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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.

  • Graft & McCormick [2020] FamCAFC 11

    21 Jan 2020

    FAMILY LAW – APPEAL – VEXATIOUS PROCEEDINGS – Where the mother appeals from a vexatious proceedings order made pursuant to Part XIB of the Family Law Act 1975 (Cth) – Where the mother’s appeal is devoid of merit and must be dismissed as it raises no question of general principle, reasons for that conclusion may be given in short form (s 94AAA(7)) – Where the mother’s grounds of appeal are not proper grounds as they contain broad assertions or commentary which do not particularise or adequately identify any appealable error – Where the mother seeks to re-agitate issues already dealt with in previous orders or in previous appeals not the subject of this appeal – Where no error is established – Appeal dismissed – Where the mother’s Applications in an Appeal for review of a Registrar’s decision and to adduce further evidence are dismissed – Where there is no order as to costs.

  • Ming & Leong [2020] FamCAFC 10

    21 Jan 2020

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the wife applies for an extension of time to appeal – Where the wife must establish a substantial issue to be raised on appeal – Where this was the second trial of property settlement proceedings between the parties – Where the parties again failed to make full and frank disclosure and failed to provide necessary evidence – Where the trial judge found the assessment of a contributions-based entitlement favoured the husband – Where the trial judge found there was insufficient evidence to make an adjustment under s 79(4)(e) of the Family Law Act 1975 (Cth) – Where the wife asserted her absence at the delivery of the trial judge’s reasons amounted to an error on the part of the trial judge – Where the wife contends the trial judge made errors of fact and was misled by the husband – Where the state of the evidence provided by the parties and the failure by each party to provide full and frank disclosure seriously impeded the litigation process and the ultimate determination of just and equitable property settlement orders – Where the wife fails to establish any substantial issue to be raised on appeal – Where the wife’s delay is not adequately explained – Application dismissed.

  • Chaborne & Chaborne [2020] FamCAFC 9

    21 Jan 2020

    FAMILY LAW – APPEAL – COSTS – Where the respondent sought her costs in a fixed amount – Where the applicant opposed a costs order being made – Where the applicant has been wholly unsuccessful and an order for costs is justified – Where there is insufficient information provided to enable a fixed costs order to be made – Costs ordered in favour of the respondent on a party/party basis with such costs to be taxed or assessed in default of agreement.

  • Handbury & State Central Authority and Anor [2020] FamCAFC 5

    21 Jan 2020

    FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention 1980 – Repudiatory retention – Whether the trial judge erred in her conclusion that the appellant mother’s actions constituted an objectively identifiable act of repudiation – Consideration of whether an act of repudiatory retention axiomatically breached the second respondent father’s rights of custody, including the right to determine the habitual residence of the child, in accordance with regulation 4(2), notwithstanding that the family remained living in the same household for many months subsequent to the repudiation – Whether the trial judge failed to afford the appellant mother procedural fairness to enable her to adduce further evidence, in circumstances where she initiated the relevant evidence about statements allegedly made to the child about her country of residence – Whether the trial judge failed to give adequate reasons as to whether the retention was in breach of the second respondent father’s rights of custody – Where there is no merit in the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Whether an order could be made against the appellant mother for the second respondent father’s costs – Consideration of ss 117 and 117AA of the Act – Application for costs by the second respondent father dismissed.

  • Petran & Petran [2020] FamCAFC 6

    17 Jan 2020

    FAMILY LAW – APPEAL – Where the appellant submits that the slip rule can be applied here to correct what she says were errors made by the primary judge – Where the primary judge in addressing issues with the parties remarked that he would not be changing the paragraphs in question but subsequently did – Where there is no clerical mistake in the orders or errors arising in them from an accidental slip or omission – Where it is not open to apply the slip rule here – Where the primary judge did not err in failing to apply the principle in Rice and Asplund (1979) FLC 90-725 – Where there is merit in the ground of appeal asserting lack of procedural fairness – Where the primary judge did not do what he indicated and changed orders without giving the appellant an opportunity to be heard – Where the reasons for judgment are inadequate and do not explain why the primary judge altered his position from one of no change, to varying the orders to accord with the position put by the respondent – Where it is necessary for a trial judge to expose his or her reasoning for making orders – Where the Appeal Court finds that the primary judge erred in relation to paragraph (19) of the order under appeal and did not provide adequate reasons in relation to all of the orders the subject of the appeal – Appeal Allowed – Orders set aside – Matter remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge. COSTS – Where the appellant did not file a Schedule of Costs as required – Where that requirement may not have been brought to her attention – In the event the appellant seeks costs comprising legal costs incurred and/or disbursements paid in relation to the appeal she must file an application within 28 days pursuant to rule 22.53 of the Family Law Rules 2004 (Cth).

  • Walsh & Maher [2020] FamCAFC 7

    16 Jan 2020

    FAMILY LAW – APPEAL – PARENTING – Where the trial judge made orders that the children’s time with the father be reduced from five nights per fortnight to three – Where the trial judge made findings that the children are at a risk of psychological harm by reason of exposure to the father’s views of the mother and his inclusion of the children in the parental conflict – Where the trial judge made an order that the father pay the mother’s costs of the proceedings – Where the father’s contentions on appeal include complaints as to the inadequacy of reasons, errors of discretion and inappropriate weight – Where the father’s grounds of appeal are without merit, save for the challenge to the costs order – Where the trial judge gave no reasons for making a costs order – Where the appeal succeeds only in respect of the costs order made – Where only that issue is remitted – Where the father’s application for a costs certificate is denied – Where the mother is granted a costs certificate for the appeal and the rehearing on the issue of costs of the proceedings.

