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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.

  • Twardowski & Twardowski and Anor [2018] FamCAFC 153

    10 Aug 2018

    FAMILY LAW – APPEAL – FINANCIAL – FORUM – Where the primary judge erred in his characterisation of an agreement governing the parties’ division of marital property and made findings that were unsupported by the evidence – Where the primary judge erred in his approach to whether Australia was a clearly inappropriate forum – Where the parties conceded error by the primary judge as to the characterisation of the agreement – Appeal allowed – Consent orders made – Costs certificates granted.

  • Talwar & Sarai [2018] FamCAFC 152

    10 Aug 2018

    FAMILY LAW – APPEAL –  DIVORCE – CLEARLY INAPPROPRIATE FORUM – Appeal from divorce order – Application for divorce filed by the husband in Australia – Marriage-related proceedings commenced by the wife in India – Where the primary judge found that Australia was not a clearly inappropriate forum to hear the divorce application – Proof of foreign law – Whether the primary judge erred by failing to find that the Australian proceedings were vexatious and oppressive – Failure to take into account an injunction restraining the husband from continuing proceedings in Australia – Where complete relief available in India but not Australia – Failure to properly take into account the effect of the divorce order on the wife where the divorce order would not be recognised in India – Appeal allowed.

  • Strahan & Strahan [2018] FamCAFC 156

    10 Aug 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – DISMISSAL – Where the husband sought that the wife’s appeals be dismissed for the failure to file summaries of argument in relation to her three appeals – r 22.45 of the Family Law Rules 2004 (Cth) considered – Application dismissed.

  • Ramlow & Ramlow [2018] FamCAFC 158

    16 Aug 2018

    FAMILY LAW – APPEAL – PROPERTY – Inconsistent treatment of credit loan account in family business – Spousal maintenance debt incorrectly calculated by the primary judge – Appeal allowed by consent – Orders varied by consent.

    FAMILY LAW – APPEAL – PARENTING – Appeal dismissed by consent – Parenting orders varied by consent by the court sitting it its original jurisdiction.

    FAMILY LAW – APPEAL – COSTS – Where the mother’s appeal was partially successful – Costs order made – Quantum of costs limited to portion of property appeal only.


  • Quant & Bonde [2018] FamCAFC 150

    10 Aug 2018

    FAMILY LAW – APPEAL – REASONS FOR JUDGMENT – where the trial judge delivered brief ex tempore reasons for judgment and later published “Addendum” reasons – where the “Addendum” reasons substantially added to the content and effect of the reasons delivered extemporaneously – where only the parties can relieve a judicial officer from the obligation to provide adequate reasons – where the obligation is not discharged by purporting to provide adequate reasons upon specific request of either party – where the trial judge erred in purporting to deliver “Addendum” reasons at a subsequent time to the ex tempore reasons delivered – where the trial judge erred in purporting to deliver reasons other than in open court – where the respondent acknowledged errors of law made by the trial judge during the hearing of the appeal and withdrew her opposition to the appeal – appeal allowed.

    FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – where the appellant was not afforded any opportunity to cross-examine the respondent or make final submissions prior to the dismissal of his application with indemnity costs – where a party to litigation has a prima facie entitlement to have an opportunity to be heard before an order affecting some right, interest, entitlement or privilege of the party is made – where the trial judge fundamentally failed to provide the appellant with procedural fairness.


  • Lorreck & Watts [2018] FamCAFC 149

    09 Aug 2018

    FAMILY LAW – APPEAL – PARENTING – Interim orders – Where the primary judge concluded that the party with whom the children live would have sole parental responsibility – Where it was ordered that the children live with the father and he have sole parental responsibility of the children – Where neither party sought an order for sole parental responsibility – Where the primary judge therefore failed to afford the parties procedural fairness – Error demonstrated – Where the primary judge failed to make necessary findings of fact as to family violence – Where the primary judge made inconsistent findings as to family violence – Where the findings as to family violence were unsupported by findings of fact – Error demonstrated – Appeal allowed – Matter remitted for rehearing.

