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

using
Number of results per page:
Austlii logo

Judgments search is powered by Austlii


Note: Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case. A breach of the section is a criminal offence. The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.

  • Kulat & Azzarudin [2018] FamCAFC 97

    24 May 2018

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

    FAMILY LAW – APPEAL – PARENTING – where the appellant contended the trial judge erred in the exercise of her discretion and provided inadequate reasons concerning application of the rule in Rice and Asplund (1979) FLC 90-725 – where no application was made by the appellant to have the rule in Rice and Asplund dealt with as a preliminary issue – where the rule was considered after a family report was undertaken and at the end of a trial – where previous final parenting orders made in 2012 provided for a change in the child’s primary care arrangements and for the child to relocate to Country C in 2018 to commence secondary school – where the child expressed views to the single expert report writer contrary to the terms of the 2012 orders – where the child’s intelligence and level of maturity was “impressive” – where the operative terms of the 2012 orders carried profound changes for the child – where ample evidence existed of circumstances requiring reconsideration of the 2012 orders – where the reasons for judgment demonstrated that the trial judge had regard to far more than simply the parties’ inability to agree on time in disposing of the Rice and Asplund issue – where the trial judge properly exercised her discretion in assigning weight to the child’s views as one of the considerations taken into account pursuant to s 60CC of the Family Law Act 1975 (Cth) – where there is no merit in the appellant’s challenges – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $18,515.10

  • Ayre & Ayre [2018] FamCAFC 93

    23 May 2018

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

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant asserts that the trial judge “mixed up” the properties the subject of the property settlement application resulting in the parties each retaining a property they had not sought to keep – Where in the event that the trial judge determined that the parties were to retain specific properties not in accordance with their submissions he should have provided the parties with an opportunity to address him on that proposal – Where that was not done and it therefore adds weight to the argument that the trial judge simply mixed up the properties – Where the respondent argued that the liberty to apply given by the trial judge was the way this difficulty could have been addressed – Where the liberty to apply only permitted the parties to address the machinery provisions of the trial judge’s order and not to seek to have any of the substantive provisions of that order altered – Where the trial judge did not err in finding that the appellant retained cash monies at the time of separation – Where there is merit in three of the grounds of appeal – Appeal allowed – Discretion re-exercised – Distribution of the properties reversed and the amount to be paid to the respondent by the appellant recalculated.

    FAMILY LAW – COSTS – Where no order for costs was sought by the appellant in the event that the appeal was successful – Where both parties sought costs certificates – Where the appeal is allowed on a question of law and each party is to bear their own costs – Costs certificates granted to the parties.

  • Flinton & Flinton [2018] FamCAFC 90

    10 May 2018

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

    FAMILY LAW – APPEAL – Appellant deceased – Where the respondent seeks an order dismissing the appeal for want of prosecution – Where even after notification of listing of the appeal for dismissal no-one came forward to pursue the appeal – Appeal dismissed.

  • Molloy & Reid [2018] FamCAFC 89

    11 May 2018

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

    FAMILY LAW – APPEAL – CHILDREN – International relocation – Where the mother was not permitted to relocate with the children from Queensland to New Zealand – Whether the primary judge erred in creating a “checklist” of issues and by reciting dicta in Morgan & Miles (2007) FLC 93-343 – Deiter & Deiter [2011] FamCAFC 82 and MRR v GR (2010) 240 CLR 461 considered – Held there was no error in the primary judge paraphrasing the law or developing a list of issues with the assistance of the parties – Jurchenko & Foster (2014) FLC 93-598 considered – Held primary judge had regard to s 65DAA(5) and the essential basis on which his decision rested could be understood – No error in the attribution of weight to the father’s behaviour – The primary judge’s focus upon and findings regarding the “diminishment” of the children’s relationship with the father did not amount to error – Held the mother’s case did not fail because she did not present “compelling reasons” for relocation – Where the primary judge was satisfied that the children would maintain a “meaningful relationship” with both parents if the relocation was permitted but found the father’s proposal was in the best interests of the children – Held the primary judge evaluated the benefits and detriments associated with relocation and did not treat the appellant mother’s fall-back position as a “proposal” – U v U (2002) 211 CLR 238 considered – Appeal dismissed – Timetable set out for the filing of costs submissions.

    FAMILY LAW – APPEAL – Cross appeal – Discrete issue concerning a notation to an order – Held no error and therefore no basis to amend the notation – Cross appeal dismissed.

  • Merritt & Merritt [2018] FamCAFC 88

    10 May 2018

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

    FAMILY LAW – APPEAL – CHILD ABUSE – Unacceptable risk of sexual assault and emotional harm – Findings of fact – Adequacy of reasons – Appeal allowed.

    FAMILY LAW – APPEAL – COSTS – Application for costs dismissed – Costs certificates issued pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).


  • Malcher & Malcher (No. 2) [2018] FamCAFC 87

    11 May 2018

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

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Oral application for an adjournment of the appeal hearing – Where the husband gave no adequate reason for seeking an adjournment – Application for adjournment refused – Oral application to amend the Notice of Appeal to add a ground of appeal – Where the husband’s proposed ground of appeal was raised only vaguely in his Summary of Argument – Application refused.

