Full Court (Appeals) Judgments

FAMILY LAW - APPEAL – CHILD SUPPORT – Leave to appeal decision of Federal Magistrate under Child Support (Assessment) Act 1989 (Cth) – whether substantial prospect of success of ground of appeal asserting error of law – where Federal Magistrate’s orders dismissed father’s application for a departure from an administrative assessment of child support – whether Federal Magistrate had erred in law by applying s 117(7B) of the Child Support (Assessment) Act 1989 (Cth) – held that Federal Magistrate had correctly applied legislation – held that ground of appeal had no merit – leave to appeal on ground of error of law refused.

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – held that Court has discretion to order for transcript to be provided to parties at Court’s expense – where appellant asserted he could not afford to obtain transcript – where appellant applying for departure from an administrative assessment of child support – where Federal Magistrate at trial found that the appellant had capital means and earning capacity – held not to be an appropriate case for the Court to provide transcript at its own expense.

FAMILY LAW - APPEAL – PROCEDURE – Where appeals against property orders and subsequent costs orders pending and concurrent s 79A application – Whether appeals or s 79A application should be heard first – Where no provision in the Act or rules which determines priority– In the circumstances of this case s 79A application to be determined before the appeals.

FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – Where error of principle established – Application granted.

FAMILY LAW - APPEAL – CHILD SUPPORT – LUMP SUM – UNDEFENDED HEARING – Where hearing before Federal Magistrate proceeded on an “undefended” basis – Where reasons failed to disclose consideration of all relevant factors including the prejudice to either party in proceeding “undefended” – Where mother sought lump sum child support for three children – Whether lump sum child support sought in substitution for administrative assessment – Whether Federal Magistrate failed to consider relevant matters required by the legislation – Whether failure to comply with requirements of s 125 of the Child Support (Assessment) Act  1989 constituted appealable error – Where reasons for judgment were inadequate – Appeal allowed in part and matter remitted for rehearing.

FAMILY LAW - APPEAL – COSTS – Where appeal against orders for costs for two interim hearings and for the hearing that proceeded “undefended” – Appeal against the former orders dismissed – In light of the partial success of the appeal, the appeal against the costs order in relation to the “undefended” hearing was allowed.

FAMILY LAW - COSTS – Where error of principle found – Both parties awarded costs certificates for the appeal and the rehearing.

FAMILY LAW - APPEAL – from a decision of a Federal Magistrate – Leave to appeal out of time – Leave granted.

FAMILY LAW - APPEAL – from decision of a Federal Magistrate – application to reinstate Notice of Appeal – dismissed.

FAMILY LAW - APPEAL – from decision of a Federal Magistrate – application for leave to appeal out of time – dismissed for want of appearance.

FAMILY LAW - APPEAL from decision of a Federal Magistrate – Incorrect use of appeal process - Appellant seeking to appeal findings and not to disturb orders – appeal dismissed.

FAMILY LAW – APPEALS – from decision of Federal Magistrate – DISSOLUTION OF MARRIAGE - APPLICATION FOR RECISSION OF DECREE NISI - Objection to jurisdiction/forum non inconveniens - Divorce proceedings commenced in another jurisdiction prior to proceedings in Australia - Errors of fact and law 

FAMILY LAW - LITIGANTS IN PERSON - Requirements of Natural Justice and Procedural Fairness

FAMILY LAW - ADJOURNMENT APPLICATION - Inadequate and Insufficient Reasons or Failure to Give Reasons - s98A(1) Family Law Act 1975

FAMILY LAW - APPEAL – From decision of a Federal Magistrate – CHILDREN – Where the Federal Magistrate ordered that the child live with the mother and spend substantial and significant time with the father – Whether the Federal Magistrate gave appropriate weight and consideration to the evidence – Whether the Federal Magistrate made appealable factual errors – Whether the Federal Magistrate erred in the exercise of discretion – Whether the Federal Magistrate properly applied the relevant provisions of Part VII of the Family Law Act 1975 as required – Whether the Federal Magistrate properly considered an application pursuant to s 118 of the Family Law Act 1975 – Whether the Federal Magistrate failed to accord natural justice to the mother - No merit found in the grounds of appeal - appeal dismissed.

FAMILY LAW - APPEAL – From decision of a Federal Magistrate – COSTS – Where the Federal Magistrate ordered that the mother pay the father’s costs in bringing a partly successful contravention application – Whether the Federal Magistrate erred in the exercise of discretion – Whether the Federal Magistrate failed to properly consider the mother’s financial situation – Whether the order was against the best interests of the child – No merit found in the grounds of appeal - appeal dismissed.

