Judgments

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 – two children, aged 15 and 13 – where the co-parenting relationship has been highly conflictual – where the children’s medical needs have been a large portion of the conflict – where each parent seeks sole parental responsibility – where the Court considers the mother should have sole parental responsibility and with the father to provide his input before the mother makes a decision – where the Court considers an equal time, week-about arrangement would be in the best interests of the children – best interests outcome.

FAMILY LAW – property proceedings – wife’s application in a proceeding – enforcement of previous orders – where husband provided undertaking to comply with orders –  husband’s non-compliance

FAMILY LAW – contravention – alleged contravention by failure to transfer title to investment property as required by final consent orders – transferee entitled to property not willing to complete transfer unless rental income from date of final orders to date of transfer paid to her – dispute as to obligations created by terms of final orders – contravention not established – application dismissed

FAMILY LAW – PARENTING – long history of litigation between parties – expert psychologist described the contest between the parties as one of the highest levels of conflict he has seen and, in turn, the flow-on effects for the two children as one of the worst – findings by the Court against the Father of ongoing, relentless coercive and controlling behaviour – clear power imbalance between the parties due to age and current and former workplace positions – clear stalking behaviour by the Father including rummaging through the Mother’s re-cycle bins looking for “evidence” together with threats of more action against her in the future – Mother’s older estranged daughter from an earlier relationship weaponised against the Mother by the Father – police used in a form of harassment of the Mother in doing regular welfare checks one of which resulted in the Mother being charged with assault in relation to one of the children, and incarcerated overnight, yet these charges were later either not pressed or dismissed following findings adverse to the Father – Father made complaints to the Mother’s workplace that resulted in investigations against her but without any adverse findings – Mother and children in need of protection and “safe haven” from the Father’s relentless pursuit of them, including by the very regular filing of Applications in this Court – best interests and protective considerations require the children to live with their Mother who shall have sole parental responsibility and spend no time with the Father.

FAMILY LAW – parenting – final orders – parental responsibility – conflictual relations and exposure of child to same – previous order for equal shared parental responsibility agreed not to be workable and no longer in child’s best interests – order for mother to have sole parental responsibility – live with arrangements – equal shared care – not persuaded it is necessary or in best interests of the child to vary live with orders

FAMILY LAW – property – application for section 102NA order – both parties allege family violence by the other – fourth branch of third limb of section 102NA satisfied – trial adjourned to allow parties to apply to section 102NA scheme.

FAMILY LAW – PRACTICE AND PROCEDURE – Costs.

FAMILY LAW – costs certificates – where Court has had previous involvement with one party but this was not realised until part way through cross-examination – where it is not appropriate for Court to continue hearing the matter – where the familiarity would not have been realised in the usual conflict checks

FAMILY LAW – PROPERTY – Movement of moneys through businesses and trust accounts – Intermingling of business, trust, and personal moneys – Non disclosure by parties – Unexplained discrepancies in evidence – Jones v Dunkel inference – Adjustment for future needs – Just and equitable

FAMILY LAW – PARENTING – limited issues concerning parental responsibility and “time-with” arrangements – Applicant Father’s focus notably on his time with his daughters rather than on their time with him – Father’s constant contests with health care specialists for the children – sole parental responsibility for health and education issues in the Mother’s favour – regular but slightly limited time between the children and the Father.

FAMILY LAW – PARENTNG – Rice v Asplund – as now codified in the Family Law Act 1975 (Cth) s 65DAAA – final orders in August 2022 – father having no time with children – significant mental health issues – drug use – family violence – father’s failure to obtain treatment – lack of insight – father’s regular attendance upon two psychologists and a psychiatrist – completion of lengthy Men’s Behavioural Change Program and provision of multiple clean hair follicle tests – demonstration of insight – significant change of circumstances – best interests of children for final orders to be reconsidered

FAMILY LAW – practice and procedure –- mother seeking to be relieved of her Harman undertaking – mother seeks various documents to be made available in the criminal proceedings between the mother and the child – mother facing multiple criminal charges and possible jail sentence – father opposes release of expert reports – Independent Children’s Lawyer opposes release of subpoenaed material – child’s right to privacy – child is the complainant in the criminal proceedings

