Judgments

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LAW – stay application for stay of final parenting and property orders pending appeal –s61DB should not have been repealed - requirements for reconsideration of final parenting orders not satisfied -application for stay refused - costs 

FAMILY LAW – Parenting – parental responsibility – live with – spend time arrangements between three parties – which school child shall attend

FAMILY LAW – PROPERTY – question whether the parties were in a de facto relationship and if so whether the court considers it appropriate to make an order altering the property interests – where the de facto wife is deceased – where the application was not served on the de facto wife while she was alive – where the applicant was the respondent’s carer for a period – where evidence fails to satisfy onus necessary to establish that the applicant and respondent were in a couple who lived together on a genuine domestic basis – where even if there was a de facto relationship, no financial or non-financial contributions by the applicant that would warrant the Court making a property alteration order to the home already owned by the respondent prior to cohabitation - where orders for the ashes of the respondent and for the transfer of half interest of the respondents property to a non-party are considered vexatious

FAMILY LAW – PARENTING – Review of a senior judicial registrar’s decision – Three children aged 11, 8 and 7 - Parents in high conflict - Where the registrar made orders for the children to live with the mother – Where the eldest child refuses to live with the mother and continues to return to the father – Where the mother seeks a recovery order – Where the father seeks a review of the totality of the registrar’s decision on an urgent basis –Where all previous parenting orders are discharged and interim orders made to protect the children from psychological and emotional harm.

FAMILY LAW – PARENTING – the Husband’s application in relation to parenting arrangements for the parties’ two children aged 14 and 10 – the Husband seeks orders the parties have equal shared parental responsibility for the parties’ children save that he have sole parental responsibility in relation to decisions concerning education and extra-curricular activities - the Wife seeks the parties have equal shared parental responsibility - the Husband seeks the children spend four nights a fortnight with the Wife commencing in Term 2, 2024 - the Wife seeks the children spend five nights a fortnight with her. FAMILY LAW – PROPERTY - whether the capital received by parties should be characterised as a partial property settlement and “added back” to the property pool in its entirety - whether the Wife’s interest in she and her sister’s business should be included in the asset pool – whether the Court should make a declaration pursuant to Section 78 of the Family Law Act 1975 that the Husband and Wife have a 50% interest in the Suburb B property – the Husband seeks orders he receive 72% of the parties’ realisable assets on the basis that he made a greater contribution at the commencement of the relationship and he has primary care of children –the Wife seeks she receive 60% of the parties’ realisable assets on the basis she made a greater contribution due to an inheritance of $480,000 received towards the end of the relationship and the Husband’s greater earning capacity.  FAMILY LAW – PARENTING – HELD – the parties have equal shared parental responsibility save for issues relating to the children’s education and extra-curricular activities for which the Husband is to have sole parental responsibility if parties are unable to agree – the children spend four nights a fortnight with the Wife.  FAMILY LAW – PROPERTY – HELD - there be a declaration the Husband and Wife have a 50% interest in the Suburb B property – the capital amounts received by the parties by way of part property settlement should not be “added back” to the pool for division between the parties – the Wife’s interest in the business should be included as an assets in the property pool – the parties respective contributions should be considered as equal and the parties’ s 75(2) contributions balance each other out – the parties’ available property assets should be divided equally between them.

FAMILY LAW – PARENTING – where the children live with Mother who relocated 3 hours away from the Father post separation – where the Father does not oppose the children living with the Mother but wants her and the children to return to an area closer to his residence – where the eldest child is exhibiting reluctance to spend overnight time with the Father – where the parents have a poor level of communication – whether an order should be made for the Mother to have sole parental responsibility for educational and medical matters – whether the Court should require the Mother and children to relocate to an area closer to the Father’s residence – the nature of the time the Father will spend with the children – Independent CHILDREN’S LAWYER’S COSTS (ICL) – whether either party would suffer hardship if ordered to contribute towards the ICL’s costs.

