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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.

  • Badawi & Badawi [2016] FamCA 804

    21 Sep 2016

    FAMILY LAW – PROPERTY SETTLEMENT – Application by the husband under section 79A(1)(a) to set aside final consent orders – Whether the husband was under duress signing the consent orders – Whether there was a suppression of evidence – Whether the then Federal Magistrate Court Rules 2001 (Cth) were not complied with – Whether the parties’ solicitors failed in their duties – Whether the representation of the husband was perverse or amounted to no representation at all per In the marriage of Clifton and Stuart (1991) FLC 92-194 – Whether the husband was not competent to conduct litigation without a case guardian due to his mental health – Where the Court finds that no ground has been established under section 79A(1)(a) – Where the Court would not have found a miscarriage of justice had occurred – Where the Court would not have exercised its discretion to set aside the consent orders – Application dismissed.

  • Mankus & Matulis [2016] FamCA 799

    09 Sep 2016

    FAMILY LAW – CHILDREN – Where there are allegations of physical, verbal and emotional abuse perpetrated by the father against the mother and the parties’ three children – Where audio recordings made by the mother prior to and after separation are admitted into evidence – Where the Court finds the children have been exposed to family violence – Presumption of equal shared parental responsibility not applied – Whether the children will be exposed to an unacceptable risk of physical and/or psychological harm if they were to spend time with the father – Whether the children spending time with the father would detrimentally impact upon the mother’s psychological health such that it would pose an unacceptable risk of harm to the children – Where the Court finds that the children would be exposed to an unacceptable risk of harm if they were to spend time with the father – Whether any risks identified can be mitigated – Orders made for the mother to have sole parental responsibility – Orders made for the children to spend supervised time with the father on two occasions per year – Orders made that the father not communicate with the children by any means.

  • Janssen & Janssen (No. 2) [2016] FamCA 796

    21 Sep 2016

    FAMILY LAW – CHILDREN – Where there are allegations of physical, verbal and emotional abuse perpetrated by the father against the mother and the parties’ three children – Where audio recordings made by the mother prior to and after separation are admitted into evidence – Where the Court finds the children have been exposed to family violence – Presumption of equal shared parental responsibility not applied – Whether the children will be exposed to an unacceptable risk of physical and/or psychological harm if they were to spend time with the father – Whether the children spending time with the father would detrimentally impact upon the mother’s psychological health such that it would pose an unacceptable risk of harm to the children – Where the Court finds that the children would be exposed to an unacceptable risk of harm if they were to spend time with the father – Whether any risks identified can be mitigated – Orders made for the mother to have sole parental responsibility – Orders made for the children to spend supervised time with the father on two occasions per year – Orders made that the father not communicate with the children by any means.

  • Withers & Russell and Anor [2016] FamCA 793

    20 Sep 2016

    FAMILY LAW – CHILDREN – Where the wife seeks that the children be permitted to live with her in the United States – Where the husband seeks that the children reside with him in Australia – Where the wife makes serious allegations of family violence and child abuse – Where the allegations of family violence and child abuse are largely made without substantial foundation – Where the risk posed by the wife to the children’s relationship with the husband is far greater than the risk posed by the husband to the children’s relationship with the wife – Where the husband is to have parental responsibility subject to conditions – Where it is in the best interests of the children to reside in Australia with the husband and spend time with the wife and the maternal grandparents – Where there is a delay in when the children will be permitted to spend time with the wife in the USA. 

    FAMILY LAW – CHILDREN – PASSPORTS – Consideration of the provisions of s 11 of the Australian Passports Act 2005 (Cth) (“APA”) – Whether an order for sole parental responsibility is sufficient to give exclusive responsibility in the hands of the husband to apply for passports or travel related documents for the children – Where it is not – Consideration of power under APA exercised – Consideration of form of orders to be made. 

    FAMILY LAW – PRACTICE AND PROCEDURE – Application to remove the ICL – Where the application is dismissed. 

    FAMILY LAW – PROPERTY – Where the wife makes an application for the matrimonial law of California to apply when making the property settlement order – Where the application is dismissed. 

    FAMILY LAW – PROPERTY – Where the parties’ net assets are almost entirely represented by the value of the husband’s superannuation interest –Where properties held by the wife’s trust are cross collateralised against other property and debt held by the parties – Where the wife made a significant initial contribution – Where the parties’ contributions during the marriage are equal – Where the wife received the net proceeds of the sale of two properties since separation – Where the wife has made greater contributions in the role of parent since separation – Where there should be a 5 per cent adjustment in favour of the wife based on contributions – Where the husband will have primary responsibility for the children – Where there is a 5 per cent adjustment in favour of the husband based on s 79(4)(d)-(g) factors – Where the assets and liabilities of the parties should be divided evenly – Where all properties need to be available to cover or repatriate debt but the parties are given a two month period in which to refinance or retain the properties – Where orders are made by consent dismissing the husband’s application against the 2nd respondent. 

    FAMILY LAW – PRACTICE AND PROCEDURE – Disqualification application – Where the application is dismissed. 

    FAMILY LAW – PRACTICE AND PROCEDURE – Where the 2nd respondent makes an application to reopen the parenting hearing and adduce further evidence – Whether it is necessary in the interests of justice and best interests of the children to reopen the case – Where the application made by the 2nd respondent is replicated in the alternate application made by the wife in the substantive parenting proceedings – Where considerable prejudice would be occasioned to the children and the husband if the case was reopened – Where the application is dismissed.

