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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.

  • Brantley & Swenson [2020] FamCAFC 159

    03 Jul 2020

    APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the mother’s financial circumstances are not clear on the available evidence – Where the mother deposes to at least two sources of funds to meet any order for costs in the appeal – Where the father concedes that the appeal is not entirely without merit – Where an order for security for costs would not stifle the litigation – Where further submissions are sought from the parties – Where injunctions are put in place pending the finalisation of the appeal restraining the mother from joining with her current husband in obtaining any further loan secured over either of the titles to their jointly owned properties, and from dealing with or disposing of $16,682.18 of her share of any net proceeds of sale of either or both of those properties.

  • Haber & Rufino [2020] FamCAFC 158

    03 Jul 2020

    APPLICATION IN AN APPEAL – REINSTATEMENT – Where the evidentiary picture at trial was incomplete – Where the parties were offered an adjournment to put further evidence before the Court – Where both parties opted to proceed with the trial and without cross-examination of the other – Where the trial judge made orders dividing a modest property pool equally between the parties – Where the wife subsequently filed an appeal within time but failed to file the Draft Appeal Index – Where the appeal was deemed abandoned – Where the wife now seeks a reinstatement of her appeal – Consideration of the principles of reinstatement as analysed in Bemert & Swallow (2010) FLC 93-441 – Where the wife’s grounds of appeal are without merit – Where there is no injustice to the wife if her application is dismissed – Where her delay is inadequately explained – Application dismissed.

  • Padanowski & Padanowska (No. 2) [2020] FamCAFC 157

    26 Jun 2020

    APPEAL – APPLICATION IN AN APPEAL – Expedition – Interim parenting orders – Where the applicant father acted promptly in filing a Notice of Appeal and an application for expedition – Where the appeal is likely to be heard by a single judge and that would give the matter the appropriate degree of expedition – Application dismissed.

  • Mursell & Rean (No. 2) [2020] FamCAFC 155

    25 Jun 2020

    APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant failed to file the digital transcript of the proceedings before the primary judge on time – Where the delay is minor – Where the default has been cured – Where no particular prejudice flows to the respondent – Application allowed – Where the time for the filing of the digital transcript is extended – Appeal reinstated.

  • Phong and Anor & Scott [2020] FamCAFC 156

    25 Jun 2020

    APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the respondent’s appeal against an indemnity costs order was abandoned – Where the respondent filed an Application in an Appeal in relation to the abandoned appeal and that application was subsequently discontinued – Where the applicants seek their costs of that application – Where the respondent was entirely unsuccessful in his application – Where the respondent’s conduct of the proceedings generally, the appeal and the application justify a costs order – Respondent to pay the applicants’ costs in a fixed sum.
    APPEAL – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the respondent filed an Application in an Appeal seeking an adjournment prior to the hearing – Where there was no appearance by the respondent at the hearing – Where the point of the adjournment is unknown – Application dismissed.

     

  • Atwood & Atwood [2020] FamCAFC 153

    26 Jun 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – PRACTICE AND PROCEDURE – Provision of transcript – Factors relevant in support of an application for the provision of transcript at the Court’s expense – Whether there are merits in the grounds of appeal which justify the provision of transcript – Application dismissed.

  • Masih & El Saeid [2020] FamCAFC 152

    25 Jun 2020

    FAMILY LAW – APPEAL – PARENTING – Competing applications as to children’s primary living arrangements and time – Views – Where children resist relationship with the appellant – Assessment of Risk – Children not at risk – Expert opinion as to outcome in favour of the appellant not considered – Reasons for judgment – Inadequacy of reasons – Applications to adduce further evidence dismissed – Appeal allowed – Matter remitted for rehearing – Costs certificates awarded.

  • Lietzau & Lietzau [2020] FamCAFC 149

    22 Jun 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – REOPEN HEARING – LEAVE TO APPEAL – Where there was no demonstrable misunderstanding by the judge who heard the application for leave to appeal of a material aspect of the applicant’s case – Where there is no relevant change of circumstances – Where there is no basis for leave to be given to reopen the application for leave to appeal – Where leave is required if the order is an interlocutory order as to a matter of practice and procedure – Where here there is no doubt that the order or rather the refusal to make the order was an interlocutory order as to a matter of practice and procedure despite the parenting orders sought in the substantive proceedings – Where leave to appeal is required – Application in an Appeal dismissed.

  • El Saeid & Masih and Ors [2020] FamCAFC 150

    22 Jun 2020

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant wife challenges the primary judge’s dismissal of her Points of Claim relating to properties owned by entities and trusts associated with members of the respondent husband’s family – Where 16 of 19 grounds of appeal were abandoned at the appeal hearing – Where the remaining grounds of appeal fail – Where the contentions that the wife sought to make on appeal followed a different course to that taken at trial – Where no material error on the part of the primary judge could be demonstrated – Appeal dismissed – Amendment to the primary judge’s orders pursuant to s 94(2) of the Family Law Act 1975 (Cth) – Written submissions as to costs.

