Judgments

FAMILY LAW – CHILDREN – Interim proceedings – Five children aged between 15 and 11 years – Three of the children have special needs –Where the wife seeks to be solely responsible for the engagement of counselling, or therapeutic or psychological treatment for the children – Where the wife seeks injunctions restraining the father from contacting the children’s and the wife’s school carers and medical providers – Where the husband opposes the wife’s application – Consideration of Child Impact Report – Future management.

FAMILY LAW – PROPERTY – Interim proceedings – Where the wife seeks a partial property settlement in order to pay her legal costs – Where the wife seeks for two properties to be sold forthwith – Where the husband opposes the wife’s application but consents to the eventual sale of one of the properties – Issues relating to disclosure – Future management. 

FAMILY LAW – EXTENSION OF TIME – property settlement application – original filing within time – acknowledgement within time from court portal confirming filing– then subsequent notice from “Family Law e-Filing” of no acceptance for filing following expiration of standard  application period on account of application not having not set out property orders – oversight by lawyers – out of time 9 days – delay short and satisfactorily explained – applicant’s case arguable case present – hardship present - lack of prejudice to the respondent – leave granted 

FAMILY LAW – PRACTICE & PROCEDURE – Commissioner of Taxation application to intervene – whether or not the Commissioner has waived that right or is estopped from doing so  

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

FAMILY LAW – PROPERTY – Just and equitable orders made. 

FAMILY LAW – CHILDREN – Independent Children’s Lawyer’s (“ICL”) obligation under s 68LA(5A) to meet with the child – When parent alleges that child refuses to meet with and/or express a view to the ICL – Does the Court have power to Order that a parent facilitate a meeting between the child and the ICL? – Should the Court make detailed orders about when and how the ICL meets with the child? – Where the Court orders the father to facilitate meeting with the child on the terms proposed by the ICL.

FAMILY LAW – parenting – unjustified allegations of medical neglect – allegations maintained despite no evidence – lack of insight into children’s emotional needs – risk of emotional and psychological harm – greater the time the greater the risk – balancing of competing considerations – overseas travel – equal shared parent responsibility  

FAMILY LAW – CHILDREN – final hearing – child aged three years – final consent orders made on all property and parenting issues save for the issue of overseas travel –where the parties have a dysfunctional co-parenting relationship – where Country B is the mother’s country of origin – where the mother seeks for the child to be able to travel with her on up to two occasions per year for a cumulative period not exceeding six weeks – where the mother seeks for the child to travel to a non-Hague Convention country – where the father seeks for travel to be conditional upon the child attaining the age of 10 years – consideration of recommendations of Family Report Writer – orders made as sought by the father.  

FAMILY LAW – Parenting – one child, 11 years – where the Court set the matter down for final hearing and made orders pursuant to s 102NA of the Family Law Act 1975 – where the mothers previous legal representatives withdrew a month out from the final hearing – where the mother has attended the final hearing self-represented – where the mother sought an adjournment of the final hearing on day one – where the mother subsequently left the Court precinct at the start of day two, citing her need to return home to City H to seek mental health assistance – where the Court adjourned the trial in order for a proper hearing to be conducted at a later date.   

FAMILY LAW – final parenting orders – ex tempore reasons – application for equal time changed at last minute – dispute was whether school term there should be a 6/8 arrangement or a 5/9 arrangement – child with special needs – previous cooperative arrangement between parents ended when one sought to relocate with child and other overheld child – two good but different parents – orders for 8/6 arrangement   

FAMILY LAW – PARENTING – wide range of issues on display at trial – major problems with expert who was de-registered in the course of the trial – ultimately parties agreed on most issues in dispute including the two girls of the relationship (aged 14 and 11) remaining to live with the Father in City D and spending time with the Mother in Queensland – one of the few remaining issues related to parental responsibility – significant concerns about the lack of insight of the Mother in the light of her evidence – Orders for sole parental responsibility in the Father’s favour.

