Full Court (Appeals) Judgments

FAMILY LAW - APPEAL –  Where appeal allowed by consent

FAMILY LAW - COSTS CERTIFICATES – Where appeal allowed by consent – Reasons for judgment of the Federal Magistrate never delivered – Federal Magistrate retired – Whether proceedings were “abortive” – Whether appropriate to grant costs certificates pursuant to s 10 of the Federal Proceedings (Costs) Act 1981

FAMILY LAW - APPEAL – Whether the Federal Magistrate provided no or insufficient reasons –– Whether the Federal Magistrate’s decision was within the reasonable ambit of discretion.

FAMILY LAW - APPEAL – Application for an extension of time – Consent to allow the appeal – Grounds of appeal reveal some merit – No prejudice to the respondents should leave be granted – Reason for delay in filing notice of appeal understandable and   explained – Appeal allowed by consent

FAMILY LAW - COSTS – Costs of the first and second respondents reserved to the Full Court.

FAMILY LAW - APPEAL – Application for leave to appeal out of time – Application opposed by the wife on the basis of lack of merit – Dispute over calculation of property – Large property pool – Explanation of the delay in filing the notice of appeal one day out of time entirely explained – Error of the solicitor in the calculation of days – Prospect of substantial injustice should leave not be granted– Leave granted

FAMILY LAW - COSTS – Applicant husband to the costs of the respondent wife – Costs to be assessed

FAMILY LAW - APPEAL – against specific parenting orders made by a Federal Magistrate - no appellate error established – appeal dismissed.

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – whether the Federal Magistrate erred in failing to adopt an asset by asset approach – whether the Federal Magistrate erred in including a debt owed by the husband to his de facto partner as a liability of the parties – whether the Federal Magistrate failed to attach sufficient weight to the fact the debt was unlikely to be enforced – whether the Federal Magistrate erred in her assessment of the parties’ contributions – where the Federal Magistrate incorrectly recorded the value of the wife’s superannuation entitlements due to incorrect figures provided by the wife – whether this error warrants appellate intervention – appeal allowed in part on the limited issue of the inclusion of the debt as a liability of the parties – appeal otherwise dismissed.

FAMILY LAW - APPEAL – RE-DETERMINATION – amount of the debt deleted from the asset pool – order of the Federal Magistrate varied.

FAMILY LAW - APPEAL – LEAVE TO APPEAL – PRACTICE AND PROCEDURE – SUBPOENAS – where there are long running proceedings before the Court with respect to child support – where the mother issued two subpoenas to produce documents to non-parties – where the trial judge dismissed the non-parties’ Notice of Objection – whether the trial judge erred in ordering the production of all documents sought pursuant to the subpoenas – whether the trial judge erred in relying on allegedly hearsay evidence – whether the trial judge erred in concluding the production of the documents was not oppressive – whether the trial judge failed to give any or any sufficient weight to the factual assertions contained in the Notice of Objection – applicants have not established an error of principle or that the decision appealed against works a substantial injustice – leave to appeal refused.

FAMILY LAW - APPEAL – COSTS – where the application for leave to appeal was wholly unsuccessful – applicants to jointly and severally pay the respondent’s costs.

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – where previous final property settlement orders were successfully appealed by the husband and the matter was remitted for rehearing – where the wife died between the making of the first final orders and the determination of the first appeal – where the proceedings were conducted between the husband and the wife’s estate – whether the trial judge erred in the assessment of contributions given the husband’s initial contributions and the significant contributions made by the husband since the wife’s death – whether the trial judge erred in making an adjustment of only 10 per cent in favour of the husband on account of s 75(2) factors – discussion of the effect of the death of a party to a marriage on the matters to be considered in s 75(2) – whether the trial judge erred in failing to add back to the asset pool the value of the wife’s superannuation entitlements which were received by the wife’s daughter and taking this into account under s 75(2)(o) – whether the trial judge erred in adopting a global rather than an asset by asset approach – no merit in any ground of appeal – appeal dismissed.

FAMILY LAW - APPEAL – COSTS – where the appeal was wholly unsuccessful – appellant to pay the respondent’s costs.

