Full Court (Appeals) Judgments

FAMILY LAW – APPEAL – PROPERTY – termination agreement between the parties pursuant to Pt 4 of the Property (Relationships) Act 1984 (NSW) – termination agreement set aside at first instance – overturned on appeal – parties not informed at first instance that Federal Magistrate intended to make a decision concerning the setting aside of the termination agreement – breach of natural justice – appeal conceded on this point by respondent.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – where the husband appeals the order made by the Federal Magistrate that he retain the Queensland property when he sought orders for the sale of that property – where it is alleged that the Federal Magistrate failed to give adequate reasons why this property should be retained by the husband contrary to his submissions and orders sought – where the husband seeks an adjustment pursuant to ss 75(2)(c) and (d) of the Family Law Act 1975 (Cth) in circumstances where he will have the primary care of the children of the marriage and the financial obligation for their upbringing and education – where the wife opposes the appeal – where it is found that the Federal Magistrate failed to give adequate reasons for her decision that the husband retain the Queensland property – where there is merit in the grounds of appeal – where the Federal Magistrate “painstakingly” worked through all of the relevant s 75(2) factors – where the husband has not demonstrated that the Federal Magistrate’s overall finding in relation to the relevant s 75(2) factors was erroneous – where there is no merit in these grounds of appeal – where the appeal is allowed in part – where it is appropriate to re-exercise the discretion – orders made for the sale of the Queensland property with the parties jointly undertaking that task, any capital gains tax liability to be met equally by the parties with the proceeds of sale remaining to be shared between the parties as to 53 per cent to the husband and 47 per cent to the wife.

FAMILY LAW –APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE COMPRISING A VALUATION OF THE PROPERTY – where it is now unnecessary to consider the application given the appeal is to be allowed in part and the order made by the Federal Magistrate is to be set aside – application dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the husband sought that the wife pay his costs in the event that the appeal was successful – where in the event that the appeal was successful the wife sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where there is no suggestion that the wife led the Federal Magistrate into error – where there is no basis on which the wife should  pay the husband’s costs –where the appeal has been allowed on a question of law – where there is no order for costs – costs certificates to issue to the parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

FAMILY LAW – APPEAL – PROPERTY – whether the Federal Magistrate erred in only allowing the husband to rely on part of his affidavit – appeal in relation to the exercise of judicial discretion – where the Federal Magistrate took account of the husband’s non-compliance with orders about filing of evidence – where the Federal Magistrate found the husband’s non-compliance was a course of conduct and the husband provided no satisfactory reasons for non-compliance – whether the Federal Magistrate erred in failing to have regard to costs order as compensation to the wife for further delay or adjournment – consideration of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 – Federal Magistrate’s discretion did not miscarry – no error demonstrated.

FAMILY LAW – APPEAL – Adequacy of reasons – whether the Federal Magistrate erred in adopting the wife’s submissions as her reasons for judgment – whether the wife’s submissions were sufficient to constitute reasons for judgment – where the husband failed to comply with orders to file evidence – where the only evidence before the Federal Magistrate was the wife’s evidence – where the Federal Magistrate had no submissions by the husband about the division of property – adequacy of reasons depends on the context in which they were given – reasons were adequate – appeal dismissed.

FAMILY LAW – COSTS – Appeal wholly unsuccessful – no submissions made about any other s 117(2A) factors – costs order made in favour of the wife.

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Whether the trial Judge ought to have ordered the update of the expert’s report to cure a deficiency in the report touching on a fact in issue in the trial before her Honour which was necessary for her to resolve ─ No argument advanced to show what evidence relevant to the issue in fact at trial could have been added by the expert to that which he had already said in his report and evidence ─ Not established that the trial Judge erred in not ordering an updated expert report ─ Challenges to the trial Judge’s exercise of discretion not made out ─ Not established that the trial judge did not afford the mother procedural fairness ─ No appealable error established ─ Appeal dismissed

FAMILY LAW ─ APPEAL ─ PROPERTY SETTLEMENT ─ Where in its preliminary judgment, this Court referred to the possibility that, in reliance upon a cause, or causes of action which the respondent has not previously pleaded, the respondent might seek relief against third parties who have hitherto not been parties to the proceedings ─ Where having regard to the findings of fact of the learned Federal Magistrate, and accepting that those findings of fact would not be binding upon any third parties subsequently joined in the proceedings, it is possible that the respondent could establish a basis for relief which has not hitherto been pursued ─ Where notwithstanding that the obstacles to success may be substantial, the Court was not persuaded that an amended application seeking relief against third parties would be doomed to fail ─ Appeal allowed.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – NOTICES OF APPEAL – where the applications and the appeals were adjourned until after delivery of judgment by the Full Court in the appeal filed by the husband whereby the Public Trustee for the State of South Australia was appointed as the Litigation Guardian for the husband – where the Full Court made orders allowing the appeal and setting aside the orders appointing the Litigation Guardian – where the issue now is whether the final parenting, the final property settlement orders and the costs orders are void or voidable – where if the orders are voidable to which court should an application be made to set them aside – where if an application is made should that be an application to set aside the orders consequential upon the decision of the Full Court, or, in relation to the property settlement orders, should it be an application pursuant to s 79A of the Family Law Act 1975 (Cth) – where if the husband does not seek to set aside the orders should the appeals he seeks to pursue against them be allowed to proceed – where if the order that the husband pay the costs of the Litigation Guardian is void then it cannot be enforced or relied upon, but if it is voidable, or neither void nor voidable, should the husband still be required to comply with it – where, if the property settlement orders are voidable, what should be done with the husband’s appeal against the orders made by the Federal Magistrate on 22 June 2010 refusing a stay of the orders for property settlement and by way of enforcement – where the orders made here are voidable – where it should now be up to the husband to leave the orders in place or seek to set them aside – where the application to extend the time to file an appeal against the parenting orders made on 16 March 2009 is dismissed in any event – hearing to be conducted to address issues that flow from the finding that the orders are voidable.

