Judgments

FAMILY LAW – APPEAL – LEAVE TO APPEAL Parenting – Where the appellant seeks leave to appeal against an order made dismissing his application to re-open parenting proceedings – Consideration as to whether s 65DAAA codifies the rule in In the marriage of Rice and Asplund (1979) FLC 90-725 (“the rule in Rice and Asplund”) – Clarification of the principles which apply to applications under s 65DAAA of the Family Law Act 1975 (Cth) – Whether the wording of s 65DAAA creates a meaningful distinction and departure from application of common law principles – Whether the Court is still required to make a finding about changed circumstances or alternatively, merely “consider” whether or not there has been any change – Where parliament’s intention was to codify the rule in Rice and Asplund – Where a literal interpretation of the wording of s 65DAAA is at odds with the purpose of the statute and leads to absurdity – No discernible difference between the threshold to be applied under the new statutory regime and the common law principles espoused by the rule in Rice and Asplund – Appealable error established – Leave to appeal granted – Remitted for rehearing of the application under s 65DAAA – Costs certificate granted.

FAMILY LAW – APPEAL – Property – Limited evidence available to the primary judge – Where no retrospective valuation of the farming property was conducted by an appropriately qualified expert –– Consideration of s 79 of the Evidence Act 1995 (Cth) – Where the factual error was material to the outcome of proceedings – Appeal allowed – Orders of the primary judge set aside – Matter remitted for rehearing before a judge other than the primary judge – Costs certificate granted to the appellant.

FAMILY LAW – PARENTING – Final parenting orders – Where the children have been exposed to parental conflict and family violence – Where younger child is experiencing school refusal – Where older child has rejected maternal family – Where Court finds father poses a psychological risk of harm to children – Children to live with mother and spend supervised time with father graduating upon condition to unsupervised time – Injunctions granted.

FAMILY LAW – PARENTING – Bests interest of the child – Where the child has speech delay and other developmental challenges – Where the parties have been in conflict over medical treatment and education – Where the parties have other children from previous relationships who have a close bond with the child – Where the child is regularly cared for by the paternal grandmother – Where the paternal grandmother’s health and capacity to care for the child is an issue in dispute – Where the father has not been frank in disclosing his availability to care for the child – Where there are allegations of family violence by both parties – Where the father has admitted to an act of physical violence against the mother – Where the father has misled authorities in respect to the mother’s mental health – Where the mother has had past mental health challenges and hospital admissions – Where a Single Expert Psychiatrist has found that the mother has no diagnoseable mental health condition – Where the father and paternal family have continued to disparage the mother in proceedings – Where the father has perpetrated coercive control against the mother – Mother granted sole parental responsibility – Child to live primarily with the mother – Father to spend three nights per fortnight with the child.

FAMILY LAW – CHILDREN – Contested residence – Where each parent seeks the children live with them and spend little or no time with the other parent – Where the parties are entrenched in significant conflict – Where residency of the children was changed on an interim basis several months prior to the final hearing resulting in an expediated final hearing.

FAMILY LAW – CHILDREN – parenting orders – where mother and stepfather seek parenting orders for child now aged 13 years – where child has been subject of proceedings in New Zealand prior to relocation to Australia with father – where child was removed from mother and stepfather mid-way through New Zealand proceedings and placed in foster care - where comprehensive findings were made by New Zealand trial judge – where this court can adopt findings and evidence before the New Zealand court and does so - where issue estoppel is available but not binding.

CHILDREN – emotional and psychological risk to child – where mother makes allegations of rape by the father – where mother is unreliable witness – where rape allegations were comprehensively litigated in New Zealand – where New Zealand court did not accept the mother’s evidence – where New Zealand court did not accept rape allegations – where evidence of fixed belief is relevant to risk currently posed to the child –– where litigation upon relocation of child to Australia continued –where it would be damaging of the child to learn of these allegations outside of a controlled therapeutic space – where face to face tie and communication must be supervised.