FAMILY COURT – APPEAL – COSTS – Where appeal and cross appeal were allowed and orders were made re-exercising the discretion of the trial judge – Where appellant and cross appellant seek costs certificates for the appeal and cross appeal – Orders made for costs certificates to be issued to the appellant and respondent in the appeal – Orders made for costs certificates to be issued to the cross appellant and respondent in the cross appeal

FAMILY LAW - COSTS – Appellant made an application pursuant to s117AB for costs to be paid by the respondent on the basis that the respondent had made false allegations or statements – Orders made to dismiss the appellant’s application for costs against the respondent

FAMILY LAW - APPEAL FROM DECISION OF FAMILY COURT – Orders by consent – Issue as to whether costs certificates should be issued where appeal and cross-appeal were allowed by consent – Costs certificates issued for appeal cross-appeal and rehearing

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Practice and Procedure – further adjournment of appeals to allow father to obtain transcripts of relevant proceedings before Federal Magistrate.

FAMILY LAW - APPEAL - Application to extend time to appeal - where husband alleged material had not properly been considered by trial judge - application dismissed.

FAMILY LAW - APPEAL – Application to extend time to appeal trial judge’s refusal to disqualify himself – where notice of appeal filed two days out of time – consideration of the “overall interests of justice” – application to extend time to appeal granted – applicant to pay costs of all other parties, though payment stayed pending the determination of financial proceedings between the husband and wife.

FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – Where proposed appeal against interlocutory orders – Where error of principle or substantial injustice established – Leave to appeal granted.

FAMILY LAW - APPEAL – INTERIM COSTS – Where wife applied at first instance for interim costs – Where wife’s previous application for urgent maintenance and interim costs was dismissed – Where wife is an undischarged bankrupt – Where interim costs application in context of s 79A application rather than s 79 application – Where trial Judge ordered the husband to provide a bank guarantee to the wife’s solicitors to be applied for legal costs – Where trial Judge failed to appropriately consider matters under s 72, s 74 and s 75(2) – Appeal allowed.

FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE – Where respondent wife sought to adduce further evidence to buttress the findings made by the trial Judge – Where application not filed within time – Where evidence sought to be adduced was incomplete – Where prima facie the evidence sought to be adduced would not assist the wife’s case – Application rejected.

FAMILY LAW - COSTS – Where error of law established – Costs certificates granted to both parties.

FAMILY LAW - APPEAL – application seeking extension of time to appeal decision of Federal Magistrate – where applicant claims ill health prevented appeal within time – no adequate explanation for delay – no substantial issue to be raised on appeal – not necessary to grant extension of time to enable court to do justice between parties – application dismissed.

FAMILY LAW – APPEAL – Appeal against orders made with respect to children in parenting proceedings between the parents and the grandparents of the children – Not established that the trial Judge’s discretion miscarried by way of being manifestly unjust or plainly wrong – Not established that the trial Judge failed to provide adequate reasons – Not established that the trial Judge’s discretion miscarried by failing to take into account relevant facts – Not established that the trial Judge erred in findings of fact – Not established that the trial Judge erred in principle in relation to the absence of cross-examination of a witness – Not established that the trial Judge’s discretion miscarried by error of principle in making orders permitting the children’s uncle to be present and spend time with the children during the periods they spend time with the grandparents, where the uncle was not a party to the proceedings and no such orders were expressly sought – Not established that the trial Judge’s erred in principle nor discretion in failing to have regard to s 43(b).

No error in principle in ordering the mother to attend psychotherapy – The 2005 amendments to s 64B(2) did not change the law to enable a court to make orders directed to parents or other persons to engage in a course of conduct which may benefit a child not directly connected to, or conditional upon, a parenting order for the child to live with, or spend time with, that parent or person – Whilst the trial Judge was entitled to rely on the mother’s expressed willingness to undertake voluntary therapy in reaching his overall conclusions for the parenting orders made, absent her consent to an order for such therapy, the order made is not supported in the circumstances of this case, under s 61C or s 64B(2)(i) – The circumstances of this case are distinguishable from those pertaining in L v T (1999) FLC 92-875; 25 Fam LR 590 such that there is no appealable error in making the order under s 67ZC.

