Judgments

FAMILY LAW – COSTS – Application for costs of substantive proceedings – Where the first respondent joined the second, third and fourth respondents (“the other respondents”) to the proceedings seeking relief directly against them but abandoned those claims after about 12 months – Where the other respondents make an application for the first respondent to pay their costs – Where the first respondent’s joinder of the other respondents was not futile – Where the financial circumstances of the other respondents are substantially superior to those of the first respondent – Application dismissed.

FAMILY LAW – PROPERTY – Alteration of property interests – Just and equitable – Where both parties wish to retain a property – Where remaining property is subject of dispute – Where existing legal and equitable interests considered – Whether advances from family members have the character of loans – Where husband and wife are both shareholders in companies – Where valuation evidence inadequate - Whether there should be adjustments based on s 75(2) factors – No matters of principle.

INJUNCTIONS – Breach of orders – Where husband requested wife be injuncted from instructing her lawyers – Where wife sought litigation funding – Where husband asserted wife breached orders prohibiting encumbrance of assets by consenting to caveat over matrimonial home – Where husband failed to establish knowledge on behalf of wife’s lawyers – Where there was no aided breach of orders by wife’s lawyers – Application dismissed.

FAMILY LAW – CHILDREN – Oral application made by the Independent Children’s Lawyer to change the children’s residence – Where the mother informed the Court that she could not support or facilitate the children spending any time with the father – Interim Order made for the children to live with the father until the final hearing listed in less than three months.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for order pursuant to s 102NA(1)(c)(iv).

FAMILY LAW – SUBPOENA – Objection – Where the child’s psychologist objects to giving evidence in a final hearing –Where the therapeutic context was provided to a child who is an alleged victim of a sexual offence – Consideration of public interest immunity – Objection upheld.

FAMILY LAW – PROPERTY – Final orders – Where the wife contends the property pool is in excess of $650 million – Where the husband contends a property pool of $50 million – Where the wife contends a company is the alter ego of the husband or alternatively is held on trust for the husband – Where the husband denies the company is his alter ego – Where the wife contends that the date of cohabitation is July 2009 – Where the husband contends the date of cohabitation is August 2011 – Where there have been other proceedings in Country AD, China, Country S – Where the husband’s brother, sister-in-law, and a company have been joined as the second, third and fourth respondents – Where issues of non-disclosure – Where issues of credit – Where allegations of asset protection by the husband regarding funds transferred by the husband to the accounts of others – Both wife and husband seek transfer of shares in jointly owned company in their favour solely – No adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) – Financial orders made for payment of monies and transfer of shares in jointly held company to the wife.

FAMILY LAW – NULLITY – Where the parties solemnised their marriage in Sydney – Where the parties believed that they were both unmarried at the time of solemnisation – Where the respondent had not validly terminated her marriage to a previous spouse – Where the applicant terminated the relationship with the respondent as a result of her non-disclosure – Decree of nullity ordered.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the primary case of the applicant is that he was not a parent of the child – Where the mother and the child live in Country B and have travelled to Australia for a holiday – Where the applicant attempted to use the placement of the child on the Family Law Watchlist as an instrument to require the mother to submit the child for a parentage test – Where the applicant’s conduct shadows an abuse of process – Where orders were made removing the child from the Family Law Watchlist.

FAMILY LAW – PRACTICE AND PROCEDURE – Where significant interim orders were made in 2018 – Where neither party seeks a trial listing – Where the applicant wife asserts CGT issues may need to be determined – Where there are no outstanding matters for the Court to determine – Consideration of whether the proceedings should be dismissed – Orders dismissing the proceedings.

FAMILY LAW – DE FACTO RELATIONSHIP – Where both parties sought declarations pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant asserts the parties were in a de facto relationship for approximately 12 years – Where the applicant contends that the relationship broke down in October 2022 – Where the respondent contends that a de facto relationship never existed – Where the applicant commenced proceedings in June 2023 – Where the applicant lived in the respondent’s investment property for nine years – Where the applicant did work for the benefit of the respondent’s investment properties – Both parties have children from previous relationships – Parties held no real property together – Parties shared Christmas and birthday celebrations – Parties travelled extensively together – Where there are issues of credit in relation to both parties’ evidence – Where the applicant’s evidence in these proceedings is contradictory to his evidence in previous family law proceedings and representations made to the SSAT – Where the evidence is diametrically opposed as to whether the parties slept in the same room together and the extent of a sexual relationship – Where consideration of the relevant provisions in the definition of “de facto relationship” in section 4AA – Declaration made that a de facto relationship never existed.

