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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.

  • Main & Walton [2020] FamCA 927

    04 Nov 2020

    FAMILY LAW – INTERIM PROPERTY – Where the applicant seeks $500,000 partial property settlement and $150,000 for litigation funding under section 90SM of the Family Law Act 1975 (Cth) – Where the applicant made unchallenged contributions in the relationship – Where the applicant has an appropriate case for partial property distribution – Where the applicant, in final distribution, would receive substantially more than the $650,000 sought for interim distribution – Orders made for partial property settlement.

  • Farina & Lofts [2020] FamCA 915

    30 Oct 2020

    FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply – Where it is in the children’s best interests that the parents have equal shared parental responsibility – Where it is in the children’s best interests that, from the start of the 2021 school year, they live in an equal-time week-about parenting regime

  • Falls & Patson [2020] FamCA 907

    30 Oct 2020

    FAMILY LAW – CHILDREN – Best interests – With whom the children shall live and spend time – Where final parenting orders were previously made by consent providing for the children to live with the mother and spend substantial time with the father – Where the father sought reversal of the children’s residence – Where the mother opposed reversal of the children’s residence and sought orders for the children to spend time with the father in accordance with a similar regime imposed by the previous consent orders – Where the ICL supported the father’s application –- Where it is alleged the mother’s parenting capacity is impaired due to her unwillingness or inability to support the children’s relationships with the father – Where the mother lacks the insight to objectively critique reports made by the children about the father and events in his household – Where allegations that the children were subjected or exposed to the risk of harm by reason of sexual abuse, family violence and neglect were either not supported by the evidence or abandoned – Where the children have meaningful relationships with both parties – Where the children wish to retain their residence with the mother and spend more time with the father – Where considerable weight must be attributed to the children’s views due to their ages – Where the father and his partner are not readily available as primary carers – Where the mother submitted she would comply with orders made by the Court – Ordered the children live with the mother and spend substantial time with the father

    FAMILY LAW – CHILDREN – Parental responsibility – Where the parties accept the presumption of equal shared parental responsibility does not apply – Family violence – Where an order for equal shared parental responsibility would not be in the children’s best interests – Where the parties implicitly accept that the residential parent should be vested with sole parental responsibility – Where the children will continue to live with the mother – Ordered the mother shall have sole parental responsibility for the children.

  • Christy & Young [2020] FamCA 911

    26 Oct 2020

    FAMILY LAW – CHILDREN – Interim parenting – Where the mother contends that the children are at risk in the father’s care on the basis of sexual abuse allegedly perpetrated by the father’s partner towards the children – Where the mother proposes that she hold sole parental responsibility for the children and that the children spend very limited supervised time with the father at a contact centre – Where father denies that the children are at risk in his care on any basis and proposes orders that would see the parents equally share parental responsibility and the children spend substantial and significant time with him on an unsupervised basis – Where the ICL does not agree that it is in the children’s best interests for their time with the father to be limited and supervised by a professional agency and proposes orders that will see the children spend increased time with their father supervised by the paternal grandparents – Where on the available evidence it appears the children receive a benefit from maintaining a meaningful relationship with their father – Where the allegations of sexual abuse against the father’s partner have been investigated by JCPR and have been found to be unsubstantiated – Where it is unlikely that a court will assess that the children are at an unacceptable risk of harm in the care of either parent – Where it is not appropriate for any order to be made in relation to parental responsibility at this interim stage – Where it is appropriate to make orders relating to changeover and restraints on each party given the parental and interfamilial conflict which appears to be the most significant risk factor in the dispute.

  • Morad & Tulun (No. 2) [2020] FamCA 896

    23 Oct 2020

    FAMILY LAW – Costs – where the Husband seeks a costs order against the Wife – where the Wife was wholly unsuccessful - indemnity costs not appropriate – where an order is made for the Wife to pay the Husband’s costs on a party/party basis.

  • Phelps & Phelps (No. 2) [2020] FamCA 900

    19 Oct 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – where the proceedings are listed for trial in a month – where the single expert forensic accountant’s report has not yet been completed – where the wife may, after considering the single expert’s report, press her application for the appointment of an adversarial expert – where the wife seeks to provide the single expert with further information – where the husband opposes such information being provided to the single expert – application to provide the single expert with further information dismissed – Where the husband seeks to restrain the wife from causing or permitting accountants retained by her from attending any meeting with the single expert – application dismissed.

  • Haigh & Haigh [2020] FamCA 872

    16 Oct 2020

    FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child – Where the child currently resides with the father and has spent limited supervised time with the mother – Where the mother seeks an increase in time to shared care in a short period – Where the father seeks that the child live with him and that there be a gradual increase in the mother’s time – Meaningful relationship – Whether the child is at risk – Where the mother suffers from a chronic mental health illness – Where the mother has previously been hospitalised on several occasions – Where the mother’s illness has been stable for a period of time – Where the evidence supports that the mother has insight into her illness and is able to recognise warning signs of an onset of a mental health episode – Where a slow and gradual increase in the mother’s time to eventual shared care is in the best interests of the child – Orders.

  • Frentz & Martens [2020] FamCA 871

    16 Oct 2020

    FAMILY LAW – PROPERTY – Final orders – Where the parties agree the property of the marriage should be divided equally between them – Where the parties are agreed on the value of all assets except for the former matrimonial home – Where the parties agree the former matrimonial home should be sold – Where the parties are in dispute as to the method and manner of sale and the sale price of the former matrimonial home – Where the property is currently listed at a price significantly above the valuation figure – Where the wife seeks a graduated reduction in sale price should the property not sell over time – Where the husband seeks the property remain on the market with no proposal if the property should not sell – Where the only reliable evidence of value is in a valuation report from 2019 – Where the Court should explore all reasonable avenues to end the financial relations between the parties – Orders.

  • Zammit & Zammit and Anor [2020] FamCA 867

    16 Oct 2020

    FAMILY LAW – PROPERTY – Applications by husband and wife for alteration of property interests – cohabitation period of 10 years – where there were short periods of separation during the marriage – two children of the marriage – where Second Respondent seeks property orders on the basis of her claims in equity – Second Respondent asserted husband acted in breach of trust by utilising monies held on trust for the benefit of her and her husband – Second Respondent asserted husband acted in breach of his fiduciary duties in utilising monies in her account under a power of attorney – consideration of whether monies were gifted to the husband by his father and the Second Respondent – where the evidence does not establish a trust – where husband transferred his one half interest in property to the Second Respondent – where husband divested funds prior to final separation – assessment of contributions – husband made greater initial contributions – contributions by wife as homemaker and parent – wife remains as primary carer of the children – orders made.

  • Marcone & Marcone [2020] FamCA 850

    09 Oct 2020

    FAMILY LAW – PROPERTY – Final Orders – where the parties separated approximately 10 years ago – where the parties agree that the division of the matrimonial assets should be equal – where the wife seeks an add-back in the sum of $19,000 – monies added back to the asset pool – where the wife’s principal residence will be subject to CGT if she sells the property – where the wife seeks that the husband indemnify her for 50% of any CGT liability she may incur from the sale of the property in the next 8 years – where the husband agrees to indemnify the wife for 2 years – where the parties seek a declaration of the existence of their Trust  – declaration as to the existence of the Trust – order for a contingent liability that the husband be required to indemnify the wife in respect of one half of the CGT in the event of the sale of her principal residence for a period of 2 years – order for a 50/50 division of the net asset pool.

