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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.

  • Panwar & Panwar and Anor (No. 2) [2020] FamCA 724

    04 Sep 2020

    FAMILY LAW – COSTS – applicant who successfully obtained leave under s 44(3) to bring a s 79 proceeding out of time seeking costs – applicant arguing she was wholly successful in the proceeding – consideration of costs questions – applicant not wholly successful in s 79 application – only leave to bring it has been granted – whether trustee was undertaking the legitimate discharge of his duty by opposing leave application – held, yes – costs ordered under s 117(1) and not otherwise.

  • Gin & Hing (No. 4) [2020] FamCA 746

    03 Sep 2020

    FAMILY LAW – EVIDENCE – on the ninth day of the trial and after a certain translation of 13 audio files had been ruled inadmissible, Mr Gin seeks to cross examine the maker of the authorised translation by putting to him the revision given by the translator whose translation was ruled inadmissible – applicant seeking to rely on previous translation– parties bound by the manner in which they conduct their case – applicant must identify each individual inconsistency to be put to witness.
    FAMILY LAW – COSTS – the applicant is to meet the costs of this additional task.

     

  • Gin & Hing (No. 3) [2020] FamCA 735

    01 Sep 2020

    FAMILY LAW – EVIDENCE – s 128 of the Evidence Act – unauthorised recordings of private conversations – alleged contravention of Surveillance Devices Act – whether respondent has reasonable grounds to object to questioning on the basis that his answers may expose him to self-incrimination – no reasonable grounds demonstrated – objection over ruled – leave to apply under s 128(6) granted after evidence given.

  • Gin & Hing (No. 2) [2020] FamCA 734

    31 Aug 2020

    FAMILY LAW – PARENTING – Respondent formerly represented by senior and junior counsel – now unrepresented at resumed trial, scheduled to run a further 5 days, making 10 days in total – a practising solicitor – mother’s evidence concluded. 
    FAMILY LAW – NEW EVIDENCE – alter close of mother’s case – father (self-represented) seeking leave to rely on material put forward on sixth day of trial – application refused.

     

  • Brar & Kambo and Anor [2020] FamCA 719

    31 Aug 2020

    FAMILY LAW – PARENTING – Where the child is almost nine – Where the mother is deceased – Where the child lives with the father and spends time with the maternal family – Where the maternal family is unwilling and unable to support the child’s relationship with the father – Where the maternal family withholds the child from the father – Where the child is distressed by changeover – Where the maternal family has not complied with Court orders - Where the child has an attachment to the maternal family – Orders for the child to live with the father – Orders for the father to have sole parental responsibility – Orders for time with the maternal family.

  • Dobbs & Dobbs [2020] FamCA 700

    31 Aug 2020

    FAMILY LAW – PROPERTY – final property orders made in 2018 – where husband appealed the final property orders made to the Full Court of the Family Court of Australia – appeal dismissed by the Full Court – competing applications in a case by the parties for interpretation of final property orders and enforcement orders – where the parties disagree about what monies should be included in arriving at the net remaining balance from the sale of the property – where wife seeks the necessary orders to make superannuation splitting orders operative – machinery orders needed to give effect to the final property orders – binding orders needed to give effect to the final property orders.
    FAMILY LAW – CONTRAVENTION – contravention applications filed by the husband and wife alleging breach of final Court orders – where some applications and/or counts of alleged contravening conduct were withdrawn and/or dismissed by the Court – where wife alleged breach by the husband resulting from the husband’s failure to transfer his interest in the former matrimonial home to the wife – wife alleges the husband breached final non-denigration order of the Court – the Court finds the husband contravened orders of the Court – husband alleged three counts of breach by the wife of final parenting orders – the Court finds the wife did not contravene final parenting orders – each of those counts is dismissed.

     

  • Staley & Birch (No. 2) [2020] FamCA 718

    28 Aug 2020

    FAMILY LAW – CHILDREN – Terms of reference for appointment of a Court Expert – psychiatric assessment – Court Expert appointed.

  • Zlotnik & Gerasimov [2020] FamCA 713

    27 Aug 2020

    FAMILY LAW – PARENTING – With whom a child lives – Application by the father for final parenting orders – Where the parties agree to equal shared parental responsibility – Where the father is seeking equal time – Where the mother and the ICL oppose equal time – Where it is in the best interests of the child to make orders for the child to spend substantial and significant time with the father – Where the father sought to impose various restrictions on overseas travel – Where the mother is not a flight risk and the proposed restrictions are not appropriate – Best interests of the child – Where the single expert recommends the child live with the mother – Where the Independent Children’s Lawyer supports the mother’s application.

  • Falk & Falk [2020] FamCA 707

    27 Aug 2020

    FAMILY LAW – INTERIM PROPERTY – Exclusive occupation – Partial property distribution – Where the wife is using joint funds for her living expenses and rent – Where on the balance of convenience, the husband should have exclusive occupation of the property – Where the husband requires funds for ongoing legal costs – Where the interim property distribution is 2.5 per cent of the net assets for the purpose of this application.

  • Sandala & Nerandon [2020] FamCA 712

    26 Aug 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – where trial was listed for five days – where the Father is incarcerated – where capacity to have a video link with correctional facility has been intermittent – where special approval would be required to have a video link available for the duration of the trial – where the Father has lost his legal representation – where the Father is unable to access his trial affidavit or legal materials – where the Father intends to call witnesses – where the parties both seek respective interlocutory orders regarding time with the Father and potential travel of the Mother and child to Country B – trial vacated – leave to file interlocutory applications – dismissal of Father’s requirement to file in accordance with Family Court forms

  • Qinlang & Xin and Ors [2020] FamCA 702

    26 Aug 2020

    FAMILY LAW – COSTS – Where the wife seeks a costs order against the husband – where in the alternative, the wife seeks a costs order against the second and third respondents – where the husband was wholly unsuccessful in particular applications – Husband’s conduct in relation to the proceedings

  • Pratley & Pratley [2020] FamCA 701

    26 Aug 2020

    FAMILY LAW – INJUNCTIONS – preservation of property – where the Wife seeks to rely upon the continuance of injunctive order restraining the sale of the business – where the Husband seeks the discharge of the injunction to effect the sale of the business – where the respondent seeks an order permitting sale of business – Injunction  discharged – order for sale of business – order for the sale of real estate properties – Disclosure schedule to be maintained to deal with anticipated disputes as to disclosure.

  • Noel & Noel [2020] FamCA 699

    25 Aug 2020

    FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Relocation – Interim – Where final orders were made by consent for the children to live with the mother and spend time with the father – Where the father is on deployment in Country C – Where the eldest child has recently been in the father’s primary care – Where the father seeks the eldest child remain in his care – Where the mother is concerned about the child living in Country C – Where the child has expressed a strong desire to live with the father in Country C – Where siblings are separated – Consideration of best interests of the child – Consideration of the child’s wishes – Orders.

  • Dallon & Macbride [2020] FamCA 673

    25 Aug 2020

    FAMILY LAW – CHILDREN – Parental Responsibility – With whom the children shall spend time – Where the children currently live with the mother and have not spent time with the father or the paternal grandparents for almost three years – Where an allegation of sexual abuse was made by the eldest child – Where the father was charged and a protective order [ADVO] made – Where the child retracted the allegation - Where the charge was withdrawn and the protective order revoked – Where the mother opposed  resumption of time and communication – Where there is not an unacceptable risk of harm to the children in the care of the father – Where the children have had previously a meaningful relationship with the father and the paternal family – Where it is in the best interests of the children for there to be a restoration of such a relationship – Orders for slowly expanding periods of time over 16 months culminating in alternate weekends school to school and thereafter block holiday time in addition.

  • Verdin & Verdin [2020] FamCA 690

    21 Aug 2020

    FAMILY LAW – PARENTING – Reintroduction of time – Where orders were made in 2017 for the father to gradually commence contact with the children – Where that contact did not occur – Where the children have not spent time with the father since 2011 – Where there is no up-to-date information regarding the father’s mental health – Where the children’s treating practitioners do not support the recommencement of time – Where contact with the father would not be in the children’s best interests – Order that the father be permitted to communicate with the children in writing.

  • Hastings & Hopkins and Ors [2020] FamCA 688

    20 Aug 2020

    FAMILY LAW – COURT APPOINTED RECEIVERS – powers – need for orders to specify powers and remuneration of receivers under s 420 of the Corporations Act – orders made.
    FAMILY LAW – COURT APPOINTED LIQUIDATORS – powers – need for orders to specify powers under s 477 of the Corporations Act – orders made.

