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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.

  • Markwell and Ranwick and Anor [2020] FamCAFC 232

    18 Sep 2020

    FAMILY LAW – APPEAL – APPLICATION IN APPEAL – REINSTATEMENT – Appeal deemed abandoned – Proposed appeal concerns welfare of children - Failure to comply with timeframe for filing Draft Appeal Index – Application opposed by all other parties – Where some but not all proposed grounds of appeal doomed to fail – Where reinstatement of the appeal would not be unjust to the respondents – Application to reinstate granted.
    APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Applications to expedite two appeals – Efficient use of court resources – Application granted.

     

  • Melville & Melville (No. 3) [2020] FamCAFC 231

    18 Sep 2020

    FAMILY LAW – APPEAL – CONSENT ORDERS – Where the father appeals from final parenting and property orders made by consent – Where the majority of the father’s argument went to the merits of the consent orders – Where consent orders cannot be appealed from on their merits – Where the father argued he was under duress from his legal representatives – Consideration of Anderson and Anderson (1982) FLC 91-251 – Where the father’s argument as to duress is rejected – Where the father sought to withdraw his consent to the orders after their making but before their entry – Consideration of r 16.05(1) of the Federal Circuit Court Rules 2001 (Cth) – Determination of the scope of and principles relevant to an exercise of discretion pursuant to r 16.05(1) – Where the father’s attempt at withdrawing his consent was communicated by email to the mother’s solicitors and copied to the primary judge’s chambers – Whether the primary judge ought to have called the matter on after receipt of the relevant email – Where such correspondence does not enliven the jurisdiction of the Court – Where it follows that no question of affording procedural fairness to the father ever actually arose – Where the father was not denied procedural fairness – Where, even if the father was denied procedural fairness, it did not have a material effect – Appeal dismissed – Order that the father pay the mother’s costs fixed in the amount of $10,000.

  • Thompson & Finch and Ors [2020] FamCAFC 230

    18 Sep 2020

    FAMILY LAW – APPEAL – COSTS – Where leave to appeal is not required given the orders finally determine the rights of the parties and thus are not interlocutory orders – Where ostensible bias is not demonstrated – Where the two step process in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 is not engaged – Where it is not open to raise on appeal an allegation of apprehended bias when nothing was done about it before the judge at first instance – Where the appellant’s counsel conceded that costs orders could not be resisted and although not clear at most the only issue was whether those costs should be calculated on indemnity bases – Where determination as to costs is a quintessentially discretionary exercise – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

  • Burrows & Seddon and Anor [2020] FamCAFC 190

    06 Aug 2020

    FAMILY LAW – APPEAL – PARENTING – Where the mother was a witness to a violent crime and had participated in a witness protection program – Where the primary judge did not rely on facts which were not in evidence – Where opinions of the single expert were based upon identified, proven and established facts – Where the primary judge did not impermissibly rely upon the opinion of the single expert – Where the primary judge weighed relevant statutory considerations and made an order taking into account the child’s best interests as the paramount consideration – Appeal dismissed – No order as to costs.

  • Adamo & Vinci (No. 2) [2020] FamCAFC 229

    11 Sep 2020

    FAMILY LAW – APPEAL – COSTS – Written submissions as to the issue of costs – Where the applicant husband was wholly unsuccessful on his application for leave to appeal – Where the respondent wife was put to the expense of responding to and opposing the husband’s application – Costs not particularised – Financial disparity – Quantum of costs – Husband to pay the wife’s costs of and incidental to the application for leave to appeal in a fixed sum.

  • Gusta & Gusta [2020] FamCAFC 228

    11 Sep 2020

    FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the mother sought to relocate with the child from Perth to Town A – Relocation found not to be in the child’s best interests – Weight challenges – Consideration of whether “compelling reasons” for relocation were impermissibly required – No error of fact or law established – Appeal dismissed.
    APPEAL – COSTS – Where the mother has been wholly unsuccessful and the father has incurred unnecessary expense – Mother in stronger financial position – Costs order made against the mother.

     

  • Kappas & Kappas [2020] FamCAFC 227

    10 Sep 2020

    FAMILY LAW – APPEAL – PROPERTY – SECTION 79A Family Law Act 1975 (Cth) – Where no error by the primary judge is identified – Where none of the grounds of appeal have merit – Appeal dismissed.
    COSTS – Where the respondent seeks costs – Where the appellant has been wholly unsuccessful in the appeal – Costs ordered in favour of the respondent.

