Please enter your search query in the form below to search judgments of the Family Court of Australia

using
Number of results per page:
Austlii logo

Judgments search is powered by Austlii


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.

  • Yein & Zihao [2019] FamCAFC 20

    15 Feb 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the parties were married for 15 months – Where the real property at the centre of the dispute was in the husband’s sole name – Where the trial judge found that the real property was purchased from funds provided solely by the wife – Where the husband was self-represented at trial – Whether the trial was affected by procedural unfairness – Re F: Litigants in person guidelines (2001) FLC 93-072, discussed – Where the failure to follow the Re F guidelines did not amount to injustice to the husband – Where the circumstances did not require the trial judge to appraise the husband of “the rule in Browne v Dunn” – Whether the trial judge showed apprehended bias – Where the trial judge’s interventions were to understand and clarify the husband’s evidence – Where the trial judge failed to properly consider s 79(2) – Where the failure to consider s 79(2) did not amount to an injustice – Appeal dismissed.

  • Tabb & Tabb [2019] FamCAFC 22

    12 Feb 2019

    FAMILY LAW – APPEAL – PARENTING – Appeal against the dismissal of the father’s application on Rice & Asplund grounds – Whether the primary judge’s conduct during the trial resulted in procedural unfairness to the father – Whether the primary judge erred in determining the substantive proceedings when the matter was only listed for directions – Where the nature of the hearing did not disadvantage the father – Appeal dismissed.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Order made restraining the father from filing any further applications without leave – Where the order was made without notice and without an apparent source of power – Procedural unfairness – Failure to give reasons – Appeal allowed.


  • Stradford & Stradford [2019] FamCAFC 25

    15 Feb 2019

    FAMILY LAW – APPEAL – CONTEMPT – Where the primary judge made a declaration that the husband was in “contempt” of orders made for the provision of full and frank disclosure – Where the primary judge ordered the husband to be sentenced to 12 months’ imprisonment – Where the husband appealed from the declaration and order and the wife supported the husband’s appeal – Where there was no factual foundation or requisite finding which justified any such declaration and order – Where the processes employed by the primary judge were so devoid of procedural fairness, and the reasons for judgment so lacking in engagement with the issues of fact and law to be applied, that to permit the declaration and order for imprisonment to stand would be an affront to justice – Appeal allowed – Costs certificate issued to the husband.

  • Sandwell & Sandwell [2019] FamCAFC 24

    15 Feb 2019

    FAMILY LAW – APPEAL – PARENTING – Change in living arrangements – Single expert report – Father’s psychiatric health – Whether the primary judge erred by relying on assertions of risk of harm posed by the father’s psychiatric health in the single expert report as a basis for changing the older child’s residence – Where the primary judge determined parental responsibility and with whom the children would live based on the children’s strong attachment to the mother, the lack of a risk to them in her care and the desirability of the children living together – No error demonstrated.

    FAMILY LAW – APPEAL – PARENTING – Supervised time – Where the primary judge ordered that the children spend supervised time with the father – Where the primary judge took into account the single expert’s opinion in ordering supervised time – Where any risk posed by the father’s psychiatric health could not be ameliorated by an order for supervision – Error demonstrated – Appeal allowed in part – Order for supervised time set aside – Interim parenting orders made in lieu by consent.


  • Peda & Feaster and Anor [2019] FamCAFC 21

    15 Feb 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the father filed a Notice of Appeal on 2 October 2018 – Where the father failed to file a draft index to the appeal books within the prescribed timeframe – Where the father’s appeal was deemed abandoned – Where the father’s grounds of appeal were largely incomprehensible and misguided – Where there were serious allegations and findings of abuse perpetrated by the father against all members of the family – Consideration of Joshua v Joshua (1997) FLC 92-767 – Where there was no substantial issue to be raised on appeal – Where the father asserted impecuniosity and being self-represented as explanation for delay – Where neither are satisfactory explanations – Where the Court is not satisfied of requirements to grant an application to reinstate – Application dismissed.

