Full Court (Appeals) Judgments

FAMILY LAW - APPEAL – COSTS – Where the mother died subsequent to the hearing of the appeal – Where in the circumstances the father sought only to press his appeal in respect of the costs order against him – Whether the trial Judge erred in stating that she took account of the parties’ financial circumstances – Where the trial Judge principally determined that the father should pay the costs of the mother and the ICL because he had been wholly unsuccessful in his applications – Where  neither the mother’s counsel nor counsel for the ICL made any submissions about the parties’ financial circumstances and none of the documents before her Honour referred to the parties’ financial circumstances – Where the trial Judge’s consideration of the parties’ financial circumstances was not supported by evidence – Appealable error established.

FAMILY LAW - APPEAL – No merit in other grounds of appeal.

FAMILY LAW - APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where there was a lack of sufficient nexus between the evidence sought to be adduced and the orders the subject of the appeal – Application dismissed.

FAMILY LAW - COSTS – Where the father was self-represented – Where the father sought a costs certificate in the event the appeal was allowed – Where the ICL sought a costs certificated if an error of law was found – Where the mother was not represented at the appeal – Where unclear if the mother’s executors would wish to participate at the re-hearing – Where the Court would consider any application by the mother’s executors for a grant of a certificate for the re-hearing – Where it is appropriate in the circumstances that the father and the ICL be granted costs certificates for the appeal and the re-hearing.

FAMILY LAW - JURISDICTION OF FAMILY COURT OF AUSTRALIA – Proper avenue of appeal from Family Law Magistrates – Western Australian family law system – Statutory interpretation – Interpretation of “application” provisions – Family Law Act 1975 (Cth), s 94AAA(1A)

FAMILY LAW - APPEAL – From decision of Family Law Magistrate in the Magistrates Court of Western Australia – Parties agreed appeal had merit – Appeal allowed – Remitted for rehearing – Costs certificates granted

FAMILY LAW – APPEAL - COSTS – Appeal against costs order made by Federal Magistrate – Where the orders concerned costs of proceedings relating to child support – Where the Father did not appear at the hearing and did not prosecute his application – Where the hearing proceeded notwithstanding the absence of the Father – Where the Father had every opportunity to participate in the hearing and prosecute his application and chose not do so – Where even if the Father had appeared, and subject to anything further which he might have adduced the application would have been dismissed – Where based on the material available the Father failed to address any of the matters relevant to the exercise of discretion in granting leave to appeal pursuant to Child Support (Registration and Collection) Act 1988 (Cth) – Where the Father failed to address any possible errors by the Federal Magistrate in relation to her exercise of the discretion – In circumstances where the Father is seeking to essentially re-agitate in these costs proceedings the issues already dealt with in the substantive proceedings – Where the proceedings has been long and protracted – Application dismissed

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Consideration of the applicable law when determining the correctness of the decision below as opposed to on a re-exercise – Consideration of meaning of “by way of rehearing” – In determining if error exists in the orders appealed the law to be applied is as it stood at the time the orders were made

FAMILY LAW - SAME SEX RELATIONSHIP – CHILDREN AND PARENTING – Consideration of ‘parent’ within Part VII – Rejection of the submission that at the time the orders were made each woman was the ‘parent’ of the other’s child – Consideration of submissions as to failure to follow the legislative pathway, failure to provide adequate reasons and denial of procedural fairness – No merit in the grounds of appeal

FAMILY LAW - APPEAL DISMISSED – Appellant to pay the respondent’s costs

FAMILY LAW - APPEAL – FROM A DECISION OF A FAMILY COURT JUDGE – Appellant challenged aspects of the process followed and rulings made in the conduct of the trial – Appellant asserted that the trial Judge wrongly refused an adjournment, erred in requiring the appellant to comply with a timetable drawn up whilst represented and erred in dealing with certain matters that raised legal professional privilege – The trial Judge considered relevant factors in relation to the adjournment – Refusal of adjournment was within discretion and did not cause an injustice – No error arose in the treatment of the trial timetable

FAMILY LAW - LEGAL PROFESSIONAL PRIVILEGE GROUNDS – Appellant asserted that the trial Judge erred by accepting in to evidence a document drafted by her, without warning as to the possibility of legal professional privilege – The document set out questions for cross-examination as well as the appellant’s commentary on the family report – Consideration of ‘confidential document’ under the Evidence Act 1995 (Cth) – Not satisfied that the mother was victim of unfairness – Diaries kept by the father were ruled inadmissible due to legal professional privilege – Appellant ultimately sought an opportunity to inspect the diaries rather than place them before the court as evidence – Orders had been made, not raised before the trial Judge, allowing a time for inspection of the diaries – Trial Judge may have made errors in respect of the issues involved in the diaries – Appellant did not show that the ruling in relation to the diaries caused a miscarriage of justice

Appeal dismissed – No order as to costs

FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in finding the onus of proof on the husband to prove his initial capital contributions – Where comments about the onus of proof were ultimately irrelevant – No error established in overall consideration of initial contributions – Whether the trial Judge erred in the exercise of his discretion in s 75(2) adjustment by failing to give appropriate weight to husband’s health and lack of earning capacity – Where the trial Judge accepted the husband’s evidence about his health – Where the trial Judge found that the husband had only modest capacity for employment in the future – Where the trial Judge made an adjustment in the husband’s favour – Where the trial Judge did not overlook any relevant matter nor gave inappropriate weight to the husband’s age, health or employment capacity – No appealable error – Whether the trial Judge erred in determining that the wife should retain an investment property or by failing to order the sale of that property – Where the trial Judge identified that the question of the assets to be retained by each party was in issue – Where the trial Judge dealt with the question of who should retain the property as a discrete issue – Where the trial Judge’s reasons disclose a careful and balanced consideration of the issue – No appealable error.