FAMILY LAW – APPEAL – PROPERTY– where the trial Judge divided identifiable property found to have a net value of $1,541,792 together with an amount of $500,000 being his assessment of the value of the husband’s beneficial half interest in a company, in which all shares were held by the husband’s brother, as to 56 per cent to the husband and 44 per cent to the wife – where the Full Court found there was no substance in the challenges by the husband to the trial Judge’s findings that there had been non disclosure by the husband, particularly in relation to the husband’s interest in the company owned by his brother and to the value of that interest, and that the husband had wasted funds by permitting himself to be declared bankrupt and in pursuing proceedings in the District Court against the wife in relation to a debt owed by her to a company in which both the husband and the wife were shareholders – where the Full Court found error in the trial Judge’s calculation of the amount of the funds wasted by the husband in pursuing the District Court proceedings against the wife and recalculated the parties’ entitlements to correct that error –appeal allowed –orders amended – no order for costs – certificates issued to both parties.

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Interpretation of orders ─ Asserted uncertainty of drug screen orders ─ Whether there was such uncertainty as to their effect that the drug screen orders were not capable of founding a successful contravention application ─ Where the Court could not discern, on balance, which of the drug screen orders was intended to prevail ─ Where on balance, the Court was not persuaded that the inter-action of the drug screen orders was sufficiently clear as to permit them to found a successful application even on the civil standard of proof ─ Where given the uncertainty in relation to the operation of the drug screen orders the appellant’s defence could not be rejected ─ Appeal allowed in part ─ Contravention findings set aside.

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Waiver ─ Whether the Federal Magistrate erred because his Honour did not accept that the respondent’s failure to comply with the drug screen order/s provided a reasonable excuse for the appellant failing to comply with the orders for the parties’ child to spend time with the respondent, essentially on the basis that, by subsequently allowing contact, the appellant had waived the breach of the orders because she continued for months to comply with the orders ─ Where the logic of his Honour’s reasons for rejecting the defence is unassailable in the absence of evidence from the appellant that she believed that she had no choice than to comply with the orders, despite the respondent’s alleged breach ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Where there was no error with respect to jurisdiction or power on the part of the Federal Magistrate ─ Not established that his Honour did not afford the parties procedural fairness and natural justice ─ Challenges unsuccessful.

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Challenge to orders for compensatory time to be spent ─ Whether the Federal Magistrate failed to follow a legislative pathway, or to find jurisdictional facts in relation to compensatory contact ─ Where there may be cases where an application for compensatory time clearly obliges a judicial officer to consider the provisions of s 60CC from equal shared parental responsibility through ss 60CC and 65DAA, but the Court did not find, either as a matter of statutory construction, or on the facts, that the Federal Magistrate erred by failing to do so in this case ─ Where the Court did not find merit in any of the challenges to the variation or compensatory time orders made by the Federal Magistrate.

FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Whether the Federal Magistrate erred in the treatment of evidence of the mother’s psychologist in relation to the mother’s mental health and emotional wellbeing – Where the Federal Magistrate did have regard to the impact the return would have on the mother and the children and was entitled to treat the psychologist’s evidence as she did in the context of other expert evidence before the Court, no error demonstrated.

FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Whether the Federal Magistrate erred in the application of the legislative pathway for the making of parenting orders under the Act – Where consent orders assigning equal shared parental responsibility between the mother and each respective father were made prior to the delivery of reasons for judgment – Where having made such orders, the Federal Magistrate was obliged to follow the legislative pathway and consider orders for equal, or alternatively substantial and significant time and erred by failing to do so – Where the Federal Magistrate considered the mother’s proposed relocation alone on its merits, then having decided not to allow the application, considered what time the father should spend with the children – Where the Federal Magistrate erred by treating the mother’s application for relocation as the primary issue for determination and by failing to make parenting orders based on an evaluation of each party’s proposal and in accordance with the prescribed legislative pathway applicable to parenting cases, including relocation cases – appeal allowed and applications remitted for rehearing.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the appellant mother sought to adduce further evidence detailing her account of events since the decision of the Federal Magistrate denying her relocation application – Where counsel for the mother accepted that the majority of the evidence was contentious but contended it should be admitted to demonstrate the Federal Magistrate’s decision was wrong – Where the appeal is to be allowed, however the controversial nature of the further evidence makes it impossible for this Court to re-exercise the discretion and the matter must be remitted, rendering the evidence unnecessary in the appeal – application dismissed.

FAMILY LAW – APPEAL – CHILDREN – Where the appellant mother appealed from final parenting orders and subsequent orders providing for a slight variation of the changeover venue – Where the appeal was entirely without merit – No appealable error established.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband appealed from orders for property settlement – Where the appellant husband asserted that the trial Judge erred in his Honour’s determination of the value of certain trade dollars – Where neither party produced evidence of the value of the trade dollars – Where the trial Judge concluded that it was appropriate to treat each trade dollar as being equivalent to one ordinary dollar based on their value to the husband as opposed to a third party – No appealable error established.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband asserted that the trial Judge erred in his Honour’s determination not to add back money received by the respondent wife pursuant to orders made before the final hearing and in surplus of her legal fees – No appealable error established.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband asserted that the trial Judge erred in his Honour’s determination not to add back money allegedly advanced to third parties – No appealable error established.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband appealed from property orders providing inter alia that the subject company be wound up pursuant to s 233(1)(a) or s 461(1) of the Corporations Act 2001 (Cth) – Where there was no challenge to the trial Judge’s findings that a purported share issue to the husband’s parents was oppressive and void, and it was conceded that an order for the winding up of the subject company was one which was open to his Honour in the exercise of his discretion – Where the appellant husband asserted that the trial Judge erred in failing to consider other available remedies given the subject company was solvent – No appealable error established.  

FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband asserted that the trial Judge erred in finding that meetings did not take place as alleged by the appellant husband – Where there was an application to adduce further evidence by the appellant husband to support this challenge – Where it was conceded by senior counsel for the appellant husband that, if the application to adduce the further evidence was not successful, this challenge must fail – Where the propounded further evidence was beset with controversy – No appealable error established. 

FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband asserted that the trial Judge erred in restraining the parties from submitting any proof of debt in the winding up of the subject company in that the order amounted to a denial of natural justice and/or it was beyond the jurisdiction and/or power of the Court – No appealable error established.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband asserted that the trial Judge erred in ordering, without sufficient specificity, the liquidator to rectify the records of the subject company; and, in particular, in failing to specify the source of the power by which the order was made – No appealable error established.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband asserted that the trial Judge erred in ordering the appellant husband and the respondent wife to bear two thirds of the liquidator’s costs in that the order amounted to a denial of natural justice and/or the trial Judge failed to identify the source of the jurisdiction and/or power by which the order was made – Where it was common ground that no party sought the order – Where the appellant husband had no notice of the making of the order – A denial of natural justice demonstrated – Appealable error established.

FAMILY LAW – APPEAL – CHILDREN – Where the appellant father appealed from parenting orders providing inter alia that the children live with their mother and that they spend time with their father for four nights in each fortnight during the school term, for half the school holidays and on other occasions – Where there was no challenge to the trial Judge’s findings of fact – Where the appellant father asserted that the trial Judge erred in failing to order that the children spend equal time with each parent – Where the trial Judge relied on the expert evidence of the family consultant to the effect that an equal time arrangement was not in the best interests of the children given the extreme level of inter-parental conflict and the parents’ inability to communicate and cooperate with each other – No appealable error established.

FAMILY LAW – APPEAL – CHILD SUPPORT – ENFORCEMENT ORDERS – Where the appellant sought leave to appeal against enforcement orders for the payment of child support liabilities and related penalties – Where the enforcement orders were made in respect of a declaration of liabilities made in May 1997 and further liabilities subsequently incurred – Where the appellant did not appeal from the declaration the subject of the enforcement proceedings – Where the appellant had repeatedly challenged, unsuccessfully, in first instance and appellate proceedings in the Federal Court and the High Court the constitutional validity of the Child Support Scheme giving rise to his liability – Where the primary grounds of appeal raised by the appellant in this appeal need not be directly addressed, having been previously raised by him in, and dismissed by, courts of binding or persuasive authority – Where there was no substance in any of the additional grounds of appeal agitated – Where the appellant failed to demonstrate an error of principle on the part of the Federal Magistrate, or a decision resulting in a substantial injustice to him – Leave to appeal refused.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the respondent Registrar sought to adduce in the appeal a document which clearly formed part of Exhibit 1 in the first instance proceedings and should have been in the appeal books however was omitted – Where such an issue should have been addressed by consent before the Regional Appeals Registrar, however an application was necessitated by the appellant’s unreasonable resistance – Application allowed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – APPLICATION FOR LEAVE TO FILE AND RELY ON FURTHER WRITTEN SUBMISSIONS – Where on two occasions subsequent to the hearing the appellant attempted to file and rely on further written submissions – Where the respondent Registrar opposed leave being granted –Where the appellant filed lengthy written submissions prior to, and made lengthy oral submissions at the hearing of the appeal – Where the appellant failed to demonstrate cogent reasons why leave should be granted – Where nothing contained in the further written submissions would affect the Court’s decision in the appeal – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appellant unreasonably resisted the respondent Registrar’s request to include a document which ought to have been included in the appeal books and therefore necessitated the application in an appeal to adduce further evidence – Where the appellant filed a wholly unmeritorious application in an appeal seeking to rely on additional further written submissions five months after the hearing – Where the appellant has been wholly unsuccessful in the appeal – Where the appellant agreed at the hearing of the appeal that if the appeal was unsuccessful his financial circumstances would not prevent him from meeting a costs order – Appellant ordered to pay the respondent Registrar’s costs of the appeal and the applications in an appeal, to be assessed.

FAMILY LAW – APPEAL – TRUSTS – Where in considering whether there was an express trust or resulting trust it was asserted the trial Judge did not expressly set out what was required for such a trust to be established – The trial Judge did consider what was required for the existence of an express trust and counsel on appeal conceded a resulting trust could not exist – Where the trial Judge found there was no express trust or constructive trust – The evidence supports the finding that there was no express trust and the finding that there was no constructive trust was open to the trial Judge.

FAMILY LAW – APPEAL – OTHER FINDINGS – Where the trial Judge made other findings which were challenged – The findings made by the trial Judge were open to him on the evidence.

FAMILY LAW – APPEAL – CHILDREN –where the appellant father alleged that the trial Judge erred in making an order that provided that the 15 year old child spend no time with the father until he attains majority without consent of the mother – where the appellant father alleged that such an order was contrary to the evidence of the single expert and that the trial Judge had failed to give consideration to the practicality of an order prohibiting the child from seeing the father – where the Full Court was satisfied that the trial Judge had balanced the evidence of the expert as well as the views of the child and that it would not be not justified in interfering with the trial Judge’s decision on the basis of issues of weight – where the appellant father argued that the trial Judge erred in ordering the father’s name be removed as a trustee of the fund to support the child – where the respondent mother conceded that neither party sought this order nor was either party heard in relation to it making – order discharged by the Full Court – Appeal and Application to adduce further evidence of events subsequent to trial dismissed – Order that the father pay the mother’s costs in relation to the appeal.

