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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.

  • Taebke & Taebke [2018] FamCAFC 25

    15 Feb 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal was deemed abandoned because the applicant failed to file a draft index to the appeal books in the prescribed time – Where it cannot be said that the grounds of appeal are devoid of merit – Appeal reinstated.

  • SCVG & KLD and Anor [2018] FamCAFC 26

    15 Feb 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Application for review of Appeal Registrar's decision – Where the Appeal Registrar rejected an Application in an Appeal for filing – Where the Full Court has jurisdiction to revisit its orders in certain circumstances – Application in an Appeal accepted for filing.

  • Reddington & Pontow [2018] FamCAFC 33

    08 Feb 2018

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

    FAMILY LAW – LEAVE TO APPEAL – where the primary judge dismissed an application pursuant to s 44(6) – where leave to appeal is required – where the grounds contain arguable errors of principle by the primary judge – where the husband contended that the property was “so small” that no substantial injustice could occur – where the value of the parties’ property was not agreed, nor was it the subject of findings – where refusing leave would result in substantial injustice to the wife – application for leave to appeal allowed – costs reserved to the Full Court.

  • Hough & Marsden [2018] FamCAFC 24

    12 Feb 2018

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

    FAMILY LAW – APPEAL – Where the appellant has not appeared and there has been no communication from her as to her intentions with regard to the appeal – Where the respondent seeks that the appeal be dismissed – Where the appellant has failed to comply with previous orders of the court, and has failed to attend to prosecute her appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks his costs thrown away – Where there are circumstances justifying the making of such an order – Costs ordered as sought by the respondent.
  • Malcher & Malcher [2018] FamCAFC 23

    14 Feb 2018

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

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application to attend by telephone from overseas – Where the appellant has attended by telephone previously – Proceedings conducted in open court – Efficient use of court resources – Failure to comply with directions – Prior conduct demonstrates an inability to manage the complex matter from abroad – Application dismissed.

  • Sarai & Talwar [2018] FamCAFC 22

    13 Feb 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Summary dismissal – Where the applicant seeks the summary dismissal of an appeal from a divorce order – Where the appeal raises an issue as to whether the divorce proceedings should be heard in Australia or India – Where the proposed grounds of appeal are not so weak as to enable a finding that the appeal has no reasonable prospects of success – Application dismissed – No order as to costs.

  • Chiou & Vien [2018] FamCAFC 21

    13 Feb 2018

    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 – Where the respondent asserts that he is impecunious but appears to have an undisclosed source of funds – Where an order for security for costs would not stifle the appeal – Where the respondent has failed to meet a costs order made in another court – Where it cannot be said that the proposed appeal is devoid of merit – Application allowed.

  • Seaward & MacDuff [2018] FamCAFC 20

    13 Feb 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal was deemed abandoned because the applicant failed to file a draft index to the appeal books in the prescribed time – Where the failure was due to the applicant’s mistaken belief that he had to file appeal books and not a draft index – Where it cannot be said that the grounds of appeal are devoid of merit – Application allowed.

  • Herbst & Ruhle and Ors [2018] FamCAFC 14

    30 Jan 2018

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

    FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where the appellant has failed to prosecute her appeal against interim orders – Where the appeal is otiose given that final orders have been made – Appeal dismissed.

  • Easton & Easton [2018] FamCAFC 13

    30 Jan 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is an adequate explanation for the failure to file a Notice of Appeal within time – Where the proposed appeal has no merit, is hopeless and doomed to fail – Where there is prejudice to each of the parties depending upon whether the application is allowed or dismissed – Application dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the court has a discretion in relation to costs – Where the applicant’s age, financial circumstances and lack of understanding or appreciation of the legal niceties of this matter are relevant – Where the costs sought by solicitor and counsel are unreasonable – Application dismissed.

  • Olman & Teitzel [2018] FamCAFC 11

    29 Jan 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks orders in effect extending the time to file four Notices of Appeal against interim orders – Where there is no reasonable explanation for the failure to file within time – Where none of the proposed appeals have any merit or any reasonable chance of success – Where there is prejudice to both parties whichever way the application is decided – Where the justice of the case lies in dismissing the application – Application dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the application is opposed – Where the applicant has been wholly unsuccessful in the proceedings – Where there are circumstances which justify an order for costs being made – Where the costs ordered should be on a party/party basis even though there are some concerning aspects to this matter which go close to justifying an order for indemnity costs – Costs ordered as sought by the respondent.