  • Mandley & The Estate of Debbins [2020] FamCAFC 154

    12 Jun 2020

    FAMILY LAW – APPEAL – ADJOURNMENT – Where the appellant seeks an adjournment to obtain legal advice with regard to the primary judge’s finding that she had no jurisdiction to make the orders sought – Where there is no basis on which the finding by the primary judge as to jurisdiction can be challenged – Where the appellant has had ample time to seek that advice – Application refused.

    FAMILY LAW – APPEAL – DISMISS – Where the respondent seeks dismissal of the appellant’s Notice of Appeal and in the alternative security for costs –– Where the grounds of appeal do not have a reasonable chance of success and do not address the primary issue, namely that of jurisdiction – Appeal dismissed.


  • Christensen & Powell [2020] FamCAFC 148

    19 Jun 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file an appeal against interlocutory orders – Where the applicant husband was 30 days late in filing the Notice of Appeal – Sufficient explanation for delay – No merit in the appeal – Where refusing an extension of time would not occasion a substantial injustice – Application dismissed – Husband to pay the respondent wife’s costs of the application.

  • Myron & Milson [2020] FamCAFC 151

    19 Jun 2020

    FAMILY LAW – APPEAL – PARENTING – Where the father appeals against orders that he have no contact with the children – Family violence – Risk of emotional and psychological harm to the children – Best interests of the child – Procedural fairness – Application to adjourn trial dismissed – Trial conducted without father’s participation – Where father did not apply to reopen the trial – Failure to apply to vary or set aside orders – No error established – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – REOPEN APPEAL – Where the father sought to adduce further evidence on appeal and later sought to reopen the appeal for the purpose of adducing further evidence – Evidence of limited probative value – Reopening to address evidentiary weakness exposed at appeal hearing – Both applications dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the father wholly unsuccessful – Father an undischarged bankrupt – Costs order made in favour of the mother.


  • SCVG [2020] FamCAFC 147

    12 Jun 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE – Application for leave governed by ss 102QE, 102QF and 102QG of the Family Law Act 1975 (Cth) – Where the applicant requires the grant of leave to bring any fresh proceedings relating to Part VII of the Family Law Act 1975 (Cth) and also the grant of leave to appeal from the order made by the primary judge – Where the applicant disputes that leave to file his intended appeal is actually required because the original order was made pursuant to s 118 (repealed in 2018), not s 102QB, of the Family Law Act 1975 (Cth) – Where the source of power for the original order, which had prospective effect, could only have been Part XIB of the Family Law Act 1975 (Cth) – Where the statutory test for “vexatious proceedings” is applied – Where the applicant’s intended proceedings are without reasonable grounds – Where the applicant is unable to establish his entitlement to the grant of leave to bring fresh proceedings – Leave refused – Where it is unnecessary for the Full Court to separately consider whether the applicant should additionally have leave under s 94AA of the Family Law Act 1975 (Cth) to appeal from the primary judge’s order – Application dismissed.

  • Crabman & Crabman [2020] FamCAFC 146

    12 Jun 2020

    FAMILY LAW – APPEAL – APPREHENDED BIAS – Interventions by the primary judge during the trial – Challenge to findings made in judgment said to demonstrate bias – Apprehended bias not established.
    FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – CONTRAVENTION – Where the parties were self-represented – Irregularity as regards procedure – Denial of procedural fairness – Reasons for judgment – Where the published reasons substantially altered the oral reasons – Impermissible editing – PARENTING – Nexus between contravention application and parenting application – Relevant consideration – Appeal allowed – Costs certificates issued for the appeal and rehearing.

     

  • Spencer & Spencer (No. 3) [2020] FamCAFC 145

    12 Jun 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – VEXATIOUS LITIGANT – Where final parenting and property orders were made in 2013 and 2017 respectively – Where the primary judge found the mother had abused the child emotionally and psychologically by causing him to falsely believe that he had been sexually abused by his father – Where the mother was declared a vexatious litigant in 2014 – Where the mother subsequently made an application to institute fresh parenting proceedings – Where the mother’s application failed to comply with the requirements of s 102QE(3) of the Family Law Act 1975 (Cth) – Where the primary judge nonetheless considered the merits of the application – Where the primary judge dismissed the mother’s application – Where the primary judge found the mother continued to be “fixated” on issues already decided by the Court – Where the mother’s application was another example of her vexatious litigation – Where the mother seeks leave to appeal – Where the mother’s complaints on appeal are discursive – Where the mother sought to re-agitate the issues decided in the 2013 parenting proceedings – Where nothing advanced by the mother in her application evidences any error on the part of the primary judge – Application dismissed – Where the mother is to pay the father’s costs in a fixed sum.
    FAMILY LAW – APPLICATIONS IN AN APPEAL – Where the mother filed four Applications in an Appeal – Where those applications sought the recusal of the bench of three judges, to adduce further evidence and to review decisions of a Registrar – Where the recusal application was decided separately – Where all three applications were devoid of merit – Where the applications evidence the mother’s intention to re-agitate issues already decided – Applications dismissed.

