Judgments

FAMILY LAW – Contempt application – Where contravention of financial obligation alleged to be contempt pursuant to section 112AP – Where attempts at personal service not successful – Where amended application and affidavit served by email – Rules as to personal service varied for this case – Application for adjournment refused.

FAMILY LAW – Contempt application – Where contravention of financial obligation alleged to be contempt pursuant to section 112AP – Prima facie case established – Matter adjourned part-heard – Application for watchlist order – Watchlist order application refused – Where respondent has substantial ties to the jurisdiction.

FAMILY LAW – PARENTING – international “relocation” – mother seeks to return to live in Country B with parties’ child (aged 5) – child lived predominantly in Country B until September 2023 – father seeks child remain living in Australia and continue spending time with him on alternate weekends (Friday to Monday) and on one afternoon in intervening weeks – evaluation of competing proposals – order made for child to live with the mother in Country B and to spend time with the father as proposed by the mother, in Australia twice each year and in Country B twice each year – child’s return to Country B not to be deferred as sought by the father in the alternative – mother to have sole decision-making responsibility for education and health issues – parties to have joint decision-making responsibility for all other major long-term issues – other orders agreed by parties found to be in child’s best interests.

FAMILY LAW – interim spousal maintenance – respondent husband’s financial circumstances opaque – parties assets in chaos – whether Hall & Hall inference is able to be drawn – what are reasonable needs – party may need to borrow to fund maintenance order – whether order should be from date of application – when payment “clock” starts – order to operate from after delivery of reasons

FAMILY LAW – application for adjournment refused – application in a proceeding dismissed

FAMILY LAW - Property Proceedings – Threshold Hearing – Binding Financial Agreement – Binding Financial Agreement Set Aside. 

FAMILY LAW – REVIEW – Parenting proceedings – Children ordered to live with Father – Where the Father retained the children in his care in October 2023 due to concern that the children unsafe in the Mother’s care – Youngest child with serious medical condition –  Whether children should relocate closer to Brisbane to live with the Mother to be closer to medical services – Whether the child at risk of harm due to geographical location – Whether the Mother poses an unacceptable risk to the children. 

FAMILY LAW – LEGAL PRACTITIONERS – duties of solicitors – solicitor appearing as agent tendered a list and summary of authorities which are acknowledged by the solicitor not to exist – list and summary generated using software relying on artificial intelligence (AI) – accuracy of the document produced was not verified by the solicitor – unconditional apology offered by the solicitor for what is acknowledged to be a breach of the professional standards expected of a solicitor in this court –  referral made to the Office of the Victorian Legal Services Board and Commissioner, being the statutory body and officer responsible for the maintenance of professional standards of solicitors in Victoria – decision for referral not intended to be punitive – responsible use of AI tools in litigation an issue of public interest.

FAMILY LAW – Application for enforcement – distinction between substantive and machinery orders – where final orders comprehensive and deal with different contingencies to fund settlement sum – where limited orders made by way of enforcement

FAMILY LAW - threshold hearing - determine whether or not parties lived in a de facto relationship

FAMILY LAW – Interim parenting – Proposed orders by consent – Whether proposed order in conflict with Family Violence Orders – Whether orders in best interests of children – Potential problem with “siloisation” of information – All authorities to be provided with prior reports.

FAMILY LAW – PARENTING – Property matters settled by consent during trial – High conflict relationship – Significant history of family violence – Children rejecting Father – Extensive family therapy ineffective – Whether children reacting to own lived experience – Consideration of how to interpret video recordings – Father seeks change of residence – Eldest child self-harming at suggestion of time with Father – Further efforts to repair children’s relationship with Father unlikely to succeed, likely to be distressing to children – Forced change of residence unlikely to succeed, likely to be distressing to children – Importance of finality – No time between children and Father – Children live with Mother – Cards, gifts and letters

FAMILY LAW – property proceedings – long marriage – value of property – conflicting expert evidence – assessment of wife’s “wastage” argument – arguments regarding wastage related to transactions during the relationship – assessment of wife’s ‘Kennon claim’ – where Court dismisses the wife’s “wastage” argument – where Court dismisses the wife’s ‘Kennon claim’ - where Court finds it just and equitable for Wife to receive 60% of the property pool and Husband 40% .

FAMILY LAW – PROCEDURE – notices of objections dismissed – raising claim for forensic purpose and claim of legal professional privilege

FAMILY LAW – EVIDENCE – CONTRAVENTION – admissibility of evidence – whether videos can be accepted into evidence – whether recordings of the father were illegally obtained – where the recordings reasonably necessary to protect the children’s lawful interest – if the recordings were illegal can they still be admitted in the Court’s discretion

FAMILY LAW – Review of decision of Registrar – where applicant was a child and subject to proceedings in this court – where applicant is now an adult and wants access to the Court file relating to her parents dispute – where the applicant has a proper interest – where there exists other reasons supporting disclosure – application granted for applicant to access the Court file.

