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Following final orders of consent for custody (50/50) and schooling, my estranged wife agreed to all…
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In family law related cases we see all too often the problem of domestic violence against women and …
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Former judges and legal support services have expressed their dismay at the "devastating" passage of legislation that will see the Family Court combined with the Federal Circuit Court, with claims survivors of domestic violence could end up "falling through the cracks".

Read the horrific text a bikie sent to his girlfriend that cops DISMISSED because it's 'common for women to make false allegations' - just five days before he bashed the mother to death with a metal fire hydrant

$6 million in legal fees: The high price of getting a divorce in Sydney

Family courts at breaking point as Chief Justice Will Alstergren admits parents face ‘unacceptable delays’

Queensland had the highest crude divorce rate of 2.5 divorces per 1,000 estimated resident population, while the Northern Territory had the lowest of divorce rates in Australia at 1.7 per 1,000 estimated resident population.

Via Simon Mayers 

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This service provides assistance for self-represented litigants to help prepare their draft consent orders and have it reviewed by a current practicing lawyer to ensure the content and form are in compliance with the legislative and regulatory requirements. 

Price includes up to 2 hours of drafting support and 2 hours of review by a legal practitioner with a letter of advice and any recommendations.


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John Van Beveren Scarlett Kennedy Akasha Rose 🌈 Roxanne Van Beveren Danny Jovica



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She wants sole custody, he wants 50/50, Court considers Family Violence a factor.

This is a matter with three children involved in a case.  The mother seeks sole responsibility while the father seeks equal shared parental responsibility.

Where factors under s 60CC of the Family Law Act 1975 (Cth) are considered, where there is evidence of family violence, the presumption in favour of shared parental responsibility is rebutted.

It was held that it is in the children’s best interests that they live with the mother and that the mother have sole parental responsibility.

The Court ordered that the children shall spend no time with the father, unless otherwise agreed between the parties in writing[1].

That pursuant to s68B(a) and s68B(b)(i) of the Family Law Act 1975 (Cth) , the Court grants an injunction for the personal protection of the children and the mother, restraining the father from:

Approaching, contacting or attempting to contact the mother and/or the children.

Entering, residing and/or attempting to enter any place where the mother and children resides/ works,  or children attend like school/activities or be within 500 metres of them.

Is prohibited from Assaulting, molesting, harassing, threatening or stalking the mother or children.

The personal protection order of the mother and children and has attached to it a power of arrest pursuant to s 86C of the Family Law Act 1975 (Cth) in the event a police officer believes, on reasonable grounds, that the father has breached the injunction.

 The father can communicate with the children each Friday between 6pm and 7pm via telephone, FaceTime or Skype and during that one hour is restrained from:

    1. Discussing the case or anything about it with the children.
      1. Making any derogatory remarks in respect of the mother or her family to the children.
      2. The Mother can watch and listen to and record the communications and can use the recordings in court against the father.

Any letters, presents, parcels the father sends to the kids can be opened by the mother and screened.  She decides if it’s appropriate for the kids to get them. 

Evidence of the Mother

  • Father perpetrated physical, emotional and verbal abuse.
  • Police involved 8 times in 3 years with current ADVO in place.
  • Mother was physically assaulted, pushed out of bed, called a whore, said son doesn’t look like him, denies he is the father.
  • Father denigrates her, yells derogatory names, pushed her over in front of children.
  • Father threatened to harm family and friends.
  • “You’re a slut. You’re fucking your boss. I am going to kill him”.
  • “I am going to visit your boss and am going to slit his throat from one side to the other and watch him bleed out like a cow”.
  • Controlling behaviour during the relationship and post separation. 
  • Father redirected her phone bill to his email.
  • “I pity your boyfriend because he is dead when I find him. You are nothing but a drug addict, slut, user, no hoper”.
  • “shut the fuck up, or I’m going to slit your throat and watch you bleed out like a cow”.  “leave mum alone, stop hitting her”. 
  • The father was again arrested by police and charged with assault and a breach of ADVO.
  • The assault charge was dismissed following a defended hearing, although a final ADVO was made for a period of 2 years.