  • Cimorelli & Wenlack (No. 2) [2019] FamCAFC 255

    18 Dec 2019

    FAMILY LAW – APPEAL – APPLICATION IN APPEAL – REINSTATEMENT – Multiple appeals deemed abandoned – Failure to comply with time frame for filing Draft Appeal Index – Non compliance based on genuine mistake – Where the orders sought to be challenged on appeal are no longer the operative orders in the proceedings – Reinstatement of the Notice of Appeal would be futile – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Oral application for expedition of additional appeal – Respondent not present – Efficient use of court resources – Where denial of procedural fairness to the respondent is justified –Application granted.

  • Darley & Darley [2020] FamCAFC 4

    09 Jan 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the mother was permitted to listen to the relevant audio to determine whether she wished to obtain all or part of that transcript – Where the mother is not yet in a position to make that determination – Where the application is adjourned to the Appeals Registrar to a date to be fixed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUBPOENA – Where the mother was given leave to issue a subpoena to Medicare to obtain a list of the father’s treating medical professionals – Where the mother sought to issue a subpoena of a much broader compass – Where the earlier orders are varied to provide the exact wording for the mother’s subpoena – Where the application in relation to the issuing of a subpoena is otherwise dismissed.

    FAMILY LAW – APPEAL – PROCEDURE – Where the mother seeks an extension of time to file her Summary of Argument following the resolution of the transcript and subpoena issues – Where the mother seeks leave to copy documents already produced under an earlier subpoena – Where the mother tendered documents proving service of the relevant application upon the person whose medical records the mother wishes to copy – Where the mother is permitted to copy two pages of the relevant records – Where the appeal is now no longer able to be heard in the March 2020 Full Court sittings – Where the time for the mother to file her Summary of Argument is extended to the end of March 2020 – Where the Appeals Registrar is to arrange a new timetable for the remaining parties to file their documents.

  • Baukham & Pitresso [2020] FamCAFC 3

    09 Jan 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Mother seeks expedition of her appeal against final orders relating to the father’s time with the parties’ child – Where the orders are stayed pending appeal – Allegations of family violence – Father supports expedition – The inability of the parties’ young child to spend time with the father in accordance with orders determined to be in her best interests at trial favours expedition – Application granted.

  • Pengleton & Faram [2020] FamCAFC 2

    08 Jan 2020

    FAMILY LAW – APPEAL – PARENTING – Where the parents live approximately one hour and forty minutes’ drive apart – Where the parents separated when the child was 6 months old – Where the parents facilitated an equal shared care arrangement without Court orders until the child reached school age – Where both parents sought orders providing for the child to live with them and attend the local primary school – Where the trial judge ordered that the child remain living with the mother – Where a change of care from the mother to the father was not in the child’s best interests – Where the child had been in the primary care of the mother for an extended period of time prior to trial – Where the child had close relationships with her half-brother and the extended maternal family – Where the trial judge found that the mother adequately supported the child’s relationship with the father – Where the father alleges the trial judge gave inadequate reasons and mischaracterised the family report writer’s evidence – Where the father asserts the trial judge made erroneous findings as to the significance of a move from the mother’s care to the father’s and failed to consider s 60CC(3)(l) – Where none of the father’s challenges are established – Appeal dismissed – Where there is no order as to costs.

  • Revanka & Medapati [2020] FamCAFC 1

    07 Jan 2020

    FAMILY LAW – APPEAL – SECURITY FOR COSTS – Where the respondent wife seeks security for costs of the appeal – Where the appellant husband is resident out of the jurisdiction with no assets within the jurisdiction – Where the appellant husband has clearly expressed his opinion that he is not bound by orders of this Court – Where the appellant husband has a history of non-compliance with costs orders – Where the appellant husband’s appeal lacks sufficient merit to outweigh those considerations – Where the appellant husband is ordered to pay security for costs, failing which his appeal is to be dismissed – Where the costs of this application are reserved in the appeal.

  • Harrison & Harrison [2019] FamCAFC 261

    20 Dec 2019

    FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders providing for the mother to have sole parental responsibility and that the children live with her – Where the grounds of appeal do not expose appealable error – Where the father’s Summary or Argument repeats the grounds of appeal and fails to make any proper challenge to the primary judge’s orders – Appeal dismissed – Appellant father ordered to pay respondent mother’s costs.

  • Vallans & Vallans [2019] FamCAFC 260

    20 Dec 2019

    FAMILY LAW – APPEAL – PARENTING – Where the parties entered into final consent orders in January 2015 providing for, relevantly, equal shared parental responsibility – Where, in the course of a contravention application, the mother made an oral application for setting that order aside – Where the trial judge set that order aside and made an order providing for the mother to have sole parental responsibility – Where the trial judge rejected the mother’s claims of family violence – Where the trial judge was otherwise satisfied that it was not in the children’s best interests for the presumption in s 61DA(1) to apply – Where the trial judge relied heavily on a family report which was two years old at the time of trial – Where the trial judge’s finding as to the rebuttal of the presumption was based largely on the parties’ alleged communication difficulties – Where there must be convincing proof as to the children’s best interests for s 61DA(4) to be activated to rebut the presumption – Where the trial judge failed to consider material considerations raised in the family report and which had occurred subsequent to its preparation – Where there is no sufficient evidentiary basis to rebut the statutory presumption ins 61DA(1) – Where the trial judge failed to consider each relevant factor under s 60CC – Appeal allowed – Proceedings remitted – Costs certificates granted.