FAMILY LAW – Parenting – two children aged 7 and 4 – where the father is currently incarcerated and will be eligible for parole in 2029 – where the father pleaded guilty to a serious offence against the oldest child – where the father seeks parenting orders to resume a relationship with the children – where the mother seeks a decree pursuant to s 102QAB of the Family Law Act 1975 (Cth) – consideration of the welfare of the children’s primary carer – whether there is a real issue of fact or law to be determined – family violence – assessment of harm – harmful proceedings order made – application dismissed

FAMILY LAW – spousal maintenance – remittance of the wife’s application for the husband to pay interim periodic spousal maintenance –whether the wife had a unrealised income-earning capacity – whether the wife’s alleged expenses are reasonable – whether the wife can adequately support themselves – what is a reasonable amount for the husband to pay to support the wife – whether spousal maintenance should be capitalised and deducted from the impending sale proceeds of the family home or alternatively be a non-characterised lump-sum payment from the sale proceeds – two subject children with complex medical needs for the 5-year-old child – weekly spousal maintenance to be paid to the wife

MIGRATION – Judicial Review – student visa – applicant not enrolled in relevant study – cl 500.212 not met— whether the applicant consented to no hearing under s 360 of the Act

FAMILY LAW – Contravention – Parenting – Where father alleges mother failed to comply with orders allowing father to spend time with children – Where father alleges mother failed to comply with orders not to communicate through children – Where father alleges mother failed to comply with “live with” orders – Differences between “old” and “new” Division 13A – Parents to use their parental authority to ensure that the orders are complied with – “Live with” orders not a mandatory injunction or obligation on the Mother to actually keep the children in her care at all times – Two contraventions established – Mother ordered to enter into bond.

FAMILY LAW – PARENTING – family violence – alienation – 12-year-old with entrenched views – balancing of risks of psychological harm of leaving child with mother or changing residence – meaningful relationship – benefits of further family therapy – consideration of s 60CC factors prior to amendments – child moved to live with father – moratorium on time

FAMILY LAW – child support – where father provided undertakings in 2004 not to bring further applications without leave of the court – where father has unsuccessfully brought applications and filed appeals since then – where father now seeking enforcement proceedings as to child support debt– where father not sought leave of the court – where father failed to appear at court event – where application defective – held application be dismissed

FAMILY LAW –  ex-tempore - final parenting orders made January 2023 – father has not complied with orders to facilitate the child spending time with the mother and maternal grandmother –where the father was on notice from the previous proceedings about his ability to facilitate a relationship between the child and the maternal family - significant concerns regarding the father’s ability to facilitate a relationship between the child and the mother and maternal family – concerns regarding the father’s ability to support the emotional and psychological wellbeing of the child – the father keeping the child from attending school - child impact report released – interim change of residence ordered – interim change of parental decision making to the maternal grandmother

FAMILY LAW – PROCEDURAL – Application to restrain wife’s solicitor from acting – inherent jurisdiction.  FAMILY LAW – INTERLOCUTORY – Financial application – spouse maintenance

FAMILY LAW – Property – Warrant for possession of property issued – Emails stand as application and responses – Not disputed that respondent has not vacated subject property – Interests of justice provide that a warrant for possession should be issued – Orders mean what they say.

FAMILY LAW – application of recission of a divorce order made before the divorce order took effect - whether the parties have been separated for 12 months prior to the divorce application being filed – the wife claims the parties are not separated – consideration of provisions dealing with recission of divorce - application dismissed

FAMILY LAW – PARENTING – Best interests of the child.

FAMILY LAW – PRACTICE AND PROCEDURE –inaccurate list of legal authorities tendered by practitioner (solicitor appearing as agent) at an enforcement hearing – list of authorities generated by a legal software package which uses artificial intelligence – practitioner afforded an opportunity make submissions as to why conduct in tendering the list of authorities should not be referred to the Victorian Legal Services Board and Commissioner.

FAMILY LAW – Parenting – interim hearing – mother seeks recovery of child – child aged two – father alleges child is at risk in mother’s care – child to be returned to mother – child to spend time with father four nights a fortnight – child impact report ordered.