     

  • Wei & Wei and Anor [2020] FamCAFC 224

    10 Sep 2020

    FAMILY LAW – APPEAL – PROPERTY – Where the matter proceeded undefended before the primary judge – Where the husband and intervenor identified nearly identical property pools – Where trust monies identified by the husband and intervenor had not been dealt with by the primary judge – Where the intervenor sought to correct an order pursuant to r 17.02 of the Family Law Rules 2004 (Cth) – Where the primary judge amended the judgment under r 17.02A that effected the correction – Where the primary judge overlooked updated affidavit evidence – Where the primary judge improperly excluded affidavit evidence – Where the primary judge erred in fact, contrary to the evidence – Where the slip rule cannot be called in aid to correct such errors – Where the orders made in ostensible reliance upon the slip rule must be set aside – Where the orders reflect a patent factual error by the primary judge – All three appeals allowed – Matter remitted – Costs certificates ordered.
    FAMILY LAW – APPEAL – COSTS – But for the intervenor’s email, the latter two appeals would never have been necessary – Decline to make order for costs on an indemnity basis – Order made for party/party costs in a fixed sum.

     

  • Walker & Page [2020] FamCAFC 226

    08 Sep 2020

    FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from the primary judge’s refusal to recuse herself – Where the husband attempts to appeal from procedural orders – Where no competent appeal lies from procedural orders – Where the husband’s basis for the primary judge’s recusal was that her Honour would be prejudiced by her gender – Where such an argument is clearly without merit – Appeal dismissed – Where the wife’s failure to file a costs schedule as per Court orders negates her application for costs – No order as to costs.

  • Mangin & Bach [2020] FamCAFC 223

    08 Sep 2020

    FAMILY LAW – APPEAL – PARENTING – Where the appellant has not complied with the consent order requiring her to relocate with the child – Where the appellant sought to adduce further evidence none of which could be received and the application was therefore dismissed – Where there is no error of law or mistake of fact and it has not been established that the primary judge’s decision was “plainly wrong” – Where the real issue remains what is in the best interests of the child and not the wishes or needs of the parties – Where the asserted change in circumstances viewed in the context of the consent order and what could reasonably be anticipated to arise in the period following the making of that order are insufficient to warrant reconsideration of the parenting arrangements agreed to – Where there is no merit in any of the grounds of appeal – Appeal dismissed – Proceedings referred to the primary judge for consideration of whether further orders should be made to implement the consent order.

  • Sully & Reilly [2020] FamCAFC 225

    07 Sep 2020

    FAMILY LAW – APPEAL – PARENTING – Appeal against orders allowing the child to have supervised time with the appellant father, for the respondent mother to have sole parental responsibility for the child and for the mother and the child to relocate from Sydney to Adelaide – Relocation – Best interests of the child – Assessment of risk – Challenges to the primary judge’s exercise of discretion – Weight challenges – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Where the decision made by the primary judge was not unreasonable or plainly unjust – Appeal dismissed – No order as to costs.

  • Dishman & Dishman (No. 2) [2020] FamCAFC 222

    04 Sep 2020

    FAMILY LAW – APPEAL – APPEAL AGAINST COSTS ORDER – Where the appellant husband was ordered to pay part of the respondent wife’s costs of the property settlement proceedings – Weight challenges – Allegation of apprehended bias – No error of fact or law established – Husband seeking to re-agitate issues dealt with in the substantive proceedings – Where findings were open on the evidence – Appeal dismissed – Husband to pay the wife’s costs of the appeal.

  • Sotto & Hensley [2020] FamCAFC 221

    04 Sep 2020

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge summarily dismissed the appellant father’s application to adjourn proceedings, have arms-length association with the child and for the surname of the child to be hyphenated with his and the respondent mother’s surname – Where the child is mature and has fixed views – Best interests of the child – Procedural fairness – Weight challenges – No error of fact or law established – Findings open to the primary judge – Appeal dismissed – No order as to costs.
    FAMILY LAW – APPEAL – NOTICE OF CONTENTION – Repetition of submissions made on appeal by the mother – Notice of Contention dismissed.
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Inadmissible and irrelevant evidence – Application dismissed.

     

  • Swayte & Swayte [2020] FamCAFC 219

    04 Sep 2020

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Interim property orders – Where the primary judge’s orders provided for the sale of property – Where the applicant husband wished to retain the property – Where the aim of the orders is to preserve the parties’ assets – Where insufficient doubt attends the judgment sought to be challenged – Where no substantial injustice would result if leave is not granted – Application for leave to appeal dismissed.

  • Witson & Kropp [2020] FamCAFC 218

    03 Sep 2020

    FAMILY LAW –APPEAL – RELOCATION – Where the appellant unilaterally moved to B Town with the child of the relationship – Where the primary judge put in place appropriate injunctions to address the appellant’s allegations of violence, and the mutual allegations of drug and alcohol use to ensure the safety of the appellant and the child – Where the primary judge was faced with the unilateral relocation of the child which had the consequence of at the very least impeding and at worse preventing development of a relationship between the child and the respondent – Where it is not only in B Town that the appellant has extended family and the inference to be drawn here is that the appellant could have the benefit of extended family and support of the child’s connection to her Aboriginal culture and traditions in Adelaide – Where this was an interim hearing and given the issues confronting the primary judge it is readily apparent that the primary judge provided adequate reasons and had regard to the relevant sections of the Family Law Act 1975 (Cth) – Where no error of law or mistake of fact is alleged or demonstrated and thus there is no basis for finding that the primary judge’s decision was plainly wrong – Where there is no merit in any of the grounds of appeal – Appeal dismissed.
    FAMILY LAW – COSTS – Where the respondent sought an order for costs – Where such an order should not be made – No order for costs.