     

  • Kerson & Blake [2020] FamCA 674

    20 Aug 2020

    FAMILY LAW – CHILDREN – international relocation – contested residence – re-hearing – where the mother contends for the children to live with her in the United States of America – where the father contends for the children to remain living with him in Australia – orders made for the children to remain living with the father in Australia

  • Boyd & Sage (No. 2) [2020] FamCA 692

    18 Aug 2020

    FAMILY LAW – INTERIM PARENTING – where child returned from Scotland pursuant to 1980 Hague Abduction Convention – where the taking parent (mother) proposes that she and the child reside an hour’s drive from the school previously attended by the child – where father seeks that mother be required to reside in reasonable proximity of child’s former school and the child return to that school
    FAMILY LAW – RESTRAINT ON FREEDOM OF MOVEMENT – where restraint on a primary carer’s freedom of movement can be effected directly by injunction pursuant to s 114(3) of the Family Law Act 1975 or indirectly by a parenting order – where exercise by the court of both powers is limited to circumstances where the best interests of the child require that the primary carer be so restrained
    FAMILY LAW – INTERIM PARENTING – where the court accepts the evidence of the family consultant that, optimally, the child should return to her previous school and the mother and child should live in reasonable proximity to the school – where mother’s proposal means that the child will have less direct contact with the father - where court is satisfied that child’s best interests can still be accommodated on mother’s proposal – where orders made in child’s best interests does not necessarily equate to the best available outcome for the child
    FAMILY LAW – INTERIM PARENTING – where best interest of the child as the paramount consideration does not preclude the court taking into account the legitimate wishes, rights and freedoms of the primary carer 
    FAMILY LAW – INTERIM PARENTING - where parents are not required to re-enrol the child at her previous school and no restraint or conditions are imposed on the child or the mother

     

  • Selleck & Albin (No. 2) [2020] FamCA 733

    17 Aug 2020

    FAMILY LAW – CHILDREN – where the parties reached final agreement on the first day of trial – orders made in the best interests of the child – where such orders are the third set of final orders for this family

  • Eastgate & Cardiff and Anor (No. 2) [2020] FamCA 681

    17 Aug 2020

    FAMILY LAW – COSTS – Where applications for a stay of proceedings pursuant to the Trans-Tasman Proceedings Act 2010 (Cth) were dismissed – Where orders were made for any party seeking costs to file an application and detailed schedule of costs – Where the husband filed an application seeking indemnity costs totalling around $200,000 referable to not only the stay application but proceedings in other courts – Where the husband only amended his application orally on the morning of the hearing – Where the wife was forced to defend the husband’s application for indemnity costs – Where the wife sought her costs of defending the husband’s costs application – Where it is appropriate to award the husband costs fixed in the amount of $10,000 – Where that amount is reduced by $2,000 to countenance an amount of the wife’s costs appropriate to visit upon the husband.

  • Teall & Neilson [2020] FamCA 671

    14 Aug 2020

    FAMILY LAW – PROPERTY – Where application for discrete interim financial orders – Where consideration of applicable principles – Where order made for the husband to be paid a salary from the parties’ business.
    FAMILY LAW – INJUNCTIONS – Order made restraining the wife from attending upon business premises operated by the husband without first giving the husband 24 hours’ notice in writing of her intention to do so.

     

  • Mahoney and Anor & Dieter [2020] FamCA 667

    14 Aug 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – whether the failed contempt application prosecuted by the applicants against the respondent ought to be regarded as a vexatious proceeding

  • Clare & Chua [2020] FamCA 661

    13 Aug 2020

    FAMILY LAW – COSTS – Circumstances justifying order for costs where the applicant seeks his costs on an indemnity basis and the respondent seeks no order for costs – consideration of the relevant provisions of the Family Law Act 1975 and authorities – order made for respondent to pay the applicant’s party/party costs

  • Edkins & Felice (No. 2) [2020] FamCA 725

    11 Aug 2020

    FAMILY LAW – CHILDREN – Interim parenting – Where the mother did not press her contentions in relation to the father’s alleged violence towards herself, his mental health difficulties or substance misuse at interim hearing – Where the mother contends that the parties’ son has been sexually abused by two of the father’s step children – Where the mother asserts ongoing risk in the father’s care as he does not believe that the sexual abuse occurred and is failing to act protectively – Where the mother also maintained that the father has been physically aggressive towards the children in the past and poses some risk in this regard – Where the mother seeks the continuation of the short term interim orders made by consent at the interim hearing providing for limited unsupervised time with the father and also seeks a restraint on the father allowing the children to come into contact with his step-children – Where the father seeks a dismissal of the mother’s interim application such that the former interim orders that provide the children live with the mother and spend alternate weekends with him continue and proposes an additional order that he be required to ensure that the son not sleep in the same room as his stepson and that he or his partner “properly supervise” the son to ensure that he not be exposed to any form of abuse – Orders made as sought by the father.

  • Huo & Lok [2020] FamCA 657

    11 Aug 2020

    FAMILY LAW – COSTS – where the husband seeks costs on an indemnify basis or in the alternative on a party/party basis – where the wife does not make an application for costs but opposes any costs order by the husband – where the wife’s application was wholly unsuccessful and there is a disparity between the financial circumstances of the parties – where the circumstances are not exceptional and do not warrant an order for indemnity costs – where the wife is ordered to pay the husband’s costs on a party and party basis – where the husband is silent as to the quantum of costs he seeks on a party and party basis – where the husband’s application is adjourned for further hearing as to the quantum of party and party costs

  • Nestor & Ripley and Anor [2020] FamCA 694

    10 Aug 2020

    FAMILY LAW – PROPERTY – ENFORCEMENT – where previous orders provided for the sale of the property and that the parties do all things to facilitate sale – where the husband says the wife has sought to frustrate the sale – where the husband makes an application pursuant to rule 20.54 of the Family Law Rules 2004 (Cth) that a warrant of possession issue requiring the respondent wife to vacate the real property and give vacant possession of the land to the husband’s agents – order that the warrant issue – order that the warrant be stayed until 14 days following the lifting of stage-4 COVID-19 restrictions in Victoria.
    FAMILY LAW – COSTS – indemnity costs awarded in favour of the applicant and second respondent.

     

  • Kyrkos & Malkin [2020] FamCA 649

    10 Aug 2020

    FAMILY LAW – PARENTING – PRACTICE AND PROCEDURE – Where the Independent Children’s Lawyer has made an Application for the children to attend therapeutic counselling with a clinical psychologists and for that counselling to be non-reportable and confidential – Where the mother wholly supports the Independent Children’s Lawyer’s Application – Where the father agrees to the children attending counselling, however, opposes the Application to the extent that the counselling be non-reportable – Where the father contends that the parties and the Court should have access to the clinical notes taken by the psychologist and that the psychologist be available for cross-examination in respect to her treatment and recommendations for the children – Where the Application is made in circumstances where both parties acknowledged the children witnessed a family violence incident – Where the single expert report available to the parties notes that the children have expressed concern that what they say to a third party may be reported back to the father – Consideration given to the Court’s obligation to have regard to the welfare of the children – Consideration given to the principles that the Court must have regard to in exercising its powers in child-related proceedings – Orders made in accordance with those proposed by the Independent Children’s Lawyer.

  • Hurley & Melton [2020] FamCA 689

    06 Aug 2020

    FAMILY LAW – CHILDREN – where final parenting orders were made in May 2017 changing the child’s living arrangements from living with the mother to living with the father and spending supervised time with the mother – where the mother seeks orders that the child spend unsupervised day time with her – where the father asks that the court determine the Rice & Asplund question as a threshold issue – where the father’s application for summary dismissal of the mother’s Initiating Application is refused.

  • Shnell & Frey [2020] FamCA 631

    04 Aug 2020

    FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the applicant wife and respondent husband were married for 35 years – Where there is a dispute about whether the wife’s inheritance, the husband’s family trust, and prospective capital gains tax (“GCT”) liability should be included in the parties’ asset ‘pool’ – Where the husband does not control the family trust – Where the husband’s interest in the family trust should not be treated as his property but as a financial resource of the husband – Where the wife’s inheritance is just one of a myriad of contributions made during a long marriage – Where the husband received an inheritance during the marriage – Where both inheritances are included in the parties asset ‘pool’ – Where there is uncertainty surrounding the calculation of GST liability and the timing of any potential sale – CGT taken into account as a factor relevant to s 75(2) – Where it is just and equitable to make an order – Where each party will retain all property in their current possession or control.