FAMILY LAW – COSTS – Application for the Respondents to pay the Applicants’ costs of an Application for Review - where the Application for Review was wholly unsuccessful – where reasons for the SJR’s judgment were reserved and never delivered – where it is submitted that receiving reasons may have discharged the need for a Review and may have assisted the parties in reaching further agreement – where exercising a delegated judicial function carries with it an obligation to act judicially and provide reasons - where SJR failed to act in accordance with the delegated judicial function – where costs sought by the applicants are not sufficiently particularised – orders made for the respondents to pay a proportion of the applicants’ costs as assessed at scale

FAMILY LAW – REVIEW – whether a bank account controlled by the Husband should be subject to an injunction – whether there is a risk that the Husband will dissipate the funds in the account and jeopardise the Wife’s claim at trial.

FAMILY LAW – Parenting – parental responsibility – live with – spend time arrangements between three parties – which school child shall attend

FAMILY LAW – PROPERTY – Assessment of contributions & future needs – Children reside solely with one parent – adverse credit findings – Poorly prepared case. FAMILY LAW – PARENTING – No submissions made at hearing – Orders made in accordance with respondent’s uncontested application

FAMILY LAW – stay application for stay of final parenting and property orders pending appeal –s61DB should not have been repealed - requirements for reconsideration of final parenting orders not satisfied -application for stay refused - costs 

FAMILY LAW – Parenting – one child aged 5 years – very short relationship – mother alleges that the father has behaved in a physically and emotionally abusive manner – allegations that the paternal family have also perpetrated family violence – threats to harm mother and child – father says that all allegations are false and that the mother has behaved abusively towards him – father interviewed by police on numerous occasions, no charges laid – extensive Child Protection involvement – extensive intervention order proceedings – Court declaring the mother a vexatious litigant and ordering an extended litigation restraint order – pending criminal proceedings in respect of allegations that the mother assaulted her father’s partner – mother initially being the primary carer – spend time with the father being initially supervised, progressing to unsupervised, and then to overnights – mother withheld the child 10 weeks before the final hearing, resulting in the making and execution of a recovery order – the child’s time with the mother being supervised prior to the hearing – mother having fixed and destructive hostility towards the father and the paternal family – credibility findings in respect of the mother – fabrication of evidence and attempts to mislead the Court – no findings of family violence perpetrated by the father – mother posing an unacceptable risk of emotional and psychological harm to the child – child thriving in the care of the father and his partner – consideration of indefinite supervision order – held – father have sole parental responsibility – live with the father and spend supervised time with the mother four occasions each year.

FAMILY LAW – Property settlement following undefended hearing – de facto relationship of 12 years – relationship produced two children now aged 19 & 14 – where the respondent is currently incarcerated – where the court is satisfied that the respondent is aware of the proceedings – leave to proceed out of time – parties separated in difficult and uncertain circumstances in 2016/2017 – application commenced in 2023 – explanation for delay – where the court is satisfied the applicant will suffer hardship if unable to proceed with application – waste – considerations of just and equity

FAMILY LAW – PARENTING – Change of name – where mother seeks her surname be hyphenated and included in the child’s surname – international travel to non-Hague Convention countries – international travel to Hague Convention countries – orders made.

FAMILY LAW - PRACTICE & PROCEDURE – supplementary reasons regarding whether to re-open or not to re-open (that is the question) – arithmetical errors in Husband’s balance sheet used by the Court in judgment but which were not brought to Court’s attention until later Directions Hearing post-judgment – judgment not “perfected” – considerations regarding use of “slip-rule” compared to re-opening – evidence re-opened on Court’s own motion to correct inadvertent error and to admit evidence of which the Court was unaware at the time of preparing judgment – parties provided written submissions regarding re-opening – later agreed balance sheets from each party admitted into evidence – no need to re-visit or re-consider findings by the Court on the evidence at trial.