  • Faulkes & Tomkins [2018] FamCAFC 151

    10 Aug 2018

    FAMILY LAW – APPEAL – PARENTING – Where primary judge refused re-examination because the appellant’s evidence established the point – Where the trial reasons found the same evidence wanting – Where the impugned findings are central to the resolution of the controversy and orders ultimately made – Errors of fact – Where appellant denied procedural fairness  – Appeal allowed.

    FAMILY LAW – APPEAL – COSTS – Application for costs of the appeal granted – Costs certificates issued for rehearing.


  • Tibb & Sheean [2018] FamCAFC 142

    03 Aug 2018

    FAMILY LAW – APPEAL – FINAL PARENTING – whether the child should be moved from the primary care of his mother to the primary care of his father – where the child had always lived with the mother following the parties’ separation – where the trial judge ordered that the child live with the father and spend time with the mother – where the trial judge made an order for equal shared parental responsibility – where s 65DAA of the Family Law Act 1975 (Cth) was engaged – whether the trial judge considered making an order for equal time or substantial and significant time – where the central issue raised by the mother on appeal is not reflected by her case at trial – Metwally v University of Wollongong (1985) 60 ALR 68 considered – where it is “expedient and in the interests of justice” that the issues be dealt with – whether the trial judge’s orders included substantial and significant time – consideration of what is meant by “days that do not fall on weekends and holidays” and “daily routine” as contained in s 65DAA(3) and (4) – Ulster & Viney (2016) FLC 93-722 considered – where insight into the objects and purpose of s 65DAA can be seen by reference to the Explanatory Memorandum of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) – whether the ordinary and natural meaning of “days that do not fall on weekends and holidays” and “daily routine” permits a conclusion that a few hours on a school-week Friday evening constitutes substantial and significant time within the meaning of s 65DAA – whether the trial judge failed to consider s 65DAA – where the trial judge did not expressly refer to the mandatory requirements in s 65DAA – meaning of “consider” – Goode and Goode (2006) FLC 93-286 considered – where the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial – where it could safely be inferred from the totality of the matters that the trial judge considered, but rejected, an order for either equal time or substantial and significant time – whether the trial judge failed to afford the mother procedural fairness in drawing an adverse inference from the mother’s failure to call her psychologist – where the trial judge made findings based on the evidence as a whole and not from the mother’s failure to call her psychologist – no error demonstrated – appeal dismissed.

  • Smollett & Department of Family and Community Services [2018] FamCAFC 148

    09 Aug 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – CHILD ABDUCTION – Hague Convention – Application for an extension of time – Where the applicant filed a Notice of Appeal out of time – Where the mother makes no challenge to the correctness of the primary judge’s orders – where the appeal was therefore incompetent – Where it would be futile to extend time in which to bring the appeal – Application dismissed.

  • Sagilde & Magee [2018] FamCAFC 143

    06 Aug 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother filed an application to adduce further evidence on appeal – where that application was not made pursuant to s 93A(2) of the Family Law Act 1975 (Cth) but rather the mother sought to adduce the further evidence for consideration in the event that the Full Court allowed the appeal and determined to re-exercise the discretion – where the Court remitted the matter to the trial judge for reconsideration of a discrete issue – application dismissed.

    FAMILY LAW – APPEAL – PARENTING – PROCEDURAL FAIRNESS – where the trial judge made no orders for the child to spend time, or communicate, with the mother – where evidence central to the trial judge’s determination came out in the oral evidence of the single expert witness late in the trial and after that expert had been cross-examined by the self-represented mother – where that evidence had not been raised in the expert’s written reports prior to trial – where the mother asserted procedural unfairness on the basis that she had no reasonable opportunity to be heard regarding matters raised by the single expert witness or the prospect of orders providing for the child spending no time, or communication, with the mother – where a litigant has the right to know the case advanced against that party’s interest – where procedural unfairness was established – appeal allowed – where the matter was remitted to the trial judge for re hearing confined only to consideration of orders for the child to spend time and/or communicate with the mother – no order as to costs of the appeal


  • Pannett & Crain (No. 2) [2018] FamCAFC 141

    03 Aug 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where this is the applicant’s second application for an extension of time in which to file his Notice of Appeal – Explanation for the delay – Merits of the proposed appeal – Application dismissed – No order as to costs.

