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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.

  • Lockley & Bardot [2016] FamCAFC 185

    06 Sep 2016

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

    FAMILY LAW – APPEAL – CHILDREN – STAY – Appeal against refusal to grant a stay – Where the mother has been the child’s primary carer since birth – Where the primary judge’s orders changed the child’s residence from the mother to the father and gave the father sole parental responsibility for the child – Where the child had never lived with the father – Where the mother has filed an appeal against these orders – Where the mother sought a stay of the orders pending the determination of the appeal – Where the primary judge refused to grant a stay – Where the primary judge assessed the prospects of success of the mother’s appeal by reference to the wrong Notice of Appeal – Where the proposed appeal is arguable – Where the primary judge also considered the time it would take for the mother’s appeal to be heard by the Full Court – Where the appeal was expedited  – Where the single expert gave evidence that moving the child to the care of his father would be upsetting in the short term – Appeal allowed.

  • May & Longley and Anor [2016] FamCAFC 184

    14 Sep 2016

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

    FAMILY LAW – APPEAL – DISMISSAL – Where the respondents seek that the appellant’s Amended Notice of Appeal be summarily dismissed – Where the second part of the Amended Notice seeks to appeal certain paragraphs of the reasons for judgment of the trial judge and is therefore incompetent and must be dismissed – Where there is no ground of appeal against the order dismissing the application alleging contravention and that part of the appeal must be dismissed – Where the child the subject of the appeal was aged 17 years at the time of the filing of the Amended Notice – Where there is no utility in the appeal – Where s 96AA of the Family Law Act 1975 (Cth) applies – Where none of the grounds of appeal have a reasonable prospect of success and all are devoid of merit – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondents seek costs – Where written submissions are required – Orders made for the filing and serving of written submissions.
  • Gao & Wang [2016] FamCAFC 183

    12 Sep 2016

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – DE FACTO – Where the primary judge made orders which gave the husband significantly more of the parties’ assets than the wife – Where the wife appealed those orders – Discussion of Stanford v Stanford (2012) 247 CLR 108 – Challenge to the primary judge’s finding that the wife had gambled away a significant portion of the parties’ assets – Challenge to the primary judge’s exercise of discretion in altering the parties’ interests in the property – Challenge to the weight attributed by the primary judge to the wife’s admissions about making a false financial statement – Where the wife submitted that the primary judge failed to take into account under s 90SF(3)(c) and s 90SF(3)(l) the wife’s future care of the parties’ children – Where there was no evidence that the children will be returned to the wife’s care – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent was self-represented and did not incur any costs – No order as to costs.
  • Doherty & Doherty [2016] FamCAFC 182

    08 Sep 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against final parenting orders – Where final parenting orders made in 2012 – Where no relevant change in circumstances to warrant reconsideration of the child’s living arrangements – Where the primary judge “re-made” the 2012 orders with minor variations – Where the primary judge ordered that the parents have equal shared parental responsibility for discrete aspects of parental responsibility and for the mother to otherwise have sole parental responsibility – Whether an order for equal shared parental responsibility may be made in relation to an aspect of parental responsibility – Whether an order allocating equal shared parental responsibility for an aspect of parental responsibility triggers the application of s 65DAA of the Family Law Act 1975 (Cth) – Whether the primary judge erred in failing to apply s 65DAA – No error established – Appeal dismissed.

    FAMILY LAW – COSTS – Where the father was wholly unsuccessful – Where the circumstances justify an order for costs – Where mother in receipt of legal aid – Where financial consequences of father’s unmeritorious appeal should not be visited upon the legal aid authority – Father to pay the mother’s costs of the appeal in instalments.
  • Scarle & Ringwood and Anor [2016] FamCAFC 181

    24 Aug 2016

    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 mother seeks expedition of her appeal against parenting orders which provide for the children to live with the maternal grandmother – Where the mother contends the children are at risk of harm in the maternal grandmother’s care – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Where orders are to be made for the appeal and cross-appeal to be listed at short notice in the event an early date becomes available without dislocating other appeals – Application dismissed.

  • Serhan & Serhan [2016] FamCAFC 180

    08 Sep 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the appellant father alleged the primary judge had made errors of fact and had failed to give proper consideration to previous shared care arrangements that had been in place in relation to the parties’ child – Where the appellant father further asserted the primary judge’s finding of family violence was not open to her and that the primary judge made the parenting orders that she did because of the appellant father’s visual impairment – Where the Full Court found none of the grounds were made out – Appeal dismissed – No order as to costs.

  • Saska & Radavich [2016] FamCAFC 179

    01 Sep 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Parenting orders – Proper interpretation of definition of family violence in s 4AB(1) of the Family Law Act 1975 (Cth) (“the Act”) – Whether mother a member of the family of the father within the meaning of s 4AB(1) – Father’s foreshadowed contention that absent findings of the existence of a de facto relationship or shared residence the mother not a “family member” of the father and that his conduct could not constitute “family violence” as defined – Meaning of “family member” as defined in s 4(1AB) – Mother a “family member” of the father by operation of s 4(1AB) – Whether presumption in s 61DA(1) applied – Whether s 65DAA of the Act ought to have been applied – Error of fact contended for by the father – Father’s contentions on appeal as foreshadowed abandoned in the course of argument of the appeal – Appeal not abandoned and hence contentions dealt with – Costs of appeal – No merit in appeal – Appeal dismissed – Costs orders in favour of respondents.

  • Reyman & Reyman and Ors [2016] FamCAFC 178

    02 Sep 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the grandmother was discharged as a party – Where the grandmother would like time with the child separate to the mother’s time with the child – Where the other parties agreed the appeal should be allowed and the grandmother’s application for time with the child should be remitted for rehearing – Appeal allowed.

    FAMILY LAW – COSTS – Where the grandmother paid the costs of the transcript – Where there was an absence of procedural fairness accorded to the grandmother – The grandmother should be awarded her costs pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
  • Mead & Mead [2016] FamCAFC 177

    05 Sep 2016

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

    FAMILY LAW – APPEAL – CHILDREN – RECOVERY ORDER – Where the mother appeals against interim parenting orders and refusal of recovery order – Where children cared for by the paternal grandmother while mother took short holiday – Where father assumed care of the children – Where judgment reserved – Where interim parenting orders made without hearing either party – Whether there was a denial of procedural fairness – Whether failure to properly engage with the mother’s case for the children to be returned – Risk assessment – Appeal allowed – Orders set aside – Application for interim parenting orders remitted for rehearing – Application for recovery order listed for further hearing before the Full Court – Costs certificates for the appeal granted.

