First Instance Judgments

FAMILY LAW – COSTS – Indemnity Costs – wife sought order that the husband, third and fourth interveners (the husband’s parents) pay the wife’s costs of the substantive property proceedings on an indemnity basis – the first and second interveners (the wife’s sister and brother in law) sought an order that the husband, third and fourth interveners pay indemnity costs of the proceedings – the wife, first and second interveners sought orders that the husband pay costs of the stay application – the wife, first and second interveners sought orders that the Liquidator use funds otherwise payable to the husband to meet existing costs orders and as yet other unassessed costs and various consequential orders

FAMILY LAW – PROPERTY – Superannuation – add-backs – contributions – constructive or resulting trust – winding up of company – difficulty quantifying asset pool – accrued jurisdiction

FAMILY LAW – CHILDREN – Change of residence – High level of parental conflict – Allegations by mother that father poses unacceptable risk to the children – where the Police and Department have investigated allegations –– children not at unacceptable risk of harm if father’s unsupervised care –  continuing allegations of abuse.

FAMILY LAW – PROPERTY – Small property pool - add backs, contribution and other factors

FAMILY LAW – CHILDREN – Undefended parenting order

FAMILY LAW - CHILDREN – Living Arrangements – Non-Parent – where the child lives with the paternal grandmother – where the child spends time with the father – where the child has only day time contact with the father, with frequency dependent upon distance of the father’s residence from the paternal grandmother’s residence – injunction restraining the father from bringing the child into contact with the mother – where no order is made for the child to spend time with the mother – where the child has no meaningful relationship with the mother – where the father was unable to meet all of the child’s needs – where the child’s wish to spend only day time with the father was given weight – where the paternal grandmother had been the primary carer of the child for the past three years – where the mother had failed to participate in the proceedings

FAMILY LAW – RELOCATION – where the paternal grandmother desired to relocate with the child from Queensland to New South Wales – where the paternal grandmother had originally relocated from New South Wales to Queensland to assist in the care of the child – where advantages of relocation precluded any injunction restraining it after the conclusion of the current school year

FAMILY LAW – PARENTAL RESPONSIBILITY – where the paternal grandmother has sole parental responsibility – where the presumption of equal shared parental responsibility was rebutted by the evidence – where communication between the paternal grandmother and father  had broken down

FAMILY LAW – APPLICATION IN A CASE – where the father seeks to extend the time in which to file a Notice of Appeal against orders made by Federal Magistrate Cole on 26 February 2013 – where the mother opposes the application – where the ex tempore reasons for judgment of the Federal Magistrate delivered on 26 February 2013 were not received by the parties until 19 March 2013 – orders made as sought by the applicant.

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Respondent Mother consents to the return of the child to New Zealand – Where the Court is satisfied that the elements required for the making of a return order are established

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Respondent Mother consents to the return of the child to New Zealand – Where the Court is satisfied that the elements required for the making of a return order are established

FAMILY LAW – PROPERTY – Value of property – Conflicting evidence – Financial contributions – Where the assets and liabilities of the parties are in dispute – Where the husband alleges substantial liabilities – Where no alleged debtors are called to verify the liabilities – Where documentary evidence is not adduced

FAMILY LAW – PROPERTY – Urgent interim hearing – Orders sought for sale of property and farming equipment – Significant urgent financial liabilities – Conflict and family violence – Adjourned for a defended hearing if and when prepared

FAMILY LAW – CHILDREN – With whom the children live – Where Mother seeks for the children to live with her – where Father seeks that the children live with him – Where the children have lived primarily with the Mother as the Father is employed on a week on, week off basis – Where there has been family violence – Where both the Mother and Father have had a DVO brought against them in respect of the other parent – Where the Mother is a chronic drinker – Where the Mother’s drinking has caused detriment to the children’s welfare – s 60CC Family Law Act 1975 (Cth) – Best interests of the children – Where there is a risk of psychological harm and neglect while the children are in the Mother’s care – Interim order made that children live with the Father – Mother to have contact with the children pending her treatment and counselling for her drug and alcohol abuse – Shared parental responsibility between the Mother and Father to be contingent upon the Mother successfully undertaking treatment for her drug and alcohol abuse – Children to live with Mother and Father on week about basis once Mother has successfully undertaken treatment for her drug and alcohol abuse.

FAMILY LAW – PRACTICE AND PROCEDURE – interim order with respect to who should bear the cost of obtaining replacement duplicate certificates of title.