     

  • Lietzau & Lietzau (No. 2) [2020] FamCAFC 217

    03 Sep 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – ADJOURNMENT – Where the respondent opposes any order for costs being made and challenges the amounts sought – Where the respondent seeks that the application be adjourned to enable him to pursue an application which had been refused for filing – Where the order sought in that application was not able to be made and the respondent did not address the issues that needed to be addressed in such an application in any of the material sought to be filed by him – Where the respondent may if so advised start again and file the correct application supported by an affidavit addressing the issues which need to be addressed – Where there are circumstances which justify an order for costs being made – Where the respondent has been wholly unsuccessful in the proceedings – Where the applicant is in a far better financial position than the respondent whose position can be described as parlous – Where there is ample Full Court authority that impecuniosity is not a bar to an order for costs being made where there are circumstances that otherwise justify an order – Costs ordered in favour of the applicant to be as taxed or assessed in default of agreement.

  • E Pty Ltd and Ors & Zunino and Anor [2020] FamCAFC 216

    01 Sep 2020

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application for leave to appeal against dismissal applications seeking summary dismissal of the wife’s claim - Removal of parties – Where decision not attended by sufficient doubt to warrant leave being granted – Question of whether entities constitute alter ego or mere puppet of husband – Evidence of “uncommercial” transactions between husband and entities – Where the primary judge was not satisfied that the wife had no reasonable likelihood of success – Leave to appeal not given – Costs to be determined by way of written submissions.

  • Bircher & Bircher [2020] FamCAFC 214

    31 Aug 2020

    FAMILY LAW – APPEAL – Parenting – Appeal from final parenting orders providing for the children to spend equal time with the parties and the allocation of parental responsibility – Where the grounds of appeal assert mistake of fact, mistake of law and inadequate reasons – Where findings made by the primary judge were open on the evidence – Where the primary judge correctly considered how evidence affected the determination of contentious issues – Where the primary judge’s reasons adequately explain the decisions relating to the allocation of parental responsibility and the equal time regime – Where there is a failure by the primary judge to provide adequate reasons to explain why a communication order was made in particular terms – Where that error of law is not sufficient to sustain the appeal – No miscarriage of justice – Appeal dismissed – No order as to costs.
    FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Where the Independent Children’s Lawyer contended the proposed further evidence did not advance the appeal – Where the further evidence sought to be adduced would not help demonstrate any error made by the primary judge – Evidence rejected – Application dismissed.

     

  • Hymer & Bardley [2020] FamCAFC 220

    25 Aug 2020

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the applicant provides no satisfactory explanation for the failure to file a Notice of Appeal within time or the delay in bringing this Application – Where the proposed appeal has no prospects of success – Where it is beyond doubt that the interests of justice demand that the application for an extension of time be dismissed – Application dismissed.

  • Matthews & Norris [2020] FamCAFC 198

    12 Aug 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the application has been brought promptly – Where there is no suggestion that the application was other than bona fide – Where the appeal is not strongly arguable – Where an order for security for costs would unlikely stifle the appeal – Where enforcing an order for costs would be difficult – Where it is appropriate to make an order for security for costs – Order made for the respondent to pay security for the applicant’s costs of the appeal in a fixed sum – Appeal stayed pending the respondent’s compliance with the payment of security for costs.

  • Willetts & Nason [2020] FamCAFC 213

    28 Aug 2020

    FAMILY LAW – APPEAL – INTERIM PARENTING – Where the appealed order provides the mother with sole parental responsibility – Where the parties were not given the opportunity to be heard on the point – Denial of procedural fairness – Appeal allowed by consent.

  • Walford & Bantock and Anor [2020] FamCAFC 210

    21 Aug 2020

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – DE-FACTO RELATIONSHIP – Appeal from the primary judge’s order dismissing an application for a grant of leave under s 90SM(16) of the Family Law Act 1975 (Cth) – Where the applicant requires leave to appeal – Where the decree is not appealable – Procedural fairness – Where the primary judge did not fail to take into account relevant matters – Where findings were open to the primary judge – Error of fact immaterial to the ultimate result – Where the decision made by the primary judge was not unreasonable or plainly unjust – Leave to appeal refused – No order as to costs.