FAMILY LAW - APPEAL – STAY – Where the trial Judge did not dismiss the husband’s application for a stay of his orders but stood the application over – Where the wife appealed the refusal to dismiss the husband’s stay application – An order for a stay or an order dismissing or refusing a stay is a highly discretionary matter – Where the discretion of the trial Judge miscarried in taking into account an irrelevant matter – Where the trial Judge erred in standing the stay application over.

FAMILY LAW - COSTS – OF APPEAL – Where the husband wholly unsuccessful in his appeal – Where the husband has capacity to meet an order for costs – Where it is appropriate that the husband pay the wife’s costs of an incidental to the appeal – OF STAY APPEAL – Where the wife sought a costs certificate in the event that costs were not ordered against the husband – Where appropriate that there be no departure from s 117(1) of the Family Law Act 1975 – Wife granted costs certificate in respect of the stay appeal

FAMILY LAW– PARENTING PROCEEDINGS – MOTHER’S APPEAL AGAINST ORDERS CHILD LIVE WITH FATHER – Appeal from Family Court – Discretion – Application of law – Not established that the trial Judge erred in his findings with respect to the credit of mother – Not established that the trial Judge palpably misused his advantage by relying on the evidence of the father – Not established that his Honour erred in failing to make a finding as to the significance of the lack of statement or affidavit from the father’s mother who was deceased at the date of hearing, but had an opportunity to swear an affidavit in the interim proceedings about the date of separation – Not established that trial Judge’s exercise of discretion miscarried by failure to take relevant matters into account, by having regard to irrelevant matters, or by affording undue or insufficient weight to any relevant matters – Court of the opinion that the mother’s appeal unmeritorious – Appeal dismissed – Costs ordered against mother.

FAMILY LAW - APPEAL – PROPERTY – Section 75(2) adjustment – Whether the trial Judge placed sufficient weight on the proportion of time the children were living with the father – Whether the 10% adjustment in favour of the wife fell outside the reasonable ambit of discretion – Exercise of discretion miscarried – Appeal allowed – Full Court determined the section 75(2) adjustment should be 4%

FAMILY LAW - APPEAL – Appeal against a discretionary judgment – Decision of Federal Magistrate allowing the mother to travel to China with the child for a short period – Evaluation of risk that the mother will not return to Australia – Management of risk by requiring bond to secure the child’s return – Evaluation of risk of harm to the child if travel allowed – No error established

FAMILY LAW - PROCEDURAL FAIRNESS – Whether a family report should have been ordered – Where the Federal Magistrate considered and rejected the utility of a family report – adequate reasons provided – No error established – Appeal dismissed

FAMILY LAW - EVIDENCE – Application to adduce further evidence – Where evidence would not have affected the orders under appeal – Application dismissed

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – DIMISSAL – Where the mother sought the father’s appeals be dismissed – Where the dismissal of the appeals would work an injustice – applications dismissed.

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the mother sought security for costs of the appeals – Where the husband conceded that he could provide security of $10,000.00 in a relatively short period of time – Where there is some doubt about the father’s capacity to meet any costs order in a reasonable period – Where appeal not hopeless but prospects of success not overwhelming – Security for costs in the amount of $10,000.00 not unreasonable – Father ordered to pay security for costs of the appeals in the amount of $10,000.00.

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – Family trust - value of property - where the trial judge did not include the husband’s interest in a family trust in the property pool – whether the trial judge erred in her calculation of the value of the parties’ property – whether the trial judge erred in failing to treat the husband’s interest in the family trust as property – where the husband was found to have an irrevocable entitlement to both the income of the trust and to a share in the capital distribution on the vesting date – where it was found that the husband’s interest in the family trust was property capable of division between the parties – appeal allowed – orders set aside – matter remitted for rehearing by another judge.  

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – Contributions – whether the trial judge erred in her assessment of the wife’s contributions and the adjustment in favour of the wife on account of s 75(2) factors – where Senior Counsel for the wife submitted that the appeal against the percentage distributions of the trial judge would not be pursued if they were applied to a pool including the husband’s interest in the family trust – where it was found that the trial judge’s property divisions were applied to an erroneous pool -  the Court found that it would not be just and equitable to apply the trial judge’s contribution assessment and s 75(2) adjustment to the enlarged property pool without a recalculation of such assessment and adjustment – matter remitted for rehearing by another judge. 

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – Adjournment of proceedings – ground of appeal not pursued.

FAMILY LAW - CROSS-APPEAL – PROPERTY SETTLEMENT – Contributions – whether the trial judge erred in her assessment of the husband’s contributions to the parties’ property – where the trial judge divided the assets 60 per cent to the husband and 40 per cent to the wife – where the husband sought 80 per cent - whether the trial judge erred in making an adjustment of 40 per cent to the wife for s 75(2) matters – where property divisions were found to be directed to an erroneous pool – cross-appeal allowed – orders set aside – matter remitted for rehearing by another judge.

FAMILY LAW - COSTS – orders made for written submissions in relation to the costs of the appeal and the cross-appeal.