FAMILY LAW - APPEAL – PROPERTY – SUPERANNUATION – ASSESSMENT OF CONTRIBUTION AND S 75(2) FACTORS – Where appellant husband asserted insufficient weight given to his initial financial contributions – Where appellant husband asserted too much weight given to s 75(2) factors in favour of respondent wife – Where appellant husband asserted trial Judge erred in his assessment of contribution and s 75(2) factors in relation to superannuation – Where appeal against discretionary judgment – Where trial Judge has very wide discretion – Whether error of fact vitiates trial Judge’s assessment of overall contributions – Having regard to trial Judge’s careful assessment of other contributions and given the length of the marriage, the overall assessment was not vitiated – No appealable error regarding the assessment of the non-superannuation pool – Where trial Judge’s assessment of contribution and s 75(2) factors in respect of the superannuation pool was outside the reasonable ambit of his discretion – Where trial Judge failed to consider whether the orders made were just and equitable – Appealable error.

FAMILY LAW - RE-EXERCISE OF DISCRETION – Where both parties submit that a re-exercise of discretion is appropriate – Where error demonstrated in only one of the two pools (superannuation) – Whether discretion ought be re-exercised with respect to both pools – Discretion re-exercised with respect to both pools.

FAMILY LAW - COSTS – Where appeal successful – Where error on the part of trial Judge demonstrated – Both parties were awarded costs certificates in respect of the costs of the appeal.

FAMILY LAW – APPEAL – SECURITY FOR COSTS – where the wife is appealing against property settlement orders – where the respondent husband is seeking that the wife pay the sum of $15,000.00 “to the husband” as security for his costs in the appeal – where the husband submitted that the wife had limited financial means and that there was a lack of merit in the wife’s appeal – found that the circumstances did not justify an order for security for costs – stated that in similar cases time and resources spent in arguing and opposing applications for security for costs may be better spent in determining the appeal itself – emphasised that the fundamental rule in Family Law Act 1975 (Cth) s 117(1) is that each party pays their own costs – application dismissed

FAMILY LAW – APPEAL – SECURITY FOR COSTS – ORDER FOR RELEASE OF SECURITY – Release to the appellant of monies previously lodged with the Court by the appellant as security for costs of an appeal, where the appeal was ultimately successful and no orders for costs were made.

FAMILY LAW – APPEAL – PARENTING – EQUAL TIME – Where appeal against a discretionary judgment – Where appellant husband asserted reliance by trial Judge upon erroneous findings of fact – Where such findings were not inherently improbable – No appealable error – Where appellant husband asserted the trial Judge’s discretion miscarried – Where no evidence that trial Judge failed to consider relevant material or took extraneous material into account – No appealable error – Where appeal against discretionary judgment – Where no error demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where trial Judge ordered husband to pay the wife’s costs of two interim proceedings and 50 per cent of the wife’s costs of the substantive proceedings – Where trial Judge has very broad discretion – Where trial Judge found husband was wholly unsuccessfully in relation to the issue of equal time and largely unsuccessful in relation to other matters – Appeal dismissed.

FAMILY LAW – COSTS – Where appellant husband works full-time and respondent wife works part-time – Where appellant husband wholly unsuccessful – Appellant husband to pay respondent wife’s costs of the appeal

FAMILYL LAW – APPEAL – From decision of Federal Magistrate – CHILDREN – where child lives with maternal grandparents – where child has not seen father since 2002 – appeal by grandparents from orders allowing father to spend time with child – whether the Federal Magistrate made findings against the weight of evidence – whether the Federal Magistrate failed to give sufficient weight to evidence of psychiatrist – whether Federal Magistrate failed to give sufficient weight to the impact of mother’s mental health and her views regarding the father on the grandparents and their capacity to support the child spending time with the father – whether Federal Magistrate erred in his findings regarding father’s criminal antecedents – whether Federal Magistrate failed to give sufficient weight to alleged criminal and anti-social conduct of father and the effect on his parenting capacity and the grandparents – whether Federal Magistrate failed to give sufficient weight to the impact on the child of the fears and concerns of the grandparents – whether Federal Magistrate erred in accepting the recommendations of expert psychologist – whether Federal Magistrate erred by making orders inconsistent with recommendations of psychologist regarding supervision and review – where Federal Magistrate failed to provide reasons for order that a review by a psychologist take place after the introduction of unsupervised time – whether Federal Magistrate erred in making an injunctive order against a child who was not a party to proceedings and had no opportunity to be heard – Appeal allowed in part – re-exercise of discretion – variation of orders to provide for preparation of report prior to moving to unsupervised time – order restraining child discharged

FAMILY LAW – APPEAL – SPOUSAL MAINENANCE – Wife did not seek periodic spousal maintenance – Husband did not have an opportunity to present evidence or cross-examine.