     

  • Salvage & Fosse [2020] FamCAFC 144

    12 Jun 2020

    FAMILY LAW – APPEAL – LITIGATION FUNDING – Application to set aside financial agreement and apply for a property settlement order – Litigation funding order made in relation to application to set aside financial agreement – Application of costs power for litigation funding orders – Where the primary judge found that the respondent had “at least an arguable case” – Whether the case to be raised by the applicant is sufficient, in all of the circumstances, as to its nature and prospects, to justify an interim order for costs – Failure to evaluate the likely result of any property division and consider costs to the parties – Irreversibility – Leave to appeal granted – Appeal allowed in part.
    FAMILY LAW – APPEAL – INTERIM DE FACTO SPOUSAL MAINTENANCE – Where the financial agreement came into effect after the breakdown of the relationship between the parties – Section 90UI of the Family Law Act 1975 (Cth) restricts the ability to exclude or limit the power of the Court to make a maintenance order pursuant to s 90SE and s 90SG – Meaning of “came into effect” discussed – Leave to appeal refused – Costs order made.

     

  • Grady & Chilcott [2020] FamCAFC 143

    11 Jun 2020

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from final property adjustment orders – Where the parties were in a de facto relationship – Where no property adjustment was made – Whether the primary judge erred in finding that it was not just and equitable to make a property adjustment order – Weight challenges – Where the findings made by the primary judge were within her discretion – Appeal dismissed – Appellant to pay the respondent’s costs.

  • Marcin & Marcin (No. 2) [2020] FamCAFC 142

    10 Jun 2020

    FAMILY LAW – APPEAL – PROPERTY – REMITTER OR RE-EXERCISE OF DISCRETION – Appeal allowed on a narrow and discrete point – Where the parties’ oral submissions are heard as to whether the appeal should be finalised by remitter of proceedings for re-hearing or the re-exercise of discretion – Where the appellant seeks remitter to adduce evidence as to his current circumstances – Where the respondent conceded, in those circumstances, there was no alternative but to remit – Where the primary judge is not disqualified from re-hearing the proceedings because the single appealable error was entirely factual, only proven by further evidence adduced in the appeal – Where the proceedings between the parties under Part VIII of the Family Law Act 1975 (Cth) are remitted to the Family Court of Western Australia. 
    FAMILY LAW – APPEAL – COSTS – Appeal successful – Where both parties sought costs – Where the appellant’s application for costs was made in breach of an earlier procedural order and abandoned – Where the relevant factors considered under s 117(2A) of the Family Law Act 1975 (Cth) warrant a costs order in the respondent’s favour – Costs ordered in favour of the respondent in a fixed sum.

     

  • Zawadzki & Zawadzki (No. 2) [2020] FamCAFC 131

    01 Jun 2020

    FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Unacceptable risk of harm – Whether the respondent’s time with the children should  be supervised – Where the primary judge found that the respondent posed an unacceptable risk of harm to the children in 2014 – Where the primary judge found that the respondent no longer posed an unacceptable risk of harm to the children in 2019 – Where the 2014 findings were used as the touchstone against which the asserted changes in circumstances and the respondent’s behaviour could be assessed in 2019 – Issue estoppel – Application of s 69ZX of the Family Law Act 1975 (Cth) – Procedural fairness – Assessment of expert evidence – Where no oral or written submissions were directed to some of the grounds of appeal – Where no grounds of appeal succeed – Appeal dismissed – No order as to costs.

  • Caulfield & Read and Anor [2020] FamCAFC 127

    28 May 2020

    FAMILY LAW – APPEAL – PROPERTY – Whether a registered mortgage is subject to s 24 of the Limitation of Actions Act 1974 (Qld) – Whether the appellant’s rights under his mortgage over the husband and the wife’s property have been extinguished – Proper construction of s 24 of the Limitation of Actions Act 1974 (Qld) – Discussion of the tension between s 24 of the Limitation of Actions Act 1974 (Qld) and the Land Title Act 1994 (Qld) – Statute of limitations – Indefeasible title – Where a title arising from a mortgage can be extinguished by provisions in a statute of limitations – Appeal dismissed.
    FAMILY LAW – CROSS-APPEAL – PROPERTY – Appeal against final property settlement orders – Where the mortgaged properties the subject of the substantive appeal form a significant portion of the property available for division between the husband and the wife – Assessment of contributions – Consideration of s 75(2) factors – Challenges to credit and fact findings – No merit in any of the grounds of the cross-appeal – Cross-appeal dismissed.