It was put to the mother that in fact she had been the aggressor in the incidents and was skilled in martial arts. 

The mother would :

  • Stand in the middle of the yard and yell out “you are going to slit my throat and watch me bleed out like a fat cow”. 
  • Create the impression that she was being attacked.
  • The mother denied she had caused any black eye.

Other Key points

  • It was suggested the mother had “schooled the boys” into what to say to Court officials and police.
  • Father took 12 months off work to look after newborns.

The mother was questioned about what she would do if the Court made orders that there be no physical contact by the children with their father and how she would explain it to them. 

The mother answered that she would tell the children that their father needed to have a break in order to improve his behaviour. The mother would have no difficulty with telephone contact, subject to the father not making any derogatory comments or speaking about the Court process. 

The father claimed in his affidavit that he was the major carer, the mother said she was.

The mother states that the father had told his son he was a lazy, a dirty pig because of bed wetting.

Since the father left the family home, the bed wetting has resolved. 

The mother indicated that she was very concerned that the father represented an unacceptable risk both to herself and the children, if he was to have contact with them bearing, in mind his history of domestic violence both in this relationship and in his previous relationship, where domestic violence orders had also been granted.


[1] Tamlyn & Tamlyn [2020] FCCA 89 (17 January 2020) at [3].

Added a Digest 

This is a Family Law Property dispute with a twist, the grandparents sell the Marital Couple a house and now 22 years later, it is claimed it was an informal arrangement regarding real property between the Husband, Wife and Maternal Grandparents.  The Wife sought equitable relief for the Maternal Grandparents through a declaration of constructive trust and declaration of interests.  


  • The husband is 49yrs old, the Wife 48yrs, marriage lasted 22 years.
  • Husband earns $2.2K per week, with $198K Super, Wife earns $850 with $154K Super;
  • The Grandparents ‘the Falsons”;
  • The property was owned by the “Falsons” and sold to the Husband&Wife.
  • The proceeds of that sale was used to payout a debt the Falsons had from a failed business.
  • The agreed value of the property is $720K.

Relevant Orders sought by the Applicant Husband

  1. That within 42 days of the date of these Orders, The Applicant Husband make a payment to the Respondent Wife in the sum of $360,000 by way of property adjustment; Meaning 50/50 share.
  1. That simultaneously with the payment in Order 1 above, the Respondent Wife do all such acts and things and sign all such documents as may be required to Transfer to the Applicant, at the expense of the Applicant, all of her right, title and interest in the real property.

Relevant Orders sought by the Wife

  • A declaration that the property is held in constructive trust for Ms Falzon and Mr Falzon. Alternatively, a declaration that the property is held on resulting trust for Ms Falzon and Mr Falzon.
  • An order directing the applicant husband and respondent wife to sign all such transfers and other instruments that may be necessary to cause the B Street, Town C property to be transferred to Ms Falzon and Mr Falzon within 21 days of the making of the order.

 Oral evidence of the Applicant Husband

  • The Husband confirmed that he was aware that the maternal Grandparents, and until recently the great maternal Grandmother, were residing at the B Street, Town C property. He also confirmed that he knew the maternal Grandfather, and great maternal Grandmother, are both unwell.
  • In his oral evidence, the Husband said that he probably spent another $30,000.00 on “the house” when he was living there for a time.
  • The Husband said that he bought tools that were used to undertake repairs on the house while he was living there. These repairs included some installation of Gyprock.
  • The Husband confirmed that the actual amount paid for the purchase of the property was $180,000, and not the amount of $350,000 recorded in the contract and transfer.
  • He said that the funds raised were used to buy the property (which was originally owned by the maternal Grandparents) and that the maternal Grandparents, in turn, used the proceeds of sale to cover a debt incurred from an earlier failed business venture.
  • The Husband said that he lived at the property for 10 years.
  • He confirmed that he knew that, prior to the registration of the transfer of the property, the maternal Grandparents were in debt to the tune of about $180,000, and that they were unable to work in order to pay out this debt. It was put to him that a scheme was devised whereby he and the Wife would raise the funds that would be used by the Grandparents to pay out their debt, using the B Street, Town C property as collateral.
  • The Husband confirmed that he signed the contract and transfer saying that the purchase price of the property was $350,000, when in fact only $180,000 was paid.


