Judgments

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

FAMILY LAW - PARENTING – consensual outcome – no order as to costs 

FAMILY LAW – PARENTING – costs orders – parent died – no order as to costs 

FAMILY LAW – PROPERTY – De facto relationship – Jurisdiction – De facto husband’s application for leave to institute property settlement proceedings out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) – Where the de facto wife died prior to an order being made pursuant to section 44(6) of the Family Law Act 1975 (Cth) – Where findings are made that there were no property proceedings before the Court at the date of the death of the de facto wife – Where the Court has no jurisdiction to hear the matter – Application dismissed 

FAMILY LAW – adjournment or stay application pending probate – where one party dies shortly after issue – whether the deceased needed a litigation guardian – whether proceedings invalid – where contested probate proceedings are underway in the Supreme Court of Victoria – where one party seeks an adjournment or stay until the probate proceedings are finalised   

FAMILY LAW – PROPERTY – joinder application – severing securitisation orders made  

FAMILY LAW – PARENTING – adjournment final hearing – refusal to vary supervised orders 

FAMILY LAW – PARENTING – adjournment application – joinder application – applications dismissed. 

FAMILY LAW – PARENTING – retention of child – final parenting orders already made – child returned 

FAMILY LAW – respondents late filed material – whether respondents should be permitted to rely upon late filed material – whether respondents should be heard at all – whether the application should proceed as undefended – what is an undefended hearing – whether interim property settlement orders should be made – whether orders should be made for the provision of documents and information – ability of directors of a company to obtain documents and information of the company for the purpose of Family Law act 1975 proceedings.  

FAMILY LAW – Costs – should a costs order be made relating to protracted substantive proceedings – type and quantum – where conduct of the mother supported the overarching purpose and conduct of the father did not – failure to comply with previous orders including those for costs - satisfied that party and party costs should be paid by father – compensatory and justified  

FAMILY LAW – PARENTING- substantial agreement – resolution of particular issues – time with parents when child turns 14 – orders made – reasons reserved  

FAMILY LAW – PARENTING –Where it is conceded that the parties’ short relationship was marred by family violence – Where the mother is the uncontested resident parent – Where the father has perpetrated family violence including intentionally damaging and destroying property - Where it is found that the father has engaged in a deliberate pattern of coercive and controlling behaviour both during the relationship and post separation – Where such behaviour included threats by the father to harm himself and the mother, exerting financial pressure upon her and the disposal of property in contravention of court orders – Where the mother’s conduct must be seen in the context of the family violence perpetrated by the father - Where the father had spent regular day-time only periods of time with the child until the conclusion of the final hearing when such time was suspended– Where there is an unacceptable risk of the child being exposed to family violence at the hands of the father and such risks cannot be ameliorated – Where it is found that the parenting capacity of the mother will be negatively impacted should the father continue to spend time with the child – Orders made for the father to spend no time with the child. 

FAMILY LAW - PROPERTY – about 22 months minimal and intermittent homemaker contributions by wife - inheritance of home by husband after end of matrimonial relationship – no financial contributions by wife to home – all outgoings homemaker contributions by husband including to daughter of wife - financial and occupation benefits obtained by wife after separation – husband excluded from home by condition of ADVO - orders for wife and daughter to vacate home - post vacation intimidation of husband by wife - unreasonable debts incurred by wife - alternation of property interests  

FAMILY LAW – Application for Review – Review of Deputy Registrar’s decision to refuse filing of an Initiating Application – where final parenting and property orders made by a Judge of the Court in 2020 – finding that the Initiating Application deficient and not suitable for filing – application dismissed  

FAMILY LAW – REVIEW – interim parenting – where orders for equal time varied with the Father only permitted to spend supervised time with the children – where the children are expressing views to live or spend substantial time with the Father – whether the Father poses an unacceptable risk to the children as opined by the Single Expert – where the Single Expert applies a risk assessment tool and concludes that the father poses a serious threat to the Mother and the children - whether the children should live with the Father or spend substantial unsupervised time with him - where a cautious and conservative approach to be adopted  