CHILDREN – parenting orders – where mother and stepfather have always sought relocation of child to New Zealand to live with them – where mother and stepfather currently only have supervised time – where current interim orders from 2020 require mother and stepfather to pay for travel due to outstanding costs order–where mother and stepfather altered position in last days of 27 day parenting trial – where mother and stepfather now seek modest increase in supervised time and no longer pursue a relocation or unsupervised time proposal - where mother and stepfather have not established that there should be relaxed supervision.

CHILDREN – meaningful relationship – where there is an existing relationship between child and mother – where risk posed by mother’s fixed belief outweighs any benefit to the child of expanding that relationship – where child has ASD diagnosis – where child has anxiety diagnosis.

CHILDREN – sole parental responsibility – high conflict– where father currently only communicating with mother through paternal grandmother – where both mother and father are unable to communicate with each other – where mother is ‘triggered’ by father – where father views mother and stepfather as ‘evil’ – where equal shared parental responsibility impractical – where mother and stepfather have previously interfered with medical treatment for the child recommended by experts – where mother and stepfather have threatened medical experts with litigation.

EVIDENCE – expert evidence – where there is a private Single Expert Report and Court Preliminary Family Report– where Expert is in favour of increased time for mother with child – where evidence of Report Writers is substantial and very helpful to the Court – Reeves & Grinte – where there were 27 days of trial – where Court can make own observations of behaviour of parties during the course of the trial – where court does not follow all recommendations of expert witness.

SELF REPRESENTED LITIGANTS – evidence – where while questions asked are not in themselves evidence they can form part of Court’s impression of the character of the self-represented litigant – where mother was represented by stepfather – where stepfather was bullish, intemperate and rude – where stepfather was a professional in New Zealand – where stepfather resigned his professional qualifications – where stepfather has represented himself and the mother since at least 2017 – where stepfather has said he will exhaust every avenue – where stepfather and mother seek ‘atonement’ – where ‘atonement’ included a four stage program of repentance.

VEXATIOUS PROCEEDINGS – where there are two previous vexatious proceedings orders – where mother and stepfather brought contravention applications regarding time not spent due to the COVID-19 pandemic – where contravention applications subject to security for costs not paid – where contravention applications withdrawn late in the proceedings following days of evidence – vexatious proceeding order made – costs reserved.
 

FAMILY LAW – MEDICAL PROCEDURES – GENDER DYSPHORIA – Where the mother seeks an order that the child is competent to consent to Stage 2 treatment for Gender Dysphoria – Where the father did not consent to the child undergoing Stage 2 treatment for Gender Dysphoria – Where the child wishes to undergo Stage 2 treatment for Gender Dysphoria – Where the father conceded only during closing submissions that the child has Gender Dysphoria and was Gillick competent – Where the father opposed the mother’s application on religious grounds - Where the child’s medical experts expressed an opinion that the child is Gillick Competent – Where it is in the best interests of the child to undergo Stage 2 treatment – where orders as to confidentiality are made.

PARENTING – Where the Court finds that it is in the best interests of the child for the mother to have sole parental responsibility and for the child’s name to be changed.

PARENTING – Consideration of s 65DAAA of the Family Law Act 1975 (Cth) – Where the parties consent to a reconsideration of final parenting order.

FAMILY LAW – CHILDREN – Whether the father poses an unacceptable risk to the children –Where there is a history of the father perpetrating family violence against the mother, including coercive and controlling behaviour and a conviction for breaching a protection order – Where the father has a criminal history, including child sex offences and breaches of his consequent reporting obligations –Where the task of assessing the risk posed by the father is complicated by the father’s Autism Spectrum Disorder and personality vulnerabilities – Where the father disregards court orders and externalises responsibility for his actions –– Where the father is to spend no time nor communicate with the children save for sending a card and a gift on special occasions.