  • Director-General, Department of Communities, Child Safety and Disability Services & Salesa [2016] FamCA 781

    16 Sep 2016

    FAMILY LAW – CHILD ABDUCTION – Hague Convention – Cross-examination – where mother sought to cross-examine various witnesses – where application for cross-examination dismissed – where mother has not complied with Family Law Rules 2004 (Cth) rule 15.14 – where cross-examination would result in an adjournment of the trial.

    FAMILY LAW – CHILD ABDUCTION – Hague Convention – Return Order – where child is to return to New Zealand – Habitual residence – whether the father departed Australia for New Zealand on a temporary or permanent basis – where child is habitually resident in New Zealand – Rights of custody – where under New Zealand law the father and the mother were a guardian of the child – where mother has identical rights to father – where father had a right of custody – Retention a breach of fathers’ rights – where any interference with ability to exercise right of custody is a breach of that right – where there was a wrongful removal – where court is obliged to make an order for return.

    FAMILY LAW – DISCRETION – Grave risk of harm – enquiry involves some consideration as to the interests of the child – where mother alleges psychological harm upon being exposed to domestic violence – where mother alleges psychological or physical harm from being disciplined by the father – where mother alleges neglect of the child by father – where evidence is neither clear or compelling – where discretion to not order return of child is not enlivened – Child’s objection to return – where Hague Report prepared – where there is no evidence the child had a strong objection to returning – where the objection does not have a strength showing beyond mere expression
  • Pratten & McPherson [2016] FamCA 775

    07 Sep 2016

    FAMILY LAW – INJUNCTIONS – Anti-suit injunction – Where, in proceedings before this Court, the wife alleges the husband has a beneficial interest in real property – Where the second respondent maintained her legal and equitable interest in the property and denied the husband’s interest in it – Where the second respondent sought statutory relief in respect of the property in separate Supreme Court proceedings following her joinder to the spouses’ property settlement proceedings in this Court – Where the parties agree it is unsatisfactory for parallel proceedings to co-exist – Where the parties agree all aspects of the controversy could be determined to finality in either jurisdiction – Second respondent sought transfer of the property settlement proceedings to the Supreme Court under s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act1987 (Cth) – Where application for transfer is dismissed – Where an anti-suit injunction restrains the second respondent from prosecuting the separate Supreme Court proceedings.

  • Re: Jason [2016] FamCA 772

    09 Sep 2016

    FAMILY LAW – CHILDREN – Where the parents sought a declaration that the child was competent to consent to phase 2 treatment for Gender Dysphoria – Where the court is satisfied the child is sufficiently competent to understand the nature of and express a decision about his receipt of phase 2 treatment –Discussion of the form the orders should take – Consideration of s 67ZC of the Family Law Act 1975 (Cth) – Where it is appropriate to make a declaratory order – Declared that the child is competent to consent to Phase 2 treatment – Order made suppressing the identities of the parties and the publication of any information that would identify them

  • Kallias & Kallias [2016] FamCA 770

    08 Sep 2016

    FAMILY LAW – CHILDREN – Parenting orders – where applications centre around the youngest of two children – where parties agree to have equal shared parental responsibility of both children – where parties agree that older child live with the parents on a week about basis – where there is dispute in relation to the living arrangements for the younger child– where father seeks a week about arrangement for both children – where mother seeks to maintain the status quo of the younger child spending five nights per fortnight with the father and nine nights per fortnight with the mother – where children enjoy a close sibling relationship – where younger child is immature – where little weight attributed to the younger child’s views – where family consultant supports mother’s proposals – best interests of the child – order made in accordance with mother’s proposal – status quo to remain.

    FAMILY LAW – CHILDREN – Parenting orders – Where other parenting orders made by consent in relation to the children spending time with the parents on special occasions, save for the time the younger child is to spend with the parents on the child’s birthday – order made in relation to the younger child’s birthday.

    FAMILY LAW – CHILDREN – Parenting orders – Where mother seeks an order which provides that in the event either parent is unable to personally care for the children during the children’s time with that parent, the other parent be given the first option to care for the children – where father opposes such an order – order made in accordance with mother’s proposal.

  • Valentino & Valentino [2016] FamCA 768

    09 Sep 2016

    FAMILY LAW – CHILDREN – Undefended hearing – application by the father to vary previous parenting orders – Rice & Asplund considered – where the previous orders provided for the youngest child to live with the mother and spend time with the father – where the father seeks orders that the youngest child live with the father and spend time with the mother by agreement and that he have sole parental responsibility for the child in relation to medical decisions – where the youngest child has been living with the father for six months – where the mother has not sought to communicate nor spend time with the child since the child began living with the father – where the mother was put on notice as to the father’s application – final orders made that the youngest child live with the father and spend time with the mother by agreement and that the father have sole parental responsibility in relation to medical decisions.

    FAMILY LAW – CHILD SUPPORT – Application by the father to vary his child support obligations with respect to the youngest child to nil – where the youngest child currently lives with the father and has been doing so for six months – orders made as sought by the father.

  • Simpkin & Simpkin [2016] FamCA 766

    09 Sep 2016

    FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought orders that the husband pay for repairs to the former matrimonial home – Where the orders sought purported to be an application for an interim distribution of property – Where the correct course is to deal with the application as an application for injunctive orders under s 114 of the Family Law Act 1975 (Cth) – Where the parties’ proposals pre-date information provided by the insurer as to what repairs are necessary – Where it is not necessary or appropriate for the Court to make such orders – Application dismissed.

    FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Application for interim costs – Where there is an insufficient evidentiary basis for the Court to depart from the presumption ins 117(1) of the Family Law Act 1975 (Cth) that each party bear his or her own costs – Application for interim property settlement – Where the wife seeks funds for future legal expenses – Where the wife has already received substantial funds for legal costs from the husband – Where it is not in the interests of justice to make the orders sought by the wife – Where the evidence is insufficient to establish that it would be just and equitable to make the orders sought – Application dismissed.

  • Ruskin & Bonner [2016] FamCA 765

    09 Sep 2016

    FAMILY LAW – CHILDREN – Spend time with – application by the husband to increase his time with the children on a regular basis and to have increased time pending the wife travelling overseas with the children over Christmas – where the children are very young – recommendations of the family report writer considered – where the parties intend to meet with the family report writer in several weeks for a further interview – interim orders made for the husband to spend more time with the children but on a graduated basis – application for increased time prior to the Christmas holiday and in 2017 adjourned until after the completion of the updated family report. 

    FAMILY LAW –PROPERTY – INJUNCTIONS – Sole use and occupation – application by the husband for a vacant property owned by the parties – where the wife opposes that application on the basis that she lives in a property in the same road as the vacant property and is fearful of the husband – where the wife previously made an application for the husband to occupy the property currently lived in by her and that she have sole use of the property the husband now seeks sole use and occupation of – orders made for the husband to have sole use and occupation of the vacant property.

  • Fahy & Antar [2016] FamCA 762

    08 Sep 2016

    FAMILY LAW – CHILDREN – Best Interests – Parental responsibility – Spend time with – International travel – Where there are three subject children – Where one child has a disability – Where the Department of Family and Community Services has been involved with the family including removing the children from the mother’s care – Where the children live with the father and spend limited time with the mother – Where the father and the ICL sought that the father have sole parental responsibility for the children, that the children live with the father and spend some day time with the mother – Where the father sought an order permitting him to travel with the children – Where the mother sought that the parents have shared parental responsibility, that the children live with the father and spend time with the mother including overnight time – Where the children have meaningful relationships with each parent – Where there has been family violence – Where there are practical issues in allowing the child with a disability to spend time with the mother – Where there is a risk that the father will not return with the children to Australia if allowed to travel – Where the Court is of the view that the father will return to Australia with the children if allowed to travel – Orders made for the father to have sole parental responsibility for the children – Orders made for the children to live with the father, for the older child to spend time with the mother in accordance with his wishes, and for the younger children to spend time with the mother but not overnight – Order made permitting the father to travel with the children once per year for up to six weeks.

  • Hollister & Gosselin [2016] FamCA 759

    08 Sep 2016

    FAMILY LAW – INTERIM – CHILDREN – where mother has sole parental responsibility – where matter is to be relisted for mention at a date and time to be fixed after release of report – where father has not seen nor communicated with children since 2012 – whether father seeks interim orders to attempt to re-unite with his children – were orders permitting an attempt at reunification are in the best interests of the children. 

    FAMILY LAW – CHILDREN – Risk of harm – Where mother asserts father has sexually abused all children – where mother proposes no contact at all – where father’s criminal prosecution in relation to the alleged offences ended with a nolle prosequi – where mother presents a risk of emotional harm to the children – where the mother presents a risk of continued alienation – where father does not present an unacceptable risk of sexual harm – where material before the court could not satisfy the requisite standard that the father has sexually abused the children – where mother has a genuine belief the father sexually abused the children – where the mother needs guidance and support to deal with her belief the father sexually abused the children – where mother needs support and management to help her cope with resumption of contact with the father.

  • Bentley & Bentley and Anor [2016] FamCA 757

    19 Sep 2016

    FAMILY LAW – CHILDREN – Final parenting – Best interests of the child – Where the mother has disengaged in the proceedings – Child to live with the paternal grandparents and spend time with the father and the mother as agreed – Paternal grandparents to hold sole parental responsibility.

  • Lorne & Emery and Ors [2016] FamCA 747

    06 Sep 2016

    FAMILY LAW – CHILDREN – Where the mother’s relationships are marked by violence, drug use and injury – Where there is ongoing domestic violence in the relationship – Where the children live with the grandparents – Where majority of the care is provided by the grandparents – Where the children’s fathers are parties to the proceedings but did not participate in the final hearing – Where the capacity of the mother is an issue – Where the grandparents remove the children from the mother’s care – Where the children are separated for a period – Where the mother returns the child to the grandparents – Where the Department of Family and Community Services arranges supervised contact for the mother – Where the mother does not attend supervised contact – Where the children indicate they are happy living with the grandparents – Where the children’s views are a significant matter – Where the mother has limited insight – Where the mother is hostile towards the grandparents – Where the mother is unable to recognise her impact on the children – Where the mother’s new partner has mental health issues – Where the mother’s partner has expressed suicidal ideation – Where the children are frightened of the partner’s conduct – Where the partner expresses a willingness to co-operate with a restraining order – Where the grandparents have a history of conflict – Where the grandparents encourage the mother to have contact with the children – Where the grandparents have full financial responsibility for the children – Ordered that the grandparents have sole parental responsibility, shared between themselves – Ordered that the mother is restrained from bringing the children into contact with her partner – Ordered that the Independent Children’s Lawyer explain the orders

  • Wilde & Elder [2016] FamCA 743

    02 Sep 2016

    FAMILY LAW – PROPERTY – De facto relationship – where consideration of contributions – where consideration of relevant s 90SF(3) factors – where consideration of paid legal fees by de facto husband from far superior financial resources post-separation – where in exercise of discretion appropriate for such paid legal fees to be notionally considered – where overall division in favour of the applicant de facto wife.

