Wong on Family Law

Select topics on Family Law in Australia

Work-in-progress, 23 March 2025 (last updated)


See also, DV Torts, DV Orders in Wong on Civil Liability.


[A] Resources; Guides; Annotated Legislation

> NSW Specialist Accreditation Scheme: 2025 Family Law Assessment Requirements (NSW Law Society) <https://www.lawsociety.com.au/sites/default/files/2024-12/2025%20Family%20Law%20Assessment%20Requirements%20-%20FINAL.pdf>, archived at <https://perma.cc/NS76-ZEAL>. 

> NSW Specialist Accreditation Scheme: 2024 Family Law Assessment Requirements (NSW Law Society) <https://www.lawsociety.com.au/sites/default/files/2023-12/2024%20Family%20Law%20Assessment%20Requirements%20-%20FINAL.pdf>, archived at <https://perma.cc/84NH-Z6FC>. 

> NSW Specialist Accreditation Scheme: 2023 Family Law Assessment Requirements (NSW Law Society) <https://www.lawsociety.com.au/sites/default/files/2022-12/2023%20Family%20Law%20Assessment%20Requirements%20V1%20-%20FINAL.pdf>, archived at <https://perma.cc/9RQK-4BCY>. 

> WA 2025 Specialist Accreditation Assessment Guidelines: Family Law (The Law Society of Western Australia) <https://lawsocietywa.asn.au/wp-content/uploads/2024/12/2025-Specialist-Accreditation-Assessment-Guidelines-Family-Law.pdf>, archived at <https://perma.cc/H3TF-9JJX>. 

> QLD Family Law Specialist Assessment Criteria 2023: Specialist Accrediation Distinction in Law (Queensland Law Society) <https://www.qls.com.au/getattachment/ba5f4d96-81d0-468f-9901-c5e894828de5/2023-flsa-program-assessment-criteria_final.pdf>, archived at <https://perma.cc/VX4U-GW74>. 

> VIC 2023 Accredited Specialisation Assessment Guidelines: Family Law (Law Institute of Victoria) <https://www.liv.asn.au/download.aspx?DocumentVersionKey=96abdd64-d3cc-44e4-9df0-1c0189b919e4>, archived at <https://perma.cc/NZG2-HVCK>. -- see also <https://www.liv.asn.au/web/content/communities---networks/accredited_specialisation/become_accredited_specialist.aspx>. 

> Parenting Cases <https://www.familycourt.wa.gov.au/_files/Legal_resources/Representing_Yourself_Guide_Parenting_Cases.pdf>, archived at <https://perma.cc/9ENR-FYZ8> (Feb 2025). 

> Property Cases <https://www.familycourt.wa.gov.au/_files/Legal_resources/Guide_Representing_yourself_Court_Property_Cases.pdf>, archived at <https://perma.cc/7V3L-28ES> (May 2024). 


[B] Affidavits; Sworn Evidence


[C] Pleadings; Advocacy


[D] Costs

> Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1 <https://classic.austlii.edu.au/au/legis/cth/num_reg/fcafcoa2lr2021202101205652/sch1.html>. 

> Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3 <https://classic.austlii.edu.au/au/legis/cth/num_reg/fcafcoalr2021202101197559/sch3.html>.  


[E] Jurisdiction

> Eg, "The basis for the view that a proceeding to enforce a maintenance agreement which has been approved by the Family Court is a matrimonial cause is Carew and Carew (1979) 5 Fam LR 513 ; [1979] FLC 90-698 . The Full Court of the Family Court held (FLC at p 78,724): “It would be contrary to the express intention of the legislature to hold that proceedings for the enforcement of an approved maintenance agreement are not a matrimonial cause. Such proceedings should be regarded both as proceedings with respect to the enforcement of a decree, and as proceedings in relation to completed proceedings (ie the proceedings for the approval of the agreement). They are therefore a matrimonial cause …” However, whilst a maintenance agreement may be enforced as if it were an order of the Family Court in which it is deemed to be registered (ss 88 and 87(7)), it is clear that nothing makes it or even deems it to be a judgment, order or decree of that court. Such a point was recognized by Fitzgerald J in Re Stehbens ; Ex parte Stehbens (1982) 8 Fam LR 91 ; [1982] FLC 91-229 by Connolly J in Re Masterton (1978) 37 FLR 75 , and by the Appeal Court of New South Wales in Ellinas v Ellinas (1979) 5 Fam LR 114 ; [1979] FLC 90-649 . There is therefore a jump in the reasoning by which the court in Carew, supra , concluded that enforcement proceedings were proceedings with respect to the enforcement of a decree. This seems to be the central point of departure between the reasoning in Carew on the one hand, and Ellinas and a line of New South Wales decisions on the other. It may be said that no one would deny that the Family Court has the powers of enforcement recognized by s 88. Those enforcement procedures have already been mentioned, and are conferred principally by reg 136 made pursuant to s 123. But that is not to say that when a Family Court judge responds to an application under reg 136 he is entertaining a matrimonial cause as defined in s 4. He is simply exercising the jurisdiction that ss 88 and 123 and the rules give him. It may be noted that s 119 provides that either party to a marriage may bring proceedings in contract or in tort against the other party and that the word “party” is defined to include a party to a former marriage. For the above reasons I think that proceedings in a civil court which are equivalent to the enforcement of a maintenance agreement are not proceedings in relation to “proceedings between the parties to a marriage for the approval by a court of a maintenance agreement”. It follows that there is no sufficient relation between sub-paras (f) and (d) to make such proceedings a matrimonial cause. I may also say that I prefer the reasoning in Ellinas v Ellinas, supra , and succeeding cases including McLean (1979) 5 Fam LR 197 ; [1979] 1 NSWLR 620 Oliver (1978) 33 FLR 277 ; Hinchen [1982] FLC 91-266 and Perlman (1983) 8 Fam LR 811 ; [1983] FLC 91-308 to that in Carew (1979) 5 Fam LR 513 ; [1979] FLC 90-698 and ensuing Family Court decisions which naturally follow Carew, and which include Hutchinson (1979) 5 Fam LR 476 ; [1979] FLC 90-691 . The question remains whether proceedings to enforce a maintenance agreement are in relation to “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or of either of them, being proceedings in relation to current pending or completed proceedings for principal relief between those parties”. The quoted words comprise sub-para (ca) of the definition. It is sufficient to say that the only proceedings that can be contemplated under that sub-paragraph that are relevant for present purposes are those with which I have already dealt, and the initial application which preceded the making of the agreement. Whilst it may be said that the initial application for property settlement was a proceeding in relation to completed proceedings for principal relief (namely the original dissolution of marriage) under sub-para (ca), it cannot be said that such proceedings are themselves “concurrent pending or completed proceedings” which they must be if sub-para (f) is to apply to them. Quite simply nothing is concurrent or pending or capable of being pending in any relevant respect, and the only proceedings capable of being completed proceedings are those for the approval by the court of the maintenance agreement, which have already been dealt with in the discussion concerning sub-para (d).": Noble v Noble (1983) 9 Fam LR 55. 

> see eg, discussion in P v B [2003] FamCA 121 (Park v Byon) <https://jade.io/article/754379>. 

