Judgments

FAMILY LAW – FINANCIAL – Interim proceedings – Where both parties seek sole use and occupancy of the former matrimonial home – Where the applicant wife seeks further interim orders for lump sum interim spousal maintenance, a partial property settlement and injunctive relief – Where the respondent husband broadly opposes the wife’s application but makes a counter proposal for financial support – Orders for lump sum interim spousal maintenance of $35,000 in favour of the applicant wife – Orders for a partial property settlement of $35,000 in favour of the applicant wife – Orders for the respondent husband to have sole use and occupancy of the former matrimonial home until final orders can be made. 

FAMILY LAW – Parenting – Where final orders already in place – Where mother has unilaterally withheld child against final orders – Where mother has indicated intention not to be involved in proceedings – Decision to proceed undefended – Where father and Independent Children’s Lawyer seek final orders to remain in place – Final orders reinforced – Orders and reasons for judgment to be provided to Child Protection for any future involvement.

FAMILY LAW – PARENTING – Final hearing – Child aged 4 – Where the child is of a mixed cultural background – Relationship of 6 years – Where the mother and child relocated to Adelaide with the consent of the father in 2022 – Where the father relocated to Adelaide during the trial and without notice to the mother – Where the father seeks an equal shared care arrangement – Where the mother and the ICL seek the child spend no time with the father – Where the parties have no capacity to co-parent – Considerations of family violence – Overseas travel – Matters to be considered

FAMILY LAW – COSTS – De Facto property proceedings – Where respondent de facto husband continued to deny allegations of physical family violence until confronted with criminal history – Where respondent refused reasonable offer or compromise – Where respondent’s conduct of the trial increased the costs of the applicant

FAMILY LAW – COSTS – Where relevant factors considered – Where court satisfied that there are circumstances which justify a costs order

FAMILY LAW – COSTS – Applicant seeks indemnity costs – Where settled practice is to order costs on a party and party unless there is an exceptional, unusual or extreme circumstance.

FAMILY LAW – COSTS – Party and party costs – Costs awarded in a fixed amount calculated in accordance with Scale

FAMILY LAW - PROPERTY – alteration of property interests - wife made the greater initial contributions – wife made the greater financial and homemaker contributions during the relationship- greater earning capacity of the wife - both parties have the physical and mental capacity for appropriate gainful employment wife to pay the husband the sum of $115,000 within 90 days – sale of property if default of payment to the husband – just and equitable

FAMILY LAW – Defacto relationship – Threshold issue – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the respondent denies the existence of a defacto relationship – Consideration of the nature of the parties’ 21 year relationship – Where the parties lived together – Where the parties had a non-exclusive sexual relationship – Where the applicant was financially dependent on the respondent – Whether the parties had a mutual commitment to a shared life together – Costs reserved.

FAMILY LAW – Final Parenting Orders made in 2016 after defended  hearing – Father seeks to change final orders where he has previously applied in 2018 and 2020 –Father was found guilty of contravention of orders in 2024 – Section 65DAAA applied - No significant change of circumstances found - Final Parenting Orders in best interests of child – where Mother seeks declaration that Father is vexatious litigant pursuant to section102Q – declaration made

FAMILY LAW – PROPERTY – no binding financial agreement between the parties – redraws on the mortgage by the wife – equal financial contributions – slightly greater non-financial contributions by the wife impacted by duration of marriage and relatively small property pool- husband has reduced earning capacity –after future needs adjustment - 48% in favour of husband and 52% in favour of wife - no order as to cost

FAMILY LAW – PARENTING – Where the mother seeks a suite of interim parenting orders including that the children live with her, that she is granted sole parental responsibility and that the father is restrained from contacting the mother or children – Where allegations of parental alienation are a live issue and require determination at final hearing – Where the father challenges the opinions of the single expert – Where an order changing the children’s place of residence has the potential to cause significant emotional distress – Where there is no evidence that the children are at an ongoing risk in respect to their physical safety in the mother’s care – Where the supervision reports are overwhelmingly positive – Orders made allowing the children to spend additional time with the mother on an unsupervised basis.

FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – Where criminal proceedings are on foot – Where the mother sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – Where the application is opposed by the father – Where the mother seeks to use the documents in aid of her defence in criminal proceedings – Consideration of r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the Court is satisfied that special circumstances exist – Order releasing parties from Harman undertaking

FAMILY LAW – Parenting – three children, aged 15, and two twins aged 10 – extremely high conflict – where the siblings are separated – where both parents have engaged in “psychological warfare against their ex-partner at the detriment of their children” – where both parents have involved the children in adult issues and the Court proceedings, engaged in open denigration of the other in front of the children, attempted alienation/alignment of one or more of the children, verbal and psychical abuse on one another, emotional neglect of the children – where the Court holds concerns about both parents and their attitude – where the Court considers that the mother should be allowed to relocate – where the Court considers that the twin girls should remain living with the mother and only have electronic communication with the father – where the Court considers that the eldest boy should continue to live with the father and spend time with the mother in accordance with his wishes – electronic communication between all three children – best interests.

FAMILY LAW – Property – where the parties were together for 22 years – where the matrimonial assets are modest – jointly owned home with modest equity – where there are various items and vehicles – superannuation splitting order – just and equitable.

FAMILY LAW – PROPERTY– Where wife seeks to vary or set aside Final Orders made on 2 May 2013 pursuant to s 90SN(1)(b) – (c) – Where husband seeks to enforce those Final Orders – Finding of default by both parties – The Final Orders be varied or set aside in substantive proceedings.

FAMILY LAW – PARENTING – Orders made in the best interests of the children.

FAMILY LAW – PROPERTY – Just and equitable property adjustment orders made.

FAMILY LAW – PROPERTY SETTLEMENT PROCEEDINGS – Applicant alleges breakdown of 23 year de facto relationship and files Initiating Application seeking property settlement orders – Respondent files Response seeking s 90RD declaration that there had been no de facto relationship – Respondent subsequently dies – Respondent’s legal personal representative files application for summary judgment on basis that the proceedings have abated as a result of the Respondent’s death – proper construction of s 90RD and s 90SM(8) of the Family Law Act - questions of jurisdiction considered – application for summary judgment dismissed

FAMILY LAW – subpoena objection - where the mother sought a subpoena from the Office of the Health Ombudsman – where the Office of the Health Ombudsman objected to that subpoena on the grounds of relevance, insufficient particulars and confidentiality – where the material sought in the subpoena is relevant – where the relevant statute provides the Office of the Health Ombudsman is not required to disclose confidential information to a court or tribunal.

FAMILY LAW – CHILDREN – Where the parties agree that the mother should hold sole parental responsibility for the child and that the child should live with the mother – Whether the child should spend time with the father – Where the child has never met the father – Where there are allegations by the mother of significant family violence perpetrated by the father, including coercive and controlling family violence – Where findings are made that the father poses an unacceptable risk of harm to the child and the mother as a result of family violence – Where the father has long-term mental health issues – Where findings are made that the father’s mental health presents an unacceptable risk of harm to the child’s safety – Where the Court cannot be satisfied that the father is drug-free – Where the child is vulnerable due to developmental delays – Where orders are made that the child shall spend no time with nor communicate with the father – Where injunctive orders are made pursuant to section 68B of the Family Law Act 1975 (Cth)

FAMILY LAW – COSTS – Application for costs following conclusion of defended parenting proceeding – Applicant wife seeks indemnity costs – In the alternative costs order sought on a party and party basis calculated at Scale – Consideration of general rule that each party bear their own costs in proceedings under the Act – Consideration of whether there are circumstances which justify an order for costs – Consideration of what, if any, order for costs is appropriate. FAMILY LAW – INDEMNITY COSTS – Solicitor and client cost – Settled practice to order costs on a party and party basis – Consideration of whether there is a circumstance which justifies a departure from settled practice. FAMILY LAW – HELD no exceptional, unusual or extreme circumstance. FAMILY LAW – PARTY AND PARTY COSTS – Costs awarded in a fixed amount calculated in accordance with Scale

