Judgments

Division 1 - Appellate division

Judgment delivery date:

FAMILY LAW – APPEAL – Appeal from decision of primary judge dismissing appellant’s application under s 79A of the Family Law Act 1975 (Cth) – Most grounds of appeal are incompetent and misconceived – Whether the primary judge erred in finding that certain non-disclosures by the respondent did not amount to a miscarriage of justice – Where it was determined that even if there had been a miscarriage of justice, the primary judge was not prepared to exercise his discretion – Where the parties have repeatedly failed to make full and frank disclosure – No error established – Appeal dismissed – No order as to costs.

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FAMILY LAW – APPEAL – Where the appellant contends that the primary judge fell into error by not undertaking an analytical approach to the assessment of contribution – Where no error is found – Where the respondent sought costs against the appellant in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Costs ordered in a fixed sum of $20,000

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FAMILY LAW – APPEAL – Application in an Appeal – Extension of time – Where the respondent seeks an extension of time to file her Summary of Argument and List of Authorities – Where it is not in the interests of justice to grant an extension – Application dismissed.

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FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where the primary judge improperly considered extraneous evidence which amounted to the denial of procedural fairness – Where findings made of the father’s perpetration of family violence were not legally and factually open to the primary judge – Where the primary judge fell into error by finding the father committed family violence against the mother by refusing to consent or submit to orders sought by her – Where the father was entitled to maintain an application for an injunction against the mother – Where the father’s objection to the mother’s referral of the child to counselling was not an act of family violence – Where there was independent evidence about the fragility of the mother’s mental health – Where it was not a deliberate controlling strategy of the father to raise and maintain the issue of the mother’s mental health at trial – Where the primary judge erred when making findings about the father’s influence of the children’s expressed views – Where the primary judge’s orders to engage an Independent Children’s Lawyer for a further 12 months were aspirational and unenforceable – Appeal allowed – Proceedings remitted for re-hearing in respect of the order which should be made under s 64B(2)(b) of the Family Law Act 1975 (Cth).

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FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where the primary judge summarily dismissed the applicant father’s parenting application having been satisfied he had no reasonable prospect of prosecuting it – Where the father is serving a prison sentence for  assault of the parties’ elder child – Where the primary judge accepted expert psychological and psychiatric evidence adduced by the mother – Where the primary judge made an order prohibiting the father from instituting proceedings without leave from the Court – Where the application for leave to appeal is without reasonable ground and therefore vexatious – Leave to appeal refused – Application dismissed.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Expedition – Where the father seeks expedition of his appeal from interim orders for the parties’ children to live with the mother from mid-January 2025 – Where the orders would require the children to relocate from Queensland to Western Australia – Where the matter is set down for final hearing in April 2025 – Where the father took one month to file his expedition application – Where the father’s argument that the appealed orders do not promote the children’s best interest is not convincing – Where the father will suffer no personal prejudice if the appeal takes its normal course – Application dismissed.

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FAMILY LAW – APPEAL – Where the primary judge made orders compelling the parties’ child to be returned to Belgium – Where the child was born in Belgium and is a Belgian citizen – Where the child was wrongfully removed by the appellant mother to Australia – Whether the primary judge erred in determining the child was habitually resident in Belgium – Where the primary judge carefully applied the principles in LK v Director-General, Department of Community Services (2009) 237 CLR 582 – Where the Belgian court had already exercised jurisdiction in respect of the child – Where the findings of the primary judge were well-founded in the evidence – Appeal dismissed – No application for costs.

Judgment delivery date:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where an injunction was previously made prohibiting the applicant from instituting proceedings under the Family Law Act 1975 (Cth) against the father or the Independent Children’s Lawyer without leave – Where the applicant seeks leave to appeal from two decisions of the primary judge in relation to parenting matters and her application to reopen the proceedings to adduce further evidence – Where the proposed appeals lack reasonable grounds and are therefore vexatious and are devoid of utility– Applications dismissed.

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FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Where the appellant has a shareholding in a corporation – Where the primary judge erred at law by fixing the parties with joint and several liability for a tax debt owed by the corporation – Where the tax debt is an exclusive liability of the corporation – Appeal allowed – Re-exercise of discretion – Self-represented parties – No application for costs.

