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Note: Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case. A breach of the section is a criminal offence. The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.

  • Ganem & Ganem and Anor [2016] FamCAFC 106

    21 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY COURT – APPEAL – Hearing for dismissal for want of prosecution – Where the appellant has not complied with the orders made to prepare the appeal for hearing – Where the appellant has failed to file a summary of argument – Where the appellant was informed that the appeal was listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 – Where there was no appearance by or on behalf of the appellant or second respondents – Appeal dismissed – Appellant to pay costs of the first respondent in relation to the appeal.

  • Lamery & Beason [2016] FamCAFC 105

    14 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – Hearing for dismissal for want of prosecution – Notice from the Registrar – Where the appellant failed to file a transcript and summary of argument as required by the procedural orders – Where the appellant failed to attend the procedural hearing or respond to letters from the Appeals Registry – Where the appellant was informed that the appeal was listed for dismissal pursuant to the Family Law Rules 2004 (Cth) and did not appear – Appeal dismissed and no order as to costs.

  • Rodgers & Rodgers (No. 2) [2016] FamCAFC 104

    10 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – whether the trial judge erred in refusing to deduct a calculation of the total future taxation payable by the parties’ corporation – where the treatment of the liability should be governed by what is just and equitable as between the parties – where the failure of the trial judge to include the calculated taxation liability is not, of itself, an error – where it was within discretion for the trial judge to treat the liability as a matter to be considered by reference to s 79(4)(e) – where the s 79(4)(e) assessment was not “plainly unjust” or “plainly wrong” – where the trial judge failed to consider relevant considerations in the s 79(4)(e) assessment – where error in the exercise of trial judge’s discretion established – appeal allowed – matter to be re-determined by the Full Court.

    FAMILY LAW – APPEAL – PROPERTY – RE-EXERCISE OF DISCRETION – where the appeal was allowed – where the husband held to be entitled to 55 per cent of the net assets and the wife to 45 per cent – costs certificate granted.

  • Walter & Walter (Costs) [2016] FamCAFC 103

    10 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – COSTS – where the appeal was dismissed – where the appellant was “wholly unsuccessful” – where the circumstances of the case justify the departure from s 117(1) of the Family Law Act 1975 (Cth) that each party shall bear his or her own costs – appellant ordered to pay the respondent’s costs of and incidental to the appeal.

  • Needham & Trustees of the Bankrupt Estate of Needham [2016] FamCAFC 102

    17 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – Application for expedition of the hearing of appeal – Where the husband has been declared bankrupt – Where the proceedings are between the wife and Trustees of the Bankrupt Estate of the husband – Where the respondents agree the appeal should be expedited – Where the proceedings have been ongoing for a period of ten years – Where it is appropriate to expedite the hearing.

  • Maddigan & Geary [2016] FamCAFC 101

    17 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition of hearing of appeal – Where the mother seeks to expedite an appeal against parenting orders that the child live with the father and that the mother is restrained from approaching the children for a period of time – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed – Where there is no order as to costs.

  • Salah & Salah [2016] FamCAFC 100

    17 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders – Where the trial judge failed to give sufficient weight to issues of family violence and failed to have regard to and apply s 61DA(3) of the Family Law Act 1975 (Cth) – Where interim parenting orders providing for the respondent’s time with the children to be supervised had been made by consent shortly before the interim hearing – Where the trial judge made interim orders removing the need for supervision – Whether the trial judge erred in failing to give adequate reasons – Appeal allowed. 

    FAMILY LAW – APPEAL – COSTS – Costs certificates – Where the trial judge made material errors of law – Where it is appropriate to order a costs certificate to both parties – Costs certificates granted.

  • SCVG & KLD and Anor (No. 2) [2016] FamCAFC 99

    27 May 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – DISQUALIFICATION – Where the applicant made an oral application that one of the members of the Full Court be recused from hearing the appeal – Where the applicant alleges apprehended bias because the judge had previously formed part of the Full Court bench which dismissed an earlier appeal – Where the test for apprehended bias is not made out – Application dismissed.