FAMILY LAW - APPEAL - declaration that the parties lived in a de facto relationship.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – INDEMNITY COSTS – where the respondent seeks that the applicant pay his costs of and incidental to the proceedings on an indemnity basis – where the conduct of the applicant and the fact that she was wholly unsuccessful in the proceedings provide circumstances that justify an order for costs being made – where the respondent has demonstrated the presence of exceptional circumstances to warrant a departure from the ordinary rules as to costs – where the respondent should not have to bear any of the legal costs incurred by him in responding to the mala fide actions of the applicant – where the clear intention of the applicant was to obstruct and thwart the execution of the consent orders made on 13 December 2011 – costs order made as sought by the respondent.

FAMILY LAW ─ APPEAL ─ PROPERTY ─ Application for leave to appeal interlocutory orders made by Federal Magistrate in proceedings for property settlement ─ Whether it was reasonably open to the Federal Magistrate to conclude that the appellant did not demonstrate that she had the capacity to avoid a sale of the property and that, in those circumstances, declining to make an order for its sale would only be likely to diminish the parties’ equity in the property, or that, even if a sale was not inevitable, that only by selling the property would the parties’ dwindling equity in it be preserved ─ Where the Court was not persuaded that the Federal Magistrate erred in the exercise of his discretion by approaching the application for the sale of the parties’ property in reliance upon the Court’s powers to make orders for settlement of property rather than the Court’s injunctive powers ─ Nothing to which this Court was referred established that the Federal Magistrate misunderstood or in any way erred in fact in concluding that the evidence did not establish that anything which the appellant had done, or was doing, or could do, would, on the balance of probabilities, impede the ability of the bank to exercise its rights under its security over the property of the parties ─ Where the orders made by the Federal Magistrate were clearly open to his Honour, and represented the best, if not only, avenue for preserving and realising the parties’ modest equity in the property of the parties ─ Not established that the inferences drawn by the Federal Magistrate were other than reasonably open to his Honour and that the facts upon which those inferences were based were other than reasonably open to him ─ No appealable error demonstrated ─ Appellate intervention not enlivened ─ Application for leave to appeal dismissed.

FAMILY LAW ─ APPEAL ─ EVIDENCE ─ Applications to adduce fresh evidence ─ Where the further evidence which was contained in two affidavits did not advance the challenges of the appellant that the Federal Magistrate erred in concluding that there appeared no reasonable alternative to a sale of the property of the parties if the ongoing diminution of the parties’ equity in it was to be avoided ─ Where the further evidence failed to demonstrate that the decisions under challenge were erroneous.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the wife sought an extension of time to file an application for costs – where the husband has not responded to the application – where there was an adequate explanation for the failure to comply with the timeframe provided in the Rules – where the husband’s conduct provides significant support for the wife’s application – where the interests of justice demand that the application be granted – application granted.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the wife seeks that the husband pay her costs of and incidental to the appeal filed by him on 19 January 2010 – where the wife seeks that costs be paid on an indemnity basis – where the husband failed to respond to the wife’s application – where the conduct of the husband and his failure to comply with court orders provide circumstances that justify an order for costs – where there are no exceptional circumstances that justify an order for indemnity costs – husband to pay the wife’s costs assessed on a party/party basis in default of agreement.

FAMILY LAW – APPEAL – PROPERTY – Where the respondent concedes error on the part of the Federal Magistrate though for different reasons – Where further evidence in relation to the appellant’s financial circumstances inhibits a re-exercise by the Full Court and require remission of the matter – Appeal allowed and costs certificates ordered.

FAMILY LAW – APPEAL – Application for leave to file Notice of Cross-Appeal – Where error is conceded by both sides and the appeal is inevitably to be allowed by consent – Where there is limited utility in hearing the proposed cross appeal – Application dismissed.

FAMILY LAW ─ APPEAL ─ PROPERTY SETTLEMENT ─ Contributions ─ Challenge to the Federal Magistrate’s conclusion and assessment of the contributions of the parties pursuant to s 90SM(4) ─ Where the appellant contended that the Federal Magistrate had erroneously disregarded and/or devalued, the contributions made by him for the benefit of himself and the respondent ─ Where the Court concluded that the Federal Magistrate’s findings with respect to the parties’ overall contributions in the period October 2006 to October 2007 were not reasonably open to him ─ Where the Court was satisfied that it was not reasonably open to the Federal Magistrate to regard the parties’ overall contributions in the period October 2006 and October 2007 as equal by, inferentially, concluding that the respondent’s non-financial contributions so exceeded those of the appellant during this period as to counter balance his substantially greater financial contributions ─ Where given the ages and earning capacities of the parties, and the modest value of their assets, the Court was unable to conclude that the Federal Magistrate’s error of fact was immaterial to the exercise of his discretion ─ Where his Honour’s failure to find, as the evidence required him to, that the appellant’s ultimate contribution based entitlement was enhanced by the disparity of the parties’ financial contributions between October 2006 and October 2007 vitiated the exercise of his discretion ─ Appellate intervention enlivened ─ Where both parties sought an order for the sale of the property if the appeal were allowed and the discretion of the Federal Magistrate re-exercised ─ Appeal stood over for further consideration, with respect to the re-exercise of the discretion of the Federal Magistrate’s Court, pending receipt of further evidence and submissions.