FAMILY LAW - APPEAL – Allowed - Orders for spousal maintenance dismissed.

FAMILY LAW - CROSS APPEAL – PROPERTY - Major assets superannuation and former matrimonial home – Wife unemployed but full time carer of the children – Husband Sergeant in the army - Whether the Federal Magistrate erred in not giving sufficient weight to wife’s financial circumstances – s75(2) factors.

FAMILY LAW - CROSS APPEAL – Allowed – Wife allowed greater proportion of assets and respondent’s superannuation fund.

FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Orders made that the child live with the father and have supervised contact with the mother – Domestic violence – Complaints that the father uses excessive physical force and uses cannabis when caring for the child – Father denies excessive use of physical discipline – Psychologist report indicates that the child has been affected by a loyalty conflict between the parents – Matter Urgent. 

FAMILY LAW – APPEAL - APPLICATION – Application to adduce further evidence – allowed in part.

FAMILY LAW – APPEAL – Appeal against final property orders made in the absence of the appellant - Appellant unrepresented - Appellant telephoned the solicitor for the respondent on several occasions - Solicitor for the respondent failed to reveal this to the Federal Magistrate – Appeal allowed and remitted for rehearing.

FAMILY LAW - COSTS – Respondent’s solicitors to pay the costs of the appellant relating to the preparation of the appeal.

FAMILY LAW – APPEAL – Whether the orders made by the trial Judge in 1999 precluded the wife’s claim with respect to the husband’s superannuation interest being determined in accordance with the provisions of the superannuation amendments – Whether the 1999 orders were able to be varied on the hearing of the wife’s application with respect to the husband’s superannuation interests – Whether the 1999 orders were “interim”, thereby enlivening the application of the superannuation amendments to the wife’s claim, or were not “interim” orders, in which case the superannuation amendments would not be enlivened – Appropriateness of any distinction between “partial” and “interim” property orders discussed – Unnecessary to draw a distinction between interim and partial orders – Potential implications of s 90MS(2) discussed – Construction of section 90MS(2) involving a broad interpretation of “interim” in the legislation by which the superannuation amendments were enacted should be preferred to a narrow interpretation of the legislation – Until the “one exercise of power under s 79” has been completed, most obviously by the making of orders with respect to the totality of the “property” of the parties to the marriage or either of them, the power has not been spent or exhausted, but exercised partially or in an interim manner – Where power to make orders pursuant to section 79 has not been exhausted, no basis for concluding that further orders may not be made with respect to property the subject of earlier orders – If the Court could not revisit and alter orders there may be cases where the Court was precluded by section 79(2) from making orders which exhausted the power conferred by section 79 of the Act – Discussed circumstances in which the Court would be likely to vary or reverse earlier orders altering interests in property.

FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – with whom a child lives and spends time with – where Federal Magistrate’s orders provided for the children to live with the father five nights a fortnight – where father sought that children spend equal time with him – whether the Federal Magistrate erred in placing reliance on the “status quo” in light of the intent of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) – whether the Federal Magistrate erred in his application of the provisions of the Family Law Act 1975 (Cth), in particular s 65DAA – consideration of the fact that the trial judgment was delivered ex tempore – emphasised that parenting decisions are to be determined on their own facts having regard to the findings required by the legislation – no substance found in the appeal.

FAMILY LAW - APPEAL – COSTS – no order for costs.

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Application by the appellant for reinstatement of an appeal – Where appeal deemed abandoned because appeal books filed did not comply with the Family Law Rules 2004 (Cth) or previous orders – appeal reinstated – Family Court of Australia Registry to prepare appeal books.

FAMILY LAW - APPEAL - CHILDREN - Relocation - Where father appealed against orders allowing the mother to relocate children from Sydney to the Gold Coast  - Where father argued that the trial Judge erred in failing to give adequate reasons as to why relocation was in the best interests of the children  - Where father argued that the trial Judge erred in failing to give adequate reasons for departing from the family consultant’s unchallenged evidence - Appeal allowed - Matter remitted for re-hearing

FAMILY LAW – COSTS - Certificates ordered for appeal and re-hearing under Federal Proceedings (Costs) Act 1981 (Cth)

FAMILY LAW – APPEAL – PARENTING – Where orders were made limiting the time the appellant father could spend with his children to commence and conclude at a contact centre – Orders providing for fixed day and time where father is a shift worker – Where father has a reported history of alcohol abuse