> see also, Lundquist & Lundquist [2024] FedCFamC1A 219, [37]: "It is difficult to understand why property settlement proceedings (another matrimonial cause) being litigated in Australia without jurisdictional objection would not be a relevant circumstance when considering whether Australia would be a “clearly inappropriate forum”. When deciding whether to grant a stay or an anti-suit injunction, all proceedings arising out a matrimonial relationship should be seen as forming a single controversy, see: Dobson & Londen (2005) FLC 93-225 at 79,712. These property settlement proceedings demonstrate an acceptance of the proposition that, at least for that matrimonial cause, Australia is not a clearly inappropriate forum."

> is it the same controversy? (Magistrates Court restraining order and Parenting Matters parenting order) not same controversy even through evidence overlaps: "[54]  Before turning to the grounds of the application it is convenient to address the central contention raised by the applicant. Though it is expressed in a variety of ways the essence of the contention is that each of the first and second respondents erred in law by failing to hold that it was prima facie vexatious and oppressive for the applicant to seek a restraining order from the Magistrates Court when it was open to her to have sought such an order from the Family Court in the parenting proceedings. The applicant placed particular reliance on statements made by Mason J (as his Honour then was) in Moore v Inglis,40 cited with approval by the majority in Henry v Henry, in the italicised passage of judgment reproduced at [52] to the effect that it was prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second and subsequent action if an action was already pending with respect to the matter in issue. [55]  The applicant placed considerable reliance on the identification by the majority in Henry v Henry of the ‘marital relationship’ as the subject matter of the controversy and the characterisation of disputes about property, maintenance, and the custody of children as ‘ordinarily [being] but aspects of an underlying controversy with respect to the marital relationship’.41 [56]  In my view, the applicant’s argument does not attach sufficient weight to the qualification inherent in the word ordinarily in the majority’s observation and elevates it to an inflexible statement of principle to be applied without regard to the relevant factual context. In this case the parenting proceedings and the restraining order proceedings should not be characterised as separate proceedings with respect to ‘the matter in issue’ or ‘the identical issue or same controversy’ (to use the language of the majority in Henry v Henry). My reasons for this view are as follows. [57]  First, the central issue in the parenting proceedings was what parenting orders were in the best interests of the children, s 60CA of the Family Law Act as determined by reference to the considerations in s 60CC of the Family Law Act. [58]  Second, the central issue in the restraining order proceedings was whether the first other party had experienced family violence or was at risk of family violence committed by the applicant. The Restraining Orders Act does not deal with parenting orders. The object of applications under the Restraining Orders Act for family violence restraining orders is to ensure the safety of persons who have experienced or are at the risk of family violence,42 and this is reflected in the principles and provisions governing the making of such orders, see s 10B(1)(a), s 10D(1), s 10F(1)(a) and s 10G(1). A family relationship under the Restraining Orders Act is a concept that is wider than a ‘marital relationship’. The definition of ‘family relationship’ in the Restraining Orders Act includes the relationship between two persons who were but are no longer married to each other.43 [59]  Third, the first other party sought different relief in the restraining order proceedings from that sought by her in the parenting proceedings. In the parenting proceedings the relief sought by the first other party was limited to parenting orders. In the restraining order proceedings the relief sought by the first other party was limited to a family violence restraining order. There was no overlap in the relief. Further, in response to the applicant’s concerns to the effect the interim order compromised his ability to maintain a relationship with the children, the first other party made it clear in her evidence in the anti-suit injunction proceedings that her concern was not to discourage the children from having a relationship with the applicant but to restrain him from ‘using third parties, systems and agencies to disparage [her], harass [her] and to perpetuate his unfounded allegations about [her] mental health’. [60]  Fourth, having regard to the factual findings contained in the first respondent’s judgment and the evidence relied on by the first other party in support of the interim order application, it is clear there was an overlap in the evidence adduced in the two proceedings but an overlap in the evidence adduced in separate proceedings is not sufficient to sustain the proposition that the proceedings are with respect to the same controversy. [61]  It follows from both from this analysis and from what was said in CSR Ltd v Cigna Insurance Australia Ltd about the difference in the principles governing anti-suit injunctions and stay applications that the first respondent was not required by the authority of Henry v Henry to deal with the anti-suit injunction application on the basis that the restraining order proceedings in the Magistrates Court were prima facie vexatious and oppressive as contended by the applicant.": Lietzau v Berry [2025] WASC 56.

> Nudd v Taylor [2000] QSC 344; 

> see also discussion in AFS Freight Management Pty Ltd and Anor v Ziegler Nederland BV [2000] QSC 489, [7]-[11] (Douglas J): "It is clear that a party can only be taken to have submitted to the jurisdiction of the court in circumstances where its conduct is inconsistent with the maintenance of an objection to the court’s jurisdiction. It must be shown that the party alleged to have waived the objection to jurisdiction has taken some step, which is only necessary or useful, if the objection has been actually waived. See National Commercial Bank v Wimborne (1979) 11 NSWLR 156. Failure to object at first opportunity does not amount to submission. For example, filing affidavits and contesting the merits of a case, even though an appearance has not been entered, will constitute submission. See Boyle v Sacker (1888) 39 Ch D 249. However in Williams v The Society of Lloyd’s [1994] 1 VR 274, McDonald J considered that a formal request by the defendants of the plaintiff for further and better particulars of the statement of claim did not amount to submission. A defendant is also taken to have submitted to the jurisdiction of the court where before entering an appearance, it seeks interlocutory relief which is only consistent with an intention to contest the merits of the case. See White v Hardwick (1922) 23 SR (NSW) 6. Similarly, a foreign litigant who institutes proceedings as a plaintiff is taken to have submitted to the jurisdiction of the court to entertain any defence by way of cross-claim against him. The fact that the cross-claim involves a different cause of action from that which the foreign plaintiff has brought does not preclude it from being raised if the cross-claim is founded on or directly arises out of the same subject matter as that of the initial action. See Marlborough Harbour Board v Charter Travel Co Ltd 18 NSWLR 223. But the plaintiff is not taken to have submitted to claims outside of and independent of the subject matter of the initial action. See National Commercial Bank v Wimborne (supra). This principle was approved recently in Nudd v Taylor [2000] QSC 344 where Holmes J said in determining that a foreign litigant had submitted himself to this jurisdiction: [21]   “It is too broad a statement to say that a foreign plaintiff who proceeds in Queensland thereby submits himself to the court’s jurisdiction at large. The position, is, in my respect view, correctly stated by Holland J in National Commercial Bank v Wimborne 35: “a foreign plaintiff, not otherwise subject to the jurisdiction of the court, who brings an action in the Court submits himself by necessary implication to every matter of counter-claim that would operate as a defence to his action or that would as a set off or cross claim arising out of the same subject matter reduce or extinguish the plaintiffs’ claim; and also, at least if he is not a foreign Sovereign, to a counterclaim founded on or directly arising out of the same subject matter as the plaintiffs’ claim that would require to be tried in order to do justice between the parties in relation to that subject matter even if it might result in a judgment against the plaintiff on the counterclaim.” His Honour continued, “To what has the plaintiff submitted? The answer to that lies, I think, in a consideration of what the plaintiff has brought to the Court for adjudication. He could not, in my opinion, properly be said to have submitted to claims outside of and independent of the subject matter of his own action”. 36 [22]    That case was cited with approval by the New South Wales Court of Appeal in Marlborough Harbour Board v Charter Travel Co Ltd 37. In the latter case, the court was prepared to go somewhat further, deciding that the foreign plaintiff’s submission to the jurisdiction extended to a counterclaim which raised a new cause of action, provided that such a cross-claim was founded on or directly arose out of the same subject matter as that of the action. [23]    To similar effect, the English Court of Appeal in Republic of Liberia v Gulf Oceanic 38 concluded that a plaintiff submitted himself to the incidents of his litigation, including liability to a counterclaim properly brought. In that case the plaintiffs had sought a declaration in relation to a contract for the purchase of oil and a resulting arbitration. The defendant’s counterclaim for damages for breach of the same contract and tort for wrongful procuring of the breach was permitted to stand, notwithstanding that the foreign defendants could not, in the absence of their own litigation, have been made amenable to the jurisdiction of the court on such an action.” In my view the defendants in this case have by their conduct submitted themselves to the jurisdiction of this court.".