  • Rickert & Rickert (No. 2) [2020] FamCA 841

    06 Oct 2020

    FAMILY LAW – CHILD SUPPORT – Where the Applicant husband has made an Application for interim orders including for the discharge of previous consent Orders made in respect to child support –Where previous consent Orders were made for the husband to pay 65% of children’s private school fees – Where the husband has not complied with his obligations to pay the school fees since November 2019 – Where the husband is in arrears of $40,000 of school fees payable by him – Where the husband has failed to serve the Child Support Registrar with his Application – Application adjourned to the first day of hearing.

    FAMILY LAW – SPOUSAL MAINTENANCE – Where the Application for interim orders also seeks the discharge of previous consent Orders made in respect to spousal maintenance – Where previous consent Orders were made for the husband to pay, by way of interim spousal maintenance, the rates and insurance expenses for the former matrimonial home – Where the final hearing has been listed in three (3) months of this interim Application – Consideration given to whether the circumstances have changed or new facts have been discovered – Application dismissed.

    FAMILY LAW – INTERIM PROPERTY DISTRIBUTION – Where the Application for interim orders also seeks orders for a partial property distribution through the sale of the parties former matrimonial home – Where the wife seeks to retain the property at the final hearing of the matter – Where the final hearing has been listed in three (3) months – Consideration given to whether it is in the interest of justice for such an order to be made – Application dismissed.

    FAMILY LAW – COSTS – Where the wife seeks that her costs of this Application be paid for by the husband on an indemnity basis – Whether the conduct of the parties to the proceedings justifies an order for costs – Court finds an order should be made for costs to be awarded on a party/party basis – Consideration as to quantum of costs - Whether costs should be paid on a lump sum basis – Whether costs should be paid following the final property Orders being entered – Order made for the husband to pay the wife’s costs incidental to this interim Application on a party/party basis in a fixed lump sum amount following the conclusion of the substantive property proceedings.

  • Olaf & Milne [2020] FamCA 829

    02 Oct 2020

    FAMILY LAW – CHILDREN – where the father seeks equal shared parental responsibility for both children and the mother seeks sole parental responsibility – where the mother seeks to reduce the children’s unsupervised time with the father, including supervised for a period – where the eldest child has expressed a wish not to spend time with the father which view has been supported by the mother – where the Court has no confidence that any prescribed order for the eldest child to spend time with the father will be sustained – where the Court finds the mother has not genuinely supported the children’s relationship with the father – where the Court finds both children are at a level of mostly emotional harm in the care of each parent –no prescribed orders for time made for the eldest child – orders made for the youngest child to spend alternate weekend time with the father – order made for equal shared parental responsibility

  • Rickert & Rickert [2020] FamCA 842

    24 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Amendment of interim Application –Where the husband seeks to move on an amended minute of order at the commencement of the hearing – Where the original orders sought were for a partial property settlement – Where the amended orders additionally seek orders for litigation funding, in the alternative, pursuant to ss 114 and 117 of the Family Law Act 1975 (Cth) – Where the wife’s legal representatives have not been served with the amended minute of orders in accordance with the Family Law Rules 2004 (Cth) – Reasons provided on behalf of the husband inadequate to justify overriding the wife’s right to procedural fairness – Application dismissed.

  • Imbardelli & Imbardelli and Ors [2020] FamCA 876

    05 Nov 2020

    FAMILY LAW – CHILDREN – PROPERTY SETTLEMENT – Where previous consent orders have been set aside under s79A of the Family Law Act – Where both property and parenting arrangements resolved by consent – Where it is nonetheless appropriate to record why these orders are in the best interests of the children and just and equitable – Where the family report finds there has been alignment by the children with the father and strong rejection of the mother – In light of this significant rejection of the mother, the family report recommends for there to be no contact with the mother until and if the children request such contact – Where both parents consent to orders in accordance with the recommendations of the family report writer – Where the agreed property settlement affords the wife an amount at the bottom end of the range which can be considered just and equitable – Where the wife consents to this on the basis that the father has financial responsibility for the three children and she wished the children to have the greater benefit of the remaining assets.

  • Shnell & Frey (No. 3) [2020] FamCA 926

    04 Nov 2020

    FAMILY LAW – COSTS – Where a final property order has been made – Where the husband seeks to recover from the wife his costs incurred in the proceedings in the fixed sum of $154,061.04 – Where the wife opposes the costs application – Where the circumstances justify a costs order but there is no exceptional circumstance that would warrant an order for costs on an indemnity basis – Where the wife shall pay the husband’s costs of the proceedings fixed in the sum of $80,000 and the husband’s costs of the costs application fixed in the sum of $1,500, both payable within 30 days of the finalisation of her appeal.

  • Tabano & Yabon (No. 3) [2020] FamCA 923

    03 Nov 2020

    FAMILY LAW – CHILDREN – Interim – Where a parenting trial was conducted over nineteen days in March to May 2020 and judgment is reserved – Where the father applies to the Court for interim orders for sole parental responsibility and for the three children who are the subject of the proceedings to live with him – Where the mother and the Independent Children’s Lawyer oppose the application – Where it is not appropriate to make fresh interim parenting orders whilst judgment is reserved.

    FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks the Court refer the mother and her affidavit to the Attorney-General to consider prosecuting her for offences under the Criminal Code 1899 (Qld) for perjury or fabrication of evidence.

  • Hadid & Matin [2020] FamCA 909

    28 Oct 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where the Registrar made an Order for the husband to pay the wife’s costs thrown away at a Conciliation Conference – Where that money may be paid upon the finalisation of proceedings – Orders varied.

  • Tillson & Keller (No. 2) [2020] FamCA 899

    26 Oct 2020

    FAMILY LAW – CHILDREN – Parenting Orders – International Relocation – Where the mother is from New Zealand and has lived in Australia for 12 years – Where the mother seeks to return to New Zealand and relocate the child – Where the father opposes relocation – Where the Independent Children’s Lawyer opposes relocation –  Where the mother and the father have a history of depression and anxiety – Where the father was diagnosed with a Major Depressive Disorder – Where the mother’s parenting capacity will likely improve if relocation permitted – Where the father’s mental health is likely to suffer if relocation permitted – Where the parties agree to equal shared parental responsibility – Where an order for equal time is not in the child’s best interests – Where the child is to live with the mother and spend substantial and significant time with the father – Where the mother is willing to foster the relationship between the child and the father – Where the child can spend substantial and significant time with the father if relocation permitted – Where the best interests of the child are met by allowing relocation – Where the mother is to register the Order as an overseas parenting order with the District Court of New Zealand

  • Mahony & Nierre [2020] FamCA 897

    23 Oct 2020

    FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where consideration of applicable principles – Where parental conflict between the parties is the salient issue of risk to the children – Where expert’s opinion that the children will benefit from time with the father considered – Where mother also holds the view that there is benefit to the children maintaining a relationship with father – Where orders made providing the mother with sole parental responsibility – Where orders made for the children to live with the mother – Where orders made for children to spend time with the father as agreed between the parties and be able to communicate with him at all reasonable times – Where appropriate to make orders permitting mother to obtain passport for the children and travel internationally with them without the father’s consent.

  • Sims & Sims [2020] FamCA 866

    23 Oct 2020

    FAMILY LAW – PROPERTY – relationship of around 26 years – where the parties have been separated for at least 13 years – where the proceedings have been stalled by the failure to finalise contested Supreme Court Estate proceedings – where until separation financial and non-financial contributions were equal – where no significant adjustment made in favour of either party is justified to the contribution based entitlements – where the husband contends that it is not just and equitable to make any adjustment to the current legal and equitable interests – where the husband will likely be in a superior asset position arising essentially from his inheritance – property adjustment order made for the husband to make a payment to the wife achieves justice and equity.

