Judgments

FAMILY LAW – Final parenting orders – undefended hearing – where the father did not appear at the final hearing – where the court is satisfied to proceed in the absence of the father – where the court is satisfied to proceed undefended – where the children live with the mother – where the mother have sole parental responsibility for the children – where the children have no contact or communication with the father.   

MIGRATION – deportation – application for urgent injunction –applicant provided false information on visa application – visa cancelled at immigration clearance – injunction to prevent Minister removing applicant – no jurisdictional error. 

FAMILY LAW – Contravention application – where the father alleges 6 counts of contravention – where the father alleges contravention of the final orders of 2022 – where the father alleges contravention of the 2023 orders – where the mother has been found to have previously contravened the orders in 2023 – where the mother enters into a bond – where there be three conditions of that bond.   

FAMILY LAW – Parenting – final orders – oral reasons delivered soon after the hearing – where the mother have sole parental responsibility – where the children live with the mother – where the time spent between the father and children be decided by the mother and on such conditions by her – where the mother be authorised to obtain passports for children – where the mother be authorised to travel with the children outside the Commonwealth of Australia – where the mother be permitted to change the last names of the children. 

 FAMILY LAW – Where a witness was called to provide “messenger” communication to the court – where the witness declined to provide the communication – where the court made a ruling for the communication to be provided.   

MIGRATION – application for review of decision made by Registrar to summarily dismiss judicial review application – review application set aside – application listed for final hearing – Administrative Appeals Tribunal not satisfied applicant met cl 500.211 of the Migration Regulations – whether the Tribunal’s decision was affected by jurisdictional error – no jurisdictional error established – application dismissed.

FAMILY LAW - Parenting - interlocutory application - subpoena objection - protected confidence considered - costs. 

FAMILY LAW – Summary decree – s 102QAB - no reasonable prospect of orders other than those identified – no time or communication other than in accordance with the child’s wishes. 

FAMILY LAW – PROPERTY –– where issue exists as to the value of the property of the parties available for adjustment –where issue exists as to the value of the payment to be made by the husband to the wife - where the wife seeks 65 percent of the property as she asserts in her favour – where the husband seeks that he achieve 75 percent of the property as he asserts in his favour- where there are evidentiary deficiencies and vacuums in the evidence adduced by each party and neither complied with their obligations of disclosure - where there is agreement as to how property is to be adjusted in specie- where neither party impressed as a compelling witness -where the material sought to be relied upon by the parties was disproportionate and unnecessary - where the husband made the overwhelming majority of the direct financial contributions directing weight to the use made of those contributions – where no orders made adjusting the contribution finding - orders made for the wife to receive 35 percent and the husband 65 percent of the found property pool. 

FAMILY LAW – Application to remove children from the Airport Watchlist – Application to take the children on an overseas holiday – Where the mother seeks to take the Children to a non-Hague Convention country – Where the mother is not a flight risk and has significant ties to Australia- where the Independent Children’s Lawyer went above and beyond the call of her duty by explaining the orders to the children outside of normal business hours – where the Independent Children’s Lawyer went above and beyond the call of her duty by making her firm’s trust account available to the parties for the purpose of depositing and retaining a surety during the pendency of the overseas travel. 

FAMILY LAW – PROPERTY – removal of shareholder as party. 

FAMILY LAW – Application for Review – Interim parenting – substantive review of a Senior Judicial Registrar’s decision about child’s unsupervised time with the father – the father has commenced unsupervised time – the mother now accepts unsupervised time – the father seeks to significantly increase time as of 2026 and enrol the child in school close to his home about 100kms from where the child lives with the mother – orders made to vary the days on which time occurs in 2025  – orders made for time in 2026 – overnight time on special occasions only – changeover location moved to the midway point –  order for vaccinations - Application otherwise dismissed. 

FAMILY LAW – DIVORCE – where the Wife asserts reconciliation remains a reasonable possibility – where the Husband considers the marriage to be over – where the divorce is granted. 

FAMILY LAW - Parenting – Where Mother had historically been children’s primary carer – Where Father perpetrated serious family violence including physical violence and coercive control – Where both parents were using drugs during relationship – Where Mother and children were living in shelters for periods of time – Where in January 2022 the paternal grandfather withheld the children after a contact period with their Father – Where the children have been living in the Father’s primary care since January 2022 – Where the Mother has ceased drug use and has engaged in counselling – Where Father uses medicinal cannabis but where there is no medical evidence as to why – Where there are risks to children remaining in the Father’s primary care – Where neither parent seeks supervised time for the other parent - Where the risks can be ameliorated – Where orders are made for the children to live with the Mother.  

