Resources from our expert solicitors in Port Macquarie

Our Reported Cases

Some Notable Reported Cases We Have Worked On:

Family Law:

(Note: These published cases are available online and have been anonymised)
HICKSON & GREEN[2019] FamCA

pending

SLYNT & SLYNT [2017] FamCA 812 (04 September 2017) (Austin J)

Acted for the mother – Order for no contact with the father – extreme family violence – Where the child has no meaningful relationship with the father – Where the risk of harm the father poses to the mother and child by subjection or exposure to family violence is high enough to justify the preclusion of any interaction between them – Where the father’s evidence betrayed the absence of any real contrition and the failure to comprehend the scale of his abhorrent behaviour – Concluded the child’s best interests demand peace and tranquility in the mother’s house – Ordered the child lives with the mother and spends no time with the father.

LIVESY & VOLTE [2018] FamCA 544

Application by the father for interim change of residence for the child to live with him – Where final parenting orders were made in December 2016 by consent – Where prior to final orders the mother had made allegations of possible sexual abuse of the child by the father which did not meet the statutory reporting threshold of risk of serious harm – Where the father claims there has been a significant and substantial change in circumstances since those final orders were made – Where the respondent mother has made numerous complaints in the last six months to New South Wales Police and the Department of Family and Community Services alleging sexual abuse by the father on the child – Where the child has been extensively questioned and interviewed without substantiation – Where the child has a strong relationship with his father – Where the child has lived with his mother since the parties separated – Where the mother has been compliant with orders – Ordered the mother be restrained from interviewing and questioning the child or permitting third parties to do so about allegations of sexual abuse of him – Ordered the mother be restrained from unilaterally taking the child to see a psychologist – Ordered the appointment of an independent children’s lawyer.

WALTON & WALTON (No 2) [2017] FamCA 372 (24 April 2017)

Argument about Rice & Asplund –  where father wished to re-open the matter due to the mother having a relapse while on a weekend when the father had the children – court found that the relapse was expected since all the parties knew she had an addiction to alcohol. Children not placed at risk so father’s application failed. 

SEARLE & SWAIN [2017] FCCA 1699 (04 July 2017) (Judge Myers)

Acted for the applicant father – Mother argued that the child would suffer psychological harm if she spent time with the father on 4 or 5 nights per fortnight but not if she spent 3 nights per fortnight. No findings of psychological harm – no family violence found – finding that the mother lacked insight into the child’s emotional needs. 

SWAIN & SEARLE [2017] FamCAFC 146 (26 July 2017) (Ryan J)

Acted for the respondent father. Application by the mother to expedite an appeal against final orders made. Application was dismissed. After this matter, the appeal commenced and it was withdrawn by the mother after 1 hour of argument in the Full Court of the Family Court.

FRENCH & FRENCH [2017] FCCA 1288 (29 June 2017) (Judge Middleton)

Acted for the father – Interim order made after an interim hearing giving the father 4 nights per fortnight for a 3-year-old child. Normally children of this age do not spend any time or spend little time overnight with the father. Allegations of family violence committed by the father – allegations of excessive alcohol consumption and drug use by the mother – sibling with behavioral difficulties in mother’s household.

WALTON & WALTON [2016] FamCA 1025 (23 November 2016)

Acted as ICL – Interim orders to change residency of the children from the father to the mother – Where both parties have issues with alcohol – Father perpetrated domestic violence.

HICKSON & GREEN [2016] FamCA 1032 (25 November 2016)

Acted as ICL. Interim orders made changing the residency of the non-biological child to the father where the other 3 children lived – Where the mother has issues of alienation, substance abuse and mental health – Where the mother fails to comply with existing orders – Where the mother fails to make the child available for contact with the siblings – Where the recommendation of the family consultant is a change of residence for the child. Requested that the independent children’s lawyer be present at the school to explain the orders to the child.

HODGES & GATLEY [2016] FCCA 3486 (08 September 2016) (Judge Myers)

Acted for applicant father – orders for child to live with the father and spend time with the mother. Where mother misled the court about the father – where the mother admitted to perpetrating family violence – where father was previously convicted of family violence upon a different spouse.