  • Hurley & Melton (No. 2) [2020] FamCA 917

    22 Oct 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Requirements of section 102NA(2) of the Act ordered to apply.

  • Goh & Ren [2020] FamCA 881

    22 Oct 2020

    FAMILY LAW – NATIONAL ARBITRATION LIST – proceeding referred to the NAL judge for directions under s 13F of the Family Law Act – need for procedural fairness – arbitrator determining procedural steps without hearing both parties – problematic – need for procedural fairness – content of obligation explained.

  • Kasan & Kasan and Anor [2020] FamCA 895

    20 Oct 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – application by the second respondent for the appointment of a case guardian to be appointed for the first respondent – whether a case guardian should be appointed – application dismissed.

  • Kabir & Kabir (No. 2) [2020] FamCA 865

    15 Oct 2020

    FAMILY LAW – CHILDREN – interim hearing – parental responsibility – time spent with Father – handover arrangements – where departure from existing interim orders is sought – where there has been noncompliance by the parties with handover orders – where involvement of both parties in long term issues is protective – where no change to current orders is warranted – where verification and certainty in handovers is required – where handover centre enables verification

  • Winston and Anor & Neefs [2020] FamCA 862

    12 Oct 2020

    FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings – Whether it is in the child’s bests interests to permit adoption proceedings – Where the respondent biological father consents to the adoption – Order that leave be granted.

  • Denford & Manville (No. 3) [2020] FamCA 844

    02 Oct 2020

    FAMILY LAW – CHILDREN – Best Interests – Where the mother seeks that the Court determine whether or not the father poses an unacceptable risk of harm to the children if they were to spend unsupervised time with him – Where the father seeks that the children live in an equal time arrangement between he and the mother – Where the Court finds that the father does not pose an unacceptable risk of harm to the children – Where it is not reasonably practicable for the children to live in an equal time arrangement between the parents – Where the parents will have equal shared parental responsibility, the children will live with the mother and spend alternate weekends and half school holidays with the father, subject to his completion of an anger management course.

  • Vidler & Vidler [2020] FamCA 840

    01 Oct 2020

    FAMILY LAW – CHILDREN – With whom a child lives and spends time – Family Violence – Interim matters – Where the children live with the mother and have spent limited time with the father on an ad hoc basis – Where the father seeks to spend regular time with the children – Where the mother opposes the time unless it is supervised – Where the mother alleges the father has perpetrated physical and sexual abuse towards her and the children – Where the father denies the allegations – Where the children have been interviewed by Child Protection Services – Where the Independent Children’s Lawyer supports time be spent with supervision – Where the Court should protect the children’s relationship with the father – Where the Court should adopt a cautious approach in interim matters where there is contested evidence and an assessment of risk – Best interests of the child – Orders.

  • Verdon & Verdon [2020] FamCA 824

    30 Sep 2020

    FAMILY LAW – EXPERT EVIDENCEhusband’s application to rely on an adversarial witness – application granted.

    FAMILY LAW – PART PROPERTYseveral prior orders already made – wife seeking $500,000 – husband agreeing to pay $348,288.63 – just and equitable to make order for $500,000 so as to enable wife to pay all legal costs previously incurred and a further sum.

    FAMILY LAW – LITIGATION FUNDINGwife seeking a further amount on top of $500,000 – husband proposing a dollar-for-dollar order – review of authorities – held, litigation funding’s purpose is for meeting costs actually incurred and not for costs yet to be incurred – review of authorities – dollar-for-dollar order doubted – application for litigation funding order refused.

  • Sewin & Cheals [2020] FamCA 820

    28 Sep 2020

    FAMILY LAW – PROPERTY – Interim property settlement – Where the wife seeks an interim property distribution – Application pursuant to section 79 of the Family Law Act 1975 (Cth) – Consideration of the two-step approach in respect of interim property applications – Where it is just and equitable to make an interim distribution as sought by the wife.

    FAMILY LAW – PRACTICE AND PROCEDURE – Disclosure – Where both parties seek orders for disclosure – Where the wife asserts that the husband has failed to provide adequate disclosure in the proceedings – Orders made as sought by each of the parties as to disclosure.

    FAMILY LAW – INJUNCTIONS – Where the wife seeks that the husband be restrained from further encumbering or dealing with two of the parties’ investment properties – Where the husband opposed this on the basis that he is currently further encumbering the investment properties in failing to meet mortgage repayments – Where there are currently interim orders in place requiring the husband to ensure all rental income for the investment properties is transferred into the respective loan accounts – Application dismissed.

  • Canh & Canh [2020] FamCA 882

    18 Sep 2020

    FAMILY LAW – CHILDREN – Interim parenting orders – Where interim parenting orders previously made – Where the mother is experiencing financial distress due to the father’s alleged failure to meet his spousal maintenance obligations – Where the mother proposes to relocate with the children to take up gainful employment – Where the relocation would entail changing the children’s school enrolment – Where the father’s Response to an Application in a Case is summarily dismissed but his evidence is still relevant to his defence of the mother’s application – Where the father opposes the mother’s relocation with the children and any change to the children’s schools – Where the mother submitted her relocation with the children will not affect the time the children spend with the father under the current interim parenting orders – Where there is no need to make an order allowing the mother to relocate – Ordered the mother be allocated sole parental responsibility to decide the schools at which the children are to be enrolled.

    FAMILY LAW – PROPERTY – SINGLE EXPERT WITNESS – Where previous orders were made appointing single expert witnesses to value different assets owned by the parties – Where a single expert witness has withdrawn – Where the mother seeks appointment of a substitute single expert witness – Where the father opposes appointment of the single expert witness proposed by the mother – Where existing orders require the parties to jointly instruct the singe expert witnesses – Where the parties have been unable to cooperate sufficiently well to procure the expert evidence needed for trial – Ordered the single expert nominated by the mother be appointed – Ordered the mother be vested with responsibility for instructing the single experts.

  • Reid & Hanlon [2020] FamCA 868

    17 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Where there is an application by the husband that the parties’ daughter be appointed as his case guardian – Where the parties are elderly – Where the husband is struggling with the stress of the proceedings – Case guardian appointed – Ex-tempore reasons given.

  • Dains & Dains [2020] FamCA 851

    04 Sep 2020

    FAMILY LAW – CHILDREN – interim – where the mother seeks the child’s time with father remain supervised – where the father seeks time progress to unsupervised and overnight – where the Independent Children’s Lawyer contends that time should move to unsupervised – further interim orders made until a final hearing in six months for progression of unsupervised and increased time with the father.

  • Hackett & York [2020] FamCA 848

    03 Jul 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar decision – Subpoena objection – Where the husband seeks that an objection to a subpoena to a third party corporation be dismissed – Where the documents sought are not relevant to the matter as it currently stands in relation to the husband’s substantive application – Where the Court already has an indication of the value of the assets in question – Whether legal professional privilege in respect of the subpoenaed material arises – Review dismissed – Objection upheld.

