Judgments
Division 2 - Family law
FAMILY LAW – CHILDREN –Where the father has refused to disclose details of his mental health – Where the father has inability to manage and control his aggression –Where father’s use of force and excessive disciplining of children leaves them at risk of harm in his care – Where father lacks insight - Where mother found to have acted protectively– Where father’s tendency to lie about his conduct and his negative narrative about mother to external agencies’ responsible for protecting children has exposed children to harm – What weight to place on views of eldest child who is resistant to spending time with the father. FAMILY LAW – PROPERTY – Value of property. FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Contribution by third party – Future needs.
FAMILY LAW – final hearing – Aboriginal child in care of non-Aboriginal putative paternal grandparents – risks arising in relation to each of the mother and the putative father – where putative father lives with putative paternal grandparents – where child has experienced significant change in her living arrangements to date-orders for parenting arrangements.
FAMILY LAW – Application to review decision of Registrar – effect of notice of discontinuance –where Applicant filed notice of discontinuance – where no response filed – where Registrar ordered matter be set down for ‘undefended hearing’ after notice of discontinuance filed at urging of Independent Children’s Lawyer (‘ICL’) – where Court is no longer seized of the matter – where ICL has no standing to maintain the proceeding – Registrar orders of no effect – application for review upheld and proceeding discontinued.
FAMILY LAW – COSTS – where the applicant wife was wholly unsuccessful in bringing an application for property division pursuant to s90SM – the wife’s application lacked any merit – wife’s refusal to accept reasonable offers – where indemnity costs were considered – where costs pursuant to the scale are inadequate – special costs payable
FAMILY LAW – Parenting – where final orders were made in February 2024 – where the father was given sole parental responsibility – where the children were to live with the father – where the orders did not allow for the children to spend time with the mother unless otherwise agreed between the parties – where child protection were notified of risk to the children in the fathers care the same day as the final orders and reasons were handed down to the parties – where the court makes no finding on that notification to the department – where the department appeared amicus curae – where the department intervened – where there are orders made in City B children’s court – where the department did not have access to the reasons of the proceedings in this court – where the department did not give consent for orders in this court be made under section 69ZK – children court proceedings in October – parties are directed to advise chambers of future children court proceedings – fixed for a further hearing on a date to be advised.
FAMILY LAW – Property – Where the parties have property in the United Kingdom and Australia – Where the Respondent wife raised an issue of forum non conveniens – Where part of the property pool is situated in company assets – Where the Applicant husband received substantial post-separation inheritance – Where inheritance is treated as a separate pool – Where the Court makes an equal contributions finding as to the non-inheritance pool – Where s 75(2) adjustment made in favour of the wife
FAMILY LAW – Interim hearing – issue of interstate relocation – where the mother now resides in Town B with the children – where the father resides in Queensland – where the father alleges the mother unilaterally relocated with the children – where the mother alleges the father was aware her intention to move – where the mother moved to Town B for a better job opportunity – where there is a real issue of the mother promoting the relationship of the father to the children – where the mother previously made monetary requests of father to see the children – where the mother changes her position during the hearing – where time with the father is to re-commence – where the children are to live with the mother in Town B until the final hearing – where a family dispute resolution conference is ordered – trial directions made.
FAMILY LAW – PARENTING – Short form reasons – Urgent oral interim application for parenting orders – Immediate change of residence – Whether there is an unacceptable risk to the child
FAMILY LAW – Parenting – application for stay of final orders pending an appeal – immediate risk to child of physical and psychological harm outweighs long term risks identified at final hearing – stay application granted.
FAMILY LAW – REVIEW – PROCEDURAL – Whether the listing date should be moved forward and the time for the Respondent to file their material be shortened – Whether the decision is reviewable – Whether the matter is urgent such that it would justify the matter being given precedence over other matters before the court – Whether there is evidence of an alternative judicial officer to deal with the matter if it is brought forward.
FAMILY LAW – REVIEW – PROCEDURAL – Father seeking an urgent hearing date and that the listing on 30 October 2024 be brought forward – no alternative available date before a judicial officer detailed – Whether the matter is reviewable and, if so, has sufficient urgency to warrant it taking precedence over other matters before the court.