FAMILY LAW - CONTRAVENTION - sentenced to twelve concurrent nine-month bonds – no basis for pecuniary penalty or imprisonment. 

FAMILY LAW – s 102NA – broad construction. 

FAMILY LAW – Children – contravention of parenting orders – contraventions of earlier interim orders replaced by final orders – contraventions of current orders.

FAMILY LAW — COSTS — Whether costs should be ordered, and if so, on an indemnity basis –  Where the Respondent filed but later abandoned contravention applications after a number of hearing days.

FAMILY LAW – Costs application – heard on the papers – where the Father discontinued his application – where the Mother sought costs – where the Mother incurred costs in preparation of response to the Father’s application – where the court is satisfied a costs order be made.  

FAMILY LAW – PARENTING – application for review – orders of registrar dismissing application under section 65DAAA – application out of time – substantial issue to be tried – delay not prejudice the respondent – review allowed out of time – significant change of circumstances but not in children’s best interests to revisit the final parenting orders – application for review dismissed. 

FAMILY LAW – FORUM  NON CONVENIENS – DIVORCE AND PARENTING – Where Wife files application for divorce and application for parenting orders – Where the Wife and the child are domiciled in Australia, whilst the Husband is domiciled in India – Where the Husband subsequently files proceedings in India petitioning for a restitution of conjugal rights and custody of the parties’ child – Where the Husband seeks a restraint on the Wife from continuing with both of the Wife’s applications on the basis that Australia is a clearly inappropriate forum. 

FAMILY LAW – PARENTING – Findings of family violence – Benefit of a relationship with father – Arrangements that would promote safety of the children – Aboriginal culture considerations.  

FAMILY LAW – Costs application – where the Mother seeks unquantified costs pursuant to section 117 of the Family Law Act 1975 (Cth) – Mother’s substantive application for adult child maintenance summarily dismissed – Father’s substantive application wholly successful – no cost orders made. 

FAMILY LAW – Final Parenting Orders – Warrnambool circuit sitting – undefended hearing – where the matter was listed for mention – where the Father did not participate – where the court raised whether to proceed on a final basis – where the court is satisfied the Father has been served in the Northern Territory – where it is in the best interests of the child to proceed on a final basis – where the child lives with the Mother – whether the child should spend time with the Father as agreed between the parents – whether the Mother should have sole parental responsibility for the child – final orders made as sought by the Mother. 

FAMILY LAW – COSTS – review of decision – where the father was ordered by a senior judicial registrar to pay the mother’s costs in relation to interim proceedings in a fixed sum – finding that the senior judicial registrar did not have the power to make a costs order in circumstances where interim orders were made by consent without an interim hearing – review application allowed – costs of the interim hearing reserved. 

FAMILY LAW – COSTS – Parenting and property proceedings – Costs application filed by the Applicant following final hearing – Where the First Respondent and Second Respondents oppose the application – Where the First Respondent and Second Respondents are self-represented – Consideration of the factors set out in section 117(2A) – Where the Applicant received a section 102NA grant of legal aid partway through the proceedings and was previously privately represented – Where the Applicant seeks costs that pre-date the grant of legal aid – Where the First and Second Respondents failed to accept reasonable offers of settlement – Where the Respondents have the financial means to meet a costs order – Order for costs in relation to property applications only – Costs to be paid to the Applicant by the First and Second Respondents at scale. 

FAMILY LAW – PROPERTY – leave out of time – sufficient likelihood of success – hardship – delay – hardship to wife outweighs any prejudice to the husband – leave granted. 

FAMILY LAW – Property only - weight to be given to various contributions - 29-year marriage - whether there should be an adjustment pursuant to s.75(2) - income earning disparity - wife seeking periodic spousal maintenance. 

FAMILY LAW – APPLICATION FOR REVIEW –mother unilaterally relocated with the children – review of orders for mother to return children to area where parties had been living – best interests of children – allegations of coercion and control – freedom of movement –determination that children return from Suburb B to Suburb C pending a final hearing – application for review dismissed.  