[E.A] Parallel Proceedings in State and Territory Courts - for Damages, etc


[E.B] Threshold Issue - De Facto Relationships - Property

> see discussion in Jonah & White [2011] FamCA 221.


[F] Financial Agreements


[G] Asset Split; Expert Evidence; Valuation

> Carolyn Sparke KC, 'Trusts in Family Law' (Paper, Svensons List Family Law CPD, 22 March 2024) <https://svensonbarristers.com.au/wp-content/uploads/2024/03/svenson-cpd-day-trusts-and-family-law-0324.pdf>, archived at <https://perma.cc/H9EP-4VK6>. 

> Control of the trust: Kennon v Spry [2008] HCA 56; purpose of the trust and history of trust structure.

> Paul Fildes and Carly Boekee, 'Adjusting for Future Needs in Property Settlements: Time to Take Out the Crystal Ball?' (Paper, Taussig Cherrie Fildes, 31 May 2019) <https://www.tcflawyers.com.au/wp-content/uploads/2021/06/Adjusting_for_Future_Needs_in_Property_Settlements__Time_to_Take_out_the_Crystal_Ball_.pdf>, archived at <https://perma.cc/5KV5-QGWZ>. 

> see also discussion in Lisa Wagner and Stuart Colderick, 'How are pre-relationship assets treated after a separation?' (Webpage, 24 October 2020) <https://www.familylawyersdw.com.au/how-are-pre-relationship-assets-treated-after-a-separation/>, archived at <https://archive.is/NP2EE>. 

> See ee, Wei & Xia [2024] FedCFamC1A 65 - parent's funds from overseas used to purchase assets in the name of the couple, turns on evidence. 

> family trust, where wife was appointor but never had control, not alter ego: Barrett & Winnie [2022] FedCFamC1A 99.

> Effect or non-effect of separation on inheritances: 

> see discussion in Brendan Herbert, 'inheritances can be included in property pool when relationships break down' (MacPherson Kelley, 23 April 2021) <https://mk.com.au/inheritances-can-be-included-in-property-pool-when-relationships-break-down/>, archived at <https://archive.is/tk4rk>. 

> see also, > see also, John Werner, 'The Treatment of Inheritances' (Paper, Svenson Barristers, 2018) <https://svensonbarristers.com.au/wp-content/uploads/2018/03/JOHN-WERNER-CPD-SUPER-DAY-15.03.18-.-INHERITANCE-IN-FAMILY-LAW.pdf>. 

> see also, 'It’s my inheritance, I got it after we broke up' (Carr & Co, 19 October 2023) <https://carrco.com.au/2023/10/its-my-inheritance-i-got-it-after-we-broke-up/>, archived at <https://archive.md/mrxdv> - capable of being quarantined.

> monies reasonably incurred on living expenses, school fees, legal fees, may be excluded, notional addbacks: see eg, discussion in Judy Ryan, 'Enlarging the Asset Pool - Adding Back Notional Assets' [2006] FedJSchol 1 <https://www6.austlii.edu.au/cgi-bin/viewdoc/au/journals/FedJSchol/2006/1.html>. 

> non-commutable pensions: Preston & Preston [2022] FedCFamC1A 157: "The military pension ought not have been notionally identified as an asset when it was not, as it could neither be commuted nor alienated. It was no more than a right, entirely personal to the husband, to receive defined income whilst ever medically unfit."

> See also, discussion in Kate Wild, 'Treatment of non-commutable superannuation pensions in family law property settlements' (Blackwood Family Lawyers, 4 December 2023) <https://www.blackwoodfamilylawyers.com.au/insights/treatment-of-non-commutable-superannuation-pensions-in-family-law-property-settlements/>, archived at <https://archive.md/rSCtT>. 

> defined-benefit superannuation interest: see discussion in [L] below. But see also, Semperton v Semperton [2012] FamCAFC 132 - treatment as a financial resource.

>> financial resources and adjustment of division of asset pool. 


[H] Parenting Orders; Precedent (*pre-2024 precedents may be outdated)

> Consultation Paper: <https://consultations.ag.gov.au/families-and-marriage/family-law-regs-2024/user_uploads/consultation-paper_family-law-regulations-2024.pdf>. 

> 'Recent Change in how the Court determines the Best Interest of the Child' (Webpage) <https://www.rnglawyers.com.au/news-and-publications/rng-lawyers-blog/recent-changein-how-the-court-determinesthe-best-interest-of-the-child>, archived at <https://archive.md/2eUYi>. 

> 'The Family Law Amendment Act 2023 (Cth): A summary of the changes which will commence on 6 May 2024' (LexisNexis, 10 April 2024) <https://www.lexisnexis.com.au/en/insights-and-analysis/practice-intelligence/2024/the-family-law-amendment-act-2023-cth>, archived at <https://archive.is/TK847>. 

> explainer: 'Australia’s 2025 Family Law Landscape: Key Reforms and Family Law Regulations Explained' (Webpage, 18 October 2024) <https://mediationsaustralia.com.au/family-law-regulations-explained/>, archived at <https://archive.is/8Q820>. 

> Unacceptable Risks? Best interest of the child: 

> General statement: "[45]  In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA). [46]  The best interests of the child are determined by reference to the matters set out in s 60CC and generally include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.[47]  Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order. [48]  Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc. [49]  Abuse in relation to a child is defined in s 4 of the Act and means, among other things, involving a child in a sexual activity or as a sexual object, or causing the child to suffer serious psychological harm including by being exposed to family violence. [50]  In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,2 having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”3 and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.4 Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.5 [51]  When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the “matrix of evidence”6 to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities in relation to all relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.7 When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.8 Whether a risk is found to be unacceptable is not determined according to the civil standard of proof ie on the balance of probabilities.9 [52]  When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.10 The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”11 on each and every factual dispute. [53]  Each parent has parental responsibility (ie, all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C). [54]  Section 61D provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4). [55]  Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB). [56]  Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.12 ": Umarov & Faerber [2024] FEDCFAMC1F 898, [45]-[56].