FAMILY LAW – Opposed divorce application – whether there is an extant marriage – recognition of overseas divorce in Australia – where the parties were married in Country B – where the parties migrated to Australia – where the parties have resided in Australia until 2023 – where the respondent returned to Country B in 2023 to visit family and while there retained lawyer for a divorce application – where the respondent filed for divorce in Country B – residence or domicile or last place of cohabitation qualifications of section 104(3) not satisfied – whether common law rules of private international law of recognition of overseas divorce satisfied – whether applicant for Australian divorce “appeared” in overseas divorce proceedings – where the fact of overseas law required to be proved by admissible evidence – matter requiring expert evidence – where there was no admissible evidence – where not in the interests of justice for court to call expert evidence – apparent anomaly of overseas divorce does not activate section 44(3) time period-section 55A declaration where children not seeing one parent – where none of section 104(3) or common law recognition of overseas divorce conditions satisfied – divorce order made
FAMILY LAW – CHILDREN – Interim parenting orders sought – Department for Child Protection and South Australia Police reports made by the mother – mother has made historical allegations of sexual abuse against father – allegations of father hurting the child physically – ongoing investigations by South Australia Police – Independent Children’s Lawyer appointed - ex tempore reasons delivered – orders made
FAMILY LAW – Enforcement application - $80,000 from settlement held in trust – one party, without agreement, undertook work on the former matrimonial home – interpretation of orders – whether unilaterally chosen work with “selling conditions” – whether unilaterally chosen work within “jointly” market – whether oral application pursuant to section 90SN(1)(a) & (c) to set aside orders sought to be enforced should be accepted – oral application accepted – no miscarriage of justice – section 90SN application dismissed – order to give effect to final orders made – costs ordered
FAMILY LAW – REVIEW – Whether interim orders made by a Senior Judicial Registrar should be varied by changing the living arrangements of the children – Whether it is in the bests interests of the children to live with the Father and/or spend significant time with him – Whether either party poses an unacceptable risk to the children.
FAMILY LAW – PROPERTY – De facto relationship – non-compliance with trial directions – complete non-disclosure by respondent – failure to file or challenge evidence.
FAMILY LAW – PARENTING – Undefended hearing as against the father – Where the paternal grandfather and paternal uncle make the same application for time with the child – Findings of family violence – Mother’s evidence mostly uncontradicted – Father incarcerated at the time of hearing – Father pled guilty and convicted of a serious criminal offence relating to a member of the mother’s family –Where the father has not spent time with the child since his incarceration – Child to spend no time with the father or the paternal family – Where order for the mother to have sole decision-making for long-term issues is in the best interests of the child
FAMILY LAW – Interim defended hearing – where the child lives with the mother – where no long term parental decision making orders were made – appointment of an independent children’s lawyer – where the father seeks an increase of time – where the mother raises concerns of the father’s living arrangements – where the mother raises concerns of the father’s mental health – where the mother believes there is a risk of harm to the child in the father’s care – where the court found no proper basis of risk – where the mother seeks the father to enrol in a men’s behavioural change program – where the father’s time increases to 6 hours each alternate Saturday – where the court placed no restrictions of where the child can attend with the father – where the father has begun attending upon a psychologist prior to the hearing – where the court did not order the father to enrol in a men’s behaviour change program
FAMILY LAW- Final hearing- determination of parenting arrangements- where father not engaged in final hearing- where risk of exposure to drugs and alcohol to the children- where consideration of best interests of the children- consideration of benefit of time with father.
FAMILY LAW – Parenting – Urgent application for international recovery order – Where mother has taken child overseas without notice to father – Where mother appears to have no intention to return to the Commonwealth of Australia any time soon – Decision to proceed in absence of mother – Decision to proceed ex parte – Recovery order made – Where recovery order pressed in form of a request, not as a demand or in any way interfering or usurping the courts and authorities of overseas jurisdiction.
FAMILY LAW – Property proceedings – long marriage – asset pool in dispute – litigation guardian – 11 years since separation – substantial post-separation contributions – section 75(2) factors – NDIS funding meeting needs – whether proposed division is just and equitable.
FAMILY LAW – De facto property proceedings – one child of the parties – dispute over commencement and conclusion of relationship – short relationship – contributions significantly favour the de facto husband – no likely future needs adjustment – leave out of time – hardship – whether there is a significant likelihood of success – inadequate reasons for delay – prejudice to the respondent due to the significant passage of time – costs of property proceedings likely to outweigh the de facto wife’s entitlement – application dismissed.