FAMILY LAW – APPEAL – CHILDREN – where the father lived in Melbourne and over a year before trial the mother had moved with the child to north eastern Victoria – where the Federal Magistrate made orders for the child to live with the mother and to spend time with the father each alternate weekend – where the father alleged the Federal Magistrate erred in not ordering the return of the child to Melbourne, despite at trial not strenuously pursuing the child’s return to Melbourne – where the father alleged bias on the part of the Federal Magistrate for refusing to disqualify himself at trial, for accepting evidence of the mother and her witnesses over evidence of the father and his witnesses, and making numerous “wrong” findings on the evidence before his Honour – where the father alleges the Federal Magistrate failed to take into consideration weaknesses, errors and indications of bias in the family report – no merit found in any ground of appeal in relation to parenting issues – appeal in relation to parenting issues dismissed.        

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the Federal Magistrate made orders requiring the father to pay the mother the sum of $152,900 and for the mother to contemporaneously withdraw two caveats lodged over the father’s home – where the father alleged the Federal Magistrate erred by failing to take into account the evidence as to the mother’s pension and benefits when considering the income disparity of the parties – where the father alleged the Federal Magistrate erred in his refusal to take into account a property valuation procured by the father – where the father alleged the Federal Magistrate made “wrong” findings in relation to the father’s savings and loans from his sister – no merit found in any ground of appeal in relation to property settlement issues – appeal in relation to property settlement dismissed.

FAMILY LAW – APPEAL – COSTS – written submissions sought.

FAMILY LAW ─ APPEAL ─ PROCEDURE ─ Appeal against orders made by the Federal Magistrate summarily dismissing an application by the appellant in parenting proceedings ─ Whether the Federal Magistrate decided the summary dismissal application by reference to the substance of the principles governing such applications, and, whether, prior to doing so, her Honour sufficiently informed the appellant of the basis upon which she would decide the application to summarily dismiss his application ─ Where the Court rejected the challenge to the Federal Magistrate’s refusal to adjourn the proceedings as the appellant requested ─ Where the Court was not persuaded that the evidence before the Federal Magistrate necessarily established that the appellant’s application for variation of the existing parenting orders was necessarily doomed to fail, or was hopeless, although, the prospects of success appeared extremely limited ─ Where the Court reluctantly concluded that the substantive provisions of the test governing applications for summary dismissal, were not adequately conveyed to the appellant during the course of the hearing, or applied in the determination of the summary dismissal application ─ Where the Court was unable to accept that the proceedings could have had no other outcome ─ Where notwithstanding that the appellant’s own application, and evidence in support of it at trial, contributed materially to what this Court has found to be the Federal Magistrate’s error, the appeal was allowed, and the application for summary dismissal remitted to the Federal Magistrates Court for re-determination.

FAMILY LAW ─ APPEAL ─ COSTS ─ Costs certificates awarded to the parties with respect to the appeal, and the re-hearing of the summary dismissal application.

FAMILY LAW – APPEAL – Application in an appeal – where additional matter to be forwarded to expert witness.

FAMILY LAW – APPEAL – CHILDREN – where the trial judge was found not to have erred in refusing to accept the evidence of one expert as to whether the child was at risk of abuse when living with the father, when a number of other experts were of the opinion that the child was not at risk of abuse from the father – where the trial judge was found not to have erred in ordering that the mother’s time with the child to be supervised on an indefinite basis – appeal dismissed.

FAMILY LAW – APPEAL – Application for costs of discontinued appeal – Where the appellant discontinued an appeal at the procedural hearing one month after the filing of the notice of appeal – Where the nature of the appeal was against orders based essentially on the same facts as an earlier decision on the same issue which she had not sought to disturb – Where the merits of the discontinued appeal appeared very poor – Where the father had reasonably sought legal advice and prepared a security for costs application which was rendered unnecessary by the mother’s discontinuance – Where the material prepared for the security for costs application was applied in part to this application for costs – Application allowed – Costs fixed at $3,000.

FAMILY LAW – APPEAL – CHILDREN – where the appellant mother appealed against orders placing the children with the respondent father – where the appellant abandoned one ground of appeal in written submissions and a further ground was abandoned during oral submissions – where the remaining grounds of appeal related to weight – where the challenged findings of the Federal Magistrate do not fall outside the generous ambit within which disagreement is possible.

FAMILY LAW – APPEAL – Application to adduce further evidence – where the appellant sought to adduce further evidence – where the appellant had served an affidavit containing that evidence on the other parties – where, contrary to the Family Law Rules 2004, the appellant did not serve an application to adduce further evidence with that affidavit – where an application was served on the day of appeal hearing – where that application was not in the form prescribed by the Family Law Rules 2004 – where the evidence sought to be adduced was of a similar nature to that before the Federal Magistrate at first instance – application to adduce further evidence refused.