FAMILY LAW - APPEAL – Application in an Appeal – Application for extension of time to appeal – Where husband attended the Appeal Registry with a completed Notice of Appeal within time provided in the rules – Where arguable that the husband filed his Notice of Appeal in the time provided and an extension of time is not required – Where husband took all reasonable steps to file appeal – Where inability to correct non-compliance with rule 24.05 of the Family Law Rules 2004 was a result of an administrative error – Where failure to extend time would work an injustice – Where delay occasioned by application minimal – If necessary application granted.

FAMILY LAW - APPEAL – Application in an Appeal – Application for expedition – Application dismissed.

FAMILY LAW - APPEAL – COSTS – orders made for the filing of written submissions.

FAMILY LAW - APPEAL – PROCEDURE – Husband’s application for leave to appeal listed for consideration of dismissal for want of prosecution – No appearance by the husband – Where husband has failed to comply with orders in relation to the application and has not shown reasonable diligence in prosecuting application – Application for leave to appeal dismissed for want of prosecution.

FAMILY LAW - COSTS – Where circumstances warrant a departure from s 117(1) – The husband to pay the wife’s costs.

FAMILY LAW - APPEAL – PARENTING – Whether the trial Judge erred in failing to make orders that the existing daily arrangements for the child should continue – Where neither party sought orders which reflected the daily arrangements for the child – Where there was uncertainty as to where each party would live – No appealable error – Whether the trial Judge erred in failing to make an order that the child spend time with the father each alternate Thursday – Where the parties agreed to amend the parenting orders by consent – Appeal allowed in part.

FAMILY LAW - APPEAL – JURISDICTION – Where neither party disputed that the Full Court was the appropriate court to hear the appeal – The trial Judge and the Full Court are obliged to apply the law in force at the relevant date in the Australian Capital Territory – The Full Court can re-determine the matter under the relevant provisions of the Domestic Relationships Act 1994 (ACT) if appealable error established.

FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in his evaluation of the parties’ contributions – Whether the trial Judge erred in failing to give any or sufficient weight to the father’s post-separation contribution of the property occupied by the mother – Whether the trial Judge’s evaluation of the parties’ contributions was plainly wrong – Where the trial Judge was conscious of the requirement of s 15 of the Domestic Relationships Act 1994 (ACT) – Where there was no dispute that at the commencement of the parties’ relationship there was a significant imbalance in the parties’ initial contributions – Where the initial contributions could not have been given appropriate weight given the overall contribution findings – Where the contribution based assessment was outside the reasonable ambit of discretion – Appealable error established.

FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in making a further s 19(2) adjustment in the mother’s favour – Where the adjustment was not outside the reasonable ambit of discretion – No appealable error established.

FAMILY LAW - APPEAL – RE-DETERMINATION – Where the father’s contributions post-separation outweighed the mother’s – Where contributions assessed to be 82.5 per cent to the father and 17.5 per cent to the mother – Where the father’s property and financial resources significantly outstrip those of the mother – Where the mother’s parenting obligations involve her in greater periods of time caring for the child – Adjustment of 10 per cent in the mother’s favour appropriate – Where the parties’ entitlements are 72.5 per cent to the father and 27.5 per cent to the mother.

FAMILY LAW - APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the mother conceded an error in the accidental omission of an investment from the list of assets and liabilities provided to the trial Judge – Where there was no dispute the father paid mortgage and outgoings in respect of one property – Application, other than the agreed and undisputed evidence, dismissed.e Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted

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

FAMILY LW - APPEAL – COSTS – Application in an Appeal – Extension of time – Where appeal deemed abandoned – Where application for costs not filed in accordance with rules –Where failure to grant an extension of time will not work an injustice – Application dismissed.

FAMILY LAW - APPEAL – COSTS – Where in the circumstances there should be a departure from s 117(1) of the Family Law Act 1975 (Cth) – Where the mother was unsuccessful in respect of the appeal – Where the mother has the capacity to meet the costs orders sought – Where the quantum of costs sought is not excessive – Mother to pay the father’s costs of the stay appeal.

