Judgments

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

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

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

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

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

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

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

FAMILY LAW – CONTRAVENTION – CHILDREN – Where respondent mother pleaded guilty with reasonable excuse to five counts of alleged contravention – reasonable excuse not established – mother found guilty – bond entered into – respondent mother to pay applicant father’s costs 

FAMILY LAW – final parenting orders – equal shared parental responsibility – dispute over time with father – where both parties seek to relocate – mother seeking week about arrangement – father seeking two out of three weekends – father rely upon family report recommendations – where parties agreed upon children’s education prior hearing – where parties agreed on children’s extracurricular activities prior to hearing 

FAMILY LAW – PARENTING – unacceptable risk – where Father has pleaded guilty to sexual offences against Mother when she was a minor – where Father is registered sex offender - where Court finds Father has additionally subjected Mother to serious family violence – where Father holds unremittingly negative attitude towards Mother and accepts no responsibility for his own conduct – where Father is lacking in insight – orders made for no time or communication with Father 

FAMILY LAW – PROPERTY – modest asset pool – where Husband asserts post-separation decline in earning capacity – where Wife makes superior post-separation contributions – where Wife has sole care of young children with no child support of significance – where Husband’s actions have reduced value of assets available for distributions – adjustment in favour of Wife 

FAMILY LAW – application for review – review of Senior Judicial Registrar’s decision – interim parenting orders allowing for unsupervised time with the father – father’s admitted history of alcohol abuse and some family violence and breaches of domestic violence orders – alleged unacceptable risk requiring ongoing supervised time only pending final hearing – no unacceptable risk found – application for review largely dismissed – additional interim order providing that father’s time suspended until satisfactory CDT result

FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding seeking costs – costs orders made

FAMILY LAW – PARENTING- progression from supervised time- no unacceptable risk 

FAMILY LAW – REVIEW - Review of order of a Deputy Registrar decision where a request was made for the lawyer of the Applicant to inspect a Court record relating to accusations made by the Respondent.   

FAMILY LAW – PRACTICE AND PROCEDURE – Application to adjourn the final hearing made by the father – Application dismissed.  FAMILY LAW – EVIDENCE – Family Report – Where the Regulation 7 Family Consultant could not give evidence – Where the Family Report was admitted with an assessment of weight to be place on the Family Report.  

FAMILY LAW – EVIDENCE – Admission of family counselling notes – Where the Court could not be satisfied whether or not the counsellor met the definition of “family counsellor” pursuant to s 10C – Evidence not admitted.

FAMILY LAW – PARENTING – Ex-Tempore Reasons for Judgment - Application for Review filed by the Independent Children’s Lawyer – Where orders made by a Senior Judicial Registrar were beyond the scope of the powers conferred in section 67ZC of the Act – where it is unclear what head of power is relied upon to ground such orders being made – Where the father seeks to reagitate such interim orders by way of a further Application in a Proceeding – Where no material change in circumstances is demonstrated by the father – Interim orders the subject of the Review Application discharged – Review Application otherwise dismissed – Application in a Proceeding filed by the father dismissed.  

FAMILY LAW – interim order – directions hearing – looming final hearing – evidence not filed –  where the respondent seeks leave to extend dates for filing to rely upon further documents for trial – dispute as to relevance of information – sought by disclosure and subpoena – disclosure ordered – leave granted for further subpoenas to be filed – extension of filing dates for final hearing  

FAMILY LAW – final parenting orders – protracted proceedings – parents agree on most aspects in respect of care – past alcohol problem – dispute as to ongoing alcohol consumption while caring for the child – balance of risk and consequences – dispute as to passport – final orders determined by consent and on papers and submission

FAMILY LAW – Parenting – two children, aged 12 and 9 – where the parties agree on final consent orders – where the ICL opposes the orders – where the Court considers it inappropriate to make the consent orders – where the parties enter into their own Parenting Plan – where the Court dismisses all extant applications – where the ICL seeks costs – costs application adjourned.  

FAMILY LAW – emergency hearing – return of matter following ex parte hearing on Saturday night, facilitated by afterhours service – competing allegations of 15 year old child at risk of harm – matter adjourned for 3 days for parties to get legal advice – balancing competing risk of harm to child.   