  • Vissell and Ors & Vissell and Anor [2019] FamCAFC 259

    20 Dec 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application seeking leave to appeal against the order of a judge which dismissed an appeal against the decision of a registrar – Where the appellants are third parties to the substantive proceedings – Where the confluence of procedural circumstances weighs in favour of the application being granted – Appellants granted leave to appeal against the judge’s order.

  • Lovett & McGregor [2019] FamCAFC 253

    18 Dec 2019

    FAMILY LAW – APPEAL – PARENTING –  APPEAL – PARENTING –  Where the primary judge ordered that the children live with the appellant and spend six nights a fortnight with the respondent during school term – Where neither party nor the ICL sought that the Court make that order – Where the parties were not informed that the primary judge contemplated making such an order – Where the order was found to be a significant deviation from the parameters of the proposals contended for by the parties and the ICL - Where the primary judge denied the appellant procedural fairness – Where the appellant further complains that the primary judge failed to give proper, genuine and realistic consideration to the risks posed by the respondent and given those risks, the primary judge failed to adequately explain why the orders were made – Where the Court finds that these grounds have no merit – Where, given the denial of procedural fairness, the appeal is allowed and the order for the amount of time the respondent is to spend with the children during school term be set aside – Where there is a deficit of evidence relevant to what interim parenting arrangements should apply between now and the rehearing of this matter – Where the order which is set aside is restated as a default position – Where it is imperative that the matter receive judicial attention as soon as practicable.

  • Halladay & Seydl [2019] FamCAFC 258

    19 Dec 2019

    FAMILY LAW – APPEAL – Where the father failed to file documents in accordance with orders made in June 2019 – Where the father’s appeal is from interim parenting orders – Where those orders have been superseded by final parenting orders made after a trial – Where the father’s appeal is without utility – Appeal dismissed – Where the mother’s costs schedule is insufficiently particularised to enable the costs claim to be considered – No order as to costs.

  • Franklyn & Franklyn [2019] FamCAFC 256

    23 Dec 2019

    FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the subject child is the biological child of the parties – Where the mother appeals from interim orders relating to the subject child, following her unilateral relocation interstate with the subject child and her older child from a previous relationship – Where the primary judge ordered the mother and children to return and live in the region from which they moved to enable the subject child to spend unsupervised time with the father for five hours each Saturday – Where the primary judge made incidental orders stipulating the changeover location and requiring the mother to inform the Court and the Independent Children’s Lawyer of the children’s new residence once established in the original region – Where the appeal was resisted by the father, but not ultimately by the Independent Children’s Lawyer – Where there are identifiable legal errors which were not the subject of any discrete ground of appeal but affect consideration of the grounds more generally – Where the primary judge failed to consider two filed affidavits expressly relied on by the mother – Where the primary judge gave no consideration, or alternatively insufficient weight, to aspects of the evidence – Where the principles in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 are considered – Where there was no reason for the primary judge to deny the mother her freedom of choice about her place of residence – Where inadequate reasons were given by the primary judge for ordering the mother to relocate her residence with the children back to the original region – Where the mother’s assertion that insufficient reasons were given by the primary judge for the finding made about “unacceptable risk” is rejected – Where the primary judge failed to properly consider, by wrongly discounting the weight of, the mother’s evidence adduced in support of the contention of “unacceptable risk” of harm to the subject child – Where it was open for the primary judge to accept opinion evidence from the Family Consultant at the interim hearing even though it remained untested by cross-examination – Where the appeal succeeds due to material errors of law – Appeal allowed – Appealed orders set aside and remitted to the Federal Circuit Court of Australia for re-hearing.

    APPEAL – COSTS – Where the appeal succeeded on errors of law – Where no order for costs was sought – Where the parties sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) – Where costs certificates were granted to the parties – Where the Independent Children’s Lawyer is ineligible to receive costs certificates.


  • Chau & Cao (No. 2) [2019] FamCAFC 254

    20 Dec 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from orders made by the primary judge dismissing the wife’s application for property settlement –Where the primary judge attributed appropriate weight to the wife’s parenting contributions – Where the primary judge did take into account relevant considerations – Where the wife cannot rely upon an argument in the appeal that she did not raise before the primary judge – Where the grounds of appeal lack merit – Appeal dismissed – Where the wife is to pay the husband’s costs in a fixed sum.

  • Cerny & Seidler [2019] FamCAFC 257

    20 Dec 2019

    FAMILY LAW – APPEAL – COSTS – Where the appeal settled during the hearing – Where error established in relation to quantifying costs – Where there is no discernible reasoning in the judgment which supports the costs figure reached by the primary judge – Appeal allowed – Appealed order varied by consent – Costs certificates granted.

  • Sevgi & Chaffen [2019] FamCAFC 252

    18 Dec 2019

    APPEAL – Where it is not possible to determine the merits of any new grounds of appeal – Where the appellant’s oral application is dismissed – Where certain grounds of appeal seek to re-agitate the issues that were before the primary judge and do not assert error –Where despite some mistakes made by the primary judge, there is still evidence to support the finding that the father had been violent in the presence of within the hearing of the child – Where the primary judge did not demonstrate bias by determining that there was family violence – Where there is no error disclosed in the primary judge’s statements of the law – Where the primary judge was statutorily obliged to give greater weight to protecting the child from a risk of harm and family violence than the financial circumstances of the parties – Where the appeal had little chance of succeeding because it was a discretionary decision made by the primary judge – Appeal dismissed – Where given the impecuniosity of the parties there is no order for costs.

