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Note: Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case. A breach of the section is a criminal offence. The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.

  • Priceman & Carl [2017] FamCA 316

    28 Feb 2017

    FAMILY LAW – CHILDREN – PARENTING

  • Priceman & Carl (No 2) [2017] FamCA 317

    05 May 2017

    FAMILY LAW – CHILDREN - With whom a child lives - With whom a child spends time - Family violence

    FAMILY LAW – INJUNCTIONS - Protection of child
  • Riemann & Riemann [2017] FamCA 318

    01 May 2017

    FAMILY LAW – PRACTICE AND PROCEDURE –Where the father seeks leave to inspect subpoenaed documents produced by  the organisation providing psychological counselling to the children –Where the children’s psychologist objects to the parties having access to the subpoenaed documents – Consideration of Division 12A of the Family Law Act 1975 (Cth) –Relevance to the proceedings –Where the Court finds that the children were entitled to have their interests properly represented –Where the Court finds that the children’s interests have not been properly represented as a first inspection of the documents produced has not occurred – Orders made for the Independent Children’s Lawyer to have first right of access to the subpoenaed documents to redact material not relevant to the proceedings.

  • Trevi & Trevi [2017] FamCA 321

    18 May 2017

    FAMILY LAW – PROPERTY – final property orders – just and equitable – long marriage of 19 years – contributions during the marriage – where the wife has been the primary carer of the children during the marriage – where the husband made significant financial contributions – where the properties were improved during the course of the marriage – where contributions are assessed as equal – where adjustments made for s 75(2) factors – where the wife is to receive 60 percent of the property pool.

    FAMILY LAW – SPOUSAL MAINTENANCE – where the wife seeks spousal maintenance – where the application for spousal maintenance is dismissed.

    FAMILY LAW – CHILD SUPPORT – where the wife seeks a departure order for periodic and non-periodic child support – where those applications are dismissed.
  • Llewellyn & Llewellyn-Reilly [2017] FamCA 322

    04 Apr 2017

    FAMILY LAW – PROPERTY – leave granted for the wife to institute property proceedings out of time pursuant to section 44(3)

    FAMILY LAW – CHILDREN – wife restrained from leaving the children unsupervised in the company of the wife’s father

    FAMILY LAW – CHILD SUPPORT – departure order
  • Wilkins & Currie [2017] FamCA 323

    07 Mar 2017

    FAMILY LAW – CHILDREN – application for contempt – where the father has made an application that the mother has acted in contempt of court orders – where it is found that the mother has not acted in contempt – where there has been no deliberate defiance of a court order

  • Kingston & Donald [2017] FamCA 324

    18 May 2017

    FAMILY LAW – CHILDREN – Where the mother makes allegations of family violence perpetrated by the father – Where the parties’ elder daughter has made allegations of physical and sexual abuse perpetrated by the father – Where the father has been found not guilty of criminal charges based upon the allegations of the elder daughter – Where the elder daughter is estranged from the father – Where the father seeks to spend time with the parties’ younger daughter and she has expressed a wish to do so – Where the mother has a genuine belief that the father has physically and sexually abused their elder daughter – Where the mother has been diagnosed with post-traumatic stress disorder and persistent depressive disorder – Whether there is wilful blindness on the mother’s behalf in failing to find out details of the elder daughter’s allegations – Where the mother’s reluctance to find out details of the allegations is found to be a result of her current mental disorder, her subjective experience of the father’s behaviour and her feeling guilty, believing she failed to protect her child – Where the mother’s treating psychologist opines that an order for the younger daughter to spend time with the father would have a catastrophic consequence on the mother’s mental health but the single expert disagrees with that opinion – Where there is no unacceptable risk that the father would sexually or physically abuse the child – Where there is an unacceptable risk that the younger child’s primary carer will become emotionally unavailable to the child – Where an order is made for the mother to have sole parental responsibility – Where an order is made for father to spend no time with the parties’ younger daughter until she is 16 years of age at which time he can do so only if the child seeks him out and consents to spending time with the father.

  • Anouihl & Temke [2017] FamCA 325

    18 May 2017

    FAMILY LAW – DECLARATION – Validity of marriage – Where parties subsequent to civil marriage participated in second “religious marriage ceremony” – Where later marriage inadvertently registered – Where declaration that later marriage be declared invalid justified – Declaration made.

  • Johnson & Charles [2017] FamCA 326

    21 Apr 2017

    FAMILY LAW – CHILDREN – interim orders – where the father sought leave to withhold the child from the mother pending final hearing – where the mother sought the child live with her on an interim basis – orders made for the child to spend three weeks with the mother with no contact with the father and thereafter resumption of week-about arrangement

  • Bane & Thompson [2017] FamCA 328

    19 May 2017

    FAMILY LAW – CHILDREN – Interim orders – With whom a child spends time – Best interests of a child – Child’s views – Where oldest child’s anxiety disorder is exacerbated by time spent with her father – Best interests of the child not to spend time with her father – Where it was in the best interests of the younger two children to spend time with their father.

  • Rennie & Rennie [2017] FamCA 329

    19 May 2017

    FAMILY LAW – PROPERTY – Where final judgment is reserved – Where an application is made to re-open property proceedings – Whether the interests of justice will be better served by granting leave to re-open the case – Where leave to re-open is granted for the purpose of admitting a limited amount of evidence.

