Judgments

 FAMILY LAW – PARENTING - whether the children should continue to live in an equal time arrangement for the next two-three years or a five/nine arrangement, building to an equal time arrangement – where it is agreed that an equal time arrangement will be implemented by no later than some time in 2026 – weight to be given to the recommendations of the court child expert  

FAMILY LAW – Application for Review – Review of Deputy Registrar’s decision to refuse filing of an Initiating Application – where final parenting and property orders made by a Judge of the Court in 2020 – finding that the Initiating Application deficient and not suitable for filing – application dismissed  

FAMILY LAW – property – enforcement application – where parties consented to final orders – where sale of property required by final orders has not occurred – where dispute arose as to listing price for sale and whether to accept an offer – where wife sought order for acceptance of offer received – orders made for sale of property with explicit terms as to process and basis for same – costs reserved  

FAMILY LAW – PROPERTY SETTLEMENT – four-year De-Facto relationship – introduction of a property that is the substantial asset of the pool to be divided - global or asset by asset approach – addbacks- assessment of contributions and consideration of other matters including those set out at s75(2).  FAMILY LAW – COSTS – ICL costs.  

FAMILY LAW – parenting – final orders – two children ages 10 and 5 – where the mother is primary carer and seeks to relocate from Town B to Sydney – where the Father is the biological parent of the youngest child only – where the Father opposes the relocation and seeks an increase in time with the youngest child – where the relationship between the parents was volatile and remains high conflict – where the youngest child has autism – where there mother’s attitude toward the father raises serious concerns as to her willingness and capacity to promote the father’s relationship with the child – best interests of child for mother to have sole parental responsibility, child live with mother in Town B area and have an increase in time with father.     

FAMILY LAW – PROPERTY – assessment of contributions – relationship of 21 years –  no children – initial contributions – post-separation contributions – alleged non-disclosure by husband – whether erroneous record-keeping by husband impacts business valuation – assessment of relevant section 75(2) matters – wife’s income earning capacity limited by injury – disparity in age of parties 

FAMILY LAW – COSTS – Calderbank offer to settle not accepted by wife – ultimate outcome more favourable to husband than was offered – order for costs – indemnity costs refused – costs to be calculated pursuant to scale – matter to be listed for mention for costs to be fixed if parties cannot agree on quantum 

FAMILY LAW – Parenting – final orders – one child aged 6 years – whether the child should spend no time with the father or limited supervised time – where the father has a long history of perpetrating coercive and controlling family violence – where the father exhibits an inability and complete unwillingness to acknowledge the gravity of what he had done and to accept responsibility in any way – where the father actively used or manipulated the child in the dynamics of abuse and coercive control – where the father’s coercive controlling family violence places the child at very high risk of future harm – best interests of the child to spend no time nor have any communication with father. 

FAMILY LAW – PROPERTY – husband seeks orders in accordance with in-principle agreement previously reached between parties – consideration of exceptions to exclusion of evidence of settlement negotiations in sub-section 131(2) Evidence Act 1995 (Cth) – evidence of in-principle agreement admitted where parties each gave evidence of steps taken pursuant to that agreement, including the sale of their home – assessment of contributions – weight to be given to initial contributions including husband’s ownership of former family home at commencement of cohabitation in the context of all other contributions over a relationship of 28 years, with two (now adult) children 

FAMILY LAW – Parenting – High conflict between the parents – Where presumption of equal shared parental responsibility rebutted because of family violence – Whether the child needs to be protected from psychological harm from being subjected to emotional abuse by the Mother undermining the child’s relationship with the Father –– Allocation of sole parental responsibility as to health to the Mother – Shared parental responsibility as to all other issues – Orders made that the child live with the Mother and spend time with the Father – No order that the Father’s time be conditional on him completing a Men’s Behavioural Change Program or other treatment – No order that the Mother’s time be conditional on psychological treatment  

FAMILY LAW – PARENTING – Parental responsibility – Live with – Spend time with – consideration of the benefit to child of having a meaningful relationship with both parents – whether the child is at risk of harm in the household of the father – Where child is not at an unacceptable risk of harm in household of the father – whether child is at risk in household of the mother – Where child is at risk of psychological harm in household of the mother – Where there is a benefit to the child of having a meaningful relationship with both parents – capacity of each parent to meet the emotional needs of the child – impact on the child of proposed change in living arrangements –consideration of child’s right to share her Aboriginal culture with the mother and half-siblings and other people who share culture – order made for child to spend time with the father- order made for mother to have sole parental responsibility – presumption does not apply due to family violence – no co-parenting relationship  

FAMILY LAW – PROPERTY SETTLEMENT- De facto relationship comprising two separate periods of cohabitation – Where the respondent made greater contributions to the acquisition and maintenance of the properties owned by the parties – Where the applicant has failed to adequately disclose shares owned by him – Where the respondent has had the majority care of the two children of the relationship since separation and the applicant has made inconsistent child support payments – Contributions assessed as 60% to the applicant with a 7% adjustment for future needs. 