FAMILY LAW – PRACTICE AND PROCEDURE - Application for witnesses to remotely give evidence – Where the proposed witnesses live in Country B - Where there is unconvincing evidence explaining non-attendance of witnesses – Where no application made pursuant to s 7 of the Foreign Evidence Act 1991 (Cth) – Where applicant had no evidence to meet s 102C of the Family Law Act 1975 (Cth) or rr 15.16 and 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)– Application in a Proceeding for witnesses to remotely give evidence dismissed.

FAMILY LAW – PARENTING – Where the children have not seen the mother for several years – Where the father and ICL propose the children spend no time nor communicate with the mother – Whether the mother presents an unacceptable risk of harm to the children – Where the mother sends appalling communications to and posts about the father, his wife, the children’s school and church – Where the mother committed an act of physical violence against a child - Where the children’s exposure to the mother’s emotional dysregulation and lack of pro-social boundaries would cause trauma to the children - Where the mother fails to follow court orders – Order made for the father to solely have responsibility for making decisions about major long-term issues in relation to the children and the children spend no time and do not communicate with the mother – Section 68B restraints made.

FAMILY LAW – PARENTING – Where the mother asks the Court to reconsider final parenting orders under s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) – Where the father and Independent Children’s Lawyer oppose this – Where the father proposes minor variations to the final parenting orders – Where the mother and the Independent Children’s Lawyer oppose this – Where the Court determines that minor variations to final parenting orders are governed by s 65DAAA of the Act – Where the Court determines that a significant change of circumstances has occurred since the final parenting orders – Where the Court considers the impact of recent amendments on s 60CC of the Act – Where the Court considers the meaning of “to promote the safety of a child and their carer” – Where the Court determines that the best interests of the children require a reconsideration of the final parenting orders – Where the Court allows the mother’s s 65DAAA application – Where the Court orders the appointment of a single joint expert.

PROCEDURE – Where the Court considers various procedural aspects of s 65DAAA proceedings – Where the Court determines that specific parenting orders are permissible without reconsideration under s 65DAAA where the nature and content of the specific parenting orders were not covered by the “final parenting orders” – Where the Court determines that s 65DAAA proceedings should be heard as initial threshold proceedings.

EVIDENCE – Section 117C of the Act – Section 131 of the Evidence Act 1995 (Cth) (“the Evidence Act”) – Where the solicitor for the father seeks to adduce correspondence from the mother’s legal representative – Where the mother’s counsel objects to the production of the letter due to it being headed “without prejudice” – Where the correspondence was produced following the delivery of the final parenting orders – Where the Court determines that the mother was not intending to appeal the final parenting orders – Where the Court determines that the correspondence was not an offer as no proceedings were on foot – Where the Court allows the production of the letter.

EVIDENCE – Section 117C of the Act – Section 131 of the Evidence Act – Where the solicitor for the father seeks to adduce letters to the mother’s legal representative containing offers to settle – Where the mother’s counsel objects to the production of the offers on the basis the offers were made without prejudice (r 4.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) – Where the content of the offers directly relates to the current dispute and where proceedings are still on foot – Where the Court declines to admit the letters into evidence.

FAMILY LAW – APPLICATION FOR REVIEW – EX TEMPORE – Where father seeking review of senior judicial registrar’s decision to order professionally supervised time graduating to non-professionally supervised time with the mother –– Where mother seeking sole parental responsibility and for the child to live with her – Where mother has a history of drug and alcohol misuse – Where mother receives psychological care – Consideration of risk to child – Application for review dismissed.

FAMILY LAW – PRACTICE & PROCEDURE –Application by intervenor department at commencement of final hearing to rely on additional expert evidence where a single expert witness had been appointed – Whether any matters identified in r 7.08(2) of the Rules apply – Where the adversarial expert was aware of evidence not available to the single expert – Where the self-represented father objected to the evidence being received – After consideration of all relevant matters the application is granted – Application to adjourn proceedings granted.