  • Maddax & Danner [2016] FamCAFC 176

    05 Sep 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against final parenting orders which permit the mother to move with the child approximately 30 kilometres –  Where the grounds of appeal allege errors of fact finding by the primary judge – Whether the primary judge erred in the treatment of the evidence of the family report writer –  Whether the father was incompetently represented such that the trial miscarried – Application of OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 – Whether the primary judge misapplied the law ordering that the mother have sole parental responsibility and reducing the father’s time with the child – Appeal dismissed.

    FAMILY LAW – APPEAL – Where after the father failed to obtain a stay of the final orders the father filed an application for interim parenting orders – Where the primary judge summarily dismissed the application as an abuse of the court’s process – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father sought to adduce further evidence in the appeals – Where the evidence was not relied upon at the hearing – Where the evidence sought to be adduced was controversial – Application of CDJ v VAJ (1998) 197 CLR 172 and Coulton v Holcombe (1986) 162 CLR 1 – Application allowed in part by consent of the parties.

    FAMILY LAW – COSTS – Where the mother sought that the father pay her costs on an indemnity basis – Where counsel for the mother relied on an offer to settle – Parties ordered to file written submissions on the question of costs.
  • Huffman & Gorman (Costs) [2016] FamCAFC 175

    05 Sep 2016

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

    FAMILY LAW – APPEAL – COSTS – Where the appellant appeals an order that he pay the costs of the respondent of and incidental to his dismissed application in a case – Where the trial judge’s decision is not “plainly wrong” and he has not erred in the exercise of his discretion – Where there is no merit in the grounds of appeal – Appeal dismissed.

  • Gorman & Huffman and Anor [2016] FamCAFC 174

    05 Sep 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Inadequacy of reasons – Inadequate weight – Expert evidence – Credit – Adverse inferences – Admissibility of Evidence – Where many of the grounds contained general assertions without any specificity – Where there was no merit in any of the grounds as pleaded – Where indefinite supervision was ordered – Where there were insufficient reasons to support this order – Where there was no mechanism for review – Where the failure to apply the guidelines for indefinite supervision orders demonstrated error – Where the orders failed to represent the intention of the trial judge – Where it would be inappropriate to allow this error to perpetuate – Appeal allowed in part.

    FAMILY LAW – APPEAL – PROPERTY – Insufficient weight – Where the grounds contained general assertions without specificity – Where there is no error in the trial judge’s assessment of the parties’ contributions – Where there is no error in the trial judge’s consideration of the relevant s 75(2) Family Law Act 1975 (Cth) factors – Appeal dismissed.

    FAMILY LAW – COSTS – Where there should be no order for costs – Where no party should receive a costs certificate.
  • Surve & Surve [2016] FamCAFC 173

    02 Sep 2016

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

    FAMILY LAW – APPEAL –COSTS – Where the husband filed a notice of appeal – Where the wife’s solicitors advised the husband he should obtain legal advice and that there were no arguable grounds of appeal – Where the wife’s solicitors warned the husband that a costs order may be made against him – Where a number of extensions of time were granted to the husband to comply with procedural directions – Where the wife incurred costs meeting the appeal – Where the husband discontinued the appeal – Where the wife sought costs on an indemnity basis – Where the wife satisfied a number of factors of s 177(2A) of the Family Law Act 1975 (Cth) which justified a costs order in her favour – Where costs is not appropriate on an indemnity basis but the amount sought and reference to the costs agreements demonstrate the wife’s sum was reasonable and within the realm of the Family Law Scale – Husband should pay the wife’s costs.

  • Kovacs & Graham and Anor [2016] FamCAFC 172

    01 Sep 2016

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

    FAMILY LAW – APPEAL – PROCEDURE – Application to review Appeals Registrar’s orders – Application for Appeals Registrar to prepare appeal books – Application to reinstate abandoned appeals – Where the application was filed out of time – Where the appeals were deemed abandoned by reason of the application not able to be listed before the due date to file the appeal books – Where the appellant sought in his application to the Appeals Registrar that the Independent Children’s Lawyer prepare the appeal books – Where the appellant failed to provide adequate evidence before the Appeals Registrar – Where the Appeals Registrar’s decision was correct to refuse that application – Where on application to the Full Court the appellant was able to demonstrate exceptional hardship per Xuarez & O’Halloran & Anor [2013] FamCAFC 13 – Extension of time to file the application granted – Leave to review the Appeal Registrar’s orders allowed in part – The Appeals Registrar will prepare the appeal books on the appellant’s behalf – Where the issue of transcripts has been reserved to the Full Court – Where the issue of costs is reserved to the Full Court.

  • Stapleton & Hayes [2016] FamCAFC 171

    01 Sep 2016

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

    FAMILY LAW – APPEAL – CONTRAVENTION APPLICATIONS – Where the primary judge found that the appellant had contravened final parenting orders – Where the primary judge imposed a bond on the appellant pursuant to s 70NEC of the Family Law Act 1975 (Cth) – Where the appellant sought to appeal those orders – Where there was insufficient evidence for the primary judge to have found some of the contraventions to be established –Where it was open to the primary judge on the evidence to find that one contravention was established – Where the appeal is allowed in relation to four out of the five findings of contraventions – Where the bond was imposed on the basis that several contraventions were established – Where the bond cannot stand – Appeal allowed.

    FAMILY LAW – APPEAL – COSTS – Where the appellant sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appellant was not required to prepare appeal books – Where the issuing of a costs certificate is unnecessary – No order as to costs.

  • Gupta & Child Support Registrar [2016] FamCAFC 170

    01 Sep 2016

    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 in which to file a Notice of Appeal – Where the applicant seeks to appeal from orders relating to child support – Where the applicant has a reasonable excuse for his delay in filing his Notice of Appeal – Consideration of the merits of the proposed appeal – Where the applicant made an application in the Federal Circuit Court under s 111 of the Child Support (Assessment) Act 1989 (Cth) for an amendment of his child support liability – Where applicant failed to seek leave under s 112 of the Act – Where the application was therefore incompetent – Where the applicant sought for the primary judge to set aside a departure prohibition order – Where the primary judge refused to set aside the order on the basis that he had no jurisdiction to do so – Where the primary judge had jurisdiction to set aside the order under s 72Q of the Child Support (Registration & Collection) Act 1988 (Cth) and was therefore in error – Where an appeal under s 72Q lies not to the Family Court of Australia but to the Federal Court of Australia – Where the applicant proposes to appeal the primary judge’s refusal to grant a departure authorisation certificate – Where the Federal Circuit Court does not have the power to grant such a certificate – Where there is no merit to the proposed appeal – Application dismissed.