FAMILY LAW – CHILDREN – Ex Tempore Reasons – Where the second respondent father is a self-represented litigant – Where the third and fourth respondent paternal grandparents are self-represented litigants – Where there has been a lack of meaningful participation in the proceedings by the father and paternal grandparents – Where the father has not been prosecuting his case with due diligence – Where the father’s Response to Final orders is struck out – Where the paternal grandparents have not been prosecuting their case with due diligence – Where the paternal grandparents have not filed any documents in the proceedings – Where there has been an agreement reached between the applicant paternal aunt, respondent mother and Independent Children’s Lawyer as to final parenting arrangements – Where it is in the best interests of the child for the proceedings to come to a conclusion – Where the proceedings are finalised – Final Orders made per the agreement between the applicant paternal aunt, respondent mother and Independent Children’s Lawyer.

FAMILY LAW – COSTS – Where the applicant and a company sought costs against the respondent – Where the respondent sought that the application be dismissed or in the alternative costs be assessed – Consideration of factors under s 117 of the Family Law Act 1975 (Cth) – Where there are circumstances that justify the making of a costs order – Where the applicant and the company sought indemnity costs – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered in a fixed sum of $25,000 each to be paid from any final order in the respondent’s favour.

FAMILY LAW – PARENTING – Consent terms – Neglect and sexual abuse risk – Where there is an unacceptable risk in any contact occurring between the children and the father – Where previous consent terms provide for the children to live with the mother with an injunction for no contact with the father – Where the parties have agreed to further consent terms that provide for time with the paternal grandmother – Consent terms include restraints from bringing the children into contact with other individuals considered to be a risk – Consent terms preserve a relationship with the paternal family which is otherwise not available – Consent terms supportive of the children’s best interests.

FAMILY LAW – PROPERTY – Application by the wife to file additional material following the conclusion of final hearing and after the deadline for filing of additional material and written submissions – Where orders were originally made for written submissions to be filed as the wife no longer wanted to attend Court – Where the wife provided various reasons for the late filing including IT problems and vandalism of her home – Where the additional material included a tender bundle of over 3000 pages and an updated Financial Statement – Discussion of principles regarding how the potential prejudice to the husband may be balanced with the interests of justice.

FAMILY LAW – PARENTING – Relocation – Where the father seeks sole decision making responsibility – Where the mother seeks joint parental decision-making responsibility – Where the father seeks relocation of the children to Region B as opposed by the mother – Where the mother spends substantial attendance time with the children – Where the mother experiences mental health difficulties – The father have sole decision making responsibility of the children – Relocation be permitted – The children live with the father – The children communicate and spend time with the mother – The mother continue to attend upon a psychologist and receive treatment.

FAMILY LAW – PARENTING – Where the applicant mother, second respondent paternal grandmother, intervenor Department and Independent Children’s Lawyer all submit that final hearing of the proceedings should be undefended with respect to the respondent father – Where the respondent father was hospitalised this morning – Where the respondent father has not participated in the proceedings since May 2024 – Principles for conducting child-related proceedings.

FAMILY LAW – CHILDREN – Oral decision – Final Hearing - Where serious allegations of coercive and controlling and intimidating behaviour against father – Where father alleges previous military training and covert Government employment – Where father alleges these proceedings are being monitored by the security services to protect the children – Where father demonstrated high levels of cyber stalking skills - Where evidence establishes a long history of threats of physical violence against other people and the mother – Where father says he will use litigation process to make the mother’s life hell regardless of outcome of these proceedings – Where father believes he is entitled to make threats of physical violence so long as he does not act on them - Orders for the father to have no time and no communication with the children – s 68B restraints on the father for the protection of the children and their carers alongside s 68C order – live with and sole decision making authority to the mother – s 102QAC order made against the father preventing him from instigating further proceedings against the mother other than to appeal these orders.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant sought a stay of final orders pending hearing of his appeal – Where compliance with the final order has the real risk of rendering the appeal nugatory –Where a conditional stay is granted pending appeal – Where orders are made for the applicant to ensure the removal of unlawful occupants from a property subject of the final orders, and for the applicant to secure the property and provide proof of that to the respondent’s legal representatives – Where the applicant is to pay the respondent weekly spousal maintenance – Where the applicant is restrained from dealing with property.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant sought a stay of final parenting and property orders made pending appeal – Where the applicant submitted that the appeal may be rendered nugatory if a stay is not granted – Where the respondent and the Independent Children’s Lawyer opposed the granting of a stay – Where it is not in the best interests of the child to grant a stay of the final parenting orders – Where the balance of convenience favours determining not to grant the stay of the final property orders – Application dismissed.