FAMILY LAW - APPEAL –  PARENTING – Appeal against the exercise of discretion – Child not a protected person pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) – Orders may be made that the Department of Human Services have parental responsibility or parental responsibility in relation to residence – Error in conclusions drawn from expert evidence – Not in the best interests of the child to live with the mother – Error in the judgment making no assessment of the father where allegations of sexual abuse made– All parenting issues to be remitted for hearing –Appeal allowed. Per Faulks DCJ and May J.

FAMILY LAW - APPEAL – PARENTING – Whether the trial Judge erred in his determination of relevant matters under s 60CA and s 60CC of the Family Law Act 1975 (Cth) –Where the trial Judge could under s 60CC(3)(m) evaluate the evidence of the Director-General and weigh this against each of the parent’s proposals – Appealable error established. Per Faulks DCJ, May and Boland JJ.

FAMILY LAW - APPEAL – PARENTING – Where the trial Judge ordered the Director-General, Department of Human Services NSW, to have parental responsibility for the major long-term issues in relation to the child – Whether the trial Judge erred in making an order that the child live with the mother – Whether the parental responsibility order in favour of the Director-General was in conflict with the order that the child live with the mother –Where the child was not in out-of-home care as a result of the trial Judge’s orders- Where s 164 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) had no application – Where as a result of the trial Judge’s orders the parents retain responsibility for all remaining aspects of parental responsibility other than the major long-term decisions allocated to the Director-General – Whether s 79 of the Judiciary Act 1903 (Cth) required the trial Judge to apply the substantive State law – Where the Family Law Act 1975 (Cth) “otherwise provides” – Whether s 109 of the Constitution rendered invalid any requirement of the State law – Where there was no issue that the Court was able to and did exercise jurisdiction under Part VII of the Family Law Act 1975 (Cth) – Where the trial Judge was not exercising the welfare power of the Court – Where the trial Judge was applying a validly made federal law – Where the trial Judge was not required to apply the State law as the substantive applicable law to quell the controversy in this matter – Where the order made by the trial Judge was within the legislative competence of the Court – Where the Family Law Act 1975 (Cth) “otherwise provides” the Children and Young Persons (Care and Protection) Act 1998 (NSW) had no application. Per Boland J.

FAMILY LAW - COSTS –No party either wholly successful or unsuccessful in the appeal – Complex content and circumstances – Costs certificates awarded. Per Faulks DCJ, May and Boland JJ

FAMILY LAW - APPEAL – Where the Federal Magistrate expressed the view that an equal and substantial and significant arrangement was desirable but failed to make a practical assessment of whether such arrangements were feasible – Where there was no consideration of where the Mother would live; what support she would have and other practical considerations – Where the Mother would also lose the significant benefit of the support of members of the maternal family – Error established

FAMILY LAW - APPEAL – Where the family consultant was not required to consider each and every one of the relevant provisions of Pt VII of the Act but only those matters that were relevant to the best interests of the children – The role of the family consultant – Where the family consultant is ordinarily an expert witness whose task is to assist and advise the court – Where the Federal Magistrate was in error in relation to the reasons she gave for rejecting the opinions of the family consultant – Error established

FAMILY LAW - APPEAL – Whether the Federal Magistrate found that the Mother was an unreliable witness and that this finding was wrong and resulted in findings and orders prejudicial to the Mother – Credibility of the Mother – Error established

FAMILY LAW - COSTS – Where both parties are financially impecunious – Where the Father was in receipt of legal aid and the Mother was not and where this is unfair to the Mother – Where an earlier hearing of the appeal was vacated by counsel for the Father due to insufficient time to prepare for the hearing – Costs certificates granted to both parties regarding the appeal and the rehearing but not for the vacated hearing

FAMILY LAW - APPEAL – CHILD ABDUCTION – HAGUE CONVENTION – HABITUAL RESIDENCE – where the child travelled to Australia with the mother from the United States with the consent of the father – where the mother informed the father she did not intend to return with the child – where the parties subsequently reached a parenting agreement – where the trial judge dismissed the Central Authority’s application seeking the child’s return – whether the trial judge erred in finding the Central Authority had not discharged the onus of establishing the child was habitually resident in the United States at the relevant time – where the Central Authority submitted the only way the child could have lost her place of habitual residence was by a finding of acquiescence and that the test of acquiescence had not been satisfied – consideration of the concepts of acquiescence and habitual residence – whether the trial judge failed to place any or sufficient weight on the stated intentions of the father to have the child returned – whether the trial judge placed too much weight on the father’s desire for reconciliation with the mother – whether the trial judge erred in applying the factual nexus and reasoning of the High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 – no merit in any ground of appeal – appeal dismissed.