FAMILY LAW – COSTS – Application made for indemnity costs or in the alternative party and party costs – application of principles espoused in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 and Kohan and Kohan (1993) FLC 92-340 – Where there are no circumstances justifying an order for indemnity costs – Where it is not appropriate to depart from the ordinary rule that each party to the proceedings should bear his or her own costs – Application dismissed

FAMILY LAW – COSTS – Whether the respondent husband and wife should pay the applicant’s costs of proceedings and the costs associated with the sale of respondents’ business – Where the respondents entered into a retainer agreement with the applicant – Where the wife seeks that the Court make orders to indemnify her against payment of the applicant’s costs of Supreme Court proceedings – Where the husband should bear the responsibility for any further costs relating to the Supreme Court proceedings – Where the husband did not appear at Court to oppose the orders sought by the wife  – Where a charge is granted over all property of the respondents as security for the costs – Where the husband is ordered to pay the applicant’s costs and indemnify the wife.

FAMILY LAW – PROPERTY – Application in a Case – leave to re-open – where a judgment debt is entered into against the wife in the District Court of Western Australia – whether the interests of justice require re-opening of the case – where the application is granted

FAMILY LAW– COSTS – Where wife applied for an order that the husband pays her costs of appearance – Where husband’s concession made earlier in the day that the wife could relocate the parties’ children back to the United Kingdom was subsequently withdrawn – Where the matters requiring the Court’s attention hinged upon the concession – Whether the fact of the concession and the impact it had upon the course of the day’s proceedings amounts to justifying circumstances pursuant to s 117 of the Family Law Act 1975 (Cth) – Where wife’s application for costs is granted – Where husband is to pay wife’s costs on party/party basis.

FAMILY LAW – CHILDREN

FAMILY LAW – CHILDREN – Best interests of the child - Magellan proceedings – Need to protect the child from physical and psychological harm through exposure to family violence and abuse – Where the mother and child had been physically abused by the mother’s partner – Where the child had witnessed the mother assaulted by her partner – Where there was an ongoing significant risk to the child of physical and psychological harm if exposed to the mother’s partner – Where the mother deposed falsely that her partner had never been physically abusive to the child, but separated from her partner just before trial and admitted the abuse at trial – where the wishes of the child were given substantial weight due to the age and maturity.

FAMILY LAW – CHILDREN – Injunctions under s 68B of the Family Law Act 1975 (Cth) for protection of child – mother restrained from bringing the child into contact with her former partner – mother restrained from allowing the child to practice any aspect of the Islamic faith without the consent of the father – mother restrained from calling the child by his religious name – where such injunctions concerning the Islamic faith were made to protect the child from psychological harm through his association of the faith with the abuse he suffered at the hands of the mother’s partner – Family Consultant opined the child would not emotionally recover unless separated from Islamic cues – where a further injunction was made restraining the child from referring to anyone other than the biological parents as “mum” and “dad”.

FAMILY LAW – CHILDREN – Parental Responsibility – where presumption of equal shared parental responsibility did not apply – where sole parental responsibility was allocated to the father – where the parties had a history of unilaterally making decisions relating to issues of long-term importance to the child, such health, name and religious practices – where communication between the parties was materially impaired.

FAMILY LAW – CHILDREN – With whom the child spends time – where orders were made for the child’s re-introduction to the mother on a graduated basis to avert the risk of the child’s exposure to the mother’s former partner and to allow the child time to regain trust in the mother’s protection of him – where proposed orders that the child never spend time with the mother overnight or in Sydney, so as to prevent the child’s exposure to the mother’s former partner, were illogical and rejected

FAMILY LAW — ENFORCEMENT OF ORDERS

FAMILY LAW – NULLITY – Whether consent obtained by duress – whether the wife entered into marriage due to pressure from her priest, husband, her relatives and members of her congregation and because of religious and cultural obligations obliging her to enter into the marriage – where duress at the time of the marriage ceremony is critical – where it was not accepted that that the wife was placed under undue pressure or that her will was overborne – found no evidence to establish duress – whether the wife lacked capacity to enter into the marriage – where the wife suffers from depression – where the medical evidence did not establish that that her depressive disorder deprived her of judgment or insight into whether she should or should not enter into a committed relationship with the husband or ultimately marry him – where the totality of the evidence did not establish that the pressure placed on the wife was of such gravity as to vitiate her consent to the marriage – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE - leave be granted to institute proceedings for property settlement out of time. Trustee joined as a party

FAMILY LAW – ENFORCEMENT OF ORDERS

FAMILY LAW – Withdrawal of contravention applications

FAMILY LAW – HAGUE – Child Abduction Convention – Access – Whether to grant the father access to the children – Where an application for the return of the children was refused in 2007 – where there has not been any contact between the father and children since 2007 – where the children’s attitude to the father has changed

FAMILY LAW – PRACTICE AND PROCEDURE – subpoena – where the wife has issued a subpoena to the husband’s former legal representatives seeking the production of a file relating to Wills – where the husband objects on the grounds of legal professional privilege – where the wife says that the husband has waived legal professional privilege – where legal professional privilege has been established by the husband – where the wife has not established on the balance of probabilities that privilege has been waived – where the Court may be able to reconsider the question of waiver once further evidence is heard by the Court – objection upheld.