  • Shan & Prasad [2018] FamCAFC 12

    01 Feb 2018

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

    FAMILY LAW – APPEAL – PARENTING – Family Violence – While spending time with the children the husband removed the children from Australia without the wife’s knowledge – Whether an order for the children to spend no time with the husband was contrary to their best interests – Whether the primary judge failed to consider supervised time – No error established – Order made permitting wife to relocate the children internationally without notice to the husband – Where the wife did not propose to live abroad - Appeal against parenting orders allowed in part. 

    FAMILY LAW – APPEAL – EVIDENCE – Admission of evidence – Where the single expert witness is provided with information rejected at trial – Whether the inadmissible evidence tainted the single expert witness’s opinion – Where the evidence of the single expert witness given significant weight – Where single expert witness conducted joint interviews with witnesses and non-witnesses – Whether joint interview affected reliability of evidence – Not established that the inadmissible information affected the outcome.

    FAMILY LAW – APPEAL – PROPERTY ORDERS – Formulation of the property pool – Inclusion of notional property in the property pool – Add backs – Where the amount given to the wife exceeded the property for division – Failure to consider impact of capital gains tax on sale of investment property – Non-disclosure – Inconsistent findings – Appeal against property orders allowed.

    FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Where the evidence in the wife’s financial circumstances was not reliable – Capacity of husband to pay spousal maintenance – Inconsistent findings – Appeal against spousal maintenance orders allowed.

    FAMILY LAW – APPEAL – INJUNCTIONS – Injunction made in aid of a property order – Injunction from leaving Australia – Where the primary judge failed to balance the utility of the order against the possible detriment to the husband – Appeal against injunctions allowed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where evidence of a similar nature was before the primary judge – Where the evidence would not have affected the outcome of the hearing – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where both parties partly successful – Where the appeal raised matters of substance – Application for costs of the wife and ICL dismissed – Costs certificates given. 
  • Quarto & Emmert [2018] FamCAFC 19

    07 Feb 2018

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

    FAMILY LAW – NOTICE OF APPEAL – LEAVE TO APPEAL – Where the applicant challenges the exercise of discretion by the trial judge and the adequacy of the reasons – Where there is merit in three of the five grounds of appeal relied on to establish leave to appeal – Where the decision of the trial judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court – Where substantial injustice would result if leave were refused, supposing the decision to be wrong – Leave granted - Appeal allowed – Matter remitted for rehearing by a judge other than the trial judge.

    FAMILY LAW – COSTS APPEAL – Where the parties agreed that in the event that the substantive appeal succeeded the costs order should be set aside – Appeal allowed and the costs order set aside.

    FAMILY LAW – COSTS – Where both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates ordered.
  • Mordech & Mordech [2018] FamCAFC 15

    02 Feb 2018

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

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Parenting –Whether the respondent was denied natural justice by not being permitted to amend her response – Procedural fairness – Orders made without advance notice – Where the  respondent is bound by the manner in which the case was conducted – Where the appeal raises no question of general principle – Appeal dismissed.

  • Cooke & Morton [2018] FamCAFC 9

    29 Jan 2018

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

    FAMILY LAW – APPEAL – CHILDREN – NATURAL JUSTICE – where the father failed to attend the final trial – where the father failed to file any trial affidavit material or case outline in advance of the trial as he had been ordered to do – where the father’s non-compliance with the orders was wholly unexplained – where the father withdrew his instructions to his legal representatives two working days prior to the commencement of the trial - where the father was in hospital on the day of the final trial – where the trial judge treated correspondence directed to the Court by, or on behalf of, the father as an application to adjourn the trial – where the mother and the Independent Children’s Lawyer opposed any adjournment of the trial and the trial judge proceeded to hear the parenting application in the absence of the father – where the trial judge reserved her decision and a period of three months elapsed before final judgment was delivered – where the father failed to make any application to the Court to reopen the evidence while the judgment remained reserved despite being advised by the Independent Children’s Lawyer to obtain legal advice – where the father did not make an application pursuant to the relevant Federal Circuit Court rule to seek to have the orders made set aside by reason of his absence – where there were very serious allegations of coercive and controlling family violence made against the father – where there was expert evidence that the continuation of the proceedings may have a deleterious effect upon the mother and child – where the expert evidence established that the mother and child were in a state of terror at the prospect of encountering the father during family report interviews – the nature of parenting proceedings – where in the particular circumstances of this case, there was no relevant denial of natural justice – where, even if there was any departure, it could not be concluded that a trial involving the father cross-examining witnesses and making submissions could have produced a different result – where it is the particular confluence of circumstances in this case which render the conclusion that there was no relevant denial of natural justice – where the appeal is dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the father sought to adduce medical records to establish that he was in hospital at the time of the final trial – where that fact was not in dispute – where the mother contended that the father obtained admission to hospital on his own self-reporting and that it was a disputed fact, on the medical evidence sought to be adduced, that the father was medically unfit to attend the trial – where the application is refused.


