First Instance Judgments

FAMILY LAW – PROPERTY SETTLEMENT - Contributions

FAMILY LAW – PROPERTY SETTLEMENT - Bankruptcy of party

FAMILY LAW – PROPERTY - extent of financial contributions and the weight to be accorded to them – credit of parties - Ex tempore judgment - Orders made including superannuation splitting order

FAMILY LAW – CHILDREN – With whom a child spends time – Orders that the children not be exposed to the mother’s partner

FAMILY LAW – PROPERTY - applicant and respondent separated under the same roof since April 2006 - sale of matrimonial home prior to final hearing for property orders – power of the Court to make interim property orders in appropriate cases

FAMILY LAW - CHILDREN – With whom a child lives – youngest child of the marriage to live with the applicant mother and spend substantial and significant time with the respondent father

FAMILY LAW – PROPERTY SETTLEMENT – Wife received 52 percent, husband received 48 percent of the parties assets – Global approach to ascertaining entitlements –  Norbis v Norbis (1986) 161 CLR 513 cited

FAMILY LAW – PROPERTY – CONTRIBUTIONS – Wife’s contribution assessed at 52 percent and the husband’s contribution at 48 percent – Contributions of parties regarded as equal in the post separation period – Mallet v Mallet (1984) CLR 605 cited in support of principle that neither category of contribution, being financial contributions and homemaking and parenting contributions, is inherently entitled to greater recognition than the other

FAMILY LAW – SUPERANNUATION – superannuation interests of the parties regarded as part of the pool of assets to be apportioned between the parties – Coghlan v Coghlan (2005) FLC 93-220 cited

FAMILY LAW – PROPERTY – SECTION 75(2) FACTORS – No adjustment made to the contribution based entitlements of the parties by reference to s 75(2) of the Act – Not accepted that adjustment should be made in favour of the wife for her alleged responsibility to support adult son, as application could be made for adult child maintenance in accordance with Re AM (Adult Child Maintenance) (2006) FLC 93-262 – Not accepted that adjustment should be made in favour of wife in consideration of the husband’s cohabitation with a new partner, as no evidence was led in regards to the partner’s finances – Acknowledged that an adjustment would need to be made in favour of the party who did not receive a residential facility, in recognition of the income producing nature of that asset and the effect on the respective future earning capacities of the parties – Conclusion based on additional factors that each should receive one of the two facilities in the asset pool – No adjustment for CGT as both parties to retain similar investment property portfolios and have not indicated any intention to sell the residential facilities, thus CGT liabilities and realisation costs disregarded – Brett Hall v Brett Hall (2006) FLC 93-276 cited

FAMILY LAW – PROPERTY – Interim distribution – Order that trustees of superannuation fund cause the parties’ respective entitlements, the amounts of which are uncontested, to be released as directed

FAMILY LAW – SUPPLEMENTARY REASONS – Subsequent to the Reasons for Judgment of 27 June 2008 and further submissions as to the form of orders appropriate to give effect to the Court’s Reasons, further Reasons as to the treatment of and division of certain assets and liabilities – No impediment to the making of orders altering the interest in a particular entity, in respect of which the Court previously noted its intention that the wife should retain such entity in the final division of property – Court’s power to make orders pursuant to s 79 neither exhausted, spent or indeed exercised with respect to that entity – Wife asserted that the liabilities attaching to the proposed distribution is disproportionate and the viability of the entities therefore unsustainable – The wife’s contention fails to recognise that the fate of the particular entities is but part of the overall division of a much greater pool of assets – Court will not revisit its earlier conclusion with respect to those entities

FAMILY LAW – PRACTICE AND PROCEDURE – FURTHER EVIDENCE – Absent an application for leave to re-open the evidence, not reasonably open to the Court to revisit the issue of the allocation of the entities on the basis now asserted by the wife, as this was not the substance of the evidence or submissions of the wife at trial

FAMILY LAW – PROPERTY – CGT – In view of the disparate debt levels attached to the two entities, and the reality that real estate would need to be liquidated to reduce to comparative debt burden of the wife, CGT on the realisation of investment properties taken into account “across the board” – Court to defer the making of final orders to allow for further submissions in relation to the approach to CGT.

FAMILY LAW – PROPERTY – Treatment of loan accounts of the entities – loans to be paid out and not to be forgiven

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Application of the Limitation Act 1969 (NSW) – Whether any breach of trust which occurred is time barred

FAMILY LAW – SPOUSAL MAINTENANCE

FAMILY LAW – CHILDREN – rebuttal of presumption of equal shared parental responsibility – whether in child’s best interests to live with father – unacceptable risk of child abuse – role of the intervenor

FAMILY LAW – CHILDREN – With whom a child spends time

FAMILY LAW – MARRIAGE – Nullity – Duress

FAMILY LAW – CHILDREN – With whom a child spends time – Allegations of physical abuse by father dismissed – Possibility of psychological abuse by mother

FAMILY LAW – COSTS

FAMILY LAW – CHILDREN – With whom a child lives

FAMILY LAW – CHILDREN - With whom a child lives - Unacceptable Risk to a Child

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenae

FAMILY LAW – CHILDREN – application to vary existing parenting orders – where Respondent submits application should be dismissed pursuant to Rice and Asplund (1979) FLC 90-725 - in the event the Court was satisfied the Applicant had demonstrated a substantial change in circumstances, the Applicant submitted that the Court would nonetheless dismiss the application because allowing it to continue was contrary to the children’s best interests - the rule achieves an outcome for children which promote their best interests by the application of statute - there is no alternate rule of general application which enables a court exercising Family Law Act jurisdiction to dismiss a parenting application at a preliminary hearing for the reasons argued by the Respondent

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – parental responsibility - name

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENAE – Department of Immigration objects to production and inspection – privilege – public interest immunity – balancing exercise – need to demonstrate a legitimate forensic purpose for seeing the documents – forensic purpose does not outweigh public interest factors – Objection upheld