HUTCHINSON & HUTCHINSON [2016] FCCA 2110

Parenting relocation by mother to Victoria – mother’s supports in Victoria – mother has mental health issues.

DUNST & DUNST [2016] FamCAFC 15 (18 February 2016)

Acted for the respondent – appeal failed. 

DUNST & DUNST [2014] FamCA 964 (11 November 2014) (Austin J)

Final orders made for no contact with the father due to extreme violence against the mother, unacceptable risk of harm to children, access to firearms and poor insight into offending. Where the mother and the five subject children are in hiding – Where the father poses an unacceptable risk of physical and psychological harm to the children by his exposure or subjection of them to family violence – Where the father poses the same risk to the mother and there is a current apprehended violence order in place protecting her – Where there is no safe alternative but to eliminate all personal contact between the father and the children and only preserve a line of communication between them – Children to live with the mother – Whether any of the children spend time with the father shall be determined by the mother as an incident of her sole parental responsibility for the children – Where the father is able to occasionally send letters, cards, and/or gifts to the children.

ADAMSON & FORST [2014] FamCA 669 (Clary J)

Where the mother has significant difficulty in giving priority to the child’s needs over her own – Where the child wishes to live with the father – Where the father has a better insight into the emotional and developmental needs of the child – Child to live with the father – Child to spend substantial and significant time with the mother.

KAMANO & KAMANO [2013] FamCA 348 (22 May 2013) (Cleary J)

Acted for the father. Final hearing – Orders made changing the residency from the mother to the father – Where there was attempts by the mother to alienate the children – No risk of harm to the children in either parents care – Where the father had a meaningful relationship with the children – Where the father was best able to support the children’s emotional needs – Where the mother failed to encourage or support the child’s relationship with the father – Where the mother lacked insight into the impact of her anxieties and fears on her care of the children.

WOODFIELD & BELLAMY [2013] FamCA 760

Appeal of local court decision – Hearing de novo – Interim orders – Best interests – With whom the child shall live and spend time – Child shall live with the father – Child shall spend time with the mother each alternate weekend – Mother and father to have equal shared parental responsibility for the child – Child has health concerns requiring urgent surgery.
INJUNCTIONS – Parties restrained from changing the child’s current school enrolment.

DESMOND & ALLCARD AND ORS [2012] FamCA 813 (Cleary J)

Child at risk in both households – Order for no contact with the father – Order for time with the paternal aunt – About a year after this judgment, the mother was charged with robbery and drugs offences and the child went to live with the paternal aunt.

KAMANO & KAMANO [2011] FMCAfam 221 (31 March 2011) (Coakes FM)

Acted for the applicant father. Finding that the mother contravened the orders.

ASTON & FROST AND ANOR [2010] FamCA 277 (Ryan J)

With whom a child spends time – At the commencement of the hearing consent orders were made for the Minister of Community Services to have sole parental responsibility – Children live in foster care – Entrenched family violence perpetrated by the father on the mother – Neglect of children – Physical abuse of children by the mother – Neither parent is capable of adequately caring for the children on a full-time basis – Orders made for the children to spend supervised time with each parent separately once a month for four hours.

BRANSON & ASKE AND ANOR [2009] FamCA 1042 (Austin J)

Acted for the mother – Orders for child to live with the mother and spend time with the father in the holidays only. Application for costs by ICL.

KLIM & FONTANE AND ANOR [2009] FamCA 135 (Ryan J)

Acted for the paternal grandmother – Order for paternal grandmother to have sole parental responsibility and for the children to live with her. Order for mother to spend time with the children. Risk issues with both parents.

WATERS & LANE AND ANOR [2008] FamCA 816

With whom a child spends time – Where parties agree children will live with maternal grandparents and spend time with the mother – Trial issues relate to parental responsibility and the children spending time and communicating with their father – Risk of harm – Children to spend short amounts of unsupervised time with the father and longer periods of supervised time which is to be supervised by the father’s adult daughter.