  • Anderrie & Hodbie [2016] FamCAFC 169

    29 Aug 2016

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

    FAMILY LAW – APPEAL – PROPERTY – Where the Notice of Appeal filed by the appellant is incompetent and does not contain proper grounds of appeal identifying appellate error by the trial judge nor relevant facts in support of her application for leave to appeal – Where the appellant has had an opportunity to file a further Notice of Appeal which addresses those omissions/concerns – Where the further Notice of Appeal sought to be filed by the appellant does not assist – Where the respondent through counsel asks that the Notice of Appeal be dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where the appeal has no prospect of success and is doomed to fail – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent makes an application for costs on the basis of the lack of success of the Notice of Appeal – Where there should be an order for costs – Costs ordered in favour of the respondent as assessed.

  • Loomis & ML Lawyer [2016] FamCAFC 168

    17 Aug 2016

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

    FAMILY LAW – APPEAL – SINGLE JUDGE APPEAL – COSTS – appeal against dismissal of application for stay – leave to appeal refused – where the mother’s solicitors were awarded costs against the father – where the father appeals those orders – procedural fairness – financial circumstances of the parties – where no error established – appeal dismissed – written submissions on costs of the appeal to be filed.

  • Vize & Gadsden [2016] FamCAFC 167

    25 Aug 2016

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

    FAMILY LAW – APPEAL – SECTION 90RD DECLARATION – Where the appellant appeals the dismissal by the trial judge of the application for a declaration that a de facto relationship existed between the parties – Where it is clear that a trial judge exercises a wide discretion in determining whether a de facto relationship existed pursuant to s 4AA(4) of the Family Law Act 1975 (Cth) – Where here it is suggested that the trial judge has mistaken the facts and has failed to take account of some material consideration in the exercise of that discretion – Where there is no merit in any of the grounds of appeal and many grounds were unsustainable and misconceived – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent sought an order for costs in the event that the appeal was dismissed – Where the appellant opposed such an order on the basis of her financial circumstances and that this was a finely balanced case such that it was appropriate to bring the appeal – Where impecuniosity is not a bar to an order for costs being made where there are other circumstances that justify such an outcome – Where the appellant was wholly unsuccessful in the appeal – Where this was not a finely balanced case such that it was reasonable to have brought the appeal – Where the respondent has been put to the unnecessary cost of responding to the appeal – Costs ordered on a party/party basis in favour of the respondent.

  • Roffe & Huie [2016] FamCAFC 166

    19 Aug 2016

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

    FAMILY LAW – APPEAL – CONTRAVENTION – Where the respondent admitted serious contraventions without excuse – Where the appellant was placed on a bond for 12 months conditional on complying with court orders and attending on a family consultant – Where the appellant sought the respondent pay his costs pursuant to s 70NFB of the Family Law Act 1975 (Cth) (“the Act”) – Where the judge was obliged to consider the best interests of the child in deciding if an order for costs should be made – Where it was determined it would not be in the best interests of the child to order that the respondent pay the appellant’s costs – Where the appellant argued that the judge failed to give adequate reasons and conflated the best interests considerations – Where the judge gave adequate reasons and an absence of reasons does not indicate error per Penfold v Penfold (1980) 144 CLR 311 – Where the provisions of s 70NFB are different to s 117 of the Act – Where the judge correctly made findings and gave adequate reasons – Where the consideration of best interests in contravention proceedings is not the same as parenting proceedings, reference should be made to s 60CC of the Act – Where the appellant argued that the judge was obliged to consider s 117 of the Act – Where it is correct that if a judge determines a costs order would not be in the best interests of a child, then the discretion to make such an order is exhausted – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs if the appeal was dismissed – Where the background to this matter and the arguments properly put in support of the appeal lead to the conclusion that a costs order could not be justified – No order as to costs.

  • Dern & Fairman [2016] FamCAFC 165

    17 Aug 2016

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

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant did not attend the hearing – Where the matter proceeded on an undefended basis – Where counsel for the appellant conceded there was no appellable error – Where counsel agreed the more appropriate remedy for the appellant is pursuant to s 90SN of the Family Law Act 1975 (Cth) – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent sought an order for costs – Where the appellant resisted such order on the basis of impecuniosity – Where the appeals registrar raised with the solicitors for the appellant other remedies including r 16.05 of the Federal Circuit Court Rules 2001 (Cth) – Appellant to pay the respondent’s costs of the appeal, to be assessed if not agreed.

  • Coleman & Hamilton [2016] FamCAFC 164

    19 Aug 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against parenting orders that the children live with the father and the father have sole parental responsibility – Where the grounds of appeal challenged the weight the trial judge gave to evidence – Where the totality of the evidence provided an ample basis for the challenged findings – Where the trial judge made adverse credit findings against the mother – Where it was asserted these findings should not have been made but the findings themselves were not challenged – Where the resolution of issues before her Honour required a determination of the credibility of the mother – No error demonstrated – Appeal dismissed – No order as to costs.

  • Frazier & Valdez [2016] FamCAFC 163

    16 Aug 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS OF APPEALS – Discretionary factors – Rule 19.05(2) of the Family Law Rules 2004 (Cth) – determined that in the circumstances of this case there are justifying circumstances within the meaning of s 117(2) of the Family Law Act 1975 (Cth) for an order for security for costs – quantum of amount ordered.

    FAMILY LAW – RESPONSE TO APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Application for security for costs by respondent in two appeals – Appellant (respondent to this application) files response seeking orders beyond the scope of the application and which are misconceived – whether appellant ought be permitted to pursue those orders on this application – whether appellant permitted to rely upon in excess of 100 pages of documents attached to his affidavit and a further 1300 pages of documents contained in seven bound volumes – whether that material confined to facts about the issues in dispute on this application and confined to admissible evidence within the meaning of r 15.09(1) of the Family Law Rules 2004 (Cth) – determined that orders sought by the appellant in his response are vexatious and an abuse of process – determined that appellant ought not be permitted to rely upon subject material on the application for security for costs.

    FAMILY LAW – COSTS – Costs of application on party/party basis.

  • Peters & Ortana (No. 2) [2016] FamCAFC 162

    10 Aug 2016

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application by the appellant to amend the grounds of appeal at a late stage – Application allowed to the extent that the proposed grounds relate to the parenting proceedings.

  • Nolan & Child Support Registrar [2016] FamCAFC 161

    18 Apr 2016

    FAMILY COURT – APPEAL – PRACTICE AND PROCEDURE – The appellant failed to serve the respondent with the Notice of Appeal and has not shown reasonable diligence in prosecuting the appeal – Appeal dismissed under r 22.45 of the Family Law Rules 2004 (Cth) – No order as to costs.

  • Gadoury & Koller [2016] FamCAFC 160

    17 Aug 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application seeking an extension of time to file a Notice of Appeal – Where the orders provide for the father to have certain overnight time with the child – Where orders were pronounced in court but it is submitted they are inconsistent with the final orders – Where there is an adequate explanation for the delay and some merit to the proposed appeal – Application allowed.

    FAMILY LAW – COSTS – Where both parties are self-represented and have not incurred costs – No order as to costs.