FAMILY LAW – COSTS – costs of Independent Children’s Lawyer – circumstances of appointment – husband says he proceeded with the litigation on the understanding he was not liable to contribute to the fees of the Independent Children’s Lawyer – financial circumstances of the parties

FAMILY LAW – PRACTICE AND PROCEDURE – Discharge of Order made under Rule 11.02

FAMILY LAW – PROPERTY – CAVEATS – application for injunction restraining the lodging or maintaining of caveats against a property – sale to proceed to completion

FAMILY LAW – PRACTICE AND PROCEDURE – orders supporting enforcement – procedural orders

FAMILY LAW – PROPERTY – Application to enforce previous orders – value of property divided at first instance had declined since judgment – subsequent change in value of property does not allow the decision to be revisited – application dismissed

FAMILY LAW – CHILDREN – Application to recommence proceedings – matter has previously been decided at first instance – decision was upheld by the Full Court and special leave to appeal to the High Court was refused – consideration of the rule in Rice v Asplund – passing of time not a change in circumstances – recommencement of proceedings not in child’s best interests – application dismissed

FAMILY LAW – VEXATIOUS LITIGANT – Cross-application to declare father vexatious litigant – current proceedings not found to be vexatious or frivolous – application dismissed

FAMILY LAW – COSTS – Applicant wholly unsuccessful regarding property and children – respondent wholly unsuccessful in cross-application – applicant to make some contribution to respondent’s costs

FAMILY LAW – CHILDREN – family report recommends that father’s visits with child be supervised – father wants his partner’s mother to supervise visits – mother opposes the partners choice of supervisor – adjourned for interim hearing

FAMILY LAW - CHILDREN – adjournment of trial – costs

FAMILY LAW – CHILDREN – With whom a child lives – Best interests

FAMILY LAW – PROPERTY – Settlement in relation to marriage

FAMILY LAW – PRACTICE AND PROCEDURE – Respondent’s application to adjourn to allow the filing of further documents – application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – application by respondent to have applicant’s amended application dismissed – application dismissed

FAMILY LAW – COSTS – Whether costs should be ordered on an indemnity basis – Relevant factors in awarding indemnity costs include the production of an offer to compromise and the husband’s failure to participate fully in the litigation

FAMILY LAW – PARENTING – Final Orders – Less-Adversarial Trial – Proceedings ultimately undefended by the mother – child to live with his father and to spend time with his mother as agreed between the parties

FAMILY LAW – CHILDREN – Application for mother to take child to France for a short period –Whether mother would return child to Australia – Whether security necessary for the child’s return – Where mother had strong ties with Australia – Where mother is the primary caregiver – Where child aged two years – Where France is a Hague Convention country – Application granted - No security ordered - Compensatory time ordered for child to spend with grandparents

FAMILY LAW – CHILDREN – Interim Orders – With whom a child spends time

FAMILY LAW – CHILDREN – With whom a child lives – unacceptable risk – relocation – interim orders made for the children to live with maternal grandmother

FAMILY LAW – APPLICATION IN A CASE – Appointment of Case Guardians in financial matter – Application to remove Case Guardians – Alleged breach of duties - Dismissed

FAMILY LAW – CHILDREN – the special position of grandparents  - people significant to child’s care, welfare and development – who can apply for a parenting order

FAMILY LAW – CHILDREN – application by grandfather to spend time with and communicate with grandchildren – two further concurrent identical applications regarding other grandchildren – children have no relationship with grandfather – parents strongly opposed to any time or communication – when court should interfere in exercise of parental responsibilities – the rights of parents to determine with whom their children relate  - whether in best interests of the children in the circumstances to spend time with and communicate with grandfather

FAMILY LAW – CHILDREN – orders – order by consent that grandfather may send correspondence which will be kept by the parents until the children make enquiries about the grandfather and then will be provided to them – application otherwise dismissed

FAMILY LAW – CHILDREN – the special position of grandparents  - people significant to child’s care, welfare and development – who can apply for a parenting order

FAMILY LAW – CHILDREN – application by grandfather to spend time with and communicate with grandchildren – two further concurrent identical applications regarding other grandchildren – children have no relationship with grandfather – parents strongly opposed to any time or communication – when court should interfere in exercise of parental responsibilities – the rights of parents to determine with whom their children relate  - whether in best interests of the children in the circumstances to spend time with and communicate with grandfather

FAMILY LAW – CHILDREN – orders – order by consent that grandfather may send correspondence which will be kept by the parents until the children make enquiries about the grandfather and then will be provided to them – application otherwise dismissed

FAMILY LAW – CHILDREN – the special position of grandparents  - people significant to child’s care, welfare and development – who can apply for a parenting order

FAMILY LAW – CHILDREN – application by grandfather to spend time with and communicate with grandchildren – two further concurrent identical applications regarding other grandchildren – children have no relationship with grandfather – parents strongly opposed to any time or communication – when court should interfere in exercise of parental responsibilities – the rights of parents to determine with whom their children relate  - whether in best interests of the children in the circumstances to spend time with and communicate with grandfather

FAMILY LAW – CHILDREN – orders – order by consent that grandfather may send correspondence which will be kept by the parents until the children make enquiries about the grandfather and then will be provided to them – application otherwise dismissed

FAMILY LAW – CHILDREN – Whether time and communication with the father in child’s best interest – Sole parental responsibility

FAMILY LAW – CHILDREN – Sole parental responsibility

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – whether wife able to adequately maintain herself having regard to the factors in s 75(2) of the Family Law Act 1975 – where parties’ adult son living with wife and working full time – whether son’s ability to contribute towards household expenses a financial resource of the wife – where wife’s expenses do not exceed her income – application dismissed.

FAMILY LAW – PROPERTY – Interim distribution – where husband would be required to borrow to meet any order for lump sum payment to the wife – application dismissed.