FAMILY LAW - APPEAL – COURTS AND JUDGES – DISQUALIFICATION – In an appeal from the Family Court of Australia – Whether the judge erred in failing to disqualify himself for apprehended bias – Where the proceedings have a complex history – Where the appellant is self-represented and has been since the inception of proceedings – Where the reasons for judgment and transcripts of proceedings do not reveal an apprehension of bias – Where the judge showed restraint and considerable effort in dealing with a difficult litigant – Where the orders made were correct on the evidence and entirely proper – Appeal dismissed

FAMILY LAW - APPEAL – APPLICATIONS IN AN APPEAL – Where the appellant filed two applications after the hearing of the appeals and judgment was reserved – Application to adduce further evidence – Where the material sought to be adduced would not demonstrate the orders under appeal were erroneous – Application for leave to issue subpoena – Where the final hearing has not occurred – Where such an application can be renewed before a trial judge – Applications dismissed

FAMILY LAW - APPEAL – COSTS – Whether it is appropriate to make a costs order – Where the proceedings have been wholly unsuccessful – Where litigation has been protracted in this Court and state courts at considerable cost to the public purse – Where the Appeal Books for the second appeal were provided by the Court – Appellant ordered to pay costs

FAMILY LAW - APPEAL – COSTS – Appeal has little prospects of success – Costs order against the appellant will be a hardship – Requiring the respondent to pay his own costs will cause a hardship – Parties ought exercise great care in choosing to conduct an appeal – Appellant to pay the respondent’s costs of the appeal

FAMILY LAW - APPEAL – COSTS – Appeal succeeded on a question of law – Certificates sought for appeal and in relation to new trial – Certificates granted

FAMILY LAW - APPEAL – CHILDREN – SUPERVISION – Whether the trial judge erred in imposing a regime of supervised contact with the father – Where there was a history of family violence – Where the expert said it was important for the children to feel “safe” with the father – No error in implementing a regime of supervision – Appeal dismissed in part

FAMILY LAW - APPEAL – CHILDREN – SUPERVISION – Whether the specific terms of the supervision order made were erroneous – Where the trial judge was concerned to provide a mechanism to vary or cease supervision – Where the order provided that the supervision order could be varied if the father provided the mother with a report from a psychiatrist or psychologist that contains an “unqualified opinion” that the father does not nor is it reasonably foreseeable that he will pose a risk to the children – Where the trial judge initiated discussions with counsel about providing a “reassurance” to the mother and the children – Where such discussions took place after the close of evidence and during submissions – Where the specific terms of the order ultimately made were not contemplated – Where further evidence adduced during the appeal indicates that compliance with the terms of the order is impossible by an Australian psychologist or psychiatrist because of ethical considerations – Where the trial judge was not aware of such ethical matters – Where an “unqualified opinion” in the terms described could not be given – Where the method chosen to vary the supervision order was unworkable – Appeal allowed in part

FAMILY LAW - APPEAL – CHILDREN – DISCRETIONARY MATTERS – Whether the trial judge erred in allocating the mother sole parental responsibility with respect to the health, culture and religion of the children – Whether the trial judge erred in his treatment of the evidence as to the children’s views – Whether the trial judge erred in his treatment of the evidence of the expert – No error demonstrated

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PARENTING ORDERS – Appellant challenged the order for equal shared parental responsibility, asserted there were contradictions between reasons and orders, asserted that the Federal Magistrate erred in the orders made as to travel and birthday time and unfairly criticised the mother – The parties sought orders for equal shared parental responsibility – Following the giving of reasons the matter was stood down for the parties to prepare orders reflecting the reasons – No merit in the grounds of appeal – Appeal dismissed

FAMILY LAW - APPEAL – COSTS – Substance of appeal was against parenting orders – Appeal against parenting orders entirely unsuccessful – Appellant to pay fifty percent of the respondent’s costs

FAMILY LAW - APPLICATION IN AN APPEAL – Application for costs certificate – Application dismissed.

FAMILY LAW – APPEAL – CHILDREN – RELOCATION – appeal from a Federal Magistrate decision - interim orders - where the Federal Magistrate made orders allowing the mother to relocate with the child from country New South Wales to a town in Queensland so that the mother could undertake an employment opportunity for a period of eighteen months – whether the Federal Magistrate erred in allowing the mother to relocate with the child due to insufficient uncontested evidence to support the conclusion that the relocation was in the best interest of the child – decision held to be within the Federal Magistrate’s discretion – appeal dismissed

FAMILY LAW – APPEAL – CHILDREN – with whom a child spends time - where the Federal Magistrate made orders for the father to spend time with the child on six occasions during the year – where the orders for the arrangement for the father to spend tine with the child differ from the reasons in the Federal Magistrate’s judgment – appeal allowed – re-exercise of discretion – orders amended

FAMILY LAW – APPEAL – CHILDREN – PARENTAL RESPONSIBILITY – where the Federal Magistrate ordered on an interim basis that the mother have sole parental responsibility for the child – whether the Federal Magistrate erred in making the order as no interim order for sole parental responsibility was sought by either party - where the father challenged the order on the grounds of procedural fairness – appeal allowed – re-exercise of discretion – order amended

FAMILY LAW – APPEAL – COSTS – costs certificates granted to the parties

FAMILY LAW – CHILD SUPPORT – arrears – application for arrears to be reinstated and payment enforced – relevant considerations in exercising discretion to discharge arrears

FAMILY LAW - DISCRETION – relevant matters overlooked – irrelevant matters considered – whether the “12 month rule” continues to exist – appeal allowed

FAMILY LAW - PROCEDURAL FAIRNESS – failure to adequately explain why one of two related matters (enforcement and application to discharge arrears) would proceed first and what evidentiary ramifications might follow from adopting this course

FAMILY LAW - PROPERTY – STAY APPLICATION – PENDING SPECIAL LEAVE TO APPEAL TO HIGH COURT – Application for stay of orders of the Full Court and the orders of a single judge in the appellate jurisdiction of the Family Court of Australia – Where the mere filing of an application for special leave to appeal to the High Court does not operate as a stay of execution of the orders in respect of which leave to appeal is sought – Whether the circumstances in this case are exceptional

FAMILY LAW - STAY APPLICATION – Where the Wife has received the benefit of the judgment and has invested the money into real property – Where it was submitted that there was a real risk that it would not be possible to restore the interested parties to their former position – Whether there was any reasonable prospect of recovery of the moneys paid pursuant to the orders