FAMILY LAW – parenting and property– final hearing – parental responsibility – sole parental responsibility for medical decisions only – shared care versus nine/five arrangement – school holiday time – special needs of children – insight into needs – family violence – insight into parental behaviour – high parental conflict – where court disagrees with recommendations of the Family Report writer – add backs – legal fees – loans – contributions – inheritance – s 75(2)(o) – failure to disclose – increased legal fees due to conduct of a party – dissipation of assets post-separation – lump sum child support – chattels  

FAMILY LAW – PARENTING – allocation of parental responsibility – whether four year old child should live week about with her parents.   FAMILY LAW – PROPERTY – whether funds repaid to wife’s father should be added-back – whether post-separation loan ought be included as a joint liability – assessment of contributions and other factors. 

FAMILY LAW – PARENTING – the sole child of the relationship has a good and close relationship with both parents – the current parenting arrangements have been for an equal time and shared care arrangement for some time – the almost nine year old child of the relationship advised the Family Consultant and the Independent Children’s Lawyer that he liked and would prefer to maintain the current arrangement – the Mother was a diffident and uncertain witness who seemed not to know or understand what it was she was seeking in either aspect of the trial and in many respects it was in her best interests rather than her son’s that she was seeking a reduction in time with the Father – small adjustment in the spend time with arrangements – there were difficulties with the evidence of both parties.  FAMILY LAW – PROPERTY – there were few factual matters in dispute in a relationship of modest years including that the Husband’s contributions especially at the start of the 8 year relationship were very significantly greater than the Wife – Husband on invalidity pension – issues regarding how to treat pension – ultimately perhaps the biggest issue in the property dispute was the Wife’s (and her highly experienced lawyers) failure to disclose a special costs arrangement whereby the Wife’s employer confirmed that he would pay all of her legal costs provided she moved to the lawyers who represented her at trial – only during the Wife’s re-examination did her Counsel put to the Wife and show her the special costs arrangement, being the first time this had been disclosed – the Wife had affirmed and filed two Financial Statements and four Costs Notices that never disclosed the special costs arrangement with her employer – costs awarded against the Wife’s lawyers in light of the persistent failure to disclose noting especially Murphy J’s emphasis in Penfold v Penfold on ensuring the “integrity of the proceedings” – Applicant Wife’s lawyers referred to relevant law society.   

FAMILY LAW – Children – parenting arrangement for two children aged 11 and 13 – no significant interaction between the children and the father since separation – whether a change in the arrangement would be in the children’s best interest – presumption of equal shared responsibility rebutted – allegations of family violence perpetrated by the father – best interests – matters to be considered.   FAMILY LAW - Property – property settlement – marriage of 24 years – modest asset pool – assessment of financial and non-financial contribution – the need for the financial relationship between the parties to be concluded – after separation the husband has occupied the matrimonial home – assessment of future borrowing capacity of the parties - considerations of just and equity  

FAMILY LAW – parenting – ex tempore reasons – application for final consent orders to be made at close of mother’s case - whether proposed consent minute of final orders in the best interests of the child – cessation of time between father and one child – whether court need be satisfied orders are in children’s best interest – whether alleged unacceptable risk exists – nature and scope of duty of court when making parenting orders – Division 12A of Part VII – final consent orders made 

FAMILY LAW – Parenting – child aged three years – unilateral relocation – mother has moved child from Adelaide to Sydney – child has been in NSW for a period in excess of twelve months – father seeks compulsory return of mother and child to SA – high conflict – allegations of substance abuse and family violence – emergency facing mother at time of relocation – best interests – stability of care arrangements – logistical considerations relating to spend time with arrangements  

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 –family violence – where the mother seeks time between the father and the child be decreased – where the father seeks for an increase in time with the child – where the parties cannot agree on special days – the mother seeks to travel overseas with the child - airport watchlist order sought  

FAMILY LAW – PARENTING - Whether 11 and 8 year old boys should live with their father in Victoria or their mother in Queensland 

FAMILY LAW – PARENTING – relocation – mother seeks children (now aged 11 and 8 years) live with her in Region B and for the children to spend time with the father on alternate weekends (from Friday to Sunday), for one additional weekend each month, and for additional holiday time – application resisted by the father who seeks children continue to spend equal time with both parents – evaluation of competing proposals – mother’s application refused – order for children to continue spending equal time with both parents – no order made confining the area in which the parties may live with the children – all other parenting orders made by consent.

