Judgments

FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING – EQUITABLE RELIEF – ACCRUED JURISDICTION – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the intervener seeks that the Federal Circuit and Family Court of Australia (Division 1) exercise its accrued jurisdiction to determine his claim in the s 79 proceeding – Where the husband made significant direct financial contributions at the commencement of cohabitation, including by way of an interest in a prosperous trading enterprise – Where the intervener claims a 30 per cent interest in that enterprise as recorded in two written agreements made between he and the husband, one of which was entered years before the marriage – Where the husband concedes the claim of the intervener – Where the wife contends that the two written agreements made between the husband and the intervener purporting to allocate 30 per cent of the husband’s interest to the intervener were “fabricated and not genuine” – Claim of the intervener established – Where the nature of the relationship between the husband and the wife was to some extent commercial and characterised by arm’s length dealings, including the clear maintenance of separate financial identities – Where the wife has attempted to machine aspects of her case, including evidence, to obtain a forensic advantage – Where homemaking contributions do not loom large – Where the wife has failed to adhere to her disclosure obligations – Where the wife will have the first opportunity to retain a real property in specie – Orders made adjusting the property of the husband and the wife 83.5 per cent to the husband and 16.5 per cent to the wife.

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the paternal grandparents review interim parenting orders made by a Senior Judicial Registrar (“the registrar”), which provide for the children to spend supervised time with them – Where the paternal grandparents seek orders for the children to live with them and spend supervised time with the mother – Where the paternal grandparents assert the mother poses a risk of physical and psychological harm to the children – Where the mother has passed the psychological assessments given by the single expert – Where the younger child made allegations of his sexual abuse by the paternal grandfather – Where the allegations were not substantiated by the authorities but the risk of harm is not eradicated – Where the trial is the time and place to settle factual controversies – Where the father lives overseas and is not a residential option for the children – Orders made to vary the length of supervised time the children spend with the paternal grandparents.

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 – 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 – PARENTING – where there are two children aged 7 and 6 – where the children live with the father and have spent no time with the mother since 2022 – where the mother has neglected the children and they have expressed a desire not to see her - where the mother has perpetrated family violence and repeatedly failed to produce hair follicle tests – where the mother has not taken steps as recommended by the Family Report writer

FAMILY LAW – Parenting – Undefended final hearing – Where respondent mother has had opportunity to participate in proceedings but has chosen not to – Where respondent mother unilaterally relocated with child overseas – Recovery order – Watchlist order – Orders for child to live with applicant father in Australia – Any orders for spend time with mother to be determined if or when she chooses to engage in proceedings.

FAMILY LAW – Parenting – Where final orders already in place – Where mother has unilaterally withheld child against final orders – Where mother has indicated intention not to be involved in proceedings – Decision to proceed undefended – Where father and Independent Children’s Lawyer seek final orders to remain in place – Final orders reinforced – Orders and reasons for judgment to be provided to Child Protection for any future involvement.

FAMILY LAW – FINANCIAL – Interim proceedings – Where both parties seek sole use and occupancy of the former matrimonial home – Where the applicant wife seeks further interim orders for lump sum interim spousal maintenance, a partial property settlement and injunctive relief – Where the respondent husband broadly opposes the wife’s application but makes a counter proposal for financial support – Orders for lump sum interim spousal maintenance of $35,000 in favour of the applicant wife – Orders for a partial property settlement of $35,000 in favour of the applicant wife – Orders for the respondent husband to have sole use and occupancy of the former matrimonial home until final orders can be made. 

FAMILY LAW – PARENTING – Final hearing – Child aged 4 – Where the child is of a mixed cultural background – Relationship of 6 years – Where the mother and child relocated to Adelaide with the consent of the father in 2022 – Where the father relocated to Adelaide during the trial and without notice to the mother – Where the father seeks an equal shared care arrangement – Where the mother and the ICL seek the child spend no time with the father – Where the parties have no capacity to co-parent – Considerations of family violence – Overseas travel – Matters to be considered

FAMILY LAW – Parenting - whether children aged 6 and 4 remain living with mother or live with father - whether either party poses an acceptable risk to children - held mother poses an unacceptable risk and children unsafe in her care - children live with the father - children spend limited supervised time with mother.

FAMILY LAW – PARENTING – where the mother has neglected the child - where the child’s views are given reduced weight in circumstances where the child has been significantly influenced by the mother – where it remains in the child’s best interests not to spend time with the mother - where the father will continue to have sole parental responsibility.

