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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.

  • Whitby & Zeller [2018] FamCAFC 64

    06 Apr 2018

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

    FAMILY LAW − APPEAL – PARENTING – Where the mother appeals interim orders requiring her to facilitate the child being informed of his father’s identity – Where the mother has brought appeals from similar orders before – Where the primary judge’s findings were open on the evidence – No appealable error demonstrated – Appeal dismissed.

  • Rilak & Tsocas [2018] FamCAFC 70

    12 Apr 2018

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

    FAMILY LAW – APPEAL –  APPLICATION IN AN APPEAL – Where the appellant sought that the presiding judge recuse herself – Where the appellant argued apprehension of bias – Application dismissed.

  • Pandelis & Pandelis [2018] FamCAFC 66

    11 Apr 2018

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Primary judge adopted a “two pool” approach – Husband argued the determination of contributions in relation to the main “pool” was against the weight of the evidence – Proper approach to assessment of contributions – Zyk and Zyk (1995) FLC 92-644 and Dickons v Dickons (2012) 50 Fam LR 244 considered – Husband contended the primary judge gave insufficient weight to his pre-separation contributions – Held primary judge erred in principle in assessing a particular contribution, but appellate interference was not warranted – Wife received a 10 per cent adjustment on account of s 75(2) factors – Held adjustment was not manifestly excessive – Primary judge understood the real impact of the assessment made – Clauson and Clauson (1995) FLC 92-595 considered – Inconsistency in reasons regarding husband’s tax liability – Found the primary judge erred by leaving the husband entirely responsible for the tax debt – Primary judge inappropriately differentiated between “matrimonial” and “non-matrimonial” debts – Miller and Miller (1984) FLC 91-542 considered – Appeal allowed – No order as to costs – Costs certificates issued.

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Superannuation – Form of orders – Neither party sought a superannuation splitting order at trial – Primary judge ordered an “equal division of superannuation” – No appeal against this decision or the form of the splitting order – Held the order does not achieve the outcome intended and does not comply with s 90MT(4) of the Family Law Act 1975 (Cth) – Procedural fairness appears not to have been given to the trustee – Necessary to afford the parties an opportunity to consider the form of orders the Full Court considers appropriate and to ensure notice is given to the trustee.

    FAMILY LAW – APPEAL – Re-exercise of discretion – Primary judge’s orders set aside and timetable set out for the filing of minutes regarding the re-exercise of the discretion.

  • Oakley & Millar [2018] FamCAFC 47

    09 Mar 2018

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

    FAMILY LAW – APPEAL – Appeal from an order dismissing the father’s application for an injunction restraining him from leaving Australia to be lifted – Where the father’s Amended Notice of Appeal is incompetent because it is directed to orders other than the order from which he appeals and fails to disclose any proper grounds of appeal – Where the injunction was properly made – Where the primary judge’s finding that the father did not demonstrate sufficient changed circumstances to have the injunction varied was open on the evidence – Appeal from costs order – Costs order properly made – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where most of the evidence the father seeks to adduce was available to him at the time of the hearing before the primary judge – Where much of the evidence is irrelevant – Application dismissed.

  • Nord & Van [2018] FamCAFC 75

    13 Apr 2018

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

    FAMILY LAW – APPEAL – where leave to amend grounds of appeal was not opposed and was granted – where the trial judge determined the existence of a de facto relationship and made a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – where a party can appeal a s 90RD declaration as of right and therefore leave to appeal is not required – where the appellant contended that the evidence before the trial judge did not support the finding of the existence of a de facto relationship – where the trial judge made adverse findings in respect of the appellant’s credibility at trial – where the trial judge preferred the evidence of the respondent and her witness and placed greater weight upon it – where the trial judge’s ultimate finding of fact as to the existence of a de facto relationship could not be said to be wrong by reference to “incontrovertible facts or uncontested testimony” or is “glaringly improbable” or “contrary to compelling inferences” – where the appellant appealed an order that he pay the respondent’s costs of trial in the fixed sum of $30,000 – where the appellant alleged the trial judge failed to consider relevant s 117(2A) factors – where the trial judge clearly considered s 117(2A) – where the appellant contended he was not provided an opportunity to make submissions in respect of costs – where the trial judge provided ample opportunity for the appellant to make submissions as to costs – where there is no evidence that the trial judge exercised his discretion to make a costs order on wrong principles – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $7,000.

