Judgments

FAMILY LAW – PARENTING – family violence – abusive, harassing and threatening communications – impact on Mother – limited insight – unacceptable risk – orders made for Father to spend no time and have no communication with child 

FAMILY LAW – PROPERTY – relationship of 10 years with 4 years of cohabitation and one year of marriage – no children – separation of 3.5 years – wife contends it is not just and equitable for an order to be made altering parties’ property interests – finding the requirement of section 79(2) is satisfied – finding husband holds beneficial interest in a property transferred to him and his brother, as reflected on title – non-superannuation and superannuation assets considered separately – paid legal costs not added-back – other asserted add-backs not accepted – parties’ contributions relating to non-superannuation assets assessed at 85% in favour of the wife and 15% in favour of the husband – adjustment of 2.5% in favour of husband on account of relevant section 75(2) factors – payment to be made by wife by way of adjustment – no alteration in respect of superannuation – unsatisfied litigation funding order discharged

FAMILY LAW – PARENTING – 3 children of separated parents and some 8 years of family law proceedings – where the parents seek variations to final parenting orders made in 2021 and consent to reconsideration – where final parenting orders since suspended by operation of interim orders and therefore no longer in force – to the extent that the general prohibition applies, the final parenting orders may be reconsidered by consent pursuant to s.65DAAA(3).  

FAMILY LAW – PARENTING – where the remaining issues in dispute relate to youngest child and where she should live, when she should spend time with each parent and which parent should have sole decision making responsibility for her – consideration of s.60CC factors – final parenting orders made. 

FAMILY LAW – HARMFUL PROCEEDINGS – litany of litigation and protective interventions – consideration of resultant trauma and harmful impact – reasonable grounds to believe that the children would suffer further harm if either parent instituted further proceedings against the other – parents would suffer financial harm – harmful proceedings orders made against both parents, requiring leave of the Court to institute further proceedings – no suppression of notification. 

FAMILY LAW – PROPERTY – de facto relationship of approximately 26 years with more than three years since separation – dispute as to value of a real property with a partially constructed and defective build, which both parties seek to retain – consideration of asserted “add-backs” – treatment of inheritance received by respondent after separation – assessment of parties’ contributions and matters relevant pursuant to section 90SF(3) – two pool approach taken, with respondent’s inheritance considered separately – respondent to retain 100% of inheritance at value received by him – orders providing for applicant to receive 52.5% of the non-inheritance pool and the respondent 47.5%

FAMILY LAW– Application for spousal maintenance by the de facto wife – where wife relies on care and control of a child to assert she cannot adequately support herself – where the evidence fails to establish the wife is unable to support herself adequately because of care and control of a child – application dismissed – other orders made by consent.

FAMILY LAW – PROPERTY – where the parties are in dispute of the interpretation of a final order – where there is evidence of family violence – where the wife requires access to the property for the purposes of arranging work to be carried out in order to sell the property – where the order should be varied to reflect the intention of the Court

FAMILY LAW – DIVORCE – where an application for divorce was filed by the Husband in Australia – where the Wife contends Australia is a clearly inappropriate forum – where the Wife adduces no expert evidence of Country D law – where the Wife invoked this Court’s jurisdiction for financial relief – where the parties were found to been living separately and apart – where the Husband’s application for divorce is granted

FAMILY LAW – CONTRAVENTION – Whether contraventions proven – whether reasonable excuse established.

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – application refused.

FAMILY LAW – COSTS – Costs application by husband – costs application by subpoena objector.

FAMILY LAW – PARENTING – where the parties are engaged in a second tranche of litigation – where the mother seeks the child have no time with the father unless agreed in writing – where the father seeks that time gradually progress to unsupervised time two nights per fortnight and half school holidays – where the child has made allegations of violence upon him by the father – where no finding as to family violence is sought – where the child steadfastly refuses to spend time with the father – where the child assails the mother prior to and in the wake of time with the father – where the father and Independent Children’s Lawyer impractically view family therapy as the sole remedy or “magic wand” for the re-establishment of the relationship –where risk of harm is inherent in both proposals – where such risks are intricately weighed – where the mother has damaged the relationship (be it deliberately or inadvertently) to such an extent that no orders as to time with the father would be safe for the child – where the mother is an unimpressive witness – where the father has not prioritised the relationship or engaged fulsomely with family therapy – where the parties are diametrically opposed – mother granted sole decision-making responsibility with a requirement to consult with the father and orders made for no time with the father.

FAMILY LAW – Parenting – relocation – young child – mother seeks to move from Melbourne to Sydney with the child – father seeks that the child remains living in Melbourne and time progress to an equal shared care arrangement – orders made providing for child to live in Sydney with the mother

FAMILY LAW – PARENTING – application for final parenting orders – child aged 10 – child diagnosed with anxiety – where the parties each seek orders for the father to spend time with the child on a gradual increasing basis – where the mother seeks sole decision making responsibility – where the father seeks equally shared decision making responsibility – consideration of the best interests of the child under s 60CC of the Family Law Act 1975 (Cth) – final parenting orders made.

