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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.

  • Batson & Batson and Ors [2020] FamCA 530

    03 Jul 2020

    FAMILY LAW – COSTS – Where the husband was not wholly unsuccessful against the wife – Where the husband received a larger percentage of the assets at final hearing than offered in settlement – Wife’s application for costs dismissed – Where the husband was wholly unsuccessful against the 2nd and 3rd applicants – Where the husband does not have the financial means to pay costs – Where it would not be just and equitable to make an Order for costs – Application dismissed.

  • Grey & Brockwell [2020] FamCA 517

    26 Jun 2020

    FAMILY LAW – CHILDREN – Where interim orders were agreed between the parties with the exception of two minor matters still in dispute – Where complaints were made that the mother exposed both children to the risk of sexual abuse – Where the eldest child is not spending any time with the mother – Where the youngest child is spending a maximum of two and a half hours with the mother each week – Where the intent of the orders are to improve the mother’s relationship with the children – Order that the youngest child spend two and a half hours with the mother – No order restraining the mother from driving with the youngest child when in her care.

  • Joplin & Parkins [2020] FamCA 403

    26 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Application for a single expert appointed by the Federal Circuit Court to be released from his obligation, now to this Court, as a Chapter 15 Expert in order to give evidence in the applicant’s  criminal trial – Where an order for the provision of the single expert’s report to the father’s criminal law barristers and solicitors, the Director of Public Prosecutions, NSW Police and the District Court of NSW was made by consent in 2018 – Where the single expert received a subpoena, issued on behalf of the applicant, to give evidence about matters informing his report in the District Court of NSW – Where the single expert raised concerns as to whether he would be violating his obligations to this Court if he gave evidence in the District Court – Where the single expert has a duty to this Court to be an impartial witness – Where the single expert’s impartiality is not affected by his giving evidence in response to a subpoena to give evidence in the District Court –  Application dismissed.

  • Brent & Brent [2020] FamCA 496

    23 Jun 2020

    FAMILY LAW – CHILDREN – interim orders – application by father for overnight time – where children live with the mother – orders for children to spend gradually increasing time including overnight time with the father – both parents retain equal shared parental responsibility. 
    FAMILY LAW – PROPERTY – interim orders – order for sale of the former matrimonial home – order for payment of outgoings with respect to the former matrimonial home.

     

  • Hertwig & Hertwig [2020] FamCA 490

    19 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – anti-suit injunction – application dismissed

  • Panwar & Panwar and Anor [2020] FamCA 480

    18 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Application for extension of time – to bring s 79 proceeding – informal property settlement undertaken in 2015 – husband declared bankrupt – trustee pursuing wife for amounts allegedly owing under s 120 and 121 of the Bankruptcy Act – relevant criteria for grant of extension of time – extensive review of unsettled authorities – leave granted.
    FAMILY LAW – BANKRUPTCY – whether trustee’s application for relief should be permitted to go forward yet wife’s s 79 application not so permitted – relevance of that consideration to the grant of leave – leave granted.

     

  • Sappho & Sappho [2020] FamCA 488

    17 Jun 2020

    FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Lump sum – Where the wife seeks periodic spousal maintenance – Where the husband opposes the order – Where the wife has been the homemaker and primary carer of the children – Where the husband provided financially for the family – Where the wife is unable to adequately support herself – Where the husband’s expenses have been exceeding his income – Where the husband’s current and future income is unclear due to the impacts of COVID-19 on his profession – Where the husband has an appropriate source of funds from which the wife can receive lump sum spousal maintenance - Orders
    FAMILY LAW – PROPERTY – Interim Distribution – Costs – Where the wife seeks litigation funding or a dollar for dollar order – Where the husband opposes the order – Where the wife has been unable to pay her legal fees – Where the husband has paid his legal fees – Where the property pool is modest – Where there is a financial disparity between the parties – Where the amount the wife seeks is not unreasonable and the amount she will ultimately receive will exceed it – Orders
    FAMILY LAW- CHILDREN – With whom a child lives and spends time with – Where the children currently live with the wife and spend time with the father – Where the wife seeks an order that the husband must personally supervise the children when they are in his care in the school holidays– Where the husband intends that any occasion that others may care for the children when in his care will be of limited duration – Not in children’s best interests to make orders sought.

     

  • Daily & Daily [2020] FamCA 486

    17 Jun 2020

    FAMILY LAW – PROPERTY SETTLEMENT – Financial Agreement – Where the wife seeks a declaration that the agreement is not a binding financial agreement or that it be set aside pursuant to s 90K of the Family Law Act 1975 (Cth) – Where the husband seeks that the agreement be declared binding and that it be enforced pursuant to s 90KA of the Act – Where the parties entered into a financial agreement in 2005 – Consideration and application of the Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 (Cth) – Where handwritten amendments were made to the agreement by the husband’s solicitor after the wife had signed the agreement – Where the wife and her solicitor subsequently initialled the amendments – Whether the requisite independent legal advice was provided to the wife – Where the advice does not satisfy the legislative requirements – Where it would be unjust and inequitable if the agreement was not binding on the parties – Whether there has been a material change in circumstances in relation to the care, welfare and development of a child to the marriage that would result in hardship if the agreement was not set aside – Where two children of the relationship were born following the marriage – Where the wife ceased fulltime employment to be the primary caregiver for the children – Consideration of the personal and financial circumstances of the parties in determining whether hardship will be sustained – Where the agreement is set aside.

  • Herouz & Herouz [2020] FamCA 478

    15 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Review of Registrar’s decision to strike out two (2) subpoenas issued by the wife to the husband’s former employers and granting the husband the first right of inspection in relation to a third subpoena filed by the wife to the husband’s treating psychologist – Where the wife contends the subpoenas are appropriate and relevant  – Where the wife contends that the Registrar granting the husband the first right of inspection of the third subpoena is inappropriate and unnecessary – Where the husband contends that the subpoenas serve no purpose and are a ‘fishing expedition’ – Orders made upholding the decision of the Registrar and dismissing the wife’s Application for a Review.

  • Hearl & Digby and Ors [2020] FamCA 474

    12 Jun 2020

    FAMILY LAW – INDEMNITY COSTS – extensive review of authorities, mostly at High Court level – not appropriate to make such an order on this application – costs application refused.

  • Newett & Newett and Anor [2020] FamCA 470

    12 Jun 2020

    FAMILY LAW – CHILDREN – Interim – whether the children should spend unsupervised time with the mother pending a final hearing – where the Independent Children’s Lawyer was prepared to consider unsupervised time once certain conditions, statements and confirmations from the mother’s treating Psychiatrist were provided – where the Court is not able to essentially abdicate to the mother’s Psychiatrist the role of determination of risk entirely – where neither the father nor the medical experts opine that the mother’s fixed views about the father have transitioned in any way to place the children at any risk of physical harm in the mother’s care – where the mother has maintained a therapeutic relationship with a treating Psychiatrist – where supervised visits have been positive and the children express a wish for more time unsupervised with the mother – orders made for the children to spend unsupervised day time with the mother until a final hearing in three months

  • Banik & Peres [2020] FamCA 468

    12 Jun 2020

    FAMILY LAW – CHILDREN – Final Parenting Orders – Where the mother seeks an increase in time to equal time broken up in a 5/2/5/2 regime – Where the father seeks six nights a fortnight with the mother and eight nights a fortnight with him – Where the mother seeks to travel overseas with the children – Where the mothers’ proposal for time is supported by the Expert Report writer and found to be Orders in the children’s best interests – Orders made allowing both parties to travel overseas with the children including to India.

  • Manson & Manson [2020] FamCA 495

    11 Jun 2020

    FAMILY LAW – ENFORCEMENT OF ORDERS – Where the wife seeks that a Third Party Debt Notice issue to the husband’s employer to enforce existing orders whereby the parties are to equally contribute to any shortfall in mortgage repayments – Where the wife contributed funds to the mortgage repayments in the preceding month and the husband did not – Where there is some ambiguity in the existing orders – Where no clear breach of the orders was established – Orders made to clarify the parties’ obligations in relation to the mortgage repayments – Wife granted liberty to restore her enforcement application in the event of an alleged breach of the new orders.

  • Steiner & Steiner [2020] FamCA 473

    10 Jun 2020

    FAMILY LAW – INJUNCTIONS – Personal protection – Where the mother seeks that further injunctive orders be made against the father for her and the children’s protection – Where injunctions already in place for the mother and children’s protection against the father – Application dismissed.
    FAMILY LAW – CHILDREN – Where the mother seeks orders that the father pay the monthly mortgage repayments on the former family home where she and the children reside, that he pay all of the children’s school fees and half of their medical costs – Where there is an outstanding application pursuant to section 79A of the Family Law Act 1975 (Cth) to set aside previous property orders – Where the mother has not exhausted administrative options available within the child support legislation – Application dismissed.

     

  • Ferris & Midford [2020] FamCA 471

    10 Jun 2020

    FAMILY LAW – CHILDREN – HAGUE CONVENTION – Interim – Where the child is retained by the mother in the United Kingdom – Where the father lives in Australia – Where Hague Convention proceedings were initiated in the United Kingdom and orders were made for the mother to return the child to Australia – Where the mother sought interim orders in the Family Court of Australia for the child to remain with her in the United Kingdom – Where it is uncontroversial that the child will benefit from a meaningful relationship with both parents – Where the mother is concerned that her mental health will deteriorate if she returns to Australia thereby placing the child at risk – Where evidence is controversial and untested – Where applicable factors under s 60CC of the Family Law Act 1975 (Cth) are considered – Where the parties shall have equal shared parental responsibility for the child – Where the child will live with the mother, subject to her forthwith establishing the child’s residence within Australia – Where the amount of time the child will spend with the father is dependent on the mother establishing residence with the child in Australia – Costs reserved for 28 days.

  • Kalla & Kalla (No. 2) [2020] FamCA 532

    05 Jun 2020

    FAMILY LAW – COSTS – Application dismissed

  • Boyd & Sage [2020] FamCA 482

    05 Jun 2020

    FAMILY LAW – PARENTING – urgent application run concurrently with proceedings in Scotland in respect of a child wrongfully removed to Scotland in respect of whom a return order has been made under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction as implemented by the Child Abduction and Custody Act 1985 (UK).
    FAMILY LAW – PARENTING – where application accepted into the COVID-19 list of cases and expedited accordingly.
    FAMILY LAW – JURISDICTION – where Australia retains preeminent jurisdiction in relation to the child by virtue of Articles 5 and 7 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
    FAMILY LAW – PRACTICE AND PROCEDURE – where this Court is ready and willing to sit simultaneously with the Scottish Court, by audio visual link, if to do so will lend clarity to matters and assist the conclusion of the Scottish proceedings and the speedy return of the child to Australia.

     

  • Wyatt & Wyatt [2020] FamCA 406

    05 Jun 2020

    FAMILY LAW – PROPERTY SETTLEMENT – Application by wife for alteration of property interests – assessment of contributions – marriage of forty-nine years – two children of the marriage – husband seeks alteration of property interests in his favour – where all assets owned wholly accumulated during the marriage and post-separation – wife assumed primary role as homemaker – husband made significant financial contributions –where husband exercised control of parties’ income and capital post-separation – orders made to effect an equal division of property and superannuation interests.