  • Meadows & Meadows [2018] FamCAFC 76

    16 Apr 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – PREPARATION OF APPEAL BOOKS –  Where applicant sought an order that the respondent or Regional Appeals Registrar prepare the appeal books – Where the applicant asserts financial difficulties and difficulties associated with residence in a remote location – Where little utility in the appeal - Directions made permitting the applicant to file electronic appeal books.

  • Knox & Knox [2018] FamCAFC 73

    17 Apr 2018

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

    FAMILY LAW – APPEAL –PARENTING – Where the parties observe different religious practice – Whether the mother’s influence on the children’s religious practice posed an unacceptable risk – Whether the primary judge erred by not making an order she agreed to make – Mother’s failure to mediate with the father – Whether the findings of the primary judge were open on the evidence – Whether the primary judge considered all the evidence in making findings – Conduct of the Independent Children’s Lawyer – Appeal dismissed.

    FAMILY LAW – APPEAL –EVIDENCE – Whether the primary judge erred by not treating evidence as expert evidence.

    FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the evidence would not have affected the outcome – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Costs sought by the Independent Children’s Lawyer – Application for costs dismissed.

  • Goldman & Goldman [2018] FamCAFC 65

    12 Apr 2018

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

    FAMILY LAW – APPEAL – PARENTING – Whether the primary judge’s order for only a four week moratorium on the time the children spend with the wife was inconsistent with the expert evidence and was therefore erroneous – Where the order was open on the evidence – Whether the primary judge erred by placing insufficient weight on her findings of unacceptable risk – Where the point of the moratorium was to ameliorate the risk – Whether the primary judge should have made an order requiring the wife to complete treatment before the moratorium is lifted – Where the husband did not seek such an order at first instance, made no submissions in support of such an order to the primary judge, where the evidence did not support such an order and where no ground of appeal was directed to such a complaint – Adequacy of reasons – Appeal dismissed – Husband ordered to pay the costs of the wife and the Independent Children’s Lawyer.

    FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge’s findings about the payment of the parties’ mortgage were erroneous – Where the findings were supported by the evidence – Whether the primary judge erred by omitting from the property pool a sum of money held by the wife’s solicitors on the basis that it was a loan from the wife’s parents – Where this finding was open on the evidence – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the evidence the husband seeks to adduce is controversial – Application dismissed.

  • Gantz & Billian [2018] FamCAFC 72

    12 Apr 2018

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

    FAMILY LAW – APPEAL – RE-EXERCISE OR REMITTER – Where the respondent conceded error by the primary judge – Whether the appeal court could re-exercise the discretion – Whether there was a proper basis upon which the appeal court could re-exercise the discretion – Where a re-exercise would require an examination of s 79 of the Family Law Act 1975 (Cth) – Where the parties each owned real property acquired separately prior to cohabitation – Where there was no current value of the interests held by each of the parties in their respective property portfolios – Where the orders sought by each of the parties in relation to the amount to be paid to the wife differed significantly and were based on competing contentions as to the direct financial contributions of each of the parties – Where the findings of the primary judge did not provide a proper basis to enable the appeal court to re-exercise the discretion – appeal allowed and remitted for rehearing.

  • Fontana & Fontana [2018] FamCAFC 63

    12 Apr 2018

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

    FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge adequately revealed process of reasoning in assessing contributions – Whether division of property in favour of wife plainly wrong or unjust so as to bespeak error – Whether division of property in favour wrong erroneous in principle – Whether the primary judge failed to consider a potential insurance payment – Whether the husband’s lack of full and frank disclosure should have resulted in a further adjustment to the wife – No error established – Appeal dismissed.

  • Duarte and Anor & Morse [2018] FamCAFC 69

    13 Apr 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time to file an application to review a registrar’s orders – Where the delay was insignificant – Application granted.

    FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW OF A REGISTRAR’S ORDERS – Notices to the Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth) – Whether the Court and its registrars have the power to direct that the noticed be served by a particular date – Whether procedural orders provided adequate timeframes for the filing and service of documents – Whether the registrar should have made an order allowing for the issue of a Notice to Produce – Where Notices to Produce are an interlocutory process not appropriate for an appeal – Where the applicant sought clarification of the Court’s powers – Where the Court cannot give an advisory opinion – Extensions of time and of the length of the parties’ Summaries of Argument granted – Application otherwise dismissed.