  • Shaw & Shaw and Anor [2016] FamCAFC 159

    19 Aug 2016

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

    FAMILY LAW – APPEAL – PROPERTY – Where the orders made do not effect an alteration of the property interests of the husband and the wife pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the trial judge erred in assessing the contributions of the husband – Where it is not desirable to address the remaining grounds of appeal given the matters will be considered afresh on rehearing – Appeal allowed.

    FAMILY LAW – CROSS APPEAL – PROPERTY – Where the trial judge found that the husband and cross appellant owned joint property – Where the wife had no equitable or legal interest in the property – Where no order was made for the wife to remove the caveat over the titles of the property – Where the trial judge’s finding is sufficient to ensure the caveat can be discharged – Where appealable interference is not warranted – Where the trial judge gave sufficient reasons for his findings on the cross appellant’s claim – Where the findings made were open on the evidence before the trial judge – Cross appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appeal succeeded on an error of law – Costs certificates ordered for the husband and wife – Where the cross appeal was wholly unsuccessful – Cross appellant to pay the wife’s costs of the cross appeal.

  • Paxton & Child Support Registrar and Anor (Costs) [2016] FamCAFC 158

    18 Aug 2016

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

    FAMILY LAW – COSTS – Where the Child Support Registrar sought costs of the applicant’s unsuccessful application for leave to appeal child support orders – Where the parties were ordered to file written submissions – Where the applicant was wholly unsuccessful – Where the applicant’s conduct and the nature of the proceedings justify an order for costs – Where the fixed amount of costs sought is reasonable – Applicant to pay costs of the Child Support Registrar in a fixed sum by way of instalments.

  • Clarence & Crisp [2016] FamCAFC 157

    18 Aug 2016

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

    FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – PARENTAGE – The appellant is the birth mother of the child, but the child was conceived using the respondent’s egg – Appeal against a finding that the parties were in a de facto relationship at the time of the child’s conception and that the respondent is therefore a parent of the child – Comparison of statutory tests relating to married couples and de facto couples – The relevant question was not whether the parties separated when the respondent moved out of their home, but whether the relationship subsisted at the time of the conception – The existence of a de facto relationship is a finding of fact that depends upon an assessment of all of the circumstances of the relationship – The trial judge did not err – Appeal dismissed – Order for the appellant to pay the respondent’s costs.

  • Keats & Keats [2016] FamCAFC 156

    16 Aug 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim orders concerning time child would spend with him – Where the orders are expressed to be final rather than interim parenting orders – Where orders amended pursuant to s 94(2) of the Family Law Act 1975 (Cth) – Where the grounds of appeal challenge the exercise of discretion, the weight to be given to various factors and application of s 65DAA of the Act – Where the appellant is bound by the conduct of the case before the primary judge – No error demonstrated – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – Where the circumstances do not warrant an order for indemnity costs – Appellant to pay the respondent’s costs on a party/party basis.

  • Maple & Niu (Costs) [2016] FamCAFC 155

    18 Aug 2016

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

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs of the appeal – Where the appellant was wholly unsuccessful in the appeal – Financial circumstances of the parties – Conduct of the parties to the proceedings – Where it is appropriate for the court to make an order as to costs – Whether costs should be ordered on a party/party or indemnity basis – Where the circumstances do not warrant an order for indemnity costs – Where the appellant is to pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed.

  • Tisoni & Maron [2016] FamCAFC 154

    18 Aug 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a Notice of Appeal – Where the explanation for delay is not satisfactory – Where there is no merit to the proposed grounds of appeal – Application dismissed.

  • Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153

    16 Aug 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the maternal great grandparents appeal against  dismissal of their application to spend time with their great grandchildren and a vexatious proceedings order – Where the appellants previously found to lack standing to apply for parenting orders – Where the appellants subsequently instituted parenting proceedings on the same facts and seeking the same orders – Whether the appellants had standing to institute parenting proceedings – Where prior to determining the question of standing, the primary judge made orders under s 102QB(2) dismissing the proceedings and restraining the appellants from instituting further parenting proceedings – Whether the primary judge had jurisdiction to determine the appellants’ fresh application –  Consideration of ss 65C(c) and 102QB of the Family Law Act 1975  (Cth) – Where the orders were made within the court’s jurisdiction and power – Where the grounds of appeal challenge the exercise of discretion of the primary judge – Where  findings were open – No error demonstrated – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appellants’ were wholly unsuccessful on appeal – Where the circumstances justify an order for indemnity costs – Appellants to pay the respondents’ indemnity costs fixed in the amount of $15,000.

  • Oswald & Karrington [2016] FamCAFC 152

    16 Aug 2016

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

    FAMILY LAW – COMPETENCE OF APPEAL – where the father contended the appeal was out of time and thus incompetent – where ex tempore reasons for judgment were given at trial – where orders were made after the reasons for judgement were given – where the mother’s notice of appeal was filed within 28 days of the orders – where s 94AAA(5) provides the court jurisdiction in an appeal from a “decree”  of the Federal Circuit Court of Australia – where reasons for judgment do not constitute a decree – where it was held the formal orders constitute a decree – where the mother’s notice of appeal was filed in time.

    FAMILY LAW – APPEAL – CHILDREN – RELOCATION – where the mother was the primary carer – where the issue on appeal was whether the trial judge was correct to make a coercive order as to where the mother was to live – where the children lived with the mother and spent time with the father each alternate weekend – where the mother had at separation relocated to receive emotional support and move away from her previous drug habits – where the mother would travel with the children to allow for the father to spend time with the children – where the trial judge found the travel was not safe for the children – where the trial judge assumed the mother would receive the same emotional support should she be ordered to relocate back to the father’s town – where it was held it was not open to the trial judge to make these findings – where the Court’s power to make a coercive order should be exercised only in rare and extreme circumstances, namely for a parent to perform their role as primary carer – where the trial judge was required to consider alternative options available before making a coercive order – where it was held the trial judge erred in failing to consider alternatives to a coercive order – where the trial judge erred in considering s 60CC factors by failing to consider the risk factors for the children should the mother be required to move back to the father’s town – where the mother argued at trial she would likely relapse and abuse drugs if ordered to move back to the father’s town – where the trial judge further erred in applying the factors under s 65DAA – where it was found that the trial judge acted upon wrong principles and failed to take into account relevant material considerations and facts – where this failure led the trial judge to make a coercive order – where the appeal was allowed – where the parenting proceedings were remitted for rehearing – where the coercive orders were set aside.

  • Pencious & Searle (No. 2) [2016] FamCAFC 151

    04 Aug 2016

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – where the husband appeals orders striking out a subpoena and notice to produce – where the husband appeals the dismissal of his oral application for an injunction restraining the wife’s counsel from further appearing for her in the proceedings – appeal dismissed – order for costs.