FAMILY LAW – PROPERTY – where the matter proceeded on the husband’s evidence – where there is to be a 55/45 non-superannuation asset split in favour of the husband – where there is an equal superannuation split – where joint proprietorships are severed - where proceeds of sale of a property go to the wife and a property be transferred to the husband

FAMILY LAW – PARENTING – Where the mother seeks a suite of interim parenting orders including that the children live with her, that she is granted sole parental responsibility and that the father is restrained from contacting the mother or children – Where allegations of parental alienation are a live issue and require determination at final hearing – Where the father challenges the opinions of the single expert – Where an order changing the children’s place of residence has the potential to cause significant emotional distress – Where there is no evidence that the children are at an ongoing risk in respect to their physical safety in the mother’s care – Where the supervision reports are overwhelmingly positive – Orders made allowing the children to spend additional time with the mother on an unsupervised basis.

FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – Where criminal proceedings are on foot – Where the mother sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – Where the application is opposed by the father – Where the mother seeks to use the documents in aid of her defence in criminal proceedings – Consideration of r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the Court is satisfied that special circumstances exist – Order releasing parties from Harman undertaking

FAMILY LAW – Parenting – three children, aged 15, and two twins aged 10 – extremely high conflict – where the siblings are separated – where both parents have engaged in “psychological warfare against their ex-partner at the detriment of their children” – where both parents have involved the children in adult issues and the Court proceedings, engaged in open denigration of the other in front of the children, attempted alienation/alignment of one or more of the children, verbal and psychical abuse on one another, emotional neglect of the children – where the Court holds concerns about both parents and their attitude – where the Court considers that the mother should be allowed to relocate – where the Court considers that the twin girls should remain living with the mother and only have electronic communication with the father – where the Court considers that the eldest boy should continue to live with the father and spend time with the mother in accordance with his wishes – electronic communication between all three children – best interests.

FAMILY LAW – Property – where the parties were together for 22 years – where the matrimonial assets are modest – jointly owned home with modest equity – where there are various items and vehicles – superannuation splitting order – just and equitable.

FAMILY LAW – PROPERTY– Where wife seeks to vary or set aside Final Orders made on 2 May 2013 pursuant to s 90SN(1)(b) – (c) – Where husband seeks to enforce those Final Orders – Finding of default by both parties – The Final Orders be varied or set aside in substantive proceedings.

FAMILY LAW – PROPERTY SETTLEMENT PROCEEDINGS – Applicant alleges breakdown of 23 year de facto relationship and files Initiating Application seeking property settlement orders – Respondent files Response seeking s 90RD declaration that there had been no de facto relationship – Respondent subsequently dies – Respondent’s legal personal representative files application for summary judgment on basis that the proceedings have abated as a result of the Respondent’s death – proper construction of s 90RD and s 90SM(8) of the Family Law Act - questions of jurisdiction considered – application for summary judgment dismissed

FAMILY LAW – PARENTING – Orders made in the best interests of the children.

FAMILY LAW – PROPERTY – Just and equitable property adjustment orders made.

FAMILY LAW - PROPERTY – alteration of property interests - wife made the greater initial contributions – wife made the greater financial and homemaker contributions during the relationship- greater earning capacity of the wife - both parties have the physical and mental capacity for appropriate gainful employment wife to pay the husband the sum of $115,000 within 90 days – sale of property if default of payment to the husband – just and equitable

FAMILY LAW – COSTS – De Facto property proceedings – Where respondent de facto husband continued to deny allegations of physical family violence until confronted with criminal history – Where respondent refused reasonable offer or compromise – Where respondent’s conduct of the trial increased the costs of the applicant

FAMILY LAW – COSTS – Where relevant factors considered – Where court satisfied that there are circumstances which justify a costs order

FAMILY LAW – COSTS – Applicant seeks indemnity costs – Where settled practice is to order costs on a party and party unless there is an exceptional, unusual or extreme circumstance.

FAMILY LAW – COSTS – Party and party costs – Costs awarded in a fixed amount calculated in accordance with Scale

FAMILY LAW – Defacto relationship – Threshold issue – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the respondent denies the existence of a defacto relationship – Consideration of the nature of the parties’ 21 year relationship – Where the parties lived together – Where the parties had a non-exclusive sexual relationship – Where the applicant was financially dependent on the respondent – Whether the parties had a mutual commitment to a shared life together – Costs reserved.