FAMILY LAW – PARENTING – Both parents with limited capacity to act in best interests of children – Findings of family violence – Weight given to views of Children – Leaving door open for children to have relationship with the other parent
FAMILY LAW – contravention application – multiple allegations of contravention of orders – allegations predate the last contested final hearing – unnecessary to determine whether application an abuse of process – allegations not made out on balance of probabilities – some allegations de minimis – contravention application dismissed
FAMILY LAW – PROPERTY – Final hearing – De facto relationship of some 30 years – Out of time issue – De facto husband seeks leave to proceed out of time and a property settlement of 55% in his favour – De facto wife opposes the out of time application – De facto wife argues that it is not just and equitable to alter the parties’ interests – Stanford sought to be applied – Assets and liabilities at trial in the individual names of the parties – Where the Court declares a de facto relationship existed between 1991 and 2021 – Just and equitable for there to be an adjustment of the parties’ interests – Orders made for the sale of real property – Division of property 45/55% in favour of the de facto wife – Justice and equity.
FAMILY LAW – Property – part-heard – drawdown - injunction – administration of justice
FAMILY LAW – PARENTING – Application for review – unilateral removal from school and enrolment at new school – common intention of parties – views of the child – acrimonious co-parenting relationship – best interests of the child – application for review dismissed
FAMILY LAW – Procedural - threshold issues - hearing vacated – fixed for final property hearing – costs reserved
FAMILY LAW – COURTS AND JUDGES – Disqualification. FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal.
FAMILY LAW – PARENTING – supervised time – alternate weekends
FAMILY LAW – PROPERTY – Adjustment of property interests pursuant to s79 of the Family Law Act 1975 (Cth) – Where there are substantial issues as to the nature and composition of the property with the wife contending the husband has a legal interest in an overseas financial enterprise operating a business – Where the material and case presented by each of the parties was contradictory and confusing and did little to assist in the finding of facts - Where the wife contends that the husband made her contributions more onerous arising from the principles enunciated in Kennon v Kennon (1997) FLC 92-757 – Where the wife’s contention is not established - Where the husband made superior financial contributions - Where the husband’s failure to provide a full and frank disclosure makes it difficult to ascertain his true financial position- Where a ten percent adjustment is made to the contribution findings in the wife’s favour as a result of the husband’s disclosure failures - Where the husband was granted legal representation funded by the Commonwealth Family Violence and Cross-Examination of Parties Scheme despite living overseas and the husband concedes he did not advise of this when making his application – Where a copy of this judgement will be provided to the Legal Aid Commission and liberty granted to make such application as the Commission sees fit.
FAMILY LAW – Parenting – Application for recovery order – Child under a NSW Children’s Court order – Child welfare officer of State of NSW consent in writing to orders – Where orders were made for return of child by father several days prior – Child not returned pursuant to earlier orders – Recovery order made.
FAMILY LAW – Parenting – Urgent interim hearing – Whether a recovery order can be made for child governed by a very old children’s court order – Longstanding arrangement – Conflict between teenager and ‘live with’ parent – Child not attending school – Child now living with previous ‘spend time’ parent – Child to live with long term ‘live with’ parent – Matter adjourned pending advice from NSW Child Protection.
FAMILY LAW – Property – Priority Property Pool case – Application to restrain a solicitor from acting – Where respondent defacto husband claims to have contacted community legal service representing defacto wife – Decision not to restrain legal service from acting for de facto wife – Not in interests of justice to delay proceedings further – Application for extension of time to apply for property orders due to hardship pursuant to section 44(6) accepted – Orders to divide chattels between parties.