  • It seems, on these basic facts, too much of a coincidence that the amount borrowed was (apparently) precisely (or almost so) the amount of the indebtedness of the maternal Grandparents.
  • On any version of events, the Husband and Wife got a significant property at a heavily discounted price.
  • He contended that, quite simply, he and the Wife made an “offer” for the property which the maternal Grandparents accepted.
  • Given their indebtedness, and their inability to earn income, even on the almost disingenuous account of something suggested to be an arms-length transaction – which in my view it plainly was not and could never be so described – the Grandparents were always going to “accept” the terms of the putative purchase price.
  • The Husband contended that the balance between the stated purchase price, of $350,000 and the actual amount paid, of $180,000, was in fact “made up” by a form of “subsidised rent”, which (on his evidence) amounted to more than $200,000. He said that the property became a “rental” in 2009.
  • The Husband also confirmed that, in his view, acquiring the property for $180,000 was a “bargain price”, and that in so doing, there was nothing untoward, and nothing further needed to be paid. Moreover, in his view, the “subsidised rent” for the Grandparents – he said they were not paying market rent for the property – more than compensated for the difference between the stated purchase price and the actual amount paid.
  • The Husband confirmed that his Orders sought in the current proceeding included to acquire the property for himself.
  • The Husband confirmed, in my view highly significantly, that he knew that:
    1. the Grandparents’ only income was the Grandfather’s armed forces pension;
      1. the Grandfather had lost his business in Town E in approximately late 2000, had incurred significant debt, and had had a breakdown;
        1. he was part of discussions between the Wife and the Grandparents about how to deal with the Grandfather’s debts from the failed business;[4] and
          • the Grandparents would be using the funds received from the “sale” of the property to pay out their debts. The Husband denied that he took advantage of their vulnerability. The Husband confirmed that he raised the funds (with the Wife) that would be, and which were, used by the Grandparents to pay out the Grandfather’s debts.
        • The judge noted that the Grandparents did not receive legal advice at the time of the property transfer.
        • The judge examined whether the transaction fell into a category where relief would typically be granted, perhaps most relevantly under the principles that apply to “catching bargains”.
          • Put simply the considerations were
        • the almost desperate financial plight of the Grandparents (plus the Grandfather’s ill health), and
        • that plight clearly placed financial and other strain on the Grandparents such that their only choices were either to accept the transaction offered to them by their daughter and son-in-law, or have the Bank very likely foreclose.
        • Further, the extremely large difference between the actual price paid compared to the price stated on the transfer, together with the lack of independent legal (or other advice, g. financial) advice, all suggest that the “deal” was, potentially, legally suspect.
        • The Husband confirmed that the Grandparents have paid payments since the breakdown of the marital relationship between Husband and Wife in 2017. Those payments, at the time of the trial, totalled approximately $32,000. He had not re-paid or returned these funds to the maternal Grandparents. He confirmed that the payments did not reflect the market rental for the property. He said that he had not returned any funds to the Grandparents because, in his view, it was a ploy by them to set up, or to contrive, a circumstance that would lead to the Court finding that there was, or should be, a constructive trust in relation to the property.
        • He maintained that the difference between the price listed on the transfer ($350,000) and the actual amount paid ($180,000) – namely $170,000 – was not a “gift” from the maternal Grandparents.
        • You’re the son-in-law. You know he has had a breakdown, and you take advantage of him by buying his house and Ms Falzon’s house for roughly half its value. That’s what you did?‑‑‑Yes. I also gave up my military career to follow them into a business for a whole heap of promises ‑ ‑ ‑
        • In his view, the price settled upon by all parties was “a good price.” It also represented, he said, a good deal, as earlier noted. He said it was his understanding that if this “deal” was not done, the bank would intervene.

