Judgments

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  

FAMILY LAW – PARENTING – undefended hearing – two children – parenting orders made 

FAMILY LAW – property – where there are non-compliant structures built on the land of the former matrimonial home – where the wife has been threatened with enforcement proceedings by the council – where the wife says she did not know the structures were non-compliant prior to the parties reaching a property settlement – where the husband says the wife was aware the structures were non-compliant – where the court accepts the wife’s evidence as truthful – where the court does not accept the husband as a truthful witness – the husband is to pay compensation to the wife 

FAMILY LAW – parenting application – where the mother seeks sole parental responsibility and the father seeks shared parental responsibility – where the ICL seeks that the mother have final decision-making power – where the parties separated following an assault by the father on the mother – where the mother is anxious about the child spending time with the father – where the parties are able to communicate effectively regarding the child – the court is satisfied the orders sought by the ICL and largely supported by the mother are appropriate 

FAMILY LAW – valuation of property – discrete issue hearing regarding value of former matrimonial home –  competing valuations from qualified valuers – where valuers gave evidence concurrently at discrete issues hearing – declaration as to value of the former matrimonial home  

FAMILY LAW – COSTS – Application for indemnity costs – Application for ICL’s costs – Scale costs ordered  

FAMILY LAW – parenting application – application for interim orders – where current interim parenting orders were made by consent in 2021 – where Father has not spent time with children since June 2019 – where the Court finds the Father has perpetrated acts of family violence –application dismissed 

FAMILY LAW – PARENTING – Rice & Asplund threshold hearing – Father not permitted to commence fresh parenting proceedings 

FAMILY LAW – practice and procedure – apprehended bias – application dismissed 

FAMILY LAW – property – where the husband alleges he owes large debts to members of his family – where the wife alleges the debts are either non-existent or should not be considered – where the husband was not a reliable witness – where the wife was a generally reliable witness - where the husband’s brother gave evidence in support of the alleged debts – where the husband’s brother sent the husband letters requesting the debts be repaid – where there was an unavoidable inference that these letters had been written for the purpose of court proceedings -  where the court was not satisfied the debts exist – court orders an adjustment in the wife’s favour of $100,000 – husband is to pay the wife $288,969. 

FAMILY LAW-  parenting application – where the mother is seeking that orders made in 2018 be set aside and that the children live with her – where the children currently live with the father’s former partner – where the father is currently incarcerated for a violent offence – where the children wish to remain living with their father’s former partner – where all parties have a history of illicit drug use – where the mother has significant mental health issues – where there is a need to protect the children from harm in the mother’s care – where the father is not in a position to care for the children on his release from prison – where the court is satisfied the children should remain living with their father’s former partner and she should have sole parental responsibility.    

FAMILY LAW – PARENTING – Where it is uncontroversial that the child should live with the mother –  Where the father seeks orders for supervised time with the child until she attains the age of thirteen years and thereafter pursuant to the child’s wishes – Where the mother and the Independent Children’s Lawyer seek orders for the child to spend no time with the father where the child does not have an existing relationship with the father – Where findings are made that the father has perpetrated serious acts of family violence upon the mother including physical assaults, non lethal strangulation, threats to kill the mother, monitoring her movements via CCTV and other forms of coercive and controlling behaviour – Where it is found that the mother’s parenting capacity would be adversely affected were the child to spend time with the father – Where it is found that the child is at an unacceptable risk of harm in spending time with the father and that such risks cannot be mitigated by the orders sought by the father including supervision – Order made that the child spend no time with the father and protective injunctive orders made.  

FAMILY LAW – oral application to adjourn trial – application made when trial due to begin – previous trials vacated – repeated non-compliance – procedural fairness – case management – adjournment refused 

FAMILY LAW – Parenting – where the mother seeks to relocate with the children back to City B – where the father seeks that the children remain living in the Region C– where the mother will remain living in the Region C if she is unsuccessful – where the father will relocate to City B if he is unsuccessful – where both parents are child-focused and have agreed to implement an “equal time arrangement” whether in the Region C or in City B – where the Court considers that there may be adverse impacts on the mother’s parenting capacity in the event she stays in the Region C– mother’s relocation application successful – best interests of the children.    

FAMILY LAW – final parenting orders – where one party has a history of alcohol abuse – benefit of face to face hearing – when overnight time should commence with one parent – whether to make orders for further alcohol testing – orders for gradual increases in time to overnight.  

FAMILY LAW – COSTS – Where the mother seeks costs on an indemnity basis – Where father removed child from jurisdiction to China without mother’s knowledge or consent – Where father procured Australian passport for the child by falsifying the mother’s signature – Where father’s conduct has defeated the Court’s jurisdiction given no prospect of a return order – Where mother has been unable to have

FAMILY LAW – PROPERTY – Just and equitable Orders made. 