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FAMILY LAW – APPEAL – Contravention – Summary dismissal – Where judgment is not a “prescribed judgment” pursuant to reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) – Leave to appeal not required – Where appellant asserts primary judge erred in concluding compliance with Orders 8 and 9 were preconditions for spending time in Orders 29(a) and Order 29(c) – Where appellant argues primary judge erred in summarily dismissing application due to lack of evidence – Primary judge erred in determining compliance with Order 8 and Order 9 were preconditions for time in accordance with Order 29(a) – Primary judge’s intention was for Orders to function methodically upon preconditions being satisfied – Orders amended to reflect intention of primary judge pursuant to the slip rule – Appellant failed to provide prima facie evidence – No grounds of appeal challenging orders established – Appeal dismissed.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL Parenting – Where the appellant seeks leave to appeal against an order made dismissing his application to re-open parenting proceedings – Consideration as to whether s 65DAAA codifies the rule in In the marriage of Rice and Asplund (1979) FLC 90-725 (“the rule in Rice and Asplund”) – Clarification of the principles which apply to applications under s 65DAAA of the Family Law Act 1975 (Cth) – Whether the wording of s 65DAAA creates a meaningful distinction and departure from application of common law principles – Whether the Court is still required to make a finding about changed circumstances or alternatively, merely “consider” whether or not there has been any change – Where parliament’s intention was to codify the rule in Rice and Asplund – Where a literal interpretation of the wording of s 65DAAA is at odds with the purpose of the statute and leads to absurdity – No discernible difference between the threshold to be applied under the new statutory regime and the common law principles espoused by the rule in Rice and Asplund – Appealable error established – Leave to appeal granted – Remitted for rehearing of the application under s 65DAAA – Costs certificate granted.

Judgment delivery date:

FAMILY LAW – APPEAL – Practice and procedure – Where the Notice of Appeal is prolix and vexatious in its current form – Where many of the grounds of appeal assert the primary judge erred by failing to accept the appellant’s case – Where it is inherently unlikely that a judge of the Federal Circuit and Family Court of Australia (Division 1) would make hundreds of errors material enough to vitiate the reasons – Notice of Appeal struck out – Where the appellant has leave to lodge an Amended Notice of Appeal for further consideration.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – SUMMARY DISMISSAL – Where before the primary judge the applicant sought to rely on a previously dismissed Amended Application in a Proceeding and to review a Registrar’s decision – Where proposed grounds of appeal are expressed generally without reference to any particular order – Where there is no basis for any of the proposed grounds of appeal – Where no substantial injustice would result from refusing leave to appeal – Where applicant does not have reasonable prospects of prosecuting the application for leave to appeal – Application for leave to appeal summarily dismissed – Costs ordered in a fixed sum

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Stay – Expedition – Where the mother appeals from final parenting orders – Where the primary judge made supplementary orders dismissing the mother’s Application in an Appeal to stay the final orders – Where the primary judge did not have jurisdiction or power to hear and determine an application filed in the appellate jurisdiction – Supplementary orders set aside – Where neither party will be personally prejudiced by the refusal of the stay application – Where the mother’s belief the refusal of the stay application will be detrimental to the children is not objective proof of the fact – Where the mother did not pursue her expedition application – Where the parties are mutually satisfied if appeal is heard by April 2025 as anticipated – Application dismissed.

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FAMILY LAW – APPEAL – Where the appellant appeals from a costs order made against him arising from parenting proceedings – Where the respondent conceded the appeal in part – Where the remaining grounds allege bias and errors in reasons – No bias or errors identified – Application in an appeal to adduce further evidence – Where the material the appellant sought to adduce was not relevant to the grounds of appeal – Application dismissed – Appeal allowed in part – Respondent’s application for costs remitted for rehearing – Costs certificates granted.

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FAMILY LAW – APPEAL – Parenting – Where the respondent concedes one ground of appeal has merit – Where the Court must be satisfied of appealable error – Adequacy of reasons – Alleged failure to follow the legislative pathway – Weight – No appealable error identified – Appeal dismissed – No orders as to costs.