FAMILY LAW – PARENTING – relocation – mother seeks child (aged 6) live with her in Town B–  child currently lives with mother in Suburb C and Town B and spends time with the father five nights per fortnight – evaluation of competing proposals – orders made for child to live with mother in Town B and to spend alternate weekends with father during school terms – orders provide for child to spend greater time with father if he moves closer to Town B – order regarding child’s school attendance in Town B.

FAMILY LAW – CONTRAVENTION – Costs – Parenting – Where it was alleged the father contravened by overholding the child following periods of time spending – Where the father admitted the breaches at the commencement of Trial but maintained he had a reasonable excuse – Where after giving evidence at Trial, the father plead guilty to each count without reasonable excuse – Father to enter into a Bond – Orders for costs. 

FAMILY LAW - Unpaid child maintenance – where payer father was not present in Australia – where payer father became entitled to a sum of money from his mother’s estate – where payee mother has passed – garnishee order against the estate of payer father’s mother – unpaid child support found payable to payee mother’s estate. 

FAMILY LAW – mother seek declaration of parentage – whether to proceed in the absence of a party – evidence of service vague and opaque – mother was assessed for child support soon after birth – child was removed from mother’s care and child support ceased –  mother’s application for child support denied when child returned to mother – mother has not been in contact with father since child was born – father and child have been in contact previously – child no longer wants contact with the father – service dispensed with – child – service by post may not be appropriate in age of electronic communication and social media – whether respondent’s demographic would have ever written or received a letter – utility of affidavits of service to unknown last known address – telephone enquiry of respondent on day of hearing ascertained current email address – always back self-interest, at least you know its trying 

FAMILY LAW - PROPERTY SETTLEMENT - Where the wife seeks significant notional add backs to the property pool – Where such add backs are rejected - Where it is just and equitable to make an adjustment – Where a two pool approach is appropriate noting the substantial amount of superannuation held by the husband and where the husband seeks a superannuation splitting order – Where the husband has made higher financial contributions – Where the wife has been and continues to be the primary carer for the children, one of whom has special needs – Where at issue is the mix of superannuation and non-superannuation property each party is to receive - Where the children spend significant and substantial time with the husband – Contribution finding made in favour of the husband – Adjustment made in favour of the wife for future needs.

FAMILY LAW – parenting – family violence – sole parental responsibility – father has not seen the children since separation – where the father shows lack of insight and failure to address his behaviour – where the father poses an unacceptable risk to the children – whether or not orders should be made for no time or for supervised time – whether time should be graduated to unsupervised – whether or not orders should be made for family therapy – airport watchlist and passport orders

FAMILY LAW – application for interim spousal maintenance – orders made in absence of the applicant for spousal maintenance – application for spousal maintenance dismissed. 

FAMILY LAW – PROPERTY - matrimonial property division – where significant asset is husband’s business interests – husband is minority shareholder and partner - where husband’s evidence that he is unable to borrow against business interests – where husband’s partners and shareholders oppose sale - where sale of business and instalment payments considered – husband ordered to pay wife lump sum – default clause that husband is to pay instalments to wife – further default to attempt sale of business   

FAMILY LAW – PARENTING – Young child with autism and global developmental delay – Final orders made by consent earlier for equal shared parental responsibility – Antagonistic parental communication – Very different parental views on child’s capacity to cope with change – Parental insight – What time child is to spend with father – Proposed orders by both applicant and respondent not in child’s best interest – Time to increase incrementally over a period  

FAMILY LAW – PARENTING – Recusal application by respondent father – where matter part-heard – where Court had asked questions of the father during the hearing – crossing the line – entering the fray – where father submits that the Court had prejudged that the father’s position was not in the best interest of the children – whether there is a logical connection between the Court’s questioning of the father and the feared deviation from the course of deciding the case on its merits – whether Court was merely attempting to fact-find  FAMILY LAW – Appointment of single expert – whether appropriate to appoint forensic psychiatrist where clinical psychologist already appointed – complexity of matter – mental health of the mother and the children  

FAMILY LAW – PROPERTY – De facto relationship – Relationship of 14 years – Findings as to credit – Findings as to domestic violence – Add backs – Cross-examination not permitted due to operation of 102NA – Superannuation splitting order – 50/50 split after adjustment  

FAMILY LAW – parenting – final hearing – 15-year-old child – weight to be given to wishes – difficulty of enforcement – orders least likely to lead to further proceedings – unacceptable risk of psychological and emotional harm – not possible to mitigate the risk through orders – risk overrides the child’s wishes – change of residence back to former primary carer – moratorium on time  

FAMILY LAW – PROPERTY – where there is significant agreement as to the facts and the assets to be divided – whether there should be a one or two pool approach – impact of the Husband’s initial contributions – impact of the Wife having primary care of a child with special needs and an inferior income.