  • Silver & Pilot [2020] FamCA 691

    03 Aug 2020

    FAMILY LAW – PARENTING – where one party capitulates immediately before a final hearing and indicates acceptances of recommendations for final orders completely at odds with her case up until that time – where the Court is unable to be confident that the capitulating party has the commitment and capacity to follow through with orders in those terms – where Family Consultant recommends a supplementary assessment to address viability of that parent’s proposal going forward.
    FAMILY LAW – PARENTING – high parental conflict – common feature of high parental conflict cases is a consensual resolution to avoid of judicial scrutiny and accountability – where conclusion of proceedings rarely brings an end to high parental conflict – where case management principles must give way to prolongation of proceedings where children’s best interests are served by doing so.
    FAMILY LAW – PARENTING – where immediate post-order support for families on implementation of parenting arrangements is best facilitated within the court – s65L supervised counselling for assistance with implementation of orders not available due to lack of resources.

     

  • Bryce & Bryce [2020] FamCA 653

    31 Jul 2020

    FAMILY LAW – PARENTING – where family report is released in which children are recorded as fearful of being physically harmed by the mother with whom they spend weekly time supervised by her partner – where children also express fears to Family Consultant that their father (primary carer) and his partner will be harmed or killed by associates of mother’s partner – where Family Consultant records that 10 year old child asserts that mother has previously commented on him having told family therapist that he feared mother would stab him with a knife – where family report has not been tested by cross examination of Family Consultant and final hearing is in 3 months – where, in the interim, the Court is not satisfied that there is an unacceptable risk to the children that they or the father and his partner are in danger of being physically harmed by or at the behest of the mother.
    FAMILY LAW – PARENTING – obligation of Court to have regard to views of children – where evidence must be adduced of children’s views – where Court must provide safe and scaffolded environment for views of children to be ascertained and put before the Court – where there are no statutory safeguards.
    FAMILY LAW – PARENTING – where consideration of the children’s individual views is mandatory – where views are ascertained in part from a s 62G(2) family report – where there are no protective mechanisms in place to safeguard children from adverse impact of their views becoming known to parents as a consequence of family therapy and/or the family report being published – where such mechanisms were necessary in this case.
    FAMILY LAW – INTERIM PARENTING – where matter listed on the initiative of the court and all parties are provided with opportunity to read the family report – where there was no time for a meaningful hearing before next spend time occasion. 
    FAMILY LAW – INTERIM PARENTING – where, in the short term, the risk to children’s emotional wellbeing if they spend time with mother outweighs mother’s right to procedural fairness – where mother’s time with children suspended pending further application.
    FAMILY LAW – PARENTING – the child’s voice in parenting proceedings – Australia’s obligations under United Nations Convention on the Rights of the Child – where obligation to assure that a child who is capable of forming his or her own views has an opportunity to express those views freely (Article 12) – where child’s right to express views freely is undermined as there are no safeguards for the child against the adverse impact of those views becoming known to parents.

     

  • Raimo & Brogden [2020] FamCA 536

    03 Jul 2020

    FAMILY LAW – BINDING FINANCIAL AGREEMENT – Whether the parties’ marriage in France was a valid marriage – Where the marriage was not valid – Where the applicant contends the binding financial agreement should be set aside – Where no grounds were established to set aside the binding financial agreement – Application dismissed.

  • Hien & Cui and Ors [2020] FamCA 557

    03 Jun 2020

    FAMILY LAW – PROPERTY – litigation with all of the hallmarks of litigation that will get out of control and be conducted at disproportionate expense requiring a disproportionate amount of court time.
    FAMILY LAW – PRACTICE AND PROCEDURE – obligation identified in Harman v Secretary of State for the Home Department [1983] 1 AC 280 not to use information disclosed in proceedings for any other purpose

     

  • Lenton & Keble and Anor [2020] FamCA 677

    01 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – where the second respondent seeks an adjournment of the final hearing to obtain legal advice – where the applicant, the first respondent and the ICL oppose that application – where the final hearing is listed to commence the same day – where the second respondent has had ample time to engage a lawyer – where the proceedings have been on foot for three years – where the second respondent has not complied with procedural orders – the second respondent’s application for an adjournment be refused.

  • Lynch & Hagen (No. 2) [2020] FamCA 727

    03 Sep 2020

    FAMILY LAW – JURISDICTION – Whether an Australian court is better placed than a Norwegian court to assess the best interests of an Aboriginal child – Where Australian jurisprudence has a singular body of expertise on Aboriginal culture and society – Orders made to request jurisdiction.

  • Bradbury & Lander (No. 2) [2020] FamCA 720

    01 Sep 2020

    FAMILY LAW – COSTS – where the Wife was wholly unsuccessful – where it is appropriate to make a costs order at the specific amount sought by the Husband

  • Caprosi & Alton (No. 2) [2020] FamCA 714

    28 Aug 2020

    FAMILY LAW – CHILDREN – undefended hearing – where the Father has not had contact with the child for in excess of a year – where the orders sought by the Mother are supported by the ICL – where onus is on the Mother to establish the factual matters that support the orders sought – where there would be no significant benefit to relationship with the Father – where there were serious incidents of family violence by the Father – where there is an unacceptable risk of harm of sexual abuse – where the Mother has progressed in her parenting capacity – where the Mother has received a psychological diagnosis and support – sole parental responsibility – where the child should live with the Mother – where the child should not have time or communication with the Father – travel and passports – name change.

  • Mitchell & Mitchell (No. 2) [2020] FamCA 705

    28 Aug 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the self-represented father sought an adjournment of the trial – Where the father’s application was based on his recent loss of legal representation, his need to inspect documents produced on subpoena, and his need to garner more evidence – Where the father should bear the consequences of the dispute with his own solicitor – Overnight adjournment granted – Where adjournment for a longer period risks undue prejudice to at least one of the children.
    FAMILY LAW – CHILDREN – Best interests – With whom the children shall live and spend time – Reversal of residence – Where the parties agreed prior to the commencement of the trial that five of the six children should live with the mother – Where the contest distilled to a residual dispute over the residence of only one of the children – Where the mother and the Independent Children’s Lawyer proposed that child be kept with her sibling group – Where the father sought orders for that child to remain living separately with him – Where the Family Consultant considered the child’s best interests are promoted by living with her siblings with the mother – Consideration of relevant factors under s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) – Ordered the child live with the mother – Ordered the child spend the same amount of time with the father as her younger siblings.
    FAMILY LAW – Parental responsibility – Presumption of equal shared parental responsibility does not apply but would be rebutted in any event – Where sole parental responsibility is allocated to the mother as the residential parent – Where the mother is required to consult the father for his views and to inform him of her decisions.

     

  • Caprosi & Alton [2020] FamCA 709

    27 Aug 2020

    FAMILY LAW – CHILDREN – Parenting – best interests of the child – where Father has ceased to participate in proceedings – where Father ceased to file material and has not filed a response – where Father’s lawyers filed Notice of Ceasing to Act – where Father did not appear in Court – where Father did not participate in the preparation of the Family Report – where special service by hand was effected on the Father – where matter is to proceed to an undefended hearing.

  • Porter & Porter & Ors (No. 3) [2020] FamCA 710

    19 Aug 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Ex parte orders

  • Dickson & Saller (No. 2) [2020] FamCA 672

    17 Aug 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – application for adjournment of trial – Application dismissed – orders to facilitate engagement of single expert witnesses – directions for trial.

  • Vun & Pen [2020] FamCA 682

    14 Aug 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – SUMMARY DISMISSAL – Where wife seeks dismissal under Rule 10.12 of the application by the applicant husband for a declaration of marriage to be declared void and a nullity – Where discussion of applicable principles – Wife’s application dismissed.

  • Kocak & Fahri [2020] FamCA 652

    10 Aug 2020

    FAMILY LAW – CHILDREN – best interests – where the mother seeks the discharge of interim parenting orders – where the mothers case was that there had been a disproportionate and unfair focus on her mental health – where the mother failed to comply with orders made by consent that she attend upon an independent psychologist nominated by the Independent Children’s Lawyer for  review of her mental health including whether she presented any risk to the child – where the child lives with the father and spends supervised time with the mother – where there is insufficient evidence to vary the parenting arrangements – where the mother’s application is dismissed
    FAMILY LAW – CHILDREN – Independent Children’s Lawyer – where the mother seeks orders for the removal of the Independent Children’s Lawyer – where the mother alleges that the Independent Children’s Lawyer has targeted her and has a palpable bias against her – where the role of the Independent Children’s Lawyer is examined – where the mother fails to understand the role of the Independent Children’s Lawyer in parenting proceedings – where the mother has not established that the Independent Children’s Lawyer has acted contrary to the legislation – where the mother’s application is dismissed.
    FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest – where the father seeks that in the interests of justice the mother’s solicitor be restrained from acting on her behalf – where the mother’s solicitor acknowledged during the course of the hearing  that she had a conflict of interest  – where the evidence demonstrates the fact that the mother’s solicitor lacks any objectivity – where there is a risk that the mother’s solicitors lack of objectivity has been prejudicial to the mother’s case and may have indirectly negatively impacted on the welfare of the child – where the mother’s current legal practitioner is restrained from acting on her behalf.