FAMILY LAW – CHILDREN – parental responsibility – interim order for sole parental responsibility to mother with certain exceptions

FAMILY LAW – CHILDREN –inappropriate time for final hearing due to age of child and lack of current attachment to father – interim orders made – noted matter not part-heard

FAMILY LAW – DISCOVERY – Disclosure –  possession and control of documents - Issue of subpoena to lawyer of third parties in place of issuing one on each individually in respect of same document - Costs

FAMILY LAW – CHILDREN – allegations of sexual abuse made against father – discussion of standards of proof applicable to positive finding of sexual abuse and finding of unacceptable risk – finding that children at unacceptable risk of abuse in father’s unsupervised care.

FAMILY LAW – CHILDREN – with whom children live and spend time – application by mother to relocate from Tasmania to New South Wales – father’s application for children to live with him must fail given finding of unacceptable risk – where mother opposes father spending any time with children – s 60CC factors – need to maintain children’s relationship with father and protect children from abuse – history of frequent and blatant breaches of Court orders by mother, including moving interstate with the children – failure of mother to support or encourage children’s relationship with father – assessment of parties’ competing proposals – relocation application refused – children to be returned to Tasmania – consideration of Full Court decision of Sampson and Hartnett (No 10) (2007) FLC 93-350 – mother to have sole parental responsibility – father to spend supervised time with children and have telephone communication.

FAMILY LAW – PROPERTY SETTLEMENT – determination of asset pool – treatment of legal fees – whether certain moneys loaned or gifted to parties.

FAMILY LAW – PROPERTY SETTLEMENT – contributions – where contributions essentially equal during relationship – where mother’s contribution greater post separation due to her care of children – 15% adjustment to mother due to s 75(2) factors – property to be divided 70%/30% in mother’s favour.

FAMILY LAW – COSTS – Costs certificate

FAMILY LAW – PROPERTY – Interim

FAMILY LAW – PRACTICE AND PROCEDURE – Judicial Registrar – Review of decision

FAMILY LAW – PRACTICE AND PROCEDURE – Stay pending appeal

FAMILY LAW – CHILDREN – With whom a child lives

FAMILY LAW – CHILDREN – With whom a child spends time

FAMILY LAW – PRACTICE AND PROCEDURE – Application for review

FAMILY LAW – ORDERS - Stay

FAMILY LAW – PROPERTY

FAMILY LAW – CHILDREN – With whom a child lives

FAMILY LAW - APPLICATION FOR A STAY OF ORDERS – Where applicant had filed an application for leave to appeal interlocutory orders of practice & procedure – Principles to be considered when staying interlocutory orders – Where grounds justifying grant of stay not established – Application dismissed.

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

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings

FAMILY LAW – CHILDREN – With whom the child lives – Relocation – Substantial and significant time – Family Report ordered

FAMILY LAW – CHILDREN – Order made at the conclusion of a long trial that, until further order, the husband’s time spent with his 7 year old daughter be suspended – Given his falsely held encapsulated belief as to the wife’s mental condition there was an unacceptable risk to the child’s welfare pending judgment

FAMILY LAW – PROPERTY – At the conclusion of a lengthy trial having dealt with the evidence relating to the welfare issue and the property issue being part-heard, interim orders were made for partial settlement of property – Husband failing to meet any mortgage payment and equity, if any, was marginal – Husband ordered to vacate the property to enable sale

FAMILY LAW – CHILDREN – Interim restraint on party leaving Australia – Undertaking given

FAMILY LAW – CHILDREN – CHILD SUPPORT – Alleged arrears

FAMILY LAW – PROCEDURAL – EVIDENCE – applicant paternal grandmother wished to give evidence other than in person based on medical grounds – application and affidavit filed but no appearance on or on behalf of applicant paternal grandmother – respondent wife seeking to cross examine medical examiner of applicant paternal grandmother

FAMILY LAW – COSTS – Between parties

FAMILY LAW - PROPERTY – Continuation of restraining orders

FAMILY COURT – CHILDREN – child issues finalised – husband seeking to agitate child issues and appointment of Independent Children’s Lawyer – wife opposes application

FAMILY COURT – CHILDREN – involvement of Family Consultant

FAMILY COURT - PROPERTY – PROCEDURAL – orders in relation to filing of documents in preparation for trial

FAMILY LAW – CHILDREN – application by mother for child to attend CAMHS – insufficient evidence in support – no report from general practitioner who recommended the child attend CAMHS – mother’s affidavit insufficient and irrelevant – questions about mothers attitude – father’s affidavit suggesting mother’s behaviour is damaging to the child without qualification – scope for Family Consultant to address mother’s concerns in an updated Family Report – mother’s application dismissed

FAMILY LAW – PROPERTY – Finalisation of consent orders

FAMILY LAW – CHILDREN – Interim orders

FAMILY LAW – PROPERTY – Property settlement

FAMILY LAW – CHILDREN – With whom a child lives – Sole parental responsibility – With whom a child spends time

FAMILY LAW – CHILDREN - Child related proceedings

FAMILY LAW – PROPERTY – Husband bankrupt – Trustee in bankruptcy nominal role in proceedings – Section 44(3) application where parties divorced in 1983 but reconciled shortly after – Hardship question considered – Husband’s bankruptcy and failure to file material is a ground for permitting wife to proceed on undefended basis

FAMILY LAW – CHILDREN – Parenting orders – best interests of the child – Impact of a family violence order where party consent with a denial of liability – rebuttal of presumption of equal shared parental responsibility

FAMILY LAW – PROPERTY – Contributions – Add-back where evidence vague and money received subsequent to separation – Just and equitable division

FAMILY LAW – CHILDREN - Best interests – Inability of parties to communicate – Rebuttal of equal Shared Parental Responsibility – examination of what is parental responsibility –Meaningful Relationship