  • Child Support Registrar & Pearce and Anor [2018] FamCAFC 10

    31 Jan 2018

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

    FAMILY LAW – LEAVE TO APPEAL – CHILD SUPPORT – Administrative review of decision of the Child Support Registrar – Where the primary judge allowed an appeal against a decision of the former Social Security Appeals Tribunal (“the Tribunal”) on the basis there had been a denial of procedural fairness – The issue the subject of the procedural fairness complaint did not properly arise for consideration by the Tribunal – In any event, the Tribunal did not have an obligation to identify something that was apparent from the very nature of the decision that had to be made – Held the approach adopted by the primary judge was misconceived – Leave to appeal granted and appeal allowed – No order as to costs – Costs certificate granted to the first respondent.

    FAMILY LAW – APPEAL – Notice of Contention – The first respondent’s submissions relied on the same erroneous basis advanced in opposition to the appeal – Notice dismissed.

    FAMILY LAW – APPEAL – Application to adduce further evidence – Unnecessary to consider the application due to the merit in the appellant’s primary argument. 
  • Stopford Malloy & Malloy and Anor (Costs) [2018] FamCAFC 6

    22 Jan 2018

    FAMILY LAW – APPEAL – COSTS – Where the wife seeks costs – Where the respondents acknowledge that they have been wholly unsuccessful with respect to their applications and that they are in a superior financial position to the wife – Where the respondents challenge the quantum of the costs sought – Where there are items which are unreasonable – Where the respondents oppose an order being made certifying the matter fit for both senior and junior counsel – Where the fact that the matter was one of practice and procedure and the applications were determined by way of written submissions does not say anything about the complexity of the same – Where an order fixing costs should be made – Costs ordered in favour of the wife in the sum of $25,500 – Matter certified fit for senior and junior counsel. 

  • Pieper & Jesberg [2018] FamCAFC 8

    24 Jan 2018

    FAMILY LAW – APPEAL – APPLICATION – EXPEDITION – Where the appellant seeks to expedite the hearing of the appeal – Where there is no basis for expedition set out in his affidavit filed in support – Where even if the appeal was expedited it could not be heard earlier than normal – Application dismissed.

    FAMILY LAW – APPEAL – PARENTING – Where part-way through the directions hearing to prepare the appeal for hearing the appellant launched into a commentary about his dissatisfaction with the court, the judiciary and the legal system – Where the appellant confirmed he did not wish to proceed with his appeal – Appeal dismissed.

  • Leong & Ming [2018] FamCAFC 7

    19 Jan 2018

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

    FAMILY LAW – APPLICATION IN AN APPEAL – where the appellant sought leave to dispense with the trial transcript for the purpose of the appeal – where the respondent did not object – application allowed

    FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the respondent orally sought leave to adduce further evidence – where the appellant did not object – application allowed and evidence admitted

    FAMILY LAW – APPEAL – where the appellant contended that the trial judge failed to take account of additional liabilities of the parties existing at the time of trial – where the respondent acknowledged that there was evidence before the trial judge as to the existence of the subject liabilities – where the trial judge made no reference to the existence of those liabilities in the reasons for judgment – where the trial judge made no reference to whom, as between the two parties, should bear responsibility for such liabilities – where the trial judge erred by failing to have regard to material considerations – appeal allowed – proceedings remitted to Federal Circuit Court for re-hearing – no order as to costs

  • Leong & Ming [2017] FamCAFC 272

    09 Aug 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – extension of time – where the primary judge failed to include certain liabilities of the parties – where this amounted to a substantial issue to be raised on appeal – where there is potential for substantial injustice if the errors are substantiated – where an extension of time to file a Notice of Appeal was granted – no order for costs.