FAMILY LAW - PRACTICE AND PROCEDURE – Orders and directions made for the filing of affidavit material and further hearing of the matter

FAMILY LAW – CHILD ABDUCTION - Hague Convention - Where the Respondent Mother consents to the return of the child to New Zealand - Where the Court is satisfied that the making of a return order is justified

FAMILY LAW – COSTS – Application by Independent Children’s Lawyer for costs in respect of two applications brought by the mother – Where mother wholly unsuccessful in both applications – Subsection 117(4) of the Family Law Act 1975 (Cth) in respect of costs of an independent children’s lawyer – Where mother’s financial circumstances are such that a costs order made in favour of the Independent Children’s Lawyer would place her in financial hardship – Application dismissed

FAMILY LAW – CHILDREN – where there are competing applications regarding which school the children should attend – consideration of children’s best interest – where there is no material difference between the schools proposed by each of the parents – orders made largely in accordance with the mother’s application.

FAMILY LAW – CHILDREN – Adjournment of interim hearing – Father to seek legal aid funding – Updated family report to be provided

FAMILY LAW – CHILDREN – Magellan proceedings – With whom a child lives – Best interests of children – Allegations of child sexual abuse – Discussion of the meaning of unacceptable risk – Finding on the balance of probabilities that the father did not sexually abuse the children – Finding that there is no unacceptable risk of sexual assault of either child by father – Where it is not in the children’s best interest for the parties to have equal shared parental responsibility – Whether it is appropriate for the father to spend unsupervised time with the children – Where it is appropriate for the father to have three occasions of supervised time at a contact centre, then the time to be supervised by the paternal grandparents, thereafter unsupervised time with the condition that for overnight time the paternal grandparents also stay overnight.

FAMILY LAW – CHILDREN – where there are allegations of sexual abuse – where the father is not the biological father of one of the two subject children – where there are issues of alcohol addiction and drug use – where the mother seeks that there be no time between the father his non-biological son – where the father seeks parenting orders in respect of both children – whether orders should be made for time between the father and the non-biological son – consideration of best interests of both children – where orders made that the children live with the mother and the father spend time with both children

FAMILY LAW – PROPERTY – where the wife seeks a declaration that she and the husband are the sole owners of a property which was registered in the names of the husband and his sister as tenants in common – where the property has been sold – where the wife claims that there was a joint endeavour between she, the husband and his sister the effect of which was that she and the husband were the owners of the property – where the wife alternatively claims that she was induced by statements of the husband and his sister to believe that she would have a beneficial interest in the property and acted to her detriment in reliance on those statements – whether a declaration should be made as sought by the wife – where the evidence does not reveal a joint endeavour or common intention – where the statements alleged by the wife to have induced her to act to her detriment are unclear and ambiguous – where the wife’s claim for declaration dismissed.

FAMILY LAW – PROPERTY – greater contribution by husband and his future care of child without child support.

FAMILY LAW - PARENTING – wife not challenging husband’s parenting role but disputing number of days she should have with young child – Child suffers anxiety.

FAMILY LAW - CHILDREN - With whom a child spends time - Where there are allegations of abuse of the child by the Father - Where the Father does not pose an unacceptable risk of harm to the child

FAMILY LAW - ORDERS - enforcement of orders

FAMILY LAW – PROPERTY – where the husband received an inheritance shortly before separation - where the parties have significant liabilities - where the husband has a valuable earning capacity

FAMILY LAW - CHILD ABDUCTION - Return Order - Where the parties agree to the Orders to be made - Where the Court is satisfied that the proposed Orders

FAMILY LAW - CHILDREN - Hague Convention - Application for Access - Where the Respondent and the requesting person have agreed to orders for access to the subject child - Where the Court is satisfied that such orders are 'desirable'

FAMILY LAW – CHILDREN – Hague Abduction Convention – Ex Parte Injunctions

FAMILY LAW - Stay pending appeal against enforcement orders.  No merit shown despite probable nugatory effect.  Application dismissed.  Indemnity costs order

FAMILY LAW – CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility  in section 61DA has been rebutted – where the father has been convicted of numerous offences of serious assault against the mother – best interests – where the presumption of equal shared parental responsibility has been rebutted – orders that the mother have sole parental responsibility.

 FAMILY LAW – CHILDREN – final orders – with whom a child lives and spends time – where the paternal grandmother seeks to spend regular unsupervised time with the children – where the mother has experienced serious family violence at the hands of the father – where the paternal family is reluctant to accept the violence by the father towards the mother – where the Court was of the view that unsupervised time with the paternal family is likely to have a detrimental effect upon the mother’s psychological health – best interests – orders that the children live with the mother and have limited supervised time with the paternal grandmother.