  • Bardwell & Bardwell and Ors [2020] FamCA 499

    03 Jun 2020

    FAMILY LAW – PARENTING – where best interests of the child require that the matter not proceed to final determination at this stage – where release of family report was significantly delayed through no fault of the parties.
    FAMILY LAW – EVIDENCE – where father issues subpoena to give evidence and informs the Court that an application will be made for the witness to be treated as “hostile” – where “unfavourable witnesses” are discussed in context of s 38 of the Evidence Act – where s 38 of the Evidence Act does not apply to these proceedings by virtue of s 69ZT – what is necessary under s 69ZT(3) to invoke application of rules of evidence and sections of the Evidence Act

     

  • Chai & Carvill [2020] FamCA 469

    01 Jun 2020

    FAMILY LAW – ENFORCEMENT OF ORDERS – Where the wife seeks to enforce existing property settlement orders regarding sale of a property and disbursement of the proceeds of sale – Where each of the parties delayed in fulfilling their obligations under those orders – Where the parties’ conduct and other external factors delayed the fulfilment of those orders – Orders made for the husband to continue to have carriage of the sale – Wife to be appointed as trustee for sale in the event that the property is not sold within two months.

  • Kalla & Kalla [2020] FamCA 461

    09 Apr 2020

    FAMILY LAW – PROPERTY – Interim – Where the husband has disposed of multiple properties of the matrimonial pool - Where the wife seeks partial property settlement from a recent sale – Orders for wife to place a caveat on the property – Orders for the wife to receive $100,000 from the sale of the property – Where the wife seeks spousal maintenance – Where the husband has not made proper disclosure of financial information – Order for the husband to pay spousal maintenance.

  • Lei & Xiao and Ors [2020] FamCA 221

    09 Apr 2020

    FAMILY LAW – PROPERTY – INTERIM PROPERTY – Spousal maintenance – Where the wife seeks orders for urgent periodic and lump sum spousal maintenance  – Where the husband opposes the wife’s application and contends she has not disclosed all cash and financial resources available to her – Where the husband seeks orders for interim injunctions made by the Court to be varied for him to access funds held in a cash investment account – Where both parties contend the other has not provided full and frank disclosure – Whether the Court makes an order for spousal maintenance pursuant to s 77 or s 74 of the Family Law Act 1975 – Whether the wife is in immediate need of financial assistance – Orders made for the funds in the cash investments account to be released weekly to the husband and wife by way of periodic spousal maintenance – Orders made for the husband to pay lump sum payments to creditors – Orders made for the husband to pay certain periodic payments primarily related to expense in respect to the former matrimonial home.

  • Liveson & Zhou (No. 2) [2019] FamCA 1054

    27 Nov 2019

    FAMILY LAW – PROPERTY – Where the parties engaged in an informal property settlement around the time of separation but it was not formalised by a Court – Where both parties did not have significant assets at the start of the relationship – Where since the end of the relationship, the wife has significantly improved her financial position – Where the interests and contributions of the parties were reflected in the informal agreement reached after separation and this largely reflects a just and equitable split of the property of the parties or either of them  – Where the monies the husband received from a superannuation fund are to be treated as a partial member withdrawal and the parties are to otherwise retain their interests in the superannuation funds, businesses, trusts and other property which they have an interest and are to transfer any interest they have in any of the other party’s properties to them.

  • Taggart & Taggart (No. 2) [2020] FamCA 520

    29 Jun 2020

    FAMILY LAW – CHILDREN – Best interests – With whom a child spends time – Where a final parenting order was made in September 2016 which provided for the child to live with the father and spend time with the mother – Where the mother has retained the child on two occasions contrary to the order – Where the mother has been unable to accept the outcome of the 2016 proceedings and has continued to undermine the child’s relationship with the father and his family – Where the father now seeks that the mother be restrained from spending any time or communicating with the child – Where the mother is incapable of regulating her behaviour and has no insight into the damage she has caused the child – Where the mother presents an unacceptable risk of psychological and emotional harm to the child – Where the risk cannot be ameliorated by supervision – Where the mother will be restrained from spending any time or communicating with the child. 
    FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order – Where the mother has frequently instituted and conducted vexatious proceedings – Where a vexatious proceedings order is made against the mother.

     

  • Habib & Ibrahim [2020] FamCA 512

    26 Jun 2020

    FAMILY LAW – CHILDREN – Interim Parenting – Best Interests – Where not appropriate to determine interim issues as sought by the parties pending receipt of the Single Expert Report – Interim proceedings adjourned generally pending receipt of the Single Expert Report.

  • Mellis & Mellis (No. 3) [2020] FamCA 511

    26 Jun 2020

    FAMILY LAW – PROPERTY – Undefended – where final property orders are made on an undefended basis – where the father has not engaged in the proceedings or complied with orders – where it is just and equitable to make the orders that the mother seeks – where the mother seeks a specified percentage equal to 100% of the father’s Super Fund B entitlements.

  • Vetsch & Yosufai and Ors [2020] FamCA 524

    25 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where there are property and child support proceedings on foot between the first respondent and three women whom he has had relationships of varying length with – Where a statutory trustee of sale was appointed in May 2019 to sell a number of real properties – Where the statutory trustee has been progressing the matter but two properties remain to be sold – Where the matter is not yet ready to be listed for a final hearing and in the circumstances an adjournment is appropriate. 

    FAMILY LAW – CHILD SUPPORT – Where the first respondent has an outstanding child support liability – Where the Child Support Agency has been taking steps to recover the amount outstanding – Where the trustee of sale has been attempting to confirm with the Child Support Agency the amount outstanding – Where the court requests, through the provision of these reasons, that the Child Support Agency provide the trustee of sale, or the Court directly, with information relating to the first respondent’s outstanding child support liability.

  • Department of Communities and Justice & Leoni [2020] FamCA 411

    24 Jun 2020

    FAMILY LAW – CHILD ABDUCTION – Hague Convention – where the child was wrongfully retained in Australia by the mother – repudiatory retention –  habitual residence – where the mother argued that the habitual residence of the child was Australia at the relevant time – habitual residence found to be Italy at the relevant time – where Court satisfied that all jurisdictional facts were proven – where consent or acquiescence alleged – where Court determined there was no consent or acquiescence – where hearing took place during COVID-19 pandemic – child ordered to be returned to Italy

  • Department of Child Safety, Youth and Women & Comar and Anor [2020] FamCA 505

    23 Jun 2020

    FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the State Central Authority has applied for a return order for three children removed from Colombia and retained in Australia by the mother – Where the matter has been remitted by the Full Court for rehearing following an appeal by the father – Where the father was granted leave to intervene in the proceedings – Whether the children were habitually resident in Colombia prior to their retention in Australia – Whether the mother has established an exception under reg 16(3) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) such that the Court should refuse to make a return order because to do so would expose the children to physical or psychological harm or place the children in an intolerable situation – Whether the mother has established that two of the children object to return – Where the Court finds that the children were habitually resident in Colombia immediately prior to their retention in Australia – Where the mother has failed to establish an exception – Where a return order is made.

  • Masson & Parsons [2020] FamCA 479

    23 Jun 2020

    FAMILY LAW – CHILDREN – CONTRAVENTION – SANCTIONS – Application alleging multiple contraventions of final parenting orders – Where there are two children aged 12 and 11 years – Where the applicant is the biological father of the eldest child – Where the applicant abandoned numerous counts prior to the hearing – Where the applicant could not established a prima facie case in respect of some counts – Where the remaining two counts are pressed only in respect of the eldest child – Where the Court is satisfied on the balance of probabilities that the remaining contraventions are established – Where the first count is proven against both respondents, but the first named respondent’s contravention is more serious – Where the second count is proven against only the first named respondent – Where the established contraventions are sanctioned under Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Where two good behaviour bonds are imposed on the first named respondent to be served cumulatively – Where no good behaviour bond is imposed on the second named respondent – Where compensatory time is ordered for the eldest child to spend with the applicant – Costs reserved.

  • Weng & Wah and Anor [2020] FamCA 501

    19 Jun 2020

    FAMILY LAW – COSTS – Where final property adjustment orders were made in August 2019 between the husband, the wife, and their adult son – Where the adult son has made an application that the husband pay his costs in the proceedings – Whether circumstances justify a costs order – Consideration of s 117 of the Family Law Act 1975 (Cth) – Where the circumstances do not justify an order for the husband to pay the adult son’s costs – Where the application is dismissed.

  • Shee & Hale (No. 2) [2020] FamCA 494

    19 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – RECUSAL – where the Applicant seeks the trial Judge recuse himself except as regards issues of costs arising from the Applications already determined – where the trial Judge has made findings and delivered Reasons on the issues of whether and for how long a de facto relationship existed between the parties –where the Reasons delivered do not indicate an actual or apprehended lack of impartiality – where the trial Judge is not satisfied that the Reasons delivered give rise to a basis for recusal 
    FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR COSTS – where the Applicant seeks that the issues of costs arising from the interlocutory Applications already determined be deferred until the finalisation of the substantive proceedings – where the Respondent opposes the Application – where the Applicant is unable to comply with directions for filing of submissions as to costs due to the impact of travel restrictions – where the Applicant is granted an extension of time for the Applicant to file submissions as to costs

     

  • Washburn & Pacini (No. 2) [2020] FamCA 489

    19 Jun 2020

    FAMILY LAW – STAY APPLICATION – Applicant sought stay of property orders pending outcome of an appeal – where the Applicant was ordered to pay the Respondent a sum of money – Respondent accepted that the operation of orders should be stayed pending the appeal – Respondent sought injunctions to protect position should the appeal be unsuccessful – whether the Applicant should have any funds available to him by way of an ability to further encumber real property – stay granted subject to injunctions.

  • A Pty Ltd as Trustee for the Storrer Family Trust and Anor & N Pty Ltd and Ors (No. 2) [2020] FamCA 491

    17 Jun 2020

    FAMILY LAW - CORPORATIONS LAW

  • Saif & Saif (No. 2) [2020] FamCA 407

    16 Jun 2020

    FAMILY LAW – CHILDREN – Application by wife for sole parental responsibility – three children of the marriage – history of domestic violence – issues of substance dependency – where the husband has made no application for resumption of supervised time – matter proceeded undefended – consideration of best interests of the children – whether husband poses an unacceptable risk of harm to the children – orders made as sought by mother and consented to by Independent Children’s Lawyer.

  • Salemi & Salemi [2020] FamCA 493

    12 Jun 2020

    FAMILY LAW – PROPERTY – Interim distribution – Where the wife seeks payments from joint funds held in a controlled monies account for legal costs and for interim property settlement – Where the parties are yet to fully comply with their obligations as to disclosure – Where the husband concedes that the wife is likely to receive at least $100,000 in the final settlement – Orders for the wife to receive $100,000 by way of interim property settlement – Where the parties agree that the matter has no chance of settling at a conciliation conference – Order made to waive the requirement of the parties attending a conciliation conference prior to final orders being made.  