        Oral evidence of the Wife

          1. Her parents got into financial difficulty in 2001;
          1. She and the Applicant Husband made an appointment with J Bank, and both of them went to that appointment;
          1. She denied that $180,000 was the maximum that could be borrowed. She said that this was the sum they applied for;
          1. She confirmed that the property was not worth [only] $180,000 at the time;
          1. She confirmed that, after the collapse of the business venture of her Father, the Husband was “furious”. He was not in a state of mind to help out her family.
          2. There was much discussion about the accuracy of information provided by the Wife to the ATO in relation to one or more of the parties’ properties. To most of these questions she said that she relied upon the advice from their accountant and the Husband.
          3. The Wife confirmed that the property had been transferred into her and her Husband’s names. To this, somewhat elliptically, she stated that this was to enable her parents “to pay back the mortgage.” (by renting the property back at mortgage cost).
          4. Exhibit 4 is a copy of a “tenancy agreement” between the Husband and Wife and the Grandparents regarding the property. It records that it was to commence on 10th July 2009, and provides for a “nominal rent of $245.00”, which was to be paid into a nominated account in the name of the Husband and Wife.
          5. In fact, the only signatories to it are the Grandmother and the Wife. Somewhat surprisingly, nothing was ever made about, or commented on, in this regard. It was yet another instance of an incomplete and not fully explained (or with competing explanations), documentary record and history. My query here also relates to the [relatively] “nominal rent” proposed to be paid by the Grandparents. Equally so in relation to its characterisation as “rent”, which was described by the Wife as “mortgage payment.”
          6. In 2009, the Husband and Wife refinanced the mortgage and used the property as security. Mr Falzon said in cross examination that she understood that if they defaulted on the loan, the property could be sold.
        • Trust
          • In her Response filed 10 May 2018, the Wife seeks a declaration that she and the Husband hold the property on trust for the Grandparents and that such a trust is a constructive trust.
          • A constructive trust is a remedy that seeks to avoid the consequences of unconscionable conduct by one party, to the detriment of a beneficiary. This type of trust is artificially imposed by equity on a person who has control of property where it would be contrary to equitable principles for such person to assert both legal and beneficial ownership.
          • In Baumgartner v Baumgartner [1987] HCA 59(1987) 164 CLR 137, the High Court affirmed the dissent of Deane J in Muschinski v Dodds [1985] HCA 78(1985) 160 CLR 583where he stated that a constructive trust “can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement”.

            In the absence of unconscionable conduct, no constructive trust arises.

            A joint Formal Valuation was completed on the property dated 30 August 2019 providing a value of $720,000.00. A formal valuation was completed at the time of the transfer (2002) and at that time the property was valued at $350,000. The Grandparents resided in the property from 2009 to the present day with no rental increase.

        HELD :
        The factual circumstances as found by the Court give rise to the need for equitable relief, predominantly, but not only, in favour of the Grandparents. Their interests are not to the exclusion of the relevant interests of the Husband and Wife.

        The determination of the relevant interests, declarations and Orders be as follows:

          1. The relevant value of the property should be as per the agreed value at trial ($720,000);
          2. There be a declaration of constructive trust in favour of the Second and Third Respondents, in relation to the property, subject to the following further Declarations and Orders.

        (2) There be a declaration of interest in relation to the property in favour of:

        (a) The Applicant Husband

        (b) The First Respondent Wife, and

        (c) The Second and Third Respondent.

        The declaration of interest shall be as to one third equal parts; the Second and Third Respondents being treated as a single entity entitled to a one-third interest.

        CITATION :

        Sancomb & Sancomb & Ors [2020] FCCA 842 (26 June 2020)


        Added a Digest 

        This is an interesting case involving Arbitration, where an application for enforcement of a 2016 Arbitral Award was made by the wife and an Application for review or setting aside of Arbitral Award by the husband. 

        The Arbitral Award was previously consented to and/or no objection raised.  The Court had to consider the circumstances in which it should set aside or review an Arbitral Award giving due consideration of grounds for review of Arbitral Awards under the Family Law Act 1975 (Cth).


