Includes appeals from family law decisions made by federal magistrates (may be heard by a single Family Court judge or by the Full Court) and from decisions of single judges in the Family Court (heard by three or more judges).
Recent judgments of the Family Court of Australia are published on this website for two months only. All judgments from 2007 onwards and selected judgments from 1998-2006 are published permanently on the AustLII web site.
Judgments published on this website are anonymised by substituting pseudonyms for party names to protect the identity of parties.
Note: Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case. A breach of the section is a criminal offence. The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.
FAMILY LAW – APPEAL – CHILDREN – FINAL OR INTERLOCUTORY ORDERS – Whether the appealed orders were final or interlocutory – Where primary judge adopted procedure referrable to applications for interim orders and described the orders as interim – Licul v Corney (1976) 180 CLR 213 applied – Whether the judgment or order finally disposes of the rights of the parties in the principal case – Where the test is concerned with the legal rather than the practical effect of the judgment – Where the application of the test rests on the nature of the order made and not the nature of the application made to the court – Where it was conceded that the order under challenge could be reversed at the final hearing – HELD – Orders made were interlocutory.
FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the mother knew the date of the hearing and the date to file her affidavit material and did not do so – Where the mother did not attend the hearing – Where procedural fairness requires no more than the opportunity to be heard – Where his Honour was entitled to rely on untested evidence in circumstances where it was an interim hearing and the mother did not file any evidence to cast doubt on the evidence relied on – HELD – No denial of procedural fairness – APPEAL DISMISSED.
FAMILY LAW – APPLICATION IN AN APPEAL - Application to file a notice of appeal out of time – Where leave was granted to file a notice of discontinuance at the commencement of the hearing – Application dismissed.
FAMILY LAW – COSTS - Where the respondent made application for costs – Where the respondent had only been informed that the applicant was not pursuing the application the day before the hearing – Where the proposed appeal had no merits and the application would not have been granted – Where the respondent is in receipt of a grant of legal aid – Where the public purse has been put to expense in responding to the application – Application allowed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to file a notice of appeal from an interim parenting decision of a Federal Circuit Court judge out of time – Where the delay is adequately explained – Where the applicant makes allegations about the respondent misleading the court - Where the appeal, if allowed, would be unmeritorious and of no utility – Application refused.
FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Where the appellant mother alleged a risk of child sexual abuse and the Federal Circuit Judge did not suspend interim orders allowing the respondent father to spend unsupervised time with the child, but transferred the proceedings to the Family Court – Whether the Judge erred by failing to act on evidence that was “not far-fetched, fanciful or remote” – Whether the Judge erred by relying on evidence other than that of an expert – Whether the Judge placed excessive weight on inconsistencies in the evidence – Appeal dismissed – Submissions to be filed in relation to costs.
FAMILY LAW – APPEAL – CONTRAVENTION – Where the respondent father brought contravention proceedings in relation to orders that allowed him to spend unsupervised time with the child – Where the Judge found that the mother did not have a reasonable excuse for breaching the orders and required the mother to enter into a bond to comply – Whether the Judge erred by relying on the reasons delivered in the substantive proceedings – Appeal dismissed – Submissions to be filed in relation to costs.
FAMILY LAW – APPEAL – PROPERTY – PROCEDURAL FAIRNESS – Where the appellant husband submitted that the trial judge adopted a different course from that discussed at trial – Where the trial judge adopted a single pool approach including the parties’ assets and superannuation interests when both parties submitted a two pool approach would be appropriate in the circumstances and despite the concurrence of the trial judge with this approach during the trial – Where the respondent wife sought at trial 50 per cent of the superannuation assets of the parties and the appellant husband proposed that the wife receive 45 per cent, the trial judge determined that the respondent wife should receive 65 per cent of all assets including superannuation – Where the parties at trial were in agreement that any periodic spouse maintenance order should be confined to two years – Where the trial judge’s orders required payment of periodic spouse maintenance for five years – Where the parties were not given any opportunity to be heard on the adoption of a single asset pool, on the percentage division of the superannuation assets or the duration of periodic spouse maintenance – Where the result was manifestly unjust to the appellant husband – Appeal allowed.