FAMILY LAW – PROPERTY – no binding financial agreement between the parties – redraws on the mortgage by the wife – equal financial contributions – slightly greater non-financial contributions by the wife impacted by duration of marriage and relatively small property pool- husband has reduced earning capacity –after future needs adjustment - 48% in favour of husband and 52% in favour of wife - no order as to cost

FAMILY LAW – Final Parenting Orders made in 2016 after defended  hearing – Father seeks to change final orders where he has previously applied in 2018 and 2020 –Father was found guilty of contravention of orders in 2024 – Section 65DAAA applied - No significant change of circumstances found - Final Parenting Orders in best interests of child – where Mother seeks declaration that Father is vexatious litigant pursuant to section102Q – declaration made

FAMILY LAW – COSTS – Application for costs following conclusion of defended parenting proceeding – Applicant wife seeks indemnity costs – In the alternative costs order sought on a party and party basis calculated at Scale – Consideration of general rule that each party bear their own costs in proceedings under the Act – Consideration of whether there are circumstances which justify an order for costs – Consideration of what, if any, order for costs is appropriate. FAMILY LAW – INDEMNITY COSTS – Solicitor and client cost – Settled practice to order costs on a party and party basis – Consideration of whether there is a circumstance which justifies a departure from settled practice. FAMILY LAW – HELD no exceptional, unusual or extreme circumstance. FAMILY LAW – PARTY AND PARTY COSTS – Costs awarded in a fixed amount calculated in accordance with Scale

FAMILY LAW – PARENTING – adjournment granted 7 December 2023 – Social media post by suggesting he had manipulated the Court - application for disqualification by the father’s Counsel on the grounds of alleged apprehended bias - fair-minded lay observer – oral application for recusal dismissed.

FAMILY LAW – CHILDREN – Where the parties agree that the children shall live with the father and the eldest child (15 years of age) shall spend time with the mother in accordance with her wishes – Whether orders should be made for time and communication between the youngest child (11 years) and the mother – Whether the father should hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties – Where the children have spent no time with the mother since September 2023 – Where the children hold strong views that there be no orders to spend time with the mother – Impact of protracted litigation on the children – Parental conflict – Where both children have experienced mental health difficulties – No positive findings of family violence – Findings made that coercive orders for the youngest child to spend time with the mother would not be in her best interests – Orders made for each child to spend time with and communicate with the mother in accordance with their wishes – Orders made for the father to hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties

FAMILY LAW – subpoena objection - where the mother sought a subpoena from the Office of the Health Ombudsman – where the Office of the Health Ombudsman objected to that subpoena on the grounds of relevance, insufficient particulars and confidentiality – where the material sought in the subpoena is relevant – where the relevant statute provides the Office of the Health Ombudsman is not required to disclose confidential information to a court or tribunal.

FAMILY LAW – PARENTING – adjournment application - promote cooperative and child focused parenting by the parties - advance a meaningful relationship between the father and the children – permitting the father to address the significant evidentiary shortcomings – adjournment granted with condition imposed – interim parenting orders

FAMILY LAW – CHILDREN – Where the parties agree that the mother should hold sole parental responsibility for the child and that the child should live with the mother – Whether the child should spend time with the father – Where the child has never met the father – Where there are allegations by the mother of significant family violence perpetrated by the father, including coercive and controlling family violence – Where findings are made that the father poses an unacceptable risk of harm to the child and the mother as a result of family violence – Where the father has long-term mental health issues – Where findings are made that the father’s mental health presents an unacceptable risk of harm to the child’s safety – Where the Court cannot be satisfied that the father is drug-free – Where the child is vulnerable due to developmental delays – Where orders are made that the child shall spend no time with nor communicate with the father – Where injunctive orders are made pursuant to section 68B of the Family Law Act 1975 (Cth)

FAMILY LAW – property – whether the parties were in a de facto relationship – the Applicant alleges that the parties were in a de facto relationship from late 2013 to February 2017 – the Respondent alleges that the parties were in a relationship from late 2013 to mid-2014 and friends from mid-2014 to February 2017 – where the parties have joint property

FAMILY LAW – PROPERTY – Just and equitable – orders made.

