Judgments

FAMILY LAW – PROPERTY - matrimonial property division – where significant asset is husband’s business interests – husband is minority shareholder and partner - where husband’s evidence that he is unable to borrow against business interests – where husband’s partners and shareholders oppose sale - where sale of business and instalment payments considered – husband ordered to pay wife lump sum – default clause that husband is to pay instalments to wife – further default to attempt sale of business   

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

FAMILY LAW – parenting – family violence – sole parental responsibility – father has not seen the children since separation – where the father shows lack of insight and failure to address his behaviour – where the father poses an unacceptable risk to the children – whether or not orders should be made for no time or for supervised time – whether time should be graduated to unsupervised – whether or not orders should be made for family therapy – airport watchlist and passport orders

FAMILY LAW – SINGLE EXPERT WITNESS – application for removal – earlier valuation for third party bank – independence of single expert– duties – non-disclosure of earlier valuation – materiality – selection of single expert – remediation if non-disclosure - application disallowed

FAMILY LAW – PARENTING – Recusal application by respondent father – where matter part-heard – where Court had asked questions of the father during the hearing – crossing the line – entering the fray – where father submits that the Court had prejudged that the father’s position was not in the best interest of the children – whether there is a logical connection between the Court’s questioning of the father and the feared deviation from the course of deciding the case on its merits – whether Court was merely attempting to fact-find  FAMILY LAW – Appointment of single expert – whether appropriate to appoint forensic psychiatrist where clinical psychologist already appointed – complexity of matter – mental health of the mother and the children  

FAMILY LAW – PARENTING – Young child with autism and global developmental delay – Final orders made by consent earlier for equal shared parental responsibility – Antagonistic parental communication – Very different parental views on child’s capacity to cope with change – Parental insight – What time child is to spend with father – Proposed orders by both applicant and respondent not in child’s best interest – Time to increase incrementally over a period  

FAMILY LAW – Harman and/or implied obligation – are special circumstances required the documents in another court – whether special circumstances in this application – very late application – whether costs should be ordered – special circumstances found – applicant released from implied obligation

FAMILY LAW – parenting – final hearing – 15-year-old child – weight to be given to wishes – difficulty of enforcement – orders least likely to lead to further proceedings – unacceptable risk of psychological and emotional harm – not possible to mitigate the risk through orders – risk overrides the child’s wishes – change of residence back to former primary carer – moratorium on time  

FAMILY LAW – PROPERTY – where there is significant agreement as to the facts and the assets to be divided – whether there should be a one or two pool approach – impact of the Husband’s initial contributions – impact of the Wife having primary care of a child with special needs and an inferior income.

FAMILY LAW – PROPERTY – De facto relationship – Relationship of 14 years – Findings as to credit – Findings as to domestic violence – Add backs – Cross-examination not permitted due to operation of 102NA – Superannuation splitting order – 50/50 split after adjustment  

FAMILY LAW – Final Parenting – Allegations of physical, emotional, psychological and financial abuse – Criminal convictions – Unacceptable risk – Children to live with mother and spend no time with father

FAMILY LAW – Parenting – two male children aged 11 and 9 – second round of parenting proceedings – where the parties consented to final orders in December 2018 – where the parties had difficulty implementing the final orders – where the parties’ communication was unproductive – where the two boys where being dragged into the conflict by both parents – where the relationship between the father and the children began to break down in part due to disclosures of physical abuse in the father’s care by the children – where the children became resistant to spending time and communicating with the father – where the children are now estranged from the father and fearful of him – where the Court considers there would be an emotional or psychological risk to the children if they were required to spend time with the father – best interests of the children.

FAMILY LAW – Parenting – Allegations of physical, sexual and financial abuse – No findings of fact sought – No risk established – Parenting capacity – Children to live with father and spend time with mother

FAMILY LAW – PARENTING – Assessment of risk – Where Father subject of shooting – where Father previously convicted of offences – where Mother previously convicted to driving under the influence of alcohol and drugs – where each parent has history of drug use – Where Mother has history of mental health issues – where Father has mental health vulnerabilities – Allegations of family violence – Determination of parental responsibility

FAMILY LAW – parenting – final orders – parental responsibility – impact of father’s mental health and alcohol use disorder – order for sole parental responsibility disputed – parties agree that children should live with mother – orders for one of the two children to spend time and communicate with father and otherwise in accordance with her wishes – negative alcohol detection test result required by father prior to time with child – practical barriers to in person time due to location of parties residences.     FAMILY LAW – property – final orders – disputed ownership of liabilities – alleged negative contributions argument – greater parenting contributions by mother – initial financial contribution by mother not matched – 71/29 adjustment of net non-superannuation assets and superannuation in favour of the mother.   