  • Re: Ashton [2017] FamCA 333

    23 May 2017

    FAMILY LAW – CHILDREN – GENDER DYSPHORIA – Where the applicants are the parents of a child diagnosed with Gender Dysphoria –where the applicants seek a finding that the child is Gillick competent to consent to Stage Two treatment for Gender Dysphoria – where the child’s treating medical experts and parents support the child commencing Stage Two treatment – assessment of whether 17-year-old child is Gillick competent to consent to the medical treatment – finding that the child is competent to consent and authorised to make his own decision about Stage Two treatment.

  • Orson & Hemmingway [2017] FamCA 320

    04 May 2017

    FAMILY LAW – NULLITY – leave granted for the applicant to proceed on an undefended basis – decree of nullity ordered on the ground that as at the date of marriage the respondent was lawfully married to some other person

  • Medapati & Revanka (No 2) [2017] FamCA 319

    17 May 2017

    FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband has commenced proceedings in Malaysia – Where the wife has commenced proceedings in Australia – Where the husband seeks that the proceedings in this court be stayed – Where the wife seeks an anti-suit injunction to restrain the husband from pursuing proceedings in Malaysia – Where it is found that this court is not a clearly inappropriate forum – Where the husband’s stay application is dismissed – Where it would be oppressive and vexatious to permit the husband to continue with litigation in Malaysia – Where the Wife’s application for an anti-suit injunction is granted.

    FAMILY LAW – PRACTICE AND PROCEDURE – Where the Husband seeks an extension of time in relation to disclosure obligations – Where an extension of time is granted.

  • Iqbal & Kadir [2017] FamCA 315

    08 May 2017

    FAMILY LAW – PRACTICE AND PROCEDURE – Service

    FAMILY LAW – NULLITY  – Whether consent obtained by fraud – Application dismissed.

  • George & Woolworth [2017] FamCA 314

    05 Apr 2017

    FAMILY LAW – PROPERTY SETTLEMENT – consent orders – leave granted pursuant to section 44(6) of the Family Law Act 1975 (Cth) – just and equitable division of property

  • Burke & Hollis [2017] FamCA 313

    04 Apr 2017

    FAMILY LAW – PROPERTY SETTLEMENT – consent orders – leave granted pursuant to section 44(6) of the Family Law Act 1975 (Cth) – just and equitable division of property

  • Roney & Goodwin and Anor [2017] FamCA 312

    17 May 2017

    FAMILY LAW – PROPERTY SETTLEMENT – consent orders – leave granted pursuant to section 44(6) of the Family Law Act 1975 (Cth) – just and equitable division of property

  • Norburn & Norburn [2017] FamCA 311

    16 May 2017

    FAMILY LAW – REFUSAL OF INJUNCTION – COSTS – Transfer of proceedings to another registry – Transfer of proceedings to federal circuit court.

  • Mohr & Sanders [2017] FamCA 310

    16 May 2017

    FAMILY LAW – CHILDREN – Where final orders were previously made in 2009 for the parties to have equal shared parental responsibility and for the children to spend time with the father – Where the father seeks orders for parental responsibility in relation to education and for the mother to have parental responsibility for medical and religious matters and for the children to spend time with him four nights and one afternoon a fortnight – Where the mother seeks orders for sole parental responsibility and for the children to spend two nights every fortnight with the father – Where the father previously had issues with his mental status –Where the mother genuinely holds the belief that she has been the subject of coercive and controlling behaviour by the father – Where that belief is not reasonably held – Where the children have expressed views that they dislike the morning travel involved in spending time with the father – Where the father has indicated his ability to assist with children’s educational progress – Where communication between the parties in relation to matters involving the children and in front of the children is very poor and they would be unable to reach a joint decision about major long term issues – Where orders are made for the father to have parental responsibility in relation to the children’s education and for the mother to have parental responsibility for medical and religious matters but the parties are to make a genuine effort to come to a joint decision about any such issue – Where orders are made for the children to spend four nights and one afternoon a fortnight with the father.

  • Lenski & Lenski [2017] FamCA 309

    08 May 2017

    FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Where the parties jointly seek an Application for expedition of the final hearing of the proceedings – Application granted.

    FAMILY LAW – PROPERTY – Where the wife seeks sole use and occupancy of the matrimonial home – Where the parties remained living separated under the one roof – Where the parties own the property as tenants in common – Where both parties seek to receive the property as part of the final property settlement – Application dismissed.

  • Hillman & Hillman [2017] FamCA 308

    08 May 2017

    FAMILY LAW – CHILDREN –  With whom a child spends time – Best interests – Where orders made by consent for supervised sibling contact – Where the Applicant seeks to remove the child from the Commonwealth of Australia for holiday travel during a school holiday period – Application dismissed.

  • Crowther & Tothill [2017] FamCA 307

    16 May 2017

    FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen proceedings – Where the mother seeks to adduce evidence of events following trial – Where the father and the Independent Children’s Lawyer oppose the application – Where the evidence is not likely to impact the result of the parenting proceedings – Where it is not in the best interests of the child to delay the proceedings further – Application dismissed.