  • Pilch & Pilch [2016] FamCA 740

    02 Sep 2016

    FAMILY LAW – PROPERTY SETTLEMENT – Long marriage – issue as to contributions and the significance of an inheritance received by the husband – where the husband sought to minimise the wife’s contributions as homemaker and parent during the relationship – husband argues that his initial contributions and an inheritance justify a 74/26 adjustment in his favour – mathematical approach adopted by the husband – where the husband’s initial contributions comprise of two properties sold over forty years ago – no adjustment made with respect to the husband’s initial contributions – where the husband’s inheritance received at the approximate mid-point of a 42 year marriage – where some of the properties claimed as an inheritance were held by the husband prior to his mother’s death – where properties held by the husband were improved during the course of the marriage – adjustment made in the husband’s favour to account for the properties received from his mother or her estate –final property orders made for a 60/40 division in the husband’s favour.

    FAMILY LAW – PROPERTY SETTLEMENT – Where the wife alleges she was subjected to family violence during the marriage and that there should be an adjustment in her favour –Kennon v Kennon [1997] FamCA 27(1997) FLC 92-757 considered – finding that the husband was financially controlling and verbally abused the wife – no evidence as to the effect of the husband’s behaviour upon the wife’s contributions – Kennon argument not made out.

  • Kadivar & Kadivar [2016] FamCA 739

    02 Sep 2016

    FAMILY LAW – CHILDREN – International relocation – Best interests - Whether the mother should be permitted to relocate with the children to New Zealand – Where the mother has a history of depression and anxiety – Whether the mother’s continued presence in Australia would have an adverse impact on her parenting ability – Where the father carries on a business in Australia – Where there would be difficulties maintaining a relationship between the father and the children should they be permitted to leave with the mother– Where the parties agree to equal shared parental responsibility – Where the father ordered to spend substantial and significant time with the children.

  • Buchanan & Marlow [2016] FamCA 736

    02 Sep 2016

    FAMILY LAW – CHILDREN – Undefended hearing – Where father put on notice that the mother would seek final orders in his absence – Where no appearance by father – Where appropriate to proceed on an undefended basis – Where father has been diagnosed with paraphilia and other mental health issues – Where those issues to the mother’s knowledge remain untreated – Where significant concerns regarding the safety of the children in the father’s care – Where mother seeks sole parental responsibility for the children and the father to be restrained from communicating with or approaching the children – Where appropriate to make orders as sought by the mother.

  • Frederick & Frederick (No. 2) [2016] FamCA 726

    30 Aug 2016

    FAMILY LAW – CHILDREN – Consent orders – undefended hearing – best interests of the children –where the father disengaged from the proceedings – where father was charged with indecent dealing with a young girl – where those charges did not proceed – where mother nor Independent Children’s Lawyer do not contend the father presents an unacceptable risk of harm – where mother’s former partner poses risk to the children – where there are orders prohibiting the mother from exposing the children to the former partner – where father alleges alienation – where mother poses no risk of emotional harm based upon alienation – where father’s communication with the children is inappropriate and he interacts poorly with them, there is no risk of harm.

    FAMILY LAW – CHILDREN – Wishes of the child – where the children are mature and their wishes given great weight – where one child is over 17 years of age – where Family Report writer concluded given the children’s ages, they should be able to make their own decisions about future contact with their father – where children’s wishes are given substantial but not determinative weight.

    FAMILY LAW – FAMILY VIOLENCE – where father has been convicted of assault of one of the children – where presumption does not apply – where parents cannot communicate – where parents cannot discharge responsibilities imposed upon them by section 65DAC of the Family Law Act 1975 (Cth) – where there is no equal shared parental responsibility – where it is in the best interests of the children for the mother to have sole parental responsibility.
  • Bowen & Williams [2016] FamCA 725

    29 Aug 2016

    FAMILY LAW – CHILDREN – Relocation – Where the mother is restrained from changing the residence of the child from the greater Brisbane Area – where no evidence was led as to whether the father could live in New Zealand – where employment opportunities for the father are scant – where it is not reasonably practical for the father to move to New Zealand – where the effect of relocation would not allow substantial and significant time – where the parents have equal shared parental responsibility – where child live and spend time with the parties as agreed between them –where parents have liberty to travel to a Hague Convention Country – where the mother attend upon her treating therapeutic psychiatrist and any other professional.

    FAMILY LAW – PRACTICE AND PROCEDURE – Whether some part of the Court’s function has been discharged in an irrevocable way – where application to re-open unperfected judgement – where parties put on more evidence to determine if living in New Zealand would effect substantial and significant time – where substantial and significant time was the focus of the previous reasons, not relocation – where previous reasons did not determine or decide the issue of relocatiaon.

    FAMILY LAW – PROPERTY – where review of the Family Law Act 1975 (Cth) section 90SM(4) factors was incomplete because of uncertainty in relation to parenting orders – where the father has a greater earning capacity than the mother – where there is an adjustment of 10 per cent for section 90SM(4) factors in favour of the mother – where father pays mother cash sum to reflect her entitlement in the former matrimonial home - where father indemnify the mother in relation to extant liabilities to Westpac and his New Zealand child support.

  • Milburn & Milburn [2016] FamCA 724

    29 Aug 2016

    FAMILY LAW – CHILDREN – Interim parenting orders – Best interests of the child – equal shared parental responsibility – where father seeks mother’s application to be dismissed – where father wants to maintain equal shared parental responsibility – where mother brought an application to support the Family Report – where children exposed to ongoing parental conflict – where one child presented with self-harming behaviour – where mother frequently spent extended periods of time in the United Kingdom – where this lead to the father bringing a Hague Convention proceeding – where mother left children with father in Australia to secure employment in the United Kingdom – where the presumption of equal shared parental responsibility applies – where historical and minor events which may satisfy family violence should not displace the presumption – where the mother takes care of foster children – where equal time is in the best interests of the children and reasonable practical.