FAMILY LAW – PARENTING – whether orders should be made in respect of a child soon to turn 17 – orders made placing significant weight on child’s views – child to spend equal time with both parents 

FAMILY LAW – Parenting – recovery order sought and issued. 

FAMILY LAW – Property – weight to be attached to contributions – future needs 

FAMILY LAW – Parenting – one child, aged 8 – child has anxiety and has been resistant to overnight time away from the mother since separation - where the Father has a somewhat harsh parenting style and lacks empathy – where the Father shared parental responsibility – where the Father seeks that the child immediately commence overnight time – where the Mother seeks that overnight time commence when the child turns 10 in accordance with the single expert witness’ recommendations – where the Court considers overnight time commence when the child turns 10 and that the Mother have sole parental responsibility – best interests of the child.   

FAMILY LAW – PARENTING – Where this is the second set of parenting proceedings for this child and the child is now 10 years of age – Where the child is presently living with the mother and refusing to spend any time with the father notwithstanding it is professionally supervised – Where the child has expressed clear views as to her relationship with the father and has made various allegations as to the father’s conduct including that he has threatened to kill her and abused her– Where the allegations as to the father’s conduct are not found - Where the child’s expressed views do not accord with the relationship she has with the father- Where the single expert opines that the mother displays traits suggesting that the mother has a personality disorder -  Where it is found that the mother is incapable of facilitating a relationship between the father and the child – Where the child has been significantly exposed to these proceedings – Where it is found that the mother presents a risk of physical and emotional harm to the child - Where it is found that the father can provide the child a more stable residence – Orders made for the child’s residence to be changed so that she lives with the father and spends time with the mother on a gradually increasing basis and eventually four nights per fortnight. 

FAMILY LAW – Property – de facto property settlement proceedings – short relationship – where the parties jointly own three properties – where the parties agree that the wife will retain two of the three properties and receive a cash adjustment – where the husband contends the adjustment be $150,000 – where the wife contends the adjustment be $280,000 – where the Court considers a cash adjustment of $263,000 is just and equitable – just and equitable outcome.

FAMILY LAW – PROPERTY- 33 year marriage- assessment of contributions – weight to be given to the Husband’s initial contributions of real estate and two workers compensation payments received during the marriage – whether there should be any adjustment to either party for other factors set out a s79(4) (d)–(g) – whether the Husband should be responsible for the payment of outgoings relating to the various properties and the company before they are all sold. 

FAMILY LAW – Property – de facto – declarations satisfy jurisdiction - global approach adopted – where both the financial resource attributable to the de facto wife and the property pool is considered - 75:25 adjustment of the property pool in favour of the de facto husband – just and equitable   

FAMILY LAW – Parenting – Parents live four and a half hours’ drive from one another - Three year old child has lived with each parent on a fortnightly rotation from a young age – Each parent has good reasons for their current place of residence – Distance between residences means current arrangements cannot continue when the child attends school – Benefit of a meaningful relationship with both parents – Each parent has capacity to provide for the child’s needs – Orders made for continuation of the current living arrangement until October 2024 – From October 2024 the child is to live with the mother – Importance of child’s relationship with her half-sister- Orders for child to live with mother and spend time with the father 

FAMILY LAW – PARENTING - Whether five year old should continue to spend week about time with each of her parents – Where her father continues to consume alcohol in child’s presence despite an injunction not to – Where child has been exposed to family violence – Where the parties are unable to communicate 

FAMILY LAW – Property settlement – De facto relationship – Relationship of  approximately eight years –Financial and non-financial contributions during the relationship – De facto Wife received Total Permanent Disablement (TPD) Payment – Whether TPD Payment should be characterised as a contribution of the de facto Wife – Property wholly purchased with proceeds from TPD Payment – De facto Wife’s future needs given serious health conditions 

FAMILY LAW – ENFORCEMENT OF ORDERS – Orders varied under s 79A.  FAMILY LAW – CONTEMPT – Counts not proved – Prima facie case not met.  FAMILY LAW – COSTS – Circumstances justifying order for indemnity costs – Discretion – Costs in a fixed sum awarded. 

FAMILY LAW – PARENTING – outstanding contravention application – failure to comply with parenting orders – reasonable excuse – willingness to comply with parenting orders – minor variation.   

