Judgments

FAMILY LAW – parenting – final orders – application for sole parental responsibility by each parent of a young child – mother obstructing child’s relationship with father – mother historically primary carer – father seeking order that child live with him and proposes residence in rural location remote from mother – orders made for the child to live with the mother and spend increasing time with the father  FAMILY LAW – parenting – contravention – where mother admitted contravention of court order with reasonable excuse – reasonable excuse not established – orders made for term of imprisonment of four months – sentence of imprisonment suspended on condition of entry into a bond to be on good behaviour and comply with final orders 

FAMILY LAW – CHILDREN – Where the mother would not facilitate a meaningful relationship with the father – Change of residence ordered – One-month moratorium of no time with the mother.  FAMILY LAW – COSTS – The mother to pay the costs of the Independent Children’s Lawyer. 

FAMILY LAW – PROPERTY – PARENTING – two children – withholding by the father – sole parental responsibility to mother – gradual progression of time – routine and stability for special needs of children – alternation of property interests – net property pool split 70:30 in favour of the mother  

FAMILY LAW – Contravention application – alleged contravention of parenting orders by mother – mother found to have contravened order child spend time with the father and orders concerning the use of the correct name of the child – mother placed on bonds and make up time ordered – other counts dismissed. 

FAMILY LAW – PARENTING – Best interests of children. 

FAMILY LAW – PARENTING – Best interests of children. 

FAMILY LAW – property - long marriage – addbacks – consideration to be given to initial contributions - whether there should be an adjustment pursuant to s.75(2) - wife seeking periodic spousal maintenance - whether or not there should be an order for lump sum or periodic spousal maintenance 

FAMILY LAW – PARENTING – arrangements for two year old child to spend with her father – allocation of parental responsibility 

FAMILY LAW –  recovery order arising from after hours service – subsequent attempt to comply with order for return of child made before recovery order – subsequent order that recovery order “lie in the registry” – subsequent advise child returned – recovery order vacated

FAMILY LAW – PARENTING – Best interests of children – Orders made. 

FAMILY LAW –  Parenting – Application for further adjournment of final hearing granted – Joinder of second respondent at late notice – Procedural fairness to newly joined second respondent – Mother unrepresented – Section 102NA order previously made – No application made to section 102NA scheme – Section 102NA clunky – Where Legal Aid funding for Father may run out – Request for Father’s Legal Aid representation to remain same from ordinary Legal Aid to 102NA scheme – Father permitted to relocate 

FAMILY LAW – Costs - should a costs order be made pertaining to substantive de facto property proceedings – on what basis and quantum - whether it was reasonable or not to accept an offer prior to determination – finding a minimal percentage difference in outcome – making a special costs order in favour of de facto wife is justified 

FAMILY LAW – PARENTING – Best interests of child. 

FAMILY LAW – Parenting – Where father submits the court has no jurisdiction to determine child related proceedings – Where the father uses sovereign citizen terminology  – Where father previously absconded with the children and regards the children as his property – Where father failed to engage with family report – Where there are mental health issues - Mother have sole parental responsibility – Children to live with Mother – Father to spend supervised time with children – Father restrained from removing children from Mother’s care – Recovery order to issue and lie on file 

FAMILY LAW – PARENTING – Rice & Asplund – threshold hearing relating to the mother commencing fresh parenting proceedings. 

FAMILY LAW – PROPERTY – final hearing – de facto relationship of 23 years – relationship produced two children who are now adults – where the respondent seeks the dismissal of applicant’s application – where the applicant seeks a 50/50 distribution of assets – relatively modest asset pool – assessment of contributions – future needs – considerations of just and equity – matters to be considered

 FAMILY LAW – contravention hearing listed for 22 May 2024 – email from applicant seeking adjournment – issue with the service of subpoenas – parties were to email their written submissions on the adjournment application – adjournment application granted  

FAMILY LAW – Divorce – Forum non conveniens – Divorce order made. 