  • Johns & Johns (No. 2) [2020] FamCA 472

    10 Jun 2020

    FAMILY LAW – COSTS – Where the father seeks an order that the mother pay his costs in relation to her application to re-open parenting proceedings on an indemnity basis – Where the mother seeks that the father’s costs application be dismissed – Where the mother was wholly unsuccessful in her application to re-open proceedings on Rice v Asplund principles – Where there are circumstances that justify an order for costs on a party/party basis – Costs order made in favour of the father.

  • Pericles & Hopman [2020] FamCA 465

    09 Jun 2020

    FAMILY LAW – PROPERTY – where a party to proceedings asserts that COVID-19 has resulted in a diminution in value of assets.
    FAMILY LAW – PRACTICE AND PROCEDURE - where judgement is reserved in a de facto property case and a party applies to re-open the case to adduce new evidence of valuation – principles to re-open a case to adduce further evidence – where applicant for re-opening fails to adduce evidence of fall in value of assets – application dismissed.
    FAMILY LAW – COSTS – where parties agree that costs should follow the event – where parties’ agreement that costs follow the event does not relieve the court from being satisfied that it is “just” within the meaning of s 117 to make an order for costs – where the court is satisfied that there are circumstances which warrant an order for costs – where having had regard to the relevant matters an order for costs is made in the wife’s favour of and incidental to the application which is dismissed.
    FAMILY LAW – COSTS – where counsel sensibly did not pursue costs on an indemnity basis – where costs claimed are modest - where costs are ordered in the sum claimed.

     

  • Barre & Barre and Ors [2020] FamCA 455

    09 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – where the husband’s previous lawyers applied to be joined to proceedings as judgment creditor of the husband – where the husband’s previous lawyers have obtained default judgment in the Local Court of NSW for unpaid legal fees – where creditor’s petition filed – where application for joinder made after final hearing while judgment is reserved – where at the hearing of their application the husband’s previous lawyers sought merely to be heard as amicus curiae – where the previous lawyers sought to be heard as amicus curiae in support of their own interests – where in the exercise of discretion the Court gave leave to  the previous lawyers to make submissions as amicus curiae.
    FAMILY LAW – ORDERS – freezing orders – discharge – where the wife seeks enforcement of Binding Financial Agreement pursuant to section 90KA of the Family Law Act 1975 (Cth) – where the husband and a respondent claiming to be de facto of the husband seeks release of funds frozen by court order in a controlled monies account – where there is no dispute the frozen funds are owned by a company controlled by the husband – where there is no dispute the respondent claiming to be a de facto of the husband loaned monies to the husband and husband’s company – where the wife makes no claim on frozen funds to enforce Binding Financial Agreement – freezing order discharged – orders made for release of funds to husband’s company and distribution of funds to respondent claiming to be de facto of the husband.

     

  • Harmon & Kardos [2020] FamCA 452

    09 Jun 2020

    FAMILY LAW – COSTS – CONTRAVENTION – Where the mother seeks that the father pay her costs in respect to the contravention application filed by the father – Where the contravention application was dismissed on the basis that the father had failed to establish the existence of a precondition to the relevant orders alleged to have been contravened – Where the Court found that, in the event that it was necessary to determine the issue, that the mother would have established a reasonable excuse – Consideration of whether the father was wholly unsuccessful – Consideration of other relevant considerations – Consideration of the financial circumstances of the parties – Orders made for the father to pay costs to the mother on a party/party basis.

  • Department of Child Safety, Youth and Women & Comar [2020] FamCA 463

    08 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Hague Convention – Where the State Central Authority has applied for a return order for three children – Where the matter has been remitted by the Full Court for rehearing following an appeal by the father – Where the father now applies for leave to intervene in the proceedings – Where the application is opposed by the mother – Where the State Central Authority does not oppose the application but seeks to act as an “honest broker” if the father’s application is successful – Consideration of whether the roles of the State Central Authority and the father are the same – Consideration of the meaning of the term “honest broker” as it is used by the High Court in RCB v The Honourable Justice Forrest (2012) 247 CLR 304 – Where the father’s role is not the same as the role of the State Central Authority and he has a clear interest in the proceedings – Where the father is granted leave to intervene in the proceedings.

  • Rahman & Rahman (No. 2) [2020] FamCA 477

    05 Jun 2020

    FAMILY LAW – PROPERTY – INTERIM – Where Orders were made in 2012 for the husband to pay the wife $377,000 – Where the husband is restrained from leaving the country until the payment is made in full – Where the wife seeks the husband be restrained from disposing his assets until a hearing to determine jurisdiction – Orders made

  • Lubiton & Drummond [2020] FamCA 466

    05 Jun 2020

    FAMILY LAW – COSTS – payment of costs for application for leave to appeal out of time – significance of lack of success in resisting an application for extension of time pursuant to rule 1.14 – manner of conduct of litigation – late abandonment of factual issues

  • Fitzgerald & Denver [2020] FamCA 458

    05 Jun 2020

    FAMILY LAW – CHILDREN – Interim Parenting – Review of Senior Registrar’s decision - Where the children have been exposed to disrespectful communication between the parents – Where the mother alleges the father has a history of violence – Where the children want equal time with the parents – Where the parties have a poor co-parenting relationship – Orders for the children to live with the mother – Orders for significant and substantial time with the father – No orders as to parental responsibility.

  • Department of Communities and Justice & Bryson and Anor [2020] FamCA 464

    04 Jun 2020

    FAMILY LAW – CHILDREN – Mother has disengaged from spending time with children – risk of exposure to illicit substances and sexual conduct in Mother’s household – uncertainty of Mother attending for time – risks not counterbalanced by benefits of meaningful relationship – extension of interim orders currently in place – suspension of time with children pending further application

  • Halleson & Isidro [2020] FamCA 456

    04 Jun 2020

    FAMILY LAW – CHILDREN – withdrawal of child on basis of asserted risk of harm – conflicting accounts – risk to child of physical abuse outweighed by disruption of relationship with parent – disruptive proposal for make up time

  • Eaton & Eaton [2020] FamCA 446

    04 Jun 2020

    FAMILY LAW – EVIDENCE – Application by the husband to strike out paragraphs of the wife’s affidavit of evidence in chief which relate to allegations of conduct amounting to serious physical, sexual and emotional abuse of the wife by the husband throughout their relationship and since separation – Where the wife is seeking a ‘Kennon’ adjustment – Where the husband contends that the wife has failed to demonstrate any nexus between the alleged conduct and any contributions she asserts to have made during the marriage and, as a result, those paragraphs of her affidavit should be excluded, or alternatively, that her evidence does not have sufficient probative relevance to have any material impact on the outcome of the proceedings and should be excluded on that basis – Where it is accepted that the wife’s case falls within the exceptional category identified by the Full Court in Kennon and where it is accepted that the evidence is probative in respect of crucial matters in issue in the proceedings – Where the objections raised by the husband are overruled and dismissed. 

    FAMILY LAW – EVIDENCE – Expert evidence – Where there is dispute about the wording of a letter of instructions to be jointly provided to the single accounting expert engaged by the parties to provide evidence as to the value of the husband’s interests in a multitude of business entities – Where the parties will send a joint letter of instruction to the single expert in the form of the draft proposed by the husband.

  • Oxton & Maden [2020] FamCA 433

    29 May 2020

    FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where the father ceased engaging in the proceedings – Where appropriate the matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the children to live with the mother and spend time with the father as determined by mother.

  • Warne & Ransley [2020] FamCA 430

    29 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – Where the applicant seeks the production of the respondent’s will and associated solicitor file – Where the respondent claims the documents sought are irrelevant and subject to a claim of legal professional privilege – Where the parties were in a de facto relationship – Where the date of separation is disputed – Where the final hearing with respect to property settlement is imminent – Where the applicant bears the onus to establish the relevance of the documents to the main issues in the proceedings – Consideration of the test of relevance – Application dismissed.

  • Redley & Scovil [2020] FamCA 429

    29 May 2020

    FAMILY LAW – INTERIM – Property – Where the wife removed substantial funds from parties’ offset account – Orders for the wife to return remaining funds – Order for the sale of real property – Order for spouse maintenance for twelve weeks.

  • Glover & Webster [2020] FamCA 422

    29 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – whether the proceedings should be listed for a discrete hearing to determine whether there exists any property not covered by the binding financial agreement between the parties
    FAMILY LAW – PROPERTY – where the de facto wife seeks the sum of $225,000 for litigation funding – where the Court finds $20,000 is more appropriate – where the de facto husband may have little prospect of receiving the sum of $20,000 (or any part of his costs) from the de facto wife – where the Court takes that detriment to the de facto husband into account – order made for the de facto husband to pay to the de facto wife $20,000 by way of interim property adjustment
    FAMILY LAW – INJUNCTIONS – where the de facto wife seeks to restrain the de facto husband from the use and operation of various entities – application dismissed

     

  • Abdo & Abdo [2020] FamCA 460

    25 May 2020

    FAMILY LAW – PROPERTY – Injunctions – Where application for urgent ex parte injunctions restraining the disposition of funds under the husband’s control pending determination of the parties’ property entitlements – Where appropriate to grant leave for the application to proceed ex parte – Where a risk exists that funds may be dissipated or disposed of by the husband – Where consideration of applicable principles – Where appropriate for injunctions to be granted securing funds under the husband’s control pending further order.

  • Cross & Cross [2020] FamCA 454

    25 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of a case guardian – Where the solicitor for the husband seeks an order appointing a Case Guardian for the husband – Where that application is not opposed – Whether the Court is satisfied that the husband is a person with a disability – Whether the mandatory rule set out in r 6.08 of the Family Court Rules 2004 (“the Rules”) applies – Whether the proposed Case Guardian meets the criteria set out in r 6.09 of the Rules – Orders made in accordance with those proposed by the Applicant.

  • Vida & Vida [2020] FamCA 435

    25 May 2020

    FAMILY LAW – PROPERTY – Enforcement –Where the husband sought to enforce Orders – Where the wife had withdrew funds from the mortgage – Where the funds withdrawn were additional funds contributed to the mortgage by the wife – Where the wife had not breached the Orders – Application dismissed

  • Kalant & Jordain (No. 2) [2020] FamCA 448

    22 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment of contravention proceedings pending outcome of further investigations – noncompliance with orders – non-attendance at directions – ability to receive email correspondence – failure to inspect material produced – adjournment application refused

  • Giunta & Giunta [2020] FamCA 453

    18 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment –Where the single expert report was released after the commencement of the hearing – Where a part-heard hearing would result in inconsistencies in the method of witness examination – Where an application for an adjournment has been made – Adjournment granted.

  • Lukin & Lukin and Ors [2020] FamCA 363

    14 May 2020

    FAMILY LAW – PROPERTY – Interim – Where the former matrimonial home is mortgaged by the second and third respondents – Where the parties are in default of the mortgage – Where the second and third respondents seek possession of the property – Where they have complied with the obligations under the Real Property Act and Conveyancing Act – Order for the sale of the property – Order for discharge of the mortgage, and distribution to the parties as a partial property settlement – Where the husband has no capacity to pay spousal maintenance or to fund the wife’s litigation – Application for spousal maintenance and litigation funding dismissed.

