Judgments

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

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.

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.

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).

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

FAMILY LAW – PARENTING – Where both the mother and father seek sole parental responsibility and that the children live with them – Where there is high conflict between the parties – Where there is family violence perpetrated upon the mother and children by the father- Where there is an unacceptable risk to the children in remaining in the care of the father- Where the children’s safety cannot be assured in the care of the father – Where the Court finds the father incapable of supporting the children’s relationship with the mother – Where there is parental alienation of the mother by the father and his partner – Where the father and his partner have engaged in criminal activity and fraud in pursuit of that alienation – Where the Court has made interim orders for the children to spend time with the mother and the children have absconded – Where the younger of the two children is to have no contact or communication with the father and live with the mother – Where the older child is to live with the mother subject to his wishes – The mother to have sole parental responsibility of both children – Changeover of the children to be enacted at the Melbourne Registry with attendance by the ICL and a Family Consultant.

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.

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – discovery – documents sought by litigation funders –respondents seeking the imposition of conditions to the release of documents sought – implied undertaking – adequacy of confidential undertaking.

FAMILY LAW – PROPERTY – Final orders – s 79A– Where issues of non-disclosure – Where miscarriage of justice by reason of the failure to disclose relevant information and documents amounting to a suppression of evidence – Orders set aside and new orders made. FAMILY LAW – PRACTICE AND PROCEDURE – Application to adduce expert evidence – Retrospective market valuation of real property – Allegation of fraud – Delay – Application dismissed.

FAMILY LAW – PROPERTY SETTLEMENT – Alteration of property interests – Where wife alleges waste by husband – Where wife asserts there should be an addback of husband’s gambling losses – Where husband asserts the gambling occurred with wife’s knowledge and agreement – Whether husband’s expenditure on gambling should be regarded as waste – Whether there should be an inclusion of property as an addback or adjustment based on s 75(2) – Where Kowaliw and Kowaliw (1981) FLC 91-092 applied – Where husband’s gambling losses found to constitute waste – Where husband failed to make full and frank financial disclosure – Net assets divided as to 72 per cent in the wife’s favour – Section 75(2) adjustments made.

FAMILY LAW – PROPERTY – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where wife seeks a 55/45 division in her favour – Where wife seeks equalisation of superannuation –Non-compliance with filing directions – Non-disclosure – Where two pools approach applied – Where myriad of contributions assessed as equal – Consideration of s 75(2) factors – Where husband is 20 years older than wife – Where husband has retired and wife has an income – Where wife has ongoing care of the children of the marriage – Where husband’s financial position is unknown due to non-disclosure – Where 5 per cent adjustment made in favour of wife under s 75(2) – Where 55/45 division of non-superannuation pool in favour of wife is just and equitable – Consideration of the nature, form and characteristics of the respective superannuation interests – Where equalisation of superannuation is just and equitable.

FAMILY LAW – PRACTICE & PROCEDURE – Husband’s unopposed application to appear by audio visual link granted – Application by the wife to proceed on an undefended basis – Where husband did not file any response material or evidence in the proceedings – Where husband was warned the matter is likely to proceed on an undefended basis if he does not comply with filing directions – Where husband is unrepresented – Consideration of Re F: Litigants in Person Guidelines (2001) FLC 93-072 – Procedural fairness – Application to proceed undefended refused – Husband granted leave to cross-examine, tender documents, and make submissions.

FAMILY LAW – PARENTING – Family violence – Where the children have not spent time with the father for five years – Whether the father should spend supervised time with the children – Whether the mother’s parenting capacity would be adversely impacted if the Court makes an order for the children to spend time with the father – Permanent separation from a parent – No matters of principle.

FAMILY LAW – LEGAL PRACTITIONERS – Where the wife makes an application to restrain the husband’s lawyers from acting for him – Where the trial in the matter is part-heard – Where the cross examination of the parties has concluded – Where the issue of conflict had been raised prior to trial commencing – Where the husband’s solicitors resumed acting following the conclusion of the first tranche of the trial – Where there is insufficient basis to deny the husband the legal representation of his choice – Where it is not concluded that a fair minded reasonably informed member of the public might conclude that the integrity of the judicial process will be impacted by the husband’s solicitor continuing to act.

FAMILY LAW – PROPERTY – application for property adjustment between the husband and wife – whether interim distributions should be added back into the pool – where the husband contends the single expert valuation of a real property is flawed – where it is just and equitable to make an order – consideration of the parties’ contributions – where the parties’ contributions are assessed as equal – where a modest adjustment pursuant to s75(2) in favour of the wife is appropriate – where the overall pool will be adjusted and divided 52.5% to the wife and 47.5% to the husband.