FAMILY LAW APPEAL – COSTS – Where the appeal succeeded on a relatively narrow question of law which should have been apparent to the parties – Where the appellant husband needed to articulate concise grounds of appeal – Where the success of the appeal on an obvious point warrants the payment of some costs by the respondent wife to the appellant husband – Where the appellant should not receive all costs because of the needless expense incurred by the respondent wife in addressing grounds of appeal not pursued – Respondent wife to pay one-half of the appellant husband’s costs of the appeal – Costs certificates granted to the parties for the re-hearing.
FAMILY LAW – APPEAL – INTERIM PROPERTY ORDERS – Where the trial judge made an order providing for a lump sum payment to the wife – Where appellant complained that the terms of the order did not disclose the source of power being relied on by the trial judge to make that order, i.e. whether it was an order for costs, interim property settlement or child maintenance – Where the appellant also appealed on the basis that the trial judge did not provide any published reasons for the orders – Where the respondent conceded that the appeal should be allowed – Appeal allowed – Where the Full Court re-exercised the discretion and made orders for interim property settlement pursuant to ss 79 and 80(1)(h) of the Family Law Act 1975 (Cth) – Costs certificates granted.
FAMILY LAW – APPEAL – CHILDREN – PRACTICE AND PROCEDURE – where the appellant father sought at trial to vary final parenting orders – where the father challenges on appeal the trial Judge’s application of the “rule in Rice v Asplund” – where the father contends the trial Judge erroneously confined herself in the manner in which she dealt with the father’s application for a variation of parenting orders – consideration of the “rule in Rice v Asplund” – whether the trial Judge erred – where nothing to indicate the trial Judge’s discretion miscarried – no error demonstrated – father ordered to pay the mother’s costs of the appeal.
FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the Magistrate made orders preventing the mother from relocating the child’s residence from Perth to a town in the Pilbara – Whether it is appropriate for a judicial officer to provide a preliminary view before trial – Whether it is necessary for expert evidence to be provided before a judicial officer can make a finding about the likely effect of a relocation – Where the mother said during cross-examination she would remain in Perth if relocation was refused and where the Magistrate erred by proceeding on the basis that this was a proposal – Where the Magistrate erred by focussing on the maintenance of a meaningful relationship with both parents at the expense of a proper consideration of all other relevant factors – Where the Magistrate gave insufficient attention to the impact on the mother’s new family of the relocation being refused – Where the Full Court was satisfied that the Magistrate erred by failing to carry out a proper evaluation of the competing proposals – Appeal allowed – Matter remitted for rehearing – Costs certificates granted to both parties for the appeal and the rehearing.
FAMILY LAW – APPEAL – PROPERTY – ADEQUACY OF REASONS – Where the appellant husband submits that the Federal Magistrate’s reasons were inadequate – Where the Federal Magistrate refused to “add back” an amount of $50,000 into the asset pool for a personal loan – Where the Federal Magistrate disregarded that the respondent wife had apparent sole use of the loan – Where no weight was given to a purported loan agreement between the parties – Where the Federal Magistrate’s reasons do not support the conclusion reached in relation to the property to which the percentage distribution (arrived at on the basis of contributions and s 75(2) factors) was to be applied – Appeal allowed.
FAMILY LAW – APPEAL – COSTS – Where no order for costs made - Where the appeal has succeeded on a point of law – Both parties to receive certificates for the appeal and rehearing.
FAMILY LAW – APPEAL – PROPERTY – Where there was a property overseas – where the husband did not disclose this property – where the valuation of this property was not clear – where the husband and the wife had two businesses – where there were tax implications of those assets.
FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – with whom a child spends time – where the effect of the orders was the father spent less time with the children – whether spending less time with the children was an error which was “plainly wrong” – Whether the finding was open to the magistrate – where there was nothing “plainly wrong” about the finding – where the finding was open to the Magistrate.
FAMILY LAW – APPEAL – CHILDREN – Child related proceedings – Evidence – where a trial judge is not required to advert to every piece of evidence or submission – where the report writer’s evidence was that the children were sensitive – where there is no error.
FAMILY LAW – APPEAL – Delay and/or prejudice – Whether delay in delivery of judgment has made the decision unsafe or contributed to error – where the delay in delivery of judgment has not made the decision unsafe or contributed to error.
FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – where the appellant is ordered to pay the respondent’s costs.
FAMILY LAW – APPEAL – CHILDREN – Relocation – where a child lives – best interests of a child – reasonably practicable – where the mother unilaterally relocated – where the father was not told the mother relocated until just before a contravention hearing – where the court was not told the mother relocated until a directions hearing before a contravention hearing – where the trial came from a contravention application - whether the trial judge followed the “legislative pathway”.
FAMILY LAW – EVIDENCE – Admissibility – where the mother was self-represented at trial – where the mother gave evidence about legal advice – whether the trial judge should have given the mother a warning.
FAMILY LAW – EVIDENCE – whether the trial judge should have called a witness – whether the trial judge should have instructed the mother to call the maternal grandfather - whether the trial judge drew an adverse inference - Jones v Dunkel.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing to allow the child’s general practitioner to give oral evidence or file affidavit material – Where the potential for the general practitioner to give evidence was raised in a directions hearing but not further pursued – Where extracts of the general practitioner’s clinical notes were subpoenaed and tendered into evidence – Where the trial judge was not informed of the nature and substance of the proposed evidence – Where the proposed evidence is inadmissible or could not be accorded significant weight – Application refused.
FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing to allow the child’s psychologist to give oral evidence or file affidavit material – Where the potential for the psychologist to give evidence was raised in a directions hearing but not further pursued – Where extracts of the psychologist’s clinical notes were subpoenaed and tendered into evidence – Where the trial judge was not informed of the nature and substance of the proposed evidence – Where the affidavit sought to be relied upon contains unjustified opinions that the dependent may be unqualified to give – Application refused.
FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing allow the child’s childcare worker to file affidavit material – Where the childcare worker reported a conversation she had with the child to the Department of Community Services – Where the evidence is almost wholly inadmissible – Application refused.
FAMILY LAW – APPEAL – CHILDREN – ALLEGATIONS OF SEXUAL ABUSE – Where the mother’s belief that the child had been sexually abused whilst in the father’s care was found to be honestly but not reasonably held by the trial judge – Where the child had been medically examined on more than one occasion – Whether this aspect of the evidence invited evaluation of the child’s representations – Whether the child’s representations were true or false – Where the trial judge made a conclusion about the veracity of the child’s representations – Whether evidence is in fact directly contradictory to the trial findings was not addressed in the argument – Appeal dismissed.
FAMILY LAW – APPEAL – CONTRAVENTION – Interlocutory parenting proceedings – Where one party unilaterally relocated –Where there was a contravention – Whether there was reasonable excuse – Where the primary judge found there was limited evidence – Where there was no evidence of persuasive error.
FAMILY LAW – APPEAL – CHILDREN – Family violence – Whether the trial judge erred in making an order for equal shared parental responsibility – Whether equal shared parental responsibility was inapplicable because of domestic violence – Where no submission was made to the trial judge about equal shared parental responsibility – Where equal shared parental responsibility is not inapplicable.
FAMILY LAW – APPEAL – EVIDENCE – Whether the trial judge placed too much weight on the father’s evidence – Where the mother raised questions about the father’s bona fides in a property transaction – Where the issue before the primary judge related to the mother’s evidence – Where there was no error.
FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the appeal was allowed by consent in circumstances where the parties agreed that the trial judge’s orders were manifestly unjust – where the circumstances were appropriate for the grant of costs certificates to the parties in relation to the costs of the appeal and the new trial.
FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the appellant seeks a further adjournment to file an amended Notice of Appeal containing proper grounds of appeal – where the adjournment is opposed – where the ground of appeal set out in the Notice of Appeal does not raise any appealable error of fact or law by the trial judge – where the oral application of the appellant for a further adjournment is dismissed – where the appeal is groundless – appeal struck out.
FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks costs for the work involved in responding to the appeal and for the appearance of counsel and solicitor today – where the appellant opposes any order for costs – wife’s costs to be paid by the husband as agreed or in default of agreement as assessed.
FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – where the husband appeals final property settlement orders – where the appeal is opposed by the wife – where as a result of findings on contribution the Federal Magistrate determined that the property of the parties be divided as to 75 per cent to the wife and 25 per cent to the husband – where the husband asserts that the Federal Magistrate’s assessment of his contributions was manifestly inadequate – where the principal challenge appears to be that the Federal Magistrate’s reasons for her finding on contributions were inadequate – where there is a wide discretion reposed in the court pursuant to s 79 of the Family Law Act 1975 (Cth) – where the wife says the complaint can only be as to weight – where it is not apparent from the findings how the Federal Magistrate arrived at the percentage division that she did – where the Federal Magistrate erred – appeal allowed.
FAMILY LAW – APPEAL – NOTICE OF APPEAL – REMIT OR RE-EXERCISE DISCRETION – where there is a need for further evidence which may be controversial – where the Appeal Court is not equipped to hear cross-examination and to determine disputed issues of fact – where if the Appeal Court re-exercised the discretion the only avenue of appeal open to the parties would be to seek special leave to appeal to the High Court of Australia – where the appropriate course is to remit the proceedings to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Baker – proceedings remitted for rehearing.
FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where both parties seeks costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where the appeal has been allowed on a question of law and there is no order for costs – costs certificates granted to the parties as sought.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is no satisfactory explanation provided by the applicant for failing to file the appeal within time or for failing to file the application expeditiously – where the appeal has no merit and is doomed to fail – where there is prejudice to both parties depending on the result – where the justice of the case requires the refusal of the application – application dismissed.
FAMILY LAW - APPEAL – COSTS CERTIFICATES – Where the parties agreed that the appeal should be allowed and the orders set aside – Where both parties sought costs certificates in the federal appeal – Where the trial judge had made errors of law – Where the appeal had been heard in the necessary sense – Application allowed.
FAMILY LAW – APPEAL – Application in an Appeal – Where the mother sought an extension of time to file an appeal and expedition of the appeal – Where the evidence established an acceptable explanation for the mother’s failure to file a notice of appeal on time – Where the issues on appeal, if successful, could enable the court to set aside the orders – HELD – Appeal granted.
FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against interim parenting orders that the child spend week about time with the mother and the father.
FAMILY LAW – APPEAL – Where the wife appealed against a dismissal of her application to revoke the approval of a Deed pursuant to s 87(8) of the Family Law Act 1975 (Cth) – Where the wife asserts the husband misrepresented the true ownership of the very valuable asset of a trust – The findings made by the trial Judge were open to him on the evidence – Where the wife asserts the husband provided misleading information concerning disbursement of the proceeds of sale of two properties – The document provided was not misleading and in any event, the wife did not rely on any representation – Where the wife asserts the husband failed to disclose an arrangement between the husband and his mother relating to a mortgage – The trial Judge’s findings were open to him – Where the wife asserts the husband exerted undue pressure on her in circumstances where a mortgage was called up – The trial Judge’s findings were open to him – No merit in any grounds of appeal – Appeal dismissed.
FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – CONTRAVENTION – Where the trial judge found that the mother had contravened consent orders on one occasion but not another, but ordered no sanction – Where the trial judge denied procedural fairness to the father by departing from the procedure outlined in r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) and not explaining to the father the process that was to be used at the hearing – Where the trial judge did not allow the father the opportunity to address him on why in relation to the count not established not only had he established a prima facie case, but the mother had failed to establish a reasonable excuse – Appeal allowed.
FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – PARENTING ORDERS – Where the parties agreed that an order providing for the exchange of information should be set aside – Where the parties proposed a variation of this order – Where the order is in the child’s best interests – Order varied by consent.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks that the appeal judge disqualify himself – where the respondent opposes the application – where the test of apprehended bias is not satisfied – application dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – TRANSCRIPT – where the applicant seeks that the court pay the cost of transcript of the hearing before the Federal Circuit Court judge – where such an order is made on very rare occasions – where the applicant is now employed – where it is apparent that the applicant can afford to pay for the transcript – where there is no basis for the application to succeed – application dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT OF APPEAL – where the applicant seeks reinstatement of an appeal against parenting orders and/or an extension of time to appeal those orders – where the Full Court considered the reasons for discontinuing the appeal and the proposed grounds of appeal and found that reinstatement of the appeal would not serve the interests of justice – application dismissed.