    FAMILY LAW – PRACTICE AND PROCEDURE – Where father raises Rice and Asplundargument – where father contends that the Rice and Asplund principle should preclude the mother from being able to revisit interim orders – where there is insufficient change in circumstance to justify re-litigation – where mothers application is dismissed.

  • Re: Darryl [2016] FamCA 720

    26 Aug 2016

    FAMILY LAW – CHILDREN – Medical Procedure – where child wishes to undergo irreversible stage two treatment for gender dysphoria – where applicant is the X Hospital – where the respondents are the child’s parents – where the parents support the application – where phase two treatment requires court authorisation unless the child is Gillick competent – where first approach under Re Jamie requires a best interest determination and second approach does not – where court is not obliged to undertake a best interests consideration – where treating psychologist and medical practitioner are of the view the child is Gillick competent however where psychiatrist was not of that view – where psychiatrist in her opinion to fully understand what is proposed requires a fully developed brain and personality – where psychiatrist’s evidence was the brain continues to develop until the age of 25 – where Gillicktest has express intention of application to children not adults – where child is Gillickcompetent – where orders relating to confidentiality are made.

  • Misra & Yendrambam [2016] FamCA 718

    25 Aug 2016

    FAMILY LAW – CHILDREN – Interim – International relocation – Whether the mother should be permitted to relocate to the United States of America with the child until August 2017 – Where there are interim orders in place for equal shared parental responsibility and the child to live with the father – Where the father has failed to facilitate contact with the mother pursuant to the orders – Where the father has unilaterally changed the child’s school and address without informing the mother – Matter listed for expedited trial.

  • Howlett & Morris [2016] FamCA 710

    26 Aug 2016

    FAMILY LAW – CHILDREN – Extent and conditions on the children’s time with the father – The father and his partner’s aberrant conduct during and after the parents’ relationship – The eldest child’s behavioural issues – Where the mother has a firm belief that there has been actual sexual abuse – Where the Court cannot be satisfied that the father perpetrated actual sexual abuse on the child – Where there is a strong inference that the child has suffered trauma by reason of inappropriate exposure to the activities of the father and his partner – The father and his partner’s mental health – Expert opinion – Where the mother will continue to be the children’s primary carer and the issue of her anxiety – Orders where the risk from the father’s partner is removed and the father’s time progresses gradually over period under supervision of the paternal grandmother – Where all parties sought orders for the mother to have sole parental responsibility – Mother to keep the father informed of decisions.

  • Findlay & Lyons [2016] FamCA 709

    26 Aug 2016

    FAMILY LAW – CHILDREN – Final parenting – With whom the child lives – With whom the child spends time – Parental responsibility – Best interests of the child – Where the mother is the child’s primary attachment figure – Where allegations made of child abuse perpetrated by the father – Child’s relationship with the father’s substantially interrupted –Where the Court is not satisfied that there has been abuse of the child or family violence – At trial the mother conceded there was no unacceptable risk of harm to the child spending time with the father – Previous orders for therapeutic intervention – Risk of psychological harm arising from the mother’s anxiety and personality issues – Arrangements for child’s time with the father and ongoing therapy to assist the mother in this regard and obviate uncertainties for the child – Presumption of equal shared parental responsibility not rebutted.

  • Sully & Sully (No. 2) [2016] FamCA 706

    25 Aug 2016

    FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the outstanding issue for determination was whether or not the wife should receive an interim property settlement of $10 million dollars in order to purchase a new home –Where the Court is not satisfied as to the taxation and commercial consequences of the husband extracting $10 million dollars from his company – Where the only other matrimonial asset available to satisfy such a settlement is the former matrimonial home – Where the Court finds it not to be just and equitable for there to be a sale of the former matrimonial home at this stage in the proceedings – Where the future parenting arrangements for the parties’ four children are not clear – Application dismissed.

  • Frederick & Frederick [2016] FamCA 704

    24 Aug 2016

    FAMILY LAW – CHILDREN – Where father seeks trial dates be vacated and the matter adjourned – where there is an investigation of alleged misconduct by officers of the Department of Communities, Child Safety and Disability services – where father is involved in unresolved criminal proceedings against a woman – where the father being charged with indecently dealing with a girl – where father has a history of not engaging in litigation or not complying with directions – where no parent asserts father now presents unacceptable risk of harm.

    FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where father seeks the matter to be adjourned – just resolution of proceedings – where needs of the child and impact of court proceedings – proceedings are to be conducted without undue delay – where father’s application is dismissed.

  • Tompkins & Tompkins [2016] FamCA 701

    22 Aug 2016

    FAMILY LAW – CHILD ABDUCTION – Watchlist order made to prevent mother from leaving Australia.

  • Karllsson & Karllsson [2016] FamCA 700

    23 Aug 2016

    FAMILY LAW – CHILDREN – interim orders – where the husband seeks orders for time with the children and an updated family report – where the application is opposed by the wife – where consideration is given to the best interests of the children – where orders are made for holiday time – where further consideration of a report is adjourned.

    FAMILY LAW – PROPERTY – interim orders – where the wife seeks an order for interim property settlement, litigation funding and lump sum spousal maintenance – where the application is opposed by the husband – where the husband asserts the wife’s expenses are not reasonable – where the Court considers it just and equitable to make an order in favour of the wife for interim property settlement – where the sum is to be paid by the husband gradually – where the funds are to be categorised by the trial judge.