     

  • Olman and Anor & Teitzel [2020] FamCAFC 136

    25 May 2020

    FAMILY LAW – APPEAL – NOTICE OF CONSTITUTIONAL MATTER – Where there is no live constitutional matter in this appeal – Where the Notice has been provided to the Attorneys-General of the Commonwealth and of the States and there has been no application to intervene or to remove the cause to the High Court of Australia – Notice dismissed.
    FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where once again there is no appearance by or on behalf of the first and second appellants – Where the respondent presses her application for summary dismissal of the Notice of Appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where there is no merit in any of the grounds of appeal and none of those grounds have any prospect of success – Appeal dismissed.
    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs – Where the appeal has been wholly unsuccessful – Where there are circumstances which justify an order for costs being made – Costs ordered in favour on the respondent in the sum as sought.

     

  • Crabman & Crabman [2020] FamCAFC 118

    14 May 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the father appeals from parenting orders made in February 2019 – Where the father seeks the Court provide the transcript of the hearing before the trial judge and of the trial judge’s ex tempore reasons – Where the father alleges a denial of procedural fairness – Where the father alleges the trial judge has omitted portions of his ex tempore oral reasons from the written reasons for judgment – Where the father establishes an inability to afford the cost of the transcript – Where the father’s challenges on appeal are directed to fundamental aspects concerning the integrity of the judicial process – Where the audio recording of the ex tempore reasons is insufficient – Application granted.

  • Renahan & Svitah [2020] FamCAFC 141

    05 Jun 2020

    APPEAL – PROPERTY – Challenge to the registration of an arbitration award by consent – Application for summary dismissal pursuant to s 96AA of the Family Law Act 1975 (Cth) made by the respondent – Where the grounds of appeal do not identify any error on the part of the primary judge – No prospects of success in any of the grounds of appeal – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal in a fixed sum.

  • Shee & Hale [2020] FamCAFC 140

    05 Jun 2020

    APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the delay is extensive – Where the delay is not satisfactorily explained by the evidence – Where the proposed appeal does not have sufficient merit to justify an extension of time in light of the lengthy delay – Application for an extension of time dismissed – Applicant to pay the respondent’s costs of the application as agreed or assessed.

  • Sablan & Radcliffe and Anor [2020] FamCAFC 139

    05 Jun 2020

    APPEAL – PROPERTY – Where the appellant wife appealed against property settlement orders – Where the appeal was heard by the Full Court and the parties were directed to file further submissions as to the trustees, assets and liabilities of the parties’ family and property trusts as well as the asset pool established by the primary judge – Where the parties subsequently reached agreement and filed a Minute of Order which the Full Court now makes to finalise the appeal – Where the question of costs needed to be addressed by the Full Court – Appeal allowed – Matter remitted.
    APPEAL – COSTS – Where the wife sought costs against the first respondent husband – Where neither party aided the primary judge in clarifying the values and inter-relationships of the parties’ corporate and trust entities – Where the parties sought costs certificates – No order as to costs – Applications for costs certificates dismissed.

     

  • Yau & Lac [2020] FamCAFC 138

    05 Jun 2020

    APPEAL – PARENTING – Appeal against final parenting orders which provided for the father to have sole parental responsibility of the child and for the mother to spend limited supervised time with the child – Weight challenges – Allegation of bias – No error of fact or law by the primary judge – Where the primary judge’s findings were open on the evidence – Where the primary judge did not consider irrelevant matters – Appeal dismissed – No order as to costs.

  • Kolodziej & Wason [2020] FamCAFC 137

    05 Jun 2020

    APPEAL – PARENTING – Where there is no merit in any of the grounds of appeal – Where there is no error by the Magistrate – Appeal dismissed.
    APPEAL – COSTS – Where the respondent seeks costs – Where the appeal has been wholly unsuccessful – Costs ordered in favour of the respondent in the sum sought.

     

  • Gresham & Gresham [2020] FamCAFC 135

    04 Jun 2020

    APPEAL – PROPERTY – COSTS – Appeal against spousal maintenance orders – Where the respondent husband conceded the appeal – Error established – Appeal allowed – Orders set aside – Matter remitted – Written offers made prior to the appeal – Where the husband has been wholly unsuccessful – Where the husband is in a strong financial position – Husband to pay the appellant wife’s costs of and incidental to the appeal in a fixed sum.