  • Galvin & Galvin (No. 2) [2020] FamCA 908

    28 Oct 2020

    FAMILY LAW – CHILDREN – Interim – Where there are currently interim parenting orders providing for the child to live in an equal shared care arrangement – Where the father seeks a variation of those orders based on the child’s views allegedly expressed to him – Where a recent independent report has been prepared to ascertain the child’s wishes – Where the Independent Children’s Lawyer recommends that the child spend time with the mother from after school Friday to before school Monday each alternate weekend – Where the father supports this position and the mother opposes it – Where it is in the child’s best interests to live principally with her father and for her father to facilitate additional time with her mother in accordance with the child’s wishes.

    FAMILY LAW – PROPERTY – Interim – Where the wife seeks an interim litigation costs funding order – Where the wife is unable to continue to meet the legal costs associated with these proceedings and family violence proceedings – Where the husband has capacity to pay a lump sum – Where the characterisation of that payment is to be determined by the Trial Judge.

  • Department of Child Safety, Youth & Women & Dajani [2020] FamCA 891

    22 Oct 2020

    FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the applicant alleges that the children were wrongfully retained by the mother in Australia and seeks their return to New Zealand – Where the mother alleges that the father either consented to their removal or has acquiesced to their retention – Where it is found that the father did not consent to the children’s removal or acquiesce to the children’s retention in Australia – Where a return order is made.

  • Kalant & Jordain (No. 6) [2020] FamCA 890

    22 Oct 2020

    FAMILY LAW – where Mother seeks interim suspension of time with the Father – where Mother says that the child has been harmed in the Father’s care – where Father denies harming the child – where Mother says that child is at further risk in the Father’s care – where Mother says that suspension should last until investigations by NSW police and CYPS are completed – where child appears at ease in the Father’s care in photographs – where source of bruising is unknown – where child’s description appears inherently unlikely – risk of damage to relationship between child and Father if time is suspended – risk of harm to child – where it is not in the child’s best interests to displace current arrangements for time with the Father

  • Aldam & Cesari (No. 4) [2020] FamCA 888

    22 Oct 2020

    FAMILY LAW – COSTSstay application dismissed – offer in writing to deal with stay application rejected by party against whom costs order made.

  • Sigley & De Santis and Ors (No. 4) [2020] FamCA 903

    21 Oct 2020

    FAMILY LAW – PRACTICE AND PROCEDUREpleading amendments sought by applicant – trial well underway yet parties log jammed on pleading amendments – latest version imprecise and unclear, advancing allegations akin to fraud – held, leave to replead in terms of the proposed amendment refused – leave to replead given.

  • Lonsdale & Trevor (No. 2) [2020] FamCA 886

    21 Oct 2020

    FAMILY LAW – ORDERS – Contravention – Where the father alleged the mother had contravened orders by not making the child available to the father – Where the mother admitted the breach but contended she had a reasonable excuse – Where the contravention was proven – Where the father does not seek a penalty be imposed – Where the contravention is regarded as less serious – no penalty.

    FAMILY LAW – ORDERS – Variation – Where the mother seeks a variation of the final orders to better particularise the commencement of the school holidays – Where the issue was central to many counts of an Application for Contravention – Orders.

  • Lambard & Lambard and Ors (No. 3) [2020] FamCA 879

    20 Oct 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Where the father has made an Application for leave to be granted retrospectively for the issue of subpoenas – Where, at the time of the decision, documents had already been produced to the Court in respect of three (3) of the four (4) subpoenas – Where a letter was provided to the Court in respect of the fourth subpoena that there were no documents to produce – Where the parties consent in respect to inspection of two (2) of the subpoenas - Where the pressing issue before the Court concerns a subpoena issued to the maternal grandmothers former employer – Where the mother and maternal grandmother seek disclosure of financial documents of the paternal grandmother – Where the mother and maternal grandmother seek leave to issue a subpoena to the paternal grandfather, a third party to the proceedings – Orders made for leave to be granted retrospectively in respect of the three (3) subpoenas – Orders made for the paternal grandmother to provide financial documents – Orders made granting leave to issue a subpoena to the paternal grandfather.

  • Coley & Coley [2020] FamCA 877

    19 Oct 2020

    FAMILY LAW – PARENTING – Where the mother suffers from severe alcohol abuse – Where the child lives with the father – Where the child has expressed fear of living or spending unsupervised time with the mother – Where the child suffers heightened anxiety prior to supervised time with the mother – Where the mother is fixated on alleged sexual abuse of the child – Where this Court has made findings that, on the balance of probabilities, this sexual abuse did not occur – Where the child is exposed to the mother’s views – Where the mother has frequently been unable to attend supervised contact – Where it is not in the child’s best interests to have regular or unsupervised time with the mother – Orders for the child to spend supervised time with the mother on three occasions a year.

  • Sigley & De Santis and Ors (No. 3) [2020] FamCA 883

    16 Oct 2020

    FAMILY LAW – EVIDENCERULING AS TO ADMISSIBILITY expert adversarial affidavit – discretion to allow evidence despite non-compliance with Chapter 15 – Rule 1.12 prevails.

  • Fern & Fern [2020] FamCA 874

    16 Oct 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment – Where the Applicant seeks an adjournment to allow additional time to gather further evidence – Where the Respondent did not respond to the request in any meaningful way – Where the adjournment is granted in Chambers

  • Urwin & Nevins [2020] FamCA 887

    15 Oct 2020

    FAMILY LAW – CHILDREN – Application by father to discharge order suspending the operation of interim parenting orders which provided for the children to spend supervised time with the father – order for time had been suspended on the father being charged with sexual offences against the children’s half-sister – father’s trial for alleged sexual offences listed for May 2021 – father’s application dismissed.

  • Eaves & Eaves (No. 2) [2020] FamCA 863

    14 Oct 2020

    FAMILY LAW – PROPERTY SETTLEMENT – Financial agreements –Where the wife seeks that the financial agreement be set aside pursuant to s 90K of the Family Law Act 1975 (Cth) – Where the parties entered into a financial agreement in 2005 – Whether the agreement should be set aside on the application of the principles of duress, unconscionable conduct and undue influence –- Where the agreement was signed a couple of days before the marriage – Where the wife contends the husband informed her for the first time about the agreement the day before she signed the agreement – Where the wife claims she did not read the agreement before signing it - Where the wife concedes she knew what she was doing but had no other option but to sign the financial agreement – Where the wife concedes the husband did not say or do anything to indicate the marriage would not go ahead if she did not sign the agreement – Where each party received separate and independent legal advice - Where the wife was not in a position of special or significant disadvantage – Where the will of the wife was not overborne by the husband – Application dismissed.

  • Poels & Poels [2020] FamCA 860

    14 Oct 2020

    FAMILY LAW – COSTS – Between parties – Where the husband was wholly unsuccessful in resisting the wife’s application for exclusive occupation – Wife’s costs of application granted at scale.

  • Lambard & Lambard and Ors (No. 2) [2020] FamCA 858

    14 Oct 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of a single expert – Where the parties have been unable to agree on the identity of the singe expert to be appointed to consider and comment on the mother’s mental health – Where the parties have been unable to agree on a joint letter of instruction to the single expert – Where the father and paternal grandmother contend that the single expert should be a generalist psychiatrist – Where the mother and maternal grandmother contend that the single expert should have specialised knowledge of perinatal psychiatry – Consideration given the task before the Court in the substantive proceedings in considering the mother’s mental health – Orders made for the appointment of one of the single experts proposed by the father – Orders made for the parties to prepare a joint letter of instruction seeking the single expert appointment to comment on specific issues.