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain a solicitor from acting – Solicitor’s overriding duty to the Court – Where the wife objects to the solicitor for the husband from further acting for the husband – where the solicitor for the husband is the “intimate partner” of the husband – injunction granted 

FAMILY LAW – PARENTING – Interim Hearing.

FAMILY LAW – PARENTING – what time, if any, the Father spends with the children – what time, if any, the Paternal Grandparents spend with the children – where the Mother alleges family violence perpetrated by the Father during the relationship – the Mother argues the Father poses an unacceptable risk to the children – where the Father has diagnosed mental health issues and a history of illicit substance abuse which the Father fails to acknowledge or undertake treatment for – the Mother argues the Paternal Grandparents are unable to prevent the Father attending their time with the children – where the Paternal Grandparents do not accept the Father is a risk to the children.  FAMILY LAW – HELD – the Mother have sole parental responsibility – the children live with the Mother – there be no time or communication with the Father – the Father be permitted to send the children gifts and cards on special occasions – there be no face to face time with the Paternal Grandparents – there be weekly FaceTime communication with the Paternal Grandparents – the Paternal Grandparents be permitted to send the children gifts and cards on special occasions.

FAMILY LAW – Parenting – where the mother would not facilitate a meaningful relationship with the father – change of residence ordered – short respite of no time with the mother.

FAMILY LAW – PROPERTY – short marriage – where wife and child have lived overseas since separation

FAMILY LAW – parenting proceedings – best interests of child – where the child is 12 years old - where it is an agreed fact that the father have sole parental responsibility for the child and the child live with the father – where the mother has an illness and is chronically ill – where the issues in dispute concern the duration and frequency of time that the child spends with the mother and whether the child should be permitted to travel overseas with the father.

FAMILY LAW – PARENTING – Finding of family violence – Whether mother’s parenting impacted by father spending time – Presumption of equal shared parental responsibility rebutted – Whether the child spends time with the father and whether such time be supervised – Injunctions ordered – The child’s time with the father suspended in certain circumstances

FAMILY LAW – PROPERTY – Wife’s response proceeded undefended, notwithstanding Husband attended at Court – Parenting proceedings previously resolved – Third party equitable claim against former matrimonial home previously resolved – Loss or wastage from Husband’s criminal activity – Evidentiary gaps in Wife’s case – Court cannot speculate as to facts – Failure by Wife to afford procedural fairness to superannuation trustee – Draft orders to be provided to superannuation trustee

FAMILY LAW – PARENTING – interim hearing – four year old child – progress to overnight time.

FAMILY LAW – PROPERTY – Section 78 – Equitable interests – Property outside jurisdiction – Declarations – Orders made

FAMILY LAW – Subpoena objections – Where Husband seeks subpoena material regarding notes from Wife’s counselling and entire phone records spanning several years – Wife objects on basis of relevance, invasion of privacy, and fishing exercise – Apparent relevance test applies – Orders for redaction of subpoena material

FAMILY LAW – PROPERTY – section 79A application – alleged miscarriage of justice arises under any other circumstance – impugned order made in terms pressed by the impugning party – parties bound by the manner they conduct their cases – payment not made provision – not necessarily a “default” within section 79A(1)(c) – necessary implied provision in delivery up of jewellery order can only apply to jewellery in parties power or possession – without section 79A is there jurisdiction to vary a delivery up order to provide a compensatory payment? – no miscarriage of justice found – no “default” pursuant to section 79A(1)(c) found – enforcement application partially successful – section 79A application dismissed

FAMILY LAW – Parenting – ex tempore reasons for an application made for recusal on the basis of apprehended bias and joinder of the parties’ current partners – where the application was filed at lunch time on the day of the resumption of part heard trial – where the test is well established by law – where the test is not satisfied – application dismissed

FAMILY LAW – PROPERTY – Application for extension of time to file Application for Review – Application granted – Senior Judicial Registrar’s final property orders – Husband’s failure to comply with procedural orders – Application for Review allowed – Written submissions as to costs