  • Keehan & Keehan (No. 2) [2018] FamCAFC 139

    31 Jul 2018

    FAMILY LAW – APPEAL – PARENTING – where the appeal was conceded – where the father agreed that the mother was not afforded procedural fairness and that the trial judge’s reasons were inadequate – where the trial judge gave no formal reasons – where reasons are an essential part of transparent justice – appeal allowed.

    FAMILY LAW – RE-EXERCISE OR REMITTER – where the appeal court could not decide on matters centrally disputed between the parties – where the child the subject of the proceedings would be nearly 18 years by the time the remitted proceedings were heard – where the Court could not re-exercise the discretion – where there was no utility in remitting the matter.


  • Hurst & Hurst [2018] FamCAFC 146

    08 Aug 2018

    FAMILY LAW – APPEAL – PROPERTY – where the husband’s financial contributions far exceeded the wife’s – where the husband received inheritances throughout a 38 year marriage which were used for the benefit of the family – where the husband inherited a property 13 years before separation – where that inherited property was unencumbered – where that inherited property was an asset of the parties at the time of trial – where the value of that property had significantly increased by the time of separation due to market forces and town planning changes – where the trial judge assessed the husband’s contributions as being 45 per cent greater than the wife’s contributions – where the trial judge made an adjustment in favour of the wife of 12.5 per cent pursuant to s 79(4)(e) – where the trial judge failed to take into account relevant considerations – where the trial judge isolated the indirect contributions made to the inherited property –  where each of the parties’ contributions reflected their roles within their respective spheres – where the trial judge’s assessment of contributions was outside the bounds within which reasonable disagreement is possible – where the trial judge failed to take into account matters relevant to a consideration of s 79(4)(e) – appeal allowed.

  • Field & Kingston [2018] FamCAFC 145

    07 Aug 2018

    FAMILY LAW – APPEAL – EVIDENCE – Privilege – Where the wife sought a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”) in relation to the wife’s proposed evidence in chief – Where the primary judge dismissed the application on the basis that there was insufficient evidence to determine whether the wife had reasonable grounds for objecting to giving the evidence.

    FAMILY LAW – APPEAL – EVIDENCE – Compellability – Where a witness must be “required” or compelled to give the evidence to which the objection is made – No distinction between oral and affidavit evidence – Whether the duty to give full and frank disclosure under the Family Law Rules 2004 (Cth) (“the Rules”) compels a party to give evidence which may abrogate from the privilege against self-incrimination – The Rules as per the “principle of legality” evince no intention to impinge on a party’s privilege against self-incrimination – Preliminary view that if a party is directed to file an affidavit on a specific subject matter, such circumstances may contain the requisite degree of compulsion to permit the issuing of a certificate – Where there is no basis on which the certificate could have been granted to the wife in this case as the element of compulsion was lacking.

    FAMILY LAW – APPEAL – EVIDENCE – Reasonable grounds for making an objection – Where the “objection” under s 128(2) of the Evidence Act refers to giving evidence that “may tend” to prove that the witness has committed an offence or is liable to a civil penalty – Where the primary judge took the view that in order for a s 128 certificate to be granted the wife had to provide to the court the evidence that was objected to – Where the primary judge erred by focussing on identifying the evidence as opposed to considering whether there were reasonable grounds for the wife’s objection – Where the primary judge was nevertheless correct in refusing to grant a s 128 certificate as it was not available for the wife’s proposed evidence in chief – Appeal dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the order dismissing the wife’s application did not finally determine her rights in relation to a s 128 certificate – Where leave to appeal is therefore necessary.


  • Caffyn & Protz Group and Anor [2018] FamCAFC 147

    09 Aug 2018

    FAMILY LAW – APPEAL – Application in an appeal for an extension of time – Where final orders were made by consent – Where the primary judge in making the orders was not exercising discretion under the Family Law Act 1975 (Cth) – Therefore the primary judge need not be satisfied that the orders were just and equitable – Where the appeal has no merit – Application refused.