  • Meli & Hutcheson [2020] FamCA 420

    11 May 2020

    FAMILY LAW – ORDERS – Discharge – Where final parenting orders were made four years ago – Where the mother seeks discharge of the final parenting orders - Where the final orders permitted relocation of the child, that the child live with the mother and spend time with the father - Where the orders no longer reflect the circumstances of the child – Where the father has chosen to disengage with the child – Orders.
    FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where final parenting orders provided the child live with the mother in the United Kingdom and spend time with the father – Where the father has chosen to disengage with the child – Where the mother has since relocated to Country DD – Where the father has not engaged in the current proceedings - Where it is in the best interests of the child to live with the mother and spend time with the father as may be agreed between the parties – Orders.

     

  • Halstead & Lees and Anor [2020] FamCA 187

    28 Feb 2020

    FAMILY LAW – COURTS AND JUDGES – DISQUALIFICATION APPLICATION – Apprehended bias – Objective test – Waiver of objection – Where orders were made permitting the mother to travel overseas with the children – Where the mother did not travel with the children on the first occasion orders were made – Where the mother travelled with the children on the second occasion orders were made – Where the mother has since failed to return the children to the jurisdiction – Where the application was made after the mother breached the orders – Where the father argues a hypothetical fair minded observer might now reasonably apprehend that judicial conduct will not be impartial and that matters will not be decided on merit – Apprehended bias not established – Application dismissed

  • Halstead & Lees and Anor (No. 2) [2020] FamCA 234

    22 Jan 2020

    FAMILY LAW – ENFORCEMENT OF ORDERS – Recovery order – Location orders – Where orders were made permitting the mother to remove the children from the Commonwealth of Australia for the purposes only of travel to one country – Where the mother has failed to return with the children to the Commonwealth of Australia and does not intend to return the children to the jurisdiction – Where the mother and children’s whereabouts are unknown – Where the case needs to be resolved expeditiously – Recovery order issued – Location orders issued
    FAMILY LAW – WARRANT FOR ARREST – Where the mother is not in the Commonwealth of Australia – Where it is unlikely a warrant will be able to be executed – No advantage to assist in the recovery of the children – Warrant for arrest not issued
    FAMILY LAW – CHILDREN – With whom a child lives – Where the children need stability – If the mother returns the children to the Commonwealth of Australia the children will live with the paternal grandmother during the period of the adjournment
    FAMILY LAW – PRACTICE AND PROCEDURE – Publication orders – Where the paternal grandmother seeks publication orders in relation to the mother, the father and the children – Purpose of section 121 of the Family Law Act 1975 (Cth) considered – Exceptional circumstances do not exist to deviate from protecting the identification of the children – Publication order not made

     

  • Prosser & Prosser and Anor (No. 2) [2020] FamCA 500

    19 Jun 2020

    FAMILY LAW – PROPERTY – where final judgment delivered – where parties unable to agree on a form as to the final orders consistent with the Reasons delivered – where the minutes of the parties were considered and Orders were made in Chambers

  • Fermikis & Fermikis [2020] FamCA 449

    04 Jun 2020

    FAMILY LAW – CHILDREN – Parenting arrangements – children not provided to parent despite orders – interim restraint on changing children’s place of residence – unilateral interstate relocation by parent without notice to parties or Court – focus on best interests of the children rather than on the conduct of the parent in removing the children contrary to orders – allegations about risk of harm presented to children by each parent – primacy of protecting children from harm – no risk neutral resolution available – allegations of sexual abuse – potential concoction of sexual abuse allegations – family violence – where children have given evidence against parent in previous criminal proceedings – neglect – support of broader family ameliorating risk of neglect – renewal of invitation to welfare agency to intervene in the proceedings

  • Hart & Jervis [2020] FamCA 447

    04 Jun 2020

    FAMILY LAW – CHILDREN – With whom a child lives and spends time – Relocation – Best interests of a child - Where the mother has unilaterally relocated the children to New South Wales– Where the father seeks the children be returned to the State of South Australia and the parties have equal shared care – Where prior to relocation the parties shared the care of the children on a week about basis in the former matrimonial home – Where the mother alleges a decline in the father’s mental health which the father denies - Where the mother alleges family violence and the father opposes the allegations - Whether the father could have a meaningful relationship with the children where the children are located interstate and COVID-19 restrictions are in place – Orders.

  • Xin & Qinlang and Ors (No. 3) [2020] FamCA 443

    03 Jun 2020

    FAMILY LAW – PROPERTY – application for stay of interlocutory orders concerning sale of property – potential for absence of a stay to render a successful appeal nugatory – prejudice to the Wife of a stay – immediacy of risk to property – entitlement to benefit of previous judgment – application refused

  • Wilde & Foster [2020] FamCA 440

    03 Jun 2020

    FAMILY LAW – CHILDREN – Parental responsibility and change of name

  • Rigby & Kingston (No. 2) [2020] FamCA 467

    02 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife made an application to rely on an expert report at the commencement of trial – Where the husband opposed the application – Where the wife directly invited the husband on three separate occasions to engage a jointly appointed expert – Where the husband failed to take up the invitation without explanation – Where the wife appropriately addressed the required matters in r 15.52(2) of the Family Law Rules 2004 (Cth) – Where without the expert report, the Court has no expert evidence to determine one of the issues identified by the parties as an issue for trial – Application granted for the wife to adduce evidence from the expert witness.

  • Damas & Alavi [2020] FamCA 459

    02 Jun 2020

    FAMILY LAW – NULLITY – Application for declaration – Where at the time of the marriage the applicant was married to another person – Declaration of nullity made

  • Fermikis & Fermikis (No. 2) [2020] FamCA 457

    02 Jun 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – what material is read – what applications are heard – late filing – unilateral interstate relocation of children without notice to parties or Court – non-attendance of Mother at Court – allow Mother to rely upon affidavit filed out of time and Father to rely upon affidavit filed in response

  • Walcott & Walcott (No. 2) [2020] FamCA 434

    02 Jun 2020

    FAMILY LAW – CHILDREN – Parenting Orders – parties invited to submit proposed orders following the determination of the mother’s relocation application which was dismissed.

  • Scott & Scott [2020] FamCA 414

    02 Jun 2020

    FAMILY LAW – COSTS – COURT-APPOINTED RECEIVERS – Application by receivers appointed during proceedings to have their fees and disbursements quantified and paid from available assets – Where the appointment of the receivers was terminated by the Full Court – Where the former receivers are entitled to claim remuneration, expenses and costs – Where the dispute is confined to the proper quantum of the receivers’ fees and how the responsibility for payment of the fees should fall upon the parties – Where the receivers were appointed for the benefit of both parties – Ordered the parties are jointly and severally liable to the former receivers in a fixed sum – Ordered the parties shall indemnify one another to the extent of one-half of the total sum payable to the former receivers – Ordered the total sum payable to the former receivers is charged against the parties’ real and personal property.
    FAMILY LAW – PROPERTY – COSTS – Application by the husband for the wife to pay his costs of and incidental to the property proceedings – Where relevant factors under s 117(2A) of the Family Law Act 1975 (Cth) are considered – Where the wife’s complete lack of success with her application under Part VIIIA of the Family Law Act 1975 (Cth) is a compelling consideration – Where the wife’s financial circumstances do not militate against a costs order – Ordered the wife to pay the husband’s party/party costs in the sum agreed or assessed for confined period. 
    FAMILY LAW – BINDING FINANCIAL AGREEMENT – ENFORCEMENT – Application to facilitate the enforcement of property rights under the parties’ binding financial agreement – Where orders made between the parties in December 2019 require certain steps to be taken to implement the binding financial agreement – Where the parties have been unable to work cooperatively to implement the financial agreement despite it being declared binding under Part VIIIA of the Family Law Act 1975 (Cth) – Where the wife does not want external assistance to manage the parties’ property to bring the terms of the binding financial agreement to fruition – Where the husband’s proposed solution is to appoint a receiver to enforce the binding financial agreement – Ordered the parties each nominate a suitably qualified independent person to act as a new receiver which nomination cannot include the former administrator or former receivers – Ordered the new receiver will be chosen by ballot from the parties’ nominations and the parties must bear the receiver’s remuneration in equal shares – Ordered the husband’s compliance with Order 4(c) made on 6 December 2019 – No basis to disturb the operation of s 117(1) of the Family Law Act 1975 (Cth) and award costs.

     

  • Chaves & Chaves [2020] FamCA 418

    01 Jun 2020

    FAMILY LAW – CHILDREN – With whom the children spend time – Where each of the parties proposes minor changes to the existing interim parenting orders – Where the father seeks orders for make-up time as a result of not spending time with the children during the Christmas school holidays – Where the existing orders made no specific provision for the father’s time with the children during the Christmas school holidays – Where it is not appropriate to order make-up time – Orders made for the father to spend time with the children during future Christmas school holiday periods – Applications otherwise dismissed.

  • Cooper & Walden [2020] FamCA 431

    29 May 2020

    FAMILY LAW – PROPERTY – Application for adjustment of interests in matrimonial property – Where the husband inherited substantial funds from his late mother at the time of or just after separation of the parties – Where s 79(4) factors favour the husband due to the provision by him of the unencumbered property which became the family home – Where s 75(2) factors favour the wife due to her providing more of the care and supervision of the children during the marriage and post separation, disparity of income, superannuation and the resource of inherited funds – Where the husband holds more than 90 per cent of the total asset pool – Where parties agree it is just and equitable to make an adjustment in favour of the wife – Ordered an adjustment to reflect equality between the parties in respect of the pool excluding inheritance.

  • Deane & Tennant [2020] FamCA 428

    29 May 2020

    FAMILY LAW – PROPERTY – Interim – where a previous order provides for the payment of the wife’s rental costs by the husband from a joint business bank account upon the provision of a signed rental lease – where the wife seeks enforcement of the order to the extent to enable reimbursement of her asserted rental arrears – where the husband seeks that the order providing for payment of the wife’s rental costs be discharged – where both applications are dismissed.

  • Hitchens & Hitchens [2020] FamCA 423

    29 May 2020

    FAMILY LAW – PROPERTY – Where the wife brings an application for litigation funding – Where the Court is not satisfied that an identifiable and available fund or source for the payments sought has been established – Where the Court is also not satisfied that circumstances exist to justify an order for costs under s117 – Where the Application is dismissed

  • Aitken & Aitken [2020] FamCA 421

    28 May 2020

    FAMILY LAW – PROPERTY – INTERIM – Where the parties’ finances are conducted through corporate entities – Where the parties jointly operate and manage a business – Orders made regarding the operation of the business, occupation of real property and maintenance of matrimonial assets in the interim.

  • Sacha & Sacha [2020] FamCA 417

    28 May 2020

    FAMILY LAW – CHILDREN – International relocation – Where the mother seeks orders providing for her to relocate the children’s residence to Country F – Where the Independent Children’s Lawyer supports the mother’s Application – Where the father opposed the mother’s Application but has disengaged from the proceedings – Where the mother has attempted to facilitate contact between the father and the children – Where the father has not spent time with the children since January 2018 – Where the extended maternal family reside in Country F – Where the mother has researched facilities available for herself and the children in Country F – Whether relocating to Country F is in the best interests of the children – Orders made in accordance with the Independent Children’s Lawyer’s Minute of Order in favour of the mother relocating with the children.