     

  • Fairbank & Fairbank and Anor [2020] FamCA 644

    06 Aug 2020

    FAMILY LAW – PARENTING – Interim parenting orders – Where Orders were made ex parte on an urgent basis on a previous occasion for two of the children to change residence such that they now live with the father – Where the third child currently resides with the maternal grandmother – Where the mother has suffered an acute mental health episode and scheduled for involuntary admission to care pursuant to the Mental Health Act 2007 (NSW) – Where the mother has since been released and seeks to reside with the maternal grandmother and child – Where the maternal grandmother has, by consent, been joined to the proceedings – Where the parties are in agreement with the proposal of the Independent Children’s Lawyer that the two children continue to reside with the father and the third continue to reside with the maternal grandmother – Where the mother has made untested allegations of sexual misconduct of the father to the third child – Where the father seeks the mother be restrained from residing with the maternal grandmother and child due to the risk of the child being exposed to psychological harm – Where the maternal grandmother has given an undertaking to the Court that she ensures the mother will not discuss with the third child alleged sexual conduct between the father and the child and will insist on the mother leaving her home in the event the mother acts contrary to the interests of the child – Orders made in accordance with those proposed by the father to the extent that they are consistent with the orders proposed by the Independent Children’s Lawyer – No Order is made for the mother to be restrained from residing with the maternal grandmother and the third child.

  • Din & Gale [2020] FamCA 716

    05 Aug 2020

    FAMILY LAW – CHILDREN – Interim orders pending final hearing in September 2020.

  • Lynch & Hagen [2020] FamCA 606

    24 Jul 2020

    FAMILY LAW – CHILDREN – Habitual Residence – Where the mother and father moved to Norway with the child in 2018 – Where the mother and father mutually intended to live in Norway – Where all aspects of the child’s physical care is in Norway – Where the child is settled in Norway – Where the child is habitually resident in Norway.

  • Hills & Caldwell [2020] FamCA 574

    17 Jul 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Application under s 102NA of the Family Law Act 1975 (Cth) – Where none of the provisions in s102NA(1)(c)(i), (ii) or (iii) applies – Where the issues to be determined at final hearing are limited – Where the Court declines to exercise its discretion – Application dismissed.

  • Letson & Rigas [2020] FamCA 680

    16 Jul 2020

    FAMILY LAW – COSTS – where the husband filed an application in a case for the appointment of a single expert valuer – where the wife initially opposed that position – where the wife eventually consented to the appointment of the single expert as sought by the husband – where the husband seeks costs on a party/party basis according to the scale – consideration of s 117 – where the husband attempted to resolve the matter by correspondence prior to filing an application – where the wife was wholly unsuccessful in her opposition of the orders sought by the husband – costs ordered in accordance with Schedule 3 of the Family Law Rules 2004 (Cth).

  • Melzer & Powles [2020] FamCA 715

    15 Jul 2020

    FAMILY LAW – CHILDREN – INTERIM – where the matter was on track for trial – where, in the lead up to trial, the father was charged with serious indictable charges relating to alleged offences against his de facto partner – where there is other concerning evidence in relation to the father’s behaviour – where the Court finds the children could be at risk of harm in the father’s unsupervised care – earlier interim orders which provide for unsupervised time with the father varied for the children to spend supervised time with the father at a contact centre.

  • Ramzi & Hadad [2020] FamCA 708

    14 Jul 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Where Application – Contravention discloses no alleged breach nor any reference to the orders asserted to be breached – Where application struck out and dismissed.

  • Department of Child Safety, Youth and Women & Comar and Anor (No. 2) [2020] FamCA 556

    13 Jul 2020

    FAMILY LAW – ENFORCEMENT OF ORDERS – Where an order was made for the return of three children to Colombia – Where the State Central Authority urgently applies for further orders necessary to facilitate the children’s return.

  • Porter & Porter & Ors (No. 2) [2020] FamCA 554

    25 Jun 2020

    FAMILY LAW – PROPERTY – Setting aside orders and a binding child support agreement – Where, in 2014, the parties entered into a final property settlement order and spousal maintenance orders and a binding child support agreement – Where the final property settlement order, in part, required the acquisition of the home for the wife and children over a ten year period – Where the husband became bankrupt during that period – Where an order is made pursuant to s 79A(1)(b) Family Law Act 1975 (Cth) to set aside the property settlement order – Where the husband’s trustees in bankruptcy, the husband, the husband’s former fiancé and various entities were parties to the proceedings – Where a new property settlement order is made – Where the binding child support agreement is set aside and new child support orders are made – Where the husband’s application for discharge of the spousal maintenance order is dismissed.

  • Porter & Porter and Ors [2020] FamCA 553

    25 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Reopening – Where the wife filed two applications to reopen the case to adduce further evidence and issue subpoenas to pursue further inquiries – Where much of the material that the wife sought to rely upon was or could have been available to the wife prior to and during the final hearing – Where some non-controversial and materially relevant evidence was allowed – Where otherwise the further evidence which the wife sought to lead was not so material that the interests of justice required its admission; or where the further evidence if accepted would most probably affect the result of the case – Where making orders in accordance with the wife’s applications was likely to extensively prolong the litigation and prejudice would ensue to the other parties by reason of the late admission of the further evidence that the wife sought to adduce – The wife’s applications to reopen the case dismissed.
    FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife made a request for a referral to the Law Society of New South Wales – Where the wife made an application that the trustees destroy “the Third Report to Creditors” – Where the wife asserted there was a breach of s 121 of the Family Law Act 1975 – Where it was not appropriate to reopen the case to entertain this request and application – The application is dismissed. 
    FAMILY LAW – PROPERTY – Interim Financial – Where the husband made an application for interim financial relief – Where new final property settlement orders are being made – Where any such applications made by the husband need to be reconsidered in light of the determination of financial applications – The husband’s interim application is dismissed.

     

  • Binh & Ning [2020] FamCA 683

    23 Jun 2020

    FAMILY LAW – CHILDREN – best interests –final parenting orders made by consent.

  • Gerber & Beck [2020] FamCA 210

    08 Apr 2020

    FAMILY LAW – INTERNATIONAL RELOCATION – both parents born in a Country A, the mother having lived in Australia for over 20 years and the father for over 10 – two children, both born in Australia, raised bilingual and observing two cultures.
    FAMILY LAW – INTERNATIONAL RELOCATION – Mother’s reasons for relocation application – her alleged failing mental health and her desire to be near her family in Country A.
    FAMILY LAW – EXPERT EVIDENCE – family consultant recommending against relocation now in view of youngest child’s age and the risk of damage to that child’s bond with her father if relocation order were made – other psychologist’s conclusions unsupported by a discernible path of reasoning and therefore defective in accordance with Dasreef Pty Ltd v Hawchar and Makita (Australia) Pty Ltd v Sprowles – application refused.

     

  • Re: Imogen (No. 5) [2020] FamCA 760

    10 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Whether the final hearing should be in a closed court – Where the court shall be open – Where the hearing will take place on Microsoft Teams due to COVID-19 – Where because of concerns about the ability to appropriately warn members of the public about restrictions in relation to Imogen’s anonymity and concerns in relation to the wider electronic dissemination of the proceedings without anonymity, members of the public will not be given access to the Microsoft Teams link – Where members of the public will be able to view the hearing conducted on the electronic platform from the courtroom.

  • Re: Imogen (No. 6) [2020] FamCA 761

    10 Sep 2020

    FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Gender Dysphoria – Where Imogen has been diagnosed with Gender Dysphoria, currently takes puberty suppression medication and wishes to move to stage 2 gender affirming hormone treatment – Where the father supports Imogen’s wish – Where the mother disputes Imogen’s diagnosis and her Gillick competence and does not consent to stage 2 treatment and seeks an order for alternate treatment – Whether, if there is a dispute about consent or treatment, an application to a court is mandatory – Where an application is mandatory – Whether if Imogen is found to be Gillick competent, she can make her own decisions about her treatment – Where, given there is a dispute about treatment, Imogen’s consent is not sufficient – Where there is only a dispute about Gillick competence a declaration should be made under s 34(1) of the Family Law Act 1975 (Cth) as to whether or not an adolescent is Gillick competent – Where there is a dispute about treatment, an order authorising or not authorising treatment should be made under s67ZC of the Act, that is in the best interests of the adolescent – Where Imogen is found to have Gender Dysphoria and found to be Gillick competent – Where it is in Imogen’s best interests for an order to be made authorising stage 2 treatment – Where medical practitioners should not administer stage 2 treatment for Gender Dysphoria absent consent from the adolescent’s parents or legal guardians, without court approval – Discussion about the 2020 Australian Standards and guidelines and current research into the diagnosis and treatment of Gender Dysphoria.