FAMILY LAW– final property orders – oral reasons delivered soon after last day of hearing – settled reasons – third parties – 7 day final hearing – More than 400 items of personal property valued – very detailed evidence from Husband and Wife as to personal property – 2125 page court book – ownership and value of more than 149 items of personal property in dispute – allegation of gift of personal property by delivery – whether Husband or Wife had dismantled or removed personal property prior to valuation – fraud/theft allegations not proven – third party and other peoples claim of ownership accepted – whether Husband or Wife should retain FMH – long marriage – disparity of initial contribution – Husband brought in land unencumbered and machinery – Husband’s ill health significant aspect of Wife’s homemaker contribution – one child with special needs significant aspect of Wife’s parenting contribution – where each party sought sec 75(2) adjustment in his/her favour – NDIS entitlement – substantial part of NDIS not received but applied to administration – carer’s pension – continuing poor health of Husband – Wife with care of teenage child – finding of equal contribution – finding no section 75(2) adjustment – which party to obtain FMH – who should retain items of personal property – order for items to be delivered to adult child. 

FAMILY LAW – CONTRAVENTION – contraventions of order providing for children to communicate with Father – whether no case to answer – eight contraventions proven without reasonable excuse 

FAMILY LAW – PARENTING – Where the subject child is 7 years of age – Where the child has spent supervised time with the father for a period of two years – Where both parties have unilaterally taken the child overseas post separation - Where there are significant allegations of family violence perpetrated against the mother and the child by the father –Where the mother seeks orders that the child spend no time with the father - Where the father alleges that the mother’s partner has sexually abused the child – Where despite the father’s allegations of sexual abuse perpetrated by the mother’s new partner he seeks that the child live with the parties on an equal shared care arrangement – Where the Father alleges the mother has fabricated allegations to alienate the child from him - Where the father relies on the mother allowing unsupervised time between him and the child post separation as the basis of the orders sought by him – Findings made that the father perpetrated family violence including coercive and controlling behaviours upon the mother and the child – Finding made that the father cannot positively support a relationship between the child and the mother – Finding that the parties’ parenting relationship is reflective of a dynamic arising from the father’s controlling family violence - Finding that the family violence perpetrated by the father is a contradiction to an order for equal shared parental responsibility - Finding that the culmination of risks posed by the father cannot be sufficiently ameliorated by supervision or otherwise – Orders made that the child spend no time with the father.

FAMILY LAW - costs application – where the wife seeks party/party costs to be paid – where each party filed written submissions as to the issue of costs – certify for counsel and senior counsel pursuant to rule 12.28 – costs based on Schedule 3 of the rules – because work based rather than court event based costs in this case – interim property application partly successful – application for disclosure was necessary – costs orders made

FAMILY LAW – REVIEW of Interim Parenting Orders – the Applicant is not spending time with a non-biological child aged 2 years by virtue of Senior Judicial Registrar’s Order – the Applicant regards himself as the child’s ‘dad’ – where the Applicant and the child have a loving relationship – where the biological father has no interest in having a relationship with the child – where the Mother alleges she was subject to Family Violence – where the Family Consultant recommends supervised time – whether the child will be at an unacceptable risk of psychological or physical harm if she spends supervised time with the Applicant – where there is a danger that the child’s relationship with the Applicant will be lost if no time occurs prior to trial – whether the time, if ordered, should be professionally supervised.

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

FAMILY LAW – Parenting – one child, aged 6 – where the parents were in a drug-fuelled and violent relationship – where the father has not spent any time with the child since late 2020 – where the maternal grandparents have provided a great deal of care and support to the child – where the father seeks supervised time graduating to substantial and significant time – where the mother seeks that the father has no time and no communication with the child and that the child lives with her – where the maternal grandparents seek that the child live with the mother unless the Court considers she would pose an unacceptable risk of harm, in which case they would then seek the child live with them – where the Court considers that the child should live with the mother and share parental responsibility with the maternal grandparents – where the Court considers that the father should spend no time and no communication with the child – best interests of the child.

FAMILY LAW – application for review – parenting only interim orders – should the children continue to spend time with the father supervised – should the children spend time with the father in accordance with final orders made 3 April 2023 – where the parties are unable to communicate effectively – where there is significant parental conflict - the children at risk of emotional and psychological harm letter to the children from judicial officer – Independent Children’s Lawyer to give letter to children

FAMILY LAW – practice and procedure – application to adjourn hearing for review of a Senior Judicial Registrar’s decision with respect to urgent interim parenting orders

FAMILY LAW – PARENTING – the Mother has a long history, starting in high school, of significant drug use which she says arises in times of “stress” – the Mother has stopped her own supervised time with her young daughter at a supervised contact centre – the young child, aged approximately 5 years, has lived primarily with the Father for the last three years – yet the Mother ran a case seeking that the child should change residence from the Father and live primarily with her – the longest period the Mother has been drug free has been 18 months – for all of this, the Mother still holds down a good job in the public service and has been candid with her employer and managers that she uses illicit drugs on a semi-regular basis – Mother also has a history of not completing drug rehabilitation – best interests considerations – child to continue to live with the Father, Mother to undergo regime of hair-follicle testing before re-commencement of supervised time.