FAMILY LAW – PARENTING – 15-year-old child removed from care of residential parent – Allegations of past serious violence – Allegations of past serious alcohol abuse – Recovery order not pressed – Parents to use parental authority to ensure child returned to custodial parent – Rice & Asplund raised but not dealt with – Order for child to return to usual residential parent – Application for recovery order adjourned pending return of child.

FAMILY LAW – parenting – application by father for time with daughter – where mother seeks no time order – whether father presents as unacceptable risk due to drug use, criminal offending and family violence – where allegations of family violence not contested – best interests of the child - where supervised time will not reduce risk to emotional welfare – where risk cannot presently be ameliorated – order for father not to spend time 

FAMILY LAW – property proceedings – where the parties are substantially apart in their competing applications.  

FAMILY LAW – SUMMARY DISMISSAL of s 79A Application – whether the Wife’s application has no reasonable prospects of success – where the parties child has significant special needs – whether the Wife can establish that the full extent of the child’s disability and needs were not known when the property order was made – whether there are exceptional circumstances that have arisen since the order was made that would lead to the child and/or the Wife to suffer hardship if the order is not varied 

FAMILY LAW – CONTRAVENTION – CHILDREN – Where respondent mother pleaded guilty with reasonable excuse to five counts of alleged contravention – reasonable excuse not established – mother found guilty – bond entered into – respondent mother to pay applicant father’s costs 

FAMILY LAW – PARENTING – whether Father with stimulant use disorder in sustained remission presents an unacceptable risk of harm to eleven year old child

FAMILY LAW – Final hearing vacated – section 102NA orders – Lawyer not able to be assigned – No evidence in chief filed – Lawyer sought leave to withdraw – Application of lawyer to withdraw refused – Interim application to extend time with 7-year-old child – Untested family report of considerable assistance – Watchlist order extended. 

FAMILY LAW – SUMMARY DISMISSAL of s 79A Application – whether the Wife’s application has no reasonable prospects of success – where the parties child has significant special needs – whether the Wife can establish that the full extent of the child’s disability and needs were not known when the property order was made – whether there are exceptional circumstances that have arisen since the order was made that would lead to the child and/or the Wife to suffer hardship if the order is not varied 

FAMILY LAW – PARENTING –– Application for Review – Where the child is not yet three years of age - Where the applicants in the substantive proceedings are the aunt and uncle of the respondent mother – Where the aunt and uncle have been the primary carer of the child since his birth and assert they adopted the child pursuant to a Country B custom – Where the respondent parents assert they were coerced into participating in such custom – Where the mother unilaterally retained the child in January 2024  – Where orders were made by a Senior Judicial Registrar for the child to be returned to the aunt and uncle  – Where the mother seeks to review such orders –Where the parents unilaterally changed the child’s name – The Application for Review of Orders that the child remain with the aunt and uncle is dismissed and Orders made restraining the parties from calling the child by his new legal name.  

FAMILY LAW – Property – de facto relationship – small asset pool comprising two regional properties – where both properties owned and purchased by the respondent – where applicant made weekly payments to respondent that were characterised as contributions to the mortgage over one property – where the applicant made some improvements to the properties – where applicant had almost exclusive occupation of one property and left it in a state of neglect – where evidence as to value of properties inadequate – where both parties in poor health and in receipt of government benefits – where respondent has responsibilities for a child – orders made as to 80/20 division in favour of respondent  

FAMILY LAW – application for review – review of Senior Judicial Registrar’s decision – interim parenting orders allowing for unsupervised time with the father – father’s admitted history of alcohol abuse and some family violence and breaches of domestic violence orders – alleged unacceptable risk requiring ongoing supervised time only pending final hearing – no unacceptable risk found – application for review largely dismissed – additional interim order providing that father’s time suspended until satisfactory CDT result

FAMILY LAW – PARENTING – unacceptable risk – where Father has pleaded guilty to sexual offences against Mother when she was a minor – where Father is registered sex offender - where Court finds Father has additionally subjected Mother to serious family violence – where Father holds unremittingly negative attitude towards Mother and accepts no responsibility for his own conduct – where Father is lacking in insight – orders made for no time or communication with Father 

FAMILY LAW – PRACTICE AND PROCEDURE – Application to adjourn the final hearing made by the father – Application dismissed.  FAMILY LAW – EVIDENCE – Family Report – Where the Regulation 7 Family Consultant could not give evidence – Where the Family Report was admitted with an assessment of weight to be place on the Family Report.  