  • Badeni & Dangerfield [2020] FamCAFC 133

    03 Jun 2020

    APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the appellant father failed to file a draft index to the appeal book in accordance with r. 22.13 of the Family Law Rules 2004 (Cth) – Reasonable excuse for delay – Where the father’s proposed appeal has very limited prospects of success – Where it would work an injustice upon the respondent mother and the child for the appeal to proceed – Application for reinstatement dismissed – No order as to costs.

  • Salmon and Ors & Salmon [2020] FamCAFC 134

    01 Jun 2020

    APPLICATION IN AN APPEAL – PROPERTY – EXPERT EVIDENCE – Consideration of Part 15.5 of the Family Law Rules 2004 (Cth) – Where the primary judge refused permission under r 15.49 for expert evidence other than the single expert but extended the time periods for a conference (r 15.64B) and questions to the single expert (r 15.65) – Whether the applicants have established “a substantial body of opinion contrary to” the opinion of the single expert or “special reason” within the meaning of r 15.49(2) – Interpretation and application of the expert evidence rules.
    APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where the orders from which leave to appeal is sought are a discretionary decision as to a matter of practice and procedure – Whether any discretionary error was made by the primary judge – Whether there is any basis for the grant of leave to appeal – Where the procedures for clarifying the single expert’s opinions had not been employed in advance of the application determined by the primary judge or the application for leave to appeal – Where on the proper interpretation of the applicable expert evidence rules there is no discretionary error demonstrated – Leave to appeal refused – applicants to pay the respondent’s costs.

     

  • Yeates & Yeates [2020] FamCAFC 132

    01 Jun 2020

    APPLICATION IN AN APPEAL – Extend time to file a Notice of Appeal – Where it is not clear why an order was made that the husband pay the wife $100,000 – Where there was a delay because the husband was initially unrepresented and focused on complying with disclosure of documents –  Where short delay – Whether a condition should be ordered on the husband because he has not complied with the primary judge’s orders – Where the primary judge contemplated non-compliance – Where there is merit in the appeal – Where there is a reasonable explanation for the delay in filing a Notice of appeal – Application in an Appeal allowed – Order for extension of time – Order that the husband pay the wife’s costs.

  • Simons & Simons [2020] FamCAFC 128

    29 May 2020

    APPEAL – PROPERTY – Appeal from orders made by the primary judge dividing the parties property under Part VII of the Family Law Act 1975 (Cth)  – Where the primary judge made an assessment of the parties’ contribution-based entitlements pursuant to s 79(4) of the Family Law Act 1975 (Cth) and an adjustment under s 75(2) in favour of the wife – Where the husband’s complaint on appeal is that the primary judge erred at law by failing to give adequate reasons – Where the husband also contends the result was plainly wrong – Where the findings about the parties’ contributions and future needs were open to the primary judge – Where the primary judge’s reasons are not explicit about why the s 75(2) adjustment was found to be assessed at 7.5 per cent, but the explanation is easily inferred – Where it is not accepted the primary judge failed to give sufficient reasons for the property settlement orders – Where both grounds of appeal fail – Appeal dismissed. 
    APPEAL – COSTS – Where the appeal is wholly unsuccessful – Where the wife sought an order for the husband to pay her solicitor/client costs in a fixed amount – Where part of the husband’s appeal was belatedly discontinued and the remainder lacked merit – Where the husband concedes an order for costs but not in the sum claimed – Where the husband’s financial circumstances do not preclude an order for costs against him – Where the wife’s counsel conceded it was open to fix a lesser sum of party/party costs – Where reliance upon r 19.18(1)(a) of the Family Law Rules 2004 (Cth) – Where the husband ordered to pay the wife’s costs of and incidental to the appeal in a fixed sum.

     

  • Lethbridge & Taylor [2020] FamCAFC 129

    29 May 2020

    APPEAL – PARENTING – Where the mother appeals from interim orders requiring her to undergo a psychiatric assessment and for the preparation of a family report and not ordering the child to be placed in her care – Where this matter has a long history with final orders made in 2014 – Where the mother’s unsupervised time provided for in the 2014 orders was subject to her ongoing psychiatric treatment for her diagnosed bipolar disorder – Where the child did not spend any time with the mother for about five years following those orders – Where the mother was successful in reopening the proceedings in 2019 – Where orders made in 2019 provided for two supervised visits between the mother and child – Where, as at the first of those visits, the mother had not seen the child for five years – Where the contact centre notes from those visits were properly tendered as evidence before the primary judge – Where those notes evidence the child’s strong resistance to seeing or spending time with the mother – Where those notes highlight potential difficulties with the mother’s mental health – Where the primary judge suspended orders providing for the mother’s supervised time with the child – Where the primary judge required the mother undergo a psychiatric evaluation to assess her mental health – Where the mother alleges procedural unfairness, bias and a failure to consider the entirety of the evidence – Where such challenges are without merit – Appeal dismissed – No order as to costs.