FAMILY LAW – Property proceedings – application for dismissal of Initiating Applicant for non-disclosure of documents, default of compliance with Court orders, and failure to prosecute the application with due diligence – Initiating Application dismissed

FAMILY LAW – Property settlement proceedings – 20 year relationship – complex entities – add-back arguments – just and equitable outcome.

FAMILY LAW – CHILD SUPPORT – Extension of time – declaration of parentage – declaration that the Respondent should be assessed in respect of the costs of the child.

FAMILY LAW – PARENTING – Application for the maternal grandmother to spend time with the child – best interests of the child – Orders made.

FAMILY LAW – PARENTING – where the father seeks the current equal time arrangement continue and the mother seeks a reduction in such time – where the parties cannot agree as to the interpretation of simple and concise orders of this court – where a significant feature of the matter is the child’s wishes – where the child consistently expresses a wish for an equal time arrangement to third parties –where the child is acutely aware of the parental conflict – where the father has consciously acted to undermine and denigrate the mother to third parties and the child – where the father concedes to involving the child in discussions about the proceedings and his own preferences for time - where the mother has exhibited reflective capacity in relation to two emotionally charged incidents – where the father’s capacity for reflection is limited to concessions made during cross-examination – where neither party is an impressive witness – where the risk of harm to the child arises from his exposure to the parties’ highly conflictual and toxic parenting relationship - where both parties lack insight - where the father’s parenting deficits are such that he would not be able to safely support the mother’s proposal for a reduction in time if made – orders made for the mother to hold sole parental responsibility and for the child to live with the parties in an equal time arrangement.

FAMILY LAW – Parenting – urgent interim hearing – where orders were made by consent in January permitting the father to take the two children to Country C until early 2025 – where the father paid a significant security payment that was held in his solicitors trust account – where the eldest child returned to Australia in early 2025 – where the father and the other child did not return to Australia – where the security payment has been paid to the mother – where it is alleged the father and the other child continue to reside in Country C – where Country C is not a Hague convention country – where the mother seeks a recovery order and an airport watchlist order in the event the father returns with the child – where the mother sought orders for the father to execute a charge on the property held in the his name to allow the mother to lodge a caveat over the property – where it is requested the father solicitors serve a copy of these orders on the father.

FAMILY LAW – PROPERTY – Contributions – Disparity in financial contributions – Assessment of section 75(2) factors – Largely agreed asset pool – Resulting trust – Presumption of advancement – Parental loan to wife

FAMILY LAW – PARENTING – Best interests of child.

FAMILY LAW – PROPERTY – De facto relationship of 12 years – Greater earning capacity – Carer responsibilities – Existing student loan – Applicant proposes 50/50 – Respondent proposes no adjustment or 15/85 – Just and equitable considerations

FAMILY LAW – recusal application – alleged actual bias or apprehended bias – inadmissible hearsay evidence – false assertions about personal or social relationship between lawyer who prepared financial agreements and judge – vague and unsubstantiated assertions that judges of this court decide matters other than on merits and according to law – recusal application dismissed.

FAMILY LAW – practice and procedure – proceedings to which the Evidence Act 1995 (Cth) applies – hearsay evidence inadmissible  

FAMILY LAW – Interim spousal maintenance – Application for leave to file and prosecute application out of time – Where applicant de facto wife has significant history of mental ill health and hospitalisations – Where respondent de facto husband was paying maintenance on a voluntary basis for a substantial period after separation until recently – Hardship to applicant of not being granted leave to prosecute application established in circumstances where applicant deemed unable to adequately support herself without income tested benefit or pension – Leave granted to file out of time – Interim spousal maintenance ordered – Where applicant’s expenditure is reasonable – Where respondent is able to make small economies in expenditure – Respondent ordered to pay applicant’s rent directly to real estate agent – Respondent ordered to pay applicant’s health insurance in circumstances where she is highly dependent on it.

FAMILY LAW – PARENTING – where the parties had a very short relationship – where the child was born after separation – consideration of parental responsibility and the living arrangements for the child – where the parties agreed on an order for international travel - where there are no significant risk factors – final parenting orders made

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.

FAMILY LAW – PARENTING - Unacceptable Risk – Capacity of the parents – Child with ASD diagnosis – Allegations of physical violence by the father to the child – Allegations of alienation of the child from the father – Father seeks change of primary care to him – Mother seeks no time or communication for the child with the father – Order for child to continue to live in the primary care of the mother – Order for child to continue time-with relationship with the father.

FAMILY LAW – COSTS – determined on the papers – where property proceeded on an undefended basis due to husband’s non-compliance – where the wife seeks indemnity costs – where it is found that the husband’s conduct throughout the proceedings justifies the making of a costs order against him – where the wife failed to produce costs agreements in support of her claim as required under Rule 12.13 – where the wife failed to particularise costs incurred by her – where some amounts claimed by the wife appeared to relate to proceedings in another jurisdiction – exceptional circumstances not established – costs ordered in a specific amount.

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 (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

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 – 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

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 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 – 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

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

BANKRUPTCY – Interlocutory Application – Ex tempore judgment – Application dismissed

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 – 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 – 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.