Judgments

FAMILY LAW – ANTI-SUIT INJUNCTION – where wife allegedly borrowed monies from the wife’s partner –
where the former matrimonial home was used as security for the alleged loans – where the wife has allegedly defaulted on the loan agreements – where the husband has exclusive occupation of the former matrimonial home and seeks to retain the property on a final basis – where debt recovery proceedings were commenced in the District Court of NSW against the wife by the wife’s partner – where the husband seeks an injunction to prevent the wife’s partner continuing the current proceedings or commencing further proceedings in the District Court of NSW.

FAMILY LAW – JOINDER APPLICATION – where it is alleged that the wife borrowed money from the wife’s partner secured against real property occupied by the husband – where the husband seeks to retain the property on a final basis – where the wife has allegedly defaulted on the loan agreement – where the wife’s partner seeks payment of the loan monies.

FAMILY LAW – property – final orders – both parties made initial financial contributions - weight to be given to large inheritance contributed by Wife –– one or two pool approach - whether Husband’s real property to be sold – disparity of financial contributions – what adjustments required for future needs and affording Husband a reasonable standard of living in all the circumstances – two pool approach determined - 72/28 adjustment of net non-superannuation pool in favour of Wife – no adjustment to  superannuation

FAMILY LAW – PARENTING – children aged nearly 14, 11, 9 & 6 – second round of litigation in 5 years – no contact with father since April 2021 when previous orders suspended pending further final determination – where the Court is satisfied the father poses a material possibility of risk of psychological and emotional harm to the children – coercive and controlling behaviour imposed on the family – inability to identify anything positive as to the mother’s contributions or parental relationship as primary caregiver – history of non-compliance with Court orders – no time or communication with father - restraints for personal protection appropriate – appropriate ongoing supports for children required - best interests of children

FAMILY LAW – PROPERTY – 10-year relationship – insufficient disclosure and evidence from the husband for an asset-by-asset approach - global approach taken – overall adjustment of 65%-35% in favour of wife – just and equitable

FAMILY LAW – Costs – consideration of principle regarding award of indemnity costs – Court determined that while a costs Order should be made in the Applicant Mother’s favour the amount sought by her was either or both, in accordance with authority, an unreasonable amount, and/or unreasonably incurred especially having regard to the 11 personnel involved in an Application for costs and the duplication in charging by later-involved lawyers who “read themselves into the matter” while the principal lawyer was still involved. 

FAMILY LAW – PROPERTY SETTLEMENT – Adjustment of property interests under section 90SM of the Family Law Act 1975 (Cth) – credibility in issue – whether court is required to undertake an accounting exercise – whether just and equitable to make any order adjusting the parties interests in property – whether order proposed is just and equitable – no order made adjusting property interests 

FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – where the father sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – where the father seeks to use the documents in aid of his defence in criminal proceedings in Court where he is facing criminal charges – leave granted to use certain documents from the parties family law proceedings in Court proceedings.

FAMILY LAW – PROPERTY – Final orders – Marriage of 26 years – Three adult children – Dispute as to value and treatment of real property situate in Country C – Dispute as to contributions, in particular, allegations of family violence – Wife’s allegations not supported by the evidence – Consequently, significant alterations to property of the parties in the wife’s favour not warranted – Final orders providing for an equal division of property.

FAMILY LAW – parenting – family violence – mental health - whether the child should spend supervised contact with the father four times a year – whether the child spend no time with the father – whether the child have no contact with the father.

FAMILY LAW – practice and procedure – father unable to participate in the proceedings – matter proceeded by way of submissions with the father’s litigation guardian appropriately making significant concessions

FAMILY LAW – final parenting orders – sole parental responsibility – children live with father – spend time with mother as agreed by parties – undefended hearing – mother did not participate in the hearing – injunctions on mother – suspended supervised time – father be at liberty to apply for children’s passport without mother’s consent

FAMILY LAW – PROPERTY – long marriage – modest asset pool consisting of the former matrimonial home and proceeds of sale of investment property held in trust – consideration of husband’s contributions throughout relationship – consideration of add backs sought by wife and s 75(2)(o) factors.

FAMILY LAW – de facto relationship – discrete issue – dispute as to duration of the de facto relationship – whether applicant is out of time to bring property settlement proceedings – declaration as to date and duration of de facto relationship – where the applicant is out of time to bring property proceedings – where the applicant has not demonstrated hardship – declaration made – leave refused – application dismissed.