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Appeal against interim orders of Federal Magistrate made in parenting proceedings ─ Whether the Federal Magistrate gave excessive or impermissible weight to what he perceived to be the “child’s presumed attachment to the former matrimonial home” ─ Where it was clear beyond doubt from the transcript of the interlocutory hearing, and the reasons for judgment of the Federal Magistrate, that his Honour was acutely aware that the critical issue was whether the child should continue to spend substantially equal time with both parents, albeit in different homes, or spend more time with the mother in the home in which the child had spent most of his life ─ Where in the absence of any evidence establishing that the Federal Magistrate could not reasonably have afforded the weight he did to the factors which led to his conclusion, the challenges to the Federal Magistrate’s decision fail ─ Where the Court was not persuaded, either by reference to the terms of the Family Consultant’s memorandum, or the learned Federal Magistrate’s reasons for judgment, that his Honour materially mistook or misunderstood what the Family Consultant had said, or not said, in her memorandum ─ No Appealable error demonstrated ─ Appeal dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where given the hurdles to success of challenges, particularly in an interlocutory context where no evidence has been tested, or sought to be tested, the father was deemed to have persisted with his appeal notwithstanding that success with his appeal was problematic ─ Where the circumstances of this case justified the making of a costs order in favour of the mother.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant wife alleged errors in the balance sheet adopted by the Federal Magistrate and errors in the exercise of discretion – Where the alleged errors in the balance sheet were agreed to by the parties at the time of trial and therefore attributable to them – Where the respondent husband conceded some errors in the balance sheet – Where the errors do not infect the reasons for judgment or the substantive effect of the orders – Where no appealable error was established in the other grounds concerning the Federal Magistrate’s exercise of discretion – Appeal allowed in part to vary the Federal Magistrate’s orders to address errors in the balance sheet and provision for the sale of property as an alternative to cash payment – Appeal otherwise dismissed.

FAMILY LAW – APPEAL – COSTS – Where the errors leading to the appeal being allowed were conceded by the respondent early in the appeal proceedings – Where the appellant refused the respondent’s offer for settlement which was in the same terms as the orders made in the appeal varying the amount payable by the wife – Where the wife was otherwise wholly unsuccessful – Appellant wife to pay the respondent husband’s costs in the appeal from the time of the offer of settlement.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – where the Federal Magistrate erred in attributing a credit card debit of only $198 to the wife when the wife had conceded at trial that a total of $2,000 would have been for her benefit – where the Federal Magistrate erred in failing to take into account the husband’s contributions to the mortgage repayments post-separation – where the evidence is not clear as to how much the husband contributed to the mortgage repayments post-separation – where there is accordingly merit in two of the grounds of appeal – where the error identified in one of the grounds of appeal requires a reassessment of the respective contributions of the parties – where the matter is to be remitted with priority to the Federal Magistrates Court for a partial rehearing – appeal allowed in part.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the appellant seeks to adduce further evidence – where the respondent does not oppose the application – where the court has a discretion whether or not to receive the evidence – where it is not apparent how the fact that the parties had an ongoing financial relationship after separation demonstrates that the Federal Magistrate has erred – where there is no basis for admitting the further evidence – application dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where neither party was legally represented – no costs issues to be considered – no order for costs made.

FAMILY LAW – APPLICATION – COSTS – where the respondent seeks costs in the sum of $4,883 – where the appellant has failed to indicate his position in relation to the application but the tenor of his submissions suggest that he opposes the order sought – where the conduct of the proceedings by the appellant and his lack of success justify an order for costs being made – costs order made as sought by the respondent.

FAMILY LAW – APPEAL – Interim financial orders – Whether application for lump sum payment entertained solely because the payment was within the wife’s ultimate property entitlement – Whether sufficient circumstances existed for it to be appropriate to exercise power pursuant to s 79 and s 80(1)(h).

FAMILY LAW – APPEAL – Interim financial orders – Whether order for periodic payment directed to “property” – Future contingent interest in income from investments – Form of order made – Whether capable of being made pursuant to s 79 and s 80(1)(h).

FAMILY LAW ─ APPEAL ─ Challenge to the adequacy of the Federal Magistrate’s reasons for judgment ─ Where the issue which required determination fell within a very small compass ─ Where it is difficult to suggest what more the Federal Magistrate could have said, by way of revelation of his reasoning process, or have said in reliance upon the evidence which was before him ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL ─ Asserted denial of natural justice ─ Where, although the father did materially alter his position late in the proceedings, there was ample opportunity thereafter for Counsel for the mother to make submissions in relation to that issue ─ Where there was no testing of the evidence of either party or the Family Consultant at trial ─ Where nothing to which the Court was referred, or otherwise discovered from the transcript of the proceedings established that the mother was denied natural justice or procedural fairness ─ Where it is not only difficult to suggest how natural justice or procedural fairness was denied, but difficult to suggest how, if it was, anything would have been different if it had not been ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parenting arrangements ─ Best interests of child - Whether the Federal Magistrate’s decision was unsupported by the evidence before him ─ Where the Federal Magistrate was placed in the invidious position of having no expert opinion or other evidence upon which he could safely rely in determining the very narrow issue of best interests ─ Where no irrelevant or extraneous fact or circumstances was shown to have influenced the Federal Magistrate’s exercise of discretion ─ Not demonstrated that the Federal Magistrate failed to have regard to any relevant fact or circumstance ─ Appeal dismissed.

FAMILY LAW ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where the father did not seek an order for costs ─ Where the process which led to the determination of the proceedings carried with it the great risk that one party would feel aggrieved by the outcome ─ No order for costs made.

FAMILY LAW ─ APPEAL ─ PROPERY SETTLEMENT ─ Challenge to the jurisdiction of the Court to make orders for settlement of property ─ Where the thrust of the appellant’s challenges is that, if there is no “property” of the parties to the marriage or either of them, there can be no “matrimonial cause” and, accordingly, the jurisdiction to make orders with respect to the property of the parties to the marriage or either of them cannot be enlivened ─ Discussion of the authorities which discuss what constitutes “property” ─ Where the “property” in respect of which the learned Federal Magistrate made orders pursuant to s 79 was represented entirely by “notional” property ─ Where it is difficult to accept that jurisdiction was not limited to property then existing ─ Where the Court is satisfied by the submission currently before it that jurisdiction could not be enlivened in circumstances where the only “property of the parties” was “notional” ─ Where the submissions currently before the Court satisfy the Court that the “jurisdictional” challenges on behalf of the appellant would be entitled to succeed ─ Where the appeal involves a substantial issue of principle and where determining the appeal in the absence of an effective contradictor, may not be in the best interests of justice (see Tryon & Clutterbuck [2010] FamCAFC 80), and possibly erroneous ─ Where the broader interests of justice would be better served by allowing the respondent time to file further submissions, primarily in response to the Court’s preliminary conclusions in these reasons and the appellant having an opportunity to respond.