FAMILY LAW – PARENTING – Unacceptable risk – Where it is the mother’s case that the father presents an unacceptable risk to the children – Where the mother asserts that the father has sexually abused a female child - Where the Court finds that the father does not present an unacceptable risk to the children.

PARENTING – Where the Independent Children’s Lawyer makes an application to restrain the mother from facilitating the attendance of the children on a psychologist – No matters of principle.

FAMILY LAW – PARENTING – Application for Review – Where the mother sought an Application for Review – Where the mother sought leave to adduce further evidence – Where final parenting orders were made in December 2023 – Where the father seeks the final orders remain – Where the mother seeks a reconsideration of the final parenting orders – Where the Court makes a finding of a significant change in circumstances – Where the Court is satisfied it is in the best interests of the children for the final parenting orders to be reconsidered.

FAMILY LAW – PARENTING – Where consent terms were provided by the parties on the fifth day of final hearing – Where the proposed orders appropriately ameliorate the risks associated with both parties’ parenting – Final orders made by consent.

FAMILY LAW – INTERIM PROCEEDINGS - PARENTING - EX TEMPORE – Where final parenting orders have previously been made – Where the Father has not complied with the final orders requiring completion of a men’s behaviour change program – Where the children’s time with the Father has not proceeded in accordance with the final orders – Where the Father is self-represented - Where the Father now seeks, amongst other things, sole parental responsibility and that the children live with him and that he consider requests by the Mother to spend time with the children – Where the Father seeks a change to the children’s school and daycare – Where the Mother seeks that the final parenting orders be discharged and that the children to have no time with the Father and that various restraints be made against the Father – Where the Mother sought but did not pursue a harmful proceedings order – Where both parties consented to reconsideration of the final orders pursuant to s 65DAAA of the Family Law Act 1975 (Cth) – Where the Independent Children’s Lawyer sought the discharge of various final orders and restraints against the Father and that he spend professionally supervised time only with the children – Where regard could be had to findings in the previous final judgment by virtue of s 69ZX(3)(b) of the Family Law Act 1975 (Cth) – Where significant risk issues were raised on the evidence – Where findings as to safety made in the previous final hearing adopted – Where orders made discharging certain final orders – Where orders made for the children to spend professionally supervised time with the Father – Where various restraints made against the Father pursuant to s 68B of the Family Law Act 1975 (Cth) – Where orders made by consent restraining both parties from publishing information about these proceedings.

FAMILY LAW – PARENTING – Where orders were made by consent on the third day of trial for reunification between the child and the father – Where the child has not spent time with the father in four years – Where if reunification between the father and the child is successful it will be followed by a moratorium of time with the mother for a period of 120 days – Where the mother asserts the father has sexually abused the child – Where the mother’s evidence during the trial was that she believed the father had sexually abused his other child and two of her other children despite there being no evidence to support that – Where the mother contended that nothing could convince her otherwise – Where the mother contended she would never support a relationship between the child and the father – Where the mother expressed her belief that the father had manipulated a number of professionals – Where the mother is convinced the father is stalking her and the child and no evidence could convince her otherwise – Where the mother is to seek therapeutic support – Where it is ordered by consent that if reunification is unsuccessful the child will spend no time with the father.