  • Stepanov & Stepanov and Anor [2017] FamCAFC 256

    30 Nov 2017

    FAMILY LAW – APPEAL – PROPERTY – Where there is no merit in any of the grounds of appeal – Where the trial judge did not err by taking into account irrelevant considerations or failing to take into account relevant considerations – Where many of the complaints were not raised at trial and it was not open to raise them on appeal – Where evidence relied on by the respondents at trial was not challenged or the subject of any submission and cannot be the subject of a complaint on appeal – Where it has not been established that the trial judge erred in the treatment of the evidence before the court – Where there was no challenge to the credit of the second respondent – Appeal dismissed.

    FAMILY LAW – COSTS – Where each of the respondents sought an order for costs in the event that the appeal was unsuccessful – Where any costs order should include the costs of the respondents reserved at the commencement of the hearing as a result of the appellant being given leave to amend the grounds of appeal and rely on a further summary of argument – Costs ordered as sought.

  • Ryland & Ryland [2017] FamCAFC 242

    10 Nov 2017

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is nothing in the proposed grounds of appeal which can conceivably be described as alleging error by the trial judge – Where the appeal has no chance of success – Where there is no utility in extending the time for the filing of a Notice of Appeal – Where the interests of justice require that the application be dismissed – Application dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks his costs – Where there are circumstances which justify an order for costs – Where impecuniosity is not a bar to an order for costs being made – Costs ordered in favour of the respondent.

  • Kappas & Kappas (No. 2) [2017] FamCAFC 241

    10 Nov 2017

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is an adequate explanation for the failure to file a Notice of Appeal within time – Where although there are difficulties with the Draft Notice of Appeal recognisable grounds of appeal can be discerned – Where the extension of time as sought should be granted – Time to file extended.

    FAMILY LAW – APPEAL – REVIEW REGISTRAR’S DECISION – Where the Appeal Registrar was correct in refusing to receive for filing documents presented by the appellant one of which was prima facie out of time and two others which were inadequate – Where there is no utility in further considering the complaints the appellant makes given that the time to file an appeal has been extended – Application dismissed.

  • Xuarez & Vitela (No. 2) [2017] FamCAFC 236

    10 Nov 2017

    FAMILY LAW – APPEAL – Appeal against dismissal of recusal application – Where the primary judge found that the fictional bystander would not apprehend bias – Procedural fairness – Interpreters – Appellant able to understand and engage with the hearing – Appeal against dismissal of recusal application dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal against dismissal of application to review a registrar’s decision refusing to immediately list application for undefended hearing – Appeal against dismissal of review application incompetent – Whether order for dismissal is a decree – Order is not amenable to appeal – Application for leave dismissed.

  • Renald & Renald (Costs) [2018] FamCAFC 4

    12 Jan 2018

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

    FAMILY LAW – APPEAL – COSTS – Appellant seeks order for costs – Both parties have limited income but have assets – Order for costs would impose financial hardship on the respondent but the failure to make an order for costs in favour of the appellant would impose similar hardship on her – The respondent would have the capacity to meet the costs sought by the appellant – The appeal proceedings were not necessitated by a failure to comply with previous orders – Although the respondent was not wholly unsuccessful in the appeal, he had very limited success – “Conduct” under s 117(2A) of the Family Law Act 1975 (Cth) must be “in relation to the proceedings” – The respondent to pay the appellant’s costs to be assessed if not agreed.

  • Malloy and Ors & Stopford Malloy (Costs) [2018] FamCAFC 1

    12 Jan 2018

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

    FAMILY LAW – APPEAL – COSTS – Where the appellant husband relies on the respective financial circumstances of the parties, and the respondent wife’s lack of success as justifying an order for costs – Where the Court is not satisfied that the respondent wife’s financial circumstances are superior to the appellant husband’s – Where the position taken by the respondent wife in relation to the application for leave to appeal and the appeal was not unreasonable – Where neither the appellant husband nor the respondent wife was wholly unsuccessful in relation to the applications for leave or the appeal – Where the appeal was allowed in respect of some of the orders made by the primary judge because of errors of law – Where the respondent wife should not be required to pay costs where it is the primary judge who has committed the error – Where each party should bear their own costs.