FAMILY LAW – EVIDENCE – Admission of family counselling notes – Where the Court could not be satisfied whether or not the counsellor met the definition of “family counsellor” pursuant to s 10C – Evidence not admitted.

FAMILY LAW – REVIEW - Review of order of a Deputy Registrar decision where a request was made for the lawyer of the Applicant to inspect a Court record relating to accusations made by the Respondent.   

FAMILY LAW – PARENTING- progression from supervised time- no unacceptable risk 

FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding seeking costs – costs orders made

FAMILY LAW – PROPERTY – modest asset pool – where Husband asserts post-separation decline in earning capacity – where Wife makes superior post-separation contributions – where Wife has sole care of young children with no child support of significance – where Husband’s actions have reduced value of assets available for distributions – adjustment in favour of Wife 

FAMILY LAW – final parenting orders – equal shared parental responsibility – dispute over time with father – where both parties seek to relocate – mother seeking week about arrangement – father seeking two out of three weekends – father rely upon family report recommendations – where parties agreed upon children’s education prior hearing – where parties agreed on children’s extracurricular activities prior to hearing 

FAMILY LAW – PARENTING – Ex-Tempore Reasons for Judgment - Application for Review filed by the Independent Children’s Lawyer – Where orders made by a Senior Judicial Registrar were beyond the scope of the powers conferred in section 67ZC of the Act – where it is unclear what head of power is relied upon to ground such orders being made – Where the father seeks to reagitate such interim orders by way of a further Application in a Proceeding – Where no material change in circumstances is demonstrated by the father – Interim orders the subject of the Review Application discharged – Review Application otherwise dismissed – Application in a Proceeding filed by the father dismissed.  

FAMILY LAW – final parenting orders – protracted proceedings – parents agree on most aspects in respect of care – past alcohol problem – dispute as to ongoing alcohol consumption while caring for the child – balance of risk and consequences – dispute as to passport – final orders determined by consent and on papers and submission

FAMILY LAW – CONTRAVENTION – contraventions of order providing for children to communicate with Father – whether no case to answer – eight contraventions proven without reasonable excuse 

FAMILY LAW – emergency hearing – return of matter following ex parte hearing on Saturday night, facilitated by afterhours service – competing allegations of 15 year old child at risk of harm – matter adjourned for 3 days for parties to get legal advice – balancing competing risk of harm to child.   

FAMILY LAW – Parenting – two children, aged 12 and 9 – where the parties agree on final consent orders – where the ICL opposes the orders – where the Court considers it inappropriate to make the consent orders – where the parties enter into their own Parenting Plan – where the Court dismisses all extant applications – where the ICL seeks costs – costs application adjourned.  

FAMILY LAW– final property orders – oral reasons delivered soon after last day of hearing – settled reasons – third parties – 7 day final hearing – More than 400 items of personal property valued – very detailed evidence from Husband and Wife as to personal property – 2125 page court book – ownership and value of more than 149 items of personal property in dispute – allegation of gift of personal property by delivery – whether Husband or Wife had dismantled or removed personal property prior to valuation – fraud/theft allegations not proven – third party and other peoples claim of ownership accepted – whether Husband or Wife should retain FMH – long marriage – disparity of initial contribution – Husband brought in land unencumbered and machinery – Husband’s ill health significant aspect of Wife’s homemaker contribution – one child with special needs significant aspect of Wife’s parenting contribution – where each party sought sec 75(2) adjustment in his/her favour – NDIS entitlement – substantial part of NDIS not received but applied to administration – carer’s pension – continuing poor health of Husband – Wife with care of teenage child – finding of equal contribution – finding no section 75(2) adjustment – which party to obtain FMH – who should retain items of personal property – order for items to be delivered to adult child. 

