Judgments

FAMILY LAW – Parenting – one child, aged 6 – where the parents were in a drug-fuelled and violent relationship – where the father has not spent any time with the child since late 2020 – where the maternal grandparents have provided a great deal of care and support to the child – where the father seeks supervised time graduating to substantial and significant time – where the mother seeks that the father has no time and no communication with the child and that the child lives with her – where the maternal grandparents seek that the child live with the mother unless the Court considers she would pose an unacceptable risk of harm, in which case they would then seek the child live with them – where the Court considers that the child should live with the mother and share parental responsibility with the maternal grandparents – where the Court considers that the father should spend no time and no communication with the child – best interests of the child.    

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 – Interim spousal maintenance – where wife on parental leave following birth of child with new partner – where wife previously worked – whether husband should be required to pay spousal maintenance where the wife is not working because of decisions she made – HELD other adequate reasons exist for why the wife is unable to adequately support herself.  FAMILY LAW – Interim spousal maintenance – where the wife will shortly receive paid parental leave payments under the Paid Parental Leave Act 2010 (Cth) (‘PPL payments’) – whether PPL payments are an ‘income tested pension, allowance or benefit’ for the purposes of section 75(3) of the Family Law Act 1975 (Cth) – HELD payments under the Paid Parental Leave Act 2010 (Cth) are not income tested pensions, allowances or benefits and must be taken into account.  FAMILY LAW – Interim spousal maintenance – relevance of child support payment and children’s expenses to an application for spousal maintenance – where such payments and expenses are excluded from assessment.   FAMILY LAW – Interim spousal maintenance – where wife’s new partner is making contributions for the benefit of their child – where such payments are voluntary and irregular – where no submission put that wife and new partner are in de facto relationship – whether such payments are likely to continue – what quantum of these payments is being used for the expenses of the child of the wife and the new partner.  FAMILY LAW – Interim spousal maintenance – where there are three distinct periods covering the application including when the wife is on unpaid parental leave, when she is in receipt of PPL payments and what happens when the PPL payments end – different maintenance orders considered in relation to each period.

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 – PARENTING – Where an application is brought by the stepfather of the subject child who is 11 years of age – Where the biological mother of the child passed away in 2023 in Country C - Where the child has resided in Australia, Country B and Country C –– Where the respondent father asserts the stepfather’s behaviour toward the child presents a cumulative risk that the stepfather is engaging in grooming style behaviour - Where the child has been living with the respondent father in Australia since the death of the biological mother in 2023 – Where the stepfather has spent supervised time with the child in Australia and now seeks orders that he spend time with the child for half of each school holiday period internationally or in Australia and for one weekend each month in Australia – where the child has expressed strong views about spending time with the stepfather – Orders made for the child to spend supervised time with the stepfather on an interim basis.

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

FAMILY LAW – PARENTING – the Mother has a long history, starting in high school, of significant drug use which she says arises in times of “stress” – the Mother has stopped her own supervised time with her young daughter at a supervised contact centre – the young child, aged approximately 5 years, has lived primarily with the Father for the last three years – yet the Mother ran a case seeking that the child should change residence from the Father and live primarily with her – the longest period the Mother has been drug free has been 18 months – for all of this, the Mother still holds down a good job in the public service and has been candid with her employer and managers that she uses illicit drugs on a semi-regular basis – Mother also has a history of not completing drug rehabilitation – best interests considerations – child to continue to live with the Father, Mother to undergo regime of hair-follicle testing before re-commencement of supervised time. 

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 – PARENTING – Where an application is brought by the stepfather of the subject child who is 11 years of age – Where the biological mother of the child passed away in 2023 in Country C - Where the child has resided in Australia, Country B and Country C –– Where the respondent father asserts the stepfather’s behaviour toward the child presents a cumulative risk that the stepfather is engaging in grooming style behaviour - Where the child has been living with the respondent father in Australia since the death of the biological mother in 2023 – Where the stepfather has spent supervised time with the child in Australia and now seeks orders that he spend time with the child for half of each school holiday period internationally or in Australia and for one weekend each month in Australia – where the child has expressed strong views about spending time with the stepfather – Orders made for the child to spend supervised time with the stepfather on an interim basis. 