  • Holsworth & Holsworth [2016] FamCAFC 98

    09 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – INTERIM ORDERS – Where the appellant appeals two interim decisions of the trial judge – Where the appellant asserts the trial judge demonstrated apprehended bias – Whether the trial judge erred in refusing to recuse herself – Where the trial judge could not make findings on allegations of family violence until the evidence was properly tested at a trial – Where the appellant challenged procedural orders – Whether the trial judge erred in refusing to discharge the family consultant – Where the appellant did not want the family consultant to prepare a second report – Where a second report had already been prepared by a different consultant – Where the appellant challenged the matter being set down for trial – Appeals dismissed. 

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Applications to adduce further evidence – Where the appeals had no merit and there was no basis for admitting the evidence – Applications dismissed.

    FAMILY LAW – COSTS – Where the appellant is ordered to pay the Independent Children’s Lawyer’s costs.

  • Raffety & Spencer [2016] FamCAFC 97

    10 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – Where the mother had been the primary carer of the child – Where the father spent specified time with the child – Where the trial judge’s central findings included a finding that the child was at an unacceptable risk of emotional abuse in the mother’s care and there was a need to protect the child from that risk – Where orders for the child to live with the father – Where the mother argued on appeal that the Reasons for Judgment of the trial judge were inadequate – Where the mother argued that the trial judge failed to consider options put to her by the mother at trial as alternatives to changing the child’s primary residence – Where it was determined on appeal that none of the options argued by the mother had any sufficient evidentiary basis to constitute them as material considerations the trial judge was bound to consider – Principles in relation to determining the adequacy of Reasons discussed – Where the test in Bennett & Bennett (1991) FLC 92-191 was applied – Where having regard to the central findings of the trial judge, none of which were challenged on appeal, and the principles to be applied, it was unnecessary for the trial judge to discuss these options in the Reasons – Where it was held the trial judge had provided sufficient Reasons – Where the appeal was dismissed.

    FAMILY LAW – COSTS – Where the appellant mother was wholly unsuccessful in the appeal – Where it was appropriate for the appellant to pay the respondent’s costs of the appeal on a default of agreement basis.

  • Oaks & Udall [2016] FamCAFC 96

    14 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time – Where the father filed a Notice of Appeal out of time – Where the father seeks to appeal final parenting orders which provide that the child live with the mother and spend no time with the father until he turns sixteen – Where there is sufficient merit in the appeal such that granting an extension of time would not be futile – Where the father would suffer an injustice if leave is not granted – Application allowed – Applicant ordered to pay the costs of the Independent Children’s Lawyer.

  • Paretino & Paretino [2016] FamCAFC 95

    14 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition of hearing of appeal – Where the father seeks to expedite an appeal against interim parenting orders requiring a family member to supervise his time with the children – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed – Where the applicant is to pay the respondent’s costs of the application.

  • Peters & Ortona [2016] FamCAFC 94

    10 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN AND PROPERTY – Appeal dismissed – Order for the appellant to pay the respondent’s costs. 

    FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Applicable principles – Eight applications dismissed.

  • Edgar & Strofield [2016] FamCAFC 93

    07 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – INTERIM ORDERS – Whether the trial judge erred in placing undue emphasis upon the issue of relocation in determining interim parenting orders – Where the parties had been separated for six years – Where the mother was the primary carer of the children – Where the mother moved 88 kilometres away with the children – Where it was ordered on an interim basis that there be a progression to shared care or for the children to reside with the father if the mother did not return – Where the trial judge was concerned with unilateral decision to relocate – Where the mother moved for employment and family health – Where the children had a primary attachment to the mother and relationships with their step-brother and maternal grandmother – Where an application to stay the orders was made – Where the findings recorded in the Reasons for Judgment in the stay application demonstrated an error of the trial judge in determining the interim orders – Where the appeal was allowed. 

    FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether appropriate to grant leave for the mother to adduce further evidence on appeal – Where the evidence comprised of further affidavits and the Reasons for Judgment of the stay application – Whether the appellant satisfied the criteria to adduce further evidence as per CDJ v VAJ(1998) 197 CLR 172 – Where it was held the evidence did not satisfy the criteria – Where the application to adduce further evidence was dismissed. 

    FAMILY LAW – COSTS – Where appropriate to grant each party costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

  • Montrose & Montrose [2016] FamCAFC 92

    06 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal from interim parenting orders granting the mother permission to travel overseas with the child to China for the purpose of a holiday – Where there is no adequate explanation for the delay – Where there is no merit in the proposed appeal – Where the father was unable to demonstrate error on the part of the trial judge – Application dismissed – No order as to costs.

  • Davalos & Davalos [2016] FamCAFC 91

    25 May 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL –Where the appeal is finalised by consent – Where the parties agree the appeal should be allowed and the matter remitted for rehearing – Appeal allowed. 

    FAMILY LAW – APPEAL – COSTS – Where the wife has incurred significant costs in progressing the appeal – Where an order for costs can be made by a single judge pursuant to s 94(2B)(b) of the Family Law Act 1975 (Cth) – The husband to pay the wife’s costs.

  • Zahawi & Rayne [2016] FamCAFC 90

    03 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – where the father seeks to relocate the children to Dubai – where the father was the “unchallenged custodian” of the children – where the trial judge found that a move to Dubai would deprive the children of developing a strong relationship with the mother – where the trial judge found that the mother was unable to visit the children in Dubai and that there was no guarantee that any Australian orders could be enforced in Dubai – whether the trial judge examined the relevant s 60CC considerations – whether the trial judge failed to consider a relevant consideration – whether the appellant was afforded procedural fairness – where no error established – appeal dismissed – each party bear their own costs.

  • Jabbar & Gade (No. 2) [2016] FamCAFC 89

    02 Jun 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where explanation for the failure to file a Notice of Appeal in timely way is inadequate – Where the proposed appeal is against interlocutory orders – Where consideration of the grounds of appeal establish that it would not occasion an injustice to refuse an extension of time – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks expedition of her appeal against interim parenting orders – Where the applicant’s appeal was filed out of time – Where the application for an extension of time to file the Notice of Appeal was dismissed rendering application for expedition otiose – Application dismissed.

  • Sresbodan & Sresbodan and Ors [2016] FamCAFC 88

    27 May 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant is a discharged bankrupt but the estate is not finalised – Where the trustees and previous lawyers of the appellant are parties to the proceedings – Where the trial judge made orders for property settlement, with moneys to be variously distributed to the first respondent, trustees and the third and fourth respondents – Where the grounds of appeal do not identify appellable error – Where the appellant continues to challenge the bankruptcy in circumstances where it has been finalised in the Federal Court of Australia – Where the appellant asserts the trial judge did not allow him to subpoena various parties – Where the transcript reveals the appellant was afforded every opportunity to present his case – Where on appeal the appellant could not identify the evidence the subpoenas would have produced – Appeal dismissed. 

    FAMILY LAW – COSTS – INDEMNITY – Where first respondent sought costs – Where the second, third and fourth respondents sought costs on an indemnity basis as these proceedings fell within the range of matters described in Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536(1993) 46 FCR 225 – Where the appellant has been wholly unsuccessful and did not present an arguable case – Where the appellant has constrained financial circumstances and is on a pension, but where the appellant’s own conduct has contributed to this position – Where an order for costs of each of the respondents should be made, but not on an indemnity basis – An order for costs will be made in favour of each of the respondents, of and incidental to the appeal, to be assessed.

  • Theophane & Hunt and Anor [2016] FamCAFC 87

    24 May 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders providing for the parties’ child to live with the mother and spend no time with the father – Where the father was self-represented on appeal – Where the errors alleged on appeal were not easily discernible – Where the Full Court identified and considered a number of complaints – Where no complaint was found to have merit – Appeal dismissed – Father to pay the costs of the mother and the Independent Children’s Lawyer in a fixed sum.