FAMILY LAW - NULLITY OF MARRIAGE – Application for a decree of nullity of marriage – Where the applicant contends that the respondent was lawfully married to another person at the time of marriage – Where the applicant contends that the divorce was not recognised in the respondent’s country of birth at the time of re-marriage – Overseas decree – Application dismissed

FAMILY LAW – final hearing adjourned – section 102NA complications – interim orders made – family report observations untested – family report of assistance to interim decision – assistance of DFFH sought by section 67ZBD order – order for supervised time.

FAMILY LAW – application for interim parenting orders – where interim parenting orders previously made following contested hearing – where mother asserts 18 month old child having difficulties with drinking, feeding and sleeping – where mother asserts 7 and 8 year old children are struggling to cope with time spent away from mother – where father seeking to further progress spend time with children – where father seeking to align changeover time for children.

FAMILY LAW – COSTS – multiple offers made by the Father during the course of the protracted litigation – Mother made two counter-offers – consideration of principles regarding costs especially where there are offers of settlement – the Father’s penultimate offer of settlement regarding costs was one-sixth his ultimate costs – Full Court authority that refers to rejection of offers where doing so is more than just unwise but actually “imprudent” – Father sought as his primary position indemnity costs against the Mother – indemnity costs Application refused but a limited costs Order in keeping with the “generous” costs offer made by the Father in November 2023 made – payment of costs by the Mother to be made in six months.

FAMILY LAW – REVIEW – Application brought by the father to review a senior judicial registrar’s decision – Hearing de novo – Where the father filed a Notice of Discontinuance and the senior judicial registrar made orders as sought by the mother and awarded costs in the mother’s favour – Where the mother seeks costs pursuant to s 117 of the Family Law Act 1975 (Cth) of the father’s Application for Review on an indemnity basis – Father’s Application for Review is dismissed – Father to pay the mother’s costs in a fixed sum.

FAMILY LAW – PARENTING – relocation Sydney to the City B area – nearly 3 year old child – no risk issues – both parents have loving relationship with child and able to meet child’s needs – parents agree on shared care in event there is no relocation – mother’s family have moved to City B – mother has mental health issues – mother’s treating psychologist unavailable to give evidence – mother seeks family support – financial and accommodation benefits of moving to City B – opportunities to pursue tertiary education in City B – father’s ability to move – relocation not permitted

FAMILY LAW – Parenting – four children aged 17, 16, 14 and 12 – final parenting orders made in November 2021 – mother and independent children’s lawyer seeking that the younger two children spend no time with the father – father seeking that the 12 year old spend alternate weekends and the 14 year old spend week about with mother – multiple periods of the father withholding the children – spend time with father suspended at last interim hearing – significant age difference between parties at commencement of relationship – mother alleging coercive control from commencement of relationship – father was in a position of authority at the parties’ church – allegations that father used religion to exert control over the mother during the relationship – coercive control findings – father criticising mother’s lifestyle and minimising her relationship with children – parental capacity – father failing to act in the children’s best interests – conduct driven by wish to exert control rather than needs of the children – sibling relationship – delay in medical assessment and treatment – child with ASD being bullied at current school and engaging in self-harming – dispute as to school – parental alignment – children’s views coloured by attempts to appease the father – held – parties to make joint decisions with respect to eldest two children – eldest children to spend time with each parent according to their wishes – mother have sole decision making with respect to youngest two children – youngest two children to live with the mother and spend no time with the father.

FAMILY LAW – PARENTING – allegations of emotional manipulation of children and ‘pathogenic parenting’ by Mother – where Mother found not to pose an unacceptable risk to children  FAMILY LAW – PARENTING – unacceptable risk – where the Father conducted himself throughout the proceedings in a manner which was abusive, threatening and intimidating towards the Mother, the Mother’s legal representatives, the Independent Children’s Lawyer and the Court – where the Father subjected the Mother to coercive and controlling violence – where the Father refused to comply with an order for a psychiatric assessment – where the Father poses an unacceptable risk to the children – no time or communication ordered between Father and children  FAMILY LAW – PARENTING – application by paternal grandparents – where children refused to spend time with grandparents at contact centre – where grandparents declined to pursue reunification therapy – where there is a risk that time with grandparents would result in exposure to Father – where paternal grandparents found to be unlikely to shield children from hostility towards Mother – no time or communication ordered between paternal grandparents and children  FAMILY LAW – PRACTICE AND PROCEDURE - Where an order made pursuant to section 102NA of the Family Law Act 1975 (Cth) applies and the Father refused to avail himself of legal representation through the Family Violence and Cross-Examination of Parties Scheme – where Mother’s evidence is largely unchallenged and is accepted

FAMILY LAW – de-facto property – asset pool in dispute – admissibility of medical records – admissibility of redbook valuation – admissibility of parties’ own estimate of value in financial statement – initial contributions – springboard – inheritance – post-separation care of children – impact on earning capacity of care of children

FAMILY LAW – parenting – discrete issue for Court to determine – whether children live with father or mother – parents living in different states – family violence and illicit substance allegations against father by mother – mother’s history of ill-health – need for stability and avoidance of untested long-term care with the mother in a new environment – no risk of unacceptable harm if children remain living with the father – order made for children to live with father – alternate order made for equal time and live with if mother relocates to Tasmania

FAMILY LAW – parenting – interim orders – whether children should continue to have overnight time with their father – father’s alcohol use – father’s mental health.

