order – application of s.70J of the Family Law Act 1975 – consideration of first step, s.70J(1); whether the Court is satisfied that there are substantial grounds for believing that the child’s welfare requires that this Court exercise its jurisdiction – Court being satisfied – jurisdiction enlivened – insufficient evidence before the Court for consideration of second step, s.70J(2) – matter adjourned for case management.

FAMILY LAW – Parenting – registration of overseas child orders – child orders made in State B, USA – requirements of s.70G of the Family Law Act 1975 and reg.23 of the Family Law Regulations 1984 – discretion as to registration – application granted – orders registered.

FAMILY LAW – review application – interim parenting proceedings – where the father alleges that the mother’s new partner is a risk to the children – assessment of risk in interim parenting proceedings – order restraining the mother from leaving the children alone in the presence of her new partner for more than 3 hours  

FAMILY LAW - Property – Application to consolidate proceedings - where Wife seeks consolidation of the Family Law Act proceeding with Fair Work Act proceedings – where Husband commenced Family Law Act proceedings for property settlement first – where Wife claims similarity of factual dispute and increased legal costs of two actions requires the proceedings to be consolidated – where there is no power to consolidate the two proceedings – Application to consolidate dismissed – Husband’s costs reserved to trial 

FAMILY LAW – PROPERTY – Application for interim sale of property – application dismissed. 

FAMILY LAW – PRACTICE AND PROCEDURE – adjournment application made where Mother failed to attend Court while under cross-examination – application refused  

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

FAMILY LAW – PARENTING – where the biological father of the child is not known to the child – where the mother had an extramarital affair with the biological father for many years – history of abuse alleged by the mother during her relationship with the biological father – whether there is an unacceptable risk of harm to the child in being told about her biology and being introduced to the biological father at this stage of her life – biological father found to have engaged in family violence against the mother – finding that there is an unacceptable risk of harm to the child – orders that the biological father spend no time and have no communication with the child 

FAMILY LAW – PRACTICE AND PROCEDURE – application in a proceeding – application to reopen evidence of final hearing – application dismissed.  

FAMILY LAW – Parenting – final orders – child live with mother – mother have sole decision making relating to health and education – father spend each alternate Saturday with child – further time between father and child including overnight time as agreed between parties – where the father changes his position during proceedings – father to enrol in a parenting program 

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 – PROPERTY – Interim hearing – partial property settlement – spousal maintenance – sale of property – orders made, inter alia, for partial property settlement and spousal maintenance.

FAMILY LAW –  recovery order arising from after hours service – subsequent attempt to comply with order for return of child made before recovery order – subsequent order that recovery order “lie in the registry” – subsequent advise child returned – recovery order vacated

FAMILY LAW – PARENTING – Where the subject child is 7 years of age – Where the child has spent supervised time with the father for a period of two years – Where both parties have unilaterally taken the child overseas post separation - Where there are significant allegations of family violence perpetrated against the mother and the child by the father –Where the mother seeks orders that the child spend no time with the father - Where the father alleges that the mother’s partner has sexually abused the child – Where despite the father’s allegations of sexual abuse perpetrated by the mother’s new partner he seeks that the child live with the parties on an equal shared care arrangement – Where the Father alleges the mother has fabricated allegations to alienate the child from him - Where the father relies on the mother allowing unsupervised time between him and the child post separation as the basis of the orders sought by him – Findings made that the father perpetrated family violence including coercive and controlling behaviours upon the mother and the child – Finding made that the father cannot positively support a relationship between the child and the mother – Finding that the parties’ parenting relationship is reflective of a dynamic arising from the father’s controlling family violence - Finding that the family violence perpetrated by the father is a contradiction to an order for equal shared parental responsibility - Finding that the culmination of risks posed by the father cannot be sufficiently ameliorated by supervision or otherwise – Orders made that the child spend no time with the father.  

FAMILY LAW – CONTRAVENTION – Costs – Parenting – Where it was alleged the father contravened by overholding the child following periods of time spending – Where the father admitted the breaches at the commencement of Trial but maintained he had a reasonable excuse – Where after giving evidence at Trial, the father plead guilty to each count without reasonable excuse – Father to enter into a Bond – Orders for costs. 