  • Sullivan & Tyler and Anor [2016] FamCAFC 86

    26 May 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – Credibility – Expert Evidence – Procedural Fairness – Adequacy of Reasons – Where there is no merit in any of the appellant’s grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the evidence is controversial – Where the evidence would not demonstrate that the order under appeal is erroneous – Where the evidence would not have produced a different result if it had been available at trial – Where there is no basis for admitting the evidence – Application dismissed.

    FAMILY LAW – COSTS – Where the appeal has been wholly unsuccessful – Costs awarded.

  • Mena & Mena and Anor [2016] FamCAFC 85

    20 May 2016

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge found that the parties’ assets should be divided as to 55 per cent to the husband and 45 per cent to the wife – Where the wife complained on appeal that the trial judge’s decision to make a 5 per cent adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) in favour of the husband for “some kind of accounting between” the husband and his mother in relation to loans which the trial judge had found to be legally unenforceable was erroneous – Where the Full Court held that in circumstances where the trial judge had rejected any legally enforceable liability between the husband and his mother in relation to the alleged loans, it was not open to the trial judge to make an adjustment that reflected there would be a liability because it was inconsistent with earlier findings – Where the Full Court also said if the 5 per cent adjustment was made because of a moral rather than a legal obligation owed by the husband to his mother, any such moral obligation should not have resulted in a 5 per cent adjustment between the husband and the wife in circumstances where the trial judge had already adjusted between the parties on the basis of the funds advanced to the husband by his mother as an initial contribution – Where the Full Court re-exercised the discretion – Where the Full Court would have made the same orders made by the trial judge – Appeal dismissed – No order as to costs.

    FAMILY LAW – APPEAL – APPLICATION TO RE-OPEN – Where after the Full Court had reserved its decision the respondent filed an application to re-open the appeal and adduce further evidence – Where the respondent asserted the further evidence was relevant to the appeal and any re-exercise of the discretion – Where the Full Court held the evidence was not relevant to the determination of the appeal but was relevant to the re-exercise of the discretion – Application to re-open allowed – Application to adduce further evidence allowed for the purpose of the re-exercise of the discretion.

  • Grier & Malphas [2016] FamCAFC 84

    24 May 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – PROPERTY ORDERS – Where the trial judge found that the parties’ assets should be divided as to 60 per cent to 40 per cent in favour of the husband – Where the wife argued on appeal that the trial judge did not give any, or sufficient, weight to the money received by the husband post-separation – Where the Full Court found the evidence disclosed a very significant disparity in the sums expended by the parties and that the trial judge erred in not giving adequate consideration to that disparity or examining the purposes for which the money was used – Where the Full Court found the trial judge could have taken account of those funds either by “adding back” the funds or pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth) – Where the wife also argued on appeal that the trial judge erred in finding the husband’s contributions were of greater value because of a “skill set” he brought into the marriage – Where the Full Court found error in the trial judge’s assessment of contributions – Where the Full Court emphasised it is not a party’s “skill set” that needs to be considered but their contributions in all senses in which that expression is used in s 79 – Appeal allowed – Remitted for rehearing – Costs certificates granted.

  • Faukland & Shikia [2016] FamCAFC 83

    25 May 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – SENTENCING – CONTEMPT – Where the appellant appeals against the severity of his sentence – Where appellant sentenced to three months imprisonment for each contempt to be served consecutively and wholly suspended indefinitely – Whether the primary judge erred in ordering that the term of imprisonment be served consecutively – Whether the primary judge erred in suspending the term of imprisonment for an indefinite period – Where as a general rule a suspended sentence should only be suspended for a fixed term – Appeal allowed in part – Appellant re-sentenced – Consecutive terms to be wholly suspended for fixed term upon conditions.