FAMILY LAW - STAY APPLICATION – Circumstances in which the Wife is prepared to give an undertaking to the Court, the effect of which would be to restrain her from dealing with the real property and her investment portfolio – Where it was submitted that there may be a risk that the assets, the subject of the undertaking, would be vulnerable to claims by unspecified unsecured creditors of the Wife – Where the Wife testified that if the appeal succeeded she may have to sell the property – Where the evidence clearly demonstrates that the Wife currently has more than adequate assets to support the undertaking – Where the court is not persuaded that there is evidence that the Wife is a spendthrift or that she would dissipate her assets such that we could infer that she would take steps to put at risk her financial position by incurring significant unsecured liabilities – Application dismissed provided the Wife files in court an undertaking in the terms described

FAMILY LAW - STAY APPLICATION – Stay of orders of a single judge of the appellate jurisdiction – Where the Order provided that the stakeholders invest a sum of money as trustees for the parties pending quantification and/or determination of the Husband’s liability for costs pursuant to orders made in various courts – Where no submission were made regarding the dissipation of this money by either the Wife or the Husband before the outcome of the special leave application – Application dismissed provided the Wife files in court an undertaking that no amount be disbursed from that portion of money held by the stakeholders

FAMILY LAW - STAY APPLICATION – Stay of orders of the Full Court providing for written submissions regarding costs – Where the Husband did not file written submissions as to costs as the orders required – Where the Husband submitted that a determination of any application for costs of the appeal proceedings should await the outcome of the application for special leave to appeal to the High Court – Where disputes over costs must not be allowed to develop into a sort of satellite litigation – Where the court granted an indulgence to the Husband by extending the time to file submissions – Application dismissed

FAMILY LAW - COSTS – STAY APPLICATION – Hearing on 9 February 2010 – Where the Wife was put on notice that a stay application would be made in the event their application was successful and that costs would follow – Where the Husband submitted that if the court accepted the undertaking proposed by the Wife during the hearing that the Wife should pay costs – s117(1) – No order as to costs 

FAMILY LAW - COSTS – STAY APPLICATION – Hearing on 12 February 2010 – Where the Wife has established justifying circumstances – Where the Husband did not comply with the Order by the court to file submissions – Where the Husband had the opportunity to seek an extension to file submissions but sought not to – Husband to pay the costs of the Wife

FAMILY LAW - APPEAL – RE-DETERMINATION – Where the husband appealed the orders of the Federal Magistrate – Where the appeal was allowed and orders provided for the parties to make submission in relation to the re-determination of the matter – Where the parties were unable to agree a statement of relevant facts and a number of matters were in dispute – It is impractical for the Court to undertake the required fact-finding exercise – It is appropriate for the whole of the matter to be remitted for rehearing.

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Appeal against parenting and property orders – Challenge to property orders hinged upon the appeal against the parenting orders – Parties conceded that the spousal maintenance order ought be set aside

FAMILY LAW - CHALLENGE IN RELATION TO “EQUAL TIME” – Appellant challenged the parenting orders on the grounds that the Federal Magistrate failed to properly consider equal time, failed to order equal time when such an order should have been made and failed to give adequate reasons in respect of the decision as to equal time – A week about arrangement was considered by the Federal Magistrate and adequate reasons given for its rejection – Appellant submitted that the Federal Magistrate ought consider the concept of “equal time” not just a week about arrangement – No alternative proposals achieving “equal time” were proposed by either party

FAMILY LAW - CHALLENGE IN RELATION TO “SUBSTANTIAL AND SIGNIFICANT TIME” – Appellant submitted that the Federal Magistrate failed to properly consider substantial and significant time – Consideration given as to whether the orders achieved “substantial and significant time” with the appellant – Orders made did provide for “substantial and significant time” – Consideration of substantial and significant fell within the reasoning of best interests considerations – Express reasons would have been desirable – Path of reasoning is discernible and valid – Federal Magistrate is not bound to consider proposals of the Court’s own creation where the parties’ proposals contain arrangements meeting the child’s best interests

Order set aside in accordance with the parties concessions – Appeal otherwise dismissed

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Mother appealed refusal to grant a passport for specified period of travel to the US – Period for travel has passed – Utility in appeal considered – Federal Magistrate’s approach to the issue of risk of retention of the child in the US included conclusions unsupported by evidence and failed to consider all relevant factors – Appeal allowed – Order dismissing the mother’s application for a passport set aside – Orders restraining the removal of the child from Australia remain in force

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Application for extension of time to file Notice of Appeal – Orders sought to be appealed involve interstate relocation – Complication in transcription service meant written reasons for judgment were delayed – Extension of time allowed

FAMILY LAW - CHILDREN – With whom a child lives – With whom a child spends time – Relocation – from Brisbane to the Torres Strait – Adequacy of reasons – Where the child’s mother had died and child was living with eldest sister – Where the Federal Magistrate ordered that the child eventually leave the sister’s care in Brisbane to live with the father in the Torres Strait – Cultural issues – Torres Strait Islander culture – Aboriginal culture – Indigenous child-rearing practices – Where according to Wakka Wakka traditions it is culturally appropriate for a child to live with their eldest sibling upon the death of a parent – Exceptions to the practice – Limited evidence – Where the Federal Magistrate considered the placement of the child’s half-siblings with their respective fathers – Where the father had been largely absent from the child’s life – Not open to the Federal Magistrate to find it culturally appropriate for a child to live with their father upon the mother’s death