FAMILY LAW – CHILDREN – with whom children should live and spend time – where husband participated in proceedings initially – where proceedings ultimately proceeded undefended following husband’s failure to appear – history of violent behaviour by husband towards wife, including in presence of the children – poor relationship between husband and children – presumption in s 61DA not applicable – shared parental responsibility inappropriate – in children’s best interests to make orders as sought by wife – children to live with wife – husband not to spend time or communicate with children

FAMILY LAW – PROPERTY SETTLEMENT – determination of asset pool – treatment of significant initial contribution by husband – 10% adjustment to wife on account of s 75(2) factors – wife to receive 45% of asset pool

FAMILY LAW – CHILDREN – With whom a child spends time

FAMILY LAW – PROPERTY – Orders for sale of matrimonial home

FAMILY LAW – SPOUSAL MAINTENANCE

FAMILY LAW – COURTS AND JUDGES – Disqualification

FAMILY LAW – COSTS - Circumstances justifying order

FAMILY LAW – COSTS - Between parties

FAMILY LAW – CHILDREN – Best interests – Consent orders

FAMILY LAW – CHILDREN – where parties withdraw proceedings – where family report and subpoenaed documents raise serious risk issues – where child welfare department declines the Court’s request to intervene in proceedings – report and papers referred directly to Director-General in the hope it will conduct assessment of the child’s situation

FAMILY LAW – CHILDREN – With whom a child lives – where the parties and the Independent Children’s Lawyer invited the court to make orders providing that the child lives with the father – where this accords with the child’s views and is consistent with the Court expert’s recommendations – risk assessment – where father has been convicted of improperly dealing with the child’s half sister and exposing her to pornography -  best outcome available does not necessarily mean a good outcome for the child - interim orders made

FAMILY LAW – PROPERTY – Property settlement

FAMILY LAW – PROPERTY SETTLEMENT – asset pool of $2.2 million – whether wife should be required to receive income-producing asset.

FAMILY LAW – PROPERTY SETTLEMENT – whether wife made greater contributions than the husband – finding of equal contributions.

FAMILY LAW – PROPERTY SETTLEMENT – other factors including section 75(2) factors - disparity of income earning capacity - older children in shared care arrangement – wife has health issues – 10% adjustment made.

FAMILY LAW – PROPERTY SETTLEMENT – Family Trust – creature of the husband’s parents – husband a shareholder - whether husband has an interest – how to treat.

FAMILY LAW – SPOUSE MAINTENANCE – wife able to generate income from assets allocated to her pursuant to property settlement – wife found to have income earning capacity of $270 per week - application dismissed.

FAMILY LAW - ADOPTION – Change of Surname by Consent

FAMILY LAW – PROPERTY SETTLEMENT – Consent property orders – Referral to pronounce orders – Australian Taxation Office to be notified

FAMILY LAW - CHILDREN - Child related proceedings where Applicant is former partner of children’s father - where children living with the father - where father unilaterally returns children to mother - where father does not comply with orders made by consent relating to provision of drug and alcohol screens and information relating to his own mental health history, treatment and prognosis - where father attends at Court but subsequently withdraws from the proceedings - where orders made by consent of other parties pursuant to which child continues to live with the mother and spend time with the Applicant

FAMILY LAW – PROPERTY - alteration of property interests - contributions – inheritance – global approach - just and equitable

FAMILY LAW – PROPERTY – duty of disclosure – gaps in husband’s case – value of inheritance at time inherited

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Consent Orders

FAMILY LAW – COSTS  – principles – exercise of discretion – whether indemnity costs are ordered

FAMILY LAW – ENFORCEMENT APPLICATION – whether orders should be made given non-compliance by each party

FAMILY LAW - REVIEW - Application brought by husband to review an order of a Registrar for costs associated with the appointment of an expert witness - Application made out of time - Furthermore, there appeared to be difficulties as to service - Husband sought adjournment which was refused - Husband elected to withdraw application - In the result, application was dismissed

FAMILY LAW - CHILDREN - interim injunctions - s 68B - relevant principles - best interests of the children of the marriage - s 69ZC

FAMILY LAW – CHILDREN – Interim children’s orders

FAMILY LAW – PRACTICE AND PROCEDURE – Stay– Application by father for stay of parenting orders pending appeal – Unlikely that the husband's appeal will succeed or that decision would be changed – Refusal of stay would not render nugatory the fruits of a successful appeal – Stay not granted

FAMILY LAW – SPOUSAL MAINTENANCE

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – basis for seeking to proceed undefended – lack of compliance with orders and obligations of disclosure

FAMILY LAW – COSTS - Between parties

FAMILY LAW – COSTS - Offer of settlement

FAMILY LAW – COSTS - Circumstances justifying order

FAMILY LAW – PRACTICE AND PROCEDURE – application by husband seeking adjournment of trial and leave to sell specified properties – long running proceedings – trial commenced November 2007 – where husband claims to be at disadvantage due to lack of representation – where husband unable to pay lawyers – adjournment refused – property to be sold pursuant to previous order.

FAMILY LAW – CHILDREN – where husband has arranged to take child overseas without permission of wife – whether child should be permitted to leave country – child permitted to travel overseas, with conditions placed upon husband.