    FAMILY LAW – APPEAL – PROPERTY – Assessment of factors pursuant to s 75(2) of the Family Law Act 1975 (Cth) – Whether the primary judge failed adequately to take into account the disparity between the income earned by the wife and that by the husband – Whether it was open to the primary judge to find that the husband had a significant earning capacity and had access to a source of funds – Whether the husband’s “substantial” contributions were taken into account by the primary judge – Whether the primary judge failed to address specific contributions relied on by the husband – Whether the primary judge gave no reasons for dismissing the husband’s application for spousal maintenance – Whether the primary judge erred as to his findings about the husband’s earning capacity for the purposes of the Child Support (Assessment) Act 1989 (Cth) – Where the primary judge’s finding was open on the evidence – Whether the primary judge failed to take into account an exhibit comprising bank statements tendered by the husband – Where the exhibit could be given little weight – Whether the primary judge erred by failing to take into account the wife’s late disclosure of some evidence – Whether the primary judge failed to understand the husband’s case as to his financial circumstances – Whether the primary judge demonstrated actual bias or failed to afford the husband procedural fairness – No appealable error demonstrated – Appeal dismissed.

    FAMILY LAW – APPEAL – PARENTING – Single expert – Whether the primary judge erred by relying on the evidence of the single expert – Where the husband asserts that the single expert’s evidence was tainted because of an extensive and unauthorised conversation that occurred between the single expert and the children’s therapist – Where the husband made an oral application for the removal of the single expert – Where the primary judge refused the application and indicated that he would give reasons for doing so in the reasons for judgment but failed to do so – Where this failure was not material to the outcome as the primary judge did not ultimately rely on the single expert’s recommendation as to parental responsibility – Where the husband asserted that the primary judge failed to take into account that the single expert had changed his opinion on multiple occasions – Where the primary judge expressly considered this and did not base his decision on the single expert’s evidence – No appealable error demonstrated – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Where the wife seeks an order for indemnity costs – Where the circumstances of the appeal fall short of constituting exceptional circumstances justifying an order for indemnity costs – Costs order in favour of the wife on a party/party basis in a fixed sum – Costs order in favour of the Independent Children’s Lawyer in a fixed sum calculated at Legal Aid scale.

  • Huda & Huda & Laham [2018] FamCAFC 85

    10 May 2018

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

    FAMILY LAW – APPEAL – PROCEDURAL UNFAIRNESS – Whether interventions by the primary judge during the trial resulted in procedural unfairness to the husband and a third party – Where the primary judge found that the husband and third party had attempted to perpetrate a fraud upon the Court – Where the procedural unfairness challenge should be considered prior to any other challenges – Where an appellate court should restrict its assessment of the evidence to matters necessary to the finding of error – Where the evidence of the third party was that there was an outstanding debt owing to him by the husband – Where the veracity and reliability of the husband’s and the third party’s evidence was crucial to that issue – Whether the primary judge’s interventions impacted the ultimate findings – Where the “number, length, terms and circumstances of the interventions” were an important consideration – Where the interventions occurred at critical points of the husband’s and third party’s cross examination – Where the interventions, when read in the context of the transcript and the primary judge’s reasons as a whole, demonstrated procedural unfairness – Appeal allowed – Remitted for rehearing.

    FAMILY LAW – APPEAL – COURTS AND JUDGES – Apprehended Bias – Whether the primary judge failed to bring an impartial mind to credit findings – Whether the conclusions of dishonesty were drawn without any factual foundation or from an insufficient factual foundation – Where the primary judge was not asked to recuse himself – Where the circumstances in this case can be distinguished from Vakauta v Kelly (1989) 167 CLR 568 – Where the failure to raise the issue of bias and seek the primary judge’s recusal militated strongly against the success of any such claim – Where apprehended bias not demonstrated.

  • Camden Pty Ltd & Laue and Ors [2018] FamCAFC 91

    11 May 2018

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

    FAMILY LAW – APPEAL – JURISDICTION – whether the Family Court of Western Australia (“FCWA”) lacked jurisdiction and power to determine claims involving a third party and to make a declaration pursuant to Part VIIIAA of the Family Law Act 1975 (Cth) – where the appellant contended that if the FCWA had accrued jurisdiction, the Court’s powers were confined to those contained within the Family Court Act 1997 (WA) or Part VIIIAA of the Family Law Act 1975 (Cth) – where the FCWA is invested with federal jurisdiction and has the authority to adjudicate all issues comprising the matter between properly-joined parties – where the court’s powers derive from a single composite body of federal and non-federal law – where the trial judge had all powers as were necessary to quell the controversy arising from the matrimonial cause and was not restricted to Part VIIIAA of the Family Law Act 1975 (Cth) – where no error was demonstrated in the trial judge finding that there was a single justiciable controversy – where the contractual claim and remedies sought were within the federal jurisdiction of the FCWA.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where further evidence comprising two relevant Trust Deeds was adduced by consent – where the appellant sought to also adduce further evidence in respect of an application by two of the children of the husband and wife for distribution to them from the husband’s estate – where such further evidence was opposed by the wife – where the further evidence sought to be adduced was not capable of demonstrating that the trial judge was in error in determining that there was a single justiciable controversy – application dismissed.