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FAMILY LAW – APPEAL – PARENTING – Where the wife contends an error by the primary judge in failing to give any reasons for the regime as to time spent between each parent and the child during the Christmas holiday and Easter periods or why the regime proposed by the Independent Children’s Lawyer was adopted in promoting the best interests of the child in preference to the differing regimes proposed by either parent – Where the parties and the Independent Children’s Lawyer did not approach the subject matter as de minimis or insignificant – Error established – Orders made in the re-exercise of discretion as agreed by the parents and the Independent Children’s Lawyer during the hearing of the appeal – Costs certificate ordered for the Independent Children’s Lawyer for the costs of the appeal.

APPEAL – PROPERTY – Where the wife contended error by the primary judge in concluding that the wife and the maternal grandmother did not discharge the onus of proof to establish a common intention trust – Where the primary judge identified material that was either extraneous and took it into account, or failed in the reasons to consider and evaluate that material – Where the parties advanced conflicting evidence as to a matter significant to the outcome – Where both sets of evidence should be referred to and reasons provided to explain findings of fact which are critical or determinative – Where the reasons were unable to discern conflict between untested testimony and other evidence – Where the primary judge made overarching blanket findings as to credibility that cloaked the integrity of the fact finding process – Where the primary judge made errors of fact – Where the reasons do not ensure that justice is seen to be done – Where it was found that a trust arrangement was the only logical and plausible conclusion – Where the incontrovertible facts are sufficient to discharge the onus of proof to establish a common-intention constructive trust –Appeal allowed – Re-exercise of discretion – Declaration made that the wife holds her interest in a real property on trust for the benefit of the maternal grandmother – Costs certificates ordered for each of the husband, the wife, and the maternal grandmother for the costs of the appeal.

APPEAL – PROPERTY – Where the determination pursuant to s 79 of the Family Law Act 1975 (Cth) was infected by multiple errors – Where the error as to the common intention constructive trust corrupts the reasons as to the determination as to the adjustment property between the husband and the wife – Matter remitted for re-hearing before a judge other than the primary judge – Costs certificates ordered for the husband and the wife for the costs of the re-hearing.

Judgment delivery date:

FAMILY LAW – APPEAL – Application in an Appeal – Extension of time to file Notice of Appeal – Where the applicant seeks an extension of time to bring an application for leave to appeal against interlocutory spousal maintenance orders made in June 2023 – Where the applicant argues the respondent’s financial circumstances have changed – Where the applicant asserts the need for the immediate termination of the interim spousal orders – Where the applicant does not assert any legal, factual or discretionary error by the magistrate – Application for extension of time dismissed.

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FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the decision of the appeal registrar to reject his Application in an Appeal seeking leave to file an appeal out of time – Where none of the orders the applicant proposes to challenge comprise a judgment from which an appeal validly lies – Where the proposed grounds of appeal are ostensibly bereft of merit – Application dismissed – No application for costs.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant husband seeks leave to appeal from child support orders – Application of Medlow & Medlow (2016) FLC 93-692 – Where the applicant has not demonstrated that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal – No substantial injustice established if leave is refused – Where the appeal is otherwise without merit – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum.

Judgment delivery date:

FAMILY LAW – APPEAL – LEAVE TO APPEAL –Where the applicant seeks leave to appeal from interlocutory spousal maintenance orders – Where the applicant contends he was denied procedural fairness where the primary judge relied on documents from a previous hearing between the parties – Where the documents were only used for purpose of enlivening s 83 of the Family Law Act 1975 (Cth) – Where the use of the documents did not amount to procedural unfairness – Where the applicant could not establish any errors of fact made by the primary judge – Where the applicant complains the primary judge did not provide adequate reasons for a costs order being made against him – Where this complaint is rejected – Where the costs order was well within the primary judge’s discretion – Leave to appeal refused – Appeal dismissed – Costs ordered.

Judgment delivery date:

FAMILY LAW – APPEAL – Parenting – Where the primary judge found he could not determine what was in the three year old child’s best interest beyond six years of age – Where the primary judge did not fail to consider the prospect of further litigation – Construction of s 65DAAA – Where the orders accord with recommendations from the Court Child Expert such that the parties were on notice – No procedural unfairness – Claims the respondent’s evidence should not have been accepted – Where the outcome is not glaringly improbable or contrary to compelling inferences – Adequate reasons – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.