FAMILY LAW – CHILDREN – Consideration of s 65DAAA of the Family Law Act 1975 (Cth) – Where final parenting orders were made in May and December 2022 – Where the Applicant father seeks to reopen the proceedings – Where the Respondent mother seeks to dismiss the father’s application – Where the parental conflict has impacted the children’s access to therapeutic and medical assistance – Where the parents have demonstrated no joint decision-making capacity in respect of the children as required by the final parenting orders – Where the Court is satisfied that there has been a significant change in circumstances since the final parenting orders were made – Where the Court is satisfied that it is in the best interests of the children to reconsider the final parenting orders

FAMILY LAW – Property – Application to reopen matter after conclusion of final hearing – Application to adduce further evidence – Where judgment remains reserved – Where respondent claimed no interest in estate of recently deceased parent at final hearing – Where applicant claims respondent stands to inherit significant sum from deceased parent’s estate – Submission that matter can be dealt with via written submissions – Where serious allegations of misleading the court in final hearing warrant further hearing – Matter listed for further half-day of final hearing.

FAMILY LAW – PROPERTY – interlocutory – application for leave to commence proceedings for property adjustment out of time – consideration of respondent’s jurisdictional objection – consideration of prima facie case for relief – whether the applicant has demonstrated sufficient likelihood of success – where claim is not trifling – consideration of hardship – exercise of discretion – consideration of delay – consideration of prejudice to the respondent – leave granted

FAMILY LAW – PARENTING – Relocation – Where the applicant mother seeks an order which permits her to relocate the child from Region B in New South Wales to Region C in Queensland – Where the respondent father opposes relocation of the child on the basis that it will adversely impact the child’s relationships with the father and extended paternal and extended maternal family members in New South Wales – Where the father seeks an order that the child live with each parent in an equal time arrangement – Where the mother intends to relocate to Queensland with or without the child to live with her husband– Where the mother’s wellbeing is most likely to be enhanced by the financial and practical support she will gain by living with her husband in Region C – Where the child has a meaningful relationship with both parents – Where the child has an important relationship with his maternal half-sibling – Where the child’s relationship with the mother might be diminished from feelings of rejection if the mother relocates without him and his healthy development may be impacted – Where the mother’s parenting capacity will be enriched by moving to Region C and the child will benefit – Where the child will continue to have the benefit of a meaningful relationship with the father if the mother is permitted to relocate the child – Relocation permitted – Spend time with arrangements – Discrete issues

FAMILY LAW – Parenting – application to vary final orders – where mother seeks to move to a not-too-distant suburb for work and to be closer to family – where mother says current orders significantly hamper career and earning capacity – where father opposes change to final orders – application to vary final orders successful – orders made to accommodate mother’s new residence – recusal application reserved – costs reserved – all extant applications are otherwise dismissed.

FAMILY LAW – COSTS APPLICATION – granted – Respondent to pay costs of the applicant on a party and party basis in a fixed sum

FAMILY LAW – Parental responsibility –spend time arrangements – family violence allegations – intervention order – COVID-19 restriction breaches – child’s medical needs

FAMILY LAW – COSTS – Where the matter was listed for interim hearing in September 2023 in relation to the mother’s Application for the father’s solicitors at that time to be restrained from acting for the father – Where the mother’s Application for restraint was based on inadvertent disclosure to the father’s solicitors of confidential and privileged communication between the mother and her solicitors – Where findings were made that the father’s solicitors failed to provide disclosure to the mother’s solicitors of the inadvertent disclosure, and failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – Where the mother seeks orders as to her costs in seeking that the father’s former solicitors be restrained from acting – No order as to costs made against the father’s former solicitors – Order made for the father to pay the costs of the mother on an indemnity basis in relation to the mother’s Application for restraint – Costs to be paid as agreed or assessed

FAMILY LAW – PRACTICE AND PROCEDURE – Whether the Court should refer the papers to the New South Wales Director of Public Prosecutions – Where findings were made at final hearing that the father fraudulently amended hospital records for use in criminal proceedings in the Local Court – Where both parties seek the referral not be made – Referral made

FAMILY LAW – PARENTING - application for an injunction under s 68B restraining the removal of the child from the Commonwealth of Australia - concern expressed for the welfare of the child - child has dual passports for both Country B and Australia – Country B is a Hague Convention Country – Court not satisfied that there is a real risk -Court declines to grant an injunction.