FAMILY LAW - APPEAL – COSTS – orders made for the filing of written submissions.

FAMILY LAW - COSTS – Appeal was dismissed – No ground of appeal made out – Husband’s application for leave to adduce further evidence unsuccessful – Extension of time to file submission as to costs – Husband failed to file submissions as to costs – Wife offered to settle for an amount less than what the Federal Magistrate ordered –Application for costs heard despite husband’s failure to respond – Husband to pay the wife’s costs of the appeal – Costs to be assessed on an indemnity basis

FAMILY LAW - APPEAL– Error of law – Where neither appellant was given an opportunity to be heard before the orders of the Federal Magistrate were made – Where the Federal Magistrate did not give an opportunity to test the conflicting evidence

FAMILY LAW - COSTS CERTIFICATES – Whether appropriate to grant costs certificate – Certificates awarded as the preconditions established by Kirby J in Cramer v Davies (1997) 72 ALJR 146 were satisfied – Whether the rehearing of the application is “a cause of a civil nature” as required by s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted

FAMILY LAW - APPEAL – Application in an appeal – where the applicant sought a stay of the orders for the sale of the former matrimonial home pending the outcome of the applicant’s application for special leave to appeal to the High Court – stay granted.  

FAMILY LAW - APPEAL – Application to extend time to appeal – Where there is a delay in the publishing of written reasons – Application opposed by the husband on the basis of prejudice and lack of merit –  Dispute over the calculation of the property pool and superannuation entitlements – Where justice ensures the right to appeal – Application allowed.

FAMILY LAW - COSTS – The wife to pay the husbands costs of the application for leave – Costs be paid from the wife’s share of the net proceeds of the former matrimonial home.

FAMILY LAW - APPEAL – From a property settlement order made by a Federal Magistrate – Controversy as to the amounts to be included in the pool of assets currency

FAMILY LAW - APPEAL – Whether the Federal Magistrate made an error of fact and/or law in failing to include amounts retained by the Wife – Where it was not put to the Wife in cross-examination that she had failed to make a full and frank disclosure – Where the Wife gave evidence that the funds were disbursed – Where the Wife was not challenged in relation to her explanation as to what she had done with the funds – Where it was not put to the Wife that the expenditure of the funds was unreasonable – No error established  

FAMILY LAW - APPEAL – Whether the Federal Magistrate made an error of fact in calculating the payment to the Husband pursuant to the orders in failing to include the liabilities relating to the properties retained by the Husband – Where the order clearly does not reflect the intention of the Federal Magistrate – Where, subject to the slip or accidental omission by the Federal Magistrate, there was no error by his Honour – Where an application pursuant to r 16.05(2)(e) of the Federal Magistrates Court Rules 2001 may be made – No error established

FAMILY LAW - APPEAL – Whether the Federal Magistrate’s assessment of the percentage division of the pool of assets available for division between the parties fell outside of the reasonable range of discretion which was just and equitable – Where the Wife received 75 per cent of the net assets and the Husband received 25 per cent – Where very considerable weight had to be given to the initial financial contribution by the Wife – Where there was no children of the marriage – Where the Wife was always in receipt of a significantly greater income from paid employment than the Husband – Where the Federal Magistrate’s assessment fell within the reasonable range of discretion – No error established

FAMILY LAW - COSTS – Reserved

FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO APPEAL – litigant subject to orders under s 118 Family Law Act 1975 (Cth) (“the Act”) – where the trial Judge refused to grant leave to the husband to institute proceedings under s 79A of the Act – where the husband’s application sought to re-litigate issues which have been finally determined by the trial Judge and the Full Court and by the High Court’s refusal of special leave to appeal – application dismissed.

FAMILY LAW - Application for costs – appeal proceedings – appeal wholly unsuccessful – costs application granted.