FAMILY LAW – PROPERTY – Review of exercise of delegated judicial power – application to set aside orders made in a party’s absence

FAMILY LAW – Property – small asset pool – assessment of contributions and future considerations – whether money provided by husband’s parents a loan or a gift – no order made for lump sum spousal maintenance – payment of non-periodic child support

FAMILY LAW – PARENTING – Family violence – Where the father has disengaged from the proceedings – Where there are instances of inappropriate and aggressive communication from the father – Where there was a Final Apprehended Domestic Violence Order in place to protect the mother and children – Father has not spent time with the children in at least two years – Where one child has expressed a view to spend time with the father – Mother granted sole parental responsibility – Children to spend time with the father subject to the father providing evidence that he has addressed his anger management issues.

FAMILY LAW – oral adjournment application – late release of child impact report – mother seeking further time to make decision of orders she seeks  – adjournment application dismissed

FAMILY LAW – interim parenting orders – father’s application for overnight time – allegations of family violence – section 102NA order made – interpreter required – family report ordered – orders made for unsupervised time – appointment of independent children’s lawyer – child lives with mother – airport watchlist order extended – previous parenting orders discharged

FAMILY LAW – PROPERTY – Harman undertaking – Where respondent husband is deceased – Where applicant wife has applied for Letters of Administration to Supreme Court of NSW, Equity Division, in respect to the deceased’s estate – Where applicant wife contends that the deceased died intestate – Leave granted to provide documents from this Court’s property proceedings to Supreme Court of NSW, Equity Division.

FAMILY LAW – Parenting – relocation – where mother seeks to relocate from City B to Brisbane – where father opposes relocation – family violence – discussion of s 60CC considerations – order made for equal shared parental responsibility – where mother will facilitate child’s time with the father – where the Court is satisfied that the child’s relocation to Brisbane with the mother is in her best interests – orders made for child to spend time with father in both Brisbane and City B.

FAMILY LAW – parenting – final hearing – relocation – parties living in Melbourne – mother seeking to relocate to Region B – risk of harm to children – alcohol and anger management issues – exposure to conflict – children’s wishes

FAMILY LAW – interim parenting orders – how often the child should communicate with a parent overseas – when the child should return to Australia from overseas after a holiday – whether counselling for a child should be reportable or non-reportable – unusual circumstances require listing the matter for final hearing

FAMILY LAW – PARENTING - Rice v Asplund – Where the father’s application seeks to discharge final parenting orders made by consent two years prior and increase the time the children spend with him from three nights and four afternoons a week to six overnights a fortnight – Where the mother seeks a dismissal of the father’s application - Where there has been some difficulties between the parties subsequent to the making of the orders but the father has not satisfied the criteria imposed by Rice v Asplund - Application dismissed – Order that the father pay the mother’s costs in a fixed sum. 

FAMILY LAW – interim application – section 10NA – self represented parties – discretion – section 102NA(1)(c) – no order made 

FAMILY LAW – Parenting – final orders – one child, aged 4 years old – whether the child should continue to live with the Father in the City B area or relocate with the Mother in the Town C area – where the Mother and Mother’s partner have misled the Court as to the reasons behind the relocation and future plans – where the Mother applied coercive pressure on the Father to consent to the relocation – where there are concerns about the Mother’s capacity to facilitate a relationship between the Father and child should the child live with the Mother – best interests of child to live with the Father.

FAMILY LAW – CHILDREN – whether in best interests of child to order equal time arrangement; assessment of child’s views; whether parties' communicate effectively enough to make equal time practicable.  FAMILY LAW - PROPERTY –whether non-superannuation and superannuation assets considered in separate pools; the impact of sale of home upon Respondent’s income; whether the Applicant should receive all the superannuation assets so that the Respondent can retain the home; whether the parties' contributions should be assessed as equal; care of non-biological children; assessment of Respondent’s income earning capacity.  FAMILY LAW - SPOUSAL MAINTENANCE —   whether Husband establishes a need for spousal maintenance; whether the Wife has the capacity to pay.

FAMILY LAW – Children – contact – family violence –allegation of sexual abuse by father – finding that the allegation was fabricated – consideration of fabrication upon the child – change of residence.  

FAMILY LAW – COSTS – urgent application for recovery of child – where mother brought application for a recovery order because father has withheld child contrary to interim orders – where matter has an upcoming trial date – where father’s reaction to an incident(s) has been entirely disproportionate – where father did not appear at Court for the hearing of the recovery application – where recovery order is granted – where the father is ordered to pay costs on an indemnity basis to the mother and Independent Children’s Lawyer 

FAMILY LAW – Property proceedings – where the Court made final consent orders in accordance with the parties joint application – where a dispute arose concerning the proper interpretation of the consent orders – where the wife filed an enforcement application – where the wife contends that the husband had underpaid her in terms of her entitlements – where the husband contends that he has paid the wife her full entitlement – where the husband accuses the wife’s legal representatives of subtly re-drafting the consent order in a way which was different from earlier “Heads of Agreement” entered into by the parties following a mediation – where the Court considers that the terms of the consent order reflected a clear, communicated change to the “Heads of Agreement” and where the wife’s legal representatives were in no way misleading – where the Court considers that the wife’s legal representatives did not engage in any improper conduct in relation to the drafting or interpretation of the consent order – order enforced – just and equitable.   