LESLIE & LESLIE [2008] FMCAfam 245 – (Lucev FM)

Property Matter – Valuation of property – Parties contributions – s.75(2) factors – Just and equitable.

MCMORTY & BARNEY [2008] FamCAFC 126 (Coleman J)

Acted for the mother – Appeal by father against order for sole parental responsibility to mother.

TOLLBRIDGE & TOLLBRIDGE [2008 ] FamCA 408 (Mullane J)

Interim Hearing – Acting for the father – The mother’s application described as misconceived – Mother would approach the father despite no contact AVO. Mother encouraged children to have a negative view of the father and sought to reduce his time with the children. Father’s time increased.

MARGINSON & NIGHY [2007] FamCA 82

With whom a child lives – Status quo – Drug addiction – Violence – Aboriginality.

B & S-B [2007] FMCAfam 962

Parenting orders – Interim – Principles to be applied – Factors considered – Mother’s mental illness – Father’s criminal and drug history.

N & M [2006] FamCA 958

Landmark case on application of Family Law Act amendment in 2006.

C & C [2003] FMCAfam 132 (Scarlett FM)

Acting for the mother – Orders for child to live with the mother and spend limited time with the father.

Criminal Law:
(Note: Cases in the local and District Court are not generally published and are not publicly available)

Director of Public Prosecutions (NSW) v Richardson [2015] NSWSC 1753 (24 November 2015) (Schmidt J)

Where magistrate made errors of law and failed to give sufficient reasons – matter sent back to local court for re-hearing – Accused acquitted at re-hearing.

DPP v Nagler [2018] NSWSC 416 (06 April 2018) (Hamill J)
Where the prosecutor failed to produce material to the court in a Voir Dire and the Magistrate made errors of law. Matter sent back to Local Court for re-hearing by consent. Accused acquitted at re-hearing.
Will Challenge:
Garofolo v Capogreco [2006] NSWSC 1116

Family Provision Claim – Acting for the plaintiff who was the deceased’s elderly widow – Marriage of 28 years. The deceased also had seven children from his first marriage.

The deceased made his last Will and appointed the defendant, a solicitor, as his executor. In respect of the deceased’s house, the Will contained a provision that the plaintiff could live in the house and use the household chattels provided she met the outgoings until such time as she ceased her occupation. The plaintiff and deceased’s daughters were to receive $5,000 from a debt of $30,000 owed to the deceased. Half of that debt has been recovered and, accordingly, the plaintiff would be entitled to the $2,500.
The Will provided for the remainder of the estate to be divided equally between the deceased’s children, in equal shares, as tenants in common.

The Court found that the provision of a bond by the estate did not recognize the length of the marriage and the appropriateness of the plaintiff having control over her own funds to allow her to do as she wishes and to properly care for herself in her old age.

Supreme Court Litigation:
Richards v Withers [2010] NSWSC 1158

existing orders of District Court adjusting parties’ interests in property under Property (Relationships) Act – One order made being that jointly owned property be sold and proceeds be applied in stated manner – Plaintiff unable to obtain benefit of order – Jurisdiction of Supreme Court to act in aid of and be auxiliary to District Court in matters under Property (Relationships) Act – REAL PROPERTY – Land in co-ownership – Whether order appointing trustees for sale should be made.

NCAT:

BQC v Children’s Guardian [2016] NSWCATAD 129 (23 June 2016)

Appeal against a refusal to issue a working with children’s check to a religious minister.

Deeth v Milly Hill Pty Ltd [2015] FWC 6422 (28 October 2015)

Where the applicant was fired from his job after being charged with being an accessory to manslaughter Argued that there was no connection with the jobDismissal inconsistent with Small Business Fair Dismissal Code – Dismissal harsh and unjustCompensation ordered.
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69

Application for working with children’s check – Applicant previously convicted of manslaughter of her 14 month-old-daughter by malnutrition 12 years earlier. Issue of whether she had proven a capacity to care for children.

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