FAMILY LAW – PROPERTY – MAJOR COMPLEX FINANCIAL PROCEEDING – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the husband made direct financial contributions – Where the husband’s parents’ corporation was gifted in stages to the husband and his brother equally, and the husband then acquired his brothers shares – Where the corporation provided income enabling the parties to accumulate significant wealth – Where the homemaking and parenting contributions of the wife are not to be undervalued – Where the husband’s contributions by way of the stewardship of the corporation by way of its improvement and development could not have been achieved without the contributions of the wife – Where the parties separated almost 10 years ago – Where the husband controlled the patrimony after separation – Where the husband has re-partnered and utilised the property of the parties for the benefit of he and his new partner – Where the husband failed to adhere to his disclosure obligations including secreting property – Where those failures handicap findings as to the husband’s interest in property acquired with his new partner and resulted in property of the parties used by the husband after separation being unaccounted for – Orders made adjusting the property of the parties 52.5 per cent to the husband and 47.5 per cent to the wife.

FAMILY LAW – DAMAGES – Where the husband seeks damages against his former solicitors for negligence – Consideration of damages arising from a financial agreement being set aside on the basis of uncertainty –Consideration and assessment of the quantum of damages –Where the second respondent breaks down and quantifies costs incurred – Consideration of costs incurred on the question of uncertainty – Orders for damages in relation to the uncertainty claim. 

PROPERTY – Consideration of whether the damages claim would alter the indicative property settlement determined in a previous judgment – Where the Court does not consider it a s 75(2) factor – No adjustment.

FAMILY LAW – PARENTING – Application for final parenting orders – Where the children have been living with the mother since the parties’ separation in 2019 – Where the children have spent supervised time with the father since June 2023 – Where the Secretary of the NSW Department of Communities and Justice intervened in the proceedings – Where both parents suffer from conditions which compromise their parenting capacity – Where the Secretary proposed the Minister having parental responsibility for the children for a period of 12 months and they live with the father – Where the Independent Children’s Lawyer railed against the children living with either parent – Where the father has remained abstinent from alcohol for the past 18 months – Where after years of intensive involvement by the child welfare agency with the mother, the agency has no faith in her parenting capacity – Where the physical, developmental, medical and educational needs of the children are likely to be better met if they live with the father – Ordered the father have parental responsibility for decisions about the children’s residence and they live with him – Ordered the Minister have parental responsibility in respect of all other major long-term issues affecting the children for 12 months – Ordered the children spend substantial and significant time with the mother.

FAMILY LAW – INJUNCTIONS – Exclusion from matrimonial home – Where the wife seeks the sole use and occupation of the matrimonial home – Where the husband opposes the wife’s application and submits that the parties can co-exist under one roof – Consideration of the circumstances of the parties and whether an exclusive occupation order is necessary – Order for the exclusive use and occupation of the home made.

FAMILY LAW – PROPERTY – Enforcement – Orders made.

FAMILY LAW – CHILDREN –Where the father has refused to disclose details of his mental health – Where the father has inability to manage and control his aggression –Where father’s use of force and excessive disciplining of children leaves them at risk of harm in his care – Where father lacks insight - Where mother found to have acted protectively– Where father’s tendency to lie about his conduct and his negative narrative about mother to external agencies’ responsible for protecting children has exposed children to harm – What weight to place on views of eldest child who is resistant to spending time with the father.  FAMILY LAW – PROPERTY – Value of property.   FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Contribution by third party – Future needs.

FAMILY LAW – PROPERTY – Final hearing – De facto relationship of some 30 years – Out of time issue – De facto husband seeks leave to proceed out of time and a property settlement of 55% in his favour – De facto wife opposes the out of time application – De facto wife argues that it is not just and equitable to alter the parties’ interests – Stanford sought to be applied – Assets and liabilities at trial in the individual names of the parties – Where the Court declares a de facto relationship existed between 1991 and 2021 – Just and equitable for there to be an adjustment of the parties’ interests – Orders made for the sale of real property – Division of property 45/55% in favour of the de facto wife – Justice and equity.