Judgment delivery date:

FAMILY LAW – APPEAL – Contravention – Parenting – Where the appellant brings an appeal from the dismissal of his contravention application – Where the appellant complains the primary judge denied him procedural fairness by not adjourning the hearing to allow him to address the evidentiary deficiency in his case – Where the appellant did not apply for an adjournment – Where the primary judge had to judge the dispute impartially on the evidence which the parties elected to adduce – Where the appellant fails to explain how the decision was wrongly made – Where the appellant asserts the primary judge did not consider the best interests of the child – Where the best interests of the child were not relevant to the determination of the contravention application – Appeal dismissed – No order as to costs.

Judgment delivery date:

FAMILY LAW – APPEAL – PARENTING – Where the mother and father appeal from final parenting orders permitting the mother to relocate to the USA with the children after 1 June 2026 subject to the children’s wishes –– Where the orders do not specify when and how the wishes are to be ascertained – Where the operation of the orders is a divestiture of judicial power – Where the orders are not prescriptive and enforceable – Appeal allowed – Matter remitted for rehearing – Costs certificates granted.

Judgment delivery date:

FAMILY LAW – APPEAL – Property – Limited evidence available to the primary judge – Where no retrospective valuation of the farming property was conducted by an appropriately qualified expert –– Consideration of s 79 of the Evidence Act 1995 (Cth) – Where the factual error was material to the outcome of proceedings – Appeal allowed – Orders of the primary judge set aside – Matter remitted for rehearing before a judge other than the primary judge – Costs certificate granted to the appellant.

Division 1 - First instance

Judgment delivery date:

FAMILY LAW – COSTS – Where, as a result of a slip, incorrect final orders were published –Where the wife sought to rely on the incorrect orders and filed an Enforcement Application – Where the wife must have been aware of the slip – Where the husband belatedly filed an Application in a Proceeding to have the slip corrected – Where the wife belatedly consented to an amendment to the orders to correct the slip and withdrew her Enforcement Application – Where the husband seeks indemnity costs against the wife in relation to her Enforcement Application and his Application in a Proceeding to correct the slip – Consideration of s 117(2A) Family Law Act 1975 (Cth) factors – Where the Court is not satisfied that a costs order should be made.

Judgment delivery date:

FAMILY LAW – PARENTING – Final orders – Where the parties were in a same-sex relationship – Where the applicant is the biological mother of the child and the respondent is the other parent – Where final orders were made in December 2019 for the child to live with the respondent and to spend no time with the applicant – Where the parties agreed a material change in circumstances warranted variation of the final orders – Where the applicant has demonstrated her abstinence from illicit drug use – Where the child lives with the respondent in Queensland and the applicant lives in Sydney – Where the essential issue at trial was the length of time the child should spend with the applicant during school holidays – Where the child told the Family Consultant he does not want contact with the applicant – Where the family consultant considered his view “very extreme” and perhaps due to a sense of loyalty to the respondent – Where the child has communicated electronically with the applicant on several occasions and expressed his content doing so to third parties – Where the applicant understands the child’s reintroduction to her needs to be gradual – Where the respondent would support the child having a relationship with the applicant – Where the parties agreed they and the child should participate in reunification therapy – Ordered the child to spend gradually expanding time with the applicant.

Judgment delivery date:

FAMILY LAW – PROPERTY – Where the pool was broadly agreed – Add-backs for premature dispositions – One pool approach – Husband suffering a terminal illness – Weight to be applied to disparity in initial contributions – Contribution assessment 53.5% to the husband and 46.5% to the wife – s 75(2) adjustment.

Judgment delivery date:

FAMILY LAW – PROPERTY – Final orders altering property interests – Where there is a dispute as to the quantum of the pool –Where orders for valuations were not complied with – Where the wife asserts the husband has sold vehicles for less than market value – Where the wife contends the husband continues to possess vehicles he claims were sold in clearing sales and by the liquidator – Where the husband unilaterally appointed liquidators –Where there are outstanding issues as to the liquidators’ fees and the finalisation of the liquidation of the parties’ companies and the treatment of those fees – Pool divided 60% to the wife and 40% to the husband.