FAMILY LAW - EVIDENCE – Absence of anthropological evidence – Where the parties did not seek to place anthropological evidence before the Federal Magistrate – Whether the Federal Magistrate should have adjourned proceedings until further evidence was available – Where the Federal Magistrate accepted the evidence of the parties in relation to cultural issues

FAMILY LAW - LEGISLATION – Family Law Act 1975 (Cth) – Best interests of a child – Definition of “parent” – Section 60CC – Application of primary and additional considerations to a non-parent – Application of section 61F

FAMILY LAW - DISCRETION – Parenting capacity – Where the Federal Magistrate made a finding based on the father’s intentions to parent the child – Whether the Federal Magistrate had adequately considered the father’s past conduct in relation to parenting the child

FAMILY LAW - EVIDENCE – Expert evidence – Reliance by Federal Magistrate on the single expert’s evidence – Differential treatment of parties by the single expert – Methodology employed by the single expert led to a perception of bias – Procedural fairness was not afforded to the sister by the single expert in preparation of the expert’s report – Emphasis placed on the child’s Torres Strait Island heritage – the child’s Aboriginal heritage was not properly considered – Emphasis placed on “parent-child relationship” without consideration of cultural context – Where the Federal Magistrate erred in relying on the single expert’s evidence – Appealable error established – Appeal allowed

FAMILY LAW - APPEAL – PARENTING ORDERS – INTERIM ORDERS – PROCEDURAL FAIRNESS – Whether the Federal Magistrate erred in relying on material not tendered in the proceedings – Where the material was not “common knowledge” under s 144 of the Evidence Act 1995 (Cth) – Where the parties’ attention was not drawn to the material – Where the Federal Magistrate had the benefit of reports and oral evidence of the single expert – Where the Federal Magistrate’s treatment of the material was not background to the issue to be determined – Where the father did not have the opportunity to address the material – Appealable error established.

FAMILY LAW - APPEAL – PARENTING ORDERS – INTERIM ORDERS – Whether the Federal Magistrate erred in failing to provide adequate reasons as to why the father’s time with the younger child was reduced – Whether the Federal Magistrate erred in failing to provide adequate reasons for the finding that the children were not coping with the overnight time spent with the father – Where the reasons were delivered ex tempore – Where the Federal Magistrate set out each of the relevant s 60CC factors – Where the Federal Magistrate carefully recorded the evidence of both parties – Whether the Federal Magistrate erred in failing to provide adequate reasons for departure from recommendations from the expert – Whether the Federal Magistrate erred in failing to accord adequate weight to the evidence of the expert – Where the parties’ evidence was untested – Where the expert’s opinion required careful consideration – Where the Federal Magistrate’s reasoning was influenced in part by her reliance on the material – Where the Federal Magistrate’s reasons may technically be considered inadequate because of flawed reliance on material – Where there was dispute as to the extent of the children’s anxiety – Appealable error established.

FAMILY LAW - APPEAL – PARENTING ORDERS – INTERIM ORDERS – Whether the Federal Magistrate erred in failing to give “real meaning’ to the intent of s 65DAA(2) of the Family Law Act 1975 – Where there was no challenge to the mother retaining sole parental responsibility – Where the parties had narrowly defined the issue to be determined by the Federal Magistrate – Where the Federal Magistrate identified the parties’ proposal and issues in dispute – Where the Federal Magistrate’s orders provided for the father to spend substantial and significant time with the children – No appealable error.

FAMILY LAW - COSTS – Where both parties sought costs certificates – Where appropriate for parties for be grated certificates for the appeal and any re-hearing – Costs certificates granted.

FAMILY LAW - APPEAL – CHILDREN – Wishes of the children – Weight to be attributed to children’s wishes – Children aged 15 and 11 – Both children expressed strong wish not to see the mother – trial Judge entitled to place significant weight on children’s wishes

FAMILY LAW - JUDGMENTS – Sufficiency of reasons – Reasons delivered ex tempore by trial Judge – Evidence fresh in trial Judge’s mind – Where trial Judge made orders preventing mother from initiating contact with child – Decision open to trial Judge based on evidence before his Honour

FAMILY LAW - ORDERS – Where the trial Judge made orders that resulted in the suspension of an established parenting regime – Where the trial Judge made orders preventing the mother from initiating contact with the children

FAMILY LAW - PRACTICE AND PROCEDURE – Where further hearing of applications for final parenting orders were deferred in order to await the outcome of an appeal against interim parenting orders

FAMILY LAW - EVIDENCE – Whether trial Judge made findings of fact on contentious issues based on untested evidence – Where trial Judge had the benefit of being able to assess the self-represented litigants at the interim hearing – Where controversial findings did not constitute the ratio of the trial Judge’s decision – Insufficient basis to require appellate interference

FAMILY LAW - EVIDENCE – Family Consultant – Weight to be attributed to Family Consultant’s recommendation – Where Family Consultant had not had the opportunity to undertake a thorough assessment – Where the Family Consultant’s evidence was the only reliable evidence of the views of the child – Where the father and mother were given the opportunity to cross-examine the Family Consultant but in circumstances where they were both unrepresented and had no prior notice of what the evidence would be

FAMILY LAW - EVIDENCE – Further evidence – admitted by consent – further evidence does not indicate that the trial Judge’s decision was erroneous

FAMILY LAW - CHILDREN – CHILD ABUSE – allegations against father of sexual abuse  – near delusional beliefs of mother – allegations of sexual abuse unsubstantiated – “coaching” of the children to make disclosures of sexual abuse found to be emotional abuse – the trial Judge made an order removing the children from the mother’s care – order for the mother’s time with the children to be supervised – alleged failure by the trial Judge to consider risk to the children from the paternal grandparents – evidence about the paternal grandparents properly considered by the trial Judge