FAMILY LAW – parenting and property –father seeks sole parental responsibility – mother’s non-compliance with orders – mother fails to demonstrate understanding of the children’s needs – mother’s lack of insight –whether or not there is an unacceptable risk to the children in the mother’s care - mother facing homelessness –small asset pool – 15 year marriage 

FAMILY LAW – parenting – discrete issues hearing – where final parenting orders made by consent except for the discrete issue of whether the child is permitted to accompany the father during hunting and shooting activities – where child has diagnosis of ADHD and is medicated – order that the child is permitted to participate in shooting activities once she attains the age of 12 years holds a minor’s firearms permit – order that the child is permitted to participate in hunting activities once she attains the age of 14 years holds a minor’s firearms permit   

FAMILY LAW – property – application for property order under section 79 – only asset to be considered in application being proceeds of sale of former matrimonial home – contributions prior to and during marriage equivalent between spouse parties – contributions post-separation significantly favour Wife – further adjustment appropriate in Wife’s favour.  FAMILY LAW – property – Husband a discharged bankrupt – trustee of the Husband’s bankrupt estate not a party to the proceedings as at time of final hearing – former trustee of the Husband’s bankrupt estate a party to the proceedings at time of final hearing – matrimonial asset pool only comprised of the proceeds of sale of the former matrimonial home – former trustee expended sums from the net proceeds of sale for costs and disbursements – Court finds that such expenditure was unacceptable and sum added back.  FAMILY LAW – property – previous undefended bankruptcy proceedings in Adelaide – bankrupt person resident in NSW – bankrupt estate comprised of assets in NSW – Federal Circuit Court of Australia sitting Adelaide – orders made pursuant to Law of Property Act 1936 (SA). 

FAMILY LAW – PROPERTY – whether the wife was the subject of family violence – Kennon & Kennon claim – whether the wife’s contributions were made more arduous due to domestic and family violence – whether the husband wasted assets through gambling – whether there should be an adjustment to the wife in respect of husband’s waste – assessment of contributions – credibility of witnesses – Jones v Dunkel inference  

FAMILY LAW – parenting – relocation – one child aged 8 – child with autism spectrum disorder – severe developmental delay – child requires speech therapy, physiotherapy and occupational therapy – child has behavioural issues – living with the father in City B, South Australia – mother lives in Town C, New South Wales – mother has moved multiple times during proceedings – both parties have a history of illicit substance use – father still using cannabis – allegations of family violence – allegations of excessive discipline – risk to the child – father has difficulties with reading and writing – ability of parties to meet the child’s needs – commitment to parenting – relocation of child not allowed – injunctions with respect to family members 

FAMILY LAW – Children – contact – indefinite supervised time 

FAMILY LAW – Property settlement – marriage of 20 years duration – marriage produced three children – parties engaged in business – where husband attended to physical aspects for the business and the wife was charged with the administrative aspects – husband asserts that the wife expropriated assets during the marriage – parties acquired real properties throughout marriage – wife asserts she properly administered the family’s financial affairs through a trust and corporate trustee – children estranged from their father – consideration of s 75(2) of the Family Law Act 1975 (Cth) – treatment of add backs – assessment of contributions – just and equitable 

FAMILY LAW – final property hearing – undefended – husband and counsel excused from hearing after adjournment opposed – non-disclosure – wastage – gambling 

FAMILY LAW – application for final parenting orders –parentage declaration under section 69VA of the Family Law Act 1975 (Cth) made by consent – dispute as to terms of parentage declaration – where the mother seeks orders permitting her to apply for Australian citizenship for the child and requiring the father to take all necessary steps to facilitate that application – consideration of best interests of the child – where the parties consent to the mother having sole parental responsibility for the child – final parenting orders made. 