FAMILY LAW – CHILDREN – Application to vary parenting orders – Where final orders were made by consent in September 2010 – Consideration as to whether there were changed circumstances to justify a new hearing – Principles in Rice & Asplund (1979) FLC 90-725 discussed – Preliminary issue – Where best interests of the children is primary consideration – Where it is not in the children’s best interest to be involved in further litigation – Where children expressed wishes for the present arrangements to remain unchanged – Where change in father’s circumstances is not of sufficient significance to justify revisiting the parenting arrangements – Application dismissed.

FAMILY LAW - Parenting; extreme violence; child subjected to witnessing the abuse of her mother.  No order for husband’s contact with the child

FAMILY LAW – SPOUSAL MAINTENANCE – Application for spousal maintenance – Where wife’s claimed expenditure for children is excluded from claim for spousal maintenance: Stein & Stein (2000) FLC 93-004 – Where wife’s income exceeds her expenses – Threshold test for spousal maintenance not met – Application dismissed.

FAMILY LAW – INJUNCTION – Where the Respondent seeks an interim Order for sole use and occupancy of the former home of the parties – Where the onus is upon the Respondent to establish that such an Order ought be made – Where the Respondent does not discharge that onus

FAMILY LAW – PROPERTY – Where the Respondent seeks an interim Order that she be permitted to draw down funds from the loan facility secured by the former home of the parties to fund her anticipated legal costs – Where the Respondent has already drawn down upon the loan to fund her legal costs – Where the Applicant has gone into debt to fund his legal costs – Where the asset pool is modest – Where the income of both parties is modest

FAMILY LAW – PROPERTY - De facto relationship - Where there are disputes as to the value of the pool and the contributions of the parties – Where there is a dispute as to the duration of the de facto relationship – Where there is disparity of capital contributions – Whether superannuation interests to be included in single divisible pool or “two pools” or asset by asset approach in respect of superannuation

FAMILY LAW – NULLITY – Where the Respondent was married to another at the time of the marriage to the Applicant – Marriage to the Applicant declared null and void

FAMILY LAW – ENFORCEMENT – property – wife made trustee for sale – conditional upon the wife attempting to effect subdivision and attempting to exchange contracts with prospective purchaser

FAMILY LAW – COSTS – Costs application – Compliance by husband with court orders and filing directions – Non-compliance by wife and her solicitors – Unavailability of wife’s Senior Counsel – Application for extension of time or leave to file costs application out of time – Overall considerations of a just and equitable outcome – Exercise of discretion – Indulgence to wife and her solicitors – What is a reasonable explanation for non-compliance – Leave granted.

FAMILY LAW – EVIDENCE – Question as to whether pursuant to s 69ZT(3) of the Family Law Act 1975 the Rules of Evidence apply

FAMILY LAW – EVIDENCE – Application in a Case filed by the Commissioner of Taxation seeking to be released from the obligation not to make collateral use of documents filed in the proceedings in this Court between the husband and the wife – Application dismissed

FAMILY LAW – CHILDREN – introduction to father after long absence – violence and intimidatory behaviour considered – Orders for therapeutic intervention followed by contact centre supervision.

FAMILY LAW – CHILDREN – Best Interests – Child related proceedings – Evidence relating to child abuse and family violence – With whom the child lives – With whom the child spends time – Supervised time – Family violence – Risk – Where there are allegations of family violence against the father – Where the children have witnessed family violence against the mother

FAMILY LAW – CHILD ABUSE – Allegation – Sexual abuse – Supervised contact – Where there is no finding with respect to whether sexual abuse did or did not occur 

FAMILY LAW – CHILDREN – children’s living arrangements  – where the children live with the father – where the two younger children spend alternate weekends with the mother – where the two older children spend monthly time with the mother – where the two younger children have meaningful relationships with both parents – where the two older children have an estranged relationship with their mother – where neither parent posed an unacceptable risk of physical or psychological harm through perpetrating abuse on the children – where both parents are unable to encourage a relationship between the children and the other parent – where the mother is unable to meet the children’s needs for security and stability – where the children’s wishes to reside with the father were given weight – where the father had demonstrated an ability to foster the children’s Aboriginality – where the maternal family other than the mother do not identify as Aboriginal – where the parties’ youngest child suffers significant global intellectual and developmental delay – where the parties’ second youngest child suffers from developmental delays and deafness - where the two older children were aligned with their father – where the mother was estranged from the maternal family – where the father had encouraged ongoing relationships between the children and the maternal family

FAMILY LAW – PARENTAL RESPONSIBILITY – where the father has sole parental responsibility due to the parties’ inability to communicate about issues effecting the children – where the presumption of equal parental responsibility applied as there were no reasonable grounds to believe allegations of child abuse