Judgment delivery date:

FAMILY LAW – PARENTING – Interim application by the mother seeking to suggest a new professional service available to supervise her time with the child – Where the supervision service provided in the current orders has a long wait period for new clients and consequently time is not currently occurring – Where the current supervision service was ordered due its ability to ameliorate the significant risk posed by the mother – Consideration of whether suggested service could also adequately ameliorate this potential risk.

Judgment delivery date:

FAMILY LAW – PARENTING – Where the father resides in the United States of America (“USA”) and the mother and the child reside in Australia – Where time spent by each party with the child during school holidays is agreed – Where the mother seeks to travel to the USA with the child for holiday – Consideration of security for travel – Where the child will be 16 years old at time of travel – Where the Hague Convention on the Civil Aspects of International Child Abduction will no longer apply – Where the father has concerns of mother absconding with the child – Where the mother has travelled with the child to the USA several times without requiring security – Where the mother has strong ties to Australia – Where the mother ultimately intends to relocate to the USA – Where the father seeks injunction to restrain the mother from visiting schools with the child in the USA – Where no risk requiring injunctive relief is established – Orders made permitting international travel without security or restraint imposed.

Judgment delivery date:

FAMILY LAW – ENFORCEMENT – Injunction – Application for injunctive order in aid of enforcement – Where consent orders were made providing for the application of the sale proceeds of a property held by the husband and the fourth respondent that did not provide for the application of funds to pay out a loan of the fourth respondent secured by way of mortgage over the property – Where the wife seeks an order requiring the fourth respondent to pay the value of funds applied from the sale of the property to discharge the loan and mortgage to an account established pursuant to the orders holding the funds produced from the sale – Where issue exists as to the interpretation of the consent orders sought to be enforced – Where issue exists as to the exercise of discretion to enforce – Orders made requiring the fourth respondent to pay the value of funds applied to discharge its loan into the interest-bearing account established by the consent orders in the joint names of the husband and the wife.

FAMILY LAW – COSTS – Litigation funding – Where the wife has received the benefit of prior litigation funding by way of lump sum and dollar-for-dollars order payable by the husband – Where the wife seeks further litigation funding for legal costs already incurred and future costs payable by the fourth respondent – Where the fourth respondent opposes the relief – Where the financial circumstances of the wife are not dissimilar to those that which existed at the time of the prior litigation funding orders – Where the financial circumstances of the fourth respondent are superior to those of the wife – Where issues generating increased costs as to have continued – Where the fourth respondent submits that costs payable by a non-marriage party for litigation funding ought be exercised sparingly and that the risk of irreversibility is a consideration that “weighs heavily” in the circumstances of this case – Where the husband’s costs are being paid by the second respondent, his mother and the other respondents costs are being paid – Where the part of the wife’s current costs are unpaid – Where the wife’s case is not absent merit – Where absent further litigation funding the wife is unable to participate in this complex litigation – Where the circumstances justify a further litigation funding order payable by fourth respondent to enable the wife to continue to prosecute her claim – Litigation funding ordered payable by the fourth respondent in a fixed sum.

FAMILY LAW – PARTIAL PROPERTY SETTLEMENT – Where the wife seeks the husband pay to her $100,000 by way of partial property settlement – Where the wife seeks funds to purchase furniture and curtains for a new residence – Where the husband has not filed a Financial Statement in over 12 months – Where the husband opposes the relief and submits that his financial circumstances are such that he is unable to meet the order sought – Where the wife sold, absent disclosure, the existing furniture of she and the husband – Where the wife adduced no evidence as to the items sold or the use of the sale proceeds – Orders for the husband to pay to the wife $30,000 by way of partial property settlement proximate to the time for completion of the new residence.

FAMILY LAW – DISCLOSURE – Where the second to fourth respondents have disclosed a significant quantity of documents of entities that are not parties to the proceeding – Where a trust of which the husband is the primary beneficiary will in the future receive a minority interest in the entities – Where the wife seeks additional documents of those entities – Where the second to fourth respondents submit those additional documents are not in their possession or control, are “commercially sensitive”, and are so voluminous that it is “akin to a disclosure under a subpoena” – Where the documents sought are relevant to enable the wife to understand the integers of the consolidated financial statements disclosed to date of those entities – Where orders are made requiring the production of documents in the possession or control of the second to fourth respondents – Where orders are made providing the wife leave to issue a subpoena to the relevant entities to produce the specified documents in the event of the second to fourth respondents cannot disclose them.