FAMILY LAW ─ APPEAL ─ PROPERY SETTLEMENT ─ Where the thrust of the “weight” challenges of the appellant is that the 30 per cent s 75(2) adjustment determined by the learned Federal Magistrate exceeded the generous ambit of the undoubtedly broad discretion which his Honour was exercising ─ Where the learned Federal Magistrate carefully, and in this Court’s view accurately considered each of the relevant s 75(2) factors ─ Where there was no error of principle or material errors of fact which vitiated the exercise of his Honour’s discretion ─ Where central to these challenges is the reality that none of the affidavit evidence of the appellant’s siblings was challenged in cross-examination, because neither sibling was required for cross-examination in relation to the evidence given by them ─ Where it is not manifestly obvious on the face of the affidavit evidence of either of the appellant’s siblings that their evidence was so obviously untrue or improbable that it could be rejected ─ Where a significant proportion of the notional property upon which his Honour relied was included because he did not accept the evidence of the husband or his siblings in relation to those events or transactions ─ Where on the submissions before the Court as they currently stand, the appellant would be entitled to succeed.

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parenting arrangements ─ Where the father complained that the Federal Magistrate erred in making orders that the mother be responsible for taking the children to counselling where there was evidence that she failed to continue taking the children to counselling as previously ordered ─ Where late in the hearing of the appeal, the Court was advised, by Counsel for the mother, that, notwithstanding that the orders for counselling made by the Federal Magistrate as a precursor to the father spending time with the children had not been implemented, the children had in fact for some time been spending time with the father pursuant to those orders ─  Where whatever the reasons for the counselling not occurring, the Federal Magistrate’s orders for the father to spend time with the children having, it seems uncontroversially, been implemented, the order for counselling, or orders that the mother be responsible for taking the children to such counselling, has no practical significance ─ Nothing to which the Court was referred demonstrated that any of the findings of fact recorded by the Federal Magistrate were not reasonably open to his Honour or the conclusions he reached on reliance upon them ─ Appeal dismissed.

FAMILY LAW ─ APPEAL ─ Application to adduce further evidence ─ Where none of the further evidence sought to be adduced upon by the father would, if accepted, demonstrate that the decision of the Federal Magistrate was erroneous ─ Further evidence application dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the father’s appeal was wholly unsuccessful and the prospects of success of the appeal were minimal ─ Where the father sought to resist an order for costs on the basis of financial circumstances ─ Where given the unmeritorious nature of the father’s appeal and application for leave to adduce further evidence the Court was inclined to make an order for costs in the mother’s favour ─ Where the circumstances also justified the making of costs order in favour of the Independent Children’s Lawyer.

FAMILY LAW ─ APPEAL ─ Where the appeal challenged only the weight which the trial Judge gave the matters taken into account in coming to his decision as to the relative percentage entitlements of the parties ─ no appealable error established.

FAMILY LAW – APPEAL – HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION – application for permanent stay – basis on which a permanent stay may be ordered – wrongful retention – jurisdiction to make a return order pursuant to Regulation 16(1) is enlivened by finding jurisdictional facts – nothing in the Regulations or the Convention suggests that an application for orders that asserts a date of wrongful retention which date is not accepted by the Court must be dismissed and a fresh application filed.

FAMILY LAW – APPEAL – HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION – ROLE OF CENTRAL AUTHORITY – Regulation 13(1)(b) requires that the Central Authority is satisfied that the “claim” provides an evidentiary foundation for each of the matters referred to in Regulation 13(1)(a) and the other matters which must be established so as to invoke the Convention – appeal allowed – order for a permanent stay dismissed.

FAMILY LAW ─ APPEAL ─ COURTS AND JUDGES ─ Disqualification ─ Appeal against the refusal of the Federal Magistrate to recuse himself from further hearing the part-heard parenting proceedings ─ Whether the Federal Magistrate erred in failing to find that a fair minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the questions he was required to decide ─ Where the Federal Magistrate clearly recognised, caution was needed in relation to matters with respect to which the evidence was incomplete and/or remained to be tested, in order to avoid giving rise to a reasonable apprehension of an absence of impartiality in relation to the part-heard trial of the proceedings ─ Where the Court found that the Federal Magistrate carefully, and, successfully avoided saying, or recording, anything in the nature of a pre-emptive or premature finding, conclusion, or intimation ─ Nothing to which this Court was referred established that the Federal Magistrate erred in declining to recuse himself from further hearing the part-heard parenting proceedings ─ Where the cumulative effect of the matters upon which the mother based her appeal did not satisfy either of the requirements which the High Court has consistently held to be applicable to recusal applications ─ Appeal dismissed.

FAMILY LAW ─ APPEAL ─ COURTS AND JUDGES ─ Waiver ─ Challenge to the Federal Magistrate’s conclusion that, even if the mother had made out a case for recusal, his Honour would have declined to do so on the basis that the mother waived her entitlement ─ Where the Court, having regard to the authorities, was not persuaded that the Federal Magistrate erred in concluding, as he did, that the mother had waived any claim that his Honour’s recusal was warranted.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where it was conceded on behalf of the mother that if the appeal was unsuccessful she could not resist an order for costs ─ Where the appeal was unsuccessful ─ Order for costs made in favour of the father with execution of order stayed until determination of the financial proceedings between the parties.