FAMILY LAW – PARENTING – Application for Review filed by the father of interim orders made on a defended basis by a Senior Judicial Registrar for the children’s time with the father be graduated, culminating in unsupervised time – Where the mother is the uncontested resident parent – Where all parties agree that the interim orders as to the children’s time with the father should be varied – Where the father seeks further unsupervised time with the children supported by the ICL and the mother seeks supervised time – Where both parents depose that the relationship was marred by family violence – Where the mother alleges unacceptable risk in the father’s care - Where the father’s contention that a denial of family violence can be corroborated by contemporaneous messages of love and support during the relationship is not accepted - Where a party speaking fondly of their relationship is not indicative of an absence of family violence - Where findings as to family violence can only be determined after the testing of evidence - Where the power dynamic of the parties arising from any such findings will require the assistance of expert evidence - Where the placement of the matter in the Evatt list will ensure that resources are allocated to the matter as a priority, including the allocation of a final hearing – Orders made aligning with mother’s proposal and discharging the orders made for unsupervised time.

FAMILY LAW – Parenting – final hearing – care arrangements for the parties one child aged 11 years old – parties separated in 2014 – high conflict co-parenting relationship – deficits in communication – following separation the mother and child spent two years in the UK with the mother’s family – where the child lives with the mother – where the father works two weeks on two weeks off roster – where the child is experiencing reluctance to spend overnight time with the father – how parental responsibility is to be allocated – best interests of the child – emotional needs of the child

FAMILY LAW – PROPERTY – Final hearing – Relationship of over 14 years – Where the parties share care of the two children of the relationship – Whether the Court should approach the property division on a one-pool or a two-pool basis – Dispute as to contributions – Consideration of section 75(2) factors – Where the parties’ joint enterprise in commencing unfinished renovations on the former matrimonial home has resulted in a negative financial contribution to the value of the former matrimonial home – Where the wife seeks for the former matrimonial home be sold and to be sole signatory for its sale – Where the husband opposes the sale and seeks to retain the property – Justice and equity – One pool approach adopted – Orders for a 65/35 per centum division in favour of the wife.

FAMILY LAW – PROPERTY – Interim hearing – partial property settlement – spousal maintenance – sale of property – orders made, inter alia, for partial property settlement and spousal maintenance.

FAMILY LAW – Parenting – Declaration of parentage – Child support – Where Mother seeks leave to file application for assessment of child support out of time – Whether to proceed ex parte – Where Father has not participated in the proceedings – Pre-action procedures do not apply

FAMILY LAW – PROPERTY – very short de facto relationship of approximately 2 years – difficulties in assessing contributions based on the limited evidence and especially because the Respondent de facto Husband did not give evidence due to mental health issues and was represented by his litigation guardian – precise arithmetical calculation of contributions to be balanced with considerations of justice and equity – each party to pay their own costs. 

FAMILY LAW – PROPERTY – Wife’s response proceeded undefended, notwithstanding Husband attended at Court – Parenting proceedings previously resolved – Third party equitable claim against former matrimonial home previously resolved – Loss or wastage from Husband’s criminal activity – Evidentiary gaps in Wife’s case – Court cannot speculate as to facts – Failure by Wife to afford procedural fairness to superannuation trustee – Draft orders to be provided to superannuation trustee

FAMILY LAW – PARENTING – interim hearing – four year old child – progress to overnight time.

FAMILY LAW – PROPERTY – section 79A application – alleged miscarriage of justice arises under any other circumstance – impugned order made in terms pressed by the impugning party – parties bound by the manner they conduct their cases – payment not made provision – not necessarily a “default” within section 79A(1)(c) – necessary implied provision in delivery up of jewellery order can only apply to jewellery in parties power or possession – without section 79A is there jurisdiction to vary a delivery up order to provide a compensatory payment? – no miscarriage of justice found – no “default” pursuant to section 79A(1)(c) found – enforcement application partially successful – section 79A application dismissed

FAMILY LAW – PROPERTY – Section 78 – Equitable interests – Property outside jurisdiction – Declarations – Orders made