FAMILY LAW – De facto property proceedings – one child of the parties – dispute over commencement and conclusion of relationship – short relationship – contributions significantly favour the de facto husband – no likely future needs adjustment – leave out of time – hardship – whether there is a significant likelihood of success – inadequate reasons for delay – prejudice to the respondent due to the significant passage of time – costs of property proceedings likely to outweigh the de facto wife’s entitlement – application dismissed.

FAMILY LAW – contravention application – multiple allegations of contravention of orders – allegations predate the last contested final hearing – unnecessary to determine whether application an abuse of process – allegations not made out on balance of probabilities – some allegations de minimis – contravention application dismissed

FAMILY LAW – Procedural - threshold issues - hearing vacated – fixed for final property hearing – costs reserved

FAMILY LAW – COURTS AND JUDGES – Disqualification. FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal.

FAMILY LAW – Property – part-heard – drawdown - injunction – administration of justice

FAMILY LAW – Parenting – Urgent interim hearing – Whether a recovery order can be made for child governed by a very old children’s court order – Longstanding arrangement – Conflict between teenager and ‘live with’ parent – Child not attending school – Child now living with previous ‘spend time’ parent – Child to live with long term ‘live with’ parent – Matter adjourned pending advice from NSW Child Protection.

FAMILY LAW – PARENTING – Application for review – unilateral removal from school and enrolment at new school – common intention of parties – views of the child – acrimonious co-parenting relationship – best interests of the child – application for review dismissed

FAMILY LAW – PARENTING – supervised time – alternate weekends

FAMILY LAW – PARENTING – Both parents with limited capacity to act in best interests of children – Findings of family violence – Weight given to views of Children – Leaving door open for children to have relationship with the other parent

FAMILY LAW – Parenting – Application for recovery order – Child under a NSW Children’s Court order – Child welfare officer of State of NSW consent in writing to orders – Where orders were made for return of child by father several days prior – Child not returned pursuant to earlier orders – Recovery order made.

FAMILY LAW – PROPERTY – Adjustment of property interests pursuant to s79 of the Family Law Act 1975 (Cth)  – Where there are substantial issues as to the nature and composition of the property with the wife contending the husband has a legal interest in an overseas financial enterprise operating a business – Where the material and case presented by each of the parties was contradictory and confusing and did little to assist in the finding of facts - Where the wife contends that the husband made her contributions more onerous arising from the principles enunciated in Kennon v Kennon (1997) FLC 92-757 – Where the wife’s contention is not established - Where the husband made superior financial contributions - Where the husband’s failure to provide a full and frank disclosure makes it difficult to ascertain his true financial position- Where a ten percent adjustment is made to the contribution findings in the wife’s favour as a result of the husband’s disclosure failures - Where the husband was granted legal representation funded by the Commonwealth Family Violence and Cross-Examination of Parties Scheme despite living overseas and the husband concedes he did not advise of this when making his application – Where a copy of this judgement will be provided to the Legal Aid Commission and liberty granted to make such application as the Commission sees fit.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student visa – whether open to Tribunal to affirm delegate’s decision on different basis to delegate – whether denial of procedural fairness – whether Tribunal’s refusal to grant adjournment was unreasonable – whether Tribunal failed to have regard to matters

FAMILY LAW – Spousal maintenance liability order discharged – all outstanding amounts reduced to a nil sum – significant change of circumstances of both the applicant and respondent - respondent remarried

FAMILY LAW – PROPERTY – leave to proceed out of time application – five years after the statutory date when proceedings ought to have been instituted - where the Applicant submits he has a prima facie case – where the applicant fails to satisfy the hardship requirement – no prima facie case – where the wife would be at detriment to plead her case after such time – delay not explained satisfactorily – application dismissed

FAMILY LAW – PROPERTY – Modest asset pool – 40 years of cohabitation – Broad-brush approach – Overall contributions equal – Future needs adjustment