FAMILY LAW – APPLICATION IN A CASE – Application by the mother seeking orders that the father’s appeal is vexatious – Application dismissed where appeal unmeritorious but not vexatious

FAMILY LAW - COSTS – APPLICATION – Application by the mother for costs – Costs neither legal expenses nor costs of witnesses – Application dismissed

FAMILY LAW - COSTS – That the appellant pay the costs of the Independent Children’s Lawyer to be assessed

FAMILY LAW – APPEAL – CONTEMPT – Breaches of the Court’s orders – Appeal against findings of contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) and the imposition of two sentences of imprisonment with respect to such contempts – Terms of settlement entered into by the husband and wife providing for the husband’s appeal to be allowed and the trial Judge’s orders set aside – Whether appropriate to allow “settlement” of contempt proceedings – Need to balance the avoidance of the undermining of the administration of justice by condoning breaches of the Court’s orders, and the limit to the public interest which thus arises by virtue of the inter partes nature of the breaches – In the circumstances of the case, disposal of the appeal as urged would be inappropriate – Merits of the husband’s appeal considered.

FAMILY LAW - CONTEMPT – Not established that the trial Judge erred in finding beyond reasonable doubt that the husband’s action constituted a flagrant challenge to the authority of the Court within the meaning of s.112AP(1)(b) – Not established that the trial Judge’s exercise of discretion in relation to the findings of contempt was vitiated by the failure to refer to any relevant fact or circumstance or by reliance upon any irrelevant facts or circumstances or by placing excessive weight on any matter or by any discernible error of principle – An absence of significant or enduring adverse consequences for the other party does not preclude the application of s 112AP, nor does the attribution, or absence, of a “motive” to the husband for his actions – Correct standard of proof in relation to the evidence supporting the finding of flagrancy applied – Adverse findings in relation to the credit of the husband reasonably supported by the evidence.

FAMILY LAW - PROCEDURAL FAIRNESS AND NATURAL JUSTICE – Not established that husband denied procedural fairness by refusing to allow affidavit evidence where deponent unavailable for cross-examination – Not established that any purported failure to particularise the wife’s claims as to the conduct constituting flagrancy in any way prejudiced the husband. Not established that the trial Judge’s orders in any way precluded the husband from making an application for reduction of sentence pursuant to s 112AP(7).

FAMILY LAW - SENTENCE – Not established that the trial Judge’s exercise of discretion in relation to sentence was vitiated by the failure to refer to any relevant fact or circumstance or by reliance upon any irrelevant facts or circumstances or by placing excessive weight on any matter or by any discernible error of principle – Appropriate standard of proof applied – No distinction in principle between a contempt constituting a flagrant breach to the authority of the Court involving interim as opposed to final orders – Not established that his Honour applied incorrect principle by imposing a custodial sentence upon the husband as opposed to a fine or other penalty upon the basis of his wealth – Consideration of the husband’s purported contrition was not in error – Character of the husband not impermissibly taken into account to the husband’s detriment or as in any way “aggravating” the offence – Whether sentences were manifestly excessive or unreasonable, or plainly unjust – Established that circumstances of the case rendered custodial sentences inappropriate – Challenge to the severity of the sentences imposed upon the husband upheld.

FAMILY LAW - RE-EXERCISE OF DISCRETION – Re-exercise of the discretion of the trial Judge carried out by reference to the facts and circumstances of the case at the present time – The husband’s appeal against the sentences imposed upon him allowed, sentences of imprisonment set aside, and no sanctions imposed.

FAMILY LAW - APPEAL – From decision of Federal Magistrate – PROPERTY SETTLEMENT –  The Federal Magistrate indicated in his reasons for judgment an intention to divide the net “assets” by 70/30, in favour of the wife, and to divide superannuation entitlements equally – To give effect to the superannuation division, the Federal Magistrate indicated in his reasons for judgment an intention to make a “splitting order” – The Federal Magistrate recognised the claims of the wife to retain the former matrimonial home, albeit subject to a mortgage – Husband appealed – The orders relating to the division of property did not provide for any adjusting cash payment by the wife to the husband – The effect of the order was to give the wife more than 70% – The Federal Magistrate failed to give any weight to an entitlement of the wife under her late father’s will – Respondent conceded appeal should be allowed