    APPLICATION IN AN APPEAL – Where the appellant sought to dispense with the requirement that he provide a transcript because he could not afford it – Where requiring the appellant to provide the transcript would stay the appeal – Where in the interests of justice and the parties’ interests the Application in an Appeal is allowed.

  • Keehan & Keehan [2019] FamCAFC 250

    17 Dec 2019

    APPEAL – CONTRAVENTION APPLICATION – Where the mother appeals from a dismissal of her Contravention Application – Where the trial judge found it to be an abuse of process – Where the relevant child was three months shy of her 18th birthday at the hearing before the trial judge – Where the child had ceased spending time with the mother two years earlier – Where the relevant child turned 18 prior to the hearing of the appeal – Where the mother wished to pursue her appeal nonetheless – Consideration of legislative intent of Division 13A – McClintock & Levier (2009) FLC 93-401 considered – Where Division 13A is directed only to enforcing compliance with operative parenting orders by those individuals bound by the subject orders – Where the legislative purposes of Division 13A do not include punishment for past non-compliance with orders nor specific or general deterrence for past conduct – Where this appeal has no utility – Appeal dismissed.

  • Fitzwater & Fitzwater [2019] FamCAFC 251

    17 Dec 2019

    APPEAL – PARENTING – Majority decision – Where the father appeals from orders made by a judge of the Family Court of Australia providing for the children to spend supervised time with him – Where the Independent Children’s Lawyer supported the father’s appeal – Where the trial judge made a finding that the father posed an unacceptable risk of harm to the children – Consideration of the application of s 140 of the Evidence Act 1995 (Cth) in proceedings where there is an allegation of an acceptable risk of harm – Whether the trial judge’s reasons for judgment are sufficient to meet the requirement identified in N and S and the Separate Representative (1996) FLC 92-655 – Where the trial judge did not weigh all of the evidence as a whole to determine the nature, extent and likelihood of the risk of sexual abuse to the children – Where the trial judge did not adequately give reasons for the finding of an unacceptable risk of harm to the children – Appeal allowed – Orders made by the trial judge set aside as on and from the date of the rehearing in the Family Court of Australia – No order as to costs.

  • Carlson & Carlson [2019] FamCAFC 245

    17 Dec 2019

    APPEAL – PROPERTY SETTLEMENT – Valuation of the parties’ assets and liabilities – Where there was insufficient disclosure made at the time of final hearing before the trial judge – Where the respondent wife also had access to all financial records with respect to the family trust – Where the trial judge’s reasons do not explain findings about the parties’ respective entitlements – Where the reasons also do not explain whether an adjustment with respect to ss 79(4) and 75(2) of the Family Law Act 1975 (Cth) was appropriate – Where there is no consideration as to whether the orders made were just and equitable – Appeal allowed. APPEAL – COSTS – Where the appeal has succeeded on a point of law – Where no order for costs is appropriate – Costs certificates issued for the appeal and the rehearing.

  • Millwood & Millwood [2019] FamCAFC 248

    16 Dec 2019

    APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the father failed to file a draft index to the appeal book in accordance with r 22.13 of the Family Law Rules 2004 (Cth) and the directions of the Appeal Registrar – Where it is in the interests of justice that the appeal be reinstated – Where the mother and the ICL were not responsible for the failure of the father to file a draft index to the appeal book – Father to pay the costs of the mother and the ICL in fixed sums.

  • I Pty Ltd & Phong [2019] FamCAFC 247

    16 Dec 2019

    APPEAL – APPLICATION IN AN APPEAL – Application for reinstatement of an appeal against the primary judge’s dismissal of an Application in a Case on the basis that it was an abuse of process – Where there is no adequate explanation for the applicant’s delay in filing the draft index to the appeal book – Where the appeal has no merit – Application for reinstatement dismissed – Applicant to pay the respondent’s costs in a fixed sum.

  • Scott & Munayallan [2019] FamCAFC 246

    16 Dec 2019

    APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the father failed to file a draft index to the appeal book in accordance with r 22.13 of the Family Law Rules 2004 (Cth) – Where the father had a sufficient reason for not filing the draft index to the appeal book on time – Where there is no arguable ground of appeal – Where it would be futile to permit the appeal to proceed and to do so would inflict an injustice on the mother – Where the father’s failure to comply with orders of the Court, including costs orders made by consent, was taken into account – Application for reinstatement dismissed – Father to pay the mother’s costs of the application in a fixed sum.

  • Reston & Jarry [2019] FamCAFC 241

    11 Dec 2019

    APPEAL – APPLICATION IN A CASE – Where the father sought that the appeal be dismissed on the basis the mother failed to comply with several deadlines – Where the mother’s non-compliance did not prejudice the father – Application dismissed.

    APPEAL – PARENTING – Appeal against interim parenting orders providing that the father have sole parental responsibility and supervised time between the mother and the child – Undefended hearing – Where the primary judge erred by failing to explain why the presumption of equal shared parental responsibility was rebutted – Where the primary judge’s reasoning in relation to s 61DA is inadequate – Appeal allowed – Matter remitted for rehearing – Where the orders of the primary judge will continue pending rehearing – Costs certificate granted to the respondent.

  • Pappin & Pappin [2019] FamCAFC 240

    11 Dec 2019

    APPEAL – APPLICATION IN AN APPEAL – Where the husband sought leave to adduce further evidence – Where the husband seeks to read an affidavit annexing 4 documents that he says demonstrates error on behalf of the primary judge – Where the documents do not demonstrate error – Application dismissed.

    APPEAL – APPLICATION IN AN APPEAL – Where the husband filed an Application in an Appeal for costs in the event that he succeeded in the appeal – Where the appeal is not successful – Application dismissed.