  • Padley & Padley [2016] FamCAFC 82

    23 May 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim parenting orders suspending his time with the child – Where the mother and Independent Children’s Lawyer conceded that the appeal should be allowed – Where the primary judge erred in finding that there was a risk of harm to the child that would warrant the suspension of time – Where the trial judge failed to consider other options which might have enabled the child to regularly spend time with the father in a safe setting – Orders set aside – Proceedings remitted for re-hearing. 

    FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where an order for costs as between the parties would not be appropriate – Whether appropriate to grant cost certificates – Cost certificates granted to the parties and Independent Children’s Lawyer for the appeal and the re-hearing.

  • Edsall & Rabkin [2016] FamCAFC 81

    17 May 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – Application by the mother seeking an extension of time to file a Notice of Appeal for cross appeal – Where the Notice of Appeal filed by the father (“NA67 of 2015”) and Notice of Appeal for cross appeal (“NA9 of 2016”) raise similar issues and there is possible merit in both appeals – Where the delay is adequately explained – Where the grant of an extension of time would not result in injustice as between the parties – Where father does not oppose leave being granted in circumstances where he can file an Application to Adduce Further Evidence – Application allowed – No order as to costs.

  • Lawler & Oliver [2016] FamCAFC 80

    26 May 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Expedition – Where the mother seeks to expedite an appeal against interim parenting orders and an appeal against a refusal to grant a stay of those orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeals does not justify priority to the detriment of other cases – Application dismissed.

  • Colak & Viduka [2016] FamCAFC 79

    16 May 2016

    FAMILY LAW – APPEAL – CHILDREN – Child abduction – Where the Department of Family and Community Services filed an application seeking the return of the children to Croatia – Whether a party has standing to appeal if not a party to the original proceedings – Where the children object to returning – Where those views are genuinely held –Where there is a risk of self-harm or suicide if the children are returned – Whether the children’s views were influenced by the mother – Whether the mother can rely on views that she may have influenced – Whether the primary judge erred in assessing the children’s age and maturity – Whether the emotional immaturity of the children was sufficiently taken into account –Where the children have attained an age and degree of maturity at which it is appropriate to take account of their views – Whether the primary judge should have imposed conditions on the children’s return – Appeal dismissed.

  • Cole & Abati [2016] FamCAFC 78

    13 May 2016

    FAMILY LAW – APPEAL – INJUNCTION – The husband appealed against an anti-suit injunction restraining him from commencing proceedings in Indonesia in relation to the wife’s property – The injunction was granted on the basis that such proceedings would be in breach of a binding financial agreement between the parties – The trial judge did not err in her construction of the agreement, did not fail to take account of relevant facts, did not fail to give adequate reasons and did not fail to consider principles of comity – Appeal dismissed – Order for the husband to pay the wife’s costs.

  • Wardle & Wardle [2016] FamCAFC 77

    13 May 2016

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – The husband appealed a condition on a residence order requiring him to live with his parents – The husband has convictions for possessing child pornography – The trial judge did not fail to identify the risk posed by the husband, did not err in finding that the risk was unacceptable unless the husband lived with his parents, did not fail to give reasons for imposing the condition, did not improperly discount the evidence of the single expert and did not fail to consider the long-term impact of the orders – Appeal dismissed – Order for the husband to pay the wife’s costs.

  • Zau & Uong [2016] FamCAFC 76

    13 May 2016

    FAMILY LAW – APPEAL – CHILDREN – The husband appealed a condition on a residence order requiring him to live with his parents – The husband has convictions for possessing child pornography – The trial judge did not fail to identify the risk posed by the husband, did not err in finding that the risk was unacceptable unless the husband lived with his parents, did not fail to give reasons for imposing the condition, did not improperly discount the evidence of the single expert and did not fail to consider the long-term impact of the orders – Appeal dismissed – Order for the husband to pay the wife’s costs.

  • Sables & Newman [2016] FamCAFC 75

    28 Apr 2016

    FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where the Full Court satisfied itself, upon reading the appeal record, that an appealable error had been established – Whether the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted.