> Finding of not unacceptable risks - allegation of sexual abuse on child: Maldonado & Maldonado (No 2) [2024] FEDCFAMC1F 885, [54] et seq. 

> Finding of unacceptable risk - Where there is a history of the father perpetrating family violence against the mother, including coercive and controlling behaviour and a conviction for breaching a protection order — Where the father has a criminal history, including child sex offences and breaches of his consequent reporting obligations — Where the task of assessing the risk posed by the father is complicated by the father’s Autism Spectrum Disorder and personality vulnerabilities — Where the father disregards court orders and externalises responsibility for his actions — Where the father is to spend no time nor communicate with the children save for sending a card and a gift on special occasions: Umarov & Faerber [2024] FEDCFAMC1F 898. 

> Amelioration of unacceptable risk: supervised time: Kuang v Kuang [2025] FedCFamC1A 31, [79]. 

> Treatment of evidence of best interest amongst allegations of coercive and controlling behaviour, including approach to fact-finding: Pickford v Pickford [2024] FedCFamC1A 249.


[I] Powers of Attorney

[I.1] Presumption of Undue Influence - s 87 Powers of Attorney Act 1998 (Q):

> "… the operation of this rule must have regard to the particular nature of that relationship between the parties, in assessing what is required to rebut the presumption. In Johnson v Buttress, Dixon J said: This burden is imposed upon one of the parties to certain well-known relations as soon it appears that the relation existed and that he has obtained a substantial benefit from the other. A solicitor must thus justify the receipt of such a benefit from his client, a physician from his patient, a parent from his child, a guardian from his ward, and a man from the woman he has engaged to marry. The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree. (Emphasis added.) In the present case, there is a presumption of an influence. But [the mother] was of full capacity at the time of the transfer, and the degree of [the son’s] influence, which s 87 requires to be presumed, could not have been high. Further, there was nothing about this transaction of which [the son] had a knowledge which was not shared with [the mother]. She was just as able to decide whether it was in her interests to transfer this interest. The presumption had to be rebutted, but the burden of proof in this case was not as heavy as in many others, and care must be taken in the application of statements, in other cases, about different types of relationships of presumed influence. Further, although there was the relationship of principal and attorney, it is necessary to consider that there was another relationship between the parties, namely that of mother and son, in which a gift could be explained by motives of gratitude and affection. In Yerkey v Jones, Dixon J observed, about the types of relationships to which the presumption of undue influence applies: But in the relations comprised within the category to which the presumption of undue influence applies, there is another element besides the mere existence of an opportunity or obtaining ascendancy or confidence and of abusing it. It will be found that in none of those relations is it natural to expect the one party to give property to the other. That is to say, the character of the relation itself is never enough to explain the transaction and to account for it without suspicion of confidence abused. The relationship of mother and son does not displace, as a matter of law, the presumption imposed by s 87. But it can be relevant, and in some cases critical, to a question of whether the presumption is rebutted in a particular case. In the present case, that relationship is of central importance."


[J] Service

> Rule 2.49(1): Hague Service Convention countries -- Part IIAB of the Family Law Regulations. 

> Rule 2.49(2): Non-Hague Service Convention countries: "A person may serve a document on a person in a non-convention country:  (a)  in accordance with the law of the non-convention country; or (b)  if the non-convention country permits service of judicial documents through the diplomatic channel--through the diplomatic channel."

> Rules of Court 2012 (Malaysia), Order 10, Rule 1: "General provisions (O. 10, r. 1) 1. (1) Subject to the provisions of any written law and these Rules, a writ shall be served personally on each defendant or sent to each defendant by prepaid A.R. registered post addressed to his last known address and in so far as is practicable, the first attempt at service must be made not later than one month from the date of issue of the writ." <https://www.malaysianbar.org.my/cms/upload_files/document/Rules%20of%20Court%202012.01.07.2012.pdf>, archived at <https://perma.cc/W7RQ-56FL>. 

> O 65 Rules 2A, 3: "Alternative mode of service of foreign legal process (O. 65, r. 2A) 2A. (1) Subject to rule 3, this rule applies in relation to the service of any process required in connection with civil proceedings pending before a Court or other tribunal of a foreign country where rule 2 does not apply or is not invoked. (2) The service of any such process within Malaysia may be effected by a method of service authorized by these Rules for the service of analogous process issued by the Court. (3) This rule shall apply notwithstanding that the foreign process is expressed to be or includes a command of the foreign sovereign. 3. ... Civil Procedure Convention".