    FAMILY LAW – APPEAL – Application in an appeal for expedition – Where final orders were made by consent – Where wife seeks expedition of appeal on basis of personal medical and financial circumstances – Where supporting documents provided did not address wife’s condition in relation to her participation or continuation of present legal proceedings – Where wife has not demonstrated circumstances that would cause this appeal to be given priority over other cases – Application dismissed – Where orders as to costs to be determined in chambers.


  • Bhatnagar & Riju [2018] FamCAFC 144

    02 Aug 2018

    APPEAL – PARENTING – where the appeal was allowed by consent – where, when making consent orders, an appeal court must be satisfied of appealable error – where the Court was satisfied of appealable error.

  • Bartz & Manthey (No. 2) [2018] FamCAFC 140

    03 Aug 2018

    FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Whether the orders are substantial and significant time pursuant to s 65DAA(3) – Consideration of s 65DAA(4) –  Jurisdictional error not established – Obligation on judge to engage in an active intellectual evaluation of the controversy – Failure to have regard to relevant considerations – Appeal allowed.

    FAMILY LAW – APPEAL – COSTS – Costs certificates granted for the appeal and rehearing.


  • Molloy & Reid (No. 2) [2018] FamCAFC 137

    26 Jul 2018

    FAMILY LAW – APPEAL – COSTS – Where the appeal and cross-appeal were dismissed – Financial circumstances of the parties considered – The appellant was wholly unsuccessful in the appeal and the respondent was wholly unsuccessful in the cross-appeal – Written offer of settlement – Appellant to pay the respondent’s costs in fixed sum.

  • Matthews & Norris [2018] FamCAFC 138

    26 Jul 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the application is brought bona fide – Where the mother is an undischarged bankrupt in Australia – Where it cannot be found that an order for security for costs would stifle the appeal – Where the grounds of appeal as presented demonstrate an extremely poor prospect of success – Security for costs ordered.

  • Nahos & Bell [2018] FamCAFC 131

    23 Jul 2018

    FAMILY LAW – APPEAL – CHILD SUPPORT – LEAVE TO APPEAL – Where section 123A(6) of the Child Support (Assessment) Act 1989 (Cth) did not apply to prevent the trial judge from making findings as to the father’s income – Where the father failed to provide full and frank disclosure and his evidence was of no assistance in enabling the court to make accurate findings as to his income, property, and financial resources – Where the trial judge took into account the evidence that was before the court and provided clear reasons for her findings as to the father’s income – Where the trial judge did not err in failing to take into account an affidavit filed by the father but not relied upon – Where the trial judge provided adequate reasons for her findings as to the appropriate level of child support – Where the trial judge did not err in her findings as to any hardship the father might suffer – Application dismissed.

    FAMILY LAW – COSTS – Where the respondent sought costs in the event that the application for leave to appeal was unsuccessful – Where the applicant opposed the making of such an order on the basis of his financial circumstances – Where on the evidence before the trial judge the applicant is in a position to pay an order for costs – Where the applicant has been wholly unsuccessful and the respondent has incurred costs in opposing the application – Costs ordered as sought by the respondent.


  • Matenson & Matenson [2018] FamCAFC 133

    20 Jul 2018

    FAMILY LAW – APPEAL – CHILDREN – Interim Parenting – Where the primary judge dismissed all interim applications – Where it was agreed by the parties that the transcript of the proceedings constituted the reasons – Where no formal reasons were given – Inadequate Reasons – Where the primary judge failed to engage with the proposals of the parties – Where the reasoning of the primary judge cannot be determined – Where the appeal is successful.

  • Harrison & Ward and Anor [2018] FamCAFC 136

    25 Jul 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to extend time to file a Notice of Appeal –Where there was no merit in the asserted grounds of appeal – Where there was no reasonable excuse for the delay – Application dismissed.

    FAMILY LAW – VEXATIOUS PROCEEDINGS – Where the first respondent sought an order preventing the applicant from filing any further applications against her until he complied with previous orders – Where the Court is not persuaded that the proceedings previously brought by the applicant in various courts meet the definition of vexatious proceedings in s 102Q.