  • Crick & Bennett [2018] FamCAFC 68

    13 Apr 2018

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

    FAMILY LAW – APPEAL – DECLARATION OF DE FACTO RELATIONSHIP – Appeal from declaration of a de facto relationship pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) – Adequacy of reasons as to why one party’s evidence was preferred over the other’s – Whether her Honour erred by finding that the parties “presented as a couple” and whether that phrase added an impermissible gloss to the primary judge’s analysis under s 4AA of the Act – Whether findings made by the primary judge were open on the evidence – Whether errors of fact made by the primary judge were material – Whether the finding of a de facto relationship was against the weight of the evidence – No appealable error established – Appeal dismissed – Appellant ordered to pay the respondent’s costs of the appeal, except in respect of the respondent’s unsuccessful application to adduce further evidence.

    FAMILY LAW – LEAVE TO APPEAL – Where declarations pursuant to s 90RD of the Act are final orders and leave to appeal is not required.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the evidence is not relevant to the issues raised in the appeal – Application dismissed.

  • Akhtar & Gaber [2018] FamCAFC 56

    15 Mar 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of his appeal from procedural orders – Where a final hearing of the proceedings is imminent – Where the Notice of Appeal does not identify error on the part of the primary judge – Application for expedition dismissed – Applicant ordered to file an Amended Notice of Appeal – Applicant to pay the respondent’s costs of the application.

  • Welton & Welton [2018] FamCAFC 59

    06 Apr 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no adequate explanation for the failure to file within time – Where the proposed appeal is without merit and has no reasonable chance of success – Where there is prejudice to both parties whichever way the application is decided – Where the justice of the case lies in dismissing the application – Application dismissed.

  • Stege & Stege [2018] FamCAFC 31

    12 Feb 2018

    FAMILY LAW – APPEALS – Multiple appeals brought on for hearing – Five of the appeals relating to interim or interlocutory orders in financial and parenting proceedings futile – Appellant agreed to discontinue these appeals without prejudice to his remaining appeals and the ground of bias – Appellant granted leave to discontinue appeals or application for leave to appeal in five of the seven appeals.

    FAMILY LAW – APPEAL – Application for reinstatement of appeal – Failure to provide draft appeal book index within time – Already a properly constituted appeal against the property settlement matters – Appropriate for the entire property issue to be considered by the Full Court – Not a significant delay in filing the draft appeal book index – Not possible to say that the appeal is entirely without merit – Jackamarra v Krakouer (1998) 195 CLR 516 considered – No prejudice to the respondent – Appeal reinstated – Consolidated with remaining appeal.

    FAMILY LAW – PROVISION OF TRANSCRIPT – Oral application – Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 considered – Appeals relate only to financial matters – Appeals can proceed in part even if no transcript is provided – Transcript likely to be expensive – Appellant would have difficulty affording the transcript – Proportionality of the cost of the transcript to appellant’s anticipated costs of the appeals considered – Oral application for provision of transcript dismissed.

  • Pruchnik & Pruchnik [2018] FamCAFC 67

    09 Apr 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite her appeal against orders substantially changing the children’s living arrangements – Where the orders provide that the children live with the father – Where the mother was the children’s primary carer – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority to the detriment of other cases – Application granted.

  • Lankester & Cribb [2018] FamCAFC 60

    06 Apr 2018

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

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge made orders changing the child’s primary residence, providing for a six-month moratorium on the time the child spends with the mother and providing for a supervised time regime ultimately leading to unsupervised time – Adequacy of reasons – Whether the primary judge properly applied s 60CC of the Family Law Act 1975 (Cth) – Whether the orders were not supported by the evidence – Where Order 7 was made in error and will be set aside – Whether the primary judge’s failure to make specific orders for changeovers made the orders for time unenforceable – Where orders as to changeovers are consequential or machinery orders – Whether, in light of the mother’s poor financial circumstances, the primary judge erred by ordering the mother to pay for supervision – Where the mother did not adduce any evidence nor provide any submissions to show she was not in a position to meet the costs of supervision – Appeal allowed in part – Application for costs dismissed.