FAMILY LAW – Parenting – serious allegations of family violence – Father charged with serious criminal offences against Mother – Father withdraws on first day of final hearing – consideration of unacceptable risk – where the three eldest children refuse to spend time and communicate with Father – where safety of children and the Mother requires a no time order FAMILY LAW – Parenting – serious allegations of family violence – Father charged with serious criminal offences against Mother – Father withdraws on first day of final hearing – consideration of unacceptable risk – where the three eldest children refuse to spend time and communicate with Father – where safety of children and the Mother requires a no time order

FAMILY LAW – Application summarily dismissed – proceedings are frivolous, vexatious and an abuse of process, and have no reasonable prospect of success within the meaning of s 102QAB of the Family Law Act 1975 (Cth) – application sought to re-agitate issues other previous proceedings

FAMILY LAW – PARENTING – drug use – physical discipline – verbal abuse – neglect – lack of parenting boundaries – parental denigration – lack of insight – stability for children – evidence of current risks – amelioration of risk – injunctions – joint decision making – international travel – trial commenced pre-6 May amendments to the Family Law Act

FAMILY LAW – PARENTING - Substantial consent orders made – child aged 11 – benefit of overseas travel for the child – family therapy to continue until the child turns 15 - no orders as to the ICL’s costs

FAMILY LAW – property proceedings – length of relationship – short de facto relationship – initial contributions – inheritance – loans – post-separation contributions – impact of short relationship on earning capacity – unreliable witness

FAMILY LAW – Property – Priority Property Pool case – Application to restrain a solicitor from acting – Where respondent defacto husband claims to have contacted community legal service representing defacto wife – Decision not to restrain legal service from acting for de facto wife – Not in interests of justice to delay proceedings further – Application for extension of time to apply for property orders due to hardship pursuant to section 44(6) accepted – Orders to divide chattels between parties.

FAMILY LAW - PROPERTY – de facto relationship – 20 years – 2 daughters – relationship ended March 2009 - ongoing financial connection with joint property- de facto husband acquired whole of joint property as a result of debtor’s petition by de facto wife- proceedings commenced 2017 – unfortunate procedural history- alteration of property interests under s90SM – orders for payment of $75,000 and otherwise sale of property

FAMILY LAW – CONTRAVENTION – No intentional failure to comply – Made reasonable attempts at complying – Lack of evidence of contraventions – Contravention dismissed

FAMILY LAW –  parenting and property – final orders – determination of whether one parent reneged on agreement for the family to move and live overseas – whether one parent coercive and controlling – whether the child should live with her mother or her father – father lives in Melbourne and mother lives in Country B – question of which parent will best support the child’s relationship with the other parent – whether child settled where currently living – choice between child lives with one of two good parents – property division proceedings – determination of extent of one parents inheritance and weight to be given to that inheritance – determination of disputed items in pool of property including treatment of paid legal fees and proceeds of sale of shares – consideration of contribution – whether equal as alleged by father or 60/40 as alleged by mother – contribution determined to be 57/43 – consideration of section 75(2) factors – whether should be nil or 10% - determination section 75(2) factors should be 7% - consideration of dollar amount of adjustments as well as percentage – overall division of assets 64/36 – agreed equality of superannuation split – proposed orders in default of payment need clarification – final orders made with direction for parties to bring in agreed default provision

FAMILY LAW – PARENTING – where the mother seeks orders that the children live with her and she have responsibility for major long-term decisions, where the children have lived with the paternal grandparents since late 2021, where there are issues of family violence, alcohol and drug abuse, child neglect and child protection – where it is in the best interests of the children to remain in the primary care of the paternal grandparents

FAMILY LAW – PARENTING – Contravention – Mother concedes all charged contraventions without reasonable excuse – Mother argues no sanction should apply – Mother refuses to enter bond – Father seeks maximum penalty – Mother has previously been found to have contravened orders without reasonable excuse – Sanction necessary – Degree of appropriate penalty – Whether a fine can be order in lieu of bond – Where it is found that a bond must be ordered first, and a fine can only occurred after a party has failed to enter the ordered bond – Father seeks costs – Costs awarded – Whether claimed costs are reasonable

 FAMILY LAW – Parenting – partial agreement on consent orders- remaining issue time with father – recusal application during father’s evidence -supported by ICL –  orders for recusal made

 FAMILY LAW –PROCEDURE - Stay application refused – further opportunity to reagitate – Appellate Court more appropriate forum