  • Donnelly & Bryson (No. 3) [2020] FamCA 889

    13 Oct 2020

    FAMILY LAW – where final hearing was part heard – where the Department had agreed to join the proceedings at that point – where the Mother absented herself during the proceedings – where the Mother’s representation sought to withdraw – where caseworkers attended the Mother’s residence and served orders requiring her to attend via telephone – where there has been difficulty contacting the Mother – where the Mother has not attended – where the Mother had adequate notice of the proceedings – where the option to apply for orders to be set aside remains – hearing continued undefended.

  • Saint & Saint [2020] FamCA 861

    12 Oct 2020

    FAMILY LAW – CONTRAVENTION – Where the Applicant father failed to appear at the hearing – Where the Applications are dismissed for want of prosecution

  • Sigley & De Santis and Ors (No. 2) [2020] FamCA 855

    08 Oct 2020

    PLEADINGS – strike out application brought in respect of the 17th respondent’s counterclaim – trial one week away – counterclaim based on same substratum of facts on which applicant relies – no basis for strike out shown.

    SUBPOENA – claim to legal professional privilege in five items of correspondence – no factual explanation given to support the claim – trial listed to begin on 15 October 2020 for 12 days – Senior Registrar to inspect impugned documents to determine whether privilege exists and give judgment on 9 October 2020.

    SHAM TRANSACTIONS – review of key authorities.

  • Aldam & Cesari (No. 3) [2020] FamCA 849

    06 Oct 2020

    FAMILY LAW – STAY APPLICATION PENDING APPEAL no basis demonstrated – application refused.

  • Newett & Newett and Anor (No. 4) [2020] FamCA 856

    02 Oct 2020

    FAMILY LAW – CHILDREN – interim – further interim orders made for the children to spend increased unsupervised time with the mother

  • Keat & Veldon [2020] FamCA 817

    01 Oct 2020

    FAMILY LAW – PARENTING – With whom the children shall live and spend time – Where there are cross allegations of family violence – Where the children have been exposed to such violence – Where there are allegations that the father sexually abused the parties’ daughter – Where these allegations were substantiated and charges were laid, resulting in the father not spending time nor communicating with the children for two and a half years – Where the charges were later dismissed and the father was removed as a person causing harm by the Department of Communities and Justice – Where, thereafter, by orders of this Court, the father commenced spending time with the children graduating to each alternate weekend – Where this arrangement has successfully been in place for six months – Where shared care would expose the children to risk of harm – Ordered children live with the mother and spend time with the father each alternate weekend.

    FAMILY LAW – PARENTING – Parental Responsibility – Where both parties perpetrated family violence towards each other and exposed the children to such – Where the presumption of equal shared parental responsibility is rebutted – Where the parties are not in the habit of co-parenting – Where the mother is the primary carer of the children – Ordered mother have sole parental responsibility – Mother to consult the father when decisions arise to be made and to inform him of decisions taken by her.

  • Adami & Adami (No. 2) [2020] FamCA 837

    30 Sep 2020

    FAMILY LAW – COSTS – Where final orders have been made - Where the wife seeks costs in relation to two interim applications – Where the husband claims the wife’s application is out of time – Where the wife contends the question of costs were reserved in relation to the interim applications and are therefore still live – Where the Court finds the husband was not wholly unsuccessful.

    FAMILY LAW – COSTS – Circumstances justifying order – Where the wife seeks indemnity costs in relation to the husband’s non-disclosure of a Deed of Release in relation to a liability – Where the husband claims the wife’s application is out of time – Where the wife asserts the husband’s conduct was so egregious time should run from the date disclosure was made as opposed to when the final orders were made – Where hardship would be caused to the wife if time was not extended – Orders.

    FAMILY LAW – ORDERS – Discharge – Where final property orders included a payment to the wife for arrears of spousal maintenance – Where the husband seeks that the order be discharged and that he be reimbursed for payments – Where the Court is not in a position to reopen the proceedings.

    FAMILY LAW – ORDERS – Variation – Where final orders required the husband to transfer his right, title or interest in property to the wife with the wife to cause the mortgage to be discharged, refinanced or varied – Where the orders provided a default provision that the property be sold – Where the husband considers the wife has defaulted and seeks that the property be sold – Where the wife seeks a variation to the order extending the time for it to be complied with – Whether the order is substantive or machinery – Where there is no prejudice to the husband - Orders.

  • Joyce & Antony [2020] FamCA 823

    30 Sep 2020

    FAMILY LAW – CHILDREN – interim – where the father seeks a change of residence on an interim basis – where a final hearing is listed in six months where all of the evidence can be tested – where the parents now live in excess of 400 kilometres apart – where a change of residence will involve a change of schooling – where the child remaining at his current school provides stability for the child and is a significant factor that supports the child remaining in the mother’s primary care – where the Court is not persuaded that an interim change of residence is in the child’s best interests – current interim orders to continue with some variations to reduce travel time for the child.

  • Talwar & Malak [2020] FamCA 819

    28 Sep 2020

    FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias – Where the father contends that the manner in which final parenting orders proposed by consent were refused would cause a fair-minded lay observer to fear deviation from the course of determining the parties’ parenting dispute on its merits – Where father further contends awareness of compromise parties had reached also grounds feared deviation – Where father also contends prejudgment of issue of risk posed by him to the children – Application of the two-step test in disqualification applications on the ground of apprehended bias – Consideration of any actual bias – Application dismissed.

  • Tilki & Tilki [2020] FamCA 804

    23 Sep 2020

    FAMILY LAW – PROPERTY – Property Adjustment – Where discussion of applicable principles – Where both parties seek adjusting orders – Where assertion by the husband as to the wife’s gambling – Where significant matrimonial capital funds received by the husband post separation – Where consideration of relevant contributions and relevant s 75(2) factors.

  • Balbi and Anor & Anton [2020] FamCA 828

    22 Sep 2020

    FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the children’s best interests to permit adoption proceedings – Where the biological father has had a limited presence in the children’s upbringing and consents to the application – Where one of the children is already 17 years of age – Where leave is granted

  • Sigley & De Santis and Ors [2020] FamCA 780

    17 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDUREelectronic trial fixed for 16 October 2020 – respondent’s solicitor working from home in accordance with COVID restrictions – those solicitors contending they are unable to retrieve their files so as to advance their trial preparation – direction given to solicitors to retrieve files forthwith – direction given to report on success or otherwise of retrieval of their files.

  • Manfredi and Anor & Valenti and Anor [2020] FamCA 778

    16 Sep 2020

    FAMILY LAW – ADOPTION – leave to commence proceedings – where the applicants seek leave to commence adoption proceedings in the County Court of Victoria – where the applicants do not require leave under the Family Law Act 1975 (Cth) to commence adoption proceedings as they are not defined as prescribed adoptive parents under the Act.

    FAMILY LAW – CHILDREN – with whom a child lives – where the applicants seek final parenting orders for the child – where the respondents are the biological parents of the child and do not oppose the making of final parenting orders in favour of the applicants including an order for parental responsibility – where final parenting orders are made in the terms sought by the applicants.

  • Chen & Chen and Anor (No. 3) [2020] FamCA 744

    09 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – strike out application – incorporation of High Court Rules where Family Law Rules are silent on a matter – Family Law Rules making no provision for a pleading strike out application – incorporation of High Court Rules to that strike out application.

    PLEADINGS – inconsistent pleadings – vague, embarrassing and otherwise vexatious pleadings – strike out application well-founded.

    RESULTING TRUSTS – allegation made that certain real property and shares held by the second respondent on a resulting trust – detailed examination of all relevant authorities – held, pleading defective.