FAMILY LAW – CHILDREN – Child Abuse – where the Court found that there had been no child sexual abuse by either parent – where the parents made cross-allegations that the other parent had inappropriately touched their youngest daughter – where the alleged child victim had global intellectual and developmental delay

FAMILY LAW ─ PROPERTY ─ Value of property – Conflicting evidence – Where the area of dispute related to the value of the corporation – Where given the experience and skill which the husband has demonstrated in relation to the corporation, it can be taken as a sign of confidence that the business is viable, and going to continue to be viable ─ Where ultimately the Court preferred the wife’s expert’s approach to valuation ─ Where on balance and it being accepted that theoretically there is little to separate the approaches of either valuer the Court was comfortably persuaded that the valuation of the corporation should be taken as to $467,825 and that the $12,307 owed by it to the husband should be taken into account, as should the $34,726 which the parties owe to it.

FAMILY LAW ─ PROPERTY SETTLEMENT ─ Contributions ─ Where the contributions of the parties was not in contest ─ Where on balance, the Court concluded that to the date of trial, the parties’ contribution should be seen as favouring the husband by 56 per cent to 44 per cent ─ Where on balance, the Court is of the view that the appropriate section 75(2) adjustment is of 11 per cent and that would produce an outcome of 55 per cent to the wife, 45 per cent to the husband ─ Where the orders made by the Court provide a formula which preserves the overall split as consistent with the authorities.

FAMILY LAW ─ SPOUSAL MAINTENANCE ─ Where the wife will receive a capital sum of $410,000 at which time she can not satisfy the threshold of section 72 as she would not be able to demonstrate that she was unable to support herself other than by the payment of spousal maintenance ─ Where it was not demonstrated by the wife that, even in the interim, she would unable to support herself given the orders the Court makes for the husband to pay the $1000 per week until the wife receives her settlement moneys ─ Wife’s application for spousal maintenance dismissed.

FAMILY LAW – CHILD ABUSE – Allegation – Where the Court was not able to find abuse or unacceptable risk of abuse based on the evidence put before the Court – Where the Court was not persuaded that the orders sought by either party would, on balance, constitute an unacceptable risk of sexual abuse to the child.

FAMILY LAW – CHILDREN – Parental responsibility – Best interests of the child – Where the presumption of equal shared parental responsibility was not rebutted – Where equal time was not reasonably practicable – Where the Court on balance, was persuaded that although the child’s best interests would be well served if she were to reside with her father, her interests would be likely to be somewhat better served if she were to live with her mother – Where for practical reasons there was a limit to how much extra time was realistically possible for the father to spend with the child.

FAMILY LAW - CONTEMPT - Contravention of Court order

FAMILY LAW – PROPERTY SETTLEMENT – Long marriage – Wife seeks to retain former matrimonial home and husband seeks it be sold – Minimal assets other than former matrimonial home – Mortgage secured over home parties’ sole liability – Husband’s legal costs excluded from the liabilities of the parties as per the general rule set out in section 117(1) of the Family Law Act 1975 (Cth) – Contributions equal over long marriage – Adjustment in respect of husband’s greater future earning capacity –Superannuation entitlements divided equally as accumulated during marriage

FAMILY LAW – SPOUSAL MAINTENANCE – Wife withdrew application at commencement of proceedings

FAMILY LAW – CONTRAVENTION – Wife withdrew application at commencement of proceedings

FAMILY LAW - COSTS – order made for costs on an indemnity basis

FAMILY LAW - CHILDREN - Best interests

FAMILY LAW - CHILD ABDUCTION – Hague Convention – Where the child was habitually resident in New Zealand – Where the child has been wrongfully retained in Australia by the Mother – Where there are no exceptions to a return order established

FAMILY LAW – CHILD ABDUCTION – Hague convention – Child retained beyond period of agreement

FAMILY LAW – EVIDENCE – Question as to whether pursuant to s 69ZT(3) of the Family Law Act 1975 the Rules of Evidence apply

FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – matter unable to proceed – interim orders made

FAMILY LAW – CHILDREN – Application by the paternal Aunt in circumstances where the child’s parents are missing – Best interests.

FAMILY LAW – CHILDREN – Application by the paternal aunt in circumstances where the child’s parents are missing – Best interests.