    FAMILY LAW – COSTS – Where the first respondent sought an order for indemnity costs against the applicant – Where the mandatory provisions of r 22.53(3) were not complied with – Where strict adherence to r 22.53(3) would cause injustice – Where it was appropriate to dispense with the strict application of that rule pursuant to r 1.12(1) – Where the total costs cannot be scrutinised and a conservative approach should be adopted to the costs claimed – Where the circumstances were extraordinary – Where an order for indemnity costs was appropriate – Applicant ordered to pay the first respondent’s costs in a fixed sum.


  • Dickens & Carey [2018] FamCAFC 135

    25 Jul 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Where the father sought to expedite an appeal against parenting orders – Where the matter is listed for trial – Where the utility of the appeal was called into question – Where the circumstances of this particular case do not suggest that it should be given priority over other appeals involving children and awaiting determination – Where the application is dismissed.

  • Oram & Lambert and Ors [2018] FamCAFC 130

    13 Jul 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – RESTRAINT OF SOLICITORS FROM ACTING – Preliminary view that the application is not of a procedural nature for the purposes of s 94AAA(10) of the Family Law Act 1975 (Cth) – Where in the absence of a s 94AAA(3) direction the application needs to be heard by a bench of three judges of the Full Court or made in the Federal Circuit Court – Application adjourned.

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of her appeal from final parenting orders – Where the application is opposed by the first respondent’s solicitors and therefore cannot be heard until the application for restraint is dealt with – Application adjourned.

    FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Consideration of factors identified in Sampson & Hartnett (2013) FLC 93-542 at [16] – Where the Court only provides transcript at its own expense to parties in exceptional circumstances – Application dismissed.


  • Norris & Matthews [2018] FamCAFC 132

    17 Jul 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the mother seeks reinstatement of her appeal against parenting orders – Whether there is a relevant circumstance which would cause the case to be reinstatement – Where there may be prejudice to the father – Where application is dismissed.

  • Kowald & Helget [2018] FamCAFC 126

    09 Jul 2018

    FAMILY LAW – APPEAL – PROPERTY – Where appeal is disposed of by consent orders.

  • Russell & Withers [2018] FamCAFC 125

    06 Jul 2018

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the Appeal Registrar dismissed the mother’s application for an extension of time to file an electronic transcript within time as required – Where the dismissal of the application was due to non-attendance at the hearing of the application by the mother’s solicitor – Where the mother’s solicitor’s non-attendance was not the fault of the mother – Where the delay was minimal – Appeal reinstated.

  • Pruchnik & Pruchnik (No. 2) [2018] FamCAFC 128

    11 Jul 2018

    FAMILY LAW – APPEAL – PARENTING – Orders changing children’s primary residence from the mother to the father – Where neither party proposed equal shared parental responsibility in relation to all aspects of parental responsibility – Approach to s 61DA(4) discussed –  Circumstances which trigger s 65DAA – Adequacy of reasons – Whether adverse findings made without notice – Procedural fairness – Findings of fact – Adequacy of weight given to children’s views – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Evidence of events that have occurred since the making of final orders – Evidence adduced to demonstrate that had the further evidence been known to the primary judge there would have been a different result – Where the evidence would not have affected the outcome – Application in an appeal dismissed. 

    FAMILY LAW – APPEAL – COSTS – Costs sought by the respondent and Independent Children’s Lawyer – Where the appellant’s lack of success justifies an order for costs – Applications for costs granted – Fixed sum.


  • Jebbett & Corey [2018] FamCAFC 129

    11 Jul 2018

    FAMILY LAW – APPEAL – REFUSAL OF STAY OF INTERIM PARENTING ORDERS – where the mother appealed from the refusal of a stay of interim parenting orders providing for the child to spend limited, supervised time with the father – where further interim parenting orders had since been made – where such further orders would not be disturbed if the appeal succeeded – where the mother sought, via her appeal, to challenge prior interim parenting orders which were not the subject of an appeal – where there was no utility in the appeal – where the matter has sufficient complexity as to meet any test for complexity requisite to a transfer of proceedings from the Federal Circuit Court to the Family Court of Australia – where the parties consented to an undertaking to apply to the Federal Circuit Court for a transfer of the parenting proceedings to the Family Court of Australia – appeal dismissed – parties to each bear their own costs of and incidental to the appeal.