-> Federal Court of Australia: Fletcher v Capstone Aluminium SDN BHD, in the matter of McLay Industries Pty Ltd (in Liq) [2016] FCA 1459 <https://jade.io/article/507767>: "[19]  Rule 10.43(7)(b) requires the applicants to show that service was permitted pursuant to a Convention, if a Convention applies; or service was permitted under the Hague Convention if that Convention applies; or, in any other case, the law of the foreign country. No relevant Civil Procedure Convention with Australia applies in relation to Malaysia or Singapore: para 5(a), affidavit of Mr Shane Bruce Roberts sworn 11 November 2016. Malaysia and Singapore are not parties to the Hague Convention: paras 4 and 6 of the affidavit of Mr Roberts. [20]  Thus, the applicants rely upon service on each respondent in the foreign country according to the law of the foreign country. [21]  As to the requirements of the law of the foreign country, the applicants rely upon the affidavit of Mr Roberts sworn 11 November 2016. Mr Roberts is a partner in the firm Holman Webb Lawyers, the solicitors for the applicants. Mr Roberts gives evidence of the relevant law of Malaysia on the basis of advice provided in writing by letters of advice dated 10 November 2016 and 11 November 2016 from Mr Dhinesh Bhaskaran and Ms Serena Azizuddin, lawyers with Shearn Delamore & Co in Kuala Lumpur, Malaysia. Mr Bhaskaran is a partner in that firm. Ms Azizuddin is an employed lawyer in that firm. Mr Roberts gives evidence of the relevant law of Singapore on the basis of advice provided in a letter of advice dated 11 November 2016 from Abraham Vergis and Asiyah Arif, lawyers practising in Singapore with a firm called Providence Law Asia LLC (described as a “Law Corporation”). [22]  The evidence of Mr Roberts (based on the opinion letters as described earlier) as to the relevant law of Malaysia and Singapore is this. In both Malaysia and Singapore service of foreign proceedings is permitted pursuant to O 65 of an instrument in each jurisdiction called the “Rules of Court” (otherwise described as the “Malaysian ROC” and the “Singapore ROC”). Order 65 in each case is in the same terms. [23]  Order 65, r 2 of the Malaysian ROC “applies” in relation to service of any process required in connection with civil proceedings before a court or other tribunal of a foreign country where a letter of request from such a court or tribunal “requesting” service on a person in Malaysia (or in Singapore under O 65, r 2 of the Singaporean ROC) of any such process sent with the letter is received by the Minister and is sent by him to the High Court “with an intimation that it is desirable that effect should be given to the request”. [24]  Order 65, r 2(2) to (5) address aspects of that process. [25]  Order 65, r 2A is in these terms: 2A.Alternative mode of service of foreign legal process (O 65, r 2A) (1)Subject to rule 3, this rule applies in relation to the service of any process required in connection with civil proceedings pending before a Court or other tribunal of a foreign country where rule 2 does not apply or is not invoked. (2)The service of any such process within Malaysia may be effected by a method of service authorised by these Rules for the service of analogous process issued by the Court. (3)This rule shall apply notwithstanding that the foreign process is expressed to be or includes a command of the foreign sovereign. [emphasis added] [26]  Order 65, r 3 applies where service of any process of a foreign court or tribunal is sought to be undertaken pursuant to a subsisting Civil Procedure Convention between the country of the court or tribunal in question and Malaysia (or Singapore for the purposes of the Singaporean ROC). No such Civil Procedure Convention subsists between Australia and Malaysia or between Australia and Singapore. Order 65, r 2A applies “where r 2 does not apply or is not invoked”. As to the circumstances where r 2 does not apply, the Singapore Court of Appeal expressed the following observations in Fortune Hong Kong Trading Ltd v Costco Feoso (Singapore) Pte Ltd [2000] SGCA 24 per Yong Pung How CJ, LP Thean JA and Chao Hick Tin JA (with the judgment of the Court delivered by LP Thean JA: 15In our opinion, the learned judge’s construction of O 65 r 2, with respect, ignores the express provisions therein. Giving the rule its plain and ordinary meaning, we are firmly of the opinion that the rule applies only where a letter of request for service from a foreign court or tribunal is received by the Minister for Law and is subsequently sent by him to the Supreme Court with an intimation that it is desirable that effect should be given to the request. In cases where no such letter of request is received, r 2 simply has no application. A similar view to this effect is stated in the 1979 edition of The Supreme Court Practice on O 69 r 2 of the RSC then in force, which we have quoted earlier. It seems to us that O 65 r 2 is not intended to govern the service of all foreign processes in Singapore issued by the courts or tribunals of non-convention countries. The question we need to consider now is what the procedure there is, which has been provided for service of foreign process emanating from a court or tribunal of a non-convention country, in the absence of a letter of request from the court or tribunal. If no such procedure has been provided, does it follow that the foreign process cannot be served in Singapore as submitted by counsel for the respondents? We think not. … 31In our judgment, the service of foreign process in Singapore need not invariably go through official channels. As we have held, it clearly could not have been intended that O 65 r 2 should be an exhaustive and all, encompassing provision governing the service of all foreign processes in Singapore. Order 65 r 2 applies only where a letter of request for service from a foreign court or tribunal is received by the Minister for Law and is subsequently sent by him to the Supreme Court with an intimation that it is desirable that effect should be given to the request. Where no such letter of request is received, r 2 has no application. Procedure in the absence of a letter of request 32We now turn to consider what the proper procedure is for service in Singapore of a foreign process emanating from a court or tribunal of a non-convention country, where there is no letter of request from the court or tribunal, as in the present case. … … 35In our judgment, in the case of service of the foreign process emanating from a court or tribunal of a non-convention country, where no letter of request is issued by such court or tribunal, the service should be effected by personal service on the defendant in accordance with O 10 r 1, read with O 62 and, in the case of a body corporate, read with the relevant provisions of the Companies Act (Cap 50). Although these rules by their express terms apply only to an originating process issued locally, we see no reason in principle why that mode of service prescribed for service of an originating process issued in Singapore cannot and should not be followed and adopted in the absence of any rule of procedure to the contrary. This mode of service fulfils, at least, the vital function of service of legal process. [emphasis in italics is the original emphasis; emphasis in bold added] [27]  Thus, O 65, r 2A “applies”. Order 65, r 2A(2) provides that service of the foreign process may be effected by a method authorised by the Rules for service of “analogous process” issued by the court (that is, process of the Malaysian Court or the Singapore Court). Mr Roberts gives evidence based on the opinions expressed by the Malaysian lawyers and the Singaporean lawyers that an “originating application” filed in the Federal Court is analogous for the purposes of the Malaysian ROC and the Singaporean ROC with a “writ” or “originating summons”. [28]  Each respondent is an incorporated entity (a company). [29]  Order 62, r 4 of the Malaysian ROC provides that where an action is against a corporation, the writ may be served, relevantly, by “leaving a copy of it at the registered office (if any) of the corporation”. Thus, the originating application of the Federal Court of Australia may be served in the same way. [30]  Order 10, r 1 of the Singaporean ROC provides that “[s]ubject to the provisions of any written law and these Rules, a writ must be served personally on each defendant”. Order 10, r 5 provides that O 10, r 1 also applies to an “originating summons”. The Singaporean lawyers say that the Singaporean ROC is supplemented by s 387 of the Companies Act of Singapore (Revised Edition, 31 October 2006; Originating Enactment: Act 42 of 1967) which provides for service of a document on a company by “leaving it at or sending it by registered post to the registered office of the company”. [31]  Service was effected upon the first respondent on 24 October 2016. Ismail Bin Marajas, a clerk employed by Shearn Delamore & Co attended the registered address of the first respondent (as to which see para 4 of the affidavit of Mr Marajas affirmed on 31 October 2016 and handed to a man (who acknowledged that the premises were the registered office of the first respondent) the following documents: (i)Letter from Holman Webb Lawyers to the first respondent dated 21 October 2016; (ii)Originating Application filed by the liquidators in the Federal Court of Australia on 11 November 2015; (iii)The Genuine Steps Statement of the Applicants; (iv)Order of the Court made in these proceedings on 9 August 2016; (v)Letter from Shearn Delamore & Co to the first respondent dated 24 October 2016. [32]  Mr Marajas says in his affidavit that the individual he engaged with accepted service of the documents on behalf of the first respondent (in the manner described at para 6 of his affidavit). [33]  Service was effected upon the second respondent in the way described in the affidavits of Tan Sheng Min (Chen Shengmin) affirmed on 7 November 2016 and 10 November 2016. The deponent is a clerk employed by Providence Law Asia LLC. He says that on 24 October 2016 at 12.50pm he attended the registered office of the second respondent (as to which see para 4 of his affidavit affirmed on 7 November 2016) and handed a copy of the following documents to the Receptionist at the registered address: (i)Letter Holman Webb Lawyers to the second respondent dated 21 October 2016; (ii)Originating Application filed by the liquidators in the Federal Court of Australia on 11 November 2015; (iii)The Genuine Steps Statement of the Applicants; (iv)Order of the Court made in these proceedings on 9 August 2016; (v)Affidavit of Tracy Lee Knight in these proceedings sworn 10 November 2015. [34]  Tan Sheng Min says that the individual to whom he handed the documents accepted service of them (in the manner described at para 5 of his affidavit of 7 November 2016). [35]  Rule 10.43(7), for the purposes of r 10.43(6) requires the applicants to satisfy the Court that there is “a sufficient explanation for the failure to apply for leave”. An explanation for the failure to apply for leave is set out in the affidavit of Mr Roberts filed 11 November 2016. The explanation given by Mr Roberts involves these considerations. First, limited documents of McLay were provided to the liquidators. Second, a public examination is being carried out. Third, the public examination process is ongoing and has taken longer than the advisers to the applicants anticipated due to the volume of documents produced in response to various summonses; the range of areas of examination identified by the liquidators; and the need to summon additional examinees. Fourth, Mr Roberts has been acting with some haste in working on the various examinations. Fifth, Mr Roberts was anxious to ensure service on each respondent before 11 November 2016. [36]  I am satisfied that the factors identified by Mr Roberts in his affidavit demonstrate a sufficient explanation for the failure to apply for leave. I accept that it is correct to say that there is a residual discretion as to whether the Court ought exercise a discretion to confirm service. I am satisfied that there is no consideration which warrants refusing an order confirming service, for all of the reasons identified in these reasons for judgments. One further matter should be mentioned. The underlying payments made by McLay to the Singapore entity (the second respondent) may be payments made pursuant to a contract which engages the provisions of the Sale of Goods (Vienna Convention) Act 1986 (Qld) (the “Vienna Convention Act”). If so, the contract has been performed and the question that arises is whether the making of the payment to the Singapore entity engages a contravention of the Corporations Act 2001 (Cth) in the way earlier described in these reasons. I am satisfied that a prima facie case on that footing arises. I am also satisfied that should the underlying transaction engage the Vienna Convention Act, that Act has no impact upon the question of whether the making of the payment engages a contravention of the Corporations Act 2001 (Cth). No question arises of the application of the Vienna Convention Act in relation to the first respondent as Malaysia is not a signatory to the Convention."