  • Pencious & Searle (Disqualification) [2016] FamCAFC 150

    04 Aug 2016

    FAMILY LAW — COURTS AND JUDGES — Disqualification — Application by husband for disqualification of judge on ground of apprehended bias — Application brought after hearing — Application concerns the Chief Justice as one of three judges on appeal bench — Where the husband had sent a letter of complaint concerning a Registrar of the Court to the chambers of the Chief Justice — Complaint was referred to Deputy Chief Justice in accordance with internal procedure — Complainant was advised the complaint would be considered at the conclusion of the current proceedings — Complaint contained in appeal book and thus available to all members of the bench prior to hearing of the husband’s appeal — Application dismissed

  • Bernieres and Anor & Dhopal and Anor [2016] FamCAFC 149

    11 Aug 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the application and affidavit have only just been served – Where the respondents are aware of the orders being sought and previously consented to the reinstatement of the appeal and provided a Notice of Address for Service – Where apart from that the respondents have not sought to be heard nor to file documentation in either the first instance proceedings or the appeal proceedings – Where absent that consent the interests of justice require the application to be granted – Appeal reinstated after seven days to allow the respondents to respond if they wish to.

  • Tindall & Saldo [2016] FamCAFC 146

    10 Aug 2016

    FAMILY LAW – APPEAL – CHILDREN – PRACTICE AND PROCEDURE – Where final parenting orders were made in 2012 providing that there was no face to face contact between the child and the father – Where the father sought a variation of those orders through a Rice and Asplund (1979) FLC 90-725 argument – Where the trial judge indicated she would conduct a threshold hearing separate to a final hearing – Where the trial judge subsequently determined the threshold matter and final hearing together – Where the mother had only filed an affidavit relating to the threshold issues – Where the mother was not given leave to rely on the entirety of an affidavit from the 2012 proceedings – Where the trial judge failed to afford the mother procedural fairness in not permitting her to put relevant evidence before the court – Appealable error demonstrated.

    FAMILY LAW – APPEAL – CHILDREN – Whether the trial judge properly considered the principles in Rice and Asplund (1979) FLC 90-725 – Where the trial judge failed to consider any change in circumstance against the rationale that the identified change must justify a reconsideration of the issues – Appealable error demonstrated.

    FAMILY LAW – APPEAL – CHILDREN – Where it was contended that the trial judge erred in the weight she attributed to various s 60CC factors of the Family Law Act 1975 (Cth) – Where the father had pleaded guilty and been convicted on charges of violence against the mother – Where the trial judge found she could not come to a definite conclusion about an assault involving the child – Where such a conclusion was unsupported by the evidence and was not open to the trial judge – Where the trial judge failed to give sufficient weight to the evidence of family violence in her consideration of s 60CC(2)(b) of the Family Law Act 1975 (Cth) – Where the child expressed a desire to see the father – Where the trial judge elevated the child’s views over the primary consideration of protecting the child from harm – Where the mother indicated concerns about the child’s safety and the father finding out where she lived if the child were to have contact with him – Where the trial judge gave insufficient weight to the mother’s fears without proper consideration of the evidence of violence – Appealable error demonstrated.

    FAMILY LAW – APPEAL – COSTS – COSTS  CERTIFICATES –  Where neither party sought costs orders but both parties sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) should the appeal be allowed – Where the appeal was allowed on an error of law – Orders for costs certificates made.

  • Fekete & Child Support Registrar [2016] FamCAFC 145

    11 Aug 2016

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

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – LEAVE TO APPEAL – Where the applicant sought to appeal an order setting aside Notices to Produce – Where leave to appeal is required under s 94AA of the Family Law Act 1975 (Cth) and reg 15A of the Family Law Regulations 1984 (Cth) – Application of the test for leave to appeal in Medlow & Medlow (2016) FLC 93-692 – Leave to appeal refused.

  • Bowcott & Welling [2016] FamCAFC 144

    09 Aug 2016

    FAMILY LAW – APPEAL – DISQUALIFICATION – The mother appealed against the trial judge’s refusal to disqualify himself from continuing to hear the part-heard trial – Although some of the trial judge’s interventions were perhaps unwise, they were not such as to persuade a fair-minded lay observer to apprehend that the trial judge might not bring an impartial, unprejudiced mind to the resolution of the dispute – Appeal dismissed – No order as to costs.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Whether leave is required to appeal from a decision of the Federal Circuit Court in relation to disqualification – Tentative view expressed that such orders are interlocutory and subject to the requirement for leave by operation of s 94AAA(2) of the Family Law Act 1975 (Cth).

  • Forster & Forster [2016] FamCAFC 143

    09 Aug 2016

    FAMILY LAW – APPEAL – PROPERTY – Where many of the appellant’s grounds of appeal comprised general assertions lacking specificity – Where the appellant complained about his legal representation – Where a trial judge is essentially not responsible for the competence, expertise, or diligence of a legal practitioner – Where a party’s decision to proceed without legal representation does not reveal a lack of procedural fairness by the trial judge or result in a miscarriage of justice for which the trial judge is responsible – Where there has not been a miscarriage of justice as a result of any alleged incompetence on the part of the appellant’s solicitors – Where there was no procedural unfairness or error in the trial judge proceeding to trial where not all the procedural orders have been complied with – Where there was no error in the trial judge’s finding that the respondent made full and frank disclosure, but the appellant’s disclosure was inadequate – Where it is not open to the appellant to complain of bias and partiality when this was not raised at trial – Where there was a lack of specificity in relation to this complaint – Where there is also no bias or prejudice demonstrated in the trial judge’s reasons for judgment – Where the trial judge was aware of the principles in Stanford v Stanford (2012) 247 CLR 108 and applied them – Where no error is demonstrated by the trial judge in his consideration of the relevant section 75(2) factors – Where there was no basis to find that the respondent’s new partner was a financial resource to her – Where there was ample evidence to support the trial judge’s contribution findings – Where it was not demonstrated that the trial judge’s decision as to add-backs was plainly wrong –Where a failure to follow or apply the guidelines for litigants in person does not necessarily lead to appellate interference – Where it has not been demonstrated how the trial judge failed to adhere to the guidelines – Appeal dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROCEDURAL ORDERS – Where the husband sought to revisit matters already considered – Where there was no evidentiary basis to make the orders sought by the appellant – Where there was no error in how the trial judge dealt with the appellant’s application – Where the trial judge’s reasons were adequate – Leave to appeal refused.

    FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant sought to adduce further evidence – Where the application did not comply with the Family Law Rules 2004 (Cth) – Where the appellant had every opportunity to file the application at an earlier date – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent did not incur any legal costs or disbursements – No order for costs.