  • Hao & Lan [2016] FamCAFC 74

    27 Apr 2016

    FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where the Full Court satisfied itself, upon reading the appeal record, that an appealable error had been established – Whether the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted.

  • Meryman & Eastland [2016] FamCAFC 73

    10 May 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – Application seeking an extension of time to file a Notice of Appeal – Where orders made by consent requiring further evidence – Where procedural orders were made for disclosure – Where the applicant’s solicitor knowingly attempted to file the appeal out of time – Where no attempt was made by the applicant to remedy the situation after notice from the Appeal Registry – Where significant prejudice is caused to the respondent – Where there is little merit in the proposed appeal and no substantial injustice – Where the orders are interlocutory in nature and leave to appeal would not be granted – Where the orders made directions and orders in preparation for trial (per Norton & Locke (2013) FLC 93-567) – Application dismissed.

    FAMILY LAW – COSTS – Where the circumstances do not justify an order for indemnity costs – Where the applicant should pay the costs of the respondent in a fixed sum – Where it is appropriate to make an order for costs.

  • Suiter & Suiter [2016] FamCAFC 72

    10 May 2016

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant asserts that the orders made were not congruent with existing orders and were made on the basis of findings not supported by the evidence or on irrelevant matters – Where it is also asserted that the trial judge failed to properly determine the applications of the parties before her and in so doing failed to apply the provisions of s 129 of the Child Support (Assessment) Act 1989 (Cth) and failed to give adequate reasons for her decision – Where there is no merit in any of the grounds of appeal – Where no useful purpose would be served in granting leave to appeal in circumstances where the grounds of appeal have been found to be without merit – Leave to appeal dismissed.

    FAMILY LAW – APPEAL – ADDUCE FURTHER EVIDENCE – Where the further evidence would only be relied upon in the event of substance being found in the appeal and the discretion re-exercised – Where leave to appeal was refused – Application to adduce further evidence dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent sought her costs on an indemnity basis – Where there is no basis to order indemnity costs – Where there are circumstances justifying an order for costs in the respondent’s favour – Costs ordered on a party/party basis to be assessed in default of agreement.

  • Jabbar & Gade [2016] FamCAFC 71

    20 Apr 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – Expedition – Where the mother seeks to expedite an appeal against interim parenting and procedural orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

  • Maple & Niu [2016] FamCAFC 70

    06 May 2016

    FAMILY LAW – APPEAL – CHILDREN – Appeal against orders which depart from an equal time arrangement in favour of substantial and significant time – Where the primary judge made orders restricting the father from entering upon an area where the mother lives with the child – Where the restraining order was justified – Whether proper provision made for the child to spend time with the father on special occasions – Exercise of discretion – Adequacy of reasons – Whether findings were open – Where error not established – Appeal dismissed.

  • Harriott & Arena [2016] FamCAFC 69

    06 May 2016

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – De facto – Appeal against an order dismissing the appellant’s application for property settlement on the basis that the geographical requirement in s 90SK of the Family Law Act 1975 (Cth) was not met – Where the appellant applied proceeds from the sale of a house in New South Wales to the purchase of a property and a business in Vanuatu – The trial judge misdirected himself in finding that contributions made prior to the commencement of the relationship were not “in relation to” the relationship – “Substantial contributions” were made in New South Wales – Appeal allowed – Costs certificates granted.

  • Rodgers & Rodgers [2016] FamCAFC 68

    04 May 2016

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – whether the trial judge erred in refusing to deduct a calculation of the total future taxation payable by the parties’ corporation – where the treatment of the liability should be governed by what is just and equitable as between the parties – where the failure of the trial judge to include the calculated taxation liability is not, of itself, an error – where it was within discretion for the trial judge to treat the liability as a matter to be considered by reference to s 79(4)(e) – where the s 79(4)(e) assessment was not “plainly unjust” or “plainly wrong” – where the trial judge failed to consider relevant considerations in the s 79(4)(e) assessment – where error in the exercise of trial judge’s discretion established – appeal allowed – matter to be re-determined by the Full Court.