  • Kappas & Kappas [2018] FamCAFC 61

    06 Apr 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the only admissible piece of evidence sought to be presented by the appellant was received subject to it demonstrating that the orders under appeal were erroneous – Where that evidence does not establish that the primary judge erred in accepting the evidence of the wife and making the findings that she did – Application dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where the one complaint gleaned from the appellant’s documents that needed to be addressed was whether the primary judge erred in her conclusions as to appellant’s parents’ contribution and interest in a property – Where there was no admissible or credible evidence that established that the husband’s parents provided funds towards the purchase of the property on the understanding that they would have an equitable interest in the same, held on trust for them by the parties – Where the appellant failed to establish his case before the primary judge – Where the appellant has not demonstrated that the primary judge erred in any of her findings, the findings being reasonably open on the evidence – Where it is insufficient to establish that an alternative finding might have been available – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks costs on an indemnity basis – Where the appellant opposed any order for costs based on his alleged poor financial circumstances – Where impecuniosity is not a bar to there being an order for costs where there are circumstances otherwise that justify it, which is the case here – Where although the issues raised have some synergy with the circumstances that have been found to be sufficiently exceptional, the normal rule should not be departed from – Costs ordered on a party/party basis fixed in the sum sought by the respondent.

  • Henare & Henare [2018] FamCAFC 62

    09 Apr 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Where the husband did not file his Notice of Appeal within 28 days – Where the proposed appeal relates to interim spousal maintenance orders – Where the husband requires leave to appeal that interlocutory decree – Where leave to appeal is an important consideration in the exercise of the discretion to extend time – Where the explanation for delay was inadequate – Where the delay was short and did not prejudice the wife – Where dismissing the application did not finally determine the husband’s rights – Where the husband did not establish that his application for leave to appeal involved any error of principle or substantial injustice¬ Where the husband’s application for leave to appeal had little prospects of success – Application dismissed.

    FAMILY LAW – COSTS – Where the husband was wholly unsuccessful – Where the wife sought indemnity costs – Where the circumstances were not exceptional so as to warrant an order for indemnity costs – Where the Court ordered that costs be fixed in the sum of $2,500.

  • Orchide & Orchide [2018] FamCAFC 58

    04 Apr 2018

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

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge did not err in her findings as to the informal agreement reached between the parties at separation – Where as a result the trial judge was correct to discount the claim by the husband that he allowed the respondent and their child to occupy the former matrimonial home and that should be taken into account as a contribution by him – Where the trial judge provided adequate reasons – Where it was open to the trial judge to accept the evidence of one party over the other – Where it cannot be said that the trial judge erred in the exercise of her discretion and/or that her decision was plainly wrong – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks an order for costs – Where the appellant opposes such an order being made on the basis of his poor financial circumstances – Where the respondent is in a financially better position than the appellant but impecuniosity is not a bar to an order for costs being made where there are circumstances which justify the making of such an order – Where the appellant has been wholly unsuccessful – Costs ordered in favour of the respondent.


  • Lowin & Lowin [2018] FamCAFC 55

    23 Mar 2018

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

    FAMILY LAW – APPEAL – Application to extend time to appeal – Applicant seeks to appeal against property settlement orders – Notice of Appeal filed shortly after prescribed time had expired but applicant had earlier taken steps to challenge the Magistrate’s decision – Joshua v Joshua (1997) FLC 92-767 and Tormsen and Tormsen (1993) FLC 92-392 considered – Although the Notice of Appeal has serious deficiencies, found there is a substantial issue to be raised on appeal – No relevant prejudice to the respondent – Held interests of justice would not be served by preventing the applicant from appealing – Time within which to appeal extended – Application otherwise dismissed.

  • Graft & McCormick [2018] FamCAFC 49

    14 Mar 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother filed three Applications in an Appeal – where the mother sought the children be brought before the appeal judge – where the mother sought for a contravention application to be heard by the appeal court – where the mother sought a review of an Appeals Registrar’s procedural order listing the appeals together – where the mother effectively sought to reopen the parenting proceedings – where each application was dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the mother required leave to appeal a procedural order setting a matter down for hearing – where the mother did not object at the time to the matter being set down – where there is not merit in any of the asserted grounds seeking leave to appeal – where there is no substantial injustice – where no error of principle is involved – where leave to appeal is refused.

    FAMILY LAW – APPEAL – PARENTING – where the mother appeals the summary dismissal of four contravention applications – where the mother appeals the summary dismissal of an Application in a Case – where there was no substantive case before the Court – where the mother appeals a costs order in relation to the summary dismissal of her contravention applications – where the mother seeks orders that the substantive final parenting orders be rescinded – where the appeals lack each or both particularity and foundation – where each appeal is dismissed.