FAMILY LAW – CHILDREN – Where the parties agree that the children shall live with the father and the eldest child (15 years of age) shall spend time with the mother in accordance with her wishes – Whether orders should be made for time and communication between the youngest child (11 years) and the mother – Whether the father should hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties – Where the children have spent no time with the mother since September 2023 – Where the children hold strong views that there be no orders to spend time with the mother – Impact of protracted litigation on the children – Parental conflict – Where both children have experienced mental health difficulties – No positive findings of family violence – Findings made that coercive orders for the youngest child to spend time with the mother would not be in her best interests – Orders made for each child to spend time with and communicate with the mother in accordance with their wishes – Orders made for the father to hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties

FAMILY LAW – PARENTING – adjournment granted 7 December 2023 – Social media post by suggesting he had manipulated the Court - application for disqualification by the father’s Counsel on the grounds of alleged apprehended bias - fair-minded lay observer – oral application for recusal dismissed.

FAMILY LAW – PARENTING – adjournment application - promote cooperative and child focused parenting by the parties - advance a meaningful relationship between the father and the children – permitting the father to address the significant evidentiary shortcomings – adjournment granted with condition imposed – interim parenting orders

FAMILY LAW – property – whether the parties were in a de facto relationship – the Applicant alleges that the parties were in a de facto relationship from late 2013 to February 2017 – the Respondent alleges that the parties were in a relationship from late 2013 to mid-2014 and friends from mid-2014 to February 2017 – where the parties have joint property

FAMILY LAW – PROPERTY – Just and equitable – orders made.

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.

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

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

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

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 (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

BANKRUPTCY – Interlocutory Application – Ex tempore judgment – Application dismissed

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

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

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

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

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. 

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. 

MIGRATION – Judicial review – Administrative Appeals Tribunal (as it then was) – whether the Tribunal erred in finding that there was a ground of cancellation under s 116(1AA) – whether the Tribunal failed to give proper, genuine and realistic consideration to the risk of harm to the applicants if returned to home country – whether the Tribunal failed to consider the best interests of the applicants’ Australian citizen children and the harm they would face if returned to Sri Lanka – Court finds no jurisdictional error made by the Tribunal – Application dismissed 

MIGRATION – protection visa – decision of the Administrative Review Tribunal – failure to appear before the Tribunal – where Tribunal dismissed the application pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) – whether the applicant was afforded sufficient time to prepare materials – whether the Tribunal failed to consider the applicant’s grounds – no jurisdictional error established – application dismissed. 

MIGRATION – Whether Immigration Assessment Authority erred by failing to have regard to additional information – whether factual findings made without evidence – challenges to factual findings. 

MIGRATION – application for judicial review – application for Protection (Class XA) (Subclass 866) visa –applicant in immigration detention – extension of time application – extension of time granted –– whether Administrative Review Tribunal erred by applying unreasonable reasoning – no jurisdictional error established – application dismissed. 

MIGRATION – Judicial Review – student visa – genuine temporary entrant – broad allegations of procedural unfairness – invitation to impermissibly engage in merits review of delegate’s decision – application dismissed.

MIGRATION – judicial review – Protection (Class XA) (subclass 866) visa – whether the Tribunal lawfully exercised its powers under s 106(1) of the Administrative Review Tribunal Act 2024 (Cth) to make its decision on the documents without holding a hearing where it determined the matter on a different dispositive issue to that of the delegate – what is required for a valid request for the purposes of s 106(3)(b)(ii) – meaning of the phrase “it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding” – whether or not the preconditions in s 106(3) are met is a question of jurisdictional fact which is subject to judicial review by the courts – no jurisdictional error disclosed – application dismissed.