Judgments

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

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 – 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 – 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 – 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 – 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 – 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 - 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

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

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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 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 – 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 – 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