  • Trent and Anor & Calder [2017] FamCA 306

    08 May 2017

    FAMILY LAW – ADOPTION – Leave to commence proceedings – Where location of the Respondent Father is unknown – Where no contact with the Respondent Father for 12 years – Where previous history of family violence – Where service dispensed with –Application granted.

  • Mitchell & Mitchell [2017] FamCA 305

    16 May 2017

    FAMILY LAW – INTERIM PROCEEDINGS – Unacceptable risk – Injunction for personal protection

  • Independent Children's Lawyer & Seidler [2017] FamCA 304

    15 May 2017

    FAMILY LAW – COSTS – Application by the Independent Children’s Lawyer – Where the mother has agreed to pay her portion of the Independent Children’s Lawyer’s costs – Where the father objects to paying his portion – Where the father has the financial capacity to contribute to the costs of the Independent Children’s Lawyer – Where the mother’s conduct in the proceedings is questionable – Where the mother has been wholly unsuccessful and the father wholly successful – Where the circumstances do not justify an order for costs – Orders made dismissing the application for costs. 

  • Giberti & Rollins and Anor [2017] FamCA 303

    15 May 2017

    FAMILY LAW – CHILDREN – PARENTING – Interim proceedings – Best interests of the child – Where the paternal grandfather seeks orders that he spend time with the child – Where the father supports the orders sought by the paternal grandfather – Where the mother opposes the child spending time with the paternal grandfather – Where the mother alleges that the paternal grandfather poses an unacceptable risk of harm to the child – Where the paternal grandfather is not an unacceptable risk of harm to the child – Where there is insufficient evidence to make an order for the paternal grandfather to spend time with the child – Application dismissed.

  • Mitzou & Roubanis [2017] FamCA 302

    15 May 2017

    FAMILY LAW – PROPERTY – Final Orders – undefended hearings – where wife is bankrupt – where leave was granted for the wife to participate in these proceedings – where wife failed to participate in the proceedings – where no responding trial documents filed by the wife – where the Court ordered for the matter to proceed on an undefended basis.

    FAMILY LAW – PROPERTY – Final Orders – just and equitable – where parties’ liabilities substantially exceed parties’ assets – where husband willing to accept business liabilities of the parties – where husband seeks that the wife transfer all her shares in the business to him – where just and equitable for husband to retain control of the business.

  • Keane & Rinaldi (No 2) [2017] FamCA 301

    09 May 2017

    FAMILY LAW – PROCESS AND PROCEDURE

  • Keane & Rinaldi [2017] FamCA 300

    11 May 2017

    FAMILY LAW – PROCESS AND PROCEDURE

  • Gomez & Easton (No 2) [2017] FamCA 299

    12 May 2017

    FAMILY LAW – COSTS – Where the parties filed written submissions – Where the father submits that the mother was wholly unsuccessful – Where the father submits the conduct of the mother warrants an order for costs – Where the application for costs is dismissed.

  • Falkner & Stokes [2017] FamCA 298

    23 Feb 2017

    FAMILY LAW – PRACTICE AND PROCEDURE – Injunctive relief to preserve property – not a valuation exercise – wife to elect to take named property at equivalent of genuine offer to purchase as part of her entitlement to final alteration of property interests – costs – costs reserved

  • Occan & Melot [2017] FamCA 297

    28 Apr 2017

    FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

  • Costello & Costello [2017] FamCA 296

    12 May 2017

    FAMILY LAW – PARENTING – INTERIM ORDERS – where interim orders where revisited – where mother claims father presents an unacceptable risk of harm – where mother seeks time to be supervised – where the father has permitted the youngest child to sleep in his bed, contrary to previous orders – where the father has not been complying with his medication regime – whether father will comply with orders

  • Boyle & Zahur [2017] FamCA 295

    11 May 2017

    FAMILY LAW – CHILDREN- Application for international relocation -  Where application for relocation is predicated on the parties cooperating -  Where on the evidence the scope for cooperation is minimal  -  Where international relocation is found likely to be detrimental to a meaningful relationship with both parents - Where application for relocation is dismissed.

  • Bentleigh & Bentleigh [2017] FamCA 294

    11 May 2017

    FAMILY LAW – CHILDREN – Competing applications for the father to spend time with the children, aged 8 and 6 – Where there are allegations of sexual abuse of the children – Where two expert reports were in evidence – Where the Court cannot be satisfied that the children were sexually abused by their father – Where any risk of sexual abuse can be ameliorated and does not outweigh the benefit of the children having a meaningful relationship with their father – Where the Court finds family violence was perpetrated against the mother but not the children – Consideration of s 60CC factors – Consideration of the parenting capacity of each parent where the father has never had care of the children on his own – Where the mother has a cognitive impairment – Orders made for the children to live with the mother and the children to spend unsupervised time with the father – Where the parties agree to have equal shared parental responsibility.

    FAMILY LAW – PRACTICE AND PROCEDURE – Application for the mother to be recalled for cross-examination – Where the mother had been cross-examined for two days – Where there was limited time allocated for the hearing of the matter – Where it was not in the interests of justice to allow the mother to be recalled – Application refused.