  • Sahadi & Savva and Anor [2016] FamCAFC 65

    29 Apr 2016

    FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where the appellant required leave to appeal against interlocutory orders – Whether leave to appeal should be granted – Application of test set out in Medlow & Medlow (2016) FLC 93-692 – Where the nature of the issues raised and their implications for the hearing of a serious criminal trial justify a grant of leave – Leave to appeal granted.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Release and use of expert report – Where the Police were granted leave to inspect and copy court file – Where Police applied to release expert report for use in criminal prosecution – Whether Police subject to implied obligation not to disclose the report – Waiver of an implied obligation – Where pursuant to r 15.10(3)(c) of the Federal Circuit Court Rules 2001 report released to the parties involved in the criminal proceedings and the Director of Public Prosecutions – Whether the best interests of the child were the paramount consideration – Appeal dismissed.

  • Wah & Golay [2016] FamCAFC 67

    07 Apr 2016

    FAMILY LAW – APPEAL – PROPERTY – APPLICATION IN AN APPEAL – application to amend grounds of appeal – application to adduce further evidence – where no objection to the application to amend the grounds of appeal – application to amend grounds granted – where evidence sought to be adduced is an affidavit containing mostly hearsay and no documentation is provided in support – where evidence is irrelevant to the findings of the trial judge and no explanation is provided as to why evidence was not adduced at trial – application to adduce further evidence dismissed.

    FAMILY LAW – APPEAL – PROPERTY – contributions assessed at 87.5/12.5 in the husband’s favour – where the wife challenges her Honour’s assessment of the contributions – where no discretionary error identified and no error found in respect of contributions – where the wife asserts that the trial judge erred in failing to make an adjustment pursuant to s 79(4)(e) – where the trial judge failed to consider relevant s 75(2) considerations resulting in an injustice to the wife – appeal allowed – re-exercise discretion – adjustment of 7.5 per cent in favour of the wife – costs ordered. 

  • Bant & Clayton (Costs) (No. 2) [2016] FamCAFC 66

    03 May 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where there was an adequate explanation for the father’s failure to file a Notice of Appeal within time – Where the father’s grounds of appeal were not devoid of merit – Where there is no justification for either party to be awarded costs on the basis of the conduct of the other of them – Where the mother was justified in opposing the application – Where the father was seeking an indulgence from the court – Where the financial circumstances of the parties do not justify an order for costs in favour of either of them – Each party to bear their own costs

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where it is apparent that the father could not have incurred any costs as a result of the mother’s discontinued application for an adjournment –Where it cannot be said that the mother’s discontinued application was wholly unsuccessful – No order for costs.

    FAMILY LAW – APPEAL – COSTS – Where the father’s principal or primary grounds were not successful – Where success in two grounds cannot translate into an entitlement for all of the father’s costs to be paid – Where conduct justifying an order of costs has to be conduct in the appeal – Where the parties’ respective financial circumstances neither prevents nor justifies an order for costs in favour of either party – Where the father should receive 20 per cent of his costs and the mother should receive 80 per cent of her costs – Where the mother seeks her costs on an indemnity basis – Where the mother has not established any basis for indemnity costs to be ordered – Where the mother’s claim for costs on an indemnity basis is completely unfounded – Where costs certificates should ordered in relation to the discrete rehearing.

  • Bass & Bass and Anor [2016] FamCAFC 64

    29 Apr 2016

    FAMILY LAW – APPEAL – CHILD SUPPORT – Where the appellant seeks to appeal against orders made pursuant to the Child Support (Assessment) Act 1989 (Cth) (the “CSAA”) – where a child support trust was established as part of consent orders made on 17 July 2008 – where the appellant contends that the trial judge erred in failing to find that the balance of the funds held in the child support trust were to be held on a resulting trust for the appellant – where the appellant contends that the trial judge erred in the exercise of his discretion in not ordering the return to the appellant of the balance funds held in the trust pursuant to the CSAA.