FAMILY LAW – PARENTING - whether the impact on the mother’s parenting capacity of nearly four year old child spending time with his father is such that the child should spend no time with his father

FAMILY LAW – SINGLE EXPERT WITNESS – application for removal – earlier valuation for third party bank – independence of single expert– duties – non-disclosure of earlier valuation – materiality – selection of single expert – remediation if non-disclosure - application disallowed

FAMILY LAW – Harman and/or implied obligation – are special circumstances required the documents in another court – whether special circumstances in this application – very late application – whether costs should be ordered – special circumstances found – applicant released from implied obligation

FAMILY LAW – PARENTING – interim application after matter not reached – stood over till final hearing date

FAMILY LAW – Parenting – two male children aged 11 and 9 – second round of parenting proceedings – where the parties consented to final orders in December 2018 – where the parties had difficulty implementing the final orders – where the parties’ communication was unproductive – where the two boys where being dragged into the conflict by both parents – where the relationship between the father and the children began to break down in part due to disclosures of physical abuse in the father’s care by the children – where the children became resistant to spending time and communicating with the father – where the children are now estranged from the father and fearful of him – where the Court considers there would be an emotional or psychological risk to the children if they were required to spend time with the father – best interests of the children.

FAMILY LAW – Parenting – Allegations of physical, sexual and financial abuse – No findings of fact sought – No risk established – Parenting capacity – Children to live with father and spend time with mother

FAMILY LAW – Final Parenting – Allegations of physical, emotional, psychological and financial abuse – Criminal convictions – Unacceptable risk – Children to live with mother and spend no time with father

FAMILY LAW – PARENTING – Assessment of risk – Where Father subject of shooting – where Father previously convicted of offences – where Mother previously convicted to driving under the influence of alcohol and drugs – where each parent has history of drug use – Where Mother has history of mental health issues – where Father has mental health vulnerabilities – Allegations of family violence – Determination of parental responsibility

FAMILY LAW - PARENTING AND PROPERTY – undefended hearing –– de facto relationship 16 years- two children – mother has sole care since separation in 2021 -no binding financial agreement – purported financial agreement set aside – alternation of property interests

FAMILY LAW – parenting – final orders – parental responsibility – impact of father’s mental health and alcohol use disorder – order for sole parental responsibility disputed – parties agree that children should live with mother – orders for one of the two children to spend time and communicate with father and otherwise in accordance with her wishes – negative alcohol detection test result required by father prior to time with child – practical barriers to in person time due to location of parties residences.     FAMILY LAW – property – final orders – disputed ownership of liabilities – alleged negative contributions argument – greater parenting contributions by mother – initial financial contribution by mother not matched – 71/29 adjustment of net non-superannuation assets and superannuation in favour of the mother.   

FAMILY LAW – PROPERTY – Value of property – Addbacks – Whether the husband reduced or minimised value of property pool – Whether the husband acted recklessly, negligently, or wantonly with assets to reduce their value – Whether the husband dissipated assets prematurely to his benefit 

FAMILY LAW – Application for enforcement – whether application to sell former home is really an application for enforcement or the making of consequential or machinery orders – application granted.    

FAMILY LAW – PARENTING – ex tempore reasons given following the mother's failure to return after luncheon adjournment – whether four year old child who has been living week about between her two parents in different parts of Victoria should live primarily with her father  

FAMILY LAW – CHILDREN – Parental responsibility – Allegations of coercive and controlling family violence – Whether the child should spend time with the father – Impact on the child of family violence – Unacceptable risk of exposure to family violence – Where the child’s views are entrenched – Where the mother and Independent Children’s Lawyer oppose the child spending time with the father