FAMILY LAW – PROCEDURAL – Interim property

FAMILY LAW – COSTS – order for costs following hearing of application for property settlement - consideration of s117(2A) factors – assets of the wife exceed those of the husband -  offer in writing to settle the proceedings – order for the wife to contribute towards the husband’s costs

FAMILY LAW – COURTS AND JUDGES – Disqualification – application by mother seeking  disqualification of judge on ground of apprehended bias – consideration of comments made during previous hearing and judge’s professional relationship with expert involved in matter – application granted

FAMILY LAW – CHILDREN – Final Orders – Allegations of physical abuse by the father on the mother and the children – Psychological effect of abuse on the children –  Genuine belief by the mother that father poses a risk to herself and the children - Orders made that the children have no time with the father   

FAMILY LAW – PRACTICE AND PROCEDURE – Application for Expedited hearing – whether exceptional circumstances – application refused

FAMILY LAW – PROCEDURAL – Interim trial issues

FAMILY LAW – PROCEDURAL – Interim issues re trial evidence

FAMILY LAW – CHILDREN – Interim Application – Allegations of inappropriate touching by father – Allegation that child had witnessed father engaged in sexual activity – Question of suitability as s supervisor of a witness in the father’s case

FAMILY LAW – CHILDREN—Best interests—child hearing impaired—whether orders suspending Mother’s time should continue—whether child wants to do speech and drama—school principal alleges Mother forced child to withdraw from speech and drama—where Mother refusing to renew child’s passport—Interim orders made supervised contact reinstated due to veracity of allegations—liberty to obtain detailed statements from Principal and staff—passport to issue

FAMILY LAW - COSTS

FAMILY LAW – PROPERTY – Transfer of proceedings from Supreme Court of New South Wales – Jurisdiction to hear the claim not contested - Whether a constructive trust – Equitable tracing

FAMILY LAW – CHILDREN – interim proceedings – child’s schooling – application by wife seeking variation of orders to enable acceptance of offer of enrolment for child at new school – views of child – permission given to enrol child – injunction granted restraining parties from altering child’s enrolment at current school

FAMILY LAW – LEGAL PRACTITIONERS - Conflict of interest

FAMILY LAW – PROPERTY – Enforcement of property orders – Wife’s trustee in bankruptcy

FAMILY LAW – INJUNCTIONS – Interim basis – Orders relating to preventing a person leaving Australia

FAMILY LAW – CHILDREN – father’s application for communication with the children – father facing criminal proceedings in relation to a child from the mother’s previous relationship – criminal proceedings due to commence in March 2009 - application opposed – father agrees application cannot proceed until after criminal proceedings are finalised – Family Consultant recommends no contact between children and father – children do not wish to communicate with father – application dismissed

FAMILY LAW – INJUNCTION – LEGAL PRACTITIONER – conflict of interest – restrained from acting

FAMILY LAW – CHILDREN - Best interests

FAMILY LAW – CHILDREN – Intervenor grandparents application to spend time with child – infant child has disability and has lived with applicant grandparents since birth

FAMILY LAW – CHILDREN – practice and procedure – proceedings in absence of the father – no substantive orders made – placing of matter in Child responsive program

FAMILY LAW – PRACTICE AND PROCEDURE – s 118 Order

FAMILY LAW – CONSENT ORDERS – Minutes of consent orders executed is Belarus - Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents – the Foreign Evidence Act 1994 - effect of an apostille - final parenting orders made

FAMILY LAW – CHILDREN – Interim parenting

FAMILY LAW – CHILDREN – Process and procedure

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Facilitating rights of access of requesting parent in Sweden to children in Australia pursuant to reg 24 of the Family Law (Child Abduction Convention) Regulations 1986 – application by father to discharge previous order in light of new evidence - relevant principles

FAMILY LAW – CHILDREN – With whom children live – complex inter-relationships of parties – orders made by consent – commitment by parties to counselling and treatment – ongoing monitoring by Independent Children’s Lawyer

FAMILY LAW – INJUNCTIONS – Urgent injunctive relief – sale of property to avoid corporate entity being liquidated – importance of clear evidence

FAMILY LAW – CHILDREN – With whom children spend time – Grandparents

FAMILY LAW – CHILDREN – With whom a child lives – Child expressing negative reaction to time with father – Concerns for child’s psychological and emotional health - Need to have relationship with both parents – block period of time with father 

FAMILY LAW – CHILDREN – With whom a child lives pending trial– Views expressed by a child not the same as child’s best interests

FAMILY LAW –  MAGELLAN –  interim parenting orders requiring supervision of time between father and children – mother required to particularise allegations of risk of abuse – obligation of party making allegations to provide evidence of facts and matters rather than make mere and general assertions of conduct

FAMILY LAW – PROPERTY ORDERS – s 79(2) Just and equitable

FAMILY LAW – CHILDREN – With whom the child lives – Orders

FAMILY LAW – COSTS – Between parties – Circumstances justifying order

FAMILY LAW - CONTEMPT in the face of the Court – leave to Marshal to withdraw charge

FAMILY LAW - COSTS - Marshall wholly unsuccessful – timely concession – behaviour of witness considered

FAMILY LAW - SHARED PARENTING – Proceedings in Defended List - Husband failed to attend hearing notwithstanding being notified of the date - Recommendations made by Family Consultant undertaken by Independent Children’s Lawyer - Final Orders made in absence of husband

FAMILY LAW – CHILDREN - RECOVERY ORDER – Order made for recovery of a 9 year old child in circumstances of the case

FAMILY LAW – CHILDREN – With whom a child lives – Orders

FAMILY LAW – PROPERTY – Settlement in relation to marriage

FAMILY LAW - PROPERTY - Bitterly contested property dispute following a 50 year and longer union - Monies remitted to Macedonia - Modest asset pool - Parties supported by different children within a divided family - Issues resolved on negotiation - Consent orders ultimately made

FAMILY LAW – CHILDREN – PASSPORT – Temporarily released for Overseas travel

FAMILY LAW – CHILDREN –Interim application

FAMILY LAW – PRACTICE & PROCEDURE – Evidence – Recorded conversations

FAMILY LAW – CHILDREN – With whom a child lives – Child to live with paternal grandmother

FAMILY LAW – CHILDREN – Orders between mother and grandparents – time child spends with grandparents

FAMILY LAW – PROPERTY – Procedural issues from 1^st day of trial pursuant to Division 12A

FAMILY LAW – PROPERTY – Case management and direction orders

FAMILY LAW – CONTRAVENTION – against mother – non-attendance by mother – issue re service of documents – warrant sought by applicant father

FAMILY LAW – INJUNCTIONS – Anti-suit Injunction

FAMILY LAW – SPOUSAL MAINTENANCE – Interim

FAMILY LAW – ENFORCEMENT OF ORDERS – WARRANTS – where warrant of commitment had expired without being executed – fresh warrant of commitment issued

FAMILY LAW – COSTS

FAMILY LAW – DIVORCE – Divorce order – husband opposed wife’s application for divorce on ground divorce already granted overseas – whether divorce purported to have been granted overseas should be recognised as valid pursuant to s 104 of Family Law Act – whether divorce effected in accordance with Pakistani law – court satisfied marriage not dissolved – appropriate for court to hear divorce – necessary requirements for divorce proved – divorce to become final notwithstanding court not satisfied that proper arrangements have been made for children of marriage.