FAMILY LAW – Subpoena objections – Where Husband seeks subpoena material regarding notes from Wife’s counselling and entire phone records spanning several years – Wife objects on basis of relevance, invasion of privacy, and fishing exercise – Apparent relevance test applies – Orders for redaction of subpoena material

FAMILY LAW – PROPERTY – short marriage – where wife and child have lived overseas since separation

FAMILY LAW – PARENTING – what time, if any, the Father spends with the children – what time, if any, the Paternal Grandparents spend with the children – where the Mother alleges family violence perpetrated by the Father during the relationship – the Mother argues the Father poses an unacceptable risk to the children – where the Father has diagnosed mental health issues and a history of illicit substance abuse which the Father fails to acknowledge or undertake treatment for – the Mother argues the Paternal Grandparents are unable to prevent the Father attending their time with the children – where the Paternal Grandparents do not accept the Father is a risk to the children.  FAMILY LAW – HELD – the Mother have sole parental responsibility – the children live with the Mother – there be no time or communication with the Father – the Father be permitted to send the children gifts and cards on special occasions – there be no face to face time with the Paternal Grandparents – there be weekly FaceTime communication with the Paternal Grandparents – the Paternal Grandparents be permitted to send the children gifts and cards on special occasions.

FAMILY LAW – Parenting – where the mother would not facilitate a meaningful relationship with the father – change of residence ordered – short respite of no time with the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain a solicitor from acting – Solicitor’s overriding duty to the Court – Where the wife objects to the solicitor for the husband from further acting for the husband – where the solicitor for the husband is the “intimate partner” of the husband – injunction granted 

FAMILY LAW – PARENTING – Interim Hearing.

FAMILY LAW – PARENTING – Finding of family violence – Whether mother’s parenting impacted by father spending time – Presumption of equal shared parental responsibility rebutted – Whether the child spends time with the father and whether such time be supervised – Injunctions ordered – The child’s time with the father suspended in certain circumstances

FAMILY LAW – PARENTING – the Husband’s application in relation to parenting arrangements for the parties’ two children aged 14 and 10 – the Husband seeks orders the parties have equal shared parental responsibility for the parties’ children save that he have sole parental responsibility in relation to decisions concerning education and extra-curricular activities - the Wife seeks the parties have equal shared parental responsibility - the Husband seeks the children spend four nights a fortnight with the Wife commencing in Term 2, 2024 - the Wife seeks the children spend five nights a fortnight with her. FAMILY LAW – PROPERTY - whether the capital received by parties should be characterised as a partial property settlement and “added back” to the property pool in its entirety - whether the Wife’s interest in she and her sister’s business should be included in the asset pool – whether the Court should make a declaration pursuant to Section 78 of the Family Law Act 1975 that the Husband and Wife have a 50% interest in the Suburb B property – the Husband seeks orders he receive 72% of the parties’ realisable assets on the basis that he made a greater contribution at the commencement of the relationship and he has primary care of children –the Wife seeks she receive 60% of the parties’ realisable assets on the basis she made a greater contribution due to an inheritance of $480,000 received towards the end of the relationship and the Husband’s greater earning capacity.  FAMILY LAW – PARENTING – HELD – the parties have equal shared parental responsibility save for issues relating to the children’s education and extra-curricular activities for which the Husband is to have sole parental responsibility if parties are unable to agree – the children spend four nights a fortnight with the Wife.  FAMILY LAW – PROPERTY – HELD - there be a declaration the Husband and Wife have a 50% interest in the Suburb B property – the capital amounts received by the parties by way of part property settlement should not be “added back” to the pool for division between the parties – the Wife’s interest in the business should be included as an assets in the property pool – the parties respective contributions should be considered as equal and the parties’ s 75(2) contributions balance each other out – the parties’ available property assets should be divided equally between them.

FAMILY LAW – PARENTING – Review of a senior judicial registrar’s decision – Three children aged 11, 8 and 7 - Parents in high conflict - Where the registrar made orders for the children to live with the mother – Where the eldest child refuses to live with the mother and continues to return to the father – Where the mother seeks a recovery order – Where the father seeks a review of the totality of the registrar’s decision on an urgent basis –Where all previous parenting orders are discharged and interim orders made to protect the children from psychological and emotional harm.