  • Kelk & Stehn [2019] FamCAFC 23

    15 Feb 2019

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the appellant complains that she was not afforded procedural fairness or natural justice and the primary judge did not apply the correct principles when dismissing her substantive application – Where the appellant did not comply with the orders of the court but there was confusion about the orders made and the orders were not sent by the court to the appellant’s legal representatives on the record – Where the primary judge had no regard to what the appellant did to ready her case for trial and it was the respondent who had failed to do anything in that regard – Where the primary judge dismissed the appellant’s application without proper notice, without adequate or accurate reasons and without giving her the opportunity to present her case – Where there is merit in the grounds of appeal – Appeal allowed – Matter remitted for rehearing by a judge other than the primary judge.

    FAMILY LAW – EVIDENCE – Further Evidence – Where the only part of the affidavit comprising the further evidence with any relevance to the application for leave to appeal and the appeal is the section detailing the circumstances surrounding the appellant’s non-compliance with the orders of the primary judge – Where the balance of the affidavit was either inadmissible or irrelevant – Where leave to appeal is to be granted and the appeal allowed it is therefore unnecessary to receive any further evidence – Application dismissed.

    FAMILY LAW – COSTS – Where the appellant sought an order for costs if leave was granted and the appeal allowed and in the alternative sought a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1975 (Cth) – Where the respondent opposed an order for costs being made but joined in the application for costs certificates – Where the appeal is being allowed on an error of law and there should be no order for costs – Where it is appropriate for both parties to have costs certificates for the appeal but not for the rehearing given that the hearing of the appellant’s substantive application is yet to take place – Costs certificates granted.


  • Trebiano & Trebiano [2019] FamCAFC 16

    13 Feb 2019

    FAMILY LAW – APPEAL – PROPERTY – Two pools approach – Section 75(2) adjustment – Adequacy of reasons – Where the primary judge made different adjustments to each pool of assets pursuant to s 75(2) of the Family Law Act 1975 (Cth) – Where the reasons for judgment do not adequately explain the basis on which the different adjustments were made – Where the reasons do not adequately explain how the adjustment to the non-superannuation assets was derived – Appeal allowed – Matter remitted for rehearing.

  • Phe & Leng [2019] FamCAFC 17

    08 Feb 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge’s finding that a loan existed between the respondent and the respondent’s father was open on the evidence – Whether the primary judge erred by failing to rule that evidence supporting the existence of the loan was a privileged communication and therefore inadmissible pursuant to s 131(1) of the Evidence Act 1995 (Cth) – Discussion of s 131(2)(g) of the Evidence Act 1995 (Cth) – Where a broader interpretation of s 131(2)(g) of the Evidence Act 1995 (Cth) is to be preferred – Where s 131(2)(g) of the Evidence Act 1995 (Cth) excluded any possible claim of privilege and the communication was admissible – Whether the primary judge appropriately assisted the appellant as to the admissibility of evidence in accordance with Re F: Litigants in Person Guidelines (2001) FLC 93-072 – Where the primary judge complied with Guideline 6 and adequately provided general advice to the appellant regarding the inadmissibility of evidence – Where the primary judge failed to comply with s 132 of the Evidence Act 1995 (Cth) and Guideline 7 and inform the appellant of a possible claim of privilege under s 131(1) of the Evidence Act 1995 (Cth) – Whether this failure to comply with s 132 of the Evidence Act 1995 (Cth) and Guideline 7 was such a failure and denial of procedural fairness as to call for appellate interference – Where the wife was not deprived of the possibility of a successful outcome – Whether the primary judge erred in the treatment of the respondent’s legal fees and associated liabilities – Where there was no error in the primary judge’s treatment of the respondent’s legal fees –Whether the primary judge erred by failing to make findings in the appellant’s favour pursuant to Weir and Weir (1993) FLC 92-338 – Where the appellant was unable to demonstrate deliberate non-disclosure by the respondent – Where there was no error in the primary judge’s exercise of discretion – Where none of the grounds of appeal were made out – Appeal dismissed – No order as to costs.

  • Mareet & Colbrooke [2019] FamCAFC 15

    07 Feb 2019

    FAMILY LAW – APPEAL – Parenting – Appeal from interim orders restraining the appellant from relocating – Where the respondent concedes the appeal – Significant errors of law – Failure to take into account relevant matters – Orders made that were unsupported by evidence – Cost certificates sought – Cost certificates granted – Appeal allowed – Orders of the primary judge set aside – Matter remitted for hearing.