FAMILY LAW – COSTS – application for costs by wife – s 117 – husband did not appear and was wholly unsuccessful – husband to pay wife’s costs.

FAMILY LAW – CHILDREN– with whom a child lives and spends time – applicant mother failed to appear in Court for first day of trial or file questionnaire – whether matter to be dealt with by default – consideration of provisions of s 60CC – final orders made – child to live with father and spend time with mother as agreed

FAMILY LAW – CHILDREN – Request for Department of Human Services to intervene

FAMILY LAW – CONTEMPT – contravention of court order – sanctions – husband removed child contrary to orders of Court – found to be flagrant challenge to authority of Court – husband’s behaviour warrants significant penalty – need for Court to ensure its orders are obeyed – husband to be sentenced to imprisonment for 1 calendar month, to be suspended upon husband complying with all parenting orders and injunctions of Court for 12 months

FAMILY LAW – CONTRAVENTION – penalty – contravention by husband showing serious disregard for his obligations found proven beyond reasonable doubt – consideration of available penalties pursuant to s 70NFB – husband to pay a fine of $3,300 within 28 days – court to consider order for costs

FAMILY LAW – CONTRAVENTIONS – penalty – two further contraventions proven on balance of probabilities – consideration of available penalties pursuant to s 70NEB – restriction on Court’s ability to place husband on bond following Full Court’s decision in Elspeth & Peter;  Mark & Peter and John & Peter (2007) FLC 93-341 – court to consider order for costs

FAMILY LAW – COSTS – costs sought by wife and Independent Children’s Lawyer – consideration of s 70NFB(1)(a) with respect to contravention showing serious disregard – consideration of exception to mandatory order for costs pursuant to s 70NFB(1)(a) – not satisfied order for costs would not be in child’s best interests – consideration of s 117 – order for husband to pay costs of wife and Independent Children’s Lawyer

FAMILY LAW – PROPERTY SETTLEMENT – assessment of contributions and relevant s.75(2) matters – just and equitable orders – superannuation splitting orders

FAMILY LAW – CHILDREN – 6 year old girl – Allegation of sexual abuse – Counter-allegation of alienation – Heard evidence in relation to sexual abuse – Positive finding of sexual abuse – Matter stood over for parties and ICL to consider consequences

FAMILY LAW – PROCEDURAL – Case management

FAMILY LAW – CHILDREN – with whom a child spends time – best interest of the child – travel overseas – security for return of the child to Australia

FAMILY LAW – INTERIM FINANCIAL – payment of credit cards

FAMILY LAW – MAINTENANCE – interim spousal maintenance

FAMILY LAW – INJUNCTIONS – restraint from assigning sum of money to children; restraint against removing trustee / appointing/substituting alternate trustee; from selling, assigning transferring or encumbering or dealing in anyway with property; from destroying, moving or dealing in any way with records

FAMILY LAW – PROPERTY – exclusive use of motor vehicle

FAMILY LAW - CHILDREN - HAGUE CONVENTION - Application for return of children to New Zealand - Alleged wrongful removal by mother in breach of father’s rights of custody under New Zealand law – Mother’s removal of children from New Zealand to Australia in breach of father’s right of custody to determine children’s place of residence – Consent – Mother failed to discharge onus that father consented to the removal or acquiesced in relation to it – Children’s objection to return – Mother established the children’s objection and that in relation to each child the objection showed a strength of feeling beyond the mere expression of a preference or ordinary wishes and that each had attained an age and degree of maturity at which it is appropriate to take into account his or her views – Discretion to refuse to make a return order enlivened – Discretion exercised to refuse to make a return order

FAMILY LAW – PROCEDURAL – Interim applications

FAMILY LAW – PROCEDURAL – Interim application

FAMILY LAW – PROCEDURAL – Interim orders

FAMILY LAW – COSTS

FAMILY LAW – COSTS – Between parties            

FAMILY LAW – PROPERTY – Value of Property – Conflicting evidence

FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits  

FAMILY LAW – PROPERTY – Value of Property – Conflicting evidence

FAMILY LAW – PROPERTY SETTLEMENT – Final property consent orders s 79(2)

FAMILY LAW – CHILD SUPPORT – Consent agreement

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests – Cultural issues 

FAMILY LAW – PROPERTY – Settlement in relation to marriage

FAMILY LAW - PROPERTY - Husband’s failure to attend hearing - Very modest pool of assets - Given that fact and the relevant prospective adjustments, the husband’s failing to contribute to the support of the two children, all assets transferred to wife noting that the husband owed some $15,000 in court ordered costs

FAMILY LAW - PROPERTY INTERIM - Value of property – Injunction

FAMILY LAW - SPOUSAL MAINENANCE – application for discharge – dismissed

FAMILY LAW - SECURITY FOR COSTS – application for Barro order – allowed

FAMILY LAW – COSTS – Application for extension of time to seek costs

FAMILY LAW – CHILDREN – Application for consent orders –Parties in a same-sex relationship – Meaning of parent – Artificial conception procedure – Each party is biological parent to a child – Order to be made in favour of a parent and a person concerned with care welfare and development for each child – In best interests for children to live with both parties – Consideration of parental responsibility – Orders sought seem to confine parental responsibility to long term issues – Parties to consider reasons and draft orders