  • Marin & Gudelj [2020] FamCA 693

    21 Aug 2020

    FAMILY LAW – CHILDREN – RECOVERY ORDER – Ex parte – Where recovery order application in respect of three children – Application granted in respect of recovery order

  • Gleeson & Audley [2020] FamCA 662

    12 Aug 2020

    FAMILY LAW – CHIILDREN – Best interests of the children – Where proceedings initially related to the care of eight children but two children reached the age of 18 by the time of final hearing – Where the mother seeks sole parental responsibility for children and that they live with her and spend no time with father – Where up until final hearing mother also sought an order to relocate with children to the United States – Where throughout proceedings mother maintained serious allegations of family violence perpetrated by the father and paternal grandparents towards her and the children – Where father vehemently denied allegations of family violence levelled at him and opposed mother’s relocation order – Where father alleged that since separation mother engaged in conduct to alienate him from the children – Where at various family consultant assessments the children expressed strong negative views about the father and expressed a desire to move to the United States and have no contact with the father – Where family consultant gave evidence that children’s reports of father’s abusive behaviour may have been shaped by both lived experience and influence from mother, as well as coloured by their desire to relocate overseas with the mother – Where at final hearing parties ultimately sought competing live-with orders and mother proposed as an alternative to positive orders for no time with the father that the children spend time with him in accordance with their wishes upon reaching the age of 16 if family violence not found – Where evidence corroborates father perpetrated family violence against mother and children but not to the extent alleged by mother – Where it is in children’s best interests to make orders largely in terms sought by the mother in the alternative, given the current state of the children’s relationship with each parent and the family consultant’s evidence of the deleterious effects and practical difficulties of making orders as sought by the father in light of the children’s strongly-held views.

  • Kabir & Kabir [2020] FamCA 655

    10 Aug 2020

    FAMILY LAW – CHILDREN – handover arrangements – conflicting accounts of attendance – matter listed for factual determination as to who attended – cross-examination – credibility – CCTV footage – assertions of one party demonstrably false where CCTV footage available – flow on impact where other attendances also in contest

  • Westwell and Anor & Westwell [2020] FamCA 654

    10 Aug 2020

    FAMILY LAW – COSTS – Circumstances justifying order – indemnity costs – pursuit of a case without reasonable prospects – manner of pursuit of case –costs of the ICL – no requirement that the ICL’s costs be calculated as a proportion on the basis of the total number of litigants – notice of costs – legal aid rate – sub commercial rate – fixed sum

  • Ali & Ali [2020] FamCA 625

    10 Aug 2020

    FAMILY LAW – COSTS – Where the wife seeks orders for costs payable by the husband in respect of substantive property proceedings and proceedings concerning a joinder Application filed by the husband’s mother – Where the husband filed a Response in support of the joinder Application – Whether the conduct of parties in respect to the substantive proceedings justifies making of orders for costs – Where the wife was successful in respect of both proceedings – Where the wife has reached agreement with the husband’s mother for payment of her costs in respect of the joinder Application – Whether the husband’s refusal of offer warrants orders for indemnity costs – Court finds an order for costs should be made in respect of substantive proceedings – Court finds that an order for costs should not be made in respect of the joinder Application – Order made for costs against the husband as agreed or assessed on a party/party basis.

  • Sandell & Neave [2020] FamCA 648

    07 Aug 2020

    FAMILY LAW – CHILDREN – Best Interests – With whom a child shall live – Where the father primarily seeks that the children move to reside with him and spend alternate weekends and half school holidays with the mother – Where the mother seeks that the children continue to reside with her and spend alternate weekends and half school holidays with the father – Where the father asserts that he is the parent who is more likely to ensure that the children continue to have a meaningful relationship with both parents – Where the children require stability and continuity in their living arrangements – Where a change in their primary residence, such that they live with the father, is not in their best interests – Where an equal time arrangement is not in their best interests nor reasonably practicable – Where the parents shall have equal shared parental responsibility, the children shall live with the mother and spend alternate weekends (Friday to Tuesday), special occasion time and half of the school holidays with the father.

  • Koyroyshs & Koyroyshs [2020] FamCA 626

    06 Aug 2020

    FAMILY LAW – PARENTING – Relocation – where the mother seeks to relocate with the child to City Q in Country D or alternatively Tasmania – where Country D is a state party to the Hague Convention but there is no system of registration of foreign court orders and there are practical difficulties associated with enforcement under the Convention – where travel to City Q is very difficult from Australia – where the outbreak of the COVID-19 pandemic has significantly impacted international travel and would require quarantine – where the mother purchased a property in Tasmania for investment purposes – where the mother’s inability to promote the child’s relationship with the father and her mental health militate against placing the child primarily in the mother’s care at a long distance from the father – where it was found to not be in the best interests of the child to relocate to Country D or Tasmania – where the parties were in agreement for the child to live with the mother if orders were made for the child to reside in the Sydney area – where the presumption of equal shared parental responsibility applies and has not been rebutted in the best interests of the child – where orders for equal shared parental responsibility were made – where the child is to live with the mother and to spend substantial and significant time with the father – where the father and the Independent Children’s Lawyers seek a restraint on both parties relocating beyond a defined radius – where parties restrained from relocating the child more than 30 kilometres from the location of the child’s preschool or school. 
    FAMILY LAW – PROPERTY – short marriage of two and half years – where the father sought orders for release to him of the balance of funds presently held in a joint account, a payment of $50,000 from the wife, secured by an order for the sale of a Tasmanian property if the wife does not comply – where the mother sought orders for the property to be divided between the parties 40% to her and 60% to the father, with a cash payment from the father to effect the division – where father made substantial financial contributions at the commencement of cohabitation – where the father is self-employed and owns several properties – where the mother is unemployed but in receipt of income from a tenanted property in Tasmania and has financial support from her parents – where mother received distributions pursuant to court orders during the proceedings – where an adjustment was made in favour of the wife for future needs – where orders were made for overall division of 73% to the father and 27% to the mother.

     

  • Olivier & Olivier [2020] FamCA 639

    04 Aug 2020

    FAMILY LAW – CHILD ABUSE – allegations of sexual abuse and risk of sexual abuse against Father and paternal grandfather – speculative basis for asserting abuse – consistency with sexual abuse does not necessarily equate to being indicative or suggestive of sexual abuse – direct evidence to the contrary in the form of a denial – no cross-examination to suggest the Father has sexually abused– allegations of family violence – episodic violence between the parents – coercion and control – evidence must be sufficient to allow a characterisation of coercion or control – allegations that the Mother is mentally unwell – evidence does not support finding that Mother has a mental health issue – Father maintains view Mother is mentally unwell – effects of maintenance of belief on parenting capacity – whether pursuit of belief is coercive, controlling or abusive – credibility – shared parental responsibility – potential harm to children arising from parental conflict – equal time arrangement would call for high levels of cooperation – children live with Mother – Mother has exercised the greater role in the care of the children – living with Mother will involve lesser change in arrangements for children – views – substantial and significant time – therapeutic support

  • Pung & Dinh (No. 2) [2020] FamCA 668

    03 Aug 2020

    FAMILY LAW – CHILDREN – Undefended hearing – Where the father has left the country and disengaged from the proceedings – Where the mother seeks sole parental responsibility, that the children live with her and that they spend time with the father as agreed – Where the Court is satisfied that the orders sought by the wife are in the best interests of the children.
    FAMILY LAW – PROPERTY – Undefended hearing – Where the husband has left the country and disengaged from the proceedings – Where the husband took AUD$5 million out of the country and has retained it, despite an order requiring him to return it – Where the orders that the wife seeks sees her retaining all of the property that is within the Australian jurisdiction which represents between 13% to 21% of the matrimonial property pool – Where the wife is unlikely to be able to retain much of the property that is registered in her name overseas – Where orders are made as sought by the wife.