  • Rondaloe & Rondaloe [2016] FamCAFC 142

    09 Aug 2016

    FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals all property settlement orders made – Where it is claimed that the trial judge “double counted” by including in the asset pool the amount of a loan account which had been spent in reducing the balance outstanding on a mortgage, but only taking into account the then outstanding balance of that mortgage – Where the wife submits that this claim was not raised before the trial judge – Where the transcript shows that the issue of a double count was raised by the husband’s counsel with the trial judge and no challenge to that was made by the wife’s counsel – Where the trial judge took no account of this submission in the reasons for judgment – Where in the summary of assets available for distribution the trial judge included the value of the business with the amount of the loan account – Where the trial judge has clearly erred and there is merit in this ground of appeal – Where there is no merit in the remaining two grounds of appeal – Appeal allowed in part and paragraph 1 of the orders of the trial judge varied – Appeal otherwise dismissed.

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where the husband seeks to adduce further evidence – Where the wife opposes both applications – Applications dismissed.

    FAMILY LAW – APPEAL – COSTS – Where there should be no order for costs – Where there was little to choose between the time spent on the first ground of appeal and the remaining two grounds of appeal – Where it is inappropriate for costs certificates to issue given only one ground of three grounds of appeal succeeded.

  • Stone & Stone and Anor [2016] FamCAFC 141

    04 Aug 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made orders that the children neither see nor have direct communication with the maternal grandmother – Where the maternal grandmother asserted the orders made were not in the best interests of the children – Where the trial judge’s findings were open on the evidence – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where the maternal grandmother appealed a property order as between the father and the mother – Where the maternal grandmother was not a party to the property proceedings and the order appealed does not bind her – Where the maternal grandmother lacks standing to appeal this order – Appeal dismissed. 

    FAMILY LAW – CROSS APPEAL – CHILDREN – Where the trial judge made orders that the children neither see nor have direct communication with the mother – Where the experts’ recommendations that the children spend time with the mother must be viewed in the context of the totality of the evidence – Where the mother alleged the trial judge failed to consider allegations of family violence and abuse – Where the trial judge made adverse credit findings against the mother – Cross appeal dismissed.

    FAMILY LAW – CROSS APPEAL – PRACTICE AND PROCEDURE – Where the trial judge refused an adjournment of the trial based on the evidence before him – Cross appeal dismissed.

  • Whitby & Zeller [2016] FamCAFC 140

    03 Aug 2016

    FAMILY LAW – APPEAL – Where the trial judge made orders in 2014 for the re-introduction of the father to the child – Where these orders were affirmed by the Full Court decision in Whitby & Zeller (No 2) [2014] FamCAFC 239 – Where the orders under appeal were made to facilitate these 2014 orders  – Where no appealable error was demonstrated – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Costs orders made.

  • Linder & Linder [2016] FamCAFC 139

    04 Aug 2016

    FAMILY LAW – APPEAL – PROPERTY – Appeal against final property orders – Where the grounds of appeal challenge the exercise of discretion and weight given to various factors – Waste – Failure to give full and frank disclosure – Taxation liability treated as contingent liability  – Where the approach adopted by the primary judge accords with the proposal sought by the husband at trial for the treatment of the superannuation fund and associated taxation liabilities – Where appellant bound by the conduct of case – No error demonstrated – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – Where justifying circumstances exist for costs in favour of the respondent – Appellant to pay costs.

  • Pemberton & Pemberton [2016] FamCAFC 138

    04 Aug 2016

    FAMILY LAW – APPEAL – PROPERTY – The wife appealed against orders dismissing her application for enforcement of property orders – The Magistrate did not err in his interpretation of the orders – Appeal dismissed – Order for the appellant to pay the respondent’s costs.

  • Sands & Gard [2016] FamCAFC 137

    28 Jul 2016

    FAMILY LAW – APPEAL – CHILDREN – Appeal against final parenting orders – Where the trial judge made an order excluding the father from filing an initiating application for parenting orders for two years – Where this order was made notwithstanding the principles in Rice and Asplund (1979) FLC 90-725 – Where the respondent conceded that this order was made without power – Appeal against this order allowed.

    FAMILY LAW – APPEAL – CHILDREN – Appeal against final parenting orders – Where the trial judge made orders that the mother have sole parental responsibility and made no orders for the children to spend time with the father – Where the trial judge made no findings in regards to assertions of family violence – Where the trial judge found that the parties had no working relationship – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appeal was successful in relation to only one ground and the remaining grounds dismissed – Where it is not appropriate to order a costs certificate – No order as to costs.

  • Mertens & Mertens [2016] FamCAFC 136

    22 Jul 2016

    FAMILY LAW – APPEAL – CHILDREN – Appeal against parenting orders – Where the trial judge found that the father posed an unacceptable risk to the child – Where such a finding was open on the evidence before the trial judge – Where the trial judge ordered that the child spend only supervised time with the father to avert this risk – Where the father claimed a denial of procedural fairness as he was self-represented in the proceedings – Where the trial judge assisted the father to understand and participate in the process of the hearing as a self-represented litigant – Appeal dismissed – Costs orders made.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father sought leave to issue a subpoena to adduce further evidence and that the appeal be adjourned – Where there is no indication that the evidence sought to be adduced would fall under the guidelines in CDJ & VAJ (1998) 197 CLR 172 – Where it has been two years since the orders on appeal were made – Where there was no reason given for the delay in seeking the adjournment – Where the Court found it is not necessary to do justice between the parties to grant the father’s application for adjournment – Application dismissed.

  • Lokare & Baum [2016] FamCAFC 135

    28 Jul 2016

    FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders – Where the grounds of appeal challenge the exercise of discretion and the weight given to factors – Whether the trial judge adequately considered s 61F of the Family Law Act 1975 (Cth) – Where the benefit of the child having a connection with her Aboriginal culture was not in dispute – Where the trial judge weighed this against other relevant considerations such as the child’s age and issues of practicality – Where the trial judge declined to order a Family Report at an interim stage – Where the orders made were open on the evidence before the trial judge – No error established – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Costs orders made.

  • Palkovich & Palkovich [2016] FamCAFC 134

    28 Jul 2016

    FAMILY LAW – APPEAL – PROPERTY – Where each party sought orders to retain a certain property – Where the trial judge transferred that property to the wife – Where the husband appealed on the basis his contributions were not recognised and the trial judge was biased or had prejudged the matter – Where trial judge found the husband made the overwhelming financial contribution and the wife made the overwhelming parenting and home maker contributions – Where the wife had the almost sole care of the children for extended periods, including a period for their adult son who is unwell – Where the trial judge recognised significant contributions from both parties but that the wife should receive a further adjustment of five percent – Where the trial judge did not prejudge the husband’s application or demonstrate bias to satisfy the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the trial judge had appropriate regard to the contributions of both parties and there is no error – Appeal dismissed.