FAMILY LAW – interim order – directions hearing – looming final hearing – evidence not filed –  where the respondent seeks leave to extend dates for filing to rely upon further documents for trial – dispute as to relevance of information – sought by disclosure and subpoena – disclosure ordered – leave granted for further subpoenas to be filed – extension of filing dates for final hearing  

FAMILY LAW – REVIEW of Interim Parenting Orders – the Applicant is not spending time with a non-biological child aged 2 years by virtue of Senior Judicial Registrar’s Order – the Applicant regards himself as the child’s ‘dad’ – where the Applicant and the child have a loving relationship – where the biological father has no interest in having a relationship with the child – where the Mother alleges she was subject to Family Violence – where the Family Consultant recommends supervised time – whether the child will be at an unacceptable risk of psychological or physical harm if she spends supervised time with the Applicant – where there is a danger that the child’s relationship with the Applicant will be lost if no time occurs prior to trial – whether the time, if ordered, should be professionally supervised.

FAMILY LAW – PRACTICE AND PROCEDURE - Application for review – Interim parenting – Substantive review of a Senior Judicial Registrar’s decision – Hearing de novo – Application dismissed     

FAMILY LAW – application for review – parenting only interim orders – should the children continue to spend time with the father supervised – should the children spend time with the father in accordance with final orders made 3 April 2023 – where the parties are unable to communicate effectively – where there is significant parental conflict - the children at risk of emotional and psychological harm letter to the children from judicial officer – Independent Children’s Lawyer to give letter to children 

FAMILY LAW – PARENTING – Where the subject child is 7 years of age – Where the child has spent supervised time with the father for a period of two years – Where both parties have unilaterally taken the child overseas post separation - Where there are significant allegations of family violence perpetrated against the mother and the child by the father –Where the mother seeks orders that the child spend no time with the father - Where the father alleges that the mother’s partner has sexually abused the child – Where despite the father’s allegations of sexual abuse perpetrated by the mother’s new partner he seeks that the child live with the parties on an equal shared care arrangement – Where the Father alleges the mother has fabricated allegations to alienate the child from him - Where the father relies on the mother allowing unsupervised time between him and the child post separation as the basis of the orders sought by him – Findings made that the father perpetrated family violence including coercive and controlling behaviours upon the mother and the child – Finding made that the father cannot positively support a relationship between the child and the mother – Finding that the parties’ parenting relationship is reflective of a dynamic arising from the father’s controlling family violence - Finding that the family violence perpetrated by the father is a contradiction to an order for equal shared parental responsibility - Finding that the culmination of risks posed by the father cannot be sufficiently ameliorated by supervision or otherwise – Orders made that the child spend no time with the father.  

FAMILY LAW – PARENTING – Interim proceedings –  Children aged 12 and seven years – Where one child remains in the father’s care and the other remains in the mother’s care – Previous shared care arrangements – High conflict – Allegations of coercive and controlling family violence – Weight to attach to children’s wishes – Orders made pending Family Assessment Report. 

FAMILY LAW – where the mother of the child has recently died – where the step father wants to take the child to Country B for funeral rituals – where the biological father seeks a watchlist order and restraint on the child from being removed from Australia – Country B not Hague convention country – where biological father alleges deceased mothers family prevented him from having relationship with the child – where family violence alleged during the relationship between the mother and biological father –  where biological father has not seen six year old child for three years – where the biological father believes the step father will leave the child in Country B with maternal grandparents – watchlist order denied – where the maternal grandfather also made an undertaking in court  that he ensured the child returns to Australia – where the stepfather has substantial ties to Melbourne – all other extant applications adjourned  

FAMILY LAW – practice and procedure – application to adjourn hearing for review of a Senior Judicial Registrar’s decision with respect to urgent interim parenting orders