FAMILY LAW – PROCESS AND PROCEDURE – Applications (part-heard as to one application) to adduce evidence by experts other than single experts

FAMILY LAW – CHILD ABDUCTION –  Jurisdiction under s 111B of Family Law Act 1975 (Cth) and regulation 16 of Family Law (Child Abduction Convention) Regulations 1986 (Cth) to make a return order - Whether the retention of the child from New Zealand in Australia was wrongful - Whether the child was habitually resident in New Zealand immediately before the alleged wrongful retention

FAMILY LAW – CHILDREN – With whom a child spends time – Interim Application – What time to be spent with each parent and in what circumstances – Allegations of father exposing children to pornography – Mental health of father as a risk to the children

FAMILY LAW – PROPERTY 

FAMILY LAW – CHILD ABUSE – Sexual abuse by father alleged – Abuse found not proven

FAMILY LAW – CHILDREN – With whom a child lives – Child to live with maternal grandmother

FAMILY LAW – CHILDREN – WITH WHOM A CHILD LIVES – In October 2005 parties consented to final orders that provided for the children to live half time with each parent and change overs to occur weekly – This arrangement did not work as the parties have not established a reasonable level of communication and are not parenting cooperatively – Eight months after the final orders were the father filed an Application seeking to change the orders wanting to keep the week about arrangement but change the way it was implemented – Mother wants to change the arrangement so that the children live mainly with her and spend time with the father – Rule in Rice and Asplund – If the week about arrangement continues or the children live with the father it is more likely that the father’s controlling behaviour will lead to further proceedings concerning the children – Ordered that the children live with the mother and spend time with the father each alternate weekend and half of school holidays

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Presumption of equal shared parental responsibility – Father’s controlling behaviour and the parents’ poor communications and relationship dictate that it is contrary to the children’s interests for the parties to have equal shared parental responsibility – It is in the children’s best interests that the father have responsibility for day to day decisions when they are in his care and otherwise the mother have sole parental responsibility

FAMILY LAW – CHILDREN – CHILD’S VIEWS – The children expressed a preference for a week about arrangement of equal shared care – Because of the children’s exposure to the litigation and the competing proposals the children’s expressed preferences are not free choices but a product of that exposure – Because of their ages the expressed preference does not involve any careful understanding or consideration by the children of all the short term and long term implications of the options – Little weight can be given to the children’s expressed preferences for living arrangements

FAMILY LAW – CHILD ABUSE – Emotional abuse – Father’s behaviour that exposes the children to or involves them in controlling behaviour by him, his conflict with the mother and the step-father and the litigation is emotionally abusive

FAMILY LAW – PRACTICE AND PROCEDURE - Subpoena – production of documents – objection – relevance

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child communicates – Best interests of a child – Supervised Contact

FAMILY LAW – PRACTICE AND PROCEDURE - Adjournment to the Defaulters’ List of parenting case which was not ready to proceed – matter to be listed for final hearing in March 2008 – further family report to be considered at telephone mention in December 2007. 

FAMILY LAW - PROPERTY – Interim financial application in Judicial Duty List -   Opportunity taken to negotiate an overall resolution - Agreement met and final consent orders made with removal from the Active Pending Cases List.

FAMILY LAW – PROPERTY – Settlement in relation to marriage

FAMILY LAW – CHILDREN – With whom the child lives – With whom the child spends time – Best interests of the child – Family Violence

FAMILY LAW - CHILDREN – With whom the child Lives - With whom a child spends time - Child abduction - Non-compliance with orders for return of child

FAMILY LAW - PROPERTY - Settlement in relation to marriage

FAMILY LAW – COSTS – Between solicitor and client

FAMILY LAW – PROPERTY – Interim orders – Sale before trial – Proceeds to be held in trust – Proceeds to be used to meet legal and expert witness costs

FAMILY LAW – PROPERTY SETTLEMENT – Concurrent proceedings in Australia and the UK – Application of clearly inappropriate forum test

FAMILY LAW – PROCESS AND PROCUDURE – Mother to appear by telephone

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests

FAMILY LAW – PROPERTY – Consent orders - S79(2) of the act

FAMILY LAW – ADOPTION – Application seeking leave to commence adoption proceedings pursuant to s 60G – where biological father has no involvement in child’s life – effect of 61E on parental responsibility if leave granted – whether child’s best interests are paramount consideration under s 60G – whether in best interests of child to grant leave – leave to commence proceedings granted

FAMILY LAW – PROPERTY ORDERS - S79(2) Just and equitable

FAMILY LAW – PROPERTY – Value of property – Expert evidence – Application to adduce further valuation evidence - leave refused

FAMILY LAW – CHILDREN – With whom a child lives – Urgent interim proceedings – In March 2006 final parenting orders were made providing for the children to live half the time with each parent with changeovers to occur weekly – Those arrangements were not implemented insofar as the children did not spend the time with their father that the orders provided – Mother has been unable to facilitate shared care although she consented to an order for that arrangement – Mother’s attitude is that she wishes to minimise the time the children spend with their father and she is developing an enmeshed relationship with the children which will inhibit their emotional and social development – Interim orders are made for the children to live with the father

FAMILY LAW – CHILDREN – With whom a child spends time with – Orders are made for the parties to contact Rainbows Contact Centre within 48 hours and the children are to spend such time with the mother as the contact centre agrees to supervise and no other time

FAMILY LAW – CHILD ABUSE – Emotional abuse – The children are being subjected to emotional abuse in the mother’s household

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Maternal grandmother and maternal grandfather are joined as second and third respondents to these proceedings

FAMILY LAW – CHILDREN – Parentage testing

FAMILY LAW – ORDERS – Stay – Husband applied to have the consent orders made in February 2008 stayed pending his application to have those consent orders set aside – Stay application dismissed

FAMILY LAW – ENFORCEMENT OF ORDERS – Husband refused to comply with consent orders made in  February 2008 as well as orders made in July 2006 requiring him to pay half the fees of the single expert – Wife seeks to have those orders enforced – Application granted

FAMILY LAW – COSTS – Circumstances justifying the order – Husband’s proceedings are run without merit and he has repeatedly failed to comply with court orders and as a result the wife was forced to incur costs  – Husband ordered to pay $35000 to the wife towards her costs of opposing his stay application and $75000 towards her costs of the enforcement proceedings

FAMILY LAW – COSTS – Security – Wife seeks security for her Application for Summary Dismissal of Application under Sec.79A of the Family Law Act.  Application granted.