FAMILY LAW – ENFORCEMENT APPLICATION – Where the wife seeks for the husband’s mother, as the second respondent, to pay her a fixed sum by way of enforcement of a consent order requiring the second respondent to pay for appropriate accommodation for the wife and the child of the husband and the wife – Where the husband’s mother opposes that relief on the basis she already meets the cost of the wife and the child’s accommodation – Consideration of the consent order to meet the cost of “appropriate accommodation” – Where the monetary periodic value of the accommodation as sought by the wife is not contemplated – Application dismissed.

Judgment delivery date:

FAMILY LAW – PARENTING – Where mother seeks children spend no time with father – Where older child is neurodiverse – Where mother alleges father perpetrated family violence during and after relationship – Where father poses risk to children arising from family violence, mental health and lack of insight – Where father alleges mother has exposed children to neglect – no evidence of neglect – Where father is a risk to the children’s and the mother’s safety – Where father has limited capacity to provide for the children’s developmental, psychological, emotional and cultural needs – Orders made for mother to have sole decision making responsibility – Where long-term supervision is considered – Where orders made for children to spend no time and have no communication with father.

Judgment delivery date:

FAMILY LAW – PARENTING – Application by father seeking orders that the child live with him and there be a moratorium whereby the mother spend no time with the child for a period of six weeks graduating to supervised time – Application opposed by the mother – Allegations of sexual abuse of the child by the father – Allegations that child at unacceptable risk of abuse in the care of the father – Assertions by father that mother has made false allegations against him – Court is not satisfied on the balance of probabilities that the father has sexually abused the child - Court unable to conclude that the father poses an unacceptable risk of sexually abusing the child – Mother genuine but mistaken in her allegations – Issue of mother’s mental health – Considerations of mother continuing to make false allegations against the father – Child’s best interests - Orders that child live with the mother – Orders that child initially spend supervised time with the father graduating to week about time with the father in 2026 – Orders that parents retain joint parental responsibility and joint decision-making in respect of all decisions concerning major long-term issues pertaining to the child.

Judgment delivery date:

FAMILY LAW – PROCEDURAL – Where the second respondent seeks orders restraining the applicant, the first and second respondent from listing for sale a property – Where the third respondent seeks relief in relation to the property and is content for the proceeds of sale to be invested in real estate in the name of the applicant – Where the property has been valued by a court-appointed valuer – Where the applicant has received an offer from a third party for a sum in excess of the valuation of the property – Where the applicant has the benefit of orders appointing her as the trustee for the sale of the property – Where the Court is not satisfied that there is any basis for a restraint of the applicant.

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FAMILY LAW – PRACTICE AND PROCEDURE – DISMISSAL – Where the wife has not complied with a series orders and directions – Where there was no appearance by, or on behalf of, the wife at the Compliance and Readiness Hearing – Where the husband seeks the dismissal of the wife’s Initiating Application – Consideration of the overarching purpose of the Court pursuant to the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Orders made on the husband’s application pursuant to r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) dismissing the wife’s Initiating Application.

Judgment delivery date:

FAMILY LAW – PARENTING – Where the final hearing was adjourned in circumstances where the father was charged with an offence concerning the sexual touching of one of the children subject to the proceedings – Where orders were made by consent for the children to live with the mother and for the older children to spend no time with the father in accordance with their wishes – Where there is a dispute as to what time the younger children should spend with the father prior to final determination of the matter – Where it is agreed that the paternal grandparents will supervise the children’s time with the father – Where the court considers orders to promote the safety of the children – Orders made for the children to spend time day time with the father during school holiday periods.