FAMILY LAW – Property – Party withdrew consent to previous signed consent minute – Former solicitors seeking to intervene – Where potential liabilities exceed asset pool – Where there is a substantial debt owed to the ATO – What constitutes sufficient service on the ATO – whether “posting” on the “portal” is service to the ATO – Orders to lie in Registry until service effected on ATO 

FAMILY LAW – Property – Whether to proceed ex parte – Where de facto Wife ordered to appear and did not appear – Wife found to have been properly served with previous orders and filed documents – Where parties had agreed to sell their respective houses to purchase a house jointly – Husband sold his house to purchase new house – Wife did not sell her house or contribute to the new house – Where parties were not in a relationship for 2 years to satisfy s90SB – Jurisdiction satisfied by substantial contribution of Husband within section 90SB(c)(i) and (ii) 

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain a solicitor from acting – Solicitor’s overriding duty to the Court – Where the wife objects to the solicitor for the husband from further acting for the husband – where the solicitor for the husband is the “intimate partner” of the husband – injunction granted 

FAMILY LAW – interim hearing – whether rules or practice attached or consequent to rule in Rice & Asplund apply to section 65DAAA – whether Goode and Goode applies to amended section 60CC – whether final orders can be suspended on interim basis without section 65DAAA being satisfied – change of circumstances not required but whether there is must be considered- section 65DAAA “governing” provision of section 65DAAA- attached rules of body of law of Rice & Asplund applied – principles of Goode and Goode with necessary changes applied-Not satisfied section 65DAAA(1)(b) satisfied – one parent’s opinion of mental health of other parent not accepted – parent’s concern not dismissed – final orders not discharged or suspended – single expert psychiatric examination ordered 

FAMILY LAW – parenting – final orders – application for sole parental responsibility by each parent of a young child – mother obstructing child’s relationship with father – mother historically primary carer – father seeking order that child live with him and proposes residence in rural location remote from mother – orders made for the child to live with the mother and spend increasing time with the father  FAMILY LAW – parenting – contravention – where mother admitted contravention of court order with reasonable excuse – reasonable excuse not established – orders made for term of imprisonment of four months – sentence of imprisonment suspended on condition of entry into a bond to be on good behaviour and comply with final orders 

FAMILY LAW – property - long marriage – addbacks – consideration to be given to initial contributions - whether there should be an adjustment pursuant to s.75(2) - wife seeking periodic spousal maintenance - whether or not there should be an order for lump sum or periodic spousal maintenance 

FAMILY LAW – Contravention application – alleged contravention of parenting orders by mother – mother found to have contravened order child spend time with the father and orders concerning the use of the correct name of the child – mother placed on bonds and make up time ordered – other counts dismissed. 

FAMILY LAW – PARENTING – Best interests of children. 

FAMILY LAW – PARENTING – Best interests of children. 

FAMILY LAW – PROPERTY – PARENTING – two children – withholding by the father – sole parental responsibility to mother – gradual progression of time – routine and stability for special needs of children – alternation of property interests – net property pool split 70:30 in favour of the mother  

FAMILY LAW – CHILDREN – Where the mother would not facilitate a meaningful relationship with the father – Change of residence ordered – One-month moratorium of no time with the mother.  FAMILY LAW – COSTS – The mother to pay the costs of the Independent Children’s Lawyer. 

FAMILY LAW – PARENTING – arrangements for two year old child to spend with her father – allocation of parental responsibility 

FAMILY LAW – PROPERTY – final hearing – de facto relationship of 23 years – relationship produced two children who are now adults – where the respondent seeks the dismissal of applicant’s application – where the applicant seeks a 50/50 distribution of assets – relatively modest asset pool – assessment of contributions – future needs – considerations of just and equity – matters to be considered

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 – 15-year-old child removed from care of residential parent – Allegations of past serious violence – Allegations of past serious alcohol abuse – Recovery order not pressed – Parents to use parental authority to ensure child returned to custodial parent – Rice & Asplund raised but not dealt with – Order for child to return to usual residential parent – Application for recovery order adjourned pending return of child.