FAMILY LAW - CHILDREN – PARENTAL RESPONSIBILITY – where an order for sole parental responsibility was foreshadowed in the reasons but was not reflected in the orders – the trial Judge made an order for the father to be responsible for the children’s long term and short term care – such order not sought by the father – effect of order is to prevent the mother making any decisions about the children when in her care – where the trial Judge’s orders did not provide for changes to decision making responsibility if contact with the mother becomes unsupervised – order varied to provide for the father to have sole parental responsibility

FAMILY LAW - CHILDREN – BEST INTERESTS – whether the trial Judge adequately considered the impact of the orders on the children – where the trial Judge considered the extent of the mother’s emotional abuse of the children warranted their immediate removal from her care – where the trial Judge recognised the difficulty the children would experience being separated from the mother – no error demonstrated

FAMILY LAW - CHILDREN – with whom a child spends time – whether the trial Judge erred in making orders for indefinite supervised contact – whether the trial Judge should have incorporated a “review mechanism” to consider removal of the supervision requirement in the future – no complaint made by the mother – accepted the mother could commence fresh proceedings

FAMILY LAW - CREDIBILITY – weight given to the mother’s evidence in absence of cross-examination – open to the trial Judge to reject the mother’s evidence – whether the trial Judge’s findings about the maternal grandmother were against the evidence – possible substance in the complaint – the trial Judge’s findings about the maternal grandmother’s credibility did not form part of his chain of reasoning

FAMILY LAW - DISCRETION – weight given to the children’s “disclosures” – weight given to evidence of the children’s behaviour – reliance on reports of expert witnesses – the trial Judge accepted the children had made “disclosures” – the trial Judge gave adequate weight to the children’s “disclosures” in the context of evidence of the children being “coached” – weight given to psychiatric evidence – the trial Judge appropriately interpreted and considered psychiatric evidence – the trial Judge entitled to accept evidence of psychiatrist

FAMILY LAW - EVIDENCE – complaint that no psychiatric assessment of the father was undertaken – complaint without merit

FAMILY LAW - FURTHER EVIDENCE – application by the mother – further evidence from a psychiatrist  – where the psychiatrist had taken on the role of advocate – further evidence from a children’s contact service – where the evidence from the contact service does not satisfy the CDJ v VAJ test – further evidence from another psychiatrist – where the evidence of the psychiatrist had been available but was not relied upon at trial – application by mother dismissed – application by father to adduce further evidence of Family Consultant - relied upon only in event of re-determination of trial Judge’s decision – application dismissed

FAMILY LAW - APPEAL – allowed in part

FAMILY LAW - COSTS – some merit in appeal – costs certificates granted – costs thrown away due to vacation of previous appeal hearing – the mother’s former legal representatives said to have been unprepared at previous hearing – no notice to the mother’s former legal representatives of any costs application against them – the mother ordered to pay costs thrown away

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Appeal in relation to Child Support – Leave to appeal required – Appellant submitted that the Federal Magistrate misconstrued the nature of the application and erred in not providing reasons at or shortly after judgment – Federal Magistrate’s approach was unduly technical and misconstrued the application – Lengthy delay between judgment and written reasons may impact on the readiness of appellate court to interfere with findings – Leave to appeal granted in light of error in addressing the application

FAMILY LAW – APPEAL - CONSEQUENCE OF GRANT OF LEAVE – Father sought the assessment be set aside for the exceptional circumstance that he was unable to earn income whilst imprisoned – Consideration of the circumstances of imprisonment and the balance of not importing abstract notions of justice and public policy – Father’s imprisonment does constitute an exceptional circumstance – Father carries a debt owing – Child Support Registrar has discretion to remit late payment penalties – Not satisfied the father faces hardship if the child support agreement is not set aside – Application for setting aside of Child Support Agreement is dismissed

FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the husband failed to file a draft appeal index – where the husband’s appeal was deemed abandoned pursuant to rule 22.13(3) – where the husband has not pursed an application for reinstatement expeditiously – whether the husband received relevant correspondence – whether the reinstatement of the appeal is necessary to enable the Court to do justice between the parties – application dismissed.

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE - CHILDREN – Appeal against interim spends time with orders – Discussion of difficult position of the Court in determining interim applications – Father submitted that the Federal Magistrate failed to properly consider s 60CC and follow the legislative pathway – Federal Magistrate’s analysis and synthesis of issues was contained in six specific paragraphs – Parties agreed that an order for equal shared parental responsibility ought be made – Father submitted that the Federal Magistrate failed to properly consider s 65DAA factors – Father submitted that the Federal Magistrate applied a Cilento approach to the case – Federal Magistrate did not undertake the cascading consideration required by Goode – The legislative pathway was described but not applied – Appeal allowed – Application for interim orders remitted

FAMILY LAW – PROPERTY SETTLEMENT – APPEAL FROM FEDERAL MAGISTRATES COURT – COSTS – Husband’s appeal wholly unsuccessful - Court of the opinion circumstances justify the making of an order for costs in the wife’s favour on a party and party basis as agreed or assessed.

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Appeal from interim parenting orders – Same-Sex couple – Appellant sought no orders for time with the respondent – Appellant submitted the Federal Magistrate erred by wrongly equating the respondent to a parent, failing to adhere to the Goode & Goode pathway, erring in the application of s 60CC and failing to adequately weigh issues of credit – Final hearing in the matter listed for hearing in a few weeks time – No merit in any ground of appeal – Appeal dismissed – Had merit been found the circumstances of this case with the  proximity of the final hearing, and difficulty in remitting or re-exercising, would have lead to the orders remaining undisturbed and effective dismissal of the appeal

FAMILY LAW - APPEAL – CHILD SUPPORT – Leave to appeal decision of Federal Magistrate under Child Support (Assessment) Act 1989 (Cth) – whether the Federal Magistrate erred in finding that the father’s child support assessment should be based on his actual income and financial position not on any potential earning capacity – whether the Federal Magistrate failed to consider the financial impact of the children living with the father at the time of hearing –whether the Federal Magistrate erred in failing to make findings as to the father’s income during the relevant periods – whether the Federal Magistrate failed to provide procedural fairness to the father by not explaining the law to be applied – no merit in any grounds of appeal – application for leave to appeal dismissed.

FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge erred in acting upon mistakes of fact – Where no transcript provided – Where father failed to establish errors – Whether the father was denied procedural fairness or natural justice by the trial Judge asking counsel for the independent children’s lawyer to source shared parenting research – Where there was no evidence of “ex parte communication” between the trial Judge and counsel for the independent children’s lawyer – Whether the trial Judge erred by departing from recommendations in the Family Reports without adequate reasons – Where the trial Judge set out concerns about the Family Reports and oral evidence of the Family Reporter – Where the trial Judge gave proper and adequate reasons for declining to accept the written recommendations of the Family Reporter and for relying on the Family Reporter’s opinion given in oral evidence – Whether the trial Judge erred in preferring the evidence of the mother’s husband to that of the father – Where the trial Judge had the benefit of observing the father and the mother’s husband – Whether the trial Judge denied the father natural justice in referring to an interim affidavit sworn by the father – Where the father’s affidavit properly became part of the evidence – Whether the trial Judge erred in failing to consider an equal time arrangement – No appealable error – Appeal dismissed.

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Application refused.

FAMILY LAW - APPEAL – COSTS – Where the mother sought that the father pay her costs of the appeal and application to adduce further evidence – Where the father opposed the application for costs – Where the mother had a grant from Legal Aid secured by a charge over property – Where father had lodged security for costs of the appeal – Where the father’s appeal wholly unsuccessful – Where application to adduce further evidence dismissed – Where father should pay mother’s costs of the appeal and the application to adduce further evidence.

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Application for extension of time to file Notice of Appeal – Applicant sought to appeal interim property orders – Certain orders now sought to be appealed have been carried out – Applicant made a decision to not appeal the interim orders – Granting an extension to appeal would be a miscarriage of justice – Application dismissed

FAMILY LAW - SECURITY FOR COSTS – Respondent makes an application for security for costs in the appeal already listed for hearing – Prospects of success are not compelling – Appellant submits has he no means to meet security order – Balancing of factors requires an order for security – Security to be paid within 14 days of order otherwise appeal deemed to be dismissed

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PARENTING MATTERS – Federal Magistrate dismissed the mother’s ‘Rice & Asplund application’ and made orders of the Court’s own motion – Mother asserted error in failure to acknowledge the intimidation by the father, placing weight on the mother’s application as it stood without legal advice and failure to find change of circumstance – Consideration of application of ‘Rice and Asplund’ principles following an undefended hearing – No merit in any ground of appeal – Appeal dismissed

FAMILY LAW - APPEAL – FROM A DECISION OF A FAMILY COURT JUDGE – PROPERTY SETTLEMENT – Over thirteen years ago orders were made dividing the property of the husband and wife 62 percent to the wife and 38 percent to the husband – The wife has received very little benefit under those orders – Some real estate was sold by mortgagees, others sold to entities “connected” to the husband at values well below those nominated at trial – Wife filed an application pursuant to s 79A in 2006, substantially amended that application in 2007 seeking transactions be set aside and that the husband ‘account’ for rental received – Husband cross appealed in his response seeking to revisit the question of certain assets and their inclusion in the pool – The trial judge erred as to the nature of the proceedings before him, erred in approach to the resolution of the factual dispute, erred in principle in the approach to the application to set aside transactions, failed to consider the wife’s application for enforcement of orders, erred in findings of fact and failed to address the applications before him by way of the husband’s response

FAMILY LAW - NATURE OF THE PROCEEDINGS – The wife’s amended application was primarily for enforcement, did not involve s 79A – Trial judge misunderstood the nature of the proceedings – There was no common understanding between judge and parties as to the issues before the court 

FAMILY LAW - APPLICATION TO SET ASIDE TRANSACTIONS – The trial judge made an error in principle as to the s 106B application – The trial judge’s application of s 106B was tainted by a misapprehension that the section was invoked in an application pursuant to s 79A – The trial judge gave an inappropriate primacy to the wife’s application for orders pursuant to s 106B

FAMILY LAW - FAILURE TO ADDRESS ALL APPLICATIONS – The trial judge’s dealing with the husband’s response was inadequate and amounts to appealable error – The trial judge failed to adequately consider the wife’s application for enforcement of the earlier orders

FAMILY LAW - APPEAL ALLOWED – Given the confusion as to the nature of the proceedings and evidence before the trial judge the matter has to be remitted – Parties at liberty to make submissions as to costs

FAMILY LAW - APPEAL – APPLICATION FOR EXTENSION OF TIME – Lengthy litigation history – Issues of lump sum child support for children now aged 19, 17 ½ and 12 years old – Arguments on appeal would largely be those submitted before the Federal Magistrate on the application to set aside the order – Prospects of appeal are poor – Appellant did not point to any form of prejudice overlooked or wrongly considered by the Federal Magistrate – Application dismissed

FAMILY LAW - COSTS – Application was essentially a third attempt by the mother to present arguments about lump sum payments – Prospects not strong – Application has failed – Mother to pay the father’s costs

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Application for extension of time to file Notice of Appeal – Child support issue – Lack of clarity as to how the matter ought be categorised – Prospects of success on appeal encourages the granting of the extension – Issue of delay not entirely explained – Application granted