    FAMILY LAW – PROPERTY – Where the husband made greater contributions to the marriage by way of financial contributions – Where the mother was the primary homemaker and carer of the children – Where the mother suffers from a cognitive impairment and has a mental illness – Where the mother receives the disability pension and has no prospects of gainful employment – Section 75(2) adjustment in the wife’s favour of 15 per cent – Where the wife is to receive 55 per cent of the property pool – Where the parties consented to the wife receiving 50 per cent of the husband’s superannuation entitlements.

  • Baumann and Rushbrooke & Ors (No 2) [2017] FamCA 293

    10 May 2017

    FAMILY LAW – COSTS - Where the wife joins the second, third and fourth respondents to the proceedings – Where the substantive proceedings between the husband and the wife were resolved by consent on the third day of hearing –Where the matter did not proceed to a final determination by the Court – Where the second, third and fourth respondents seek costs against the wife – Consideration of section 117(2A) – Where the application for costs is dismissed

  • Viduka & Viduka [2017] FamCA 292

    10 May 2017

    FAMILY LAW – CHILDREN – Final orders – where mother seeks to extend her time with the child –where mother says previous consent orders were not made with her consent – where mother has a history of family violence – where best interests of the child considered – where Court considered it appropriate for mother to spend graduating time with the child – orders made.

  • Grant & Grant [2017] FamCA 291

    10 May 2017

    FAMILY LAW – CHILDREN – Interim orders – with whom a child spends time – overnight time – where husband seeks overnight time for the parties’ daughter aged 4 – where the wife opposes – where the wife says the child will not cope with separation – where the child already spends substantial time with the father each Saturday and Sunday –where the Court considers the evidence of the family consultant that the child should not have overnight time – where the Court considers it is the best interest of the child to spend overnight time with the husband – Husband’s application allowed.

    FAMILY LAW – CHILDREN – Interim orders – international travel – where the wife is an American citizen and seeks to take the children to the United States of America and Jamaica over the Christmas 2017 holidays – where the husband opposes the application – where the Court considers that the United States of America and Jamaica are Hague Convention countries – where the Court balanced the interests of the children having a meaningful relationship with the wife’s family and their relationship with the husband – where international travel allowed – Wife’s application allowed.

  • Prentice & Wilfred [2017] FamCA 290

    11 May 2017

    FAMILY LAW – CHILDREN – With whom the child shall live – Where the mother makes allegations that the child was sexually abused by the father – Where the mother recorded the child’s statements – Where the mother claims the child will be at an unacceptable risk of harm in the father’s care – Where no unacceptable risk was found – Where the mother orchestrated the allegations of sexual abuse – Where the mother makes false allegation of rape against the father – Where the risk of psychological harm if the child remains with the mother is unacceptable – Where the child shall live with the father – Where the father has sole parental responsibility of the child.

  • Tsocas & Rilak [2017] FamCA 289

    11 May 2017

    FAMILY LAW – COSTS – Application by the father for costs on a party and party basis – Where the mother was aware of the father’s application for costs despite no costs assessment being filed – Where the mother was wholly unsuccessful in her Contravention Application – Where the mother’s failure to disclose information in relation to her Contravention Application is relevant in assessing costs – Orders made for the mother to pay the father $5,000 by way of costs.

  • Kyriazis & Kyriazis [2017] FamCA 288

    11 May 2017

    FAMILY LAW – PROPERTY – Settlement in relation to marriage – Undefended – Where the husband has not participated in the proceedings – Where the Court is satisfied that the wife has satisfied service requirements – Leave given to the wife for her application to be heard as undefended proceedings – Where the husband and wife were married for 33 years and have two adult children – Where the Court is unable to make a finding about contributions with precision – Where the relevant matters pursuant to s 75(2) of the Family Law Act 1975 (Cth) are the wife’s poor state of health and the husband’s failure to participate in the proceedings and make financial disclosure – Where it is appropriate to make an adjustment in favour of the wife – Orders made in accordance with the wife’s application.

  • Deane & Pace (No 2) [2017] FamCA 287

    10 May 2017

    FAMILY LAW – COSTS – Application for costs of contravention application – Where the mother was found to have contravened parenting orders – Where the mother placed no evidence before the Court of her financial circumstances – Where the proceedings were necessitated by the mother’s failure to comply with previous consent orders – Costs ordered – Where there is no basis asserted on which costs should be assessed other than on a party and party basis – Where costs can also be ordered on a finding of contravention pursuant to s 70NEB(1)(f) of the Family Law Act 1975 (Cth) – Mother ordered to pay a specified amount towards the father’s costs.

  • Grant & Aiden [2017] FamCA 286

    10 May 2017

    FAMILY LAW – COURTS AND JUDGES – Disqualification for bias – application by the mother that the trial judge be disqualified for actual bias-actual and apprehended bias considered-bias is claimed due to trial judge not allowing mother to ask questions going to the matters in evidence in relation to contravention proceedings already determined-actual bias claimed due to trial judge not permitting evidence to be adduced prior to consent orders being made in relation to the sexual relationship between the father and mother  – where the mother has failed to identify anything said or done by the trial judge that might indicate that she has decided the proceedings on anything other than its factual or legal merits –orders made refusing the mother’s application