  • Jasapas & Johns [2020] FamCAFC 130

    28 May 2020

    APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks the expedition of her appeal from final parenting orders – Where those orders provide for the children to live with the father and for there to be a moratorium on the mother’s time with the children for six months – Where prior to the orders being made, the children lived with the mother and spent only supervised time with the father – Where this was the second final hearing in these proceedings – Where the mother’s case at both trials was that the father had physically and sexually abused the children – Where the trial judge found there to be no substance in those allegations and that the children were at an unacceptable risk of psychological harm in the mother’s care – Where neither the father nor the Independent Children’s Lawyer oppose the application – Where the history of this litigation and the nature of the allegations underlying the litigation carries the risk of hardship to both the parents and in particular the children – Where the expedition of the hearing of the appeal may avoid further emotional or psychological harm – Application granted – Costs reserved.

  • Meadows & Meadows (No. 4) [2020] FamCAFC 125

    26 May 2020

    APPEAL – PRACTICE AND PROCEDURE – Appeal from an order dismissing an Application to Review a Registrar’s Decision – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Where the appeal has no merit – Abuse of process – Appeal dismissed.

  • Meadows & Meadows (No. 3) [2020] FamCAFC 124

    26 May 2020

    Meadows & Meadows (No. 3) [2020] FamCAFC 124

  • Paintal & Paintal [2020] FamCAFC 123

    22 May 2020

    APPEAL – PARENTING – Appeal from an order made by the primary judge dismissing an interim parenting application – Where the grounds of appeal contend issues of procedural fairness, errors of fact and a failure by the primary judge to take into account material considerations – Where some of the grounds of appeal are considered as a collective attack on the Independent Children’s Lawyer – Where the mother and the Independent Children’s Lawyer oppose the appeal – Where no procedural fairness – Where the primary judge carefully abstained from making any factual findings on controversial evidence – Where no errors of fact – Where the material considerations allegedly not taken into account by the primary judge were not posited by the father to the primary judge as influential considerations – Where the Independent Children’s Lawyer was obliged to form her own view which incidentally coincided with the mother’s view – Where the primary judge’s reasons are adequate – Where there is no merit in the appeal – Appeal dismissed.
    APPEAL – COSTS – Where the appeal is wholly unsuccessful – Where the mother and the Independent Children’s Lawyer sought costs orders against the father – Where party/party costs are sought – Where the father’s financial circumstances are considered – Where the father has not demonstrated that he will suffer hardship if ordered to pay costs – Where the father is ordered to pay fixed costs to the mother and the Independent Children’s Lawyer.

     

  • Langley & Tarelli and Anor (No 2) [2020] FamCAFC 126

    15 May 2020

    APPEAL – Appeal against orders to stay parenting proceedings pending determination of criminal charges – Interlocutory order – Right of appeal – Best interests of the child – Paramountcy principle – Consideration of privilege against self incrimination and s 128 of the Evidence Act 1995 (Cth) – Findings of fact – Error established – Appeal allowed – Orders set aside – Re-exercise – Application to stay parenting proceedings dismissed – Costs certificate issued to appellant.

  • Soglia & Soglia [2020] FamCAFC 122

    22 May 2020

    APPEAL – APPEAL AGAINST COSTS ORDER – Where the appellant wife asserts that the primary judge failed to take proper notice of the financial circumstances of each party – Where the primary judge had regard to the financial circumstances of the parties, together with s 117(2A)(e) and s 117(2A)(f) of the Family Law Act 1975 (Cth) and found that there were circumstances which justified an order for costs being made – Where the wife asserts that costs should not have been awarded against her because it was the conduct of her previous solicitors in not preparing properly for the hearing and briefing counsel four days before the hearing which necessitated her seeking an adjournment – Where the wife did not raise her complaints about her previous solicitor before the primary judge and it is not now open for her to do so – Where the wife had an opportunity to seek that her previous solicitor bear the costs of the adjournment but she did not make that submission – Where the primary judge took the conduct of the wife into account and made no error – Where there is no merit in the grounds of appeal – Appeal dismissed.

    APPEAL – COSTS – Where the respondent husband makes an oral application for his costs of the appeal – Where the provisions of s 117(1) of the Family Law Act 1975 (Cth) apply – Each party should bear their own costs – Application dismissed.


  • Casey & Stadler and Anor [2020] FamCAFC 121

    20 May 2020

    APPEAL – APPLICATION FOR REINSTATEMENT – Where the applicant failed to file a Draft Appeal Index as directed – Where the appeal was deemed abandoned – Where the applicant seeks to reinstate their appeal – Delay explained – Where the applicant seeks to appeal the dismissal of their application for a recovery order in relation to a 17 year old – Where the proposed grounds of appeal are unlikely to attract appellate intervention – Application dismissed.