FAMILY LAW – APPEAL – APPLICATIONS FOR STAY OF INDEMNITY COSTS ORDER PENDING APPLICATION FOR SPECIAL LEAVE TO APPEAL TO THE HIGH COURT – where an indemnity costs order had been made by a trial judge against the applicant – where an earlier Full Court dismissed an appeal by the applicant against the indemnity costs order – where the applicant applied to the High Court for special leave to appeal the dismissal of the appeal against the indemnity costs order – where the High Court had refused to grant special leave to appeal – where this Full Court found no utility in the stay applications following the decision of the High Court – application dismissed.
FAMILY LAW – APPEAL – application in an appeal for expedition – application that court supply a copy of transcript from the substantive proceedings – where the Independent Children’s Lawyer requests to be excused from participating in the appeal – where the appellant is strongly opposed to the release of the Independent Children’s Lawyer.
FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal – Where the delay is less than three months – Where should the application be refused the husband will have no opportunity to appeal final parenting orders - Where the husband alleges that the parties were contemplating reconciliation – Where the husband suffered health problems – Where there was a delay in instructing new solicitors – Where the explanation for delay is adequate despite gaps in time – Where the notice of appeal asserts grounds which appear arguable – Where the prejudice to the husband outweighs the prejudice to the wife - Where an extension of time is necessary to do justice between the parties – Application allowed.
FAMILY LAW – APPLICATION IN AN APPEAL – Application for reinstatement of appeal pursuant to r 22.44 of the Family Law Rules 2004 - Where directions made that the appeal books be filed by a due date – Where the directions noted that the appeal would be deemed abandoned if the wife failed to file the appeal books within the time limit – Where the appeal was deemed abandoned by operation of r 22.21 after the wife failed to file the appeal books – Where the wife’s solicitor professed ignorance of the Family Law Rules – Where the husband submitted that the abandonment of the appeal was intentional – Where a detailed consideration of the merits of the appeal is not required – Where prejudice to the respondent is limited – Where the circumstances are such that a costs order would be of value – Application allowed.
FAMILY LAW – APPEAL – CHILD SUPPORT – Where the Child Support Registrar sought leave to appeal the orders of the Federal Circuit Court setting aside the decision of the SSAT – where the essential issue was whether, where there is an application to the SSAT to review a decision of the Registrar concerning the amount of child support payable for a particular period, the SSAT has the jurisdiction or power to determine the amount of child support payable for periods other than the period to which the Registrar’s decision related – where the Full Court found that the SSAT has under s 103T(1) of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act) all the powers of the Registrar under Part 6A of the Child Support (Assessment Act) 1989 (Cth), including the powers under s 98S to make a departure determination in terms not sought in the departure application, and the power under s 103S(1) of the Collection Act to set aside the decision subject to review and substitute a new decision (subject to procedural fairness) – where the Full Court distinguished this case from CSR v MMB (2007) 39 Fam LR 265 – where the full Court agreed with the views expressed in Kindree v CSR (2010) FLC 98-052 – leave to appeal granted – appeal allowed – orders set aside - no order for costs.
FAMILY LAW – APPEAL – COSTS ORDER – where the Child Support Registrar seeks leave to appeal the costs order – leave to appeal granted – appeal allowed – order set aside – no order for costs.
FAMILY LAW – APPEAL – PROPERTY – where the appellant appeals an order dismissing his application for partial property settlement and an order setting aside a subpoena – where the majority of the grounds of appeal are directed to the validity of a sequestration order made some time ago – where the appellant has unsuccessfully sought to challenge the sequestration order in the Federal Court – whether leave to appeal ought be granted – where no error amenable to appellate intervention apparent either from the grounds of appeal, the arguments advanced by the appellant or the Full Court’s consideration of the material – where leave to appeal not granted – where, even if leave were granted, the appeal would be dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth) on the basis that the appeal has “no reasonable prospect of success” – appellant ordered to pay the respondents’ costs.