  • Trustee in Bankruptcy of the Estate of Cabadas & Cabadas [2020] FamCAFC 200

    12 Aug 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – STAY – Where the husband seeks a stay of orders made on 11 October 2019 pending an application to the High Court for special leave to appeal – Where the husband filed the Application after he became a bankrupt pursuant to a court order – Where he has no standing to pursue the application – Where the Trustee indicated no intention to pursue this application or the application for special leave to appeal – Application dismissed – Where the husband’s Trustee in Bankruptcy ought pay the wife’s costs out of the husband’s estate.

  • Swenson & Brantley (No. 2) [2020] FamCAFC 205

    19 Aug 2020

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed the appellant’s application to vary final parenting orders made in 2015 – Principle in Rice and Asplund (1979) FLC 90-725 discussed – Where it was not in the child’s best interests for the parenting orders to be reconsidered – Where the primary judge’s approach was fully in accord with well-established principles – Where the primary judge considered and explained why all of the circumstances did not justify a further hearing on the parenting issues – Adequate reasons – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.

  • Rumney & Sackes and Anor [2020] FamCAFC 212

    28 Aug 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the application was filed 18 months after the time to appeal expired – Explanation for the failure to file a Notice of Appeal in a timely way is inadequate –Where the orders are no longer in operation and the appeal is futile – Where consideration of the grounds of appeal establish that it would not occasion an injustice to refuse an extension of time – Application dismissed.

  • Pilkvist & Coburn (Deceased) [2020] FamCAFC 204

    19 Aug 2020

    FAMILY LAW – APPEAL – DE FACTO RELATIONSHIPS – Challenge to the primary judge’s declaration that a de facto relationship never existed between the appellant and the deceased – Where the appellant contends that the primary judge demonstrated bias – Where the primary judge was not biased – Adequate reasons for judgment – Weight challenges – Where the primary judge’s findings were open on the evidence – Appeal dismissed – No order as to costs.
    APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where some of the evidence sought to be adduced is not admissible – Where the evidence sought to be adduced is of limited weight – Where the evidence sought to be adduced would not produce a different result if it was taken into account – Application dismissed.

     

  • Khadem & Penk [2020] FamCAFC 211

    27 Aug 2020

    FAMILY LAW – APPEAL – PARENTING – Where the father sought to reopen his case due to alleged incompetence by his former counsel – Where the primary judge refused to grant leave for the father to reopen his case – Where the father alleged denial of procedural fairness – Where it could not be shown where the father’s former counsel had failed to conduct the father’s case properly – Whether the primary judge erred when making findings about the father’s credibility and demeanour – Where the primary judge was entitled to make those findings based upon all the evidence and her Honour’s own observations – Where the primary judge made no error when making the orders in respect of parental responsibility about medical and educational decisions, including in respect of vaccinations, in the mother’s favour – Where the primary judge made no error when considering s 60CC(3) of the Family Law Act 1975 (Cth) matters – Where it was open to the primary judge to make an order that the father only engage with the child’s health practitioners in certain ways – Appeal dismissed – Costs ordered in a fixed amount.
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appeal hearing was conducted on Microsoft Teams due to the COVID-19 pandemic – Where the father sought leave to reopen the hearing of the appeal – Where the father claims he was denied procedural fairness due to technology failure – Where the father had all of the materials ahead of the appeal – Where the Full Court had the advantage of written submissions prior to the appeal hearing – Where counsel for the father did not alert the Full Court to technology failures or difficulties during the hearing – Where the father is seeking to reargue his case following the benefit of having heard the exchange between counsel and the Bench – Application dismissed – Costs ordered.
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father sought leave to adduce further evidence after the Full Court had settled the Orders and reasons but before the judgment was delivered – Where the new material sought to revisit and perpetuate centrally disputed issues – Where the criteria for admission of further evidence on appeal is not met – Where the application has no reasonable likelihood of success – Application for leave to adduce further evidence is summarily dismissed.

     

  • Karlsson & Karlsson [2020] FamCAFC 207

    25 Aug 2020

    FAMILY LAW – APPEAL – PROPERTY – LEAVE TO APPEAL – Summary dismissal – Where the primary judge summarily dismissed the appellant husband’s application to set aside property settlement consent orders – Weight challenges – Allegations of denial of procedural fairness and bias – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Findings open to the primary judge – Error of fact immaterial to the ultimate result – No error of law established – Leave to appeal dismissed – Husband to pay the respondent wife’s costs of the appeal in a fixed sum.
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the application was sent the evening before the appeal hearing – Where the wife did not have sufficient time to consider and make submissions on the application – Husband seeking to re-litigate questions of fact before the primary judge – Application dismissed.