Judgment delivery date:

FAMILY LAW – PARENTING – Magellan matter –Where each parent sought orders for sole decision-making responsibility and that the child live with that parent – Where the child has lived with the mother – Where the mother sought a finding that the father has sexually abused the child or, in the alternative, that the child is at unacceptable risk of sexual abuse by the father – Where Court is comfortably satisfied that the father has not sexually abused the child – Where mother has fixed false belief that child has been sexually abused by the father – Where mother’s belief is genuine but a product of the mother’s anxiety – Where child is not safe from emotional and psychological harm while living with the mother – Where both parents allege that the other engaged in family violence – Where finding made that the father engaged in family violence by way of abusive text messages after separation – Relevance of family violence to matters in addition to safety – Where mother’s parental capacity is impaired by her mental health but may be improved through treatment – Where father’s parental capacity is “good enough”– Where child has a good relationship with the father and wants to spend time with him – Where there is benefit to the child from having a relationship with both parents – Where the father is more likely to promote the child having a relationship with both parents – Where orders made for the father to have sole decision-making responsibility – Where orders made for a moratorium on the child spending time with the mother – Where orders made for child’s time with the mother to progress from supervised time provided she receives psychological treatment and complies with reporting obligations.

Judgment delivery date:

FAMILY LAW – CHILDREN – Final hearing – Oral decision – Parenting orders – Best interests of the child – Where the parties reached agreement on a number of orders – Where the mother shall have sole parental responsibility and decision-making authority – Where the child is to live with the mother – Where child has significant medical diagnoses that impair her functional cognitive capacity – where the child has not met the father – Where the child has no knowledge or understanding of her biological father – Where the child is not presently capable of understanding the concept of a biological father – Where it is unknown when the child will obtain that level of cognitive functioning – Where the father has a significant history of family violence convictions against multiple people and partners – Where the father sought to distinguish between his acts of “family violence” and him being “violent” – Where the father lacks insight into the concept of family violence despite multiple courses – Where there were risks in the mother’s household – Where these risks were not unacceptable – Where the mother is engaged with services to manage these risks –– Where the father presents an unacceptable risk of physical and psychological harm to the child – Where the child is to spend no time or have no communication with father – Where there are to be injunctions against the father given his significant history of stalking, harassment and convictions for breaching apprehended violence orders.

Judgment delivery date:

FAMILY LAW – CHILDREN – Where the proceedings concern one child aged 11 years - Where final orders were made in 2020 which provided for the child to live with the father and spend time with the mother – Where the mother’s time with the child was suspended in circumstances where she removed the child from the care of the father on two occasions – Where the mother was charged and received a custodial sentence with respect to her retention of the child – Where the mother has spent limited time with the child since 2020 – Where the issue in dispute is what time, if any, the child should spend with the mother – Consideration of the child’s views.

FAMILY LAW – HARMFUL PROCEEDINGS - Where the parties have been involved in litigation since 2016 – Where the father and Independent Children’s Lawyer seek an order be made restraining the mother from instituting further proceeding without leave – Where the court finds that the child would suffer psychological harm if further proceedings are instituted by the mother – Where an order is made pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth).
 

Judgment delivery date:

FAMILY LAW – PROPERTY – Where the applicant sought orders which would see her receive property valued at 40 per cent of the total nett value of the property – Where the respondent sought that the wife’s application be dismissed – Where it is the parties’ second de facto relationship – Where consent orders were made in the Supreme Court as a result of the first de facto relationship – Where two of the parties’ three children were born during the second relationship – Where the respondent contended there was an agreement to keep all of their finances separate – Where the court was satisfied that in all the circumstances it is just and equitable to make an order altering the interests of the parties – Where the applicant is the sole carer of the two children aged 13 and 11 and the respondent has made minimal contributions to their financial support since the February 2019 separation – Where the respondent has a history of inadequate disclosure – Where the respondent has a history of non-compliance with interim orders requiring him to pay money to the applicant – Where orders are made that the applicant receive property valued at 40 per cent of the total nett value of the property – Where the respondent sought to retain all real property under his control and make a cash payment within 90 days of the order – where the applicant sought the transfer of specified real property and to receive a cash payment – where orders are made for the transfer of specified real property and a cash payment.

Judgment delivery date:

FAMILY LAW – EXPERT EVIDENCE – Where the wife seeks to adduce adversarial evidence as to the value of farming land and the matrimonial home – Where the husband sought orders to appoint a single expert as to repairs to the roof of the home – Discussion of ‘special reason’ for allowing adversarial evidence – Where there is a special reason for allowing adversarial evidence in addition to the evidence of the jointly appointed single expert – Application to adduce adversarial evidence as to the value of farming land allowed – Application and response otherwise dismissed.