  • Vipond & Darte [2016] FamCA 699

    24 Aug 2016

    FAMILY LAW – CHILDREN – Best interests – Where the children have been exposed to domestic violence alcohol abuse, drug use and mental health issues – Where there is a great need to provide stability for the children –- Children’s views – Where the mother has not sought professional help in relation to her traumatic childhood or her mental illness– Where the mother lacks insight into impact of her violent offending - Where the children have achieved stability living with the father and they should remain living with him – Where there is a need to protect the children from physical and psychological harm - Where there should be no time and communication between the children and the mother unless the children wish to do so.

    FAMILY LAW – CHILDREN – Parental responsibility – Where the father has had parental responsibility on an interim basis – Where the presumption of equal shared parental responsibility is rebutted by the history of violence by the mother and her willingness to remove the children without reference to the father - Where the father is to have sole parental responsibility.

    FAMILY LAW – RELOCATION – Where the father wishes to relocate to New Zealand where there is employment and family support including accommodation.

  • Kelby & Kelby [2016] FamCA 698

    24 Aug 2016

    FAMILY LAW – PROPERTY – INTERIM PROPERTY PROCEEDINGS –Where the wife seeks an interim property settlement and spousal maintenance in the alternative – Where the amount sought falls within the wife’s expectation on a final distribution – Orders made – Spousal maintenance – Where the wife does not meet the threshold test taking into account the interim property settlement orders made – Application dismissed.

    FAMILY LAW – PROPERTY – INTERIM PROPERTY PROCEEDINGS – Restraining orders – Where the wife sought that the husband inform her before dealing with a property – Orders made –Where the wife sought that the husband be restrained from dealing with the assets of the company – Where there was no evidentiary basis per Waugh & Waugh [2000] FamCA 1183;(1999) 27 Fam LR 63 for making such orders.

    FAMILY LAW – PROPERTY – INTERIM PROPERTY PROCEEDINGS – Where the wife sought that the husband produce documents relating to the company – Where the husband has produced the records of the company for inspection – Application dismissed.

  • Gee & Luxford and Anor [2016] FamCA 697

    24 Aug 2016

    FAMILY LAW – PROPERTY SETTLEMENT – INTERIM PROCEEDINGS – Where the wife seeks that two transfers made by the husband to his brother be set aside under s 106B of theFamily Law Act 1975 (Cth) – Where the husband’s brother has been joined to the proceedings as a respondent – Where the wife has established a prima facie case that money remains owing to the husband as a result of the transfers – Where the wife has given the usual undertaking as to damages – Interim orders made to retain a portion of the proceeds of sale of the Suburb C property in a controlled monies account – Interim orders made to restrain the second respondent from dealing with the Suburb E property

  • Leroux & Leroux and Ors (No. 3) [2016] FamCA 696

    05 Jul 2016

    FAMILY LAW – PRACTICE AND PROCEDURE – Application by father for extension of time to file trial material – Application granted – Application by second and third respondents for extension of time to file trial material – Application granted

    FAMILY LAW – PRACTICE AND PROCEDURE - Leave granted for parties to photocopy school documents - Leave granted to father to issue further subpoena to children’s school to produce documents – Orders made in respect of parties filing a trial plan

    FAMILY LAW – PRACTICE AND PROCEDURE – Orders and directions made for the appointment of a single expert to value property – Injunctive Orders

    FAMILY LAW – PRACTICE AND PROCEDURE – Appeal of Registrar’s Orders by way of a hearing de novo – Appeal dismissed and Registrar’s Orders confirmed

  • Gibson & Boothman [2016] FamCA 695

    19 Aug 2016

    FAMILY LAW – PROPERTY SETTLEMENT – Where the parties were married for approximately fourteen years and have two children – Where the parties were in agreement that the former matrimonial home should be sold – Where the husband made significant direct financial contributions by way of his high income and introduction of unencumbered property into the marriage – Where the husband’s mother made substantial direct financial contributions on his behalf by way of gifts and distributions – Where the wife assumed responsibility for the parties’ children and made non-financial contributions to the parties’ properties – Where the Court finds the parties’ contributions should be assessed at sixty per cent to the husband and forty per cent to the wife – Where the Court finds section 75(2) factors favour an adjustment of five per cent to the wife due to the disparity between the parties’ income earning capacities – Where it is appropriate to make a superannuation splitting order in favour of the wife – Orders made.

  • Bain & Bain (Deceased) [2016] FamCA 694

    19 Aug 2016

    FAMILY LAW – PRACTICE & PROCEDURE – STAY – where the applicant seeks a stay of orders pending the hearing and finalisation of an appeal – where the appeal would be rendered nugatory if the stay was not granted.

  • Widmann & Widmann and Anor [2016] FamCA 693

    26 Apr 2016

    FAMILY LAW – PROPERTY – INTERIM – Where there were no significant assets when the parties separated – Where after separation the husband inherited assets – Where the wife seeks interim relief in the amount of $95,000 and that a further amount of $436,000 be isolated pending final property proceedings – Where the husband’s formal position is that the wife’s application be dismissed – Orders that the husband pay the wife $65,000 and that the parties establish an enforceable equitable interest or charge in the sum of $365,000 on a property to be purchased by the husband.