  • Chen & Chen and Ors (No 2) [2017] FamCA 285

    05 May 2017

    FAMILY LAW – PRACTICE AND PROCEDURE – Pleadings- – Where there are multiple parties and properties-where the wife seeks orders against third parties- where the wife has filed a Statement of Facts and Contentions _Whether the wife should be required to file a  Statement of Claim in accordance with the Rules of the Supreme Court of Victoria-procedural fairness- distinction made between the merits of an application versus whether it sufficiently identifies the nature and basis of a claim-where it is found that the wife’s lack of knowledge and discovery has prevented a more detailed Statement of Facts and Contentions

  • Gadde & Gadde and Anor [2017] FamCA 284

    01 May 2017

    FAMILY LAW – CHILDREN – Permission to conduct a case

  • Whitehall & Warren [2017] FamCA 283

    10 May 2017

    FAMILY LAW – CHILD ABUSE – Sexual abuse – Where the youngest child makes allegations of sexual assault against the eldest child – Where there are reports of ongoing sexualised behaviour of the eldest child – Where JIRT applied for an Apprehended Domestic Violence Order to protect the youngest child – Decided the youngest child has been sexually abused and emotionally harmed and must be kept safe, away from the eldest child  –  Ordered the parties are restrained from allowing the youngest child to have contact with the eldest child

    FAMILY LAW – CHILDREN – With whom the child lives – Where the youngest child has come to harm during periods in the father’s care – Where the father has an impaired capacity to meet the needs of the children – Where the father prioritises reconciliation of the family over the safety of the youngest child from sexual assault – Where the Family Consultant assesses the father as not a danger to the children but rather lacking protective capacity – Ordered the youngest child live with the mother

    FAMILY LAW – CHILDREN - With whom the child lives – Child’s views – Where the middle child opposes seeing the mother at all – Decided the views of a 16 year old within developmentally normal range cannot be disregarded -  Decided the middle child is entitled to continue with the personal and educational stability he has achieved through the choice of one parent over the other – Ordered the child live with the father

  • Na & Tiu [2017] FamCA 282

    01 May 2017

    FAMILY LAW – DE FACTO RELATIONSHIPS – Where the parties disputed whether they were ever in a de facto relationship – Where both parties were married to other persons at the commencement of the relationship – Where the parties never cohabited –  Where the relationship had no public notoriety – Where the respondent remains married to her husband and that marriage is not an empty shell – Where the parties did not combine their resources in a concerted effort to mutually improve their financial positon – Declared a de facto relationship never existed between the parties

    FAMILY LAW – ORDERS – Discussion of the form the orders should take – Where the respondent sought refusal of the declaration sought by the applicant – Where simple dismissal of the specific application for declaration would not necessarily preclude a fresh application that a de facto relationship existed between different dates – Declared pursuant so s 90RD of the Family Law Act that the parties were never in a de facto relationship

  • Merton & Merton [2017] FamCA 281

    01 May 2017

    FAMILY LAW – PROPERTY SETTLEMENT – Setting aside orders – Where the parties consensually entered into property settlement orders, a Binding Financial Agreement, and a Deed of Release to sever their financial affairs – Where the husband sought the property settlement orders be set aside pursuant to s 79A(1)(a) of the Family Law Act – Where the husband failed to prove the wife suppressed relevant information – Where, even if relevant information was suppressed, the husband failed to prove it caused a miscarriage of justice – Decided the husband’s application to set aside orders should not succeed – Ordered the entirety of the husband’s application is dismissed

  • Narkovic & Sotos [2017] FamCA 280

    10 May 2017

    FAMILY LAW – PROPERTY – Where the husband filed an Initiating Application seeking that consent orders be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the wife filed an Application in a Case for summary dismissal of the husband’s Application – Where the wife sought security for costs in the alternative - Where there was no reasonable likelihood of success of the 79A application – Where the Initiating Application is dismissed summarily – If the Initiating Application were not dismissed an order for security for costs would be made.

  • Beddoe & Turnley [2017] FamCA 279

    18 Apr 2017

    FAMILY LAW – PROPERTY SETTLEMENT – consent orders – leave granted pursuant to section 44(6) of the Family Law Act 1975 ( Cth) – just and equitable division of property

  • Huffman & Gorman [2017] FamCA 278

    05 May 2017

    FAMILY LAW – COSTS – Where the husband seeks orders that the wife pay his costs of substantive parenting and property proceedings on an indemnity basis – Where the final orders were appealed – Where the wife was not wholly unsuccessful in her appeal of parenting orders – Where final property orders were not disturbed on appeal – Where the wife was substantially unsuccessful in regards to property orders – Where the current financial circumstances of each party are unclear – Where each party alleges the other engaged in conduct that added to the time and cost of proceedings – Where there are no exceptional circumstances to justify indemnity costs – Where circumstances do not justify an order for the wife to pay the husband’s costs in regard to parenting proceedings – Where circumstances justify an order for the wife to pay the husband’s costs in regards to property proceedings as agreed or assessed.

  • Pitney & Pitney [2017] FamCA 272

    02 May 2017

    FAMILY LAW – INTERIM – Registered maintenance liability in a reciprocating jurisdiction – Where the applicant seeks an order to suspend the collection of spousal maintenance arrears and child support arrears pending determination of the substantive application – Where the application is dismissed.