FAMILY LAW - APPEAL – PROPERTY – From a decision of a Federal Magistrate – Application to adduce further evidence – Whether the Federal Magistrate erred in adding back moneys to the pool of assets – Whether the Federal Magistrate erred in making a s75(2) adjustment – No error – Application to adduce further evidence dismissed

FAMILY LAW - COSTS – Section 117(1) Family Law Act 1975 (Cth) – Parties’ financial circumstances –  Husband to pay wife’s costs

FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the appeal was deemed abandoned after the father’s failure to file a draft appeal index – long running proceedings – where no adequate reason was provided for the failure to comply – where there is little chance of a successful appeal – conduct of the father – consideration of the consequences for the parties – application dismissed.

FAMILY LAW - APPEAL  – Where appeal allowed by consent orders – error of law –– lack of expert evidence ¬ absence of transcript on appeal

FAMILY LAW - COSTS CERTIFICATES – Where appeal allowed by consent orders – whether appropriate to grant costs certificates – certificates awarded as the preconditions established by Kirby J in  Cramer v Davies (1997) 72 ALJR 146 were satisfied –  ensure procedural fairness.

FAMILY LAW - APPEAL – APPLICATIONS IN AN APPEAL – application seeking the reinstatement of an appeal deemed abandoned and for the wife to be provided with audio transcripts – application seeking various injunctions – where there was no appearance by the applicant – where the Court is satisfied the applicant was aware of the listing and was on notice that the applications may be dismissed if she failed to attend – where there have been proceedings between the parties in the Family Court since 2003 – where it is not clear whether the applicant has been discharged from bankruptcy – where there was no explanation provided for the applicant’s absence – where it would be inappropriate to adjourn the proceedings – applications dismissed.

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – applications by the father and the paternal grandmother for extensions of time to file Notices of Appeal – where the father faxed a Notice of Appeal to the Court within time but failed to sign and date the document and it was returned to him – where there are adequate reasons to explain the delays – where it cannot be said there are no prospects of success – where it is necessary to extend the time to enable the Court to do justice between the parties – extensions of time granted to the father and paternal grandmother to file a Notice of Appeal.

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for extension of time to file Notice of Appeal – where there is no valid reason or explanation for the delay in filing a Notice of Appeal and in seeking an extension of time – where it is not apparent that there is a substantial issue to be raised on appeal – not satisfied the justice of the case requires an extension of time be granted – application dismissed.

FAMILY LAW - APPEAL – COSTS – Costs of appeal – Substantive appeal was against an order for costs in property proceedings – Where the appeal was entirely unsuccessful – No submissions as to costs filed by Appellant – Appellant to pay the Respondent’s costs of appeal

FAMILY LAW - APPEAL – Application in an appeal – concerning the time when a divorce order is to take effect – where the applicant sought an extension of time for the divorce order to take effect pending the outcome of the applicant’s application for special leave to appeal to the High Court – consideration of s 55(5) and s 55(3) of the Family Law Act 1975 (Cth) – extension of time for the divorce order to take effect granted.

FAMILY LAW - APPEAL – CHILDREN – Appeal from decision of Family Law Magistrate – Interim parenting orders – Application to change the child’s school – Where the mother had previously been ordered to return to “the Perth metropolitan area” – Where the mother returned to an eastern suburb of Perth rather than the southern suburb intended by the Court – Change of circumstances – The mother could only obtain a practical placement in the eastern suburb – The mother could not complete her tertiary qualification if she was required to give up the practical placement – The father’s time with the child would not be affected by the mother’s proposal – The mother should not be expected to cease her studies – Magistrate failed to consider the change of circumstances adequately – Magistrate placed too much weight on the inconvenience to the father if there was a change of school – Appeal allowed – Re-determination of Magistrate’s decision – Change of school allowed

FAMILY LAW - PRACTICE AND PROCEDURE – ORDERS – Variation – Magistrate’s new order further limited the area within which the mother could live – Slip rule not available as the order made was the order intended – The mother would have been unable to appeal the original order as an appeal must be directed against orders and not the intention behind the orders – Magistrate’s power to vary the original order questioned