FAMILY LAW - costs application – where the wife seeks party/party costs to be paid – where each party filed written submissions as to the issue of costs – certify for counsel and senior counsel pursuant to rule 12.28 – costs based on Schedule 3 of the rules – because work based rather than court event based costs in this case – interim property application partly successful – application for disclosure was necessary – costs orders made

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 – Parenting – one child, aged 6 – where the parents were in a drug-fuelled and violent relationship – where the father has not spent any time with the child since late 2020 – where the maternal grandparents have provided a great deal of care and support to the child – where the father seeks supervised time graduating to substantial and significant time – where the mother seeks that the father has no time and no communication with the child and that the child lives with her – where the maternal grandparents seek that the child live with the mother unless the Court considers she would pose an unacceptable risk of harm, in which case they would then seek the child live with them – where the Court considers that the child should live with the mother and share parental responsibility with the maternal grandparents – where the Court considers that the father should spend no time and no communication with the child – best interests of the child.

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 – the Mother has a long history, starting in high school, of significant drug use which she says arises in times of “stress” – the Mother has stopped her own supervised time with her young daughter at a supervised contact centre – the young child, aged approximately 5 years, has lived primarily with the Father for the last three years – yet the Mother ran a case seeking that the child should change residence from the Father and live primarily with her – the longest period the Mother has been drug free has been 18 months – for all of this, the Mother still holds down a good job in the public service and has been candid with her employer and managers that she uses illicit drugs on a semi-regular basis – Mother also has a history of not completing drug rehabilitation – best interests considerations – child to continue to live with the Father, Mother to undergo regime of hair-follicle testing before re-commencement of supervised time.

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 – PROPERTY – Just and equitable orders made. 

FAMILY LAW – parenting – unjustified allegations of medical neglect – allegations maintained despite no evidence – lack of insight into children’s emotional needs – risk of emotional and psychological harm – greater the time the greater the risk – balancing of competing considerations – overseas travel – equal shared parent responsibility  

FAMILY LAW – CHILDREN – Independent Children’s Lawyer’s (“ICL”) obligation under s 68LA(5A) to meet with the child – When parent alleges that child refuses to meet with and/or express a view to the ICL – Does the Court have power to Order that a parent facilitate a meeting between the child and the ICL? – Should the Court make detailed orders about when and how the ICL meets with the child? – Where the Court orders the father to facilitate meeting with the child on the terms proposed by the ICL.

FAMILY LAW – PRACTICE AND PROCEDURE – Oral application for stay pending appeal. 

FAMILY LAW – parenting settled by consent – property – what should be included in the property pool – wife alleges the husband is hiding assets - weight to be given to contributions and s 75(2) factors – nondisclosure - family violence

FAMILY LAW – PRACTICE & PROCEDURE – Commissioner of Taxation application to intervene – whether or not the Commissioner has waived that right or is estopped from doing so  

FAMILY LAW – PRACTICE AND PROCEDURE – Stay pending appeal. 

FAMILY LAW – final parenting orders – mother have sole parental responsibility – children live with mother – decision of no time between the father and the children – father to see children at the wishes of the mother – Kennon claim for course of conduct after end of relationship –  father was a litigant in person – provisions of 102NA prohibited the father from cross examining the mother – concerns of the fathers mental health – where father believes there is no problem with his mental health – where there is real concern of  risk of psychological and physical harm to the mother and children – the father’s behaviour towards the mother is unpredictable, intimidating and threatening – parenting orders to be determined with the evidence provided to the court, not as they could be with future assistance – where the father has previously been incarcerated – where there is a current final intervention order in place – where the fathers involvement in proceedings was sporadic – superannuation split – 60/40 split in the mothers favour – where the former relationship home is up for sale prior to orders being made   

FAMILY LAW – Child Support – undefended hearing – exemption from filing FDR certificate – declaration as to parentage – declaration under section 106A of the Child Support Assessment Act  

FAMILY LAW – CHILDREN – Interim proceedings – Five children aged between 15 and 11 years – Three of the children have special needs –Where the wife seeks to be solely responsible for the engagement of counselling, or therapeutic or psychological treatment for the children – Where the wife seeks injunctions restraining the father from contacting the children’s and the wife’s school carers and medical providers – Where the husband opposes the wife’s application – Consideration of Child Impact Report – Future management.

FAMILY LAW – PROPERTY – Interim proceedings – Where the wife seeks a partial property settlement in order to pay her legal costs – Where the wife seeks for two properties to be sold forthwith – Where the husband opposes the wife’s application but consents to the eventual sale of one of the properties – Issues relating to disclosure – Future management. 