  • Jabbar & Gade [2019] FamCAFC 14

    08 Feb 2019

    FAMILY LAW – APPEAL – PARENTING – Unacceptable risk of harm – Where the appellant mother asserts the primary judge failed to consider evidence relating to the alleged risk of harm she posed to the children as “fake” – Where findings made by the primary judge to accept video footage and text messages as authentic were open on the evidence – Admissibility of evidence under s 69ZT(1) of the Family Law Act 1975 (Cth) – Where the primary judge was correct to reject the mother’s assertion that video footage was inadmissible because the recording device had not been produced to her for forensic examination – Where video footage relevant and probative – Where no occasion arose for the primary judge to consider whether the respondent father or paternal grandmother were in contempt of court – Where the primary judge correctly exercised discretion – Where grounds of appeal lack merit – Appeal dismissed.   

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge expressly considered the appellant mother’s financial situation when making property settlement orders – Where an incomplete transcript was provided so not all oral evidence adduced at trial was available on appeal – Where it was open on the evidence for the primary judge to make findings which notionally added-back to the parties assets – Where the primary judge correctly exercised discretion – Appeal dismissed.

    FAMILY LAW – APPEAL – STAY – Appeal from refusal to grant a stay of the final parenting and property orders – Where the appeal is futile – Appeal dismissed.

    APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the respondent and the Independent Children’s Lawyer seek costs against the appellant – Where the appellant has modest financial circumstances – Where no circumstance under s 117(2A) of the Act justifies a departure from s 117(1) of the Act – Appellant and respondent to bear their own costs – Appellant ordered to pay the Independent Children’s Lawyer’s costs in a fixed amount. 


  • Hyams & Deller [2019] FamCAFC 18

    07 Feb 2019

    FAMILY LAW – APPEAL – Where there is no error by the trial judge – Where the complaints relate to conduct by previous solicitors – Where the appeal should never have been brought – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks costs on an indemnity basis – Where the application for indemnity costs is opposed given the financial circumstances of the appellant – Where the appellant does not oppose an order for costs calculated on a party/party basis – Where there are circumstances justifying an order for indemnity costs – Indemnity costs ordered.


  • Salaway & Clavell [2019] FamCAFC 6

    15 Jan 2019

    FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the applicant father seeks to expedite the respondent mother’s appeal against interim parenting orders – Where the mother seeks to appeal an order allowing the father to spend unsupervised time with the child – Where the orders are stayed pending appeal – Where the respondent does not support or oppose expedition – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justifies priority – Application granted.

  • Scott & Scott [2019] FamCAFC 9

    24 Jan 2019

    FAMILY LAW – APPEAL – INTERIM PROPERTY – Appeal by the wife against interim property orders providing for the sale of a medical practice (“the business”) owned by various entities of the parties – Where previous orders had allowed for the appointment of an independent manager – Where the wife had sought an injunction for the manager to no longer involve the husband in the business – Where the wife seeks to preserve the business for final hearing – Where the husband sought an order that the manager be discharged and a receiver and manger be appointment to the business – Where the husband claimed that the business was insolvent and sought appointment of receivers for sale of the business – Where the manager suggested that the court make further directions as to the management off the business – Adequacy of reasons – Where her Honour’s finding as to the high risk of the business becoming insolvent business was unsupported by and contrary to the evidence – Appeal allowed – Orders appointing receivers to sell the business set aside – Matter remitted for rehearing.

  • Rimac & Rimac [2019] FamCAFC 11

    30 Jan 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Application for extension of time to appeal against an order dismissing an interim financial application seeking an account for rent – Where leave to appeal is necessary if an extension is granted – Explanation for the delay – Merits of the proposed appeal – Where the issues raised in the applicant’s financial application are more appropriate to be heard at a final hearing rather than an interim hearing – Application dismissed.