        The application by the husband was considered incompetent because it seeks relief which could not be ordered by the Court. There are only two options available either seek a review of the Arbitral Award[1] or to seek to set the Award aside.[2] A Response filed in December 2019 by Ms Jancos in response to the incompetent application of Mr Abelas seeking relief pursuant to section 79A[3];


        Whether the court should set aside an arbitration award consented to and registered with the Court.

        The arbitration 

        • The parties attended arbitration with an appropriately qualified and accredited arbitrator in January or February 2019, that is, some 12 months ago. An Arbitral Award was issued by the arbitrator on 6 February 2019.
        • The Arbitral Award was then the subject of an Application for Registration of an Arbitral Award filed by the legal representatives for Ms Jancos and dated 9 February 2019.
        • The proceedings were listed for mention and directions on 13 March 2019, that date having been allocated on the basis that the substantive proceedings, the totality of which had been referred to arbitration, were effectively stayed pending registration of an Arbitral Award.
        • It was hoped that the date might be vacated. It is clear, however,[1] that a period of 28 days must pass from the date of service of the Application for Registration of the Arbitral Award before the Arbitral Award can be registered.
        • The 28-day period is, in effect, a disallowance period, as it were, affording to any party who seeks to oppose registration of the Arbitral Award the opportunity to do so.
        • As discussed in Blanco & Blanco (No. 2) [2019] FCCA 2458, objection is an opportunity to impugn or impeach the integrity of the arbitral process and to raise matters relating to a denial of due process, bias, or some alleged failure by the arbitrator to act within the terms and parameters of their contractually created jurisdiction.
        • In any event, no objection was raised.
        • On receipt of the Arbitral Award, correspondence was forwarded by my Chambers seeking to vacate the listing date in the event that no objection was raised.
        • Whilst it is not expressed within the Family Law Rules 2004 (Cth) or Family Law Regulations 1984 (Cth), which facilitate the arbitral process, one might assume (and in this case, I accept, validly) that it is a matter for the parties to seek to waive that disallowance period (or the period in which they are entitled to object). Such waiver has most clearly occurred.
        • On the very same day that my Chambers contacted the legal representatives for the parties, the legal representatives for Mr Abelas responded by email indicating that no objection was raised to the immediate registration of the Award. Accordingly, it was registered.
        • Thereafter began the difficulties, as enumerated in the various affidavits referred to above and culminating in the Application for Enforcement filed by Ms Jancos.
        • I propose to shortly turn to each of the grounds upon which Mr Abelas might seek to impeach the Arbitral Award, inferred or expressed (although incompetently, as I have already described) by the Application filed. Before doing so, it is germane to consider the Arbitral Award, albeit briefly.

        The Arbitral Award 

        • The Award is registered and speaks for itself.
        • What is clear and apparent from the Award is that the substantive assets of the parties and the subject of the dispute comprised two parcels of real estate.
        • The parties were the joint registered proprietors of the first parcel, not the second.
        • To the extent that the findings made by the arbitrator as to the assets available for division between the parties might be challenged, they simply could not be. They were presented as agreed facts. Thus, there could be no suggestion that an error of law occurred through an incorrect finding not supported by evidence.
        • The Arbitral Award was to distribute the identified assets as to 39.12 per cent to Ms Jancos and 60.88 per cent to Mr Abelas.
        • The award required that Mr Abelas pay to Ms Jancos a sum certain - $630,000 - and refinance certain mortgages.
        • In return for payment of the sum certain, Ms Jancos was to transfer to Mr Abelas her interest in those properties, whether legal or equitable. Each party was otherwise to retain all other property and resources to which they were entitled or which were in their possession.
        • The sum certain was not paid by Mr Abelas.
        • Mr Abelas asserts in his sworn evidence that he had made inquiries with respect to borrowing but had been advised that he could not do so. Accordingly, the mechanisms included within the Arbitral Award triggering the sequential sale of those properties came to bear.
        • The jointly owned property was to be sold first, if funds realised from that sale were not sufficient to discharge both the secured mortgages and make payment in full to Ms Jancos of the sum of $630,000, then the second property was to be sold.
        • What is remarkable is that the property sold for significantly less than the value that was agreed between the parties and, thus, presented as an agreed fact to the arbitrator.
        • The property had an agreed value of $800,000. It was sold to the brother-in-law of Mr Abelas for $455,000.
        • Mr Abelas is at pains in his material to point out that his brother-in-law was not an anticipated bidder. Indeed, his evidence is that his brother-in-law registered during the course of the auction.
        • An Order was made appointing a trustee for sale of the second property, that property has also been sold at something less than the agreed value presented by the parties at arbitration, although not by the same magnitude of variance.
        • The Arbitral Award need not be further considered. It is registered with the Court without objection - indeed, with the consent of both parties. There is no question raised or challenge mounted that it would impact upon the registration, and thus, the enforceability of the Award.