FAMILY LAW – PARENTING – Interim proceedings –  Children aged 12 and seven years – Where one child remains in the father’s care and the other remains in the mother’s care – Previous shared care arrangements – High conflict – Allegations of coercive and controlling family violence – Weight to attach to children’s wishes – Orders made pending Family Assessment Report. 

FAMILY LAW – where the mother of the child has recently died – where the step father wants to take the child to Country B for funeral rituals – where the biological father seeks a watchlist order and restraint on the child from being removed from Australia – Country B not Hague convention country – where biological father alleges deceased mothers family prevented him from having relationship with the child – where family violence alleged during the relationship between the mother and biological father –  where biological father has not seen six year old child for three years – where the biological father believes the step father will leave the child in Country B with maternal grandparents – watchlist order denied – where the maternal grandfather also made an undertaking in court  that he ensured the child returns to Australia – where the stepfather has substantial ties to Melbourne – all other extant applications adjourned

FAMILY LAW – PARENTING – Where an application is brought by the stepfather of the subject child who is 11 years of age – Where the biological mother of the child passed away in 2023 in Country C - Where the child has resided in Australia, Country B and Country C –– Where the respondent father asserts the stepfather’s behaviour toward the child presents a cumulative risk that the stepfather is engaging in grooming style behaviour - Where the child has been living with the respondent father in Australia since the death of the biological mother in 2023 – Where the stepfather has spent supervised time with the child in Australia and now seeks orders that he spend time with the child for half of each school holiday period internationally or in Australia and for one weekend each month in Australia – where the child has expressed strong views about spending time with the stepfather – Orders made for the child to spend supervised time with the stepfather on an interim basis.

FAMILY LAW – Interim spousal maintenance – where wife on parental leave following birth of child with new partner – where wife previously worked – whether husband should be required to pay spousal maintenance where the wife is not working because of decisions she made – HELD other adequate reasons exist for why the wife is unable to adequately support herself.  FAMILY LAW – Interim spousal maintenance – where the wife will shortly receive paid parental leave payments under the Paid Parental Leave Act 2010 (Cth) (‘PPL payments’) – whether PPL payments are an ‘income tested pension, allowance or benefit’ for the purposes of section 75(3) of the Family Law Act 1975 (Cth) – HELD payments under the Paid Parental Leave Act 2010 (Cth) are not income tested pensions, allowances or benefits and must be taken into account.  FAMILY LAW – Interim spousal maintenance – relevance of child support payment and children’s expenses to an application for spousal maintenance – where such payments and expenses are excluded from assessment.   FAMILY LAW – Interim spousal maintenance – where wife’s new partner is making contributions for the benefit of their child – where such payments are voluntary and irregular – where no submission put that wife and new partner are in de facto relationship – whether such payments are likely to continue – what quantum of these payments is being used for the expenses of the child of the wife and the new partner.  FAMILY LAW – Interim spousal maintenance – where there are three distinct periods covering the application including when the wife is on unpaid parental leave, when she is in receipt of PPL payments and what happens when the PPL payments end – different maintenance orders considered in relation to each period.

FAMILY LAW – REVIEW of Interim Parenting Orders – the Applicant is not spending time with a non-biological child aged 2 years by virtue of Senior Judicial Registrar’s Order – the Applicant regards himself as the child’s ‘dad’ – where the Applicant and the child have a loving relationship – where the biological father has no interest in having a relationship with the child – where the Mother alleges she was subject to Family Violence – where the Family Consultant recommends supervised time – whether the child will be at an unacceptable risk of psychological or physical harm if she spends supervised time with the Applicant – where there is a danger that the child’s relationship with the Applicant will be lost if no time occurs prior to trial – whether the time, if ordered, should be professionally supervised. 

FAMILY LAW – PARENTING – Where an application is brought by the stepfather of the subject child who is 11 years of age – Where the biological mother of the child passed away in 2023 in Country C - Where the child has resided in Australia, Country B and Country C –– Where the respondent father asserts the stepfather’s behaviour toward the child presents a cumulative risk that the stepfather is engaging in grooming style behaviour - Where the child has been living with the respondent father in Australia since the death of the biological mother in 2023 – Where the stepfather has spent supervised time with the child in Australia and now seeks orders that he spend time with the child for half of each school holiday period internationally or in Australia and for one weekend each month in Australia – where the child has expressed strong views about spending time with the stepfather – Orders made for the child to spend supervised time with the stepfather on an interim basis. 