FAMILY LAW – PRACTICE AND PROCEDURE – Ex parte – Where the Independent Children’s Lawyer made an urgent request to manage the release of a psychiatric report – Where leave was given to the Independent Children’s Lawyer to make an oral application – Where a psychiatric report of the parties raised the risk of kidnapping and fleeing, as well as filicide-suicide by the mother if she perceived the child was at undue risk or any threat to her current relationship with the child – Where the Court has to balance protection of the child from a possible adverse reaction of the mother and ensuring fairness and transparency of the process to the parents – Where the Court will bring forward the next appearance and order that the child be brought in for a meeting with the Independent Children’s Lawyer to allow an opportunity for the parties to be heard on the appropriate course of action – Where the order made and reasons are suppressed until the next appearance or earlier order.

FAMILY LAW – FINAL PARENTING ORDERS – Where both parties agree mother should have sole parental responsibility for major long-term decisions –– Where the Court finds father perpetuated family violence – Where unsupervised time may expose child to family violence – Where there is risk to children from exposure to psychological harm in particular due to father’s attitude towards mother - Where mother seeks injunctions restraining father – Youngest child to live with mother and spend supervised time with father – Older two children to live with mother and spend time with father in accordance with their wishes – Injunctions granted.

PROPERTY – Property settlement – Just and equitable – Where husband’s evidence about relevant financial transactions was inadequate – where husband made significant financial transactions immediately after separation which had the effect of reducing assets available for adjustment – Where wife sought addbacks with respect to transactions made by husband – Where amount expended by husband not added back but considered under s75(2).

FAMILY LAW – CHILDREN – urgent application by consent to vary previous final parenting orders from 2017 to allow the child to travel overseas – where previous watch list order discharged but child remained on watchlist – where compliance with the Rules dispensed with – previous order restricting overseas travel discharged.

FAMILY LAW – PARENTING – Section 65DAAA – Threshold issue of whether final parenting orders should be reconsidered – Where the applicant seeks the reconsideration of final parenting orders made by consent – Application of Radecki & Radecki [2024] FedCFamC1A 246 – Prima facie significant change in circumstances necessary for reconsideration – Section 65DAAA a manifestation of the best interests principle – Section 65DAAA may allow the reconsideration of only part of a suite of final orders – Change in circumstances evidenced in breakdown of mutuality and cooperation in coparenting relationship.

FAMILY LAW – INTERIM HEARING – FINANCIAL PROCEEDINGS – where financial proceedings are part-heard – where Application in a Proceeding seeking orders against two third parties heard by judge other than the trial judge – where balance of Application was withdrawn – where remaining order sought was for respondent’s former lawyers to repay funds to litigation funder – where caveat had been lodged by litigation funder over property sought to be retained by the applicant – where characterisation of the order sought was not revealed until submissions commenced – where order was sought as a personal costs order against legal practitioners – where leave was given for an oral application for summary dismissal – where applicant’s case has no reasonable prospects of success – where application for personal costs order is summarily dismissed – where directions are made in relation to applications for costs.

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Property – Where the husband did not ultimately seek the remedial orders set out within his Application for Review – Where the husband instead sought the discharge of orders comprising restrictive and mandatory injunctions – Where the wife acknowledged an unconditional embargo prohibiting the husband from dealing with the unitholding of a company of which he is the sole director was unnecessary – Where the husband will be required to give the wife notice of any intended restructure of the unitholding – Where the orders of the registrar require the husband to deposit any money received by him or the company he controls into the trust account of his solicitors – Where the orders impede the husband’s conduct of a financially viable business – Where the wife’s interest in financial transparency will be achieved by ensuring she is kept appraised of money movements – Where the orders of the registrar compelled the husband to retain residual money realised on the sale of a property by his company – Where the money is the property of the company and the husband wishes to use it to pay pressing debts owed by another company – Where the balance of convenience does not favour retention of the injunction – Where several orders of the registrar are discharged and replaced by substitute orders – Ordered Application for Review otherwise dismissed.