     

  • Jasapas & Johns (No. 2) [2020] FamCAFC 203

    17 Aug 2020

    FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from the second set of final parenting orders made in these proceedings – Where the primary judge’s orders provided for the children to be transferred from the mother’s care to live with the father and spend supervised time with the mother following a moratorium of six months – Where the mother’s case was based on allegations that the father physically and sexually abused the children – Where the primary judge found that the father presented no unacceptable risk to the children – Where the primary judge found the mother presented an unacceptable risk of exposing the children to emotional harm – Where the primary judge found the mother is unable to let go of her beliefs that the father has physically and sexually abused the children – Where the expert evidence supported the primary judge’s findings – Where the mother contends the primary judge erred in failing to consider the rule in Rice and Asplund (1979) FLC 90-725 – Where the rule in Rice and Asplund (1979) FLC 90-725 was not raised by any party until the mother’s closing submissions – Where it could not sensibly be suggested that there had not been a sufficient or material change in circumstances as to warrant reconsideration of parenting orders – Apprehended bias – Where the primary judge changed his time of delivery of judgment to a time when the children were spending supervised time with the father – Where that change was consequent upon correspondence received from the ICL setting out concerns raised by the contact supervisor – Where such correspondence was appropriate given the exceptional circumstances of the case – Where, in any event, the primary judge had already decided the case such that no apprehension of bias as to the question to be decided could arise – Where the remainder of the mother’s grounds of appeal have no merit – Appeal dismissed – No order as to costs.

  • Gatakis & Gatakis (Deceased) [2020] FamCAFC 197

    07 Aug 2020

    FAMILY LAW – APPEAL – PROPERTY – Where the parties seek that consent orders be made allowing the appeal, setting aside paragraph 2 of the orders made by the primary judge and a different amount be paid by the appellant to the Estate of the late respondent – Where there was no reference to s 79(8) of the Family Law Act 1975 (Cth) per se in the primary judge’s reasons for judgment – Where it cannot be said that the primary judge had regard to what is required by that section in making her final orders – Where the reasons do not reflect that the primary judge took into account the death of the respondent and addressed s 79(8) of the Family Law Act 1975 (Cth), and as a result the discretion miscarried – Where appellable error is demonstrated – Appeal allowed.
    FAMILY LAW – COSTS CERTIFICATES – Where costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) are sought in relation to the appeal – Where the appeal is a Federal appeal, it has succeeded on a question of law and it has been listed in a public and formal way – Where the conditions which must be satisfied before the discretion to grant costs certificates is enlivened have therefore been met – Where the parties have been put to unnecessary expense in pursuing the appeal given the error demonstrated – Costs certificates granted as sought.

     

  • Dulton & Dulton [2020] FamCAFC 209

    26 Aug 2020

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant argues that in the circumstances of the case the primary judge should not have applied the principles propounded in Jones v Dunkel (1959) 101 CLR 298 to infer that the appellant had retained two term deposits – Where the respondent did not cross-examine the appellant on this issue and did not raise the principles in that case in his submissions – Where it was not put to the appellant that she could have produced further documentary evidence or that if she could have she had chosen not to and thus the appellant’s evidence as to what had happened to those funds was unchallenged – Where there is merit in Ground 1 – Where it was conceded by the respondent that the primary judge erroneously recorded the appellant’s evidence that she paid a sum of legal fees from a redrawn amount – Where it was impossible to identify precisely how much of the redrawn amount was used to pay the appellant’s legal fees – Where the authorities establish that the process of adding-back assets to the asset pool is not only discretionary but also exceptional – Where there is a lack of adequate reasons by the primary judge and it is not possible to ascertain the reasoning which led to the primary judge forming the view that it was “appropriate” to add-back the amounts spent by the appellant on her legal fees – Where there is merit in Ground 2 – Where there is merit in two of the five grounds of appeal – Appeal allowed in part.
    FAMILY LAW – RE-EXERCISE – Where this Court is asked to re-exercise the discretion – Where there is no challenge to the primary judge’s finding that it was just and equitable to make orders for property settlement or to the primary judge’s assessment of contributions – Where there was no error found in the primary judge’s assessment of the relevant s 75(2) factors – Where the add-backs the subject of the successful grounds of appeal are removed from the net asset pool and the same percentage division as found by the primary judge is applied to the amended net asset pool – Paragraphs (1) and (4)(e)(v) of the Orders made on 19 August 2019 varied.
    FAMILY LAW – COSTS – Where in the event that the appeal was allowed a costs order was not pursued but costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) were sought by each party – Where the appeal has been allowed in part for errors of law – Where it is appropriate to order costs certificates for each party.

     

  • Adamo & Vinci [2020] FamCAFC 208

    25 Aug 2020

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant husband appealed against an interlocutory order – Where insufficient doubt attends the judgment sought to be challenged – Where no substantial injustice will accrue if leave is not given – Leave refused.

  • Adacot & Sowle [2020] FamCAFC 215

    28 Aug 2020

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Excessive judicial intervention amounting to an unfair trial – Judicial bullying – Abuse of judicial position – Apprehended bias – Waiver – Appeal allowed – Orders set aside – Matter remitted – Costs certificates ordered.