    CONSTRUCTIVE TRUSTS – allegation made that certain real property and shares held by the second respondent on a constructive trust – detailed examination of relevant authorities – held, pleading defective.

    TRACING – remedy in equity – need to show a proprietary interest in funds that are used to acquire the asset over which a resulting or constructive trust is asserted – review of relevant academic writings and authorities.

    IN PERSONAM EXCEPTION TO INDEFEASIBILITY OF TITLE – Breskvar v Wall (1971) 126 CLR 376 – no allegation of personal impropriety of conduct alleged against registered proprietor – held, pleading defective.

    STRIKE OUT APPLICATION – purpose of a strike out application – need for precision in pleading complex legal and equitable claims – undesirability of permitting a case to go forward in which the claims and causes of action are not properly pleaded.

  • Padley & Padley [2020] FamCA 717

    01 Sep 2020

    FAMILY LAW – EVIDENCE – Expert evidence – competence and apprehended bias – where the mother contends the subject child made disclosures regarding alleged sexual abuse perpetrated by the father – whether single expert who has prepared two reports in the proceedings should be disqualified for apprehended bias on the question of risk arising from sexual abuse allegations – where mother seeks appointment of an additional single expert with expertise in relation to allegations of sexual abuse – where mother argues expert evidence about risk of sexual abuse can be given as discrete expert evidence – where held apprehended bias not available on point of principle to disqualify existing single expert – where no basis for apprehended bias in any event – where the existing single expert is known to the child and familiar with the parties and the proceedings – where mother’s application dismissed.

  • Davey & Davey [2020] FamCA 528

    02 Jul 2020

    FAMILY LAW – PROPERTY – Interim – Spousal maintenance – Where the wife seeks orders for spousal maintenance by way of periodic and lump sum payments – Where the husband opposes the wife’s application – Whether the wife is able to adequately support herself – Whether the expenses of the children are a factor to be considered – Whether it is just and equitable to make orders for spousal maintenance – Where the husband contends that the wife’s expenditure is reckless – Orders made for spousal maintenance to be paid to the wife by way of periodic payments in respect of her weekly needs and lump sum payments.

    FAMILY LAW – PROPERTY – Interim – Partial property distribution – Where the wife seeks orders for partial property distribution to allow payment of debts owing in respect of her legal fees and her motor vehicle – Where the wife seeks orders for payment of the children’s expenses – Where the husband contends that the orders are in the nature of child maintenance orders – Whether orders for partial property distribution will deprive the parties of relief at final hearing – Orders made for interim partial property distribution.

  • Department of Communities and Justice & Coley and Anor [2020] FamCA 853

    09 Apr 2020

    FAMILY LAW – CASE GUARDIAN – Where there is an application for the appointment of a Case Guardian for the mother – Where the mother has suffered severe injuries due to a fall – Where the mother is still competent to give instructions – Where the mother’s legal representatives could take instructions – Application dismissed.

    FAMILY LAW – INTERIM PARENTING – Where there are allegations of sexual abuse perpetrated by the child’s half-brothers – Where there are serious doubts about the allegations – Where all evidence is before the Court – Where the child seeks a relationship with her brothers – Where there is not an unacceptable risk – Where the mother’s time is supervised – Order for supervised time once a month at the direction of the Department of Communities and Justice.

  • Talman & Beckley [2019] FamCA 1056

    21 Nov 2019

    FAMILY LAW – CHILDREN – where the Court finds the father does not pose an unacceptable risk of sexual abuse to the child – final consent orders made for the child to spend unsupervised overnight time with the father.

  • Zarif & Bent [2019] FamCA 1057

    18 Nov 2019

    FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks to rely upon a further affidavit responding to the mother’s affidavit of evidence in chief – Where trial directions made specifically limited reliance on other affidavits – Where the allegations made in the mother’s trial affidavit were largely already included in previous material filed by her and the father could have expected such allegations to be addressed in her trial material – Where the father could have been able to address them in his trial material – Where the application is dismissed

  • Syms & Syms (No. 2) [2019] FamCA 1059

    19 Aug 2019

    FAMILY LAW – EVIDENCE – Expert evidence – Objection to affidavit evidence – Whether the evidence of a psychiatrist is admissible – Application of Part 15.5 and 15.5.2 of the Family Law Rules 2004 (Cth) – Where the deponent has not been appointed as a single expert witness – Where the evidence is outside the scope of the operation of Rule 15.41 – Objection to affidavit of psychiatrist paragraphs 2-8 and 11, 12 – upheld – Where it would be unwise for the Court to rely on remaining evidence

  • Marshman & Baric [2019] FamCA 1058

    24 May 2019

    FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the mother and the child came to Australia from the United States of America – Where the mother attempted to leave Australia with the child – Where the mother and the child were stopped at the airport – Whether the child and the mother were in Australia to live for an unspecified period of time or here for a holiday – Whether the child was habitually resident in United States of America before being retained at the airport – Where it is found that the child was not habitually resident in the United States of America (or Australia) – Where the application is dismissed.

  • Vasil & Vasil (No. 2) [2020] FamCA 854

    09 Oct 2020

    FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the child is living with the mother and spending time with the father – Where the father is seeking to spend more time with the child – Where the mother considers the time spent with the father should be subject to the child’s wishes – Where the child is fourteen years of age – Where the child has expressed that she does not wish the time she spends with the father be regulated by a court order – Where the father argues the child’s voice is not hers but that of her mother – Where the father considers the child needs to be the subject of therapeutic intervention – Whether the mother would promote and facilitate the child’s relationship with the father – Consideration of meaningful relationship – Best interests of the child – Orders.
    FAMILY LAW – EVIDENCE – Expert Evidence – Where the father instructed an American clinical psychologist to provide a report analysing the Family Assessment Report – Where there was no agreement that the psychologist be appointed as a single expert – Where the father did not make an application to tender a report or adduce evidence of an expert witness – Where there was no objection to the report being received into evidence or to the witness giving evidence – Where the psychologist made no contact with any other party or child – Where the psychologist was not provided with any other court documents –Where the psychologist was not provided the relevant divisions of the Family Law Rules 2004 (Cth) – Consideration of weight to be given to the evidence – Where the expert witness was not objective.

     

  • Withers & Russell [2020] FamCA 847

    02 Oct 2020

    FAMILY LAW – CHILDREN – interpretation of orders – where orders provide for Mother to elect two one-week periods during the school term – interaction of that order with order for alternate weekend time.

  • Sandala & Nerandon (No. 2) [2020] FamCA 845

    02 Oct 2020

    FAMILY LAW – Application to take the child to Country B for a temporary visit – where Final Orders were made in 2017 providing for the child to live with the Father and spend time with the Mother including overseas travel – Final Orders stayed – where Mother’s travel with the child was predicated upon discharging or substituting Country F court orders – where Father is incarcerated – where Mother has sole parental responsibility for child in the interim – where Mother’s husband and other child are Country B citizens – where remaining in Australia allegedly prejudices the Mother’s permanent residency status in Country B – COVID-19 – travel documents – Hague Convention country – application refused.

  • Pearson & Coli [2020] FamCA 843

    30 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – ruling in a trial – accountant purporting to adduce evidence of expenditures without giving evidence about having inspected source documentation or the basis of his information and belief – held, evidence in its present form inadmissible – leave given to expert to adduce evidence in proper form – amount involved very considerable – trial adjourned part heard.