  • Gretton & Merrin [2018] FamCAFC 48

    13 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – where the father’s application did not contain further evidence but instead sought to issue subpoenas – where the husband speculated that those subpoenas might produce relevant evidence – where the application was misconceived – application dismissed.

    FAMILY LAW – APPEAL – CHILDREN – where the primary judge made parenting orders in relation to a five year old child – where the child had always lived with the mother and spent time with the father – where the parties relationship was brief – where the primary judge ordered that the mother have sole parental responsibility and that she have liberty to relocate with the child – where the primary judge ordered that the father spend time with the child according to a graded regime that increased over a two year period – where the father contended that the primary judge’s reasons did not give appropriate weight to evidence and were inadequate – where the father contended that his legal representatives failed to tender important evidence on his behalf – where there was no merit in the appeal – appeal dismissed.

    FAMILY LAW – COSTS – where in the event the appeal was dismissed the mother and the independent children’s lawyer did not seek an order for costs – where the parties were ordered to bear their own costs of and incidental to the appeal.

  • Perrin & Perrin [2018] FamCAFC 30

    14 Feb 2018

    FAMILY LAW – APPEAL – Application to vacate hearing of an appeal – Orders appealed contained a finding (not an order) concerning the percentage division of the assets and gave liberty to the parties to provide a minute reflecting the finding  – Appeal listed for hearing in the February 2018 sittings in Sydney – Parties’ informal request for an adjournment of the appeal denied by the Appeals Registry – Failure of appellant to comply with procedural directions – Counsel for the respondent now unavailable for the appeal hearing – Final orders still not made by primary judge – Na & Tiu [2017] FamCAFC 264 considered – Hearing vacated.

  • Carter & Carter [2018] FamCAFC 45

    06 Mar 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Access to court file – Whether the adult child of parties involved in Family Court proceedings should be allowed to access his parents’ Family Court file from 1977 – Where the primary judge dismissed that application but made an order allowing the appellant to view consent parenting orders – Where the primary judge gave inadequate reasons – Where the primary judge took into account irrelevant matters – Consideration of r 24.13 of the Family Law Rules 2004 (Cth) – Where appellant found to have proper interest in the proceedings – Where the appellant’s access is reasonable – Appeal allowed – Re-exercise of discretion to allow appellant access to the court file.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Non-publication – Where the appellant sought an order for the non-publication of this judgment and the removal of the primary judge’s reasons from the Family Court of Australia website and AustLII – Where the Family Court anonymises all judgments it publishes pursuant to s 121 of the Family Law Act 1975 (Cth) – Application dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Preliminary view that the order appealed from is interlocutory and appeal is required – Appeal found to have merit – Leave to appeal granted.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Further evidence – Application to adduce letters and a supplementary appeal book – Letters demonstrate that the appellant’s parents consent to him accessing their court file  – Leave given to adduce letters as further evidence on the appeal – Affidavits in supplementary appeal book found not relevant to appeal – Application to adduce supplementary appeal book as further evidence in the appeal dismissed but allowed insofar as the evidence contained therein can inform the re-exercise of discretion if the appeal is allowed.

  • Saboski & Garth [2018] FamCAFC 53

    21 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Inadequate explanation for the delay in filing a Notice of Appeal – Where the proposed appeal has poor prospects of success – Application dismissed.

  • Long & Long [2018] FamCAFC 52

    21 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is a reasonable explanation for the delay in filing a Notice of Appeal – Where the proposed appeal lacks merit – Application dismissed.

  • Gatenby & Chisler [2018] FamCAFC 46

    09 Mar 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITE HEARING – Where the primary judge made orders providing for a new arrangement to commence from the start of the 2018 school year which was a significant change to the pre-existing arrangement – Where the applicant’s case is that the new arrangement would be deleterious for the children – Where the primary judge stayed the relevant orders – Where the primary judge was concerned that an application for expedition of the hearing of the appeal be filed – Where the applicant withdrew her application on the basis of the appeal being listed earlier than the week advised by the Appeals Registrar and her senior counsel not being available in that week – Where the respondent’s counsel made an oral application for the appeal to be listed at the earliest opportunity – Where the issue to be determined should be heard and decided as soon as possible – Appeal expedited.