  • Libbert & Libbert [2017] FamCA 271

    28 Apr 2017

    FAMILY LAW – PROPERTY –Where parties married for approximately fifteen years and have two children –Where the Court finds the parties’ contributions as equal –Where the Court finds section 75(2) factors favour an adjustment of 20 per cent in favour of the wife due to the significant disparity in the future income-earning potential of the parties –Orders made for the parties to cause payment to the husband and wife respectively of sums $196,606 and $1,770, 159 from a controlled monies account –Orders made for $200,000 to be held in the controlled monies account

  • Gresham & Gresham [2017] FamCA 270

    02 May 2017

    FAMILY LAW – CONTRAVENTION – Where the father is found to have contravened orders without reasonable excuse on four counts – Where the parties are ordered to complete a post-separation parenting orders program – Where the application is otherwise dismissed.

    FAMILY LAW – PARENTING – INTERIM ORDERS – Variation – Where interim orders regarding the mother’s telephone communication with the children are varied.

  • Re: Jaden [2017] FamCA 269

    02 May 2017

    FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURE – Gender Dysphoria – Where the applicants seek a finding that the child is Gillick competent to consent to Stage 2 treatment for Gender Dysphoria – Where the child’s treating doctors opine that the child is not Gillick competent to fully understand the proposed health risks – Where the Court is of the view that the child is Gillick competent and can consent to the proposed treatment – Where the Court is otherwise satisfied that Stage 2 treatment is in the child’s best interests.

  • Trustees of the Bankrupt Estate of Sresbodan & Sresbodan [2017] FamCA 268

    27 Apr 2017

    FAMILY LAW – PROPERTY SETTLEMENT – Interest on unpaid money – Where the trustees in bankruptcy seek an order for the payment of interest on three sums payable to them by the husband – Whether the orders for the payment of the sums have been made in proceedings under the Family Law Act 1975 (Cth) (“the Act”) and whether s 117B therefore applies – Where the orders for payment have been made in favour of a creditor of the husband and out of the husband’s share of funds held in a controlled monies account – Where the orders for payment are orders made in proceedings under the Act – Whether the discretion conferred by s 117B of the Act should be exercised in circumstances where the trustees will already receive interest on their share of the funds in the controlled monies account, albeit at ordinary bank rates rather than the rates prescribed in r 17.03 of the Family Law Rules 2004 (Cth) – Where it is not appropriate to make an order that the trustees receive interest at that rates prescribed in r 17.03 – Application dismissed.

  • Merrill & Burt (No 2) [2017] FamCA 267

    01 May 2017

    FAMILY LAW – PROPERTY – SPOUSAL MAINTENACE – Interim – Whether husband has need for spousal maintenance and wife has capacity to maintain husband – Where consideration given to wife’s limited income – Where Court held wife has capacity to maintain husband arising from capital – Application allowed.

    FAMILY LAW – EVIDENCE – PROCEDURE –Where husband seeks spousal maintenance pursuant to pursuant to s 90SG of the Family Law Act 1975 (Cth) – Where wife opposes application – Where Court considers the application is not ‘urgent’ – Where it would be more appropriate to make an order for interim spousal maintenance pursuant to pursuant to s 90SF of the Act.

  • D Attorneys & Sresbodan and Ors [2017] FamCA 266

    27 Apr 2017

    FAMILY LAW – APPLICATION IN A CASE – ENFORCEMENT – Where the husband’s former lawyers seek the enforcement of orders to obtain payment in satisfaction of a Costs Assessment Order made in their favour – Where the lawyers contend that r 20.07(d) of the Family Law Rules 2004 (Cth) gives the court the power to directly order a payment to them from a controlled monies account – Where there is doubt as to whether the court has the jurisdiction to make such an order – Where the order can be enforced by the lawyers asking the court to issue a Third Party Debt Notice – Application for the court to issue a Third Party Debt Notice allowed.

    FAMILY LAW – APPLICATION IN A CASE – INTERLOCUTORY ORDERS – Where the applicant husband seeks a variety of interlocutory orders – Where the court has no jurisdiction to make the orders sought – Application dismissed.


  • Koruba & Furst [2017] FamCA 265

    01 May 2017

    FAMILY LAW – CHILDREN – Best interests – Change of name – Where there is one child who is 18 months of age – Where during the final hearing consent orders were made to permit the mother to relocate overseas with the child – Where the remaining issue in dispute is the father’s application to change the child’s middle name to include an additional middle name – Where the relevant statutory considerations are s 60CC(2)(a), s 60CC(3)(g) and s 60CC(3)(m) of the Family Law Act 1975 (Cth) – Where it is in the best interests of the child for his name to be changed to include an additional middle name.

    FAMILY LAW – COSTS – Application by the Independent Children’s Lawyer (“ICL”) that each parent pay half of the costs of the ICL – Where the Court is of the view each parent has the financial capacity to comply with an order for costs – Where neither party has been wholly successful in the proceedings – Where it is just that a costs order be made – Order made that the parents each pay one half of the costs of the ICL.
  • Meekin & Cline [2017] FamCA 264

    28 Apr 2017

    FAMILY LAW – CHILDREN – Interim –Where the wife alleges that she was subject to family violence and that the presumption under s 61DA of the Family Law Act 1975 (Cth) does not apply – Where an order is made pending further order for the wife to have sole parental responsibility for the children on the condition that she consult the husband prior to making a decision – Where the wife seeks orders for the children to spend supervised time with the husband due to issues with his mental health, drug and alcohol use and capacity to care for the children – Where the husband previously expressed suicidal ideation – Where an order is made for the husband to spend supervised time with the children until he provides a written report from a psychiatrist advising that he does not pose a risk to the children if left unsupervised in his care or until further order of the court if the wife relists the matter having received the report from the husband’s psychiatrist – Where a condition is imposed for the husband not to consume alcohol eight hours prior to him having the children in his care – Where an order is made for electronic communication – Where the wife’s application to take the children out of Australia on two specific occasions is dismissed.