FAMILY LAW – Spousal maintenance liability order discharged – all outstanding amounts reduced to a nil sum – significant change of circumstances of both the applicant and respondent - respondent remarried
FAMILY LAW - PROPERTY – de facto relationship – 20 years – 2 daughters – relationship ended March 2009 - ongoing financial connection with joint property- de facto husband acquired whole of joint property as a result of debtor’s petition by de facto wife- proceedings commenced 2017 – unfortunate procedural history- alteration of property interests under s90SM – orders for payment of $75,000 and otherwise sale of property
FAMILY LAW – PROPERTY – Modest asset pool – 40 years of cohabitation – Broad-brush approach – Overall contributions equal – Future needs adjustment
FAMILY LAW – PARENTING – where the mother seeks orders that the children live with her and she have responsibility for major long-term decisions, where the children have lived with the paternal grandparents since late 2021, where there are issues of family violence, alcohol and drug abuse, child neglect and child protection – where it is in the best interests of the children to remain in the primary care of the paternal grandparents
FAMILY LAW – property proceedings – length of relationship – short de facto relationship – initial contributions – inheritance – loans – post-separation contributions – impact of short relationship on earning capacity – unreliable witness
FAMILY LAW – Parenting – serious allegations of family violence – Father charged with serious criminal offences against Mother – Father withdraws on first day of final hearing – consideration of unacceptable risk – where the three eldest children refuse to spend time and communicate with Father – where safety of children and the Mother requires a no time order FAMILY LAW – Parenting – serious allegations of family violence – Father charged with serious criminal offences against Mother – Father withdraws on first day of final hearing – consideration of unacceptable risk – where the three eldest children refuse to spend time and communicate with Father – where safety of children and the Mother requires a no time order
FAMILY LAW – Application summarily dismissed – proceedings are frivolous, vexatious and an abuse of process, and have no reasonable prospect of success within the meaning of s 102QAB of the Family Law Act 1975 (Cth) – application sought to re-agitate issues other previous proceedings
FAMILY LAW – PARENTING – drug use – physical discipline – verbal abuse – neglect – lack of parenting boundaries – parental denigration – lack of insight – stability for children – evidence of current risks – amelioration of risk – injunctions – joint decision making – international travel – trial commenced pre-6 May amendments to the Family Law Act
MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student visa – whether open to Tribunal to affirm delegate’s decision on different basis to delegate – whether denial of procedural fairness – whether Tribunal’s refusal to grant adjournment was unreasonable – whether Tribunal failed to have regard to matters
FAMILY LAW – CONTRAVENTION – No intentional failure to comply – Made reasonable attempts at complying – Lack of evidence of contraventions – Contravention dismissed
FAMILY LAW – PROPERTY – leave to proceed out of time application – five years after the statutory date when proceedings ought to have been instituted - where the Applicant submits he has a prima facie case – where the applicant fails to satisfy the hardship requirement – no prima facie case – where the wife would be at detriment to plead her case after such time – delay not explained satisfactorily – application dismissed
FAMILY LAW – PARENTING - Substantial consent orders made – child aged 11 – benefit of overseas travel for the child – family therapy to continue until the child turns 15 - no orders as to the ICL’s costs
FAMILY LAW – parenting and property – final orders – determination of whether one parent reneged on agreement for the family to move and live overseas – whether one parent coercive and controlling – whether the child should live with her mother or her father – father lives in Melbourne and mother lives in Country B – question of which parent will best support the child’s relationship with the other parent – whether child settled where currently living – choice between child lives with one of two good parents – property division proceedings – determination of extent of one parents inheritance and weight to be given to that inheritance – determination of disputed items in pool of property including treatment of paid legal fees and proceeds of sale of shares – consideration of contribution – whether equal as alleged by father or 60/40 as alleged by mother – contribution determined to be 57/43 – consideration of section 75(2) factors – whether should be nil or 10% - determination section 75(2) factors should be 7% - consideration of dollar amount of adjustments as well as percentage – overall division of assets 64/36 – agreed equality of superannuation split – proposed orders in default of payment need clarification – final orders made with direction for parties to bring in agreed default provision
FAMILY LAW –PROCEDURE - Stay application refused – further opportunity to reagitate – Appellate Court more appropriate forum
FAMILY LAW – PARENTING – Contravention – Mother concedes all charged contraventions without reasonable excuse – Mother argues no sanction should apply – Mother refuses to enter bond – Father seeks maximum penalty – Mother has previously been found to have contravened orders without reasonable excuse – Sanction necessary – Degree of appropriate penalty – Whether a fine can be order in lieu of bond – Where it is found that a bond must be ordered first, and a fine can only occurred after a party has failed to enter the ordered bond – Father seeks costs – Costs awarded – Whether claimed costs are reasonable
FAMILY LAW – Parenting – partial agreement on consent orders- remaining issue time with father – recusal application during father’s evidence -supported by ICL – orders for recusal made
Pagination
- Page 1
- Next page