  • Newsome & Newsome [2020] FamCA 416

    27 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Abandonment of Trial – Procedural Fairness – Where the father, on the third day of a five day final parenting hearing, made an application for the abandonment of the trial on the basis that the trial judge had inadvertently had regard to extraneous material that was not sought to be relied upon and could not be relied upon by the parties or the independent children’s lawyer, and due to that, injustice would be done to him if the trial continued under the circumstances – Where the material was a report prepared by a person who has since had her registration as a psychologist cancelled and as such it was impossible to rely upon the report as expert evidence, or to cross-examine her about the contents of the report – Where the mother and the independent children’s lawyer support the application for abandonment – Where it is accepted that justice could not be seen to be done if the trial continued – Where the trial is abandoned.

  • Figgins & Ang [2020] FamCA 404

    27 May 2020

    FAMILY LAW – PROPERTY – Interlocutory proceeding – application for injunctions – spousal maintenance and adult child maintenance

  • Rigby & Kingston and Ors [2020] FamCA 415

    26 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Where various third party respondents, joined to the proceedings by the husband pursuant to r 6.03 of the Family Law Rules 2004 (Cth), make an application to be removed as parties to the proceedings – Where they contend that the husband has failed to establish the essential requirements to justify the joinder of a party - Where the husband was ordered to file an Amended Initiating Application and a Points of Claim document particularising the precise orders sought against each of the third party respondents as well as pleading the fact and law relied upon for the relief sought – Where the husband has failed to comply with that order – Where the husband contends that he has been prevented from properly particularising his claim by a lack of disclosure from the third party respondents – Where it is improper to join a party for the sole purpose of obtaining disclosure – Where the Court finds that the identified third party respondents were joined for an improper purpose and those respondents will be removed as parties to the proceedings – Where the obligations of the remaining third party respondents will be stayed pending the husband’s compliance with the order to particularise his case.
    FAMILY LAW – COSTS – Circumstances justifying order – Where the third party respondents seek indemnity, or alternatively, party to party costs against the husband for costs incurred in relation to a hearing in December 2019 – Where the circumstances justify the making of a costs order but are not so exceptional as to warrant an award of costs on an indemnity basis – Where the husband is ordered to pay costs fixed in the sum of $25,000 to the third party respondents, payable within 7 days of the conclusion of the substantive proceedings. 
    FAMILY LAW – EVIDENCE – Application to strike out – Where the wife seeks to strike out particular paragraphs of the husband’s affidavit on the ground that they are not relevant to the issues listed for the first series of trial dates – Where the husband resists the application – Where the paragraphs objected to are struck out. 
    FAMILY LAW – LITIGATION FUNDING - COSTS - Where the husband seeks further litigation funding from the wife in relation to the husband’s legal costs of responding to the application brought by the third party respondents – Where the circumstances do not justify an order for the wife to pay the husband’s costs of pursuing a claim against third parties, particularly where the basis for that claim is yet to be particularised – Where the application is dismissed.

     

  • Vinh & Nhan [2020] FamCA 410

    26 May 2020

    FAMILY LAW – NULLITY – Application for declaration – Where at the time of the marriage the husband was married to another person – Declaration of nullity made.

  • Marvil & Mancell [2020] FamCA 408

    26 May 2020

    FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where appropriate the matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother and silent as to time with the father.

  • Papp & Myers [2020] FamCA 127

    22 May 2020

    FAMILY LAW – CHILD – Relocation – one child of a brief relationship – where the parents were not married or in a de facto relationship – where the mother moved to a town during her pregnancy and the early years of the child’s life – where the father did not have a relationship with the child for the first 16 to 17 months of the child’s life – where there is no dispute that the mother is the primary carer – where the mother returned to Sydney – where the child developed a secure attachment to the father –where the mother has unilaterally relocated back to the town – where there is about 670 kilometres between residences of the parents – where the father is in a stronger financial position – where the mother was an unreliable witness – where the father seeks an order that the child live with him – where the father does not seek a coercive order for the mother to return to Sydney – best interests of the child – where the COVID-19 pandemic broke 

  • Doan & Lock [2020] FamCA 439

    21 May 2020

    FAMILY LAW – CHILDREN – INTERIM – orders made for the child to commence spending overnight time with the father

  • Chard & Yong (No. 2) [2020] FamCA 386

    19 May 2020

    FAMILY LAW – CHILDREN – Parenting – where the Mother seeks to take the child on overseas travel – where China is not a Hague Convention country – no order made permitting travel – where the Mother is at liberty to apply for a passport for the child without the consent of the Father - where the Father seeks to email the child on a weekly basis – where no order made for email contact between the child and the Father

  • Rametta and Ors & Rametta [2020] FamCA 377

    19 May 2020

    FAMILY LAW – INJUNCTIONS – where husband seeks a release of funds to which he is entitled pending determination of wife’s s 79A application – relevant considerations – injunction dissolved and funds paid to husband.
    FAMILY LAW – COSTS – where wife seeks $200,000 to fund her s 79A litigation which was brought 13 years after orders were made by consent– where court’s power is confined to costs power in s 117 – relevant considerations – where there is a vast disparity in financial positions of the husband and the wife – where costs may be disproportionate to proceedings.

     

  • Alva & Alva [2020] FamCA 376

    19 May 2020

    FAMILY LAW – PROPERTY – Where application for interim property orders – Where consideration of applicable principles – Where appropriate to make order for capital funds to be made available to the wife with categorisation of that sum reserved to final hearing – Where appropriate that the husband pay the mortgage and outgoings of one of the parties’ properties from the income that the property derives – Where not appropriate to make the other interim orders sought by the parties.

  • SCVG & KLD and Anor [2020] FamCA 409

    18 May 2020

    FAMILY LAW – CHILD SUPPORT – where the Applicant seeks to be set aside the decision for the Child Support Registrar be excused from attendance until judgment – where the Applicant seeks an order for the Child Support Registrar to file responses in the litigation – where the application is a misconceived frolic – where the application is dismissed.
    FAMILY LAW – COSTS – where the Applicant has been wholly unsuccessful – where a costs order of a specific amount is made.

     

  • Toscani & Toscani [2020] FamCA 5

    15 May 2020

    FAMILY LAW –  PROPERTY SETTLEMENT – proceedings to alter property interests – long marriage of approximately 38 years – where the marriage is ongoing and the parties continue to reside together – where the husband is represented by a case guardian – assessment of contributions – where husband made a significant contribution at the commencement of the marriage – where husband made a contribution to the wife’s daughter – where there is a dispute relating to the treatment of loans incurred pursuant to Div 7A of the Income Tax Assessment Act 1936 (Cth) – where an indemnity in respect of a guarantee is sought – where the Court considers the husband has made a contribution of 52 per cent to the parties’ property – where there is no adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) – where there is a limited maintenance order.

  • Chard & Yong [2020] FamCA 385

    14 May 2020

    FAMILY LAW – CHILDREN – parenting – consent orders – where issues raised of family violence – ongoing relationship between the child and the Father – best interests of the child – where consent orders made.

  • Paullin & Paullin [2020] FamCA 364

    14 May 2020

    FAMILY LAW –  PROPERTY – Undefended hearing – Application for adjustment of interests in matrimonial property – Where consideration of the relevant contributions and the section 75(2) factors favour the wife – Where it is just and equitable to make an adjustment – Ordered husband transfer to the wife all his right, title and interest in the former matrimonial home.

  • Department of Child Safety, Youth and Women & Gikas [2020] FamCA 361

    12 May 2020

    FAMILY LAW –  CHILD ABDUCTION – Hague Convention – Application seeking an order that a Regulation 26 report be prepared for use at hearing an Application under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for the return of the children to Greece – Application dismissed.

  • Matech & Matech and Ors (No. 2) [2020] FamCA 424

    08 May 2020

    FAMILY LAW –  PROPERTY – CORPORATIONS – Where the husband was disqualified from being a director of corporations by ASIC – Where following his disqualification the husband purported to appoint his adult daughter as a director– Where the daughter then purported to appoint her grandmother – Where the grandmother purported to appoint a voluntary administrator – Where the wife is the sole shareholder of subject corporation – Where all appointments are found to be invalid

  • SCVG & Estate of KLD and Anor [2020] FamCA 337

    07 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – orders for pleadings – striking out of pleadings – application to amend pleadings in relation to struck out aspects

  • Phelps & Phelps [2020] FamCA 285

    29 Apr 2020

    FAMILY LAW – PROPERTY – INJUNCTION – where the wife seeks interim orders restraining the husband in his capacity as sole director and shareholder of the trustee company of the family trust, from executing any declaration, determination or resolution as to the distribution of income of the family trust without the prior written consent of the wife – application dismissed.
    FAMILY LAW – PRACTICE AND PROCEDURE – where the wife seeks her father be joined to the proceedings – where the wife seeks leave to amend her Response document to include property adjustment orders which extend to a range of commercial arrangements between her and her father as a third party – where the Court finds such proposed orders are beyond the jurisdiction of the Court – application for leave to amend refused.
    FAMILY LAW – PRACTICE AND PROCEDURE – where the wife seeks an adjournment of the final hearing listed in May 2020 – where the husband opposes the adjournment application – where the court is not persuaded a trial by electronic means would be unfair or unjust of itself – where the Court finds that uncertainties as to the valuation evidence arising from current trading conditions on businesses as a result of the COVID-19 virus imposed by government restrictions, necessitate some further evidence to be available before a trial – trial adjourned to a date not before 1 October 2020

     

  • Cane & Cane [2020] FamCA 412

    22 Apr 2020

    FAMILY LAW – CHILDREN – Parenting issues – father suffers significant mental health issues and alcohol dependency – currently under emergency medical care after just completing several months of residential rehabilitation – proceedings on foot for several years – final orders made – application dismissed.

  • Fatisi & Hasila [2020] FamCA 209

    03 Apr 2020

    FAMILY LAW – NULLITY – overseas marriage – decree of nullity or invalidity concerning marriage – where one party was underage at the time of the marriage – where marriage was procured by duress – whether terms void and invalid can be used interchangeably in respect of a decree of nullity

  • SCVG & Estate of KLD (Deceased) (No. 3) [2020] FamCA 176

    20 Mar 2020

    FAMILY LAW – PLEADINGS – Purpose of pleadings in the Family Court of Australia – Embarrassing Pleadings – Striking out pleadings – Fraud

  • Salters & Salters [2020] FamCA 138

    11 Mar 2020

    FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where each party seeks a marginal adjustment of their interests in property – Where the parties disagreed about the identification and value of items in the matrimonial asset pool – Where the husband sought to include interim property distributions in their relevant historical amounts – Where the wife contended that the assets should represent their current values – Wife’s approach favoured – Matrimonial pool calculated based on the current value of the relevant assets – Where the parties were married for 23 years – Where the husband made significant financial contributions during the marriage and following separation – Where the overwhelming majority of the homemaker contributions were made by the wife – Where each of the husband and the wife worked diligently to contribute to the marriage – Where the Court assessed the parties’ overall contributions to be equal – Where the wife’s role as homemaker facilitated the husband’s involvement in highly paid work – Where the husband has a greater earning capacity than the wife – Where joint funds were used to the wife’s benefit following separation – Where the wife had the benefit of residing in the former matrimonial home following separation – Where no adjustment is warranted under s 79(4) of the Family Law Act 1975 (Cth) – Orders made to facilitate the matrimonial assets to be distributed equally between the parties.