     

  • Perren & Perren [2020] FamCA 634

    03 Aug 2020

    FAMILY COURT – PRACTICE AND PROCEDURE – Application for extension of time to file Notice of Appeal in relation to Consent Orders made at a Local Court on 26 September 2017 – Where consideration of applicable principles – Where time to file Notice of Appeal extended

  • Rosington & Rosington (No. 2) [2020] FamCA 645

    31 Jul 2020

    FAMILY LAW – PARENTING – Best interests of the children – Where the father proposes a change of primary residence – Where the children have significant vulnerabilities – Where the parental separation was characterised as high conflict – Where a change of primary residence would not be in the best interests of the children – Orders for the children to live with the mother – Orders for the children to spend significant and substantial time with the father.

  • Simons & Simons [2020] FamCA 622

    31 Jul 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Harman obligation – Where the applicant seeks leave to be released from the implied undertaking not to use documents and information obtained under compulsion in family law proceedings in the conduct of proceedings in the County Court of Victoria – Where the respondent makes no submissions and indicates that she does not consent to or oppose the application – Where the applicant asserts that there are special circumstances, the nature of which justifies release from the undertaking – Where, in circumstances where no submissions are made in opposition, leave is granted

  • Nazer & Musa and Anor [2020] FamCA 618

    30 Jul 2020

    FAMILY LAW – INJUNCTIONS – Where the father seeks to restrain the mother  from abusing, assaulting, threatening, harassing or intimidating the father or person’s attending handover on the father’s behalf – Where there are allegations of abusive and intimidating behaviour perpetrated by the father and the mother against each other and each other’s family members – Where the allegations involve the use of social media – Where there mother is already the subject of an intervention order with the father the protected person – Where the father is already restrained from abusing, threatening, harassing or intimidating the mother – Orders.

  • Harlen & Hellyar (No. 4) [2020] FamCA 600

    24 Jul 2020

    FAMILY LAW – LEGAL PROFESSIONAL PRIVILEGE – alleged waiver – whether privilege applies in the first place – implied waiver by conduct allegedly inconsistent with maintaining the privilege – whether such inconsistent behaviour demonstrated in the facts of this case.

  • Bollen & Bollen [2020] FamCA 605

    23 Jul 2020

    FAMILY LAW – PROPERTY – where after a long marriage the parties agreed on an equal division of assets – where the husband wanted to retain the property he occupied and the wife wanted it sold and the proceeds divided – where the court orders that the husband have the opportunity to retain that property – where the orders provide for the husband to pay the wife a lump sum to effect an equal division of the assets – where there are orders for sale if the husband is unable to make the payment to the wife
    FAMILY LAW – PROPERTY – Value of Property – Expert Evidence – where the parties appointed a single expert to value their real property – where the wife did not agree with the evidence of the single expert – where the wife applied to the Court on the first day of the hearing to adduce her own expert evidence as to the value of the real properties – where the court gave the wife leave to adduce her own expert evidence – where the wife’s expert and the single expert conferred and agreed upon the value of the real properties– where the wife accepted the value agreed upon by the two experts with respect to the property she occupies but sought leave to cross-examine her own expert as to the value of the real property occupied by the husband – where the wife believes that the property is worth significantly more than the value attributed to it by her own expert witness – where the court is satisfied as to the value and does not believe a sale is required to achieve a just and equitable outcome 
    FAMILY LAW – PROPERTY– addbacks – legal fees – where the parties both paid for their respective legal fees from a joint account – where in all of the circumstances the legal fees spent by both parties are added back in the pool – where the legal fees expended by the husband on behalf of their son are also added back and included in the sum of legal fees expended by the husband

     

  • Barns & Barns [2020] FamCA 597

    22 Jul 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Review of registrar’s decision – Where leave is sought to issue subpoenas – Where leave is sought to provide subpoena material to a single expert.

  • Calvin & Calvin and Ors [2020] FamCA 591

    21 Jul 2020

    FAMILY LAW – PROPERTY – Interim – Where the parties are unable to agree about the continued management of their partnership pending resolution of their property dispute – Where the wife contends that restrictions and/or obligations should be placed on the husband in his continued management of the partnership and other entities – Where the husband seeks orders enabling him to have sole control of the partnership but be required to seek the wife’s approval for any expense above $30,0000 – Where it is apparent that the parties (jointly) are unable to make timely decisions – Where orders will be made enabling the husband to have sole control of the partnership but he will be required to seek the wife’s approval for any expense above $25,000. 
    FAMILY LAW – PROPERTY – Interim – Where the husband seeks to be permitted to apply for an extension of a loan facility and an increase in borrowings by not more than $2,000,000 in order to meet the parties’ ongoing expenses pending resolution of the substantive proceedings – Where the wife opposes the increase in borrowings sought by the husband and instead seeks the sale of three real properties – Where if the properties the wife seeks to sell were sold it would deprive the husband of his livelihood – Where these are interim proceedings and the status quo should be maintained as far as possible – Where the husband will be permitted to apply for an extension of the seasonal market rate facility and an increase in borrowings. 
    FAMILY LAW – PROPERTY – Interim – Where the parties have agreed to the sale of a real property – Where the husband seeks it be sold via private treaty to the parties’ adult son – Where the wife seeks it be sold via auction – Where the property will be sold, if possible, via auction.

     

  • Wellard & Clapton [2020] FamCA 642

    20 Jul 2020

    FAMILY LAW – NULLITY – Where the parties underwent a marriage ceremony in Country B in 2014 – Where the parties held the belief the ceremony was not recognised under Country B law – Where the parties underwent a marriage ceremony in Australia in 2018 – Where the parties jointly sought a divorce of their Australian marriage – Whether the parties were validly married in Country B – Where the Court finds the Country B marriage is a valid marriage – Whether the Australian marriage was void – Consideration on the prohibition of second marriage ceremonies – Where the circumstances do not fall within section 23B(1) of the Marriage Act 1961 (Cth) – Where the Australian marriage must still be void – Orders. 
    FAMILY LAW – DIVORCE – Divorce Order – Where the parties filed a joint Application for Divorce – Where the parties were validly married in Country B in 2014 – Divorce granted.

     

  • Kahn & Kahn [2020] FamCA 563

    16 Jul 2020

    FAMILY LAW – PROPERTY – Interim property orders – Where the husband seeks orders in respect of the parties’ investment properties – Where the husband’s proposed orders are pressed as both interim spousal maintenance orders and mandatory injunctions – Where the wife opposes the husband’s application in part – Where the wife seeks orders for interim partial property distribution – Whether the husband has satisfied the s 72(1) gateway requirement for spousal maintenance – Whether the parties have satisfied the Court that it is reasonable and just in the circumstances for injunctions to be made in respect of the parties’ properties – Orders made by consent for properties to be sold and distribution of proceeds of sale – Orders made injuncting parties’ use and management of properties.

  • Jacobsen & Jacobsen [2020] FamCA 551

    15 Jul 2020

    FAMILY LAW – PROPERTY – Where there are existing interim orders in place regarding the parties’ property – Where each of the parties seeks orders that vary or enforce those existing orders – Where some of the orders sought seek to litigate matters already determined – Where some of the orders sought should be resolved at a final hearing – Orders made to enforce or facilitate some of the existing orders – Applications otherwise dismissed – Where the parties agree to arrangements regarding expert valuations of the parties’ property – Orders made by consent.
    FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Variation – Where there are existing interim parenting orders in place – Where those orders were made by consent – Where the father seeks an increase in his time with one of the children – Where that increase in time is opposed by the mother and not supported by the Independent Children’s Lawyer – Where the existing arrangement is apparently working well – Where the Court is not satisfied that there has been a change in circumstances warranting the change – Application dismissed.

     

  • Peale & Peale [2020] FamCA 558

    09 Jul 2020

    FAMILY LAW – PARENTING – Where the child is an intelligent 15 ½ year old who suffers from five comorbid disorders – Where the wife seeks an order for sole parental responsibility and for there to be no extension of the time the child spends with his father and the husband seeks an order for equal shared parental responsibility and for the child to spend more time with him – Where the child’s expressed view about time is that there be no change – Where the single expert recommends change – Where it is in the child’s best interests to order equal shared parental responsibility and for there to be an extension of the time the child spends with his father  
    FAMILY LAW – PROPERTY – Where the wife wishes to retain her residence – Where the husband is seeking 55 per cent of the property pool – Where the wife is seeking 65 per cent of the pool – Where it is appropriate and just and equitable to divide the assets as determined on the balance sheet as to 62.5 per cent to the wife and 37.5 per cent to the husband with the wife to have the opportunity to retain the home. 
    FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife’s application for spousal maintenance is dismissed.