    FAMILY LAW – COSTS – Where the wife sought an order for costs – Where the appeal was wholly unsuccessful within the meaning of s 117(2A)(e) of the Family Law Act 1975 (Cth) – The husband should pay the wife’s costs of and incidental to the appeal, if not agreed, to be assessed.

  • Ulster & Viney [2016] FamCAFC 133

    28 Jul 2016

    FAMILY LAW – APPEAL – CHILDREN –Where the father appeals against final parenting orders which permit the mother to relocate the children from Melbourne to regional Victoria – Where the grounds of appeal challenge the exercise of discretion and weight given to various factors – Whether the primary judge erred in her consideration of s 65DAA and “substantial and significant time” – Meaning of “daily routine” discussed –  Where the primary judge did not err in the exercise of her discretion – No error established – Appeal dismissed.

    FAMILY LAW – COSTS – Where the mother sought costs in the event the appeal failed – Where the father was wholly unsuccessful on appeal – Where justifying circumstances exist for order for costs in favour of mother – Father to pay the mother’s costs of the appeal.

  • Lindsey & Christie and Anor [2016] FamCAFC 132

    25 Jul 2016

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the SSAT made a child support departure order – Where the father appealed the decision to the Federal Circuit Court – Where the father asserted the SSAT erred by assessing the father’s child support liability by reference to his income-earning capacity rather than his actual income – Where appeals from the SSAT are confined to questions of law – Where the Federal Circuit Court found the SSAT did not err in law – Where no appealable error on the part of the Federal Circuit Court was revealed by the father’s proposed grounds of appeal or his submissions – Application for leave to appeal dismissed – Father to pay second respondent’s costs.

  • Sullivan & Tyler and Anor (No. 2) [2016] FamCAFC 131

    20 Jul 2016

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – RE-INSTATEMENT – Where the applicant’s appeal was dismissed due to her failure to provide security for the costs of the second respondent – Where the applicant seeks re-instatement of the appeal against the second respondent – Where the second respondent seeks various orders including that the applicant’s applications are dismissed – Where a sequestration order has been made against the applicant – Where the parties agree the applications should still be heard – Where the applicant’s submissions sought to re-agitate matters already considered – Where the applicant failed to provide an adequate reason why the appeal should be re-instated in circumstances where she failed to abide by the order for security for costs – Applications dismissed.

  • Child Support Registrar & Lovell and Anor [2016] FamCAFC 130

    15 Jun 2016

    FAMILY LAW – COSTS – Where the appeal was deemed abandoned due to failure to comply with r 22.21 of the Family Law Rules 2004 (Cth) – Where the applicant seeks costs pursuant to r 22.43 of the Family Law Rules 2004 (Cth) – Where the fixed sum for costs sought by the applicant is reasonable – Costs order made.

  • Proctor & Proctor [2016] FamCAFC 129

    19 Jul 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a Notice of Appeal – Reasonable excuse for delay – Where the proposed appeal is not devoid of merit – Leave for an extension of time granted.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition – Where the orders being appealed resulted in significant changes to the child’s living arrangements – Expedition granted.

  • West & White [2016] FamCAFC 128

    19 Jul 2016

    FAMILY LAW – APPEAL – Application in an appeal for reinstatement – Where procedural orders were made for the preparation of appeal books – Where the appellant failed to file the appeal books on time – Where the appeal was deemed abandoned – Where the appellant queried the order to include the whole of the trial transcript in the appeal book – Where the respondent agreed to an extension of time for filing the appeal books provided an assurance was received in writing from the appellant that the books will contain the totality of the transcript – Where there was no appearance by the applicant on the hearing of his application for reinstatement – Where the application was allowed and the appeal reinstated.

  • Tipping & Stanton [2016] FamCAFC 127

    18 Jul 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the appellant was not prejudiced by the absence of part of the transcript in the proceedings – Where it was open to the trial judge to make an order for sole parental responsibility – Where there was no error in the trial judge’s interpretation of the single expert evidence or the weight afforded thereto – Where it was open for the trial judge to find that the respondents were witnesses of credit – Where nothing turned on the credit of the respondents in any case – Where it was open to the trial judge to find that the respondents had and would continue to encourage the relationship between the children and the appellant – Where it was open for the trial judge to find the appellant would not promote the relationship between the children and the respondents – Where the trial judge’s findings as to the appellant’s financial circumstances were open on the evidence – Where it cannot be said that a comparison of the parties’ financial circumstances was elevated to a primary consideration or given too much weight – Where it was open for the trial judge to find that the respondents played a greater role in the management of the children’s grief than did the appellant – Where the appellant failed to demonstrate that the trial judge’s order for the children to live with the respondent’s was plainly wrong – Where an order for flexibility in the spend time arrangements would be inconsistent with the trial judge’s order for sole parental responsibility in favour of the respondents – Where the trial judge properly considered the legislative pathway as it applies to people other than parents – Where the trial judge’s reasoning was adequate – Where the evidence demanded a finding that the respondents played a more significant role than the appellant in the children’s lives for the five years before trial – Where the appellant conceded that the children have a meaningful relationship with the maternal grandparents – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondents sought an order for costs – Where the appellant was wholly unsuccessful – Where the respondents incurred considerable expense in successfully defending the trial – Where the appellant is not impecunious – Order for costs made in favour of the respondents on party/party basis.

  • Valdez & Frazier (No. 3) [2016] FamCAFC 126

    18 Jul 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – STAY – Where the application was heard in the absence of the parties – Where the appellant has filed two separate applications for special leave to the High Court of Australia – Where the appellant seeks a stay of orders in relation to costs made in two separate appeal judgments pending determination of the special leave applications – Where the respondent does not wish to be heard on the appellant’s application – Where ultimate success in the High Court proceedings would result in the setting aside of the orders as to costs – Where there is no utility in the parties’ filing submissions on costs as previously ordered or seeking to enforce or pursue costs orders previously made pending the determination of the special leave applications – Application allowed.

  • Milne & Joyce [2016] FamCAFC 125

    15 Jul 2016

    FAMILY LAW – APPEAL – PROPERTY – The trial judge did not err in his treatment of “add backs” – The trial judge did not double count particular assets or treat particular assets inconsistently – The trial judge did not err in failing to include some minor chattels in the pool – Appeal dismissed – Order for the appellant to pay the respondent’s costs.

    FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – There was a delay of over two years in the delivery of judgment – The appellant claims that the values of assets and liabilities changed in this time – The onus was on the appellant to seek to reopen the trial – Application dismissed.