FAMILY LAW – PROPERTY – question whether the parties were in a de facto relationship and if so whether the court considers it appropriate to make an order altering the property interests – where the de facto wife is deceased – where the application was not served on the de facto wife while she was alive – where the applicant was the respondent’s carer for a period – where evidence fails to satisfy onus necessary to establish that the applicant and respondent were in a couple who lived together on a genuine domestic basis – where even if there was a de facto relationship, no financial or non-financial contributions by the applicant that would warrant the Court making a property alteration order to the home already owned by the respondent prior to cohabitation - where orders for the ashes of the respondent and for the transfer of half interest of the respondents property to a non-party are considered vexatious

FAMILY LAW – PARENTING – where the children live with Mother who relocated 3 hours away from the Father post separation – where the Father does not oppose the children living with the Mother but wants her and the children to return to an area closer to his residence – where the eldest child is exhibiting reluctance to spend overnight time with the Father – where the parents have a poor level of communication – whether an order should be made for the Mother to have sole parental responsibility for educational and medical matters – whether the Court should require the Mother and children to relocate to an area closer to the Father’s residence – the nature of the time the Father will spend with the children – Independent CHILDREN’S LAWYER’S COSTS (ICL) – whether either party would suffer hardship if ordered to contribute towards the ICL’s costs.

FAMILY LAW – parenting proceedings – best interests of child – where the child is 12 years old - where it is an agreed fact that the father have sole parental responsibility for the child and the child live with the father – where the mother has an illness and is chronically ill – where the issues in dispute concern the duration and frequency of time that the child spends with the mother and whether the child should be permitted to travel overseas with the father.

FAMILY LAW – Parenting – ex tempore reasons for an application made for recusal on the basis of apprehended bias and joinder of the parties’ current partners – where the application was filed at lunch time on the day of the resumption of part heard trial – where the test is well established by law – where the test is not satisfied – application dismissed

FAMILY LAW – PROPERTY – Application for extension of time to file Application for Review – Application granted – Senior Judicial Registrar’s final property orders – Husband’s failure to comply with procedural orders – Application for Review allowed – Written submissions as to costs

FAMILY LAW – Property – Whether to proceed ex parte – Where de facto Wife ordered to appear and did not appear – Wife found to have been properly served with previous orders and filed documents – Where parties had agreed to sell their respective houses to purchase a house jointly – Husband sold his house to purchase new house – Wife did not sell her house or contribute to the new house – Where parties were not in a relationship for 2 years to satisfy s90SB – Jurisdiction satisfied by substantial contribution of Husband within section 90SB(c)(i) and (ii) 

FAMILY LAW – Property – Party withdrew consent to previous signed consent minute – Former solicitors seeking to intervene – Where potential liabilities exceed asset pool – Where there is a substantial debt owed to the ATO – What constitutes sufficient service on the ATO – whether “posting” on the “portal” is service to the ATO – Orders to lie in Registry until service effected on ATO 

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain a solicitor from acting – Solicitor’s overriding duty to the Court – Where the wife objects to the solicitor for the husband from further acting for the husband – where the solicitor for the husband is the “intimate partner” of the husband – injunction granted 

FAMILY LAW – interim hearing – whether rules or practice attached or consequent to rule in Rice & Asplund apply to section 65DAAA – whether Goode and Goode applies to amended section 60CC – whether final orders can be suspended on interim basis without section 65DAAA being satisfied – change of circumstances not required but whether there is must be considered- section 65DAAA “governing” provision of section 65DAAA- attached rules of body of law of Rice & Asplund applied – principles of Goode and Goode with necessary changes applied-Not satisfied section 65DAAA(1)(b) satisfied – one parent’s opinion of mental health of other parent not accepted – parent’s concern not dismissed – final orders not discharged or suspended – single expert psychiatric examination ordered