  • Wahner & Laberman and Ors [2020] FamCA 441

    24 Feb 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – CASE GUARDIAN – where the third respondent maternal grandmother is appointed as case guardian for the second respondent maternal grandfather – where their interests are the same and they are represented by the same counsel and solicitor - where there is medical evidence that demonstrates that the maternal grandfather has some health issues which diminish his capacity to conduct proceedings on his own behalf and it is appropriate to appoint his wife as case guardian.

  • Oswell & Oswell [2020] FamCA 442

    03 Jun 2020

    FAMILY LAW – INJUNCTIONS – Undefended interim hearing – Where consideration of applicable principles – Where appropriate to make order for sale of former family home and discharge of mortgage with remaining funds to be held on trust pending further order – Where proper that the husband be restrained from interfering with, disrupting or otherwise impeding the sale of the former family home.

  • Sappington & Sappington [2020] FamCA 436

    02 Jun 2020

    FAMILY LAW – CHILDREN – Interim – where final parenting orders were made in May 2019 for change of residence for the 14 year old child to live with the father in North Queensland – where the child has self-placed with a friend of the mother in the North Queensland region – where the father seeks a recovery order and the mother seeks that the child live with her – where the matter is listed for trial in three months – interim orders made for the child to live with the mother or the mother’s friend in North Queensland and for the child to spend time with the father.

  • Jobling & Slade [2020] FamCA 419

    01 Jun 2020

    FAMILY LAW – PROPERTY SETTLEMENT – De Facto Relationship – where a just and equitable result requires alteration of the parties’ property interests – where the husband asserts that his contributions over the relationship should be assessed as greater, based on his larger initial capital contribution – where there is dispute over the appropriate method for valuing the family home – where the wife seeks spousal maintenance for a period of three years – whether any spousal maintenance should be capitalised – where both parties in this relationship of 16 years contributed equally to the relationship – where expert evidence as to the value of the property is accepted – where wife entitled to 62.5 per cent and husband entitled to 37.5 per cent of net non-superannuation assets – where superannuation assets equalised – where husband ordered to pay spousal maintenance for a period of three years – where spousal maintenance capitalised.

  • Reema & Baboor and Ors [2020] FamCA 432

    29 May 2020

    FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias – Where father contends prejudgment of issues in parenting dispute based on observations and findings made in various interim parenting judgments, and other judicial conduct in the context of parenting proceedings - Application for disqualification dismissed.

  • Denford & Manville (No. 2) [2020] FamCA 427

    29 May 2020

    FAMILY LAW – COSTS – where the Court is persuaded that the circumstances justify the making of an order for costs but is not persuaded that it is just to make an order for costs on an indemnity basis – where costs are ordered in a fixed amount.

  • Lambard & Lambard and Anor [2020] FamCA 405

    26 May 2020

    FAMILY LAW – CHILDREN – Interim Orders – Where the second respondent maternal grandmother seeks orders for the relocation of the child from Queensland back to Sydney – Where the maternal grandmother’s application is supported by the Applicant mother – Where the father seeks Orders for the child to remain living with him and the paternal grandparents in Queensland – Where the child is 15 months old – Where the mother suffered a catastrophic injury rendering her a paraplegic when the child was seven (7) weeks old – Where the father unilaterally relocated the child to Queensland at seven (7) weeks old – Whether there is an unacceptable risk, including of psychological harm, to the child in spending time with the mother – Consideration of meaningful relationship with both parents – Orders made for the father and the child to relocate back to Sydney pending final hearing – Orders made setting the matter down for a final hearing on an expedited basis and for the appointed of a Chapter 15 Single Expert.

  • Soloviev & Masur [2020] FamCA 398

    22 May 2020

    FAMILY LAW – INJUNCTIONS – Sole use and occupation – Whether it is just and convenient to make an order - Where the husband seeks the sole use and occupation of one of the wife’s premises pending final resolution of the proceedings– Where the wife seeks that the husband vacate the premises – Where the wife is the sole registered proprietor of the premises - Where the wife alleges the husband moved into the premises without her knowledge or consent – Where the wife contends the premises is unkempt and that the husband has damaged the property – Where the premises is not habitable – Where a payment is offered by the wife to the husband to assist with alternate accommodation – Orders. 
    FAMILY LAW – PROPERTY – Interim distribution – Whether the circumstances trigger the Court’s power to make an interim property settlement – Where the provisions of section 79 of the Family Law Act 1975 (Cth) need to be applied with limitations - Where the wife seeks to pay the husband a sum by way of partial property settlement – Where the wife seeks that the payment is conditional upon the husband vacating one of the wife’s premises – Where the husband seeks a sum higher than the wife proposes and without vacating the premises – Orders. 
    FAMILY LAW – SPOUSAL MAINTENANCE – Where the husband seeks interim spousal maintenance – Consideration of the husband’s reasonable needs and ability to support himself – Consideration of wife’s capacity to meet a spousal maintenance order – Where the payment of a lump sum offered by the wife and sought by the husband could be achieved by way of spousal maintenance or interim settlement of property – Where no order for spousal maintenance made where partial property settlement orders made.

     

  • Sayed & Alam [2020] FamCA 400

    15 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – matter listed for six day trial – where the mother has recently become self-represented – where discretion of s 102NA(1)(c)(iv) is applied – where in the circumstances of the COVID-19 pandemic and procedural fairness requires trial to be adjourned – final hearing dates adjourned – interim hearing ordered – orders made for interim hearing to receive evidence from both parties without cross-examination.

  • Keane & Keane [2020] FamCA 99

    08 May 2020

    FAMILY LAW – CHILDREN – Best interests – spend time arrangements for child – allocation of parental responsibility – father seeks shared parental responsibility and build-up of time with child from supervised to unsupervised time following a review – mother seeks sole parental responsibility and that child have no time with father – where mother makes allegations that child has been sexually abused by the father – where mother makes allegations of family violence and that child has been exposed to family violence – where mother alleges father presents an unacceptable risk of harm to child – where father has not spent time with child since child was eighteen months old – where father does not present an unacceptable risk of harm to the child – where the court must balance the risk of the mother’s parenting capacity diminishing if the child has a relationship with the father with the benefit to the child of this relationship – where therapeutic assistance may be required by the mother – orders made for the mother to have sole parental responsibility for the child and for the child to spend supervised and ultimately unsupervised time with the father – effect of COVID-19 on orders for supervised time.

  • Selleck & Albin [2020] FamCA 438

    06 May 2020

    FAMILY LAW – CHILDREN – Interim – where the mother has relocated to live closer to the child – orders made for an increase of time between the child and the mother.

  • O'Keefe & Pascoe [2020] FamCA 274

    23 Apr 2020

    FAMILY LAW – CHILDREN – Previous final orders – previous change of arrangements on an interim basis – Amended final consent orders made – contested orders regarding location of time with the child – contested orders regarding school holiday time.

  • Hollands & Hollands [2020] FamCA 397

    30 Mar 2020

    FAMILY LAW – CHILDREN – Application filed by mother seeking parenting orders – With whom a child lives – With whom a child communicates – Allegations of violence – Orders that child live with the mother – Orders that mother have sole parental responsibility for the child including changing the child’s surname.

  • Santer & Santer (No. 2) [2020] FamCA 445

    27 Mar 2020

    FAMILY LAW – CHILDREN – where the mother refused to allow the children to spend time with the father during the school holidays due initially to the confusion over when school holidays started and thereafter the father being a medical practitioner the risk of the children being exposed to the coronavirus in the father’s care – where the mother applied for an intervention order against the father for the protection of herself and the children – where there is no evidence before the court to demonstrate that the children are at risk in the father’s care – where orders are made for the children to be returned to the care of the father in order to for them to spend holiday time before a return to the usual arrangements – where this order is inconsistent with an intervention order made in the Magistrates Court in respect of the children – where this order takes precedence.

  • Bader & Spinner (No. 2) [2020] FamCA 426

    06 Mar 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – adjournments – where enforcement proceedings with respect to the sale of the former matrimonial home have been on foot since September 2018 – where the wife has been ordered to provide vacant possession of the former matrimonial home and the husband is to have sole possession for the purposes of sale – where the wife has failed to comply with the order – where the wife’s application for an adjournment is denied.
    FAMILY LAW – ENFORCEMENT OF ORDERS – warrant for possession – where there are orders requiring the wife to vacate the former matrimonial home – where the wife has failed to comply with the orders– where given the history of the proceedings there are no circumstances that would warrant the court not exercising its discretion to enforce the orders – where the husband’s application is successful and a warrant for possession is issued. 
    FAMILY LAW – PRACTICE AND PROCEDURE – bifurcation – where the husband seeks orders splitting the hearing of the wife’s 79A application and any property proceedings if the wife’s application pursuant to 79A is successful – where the grounds upon which the wife relies can be delineated from the facts underpinning the exercise of the discretion pursuant to s79A – where in all the circumstances there should be a separate hearing as to whether there are any grounds for setting aside or varying the orders.

     

  • Santer & Santer [2020] FamCA 444

    14 Feb 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Application of s102NA – where the mother is self-represented – where there has previously been a final intervention order in place for the protection of the father and the mother has been found to have breached that order – where discretion is exercised and an order for the ban on personal cross-examination is made – where orders are made for the father to take the children to the appointment with the family consultant for an updated family report after the mother tried to cancel the appointment.

  • Fairley & Jaggard [2020] FamCA 437

    15 Jun 2020

    FAMILY LAW – CHILDREN – Best interests – With whom the child shall live and spend time – Where the subject child is aged 14 years of age and has Autism Spectrum Disorder – Where the applicant father sought orders for the child to live with him and spend time with the mother – Where the respondent mother sought orders for the child to remain living with her and for him to only ever graduate to spending professionally supervised time with the father – Where the mother alleges the father poses an unacceptable risk of harm to the child – Where the Independent Children’s Lawyer proposed orders for the child to live with the father and to spend only limited time with the mother – Where factors under s 60CC of the Family Law Act 1975 (Cth) are considered – Where orders are made closely reflecting those proposed by the father and the Independent Children’s Lawyer – Where the child shall live with the father – Where the mother will spend time with the child every third weekend – Any and all outstanding applications dismissed.
    FAMILY LAW – CHILDREN – Parental responsibility – Where the parties, the Independent Children’s Lawyer and the single expert all agreed that parental responsibility cannot be shared by the parties – Where presumption of equal shared parental responsibility is rebutted – Where s 65DAA of the Family Law Act 1975 (Cth) is not engaged – Where the father as the residential parent shall have sole parental responsibility for the child.