FAMILY LAW – COSTS – Where the husband seeks costs payable by the wife pursuant to s 117 of the Family Law Act 1975 (Cth) of substantive s 79 proceedings – Where consideration is given to the conduct of the wife in the proceedings, including opposing a determination as to a portion of the husband’s interests in a corporation being held on trust for a third party to the marriage, the wife prosecuting relief outside the reasonable ambit of the s 79 discretion, the wife’s offer of settlement being unreasonable, proposing a compromise well outside the reasonable ambit of discretion – Where the husband made a competitive offer of settlement that had some deficiency in the interpretation of its terms – Where both parties, but the wife to a greater extent, failed in compliance with their obligations pursuant to the legislation and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Costs ordered for both the substantive proceedings and the costs application in a fixed sum.

FAMILY LAW – PARENTING – Consideration of whether the NSW Department of Communities and Justice should be invited to join proceedings – Where the Department has previously declined such invitation – Where a high level of risk of harm to the children is presented by both the mother and the father – Where the Department has protective resources unavailable to the Court – Determined that it is appropriate to reissue the request for the Department to join proceedings.

FAMILY LAW – PRACTICE AND PROCEDURE - Ex Tempore Reasons – Appointment of a litigation guardian.

FAMILY LAW – CHILDREN – best interests – international relocation – where the mother seeks to relocate to Country B with the children – where the father opposes the relocation – where the mother is the primary carer for the children – where issues of safety due to the father’s alcohol and drug use – where one child has special needs – where the mother lacks practical, emotional and financial supports in Australia – where the extended maternal and paternal family reside in Country B – where the father submitted the children cannot have a meaningful relationship with him should relocation be permitted – where partway through the trial the father consents to the relocation and a period of supervision – where only issue becomes the period of time that the father’s time will be supervised– orders made permitting the relocation with supervision by the paternal grandmother for a period of time given issues of the safety of the children.

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR REVIEW - Where a Senior Judicial Registrar made an order permitting the respondent to rely upon, produce and/or tender affidavit material and exhibit books prepared by the applicant in Part VIIIAB proceedings to the District Court of New South Wales – Where a Senior Judicial Registrar made an order permitting the applicant to release to the Prosecutor in the District Court proceedings affidavit material and an exhibit book prepared by the respondent in Part VIIIAB proceedings -Where the respondent makes an application to review a decision made by a Senior Judicial Registrar made eighteen months earlier.

FAMILY LAW – PARENTING – Undefended hearing – Where father did not participate in final hearing – Where father poses a risk to the safety of the child – Where child has vulnerabilities – Child’s views – Sole decision making authority to mother – Orders made for time as agreed, and in absence of agreement, no time and no communication – Injunctions.

FAMILY LAW – PROPERTY – application for property settlement – where the parties had a short marriage – where the wife has primary care of the child – where the husband continues to live in the former matrimonial home, being a farming property – where the wife has continued to be liable for mortgage repayments in the post-separation period – where the husband has received advances from his current partner in the post-separation period and submits they ought be included in the pool as a liability – where the wife made greater initial contributions – where the wife earned greater income during the relationship – where the husband has not made full and frank disclosure – consideration of section 75(2) factors – where the husband seeks superannuation splitting orders – where the wife submits the court adopt a two-pool approach – division of 62/38 in wife’s favour of non-superannuation assets – order for parties to each retain their own superannuation entitlements.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay pending appeal – Where the father seeks orders for the stay of final orders made on 16 December 2024 permitting the mother to relocate with the children to the United Kingdom – Where this is opposed by the mother – Orders made for a stay of the final orders.