  • Hodak & Hodak [2020] FamCA 839

    30 Sep 2020

    FAMILY LAW – COSTS – application in a case filed by the wife for enforcement orders – where final orders were made in January 2020 and the parties executed a Binding Child Support agreement and financial agreement – where the husband has failed to make payments to the wife pursuant to the final orders and executed agreements – where the wife seeks the husband pay her costs of the application in a case – where the Court determined the husband should pay the wife’s costs – consideration as to quantum of costs – orders made.

  • Lonsdale & Trevor [2020] FamCA 825

    29 Sep 2020

    FAMILY LAW – ORDERS – Contravention – Where the father alleges the mother has breached orders in relation to the time he was to spend with the children – Where the mother denies some of the alleged breaches and admits the balance but with reasonable excuse – Where two of the alleged breaches relate to a dispute as to when the school holidays commence – Where the mother asserts one of the children was refusing to attend on occasion – Where the mother asserts on one occasion she was protecting the emotional health of one of the children – Where the father alleges the mother prevented him from communicating with the children – Where the mother asserts she provided the children with a phone to facilitate contact – Where the father alleges the mother took one of the children to see a psychologist – Where the mother asserts it was not specifically for the child nor was it in relation to a major long-term issue – Where the father alleges the mother breached orders by using her surname on the children’s school items – Where the mother asserts that she is not required to use the father’s surname for the children – Where the mother is found to have contravened only one of the orders.

  • Shnell & Frey (No. 2) [2020] FamCA 846

    25 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Application for a stay – Where the wife makes an application for a stay of the hearing of an application for costs brought by the husband where he seeks his costs of and incidental to final property proceedings – Application dismissed.
    FAMILY LAW – COSTS – Where the husband seeks costs incurred in responding to the wife’s application for a stay of the hearing of the application for costs – Where the wife was wholly unsuccessful – Where the wife is to pay costs fixed in the sum of $1,000.

     

  • Kelby & Kelby (No. 2) [2020] FamCA 816

    25 Sep 2020

    FAMILY LAW – PROPERTY – Application for final property settlement – Where the parties’ cohabitation and marriage was for a period of 25 years and where the parties have been separated for 21 years – Where, for the purposes of these proceedings, the husband is found to hold the whole of the equitable interest in the property in which he lives by way of resulting trust – Discussion of s 79(4) considerations and what alteration of property was just and equitable.

  • Kelby & Kelby [2020] FamCA 815

    25 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen – Where the final hearing has concluded and judgment is reserved – Where the applicant wife made an oral application to reopen the case to be granted leave to explore whether or not she could adduce further evidence about the respondent husband’s health and life expectancy – Where the evidence the wife relies upon in support of her application is third-hand hearsay – Where the husband disputes the evidence – Where the husband is prejudiced by the wife’s application to reopen – Application dismissed.

  • Tillson & Keller [2020] FamCA 806

    24 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open evidence after the conclusion of trial – Where the mother seeks to re-open evidence to adduce affidavit evidence relating to the father’s mental health – Where the father has filed affidavit evidence in response – Where the evidence relates to events that have occurred subsequent to the conclusion of the trial – Where there has been no undue delay – Where the evidence is about important issues that are very relevant to the best interests determination – Where leave is granted to admit affidavits deposed to by the mother, the father, the paternal grandmother and the paternal aunt and the matter will be listed for cross-examination of those persons.

  • Dives and Anor & Sales and Anor [2020] FamCA 786

    24 Sep 2020

    FAMILY LAW – CHILDREN – application for change of residence – where the maternal uncle and aunt seek the child live with them – where the mother seeks the child remain living with her – change of residence ordered.

  • Saffin & Saffin [2020] FamCA 785

    22 Sep 2020

    FAMILY LAW – CHILDREN – Interim parenting orders  – parental responsibility – with whom the children live – where benefit to the children of a meaningful relationship with both parents – equal shared parental responsibility – orders for the children to spend week-about time with each parent – injunction to restrain relocation – need for the injunction not established. 
    FAMILY LAW – PROPERTY – interim proceedings – injunctions – where both parties seek to restrain the other from dealing with the profits of the dissolution of the partnership – whether the restraint is proper – orders made.

     

  • Gale & Din [2020] FamCA 836

    18 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – where the Applicant seeks an adjournment of the trial – where the Respondent opposes the adjournment – application refused.

  • Talone & Hanks [2020] FamCA 776

    18 Sep 2020

    FAMILY LAW – CHILD – With whom the child lives – Where the child is diagnosed with level 3 autism  – Forced return – Where the mother unilaterally and against Court orders relocated, initially intrastate, then New Zealand – Where a Federal Circuit Court judge ordered the mother to return the child and the mother has wholly refused to comply with that order – Mother’s defiance of authority and flagrant disobedience of orders – Where risk of mother terminating father’s time is real and substantial – Mother to sign an Undertaking to comply with orders or matter to be relisted.

  • Kane & Bakker (No. 3) [2020] FamCA 852

    16 Sep 2020

    FAMILY LAW – INTERIM PARENTING – Where the child is two years and eight months old – Where it is not appropriate to make an order for parental responsibility – Where the child lives with the mother – Where the mother sought orders for the child’s time with the father to be supervised – Where ongoing supervised time is not in the best interests of the child – Orders made for the child to spend graduating time with the father.

  • Jagi & Gaba [2020] FamCA 779

    16 Sep 2020

    FAMILY LAW – CHILDREN – where orders are made for spend time and communicate with – where the matter was part heard and was adjourned previously to enable the family therapy to occur – where the family therapy is proving successful – where interim orders are made in order to progress the matter forward whilst awaiting final orders when judgment is delivered – where orders are made for the father to spend time with the child on a supervised basis before progressing to unsupervised time and then overnights – where in interim parenting proceedings the best interests of the child is the paramount consideration.

  • Urban & Dalvi [2020] FamCA 777

    16 Sep 2020

    FAMILY LAW – JURISDICTION – where it was the father case  that the mother’s application be summarily dismissed because the Family Court did not have jurisdiction – where the mother and child are originally from Country B but live and have permanent residency in Australia – where the father lives in Country B –  where the court has jurisdiction and is clearly an appropriate forum – where the court has the power to determine the mother’s application for interim parenting orders - where interim parenting orders are made that preserve the status quo and reflect the current parenting arrangements – where the presumption of equal shared parental responsibility is not applied – where it is in the child’s best interests for the mother  to have interim sole parental responsibility for the child – where the mother is permitted to apply for a Resident Return Visa for the child without the consent of the father.
    FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal or Striking Out – where orders are made dismissing the father’s application for summary dismissal.

     

  • Independent Children’s Lawyer & Din and Anor (No. 3) [2020] FamCA 835

    15 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – interim suppression order discharged – ex parte application to adjourn trial refused.

  • Independent Children’s Lawyer & Din and Anor (No. 2) [2020] FamCA 834

    15 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE

  • Independent Children’s Lawyer & Din and Anor [2020] FamCA 832

    15 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Interim suppression order

  • Peroni & Kappa [2020] FamCA 767

    15 Sep 2020

    FAMILY LAW – PROPERTY – Application by husband and wife for alteration of property interests – cohabitation period of 14 years and separation under the one roof for a further 11 years – assessment of the asset pool for division between the parties – direct financial contribution by the wife of an interest in a property at the commencement of the marriage which remains as at the date of trial and significant advances by the wife’s parents during cohabitation – characterisation of those advances as contributions on behalf of the wife and not loans – contributions of the husband including a personal injuries settlement  payment – discussion of the wife’s contributions to the compensation payment – contributions of other financial and non-financial nature by both parties – assessment of future needs of both parties where the husband has physical ailments - assessed that the husband’s physical ailments do not affect his capacity to earn income – where husband has the benefit and certainty of income protection payments for a considerable number of years compared to wife’s uncertain income earning capacity.