FAMILY LAW – EVIDENCE – application for leave to adduce evidence from an adversarial expert as to value of former family home – application filed shortly before final hearing – application dismissed  FAMILY LAW – PROPERTY – assessment of contributions over relationship of 23 years – initial contributions – gifts from family – significant inheritance at the end of the parties’ relationship – assessment of matters relevant pursuant to section 75(2) – parties’ children (aged 14 and 19) live with the father  

FAMILY LAW – interim proceedings – whether expert evidence needed – appointment of medical single expert – applicant diagnosed with a medical condition – work and earning capacity in issue – whether neurologist or occupational physician suitable expert – order made for occupational physician to be appointed as single expert  

FAMILY LAW – Parenting – interim hearing – two children, aged 8 and 4 – where both parties raise significant risk issues – where the father seeks that the children be moved into his care – where the mother seeks that the children remain living in her care – where the Court considers that the children remain in the mother’s care but spend regular and consistent time with the father – where the Court has put in place strict injunctions and the requirement of drug testing – best interests of the children.   

 FAMILY LAW – PARENTING - whether the children should continue to live in an equal time arrangement for the next two-three years or a five/nine arrangement, building to an equal time arrangement – where it is agreed that an equal time arrangement will be implemented by no later than some time in 2026 – weight to be given to the recommendations of the court child expert  

FAMILY LAW – PROPERTY – husband seeks orders in accordance with in-principle agreement previously reached between parties – consideration of exceptions to exclusion of evidence of settlement negotiations in sub-section 131(2) Evidence Act 1995 (Cth) – evidence of in-principle agreement admitted where parties each gave evidence of steps taken pursuant to that agreement, including the sale of their home – assessment of contributions – weight to be given to initial contributions including husband’s ownership of former family home at commencement of cohabitation in the context of all other contributions over a relationship of 28 years, with two (now adult) children 

FAMILY LAW – Parenting – High conflict between the parents – Where presumption of equal shared parental responsibility rebutted because of family violence – Whether the child needs to be protected from psychological harm from being subjected to emotional abuse by the Mother undermining the child’s relationship with the Father –– Allocation of sole parental responsibility as to health to the Mother – Shared parental responsibility as to all other issues – Orders made that the child live with the Mother and spend time with the Father – No order that the Father’s time be conditional on him completing a Men’s Behavioural Change Program or other treatment – No order that the Mother’s time be conditional on psychological treatment  

FAMILY LAW – parenting – final orders – two children ages 10 and 5 – where the mother is primary carer and seeks to relocate from Town B to Sydney – where the Father is the biological parent of the youngest child only – where the Father opposes the relocation and seeks an increase in time with the youngest child – where the relationship between the parents was volatile and remains high conflict – where the youngest child has autism – where there mother’s attitude toward the father raises serious concerns as to her willingness and capacity to promote the father’s relationship with the child – best interests of child for mother to have sole parental responsibility, child live with mother in Town B area and have an increase in time with father.     

FAMILY LAW – COSTS – Calderbank offer to settle not accepted by wife – ultimate outcome more favourable to husband than was offered – order for costs – indemnity costs refused – costs to be calculated pursuant to scale – matter to be listed for mention for costs to be fixed if parties cannot agree on quantum 

FAMILY LAW – PROPERTY SETTLEMENT – four-year De-Facto relationship – introduction of a property that is the substantial asset of the pool to be divided - global or asset by asset approach – addbacks- assessment of contributions and consideration of other matters including those set out at s75(2).  FAMILY LAW – COSTS – ICL costs.  