FAMILY LAW – APPEAL – CHILDREN – where the appellant husband relied on numerous grounds of appeal which were found to be without merit, save for a ground directed to an order restraining the husband from filing further applications until he complied with other orders – appeal allowed against that Order – Order set aside – written submissions for costs ordered

FAMILY LAW – APPEAL – PROPERTY – where the appellant husband relied on numerous grounds of appeal which were found to be without merit, save for a ground directed to an order  which required the husband to return to the wife a necklace and bracelet – appeal allowed against that Order – Order amended – written submissions for costs ordered

FAMILY LAW – APPEAL – NULLITY OF MARRIAGE – no appealable error established.

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Appeal against orders of Federal Magistrate dismissing appellant’s application for variation of parenting orders made on 4 May 2011 ─ Where the material put before the learned Federal Magistrate could not, even if accepted, have resulted in a different outcome to that which his Honour reached ─ No basis for appellate intervention demonstrated ─ Appeal dismissed.

FAMILY LAW – APPEAL – CHILDREN ─ international relocation.

FAMILY LAW ─ APPEAL ─ PRACTICE AND PROCEDURE ─ Appeal against interlocutory orders made by the trial Judge which allowed the husband to amend his Application for Final Orders during the course of the trial to seek orders for costs against the wife’s former solicitor and the former adversarial forensic accounting expert for the wife ─ Where there are no reported case of an application for costs being allowed to be brought against a non-party prior to the delivery of judgment in the proceedings in which the non-party had played a role ─ Where the Court followed the observations of Peter Smith J in the English authority of Phillips v Symes [2004] EWHC 2330 (Ch); [2005] 4 All ER 519 ─ Where the Court found that allowing the claim for costs against the wife’s former solicitor and the former adversarial forensic accounting expert for the wife to be made prior to the delivery of judgment in the substantive proceedings could serve no useful purpose, and had the very considerable, and realised, potential for mischief, particularly when the practice was sought to be defended upon the fallacious ground that the husband was only trying to do them a favour by giving them early notice ─ Where although the Court had no doubt that the trial Judge was motivated by natural justice concerns, allowing the husband to bring a claim for costs against the wife’s former solicitor and the former adversarial forensic accounting expert for the wife was erroneous ─ Applications for leave to appeal granted ─ Appeals allowed.

FAMILY LAW ─ APPEAL ─ PRACTICE AND PROCEDURE ─ Joinder ─ Whether the orders of the trial Judge joined the wife’s former solicitor and the former adversarial forensic accounting expert for the wife to the proceedings, and, if so, whether his Honour erred in doing so ─ Where although the trial Judge’s reasons for judgment may suggest otherwise, his Honour did not make an order joining either the wife’s former solicitor or the former adversarial forensic accounting expert for the wife as parties to the proceedings, nor was there an order for leave to intervene pursuant to s 92 of the Act.

FAMILY LAW ─ APPEAL ─ Appeal against interim orders of Federal Magistrate made in parenting proceedings ─ Where both parties sought orders that the father’s time with the children, on an interlocutory basis, be supervised ─ Where the dispute was whether, as the mother sought, more formal independent supervision should be ordered or, as the father sought, whether supervision should be by a member of the father’s family, and the frequency and duration of time the father spent with the children ─ Nothing to which the Court was referred demonstrated that his Honour was in error in accepting the evidence of the people who the father wanted as supervisors, or erred in finding that they were appropriate supervisors of the father’s time with the children ─ Where neither the learned Federal Magistrate’s reasons for judgment, nor anything said by his Honour during the course of the proceedings to which the Court was referred established that anything but the most tentative, and carefully guarded observations were recorded by the learned Federal Magistrate ─ Not demonstrated that the learned Federal Magistrate erred in any relevant sense ─ Appellate intervention not enlivened ─ Appeal dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where it was conceded on behalf of the mother that if the appeal was unsuccessful she could not resist an order for costs ─ Where the appeal was unsuccessful ─ Order for costs made in favour of the father with execution of order stayed until determination of the financial proceedings between the parties.

FAMILY LAW – APPEAL – PROPERTY – Large asset pool – Where trial judge made errors of fact in relation to child support – Whether errors material and whether errors vitiated exercise of discretion by trial Judge in s 75(2) adjustment.

FAMILY LAW – APPEAL – PROPERTY – Adequacy of reasons for the assessment of contribution-based entitlements at 75 per cent / 25 per cent in favour of the husband – Where divisible pool included assets of testamentary trusts and trial Judge found no contribution to those assets by the wife – Whether trial Judge obliged to further explain the extent to which this component affected the 25 per cent apportionment to the wife.

FAMILY LAW – APPEAL – PROPERTY – Whether errors in trial Judge’s determination of 15 per cent adjustment for s 75(2) factors – Whether error in failure to consider the effect of such adjustment in real money terms – Whether trial Judge’s s 75(2) adjustment went beyond the bounds of reasonable ambit of discretion.

FAMILY LAW – CROSS-APPEAL – Lack of evidentiary basis to deduct fixed amount for realisation costs in determining divisible pool – Orders to effect proportional sharing of capital gains tax or realisation costs.

FAMILY LAW – APPEAL AND CROSS-APPEAL – REHEARING – Where Appeal and Cross-Appeal allowed because of trial Judge’s failure to deal on the merits with child support departure proceedings as part of property proceedings – Where disputed issues of fact in those proceedings – other disputed issues of fact necessitating re-hearing.