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 – PRACTICE & PROCEDURE – Interlocutory application to restrain the husband’s solicitor from acting for him – where the parties have a high conflict co-parenting relationship – highly adversarial proceedings – where the husband’s solicitors adult son provided child minding services to the husband – potential conflict of interest – integrity of judicial system – entitlement to solicitor of choice – what might a fair-minded, reasonably informed member of the public conclude – balance of public interests considerations – inherent jurisdiction of the court – application dismissed with costs. 

FAMILY LAW –  Final Property Alteration Orders – Marriage of 8 years until separation – 6 years of contributions prior to marriage – Disparate initial contributions – Weight to be given to gifts and/or inheritances when considering section 79(4) contribution – One party seeks s 79(4) contribution assessment of 85/15 – Other party seeks s 79(4) contribution assessment of 50/50 – Difficulty with the parties organising appropriate evidence for trial – Where one party alleges “double shift” contribution – Where one party seeks to retain the farm and pay out the other party and other party seeks orders for sale of all/most assets – Dispute as to form of default of payment provisions in orders – Dispute as to whether payment to departing party should be fixed by reference only to agreed pool or whether actual sale proceeds and likely capital gains tax should be taken into account – Whether the party seeking to retain the farm should have up to one year to fund property settlement – Whether party to receive payment should leave farm immediately or upon receipt of property settlement – Whether parties should be responsible for drafting of default provisions of orders after determination and reasons delivered – Where neither party provided evidence of extent of potential capital gains tax – Orders for 80/20 division would not be just and equitable – Orders for 50/50 division would not be just and equitable – Party seeking to retain farm should have up to 6 months to fund property settlement – Party to leave former matrimonial home when property settlement received – s 79(4) contribution assessed at 72.5/27.5 – s 75(2) adjustment of 3% – Division of assets 69.5/30.5 – Party retaining farm to have 6 months raise payment before default provisions take effect – Orders made for a payment calculated on basis of a 31/69 division of property and for parties to bring in draft orders as to default of payment provisions and for default of payment provisions to take into account selling costs and any taxes arising from sale. 

FAMILY LAW – Parenting – section 65DAAA threshold hearing – where reasons were delivered orally a short time after the conclusion of the hearing – where mother alleges a change in circumstances from the final orders of September 2023 – where father asserts there is no significant change of circumstances – where it is alleged there is a serious breakdown in the co-parenting relationship between the parents – where the court is satisfied there is a change in circumstances and s 65DAAA satisfied – interim hearing – change of school enrolment – order for Child Impact Report – order for Independent Children’s Lawyer – different evidentiary tests for s 65DAAA compared to interim hearing.  

FAMILY LAW – PROPERTY – Long marriage – Where there is dispute as to the value and nature of goodwill in the husband’s corporation – Where the single expert valuer opines that the goodwill component determined by him in the valuation of the corporation is enterprise goodwill – Where the husband asserts that inalienable personal goodwill exists and ought not to be part of the value of the company – Where this submission is accepted and the value of the goodwill ascribed by the single expert is deducted from the value – Where monies expended by the wife on legal fees and tax debt post separation are notionally added back to the pool for division – Where contributions throughout the relationship are found to be equal as agreed by the parties – Post-separation contributions favour the wife – Both parties assert that an adjustment should be made to the contribution findings pursuant to s79(4)(d)-(g) of the Family Law Act – Where adjustment made in favour of the husband owing to the disparity in income earning capacity.  

FAMILY LAW – Parenting – where the matter was set down for final hearing – where the court was unable to hear this matter – where the matter is adjourned to another Judge of this court – where interim orders are made – where there be orders for counselling for the child. 

FAMILY LAW – Parenting – Interim hearing – Where parties settle all but one issue on interim basis – Remaining dispute over when overnight time to commence with the mother – Where father ceased time between children and mother for significant period – Where father alleges children at risk in mother’s care – Where mother acquiesced in supervised time in order to see children – No significant risk identified in untested child impact report – Overnight time to commence at earlier date – Psychological reports of parents ordered. 

FAMILY LAW –PRACTICE & PROCEDURE – application by the wife for leave to reopen for purpose of adducing further evidence after the close of the final hearing – where closing submissions were agreed to be made in writing – where judgment on the substantive application was reserved – leave to reopen granted on a limited basis to adduce specific documents – leave granted to the husband to adduce confined evidence in rebuttal to alleviate possible procedural unfairness. 

FAMILY LAW – CHILDREN – Interim hearing. 