  • Huda & Huda & Laham (Costs) [2018] FamCAFC 127

    11 Jul 2018

    FAMILY LAW –APPEAL – COSTS – where the trial judge’s interventions during the course of a four day trial demonstrated procedural unfairness – where the appeal was allowed – where each of the appellants sought that the wife pay the costs of their appeals – where the circumstances did not justify an order for costs – where the nature of the error renders it appropriate for costs certificates to issue.

  • Edmunds & Edmunds [2018] FamCAFC 121

    06 Jul 2018

    FAMILY LAW – APPEAL – PROPERTY – Leave to institute proceedings out of time – Where the wife sought leave to institute property proceedings six years out of time – Whether the primary judge made a final determination instead of assessing whether the wife had a prima facie case – Whether the primary judge failed to assess the wife’s case at its highest – Whether the primary judge erred in finding that the wife had a weak prima facie case – Where the primary judge erred by not considering whether the wife had a real probability of obtaining an order for property settlement which fell short of the outcome sought by her but which was more favourable than her present legal entitlements to the property – Whether the primary judge made a material error in respect of a finding about the husband’s post-separation contributions to superannuation – Whether the primary judge took an irrelevant consideration into account, namely the costs of the proceedings, in assessing the wife’s prima facie case – Whether the primary judge erred in failing to find that the wife’s reliance on an agreement in relation to the parties’ property was a reasonable explanation for her delay in instituting property proceedings – Whether the primary judge erred in her findings as to the prejudice caused to the husband if leave is granted – Appeal allowed. 

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where leave is required to appeal an order made pursuant to s 44(3) of the Family Law Act 1975 (Cth) – Where the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered and where substantial injustice would result if leave were refused – Leave to appeal granted.


  • Chiou & Vien (No. 2) [2018] FamCAFC 123

    05 Jul 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Costs – Where the applicant seeks her costs of the respondent’s discontinued appeal – Financial positions of the parties – Where the appeal was wholly unsuccessful – Respondent ordered to pay the applicant’s costs of the appeal on a party and party basis – Offer of settlement – Where the respondent imprudently refused an offer of settlement in relation to the costs of the discontinued appeal – Respondent ordered to pay the costs of the applicant’s costs application on an indemnity basis.

  • Callas & Callas and Anor [2018] FamCAFC 124

    06 Jul 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Failure of applicant to file draft index to the appeal books within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Explanation for delay – Conduct of the proceedings – Merits of the appeal – Application dismissed.

  • Pascoe & O’Keefe and Anor [2018] FamCAFC 118

    29 Jun 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite her appeal against orders substantially changing the child’s living arrangements – Where the father opposes expedition – Where the orders provide that the child live with the father – Where the mother was the child’s primary carer – 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.

  • Parsons and Anor & Masson [2018] FamCAFC 115

    28 Jun 2018

    FAMILY LAW – APPEAL – CHILDREN – Relocation – Two children born as a result of artificial conception procedures – Where the first appellant is the biological and birth mother of both children, the second appellant is a parent of the youngest child by operation of s 60H of the Family Law Act 1975 (Cth) (“the federal Act”) and the respondent is the biological father of the eldest child – Where the primary judge found the respondent is a “legal parent” of the eldest child, allowed him extensive time with both children and restrained the appellants from relocating – Where the primary judge only applied the federal Act – In a case heard in federal jurisdiction it is mandatory for s 79 of the Judiciary Act 1903 (Cth) to be applied – Rizeq v Western Australia (2017) 91 ALJR 707 and Northern Territory of Australia v GPAO (1999) 196 CLR 553 considered – No constitutional reason why s 79 of the Judiciary Act 1903 (Cth) ought not apply to “pick up” the Status of Children Act 1996 (NSW) (“the State Act”) – Held s 60H of the federal Act does not “otherwise provide” within the meaning of s 79 of the Judiciary Act – Section 14 of the State Act must therefore be applied – The respondent is presumed not to be the father of the eldest child – Section 60H of the federal Act does not enlarge the category of persons entitled to the status of “parent” as there can only be two parents for the purposes of the federal Act – Held primary judge erred in finding the respondent is a “legal parent” of the eldest child – Appeal allowed – Matter remitted – Costs certificates issued.