  • Jabbar & Gade (No. 2) [2020] FamCAFC 119

    20 May 2020

    APPEAL – SUMMARY DISMISSAL – Where the Initiating Application sought to re-agitate decided parenting proceedings – Where the Initiating Application had no reasonable prospects of success – s 102QB Order – No error demonstrated – Appeal dismissed.

    APPEAL – APPEAL AGAINST COSTS ORDER – Where the primary judge made an order for costs against the mother – Where the mother appealed that order – Costs order properly made – Appeal dismissed.

    APPEAL – COSTS – Where the mother’s appeals were wholly unsuccessful – Where the father sought costs – Financial disparity between the parties – No order as to costs.


  • Bulow & Bulow [2020] FamCAFC 120

    19 May 2020

    APPEAL – PROPERTY – Where the appellant alleges apprehended and actual bias by the primary judge – Where it is readily apparent that all the appellant is doing in many of his grounds of appeal is identifying orders made or reasons delivered by the primary judge with which he disagrees and suggesting therefore that his Honour was biased – Where none of the grounds of appeal demonstrate bias on the part of the primary judge nor error in his Honour refusing to recuse himself – Appeal dismissed.

  • Carrington & Gunby [2020] FamCAFC 117

    15 May 2020

    APPEAL – PARENTING – Contravention of parenting orders – Whether the father demonstrated that he had a reasonable excuse for retaining the child – Whether the father believed on reasonable grounds that the retention of the child was necessary to protect the safety of the child – Whether the father’s retention of the child was not longer than necessary to protect the safety of the child – Consideration of the evidentiary value of a Notice of Child Abuse, Family Violence, or Risk of Family Violence – Where there was no evidence as to a risk of harm to the child that reasonably justified the father’s continued retention of the child – No error by the primary judge – Appeal dismissed.

  • Cagan & Sabone [2020] FamCAFC 116

    15 May 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant failed to file the Draft Appeal Index within the required time – Where the appeal was deemed abandoned per Rule 22.21 of the Family Law Rules 2004 (Cth) – Where the applicant seeks a reinstatement of the appeal – Where the appeal has merit – Appeal reinstated.

  • Syms & Syms [2020] FamCAFC 115

    15 May 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR REVIEW OF APPEAL REGISTRAR'S DECISION – Where procedural orders were made regarding the composition of the Appeal Book – Where the mother requires further documents and a transcript to be included in the Appeal Book – Where the mother seeks leave to issue a subpoena to the Independent Children’s Lawyer – Fishing expedition and relevance of documents – Order for the mother to prepare a Contentious Appeal Book – No leave to issue the subpoena – Application allowed in part.

  • Blakeley & Jaine [2020] FamCAFC 114

    15 May 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Spousal maintenance – Where the husband attempted to file the Notice of Appeal on the last day for filing – Where the husband attempted to contact the Appeal Registry for assistance but was unable to do so – Where the Notice of Appeal was subsequently rejected – Where there is sufficient merit in the appeal such that granting an extension of time would not be futile – Where the husband would suffer an injustice if leave is not granted – Application allowed.

  • Genesalio & Genesalio [2020] FamCAFC 113

    14 May 2020

    FAMILY LAW – APPEAL – COSTS – Where leave is granted to the husband to adduce the further evidence sought to be relied on – Where the husband had not complied with court orders – Where a further adjournment was granted to enable the husband to comply with those orders – Where it is well settled that the Full Court is reluctant to interfere with the exercise of discretion by a trial judge to make costs orders – Where the discretion was not exercised erroneously – Where there were circumstances justifying an order for costs being made – Where there is no merit in any of the grounds of appeal – Appeal dismissed.
    FAMILY LAW – LEAVE TO APPEAL – APPEAL – PROPERTY – SOLE USE AND OCCUPATION – Where the further evidence sought to be adduced with the exception of a solicitor’s affidavit was admitted – Where leave to appeal is reliant on the success of the grounds of appeal – Where the husband asserts that as the wife had instituted proceedings in the Magistrates Court at Melbourne she was not entitled to institute proceedings in the Federal Circuit Court of Australia (s 114AB(2) of the Family Law Act 1975 (Cth)) – Where the wife contends that no order having been made in the Magistrates Court at Melbourne excluding the husband from the home, that can be viewed in the same way as if an order had been made but had been set aside or had lapsed (s 114AB(2)(a)(ii) of the Family Law Act 1975 (Cth)) – Where the primary judge erred in failing to dismiss the application as being in breach of s 114AB(2) or at the very least to adjourn the application before him pending finalisation of the Magistrates Court proceedings – Where the primary judge was in error in striking out the husband’s affidavit as being non-compliant with Practice Direction No. 2 of 2017 as the Practice Direction did not apply to this affidavit – Where the affidavit of the wife was accepted even though it did not comply with the Practice Direction – Where the contents of the husband’s affidavit were crucial to the husband’s opposition to the wife’s application for sole use and occupation, but also in support of his application in his response in that regard and thus could be relied on by the husband for those purposes (r 4.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth)) – Where the husband’s various medical conditions were matters highly relevant to the issue of sole use and occupation and relevant medical reports were annexed to the husband’s affidavit which was struck out – Where by striking out the husband’s affidavit the primary judge did not have before him to weigh in the balance the husband’s position as to the financial circumstances of the parties or in relation to the ability of the parties to relocate and did not take into account the wife’s interest in the substantial estate of her late mother – Where all but the ground of appeal asserting apprehended bias have merit – Leave to appeal granted – Appeal allowed – Orders 1 and 2 made on 8 November 2018 set aside – Application for interim orders filed by the wife insofar as she seeks an order for sole use and occupation of the former matrimonial home and for the husband to vacate that property within 14 days be dismissed.
    FAMILY LAW – COSTS – Orders made providing a regime for the filing of written submissions.