FAMILY LAW – APPEAL – PROPERTY – Where five years after property orders were made for the sale of the matrimonial property the husband and the wife entered into a Deed of Settlement varying the orders – Where the wife filed an application for consent orders seeking to set aside the previous orders and have the Deed of Settlement stand ‘as orders of the court’ – Where the wife’s solicitors sought to intervene at the hearing of the application before the trial judge to oppose the application and to be appointed as trustees for sale of the matrimonial property – Where the second respondent to this appeal also appeared at the hearing of the application for the trial judge in relation to two caveats he had over the matrimonial property, including a lease – Where the trial judge dismissed the application for consent orders, joined the wife’s solicitors as a party to the proceedings and appointed the wife’s solicitors as trustee for sale, in lieu of the wife – Where the husband appealed the trial judge’s orders on the basis that the trial judge had denied procedural fairness to the husband, the wife, and the second respondent to this appeal, had improperly led the wife to resile from the consent orders and placed the solicitors in a position of conflict of interest with the husband and the wife – Where the Full Court so found – Appeal allowed – Matter remitted for rehearing.
FAMILY LAW – APPEAL – INTERIM – Children – Best interests – Where the mother unilaterally relocates with the children – where there are existing orders – where the parties had equal shared parental responsibility – where the father had limited involvement in the children’s lives for the period leading up to relocation – whether the trial judge failed to consider the best interests of the children – where the orders were interim – where the matter should proceed to final hearing – where there was limited evidence before the trial judge – where none of the evidence is tested – whether the trial judge placed adequate weight on the circumstances of the mother – where the appeal is dismissed.
FAMILY LAW – APPEAL – Where parties agree appeal and cross appeal should be allowed and matter remitted for rehearing – Where application for costs certificates – Certificates in relation to the appeal and rehearing recommended.
FAMILY LAW – APPEAL – CHILDREN – UNACCEPTABLE RISK - Where the mother submits that the trial judge erred in not finding that there was an unacceptable risk of sexual harm to the children from the father – Where the mother submits that the trial judge should have taken statements by the child indicating sexual impropriety by the father literally – Where the mother submits that the trial judge erred in finding that the mother coached or influenced the children – Where the mother submits that the trial judge erred in the weight given to the expert evidence – Where the trial judge’s findings were clearly open on the evidence – Where no error demonstrated by the trial judge – Appeal dismissed.
FAMILY LAW – APPEAL – CHILDREN – EXPERT EVIDENCE – Where the mother alleges that the trial judge erred in not excluding the evidence of the expert witnesses as they were not “specialised in child sexual abuse” – Where the trial judge correctly identified the issue as whether there was an unacceptable risk of sexual abuse occurring in relation to the proposed orders not whether sexual abuse had in fact occurred – Where no error demonstrated by the trial judge – Appeal dismissed.
FAMILY LAW – APPEAL – TRANSCRIPT – Where the mother initially alleged that the transcription of the proceedings may have been altered or amended by the trial judge – Where the mother subsequently altered her position and in effect alleged that the audio recordings may have been altered or amended by the trial judge – Where counsel for the mother pursued a submission before the Full Court that the trial judge may have altered or amended the transcription of the proceedings and/or the audio recordings where there was no evidence to substantiate this allegation – Where the Full Court determined it was necessary to refer this matter to the relevant Bar Association.
FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Application dismissed save as to evidence that was admitted by consent.
FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Order for costs made in favour of the father – Where the ground of appeal alleging an alteration or amendment to the audio recording and/or the transcript was improperly pursued – Where the ground contains unsubstantiated allegations against a judicial officer or an officer of the Court – Indemnity costs ordered in relation to this ground.
FAMILY LAW – APPLICATION IN AN APPEAL – Where party ordered to pay $100,000 – Where source of power is not apparent – Where applicant seeks expedition – Expedition Ordered.
FAMILY LAW – APPEAL – CHILD SUPPORT – Presumptions of parentage – Where father completed statutory declaration that the child is his – Where after years of litigation and after child turns 18, father seeks to put paternity of child in issue – s 69S presumption of parentage arising from findings of courts is operative presumption – Where father cannot press for relief predicated upon s 69P presumption of parentage arising from marriage – Where father sought repayment of child support – Where relief pursuant to s 143 of the Child Support Assessment Act 1989 (Cth) is conditional upon declaration pursuant to s 107 of the Child Support Assessment Act 1989 (Cth) that the person should not be liable to pay child support – Where father’s application summarily dismissed – No error established.