    FAMILY LAW – APPEAL – CHILDREN – Interpretation of the federal Act in relation to the meaning of “parent” considered – Where the rebuttable Division 12 presumptions are trumped by s 60H of the federal Act – Bernieres & Dhopal (2017) FLC 93 793 considered – Biology alone does not determine who is a “parent” for the purposes of the federal Act – State of knowledge of the putative father about the nature of the mother’s relationship with another person irrelevant in the application of s 60H – The intention of a person to “parent” a child does not make them a “parent” within the meaning of the federal Act – Donnell & Dovey (2010) FLC 93-428 and Tobin v Tobin (1999) FLC 92-848 considered – First instances decisions considered – Re Mark: An Application Relating to Parental Responsibilities (2003) FLC 93 173 no longer to be regarded as good law – If state legislation lays down a presumption that members of a class of men are not to be regarded as fathers of a specific class of children, then a court is obliged to apply that presumption unless it is repugnant to the federal Act – Re Patrick: An Application Concerning Contact (2002) FLC 93-096 approved.

    FAMILY LAW – APPEAL – CHILDREN – Consequences of a person being found to be a “parent” considered – In every case it is necessary to determine as a preliminary question which of the parties answers the description “parent” – Matter upon which the court’s power is conditioned – If the wrong person is found to be a “parent” then at a fundamental level the case goes off on a wrong premise – Mulvany & Lane (2009) FLC 93-404 distinguished – Where the primary judge treated the respondent as if he were the parent of both children – Error established.


  • Mhambrey & Vairaja [2018] FamCAFC 120

    05 Jul 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the father sought to adduce further evidence on the appeal – where the evidence sought to be adduced was not further evidence upon any question of fact – where the application did not meet the criteria for admission of further evidence on appeal as prescribed by the High Court – application dismissed.

    FAMILY LAW – APPEAL – CHILD ABDUCTION CONVENTION REGULATIONS – where the trial judge found the child was not habitually resident in the USA immediately prior to his removal from that country – where the father contended that the trial judge was in error in finding that the child became habitually resident in Canada prior to being removed to Australia – where the father contended that the trial judge gave insufficient or excessive weight to certain evidence in determining the dispositive issue – where the trial judge determined that there was no settled mutual intention on the part of the parents that the child would return to reside in the USA upon returning from Canada – where the trial judge’s findings as to the child assuming habitual residence in Canada, and not resuming habitual residence in the USA upon his return, were open to his Honour on the evidence – where it would not be legitimate for this Court to disturb the trial judge’s conclusion as to the dispositive issue – appeal dismissed – father to pay the mother’s costs of the appeal in the fixed sum of $11,000.


  • Meadows & Meadows [2018] FamCAFC 119

    03 Jul 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR EXPEDITION – Where appeal is listed for hearing before the Full Court in six weeks from the date of the application for expedition – Where the appeal has already been listed for hearing at the first available sitting – Where the mother seeks to expedite an appeal against interim parenting orders that she undergo a psychiatric assessment by an expert appointed for that purpose and that a single expert be appointed to enquire into and report upon matters concerning the welfare of the parties’ child – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed.

  • Chard & Ye [2018] FamCAFC 117

    28 Jun 2018

    FAMILY LAW – APPEAL – PARENTING – Appeal against interlocutory orders and directions – Where there is doubt as to whether the orders and directions are decrees against which an appeal can be taken – Where, in any event, leave to appeal is required – Leave to appeal refused – Appellant to pay the costs of the respondent in a fixed sum.

  • Camden Pty Ltd & Laue and Ors (Costs) [2018] FamCAFC 116

    28 Jun 2018

    FAMILY LAW – APPEAL – COSTS – where the appeal was successful on questions of law – where the appellant sought costs of and incidental to the appeal on a party/party basis or, in the alternative, the grant of a costs certificate – where the appellant was wholly unsuccessful with respect to its challenges to the jurisdiction and power of the Family Court of Western Australia – where there were no circumstances justifying the making of an order as to costs with respect to the appeal proceedings – no order as to costs – costs certificates granted.