FAMILY LAW - APPEAL – Re-exercise of discretion – Consideration of s 75(2) factors – Assets treated the same as before the Federal Magistrate with superannuation assets separated from other property – Contributions of both parties of equal value – Adjustment in wife’s favour conceded by husband due to her health and future needs – Consideration of the wife’s inheritance from her father’s will and whether it should be treated as a s 75(2) factor – Distribution of assets in kind, including superannuation – Orders made

FAMILY LAW - APPEAL – Costs of and incidental to the appeal – Costs certificates awarded to both parties

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – The central question for the trial Judge was the time the child is to spend with each of her parents and who should have parental responsibility for her – Child had lived with the mother and spent irregular time with her father – Previous orders were made  for the child to spend continuing time with her father – In earlier proceedings the mother alleged sexual abuse of the child by the father – In the proceedings which are appealed against, the trial Judge ordered that child live with the father and that he have sole parental responsibility for her – The mother was restrained from contacting or communicating with the child save as to when, in his discretion, the father arranged for time to be spent by the child with her mother and whether or not it was to be supervised – Mother appealed all orders – Basic challenge on appeal goes to the allocation of parental responsibility, the residential arrangements and absence of provision for the mother to spend time with the child – The appeal challenges the order that the mother bear the costs of any supervision and an order providing for the arrest of the mother without warrant, should she remove the child from the father’s possession – The mother seeks equal shared parental responsibility, with the child living with her and spending time with the father

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – Appeal against the exercise of the trial Judge’s discretion – Generic grounds of appeal – Complaints amounted to the proposition, not that the conclusion of the trial Judge was not open, but that another conclusion should have been reached – Merit found in one ground of appeal relating to the fact that the mother was not given any notice of a proposal that provision be made for her arrest without warrant

FAMILY LAW - APPEAL – Re-exercise of discretion – Full Court reached same result as trial Judge with respect to the provision for an arrest of the mother without warrant

FAMILY LAW - APPEAL – No merits in other grounds of appeal – Appeal dismissed – Costs ordered against appellant

FAMILY LAW - APPEAL – CHILDREN – with whom a child lives and spends time – relocation from country New South Wales to a town near Melbourne – where the trial judge allowed the mother to take the children to a town near Melbourne to live with her – where the trial judge provided for the children to spend school holiday and some weekend time with the father in country New South Wales – whether the trial judge gave proper consideration to the effect on the children of the mother’s mental health – whether the trial judge gave proper consideration to the effect on the children of the relocation – whether the trial judge erred in the application of s 65DAA of the Family Law Act 1975 (Cth) in light of the Full Court cases of Goode & Goode and Taylor & Barker – whether there was a miscarriage of the trial judge’s discretion – no substance found in asserted errors – presumption in favour of correctness of discretionary judgments emphasised – appeal dismissed.

FAMILY LAW - APPEAL – COSTS – costs order sought by the mother if the father’s appeal unsuccessful – costs order not made.

FAMILY LAW - APPEAL – From decision of Federal Magistrate – PROPERTY – Consent orders made in relation to altering property interests between husband and wife – Five years later those orders were set aside by consent – The issue of whether another order altering property interests ought be made and if so, what order, was litigated in the Federal Magistrates Court – Federal Magistrate published reasons for judgment with a 60/40 division of property in favour of the wife – Federal Magistrate did not make orders but asked parties to file and serve a proposed final order to reflect the reasons for judgment – Parties could not agree on final order – The matter was relisted and the husband made an application under the slip rule for an amendment to a finding made by the Federal Magistrate in relation to the value of a business conducted through a trust – The husband had contended at trial that what should be valued was the trust – After the determination of that issue and other points of disagreement the Federal Magistrate made final orders by way of alteration of property interests and costs – Husband appealed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – PROPERTY – Whether the learned Magistrate was correct to include in the asset pool the value of the business rather than the net value of the Trust that undertook that business – Whether, in finding that the business operated by the husband at the date of hearing was the same as the business operated by the parties at separation, the Federal Magistrate erred in fact – Whether the business should have been valued at the date of the first consent orders and whether the Federal Magistrate gave adequate reasons for not so doing – Whether, having valued the business as at the date of hearing, the Federal Magistrate ought have given greater weight to the post-separation contributions of the husband in the development and operation of the business – Whether the Federal Magistrate failed to give adequate reasons for the adjustment of only 5 per cent in respect of the husband’s contributions to the date of hearing – Whether the Federal Magistrate ought have added back to the property pool monies allegedly expended by the wife on legal fees in relation to family law proceedings – Whether the Federal Magistrate erred in his assessment of s 75(2) factors resulting in a 15 per cent adjustment in favour of the wife or failed to properly explain that adjustment – Whether the Federal Magistrate erred in failing to make an order for costs against the wife because of her initial resistance to the husband’s s 79A application and subsequent consent to the original order being set aside – Whether the Federal Magistrate erred in failing to make an order for costs against the wife because of allegations made by the wife in the trial, but rejected by the Federal Magistrate that she held certain properties in trust for the children of the parties – Some grounds of appeal have merit – Appeal allowed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – PROPERTY – Re-exercise of discretion – Asset pool – Add-back – Orders made to carry through the mathematical consequences of substituting the net value of the Trust for the value of the business conducted by it