FAMILY LAW – Property – Undefended proceedings and non-participation of the Husband – Alteration of property interests – Wife seeking alteration of non-superannuation assets – Just and equitable – Husband’s nondisclosure – Premature appropriation of marital assets for Husband’s own benefit – Alteration of superannuation interests – Order equalising parties’ superannuation interests

FAMILY LAW – Parenting – single issue parenting matter regarding the children’s time with the Father – where the Father has a range of mental health diagnoses, including Autism Spectrum Disorder (ASD) and Attention-Deficit/Hyperactivity Disorder (ADHD), as well as some dysregulation – the Father acknowledges a range of his issues and his hyper fixation on certain matters, including news and current affairs – the Father needs to regulate his social media usage in relation to these topics much more carefully – where the children love the Father and want to spend more time with him – whether the children’s time with the Father should increase and if so, if and when it should move to unsupervised time 

FAMILY LAW – Parenting – Rice & Asplund – Preliminary hearing as to whether parenting orders ought to be reconsidered – No change of circumstances that would justify embarking on a second contested parenting hearing – Application dismissed – Discrete issue as to dispute as to choice of school referred to separate hearingv

FAMILY LAW – property – 16 year relationship – where husband seeks that matter is determined on a mathematical approach – where husband brought matrimonial home into the relationship – court determined matter on a holistic approach, as required by authorities – two-pool approach – determination of a 60/40 split in favour of the husband on non-superannuation pool – determination that each party retain their own superannuation 

FAMILY LAW – PARENTING – Interim proceedings – Child aged four years – Mutual allegations of family violence – Where the mother and the child are currently listed as protected persons on an Interim Intervention Order against the father – Allegations of child protection concerns for the child in the care of both parents – Consideration of best interests – Orders for the child to live with the mother and spend supervised time with the father during the period of the adjournment – Department for Child Protection invited to intervene and prepare a report pursuant to section 91B. 

FAMILY LAW – interim parenting orders – whether time between the children and the father should be supervised professionally or by family members – whether there should be a restriction on the father spending time with the children at his house – relationship between mother and adult daughters broken down – adult daughter’s suitable supervisors – no reason father can’t see children at his home 

FAMILY LAW – final parenting order – proceeding on an undefended basis – sole parental responsibility – costs order –  orders in line to what is sought by mother – father did not appear in court – father has been inconsistent throughout proceedings – child impact report – recommended for time with father – father has not taken up time available or participated in mediation – father put mother at necessary costs  

FAMILY LAW – PROPERTY – De facto relationship – Leave to proceed out of time 

FAMILY LAW – PARENTING – Where father has no meaningful relationship with the children – where mother gives evidence that she will relinquish the children if the father has any involvement in her or the children’s lives – where father declines to make an application that the children live with him – allegations of family violence – mother’s distress and grief regarding the breakdown of the relationship – whether it is in the children’s best interest not to have a relationship with the father in circumstances where he does not pose an unacceptable risk of harm to the children

FAMILY LAW - CHANGE OF NAMES – Where mother seeks for the children’s names to be changed – where change would remove any reference to paternity

FAMILY LAW - PROPERTY – Small asset pool – limited evidence relating to property adjustment – equal contributions – 75(2) adjustment

FAMILY LAW - SPOUSAL MAINTENANCE - Where mother seeks spousal maintenance for 4 years – where there is no evidence of the father’s capacity to pay spousal maintenance

FAMILY LAW – COSTS – Where mother seeks costs as part of final relief – No submissions made in support – Each party bear own costs 

FAMILY LAW – Further interim parenting application – father seeks unsupervised time with four year old child – mother seeks continuation of supervised time at a professional contact service – child has spent only supervised time with father since separation in 2018 and no time since May 2021 – significant distance between parental homes – Mother alleges that father has perpetrated family violence and abuse of her older children – assessment of risk – best interests of child – supervised time to continue – where father seeks leave to inspect Family Report prepared in previous Family Law proceedings involving the mother – mother opposes the application – leave granted subject to conditions – where mother seeks appointment of joint single expert clinical psychologist – where current Family Report is significantly out of date – where father initially opposes appointment of single expert and seeks updating family report – where father agrees in submissions that appointment of clinical psychologist is warranted given complex issues in case and allegations of each party that the other has mental health issues – order for appointment of joint single expert forensic and clinical psychologist made – parties to share costs.

FAMILY LAW – Parenting – long-time and flagrant disobedience by the Mother with Court Orders – Mother has relocated the child from NSW to Queensland in clear breach of existing restraining Orders not to remove the child’s residence from his current location – balancing of relevant risks including the steps the Mother has taken to remove the Father from the child’s life in breach of Court Orders – obvious lies by the Mother to the Court about what she would and would not do in facilitating the child’s relationship with the Father – risk to child in Mother removing him from his familiar environment (including school) contrary to existing Orders – further risk to the administration of justice if the Mother is permitted to remain in Queensland in obvious and flagrant breach of Court Orders, such matters constituting an affront to the administration of justice which would be brought into disrepute if the child simply lived with the Mother without the Mother being called to account for her disregard for Court Orders  – Order for Mother to return to the child’s primary residence, and if no compliance, a recovery Order to issue and the child to live with the Father and, after a period of adjustment, the Mother to spend supervised time with the child.   