  • Quickley & Pelissier [2016] FamCAFC 124

    15 Jul 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the trial judge’s findings were open to him on the evidence – Where the trial judge was entitled to listen to as much of the recordings relied on by the appellant as he considered necessary – Where the trial judge’s reasons amply demonstrated the pathway leading to his decision – Where the trial judge properly considered and dispelled the presumption of equal shared parental responsibility – Where there is no error by the trial judge in his approach to the allocation of parental responsibility – Where the trial judge was not obliged to consider equal time – Where the trial judge clearly set out the parenting orders sought by the appellant and was not misled by counsel for the respondent’s final submissions – Where the trial judge was correct in not permitting objections by the appellant during the closing address of the mother’s counsel – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge clearly identified the existing property interests of the parties – Where the care of a child is a discrete factor to be considered separate from the payment of child support pursuant to s 75(2) Family Law Act 1975 (Cth) – Where the trial judge had a duty to end the financial relations between the parties and did so in the orders he made – Where it was not open to the appellant to raise a proposal on appeal that was not raised before the trial judge – Where the trial judge made no error in his assessment of liabilities in circumstances where no evidence was led about them despite there being ample opportunity for the parties to do so – Where there was no error by the trial judge in failing to add back the legal expenses of the parties when neither party raised this issue at trial – Where the trial judge was entitled to make an assessment of the appellant on the basis of how he conducted himself at trial – Appeal dismissed.

    FAMILY LAW – APPEAL – BIAS – Where the appellant asserted that the trial judge’s reasons for judgment demonstrated bias – Where there was a lack of specificity in relation to this complaint – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent sought an order for indemnity costs due to the conduct of the appellant and lack of merit in the appeal – Where the appeal was wholly unsuccessful – Where the appellant’s summary of argument and list of authorities were highly confusing – Where there were no exceptional circumstances to justify indemnity costs – Order for costs on a party/party basis.

  • Bircher & Bircher and Anor [2016] FamCAFC 123

    15 Jul 2016

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made findings as to the existence of two loans between the husband and the second respondent – Where the trial judge failed to confront and make findings by reference to the evidence as to the provenance of the loan agreements, the terms of the loans, and if they existed, who should bear liability for those loans – Where it was not open for the trial judge to ignore the plainly relevant evidence of the wife in relation to the inconsistencies between the evidence of the husband and the evidence of the second respondent and which called into question the authenticity of the alleged loans and the mortgages purportedly securing them without giving reasons for doing so – Where the absence of findings by the trial judge in respect of the wife’s case led to a failure to provide adequate reasons – Where there was no error in the trial judge’s treatment of spousal maintenance – Where there was a lack of findings in relation to the trial judge’s assessment of contributions during the marriage and post-separation to sustain her ultimate conclusion that the parties’ contributions were ostensibly equal – Where the trial judge plainly erred in making a finding of negative contribution against the appellant – Where there was no error in the trial judge’s treatment of the parties’ superannuation entitlements – Where the trial judge was entitled to exclude a motor vehicle from the pool of assets as there was insufficient evidence to allow it to be included – Where the appellant’s counsel did not raise the issue of bias at trial and a reading of the transcript did not reveal bias by the trial judge – Appeal allowed.

    FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where the parties sought that the discretion be re-exercised in the event the appeal was successful – Where there was an absence of findings by the trial judge on the evidence in relation to the primary issues – Where it is likely that further evidence would be controversial and would require cross-examination – Where the proceedings should be remitted to the Federal Circuit Court of Australia for rehearing.

    FAMILY LAW – APPEAL – COSTS – Where all parties were self-represented but indicated they had incurred some costs – Where the respondents were wholly unsuccessful – Costs awarded to the appellant payable by the respondents jointly and severally.

  • Harrell & Nesland [2016] FamCAFC 122

    13 Jul 2016

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – De facto relationship – Whether the trial judge failed to provide adequate reasons – Add backs – Contributions – Whether the trial judge failed to consider the non-disclosure of assets  – Appeal allowed on the basis of inadequate reasons – Where the appellant submitted that the trial judge also took into account irrelevant matters, erred in the exercise of discretion and made a number of errors of fact – Where, due to the lack of adequate reasons, the Full Court is unable to determine whether the trial judge erred in his exercise of discretion.

    FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – De facto relationship – Where the trial judge failed to consider and assess s 90SF(3) factors – Where the trial judge erred by taking the appellant’s means-tested pension into account – Where the trial judge failed to give reasons for taking the appellant’s inheritance into account – Where the trial judge failed to identify how he resolved the parties’ competing submissions as to whether the appellant could support herself.

  • Turner & Turner and Anor [2016] FamCAFC 121

    08 Jul 2016

    FAMILY LAW – APPEAL – PROPERTY – Undefended hearing – Where there was a substantial property pool – Where the husband’s refusal to participate in the trial made it difficult to value the property pool – Where the husband was involved as both a shareholder and director in a number of companies – Where the trial judge ordered the husband pay the wife a cash – No discount or allowance was made for disposal of shareholdings or taxation – Where the husband was a minority shareholder and would need to dispose of or encumber shareholdings to meet his obligations – Where taxation and realisation costs would be incurred – Where an absence of evidence did not justify the orders made – Where no other inference could be drawn other than there would be a sale of shares – Where two grounds of appeal were conceded by the wife, being an indemnity costs order and an error in the valuation of the husband’s interest in a property – Error established and appeal allowed.

    FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – CHILD SUPPORT – Where it is alleged the trial judge failed to have regard to the husband’s financial circumstances in making spousal maintenance and child support orders – Where the husband argued he did not have the capacity to pay – Where orders were previously made by consent for spousal maintenance – Where the husband has a high income and earning capacity – Where the orders made were appropriate on unchallenged evidence – These grounds were established.

    FAMILY LAW – APPEAL – COSTS – The husband sought costs in his favour as the appeal was allowed – The wife resisted a costs order and sought a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) – Where the husband’s conduct in the trial did not assist the judge and there are no circumstances to justify a costs order in his favour – Where it is not appropriate to order costs or a certificate in favour of the wife – No order as to costs.

  • Malak & Mairie (No. 2) [2016] FamCAFC 120

    06 Jul 2016

    FAMILY LAW – APPEAL – CHILDREN – where the appellant father appeals orders excluding the father from having parental responsibility for the children and prohibiting all communication between the father and the children – where the father is a convicted paedophile – where the trial judge found that the father posed an unacceptable risk of psychological harm to the children – where the father asserts that the trial judge erred in failing to obtain the children’s views – where the father asserts that the findings of the trial judge were not open to his Honour on the evidence before him – where no error established – appeal dismissed – no order as to costs.

  • Collins & Ricardo [2016] FamCAFC 119

    20 Jun 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant father sought leave to proceed without transcript of the proceedings below – leave granted.

    FAMILY LAW – APPEAL – TRANSFER – LEAVE TO APPEAL – where the applicant father sought leave to appeal the procedural orders of Rees J transferring the proceedings to Cairns – where there is no merit in the appeal – where there is no substantial injustice to either party – leave refused – the father pay the fixed costs of the Independent Children’s Lawyer.