     

  • Matthews & Norris [2020] FamCA 547

    09 Jul 2020

    FAMILY LAW – PROPERTY – Application for adjustment of interests in matrimonial property – Where it is just and equitable to make an adjustment – Where s 79(4) factors favour the husband – Where the husband provided the majority of funds for the parties’ first home – Where the husband, on sale of such property, utilised these funds for the benefit of the parties’ relationship – Where the wife resigned from the parties’ company and left the husband as sole director with a large number of debts to manage and provided no assistance – Where the wife, by choice, was made bankrupt – Where the s 75(2) factors favour the husband – Where the husband is the sole carer of the parties’ child and will receive little to no child support from the wife – Where the wife refused to provide full and frank financial disclosure – Where, as a result, the Court cannot arrive at a fully informed conclusion – Ordered that the husband retain the remaining Australian assets and liabilities with a cash adjustment to him by the wife – Where this division is as just and equitable as possible given the circumstances of the wife failing to meet her disclosure obligations.
    FAMILY LAW – PARENTING – Where the mother seeks to vary final parenting orders made in 2017 – Where the child lives with the father and spends time with the mother at the father’s discretion – Consideration of Rice v Asplund (1979) FLC 90-725 principles – Where there is no credible evidence of a change in circumstances or some new factor arising since final orders were made – Application dismissed.

     

  • Nathan & Weston [2020] FamCA 541

    09 Jul 2020

    FAMILY LAW – CHILDREN – Parenting – international relocation – where the mother seeks sole parental responsibility – where the mother seeks to relocate to the United States of America with the two children – where the father does not consent to the relocation – where the children live with the mother and spend time with the father – allegations of extensive family violence – best interests of the children – relocation permitted.
    FAMILY LAW – PROPERTY – Relationship of approximately 11 years – significant initial financial contribution of Respondent – overwhelming homemaking and parenting contribution of Applicant.

     

  • Mei & Yao and Anor [2020] FamCA 544

    08 Jul 2020

    FAMILY LAW – PROPERTY – Application by wife seeking a property adjustment – Add backs – Alleged waste by the wife arising out of alleged failure to sign a sub-contract of sale for the sale of a property – Contributions – Trusts – Section 75(2) matters – A declaration that significant property was held on trust by the husband and wife for the husband’s mother

  • Secretary Of The Department Of Communities And Justice & X And Ors (No. 2) FamCA 534

    08 Jul 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Suppression and non-publication orders – Interim orders – Whether s 102PE of the Family Law Act 1975 (Cth) gives the Court the power to make the suppression and non-publication orders sought by the Secretary – Implied power – Implied constitutional right to free political communication – Where the suppression and non-publication orders are necessary for the protection of the children’s safety – Where suppression and non-publication orders were already in place and have been modified and ordered to continue until a set date.

  • Malloy & Stopford Malloy [2020] FamCA 506

    07 Jul 2020

    FAMILY LAW – SPOUSAL MAINTENANCE – Discharge and variation – Where the husband sought to discharge or vary interim spousal maintenance orders made by consent some 5 years ago – consideration of the expression “just cause” in s 83(1)(c) of the Family Law Act 1975 (Cth) in relation to interim spousal maintenance order – where the husband alleges he was under duress or improper pressure from his lawyers to enter into consent orders – where husband had made previous applications regarding the spousal maintenance orders – where allegations of duress or improper pressure were previously not raised – consideration of the principle of finality in relation to interim orders – where circumstances apt to be considered an abuse of process – where no “just cause” demonstrated – where no basis demonstrated to vary the interim consent orders – application dismissed.

  • Verize & Hume [2020] FamCA 687

    30 Jun 2020

    FAMILY LAW – CHILDREN – INTERIM – orders made for increase of time during school holidays

  • Deane & Tennant [2020] FamCA 616

    21 May 2020

    FAMILY LAW – PROPERTY – Interim orders pending October 2020 trial

  • Pung & Dinh [2020] FamCA 663

    24 Feb 2020

    FAMILY LAW – INJUNCTIONS – Preservation of Property – Where the applicant de facto wife seeks an injunction restraining the respondent de facto husband from dealing with a real property in his sole name and his financial investments in Australia – Where the respondent de facto husband opposes the granting of an injunction but proffers an undertaking, in similar terms – Where the respondent de facto husband was unable to point to any real prejudice he would suffer if an injunction was granted, rather than an undertaking – Where the injunction is granted in the terms sought. 
    FAMILY LAW – PROPERTY – Interim – Where the applicant de facto wife seeks orders that the respondent de facto husband pay to her spousal and child maintenance, that he meet certain expenses of her and their children, and for her to have the exclusive use of certain property, on an interim basis – Where orders are made by consent. 
    FAMILY LAW – CHILDREN – Interim – Where the applicant mother seeks interim parenting orders that the children live with her and spend time with and communicate with the father – Where orders are made by consent.

     

  • Dejna & Dijak [2020] FamCA 32

    17 Jan 2020

    FAMILY LAW – CHILDREN – Application to remove the children’s place of residence to the Netherlands – Where both parties are Dutch nationals – Where there is a risk the parties and children may be deported from Australia once the father’s employment ceases

  • Joliffe & Joliffe (No. 2) [2020] FamCA 686

    19 Aug 2020

    FAMILY LAW – COSTS – where the wife filed an application in a case seeking orders for a partial property settlement and lump sum spousal maintenance – where the husband was not complying with inter alia previous orders for periodic spousal maintenance – where the wife seeks for her costs of the application to be paid on an indemnity basis or in the alternative party and party – where the husband opposes the wife’s application for costs – where the circumstances justify the court departing from the general rule that parties bear their own costs – where the proceedings were necessitated by the husband failure to comply with orders – where whilst the husband was not entirely unsuccessfully the wife was successful to the extent that her application was pressed – where indemnity costs are not awarded – where costs are awarded on a party/party basis

  • Paintal & Paintal [2020] FamCA 697

    18 Aug 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – application for recusal – apprehension of bias – where matter was dealt with by another judicial officer for a short period of time – where the Judge was previously employed by the Legal Aid Office – where the representative for the Mother is employed by an organisation akin to the Legal Aid office – where the Father filed a notice of appeal-application dismissed

  • Rimac & Rimac [2020] FamCA 675

    18 Aug 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the matter was set down for an undefended hearing – Where the Respondent husband emailed the Court, the day before the hearing, seeking that the matter be adjourned on the basis that he was unable to undertake necessary preparations for the hearing and would not be able to appear at the hearing as a result of health issues – Where the adjournment was opposed by the Applicant wife – Where the husband’s brother appeared on the Respondent husband’s behalf with leave of the Court – Whether the Court should grant the adjournment – Whether the Court, if the adjournment is granted, should impose conditions – Whether costs should be awarded on an indemnity basis – Consideration given, if the proceedings are adjourned, to what orders should be made to progress the matter – Adjournment granted – Orders made for indemnity costs in a fixed sum to be paid by the Respondent husband – Orders made for future directions.

  • Carsely & Baron and Anor [2020] FamCA 669

    17 Aug 2020

    FAMILY LAW – PARENTING – Undefended hearing – Where there is an Application for parenting orders in respect of the child made by the maternal grandfather – Where the child currently resides with the First Respondent maternal grandmother – Where the Independent Children’s Lawyer makes an Application for the child to live with the First Respondent maternal grandmother and that the maternal grandmother have sole parental responsibility for the child and for any time the child spends with the Applicant maternal grandfather and the Second Respondent mother to be determined by the First Respondent maternal grandmother – Where the Applicant maternal grandfather and the Second Respondent mother have not appeared or participated in the proceedings – Where the First Respondent maternal grandmother was unable to appear, however, provided her consent to the Independent Children’s Lawyer’s Application – Orders made in accordance with those sought by the Independent Children’s Lawyer.

  • Cardus & Lavrick [2020] FamCA 579

    17 Aug 2020

    FAMILY LAW – CHILDREN – Best interests – allocation of parental responsibility – spend time arrangements for child – where the father seeks shared parental responsibility, weekend time and telephone contact with the child – where the mother seeks sole parental responsibility and that the father have no contact with the child –  where the child has certain disabilities – where the father has not spent time with the child for three years – allegations of family violence against the father – family violence intervention order between the father and mother – where there is significant medical evidence of the harm caused to the child by even the possibility of contact with her father – where the child has strongly held views that she does not want any contact with her father – where it is found that it is not in the best interest of the child to have orders which seek to foster a meaningful relationship with her father – orders made for the mother to have sole parental responsibility for the child, for the child to have no time and no contact with the father, for the child to be removed from the Airport Watch List, for the requirement that the father consent to the child obtaining a passport be dispensed with and an order pursuant to s64B(2)(g) of the Family Law Act 1975 restraining the father from making further application without leave of the Court – whether a vexatious proceedings order should be made against the father on the application of the mother pursuant to s 102QB of Family Law Act 1975 – Where it is found that the father has not frequently instituted or conducted vexatious proceedings – application pursuant to s 102QB dismissed

  • Swayte & Swayte (No. 2) [2020] FamCA 678

    14 Aug 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR STAY – Where application for stay of interim financial orders – Where consideration of applicable principles – Where conditional stay ordered.