  • Aaron & Jenkins [2018] FamCAFC 51

    20 Mar 2018

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made final property orders distributing the property of the parties and either of them in the proportions 90 per cent to the wife and 10 per cent to the husband – Where the primary judge found that a debt was owing to the wife’s mother – Where the primary judge determined that the husband was to bear a significant portion of that debt – Where the primary judge ordered that the wife should pay to her mother the full amount of the loan – Where the primary judge deducted the amount owed by the husband from the amount payable to him by the wife pursuant to his ultimate entitlement – Where counsel for the husband on appeal abandoned all but one ground – Where that ground alleged a mathematical error by the primary judge – Where the ground did not demonstrate any error –  Where even if the ground was accepted the difference in outcome would be de minimis – Where the overall result was not unjust and inequitable – Appeal dismissed – No order as to costs.

  • Shaw & Lamb and Ors [2018] FamCAFC 42

    13 Mar 2018

    FAMILY LAW – APPEAL – CHILDREN – SURROGACY – where the primary judge made an order requiring the parties to do all acts and things to ensure that the male respondent’s name was entered as the father of the child on the child’s birth certificate – where that conclusion was based on his Honour’s interpretation of s 23 of the Status of Children Act 1978 (Qld) – where the preconditions necessary for the application of s 23 were not addressed in his Honour’s reasons – where the submissions of counsel below did not assist his Honour in addressing those preconditions – where there is demonstrated error – where that error was not contained in the appellant’s grounds of appeal – where nevertheless an appellate court is authorised and obliged to discharge its appellate duties – appeal allowed – matter remitted for a rehearing – each party ordered to bear their own costs. 

  • Jess & Garvey [2018] FamCAFC 44

    13 Mar 2018

    FAMILY LAW – APPEAL – INTERIM PARENTING – Where there is nothing anomalous about the primary judge finding, by virtue of s 61DA(3) of the Family Law Act 1975 (Cth) (“the Act”), that it would “not be appropriate” to apply the presumption in favour of equal shared parental responsibility, while going on to make an order for equal shared parental responsibility ¬ Where it can be seen that the primary judge addressed what was necessary from s 65DAA of the Act, given the parameters of the dispute, and how the parties’ respective cases were presented – Where the primary judge adequately and appropriately considered what she is obliged to in determining where the best interests of the children lie, bearing in mind that that consideration is framed by the parameters of the issues in dispute, and how each party has presented their case – Where there is no merit in the grounds of appeal ¬ Appeal dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – FINANCIAL AGREEMENT ¬ Where, given the history of proceedings and, specifically, an earlier order which the primary judge treated as preventing any further application to set aside the financial agreement, the Court is inclined to proceed on the basis that leave is not required – Where the primary judge summarily dismissed the wife’s application that the financial agreement be set aside, or alternatively, a declaration be made that the agreement is not valid, enforceable or effective – Where the primary judge applied the principle articulated in Henderson v Henderson (1843) 67 ER 313, and approved by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun”) – Where it is apparent that the issue before the primary judge in earlier proceedings was whether there was an agreement to be enforced – Where the wife had “notice, invitation and opportunity” to argue her case that the agreement should not be enforced in the earlier proceedings, and plainly that would include any claim to set aside the agreement pursuant to ss 90K and/or 90KA of the Act – Where the Court considers that the question of the enforceability of the agreement was finally determined – Where the Court considers that the claims pursuant to s 90K and/or s 90KA were “so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceedings for the claim not to have been made or the issue not to have been raised in that proceeding” – Where the primary judge was correct in applying the Anshun principle – Where the Court is not persuaded that the primary judge erred in finding that the wife was estopped from bringing the further proceedings – Where there is no merit in the grounds of appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where both parties submitted that costs should follow the event – Costs ordered in favour of the respondent. 
  • Teh & Muir (Deceased) [2018] FamCAFC 43

    06 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the appellant sought to amend the appeal books to include an affidavit filed in the substantive proceedings – where the trial judge had directly considered the contents of that affidavit in his judgment – where the respondent did not object to the affidavit being included in the appeal books – where an application to adduce further evidence was not necessary in the circumstances – where the appeal book was amended to include the appellant’s further affidavit – application dismissed.

    FAMILY LAW – ORAL APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – where the respondent sought an order to summarily dismiss the appeal pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) – where the application was first foreshadowed in the respondent’s recently filed and served Summary of Argument – where the appellant is a self-represented litigant – where the objective of s 96AA(1) is for such applications to be made well in advance of the appeal hearing itself – where the challenges asserted by the appellant are clear enough from her Notice of Appeal and Summary of Argument – where the respondent has identified and addressed the complaints the appellant seeks to advance on appeal – where the appellant should be allowed the opportunity to make submissions as to the merit of her appeal – oral application dismissed.