FAMILY LAW – PROPERTY – Value of property – Addbacks – Whether the husband reduced or minimised value of property pool – Whether the husband acted recklessly, negligently, or wantonly with assets to reduce their value – Whether the husband dissipated assets prematurely to his benefit 

FAMILY LAW – PARENTING – ex tempore reasons given following the mother's failure to return after luncheon adjournment – whether four year old child who has been living week about between her two parents in different parts of Victoria should live primarily with her father  

FAMILY LAW – Application for enforcement – whether application to sell former home is really an application for enforcement or the making of consequential or machinery orders – application granted.    

FAMILY LAW – PROPERTY – FINAL ORDERS –  Where the parties were in a de facto relationship – Application of principles in Kennon & Kennon 

FAMILY LAW – de facto property – decades-long relationship – modest property pool – finding that the perpetration of family violence had a significant adverse effect on contributions – where neither party has meaningful prospect of returning to paid employment – legal aid caveat to consider - overall adjustment of property 60:40 in favour of de facto wife – timely severance of the parties’ financial relationship - just and equitable   

FAMILY LAW – CHILDREN – Parental responsibility – Allegations of coercive and controlling family violence – Whether the child should spend time with the father – Impact on the child of family violence – Unacceptable risk of exposure to family violence – Where the child’s views are entrenched – Where the mother and Independent Children’s Lawyer oppose the child spending time with the father 

FAMILY LAW – PROCEDURAL – Ex-Tempore Reasons for Judgment – Where a joint oral application is made by both parties on the first day of a three-day final hearing for an adjournment of the final hearing – where neither party has complied with trial directions made four months ago – where neither party has sought to provide evidence of the reasons for such non-compliance – where the matter has been on foot for over three years – where parties have not complied with their obligations to facilitate the just, equitable and efficient resolution of the proceedings – Initiating Application and Response of parties struck out and Directions made for the hearing of the costs Application made by the Independent Children’s Lawyer. 

FAMILY LAW – INTERIM PROPERTY SETTLEMENT – whether the Wife should receive $200,000 by way of an interim distribution – whether there are sufficient assets so as to meet the reasonably anticipated orders of each party – whether the monies should come from monies controlled by the Husband where the Wife has access to finds.   FAMILY LAW – INTERIM SPOUSAL MAINTENACE – whether the Wife has a need for spousal maintenance – whether the Husband has the capacity to pay maintenance if a need is established.  

FAMILY LAW – PROPERTY – Just and equitable orders made. 

FAMILY LAW – CHILD SUPPORT – undefended hearing – extension of time –declaration of parentage under s 106A of the Child Support (Assessment) Act 1989 – declaration applicant entitled to administrative assessment of child support for the child payable by the respondent – Costs ordered against respondent. 

FAMILY LAW – CHILDREN – Child related proceedings – Where the applicant father sought relief under section 69F of the Family Law Act 1975 (Cth) to prevent the respondent mother’s participation in the proceedings – Where the respondent mother submitted section 69F has no application – Discussion of Watson v Watson (2013) FLC 93-530 – Application dismissed – Proceedings transferred to the Federal Circuit and Family Court of Australia (Division 1) 

FAMILY LAW – PARENTING – Whether father poses unacceptable risk of harm to the child – Unacceptable risk cannot be mitigated or ameliorated against – Order for no time between the father and child – Whether paternal grandmother should spend time with child. 