FAMILY LAW – PROPERTY – assessment of contributions – relationship of 21 years –  no children – initial contributions – post-separation contributions – alleged non-disclosure by husband – whether erroneous record-keeping by husband impacts business valuation – assessment of relevant section 75(2) matters – wife’s income earning capacity limited by injury – disparity in age of parties 

FAMILY LAW – Parenting – final orders – one child aged 6 years – whether the child should spend no time with the father or limited supervised time – where the father has a long history of perpetrating coercive and controlling family violence – where the father exhibits an inability and complete unwillingness to acknowledge the gravity of what he had done and to accept responsibility in any way – where the father actively used or manipulated the child in the dynamics of abuse and coercive control – where the father’s coercive controlling family violence places the child at very high risk of future harm – best interests of the child to spend no time nor have any communication with father. 

FAMILY LAW – property – enforcement application – where parties consented to final orders – where sale of property required by final orders has not occurred – where dispute arose as to listing price for sale and whether to accept an offer – where wife sought order for acceptance of offer received – orders made for sale of property with explicit terms as to process and basis for same – costs reserved  

FAMILY LAW – Parenting – one child, aged 8 – child has anxiety and has been resistant to overnight time away from the mother since separation - where the Father has a somewhat harsh parenting style and lacks empathy – where the Father shared parental responsibility – where the Father seeks that the child immediately commence overnight time – where the Mother seeks that overnight time commence when the child turns 10 in accordance with the single expert witness’ recommendations – where the Court considers overnight time commence when the child turns 10 and that the Mother have sole parental responsibility – best interests of the child.   

FAMILY LAW – PARENTING – whether orders should be made in respect of a child soon to turn 17 – orders made placing significant weight on child’s views – child to spend equal time with both parents 

FAMILY LAW – Property – weight to be attached to contributions – future needs 

FAMILY LAW – Parenting – recovery order sought and issued. 

FAMILY LAW – PROPERTY SETTLEMENT- De facto relationship comprising two separate periods of cohabitation – Where the respondent made greater contributions to the acquisition and maintenance of the properties owned by the parties – Where the applicant has failed to adequately disclose shares owned by him – Where the respondent has had the majority care of the two children of the relationship since separation and the applicant has made inconsistent child support payments – Contributions assessed as 60% to the applicant with a 7% adjustment for future needs. 

FAMILY LAW – PARENTING – Parental responsibility – Live with – Spend time with – consideration of the benefit to child of having a meaningful relationship with both parents – whether the child is at risk of harm in the household of the father – Where child is not at an unacceptable risk of harm in household of the father – whether child is at risk in household of the mother – Where child is at risk of psychological harm in household of the mother – Where there is a benefit to the child of having a meaningful relationship with both parents – capacity of each parent to meet the emotional needs of the child – impact on the child of proposed change in living arrangements –consideration of child’s right to share her Aboriginal culture with the mother and half-siblings and other people who share culture – order made for child to spend time with the father- order made for mother to have sole parental responsibility – presumption does not apply due to family violence – no co-parenting relationship  

FAMILY LAW – PARENTING – Where this is the second set of parenting proceedings for this child and the child is now 10 years of age – Where the child is presently living with the mother and refusing to spend any time with the father notwithstanding it is professionally supervised – Where the child has expressed clear views as to her relationship with the father and has made various allegations as to the father’s conduct including that he has threatened to kill her and abused her– Where the allegations as to the father’s conduct are not found - Where the child’s expressed views do not accord with the relationship she has with the father- Where the single expert opines that the mother displays traits suggesting that the mother has a personality disorder -  Where it is found that the mother is incapable of facilitating a relationship between the father and the child – Where the child has been significantly exposed to these proceedings – Where it is found that the mother presents a risk of physical and emotional harm to the child - Where it is found that the father can provide the child a more stable residence – Orders made for the child’s residence to be changed so that she lives with the father and spends time with the mother on a gradually increasing basis and eventually four nights per fortnight. 

FAMILY LAW – ENFORCEMENT OF ORDERS – Orders varied under s 79A.  FAMILY LAW – CONTEMPT – Counts not proved – Prima facie case not met.  FAMILY LAW – COSTS – Circumstances justifying order for indemnity costs – Discretion – Costs in a fixed sum awarded. 