FAMILY LAW - APPEAL – From enforcement proceedings regarding property orders – Whether a property order can be made attaching to the assets of a trust – Whether the trial judge erred in making a finding that assets of a trust could be used to satisfy the husband’s personal obligation to the wife – Whether the assets of a trust could be used to satisfy the entitlement of the wife in circumstances where the husband had legal control of the assets of the trust and the wife was an object of that trust – Where the husband made no application seeking relief in respect of his obligations under the property settlement order – Where an order may be made as part of s 79 proceedings that enables an entitlement of a party to the marriage who is an object of a trust, or ceased to be an object of a trust by reason of divorce, to be satisfied out of the assets of the trust – Where an order may be made that enables a party to the marriage who is in control of a trust to satisfy his or her own personal liability to the other party to the marriage who is an object of the trust from that assets of that trust – Where it was within the jurisdiction and power of the trial judge to make orders attaching to the assets of a trust – No error established

FAMILY LAW - APPEAL – Whether the trial judge erred in law by making orders without representation of all legal persons and/or entities with an interest in the balance of the moneys – Where it is contended that in the event that the assets of a trust are to be used for the purposes of satisfying an entitlement pursuant to the property settlement order that a court must have regard to the interests of any third parties who may also be classified as beneficiaries – Where the husband was the only trustee of the Stephens Trust and the sole trustee of the three children’s trusts – Where the children of the marriage, who were also beneficiaries, made clear that they did not wish to be heard before the trial judge – Where the only relevant trust was the Stephens Trust pursuant to 106B of the Family Law Act 1975 (Cth) – No error established

FAMILY LAW - APPEAL – Whether the trial judge erred in not making a finding of the legal and beneficial ownership of the moneys – Whether the trial judge erred in law by finding that the husband had the onus of establishing the legal and/or beneficial ownership of the moneys – Where the trial judge was entitled to conclude that the husband was always open to file evidence explaining the ownership of the funds – Where it was immaterial to determine in what proportions the cash funds were the property of the husband and the property “of the parties to the marriage” due to orders made by 106B of the Family Law Act 1975 (Cth) – No error established

FAMILY LAW - APPEAL – Whether the trial judge erred in law by not discharging orders that were obtained in breach of the duty to make full and frank disclosure – Rule 5.12(b) – No error established

FAMILY LAW - APPEAL and CROSS-APPEAL – In relation to the calculation of Interest – s 117B and Rule 17.03 – Where the Family Law Act 1975 (Cth) does not draw a distinction between interest up to judgment and interest on judgment – Where the discretion conferred by s 117B (2) of the Act is to be exercised by the court that made the order for the payment of money and cannot be exercised by any other court – Where the discretion conferred by s 117B enables the court to make the rate of interest higher or lower in accordance with the interests of justice – Where the onus of establishing the reason to vary the rate of interest is the party seeking to take advantage of s 117B – Where although the purpose of interest on a judgment debt is to compensate the party entitled to the benefit of the judgment it should not be confined to this – Where the purpose is to also ensure compliance with orders – Where the trial judge failed to address whether it was in the interests of justice that the interest rate be varied – Wife’s cross-appeal upheld and the husband’s appeal dismissed

FAMILY LAW - APPLICATION TO REOPEN AN APPEAL AND ADDUCE FURTHER EVIDENCE – Section 93A (2) and Rule 22.39 – Fundamental principle to be applied in determining whether to grant an application to reopen is whether the interests of justice are better served by allowing the application or rejecting it – Relevant discretionary factors to permit a beginning party to adduce further evidence as referred to in Australian Securities and Investments Commission v Rich [2007] 235 ALR 587

FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the husband sought to adduce evidence on two separate occasions – Where the first application relates to notations that were on the envelopes containing the moneys that were taken by the wife – Where the first application sought to adduce evidence that was available at the time of the hearing before the trial judge – Where the evidence sought to impugn the trial judge’s finding regarding the ownership of the moneys – Where the second application related to a contention that the three children’s trusts and the W Stephens Trust had a total liability to the children – Where the second application sought to adduce evidence after the hearing before the Full Court but was evidence also available at the hearing before the trial judge and before the Full Court – Where on the second occasion the evidence is controversial and where in circumstances that if the evidence was adduced there would be a need for a new trial – Where there would be significant prejudice occasioned to the wife if the husband’s application was granted – Husband’s applications dismissed  

FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the wife sought to adduce evidence that prior to the hearing of the appeal the husband removed Mr J as a joint trustee of the three children’s trusts and fixed his signature to share transfers – Wife’s application granted

FAMILY LAW - APPLICATION TO EXTEND TIME TO FILE AN APPLICATION FOR LEAVE TO APPEAL – Against separate orders made by Watts and Cronin JJ – Where it was contended that the wife failed to place before their Honours all material facts and did not make a full and frank disclosure – Where the complaints regarding these orders serve no practical purpose – Application dismissed

FAMILY LAW - APPLICATION IN AN APPEAL – APPLICATION TO REMOVE A PARTY TO AN APPEAL – Rule 22.04 – Pursuant to s 106B of the Act the trustee of the three children’s trusts and the trustee of the W Stephens Trust do not have any interest in the proceedings – Where the trustee of the Stephens Trust does have an interest in the proceedings because it is from the reconstituted assets of that trust that funds were paid to the Wife

FAMILY LAW - COSTS – Reserved

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Leave to withdraw granted – Independent Children’s Lawyer sought costs – applicant to pay fixed amount of Independent Children’s Lawyer’s costs

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – APPLICATION FOR ADJOURNMENT – Adjournment opposed – Counsel unavailable to present the matter on the date listed – Issue of availability not a mistake, or the fault, of the parties – Adjourned until a later sitting of the Full Court

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Consent orders allowing the appeals – Costs certificate granted for the respondent