Full Court (Appeals) Judgments

FAMILY LAW – APPEAL – PROPERTY – Whether the trial judge erred in including a loan and a discharge of a debt in the “main pool” of assets rather than including it in the “inheritance pool” of assets – No appealable error established.

FAMILY LAW – APPEAL – PROPERTY – Whether the trial judge erred in failing to properly consider the financial contributions of the appellant to the relationship from his inheritance – Appealable error established – Appeal allowed – Matter remitted for rehearing.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – where the appellant appeals property settlement orders made by a Federal Magistrate on 24 January 2012 – where the appellant says the Federal Magistrate did not give enough weight to her contributions and gave too much weight to the respondent’s contributions – where the appellant says that the Federal Magistrate was in error in taking into account contributions made by the respondent to the appellant’s three children from a previous relationship – where the appellant says the Federal Magistrate erred in determining that the inheritances introduced by the respondent “attracted” a loading of 5 per cent but then gave the respondent an additional 10 per cent of the net asset pool rather than 5 per cent – where there is no merit in any of the grounds of appeal – appeal dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent sought costs in the event that the appeal was dismissed – where the appellant opposed any order for costs being made on the basis of her financial circumstances – where the appeal was wholly unsuccessful and thus there are circumstances which justify an order for costs – appellant to pay the respondent’s costs of and incidental to the appeal as agreed or in default of agreement as assessed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – where the husband seeks that Strickland J disqualify himself from hearing any costs applications – where there is no basis for making the order sought – application dismissed.

FAMILY LAW – APPEAL – ORAL APPLICATION – ADJOURNMENT – where the husband seeks that the wife’s oral costs applications be adjourned until after all appeals on foot have been heard and determined – where there is no basis for such an order to be made – application dismissed.

FAMILY LAW – APPEAL – Appeal against dismissal of an application for the costs of an interlocutory application and the substantive proceedings – Where the wife asserts that the trial Judge failed to give reasons for dismissing her application for the costs of the interlocutory application – The trial Judge failed to give reasons in relation the costs of the interlocutory application albeit in circumstances where the wife’s submissions were confusing – Where the wife asserts that the trial Judge erred in taking into account comments about the wife’s conduct made by a Judicial Registrar – The trial Judge’s comments about the wife’s conduct have been misconstrued by the wife – The trial Judge’s reasons do not adequately explain why an order was not made against the husband for some of the costs of the substantive proceedings.

FAMILY LAW – RE-EXERCISE OF DISCRETION – The husband’s lack of success in the interlocutory application does not alone warrant a costs order against him – The issue involved in the interlocutory application was finely balanced – There is inadequate information to allow the Court to determine what order for costs to make in relation to the substantive proceedings arising out the husband’s non-disclosure – No order for costs made – Appeal therefore dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Application by the appellant for the expedition of the substantive appeal – The circumstances justify the expedition of the appeal – Application granted.

FAMILY LAW – APPLICATION IN AN APPEAL – Application by the appellant to adduce further evidence – The further evidence will be allowed in the stay appeal only.

FAMILY LAW – APPLICATION FOR LEAVE TO APPEAL – Application by the appellant for leave to appeal against an order refusing to grant a stay – The order dismissing the application for a stay was an “interlocutory decree” – Leave required – Leave granted on the basis that there is merit in the appeal and a refusal to grant leave would cause a substantial injustice.

FAMILY LAW – APPEAL – Appeal against an order refusing to grant a stay – Where the appellant submits that the appeal would be rendered nugatory if the stay was not granted – The trial Judge erred in failing to accept that the wife had not abandoned her application to retain the home as part of her settlement – Appeal allowed.

FAMILY LAW – RE-EXERCISE OF DISCRETION – The appeal would be rendered nugatory if the stay was not granted – The appeal cannot be said to be without merit and the appeal is bona fide – The appeal was filed promptly – The expedition of the appeal will lessen any prejudice – Stay granted.