Judgment delivery date:

FAMILY LAW – COSTS – Where each of the parties sought a costs order against the others – Where costs were sought on an indemnity basis or alternatively costs in accordance with scale or as assessed – Consideration of factors under s 117 of the Family Law Act 1975 (Cth) – Where the Court is satisfied there are exceptional circumstances warranting indemnity costs given findings of non-disclosure– Costs ordered on an indemnity basis – Where costs for some discrete applications are excluded – Where the conduct of the second and fourth respondent was such that the Court found it disentitles them to a costs order.

Judgment delivery date:

FAMILY LAW – CHILD SUPPORT – interim application for departure – where the mother seeks a departure order for non-periodic child support – where the mother seeks for the father to pay for the child’s school expenses – where the father seeks departure order for non-periodic child support – where the father seeks for both parties to equally share in the child’s school expenses – where the court finds the father has significant financial resources available to him – where the court finds the mother and father expected the child to be privately educated – where the court finds the child anticipates attending a private school – where the mother has primary care of the child and the father lives overseas – finding of grounds for an interim departure order – orders made for non-periodic child support departure.

Judgment delivery date:

FAMILY LAW – COSTS – Where the mother seeks costs from the father on an indemnity basis – Where the father seeks an order that each party should bear their own cost – Where the father abandoned his Initiating Application – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Consideration of s 117(2A) of the Family Law Act 1975 (Cth) – Where the matter did not proceed to a final determination by the Court – Where the father has a superior financial position to the mother – Father to pay costs incurred by the mother on a party/party basis.

Judgment delivery date:

FAMILY LAW – PRACTICE AND PROCEDURE – Application to adduce further evidence – Where the respondent sought to adduce evidence about a programme to reintroduce the child to the father if the Court concludes that this is in her best interests – Where the applicant opposed the Application – Where leave is granted to the respondent to adduce the evidence sought.

Judgment delivery date:

FAMILY LAW – PARENTING – Parental responsibility – With whom the children live or spend time – Where the children are fourteen and sixteen years of age – Where the children live with the father – Where there were Children’s Court proceedings relating to the children – Where there is evidence of the mother’s poor mental health – Where the mother has a history of denying her poor mental health – Where the mother has not engaged in recommended mental health treatment - Where the mother was previously represented by a litigation guardian – Where the children are aware of the mother’s poor mental health – Where the mother has spent minimal time with the children since separation – Where the Independent Children’s Lawyer supports the orders proposed by the father – Father to have parental responsibility for the children – Children to spend supervised time with the mother – Mother permitted to send letters and cards to children.

Judgment delivery date:

FAMILY LAW – PROPERTY – Final orders – Where both parties seek an adjustment of property interests pursuant to s 79 – Where the husband submitted that that there was no warrant for an adjustment under s 75(2) – Where the husband contended that there should be a 53/47 percent split of the assets in his favour – Where the wife contended that there should be a 62/38 percent split of the assets in her favour – Where the husband denied all incidents of family violence – Where the husband elected to call no evidence about allegations of family violence beyond a denial – Where the husband is currently incarcerated due to convictions for sexual assault of the parties’ daughter and physical assaults of the wife and parties’ sons – Where the Court finds that the husband perpetrated family violence such that the wife’s contributions would have been made more arduous – Where the Court finds that the husband’s conduct had a financial impact on the wife – Where a just and equitable outcome was found to be a 62 percent split to the wife of the parties property.

Judgment delivery date:

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Where the Independent Children’s Lawyer issued a subpoena directed to the Director of Public Prosecutions seeking production of documents – Where the Director of Public Prosecutions has objected on the grounds of legal professional privilege and/or client legal privilege – Objection upheld.

Judgment delivery date:

FAMILY LAW – PROPERTY – Where the wife seeks a 70:30 split in her favour and the husband seeks a 60:40 split in his favour – Where there was a long marriage – Where the wife made submissions about her contributions citing Kennon & Kennon (1997) FLC 92-757 – Where the Court finds that the wife made greater contributions – Where the Court finds that the wife’s contributions were made significantly more arduous by the family violence perpetrated by the husband – Where a small adjustment is made in favour of the wife under s 75(2) of the Family Law Act 1975 (Cth) – Where the Court orders a division of property as to 62.5 per cent in the wife’s favour.