FAMILY LAW – Parenting – Where father submits the court has no jurisdiction to determine child related proceedings – Where the father uses sovereign citizen terminology  – Where father previously absconded with the children and regards the children as his property – Where father failed to engage with family report – Where there are mental health issues - Mother have sole parental responsibility – Children to live with Mother – Father to spend supervised time with children – Father restrained from removing children from Mother’s care – Recovery order to issue and lie on file 

FAMILY LAW – PARENTING – Rice & Asplund – threshold hearing relating to the mother commencing fresh parenting proceedings. 

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

FAMILY LAW – PARENTING – Best interests of child. 

FAMILY LAW – Costs - should a costs order be made pertaining to substantive de facto property proceedings – on what basis and quantum - whether it was reasonable or not to accept an offer prior to determination – finding a minimal percentage difference in outcome – making a special costs order in favour of de facto wife is justified 

FAMILY LAW – Divorce – Forum non conveniens – Divorce order made. 

FAMILY LAW –  Parenting – Application for further adjournment of final hearing granted – Joinder of second respondent at late notice – Procedural fairness to newly joined second respondent – Mother unrepresented – Section 102NA order previously made – No application made to section 102NA scheme – Section 102NA clunky – Where Legal Aid funding for Father may run out – Request for Father’s Legal Aid representation to remain same from ordinary Legal Aid to 102NA scheme – Father permitted to relocate 

 FAMILY LAW – contravention hearing listed for 22 May 2024 – email from applicant seeking adjournment – issue with the service of subpoenas – parties were to email their written submissions on the adjournment application – adjournment application granted  

FAMILY LAW – PARENTING – whether Father with stimulant use disorder in sustained remission presents an unacceptable risk of harm to eleven year old child

FAMILY LAW – property proceedings – where the parties are substantially apart in their competing applications.  

FAMILY LAW – SUMMARY DISMISSAL of s 79A Application – whether the Wife’s application has no reasonable prospects of success – where the parties child has significant special needs – whether the Wife can establish that the full extent of the child’s disability and needs were not known when the property order was made – whether there are exceptional circumstances that have arisen since the order was made that would lead to the child and/or the Wife to suffer hardship if the order is not varied 

FAMILY LAW – SUMMARY DISMISSAL of s 79A Application – whether the Wife’s application has no reasonable prospects of success – where the parties child has significant special needs – whether the Wife can establish that the full extent of the child’s disability and needs were not known when the property order was made – whether there are exceptional circumstances that have arisen since the order was made that would lead to the child and/or the Wife to suffer hardship if the order is not varied 

FAMILY LAW – Final hearing vacated – section 102NA orders – Lawyer not able to be assigned – No evidence in chief filed – Lawyer sought leave to withdraw – Application of lawyer to withdraw refused – Interim application to extend time with 7-year-old child – Untested family report of considerable assistance – Watchlist order extended. 

FAMILY LAW – parenting – application by father for time with daughter – where mother seeks no time order – whether father presents as unacceptable risk due to drug use, criminal offending and family violence – where allegations of family violence not contested – best interests of the child - where supervised time will not reduce risk to emotional welfare – where risk cannot presently be ameliorated – order for father not to spend time 

FAMILY LAW – Property – de facto relationship – small asset pool comprising two regional properties – where both properties owned and purchased by the respondent – where applicant made weekly payments to respondent that were characterised as contributions to the mortgage over one property – where the applicant made some improvements to the properties – where applicant had almost exclusive occupation of one property and left it in a state of neglect – where evidence as to value of properties inadequate – where both parties in poor health and in receipt of government benefits – where respondent has responsibilities for a child – orders made as to 80/20 division in favour of respondent