-> Analogous process, query application of Rules of Court 2012 O 10 r 1. 

-> See also, 'Malaysia' (International Association of Defense Counsel, 2014) <https://www.iadclaw.org/assets/1/7/SILP_Malaysia.pdf>, archived at <https://perma.cc/5NGZ-YZV8>, p 13.

> Resorts World at Sentosa Pte Ltd v Lim Soo Kok [2016] MLJU 700, [16]-[21] (High Court, Kuala Lumpur), archived at <https://perma.cc/4SCL-HYYA>: "Whether Service of The Singapore Cause Papers Is Irregular [16]  The Judgment Debtor in the Judgment Debtor’s Affidavit in Support and in the Judgment Debtor’s Affidavit in Reply has attempted to raise the issues that the service of the Singapore Cause Papers on him is irregular. The Judgment Debtor also stated he has applied to set aside the service of the Singapore Cause Papers, the Order for Substituted Service dated 10.11.2014 and the Singapore Judgment dated 8.12.2014 in the Singapore High Court. [17]  The Judgment Creditor submitted that the Singapore Cause Papers were duly served on the Judgment Debtor in accordance with Order 65 Rule 2A(2) of the Rules of Court. “Order 65, r. 2A, Alternative mode of service of foreign legal process” (1)... (2)The service of any such process within Malaysia may be affected by a method of service authorized by these Rules for the service of analogous process issued by the Court.” [18]  The Judgment Creditor relied on the authority of the High Court in Malayan Banking Berhad v Ng Man Heng [2005] 1 MLJ 470 where it was held at 491A as follows: “... I am of the considered view that the service of the writ on the Judgment Debtor in Malaysia through a private agent is proper and valid.” [19]  The affidavit evidence shows that the Judgment Debtor’s application to set aside the service of Singapore Cause Papers, the Order for Substituted Service dated 11.11.2014 and the Singapore Judgment dated 8.12.2014 was dismissed by the Assistant Registrar of the Singapore High Court on 31.7.2015. [20]  The evidence also shows that the Judgment Debtor then appealed against the Assistant Registrar’s decision. The Appeal was dismissed by the Singapore High Court on 22.9.2015. There were no further appeals filed by the Judgment Debtor and the time for the Judgment Debtor to file an appeal against the decision has lapsed. [21]  Accordingly, the issues on the irregularity and the validity of the service of the Singapore Cause Papers, the Order for Substituted Service dated 10.11.2014 and the Singapore Judgment dated 8.12.2014 are now irrelevant as the Singapore High Court has dismissed the Judgment Debtor’s application."

> Malayan Banking Berhad v Ng Man Heng [2005] 1 MLJ 470, [59] (High Court, Johor Bahru), archived at <https://perma.cc/Y9CK-2K22>: "Order 65 r 2 of the RHC only applies when the minister receives a letter of request from a foreign tribunal seeking assistance to serve a foreign process on a person in Malaysia, and its ambit does not extend beyond this. It does not contain a peremptory order to foreign tribunals to send a request to the Minister in every case where a foreign process is to be served on a defendant in Malaysia. The service of the writ on the judgment debtor in Malaysia through a private agent is proper and valid (see paras 48, 49 and 52). ... 59 For the foregoing reasons, I am of the considered view that the service of the writ on the judgment debtor in Malaysia through a private agent is proper and valid."

> ** Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 3 MLJ 159 (Federal Court, Malaysia), archived at <https://perma.cc/J7QM-H7K8>; see also <https://www.zulrafique.com.my/ckfinder/userfiles/files/case%20update%20judgment/GohTengWhooTanHwaChengvAmpleObjectivesSdnBhd.pdf>, archived at <https://perma.cc/KM7K-57RE>. 

-> proof of posting creates a presumption of service: [30]-[36]. Where service of a writ was alleged to have been effected by way of sending the same to a defendant by AR registered post pursuant to O 10 r 1(1) of the Rules, the court could not seal a JID where the affidavit of service did not exhibit the AR registered card containing an endorsement as to receipt by the defendant himself or someone authorised to accept service of the same on his behalf: [43].

> Joseph Kalang Tie v Ikram Suria Sdn Bhd [2021] MLJU 2740, [23]-[26] (High Court, Kuching), archived at <https://perma.cc/KLA2-GZG2>: "[23]  The Learned SCJ had judiciously applied the following correct principles of law to the above relevant considerations for proof of postage is indeed not conclusive proof of service, not being immediate like personal service by hand. Non-personal service of an originating process via postal service creates a rebuttable presumption of service upon reading O. 62 r. 4(1)(b), O. 62 r. 4(2) (provision stating O. 62 r. 4 does not prohibit operation of other laws on service) and Section 12 Interpretations Act 1948 & 1967 (the phrase “unless the contrary is proved” appears in Section 12). There is nothing in Section 12 Interpretations Acts that says posting by registered post is conclusive proof of service. [24]  The Federal Court in Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 4 CLJ 348 has decisively and authoritatively pronounced that service by any kind of “post” (registered post (O. 62 r.4(1)(b) or AR registered post (O. 10 r.1(1)) is not conclusive proof of service. Section 12 of the Interpretation Acts provides that service is “presumed” “until the contrary is proved”. A rebuttable presumption of law that can be displaced by evidence to the contrary. [25]  When contrary evidence is shown, the presumption is rebutted and the court will make a finding that there is no service of the document in an application for setting aside. It is anathema to justice and fair play that a Defendant who has no knowledge of the action is attached with liability without being given the opportunity to explain why default judgment should not be entered against it. Here the Respondent had shown and produced to court Exhibit D4 to show that there was no service on 09.03.2021. [26]  The failure of the Plaintiff to produce publicly available evidence of service from POS Malaysia’s Tracking Service corroborates the fact that the Defendant was never served as alleged and therefore the presumption of service under Section 12 of the Interpretation Acts have been rebutted by the Defendant on the balance of probabilities. Since the rebuttal evidence shows that service was on 11.5.2020 and the Plaintiff caused the JID to be entered 4 days later on 15.5.2020, the JID is irregular for being in breach of O. 12 r. 4(b) and O. 13 r.1(1) RC2012 with an entry of JID before the time limited for appearing. Furthermore, the impugned JID was irregularly entered under both O. 13 r. 1 AND O. 19 r.2 RC2012 which was disjunctive provisions. ... [35]  In this appeal, the learned SCJ in her grounds had highlighted that the reason in allowing the setting aside of the JID entered against the Defendants in the court below is mainly due to the service of the Writ and Statement of Claim. In gist, applying the principles in MBF Finance Bhd v Tiong Kieng Seng [2001] 4 CLJ 38 where the Court of Appeal held that the written receipt given under the Post Office Rules constitutes prima facie and not conclusive proof of service. It is a rebuttable one if the Defendant can show irregularities in the service the presumption of service that arises under the Interpretation Act."