    FAMILY LAW – CROSS-APPEAL – COSTS – Where the cross-appellants rely on the respondent wife’s lack of success in opposing the application and the appeal – Where the cross-appellants acknowledge they are in a superior financial position – Where each of the respondent wife and the cross-appellants were partially successful in relation to the issue of leave to appeal – Where, as with the appellant husband, the respondent wife’s position in relation to the cross-appellant’s application for leave to appeal was not unreasonable – Where it cannot be said that the respondent wife was “wholly unsuccessful” in relation to the application for leave, or the appeal, mounted by the cross-appellants – Where it is not open to balance any lack of success by the respondent wife against the disproportionate financial circumstances of the cross-appellants and the respondent wife – Where the appeal by the cross-appellants was allowed in respect of some of the orders made by the primary judge because of errors of law by the primary judge – Where the respondent wife should not have to meet an order for costs in those circumstances – Where each party should bear their own costs.

    FAMILY LAW – COSTS – Costs certificates granted to the appellant husband and the respondent wife – Application by the cross-appellants for a costs certificate dismissed.

  • Liddell & Liddell [2018] FamCAFC 3

    12 Jan 2018

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

    FAMILY LAW – AMENDED NOTICE OF APPEAL – PROPERTY – Where the appellant complains that the trial judge failed to include in the asset pool a number of assets and liabilities and that an item of real estate was included at an incorrect value – Where the respondent contends that the errors are de minimus and do not justify allowing the appeal – Where some of the amounts involved can be considered individually de minimus that is not the case when all of the amounts the subject of the errors are considered – Where the trial judge failed to give reasons for excluding certain liabilities – Where there is merit in the grounds of appeal – Appeal allowed.

    FAMILY LAW – RE-EXERCISE THE DISCRETION – Where both parties urge the court to re-exercise the discretion – Where the respondent foreshadowed presenting further evidence in relation to drawdowns by the appellant from the equity in the former matrimonial home to meet a shortfall in the mortgage of an investment property – Where it is clear that this evidence was before the trial judge, findings were made in relation to it, there was no cross-appeal and it is not therefore open to the wife to seek to re-present this evidence – Where it is appropriate for the court to re-determine the matter – Discretion re-exercised.

    FAMILY LAW – COSTS – Where at the hearing of the appeal the appellant informed the court that if the appeal was allowed he would seek costs on an indemnity basis based on certain offers of settlement – Orders made providing for the parties to file and serve written submissions on the question of costs

  • Holzmann & Holzmann [2018] FamCAFC 2

    11 Jan 2018

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

    FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Relocation – Where the respondent was allowed to relocate from the Northern Territory to Western Australia – Appellant asserted the primary judge failed to consider the children spending equal time or significant and substantial time with each parent – Appellant’s proposal for equal time not strongly pressed – Held the primary judge appropriately considered the equal time proposal and substantial and significant time – Held the primary judge’s finding that the respondent’s unhappiness would adversely affect the children was open on the evidence  – Appeal dismissed – Appellant to pay the respondent’s costs.

  • Beetham & Clear [2018] FamCAFC 5

    16 Jan 2018

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

    FAMILY LAW – FURTHER AMENDED NOTICE OF APPEAL – LEAVE TO APPEAL – Where the applicant seeks leave to appeal the decision of the trial judge refusing her leave to pursue a departure application – Where the applicant seeks to rely on a number of documents as comprising further evidence – Where the necessary leave has not been sought, nor has the relevant sub-rule or the practice direction been complied with – Where the documents cannot be received and the applicant’s oral application will be dismissed – Where the decision of the trial judge is not attended by any doubt, or even sufficient doubt, to warrant it being reconsidered – Where the trial judge properly considered all relevant matters, made no mistake as to the essential facts and acted on the correct principles – Leave to appeal refused.

  • Manotis & Manotis (Deceased) and Ors [2017] FamCAFC 260

    30 Nov 2017

    FAMILY LAW – APPEAL – APPLICATION TO ADJOURN – Where the Court takes the second respondent’s email to be a request to adjourn the proceedings – Where there has been adequate notice of the hearing given to the second respondent  – Where there is a history of occasions of non-attendance by the second respondent – Where the Court has proceeded with the hearing of the appeal and the hearing has now been completed – Where orders are made for the second respondent to file and serve written submissions in relation to the appeal within 60 days of the date of the orders and for the appellant, the third respondent and the fourth respondent to file and serve written submissions in reply to any submissions filed by the second respondent within 21 days of receipt of the same – Application dismissed.