FAMILY LAW – where the mother of the child has recently died – where the step father wants to take the child to Country B for funeral rituals – where the biological father seeks a watchlist order and restraint on the child from being removed from Australia – Country B not Hague convention country – where biological father alleges deceased mothers family prevented him from having relationship with the child – where family violence alleged during the relationship between the mother and biological father –  where biological father has not seen six year old child for three years – where the biological father believes the step father will leave the child in Country B with maternal grandparents – watchlist order denied – where the maternal grandfather also made an undertaking in court  that he ensured the child returns to Australia – where the stepfather has substantial ties to Melbourne – all other extant applications adjourned  

FAMILY LAW – PARENTING – Interim proceedings –  Children aged 12 and seven years – Where one child remains in the father’s care and the other remains in the mother’s care – Previous shared care arrangements – High conflict – Allegations of coercive and controlling family violence – Weight to attach to children’s wishes – Orders made pending Family Assessment Report. 

FAMILY LAW – PRACTICE AND PROCEDURE - Application for review – Interim parenting – Substantive review of a Senior Judicial Registrar’s decision – Hearing de novo – Application dismissed     

FAMILY LAW – PARENTING – Where the subject child is 7 years of age – Where the child has spent supervised time with the father for a period of two years – Where both parties have unilaterally taken the child overseas post separation - Where there are significant allegations of family violence perpetrated against the mother and the child by the father –Where the mother seeks orders that the child spend no time with the father - Where the father alleges that the mother’s partner has sexually abused the child – Where despite the father’s allegations of sexual abuse perpetrated by the mother’s new partner he seeks that the child live with the parties on an equal shared care arrangement – Where the Father alleges the mother has fabricated allegations to alienate the child from him - Where the father relies on the mother allowing unsupervised time between him and the child post separation as the basis of the orders sought by him – Findings made that the father perpetrated family violence including coercive and controlling behaviours upon the mother and the child – Finding made that the father cannot positively support a relationship between the child and the mother – Finding that the parties’ parenting relationship is reflective of a dynamic arising from the father’s controlling family violence - Finding that the family violence perpetrated by the father is a contradiction to an order for equal shared parental responsibility - Finding that the culmination of risks posed by the father cannot be sufficiently ameliorated by supervision or otherwise – Orders made that the child spend no time with the father.  

FAMILY LAW – PARENTING – the Mother has a long history, starting in high school, of significant drug use which she says arises in times of “stress” – the Mother has stopped her own supervised time with her young daughter at a supervised contact centre – the young child, aged approximately 5 years, has lived primarily with the Father for the last three years – yet the Mother ran a case seeking that the child should change residence from the Father and live primarily with her – the longest period the Mother has been drug free has been 18 months – for all of this, the Mother still holds down a good job in the public service and has been candid with her employer and managers that she uses illicit drugs on a semi-regular basis – Mother also has a history of not completing drug rehabilitation – best interests considerations – child to continue to live with the Father, Mother to undergo regime of hair-follicle testing before re-commencement of supervised time. 

FAMILY LAW - costs application – where the wife seeks party/party costs to be paid – where each party filed written submissions as to the issue of costs – certify for counsel and senior counsel pursuant to rule 12.28 – costs based on Schedule 3 of the rules – because work based rather than court event based costs in this case – interim property application partly successful – application for disclosure was necessary – costs orders made 

FAMILY LAW – application for review – parenting only interim orders – should the children continue to spend time with the father supervised – should the children spend time with the father in accordance with final orders made 3 April 2023 – where the parties are unable to communicate effectively – where there is significant parental conflict - the children at risk of emotional and psychological harm letter to the children from judicial officer – Independent Children’s Lawyer to give letter to children 

FAMILY LAW – Parenting – one child, aged 6 – where the parents were in a drug-fuelled and violent relationship – where the father has not spent any time with the child since late 2020 – where the maternal grandparents have provided a great deal of care and support to the child – where the father seeks supervised time graduating to substantial and significant time – where the mother seeks that the father has no time and no communication with the child and that the child lives with her – where the maternal grandparents seek that the child live with the mother unless the Court considers she would pose an unacceptable risk of harm, in which case they would then seek the child live with them – where the Court considers that the child should live with the mother and share parental responsibility with the maternal grandparents – where the Court considers that the father should spend no time and no communication with the child – best interests of the child.    

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

FAMILY LAW – practice and procedure – application to adjourn hearing for review of a Senior Judicial Registrar’s decision with respect to urgent interim parenting orders  

FAMILY LAW – PRACTICE AND PROCEDURE – Oral application for stay pending appeal. 

FAMILY LAW – PRACTICE AND PROCEDURE – Stay pending appeal. 

FAMILY LAW – parenting settled by consent – property – what should be included in the property pool – wife alleges the husband is hiding assets - weight to be given to contributions and s 75(2) factors – nondisclosure - family violence