  • Oram & Lambert and Ors [2019] FamCAFC 4

    24 Jan 2019

    FAMILY LAW – APPEAL – PARENTING – Procedural fairness – Interventions by the primary judge – Bias and prejudgment – Challenges to findings of fact – Whether the primary judge erred in her assessment of the risk posed to the children by the parties – Whether the primary judge ignored evidence of family violence – Adequacy of reasons – Whether the primary judge erred by treating the first respondent, who is not the biological father of one of the children, as a “parent” for the purposes of s 60CC of the Family Law Act 1975 (Cth) – Views of the children – Whether the primary judge erred in imposing an order for indefinite supervised time – No appealable error demonstrated – Appeal dismissed – No order as to costs.

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the appellant seeks to adduce a number of documents which were available at the time of the hearing before the primary judge – Where the appellant seeks to adduce a character reference and documents relating to her health and education – Where the documents are inadmissible, irrelevant or seek to demonstrate changed circumstances – Application dismissed.


  • Oakley & Millar [2019] FamCAFC 12

    31 Jan 2019

    FAMILY LAW – APPEAL – CONTEMPT – Where the father’s Notices of Appeal do not contain competent grounds of appeal – Where the finding of contempt was properly made pursuant to s 112AP of the Family Law Act 1975 (Cth) – Where no question of general principle is raised and the reasons are given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Where the appeals have no merit – Appeals dismissed.

    FAMILY LAW – APPEAL – PENALTY – Where the father does not raise any grounds of appeal as to the penalty imposed – Where the primary judge sentenced the father to six months imprisonment, suspended for a period of two years – Where the primary judge did not err in the penalty imposed on the father. 

    FAMILY LAW – APPLICATIONS IN AN APPEAL – FURTHER EVIDENCE – Where the evidence the father seeks to adduce is irrelevant to the proceedings – Where most of the evidence the father seeks to adduce was available to him at the time of the hearing – Applications dismissed.


  • Kohl & Rennie [2019] FamCAFC 13

    29 Jan 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks expedition of his appeal against final parenting/relocation orders – Where the father sought to relocate to the country of his birth with the two children – Where the parties have equal shared parental responsibility – Where the children live with the father – Whether there is a relevant circumstances which would cause the case to be given priority over other cases and to their possible detriment – application dismissed.

  • Gilmot & Gilmot [2019] FamCAFC 10

    24 Jan 2019

    FAMILY LAW – APPEAL – Parenting – Relocation – Where the primary judge’s order provided for the child to live with the mother in a specified suburb in Sydney – Where no such geographical restriction was sought by either of the parties – Lack of procedural fairness – Internal inconsistency in another order – Appeal allowed – Orders varied. 

  • Cheals & Sewin [2019] FamCAFC 8

    24 Feb 2019

    FAMILY LAW – APPEAL – PARENTING – Whether the primary judge erred by failing to deal with an application for a recovery order before dealing with the parties’ competing applications for interim parenting orders – Where the primary judge failed to take into account a material consideration – Where the primary judge misapplied the principle in Jones v Dunkel (1959) 101 CLR 298 – Appeal allowed – Matter remitted for rehearing – Costs certificates issued.

  • Woodby-Chatterjee & Chatterjee (No. 2) [2018] FamCAFC 265

    19 Dec 2018

    FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the appellant seeks to adjourn the hearing of the application for security of costs pending the consolidation of her two appeals – Application dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where an order for security for costs would stifle the appeal – Where the parties are in a poor financial position – Where the appeal is reasonably arguable – Where there has been a delay in bringing the application – Where there would be difficulty in enforcing an order for costs against the appellant – Application dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Application for costs of a previous Application in an Appeal seeking reinstatement of the appeal and the provision of transcript – Where the reinstatement application was successful but the application for provision of transcript was not – Appellant ordered to pay two-thirds of the respondent’s costs of the application.

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Application for costs of the unsuccessful application for security for costs – Respondent ordered to pay four-fifths of the appellant’s costs of the application.


  • KLD & SCVG [2019] FamCAFC 5

    17 Jan 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – Application for costs of a discontinued application in an appeal – Where the discontinued application sought to challenge costs orders – Conduct of the parties – Consideration of relevant matters under s 117 of the Family Law Act 1975 (Cth) – Husband ordered to pay the wife’s costs of the discontinued application – Costs as assessed on a party/party basis.