    FAMILY LAW – APPEAL – terms of a child support trust and the circumstances of its creation – whether settlor disposed of his beneficial interest in the funds settled upon in the trust – purpose or purposes of the child support trust – determined that on the proper construction of the terms of the child support trust in the circumstances of its creation the settlor disposed of his beneficial interest absolutely – no basis for a resulting trust.

    FAMILY LAW – APPEAL – DISCRETION to make orders under the CSAA – no error demonstrated in the trial judge’s exercise of discretion – challenge to the trial judge’s costs orders fails.

    FAMILY LAW – LEAVE TO APPEAL – consideration of discretion to grant leave to appeal pursuant to the CSAA.

  • Medlow & Medlow (No. 2) [2016] FamCAFC 63

    28 Apr 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – AMENDMENT OF ORDERS – Where the appellant seeks to have orders amended under the slip rule in r 17.02 of the Family Law Rules 2004 (Cth) – Where the appellant seeks an order for payment from a joint bank account – Whether the Full Court inadvertently omitted to make such an order – Whether the slip rule applies to the order sought – Whether the order sought is an order for interim property settlement – Where the Full Court did not intend to make an order for payment – Application in an Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the Application in an Appeal was unsuccessful – Whether conduct of the respondent warrants no costs order being made – Where no order made as to costs.

  • Zlotnik & Gerasimov [2016] FamCAFC 62

    28 Apr 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for extension of time in which to file an appeal – Where the appellant seeks to appeal orders made by consent – Where there are no circumstances to vitiate consent – Whether the Court should exercise its discretion to allow the extension of time – Where the appellant seeks to file an appeal after significant delay – Where the appeal must fail and is futile – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Circumstances justifying order – Where no evidence of parties’ financial positions adduced – Where appellant wholly unsuccessful – Where appellant failed to comply with the Family Law Rules – Where costs order made against appellant.

  • Thornton & Thornton and Anor [2016] FamCAFC 61

    27 Apr 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the appellant seeks to appeal against orders made for the children to spend unsupervised time with the respondent – Where the appellant alleges that the trial judge has made a series of erroneous findings – Where the appellant complains that the trial judge erred in finding no unacceptable risk of the children being exposed to sexual abuse by the respondent – Where the appellant complains that the trial judge accorded insufficient weight to evidence given on her behalf and in assessing the credit of the father failed to consider a number of matters– Where the appellant complains that the trial judge made findings not reasonably open to him – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful in her appeal – Where as a result the respondent and the Independent Children’s Lawyer have unnecessarily incurred substantial legal costs – Where it is appropriate that orders for costs be made – Appellant to pay the costs of the respondent and the Independent Children’s Lawyers as assessed in default of agreement.

  • Haykal & Krawiec [2016] FamCAFC 60

    21 Apr 2016

    FAMILY LAW –APPLICATION IN AN APPEAL –Review of the decision of a Registrar –Where the appellant made several applications for an extension of time in which to file appeal books – Where the Registrar dismissed these applications – Where the appeal was deemed abandoned – Review of Registrar’s decision is hearing de novo – Whether the appellant adequately explained the delay in filing the appeal books – Whether the appeal should be allowed in the light of case management principles – Where the appeal has merit – Where there is little prospect the appellant will file the appeal books on time – Where the public interest and the private interest of the respondent outweigh this merit – Application in an appeal dismissed.

  • Carlton & Kethel [2016] FamCAFC 59

    21 Apr 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a draft appeal index – Application for reinstatement of an appeal – Where the father made a Federal Circuit Court contravention application – Where the father applied for an order requiring Centrelink to provide to him with the address of the mother – Where both applications were dismissed – Where the father sought to appeal the dismissal of those applications – Where the father failed to file a draft appeal index in accordance with r 22.13 of the Family Law Rules 2004 (Cth) – Where the appeal was deemed abandoned –  Where the father seeks a review of the Registrar’s decision – Whether the father’s appeal is futile – Application in an Appeal dismissed.