> Chung Wai Meng v Perbadanan Nasional Bhd [2017] MLJU 814, [28]-[34] (Court of Appeal, Putrajaya), archived at <https://perma.cc/T7F4-7LRV>: "[28]  There is no proof by the Respondent that the Writ and SOC which were sent by AR registered post to the Appellant’s Jalan Inai address had been duly served on the Appellant. The AR registered acknowledgement card duly signed by the Appellant has not been produced. [29]  The Appellant averred that he had been occupying a subsequent address at No. 76, Persiaran Duta Nusantara, Jalan Sri Hartamas 1, 50480 Kuala Lumpur (“subsequent address”) until January 2013, instead of the Jalan Inai address. The subsequent address has been recognised by the Respondent in the substituted service for bankruptcy proceedings against the Appellant. The Appellant on oath had stated that he was completely unaware of the JID until 22.4.2015 when he was in Sabah and his credit card was blocked because of a substituted service for bankruptcy proceedings, and thus, the present recent Application to set aside the JID [RR 2(1) pg 123]. [30]  From the Appellant’s evidence, it is clear that he was not served with the Writ and SOC. [31]  With respect, despite the decisions in Sivamurthy (supra), and Yap Kee Huat (supra), we take note of the majority of the High Court decisions and authorities in Malaysia, and Commonwealth cases, to which we agree, on the requirement that the AOS [Affidavit of Service] must be “proving due service of the writ on the defendant” as provided in O.13 r.7(1)(b) of the ROC. [32]  In the local textbook on civil procedure, Malaysian Civil Procedure, it is categorically stated that the AR card duly acknowledged (in the case of service by AR registered post) must be produced to prove effective service (1AB A/Tab 32). [33]  In Public Bank Bhd v. Rasatulin Holdings Sdn Bhd & Ors [1989] 1 MLJ 47, Siti Norma Yaakob J (as she then was) held as follows: “In this instant case, rather than sending the notices by ordinary post, the solicitors for the plaintiff chose to send them by way of AR registered post and by doing so, the plaintiff has varied cl 8 of both guarantees. By so choosing, the plaintiff has also burdened themselves with the added responsibility of seeing that the AR cards shall be returned to them duly acknowledged by the fourth and fifth defendants, for there to be proper service of such notices on them. In this case both the AR cards were returned with the endorsements ‘kembali tidak boleh dituntut’. As there is no proper and effective service of such notices on the fourth and fifth defendants, this in itself a defence to both of them.” (emphasis added). [34]  Following the above decision, if a party entitled to utilise the registered post method chooses instead to use AR registered post, it is then incumbent on the party to produce the AR card to evidence acknowledgement of receipt."


[K] Testamentary Discretionary Trusts

> "William Bkassini v Sonya Sarkis 1/11/17 – Value of Estate/ Notional Estate – $880,000 Plaintiff, the widow of the deceased, made a claim after almost whole estate was left to one of 3 children on testamentary trust intended to benefit the Plaintiff. Trustee used discretion to cut Plaintiff off from any benefits after he took up with another woman. Plaintiff owned 2 properties with deceased and lived in one. Plaintiff awarded a “portable” life interest in deceased’s half share in one property and costs.": 'Summary of 2017 Family Provision Cases' (AS Laumberg, 2018) <https://aslaumberg.com.au/summary-of-2017-family-provision-cases/>, archived at <https://archive.is/YDBIi>. 

> Family provision :"... “Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper: Re WTN (NSWSC Unreported, 3/7/59, McLelland CJ in Eq); referred to in [1959] 33 ALJ 240 Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported).” The above passages do that mean that all testamentary trust structures will be found to not provide adequate and proper provision for an eligible person. The answer to that question depends on the terms of the trust, the financial circumstances of the eligible person, and the other relevant s 60(2) Succession Act 2006 (NSW) factors.". 


[L] Defined Benefit Superannuation Interest - s 79


[M] Interim Injunctions in Family Law Property Matters

[M.1] Businesses, Companies, Trusts, third parties, etc

> see discussion in 'Injunctions and businesses in family law matters: Chea & Sok [2022] FedCFamC1F 628' (Coulter Legal, 28 October 2022) <https://www.coulterlegal.com.au/injunctions-and-businesses-in-family-law-matters/>, archived at <https://archive.is/Iu8Yi>. 

> see eg, 'Injunction to stop my ex selling assets' (Barton Family Lawyers, 13 February 2022) <https://bartonfamilylaw.com.au/blogs/property/injunction-to-stop-my-ex-selling-assets/>. 

> see also, eg, 'Family Law Injunctions' (Armstrong Legal, Webpage) <https://www.armstronglegal.com.au/family-law/court-processes/injunctions/>. 

> legitimate business expenses, exception? 

> undertaking as to damages.


[N] Notarial Practice

Key Texts:

> Peter Zablud, Principles of Notorial Practice (Notary Press, 3rd ed, 2024). 

> Peter Zablud, A Notary's Forms and Precedents (Psophidian Press, 2002) <https://catalogue.nla.gov.au/catalog/551775>. 

> "Notaries register their seals and signatures with the Department of Foreign Affairs and Trade (DFAT). When issuing Apostilles or Authentications, DFAT certifies that the Notary’s signature and seal is genuine.": Simpson Partners <https://simpsonpartners.com.au/10-thing-know-public-notaries/>. 

> "Often, the signature and seal of a notary require legalisation. This is where the signature and seal of the notary to certified as correct by the Australian Department of Foreign Affairs and Trade (DFAT). DFAT will issue a certificate of authenticity and attach it to the document. A list of sample signatures and seals pertaining to both public notaries and also Australian government departments and officials, institutions, organisations is maintained on DFAT’s database. The sample signatures and seals cover a period of many years, in order to enable DFAT to authenticate the signature or seal on even very old documents. Some countries are party to the 1961 Hague Convention Abolishing the Requirement for Legalisation of Foreign Public Documents (the Apostille Convention). This enables the use of an Apostille. The Apostille is a statement identifying the signature of the notary and comprises a large stamp affixed to the notary’s signed document. Under the Apostille Convention, the Australian authorised affixer of the Apostille is DFAT. The use of an apostille saves time and expense for the person requiring the notarised document. ...": William + Hughes (Lexology, 27 March 2017) <https://www.lexology.com/library/detail.aspx?g=852bf585-fac7-4d44-9bf4-43aea3e45d0c>. 