    APPEAL – PROPERTY – Appeal against orders dividing the parties’ property in favour of the wife receiving 65 per cent – Where the husband asserts that the primary judge erred in principle, took into account irrelevant matters, made factual errors, was bias, did not afford procedural fairness to the husband, gave reasons that were inadequate and that the decision was plainly wrong – Where it was open on the evidence for the primary judge to make the relevant findings – Where the appeal raised many alleged errors which had no merit or materiality – Appeal dismissed – Order that the husband pay the wife’s costs.

  • Ahsan & Ahsan [2019] FamCAFC 244

    11 Dec 2019

    APPEAL – APPLICATION IN AN APPEAL – Application for reinstatement of an appeal against property and parenting orders – Where there is a reasonable explanation for the applicant’s failure to file the draft index to the appeal book in time – Where the appeal is so devoid of merit that it would be futile to order the reinstatement of it – Application for reinstatement dismissed – Orders made for written submissions as to costs.

  • Garram & Garram [2019] FamCAFC 239

    09 Dec 2019

    APPEAL – PARENTING – Appeal against interim parenting orders requiring the children’s care to change from the mother to the father – Where the children’s views were considered – Where the children’s views were not the only consideration – Where sufficient weight was given to relevant s 60 CC considerations – Where no miscarriage of justice occurred – Appeal dismissed – Mother to pay the father’s costs of the appeal in a fixed sum.

  • Napleton & Napleton [2019] FamCAFC 249

    06 Dec 2019

    APPLICATION IN AN APPEAL – REVIEW DECISION OF APPEAL REGISTRAR – Where it is appropriate to proceed in the absence of the applicant – Where the Independent Children’s Lawyer and the respondent say that given the nature and history of the matter it is in the best interests of the children for the Independent Children’s Lawyer to be involved in the appeal - Where the orders made by the appeal registrar should remain – Whether referencing Sargent & Selwyn [2019] FamCAFC 232 the Independent Children’s Lawyer should make application to the appeal registrar to again be appointed as the ICL in the appeal – Application dismissed.

  • Attaway & Balloch (No. 2) [2019] FamCAFC 243

    10 Dec 2019

    FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders – Where the mother withheld the child – Where the mother sought to argue matters that were not raised by the grounds of appeal or were in conflict with her case before the primary judge – The appellant is bound by the conduct of the case – Findings of fact – Assessment of risk – Discretionary decision – Appeal dismissed – Costs order made in favour of the father.

  • Weng & Wah and Ors [2019] FamCAFC 242

    10 Dec 2019

    FAMILY LAW – APPEAL – SECURITY FOR COSTS – Where the wife and adult son seek security for costs from the husband in the amount of $19,857 each – Where their application was, originally, for $70,000 and $60,000 respectively – Where the trial judge made serious findings as to all parties’ lack of disclosure and failure to comply with Court orders at first instance – Where neither the wife nor the son attempted to redress these failures to any extent for the purpose of bringing these applications – Where such failure demonstrates a lack of bona fides on the part of these applicants – Where the current grounds of appeal are to be the subject of amendment – Where, on the grounds as currently stated, the appeal lacks merit – Where orders for security for costs of an appeal are appropriately reserved for the most obvious of cases – Where this is not such a case – Applications dismissed – Where the husband’s costs, fixed in the sum of $10,000, are reserved to the appeal.

  • Keskin & Keskin and Anor [2019] FamCAFC 236

    10 Dec 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband sought leave to adduce further evidence – Where the uncontested evidence available at trial is enough to demonstrate appealable error – Where it is not necessary to grant leave – Application dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge determined the wife’s overall entitlement to be 60 per cent of the spouses’ property – Where the primary judge’s orders to divide the spouses’ property did not reflect a division of 60/40 – Where the husband appealed from all but one of the property settlement orders – Where the second respondent did not participate in the appeal – Where the orders are vitiated due to errors made by the primary judge which were intrinsic to the findings about the identity and value of the spouses’ property interests – Where the primary judge erred by ordering the husband to pay the wife a sum equal to 60 per cent of the net value of the land owned by the private corporation in which the husband was a minority shareholder – Where the primary judge erred in the treatment of the spouses’ receipt of net proceeds of sale – Where appealable error is demonstrated – Where there is material mistake of fact – Where the primary judge’s reasons are inadequate – Appeal succeeds on multiple grounds – Appealed orders set aside and matter remitted – Costs certificates granted.

  • Darley & Darley [2019] FamCAFC 238

    06 Dec 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the mother filed multiple Applications in an Appeal – Where the mother has three appeals being heard concurrently – Where the mother seeks transcript be provided in respect of all three first instance hearings – Consideration of Forbes & Bream (2008) 222 FLR 96 and Sampson & Hartnett (2013) FLC 93-542 – Where the mother acknowledges she has the financial resources to purchase transcript – Where impecuniosity ought be established in respect of applications for the Court to provide transcript for appeals – Where the Court, fortuitously, has copies of a significant portion of the transcript sought by the mother – Where that transcript is to be released to the parties – Where the mother is permitted to listen to the audio of the remaining hearings to determine the transcript she requires for her appeal – Applications dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where one of the mother’s appeals was deemed abandoned due to a failure to file her supplementary appeal Book – Where the mother claims to have filed her supplementary appeal book on time via email – Where the mother was permitted to make oral application for reinstatement – Where the delay has not been substantial and it appeared to be explained in that there had been some breakdown or hiatus in communication, such that any default was either illusory or at least not intentional – Where no prejudice to any other party was identified – Oral application granted.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO ISSUE SUBPOENAS – Where part of the mother’s appeal challenges the trial judge’s refusal to permit her to issue subpoenas to establish her claims that the father suffers mental health issues – Where the mother seeks to formulate an application for further evidence to be adduced on appeal referable to the father’s medical records – Where fairness dictates that the mother have some opportunity to establish the challenge she seeks to mount on appeal – Where it is a matter for the Full Court whether such subpoena material is accepted as further evidence – Application granted.