FAMILY LAW – parenting – final hearing – unacceptable risk – children with complex special needs – family violence substantiated – whether risk can be ameliorated – insight into family violence and the impact on children – orders made for children to live with mother and sole parental responsibility – day time only with father 

FAMILY LAW – DE FACTO RELATIONSHIPS – whether a de facto relationship exists – declaration sought pursuant to s 90RD – where there is disputed and complex factual history – where failure to call witnesses enlivens the Rule in Jones & Dunkel  

FAMILY LAW – property – almost 30 year de facto relationship – s 90SM property adjustment sought – if and when testamentary trust vested – whether testamentary trust contribution of both parties or of husband – whether post-separation financial contribution to be added back to pool – superannuation splitting order made – orders made adjusting net non-superannuation assets to 54 per cent to the husband and 46 per cent to the wife 

FAMILY LAW – PROPERTY – Binding financial agreements set aside – Property adjustment Orders made.  

FAMILY LAW – PARENTING – Interim hearing – section 69ZL ex tempore reasons – Final orders made at Trial in 2018 – Previous findings of family violence against the husband – No time ordered – Father has issued new parenting proceedings – Orders made for Specific Issues Report – Father seeks to specify Court Child Expert to undertake the Report – Father alleges potential bias by Court Child Expert nominated by the Court due to professional training – Litigants not to dictate to the Court who shall be Court Child Expert for the purposes of Reports. 

FAMILY LAW – CHILDREN – Final parenting orders – International relocation – Unacceptable risk – Undefended hearing 

FAMILY LAW – PARENTING – Best interests of the child – Coercive order made for the mother to return to Sydney from Melbourne with the child – Court determined that rare and extreme circumstances established 

FAMILY LAW – application for costs – respondent “beat” offer in writing in property case – disparity of financial circumstances – weight to be given to offer in writing – “text book” affidavit and application and clear evidence of costs in complex case – policy difference as the different costs rules – application for costs dismissed  

FAMILY LAW – SUMMARY DISMISSAL – Where the respondent father seeks that the proceedings be dismissed pursuant to the principles enunciated in Rice v Asplund – Where the mother asserts a change of circumstances in the coparenting relationship of the parties and in her financial circumstances – Finding that the relationship between the parties and the mother’s significant change in financial circumstances warrant a material change in circumstances – Father’s application refused.

FAMILY LAW – INTERIM RELOCATION – Where the mother seeks to relocate to Brisbane having regard to her financial circumstances – Where the father opposes such an application – Where it is found that the mother’s need to relocate to Brisbane can be ameliorated by financial assistance provided to her by the father – Where it is further found that a change in residence for the children is likely to adversely impact on their positive relationship with the father – Application refused.

FAMILY LAW – INTERIM PROPERTY – Where the father seeks that any lump sum payment made to the mother should be categorised as an interim property settlement – Where the father also asserts by way of a Balance Sheet filed by him that there is no tangible property between the parties to be divided between the parties – Where the father’s application should fail based on this assertion.

FAMILY LAW – INTERIM SPOUSE MAINTENANCE – Where the mother seeks periodic spousal maintenance to remain living in Sydney – Where the father asserts the mother’s financial circumstances are of her own making – Where the mother has no income – Where the father has financial resources available to him to make a lump sum payment to the mother at first instance followed by period payments – Orders made for the father to pay the mother spouse maintenance in the form of a lump sum followed by periodic payments. 

FAMILY LAW – PROPERTY – Section 90SM property adjustment –– just and equitable orders made – spousal maintenance order made.  

FAMILY LAW – CHILDREN - Where the subject child is eight years of age – Where the mother seeks orders for the father to spend only supervised time with the child or in the alternative no time - Where the father has spent supervised time with the child for three years – Where the mother asserts that the father has ongoing drug and alcohol issues – No finding made – Where the mother asserts that the father has perpetrated a sexual assault upon her – No finding made – Where much of the mother’s complaint of the father’s behaviour stems from the period of the breakdown of the parties’ relationship – Where the father has gained insight into his behaviour and the effects of same on the child – Where the child has expressed clear views in wanting to spend regular time with the father – Orders made for the father to spend graduating time with the child.