     

  • Baskin & Baskin [2020] FamCA 401

    25 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – where the husband died intestate during the proceedings – where the wife having been granted Letters of Administration now seeks to be substituted as the husband’s legal personal representative – where there is no one else that can be substituted for the husband – where six months has elapsed since the wife filed this application and there has been no claim made on the husband’s estate – where the wife’s initiating application and response of the husband is dismissed.

  • Tritton & Ducatti and Anor [2020] FamCA 392

    25 May 2020

    FAMILY LAW – PROPERTY – Costs – Where the husband and second respondent primarily seek costs on an indemnity basis – Consideration of ss 117(1) and 117(2) of the Family Law Act 1975 (Cth) and the differing position of the husband and second respondent in relation to the considerations in a costs application – Wife’s conduct and imprudent refusal to accept offers of settlement significant factors in the determination of the quantum and basis of costs ordered to be paid – Wife ordered to pay second respondent’s costs on an indemnity basis from 27 September 2017 being the date of the second respondent’s offer of settlement – Wife ordered to pay husband’s costs assessed at 50% of costs billed from 18 November 2018 being the date of his first offer of settlement.

  • Talbott & Tapp [2020] FamCA 391

    25 May 2020

    FAMILY LAW – COSTS – Where the de facto husband seeks an order that the de facto wife pay his costs in respect of interim proceedings on an indemnity basis or in the alternative on a party/party basis– Where the de facto wife opposes the Application for costs – Where the de facto wife was wholly unsuccessful in pursuing her Application in the Family Court of Australia – Consideration of the conduct of the parties in the proceedings – Where the de facto wife has been made redundant – Consideration of the financial circumstances of the parties – Orders made for costs on a party/party basis in favour of the de facto husband payable upon conclusion of property proceedings.

  • Prosser & Prosser and Anor [2020] FamCA 378

    22 May 2020

    FAMILY LAW – PROPERTY – CONSTRUCTIVE TRUST – where the pool of assets is modest – where the Applicant purchased an investment property with marital assets during the relationship – where the Applicant’s adult sons discharged the mortgage over the property and the property was subsequently transferred to one of them – where the Court finds that an interest in the property is held on Constructive Trust for the Applicant and Respondent – where an adjustment is made in favour of the husband in consideration of s75(2) – where none of the three parties’ proposed orders achieve justice and equity.

  • Re: Imogen (No. 4) [2020] FamCA 396

    21 May 2020

    FAMILY LAW – CHILDREN – Medical Procedures – Where an organisation applies for leave to intervene in the proceedings – Where the organisation raises concerns in relation to the current orthodox medical treatment of children diagnosed as having Gender Dysphoria – Where the organisation wishes the opportunity to adduce evidence in this case wider than the child’s individual circumstances – Where the mother’s expert has the professional and academic qualifications and connections to provide to the court evidence of a wider nature so far as that is relevant – Where the application by the organisation is dismissed.

  • Re: Imogen (No. 3) [2020] FamCA 395

    15 May 2020

    FAMILY LAW – CHILDREN – Medical Procedures – Where the ICL indicates that the child has expressed a clear view that she does not wish to attend an interview with the mother’s expert – Where it is in the child’s best interests for her to attend that interview – Where an order is made for the father to ensure the child’s attendance at the interview – Where a request is made of the ICL to explain the basis upon which the decision for her to attend the interview has been made.

  • Re: Imogen (No. 2) [2020] FamCA 394

    15 May 2020

    FAMILY LAW – CHILDREN – Medical Procedures – Where the mother opposes the continuation of the child’s treatment for Gender Dysphoria – Where the mother seeks permission to rely upon expert evidence as to whether the child has Gender Dysphoria or any other mental health condition; opinion regarding the child’s current diagnosis and treatment; opinion as to whether or not the child is Gillick competent and opinion more widely as to whether or not the medical profession is operating on an “informed consent model of care in gender dysphoria” and opinions about alternate treatments for Gender Dysphoria in young people – Leave is granted for the mother to obtain and adduce a report from the expert that she proposes – Where an order is made that the mother and father attend interviews with that expert.

  • Re: Imogen [2020] FamCA 393

    14 May 2020

    FAMILY LAW – CHILDREN – Medical Procedures – Where the Australian Human Rights Commission apply for leave to intervene in the proceedings – Leave granted.

  • Bacall & Zagar [2020] FamCA 350

    14 May 2020

    FAMILY LAW – ALTERATION OF PROPERTY INTERESTS – no parenting issues. 
    FAMILY LAW – COHABITATION – disputed evidence of duration of relationship, the husband contending the relationship lasted a few years only whereas the wife contending the relationship lasted for over 15 years – finding in wife’s favour. 
    FAMILY LAW – DISCLOSURE BY HUSBAND – very poor – serious difficulty obtaining a reliable understanding of the totality of the parties’ asset position – wife, conversely, in straitened financial circumstances – financial position of husband substantial – extensive review of authority of appropriate orders where discovery has been defective. 
    FAMILY LAW – CONTRIBUTIONS – husband providing the lion’s share of financial contributions – the wife providing significant home-maker contributions – husband contending wife’s entitlement limited to 5% - wife initially seeking a 50% division of property but at the trial contending for 40% - wife’s contentions upheld as to 40% – division ordered in the percentages 40% to the wife and 60% to the husband.

     

  • Guild & Stasiuk [2020] FamCA 348

    14 May 2020

    FAMILY LAW – BINDING FINANCIAL AGREEMENT – interlocutory trial held about validity of agreement – wife contending that agreement was invalid by reason of defects in the wording of the agreement and by reason of the husband failing to disclose the entirety of his financial circumstances.

  • Elgar & Velsen [2020] FamCA 352

    13 May 2020

    FAMILY LAW – CHILDREN – Application made by mother to change children’s surnames – matter proceeded undefended – best interests of the children – whereabouts of the father unknown – where father has not been in contact with the children for approximately two years – children have expressed a wish to be able to identify with the surname of their mother and maternal family – change of name ordered.

  • Christensen & Powell [2020] FamCA 345

    11 May 2020

    FAMILY LAW – PROPERTY – reopening of case – case reopened as to specific matters – application to adduce evidence as to particular matters.

  • Torbeck & Stables [2020] FamCA 339

    08 May 2020

    FAMILY LAW – CHILDREN – Interim parenting – pending final hearing in August 2020 – where the father seeks to increase his time with the child pending final hearing – relocation – where the mother seeks relocation of the child on an interim basis.

  • SCVG (No. 2) [2020] FamCA 276

    24 Apr 2020

    FAMILY LAW – vexatious litigant order – application for leave to institute proceedings – application made in the shadow of a recent refusal of leave in similar circumstances – dismissal of application without oral hearing.

  • Baginski & Medvitz [2020] FamCA 258

    20 Apr 2020

    FAMILY LAW – CHILDREN – Interim parenting – Where the mother seeks variation to supervised time due to COVID-19 pandemic – Where there is a dispute as to frequency of supervised time – Where regular time with the mother is in the child’s best interests – Orders made.

  • Department of Communities and Justice & Osmand [2020] FamCA 379

    25 May 2020

    FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where the child has been residing in Australia with the father for the past 10 months – Where the mother lives in New Zealand - Where the Central Authority brought an application for the return of the child to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the child found to be wrongfully retained in Australia – Application for return granted – Child ordered to return to New Zealand.

  • Xin & Qinlang and Ors (No. 2) [2020] FamCA 399

    22 May 2020

    FAMILY LAW – PROPERTY – division of property – injunction for sale of property to protect business – risk to property pool – requirement of franchise and lease agreements to refurbish property – outstanding request for extension of time for refurbishment deadline – whether adequate proof of risk in absence of additional steps to pursue an extension of time for refurbishment deadline – nature of serious argument to be tried – balance of convenience.

  • Walt & Quinn [2020] FamCA 383

    22 May 2020

    FAMILY LAW – ENFORCEMENT – applicant ordered to pay $20,000 by way of costs pursuant to orders of Baumann J – applicant a pauper – unjust and inequitable to compel enforcement – respondent seeking access to applicant’s superannuation – application refused.

  • Barkas & Barkas [2020] FamCA 382

    21 May 2020

    FAMILY LAW – PROPERTY – interim orders – marriage of 27 years – where the husband controls the parties’ assets and corporate entities – where husband made withdrawal of significant funds from bank account – wife seeks injunctive orders –  undertaking as to damages – variation of orders previously made – matter listed for trial.

  • Jarden & Eastwood (No. 2) [2020] FamCA 381

    20 May 2020

    FAMILY LAW – PARENTING – Variation of interim orders – Where no time has taken place pursuant to orders made – Where variation of interim orders is necessary due to current health restrictions.

  • Eastwood & Jarden [2020] FamCA 380

    20 May 2020

    FAMILY LAW – Parenting – Application to stay interim orders pending appeal – Where interim orders were made in April 2020 which provided for the child to spend supervised time with the respondent – Where any adverse consequences for the child of losing a relationship with the respondent following final orders are significantly less than being deprived of a relationship pending final orders – Where the circumstances of the child are not presently satisfactory – Application dismissed.

  • Colby & Coppola and Ors [2020] FamCA 358

    19 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – where the Second and Third Respondents seek to be discharged from the de facto property proceedings – application dismissed.

  • Yalpat & Yalpat [2020] FamCA 373

    18 May 2020

    FAMILY LAW – CHILDREN – Interim proceedings – where the Mother seeks that the Father’s time with the child be suspended - where the main issue for determination is in relation to changeover arrangements – best interests of the child – orders made varying changeover arrangements.

  • Trishna & Thukral [2020] FamCA 372

    18 May 2020

    FAMILY LAW – INTERIM – Order for the wife to have exclusive occupation of the former matrimonial home – Where the wife seeks an Order for litigation funding – Where there is no source of funds identified for such an Order – Where the husband has no capacity to pay spousal maintenance – Where the husband has no capacity to pay additional Child Support – Applications for litigation funding, spousal maintenance and child support dismissed.

  • Zai & Yen [2020] FamCA 366

    14 May 2020

    FAMILY LAW – NULLITY – Where the wife alleges her consent was not consent at all and was the result of fraudulent conduct by the marriage celebrant and the “husband” – Where discussion of applicable principles – Where evidence sufficient to establish that marriage was void – Where application granted.

  • Warrick & Mia [2020] FamCA 365

    14 May 2020

    FAMILY LAW – INJUNCTION – Application for removal of caveat – Where application dismissed on terms as to sale or refinance.
    FAMILY LAW – SECURITY FOR COSTS – Application by the wife that the deceased husband’s estate provide security for costs – Where consideration of applicable principles – Where application dismissed.
    FAMILY LAW – INTERIM PROPERTY – Application by the husband’s estate for sale of property – Orders made that should the property sell a sum representing 40 per cent of the net proceeds of sale be held in an interest bearing controlled money account in trust for both parties pending further orders.

     

  • Darian & Darian [2020] FamCA 362

    14 May 2020

    FAMILY LAW – PROPERTY – Where application for stay of Child Support Assessments pending final hearing – Where consideration of applicable principles – Where appropriate that a stay be refused.