FAMILY LAW - APPEAL – PROPERTY – CONTRIBUTION – Whether the trial Judge erred in contribution assessment – Where the parties’ marriage was of a long duration – Where the trial Judge was unable to make any findings regarding any disparity in the parties’ initial contributions due to lack of evidence – Where the finding that the wife’s contributions to the welfare of the family exceeded those of the husband open on the evidence – Whether the trial Judge’s assessment of the income and product of that income from the wife’s business as a contribution on her behalf was inconsistent with the finding the husband had contributed to the capital worth of the wife’s business – Where the wife conceded that until about 1992 the parties’ contributions were equal – Where the overall evaluation of contribution had the effect of creating a very significant disparity in the parties’ entitlements – Whether such disparity is outside the reasonable range of the trial Judge’s discretion – Appealable error found by majority.

FAMILY LAW - APPEAL – PROPERTY – Sufficiency of reasons – Whether the trial Judge failed to provide adequate reasons – No merit to challenge.

FAMILY LAW - APPEAL – PROPERTY – SECTION 75(2) ADJUSTMENT – Where both parties submitted to the trial Judge that no adjustment should be made under s 75(2) – Where it was not in doubt that before the trial Judge the wife sought 70 per cent of the assets on the basis of contribution and no adjustment pursuant to s 75(2) – Where the husband was legally represented – Where no submissions were made to the trial Judge on the husband’s behalf in respect of the s 75(2) factors – No appealable error.

FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in failing to add back the legal fees paid by the wife to the asset pool – No merit to challenge.

FAMILY LAW - APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the husband sought to adduce evidence of his paid legal fees – Where the wife opposed the receipt of the further evidence – Where the evidence if adduced would not demonstrate appealable error by the trial Judge nor would it allow the Court to quell any controversy as to the source of the funds from which each party’s legal costs were paid – Application dismissed.

FAMILY LAW - RE-DETERMINATION – Consideration of the parties’ contributions – Contribution based entitlements assessed as to 60 per cent to the wife and 40 per cent to the husband – Where neither party made submissions about any relevant s 75(2) factors to be taken into account – Relevant s 75(2) factors considered and weighed – No adjustment made under s 75(2) – Wife to pay adjusting sum to husband.

FAMILY LAW - COSTS – where appropriate that each party receive a costs certificate.

FAMILY LAW - APPEAL – Application for leave to file application for costs of the discontinued appeal – Notice of discontinuance not immediately received by respondents – Arguments raised in notice of appeal currently before Federal Magistrate – Where Federal Magistrate’s judgment is reserved – Better course to adjourn hearing.

FAMILY LAW - APPEAL – Application to reinstate abandoned appeal – Appeal deemed abandoned pursuant to r 22.13(2) – Where the appeal books failed to be filed in time – Principles in Gallo v Dawson (1990) 93 ALR 479 applied – Consideration given to the relevant provisions in Chapter 1 of the Family Law Rules 2004 (Cth) in relation to case management and what was said in Aon Risk Services v Australian National University (2009) 239 CLR 175 – Where the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account – Where there was a lack of any adequate explanation for the failure to comply with procedural orders – Where there is uncertainty of the relief which is sought if the appeals were reinstated – Where significant prejudice, both financial and emotional, would be caused if the appeals were reinstated – Where the appeals were futile – Where the public interest was a significant factor – Application to reinstate dismissed

FAMILY LAW - LEAVE TO APPEAL – Where leave is not required under s 118(1)(c) to institute an appeal against a decision made pursuant to s 118 subjecting an appellant to an order under s 118(1)(c) – Where an order pursuant to s 118(1)(c) is interlocutory and therefore pursuant to s 94AA of the Act leave is required to appeal

FAMILY LAW - APPEAL – Application to reopen hearing – Principles in Stephens & Stephens (2009) FLC 93-425 applied – Where the material filed provides some information about what has happened since the hearing – Where the material also makes clear the focus of the application is on issues other than the best interests of the children – Application granted

FAMILY LAW - COSTS – Application for costs of the abandoned appeal – Where the non-compliance of the procedural orders was not by reason of mistake or lack of understanding of the orders – Where the reasons for non-compliance focus on the assertions of being impecunious and the inability to afford the printing of the appeal books – Where in the circumstances of this case these matters are not persuasive – Where the Appellants ought to have known that they were unable to pay the costs associated with the preparation of the appeal books and that they knowingly and negligently exposed the Respondents to unnecessary legal costs – Justifying circumstances established – Costs granted pursuant to r 19.18(1)(a) of a specific amount