    FAMILY LAW – APPEAL – COSTS – where the appellant appealed an order that she pay the respondent’s costs of trial in the fixed sum of $100,000 – where the case of the respondent was conducted by his case guardian – where the party died after the appeal was instituted – where the case guardian for the respondent was substituted for the respondent by an Appeals Registrar – where the respondent submitted that the appeal proceedings abate upon death – where the Full Court held the proceedings do not abate – where the case guardian for the respondent has standing to seek costs pursuant to r 6.14 of the Family Law Rules 2004 (Cth) and the costs orders made are characterised as costs of the case guardian within that rule – where the appellant alleged she was unable to meet an order for costs given her poor financial circumstances – where the appellant was wholly unsuccessful at trial – where financial impecuniosity is not a bar to a costs order being made – where there is no evidence that the trial judge exercised his discretion on wrong principles – where ordering the costs in a fixed sum was within the trial judge’s discretion – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $11,524.

  • Silva & Phoenix [2018] FamCAFC 41

    07 Mar 2018

    FAMILY LAW – APPEAL – DISQUALIFICATION – Where the primary judge was asked by the parties to make consent orders – Where the primary judge had to be satisfied on the material before him that it was just and equitable to make the consent orders as sought – Where the primary judge refused to make the consent orders finding the proposed compromise to be “manifestly inadequate” and set the matter down for hearing before him – Where the test is whether “a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide” – Where the test is satisfied here – Where the primary judge’s knowledge of the compromise the appellant was prepared to make for the purposes of the consent orders would be taken into account by a lay observer as apprehending that the primary judge may not bring an impartial mind to the subsequent hearing – Where the primary judge found definitively that there should be an alteration of the parties’ interest in property of greater than 10 per cent in favour of the respondent – Where the primary judge has prejudged the issue in dispute – Where it is not open on appeal for the appellant to raise a complaint of actual bias when all that was argued before the primary judge was that he be disqualified for apprehended bias –– Where there is merit in the grounds of appeal save and except to the extent that actual bias is argued – Appeal allowed.

    FAMILY LAW – COSTS – Where the appellant sought his costs in the event that the appeal was successful – Where the respondent opposed an order for costs – Where the respondent having not participated in the appeal was not in a position to seek a costs certificate if the appeal was successful on a question of law and no costs order was made – Where there is nothing put that would justify an order for costs against the respondent – Where each party should bear their own costs – Where the appellant should have a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) – Costs Certificate ordered in favour of the appellant.

  • Nasha & Belinchon [2018] FamCAFC 38

    05 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTEND TIME TO FILE APPEAL – Where the applicant has not provided an adequate explanation for the failure to file a Notice of Appeal within time – Where there appears to be a substantial issue to be raised on appeal – Where there is prejudice to each of the parties depending on the outcome – Where the interests of justice require that an extension of time be allowed – Application granted.

    FAMILY LAW – COSTS – Where the applicant is being granted an indulgence because of his failure to file a Notice of Appeal within time – Costs ordered in favour of the respondent.

    FAMILY LAW – COSTS CERTIFICATES – Where both parties apply for costs certificates pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) to cover the costs associated with a previous hearing – Where the parties submit that the previous proceedings were “discontinued” and “a new hearing” ordered which was not caused by the “neglect, default or improper act” of either of the parties – Where the granting of a costs certificate is entirely discretionary – Where the time available at the previous hearing was used to clarify issues and shorten the time required to hear the application for an extension of time – Where the discretion should not be exercised in favour of the parties – Application dismissed.

  • Manotis & Manotis and Ors [2018] FamCAFC 29

    21 Feb 2018

    FAMILY LAW – APPEAL – where the husband filed an application pursuant to s 106B seeking to set aside the transfer of property to a third party – where the primary judge refused that application – where litigation between the parties spanned some 14 years – where the husband’s contentions on appeal had no foundation – where no error was demonstrated – appeal dismissed – costs ordered against the husband.

    FAMILY LAW – APPLICATION IN AN APPEAL – where the husband sought an extension of time to file a Notice of Appeal relating to a costs order made against him – where there was no substantial issue to be raised on appeal – application dismissed – costs ordered against the husband.