FAMILY LAW – PARENTING – outstanding contravention application – failure to comply with parenting orders – reasonable excuse – willingness to comply with parenting orders – minor variation.   

FAMILY LAW – Parenting – single issue parenting matter regarding the children’s time with the Father – where the Father has a range of mental health diagnoses, including Autism Spectrum Disorder (ASD) and Attention-Deficit/Hyperactivity Disorder (ADHD), as well as some dysregulation – the Father acknowledges a range of his issues and his hyper fixation on certain matters, including news and current affairs – the Father needs to regulate his social media usage in relation to these topics much more carefully – where the children love the Father and want to spend more time with him – whether the children’s time with the Father should increase and if so, if and when it should move to unsupervised time 

FAMILY LAW – Property settlement – De facto relationship – Relationship of  approximately eight years –Financial and non-financial contributions during the relationship – De facto Wife received Total Permanent Disablement (TPD) Payment – Whether TPD Payment should be characterised as a contribution of the de facto Wife – Property wholly purchased with proceeds from TPD Payment – De facto Wife’s future needs given serious health conditions 

FAMILY LAW – Parenting – Parents live four and a half hours’ drive from one another - Three year old child has lived with each parent on a fortnightly rotation from a young age – Each parent has good reasons for their current place of residence – Distance between residences means current arrangements cannot continue when the child attends school – Benefit of a meaningful relationship with both parents – Each parent has capacity to provide for the child’s needs – Orders made for continuation of the current living arrangement until October 2024 – From October 2024 the child is to live with the mother – Importance of child’s relationship with her half-sister- Orders for child to live with mother and spend time with the father 

FAMILY LAW – PARENTING - Whether five year old should continue to spend week about time with each of her parents – Where her father continues to consume alcohol in child’s presence despite an injunction not to – Where child has been exposed to family violence – Where the parties are unable to communicate 

FAMILY LAW – Property – Undefended proceedings and non-participation of the Husband – Alteration of property interests – Wife seeking alteration of non-superannuation assets – Just and equitable – Husband’s nondisclosure – Premature appropriation of marital assets for Husband’s own benefit – Alteration of superannuation interests – Order equalising parties’ superannuation interests

FAMILY LAW – Parenting – Rice & Asplund – Preliminary hearing as to whether parenting orders ought to be reconsidered – No change of circumstances that would justify embarking on a second contested parenting hearing – Application dismissed – Discrete issue as to dispute as to choice of school referred to separate hearingv

FAMILY LAW – property – 16 year relationship – where husband seeks that matter is determined on a mathematical approach – where husband brought matrimonial home into the relationship – court determined matter on a holistic approach, as required by authorities – two-pool approach – determination of a 60/40 split in favour of the husband on non-superannuation pool – determination that each party retain their own superannuation 

FAMILY LAW – Property – de facto property settlement proceedings – short relationship – where the parties jointly own three properties – where the parties agree that the wife will retain two of the three properties and receive a cash adjustment – where the husband contends the adjustment be $150,000 – where the wife contends the adjustment be $280,000 – where the Court considers a cash adjustment of $263,000 is just and equitable – just and equitable outcome.

FAMILY LAW – PROPERTY- 33 year marriage- assessment of contributions – weight to be given to the Husband’s initial contributions of real estate and two workers compensation payments received during the marriage – whether there should be any adjustment to either party for other factors set out a s79(4) (d)–(g) – whether the Husband should be responsible for the payment of outgoings relating to the various properties and the company before they are all sold. 

FAMILY LAW – Property – de facto – declarations satisfy jurisdiction - global approach adopted – where both the financial resource attributable to the de facto wife and the property pool is considered - 75:25 adjustment of the property pool in favour of the de facto husband – just and equitable   

FAMILY LAW – PROPERTY – De facto relationship – Leave to proceed out of time