  • Orchide & Orchide [2017] FamCAFC 271

    15 Dec 2017

    FAMILY LAW – APPEAL – SECURITY FOR COSTS – Where the husband has filed an appeal against property orders made in the Federal Circuit Court of Australia – Where the wife seeks an order that the husband provide security for her costs of the appeal – Where the husband says he would be unable to meet an order for security or an order for costs in favour of the wife in the event that his appeal was unsuccessful – Where there has been no delay in bringing the application for security – Where an order for security would stifle the appeal in circumstances where the husband has obtained the transcript and filed his summary of argument – Application dismissed.

    FAMILY LAW – COSTS – Where the husband seeks his costs thrown away – Where the wife opposes the application – Where the primary rule under section 117(1) of the Family Law Act 1975 (Cth) should apply – Costs application dismissed.

  • Kramer and Anor & Ward [2017] FamCAFC 270

    21 Dec 2017

    FAMILY LAW – APPEAL – where the appellant brought proceedings for property adjustment pursuant to s 90SM of the Family Law Act 1975 (Cth) ¬ where the trial judge made a declaration that there was no de facto relationship between the parties pursuant to s 90RD of the Family Law Act 1975 (Cth) – where there was money held on trust “pending court action” –where those funds represented the proceeds of sale of real property owned solely by the respondent ¬ where the trial judge made orders releasing the trust funds to the respondent – where the funds were subsequently released to the appellant – where the trial judge ordered that the appellant and his solicitor be jointly and severally liable for the repayment to the respondent of those funds – where the trial judge directed the Marshal to make an application for contempt pursuant to r 19.02(4) of the Federal Circuit Court Rules 2001 (Cth) – where the appellant and his then solicitor appeal those orders.

    FAMILY LAW – APPEAL ¬ JURISDICTION – whether the trial judge had jurisdiction to make the order releasing the trust funds – whether the court’s jurisdiction was exhausted upon the making of the declaration that there was no de facto relationship – whether the court’s jurisdiction was exhausted such that the trial judge could not make an order requiring the repayment of those funds – whether the trial judge had jurisdiction or power to make an order that the appellant and his solicitor be jointly and severally liable for the repayment of the funds – where the trial judge could not make an order that the appellant and his solicitor be jointly and severally liable for the repayment of the funds but where his Honour did have jurisdiction and power to set aside the disbursal of the funds, including insofar as the solicitor received any of those funds.

    FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – whether the trial judge denied the appellant procedural fairness in the hearing and determination of the existence of a de facto relationship – where the issue was set down for discrete hearing – where each party filed affidavit material – where the appellant was examined – where counsel who appeared for the appellant before the trial judge conceded that there was no evidentiary basis upon which a declaration could be made as to a de facto relationship – where no error demonstrated.

    FAMILY LAW – APPEAL – CONSTRUCTION OF TRUST – where the appellant and his solicitor contend that if the trial judge had jurisdiction to make an order releasing the trust funds, his Honour’s discretion miscarried because releasing the funds to the respondent was based upon an erroneous construction of the trust – where the appellant and his solicitor contended that upon the proceeds of sale being deposited into trust, the appellant was the only person with a beneficial entitlement to those funds or, alternatively, each of the appellant and respondent had only a contingent entitlement – where the appellant contended that “pending court action” ought to be interpreted to mean alternative court actions than just the court action in the Federal Circuit Court – consideration of Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264 and Dwight v Commissioner of Taxation (1992) 37 FCR 178 – appeal dismissed.

  • Na & Tiu (No. 2) [2017] FamCAFC 269

    15 Dec 2017

    FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – where the trial judge declared that no de facto relationship, within the meaning of s 4AA of the Family Law Act 1975 (Cth) ever existed between the appellant and the respondent – where the appellant contends that he was denied procedural fairness – where such asserted procedural unfairness arises from the late filing of affidavit material – where the appellant asserts that the trial judge erred in law by applying the wrong test – where it is asserted on appeal that the trial judge considered whether the subject relationship was “imbued with the bilateral dedication of the deeply emotional and financial kind intrinsic to de facto relationships” – where the use of such phrases imposes an impermissible gloss upon the statutory test – where a consideration of the trial judge’s reasons as a whole make clear that his Honour applied the correct statutory test – where no error demonstrated – where appeal dismissed.