FAMILY LAW – CHILDREN – With whom a child spends time – contravention

FAMILY LAW – CHILD ABUSE – Whether the mother made up false allegations of sexual abuse against the father – Where there is no prima facie case to answer

FAMILY LAW – EVIDENCE – Standard of proof

FAMILY LAW – PRACTICE AND PROCEDURE – Abuse of process – Whether proceedings are frivolous or vexatious

FAMILY LAW – JURISDICTION – Inherent –  Where the Court does not have inherent jurisdiction to make an order restraining further applications to the Court

FAMILY LAW – CHILDREN – Application for a stay of orders pending appeal– where the application for a stay is heard by the trial judge – where the trial judge must consider reasonable or substantial prospect of success on the appeal in determining discretion for a stay – where the appeal seeks the same orders as trial – where the father misunderstood the nature of his application – where the father thought the application for a stay of orders was a fresh application for parenting – where the father objects to the children going interstate with the mother – where the discretionary determination of a stay application must be based on exceptional circumstances – where there are no exceptional circumstances – whether granting a stay would render the appeal nugatory – where granting of a stay would not render the appeal nugatory – where a stay is not granted because the appeal does not challenge any findings of fact – where the father’s complaints are in relation to day to day care of the children – where the ICL seeks costs – where the conduct of the parties is considered when making a costs order – where the father is ordered to pay the mother’s costs – where the father is ordered to pay the costs of the ICL

FAMILY LAW – PRACTICE AND PROCEDURE – Trustee has informed the Court he won’t pursue the claim – Claim dismissed.

FAMILY LAW - PRACTICE AND PROCEDURE – Hearing

FAMILY LAW - PROPERTY

FAMILY LAW - CHILDREN – Interim parenting – Whether the father’s time with the children should be recommenced – Whether the father’s time, if any, should be supervised – Best interests of the children in relation to their relationship with their father – Issues as to denigration of the mother by the father to the children – Issue as to the psychiatric state of the father

FAMILY LAW – COSTS – Respondent to pay applicant’s costs

FAMILY LAW – ENFORCEMENT OF ORDER – Deceased estate – Entitlement under an order not to be affected by estate duties and expenses even though orders referred to liabilities.

FAMILY LAW – CHILD ABDUCTION – Hague convention – Child’s name placed on Airport Watch List

FAMILY LAW - PRACTICE AND PROCEDURE – whether the Court should proceed to hear the matter on an undefended basis – where the father did not understand that the matter was listed and that he was at risk of the matter being heard undefended – best interests – no order to proceed to hear the matter on an undefended basis – matter referred to a Registrar for directions for preparation for trial.

FAMILY LAW – CHILDREN – where the mother asserts that the father poses an unacceptable risk of harm to the parties’ child – where the father has not spent any time with the child in over two years – where the father has a significant history of illicit drug dependence and abuse – where the mother claims the father physically assaulted the parties’ child – whether the father poses an unacceptable risk of harm to the child – where the father has not used drugs in four years – where there is insufficient evidence to find that the father physically assaulted the parties’ child – where the father does not pose an unacceptable risk of harm to the child provided he continues to abstain from consuming illicit drugs – whether the father should spend time with the child – where there is the potential for the child to benefit from a meaningful relationship with her father – where orders made for graduated time between the father and the child leading, ultimately, to overnight time – where orders for time contingent upon the father undergoing drug testing at the request of the Independent Children’s Lawyer and the results of those tests being clear of specified substances.

FAMILY LAW – PROPERTY – Where the wife brought an unencumbered property into the relationship – where that property now represents the vast bulk of the pool – where the husband made significant direct financial contributions during the relationship – where the parties acquired several investment properties during the marriage – where those properties had to be sold post-separation and where the parties have incurred shortfalls as a result – where the husband concedes he did not apply rental proceeds received by him to mortgage repayments or otherwise make mortgage repayments post-separation – consideration of Stanford v Stanford (2012) 293 ALR 70 – whether husband’s conduct post-separation should be taken into account by way of a disproportionate increase in the wife’s contributions – where justice and equity requires a recognition of the effect of the husband’s conduct – where assessment of wife’s contributions increased disproportionately – where wife will have primary care of the parties’ young child – where the husband continues to receive a significant disability pension each month – where the wife is presently unemployed and in receipt of government benefits – where contributions assessed at 72.5:27.5 per cent in favour of the wife.

FAMILY LAW - COSTS – refused including to a third party demanding a confidentiality agreement

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the trial was adjourned part heard – best interests – orders for the children to spend supervised time with the father pending completion of the trial.

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Bests interests

FAMILY LAW – PROPERTY – Value of property

FAMILY LAW – CHILDREN – With whom a child spends time – Where the Father has not complied with previous Orders to undertake psychiatric assessment – Where there is a history of domestic violence – Where there have been many court proceedings – Child to live with Mother – No Orders made for the child to spend time with the Father – Father to communicate with the child by telephone – Orders by Consent allowing the Father the opportunity to make a new application upon fulfilling Orders regarding psychiatric assessment

FAMILY LAW - PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court – Where neither party is alleging sexual abuse – Where there is not enough evidence to indicate a likelihood of sexual abuse – Matter removed from the Magellan list