FAMILY LAW – No appearance by the father – undefended hearing - deliberate failure by the father to comply with the Court's orders for drug testing and refrain from attending the children’s daycare centres and sending inappropriate communications to the mother and improper threats - the father continues to struggle with addiction to methamphetamine and marijuana – father convicted of driving under the influence of methamphetamine and breaching ADVOs protecting the mother and children– father continues to have no insight as to his own conduct – not safe for children to have a relationship with the father - risk to the children is sufficiently real and has a catastrophic consequence for the children unless arrangements as identified in these parenting orders were made.

FAMILY LAW – PARENTING – LIVE WITH -RELOCATION – Where the mother seeks an order to relocate the two children from City B to Melbourne – Where the mother will not move to Melbourne unless she is permitted to relocate the children – Where the father opposes the relocation – Where the parents agree that if they live in the same city the children will live in an equal time week about arrangement with each parent – Where there are no safety issues in the household of either parent – Where the children have additional needs due to their diagnoses – Where the children have meaningful relationships with both parents – Where the mother’s capacity to financially support herself and the children will be enhanced if she is permitted to relocate to Melbourne – Where the mother’s mental health and sense of wellbeing will be enhanced by emotional and practical support from her family in Melbourne – Where the mother’s parenting capacity will be enriched by moving to Melbourne – Where father and his partner and child are able to relocate to Melbourne – Order made permitting relocation of children to Melbourne.

ALLOCATION OF RESPONSIBILITY FOR DECISION MAKING – Parents agree that they will share decision making for major long-term issues relating to the children except long-term medical issues – Where the mother seeks sole decision making for long-term medical issues relating to the children – Where the children’s long term medical needs will be met if the mother has sole responsibility for decision-making about long-term medical issues relating to the children – Where it is necessary to eliminate opportunities for parental conflict and avoid delay in obtaining appropriate medical assistance for the children – Order made that mother will have sole decision  making for all major long-term issues relating to the children.

FAMILY LAW – FINANCIAL – SPOUSAL SUPPORT – Mother seeks order for de facto spousal maintenance – Father opposes order – Where the Court is satisfied that the mother is currently unable to support herself adequately – Where the Court is satisfied that the father has the capacity to pay spouse maintenance – Order made for payment of periodic spouse maintenance for six months from the date of these Orders.

FAMILY LAW – PARENTING – Change of residence – Illicit substance use – Family violence – Demonstrated ability to care for the child.

FAMILY LAW – Application in a proceeding seeking child to be included on airport watchlist – alleged fear of child being abducted to Country B – Country B is not a Hague convention country - potential abuse of system – independent children’s lawyer appointed - application dismissed. 

FAMILY LAW – COSTS – Between parties.

FAMILY LAW – Review of decision – review of orders made by a Senior Judicial Registrar for the mother to return the child to reside in the Sydney area – where the mother relocated with the child with the consent of the father for a period – where the father did not consent to the relocation on a permanent basis – review dismissed  
 

FAMILY LAW – PROPERTY – lengthy relationship with two children with special needs – husband inherited an interest in three real properties – wife’s post-separation parenting made more onerous by the husband’s behaviour – children live with wife and spend no overnights with the husband – wife reliant on government benefits and the National Disability Insurance Scheme – complete lack of disclosure by the husband – section 75(2) factors of the Family Law Act 1975 (Cth) favour the wife – payment to wife to be deferred pending termination of a life interest in one of the real properties. 
 

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of litigation guardian – Identity of litigation guardian. 
 

FAMILY LAW – COSTS – father wholly unsuccessful in his application for further interim parenting orders, made after the matter was listed for a compliance and readiness hearing – father wholly unsuccessful in his application to discharge the appointment of the single expert family report writer and for an updated report to be prepared by an alternate expert – applications for costs made and written submissions filed prior to the commencement of Part XIVC of the Act relating to costs, introduced by the Family Law Amendment Act 2024 (Cth), but determination not made until after the commencement of those changes – parties invited to make submissions in respect of legislative change – mother and independent children’s lawyer submit Part XIVC applies to determination of the costs applications but with no substantive impact on the determination – the father submits the provisions of the former section 117 continue to apply – Part XIVC applied but with no impact on determination – order for father to pay mother’s costs at scale – no order made in respect of the costs of the independent children’s lawyer, which were not quantified or the subject of submissions 
 

FAMILY LAW – Parenting - family violence – where father admits acts of family violence but says he has changed – whether father is an unacceptable risk to the children – HELD that father is an unacceptable risk to the children – orders that the children spend no time with the father