  • Edkins & Felice [2020] FamCA 659

    11 Aug 2020

    FAMILY LAW – CHILDREN – Interim parenting – Where the mother did not press her contentions in relation to the father’s alleged violence towards herself, his mental health difficulties or substance misuse at interim hearing – Where the mother contends that the parties’ son has been sexually abused by two of the father’s step children – Where the mother asserts ongoing risk in the father’s care as he does not believe that the sexual abuse occurred and is failing to act protectively – Where the mother also maintained that the father has been physically aggressive towards the children in the past and poses some risk in this regard – Where the mother seeks the continuation of the short term interim orders made by consent at the interim hearing providing for limited unsupervised time with the father and also seeks a restraint on the father allowing the children to come into contact with his step-children – Where the father seeks a dismissal of the mother’s interim application such that the former interim orders that provide the children live with the mother and spend alternate weekends with him continue and proposes an additional order that he be required to ensure that the son not sleep in the same room as his stepson and that he or his partner “properly supervise” the son to ensure that he not be exposed to any form of abuse – Orders made as sought by the father.

  • Chaney & Danville [2020] FamCA 646

    11 Aug 2020

    FAMILY LAW – CHILDREN – Application by maternal grandmother to spend time and communicate with two children – the father and Independent Children’s Lawyer oppose the application – where both children have special needs – where the father has an acquired brain injury – father’s inability to cope with orders as proposed by the maternal grandmother – where maternal grandmother has not seen the children since 2017 – allegations of sexual abuse perpetrated by the maternal grandfather – consideration of best interests of the children – orders made as proposed by the father and Independent Children’s Lawyer.

  • Been & Been [2020] FamCA 698

    10 Aug 2020

    FAMILY LAW – PARENTING – No appearance by the mother – undefended final hearing – where the mother has not had consistent time with the children since September 2015 – where the mother appears to have a substantial alcohol addiction – where spending time with the mother could put the children at risk of serious emotional or psychological harm or neglect – where, notwithstanding risk, the father accepts that the children should have a meaningful relationship with the mother provided there are safeguards – orders made for the children to live with the father and spend time with the mother on certain conditions

  • Blakely & Blakely [2020] FamCA 647

    07 Aug 2020

    FAMILY LAW – CHILDREN – Application by father for parenting orders including orders for joint parental responsibility – Mother seeks for orders sole parental responsibility –  Allegations that children are at an unacceptable risk in the care of the father – Allegations of risk of sexual abuse and family violence – Allegations of alcohol abuse - Orders that the children live with the mother and the elder child spend time with the father only as agreed to by the mother and the younger child spend limited time with the father building up to alternate weekends – Permission for the mother to travel regularly with the children to Japan as a State which ratified the 1980 Hague Abduction Convention – Use of Hague Convention liaison Judges – Question of mirror orders in Japan and/or bond regarding travel

  • Tabano & Yabon [2020] FamCA 643

    05 Aug 2020

    FAMILY LAW – CHILDREN – Recovery Order – Where the mother seeks a recovery order for the eldest of three children subject to the proceedings – Where that child has been residing with the father’s sister-in-law for a number of months – Where a final hearing took place over nineteen days in March, April and May, this year, and judgment is reserved – Where the Independent Children’s Lawyer and the father seek that the mother’s application for a recovery order be dismissed – Where the father also seeks other interim orders – Where the Court is not persuaded that there should be any immediate change to the living arrangements of the three children, whilst judgment is reserved – Where an order will be made enabling the eldest child to have telephone contact with her two younger siblings, with those telephone calls to be monitored by the mother – Where the application for a recovery order is dismissed.

  • Karle & Peluso [2020] FamCA 633

    04 Aug 2020

    FAMILY LAW – PARENTING – Where the mother opposes the children spending overnight time in the presence of the father’s flatmates – Where there is no risk enunciated to the children being in the presence of the flatmates – Orders allowing overnight time – Orders for the father to have graduating time with the children during holidays – Ancillary orders made.

  • Cimorelli and Anor & Wenlack and Anor [2020] FamCA 635

    03 Aug 2020

    FAMILY LAW – CHILDREN – Interim parenting – Where application for time with the subject children by the maternal grandparents – Where application made in context of long running parenting proceedings between father and mother – Where children live with father – Where mother previously ordered to have supervised time with the children – Where conduct of maternal grandfather of concern – Where risks to children in unsupervised time with maternal grandparents – Where consideration of applicable principles – Where  orders made for grandparents to have supervised time and not otherwise.

  • Cimorelli & Wenlack [2020] FamCA 615

    27 Jul 2020

    FAMILY LAW – COURTS AND JUDGES – Apprehension of bias – Waiver – Where the mother contends that the cumulative effect of comments made at several court events and the general management of the proceedings would cause a reasonable person to fear deviation from the course of determining the parties’ parenting dispute on its merits – Where the mother also contends prejudgment of substantive matters in the parenting dispute – Application of the two-step test in disqualification applications on the ground of apprehended bias – Consideration of any actual bias – Application dismissed.

  • Neaden & Fillborow [2020] FamCA 607

    24 Jul 2020

    FAMILY LAW – FAMILY VIOLENCE – allegations of abuse of the children – abuse not dependent on intent or recklessness but dependent on result – allegations of risk of psychological harm to the children caused by adherence to abuse allegations – role of evidence relating to physical and sexual abuse where findings not sought by the party adducing the evidence – significance of jurisdiction not being strictly inter partes – parenting capacity – risks occasioned by lack of parenting capacity – characteristics of children – where children face increasing risk if continue to live with the Mother – where risks will abate over time if live with the Father – where change of residence in best interests of children –- where Mother has not complied with orders for children to spend time with the Father – where Father has not seen children since 2014 – views of children  whether there should be a moratorium on time with Mother – where supervised time transitioning to weekend time is in best interests  – where Final Orders will reduce likelihood of further litigation

  • B & Coburn (Deceased) and Ors [2020] FamCA 548

    09 Jul 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Stay of costs order – Where an order was made that the applicant (a barrister) be jointly and severally liable with the second respondent (a solicitor) for the costs of the first respondent fixed in the sum of $100,000 – Where the applicant seeks a stay of that order pending appeal – Where the first respondent does not consent to a stay – Consideration of the principles relevant to an application for a stay pending appeal to an intermediate appellate court – Where the onus is on the applicant to establish a proper basis for the stay – Where the applicant has failed to establish such a basis – Where the application for a stay is dismissed.

  • Adamo & Vinci [2020] FamCA 537

    07 Jul 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of an expert – Where the husband proposes to appoint his brother as an expert in the proceedings – Where there has been no attempt to appoint a single expert – Where the husband’s brother may not be considered as an impartial and objective witness to a reasonable observer – Application dismissed

  • Asquith & Garner [2020] FamCA 475

    12 Jun 2020

    FAMILY LAW – CHILDREN – where the mother seeks to relocate with the children to Europe – where the father contests the application for international relocation – orders made for the children to live with the mother

  • Pearson & Pearson (No. 2) [2020] FamCA 684

    25 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Application by husband seeking a stay of a costs order pending determination of an Appeal – Application for a stay granted subject to conditions – Costs of the parties are reserved – Interest to accrue on the award of costs pursuant to the provisions of the costs order, although not enforceable until such time as the stay is discharged

  • MacAllan & Jarred [2020] FamCA 658

    11 Aug 2020

    FAMILY LAW – PARENTING – Review of the decision of a Senior Registrar – Where there are two children, both aged two and a half – Where both parents have a history of significant substance abuse – Where there is a serious risk of harm in the care of either parents – Where the paternal family have provided undertakings to the Court – Order for the children to live with the father at the home of the paternal grandparents – Order for the children to be supervised by the paternal family – Orders for the mother to have supervised time.

  • Nielsen & Springer [2020] FamCA 617

    28 Jul 2020

    FAMILY LAW – ORDERS – Contravention – Where final orders were made – Where the father alleges the mother has breached the orders – Where the mother admits the breaches but with reasonable excuse – Where the mother unilaterally relocated the children’s residence to northern New South Wales – Where the father was subsequently unable to spend time with the children as per final orders – Whether the mother had a reasonable excuse – Where the mother believed the contravention was necessary to protect the health or safety of the children – Where the mother is found to have contravened the orders without reasonable excuse.