FAMILY LAW – EXTENSION OF TIME – property settlement application – original filing within time – acknowledgement within time from court portal confirming filing– then subsequent notice from “Family Law e-Filing” of no acceptance for filing following expiration of standard  application period on account of application not having not set out property orders – oversight by lawyers – out of time 9 days – delay short and satisfactorily explained – applicant’s case arguable case present – hardship present - lack of prejudice to the respondent – leave granted 

FAMILY LAW – what is an undefended hearing – party in default – attempts to comply with revised trial directions made – application to proceed undefended refused – consideration of interests off justice and welfare of child  

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 – parenting –family violence – where the mother seeks time between the father and the child be decreased – where the father seeks for an increase in time with the child – where the parties cannot agree on special days – the mother seeks to travel overseas with the child - airport watchlist order sought  

FAMILY LAW – PARENTING – wide range of issues on display at trial – major problems with expert who was de-registered in the course of the trial – ultimately parties agreed on most issues in dispute including the two girls of the relationship (aged 14 and 11) remaining to live with the Father in City D and spending time with the Mother in Queensland – one of the few remaining issues related to parental responsibility – significant concerns about the lack of insight of the Mother in the light of her evidence – Orders for sole parental responsibility in the Father’s favour.

FAMILY LAW – CHILDREN – final hearing – child aged three years – final consent orders made on all property and parenting issues save for the issue of overseas travel –where the parties have a dysfunctional co-parenting relationship – where Country B is the mother’s country of origin – where the mother seeks for the child to be able to travel with her on up to two occasions per year for a cumulative period not exceeding six weeks – where the mother seeks for the child to travel to a non-Hague Convention country – where the father seeks for travel to be conditional upon the child attaining the age of 10 years – consideration of recommendations of Family Report Writer – orders made as sought by the father.  

FAMILY LAW – parenting – ex tempore reasons – application for final consent orders to be made at close of mother’s case - whether proposed consent minute of final orders in the best interests of the child – cessation of time between father and one child – whether court need be satisfied orders are in children’s best interest – whether alleged unacceptable risk exists – nature and scope of duty of court when making parenting orders – Division 12A of Part VII – final consent orders made 

FAMILY LAW – Parenting – one child, 11 years – where the Court set the matter down for final hearing and made orders pursuant to s 102NA of the Family Law Act 1975 – where the mothers previous legal representatives withdrew a month out from the final hearing – where the mother has attended the final hearing self-represented – where the mother sought an adjournment of the final hearing on day one – where the mother subsequently left the Court precinct at the start of day two, citing her need to return home to City H to seek mental health assistance – where the Court adjourned the trial in order for a proper hearing to be conducted at a later date.   

FAMILY LAW – final parenting orders – ex tempore reasons – application for equal time changed at last minute – dispute was whether school term there should be a 6/8 arrangement or a 5/9 arrangement – child with special needs – previous cooperative arrangement between parents ended when one sought to relocate with child and other overheld child – two good but different parents – orders for 8/6 arrangement   

FAMILY LAW – Parenting – child aged three years – unilateral relocation – mother has moved child from Adelaide to Sydney – child has been in NSW for a period in excess of twelve months – father seeks compulsory return of mother and child to SA – high conflict – allegations of substance abuse and family violence – emergency facing mother at time of relocation – best interests – stability of care arrangements – logistical considerations relating to spend time with arrangements  

FAMILY LAW – parenting and property– final hearing – parental responsibility – sole parental responsibility for medical decisions only – shared care versus nine/five arrangement – school holiday time – special needs of children – insight into needs – family violence – insight into parental behaviour – high parental conflict – where court disagrees with recommendations of the Family Report writer – add backs – legal fees – loans – contributions – inheritance – s 75(2)(o) – failure to disclose – increased legal fees due to conduct of a party – dissipation of assets post-separation – lump sum child support – chattels  

FAMILY LAW – PARENTING – the sole child of the relationship has a good and close relationship with both parents – the current parenting arrangements have been for an equal time and shared care arrangement for some time – the almost nine year old child of the relationship advised the Family Consultant and the Independent Children’s Lawyer that he liked and would prefer to maintain the current arrangement – the Mother was a diffident and uncertain witness who seemed not to know or understand what it was she was seeking in either aspect of the trial and in many respects it was in her best interests rather than her son’s that she was seeking a reduction in time with the Father – small adjustment in the spend time with arrangements – there were difficulties with the evidence of both parties.  FAMILY LAW – PROPERTY – there were few factual matters in dispute in a relationship of modest years including that the Husband’s contributions especially at the start of the 8 year relationship were very significantly greater than the Wife – Husband on invalidity pension – issues regarding how to treat pension – ultimately perhaps the biggest issue in the property dispute was the Wife’s (and her highly experienced lawyers) failure to disclose a special costs arrangement whereby the Wife’s employer confirmed that he would pay all of her legal costs provided she moved to the lawyers who represented her at trial – only during the Wife’s re-examination did her Counsel put to the Wife and show her the special costs arrangement, being the first time this had been disclosed – the Wife had affirmed and filed two Financial Statements and four Costs Notices that never disclosed the special costs arrangement with her employer – costs awarded against the Wife’s lawyers in light of the persistent failure to disclose noting especially Murphy J’s emphasis in Penfold v Penfold on ensuring the “integrity of the proceedings” – Applicant Wife’s lawyers referred to relevant law society.   