FAMILY LAW – CHILDREN – Parenting Orders – Best interest of the child – Where father involved in two sets of proceedings – Where proceedings consolidated and heard together at trial with evidence in one evidence in the other – Where the Secretary, Communities of Justice intervened in one set of proceedings – Where serious allegations of family violence and violence by father have been made by both mothers, another ex-partner, various children and other adults – Where a key incident of serious family violence by the father against a subsequent ex-partner was captured on home CCTV audio-visual footage – Where the multiple prior allegations of family violence are strikingly similar to the assault captured on CCTV – Where father denies or minimises all allegations – Where one mother participated – Where the other mother withdrew and filed a submitting notice and the evidence establishes she has no current parenting capacity - Finding that the father was an unreliable witness - Finding that the father presents a high and unacceptable risk of physical and psychological harm to both children – Orders for the father to have no time and no communication with the children – s 68 B restraints on the father for the protection of the children and their carers and s 68C order – Live with and sole decision making authority to the mother who participated for her child – Sole parental and decision making authority to the Minister for the other child.

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – application by first respondent for indemnity costs against second respondent – second respondent failed to adequately discharge her duties concerning disclosure – application for indemnity costs granted.

FAMILY LAW – OBJECTIONS – Gender dysphoria – Where there is an array of expert evidence adduced by the parties and the Independent Children’s Lawyer – Where the applicant advanced objections to various parts of the respondent’s expert evidence on the basis questions posed to an expert were not permissible pursuant to an earlier order – Where the applicant contends s 69ZT(3) of the Family Law Act 1975 (Cth) is engaged and the evidence is in breach of the opinion rule – Where the circumstances of the case are not exceptional in a way which would justify the imposition of the rules of evidence to the proceedings – Where the asserted irrelevant or argumentative evidence will likely prove a legitimate topic for cross-examination – Where none of the applicant’s objections are made out – Ruling made.

FAMILY LAW – PARENTING – GENDER DYSPHORIA – Where the applicant, supported by the Independent Children’s Lawyer seeks sole parental responsibility for the elder child for the purpose of authorising stage 2 hormone treatment, which was opposed by the respondent – Where the child has had a fixed gender identity for the past five years – Where the major focus of the respondent’s case was the contended risks of stage 2 hormone treatment – Where the respondent was using these proceedings to attempt to subvert both the determination of the relevant medical professional bodies and the policy of the State Government – Where the risks of stage 2 hormone treatment are not unacceptable – Where it is in the best interests of the child for the applicant to be afforded sole parental responsibility including any decision in relation to the administration of stage 2 hormone treatment.

FAMILY LAW – COSTS – Where respondent filed no response to costs application – Where respondent’s conduct justifies costs order – Costs ordered in fixed sum.

FAMILY LAW – PARENTING – Where the father sought sole parental responsibility and that the child move to live with him and spend, at least for three months, supervised time with the mother – Where the mother sought sole parental responsibility and that the child continue to live with her and spend four days with the father each alternating weekend – Where the Independent Children’s Lawyer sought orders which mostly reflected those sought by the father and included that time was only to occur during the day – Where the mother has a rigid and negative view of the father which has been expressed in front of the child – Where there is significant parental conflict – Where the mother contended there was an unacceptable risk that the father will alienate the child from her – Where the father poses no unacceptable risk – Where orders are made that the child live with the father and spend time with the mother.

PROPERTY – Where the father sought orders which would see him receive property valued at 55 percent of the nett value of the property pool, with a further five percent adjustment for the future care of the child – Where the mother sought orders which would see her receive property valued at 67 percent of the nett value of the property pool – Where the parties’ contributions during the relationship were equal – Where the parties continued to live on the same property for four years following separation – Where the mother applied a not insignificant amount of her inheritance to the benefit of the family following separation – Where the parties’ contributions post separation were equal, save for the mother’s contribution of her inheritance to joint expenses – Where an adjustment is made for the father’s future care of the child – Where orders are made that see the parents share equally in the property.

FAMILY LAW – SUMMARY DISMISSAL – Where the Application in a Proceeding to join a third party was fundamentally flawed - Where the application is summarily dismissed of the Court’s own volition.

COSTS - Between solicitor and client - The Court has the power to make orders pursuant to r 12.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to prohibit legal representatives from charging for work done - Where the interlocutory proceedings have been incompetent - Both legal representatives are prohibited from charging for any work done in relation to the Application in a Proceeding and attendance at the hearing today.

FAMILY LAW – PROCEDURAL – oral application for Independent Children’s Lawyer’s Costs – in circumstances where all other parties except the maternal aunt are legally aided – where it would not be in the interests of justice to require the maternal aunt to pay costs – application dismissed.

FAMILY LAW – NULLITY – application for decree of nullity sought by the applicant – marriage contrary to s 23B of the Marriage Act – the wife asserts she was mistaken as to the nature of the ceremony – the respondent asserts it was a valid marriage – decree of nullity ordered.

FAMILY LAW – PRACTICE AND PROCEDURE – Release from Hearne v Street obligations – Leave given for use of documents in Federal Court proceedings – Where an order was sought that the applicants will not be in breach of any provisions of Part XIVB of the Family Law Act 1975 (Cth) by using any of the documents for the purpose specified – Where jurisdiction or power for such an order is not apparent – Parties to file written submissions in relation to this proposed order if it is pursued.