  • Meadows & Meadows (No. 2) [2019] FamCAFC 237

    05 Dec 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of the transcript – Where it is accepted that the mother cannot afford to pay for the transcript – Where the prospects of success are not such that the interests of justice demand the provision of the transcript by the Court – Application dismissed – Mother permitted to provide the parts of the transcript that she considers relevant to the appeal – The mother is aware of the limitations that attend such a course.

  • Fulwood & Chammalee [2019] FamCAFC 235

    06 Dec 2019

    APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – Where the appeal was deemed abandoned after the father failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – application opposed by the mother – Where explanation for the delay – Where the delay was 12 minutes – Where the proposed grounds of appeal may attract appellate intervention – Where reinstatement of the appeal would not be unjust to the respondent – Application to reinstate granted.

  • Somers & Ettridge (No. 3) [2019] FamCAFC 234

    04 Dec 2019

    APPEAL – EXTENSIONS OF TIME – Where the applicant provides no satisfactory explanation for the failure to file Notices of Appeal within time – Where the proposed appeals have no prospect of success – Where there is a lack of bona fides on the part of the applicant – Where it is beyond doubt that the interests of justice demand that the application for extensions of time be dismissed – Application dismissed.

    COSTS – Where the respondent seeks costs – Orders made for written submissions to be provided by both parties.

  • Soulos & Sorbo [2019] FamCAFC 231

    03 Dec 2019

    APPEAL – PARENTING – Relocation – Appeal from parenting orders permitting the mother and child to relocate overseas – Where the Independent Children’s Lawyer supports the father’s appeal – Where the primary judge found that there was a risk of harm to the child in the father’s care, however, it was not an unacceptable risk – Where the father submitted that the primary judge’s finding as to a risk of harm was not open on the evidence – Where there was no evidence that would support a finding that the child was at risk of harm from his father – Where the expert witness did not support the child relocating overseas with the mother – Where the primary judge omitted to take into account a relevant factor and took into account a mistaken factor – Where the father submitted that the primary judge erred in considering the issue of family violence – Where the issue of family violence was a core issue and weighed greatly in the final determination – Where two grounds of appeal of substance succeeded – Where the orders must be set aside and the matter remitted for a second rehearing.

    APPEAL – COSTS – Where no order for costs was sought in the event that the appeal was successful – Where costs certificates will be granted to each of the parties for the appeal and the rehearing.

  • Goldsmith & Stinson and Ors [2019] FamCAFC 230

    02 Dec 2019

    APPEAL – PROPERTY – Where the wife appealed from property settlement orders made by a judge of the Federal Circuit Court of Australia pursuant to Part VIII of the Family Law Act 1975 (Cth) – Where the trial judge found the spouses overall entitlement was 57.5 per cent to the husband and 42.5 per cent to the wife – Where the second respondents are the executors of the husband’s late father’s estate and did not participate in the appeal – Where the wife contended the trial judge erred in principle by failing to identify and declare her equitable interest in the family home prior to adjusting the parties interests under s 79(2) of the Act – Where the wife contended the process adopted by the trial judge was flawed by the trial judge’s failure to determine the wife’s equity claim to an existing one-half beneficial interest in the family home – Where the trial judge failed to consider the wife’s application seeking a declaration under s 78 of the Act which amounted to a failure to exercise jurisdiction – Where principles in Stanford v Stanford (2012) 247 CLR 104 and Bevan & Bevan (2013) FLC 93-545 are considered – Where the trial judge failed to give adequate weight to the wife’s contributions – Where the trial judge gave inadequate reasons leading to the Full Court accepting the merits of the wife’s case were not given proper and genuine consideration – Where the adjustment made by the trial judge pursuant to s 75(2) of the Act was not made in error – Where findings open on the evidence – Where the appeal succeeds on grounds of legal error and insufficient reasons – Appeal allowed and orders set aside – Proceedings remitted to the Federal Circuit Court of Australia to be re-heard by a judge other than the primary judge.

    APPEAL – COSTS – Where the appeal is successful – Where appeal upheld for legal error and insufficient reasons – Where the appellant and the first respondent are granted costs certificates pursuant to Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the rehearing.

  • Morden & Coad [2019] FamCAFC 233

    28 Nov 2019

    APPEAL – RELOCATION – Where the trial judge made orders permitting the mother to relocate with the parties’ two children – Where that relocation resulted in the mother living 120 kilometres away from the father – Where the father had an older child from a previous relationship who was involved in the children’s lives – Where the father was involved in the children’s extra-curricular and schooling activities – Where the mother’s main reason for seeking relocation was on the grounds that she could more easily obtain better housing for herself and the children – Where the father argued the children were well settled in their school and social networks – Where the trial judge found that, whilst the children’s relationship with the father may suffer, that was not sufficient to categorise the move as not in the children’s best interests – Where the father challenged the trial judge’s statement that there were “effectively two proposals” – Where the father asserted the trial judge applied an erroneously low benchmark when considering whether to permit the mother to relocate – Where the father asserted errors of weight – Where the father’s arguments rely upon a highly selective and simplistic view of the reasoning of the trial judge which cannot be supported when the reasons are considered holistically – Where none of these grounds have any merit – Where the appeal is dismissed – Where the father is to pay the mother’s costs in a fixed sum.