  • Chong & Sung and Ors [2020] FamCA 766

    15 Sep 2020

    FAMILY LAW – PROPERTY – Application by husband and wife for alteration of property interests – husband did not participate in the final trial – second respondent is the parties’ adult daughter – third respondent is a company in which the wife and second respondent hold shares – neither the second or third respondents participated in the trial – orders made for the trial to proceed undefended – consideration of composition of the asset pool for division between the parties – assessment of contributions of both parties – a property of which the second respondent is the registered proprietor found to be held on trust for the husband and wife – the second respondent’s shares in the company held on trust for the wife – orders made substantially in accordance with the proposal of the wife.

  • Beckert & Beckert [2020] FamCA 627

    10 Sep 2020

    FAMILY LAW – CHILDREN – Application by the wife for sole parental responsibility – where the husband opposes wife’s application – three children of the marriage – where wife is the primary carer of the children – history of family violence – breach of intervention orders by the husband – concerns as to the husband’s alcohol consumption – consideration of best interests of the children – rebuttal of presumption under s 61DA of the Family Law Act 1975  (‘the Act’) – orders made by consent of the wife and the Independent Children’s Lawyer – sole parental responsibility of the children – children to live with the wife – children to spend time with the husband provided the husband is not affected by alcohol.  
    FAMILY LAW – PROPERTY – Application by husband and wife for alteration of property interests – cohabitation period of approximately 11 years – direct financial contributions made by the wife and on the wife’s behalf at commencement and during cohabitation – where husband was almost exclusively the sole income earner – where the husband controls the parties’ corporate entities – where husband withdrew financial support for the wife and children following separation – spousal maintenance claim made in respect of part-property distributions – spousal maintenance claim acceded to – where there remains significant arrears in child support and low enforcement prospects – where husband has failed to provide financial disclosure and comply with orders of the Court – assessment of contributions – consideration of s 75(2) of the Act factors – where the husband has greater earning capacity – where wife remains primary carer of the children – orders made as sought by the wife – indemnity costs ordered.  
    FAMILY LAW – PRACTICE AND PROCEDURE – Where s 102NA of the Act applies – oral application by husband to set aside previous cross-examination orders pursuant to s 102NA of the Act – application to set aside s 102NA orders dismissed – oral application by husband for the recusal of the trial Judge – application for recusal dismissed – oral application by wife seeking leave to proceed undefended on day two of the trial – application to proceed undefended granted and matter proceeded undefended.

     

  • Newett & Newett and Anor (No. 3) [2020] FamCA 822

    03 Sep 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – applications filed by the mother and the Independent Children’s Lawyer – where the Court does not require the father to obtain updated evidence in respect of his health issues – where the Court finds the parties are entitled to know what documents the mother provided to single expert – where although there is no previous order for the appointment of the expert, the Court regards the expert as an expert witness retained jointly by the parties – where the Independent Children’s Lawyer is permitted to ask the expert a question to clarify his report – where the Court is not prepared to make an order in respect of a motor vehicle on the basis that the final hearing is less than three months away – where the mother is permitted to file contravention applications she previously sought to file that had not been accepted for filing by the Registry – where earlier documents relating to the estate of the father’s relative have no relevance to the financial proceedings.

  • Bloxham & Bloxham [2020] FamCA 731

    03 Sep 2020

    FAMILY LAW – PROPERTY – Review of registrar’s orders as to disclosure and discovery – Where registrar’s orders set aside in part – Where real issue is question of non-disclosure to be ventilated at final hearing.  
    FAMILY LAW – INTERIM CAPITAL PAYMENT – Where previous determination resulting in total payments of about $22.5 million to the parties – Where husband paid further sum from business sale of $1.604 million with that sum retained by him – Where proper that wife receive similar sum – Where order made for balance of primary capital funds of about $33 million to be paid into an interest bearing controlled money account pending further order.

     

  • Doan & Lock (No. 2) [2020] FamCA 768

    31 Aug 2020

    FAMILY LAW – CHILDREN – INTERIM – where the trial could not proceed due to unavailability of face-to-face interpreters and because the mother had not filed any material – where the Independent Children’s Lawyer proposed an interim change of residence, supported by the father – where the mother opposed an interim change of residence – orders made for more time with the father.

  • Jakes & Perin [2020] FamCA 821

    26 Aug 2020

    FAMILY LAW – CHILDREN – where the father has failed to appear – where there has been no restoration of the father/son relationship – where any restoration (effectively a creation) of that relationship would cause the mother to be emotionally and psychologically destabilised to the extent which could impair her capacity as a parent – final orders made for the child to live with the mother and spend no time and have no communication with the father.

  • Lambard & Lambard and Ors [2020] FamCA 789

    25 Aug 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the father seeks an adjournment of the final hearing to allow for the preparation of a single expert report in respect of the mother’s mental health – Where the paternal grandmother supports that Application – Where the father and the paternal grandmother contend the mother’s mental health is a live issue in the proceedings – Where the mother and the maternal grandmother oppose the Application – Where current interim Orders allow for the mother to spend time with the child while in the care of the maternal grandmother – Consideration of balancing fairness to the parties against efficiency of litigation process – Consideration of the main purpose of the Family Law Rules 2004 (Cth) – Whether the adjournment is appropriate – Orders made in accordance with the Application – Consideration of the question of cost of an additional expert  report – Order made for the father to initially meet the cost of the single expert report.

  • Hahn & Trillin [2020] FamCA 830

    24 Aug 2020

    FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the children’s best interests to permit their step-father to commence adoption proceedings – Where the children’s biological father is deceased – Order that leave be granted.

  • Bence & Bence [2020] FamCA 748

    20 Aug 2020

    FAMILY LAW – PROPERTY – final orders – where the parties were married approximately 26 years – where the parties have two children – where the husband alleges the parties owe over $8 million to third parties evidenced by promissory notes signed by him – where none of those parties intervened in the proceedings – finding that the alleged debts should not form part of the net asset pool – where the husband’s lack of full and frank disclosure was an issue at trial – finding that the husband failed to disclose numerous business investments and interests – where the parties’ contributions throughout the relationship are assessed as equal – adjustment made as a result of the husband’s lack of disclosure – s 75(2) adjustment due to income earning disparity – final property orders to be made for a 55/45 division in the wife’s favour.

  • Sturton & Cellar (No. 2) [2020] FamCA 833

    09 Jul 2020

    FAMILY LAW – EVIDENCE – Where the father seeks leave to rely upon, at trial, an earlier affidavit of evidence in chief – Where neither the Independent Children’s Lawyer nor the mother objects to leave being granted – Where leave is granted – Where the father objects to the mother relying upon her affidavit of evidence in chief as it was filed one working day later than the date specified in the trial directions – Where the trial is one month away – Where the Court does not accept that the father will suffer prejudice if the mother is permitted to rely upon her affidavit of evidence in chief – Where the father’s objection is overruled.

  • Tabano & Yabon (No. 2) [2020] FamCA 831

    01 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Where the father’s wife refuses to disclose her residential address and that of her sister – Where the 13 year old child is said to be living with the wife’s sister – Where the current orders provide for the child to live with the mother – Where the Independent Children’s Lawyer presses for disclosure of the addresses.