  • Kinch & Meuli [2019] FamCAFC 7

    18 Jan 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – Application by the mother for costs of a discontinued appeal – Where the father’s discontinued appeal sought to challenge costs orders – Conduct of the parties – Whether the discontinued appeal was wholly unsuccessful – Consideration of relevant matters under s 117 of the Family Law Act 1975 (Cth) – Father ordered to pay the mother’s costs of the discontinued appeal – Costs as assessed on a party/party basis.

  • Charisteas & Charisteas and Ors [2019] FamCAFC 2

    16 Jan 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO ISSUE SUBPOENAE – Where the application is said to relate to the amended grounds of appeal – Where the amended grounds of appeal allege apprehended bias or in the alternative that his Honour should have disclosed to the parties that in his opinion he was unfit to continue to hear and determine the matter - Where paragraphs 12 and 13 of the affidavit filed in support of the application are largely conclusionary in character about the way that the trial judge is alleged to have behaved during the proceedings – Where the applicant does not depose to the basis of the conclusions – Where the paragraphs are inadmissible and are struck out –  Discussion of the jurisdiction of a single judge to grant leave to issue subpoenae in an appeal – Discussion of the test to be applied when determining an application for leave to issue subpoenae – Where the “apparent relevance” of the documents sought to be produced by the subpoenae is not established – Where the common law doctrine of judicial immunity applies to the documents sought to be produced by the subpoenae – Where leave is refused – Application dismissed.

  • Bulow & Bulow [2019] FamCAFC 3

    18 Jan 2019

    FAMILY LAW – APPEAL – PROPERTY – SUPERANNUATION – Where the trial judge ordered that the parties’ superannuation interests be equalised – Where the husband had a defined benefit interest – Where the wife had an accumulation interest – Where the trial judge made a splitting order pursuant to s 90XT(1)(a) – Where the trial judge allocated a base amount of the husband’s superannuation to the wife – Where it is necessary to refer to the defined benefit fund’s trust deed to determine the effect of any splitting order – Where the fund’s trust deed will dictate the nature form and characteristics of the superannuation interests – Where evidence is lacking there is an obligation to seek evidence regarding matters plainly in issue and relevant – Where the trial judge did not mention the nature form and characteristics of the parties’ superannuation interests – Where the trial judge did not mention the potential effect of any proposed splitting order – Where the trial judge failed to take into account direct financial contributions made by the husband to his superannuation – Where there was appealable error – Appeal allowed – Remitted for rehearing – Costs certificates. 

    FAMILY LAW – APPLICATION IN AN APPEAL – Where the husband filed an application after the appeal hearing – Where each of the parties were given an opportunity to be heard in respect of the application – Where the application was only relevant if the Full Court re-exercised the discretion – Application dismissed. 


  • Walker & Page [2018] FamCAFC 264

    21 Dec 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – where the husband sought an extension of time in which to file a Notice of Appeal in respect of final property orders – where the orders made in the Federal Circuit Court of Australia provided the wife to indemnify the husband in respect of a fixed liability while requiring the husband to indemnify the wife with respect to a potentially very open ended liability – where the husband contended those orders are not just and equitable – where the husband has a substantial issue to be raised on appeal – where the husband’s delay in filing his appeal is not necessarily adequately explained – where explanation for delay is not determinative – where there is a greater prejudice to the husband if he were denied the opportunity to have the subject orders considered on appeal – application allowed.

  • Sandwell & Sandwell [2018] FamCAFC 255

    14 Dec 2018

    FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the father seeks to expedite his appeal against interim parenting orders that substantially changed parenting arrangements – Where the mother opposes expedition – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority to the detriment of other cases – Application granted.

  • Meadows & Meadows [2019] FamCAFC 1

    07 Jan 2019

    FAMILY LAW – APPEAL – Appeal against the primary judge’s dismissal of the appellant’s interim parenting applications – Where the parenting orders subject to the appeal are not the operative parenting orders and where the appeal is nugatory - Where, even if this was not the case, the appeal had no merit – Appeal dismissed.