FAMILY LAW – APPLICATION FOR A STAY – Husband’s application to stay orders made dismissing an application for an extension of time in which to carry out a contract and dismissing an application for disqualification of the presiding Judicial Officer – Whether the appeal has any prospect of success – Whether the husband will properly and promptly prosecute the appeal in light of his history of conduct in the litigation to date – Wife’s right to the “fruits of litigation” – Whether the husband’s appeal is a further delaying tactic – Application for stay dismissed 

FAMILY LAW – EXTENSION OF TIME – Application by husband to extend the time to comply with an order relating to a contract for sale – Application made on date contract to expire if not completed – Orders sought to be extended in respect of a time in which to complete a contract found to be final property orders, not machinery orders – Case authorities provide that a final order cannot be interfered with other than by way of appeal or section 79A of the Family Law Act 1975 (Cth) – Extension of time cannot be granted – Application dismissed

FAMILY LAW – DISQUALIFICATION – Application by husband to disqualify presiding Judicial Officer on the grounds of actual or apprehended bias – No finding of either actual or apprehended bias – Application dismissed

FAMILY LAW – PROCEDURAL – Adjournment application sought by husband – Wife opposed to any further adjournment application – Husband claimed ill health as reason unable to proceed – Adjournment application granted with a costs order made against the husband secured by way of a charge over the property

FAMILY LAW – ENFORCEMENT – Final property Orders made by Consent on 19 October 2011 – Application to enforce compliance with those Orders in respect of a self-managed superannuation fund and the transfer of a parcel of land to the husband – Application for appointment of a trustee to sell a business entity – Business entity the subject of a contract for sale which requires completion or termination prior to trustee appointment application being heard

FAMILY LAW – PROCEDURAL – Respondent sought an adjournment in respect of the application to appoint a trustee to sell the business entity and the superannuation fund – Adjournment application granted for the Respondent to obtain legal advice on the various matters

FAMILY LAW – COSTS – Applicant sought costs thrown away that day in respect of the adjournment application being granted – Weight placed upon the conduct of the Respondent during the proceedings – Relevant considerations set out in subsection 117(2A) of the Family Law Act 1975 (Cth) taken into account – Costs granted as assessed – Amount of costs sought (as assessed) deemed appropriate in the circumstances of the case

FAMILY LAW - CHILDREN – Best interests of child – Whether children live with mother and spend day periods only with the father – interim arrangements – Where there is a risk of abuse – Where the abuse is unsubstantiated – Whether interim parenting orders be discharged and previous final orders reinstated.

FAMILY LAW – PROPERTY SETTLEMENT – Long marriage – Whether the Court considers the husband’s initial contributions should increase his percentage entitlement based on contributions despite the parties’ long marriage – Where the parties have no liabilities – Where concerns were raised as to the wife’s financial disclosure throughout the proceedings – Where the parties agreed to an in species division of certain items – Where the parties agreed for the wife to have the opportunity to buy out the husband’s interest in the former matrimonial home – How the Court should deal with a potential bequest under a will – Where an adjustment was made under section 75(2) in relation to the husband’s health and retirement and the wife’s current income and future earning capacity and matters globally
SUPERANNUATION – Where the parties established a self-managed superannuation fund and were in receipt of allocation pension from that fund – Whether a superannuation splitting order should be made as sought – Whether a lump sum payment in respect of superannuation entitlements would be preferable to extinguish the parties’ financial relationship

FAMILY LAW –INTERIM PROPERTY – Where husband seeks interim property settlement being the sale of two of the parties’ properties – Where ss 79 and 75(2) of the Family Law Act 1975 were considered – Where preliminary assessment made – Where degree of caution exercised so as not to compromise the Court’s capacity to achieve a just and equitable final property settlement – Where interim property settlement order made, in part, to sell one of the parties’ properties in circumstances where neither party sought to retain that property – Where it is not just and equitable to order the sale of the former matrimonial home now – Where husband’s application for sale of the former matrimonial is dismissed.
FAMILY LAW – SPOUSAL MAINTENANCE – Application by wife for periodic interim spousal maintenance– Where husband contended that the wife has not established that she is unable to adequately support herself – Where wife has tertiary qualifications but has not worked in an external corporate setting to that of the parties’ businesses which were closed some years earlier – Where the wife has had the full-time care of the children – Where wife commenced further tertiary study to enhance her employment prospects which were subsequently abandoned – Where wife established that she is presently unable to return to full-time work and that she is unable to secure part-time employment –Where wife established that she is unable to adequately support herself by reason of her care for the children and the manner which, prior to separation, the parties agreed she would spend her time – Whether husband has capacity to pay interim periodic spousal maintenance– Where it was determined that the husband has capacity to pay interim periodic spousal maintenance – Application for periodic spousal maintenance granted.
FAMILY LAW – COSTS – Whether wife’s claim for legal fees can be made under s 117 of the Family Law Act 1975 (Cth) – Whether there are justifying circumstances – Where the wife lacks capacity to meet her own legal expenses – Where husband is in a position of relative financial strength and has a surplus of income even after interim spousal maintenance is paid – Where, although the wife’s circumstances justify circumstances for an order, the husband’s financial position is such that it is not proper that an order is made – Application under s 117(2) of the Family Law Act 1975 (Cth) dismissed.
FAMILY LAW – CHILD SUPPORT DEPARTURE – Where the Court is satisfied that it would be in the interest of the liable parent and the parent entitled to child support for the court to consider whether an order should be made with respect to the children’s school fees – Where the Court gave consideration of ss 117(2)(b)(ii)
117(2)(c)(i)(a) and 117(2)(c)(i)(b) of the Child Support (Assessment) Act 1989 (Cth) as grounds for the making of a child support departure order – Where wife lacks the income to pay or contribute to the children’s private school fees – Where the husband is unable to afford school fees from income for children’s ongoing attendance at their private school – Where wife established whether it is just and equitable to make a departure order – Where unless wife willing to commit from property that she pays half school fees her application will be dismissed.
FAMILY LAW – INJUNCTIONS – Where wife sought interim asset preservation orders – Whether wife established that it is just and convenient that such orders are made – Interim asset preservation orders made.