FAMILY LAW – parenting – interim application for recovery orders – whether recovery orders are in the best interests of the child – with whom a child lives – where the mother withheld the child – issues of mental health and family violence – orders made that child live with father 

FAMILY LAW – PROCEDURAL -Ex-Tempore Reasons for Judgment – where the matter was listed on short notice due to the respondent Husband’s non-signing of a joint letter of instruction to the Single expert for the preparation of a report relating to the husband’s interest in various financial entities – where orders for the provision of such report were made over 2 years ago by this Court – where the husband seeks that the valuation date of such entities be as at late 2021 – where it appears that the husband has caused significant delay in the lack of provision of documents and information to the Single Expert – orders made requiring the husband to provide specific documents to the Single Expert and for the joint letter of instruction as proposed by the wife to be sent to the Single Expert without the signature of the husband. 

FAMILY LAW – parenting – parental responsibility – orders for equal shared parental responsibility – orders for the child to live with the mother and spend progressively increasing time with the father – order for the father to have final decision making authority 

FAMILY LAW – Parenting – two (2) boys aged 9 and 8 living with Mother since separation in September 2020 and spending very limited time with the Father – each parent seeks primary care – consideration of risks and best interest – children to live with Mother and spend time with Father on a limited basis

FAMILY LAW – parenting – Torres Strait Islander child rearing practices – whether a cultural adoption has occurred – whether the Court has the jurisdiction to make such a finding – whether interlocutory orders should be made ¬ legislative pathway for non-parents – whether the biological father is an unacceptable risk of harm – family violence and mental health issues – the biological father’s capacity to facilitate the child’s connection to the Torres Strait Islander culture – the biological father’s capacity to facilitate child’s connection to his cultural family – whether cultural parents are parents according to law.

FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – Father continues to seek to spend time with his now 10 year old daughter who is significantly resistant to spending time with him – Father has significant criminal history – a number of factual contentions to support Application not established by the Father – Father contends that the Mother effectively subverts his attempts to improve the relationship with his daughter – best interest considerations of the child point clearly to recognition time only between Father and daughter.

FAMILY LAW – Costs – husband and second respondent seek costs against the wife – wife concedes that there are circumstances that justify costs orders be made – wife seeks that no orders for costs be made – orders for wife to pay costs of the husband and second respondent

FAMILY LAW – Parenting – significant history of family violence – significant and independent evidence from the Mother regarding her deep-seated anxiety regarding any contact with the Father including any introduction of contact between the Father and the young child – the child does not know his Father at all or even of his existence – Mother agrees to some type of recognition contact between Father and son subject to guidance from child psychologist to inform the child of the [biological] Father’s existence.

FAMILY LAW – Costs – the husband and the wife seek costs – justifying circumstances favouring both parties – wife pay costs of the husband

FAMILY LAW - DE FACTO RELATIONSHIP – Parties are joint proprietors of real property – What orders are just and equitable so as to sever that joint proprietorship

FAMILY LAW – admissibility of evidence – validity of the purported parenting plan – purported parenting agreement from family dispute resolution not admissible – Section 10J of Family Law Act 1975 (Cth) and section 131 of Evidence Act 1995 (Cth) are different schemes.

FAMILY LAW – parenting proceedings - with whom a child lives - best interests of child - substantial and significant time - name of child - parental responsibility – presumption of equal shared parental responsibility.

FAMILY LAW – interim parenting orders – part heard final hearing where parties did not contest that interim orders were in the child’s best interest – orders for progression in time for the Father – international travel – restriction on the father traveling at the same time as the mother and the child – second principle of section 69ZN that the court is to actively direct, control and manage the conduct of proceedings

FAMILY LAW - PARENTING – whether 11 year old should spend specified time with her father or only in accordance with her wishes.

FAMILY LAW - PROPERTY – treatment of liabilities – whether husband should be solely responsible for liabilities incurred in the period after separation – whether Division 7A taxation obligations can be ignored – whether initial contributions should be ignored because of subsequent losses incurred by the parties – extent of adjustment where husband will principally retain shareholding in his business which has been valued solely by reference to its future maintainable earnings.

FAMILY LAW - CHILD SUPPORT – whether it is in the interests of the parties and children to consider making a departure order – whether husband should be ordered to make non-periodic payments for education and medical expenses.

FAMILY LAW - SPOUSAL MAINTENANCE – whether husband has the capacity to maintain the wife