FAMILY LAW – CHILDREN – Whether the children should spend time with the father – Allegations of family violence, including coercive and controlling family violence – Exposure of the children to family violence – Drug use – Where the father made concessions as to falsifying negative drug test results – Where the father made concessions as to falsifying evidence in criminal proceedings – Where the father made concessions as to falsifying medical records – Where the father made concessions as to falsifying financial records – Alcohol use – Where findings are made that the father poses an unacceptable risk of harm to the children and the mother as a result of family violence – Where findings are made that the father’s drug use poses an unacceptable risk of harm to the children – Where findings are made that an order for no time is not in the children’s best interests – Where orders are made for ongoing supervised time between the father and the children, with such time to be supervised by a professional supervised contact service

FAMILY LAW – LEGAL PRACTITIONERS – Where the wife seeks orders restraining the husband’s solicitors from continuing to act for him – Where there was inadvertent disclosure to the husband’s solicitors of confidential and privileged communication between the wife and her solicitors – Where the husband’s solicitors failed to provide disclosure to the wife’s solicitors of the inadvertent disclosure – Where the husband’s solicitors failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

FAMILY LAW – CONTRAVENTION – PARENTING – Final orders made by consent in March 2021 – Three children aged 15, 13 and 11 years – Where the father originally alleged numerous counts of contravention of the final consent orders by the mother – By the final date of trial, 17 alleged counts of contravention remaining – Where all remaining contraventions were admitted by the mother but with reasonable excuse – Where the mother was legally represented for the first tranche of Trial and was self-represented on the final day of Trial – Two further counts dismissed – 15 counts established without reasonable excuse – Legal fees incurred grossly disproportionate to the issues in dispute – No sanctions imposed – Orders altered.

FAMILY LAW – CHILDREN – Interim proceedings – Where the mother ceased the father’s time with the children – Whether the father poses an unacceptable risk to the children – What time the children should spend with the father – Allegations of family violence – Impact on the children of parental conflict

FAMILY LAW – CONTEMPT – Where the Applicant alleges 13 grounds of contempt by the Respondent – Where no prima facie case is found in relation to any of the grounds – Where the parties are invited to provide written submissions as to the Respondent’s application that the Applicant be prohibited from instituting further proceedings without leave pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) – Where both children are adults at the date of hearing

FAMILY LAW – PARENTING – children (aged 12 and 16) do not wish to spend time with father – acknowledged family violence by father – mother facilitated children spending time with him on an intermittent basis and not at all for extended periods – mother made major long-term decisions without consulting with father, including moving to a suburb some distance away and changing the children’s schools – children have now spent extended professionally supervised time and then unsupervised time with the father – mother does not contend children would be unsafe in father’s care – father found to have capacity to meet children’s needs, including emotional needs – mother found to lack capacity to support children’s relationship with the father, where she sees no benefit to them spending time with him – children’s expressed views incongruent with their interactions with father – finding children will benefit from relationship with father and paternal family – orders for parties to have joint decision-making responsibility – children to spend regular unsupervised time with father, arranged by agreement in consultation with the children and in default of agreement at fixed times – ancillary orders made as agreed or as determined in the children’s best interests

FAMILY LAW – Parenting – Final hearing to determine discrete issue of where one child is to attend for the remainder of primary school – Where father seeks additional changes to final orders – Where father is unrepresented – Orders sought in father’s filed response to mother’s application treated as section 65DAAA application – Section 65DAAA issue adjourned for hearing at a later date to allow for procedural fairness to mother – Final orders as to child’s schooling – Circumstances where significant commute for mother to take child to current school – impacts on mother’s mental health – Where mother’s housing situation is precarious – Where mother has care of parties’ children as well as an infant from another relationship – father better able to cope with child not allegedly attending school of his choice – real risk for child either way – Change of school ordered

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious Proceedings Order – Where the Applicant sought an order pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) prohibiting the Respondent from instituting further proceedings without leave – Where the proceedings have a long history – Application granted

FAMILY LAW – PROCEDURE – leave granted to the applicant to use the Family Report filed in these parenting proceedings for criminal proceedings

FAMILY LAW – Third application in aid of enforcement of final property orders – where orders require sale of property – where first respondent retains original paper Certificate of Title and has failed to produce it – where sale cannot proceed without the Certificate of Title – where applicant seeks cancellation of current Certificate of Title and creation of new electronic Certificate of Title – no engagement by the first respondent – orders and declarations of interest made – order for payment by first respondent of indemnity costs