FAMILY LAW – CHILDREN - Hague Convention - Where the parties have agreed to the subject children remaining in Australia - Where the parties have agreed to a regime of contact to occur between the requesting applicant and the children

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Application by Central Authority for return of child to New Zealand – Whether consent – Whether there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation – Order made for return of child to New Zealand

FAMILY LAW – CHILDREN – Recovery Order - Where the Father is applying for a recovery Order - Where Orders were made on 4 September 2012 for the Mother's time with the child to be supervised - Where the Mother has retained the child - Where the maternal grandparent supervisors have withdrawn their consent to supervising the Mother's time with the child - Where the Mother alleges she has child protection concerns with the child being in the Father's care

FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time – allegations of sexual abuse – whether father’s time with the children should be supervised – allegations of family violence – orders that child live with the mother - orders that father spend no time with the child – orders that father communicate with the child in writing.

FAMILY LAW – PROPERTY SETTLEMENT –Adjustment of property interests – where the parties’ contributions were assessed as equal during the marriage – Orders for substantial adjustment of property in favour of the Wife to account for the uncertainty as to her future needs owing to her chronic illness– Where the family had always enjoyed an expensive lifestyle -Where chronic illness meant Wife required ongoing paid support to care for the three children of the marriage and to look after her home – where the adjustment also took into account the current financial position of the Husband in his new household, where he and his current partner both had substantial income earning capacity

FAMILY LAW – PROPERTY – Notional Add-backs – where the Mother alleged that father failed to make payments under various interim orders– where neither party has made any application for contravention prior to hearing - Where the wife sought orders that those unpaid amounts be added back to the pool of matrimonial assets - Smith v Smith (1984) FLC 91-512 distinguished – Where the Court found the husband had made his best effort to meet his interim obligations and there were no addbacks on these amounts –Orders made adding back amounts the father spent on gifts to his Mother

FAMILY LAW – SPOUSAL MAINTENANCE – Factors Considered – Where both parties consented as to the provision of spousal maintenance – where the issue in dispute related to the duration of the maintenance – Where orders were made for the duration of three years in circumstances where it was unclear as to the wife’s future employment owing to an uncertain diagnosis of a chronic illness – where wife intended to return to work

FAMILY LAW – CHILD SUPPORT – Application for Departure – Orders made under s 116 and 117 of the Child Support Assessment Act 1989 (cth) that Husband pay the children’s school fees and related expenses in addition to existing child support payments - Where the family enjoyed a costly lifestyle – where the costs of the children’s private education were substantial – where the Wife has been unable to work for more than ten years due to a chronic illness – where the children live with the Wife – where the Husband earns a substantial wage and has acted for the last ten years as the families primary provider of financial support

FAMILY LAW – Final orders previously made – Judicial Settlement Conference – Notation to order that if issues arose the matter was to be referred to another Judge – Notice given that husband has successfully had his financial guardian and trustee dismissed – Husband has engaged solicitors on his own behalf – Proceedings being drawn to set aside s 79 orders – Consent orders as to case management and reserved costs

FAMILY LAW – PROPERTY - Value of property – Whether non transferrable tax-losses of one party’s corporation through which the parties’ income is generated should be added as an asset of the party to the property pool where the company has a nil value otherwise - Should a substantial loan account a party holds in a private company which is unable to pay the loan if the company was wound up be treated as an asset of the party on the balance sheet.

FAMILY LAW – PROPERTY – Initial Contribution – Where parties’ property has been segregated – Whether an initial contribution is off-set by other contributions made during the marriage