FAMILY LAW – Children – parenting arrangement for two children aged 11 and 13 – no significant interaction between the children and the father since separation – whether a change in the arrangement would be in the children’s best interest – presumption of equal shared responsibility rebutted – allegations of family violence perpetrated by the father – best interests – matters to be considered.   FAMILY LAW - Property – property settlement – marriage of 24 years – modest asset pool – assessment of financial and non-financial contribution – the need for the financial relationship between the parties to be concluded – after separation the husband has occupied the matrimonial home – assessment of future borrowing capacity of the parties - considerations of just and equity  

FAMILY LAW – PARENTING – allocation of parental responsibility – whether four year old child should live week about with her parents.   FAMILY LAW – PROPERTY – whether funds repaid to wife’s father should be added-back – whether post-separation loan ought be included as a joint liability – assessment of contributions and other factors. 

FAMILY LAW – CONTRAVENTION – Costs – Parenting – Where it was alleged the father contravened by overholding the child following periods of time spending – Where the father admitted the breaches at the commencement of Trial but maintained he had a reasonable excuse – Where after giving evidence at Trial, the father plead guilty to each count without reasonable excuse – Father to enter into a Bond – Orders for costs. 

FAMILY LAW - PROPERTY SETTLEMENT - Where the wife seeks significant notional add backs to the property pool – Where such add backs are rejected - Where it is just and equitable to make an adjustment – Where a two pool approach is appropriate noting the substantial amount of superannuation held by the husband and where the husband seeks a superannuation splitting order – Where the husband has made higher financial contributions – Where the wife has been and continues to be the primary carer for the children, one of whom has special needs – Where at issue is the mix of superannuation and non-superannuation property each party is to receive - Where the children spend significant and substantial time with the husband – Contribution finding made in favour of the husband – Adjustment made in favour of the wife for future needs.

FAMILY LAW - Unpaid child maintenance – where payer father was not present in Australia – where payer father became entitled to a sum of money from his mother’s estate – where payee mother has passed – garnishee order against the estate of payer father’s mother – unpaid child support found payable to payee mother’s estate. 

FAMILY LAW – mother seek declaration of parentage – whether to proceed in the absence of a party – evidence of service vague and opaque – mother was assessed for child support soon after birth – child was removed from mother’s care and child support ceased –  mother’s application for child support denied when child returned to mother – mother has not been in contact with father since child was born – father and child have been in contact previously – child no longer wants contact with the father – service dispensed with – child – service by post may not be appropriate in age of electronic communication and social media – whether respondent’s demographic would have ever written or received a letter – utility of affidavits of service to unknown last known address – telephone enquiry of respondent on day of hearing ascertained current email address – always back self-interest, at least you know its trying 

FAMILY LAW – PARENTING – relocation – mother seeks child (aged 6) live with her in Town B–  child currently lives with mother in Suburb C and Town B and spends time with the father five nights per fortnight – evaluation of competing proposals – orders made for child to live with mother in Town B and to spend alternate weekends with father during school terms – orders provide for child to spend greater time with father if he moves closer to Town B – order regarding child’s school attendance in Town B.

FAMILY LAW – PARENTING - Whether 11 and 8 year old boys should live with their father in Victoria or their mother in Queensland 

FAMILY LAW – PARENTING – relocation – mother seeks children (now aged 11 and 8 years) live with her in Region B and for the children to spend time with the father on alternate weekends (from Friday to Sunday), for one additional weekend each month, and for additional holiday time – application resisted by the father who seeks children continue to spend equal time with both parents – evaluation of competing proposals – mother’s application refused – order for children to continue spending equal time with both parents – no order made confining the area in which the parties may live with the children – all other parenting orders made by consent.

FAMILY LAW – PARENTING - whether the impact on the mother’s parenting capacity of nearly four year old child spending time with his father is such that the child should spend no time with his father

FAMILY LAW - PARENTING AND PROPERTY – undefended hearing –– de facto relationship 16 years- two children – mother has sole care since separation in 2021 -no binding financial agreement – purported financial agreement set aside – alternation of property interests