        It must be observed that the Award is not a decree of the Court. It has effect as if it were a decree of the Court. Thus, it is not a decree or order of the Court that can be challenged. It is an Arbitral Award. That much must be clear from the fact that sections 13J and 13K provide separate and specific bases upon which Arbitral Awards might be challenged or impeached, (section 13J providing for review, section 13K providing grounds to set aside registered Arbitral Awards).

        It is also clear, that registration of the Arbitral Award is a necessary precondition to invocation of sections 13J and 13K of the Family Law Act 1975 in seeking to review or set aside the Award. If the Arbitral Award is not registered, it cannot be reviewed and it cannot be set aside. Indeed, there would be no need for it to be so as the Arbitral Award cannot be enforced if not registered.


        The relief sought by Mr Abelas is incompetent. It is, perhaps, important to be clear what the relief that is sought is.

        Mr Abelas seeks orders pursuant to section 79A(1)(a) of the Family Law Act. As would be apparent from the above comments, section 79A has no application to the circumstances of this case. There is no order which might be set aside. There is a registered Arbitral Award which has effect as though it were a decree of the Court, but it is not a decree of the Court. It is an Arbitral Award which arises from a separate, albeit court-ordered, contractual determination of the dispute between these parties.

        There are two further problems. Firstly, the parties were not married. Thus, section 79A, founded in matrimonial causes, has no application to the proceedings.

        The section upon which Mr Abelas would proceed would be section 90SN of the Family Law Ac 1975.

        Secondly, the ground that is relied upon and specified within the relief sought, section 79A(1)(a), provides to the Court a jurisdiction to set aside an order if:

        ...there has been a miscarriage of justice, by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance.

        Clearly, in considering the evidence, the first four grounds could not be relied upon. There has been no fraud, duress, suppression of evidence or false evidence. There has been a joint consensual statement by the parties through their Counsel to the arbitrator, and thus adopted and relied upon by the arbitrator, as to the agreed value of the properties. That the eventual sale prices realised for each of those properties is at variance with the agreed value could not fall within the above descriptors and as there was no other circumstance put forward, the relief sought was hopeless.

        Section 13K provides that an Arbitral Award may be reviewed on questions of law. What might constitute a question of law was dealt with authoritatively (from my perspective) in Blanco & Blanco (No. 2).

        Mr Abelas does not suggest any error of law.


        For all of those reasons the Application by Mr Abelas must fail.


        The Application by Ms Jancos has succeeded. She has successfully prosecuted her Application not only on this occasion but on an earlier listing of the proceedings, and obtained relief.

        The court is satisfied that Mr Abelas’ conduct justifies an order for costs and departure from the general rule. It would be unjust for an order for costs not to be made in those circumstances, an order for costs is not only justified and just, but irresistible.

        There is an issue as to time for payment. No application is made by Mr Abelas as to time for payment. On the basis that settlement of the second property has recently occurred, there would be no need for time to pay. There is a ready means by which payment can be secured - deduction from those funds as held by the wife’s solicitors and payment to Ms Jancos before payment is made to Mr Abelas. That is the course I propose to take. It will obviate against the need for interest to accrue or be calculated and, thus, obviate against further controversy.

        CITATION :

        Jancos & Abelas [2020] FCCA 459 (20 February 2020)


        [1] Family Law Act 1975 (Cth) ‘FLA’, s.13J

        [2] Ibid s.13K.

        [3] Ibid 79ASetting aside of orders altering property interests


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