  • Decaux & Sabri [2018] FamCAFC 39

    06 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Review of registrar’s orders – Whether the Court should provide the applicant with a copy of the transcript – Where the transcript is not essential to the prosecution of the appeal – Whether the Court should prepare the appeal books – Where there is no evidence to support the applicant’s assertion that preparing the appeal books would cause him exceptional hardship – Whether the Registrar should be directed not to take further steps in this matter due to apprehended bias – Where the Court has no power to make such a direction – Whether the Registrar’s orders as to the filing of appeal books and electronic transcript should be stayed – Orders made extending the time for filing the appeal books and electronic transcript – Application otherwise dismissed. 

  • Trustee of the Bankrupt Estate of Hicks & Hicks and Anor [2018] FamCAFC 37

    26 Feb 2018

    FAMILY LAW – APPEAL – PROPERTY – APPLICATION TO SET ASIDE CONSENT ORDERS AND MAKE OTHER ORDERS FOR PROPERTY SETTLEMENT – Where the primary judge bifurcated the proceedings and only heard and determined the application to set aside the consent orders – Where the second respondent conceded that there was a miscarriage of justice – Where in the exercise of her discretion the primary judge dismissed the application – Where there was a lack of findings by the primary judge central to important, substantial and controversial issues relating to the integrity of the court’s orders and process – Where the primary judge erred in the exercise of her discretion – Where the Notice of Contention filed by the second respondent does not provide an alternative basis for the primary judge dismissing the application – Appeal allowed – The order of the primary judge set aside – The proceedings be partially remitted for rehearing by a judge other than the primary judge with such rehearing to proceed on the basis that there has been a miscarriage of justice pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth).

    FAMILY LAW – COSTS – Where there should be no order for costs and the primary rule under s 117 of the Family Law Act 1975 (Cth) should apply – Where costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 should issue for the appellant and the for second respondent – Costs certificates issued for the appeal and for the partial rehearing.

  • Maffle & Segal [2018] FamCAFC 36

    26 Feb 2018

    FAMILY LAW – APPEAL – PARENTING – Where the appellant seeks leave to appeal an order made by the trial judge granting leave to the respondent for the proceedings to be heard on an undefended basis – Where the appellant failed to comply with orders in circumstances where he was on notice that if he did not comply with those orders the trial would proceed undefended – Where the order of the trial judge is not attended by any or any sufficient doubt to warrant reconsideration by the Full Court – Where refusing leave would not result in substantial injustice – Where there is no merit in the appeal against the order of the trial judge that the appellant spend no time or communicate with the children – Where the trial judge provided ample reasons for his decision and did not err by failing to take into account the matters raised by the appellant – Leave to appeal refused and the appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the appellant opposes such an order primarily because of his poor financial circumstances – Impecuniosity is not a bar to an order for costs being made where, as here, there are circumstances that justify it – Costs ordered as sought by the respondent.

  • Mulholland & Mulholland [2018] FamCAFC 35

    23 Feb 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the applicant’s solicitors failed to file the draft appeal index within the prescribed time – Default of solicitors should not readily be borne by their client – Where the appeal is not devoid of merit – Application allowed – Order for the applicant to pay the respondent’s costs of the application. 

  • Ebrey-Miers & Miers [2018] FamCAFC 34

    14 Feb 2018

    FAMILY LAW – APPEAL – PROPERTY – where the wife appealed final property orders – where the wife failed to comply with appeal directions – where the wife was notified in writing that her appeal may be dismissed pursuant to r 22.45 – where the wife did not appear at the appeal proceedings – where the appeal was heard undefended – where the Court determined to consider the merits of the appeal – where the appeal had no merit – appeal dismissed – wife ordered to pay costs. 

  • Heath & Heath [2018] FamCAFC 28

    12 Feb 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – extension of time – where the husband filed an application to extend the time to file a Notice of Appeal – where the delay was due to a mistake by the husband’s solicitor – where the fact that the delay was not the fault of the husband was a factor that supported the granting of leave – where nevertheless the question is what determination will do justice between the parties – where the appeal had no prospects of success – where the parties were aged 71 and 78 years at the time of trial and married for 45 years – where the primary judge made significant findings of family violence perpetrated by the husband – where an appeal would involve the wife in significant delay and expense – application dismissed – parties ordered to bear their own costs.