FAMILY LAW - APPLICATION – EXTENSION OF TIME TO APPEAL PROPERTY ORDERS – Where delay not substantial – Where reason for delay not compelling – Where appellant able to pay costs if appeal unsuccessful – Where applicant has complied with trial judge’s orders – Where only prejudice to respondent is on-going litigation – Where prejudice to applicant would be inability to appeal orders – Where competing interests finely balanced – Where strict application of the rules would create an injustice – Extension of time granted.

FAMILY LAW - COSTS – Where applicant granted an indulgence of the court – Applicant to pay the respondent’s costs of the application.

FAMILY LAW – APPEAL – FROM DECISION OF FAMILY COURT JUDGE – Rule in Rice v Asplund – Procedural Fairness – where there was confusion as to the nature of the proceedings – where disputed factual matters were considered in a summary way – where the Trial Judge considered matters outside the parameters of the application to dismiss pursuant to the rule in Rice v Asplund – where the mother had no proper opportunity to respond to the broader enquiry – Appeal allowed – Re-exercise of discretion – Analysis of the approach to the rule in Rice v Asplund –no material change in the circumstances of the children – central matters before the Trial Judges continue to pertain – in the bests interests of the children the litigation should not continue – on the re-exercise of discretion order in accordance with the Trial Judge – Appeal dismissed – parties to make written submissions as to costs

FAMILY LAW - APPEAL – From decision of Federal Magistrate – summary dismissal by Federal Magistrate of application seeking adult child maintenance – whether Federal Magistrate erred in dismissing an application in a case without providing reasons – whether Federal Magistrate failed to apply correct principle to summary dismissal application – whether Federal Magistrate took into account facts assumed to be correct from respondent’s evidence where respondent had no knowledge of matters – whether Federal Magistrate erred in failing to apply provisions of Division 7 of Pt VII – no merit in any ground of appeal – appeal dismissed.

FAMILY LAW - COSTS – application by respondents for costs – where appellant wholly unsuccessful – where appellant claimed unable to meet any order for costs due to her financial circumstances – order for costs made – appellant to pay costs within 12 months.

FAMILY LAW - APPEAL – From decision of Family Court Judge – PROPERTY SETTLEMENT – Major issue before the trial Judge was the value of shareholding in a private corporation, held by a family trust – The parties had initially agreed on a single expert witness to value the shareholding – Wife appealed against property orders – Two main contentions on appeal – That the evidence of the expert witness was so flawed it ought have been rejected and, either other expert evidence obtained, or the shares divided between husband and wife, or sold –That a debt of $3,030,300.00 owed by the corporation to the trust had not been included as a trust asset and should have been – A consideration on appeal of the extent to which, and manner in which, these issues were put before the trial Judge – The way the parties’ cases were conducted at trial – Whether the trial Judge’s failures to reject the expert’s evidence or require or permit other evidence and to include as a trust asset the debt from the corporation were open conclusions – Held on appeal that trial Judge’s conclusions were open – No merit in contentions on appeal – Appeal dismissed – Costs against appellant

FAMILY LAW - APPEAL – COSTS – Appeal by the wife against cost order made against her in relation to the trial – where the trial judge ordered that the wife pay 50% of the husband’s costs – whether the trial judge erred in her assessment of the financial circumstances of the parties and the conduct of the respondent husband – whether the trial judge erred in finding that “considerable weight” should be given to the offers for settlement made by the respondent husband – no merit found in this challenge.

FAMILY LAW - APPEAL – COSTS – The costs of the appellant wife’s unsuccessful appeal against the property settlement orders – circumstances do not justify the making of a further costs order.