FAMILY LAW – PARENTING – Applicant proposed relocating with children to the United Kingdom – Children aged six and three – Children have good relationship with respondent – Where relationship will still be one of positive significance following relocation – Where applicant’s parenting currently adequate despite poor mental health – Where applicant’s wellbeing will be improved if permitted to relocate – Whether best interests adversely affected to justify imposition on parent’s right to relocate – Order made permitting relocation.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim orders – Where the wife’s primary claim is for a lump sum of $150,000 for spouse maintenance – Where the husband has capacity to pay a lump sum from funds held for both parties in solicitors’ trust accounts – Where any interim lump sum ordered can be adjusted in the final property orders – Where the wife requires leave of the Court pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to institute spouse maintenance proceedings four months after the expiration of the 12 month period from the date the parties’ divorce orders took effect – Whether the wife would suffer hardship if leave was not granted to institute her spouse maintenance claim – Where the wife’s delay in instituting spouse maintenance proceedings is not material and not sufficient reason to refuse leave – Residual discretion exercised to grant leave for the wife to commence proceedings for spouse maintenance pursuant to s 44(3) of the Act – Order for lump sum interim spouse maintenance of $50,000 in favour of the wife.

JURISDICTION – Where the wife previously sought leave to commence spousal maintenance proceedings in the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) and the Court lacked jurisdiction pursuant to s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the wife filed an initiating application in the Federal Circuit and Family Court of Australia (Division 2) seeking leave to institute spousal maintenance proceedings out of time pursuant to s 44(3) of the Act – Where the wife’s application was transferred to Division 1 removing previous jurisdictional impediments.

FAMILY LAW – PARENTING – Allegations of child sexual abuse and family violence perpetrated by the father – Where the mother, at the conclusion of the trial, concedes that the evidence does not support a finding that the father poses an unacceptable risk to the children – Where the mother nevertheless maintains her belief that the child was sexually abused by the father – Finding that the father has not sexually abused the child and the mother’s allegations are groundless – Finding that the mother poses an emotional and psychological risk to the children emanating from her fervent belief the father has sexually abused the child absent any objective evidence – Where the father seeks the children live with him and spend substantial and significant time with the mother – Where the mother seeks a week about arrangement – Best interests of the children – Where the father is best placed to ensure an ongoing relationship between the children and both parents – Change of residence – Order for sole parental decision making to be vested in the father and for the children to spend significant and substantial time with the mother.

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING – EQUITABLE RELIEF – ACCRUED JURISDICTION – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the intervener seeks that the Federal Circuit and Family Court of Australia (Division 1) exercise its accrued jurisdiction to determine his claim in the s 79 proceeding – Where the husband made significant direct financial contributions at the commencement of cohabitation, including by way of an interest in a prosperous trading enterprise – Where the intervener claims a 30 per cent interest in that enterprise as recorded in two written agreements made between he and the husband, one of which was entered years before the marriage – Where the husband concedes the claim of the intervener – Where the wife contends that the two written agreements made between the husband and the intervener purporting to allocate 30 per cent of the husband’s interest to the intervener were “fabricated and not genuine” – Claim of the intervener established – Where the nature of the relationship between the husband and the wife was to some extent commercial and characterised by arm’s length dealings, including the clear maintenance of separate financial identities – Where the wife has attempted to machine aspects of her case, including evidence, to obtain a forensic advantage – Where homemaking contributions do not loom large – Where the wife has failed to adhere to her disclosure obligations – Where the wife will have the first opportunity to retain a real property in specie – Orders made adjusting the property of the husband and the wife 83.5 per cent to the husband and 16.5 per cent to the wife.

FAMILY LAW – PROPERTY – Interim orders – Consideration of the application of funds in various offset accounts towards various mortgages – Where the parties propose to retain the mortgage to ensure redraw facilities are available – Where there is no opposition by the husband – Where the wife provided a proposed Minute of Order – Where the husband was given the opportunity to forward a schedule of the revised balances in the various accounts – Where no schedule was received – Orders made in terms of the wife’s proposed Minute of Order.

FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Best interests of a child – Where two children live with the wife and one child lives with the husband – Where the husband seeks orders for the children to live with him – Where there is no evidence as to whether the children will be beneficially or adversely impacted by the husband’s proposal – Where the matter has a trial listing date – Where the Court declines to change the current arrangements prior to trial.
 

FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties are engaged in protracted and highly vexatious litigation – Where the wife seeks various orders in relation to disclosure, injunctions and the release of documents pursuant to the Harman undertaking – Where the husband agrees to the release of documents – Where the Court makes various orders in relation to disclosure in accordance with the Rules – Consideration of injunctions sought by the wife – Where the wife seeks the husband be restrained from enabling the children to use an e-scooter – Consideration of relevant state law and regulations – Orders made.

FAMILY LAW – PARENTING – where the mother made an oral application for the child to attend upon a new treating psychologist – where the mother submits the current treating psychologist is not independent – where the father and ICL submit the child has a longstanding therapeutic relationship with his current treater – oral application dismissed.