FAMILY LAW – PROPERTY – Threshold hearing – application for leave to institute s 79 property proceedings out of time 

FAMILY LAW – CHILDREN – Where the matter proceeds undefended as against the mother – Where the father seeks that the parties have equal shared parental responsibility and the children live with the parties on an equal shared care arrangement- Where the Independent Children’s Lawyer seeks orders that the mother be allocated sole parental responsibility and spend time with the children at the mother’s sole discretion-  Where the subject children are six and two years of age – Where the children have not spent substantial time with the father since October 2022 – Where the father’s criminal antecedence gives rise to a concern as to his ability to self-regulate – Where the father has some form of relationship with the children –Where the mother did not acknowledge the authority of the court and did not attend with the children for the purposes of the preparation of the Family Report nor appear at the final hearing- Where both parties present a risk of harm to the children – Where the risk of harm posed by the father can be sufficiently ameliorated - Where it is found that the father spending time with the children may act as a mitigating factor to any risk of harm arising to the children in the mother’s care. Where orders are made for the children to spend short periods of graduating time with the father.    

FAMILY LAW – CHILDREN – Parental responsibility –– Need to protect the child from parental conflict – With whom a child lives – With whom a child spends time 

FAMILY LAW – Parenting – where the trial judge declined to make final orders after four day final hearing – interim orders made – unacceptable risk – three children aged 14, 11 and nine – middle child with Autism Spectrum Disorder – mother primary carer of the children – children exposed to mother’s strongly formed views of the father – history of high conflict changeovers – mother alleging history of serious family violence perpetrated by the father – no findings of family violence – held – interim change of residence to father – facilitated handover by Court Children’s Services – sole parental responsibility to the father – moratorium of time with mother for a period of three months, thereafter, supervised time – family therapy – adjourned for a period of six months.  

FAMILY LAW – Registrar review – Application for review of orders made by a Senior Judicial Registrar for the payment of money into solicitors’ trust account pending final hearing and for the provision of business records – whether Applicant attempting to have a ‘second grab’ hearing – minor amendments to Senior Judicial Registrar’s Orders due to Respondent changing solicitors – Review Application dismissed 

FAMILY LAW – parenting proceedings – where the parties reached a consent position for equal shared parental responsibility – where the court finds an equal time arrangement is in the best interests of the child.  

FAMILY LAW – PRACTICE AND PROCEDURE – application in a proceeding – application to reopen evidence of final hearing – application dismissed.  

FAMILY LAW – ex parte watchlist order review – urgent return after ex parte orders were made previously – no appearance by or on behalf of the first respondent – where the first respondent is in Country D – where the children of the proceeding are detained in Country D – the second respondent appearing in person – the second respondent being served previous ex parte orders on short notice – the second respondent seeking an adjournment – adjournment granted  

FAMILY LAW – PARENTING –– school arrangements for the child – competing parenting proposals – parental arrangements – where the mother is due for sentencing

FAMILY LAW – final parenting orders – final property orders – where unintended consequence of mandatory provisions of section 102NA family violence cross examination scheme contributed to delay of long awaited final hearing – where both parties seek sole parental responsibility – where one parent seeks teenager live with him and have no contact with other parent – where other parent seeks teenager live with her and have limited time with other parent – one parent spends no time with teenager and alleges other parent has alienated teenager from her – expert evidence regards teenager as mature – where teenager shows no empathy for one parent – where court not satisfied teenager mature– family therapy attempted twice –  where parent not seeing child has had past episodes of poor mental – where teenager has given vague and contradictory reasons to reject one parent – consequences for teenager to force time with a parent – whether alleged perpetrator of assault was the victim – one parent assaulted by other but the assaulted parent removed from home by police and charged with assault – where charges withdrawn after recording provided much later – weight to be given to many years of different contributions – whether one parent suffered mental health issues – whether one parent pre-occupied with perceived danger of a politician and whether that indicates mental health relapse – Alcohol and illicit drug consumption – much greater consumption by one parent – whether restriction on drug and alcohol consumption should be imposed on resident parent – weight to be given to significant inheritance – weight to be given to section 90SM factors-common ground former relationship home to be sold – final orders made for teenager to spend time with one parent as she wishes and to live with parent with high alcohol consumption – restraint on alcohol consumption.  

FAMILY LAW – parenting – application for review – application allowed – child lives with maternal grandparents – determination as to time with father – unacceptable risk – risk to child if supervised at a contact service – views of the child – importance of sibling relationship – supervised time ordered