FAMILY LAW – APPEAL – JURISDICTION – Whether a court in the exercise of original jurisdiction has jurisdiction under s 116 of the Child Support (Assessment) Act 1989 (Cth) to determine a remitted application – Where the finalisation of all other aspects of the proceedings meant there was no longer an “application pending in a court having jurisdiction under this Act” to satisfy the provisions of s 116 – Held that jurisdiction to make orders pursuant to s 116 of the Assessment Act continues from when the order is made until completion of the judicial process.

FAMILY LAW – APPEAL – CHILD SUPPORT ORDERS – Whether it was just and equitable to make a departure order from an administrative assessment with reference to s 117 of the Assessment Act – Where there were no findings made as to matters to which the court must be satisfied before making an order – APPEAL ALLOWED - Order set aside and the matter remitted for rehearing.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – where the appellant appeals an order appointing for her a case guardian – where the appellant alleges the trial judge erred in failing to consider certain evidence and in placing weight on evidence of her psychiatric health which was allegedly based on misinformation and errors – whether the trial judge erred – where no error demonstrated – where the appellant claims the trial judge failed to afford her procedural fairness – whether the appellant was denied procedural fairness – where ground not made out – appeal dismissed.

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders which provided for the child to live with the mother and the father’s time to be limited to supervised time on four occasions per year – Where the orders were not a result of any wrongdoing on the part of the father – Where the trial judge made orders in terms proposed by the Independent Children’s Lawyer and consented to by the mother – Where the litigation had spanned most of the child’s life, the parties were unable to cooperate and communicate and the mother was fixated on allegations of mistreatment of the child against the father – Whether the trial judge erred in making final orders – Whether the orders were in the child’s best interests – Where the father complained that the trial judge failed to deal with the alleged “root cause” of the ongoing litigation: the mother’s influence and behaviour in non-compliance with orders for the child to spend time with the father – Where the trial judge had regard to mother’s conduct and accepted that her non-compliant behaviour had been harmful to the child – Where the unchallenged evidence of the Court-appointed single expert was that the ongoing effects of the litigation far outweighed any supposed adverse effects of parenting, and that overall it was not in the child’s best interests to change the child’s residence to live with the father – Where the father did not seek or propose any orders before the trial judge like those he now seeks on appeal – Where in light of the expert evidence there was no utility in adopting orders which provided the parties with a further chance to attempt shared parenting arrangements – Where the real issue for the trial judge’s determination was what parenting orders would bring finality to the litigation and be in the best interests of the child – Where the trial judge properly considered each of the parties’ and the Independent Children’s Lawyer’s proposals, each of which had disadvantages, against these requirements – No appealable error established, appeal dismissed.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application to summarily dismiss appeal – Where the father appeals against final and interim parenting orders allowing relocation of the child and significantly reducing the father’s time with the child – Where the father’s notice of appeal is not formulated in terminology familiar to well-settled grounds of appeal – Where the father drafted the notice in good faith and is complying with procedural requirements to prosecute his appeal – Where the respondent mother’s application for dismissal is brought before the appellant’s summary of argument is due to be filed and before the time to file an amended notice of appeal without leave has expired – Where the Independent Children’s Lawyer opposes the application – Where there are reasonable prospects of success in the appeal having regard to the notice of appeal – Application dismissed and directions orders made requiring the father to file an amended notice of appeal and expediting the hearing of the appeal.

FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where the parties agreed that the appeal should be allowed, the orders set aside and the matter remitted for rehearing – Where both parties sought costs certificates in the appeal and the rehearing on the basis that the appeal is to be allowed because of an error of law on the part of the trial judge – Where the parties agreed the trial judge had erred in failing to afford either party procedural fairness having proceeded to consider matters which were not argued before him, or an opportunity to ventilate such matters on reasonable notice – Where having regard to the orders and supporting reasons for judgment in light of the parties’ written material the Court is satisfied the appeal is to be allowed on the basis of an error of law – Where the preconditions to the granting of a costs certificate as set out in Cramer v Davies (1997) 72 ALJR 146 and summarised in B & B (Costs Certificates) (2007) FLC 930-39 are satisfied – Application allowed.