     

  • Chaborne & Chaborne (No. 2) [2020] FamCAFC 112

    12 May 2020

    FAMILY LAW – APPEAL – PARENTING – Where the grounds of appeal do not challenge or relate to all of the orders the subject of the appeal – Where no basis is demonstrated sufficient to overturn the Magistrate’s discretionary decision because of any issue of weight – Where no error by the Magistrate is demonstrated – Where there is no merit in any of the grounds of appeal – Appeal dismissed.
    FAMILY LAW – APPEAL – PROPERTY – Where the father appeals final property settlement orders – Where the father contends that the Magistrate’s assessment of the parties’ contributions, s 75(2) factors and overall decision was outside the reasonable exercise of discretion – Weight challenges – Where the Magistrate’s findings of fact were not challenged – Where this Court cannot substitute the Magistrate’s decision for its own – Where the grounds of appeal lacked merit – Appeal dismissed.
    FAMILY LAW – APPEAL – COSTS – Where if the appeal was dismissed it was agreed that the father pay the mother’s costs of and incidental to the appeal fixed in the sum of $12,000 – Costs ordered in favour of the mother as agreed payable within 90 days of the date of orders being made.

     

  • Pinson & Pinson (No. 2) [2020] FamCAFC 111

    12 May 2020

    FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders which resulted in a change of residence – Where the primary judge had competing untested medical evidence about the mother’s mental health – Where untested assertions made by the single expert about the mother’s mental health could not be ignored – Where the adjournment granted by the primary judge was not procedurally unfair – Where although the primary judge did not warn the mother about the privilege attached to statements made by a family law dispute resolution practitioner, the primary judge did not rely upon that evidence – Where any prima facie denial of procedural fairness to the mother in using observations made of her during the hearing are not determinative as they only fortified the observations of the single expert and a new trial if ordered would lead to the same result – Where the primary judge did not impermissibly use his prior experience when weighing the single experts report – Where the primary did not fail to consider the mandatory statutory considerations – Where the primary judge gave appropriate weight to the untested competing medical opinions – Where the primary judge impermissibly delegated judicial power when making an order about what time the child spend with the mother – Where an order for supervised time at a contact centre was made without establishing whether it was reasonably practicable – Where an order was made as to the costs of the supervised contact centre which was different from the application before the primary judge and was made without adequate reasons – Appeal allowed in part – Matter remitted – Costs certificates granted.

  • Sargent & Selwyn [2020] FamCAFC 110

    11 May 2020

    FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Sole parental responsibility – Spend time arrangements – Best interests – Adequacy of reasons – Challenges to the weight given to particular evidence – No errors of fact – No denial of procedural fairness – Allegation of bias – No merit in any of the 19 grounds of appeal – Appeal dismissed.
    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Slip rule – Appeal from order corrected pursuant to the slip rule – Accidental omission of words – Order correctly amended to reflect the Court’s intention – Appeal dismissed.
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Family violence – Where family violence was not an issue at trial – Where the material would not point to a different conclusion – Where the material was available at trial – No procedural unfairness if application dismissed – Application dismissed.
    FAMILY LAW – APPEAL – COSTS – Both appeals wholly unsuccessful – Father to pay the mother’s costs of the substantive appeal – Father to pay the Independent Children Lawyer’s costs of both appeals.

     

  • Hunt & Atkins and Ors [2020] FamCAFC 57

    12 Mar 2020

    APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the applicant husband seeks to expedite the respondent wife’s appeal against final property and spousal maintenance orders – Where matter has lengthy history – Where applicant has age related difficulties – Where expedition is variously supported or unopposed – Application granted.