  • Hulce & Chorley (No 2) [2020] FamCAFC 201

    13 Aug 2020

    FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Family violence – Where the primary judge ordered that the children could remain living with the mother in Victoria after she relocated with them without the father’s consent – Where the father’s time with the children pursuant to the orders is impacted by travel restrictions associated with the COVID 19 pandemic – Where reasons of the primary judge given in short form pursuant to s 69ZL of the Family Law Act 1975 (Cth) – Consideration of s 60CC factors in interim proceedings – No error established – Where the appeal lacks utility given the proximity of final hearing – Appeal dismissed – Mother’s application for costs dismissed.

  • Balmer & Balmer [2020] FamCAFC 199

    11 Aug 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the father seeks leave to appeal from orders which are prima facie procedural in nature – Where those orders provide for the listing of the matter for a defended hearing and filing of documentation – Where those orders represent a dismissal of the father’s oral application for an adjournment – Where the orders are appealable – Where there have subsequently been final consent orders made – Where the father has filed a Notice of Appeal from the final consent orders within time – Where there is no utility in the appeal – Application dismissed – Where the mother seeks costs – Where the mother failed to file a Schedule of Costs in accordance with Court orders – Where compliance with Court orders is expected – No order as to costs.

  • Lancefield & Lancefield [2020] FamCAFC 194

    07 Aug 2020

    FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the father seeks to expedite his appeal against final parenting orders that substantially change primary care arrangements – Change in living arrangements to take place six months hence – Where the mother and Independent Children’s Lawyer neutral on the application – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority – Application granted.

  • Syms & Syms (No. 2) [2020] FamCAFC 192

    07 Aug 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PROCEDURAL ORDERS – Appellant seeks multiple procedural orders in relation to appeal – Application for extension of time to file Summary of Argument – Application to issue and re issue subpoenas for production of documents – Authorised transcript – Further evidence – Application granted in part and otherwise dismissed.

  • Wilburn & Wilburn [2020] FamCAFC 191

    07 Aug 2020

    FAMILY LAW – APPEAL – RELOCATION – Where his Honour did not require the appellant to demonstrate good or compelling reasons for her proposed move – Where consistent with authority his Honour reached his conclusion on the basis of an assessment of what was in the best interests of the children in the context of the competing proposals – Where his Honour did not fail to consider the advantages and disadvantages of the respective proposals of the parties – Where his Honour determined that the proposed move was not in the best interests of the children – Where the order made here is not an order which can be described as “coercive” requiring rare or extreme circumstances to be established – Where there was no obvious viable alternative arrangement for his Honour to consider – Where the reasons were not inadequate – Where none of the grounds of appeal have merit – Appeal dismissed.

  • Darley & Darley (No. 2) [2020] FamCAFC 193

    06 Aug 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – SUBPOENA – Where the mother has three appeals on foot – Where part of the mother’s case is that the father suffers from mental health issues not properly considered by the trial judge – Where the mother seeks leave to cause the issue of a subpoena to Medicare in broader terms than previously allowed – Where the mother argues Medicare advised her that such broader terms corresponds with subpoenae Medicare routinely comply with – Where the appeal of the mother’s three appeals is likely to be heard in December – Where, by that time, it will have been two years since the making of the parenting orders under appeal – Where the mother’s appeal cannot proceed without the subpoenaed documents – Where the father did not wish to participate in the hearing – Application granted.
    FAMILY LAW – APPLICATION IN AN APPEAL – SUMMARY OF ARGUMENT – Where one of the mother’s Summaries of Argument does not comply with Practice Direction 1 of 2017 – Where the mother nonetheless seeks leave to rely on that Summary – Where the Summary ought be no more than 15 pages in length in size 12 font – Where the mother’s Summary is 32 pages of small, compact prose which is both hard to read and understand – Where the mother stated that reliance on her Summary of Argument will largely remove the need for her to make oral submissions at the appeal hearing – Application granted.

     

  • Shan & Prasad [2020] FamCAFC 189

    06 Aug 2020

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge was not satisfied there had been a sufficient change in circumstances warranting re-litigation of final parenting orders – Where those parenting orders provide for no time to be spent between the children and the appellant father – Where subsequent expert reports and affidavit evidence displace a prior psychiatric assessment of the father and predictions of attitude and behaviour – Whether it was open for the primary judge to reject the expert opinions without cross-examination – Where the psychiatric evidence and evidence of the father’s current circumstances should have permitted the primary judge to find that the father had established a sufficient change in circumstances to justify embarking on a hearing – Appeal allowed – Costs certificates granted.

  • Baukham & Pitresso (No. 2) [2020] FamCAFC 188

    06 Aug 2020

    FAMILY LAW – APPEAL – PARENTING – Procedural fairness – Where school holiday orders departed significantly from the parties’ proposals and not reasonably within their contemplation – Appellant denied opportunity to address school holiday orders made – No error as to assessment of risk – Challenge to reasons of narrow compass – Path of reasoning identifiable – Challenge to reasons not made out – Appellant bound by the conduct of case at trial – Appeal allowed in part – Holiday orders set aside and matter partially remitted for rehearing – Costs certificates granted to both parties for the appeal and rehearing.