FAMILY LAW – APPEAL - application in an appeal seeking provision of transcript at the Court’s expense or access to audio recordings of the trial at first instance.

FAMILY LAW – APPEAL – leave to appeal against orders dismissing the appellant father’s application that an order appointing the Independent Children’s Lawyer in the matter be discharged and another person appointed in her stead.

FAMILY LAW – APPEAL – PROCEDURE – Application to extend time to file Notice of Appeal – Where the husband seeks leave to appeal from a decision for property settlement proceedings to be heard undefended and orders dismissing a subsequent application for an adjournment – Where no order was drawn up or issued to the parties by the Court following the decision to list the matter to proceed undefended if the husband failed to appear at the next hearing – Where the wife’s solicitor informed the husband of the decision as required by the Federal Magistrate – Where the husband engaged solicitors who appeared on his behalf at the hearing – Where the solicitors for the husband made an oral application for an adjournment, which the Federal Magistrate refused – Where the delay in bringing the application for leave to appeal out of time is short and explained – Where the draft grounds of appeal raise real issues for consideration about procedural fairness in this case – Where there is significant prejudice to the wife, which may be partially compensated by an order for costs – Application allowed, husband to pay the wife’s costs of and incidental to the application.

FAMILY LAW – APPEAL – Procedural hearing – Where Rule 22.16 of the Family Law Rules 2004 requires the appellant or appellant’s lawyer to attend on the first procedural hearing –Where the mother did not appear – Where the mother’s non-appearance is deemed a non-compliance or delay of procedure – Whether the mother’s non-appearance warrants dismissal of the appeal under R 22.45 as a consequence of non-compliance

FAMILY LAW – APPEAL – Appeal allowed in part in order to remedy an obvious oversight in the orders made by the Federal Magistrate which was brought to the attention of the Full Court by the solicitor for the respondent wife – Appeal otherwise found to be entirely without merit

FAMILY LAW – APPEAL – Redetermination of the issue of the apportionment of a liquidator’s costs – Where the appellant husband did not make any submissions and the first and second interveners declined to make any submissions on the issue – Where the respondent wife submitted that an order should be made as to the apportionment of the liquidator’s costs in the same terms as that made by the trial judge 

FAMILY LAW – APPEAL – Application for Extension of time to file a Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where applicant only recently received orders against which he would appeal – Where prejudice to applicant would warrant extending time to appeal

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the applicant seeks to extend the time for him to file a Notice of Appeal against orders made by the Federal Magistrate (as he then was) on 3 August 2011 – where the application is opposed by the wife – where the orders made on 3 August 2011 were only to adjourn the matter, to require the parties to file submissions as to the orders to be made and costs – where there is no possible basis on which the husband could succeed in pursuing an appeal against the orders of 3 August 2011 – where the relevant orders for property settlement are those made by the Federal Magistrate on 23 November 2011 – where the husband has previously pursued an application to enable him to appeal against those orders and that application was dismissed – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – COSTS – where the respondent seeks costs – where the application is opposed by the applicant – applicant to pay the respondent’s costs of and incidental to the application as agreed and in default of agreement as assessed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – where the wife alleges conflict of interest and makes an oral application that the husband’s senior counsel be restrained from appearing on his behalf – where the wife initially withdrew her application then renewed it – where the wife has failed to provide any detailed evidence in support of her application – where the wife seeks an adjournment in order to file supporting material – adjournment granted.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT  – COSTS – where the husband seeks costs in relation to the application alleging conflict of interest and the adjournment – where the wife opposes any costs order – where it is appropriate to adjourn the question of costs in relation to the alleged conflict of interest application – where there are circumstances which justify an order being made for the costs of the adjournment – where the amount sought is reasonable – costs order made as sought.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Application for an extension of time to file an application for costs and application for costs – Where an extension of time was not opposed by the respondent – Where the costs issue for determination related only to the costs of submissions on the re-exercise of the trial judge’s discretion – Where the conduct of the respondent’s personal representatives and that the respondent was wholly unsuccessful were raised by the appellant – Where neither party had been wholly unsuccessful and each was entitled to conduct the litigation as they did – Where the appellant was afforded an opportunity to put before the Court the basis of the application for costs and failed to properly do so – Application allowed in part: extension of time to file an application for costs granted, application for costs dismissed.