[O] Recognition of Australian Divorce Orders Overseas

> Ramesh a/l Rajaratnam v SL Sharlini a/p Marnickam [2018] MLJU 1454, [107] (High Court, Kuala Lumpur), archived at <https://perma.cc/V6V2-DUB3>: "[107]  In the upshot, it would be contrary to principle and inconsistent with comity if the Malaysian courts were to refuse to recognise a jurisdiction which, mutatis mutandis, they claim for themselves and recognition should thus be given to the said Divorce Order."

> DGX v DGY [2024] SGHC 17 <https://www.elitigation.sg/gd/s/2024_SGHC_17>.

> Yap Chai Ling and another v Hou Wa Yi [2015] SGHC 296: "64     Section 7(b) of the WC provides that a marriage can be dissolved by an order of a court of competent jurisdiction, which includes a foreign court (see Noor Azizan bte Colony at [10]). However, a foreign divorce judgment will only have effect if it is recognised in Singapore in accordance with the rules of private international law (see, generally, Ho Ah Chye at [55]). As Assoc Prof Debbie Ong (as Her Honour then was) explained in International Issues in Family Law in Singapore (Academy Publishing, 2015) at para 5.59, there are three generally recognised bases for recognition: (a)     where the judgment was granted by a court of the domicile of one of the parties; (b)     where the judgment was granted by a court which exercised jurisdiction on the same basis that a Singapore court would have exercised jurisdiction; (c)     where there is a real and sufficient connection between the court which granted the judgment and either party to the marriage. 65     On the facts of this case, it was undisputed that the Wife, a Chinese national, had returned to China in November 2002 and had done so with the intention of making her home there (see [8] above). That was where she resided when proceedings commenced in Shanghai on 13 July 2004 and it appeared that she was still domiciled there at the time of the application below. Therefore, I proceeded on the basis that the Shanghai courts had jurisdiction based on the domicile of the Wife. Once a foreign court is found to be competent, the defences to recognition are limited and international comity usually compels our courts to recognise the foreign divorce judgment (see Ng Sui Wah Novina v Chandra Michael Setiawan [1992] 2 SLR(R) 111 at [26])."

> Yap Chai Ling & Anor v Hou Wa Yi (M.W) [2016] SGCA 39:" 49. ... Ms Chai does not dispute that the Shanghai court was a court of competent jurisdiction. It is also clear that this was the view adopted by the Judge given that Shanghai was the domicile of the wife (see the GD at [65]). As explained in Debbie Ong, International Issues in Family Law in Singapore (Academy Publishing, 2015) (“International Issues in Family Law”), recognition of foreign matrimonial proceedings is governed by the common law and the court will recognise foreign decrees made by a court of competent jurisdiction (at para 5.47). It is further explained that the position now, with the abolition of the wife’s dependent domicile (see s 47 of the Act), is that it is sufficient that a foreign decree is granted by a court of either party’s domicile (see the Singapore High Court decision of Asha Maudgil v Suresh Kumar Gosain [1994] 2 SLR(R) 427 at [18] as well as International Issues in Family Law at para 5.53). As Shanghai was the wife’s domicile, the Shanghai divorce judgment is an order of a court of competent jurisdiction. All of this points towards recognition."

> VEW v VEV [2022] SGCA 34 <https://www.elitigation.sg/gd/s/2022_SGCA_34>. 


[P] Social Security Act 1991 (Cth), couples, de-facto relations, effect on


[Q] Mediation Ethics and Responsibility


[R] Document Management in Family Law


[S] Probate - Grants of Representation


[T] Separation

> 'Separation Checklist' (Webpage, Doolan Wagner Family Lawyers) <https://www.familylawyersdw.com.au/separation-checklist/>, archived at <https://archive.is/thxu8> - "Separation Checklist helps outline some of the things you should consider organising prior to a separation, to ease that stressed feeling."

> 'Separation Checklist (Form, Attwood Marshall Lawyers) <https://attwoodmarshall.com.au/uploads/2024/01/Family-Law-Checklist-Parenting-and-Property-checklist-combined.pdf>. 

> 'Separation Checklist' (Sage Family Lawyers, 14 December 2022) <https://sagefamilylawyers.com.au/separation-checklist/>, archived at <https://archive.is/z8gCi>. 

> 'Separation Checklist' (Delaney Roberts, 2022) <https://delaneyrobertsfamilylawyers.com.au/wp-content/uploads/2022/11/2622-DR-Separation-Checklist_pf1.pdf>. 

> ** 'Divorce and Separation Checklist' (Westpac Banking Corporation) <https://www.westpac.com.au/content/dam/public/wbc/documents/pdf/other/lifemoments/WBC_Divorce-Separation-Checklist.pdf>; ** also, <https://www.westpac.com.au/help/lifemoments/managing-unplanned-moments/separation-divorce/separation-checklist/>. 

> 'Separation Checklist: Top 12 Practical Things to Consider' (AH2 Legal, Webpage) <https://www.ah2legal.com.au/separation-checklist/>, archived at <https://archive.md/bW2Cw>. 


[U] Child Support

> Court noted however, that question of whether client may be entitled to damages against the mother or brothel may be a possibility and a matter for a different Court: [11]-[13]: "Once conception occurs and a child is born, a child is entitled to the support of the parents. The amount of support is determined by a child support assessment under the Child Support Scheme. The antecedents of the conception do not appear to me to destroy a child’s entitlement under the Child Support Scheme and the Family Law Act 1975. For these reasons I find that the child is properly covered by the Child Support Scheme and properly the subject of a child support assessment. Whether or not the applicant has an independent cause of action against the proprietors of the brothel or escort service concerned and/or the mother, pursuant to any of the commercial arrangements that he refers to is not a matter that I have to determine in this application which deals solely with the application of the Child Support Scheme to the particular child. To the extent he has any rights to damages, his assessment for child support may be relevant in those independent actions, when assessing the amount of any damages."

> See also discussion in, 'Children and the reach of the Child Support Scheme' (Hutchinson Legal, 8 February 2010) <https://www.hutchinsonlegal.com.au/resources/children-and-the-reach-of-the-child-support-scheme>, archived at <https://archive.is/QA35W>. 

> see also, Fiona Hudson, 'A prostitute gave birth, and the accidental dad's in court' (Herald Sun, 22 August 2009) <https://www.heraldsun.com.au/news/a-prostitute-gave-birth-and-the-accidental-dads-in-court/news-story/50bd88e64a070b5c3614edd77eee92ed>, archived at <https://archive.is/50dTv>. 

> see also, presumption of parentage, s 29(2) CS Act. 


Archived: <https://archive.is/IRc5f> (28 Nov 2024).

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