FAMILY LAW – ORDERS – Contravention – Reasonable excuse 

FAMILY LAW – CHILDREN – Best interests – Whether to delay hearing – Whether there is substantial prejudice against the father

FAMILY LAW –  SPOUSAL MAINTENANCE – Lump sum – Interim – Sale of matrimonial home – Sale of assets including art  

FAMILY LAW – ORDERS – Stay application

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application

FAMILY LAW – PROPERTY – INTERIM PROPERTY SETTLEMENT – application by wife seeking $5 million interim property settlement for costs and disbursements – whether wife has established compelling circumstances – consideration of history of proceedings and costs incurred by wife – not satisfied are compelling circumstances justifying provision of funds to pursue allegations of non-disclosure or deficiencies in disclosure by husband – wife needs funds to proceed to trial – assessment of required costs – whether sufficient property to meet legitimate expectations of parties – husband to pay interim property settlement to wife of $1 million

FAMILY LAW – COSTS – application for costs by husband – s 117 – where applicant partially successful – where husband has control of majority of assets and ability to access funds to meet his costs – application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – application of Independent Children’s Lawyer with respect to payment of costs – question of the amount of costs adjourned

FAMILY LAW – PROPERTY – jurisdiction – parties divorced and later resumed cohabitation in a de facto relationship – whether the subsequent property division is a matrimonial cause - meaning of ‘out of the marital relationship’ –Kowalski & Kowalski is binding – not possible to distinguish Kowalski – Court does have jurisdiction to hear the property proceedings – parties to make submissions about granting of leave to apply out of time

FAMILY LAW – INTERIM SPOUSE MAINTENANCE – application to leave to apply out of time pursuant to s 44(3) – leave granted – interim spousal maintenance ordered

FAMILY LAW – ORDERS – Application for stay

FAMILY LAW – PROPERTY – Alteration of property interests

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child

FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest

FAMILY LAW – CHILDREN—Parental responsibility—Interim consent orders—Where Father did  had not attended court for 2 years—Father claimed sought adjournment by fax—Father sought reinstatement of Sunday nights—Passport renewal—Surname issues—Interim orders to remain—Sunday nights reinstated—Passport to be held by court

FAMILY LAW – CHILDREN – Interim Parenting Circumstances

FAMILY LAW – CHILDREN - Best interests – specific issues orders – passport application - application by the father seeking permission to take the children on an overseas holiday – trip opposed by mother – security situation in Bali, Indonesia – DFAT travel advice

FAMILY LAW – COSTS – Consideration of s117(2A) factors - Father filed inappropriate and inadmissible material in support of his application – Father wholly unsuccessful in significant number of his applications – Father to pay costs of mother and ICL in relation to paragraphs of his application in relation to which he was wholly unsuccessful

FAMILY LAW – PROPERTY – Orders to be re-drafted - S79(2) Just and equitable

FAMILY LAW – CHILDREN – Interim

FAMILY LAW –  COSTS –  Relevant factors in the exercise of discretion to make an order for costs

FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to commence proceedings for adoption pursuant to s 60G – Father’s full name and whereabouts unknown – Effect of s 61E on parental responsibility if leave to commence adoption proceedings granted – Leave granted to amend application to add mother as applicant and amend father’s name – Leave granted to amend orders sought and dispense with service on father

FAMILY LAW – PRACTICE & PROCEDURE – Priority hearing – Application refused

FAMILY LAW – CHILDREN – With whom children live – Discussion of the practical application of s 60CC objects and principles - where the mother makes allegations of risk of physical harm from father and father makes allegations of risk of psychological harm from mother – where the parties have no ability to communicate or co-operate – where concerns exist as to the mental health of the mother – where the children need stability and consistency in parenting – where the mother failed to volunteer information of her pregnancy at trial and failed to consider the impact of household composition for the children –where the mother is dismissive of the father’s role in the children’s life – where the father doesn’t appear on the birth certificate and the mother does not call the children by the father’s name - Finding that a significant relationship between mother and children will cause psychological harm for the children - order the children live with the father – order the formal registration of the father on birth certificate – parties to make submissions as to what orders should be made for time spent between mother and children

FAMILY LAW – CHILDREN – Parental responsibility – meaning and definition of parental responsibility – where the presumption of equal shared parental responsibility is not in the children’s best interests – discussion of the significance of making an order for sole parental responsibility – order the father have sole parental responsibility – order the father notify the mother of decisions relating to long term issues

FAMILY LAW – CHILDREN – Allegations of bias and bribery made against report writers – there being no substance to any of the allegations – evidence of the report writers remains untainted by the allegations

FAMILY LAW – ORDERS – Stay

FAMILY LAW – DIVORCE

FAMILY LAW – PROCESS AND PROCEDURE - Adjournment

FAMILY LAW – FINANCIAL – INTERIM – Spousal and child maintenance – Review of Orders of Judicial Registrar – Proper needs of the Wife - Financial Position of the Husband and Capacity to Pay Maintenance – Departure from Child Support Assessment – Poletti Order

FAMILY LAW – PROCEDURE – Case management

FAMILY LAW - PRACTICE AND PROCEDURE - Judicial Registrar - Review of decision

FAMILY LAW - PROPERTY – Settlement in relation to marriage – Value of property

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of Proceedings

FAMILY LAW – CHILDREN – Travel – Passport