  • Nesbitt & Nesbitt [2020] FamCA 359

    14 May 2020

    FAMILY LAW – PROPERTY SETTLEMENT – Leave to file application out of time – Where the husband seeks leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings pursuant to s 79 of the Act eight years out of time – Where the wife opposes the granting of leave – Where the parties separated in 2008 and divorced in 2011 – Where the husband will suffer if leave is not granted – Where the husband has adequately explained the delay – Leave granted.
    FAMILY LAW – PROPERTY – INJUNCTIONS – Where the husband also seeks that the wife be restrained from dealing with two properties owned by a family trust – Where there is no evidence of a risk of the wife disposing of the property – Application dismissed.

     

  • Vasil & Vasil [2020] FamCA 357

    14 May 2020

    FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child – Where the father seeks to spend additional time with the child – Where the mother considers it is up to the child and will respect any request made by the child to spend time with the father – Where the child is 14 years of age – Where a Family Assessment Report has been ordered but not yet completed – Court should adopt cautious approach until child’s wishes are known.
    FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Non-compliance – Where the father alleges non-compliance with the current time spending orders – Where the father seeks makeup time – Where the mother considers there have been very few occasions of non-compliance – Where the child is 14 years of age – Where a better understanding of the child’s wishes needs to be established – Where it needs to be established whether makeup time is in the best interests of the child - Court unable to make determination on makeup time on an interim basis.
    FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – Where the father seeks compliance with previous orders for the production of documents – Where the mother has provided documents to the father and further documents will be provided to comply with the previous order – No further order made.
    FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – Where the father seeks the production of additional documents including a Trust Deed for any trust which the mother has an interest in – Where the control the mother may have in the trust is a relevant consideration in terms of any interest she may have in the trust – Orders.

     

  • Huey & Huey [2020] FamCA 354

    13 May 2020

    FAMILY LAW – BINDING FINANCIAL AGREEMENT – Where the parties entered into a valid Binding Financial Agreement – Where the husband wants it set aside – Where the depletion of assets is not a ground to set aside a Binding Financial Agreement – Application dismissed.

  • Xin & Qinlang and Ors [2020] FamCA 374

    12 May 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – joinder of third party respondents – undertaking as to damages – granting of a stay to enable third party respondents to pursue interest in property – disposition of property – pursuit of claim by third party respondents falls within accrued jurisdiction of Court.

  • Department of Communities and Justice & Hallsbury and Ors (No. 2) [2020] FamCA 344

    08 May 2020

    FAMILY LAW – CHILDREN – Parenting orders – interim arrangements – limitations on the scope of available arrangements where the Department of Communities and Justice holds parental responsibility – safety net should arrangements fail.

  • Department of Child Safety, Youth And Women & Mellard [2020] FamCA 343

    08 May 2020

    FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Application under the Hague Convention for the return of the child to New Zealand – Respondent failed to comply with orders made by consent – Return Order made by consent.

  • Backen & Wollam [2020] FamCA 338

    08 May 2020

    FAMILY LAW – COSTS

  • Cheadle & Pointer [2020] FamCA 327

    07 May 2020

    FAMILY LAW – CHILD RELATED PROCEEDINGS – Stay – Where final Orders were made for the child’s primary place of residence to be with the father – Where the mother applied for a stay of Orders pending the determination of her appeal from final parenting Orders – Where the Application is made in circumstances where the COVID-19 pandemic is prevalent and the mother contends that the child’s health concerns make her vulnerable to the virus – Whether the child would be exposed to an unacceptable risk in the care of the father – Where the mother has not complied with Orders of the Court – Where the Court dismisses the mother’s Application for a stay of Orders.

  • Sturton & Cellar [2020] FamCA 335

    06 May 2020

    FAMILY LAW – CHILDREN – Interim – Where a child shall live pending final hearing – Where the mother made an urgent application to the Court seeking an order that she be permitted to relocate from the B Region to New Zealand with the child on an interim basis pending trial, or in the alternative, that the matter be set down for trial on an urgent basis – Where the mother, pending the Court’s consideration for listing of her urgent application, unilaterally relocated with the child to New Zealand – Where the father lives in Western Australia and has flown to see the child in the B Region on a regular basis – Where the mother asserted that the current coronavirus pandemic has impacted on the mother’s ability to financially support herself whilst living in the B Region and that the travel restrictions imposed in response to the pandemic prevented the father from travelling to spend time with the child in any event – Where there is evidence that there are exemptions to the travel restrictions for the purpose of complying with Family Court orders such that the father will be able to travel to spend time with the child – Where the mother is ordered to return the child to Australia and the child shall live with her, in the B Region, if she chooses to also return to Australia, or will live with the father in Perth, Western Australia should she choose to not return with the child – Where the matter will be listed for trial to commence in approximately eight weeks.

  • Mendall & Calpin and Anor [2020] FamCA 332

    06 May 2020

    FAMILY LAW – INTERIM – History of illicit drug use – Orders for mother to undergo fortnightly drug testing – Where the results are to be provided directly to the ICL from the testing facility – Orders for the children to spend alternate weekends with the mother, with the time to be supervised by family.

  • Harland & Harland [2020] FamCA 321

    04 May 2020

    FAMILY LAW – PARENTING – Rice & Asplund – Where the mother seeks Orders to relocate the child’s residence – Where the father seeks that application be dismissed pursuant to the principles in Rice & Asplund – Where the mother’s proposal would be a significant change in circumstances for the child – Father’s application dismissed.

  • Lucas & Lucas [2020] FamCA 319

    04 May 2020

    FAMILY LAW – COSTS – Application for costs order by the Independent Children’s Lawyer – Where contribution by the father would cause financial hardship for himself and may adversely impact the children – Ordered application be dismissed.

  • Hughes & Oliver [2020] FamCA 318

    04 May 2020

    FAMILY LAW – COSTS – Application for costs by the husband – Where the wife was wholly unsuccessful – Where the wife chose not to provide financial disclosure – Where the husband made two genuine offers in attempt to resolve the matter – Where there is no evidence of a response to either offer – Where there are exceptional circumstances – Costs application granted from the date of the first offer and in respect of certain court events on an indemnity basis as agreed, or assessed.

  • Booth & Remington [2020] FamCA 317

    04 May 2020

    FAMILY LAW – COSTS – Application for costs by the applicant – Where the first and second respondent were wholly unsuccessful – Where an order to pay the whole of the applicant’s costs would cause some financial hardship – Cost application granted – Ordered the first and second respondent pay the applicant’s costs fixed in the amount of $500 each.

  • Primosi and Anor & Director-General, Communities Services Directorate [2020] FamCA 330

    30 Apr 2020

    FAMILY LAW – ADOPTION – Cross-Vesting – Adoption under laws of the Australian Capital Territory – Transfer to the Supreme Court of the Australian Capital Territory.

  • Bilney & Brisco [2020] FamCA 351

    08 Apr 2020

    FAMILY LAW – CHILDREN – With whom a child lives and spends time – Orders – Variation – Where there are final orders for the child to live with the father and spend time with the mother – Where there has been a material change in circumstances - Where the child now lives with the mother – Where the mother seeks final orders that the child live with her and spend no time with the father – Where it is alleged the father has physically and verbally abused the child – Where it would not be safe to enable or allow the child to remain in the care of the father – Where there is no appearance by or on behalf of the father – Orders made on an interim basis.

  • Gayner & Gayner [2020] FamCA 265

    01 Apr 2020

    FAMILY LAW – FINANCIAL – where parties agree that the financial situation will change as a consequence of COVID-19 – where both parties seek to vacate the trial date and have the matter mentioned six months hence – matter adjourned for mention.
    FAMILY LAW – PRACTICE AND PROCEDURE – where practitioners agree that, absent the uncertain economic climate, the final hearing could have proceeded appropriately by electronic means.

     

  • SCVG [2020] FamCA 194

    27 Mar 2020

    FAMILY LAW – VEXATIOUS PROCEEDINGS – leave to commence children’s proceedings refused.

  • Bilson & Sargard [2020] FamCA 320

    27 Mar 2020

    FAMILY LAW - CHILDREN – where final parenting orders were made in 2018 for the three children to spend supervised time with the father indefinitely – where the parents have, subsequent to the final orders, by agreement made arrangements for two of the children to spend unsupervised time with the father – where the father now seeks final orders for all three children to live with the parents in a shared care arrangement – where, on the current evidence, the principles of Rice & Asplund have been overcome as a threshold issue in relation to two of the children only.

  • Department of Communities & Justice & Hallsbury and Ors [2020] FamCA 200

    31 Mar 2020

    FAMILY LAW – CHILDREN – Recovery order sought by the Department of Communities & Justice – Best interests of the child – Order made.

  • Lerner & Little [2020] FamCA 112

    26 Feb 2020

    FAMILY LAW – CHILDREN – Best Interests – Whether children should spend time with mother – Where the father asserts that the mother poses an unacceptable risk of harm to the children due to her past relationship with her former partner, whom she knew to be sexually attracted to children – Where the mother’s former partner is awaiting trial on a number of sexual offences involving children, including a charge involving his conduct toward one of the subject children – Where the father asserts that the mother failed to protect the children and there is a real possibility that at least one of the children has been sexually abused as a result – Where the mother seeks to explain her failure to act protectively as occurring in circumstances where she was the victim of family violence and her will was overborne by her former partner and also contends that she thought her former partner’s disclosures to her of his sexual interest in children were fantasy, despite evidence to the contrary, and that he would not harm the children – Where the father seeks that the mother spend no time with the children and that he have sole parental responsibility – Where the mother seeks to spend as much time with the children as possible and if supervision is required that the time be supervised by her sister – Where the mother lacks insight and has sought to minimise her responsibility for exposing the children to possible abuse – Where the mother poses an unacceptable risk of harm due to her personality vulnerabilities which cause her to be vulnerable to manipulation in the context of personal relationships and a consequence of that manipulation being either that the mother does not recognise risk to her children or is prepared to ignore risk and the possibility that she will undermine and destabilise the children’s relationship with the father – Where the risk cannot be ameliorated by supervision – Where it is not in the best interests of the children to have an ongoing relationship with the mother – Where the father will have sole parental responsibility, the children will live with him and spend no time with the mother.

  • Joubert and Anor & Verhoeven and Anor [2020] FamCA 53

    14 Feb 2020

    FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife joined a company and the husband’s brother to the substantive proceedings as the Second and Third Respondents – Where the Second and Third Respondents seek that the proceedings be bifurcated to determine the issue of whether the husband is a beneficial owner of any ordinary shares in the Second Respondent – Where this issue had already been adjudicated by a Judge in the Family Court of Australia – Where the Second and Third Respondents allege that there was a material difference in the case put before the Court in the previous interim hearing –Where the wife argues that the application is an abuse of process – Principle of finality discussed – Whether the application should alternatively be dismissed in the exercise of discretion – Application dismissed.

  • Hua & Liu [2019] FamCA 732

    18 Oct 2019

    FAMILY LAW – PROPERTY – Discussion of s. 79(2) of the Family Law Act 1975 – Is it just and equitable to adjust property interests of the parties – Consideration of husband’s disposition of assets between separation and trial – Whether the principle of Chang & Su apply to husband’s non-disclosure – which assets should be included/excluded from the asset pool – Discussion of s.75(2) factors – Held it is just and equitable to alter property interests of the parties.