  • Nghiem & Alberts and Ors [2020] FamCAFC 187

    06 Aug 2020

    FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Where the primary judge declined to make the orders sought by the appellant to have the children returned to live with her – Where the primary judge declined to disqualify himself – Whether the primary judge should have disqualified himself – Where the primary judge’s reasons for judgment are adequate – Weight and assessment of considerations under s 60CC of the Family Law Act 1975 (Cth) and the single expert’s opinions – Appeal dismissed – Appellant to pay the respondents’ costs in fixed sums.

  • Badrick & Gersam (No. 2) [2020] FamCAFC 202

    05 Aug 2020

    FAMILY LAW – APPEAL – INTERIM PARENTING – Where the appealed orders provide for a very young child to live in a week about arrangement – Where the orders were not within the reasonable contemplation – Denial of procedural fairness – Where child was settled with the father – Mother retained child – Father’s application for the child to be returned dismissed – Risk of harm to the child by reason of the mother’s mental health and her partner’s history of family violence – Appeal allowed – Re exercise of discretion – Child to live with the father and spend time with the mother.

  • Siya & Indra [2020] FamCAFC 196

    03 Aug 2020

    FAMILY LAW – APPEAL – PARENTING – Where there now is no utility in the appeal proceeding – Where the dates provided for in the order under appeal have passed – Where the appellant seeks that the appeal be dismissed with no order as to costs – Where the effect of dismissing the appeal is that it would be dismissed on its lack of utility and not on its merits – Appeal dismissed.

  • Yardlay & Commissioner of Police [2020] FamCAFC 186

    03 Aug 2020

    FAMILY LAW – APPEAL – CHILD ABDUCTION CONVENTION REGULATIONS – Where the primary judge found that the children were habitually resident in Country A prior to their retention by the mother in Australia – Where the appellant mother contended that the trial judge was in error – Where the children returned to Country A pursuant to the primary judge’s orders prior to the commencement of the appeal and remain there – Where no meaningful outcome can be achieved by the appellant mother even if successful – Where there is no utility in permitting the appeal to proceed to determination on its merits – Appeal dismissed – No order as to costs

  • Gilvray & Melland [2020] FamCAFC 195

    30 Jul 2020

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the orders sought to be appealed are interim orders – Where the final hearing is listed for two days in the first week of September 2020 – Where even if the applicant was successful in her application it is a physical and practical impossibility for the appeals to be listed, heard and determined prior to the final hearing in September – Where the worst thing that could happen in the best interests of the child is for the final hearing to not take place – Where the application is futile – Where the explanation for the failure to file Notices of Appeal within time is inadequate – Where there is absolutely no merit in any of the proposed appeals sought to be pursued – Application dismissed.

  • Bant & Clayton [2020] FamCAFC 183

    30 Jul 2020

    FAMILY LAW – APPEAL – COSTS – Costs orders – Where the father seeks to challenge a costs order made by the primary judge in favour of the mother – Where the father made no submissions before the primary judge – Where the primary judge did not take into account erroneous or irrelevant matters – Quantification of costs – Where the outcome is not plainly wrong or manifestly unjust – Where appellate courts are reluctant to interfere with decisions on costs – Appeal dismissed.

  • Kipling & Netis (No. 2) [2020] FamCAFC 184

    28 Jul 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the husband filed a Notice of Appeal within time appealing from final property orders which provided for a 32.6/67.4 percentage division in favour of the husband – Where that appeal was deemed abandoned – Where the husband now seeks it be reinstated – Principles in Bemert & Swallow (1991) FLC 93-441 considered – Consideration of merits of appeal – Where the husband contends the primary judge gave inadequate reasons, erred in his findings regarding the property pool and erred in finding the husband had wasted moneys – Where the source of the wife’s paid legal fees required disclosure to the husband which necessitated the adjournment of the application – Where that disclosure did not evince an error on the part of the primary judge – Where none of the husband’s grounds of appeal have merit – Where it would be productive of injustice to the wife to permit a meritless appeal to proceed – Application dismissed – Costs order against the husband.