  • Sargent & Selwyn [2019] FamCAFC 232

    12 Nov 2019

    APPEAL – APPLICATION IN AN APPEAL – Where the appellant father seeks to have the Independent Children’s Lawyer discharged – Best interests of a child – Where the Independent Children’s Lawyer had been discharged pursuant to orders made by the primary judge – Where the appellant father had numerous complaint concerning the Independent Children’s Lawyers conduct during the proceedings – Where the Independent Children’s Lawyer had met their obligation in regards to presenting evidence – Where the father’s claims of the Independent Children’s Lawyer being partisan towards the mother does not withstand scrutiny – Where the Full Court makes an order for the Independent Children’s Lawyer to be appointed pursuant to s 68L(2) of the Family Law Act 1975 (Cth) – Application dismissed.

  • Palumbo & Mandel [2019] FamCAFC 228

    29 Nov 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the orders made by the primary judge do not distribute the parties’ property in the stated proportions – Where errors of fact influenced the assessment of the contributions – Care of a child over the age of 18 years – Superannuation – Failure to evaluate contributions when assessing superannuation as a discrete class of property – Appealable errors established – Appeal allowed – Re exercise of discretion.

    FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Short adjournment (one day) given where a longer adjournment was sought – Discretion – Procedural unfairness not established.

    FAMILY LAW – APPEAL – COSTS – Failure to give full and frank disclosure weighs against costs order – Costs certificates granted to both the appellant and the respondent.

  • Mallory & Mallory [2019] FamCAFC 221

    28 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge made orders reversing the children’s residence so that they live with the mother rather than the father – Where the appellant father contended that the children were at risk in the care of the respondent mother – Where the mother contended that the father’s behaviour was unreasonable towards her, and the children were at risk in the father’s care –Where the father asserts that there were fundamental differences between two findings of the primary judge – Where the primary judge’s findings are different but not inconsistent – Where multiple expert witnesses were engaged in different circumstances during the proceeding – Where the father contended that it was not open for the primary judge to rely on the evidence from one of the expert witnesses – Where the father did not challenge the contented expert’s evidence at trial – Where it was open for the primary judge to consider this evidence – Where the primary judge appropriately considered the relevant sections under Part VII of the Family Law Act 1975 (Cth) and weighed the risk as alleged by each party – No appealable error – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Order made seeking a schedule of costs and submissions responding to the costs.

  • Whitcomb & Whitcomb [2019] FamCAFC 226

    27 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – Relocation – Appeal against orders allowing the mother and child to relocate from Sydney to Queensland – Where the primary judge took into account a myriad of considerations to determine what orders were in the best interests of the child – Where the primary judge gave proportionate weight to the considerations – Where the primary judge’s findings were open on the evidence – Where all ground of appeal are unsuccessful – Where the father also filed an appeal against the primary judge’s orders refusing to grant a stay of the orders allowing the mother and child to relocate from Sydney to Queensland – Where the appeal against the substantive orders is dismissed so there is no point in the appeal from the stay orders – Both appeals are dismissed – The father to pay the mother’s costs of and incidental to the appeal in a fixed sum.

  • Winship & Wrays [2019] FamCAFC 225

    27 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – Where the trial judge ordered that the child live with the maternal aunt who is to have sole parental responsibility for the child – Where the father appeals against those orders – Where the mother is deceased – Whether the trial judge should have recused herself as a result of comments made by the trial judge during cross-examination of the father – Consideration of the test espoused in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the comments made by the trial judge must be considered in their factual matrix – Where the trial judge did not err in failing to recuse herself from the proceedings – Where the trial judge’s reasons for not recusing herself are clear and adequate – Where there was no error by the trial judge in not granting an adjournment for the father to seek a writ of prohibition – Where the father was not prevented from seeking such a writ during the remaining days of the hearing or before judgment was delivered – Where the issue of family violence was one of many issues taken into account – Appeal dismissed – Father to pay the maternal aunt’s costs of the appeal in a fixed sum.

  • Kachmarik & Gebel [2019] FamCAFC 224

    27 Nov 2019

    FAMILY LAW – APPEAL – PROPERTY– Where the wife filed an Application in an Appeal seeking that the appeal be summarily dismissed due to the husband’s failure to comply with previous orders – Where a number of orders were made to enforce the orders of the primary judge – Where the husband sold, received and dissipated the proceeds of the property – Where the principles in Watson & Watson (2013) FLC 93-530 applied – Where the wife has established that the husband is in clear disobedience of previous orders – Where the Court exercises its discretion to not hear the husband in relation to his appeal – Appeal dismissed – Cost submissions ordered.

  • Jolaha & Hanas [2019] FamCAFC 223

    27 Nov 2019

    FAMILY LAW – APPEAL – INTERIM PARENTING – Where the father challenges the primary judge’s exercise of discretion – Where the father challenges the weight given to competing considerations – Where the father’s contention that the primary judge did not take into account his evidence and case fails on the basis that they were considered – Where there was no denial of natural justice in circumstances where the father filed voluminous material out of time – Where the father is bound by the conduct of his case – Appeal dismissed – The father to pay the mother’s costs of the appeal in a fixed sum.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the father sought to adduce further affidavit evidence – Where the evidence was available at the time of the hearing before the primary judge – Application dismissed

  • Kalant & Jordain [2019] FamCAFC 222

    27 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge found that the mother had a “breakthrough” leading to an order that the child primarily live with the mother – Where the appellant father argued that the “breakthrough” either had no evidentiary foundation or alternatively the trial judge did not apportion it the correct weight – Where the child’s primary attachment is with the mother – Where the Independent Children’s Lawyer filed a submitting notice and did not participate – Where no error by the primary judge in failing to order a change of residence for the child – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where there is an absence of evidence concerning the value and the appellant’s equity in the property at the commencement of the relationship – Where given the absence of evidence, it is not possible to identify the primary judge’s reasoning leading to the orders – Appeal allowed in part only in relation to Ground 5 – Property proceedings remitted – Costs certificates sought by the appellant and the respondent denied.