  • Woden & Silver [2016] FamCA 692

    22 Aug 2016

    FAMILY LAW – PROPERTY – Application by husband for adjustment of property – Where the husband made greater financial contributions during the marriage – Where the wife continues to have primary care of the child of the marriage – Where the wife was financially dependent on the husband for most of the marriage – Where the wife has since re-partnered – Where the wife suffers from mental health issues – Where the wife’s contribution was assessed at 20 percent – Where the adjustment of the matrimonial property pool is made by way of a superannuation splitting order

  • Tillman & Tillman (No 4) [2016] FamCA 691

    09 Aug 2016

    FAMILY LAW – Final orders – parens patriae jurisdiction – orders affecting the property of children

  • Bechara & Hejazi [2016] FamCA 690

    10 Aug 2016

    FAMILY LAW – Ex parte parenting orders – father on remand – child in Lebanon – orders required to keep child safe from harm and that she be returned to Australia – issuance of passport without father’s consent – parenting orders with extra territorial effect – Commonwealth personal protection measure under s 111CD(1)(e) – father at liberty to bring urgent application in response or to vary or discharge this holding order.

  • Malone & Malone [2016] FamCA 689

    22 Aug 2016

    FAMILY LAW – CHILDREN – PARENTING ORDERS – Where the children live with the mother – Where the mother lives in Sydney and the father lives in Queensland – Where the mother seeks that the children spend indefinite supervised time with the father – Where the father seeks unsupervised time with the children – Where the mother has made allegations of family violence against the father – Where these allegations have not been established to the requisite standard – Where the single expert indicates that indefinite supervised contact is not in the children’s best interests – Where a staged approach to spending time with the father is recommended by the single expert – Where orders are made that the children spend time with their father once every month – Where the Orders allow for a staged approach for the children to progress to overnight time with the father – Where the Orders enable the father to be involved in the children’s lives – Where the mother retains sole parental responsibility of the children

  • Lewis & Gasper [2016] FamCA 688

    19 Aug 2016

    FAMILY LAW – CHILDREN – Best Interests – Where the father has not sought to spend any time with the children for some time – Where the mother realises the importance of the relationships between the father and children – Where the father declines to participate meaningfully in the children’s lives – Where the father’s engagement with the mother over important issues concerning the children has been inconsistent – Where the father does not participate in the litigation – Where the father does not demonstrate the same capacity to meet the children’s needs as the mother – Where the children are not exposed to risk of harm while in the father’s care – Where the mother proposes the children be supervised when with the father for fear he will withhold them – Discussion of orders to allow the father an opportunity to participate in the children’s lives – Where the mother seeks to relocate to Darwin – Where there is no certainty as to when the relocation will occur – Where the relocation will not impinge upon the children’s current relationships with the father – Orders provide for the children to spend unsupervised time with the father, depending on the proximity of his residence to the children’s residence with the mother – Where those orders are discharged if father does not comply on three successive occasions

    FAMILY LAW – CHILDREN – Parental Responsibility – Presumption of equal shared parental responsibility – Where the father shows an inability to cooperate or compromise with the mother – Where the father withholds a child from the mother – Where the presumption of equal shared parental responsibility is rebutted – Order that the mother should have sole parental responsibility for the children

  • Delany & Delany [2016] FamCA 687

    22 Aug 2016

    FAMILY LAW – CHILDREN – INTERIM ORDERS – Where the children are aged twelve and four – Where the children live with the mother and her partner – Where the eldest child was removed by the father – Where orders had been made that the father return the child and suspending the father’s time with the children – Where the eldest child has expressed a desire to live with the father – Interim orders made to reinstate the father’s time with the children until final hearing.

  • Ahmad & Ahmad [2016] FamCA 686

    22 Aug 2016

    FAMILY LAW – injunctive relief – occupation of matrimonial home – relevant considerations – wife granted sole use and occupation.

    FAMILY LAW – injunctive relief sought by way of asset preservation order – where no evidence to warrant such an order – where discussion of general principles – where relief refused.

  • Gadde & Gadde and Anor (No 4) [2016] FamCA 685

    15 Aug 2016

    FAMILY LAW – PRACTICE AND PROCEDURE - Amendment under slip-rule – DRUG TESTING

  • Godwin & Winters [2016] FamCA 684

    19 Aug 2016

    FAMILY LAW – CHILDREN – where there are allegations the father sexually abused the parties’ three sons – where it is agreed that the children will continue to live primarily with the mother - whether there is an unacceptable risk to the children - whether the mother genuinely believes the allegations - whether the father’s time with the children should be supervised –whether the parties have the capacity to make decisions jointly.

  • Aikendorf & Pilau [2016] FamCA 683

    26 Aug 2016

    FAMILY LAW – CHILDREN – interim orders – where the continued supervision of the father’s time with the child is in dispute – where the child suffers Autism – where the father’s mental health is a consideration – where it is the mother’s position that the father poses an unacceptable risk to the child – where the Court does not consider the father presents as a risk – where supervision is to continue for six visits and thereafter the father will spend unsupervised time with the child.

  • Shenoy & Biyani (Deceased) [2016] FamCA 682

    17 Aug 2016

    FAMILY LAW – PRACTICE AND PROCEDURE – Death of a party to proceedings – Proceedings adjourned to a fixed date for directions

  • Henley & Henley [2016] FamCA 681

    19 Aug 2016

    FAMILY LAW – CHILDREN – final orders – where the parties are in dispute as to parental responsibility and time the child is to spend with the father – where there is a family consultant – where consideration is given to the best interests of the child and the primary and additional considerations – where it is ordered that the parties have shared parental responsibility – where it is ordered that the child live with the mother and spend four nights a fortnight with the father.

  • Diem & Vho and Ors [2016] FamCA 680

    19 Aug 2016

    FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – where application for disjoinder by Fourth Respondent – where discussion of general principles – where application for disjoinder dismissed.