FAMILY LAW – contested parenting applications – prior consent orders provided for the two (2) children to live with the mother – where the mother home-schooled both of the children – where the eldest child, almost 17 at the conclusion of the trial, self-placed with father when he was 14/15 years old – where the younger child, 13 years old at trial, remained living with the mother – where there is a documented breakdown of the relationship between the younger child and the mother – 13 year old child considering harming herself or the mother – schooling highly contentious issue – where the father seeks that the child attend mainstream schooling – mother’s final position seeks that the younger child continue to live with her and that the mother continue to deliver the home schooled education – where the children’s views are taken into account and great weight has been placed upon such views – where there is expert evidence of the children’s views and professional assessments of learning levels and any potential learning difficulties – where the Court finds it is in the eldest child’s best interests to remain living with the father and see the mother according to his wishes – where the Court finds it is in the younger child’s best interests to live with the father – time with mother subject to child’s views – father to have sole parental responsibility for both children (which includes schooling) 

FAMILY LAW – PARENTING – Interim Orders – where child has made significant disclosure to non-live with parent- change of residence of mature aged child – pick up arrangements -procedural orders for final hearing 

FAMILY LAW – PARENTING – Best interests of child – orders made.  FAMILY LAW – PROPERTY – Just and equitable property orders made. 

FAMILY LAW – parenting – final orders – one child, aged 5 years  – where the mother seeks a “no time” order – where the father has perpetrated coercive and controlling family violence against the mother – where the father and child have an established, loving relationship – where the father has acknowledged his bad behaviour and taken active steps to address his issues and improve his functioning – where it would be ‘overkill’ for the Court to sever the relationship between the child and father so as to protect the child from potential risk of psychological harm –  best interest of child.   

FAMILY LAW – PROPERTY SETTLEMENT – Where the parties’ were married for 10 years – where there are no children of the marriage – where the husband asserts he made overwhelming financial and non-financial contributions throughout the marriage and seeks that items be notionally added back to the property pool  –where the wife asserts that her contributions were made significantly more arduous as a result of the husband’s conduct – where the wife’s Kennon claim is not substantiated – contributions assessed as equal -  where there is a significant disparity in the income of husband and the wife – orders made adjusting the overall property of the parties as 52.5 percent to the wife and 47.5 percent to the husband. 

PROPERTY - PRACTICE AND PROCEDURE - no costs order 

FAMILY LAW – application for review – application for spouse maintenance by the wife – where the wife says she is unable to adequately support herself – where the husband is a medical professional – where the husband pays the mortgage on the former matrimonial home – where the court accepts the wife has an unmet financial need – where an order for spouse maintenance is appropriate.

FAMILY LAW – application for review – where the father has requested an urgent interim hearing – where the mother obtained an ex parte interim order – where consent orders were suspended under s68R of the Family Law Act – where the mother alleges the child feels anxious about spending time with the father – where the mother says the child has complained to her of violence at the father’s house – where the court is satisfied the matter requires an urgent hearing. 

FAMILY LAW – parenting – competing residence applications - where a five year old child has been denied a meaningful relationship with one parent by the other – refusing to promote a reintroduction of parental relationship in accordance with interim orders culminating in recent interstate relocation - where a material possibility of psychological and/or emotional harm to the child is posed by the mother - where no risk of significant harm in the father’s household is found - careful weighing up of evidence required - extensive supports required to assist the child during transition – to encourage positive social development and reduce anxiety – encourage and develop a meaningful relationship with both parents – change of residence appropriate with supports in place – restraints to ameliorate risk of child’s exposure to conflict - best interests of child   

FAMILY LAW – application for review – where the mother unilaterally relocated with the children – where the father has not seen the children since December 2022 – where the mother makes allegations of family violence against the father – where the mother has obtained a provisional apprehended violence order against the father – where it is alleged the father has breached the provisional apprehended violence order -  where the father is facing criminal charges – where it is appropriate the orders made by the Registrar are adjusted – where the court is not satisfied a recovery order should be made 

FAMILY LAW – De facto relationship – to determine when the breakdown of relationship occurred - summary dismissal of spousal maintenance application sought – untested evidence taken at its highest – leave granted pursuant to s 44(6) – financial hardship if discretion not exercised   

FAMILY LAW – PARENTING – PROPERTY – time for child with father in accordance with wishes – child lives with mother – mother sole parental responsibility    

FAMILY LAW – CHILDREN - History of family violence – should there be move for the Father from supervised time to unsupervised time (including overnight time) with children - Should the Father be consulted in relation to major long term decisions.   FAMILY LAW - COSTS - Independent Children’s Lawyer’s costs 

FAMILY LAW – Parenting – where three children aged 6, 5 and 3 have been exposed to risk of harm (abuse / serious neglect / family violence) by their parents – where both parents have impaired parenting capacity – appropriate for paternal grandparents to have equal shared parental responsibility – as both mother and father pose unacceptable risk of harm to the children, children to live with paternal grandmother - injunctive relief and prohibitory orders to ameliorate risk when spending time – change of surname for youngest child - maintenance of meaningful relationships – protection of children from harm – children’s best interests