FAMILY COURT – APPEAL – Application for stay of orders – Appointment of Case Guardian to seek divorce – Husband terminally ill – Divorce order made to take effect on rising of the court

FAMILY LAW - APPEAL – Refused – Refusal to grant stay upheld

COSTS – Reserved

FAMILY LAW - APPEAL – DIVORCE ORDER – LIVING SEPARATELY AND APART – Whether Federal Magistrate erred in finding that the parties’ marriage had irretrievably broken down at date of filing of the divorce application – Where s 48(2) of the Family Law Act 1975 (Cth) requires the parties to have lived separately and apart for not less than 12 months immediately preceding the date of filing of the application for the divorce order – Amendment of an application does not alter date upon which it was filed - Discussion of “separation” and “irretrievable breakdown of marriage”- Importance of communication of intention to separate – Where in the circumstances of this case, there had been no communication of a desire to end the marriage – Appeal allowed – Divorce order set aside.

FAMILY LAW - APPEAL - COSTS – Where Federal Magistrate erred in law – Where appropriate for costs certificates to be granted – Costs certificates granted pursuant to Federal Proceedings (Costs) Act 1981 (Cth).

FAMILY LAW - APPLICATION FOR EXTENSION OF TIME TO APPEAL – CONTEMPT – Where applicant husband found guilty of contempt and sentenced to a term of imprisonment – Where appeal against the sentence imposed following the finding of contempt was filed within time – Where no explanation for delay in filing appeal against contempt provided – Where appeal against the finding of contempt would be consolidated with the appeal against the sentence imposed – Where no real prejudice to wife – Where proposed grounds not entirely hopeless – Where personal liberty at stake – Application granted.

FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – Where applicant husband sought leave to the extent that it was necessary on the basis the contempt order may be regarded as interlocutory – Not necessary to decide this issue as this could be decided by the Full Court together with the hearing of the appeal on sentence.

FAMILY LAW - COSTS – Where Court granted an indulgence to the husband – Husband to pay the wife’s costs of the application.

FAMILY LAW - APPEAL – From decision of Family Court Judge – PROPERTY SETTLEMENT – whether the trial judge erred in finding the husband’s parents did not have an interest in a property – whether the trial judge erred in the assessment of evidence with respect to the husband’s parent’s alleged interest in the property – whether the trial judge erred in notionally adding back to the asset pool the amount paid by the husband to discharge a mortgage but failing to add back finance repayments by wife – whether the trial judge failed to give proper consideration to the husband’s contribution at the time of marriage – whether the trial judge erred in finding the parties’ daughter was the sole legal and beneficial owner of a property – whether the trial judge erred in finding both parties received $170,000 from proceeds of sale of a property – whether trial judge erred in finding the wife used her share of proceeds to discharge a mortgage and erred with respect to the amount of this mortgage – trial judge led into error by parties with respect to the amount the parties received from the sale proceeds and the discharge of mortgage – failure of both parties to provide any real assistance to court as to amount of mortgage – likely to be futile to seek further evidence or remit the matter – if matter remitted, further expense and delay would be incurred with no guarantee of resolution and court resources would be expended correcting an error parties created themselves –– appeal dismissed.

FAMILY LAW - APPEAL – Applications to adduce further evidence – applications dismissed.

FAMILY LAW - COSTS – circumstances justifying order for costs – husband to pay one half of wife’s costs of and incidental to appeal as agreed or assessed.

FAMILY LAW - APPEAL – PROPERTY – 15 years of premarital relationship followed by 5 years cohabitation post marriage – Wife’s appeal against  property division giving her 45% of the non-superannuation assets, representing 40% based on contribution and a 5% adjustment for s 75(2) factors – At trial both parties conceded that initial contributions should be measured not at the date of the commencement of the relationship but at the date of marriage when the parties began to commingle finances – The trial judge’s conclusion of a contribution split at 60:40 in favour of the husband  unsustainable – An appropriate division taking into account the parties’ contributions was 55:45 in favour of the wife – This capital disparity and the capacity of each of the parties to adequately support themselves meant no s 75(2) adjustment was appropriate – The extent of the trial judge’s consideration of the wife’s gambling when weighing up s 75(2) factors was unclear, however any adverse consideration was not appropriate having regard to the findings that the gambling losses were relatively modest and an accepted part of the parties’ lifestyle – Appeal allowed

FAMILY LAW - CHILDREN – Parental responsibility – modified order for equal shared parental responsibility – where order made for a party to have the “management” of a child’s health and schooling issues – ambiguity in the order – reasoning employed to rebut the presumption of equal shared parental responsibility – whether orders did not reflect intentions of judicial officer as expressed in the judgment – appeal allowed – matter remitted for re-hearing on the issue of parental responsibility