  • Welter & Katz [2019] FamCAFC 219

    26 Nov 2019

    FAMILY LAW – APPEAL – CHILDREN – Where many of the appellant’s grounds of appeal were a combination of assertions and/or comments dressed up as weight challenges – Where the grounds of appeal and the summary of argument do no more than provide the appellant with a vehicle to assert the correctness of his position and his beliefs which were not accepted by the primary judge – Where a careful consideration of the reasons of the primary judge and the evidence before his Honour do not reveal any appealable error – Where none of the 23 grounds of appeal have merit – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks costs as a result of the appeal being dismissed – Where the appellant opposes any order for costs primarily because of his poor financial circumstances – Where the respondent’s financial circumstances are also poor – Where the authorities are such that impecuniosity is not a bar to a costs order being made where it is otherwise justified – Where an order for costs is justified here because the appeal has been entirely unsuccessful – Costs ordered in the amount sought by the respondent.

  • Somers & Ettridge (No. 2) [2019] FamCAFC 229

    25 Nov 2019

    FAMILY LAW – APPEAL – WARRANT – REFUSAL OF STAY – Where the appellant does not seek to pursue his appeal and makes no submission in opposition to the appeal being dismissed – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks her costs on a party/party basis – Where the appeal has been wholly unsuccessful – Where the appellant makes no submission in opposition to an order for costs being made in the terms as sought – Costs ordered in the sum as sought by the respondent.

  • Rochford & Fitzhugh [2019] FamCAFC 218

    21 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – RELOCATION –Where the primary judge refused the mother’s application to relocate with the child – Whether the primary judge erred in determining that on the mother’s proposal for time there was a very high likelihood that the child’s meaningful relationship with the father would be diminished – Where the primary judge erred in proceeding on the basis that a relationship that is something less than optimal cannot be meaningful – Failure to consider mother’s proposal in light of practicalities – Where the primary judge failed to assess and evaluate the competing proposals of the parties – Where his Honour failed to consider evidence that was before his Honour – Discretion miscarried – Appeal allowed – Cost certificates ordered.

  • Rader & Rader and Ors (No. 2) [2019] FamCAFC 227

    21 Nov 2019

    FAMILY LAW – APPEAL – INTERIM PARENTING – Parenting arrangements – Where children were placed in the care of their maternal grandparents – Assessment of risk – Where a recovery order should not have been sought or granted –Where the father was denied procedural fairness by not being afforded the opportunity to meet the ICL’s proposal that the children live with the maternal grandparents – Appeal allowed and orders set aside – Where the best interests of the children are served by them returning to live with the father until the rehearing, subject to the conditions recommended by the single expert – Where the father is to have parental responsibility – Where no orders are made for time with the mother – Costs certificates ordered for the appellant and respondents for the appeal and the rehearing of the matter – No costs certificates ordered for the ICL.

  • Adderley & Heybourne [2019] FamCAFC 217

    21 Nov 2019

    FAMILY LAW – PROPERTY – Where during the relationship the parties operated a company together as directors – Where following separation the husband operated a new business as sole director – Where the wife says she was excluded from the operation of the business after separation – Where the wife’s grounds of appeal attack the substantive exercise of the primary judge’s discretion –Where an adjustment of 25 per cent in favour of the wife was not made in error – Appeal dismissed – Order that the wife pay the husband’s costs as assessed.

  • Cimorelli & Wenlack [2019] FamCAFC 212

    08 Nov 2019

    FAMILY LAW – APPLICATION IN AN APPEAL FOR EXPEDITION – Parenting – Where the mother filed three separate appeals that all concern an order made by the primary Judge on the first hearing date in October – Where there is nothing to persuade the Court that these appeals should be expedited to the possible determinant of other appeals – Where the application for expedition is untimely – Where the parties are still awaiting the primary judges reasons from the interim parenting matter recently heard which may render the appeals pointless – Application dismissed – All three appeals ordered to be consolidated into one.

  • Prescott & Finley [2019] FamCAFC 211

    08 Nov 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant requires an extension of time – Where the applicant was incarcerated at the time the judgment was delivered –Where the applicant failed to receive a copy of the judgment – Where no current Notice of Address for Service was filed by the applicant – Where the applicant was three months late in filing the appeal – Application dismissed.

  • Emmert & Quarto [2019] FamCAFC 208

    07 Nov 2019

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the respondent made an application for a property settlement order four months out of time – Where the respondent was granted leave to commence the proceedings out of time – Where the appellant appeals the primary judge’s orders – Where the respondent contends that leave to commence the proceedings was never required – Consideration of s 44(6) of the Family Law Act 1975 (Cth) – Where the respondent’s application for a property settlement order was brought within time – Where leave was not required – Whether the primary judge’s order can be amended by reference to the “slip rule” – Whether the order made reflected the primary judge’s intention – Where the order made reflected the primary judge’s intention – Where the primary judge’s order are set aside – Appeal dismissed.