FAMILY LAW - COSTS – Application for costs of the application to reopen hearing – Where although the application to reopen the hearing was granted the material filed bolstered the father and mother’s case –  Costs granted

FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where appeal deemed abandoned – where the draft appeal index was faxed to the Court within time but not recorded as being received by the Appeals Registrar – consideration of rule 24.06 providing for the filing of documents by facsimile – appeal reinstated.

FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO APPEAL – where the father seeks leave to appeal an order for the delivery up of the child – where the father failed to comply with the order and the child was subsequently returned to the mother after execution of a recovery order – where the father has failed to comply with orders preparing the matter for hearing – where the father has been granted a number of adjournments and seeks a further adjournment – where the father wishes to pursue his appeal as a matter of “principle” – where the father has failed to provide a satisfactory answer as to the basis on which the appeal should be allowed to proceed – appeal dismissed.

FAMILY LAW - COSTS – application for costs by the mother – where the father’s non-compliance justifies an order for costs – father to pay the mother’s costs.

FAMILY LAW - APPEAL – Whether trial judge exhausted powers pursuant to s 79 – grant of leave to appeal - distinction between partial orders and interim orders.

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for an extension of time to file appeal books – where the mother has applied for legal aid but does not know the outcome of her application – extension of time granted to file the appeal books excluding the transcript – order for the mother to file an Application seeking that the transcript be provided by the Court. 

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – oral application by the respondent seeking an adjournment to make further submissions regarding the merits of the appeal – application dismissed.

FAMILY LAW - APPEAL – PROPERTY – Appeal from the Family Court of Australia – Trial judge set aside consent orders – Exceptional circumstances – Change of children’s living arrangements from the wife’s care to the husband – Whether hardship established – Consent orders set aside and no final property orders made in lieu – Consideration of Simpson and Hamlin (1984) FLC 91-576 – Appeal allowed

FAMILY LAW - APPEAL – NATURAL JUSTICE – Whether trial judge was biased – Where previous orders limited the material for trial – Whether the wife waived her right to appeal on the basis of bias – Wife self-represented – No denial of natural justice evident – Trial judge acceded to wife’s requests

FAMILY LAW - APPEAL – PROPERTY – Appeal from the Federal Magistrates Court – Final property hearing nearly two years after consent orders set aside – Wife did not participate in hearing – Reliance on “kerbside” evaluation – Incorrect consideration of husband’s superannuation – Section 75(2) adjustment outside reasonable range – Failure to take into account payment by wife to husband pursuant to consent orders – Appeal allowed

FAMILY LAW - COSTS – Cost certificates – Outcome of judgment not due to conduct of parties

FAMILY LAW - APPLICATIONS IN AN APPEAL – LEAVE TO APPEAL – EXTENSION OF TIME TO FILE AN APPEAL – Various applications filed by the Applicant Wife relating to various orders made by the Family Court of Australia – Where there has been numerous procedural and interlocutory proceedings since the finalisation of the substantive proceedings – Where the Applicant filed numerous meaningless and unintelligible applications – Where the Applicant is contending that the reason for failing to file all of the applications in time is due to her incapacity by reason of her state of health – Where the Wife failed to provide any or any adequate explanation for the inordinate delay in filing her application – Where no submissions were made that demonstrated why leave should be granted – Where no injustice has been caused to the Wife and that it is necessary to bring to a conclusion the litigation that is currently before the Court – Where a great deal of the litigation has been without any foundation whatsoever and was frivolous and vexatious – All extant applications dismissed

FAMILY LAW - APPEAL – PROPERTY – Whether the Federal Magistrate failed to give adequate weight to the husband’s post separation savings – Whether the Federal Magistrate failed to give adequate reasons for the contribution assessment – CROSS APPEAL – PROPERTY – Whether the Federal Magistrate failed to assess and give weight to the wife’s initial contribution of US stocks – Where Court unable to determine from the Federal Magistrate’s reason how the parties’ disparate initial contributions and post separation contributions were evaluated and weighed – Where there is merit to the challenges in both the appeal and cross appeal.