FAMILY LAW – APPEAL – CHILDREN – where the appellant mother contends the trial Judge failed to place any or sufficient weight upon an “essay” filed by the appellant in accordance with an order of the trial Judge – where the central issue before the trial Judge was the appellant’s attitude towards the respondent father – where the trial Judge found that the appellant’s attitude was unshakeable and had not changed despite attempts at modification by the appellant – where the appellant contends that finding is inconsistent with the contents of the “essay” and other evidence before her Honour – whether the trial Judge failed to place sufficient weight on that evidence – where no error demonstrated – appeal dismissed.

FAMILY LAW – APPEAL – COSTS – where the appellant’s application for a stay of the parenting orders pending the appeal was dismissed – where the appellant was subsequently ordered to pay the respondent’s costs of the application for a stay – where further evidence tendered at the hearing of the appeal pursuant to s 93A of the Family Law Act 1975 (Cth) – where that evidence reveals the respondent has since been charged with “giving false evidence” – where that charge stems from evidence given in the stay application proceedings – consideration of CDJ v VAJ (1998) 197 CLR 172 – whether the trial Judge’s order for costs is erroneous in light of the further evidence – where costs order set aside and the issue of costs remitted for rehearing upon the conclusion of the criminal proceedings involving the respondent.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Provision of transcript – factors relevant in support of an application for the provision of transcript at the Court’s expense – whether there are merits in the grounds of appeal which justify the provision of transcript.

FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against the orders of a Federal Magistrate preventing her from establishing the child’s residence in Brisbane – Where the mother had already moved from Canberra to Brisbane – Where the Court held that the Federal Magistrate did not give the appropriate weight to the fact that the mother and child had lived in Brisbane for some time before the father commenced proceedings; that the extreme violence which had occurred would likely effect future dealings between the mother and the father; the uncertainty of housing arrangements for the mother in Canberra; the father’s lack of commitment to his child support obligations – Appeal allowed – Matter remitted for re-hearing – Certificates for costs granted.

FAMILY LAW – APPEAL – INDEPENDENT CHILDREN’S LAWYER – COSTS CERTIFICATES – where the Independent Children’s Lawyer made an oral application for costs certificates for both the appeal and any rehearing pursuant to sections 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – where orders were made for the Independent Children’s Lawyer to file any submissions in support of that application if it was to be pursued – where the Independent Children’s Lawyer has filed no submissions nor indicated whether or not the application is pursued – application dismissed.

FAMILY LAW – APPEAL ─ COSTS ─ Where the respondent had filed submissions as to costs but several searches of the Court file failed to reveal any submissions to have been filed on behalf of the appellant in opposition to the respondent’s costs application ─ Where the appeal was wholly unsuccessful ─Where the respondent was put to expense in resisting the appeal and ought not be denied the opportunity to seek to recover that expense ─ Where the Court was of the opinion that the circumstances justified the making of a costs order against the appellant ─ Where the Court ordered that the appellant pay the respondent’s costs of and incidental to the appeal as agreed or assessed on a party and party basis ─ Where as a matter of natural justice, the Court afforded the appellant one last opportunity to make submissions in opposition to the awarding of costs to the respondent and hence stayed the order for costs against the appellant for 28 days

FAMILY LAW – APPEAL – CHILDREN – where the Federal Magistrate made orders providing for the child to live with the mother and spend time with the father and for the mother to have sole parental responsibility in relation to the child’s education and psychological testing, with the parties to consult each other in relation to other issues of parental responsibility – where no merit was found in the father’s various complaints as to the Federal Magistrate’s use, acceptance and weighing of evidence in relation to both parties’ credit, the mother’s mental health, both parties’ insight as to the needs of the child, and specific incidents involving the mother’s behaviour and the child’s welfare – where the Federal Magistrate failed to give any reasons at all for making order 16, which provided for the mother’s treating psychiatrist or psychologist to determine when the mother was temporarily too ill to care for the child, and that at such times the child stay with his maternal grandmother or his half-sister’s paternal grandmother until the mother’s treating professional determined she was sufficiently well to resume care of the child – appeal allowed in part and the issue of what parenting orders should be put in place for the child’s care in the event the mother’s treating psychiatrist determines she is too ill to care for the child be remitted to the Federal Magistrates Court (now known as the Federal Circuit Court).  