  • Ingold & Ingold [2016] FamCA 679

    18 Aug 2016

    FAMILY COURT – PROPERTY – INTERIM PROCEEDINGS – Where the wife seeks periodic spousal maintenance and lump sum urgent spousal maintenance –  Where the wife’s income has been significantly reduced in circumstances where she is no longer involved in the parties’ distributorship  –  Where the Court finds that the wife is unable to support herself adequately for the purposes of section 72  – Where the Court finds the husband has the capacity to pay to the wife periodic spousal maintenance – Where no evidence was presented by the wife as to why she requires urgent spousal maintenance – Orders made for the wife to be paid periodic spousal maintenance.

  • Seidler & Cerny [2016] FamCA 678

    18 Aug 2016

    FAMILY LAW – REVIEW OF REGISTRAR’S DECISION – hearing de novo

  • Carlson & Carlson [2016] FamCA 677

    09 Aug 2016

    FAMILY LAW – CONTRAVENTION – Application by the mother alleging four counts of contravention of an interim order by the father – Where an order was made restraining the father from approaching the mother except in accordance with orders and from attending the former matrimonial home - Where one count of contravention was withdrawn - Where the father denies contravening the orders – Where the father asserts he had a reasonable excuse for contravention – Where the father was found not to have a reasonable excuse –– Where the father was ordered to attend a Parenting After Separation course

  • Bailey & Pender [2016] FamCA 676

    26 Aug 2016

    FAMILY LAW – CHILDREN – Best Interest – Where the child should have a meaningful relationship with both parents – Where the mother is attentive and protective of the child - Where there were allegations of abuse of the child by the father – Where the child spent no time with the father for five months - Where the mother recognises that no time with the father is not in the best interest of the child – Where the father realises that equal shared time was not in the best interest of the child – Where the child has had a consistent relationship with the mother and an erratic one with the father –– Where the child should continue to live with the mother – Where supervised time with the father should continue and ultimately progress to unsupervised time steadily.

    FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother is to have sole parental responsibility – Where the father is to have prior advice of decisions to be taken, inviting a response and taking his views into account.

  • Lord & Castor and Anor [2016] FamCA 675

    17 Aug 2016

    FAMILY LAW – INTERIM PROCEEDINGS – MAREVA INJUNCTION – Where wife seeks an injunction restraining the husband from dealing with certain bank accounts – Where the Application heard on an ex-parte basis – Where the husband suffering from a severe mental illness – Where the husband has discharged himself from hospital against his psychiatrist’s advice – Where the husband has access to substantial funds amounting to almost half the matrimonial pool – Where the wife can provide an undertaking as to damages.

  • Stoddard & Glover [2016] FamCA 674

    16 Aug 2016

    FAMILY LAW – PROPERTY SETTLEMENT – Where the parties were married for approximately seven years and have two children – Where the parties were in agreement that the Court should take a two pool approach – Whether the parties’ legal fees should be included as an “add back” into the balance sheet – Where the Court determines that it is appropriate for the legal fees to be considered in the context of section 75(2)(o) – Where the husband developed a successful business and made a greater initial contribution – Where the wife contributed as homemaker and parent – Where the wife contributed directly and indirectly to the development of the husband’s business –Where the Court finds the parties’ contributions should be assessed at fifty-two and a half per cent to the husband and forty-seven and a half per cent to the wife – Where the Court finds section 75(2) factors favour an adjustment of ten per cent to the wife – Where the Court determines that the parties’ self-managed superannuation fund should be split sixty per cent in favour of the husband and forty per cent in favour of the wife – Orders made.

  • Pearce & Arthurson [2016] FamCA 673

    11 Aug 2016

    FAMILY LAW – CHILDREN – interim orders – where there is a forensic psychosocial assessment report – where orders are made for the father to spend time with the child each alternate weekend.

  • Boston & Boston (No 2) [2016] FamCA 672

    12 Aug 2016

    FAMILY LAW – PRACTICE AND PROCEDURE – undefended hearing – where the wife seeks an order that the matter proceed undefended – where the application is opposed by the husband – where the husband seeks an adjournment –  where consideration is given to the significant delay – where the Court finds it is not just and equitable to hear the proceedings – where a short adjournment is granted to enable the husband to comply with trial directions – where the husband has leave to obtain an updated valuation of the former matrimonial home – where the husband has leave to issue further subpoena – where the adjournment is condition upon the wife retaining the former matrimonial home pending judgment.

  • Lan & Hao [2016] FamCA 670

    16 Aug 2016

    FAMILY LAW – Objection to subpoena – Where subpoena not found to be relevant – No legitimate forensic purpose served by subpoena – Subpoena set aside

    FAMILY LAW – PROPERTY – Application for anti-suit injunction – Where the husband initiated proceedings in China – Where the wife initiated proceedings in Australia – Where both parties seek an anti-suit injunction – Where the husband seeks a stay of proceedings in Australia – Application of “clearly inappropriate forum” test – Where Australia not a clearly inappropriate forum – Consideration of whether Australian proceedings are vexatious or oppressive –Where the parties’ applications are dismissed

  • Fontana & Bouras [2016] FamCA 668

    16 Aug 2016

    FAMILY LAW – CHILDREN – Spend time with – Best interests – Whether an Order for the child to spend supervised time with the father will detrimentally affect the mother’s parenting capacity – Where the father consents to the mother’s sole parental responsibility of the child – Where the mother seeks an Order that the child spend no time with the father – Where the father seeks supervised time with the child four times per year.