FAMILY LAW – CHILDREN – Where the mother was the child’s primary carer – Where interim orders were made in 2023 for the reversal of primary care – Where the Court ordered nominal time between the mother and the child – Where the mother was considered to be a psychological risk and unable to support a relationship between the child and the father – Where the mother now seeks orders for primary care – Consideration of risk – Consideration of whether the mother would adversely impact the child’s relationship with the father – Where the evidence suggests that the mother has gained insight into her behaviour and supports the relationship – Consideration of whether the father can promote a relationship between the child and the mother – Where the father concedes he did not facilitate or promote the relationship between the child and the mother as an act of retribution – Consideration of best interests – where the child is settled at her school – Consideration of the geographical distance between the parties – Consideration of impact of the child changing schools – Where the child’s needs are being appropriately met in the father’s primary care – Where the evidence supports a finding that the child’s best interests are supported by the child spending as much time as is possible in the care of the time spending parent – orders for the child to remain living with the father.

FAMILY LAW – DECISION MAKING – where the father seeks sole decision-making responsibility – where the mother promotes equal decision making responsibility – Consideration of the child’s autism diagnosis – Where the mother asserts the father does not accept the diagnosis – where the father asserts the mother takes the child to unnecessary medical appointments – where the father now concedes the child’s autism diagnosis – Consideration of whether the father can accept the child’s autism diagnosis and appropriately support her – where the father may lack the diligence and vigilance necessary to best promote the child’s development – Orders made for joint decision making.

FAMILY LAW – PARENTING – Where the mother seeks orders permitting her to relocate with the children to the United Kingdom – Where this is opposed by the father – Where the parties indicate that they will each live in the jurisdiction in which the children reside, whether that be Australia or the United Kingdom – Where the parties agree that children’s best interests will be served by an equal time arrangement – Where the parents agree that they should share parental responsibility and long term decision making for the children provided they live in the same country - Where the children are aged 12 and 6 years – Consideration of the children’s views - Where the court determines that the mother should be permitted to relocate to the United Kingdom with the children – Orders made providing a framework for time arrangements.

FAMILY LAW – REVIEW - Where Mother’s Application for Review seeks to impugn a Senior Judicial Registrar’s orders which provide for the children’s time with the father and that she have sole parental responsibility for long-term decisions in respect of the children’s education and their attendance and involvement in extracurricular activities – Where the mother seeks the Court’s imprimatur as to interim relocation – Where considerations of family violence are prominent - Where the mother seeks to impugn a payment of $100,000 to her by way of a partial property settlement and seeks a payment of $600,000 in substitution – Ordered Application for Review dismissed.

FAMILY LAW – PROPERTY – Alteration of property interests – Where parties had 23 year relationship – Where wife asserts that her contributions were superior to the financial and non-financial contributions of the husband – Where the wife asserts that but for the financial assistance of her family members the parties would not have been able to establish a childcare business – Where husband made no financial contribution to the children of the relationship in the four years subsequent to separation – No matters of principle.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant sought to appoint a psychiatrist to assess the respondent and provide a report for the same – Where the respondent was previously assessed by a psychiatrist and a report was provided for the same – Where the previous psychiatrist is no longer available to be cross-examined – Where the previous psychiatrist found no overt psychiatric abnormalities of the respondent – Where the respondent opposes the application – Where the application is dismissed.

FAMILY LAW – PARENTING – Where the children were born pursuant to a commercial surrogacy arrangement – Where the biological and birth mother are different – Where the birth mother resides overseas and has no relationship with the children – Where the father is the biological father – Where the matter proceeded undefended – Where the father seeks final parenting orders and a declaration of parentage – The father have sole parental responsibility for the children – The children live with the father – The father be declared the father of the children pursuant to s 69VA of the Act – The father be at liberty to obtain an Australian Passport for the children – Application dismissed.

FAMILY LAW – PARENTING – Where the father sought that the parents have equal shared parental responsibility and that the child spend time with him on a gradually increasing basis until she attains eight years of age, at which time she live in an equal time parenting regime – Where the mother sought sole parental responsibility and that the child live with her and spend no time with the father – Where the Independent Children’s Lawyer supported the mother’s proposed orders – Where the child has not seen the father since October 2021 when she was an infant – Where the mother’s eldest daughter had made disclosures of sexual assault at the hands of the father – Where the eldest daughter has a fear of the father – Where orders are made for the child to live with the mother and spend no time with the father.