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the Federal Magistrate made orders providing, inter alia, for the father to pay the mother the sum of $124,493 (order 21) – where the Federal Magistrate failed to make findings of fact, and failed to provide reasons for his conclusions in relation to the respective contributions of the parties, the s 90SF(3) factors, the justice and equitable requirement in s 90SM(3) and, to some extent, the net asset pool – appeal allowed in part and proceedings for property settlement remitted to the Federal Magistrates Court (now known as the Federal Circuit Court).

FAMILY LAW – APPEAL – EXPERT WITNESS’ COSTS – where the Federal Magistrate dismissed the father’s application to have the expert witness’ costs shared equally between the parties and the Independent Children’s Lawyer (order 24) – where the father’s counsel at trial conceded the father should bear the costs of the expert’s cancellation fee and subsequent attendance, and the Federal Magistrate dealt comprehensively in his reasons with the issue of those costs before dismissing the father’s application – no merit found in these grounds of appeal. 

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – application dismissed.

FAMILY LAW – APPEAL – COSTS – where instead of seeking written submissions on costs, the parties be at liberty to make any application that they wish to in relation to costs in accordance with r 22.53 of the Family Law Rules 2004 (Cth).

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Held two appeals against property settlement orders and subsequent costs orders were without merit – Appeals dismissed

FAMILY LAW – APPEAL – CHILDREN – Self represented litigant – No recourse to transcript of trial proceedings in argument on appeal – 13 challenges to trial judge’s decision including a complaint of bias on the part of the trial judge – Held appeal was without merit – Appeal dismissed – No order as to costs. 

FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made an order purportedly pursuant to Division 12A of the Family Law Act 1975 (Cth) restraining by injunction each of the parties from commencing any parenting or enforcement proceedings without the leave of the court – Appealable error established – Held Division 12A does not empower the court to make such an order – Appeal allowed to that limited extent.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant father sought to adduce further evidence – Held documents which were the subject of the application, if admitted, would not have shown error or led to a different result – Application dismissed.

FAMILY LAW - APPEAL – NOTICE OF APPEAL – where there is no merit in the appeal – where the Federal Magistrate (as he then was) correctly determined to dismiss the father’s application alleging contravention for lack of particulars – where his Honour was correct in making a costs order in the mother’s favour – where no error by his Honour is established – appeal dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the appellant seeks costs for today’s hearing – where there is no merit in the application – application dismissed.

FAMILY LAW – APPEAL – CHILDREN – Where the mother appealed against an order which required the cost of travel for the children to spend time with the father should be borne equally between the parties – Where the mother had previously been permitted to relocate from Canberra to Cairns – Where it was held that, given the father’s much superior financial position, the Federal Magistrate should have provided a clear explanation in his reasons ordering that the cost of travel be borne equally – Appeal allowed – Matter re-determined.

FAMILY LAW – APPEAL ─ COSTS ─ Where each party sought a costs certificate with respect to the appeal ─  Where the appeal succeeded on an issue of principle ─ Where the Court was not of the opinion that any order for costs should be made inter partes ─ Where the Court was satisfied that it was appropriate to grant costs certificates to each party ─ Each party granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the costs of the appeal