FAMILY LAW – APPEAL – INJUNCTION AGAINST INITIATING PROCEEDINGS – Whether order restraining father instituting proceedings validly made – Where the decision of a superior court, even if in excess of jurisdiction, is valid unless and until it is set aside – Whether pursuant to s 118 of the Family Law Act 1975 (Cth) or s 143B of the Child Support Assessment Act 1989 (Cth), order valid – No denial of procedural fairness established.
FAMILY LAW – APPEAL – PRACTICE & PROCEDURE – Where response filed electronically – r 24.07 (filing by email and internet) considered – No error established – APPEAL DISMISSED.
FAMILY LAW – COSTS – Father to pay mother’s costs of appeal.
FAMILY LAW – APPEAL – PROPERTY – TRUST – Whether the intervener had the benefit of a resulting, implied or constructive trust over money advanced by her to the appellant to assist with the buying of property – Where the land register recorded the parties’ interests as tenants in common in unequal shares that did not accurately reflect the money advanced – Where the presumption of advancement applies – Calverley v Green (1984) 155 CLR 242 – Where the intervener was unable to establish her intention to acquire a beneficial interest to the full extent of the advance – HELD – Presumption of advancement not rebutted – Appeal allowed.
FAMILY LAW – APPEAL – PROPERTY – LIMITATION PERIOD – Whether the enforcement of the loan agreement was statute barred by virtue of the limitation period – Whether the cause of action on the contract commenced from the date of the contract or the date of demand - Where a contract is simply “payable on demand” the general rule is that the cause of action begins from the date of the contract - Ogilvie v Adams  VR 1041 - Whether the effect of the words “three months’ notice” on the loan document evinced an intention that the cause of action would not accrue until three months after the demand had lapsed – HELD – Cause of action accrued from date of demand – Appeal allowed.
FAMILY LAW – APPEAL – PROPERTY – Where intervener brought her action on time - Where points of claim was amended during the hearing to include an additional claim - Operation of r 11.10 Family Law Rules 2004 – Where the effect of adding a new cause of action arising out of the same or substantially the same facts as any claim brought within time, has the effect of adding a new cause of action, notwithstanding that if fresh proceedings had been commenced, the additional claim would be statute barred – Whether the additional claim arose out of substantially the same facts - HELD - Limitation period had expired – Appeal allowed.
FAMILY LAW ─ APPEAL ─ CHILDREN ─ INTERIM PARENTING ORDERS – Whether the trial judge’s discretion miscarried by ordering the father to spend time with the child supervised by the maternal family at their home on one day and by the paternal grandmother at a public place on another ─Whether the father should be allowed to spend all of his time with the child supervised by the paternal grandmother at his home – Where the need for supervision was questionable and untested on the evidence – Where the risk of family violence is low – Where the father’s relationship with the maternal family is so fraught that it is likely to expose the child to some level of conflict – Where the trial judge did not adequately expose his reasons for making what appears to be inconsistent orders by allowing the paternal grandmother to supervise on some days but not others and to supervise in a public setting but not at the father’s home – Where it is necessary to first consider the nature of the alleged risk to the child in order to determine the circumstances under which supervised time would occur – HELD –Appeal allowed.
FAMILY LAW – APPEAL – PROPERTY – where the appellant husband contends the trial Judge erred by failing to add-back certain amounts said to have been wasted by the respondent wife – where no error demonstrated in the trial Judge’s exercise of discretion – appeal dismissed.
FAMILY LAW – APPEAL – Application in an appeal – Whether to provide audio transcript of proceedings – Where proceedings relate to Orders that are not the subject of the present appeal – HELD – Application dismissed.
FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal against an order refusing an adjournment of trial – Where an appeal against the substantive property orders has been filed – Where the proposed ground of appeal is contained in the notice of appeal against the property orders – Where although a separate appeal against the order refusing an adjournment may not be necessary, to give leave may avoid procedural difficulties - Where the respondent neither consents nor opposes the application – Where there is no prejudice to the respondent in allowing the extension of time – Application granted.