FAMILY LAW - PRACTICE AND PROCEDURE –Ex Tempore Reasons for Judgment - wife’s Application to review a Registrar’s decision to dismiss her Application for Enforcement of final property orders entered into by consent – where the husband raises issues as to service of the Application for Enforcement – where the husband’s conduct has been an impediment to enforcing the final property orders made by consent – where the husband’s legal representatives have sent inflammatory and unhelpful correspondence to the wife – Review upheld – Orders made for wife to be appointed as trustee for sale – Order for the husband to pay the wife’s costs in a fixed sum.   

FAMILY LAW – Contravention – contraventions conceded – reasonable excuses not established – compensatory time – bond – variation of orders - costs

FAMILY LAW – PARENTING – Final parenting orders – application by father to spend time with children – key issue is consideration of risk of harm to the children from being subjected to or exposed to neglect and family violence in the household of the father – impact on mother’s parenting capacity if required to facilitate the children spending time with or communicating with father – whether it is appropriate for the welfare of the children to make s.68B restraints for the personal protection of the children – proposed international travel for children with mother – best interests of children 

FAMILY LAW – costs – costs of review application – where husband seeks wife pay his costs of the application for  review – order that wife pay the husband’s costs of the review hearing

FAMILY LAW – Property proceedings – where interim orders were made by consent in October 2020 – applicant seeks to enforce sale of property – application pursuant to section 106A – matters to be considered – respondent seeks to set aside the consent order – where the Court is required to undertake a more detailed assessment of the parties’ situation – consideration of transfer to Division 1 of the Court – case management principles – justice and equity

FAMILY LAW – final parenting and property orders – whether the children’s living arrangements should be equal time or substantial and significant time – where one parent has involved the children in the proceedings – whether the property pool should be divided equally or 70/30 – whether there should be adjustments based on section 79(4) contributions – whether there should be adjustments on section 75(2) factors – equal contribution and 5% section 75(2) adjustment – jointly contributed pool divided 45/55 – final hearing heard over 5 days 

FAMILY LAW Relocation – mother lives in City B, Victoria – father lives in City C, Western Australia – father a transport worker with the Armed Forces – father is likely to move again in next twelve months – risk to children – children with special needs – ability to meet needs – neglect – lack of supervision – exposure to drug affected persons – splitting siblings – children permitted to relocate to live with the father 

FAMILY LAW – Property – discrete issues – whether agreement entered into by parties is a binding financial agreement –– held that the financial agreement was not a binding financial agreement as there are grounds to set the financial agreement aside.

Spousal maintenance – application to stay the collection of spousal maintenance and discharge of orders – held that as financial agreement has been set aside then a new application to be filed by husband as to variation or discharge of spousal maintenance orders accompanied by an affidavit and financial statement 

FAMILY LAW – parenting application – where the mother has not seen the children for 10 years – where the mother says she was subjected to family violence by the father during their relationship – were the father does not support the children having a relationship with the mother – where the mother is an Aboriginal woman – where the mother has a history of drug and alcohol dependency – where the mother is seeking orders allowing to spend time with her – where the ICL supports the children spending time with the mother – where it is appropriate the orders sought by the ICL are made.   

FAMILY LAW – PROPERTY – Financial agreement set aside – Just and equitable property Orders made.

FAMILY LAW – parenting – mother seeks to relocate with 7 year old child to Adelaide where she has support of extended family – father opposes relocation his extended family support is in Melbourne – both parents highly involved parents and child focussed – finely balanced

MIGRATION LAW – Whether Tribunal conducted a proper review – whether Tribunal was illogical or irrational in the way in which it arrived at its decision – no jurisdictional error established – application dismissed. 

FAMILY LAW – interim property settlement – second application for interim property orders  

FAMILY LAW – Application for default judgment – application for judgment on an undefended basis – meaning of ‘undefended’ and approach to undefended hearing – approach to take in applications for judgment in default – application to proceed on an undefended basis granted – application to seek judgment in default granted.  FAMILY LAW – Application for parenting orders – where Father has not complied with various orders to undertake drug tests and psychological testing – adverse inferences drawn against the Father – best interest considerations assessed – final parenting orders made in terms sought by the Mother.  FAMILY LAW – Application for property orders – where the mother has filed limited evidence in respect of her application for property orders – where a party is not entitled to relief sought simply because the application is not contested – where the Court needs to be satisfied any adjustment of property interests is just and equitable – where there is not sufficient evidence to enable the Court to be satisfied that the property orders sought by the Mother are just and equitable – application for final property orders dismissed – both parties given leave to file additional material in relation to the division of property

FAMILY LAW – PROPERTY – LITIGATION FUNDING – interim proceedings –  provision of funds held in trust for litigation expenses – application of costs power under section 117 – where the wife seeks a sum of $120,000 on account of legal costs and disbursements – where the husband seeks that each party receive $50,000 for the same – where the wife has failed to provide evidence of Retainer Agreement with her solicitors – where the wife has failed to properly plead the final orders sought at Trial – review of authorities – held, that the amount sought by the wife is not just- orders for litigation expenses made as sought by the husband.