FAMILY LAW – PARENTING – Interim application – Oral reasons for decision – where prior interim orders were made for mother to spend limited supervised time with the two older children – in circumstances where the mother has now been acquitted of the charges in a Judge alone trial in the District Court of New South Wales – where District Court reasons are not yet available – where father argues there has not been a sufficient change in circumstance to warrant re-examination of the interim orders – where prior supervisors are no longer willing to facilitate the interim orders – finding that it is appropriate to vary the orders to allow the mother unsupervised time with the youngest child.

FAMILY LAW – PARENTING – Where the final hearing proceeded undefended – Where final orders were made by consent of the father and the Independent Children’s Lawyer – The father to have sole decision making responsibility for long term decision-making – The children live with the father – The children to spend limited supervised time with the mother being four occasions each year – The mother to be restrained and injunctions granted – Each of the mother and the father to pay one half of the costs of the Independent Children’s Lawyer – The father to have liberty to apply on short notice for an urgent recovery order.

FAMILY LAW – PARENTING – Interim hearing – Where the father is presently on remand at F Correctional Centre pending charges – Where the child lives with the paternal grandmother and spends time with the mother – Issues of risk in both households – Where it has previously been held that it is in the best interests of the child to remain with the paternal grandmother pending final trial – Where the trial date was vacated –Allegations the paternal grandmother breached orders, facilitating time and communication between child and father – Consideration of safety of the child – Orders made for child to live with the mother and spend time with paternal grandmother.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal – Where the mother makes an oral application for recusal arising from an exchange during a Case Management Hearing – Where the court finds that the exchange did not give rise to an apprehension of bias – Application for recusal dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of the Final Hearing - Where the mother makes an oral application for the adjournment of the Final Hearing due to commence in January 2025 – Where there is a protracted history of litigation – Where the mother contends that she will not be able to properly participate in the matter – Short adjournment of the Final Hearing granted.
 

FAMILY LAW – PARENTING – International relocation – Where the parties agree the child will relocate with the mother to the USA – Where the father seeks to delay the relocation to July – Child has a good relationship with the father – Disadvantages of delay outweigh the advantages – Relocation to occur in February – Where it is desirable for the father’s time with the child to increase in manageable increments – Father has a history of drug and alcohol abuse – Father falsified drug test results – Father has not acted on single expert’s recommendation for changes to his therapeutic engagements – Where it is in the child’s best interest for testing to continue until the child is 10 years of age.

PROPERTY – Balance sheet items – Add backs – Where the parties agree their contributions were equal – Where the mother will retain primary care of the child – Consideration of the mother’s student loans – Where the father has significant capacity for employment but is currently unemployed – Consideration of the father’s expenditure on drugs and alcohol – Property to be divided 65 per cent to the mother and 35 per cent to the father.
 

FAMILY LAW – PARENTING – Where the father seeks that the child live with him and spend no time with the mother for an indeterminate period– Where the mother seeks that the child spend supervised time with the father in accordance with the child’s wishes – Where the father’s criminal proceedings are outstanding – Where allegations of parental alienation are a live issue and require determination at final hearing – Where an order changing the child’s place of residence has the potential to cause significant emotional distress – Application of Banks & Banks (2015) FLC 93-637 – Where there is no evidence that the child is at an ongoing risk in respect to his physical safety in the father’s care – Orders made for the child to spend unsupervised time with the father in accordance with his wishes.

FAMILY LAW – PRACTICE AND PROCEDURE – Where applicant husband first sought orders pursuant to the Child Support (Assessment) Act 1989 (Cth) in an Amended Initiating Application filed less than two months prior to Final Hearing – where the respondent wife objected on both jurisdictional and procedural fairness grounds -where jurisdictional ground unclear – finding that wife was not given procedural fairness to address the claim at the final hearing – in circumstances where final hearing is likely to be stood-over part-heard – judicial determination as to whether the husband may seek child support departure orders stood-over to a later date.