  • Bondelmonte & Bondelmonte [2017 ] FamCA 263

    28 Apr 2017

    FAMILY LAW – CHILDREN – Interim – Whether an order should be made requiring the return of two boys from New York for the purposes of a family report – Where an order is made suspending an order for the return of the two boys to Australia – Where an order is made for the two boys to return to Australia for the purposes of a family report – Where the matter is further listed to consider whether an order should be made for the husband to attend the interviews for a family report in person in Australia – Where an order is made pursuant to s 11E of the Family Law Act 1975 (Cth) for a family consultant to provide an opinion as to whether or not there would be any utility in conducting interviews for a family report by way of electronic means between New York and Sydney if the two boys and/or the husband do not return to Australia – Where the husband’s application for the wife, youngest child and family consultant to travel to New York for the purposes of a family report is dismissed – Where the wife sought an order be made for a limited validity passport for one trip to and from the United States – Where no such order can be made – Where order made for issue of passports upon conditions.

  • Trevor & Denton [2017] FamCA 261

    27 Apr 2017

    FAMILY LAW – PARENTING – Interim hearing – Where the mother has passed away – Where the paternal grandparents given leave to intervene – Where the applicant maternal half-sister has withdrawn from proceedings – Where there are risks of harm to the children in the care of the sister or the father – Where there are issues of family violence in the sister’s household – Where the father is currently homeless – Where the father currently resides at a motel with his partner – Where the father is a daily user of cannabis – Where the father has a terminally ill pregnant partner – Where the Department of Family and Community Services has declined to intervene – Where orders made by consent at interim hearing for the children to live with the paternal grandparents.

  • Spurling & Spurling and Anor [2017] FamCA 260

    28 Apr 2017

    FAMILY LAW – PROPERTY – Application by the wife to set aside a transaction involving the third respondent pursuant to s 106B of the Family Law Act 1975 (Cth) – Where it is common ground that there was no collusion or dishonesty on the part of the husband – Where the wife must establish that the transaction was conducted at an undervalue – Where it is not appropriate for the Court to accept the expert valuation – Where the wife failed to establish that the transaction took place at an undervalue – Where the third respondent was a bona fide purchaser or other person interested – Where the wife was seeking an order which in reality she could not practically  achieve – Where the wife’s application must fail – Application dismissed.

    FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where an equal assessment of contributions was agreed – Where the wife submitted that the husband’s conduct came within the principles of Kowaliw & Kowaliw (1981) FLC 91-092 – Where the wife has not established any loss or reduction or minimisation of matrimonial property – Where the most relevant matter pursuant to s 75(2) of the Family Law Act 1975 (Cth) is the husband’s capacity to earn a significant income compared to the wife – Where an adjustment of 15 per cent of the available property and superannuation in favour of the wife is appropriate – Where a large component of the husband’s assets is in the form of a superannuation pension – Orders made to reflect an overall division of property and superannuation in the proportions 65 per cent in favour of the wife and 35 per cent in favour of the husband.

    FAMILY LAW – SPOUSE MAINTENANCE – Where the wife seeks an order that the husband pay her $2,000 per week for a period of three years by way of spousal maintenance – Where the wife is unable to establish the threshold requirement in s 72(1) of the Family Law Act 1975 (Cth) that she is unable to support herself adequately – Application dismissed.

  • Meeks & Royce [2017] FamCA 259

    28 Apr 2017

    FAMILY LAW – CHILDREN – With whom the child should live – Where previous consent orders provided for the child to live with the father and spend time with the mother – Where the father is aligning the child against the mother – Where the Family Consultant concludes the child will never be emotionally free to have a relationship with both parents under the current regime – Where the child’s most important relationships are with each of his parents – Where the father’s past decision to suspend time between the mother and child, breaching orders, shows an insensitivity to the needs of the child – Decided that due to the child’s age and the psychological pressure the child is under the child’s views should not be determinative of any issue – Decided the mother will more likely protect and promote the relationship between the father and child – Ordered the child live with the mother and spend no time with the father for six weeks

  • Herbert & Mallard [2017] FamCA 258

    28 Apr 2017

    FAMILY LAW – CHILDREN – CONTRAVENTION – Where the mother is found to have contravened orders without reasonable excuse on three occasions – Where it is ordered that the mother attend a parenting program – Where the application is otherwise dismissed.