FAMILY LAW - APPEAL – PROPERTY – Whether the Federal Magistrate erred in the adjustment in the wife’s favour under s 75(2) – Where the facts do not support the adjustment made in favour of the wife – Where the Federal Magistrate erred in making a further adjustment on the basis of justice and equity in addition to the adjustment under s75(2) – Appealable error established.

FAMILY LAW - APPEAL – CHILD SUPPORT – DEPARTURE APPLICATION – Whether the Federal Magistrate erred by double counting in calculating the cost of maintaining the children for the purposes of the departure application – Where the effect of the Federal Magistrate’s orders is the husband bears a double liability for the children’s school fees – Appealable error established – CROSS APPEAL – Whether the Federal Magistrate erred in not back dating the commencement of the adjusted assessment to the date of the parties’ separation in 2005 – Where there was no assessment in force prior to March 2007 which could be the subject of a departure order – No merit in challenge – Whether the Federal Magistrate erred in making an order which did not take in consideration the wife leaving her employment at the children’s school or the children not continuing at the school – No reasons given why the school fee arrangement was limited to the children’s current school – Unnecessary for challenge to be considered in light of success of the appeal.

FAMILY LAW - APPEAL – CHILD SUPPORT – Application for leave to appeal and cross appeal – Where error of law demonstrated – Leave to appeal and to the extent necessary leave to cross appeal granted.

FAMILY LAW - APPEAL – Where assets and liabilities to be adjusted cannot be accurately identified on available material – Court unable to re-determine the s 79 proceedings – Wife’s application for property settlement and child support departure remitted for re-hearing

FAMILY LAW - COSTS – Where appropriate in the circumstances that the parties be granted costs certificates for the appeal, cross appeal and rehearing.

FAMILY LAW - COSTS – Costs of appeal – Where there are factors which make it inappropriate that s 117(1) of the Family Law Act 1975 apply – Where appeal not entirely without merit – Appropriate for the solicitor to pay 80 per cent of the husband’s costs.

FAMILY LAW - APPEAL – PROPERTY – Whether the Federal Magistrate erred in failing to follow the “four step” approach set out in Hickey & Hickey & the Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 – Where such approach is not mandatory but a guideline – Where the Federal Magistrate adopted a broad brush approach to the parties’ assets and liabilities – Where the Federal Magistrate did not identify whether he intended to assess the parties’ contributions on a global or an asset by asset basis – Where the Federal Magistrate was inconsistent in his approach to the parties’ superannuation interests – Where no findings were made about the weight to be afforded to the parties’ initial contributions – Where the Federal Magistrate did not translate the general finding that the husband’s financial and non-financial contributions exceeded those of the wife to a quantitative assessment – Where the Federal Magistrate failed to express any conclusion in respect of relevant s 75(2) factors – Appealable error established.

FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in making findings of fact not supported by the evidence – Appealable error not established.

FAMILY LAW - APPEAL – RE-DETERMINATION – Where there is no agreed pool of assets – Where there is a lack of appropriate findings – Matter remitted for re-hearing.

FAMILY LAW - COSTS – Where it is appropriate to grant costs certificates for the appeal and re-hearing.

FAMILY LAW – APPEAL - CHILDREN – APPEAL FROM A DECISION OF FEDRAL MAGISTRATE– Not established that Federal Magistrate erroneously failed to consider the mother’s attitude toward the children and the responsibilities of parenthood – Not established that the Federal Magistrate erroneously failed to criticise the mother’s absence of willingness/or ability to facilitate and encourage a close and continuing relationship between the children and the father – Father’s application being that children spend more than equal time with mother, adverse findings on these issues would not have altered the outcome of case – Not established that Federal Magistrate erred in finding that mother continuing to reside in southern New South Wales area was not “reasonably practicable” – Not established that Federal Magistrate erred in refusing father adjournment to pursue subpoena in relation to mother’s future employment in southern New South Wales area, or that documents produced in response to subpoena would have rendered Federal Magistrate orders erroneous – Appeal dismissed – Application to adduce further evidence dismissed