FAMILY LAW – APPEAL – CHILDREN – where the mother appeals orders placing the child in the care of the paternal great aunt – where the mother claims the Federal Magistrate erred in not giving the fact of parenthood primacy – whether the Federal Magistrate erred – where it is the quality of parenting rather than the fact of parenthood that is relevant to a determination of best interests – where the mother also claims a failure on the part of the Federal Magistrate to provide adequate reasons – whether the reasons were inadequate – where the mother also claimed that the Federal Magistrate failed to consider alternative orders – where no such orders were proposed at the hearing before the Federal Magistrate – where no error demonstrated – appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where a former solicitor for a respondent mother in parenting proceedings appeals against an order for costs made personally against him – Where the order against the solicitor was made in the context of an application for costs by the applicant father against the solicitor’s client (the respondent mother) – Where the costs sought by the father were significant – Where no material on behalf of the mother was formally filed in response to the application, though the solicitor remained on the record and directions had been made for the filing of submissions – Where the Federal Magistrate called the matter on out of concern for the mother not being heard in the application, and the solicitor’s conduct in not filing any material – Where the Federal Magistrate ordered the mother file and serve any evidence and submissions on costs and adjourned the matter – Where though no order was made, it is apparent from the transcript of proceedings the Federal Magistrate required the solicitor to file an affidavit explaining his conduct, and from the reasons for judgment that he was put on notice of the Federal Magistrate’s consideration of a referral to the Legal Services Commission – Where the solicitor subsequently filed submissions, not sworn affidavit evidence, on behalf of both himself and the mother – Where the solicitor then filed a Notice of Withdrawal as a lawyer and did not attend at the adjourned hearing – Where the solicitor’s argument on appeal that client privilege and conflict prevented him from filing material explaining his conduct is disingenuous in the circumstances – Where the Federal Magistrate gave the solicitor proper notice of his intention to consider making an order for costs against him personally, afforded him an opportunity to file material and to appear, and carefully explained in reasons for judgment why the order was made – Appeal dismissed.

FAMILY LAW – COSTS – Where the appellant solicitor did not resist the respondent father’s application for costs – Where an order for costs is justified by the appellant being wholly unsuccessfully – Costs ordered as agreed or failing agreement as assessed.

FAMILY LAW – APPEAL – Application to reinstate appeal – Where the appeal was deemed abandoned when the appellant mother failed to file a draft appeal index in time – Where the period of delay is relatively short and other related proceedings were on foot at the time the index was due to be filed – Where there are genuine and serious issues for determination raised by the mother’s notice of appeal – Where the prejudice to the father in allowing the reinstatement can be remedied in part by an order for costs should the mother’s appeal be dismissed – Where the draft appeal index is on the Court file ready for formal filing – Application allowed.

FAMILY LAW – APPEAL – PROPERTY – appeal from orders for property settlement – where final orders made for property settlement following a determination by the Full Court that a financial agreement was not binding – where a significant matter for determination was whether or not there was an agreement between the husband and his siblings the effect of which was that the husband held 85 per cent of two real properties forming the bulk of the property pool on trust for his siblings – where the trial Judge rejected that contention – where the husband appeals that finding – where the husband also contends that the trial Judge made various errors of fact – whether the trial Judge did err – where many of the challenges made by the husband are challenges to weight, rather than challenges to findings of fact – where the findings challenged were open to the trial Judge – where no error demonstrated – appeal dismissed – husband ordered to pay the wife’s costs.

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – TRUSTS – THIRD PARTIES – Where the husband, the wife and their three children were specified beneficiaries of a discretionary trust – Where the husband’s mother was a general beneficiary of the discretionary trust – Where the trial judge found that the husband’s mother was the controller of the trust – Where because there was no Appointor or Guardian of the trust, the trial judge found that the specified beneficiaries had a “fixed and irrevocable entitlement to a share of capital upon a vesting of the trust” –Where the trial judge ordered that the vesting date of the trust be brought forward and the trust fund be distributed between the five specified beneficiaries – Where the trial judge ordered that a payment of $338,000 be made to the mother upon the vesting of the trust to satisfy her future entitlements under the trust (if the trust was not to vest) – On appeal by the husband’s mother and other third parties the Full Court held that the entitlement of the husband and the wife to share in the trust fund on vesting was property for the purposes of s 79 of the Act and, adopting the submission of the intervening Commonwealth Attorney-General, that Part VIIIAA of the Family Law Act 1975 (Cth) can be used to require a trustee (including a third party trustee) to bring forward the vesting date of a trust fund in order to value and distribute an irrevocable entitlement to share in a trust fund and that the powers under Part VIIIAA can be validly exercised at the expense of third party interests provided the requirements in ss 90AE(3) and (4) and ss 90AF(3) and (4) are met, and the order, if made under s79, is “just and equitable”, or “proper” if made under s 114 – Where the Full Court found that such statutory requirements had not been met – Appeal allowed.