  • Gorman & Gorman and Anor [2017] FamCA 257

    07 Apr 2017

    FAMILY LAW – CHILDREN - Best interests - Application by a non-parent -Young child -Where the parents do not participate in the final hearing – Where the parents present an unacceptable risk to the child

  • Commissioner Of Police, South Australia & Gedeon [2017] FamCA 256

    28 Apr 2017

    FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the child was wrongfully removed from the United Kingdom – Where the father argued the child was habitually resident in the United Kingdom, while the mother contended the child had no habitual residence at all – The Regulations tend in favour of finding the child has habitual residence because otherwise there is no protection from abduction – Decided the child was habitually resident in the United Kingdom – Where the mother alleged there was a grave risk of psychological harm to the child due to his separation from her, caused by her deciding not to accompany him back to the United Kingdom, or alternatively, by her accompanying him back but suiciding once there – Where the expert evidence established there was a potential of her suicide – Where the mother could lessen the risk by engaging with the many social welfare services on offer to her in the United Kingdom – Decided the risk of harm is not so high as to justify its description as grave – Where the mother alleged the child’s return to the United Kingdom would place him in an intolerable situation by reason of the same facts – Concluded the child should be returned to the United Kingdom – Ordered the parties are required to file and serve the orders they propose to implement the child’s return

  • Cluny & Skinner [2017] FamCA 255

    28 Apr 2017

    FAMILY LAW – CONTEMPT – where it is alleged that the husband contravened the terms of an order in a manner which involves a flagrant challenge to the authority of the Court –  where the order required the husband to “hand his passport” to the wife’s solicitors “only to be released by consent of the parties or by an order” of the Court – where the husband provided the wife's solicitors with his passport – where the husband subsequently applied to the Department of Foreign Affairs and Trade for a replacement passport – where the husband falsely declared to the department that he had lost his passport – where the husband subsequently failed to deliver his new passport to the wife's solicitors – where the husband subsequently travelled internationally over a long time – where it is alleged that the husband’s conduct amounts to contempt – where the husband admits the conduct – where the husband asserts that in delivering his passport to the wife’s solicitors he complied with the terms of the order and his subsequent conduct does not amount to a breach of the order – where the husband’s application for, and failure to deposit with the wife’s solicitor, his second passport is found to be contemptuous – where further hearing to occur to determine sanction.

    FAMILY LAW – CONTRAVENTION – where the husband was previously ordered to make various cash payments to the wife including by way of child support, spouse maintenance, lump sum arrears and costs – where the husband failed to meet these payments – where in excess of $250,000 remains unpaid – where the husband admits to failing to make the payments – where the husband contends he has a reasonable excuse – where the husband contends his impecuniosity is a reasonable excuse – where adverse credit findings are made – where the husband has failed to establish that he is impecunious – where it is found that the husband contravened the orders without reasonable excuse – further hearing to occur to determine penalty.

  • Tsui & Padelford [2017] FamCA 254

    27 Apr 2017

    FAMILY LAW – PROPERTY – Where the parties were married for approximately three years and have one child –Where the husband made significant direct financial contributions by way of superannuation benefits, income generated from overseas employment and the introduction of unencumbered property to the marriage– Where the wife assumed responsibility for the parties’ special needs child – Where the Court finds the parties’ contributions should be assessed at 90 per cent to the husband and 10 per cent to the wife – Where the Court finds section 75(2) factors favour an adjustment of 17.5 per cent in favour of the wife due to the ongoing responsibility on the wife to provide primary care for their special needs child – Orders made for the husband to retain the former matrimonial home – Where the husband must pay to the wife a sum of $366, 105 in order to retain the former matrimonial home

    FAMILY LAW – COSTS – Where the husband sought that the wife pay his costs of approximately $48,000 and that the wife reimburse the husband for interim payments previously ordered to be paid by him on the basis that the parties’ issues would have been resolved at an early stage if the wife had adopted pre-action procedures –Where the Court finds there is no valid basis for any such Orders
  • Department of Communities, Child Safety and Disability Services & Sabeer [2017] FamCA 253

    27 Apr 2017

    FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application for the return of a child to South Africa – Whether habitual residence in South Africa is established – Whether the father consented to the child remaining in Australia – Whether the father acquiesced in the child remaining in Australia – Whether grave risk established – Whether the child objects to being returned to South Africa – Whether the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes – Whether the residual discretion ought be exercised – Order for return made.

  • Lindrum & Niles [2017] FamCA 252

    27 Apr 2017

    FAMILY LAW – DE FACTO RELATIONSHIP – where relationship conceded but the respondent maintains it is not just and equitable to alter his interests – consideration of how non-financial expectations justifies a departure from the parties’ respective legal ownership of assets – where the contributions are modest by the applicant but s 90SF(3) justifies an adjustment.

  • Watts & Lorreck [2016] FamCA 1170

    11 Aug 2016

    FAMILY LAW – APPLICATION FOR RECOVERY ORDER - Where children removed from the mother by the father - Where the children have expressed the view that they wish to live with the father - Where there is evidence that the father is undermining the children’s relationship with the mother -Where the views of the children are not expressed clearly and consistently enough to bear weight - Where the recovery order is in the best interests of the children as per s 60CC

  • Riley & Massalski [2016] FamCA 1169

    03 Jun 2017

    FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS –Where the Wife sought a variation of previous orders made in relation to the parties’ property interests – Consideration of section 117(2A) of the Family Law Act 1975 (Cth) Where the Court finds that the Wife’s Application is wholly unsuccessful –Application dismissed. 

    FAMILY LAW – COSTS – Where the wife is ordered to pay the costs of these proceedings.