  • Zedenyi & Sabel [2018] FamCAFC 113

    21 Jun 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the application provides no explanation for the failure to file a Notice of Appeal on time – Where the proposed appeal concerns orders made in the absence of the applicant – Where the applicant may apply to set aside the orders pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 – Where refusing an extension of time would occasion no injustice in circumstances where the applicant may apply to set aside the orders – Application dismissed.

  • Sikander & Vashti [2018] FamCAFC 111

    20 Jun 2018

    FAMILY LAW – APPEAL – NULLITY – Where the appellant appeals an order refusing the grant of a nullity – Whether the primary judge erred in his application of the Marriage Act 1961 (Cth) – No error demonstrated – Where the appellant asserts that the primary judge erred in his findings as to the mental capacity of the respondent to consent to marriage at the time of the wedding – Where it is unnecessary to consider this challenge as the further evidence adduced by the appellant establishes that the respondent was not capable of consenting – Appeal allowed – Marriage between the appellant and respondent declared to be a nullity.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence –  Where the evidence was not available at the time of the trial - Evidence of the respondent’s mental capacity to consent to the marriage –Where the respondent’s treating psychiatrist deposes that the respondent suffered Wernicke-Korsakoff syndrome with paranoid schizophrenia – Where the respondent was therefore found to be incapable of giving relevant consent or ‘real’ consent at the time of the marriage – Where the respondent was found not to be able to understand the nature and effect of the marriage ceremony – Where the evidence therefore demonstrates that the order under appeal is erroneous – Application allowed.


  • Papendorf & Papendorf [2018] FamCAFC 114

    22 Jun 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – DISPENSE WITH TRANSCRIPTS – DISMISSAL – where the appellant mother failed to file the complete trial transcripts in accordance with orders made of an Appeals Registrar – where the mother sought to proceed with the appeal in the absence of the complete transcripts or, alternatively, for the Court to allow her further time to raise funds to obtain them – where the respondent father sought that the mother’s appeal be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) for non-compliance – where it would not be a legitimate exercise of discretion to adjourn the hearing of the appeal – where the application to proceed without complete transcripts was allowed on the basis that the mother be prevented from advancing any ground of appeal or argument where reference to the trial transcript would be necessary in order for the Court to determine or consider the ground or argument – application to dismiss the appeal pursuant to r 22.45 dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the mother sought to adduce further evidence on appeal – where the further evidence was not capable of demonstrating error and did not meet any established criteria for the admission of further evidence – application dismissed.

    FAMILY LAW – APPEAL – PARENTING – where the mother appealed from orders which fundamentally changed the child’s living arrangements – where many of the mother’s stated grounds of appeal were not proper grounds of appeal – where many of the mother’s challenges were as to weight – where challenges to weight given by a trial judge to evidence can only succeed if an appellate court is satisfied the trial judge was plainly wrong – where nothing to which the mother referred on the hearing of the appeal provided any substance to her grounds of appeal – appeal dismissed – no order as to costs of the appeal.


  • Lund & Lund [2018] FamCAFC 112

    25 Jun 2018

    FAMILY LAW – APPEAL – PARENTING – Where the trial judge appropriately applied the principle in Rice and Asplund (1979) FLC 90-725 – Where the trial judge took the evidence of the appellant at its highest – Where the trial judge took into account the relevant factors in s 60CC of the Family Law Act 1975 (Cth) and gave them adequate weight – Where the trial judge provided adequate reasons for her decision – Where there is no merit in the grounds of appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondents sought costs in the event that the appeal was unsuccessful – Where the appellant opposed such an order on the basis of her poor financial circumstances – Where impecuniosity is not a bar to an order for costs being made when there are other circumstances justifying such an order – Costs ordered as sought by the respondents.


  • Kai & Gant (No. 2) [2018] FamCAFC 107

    05 Jun 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal listed for directions – Where the orders appealed make the stay at first instance conditional on the recommendation of the single expert witness – Parties to attend a Late Intervention Alternative Dispute Resolution conference – Appeal to be dismissed in six months if not re-listed.