FAMILY LAW – APPEAL – Leave to appeal against dismissal of ex parte application seeking leave to institute proceedings – Where the foreshadowed application sought to discharge parenting orders and the trial Judge found there was no new evidence or a change of circumstances – Where the trial Judge found the foreshadowed contempt application had no prospect of success – Trial Judge applied correct legal principles to the evidence – No error – Application for leave to appeal dismissed.

FAMILY LAW – APPEAL – Application in an appeal for transfer of the proceedings to the High Court – No power – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION TO FILE NOTICE OF APPEAL OUT OF TIME – where the appellant seeks to appeal final parenting orders made by Federal Magistrate in chambers – where reasons for judgment were received after the appellant’s application was filed – where the appellant did not provide an adequate explanation for the delay in filing the notice of appeal – where the respondent can point to no prejudice if the application is granted which could not otherwise be remedied by an order for costs – where the primary appeal grounds relate to an alleged lack of procedural fairness in the manner in which the final orders were made – whether the application ought be granted – application granted – appellant ordered to pay the respondent’s costs of and incidental to the application.

FAMILY LAW – APPEAL – PROCEDURE – REVIEW OF REGIONAL APPEAL REGISTRAR’S ORDER – Application for review of Regional Appeal Registrar’s order – where the Family Law Rules 2004 (Cth) (“the Rules”) provide for review of a Regional Appeal Registrar’s order by a judge of the Appeal Division – where the Rules do not specify the manner in which such a review is to occur – where review conducted as a hearing de novo.

FAMILY LAW – APPEAL – APPLICATION FOR EXTENSION OF TIME TO FILE APPEAL BOOKS – where the appellant applies for an extension of the time within which to file his appeal books – where neither respondent opposes the application – where the appellant contends that he will be able to obtain the funds necessary to prepare the appeal books – whether the application should be granted – whether the respondent and/or Independent Children’s Lawyer would be prejudiced – where no prejudice alleged in circumstances where the application is not opposed – application granted subject to order deeming appeal abandoned if appellant fails to file appeal books by specified date.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the husband seeks an extension of time to file an appeal against orders made on 6 December 2012 – where the husband failed to attend the hearing – where there is no utility in the appeal given that the property the subject of the application has been sold – appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the wife’s solicitors on behalf of the wife seek costs in the sum of $660 – where there are circumstances justifying an order for costs being made – costs order made as sought by the wife.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the wife’s appeal was “wholly unsuccessful” ─ Where the wife’s resistance to the husband’s application for costs was focussed primarily on the husband’s earning capacity being significantly greater than that of the wife ─ Where it was submitted on the husband’s behalf that his stronger financial position ought not disincline the Court to form the opinion that the circumstances justified a costs order being made in his favour ─ Where the Court was of the opinion that the circumstances justified making an order for costs in favour of the husband ─ Appellant wife ordered to pay the respondent husband’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

FAMILY LAW ─ APPEAL ─ ADJOURNMENT ─ Where the appellant had on previous occasions been granted an adjournment to enable him to obtain legal representation and had failed to do so ─Application dismissed.

FAMILY LAW ─ APPEAL ─ Appeal against the refusal of the trial Judge to stay orders ─ Where there were no prospects of success of the appeal ─ Where there was no evidence that the appellant could prosecute his appeal in a timely fashion ─ Where there was delay and prejudice to the respondent ─Appeal dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal against the refusal of the trial Judge to stay orders was wholly unsuccessful ─ Appellant ordered to pay the respondent’s costs of and incidental to the said appeal.