FAMILY LAW – Property proceedings – seven year de facto relationship – mature aged couple – where the parties lived in the property owned by the respondent – where the parties did not acquire any joint assets or liabilities during their relationship – where the applicant seeks a cash settlement equal to 30% of the value of the net equity in the property – where the respondent seeks that the applicant’s application for a property settlement be dismissed – where the Court considers it would not be just and equitable to make an order altering the parties’ respective property interests – application dismissed – just and equitable outcome.

FAMILY LAW – PROPERTY – Where it is alleged that the Husband improperly removed funds from the parties’ self-managed superannuation fund – where there is a consequential dispute as to finalisation of the accounts of the fund

FAMILY LAW – application under s.44(6) of the Family Law Act 1975 to bring a de facto property proceeding out of time – applicant being held in remand – hardship – exercise of discretion.

FAMILY LAW – INJUNCTIONS – Where Husband has failed to attend court and comply with Orders – ex parte Anton Piller order made to enable search of premises and seizure of cash and financial documents – Appointment of independent solicitor – Undertakings as to damages given by Wife – Restraints on conduct of Husband towards Wife – Suppression of orders

FAMILY LAW – sensible hearing on the papers without appearances – leave to proceed pursuant to s 44(6) – sufficient likelihood of success to prove hardship – incomplete explanation for delay – 4 months outside of 2 year standard period - caveat lodged at start of standard 2 year period - financial disclosure agitated from 12 days after expiry of standard two year - prejudice to respondent considered-modest pool of assets-leave granted.

FAMILY LAW – PROPERTY – Final hearing – Where the parties’ two adult daughters have joined as the Second and Third respondents – Marriage of 27 years – Where the First Respondent husband’s case is ad idem with the Second and Third Respondent daughters – Where the parties had various family business ventures and arrangements in which the wife was not a named partner or director – Comingling of familial finances – Equitable interests – Where the wife asserts that she has a beneficial interest in the real properties – Limitations as to the evidence made available at Trial – Consideration of the existence of equitable interests – Consideration of add backs – Assessment of contributions and future needs – Where it is not just and equitable to include the real properties owned by the Second and Third Respondent daughters in the net asset pool – Orders for the sale of property – 55 per centum division in favour of the wife subject to the add back of the wife’s superannuation amount – Justice and equity.

FAMILY LAW– Application in a Proceeding – payment of legal fees costs from trust account

FAMILY LAW – PARENTING – Best interests of child.  FAMILY LAW – PROPERTY – Resulting trust – constructive trust – express trust – trust contentions not made out – just and equitable division of property.

FAMILY LAW – parenting – children aged 8 and 6 years old – father failing to comply with court orders – father breaching an interim intervention order – father’s family violence being at the lower end of the spectrum – father being associated with the B Organisation – father accusing court of gender bias – father pretending to transition to being female – father lodging complaints about police, the mother’s solicitor, the independent children’s lawyer, registrars of this court and the psychiatrist, Dr C – father threatening to name and shame people involved in this case in a documentary he plans to make – father sending abusive emails to practitioners involved in this case – father sending text message to his 21 year old daughter saying she is “disgusting” – father telling his 25 year old daughter in a text message that she is an “evil” person – father declining to attend supervised visits with his children – father being in arrears of child support – supervision report showing children had a positive time with their father – the psychiatrist, Dr E, describing the father as venomous and lacking empathy – whether there should be equal or sole parental responsibility – whether the children should spend equal time with their father, no time, or two hours per month supervised –  whether orders should be made requiring the annulment of the children’s US citizenship – whether the children’s passports should be retained in the registry

FAMILY LAW – costs application – whether section 102NA scheme is “legal aid” – whether unintended consequence of section 102NA scheme – order for proportion of scale costs to be paid by Wife to Husband – where Wife was unsuccessful in several claims – where Wife had rejected offers in writing which “beat” the amount she received at trial – order for scale costs to be paid by Wife to Second and Third Respondents – where Wife was wholly unsuccessful in her claim against Second and Third Respondents – orders for costs are by way of compensation, not punishment.