    FAMILY LAW – LEAVE TO APPEAL – Where the appellant seeks leave to appeal the primary judge’s order dismissing interim applications for spousal maintenance and injunctions and seeks leave to appeal orders to facilitate the mother’s participation in a psychiatric assessment – Where the primary judge’s decision is not attended by sufficient doubt to warrant it being reconsidered – Where the application for leave is dismissed – Where leave is also refused to challenge the order relating to the former Independent Children's Lawyer.

    FAMILY LAW – COSTS – Where the appellant is to pay the Independent Children's Lawyer’s costs which are to be deferred until a property settlement order is made.


  • Mareet & Colbrooke [2018] FamCAFC 254

    14 Dec 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for the extension of time to file a notice of appeal against interim parenting orders – Where the settled reasons were not provided to the parties before the expiration of the appeal period – Where the orders involve a very young child and significant change to the child and applicant’s living arrangements – Where some of the proposed grounds of appeal are arguable –  Applicant for extension of time to file a notice of appeal granted – Appeal expedited – Costs of the application to be costs in the appeal.

  • Kerwitz & Kerwitz [2018] FamCAFC 263

    20 Dec 2018

    FAMILY LAW – APPEAL – Where the Notice of Appeal fails to demonstrate appealable error by the Magistrate – Where the Magistrate quite properly acted on the basis that the orders she was asked to make were by consent – Where the Magistrate took some time to work through many of the orders she was being asked to make to satisfy herself that they were appropriate – Where the wife did not want an opportunity to obtain further legal advice given her financial circumstances – Where the wife had received legal advice that the matters she was raising were not matters that could be pursued on appeal – Appeal dismissed.

  • DeLuca & Farnham [2018] FamCAFC 246

    14 Dec 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Dispense With Full Transcript – Review of Registrar’s orders – Where leave is granted for the appeal to be heard without the requirement to include all transcripts of the trial proceedings in the appeal books

  • Danvers & Danvers [2018] FamCAFC 262

    21 Dec 2018

    FAMILY LAW – APPEAL – where the husband sought parenting orders in the Federal Circuit Court of Australia by way of an Application in a Case filed in respect of property proceedings – where final parenting orders had been made by consent in 2016 – where the husband was required to reinstitute parenting proceedings by filing an Initiating Application in accordance with the Family Law Act 1975 (Cth) and relevant rules of court – where the husband’s Application in a Case also sought orders which sought to re-litigate property issues already determined – where the trial judge did not err in dismissing the husband’s Application in a Case in those circumstances – appeal dismissed – no order as to costs.


  • Hendy & Penningh [2018] FamCAFC 257

    20 Dec 2018

    FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the mother sought to relocate with the children to a capital city – Where the mother’s employment was due to end – Where the family initially moved to a regional location for the father’s employment – Where there was no intention to settle permanently – Where father moved away – Whether the primary judge failed to balance the advantages and disadvantages of relocation – Where the mother was not required to establish compelling reasons to justify relocation – Mistakes of fact as to consequences of relocation on time the children spend with the father – Appeal allowed. 

    FAMILY LAW – APPEAL – PARENTING – FAMILY VIOLENCE – Findings of fact not open and based on erroneous assessment of the evidence – Erroneous finding materially affected conclusion that the father did not pose not an unacceptable risk of harm to the children – Where the primary judge wrongly found that the mother stepped back from and abandoned allegations of family violence – Mother subjected to misleading and confusing questions – Improper questions – Misuse of documents in cross-examination to establish inconsistency in the mother’s evidence – Where questions should have been disallowed – Section 41 of the Evidence Act 1995 (Cth) discussed – Approach to evaluation of evidence of family violence discussed – Appeal allowed.

    FAMILY LAW – APPEAL – PARENTING – PARENTAL RESPONSIBILITY – Where the presumption of equal shared parental responsibility does not apply – Where evidence of family violence wrongly isolated to application of the presumption – Where family violence relevant to the allocation of parental responsibility when that issue at large – Appeal allowed.

    FAMILY LAW – APPEAL – PARENTING – Where evidence of single expert that graduated arrangement accepted – Where orders for children to spend time with the father inconsistent with that evidence – Where inconsistency not explained – Appeal allowed. 

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where error established – No utility in further evidence – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Costs certificates issued for appeal and re-hearing.