FAMILY LAW – APPEAL – CHILDREN – Parental responsibility and best interests of a child – where the Federal Magistrate made orders for the father to have sole parental responsibility and for the child to live with the father and spend time with her maternal aunt and grandmother – where the father argued on appeal that a natural parent with sole parental responsibility must have primacy when the Court is considering making other parenting orders – where the Full Court found there are no presumptions or preferential positions that apply as between parent and non-parent, and that an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely according to its own facts and having regard to the bests interests of the child as a paramount consideration – where the Federal Magistrate was well aware the father was the sole surviving parent and that the respondents were non-parents and no fault was found with how his Honour approached the decision making process – no merit found in this ground of appeal.       

FAMILY LAW – APPEAL – CHILDREN – Overseas travel – where the Federal Magistrate refused to make the order sought by the father pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) and instead made orders restraining all parties from taking the child outside of Australia and requesting that the child’s name be placed on the Airport Watch List/PACE Alert system – where the father argued on appeal that the Federal Magistrate erred by finding the father’s proposed order would entail the “delegation of judicial power to a party or non-judicial officer” and that the Federal Magistrate failed to address the evidence and make factual findings as to what orders should be made in the best interests of the child – merit found in this ground of appeal – the issue of orders to be made in respect of overseas travel remitted to the Federal Magistrates Court for rehearing.

FAMILY LAW – APPEAL – CHILDREN – APPEAL FROM FEDERAL MAGISTRATES COURT – Where the father appeals an interim decision the effect of which was that the parties’ two small children remain living with the mother in a different state pending trial – where the father contends the Federal Magistrate failed to apply the principles contained in s 67ZBB – whether the Federal Magistrate erred – consideration of s 67ZBB – where the Federal Magistrate did not err. 

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – STAY – where the husband seeks a stay of orders made on 31 January 2013 pending determination of special leave applications to the High Court – where the wife opposes the application – where the applicant has not laid out any basis for the stay to be granted – where on a preliminary assessment the applications have no chance of success – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the oral application for costs made on behalf of the wife on 31 January 2013 is further adjourned – where the wife seeks costs in relation to the orders made today – application adjourned.

FAMILY LAW – APPEAL – CHILDREN – Appointment of Single Expert.

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – with whom a child lives – with whom a child spends time – where the Federal Magistrate delivered ex tempore Reasons and then sought orders from the parties reflecting those Reasons – where the orders forwarded by the respondent mother formed the bulk of the final orders – where the orders provided by each party were not served on the other – where several orders do not reflect the Reasons – where the appellant father alleges a denial of procedural fairness – whether the appellant father was denied procedural fairness – where the orders made did not reflect the Reasons – appeal allowed and parenting proceedings remitted.

FAMILY LAW – APPEAL – Application to amend grounds of appeal – where counsel for the appellant father sought to amend the grounds of appeal during the hearing of the appeal – where the respondent mother was self-represented – where the respondent mother was not provided with any notice of the proposed amendments prior to the hearing – whether leave should be granted to amend the grounds of appeal – where the respondent mother is prejudiced by the late application – application refused.

FAMILY LAW – APPEAL – CHILDREN – where mother appeals from orders of trial Judge placing the child in the father’s care – where the trial Judge made an order that the father have sole parental responsibility for the child – where the trial Judge did not address the presumption contained in s 61DA of the Family Law Act 1975 (Cth) – where the reasons are insufficient to infer that the trial Judge had regard to the mandatory presumptions and considerations contained in Part VII regarding parental responsibility – where the trial Judge referred to the Full Court decision of Rosa & Rosa [2009] FamCAFC 81 but did not refer to the High Court decision of MRR v GR  (2010) 240 CLR 461 which overturned the Full Court decision – whether his Honour erred in law – where his Honour erred by failing to address the presumption contained in s 61DA and erred in applying the Full Court decision in Rosa without having regard to the principles contained in the High Court decision which overturned it.