  • Andreassen & Kallianpur [2020] FamCAFC 185

    16 Jul 2020

    FAMILY LAW – APPEAL – COSTS – Where it is not demonstrated that the appellant was not afforded procedural fairness – Where the allegation of bias is unfounded – Where there has been no denial of natural justice – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks his costs as a result of the appeal being dismissed – Where the application is opposed – Where impecuniosity is not a bar to an order for costs being made if there are circumstances which otherwise justify such an order – Where the appellant has been wholly unsuccessful and this is not a case where he can be surprised that an order for costs might be made – Costs ordered in the amount as sought by the respondent.
  • Denny & Bartlett [2020] FamCAFC 182

    28 Jul 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the applicant wife’s application for costs of a discontinued appeal was brought one day late – Delay explained – Where the wife would suffer an injustice if leave is not granted – Application allowed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for costs of a discontinued appeal – Where the respondent husband’s discontinued appeal sought to challenge spousal maintenance and interim property settlement orders – Where the wife incurred costs unnecessarily – Application allowed – Husband to pay the wife’s costs of the discontinued appeal and this application.
  • Diglen & Keartley (No. 2) [2020] FamCAFC 181

    28 Jul 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the respondent seeks her costs calculated on an indemnity basis – Where orders were made for the filing of written submissions in relation to that application but the applicant failed to comply with the orders and no written submissions were filed by or on his behalf – Where there is no basis to find that the respective financial circumstances of the parties prevent an order for costs being made – Where the respondent has incurred significant legal costs as a result of the failure of the applicant to file appeal books on time, his appeal being deemed abandoned as a result and him then seeking reinstatement of the appeal which was wholly unsuccessful given the appeal he sought to pursue was found to be without merit – Where there are circumstances justifying an order for costs – Where those circumstances are exceptional and justify awarding costs on an indemnity basis in lieu of the usual party/party basis – Costs ordered in the amount as sought by the respondent.

  • Genesalio & Genesalio (No. 2) [2020] FamCAFC 180

    28 Jul 2020

    FAMILY LAW – APPEAL – PROPERTY – COSTS – Where both parties seek their costs of and incidental to the hearing of the appeals – Where in relation to the first appeal there are circumstances which would justify an order for costs being made in the respondent’s favour – Where in relation to the second appeal although it was upheld there are no circumstances justifying an order for costs in the appellant’s favour, and if there were, the appellant’s conduct would provide a basis for the respondent to oppose or offset any order for costs made – Where the appeals were consolidated and heard together and thus the issue of costs arising from the outcomes should be considered together – Where it would be a strange result overall if the respondent was able to obtain an order for costs in the first appeal and there was no order for costs in the successful more substantial second appeal – Where there should be no order for costs in favour of either party – Each party to bear their own costs.

    FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where in the event that no costs order was made both parties applied for costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) – Where given the first appeal was dismissed costs certificates are not available – Where it is not appropriate for costs certificates to issue – Applications dismissed.
  • Lescosky & Durante [2020] FamCAFC 179

    28 Jul 2020

    FAMILY LAW – APPEAL – CONTRAVENTIONS – Where all of the contraventions were admitted by the appellant – Where it is not the case that the court below in imposing sanctions for contraventions must apply any so-called principle of sentencing – Where Pt XIIIA of the Family Law Act 1975 ( Cth) provides an exclusive code for dealing with breaches of orders under that Act – Where the task for the Magistrate was to fix a sanction or sanctions her Honour considered to be the most appropriate in the circumstances (see s 112AD of the Family Law Act 1975 (Cth)) – Where the appellant himself sought that the sanction imposed be a fine and not a term of imprisonment – Where in fixing the fines the Magistrate balanced the total fine against the criminality involved and the circumstances of the case including the appellant’s personal circumstances – Where the appellant misguidedly sought to rely on the Sentencing Act 1995 (WA) – Where the Magistrate was not obliged to make comparisons with any other authorities – Where the Magistrate proceeded on the basis that the appellant’s entitlement to any property settlement proceeds would be sufficient to meet the fines imposed but in the event of a shortfall out of abundant caution her Honour ordered that the appellant have 90 days to make the payment required – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

  • Cantrell & North and Anor [2020] FamCAFC 175

    23 Jul 2020

    FAMILY LAW – APPEAL – PROPERTY – Appeals from orders made by a judge of the Supreme Court of New South Wales – Where transfers of a property from the husband to the wife and property settlement consent orders made in the Family Court of Australia were obtained to affect the first respondent’s claim for payment of a debt owed to him by the husband – Where the transfers of the property were declared to be void pursuant to s 37A of the Conveyancing Act 1919 (NSW) – Where the property settlement consent orders made in the Family Court of Australia were set aside – Where the property is to be sold to satisfy the debt owed to the first respondent – Whether the primary judge should have made the make available order – Failure to disclose and notify creditors – Where the failure to disclose and notify the first respondent as a creditor was of such magnitude to justify setting aside the consent orders – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Cross-claim for property settlement orders pursuant to s 79 or s 79A of the Family Law Act 1975 ( Cth) – Where the primary judge did not err by finding that the husband’s debts should be paid before the property was divided between the husband and the wife – Where any adjustment based on contributions and s 75(2) considerations could not improve the wife’s position as against the husband because she was to receive 100 per cent of the net assets in Australia – Where seeking recovery of the debt overseas from the husband would impose another miscarriage of justice upon the first respondent – Appeal dismissed.