FAMILY LAW – Harman and/or implied obligation – are special circumstances required the documents in another court – whether special circumstances in this application – very late application – whether costs should be ordered – special circumstances found – applicant released from implied obligation

FAMILY LAW – PARENTING – interim application after matter not reached – stood over till final hearing date

FAMILY LAW – Parenting – two male children aged 11 and 9 – second round of parenting proceedings – where the parties consented to final orders in December 2018 – where the parties had difficulty implementing the final orders – where the parties’ communication was unproductive – where the two boys where being dragged into the conflict by both parents – where the relationship between the father and the children began to break down in part due to disclosures of physical abuse in the father’s care by the children – where the children became resistant to spending time and communicating with the father – where the children are now estranged from the father and fearful of him – where the Court considers there would be an emotional or psychological risk to the children if they were required to spend time with the father – best interests of the children.

FAIR WORK – general protections application lodged one day after proscribed time – where short delay due to representative error - no particular prejudice to the respondent - at least the basis of a claim articulated – extension of time granted

MIGRATION – Protection (Class XA) (subclass 866) visa – Refugee Review Tribunal – Application for Extension of Time – Delay of 5,184 days – No arguable jurisdictional error on proposed grounds – Extension of Time refused – Application for judicial review dismissed with costs

MIGRATION – Protection (subclass 866) visa – Application for review of Registrar’s dismissal of reinstatement application – Extension of time sought – Consideration of length of time and reasons for delay in filing review application – Consideration of reinstatement application –  Reasons for non-attendance at court leading to dismissal of substantive application wholly inadequate – evidence of applicant unreliable – Substantive application raised no arguable grounds – Extension of time refused  – Application for review dismissed with costs

MIGRATION – protection visa – application for review of a summary dismissal decision made by a Registrar – where an application for review of the delegate’s decision was lodged out of time and therefore Tribunal lacked jurisdiction – no jurisdictional error identified - application cannot succeed and is dismissed with costs

BANKRUPTCY – VESTING ORDER AS TO DISCLAIMED PROPERTY – Where a bankrupt was the registered proprietor of Torrens system land – Where the Trustee disclaimed the property – Where the State of Victoria sought a vesting order – Where the Court considered it was just and equitable for the vesting of the property in the State of Victoria – Orders made

CONSTITUTION – Exercise of delegated power by Registrar – nature of de novo review

MIGRATION – Registrar’s decision affirmed and review dismissed as no arguable case for extension of time

MIGRATION – Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether wrong legal test applied – Correct criteria applied – Whether unreasonable finding of effective state protection – Finding of effective state protection open on country information - Decision not legally unreasonable – No jurisdictional error found – Application for judicial review dismissed – Costs ordered.

MIGRATION – Extension of time in which to commence s 476 Migration Act review – foreshadowed challenge to rationally based credit findings of the Tribunal cannot succeed – not in the interests of justice to extend time – application to do so dismissed

BANKRUPTCY – Interlocutory Application – Application to set aside sequestration order – Application to recuse – Procedural fairness – Actual or apprehended bias – Application dismissed  

FAIR WORK – alleged breach of contract – alleged underpayments and unlawful deductions in contravention of the Fair Work Act 2009 (Cth) with cross claim to rectify alleged overpayment – where the Applicant’s remuneration was reduced following the First Respondent’s loss of a significant contract and, subsequently, unilateral deductions were made.

GENERAL PROTECTIONS – various adverse actions including dismissal taken in alleged contravention of s.340 of the Act – where Applicant had complained about remuneration and was summarily dismissed for alleged serious misconduct in respect of communications with clients. 

BANKRUPTCY – Interlocutory Application – Ex tempore judgment – Application dismissed

MIGRATION – Decision of Administrative Appeals Tribunal – protection visa – where three Tribunal hearings held – whether failure by Tribunal to consider or engage with relevant evidence – jurisdictional error established – writs issued

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA’s decision was legally unreasonable –whether the IAA failed to consider relevant considerations or claims – application dismissed

MIGRATION – application for an extension of time – decision made by the Immigration Assessment Authority – protection visa – whether the underlying application for judicial review has merit – whether the Authority’s decision was unreasonable – underlying application has limited prospects of success – extension of time refused.