    FAMILY LAW – APPEAL – where the appellant contended it was not open to the trial judge to conclude on the evidence that there was an enforceable agreement between the parties and the husband’s mother, Mrs Laue Snr, and their respective entities in relation to a real property and sheep business known as Property B – where the wife argued that it was unconscionable for Mrs Laue Snr to resile from the representations provided – where the reasons of the trial judge do not provide a discernible path to the conclusions reached as to the agreement, particularly in relation to the parties’ contractual intention and the terms of the agreement – where the trial judge’s adverse credit findings in respect of Mrs Laue Snr were infected with factual errors – where it was asserted that the trial judge’s excessive intervention gave rise to a reasonable apprehension of bias on the part of the trial judge – where the trial judge acted on evidence inconsistent with the facts in making significantly adverse findings as to Mrs Laue Snr’s credit – appeal allowed – parties to file written submissions as to costs.

  • Strand & Strand [2018] FamCAFC 74

    13 Apr 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file a notice of appeal against property settlement orders – Adequate explanation for the delay – Held substantial issue to be determined on appeal – Time within which the applicant had to file a notice of appeal extended – Respondent’s application for costs reserved to the Full Court. 

  • Rayson & Dargusch [2018] FamCAFC 40

    02 Mar 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file notice of appeal against spousal maintenance order – Proposed notice of appeal does not contain identifiable grounds of appeal – Application dismissed. 

  • Nelson & Nelson [2018] FamCAFC 86

    08 May 2018

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

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the first respondent, third respondents and Independent Children’s Lawyer consent to an order for reinstatement – Where the failure to file the draft appeal index within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Application allowed.

  • Cubbin & Cutler and Anor [2018] FamCAFC 84

    03 May 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 lives – Father appeals orders for the children to live with the mother and spend substantial time with him, seeking instead that the children live with him and spend significant time with the mother – Independent Children’s Lawyer supports the appeal and also cross-appeals the orders – Held primary judge gave adequate reasons for decision and reached conclusions independently by relying on evidence before him – No substantive error established – Orders relating to the parties attending mediation and therapy were not sufficiently raised with the parties – Orders relating to the father’s time with the children uncertain – Appeal allowed in part – Specific issues remitted, preferably to be heard by the primary judge – Father to pay the mother’s costs in fixed sum – Costs certificates issued to the father and the Independent Children’s Lawyer for the rehearing.

  • Widmann & Widmann [2018] FamCAFC 54

    19 Mar 2018

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Consent orders proposed by the parties to allow the appeal and re-exercise the discretion – Consideration of the merit of parties reaching their own resolution – Consideration of the costs likely to be incurred when parties elect to be represented by counsel of great ability – Orders made by consent – Appeal allowed and discretion re-exercised – Each party to bear their own costs.

  • Taccini & Taccini [2018] FamCAFC 27

    01 Feb 2018

    FAMILY LAW – APPEAL – Application to extend time to appeal – Applicant seeks to appeal against property settlement orders – Joshua v Joshua (1997) FLC 92-767 and Tormsen and Tormsen (1993) FLC 92-392 considered – There is a substantial issue to be raised on appeal – Adequate explanation for the delay – No relevant prejudice to the respondent – Time within which to appeal extended – Applicant to contribute to respondent’s costs in fixed sum.

  • Sabrosky & Putnam [2018] FamCAFC 32

    14 Feb 2018

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Single judge appeal – Where the wife has not participated in proceedings at first instance or on appeal and did not provide disclosure as ordered by the court – Undefended hearing where the Acting Magistrate foreshadowed making the orders as sought by the husband – Judgment delivered five months after hearing held the husband’s proposed orders were not just and equitable and cash payment ordered in favour of the wife – No notice given to the husband of the order for a cash payment or its form – Held husband denied procedural fairness – Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 considered – Clear expectation was disappointed and unfairness to the husband – Held Acting Magistrate failed to properly take into account the significance of the wife’s failure to participate in the proceedings – Merit in both grounds of appeal – Appeal allowed.

    FAMILY LAW – APPEAL – Re-exercise of discretion – Matter proceeded almost entirely on the papers – Appeal court in as good a position as any other judicial officer to determine the matter – Held it is just and equitable to make orders as proposed by the husband – Costs certificate issued.

  • Keehan & Keehan [2018] FamCAFC 79

    19 Apr 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the application was heard undefended – Where the primary judge made orders in relation to a contravention application filed by the mother – Where the primary judge also made final parenting orders – Where the gravamen of the mother’s appeal related to the parenting orders – Where the mother sought to abandon the grounds related to the contravention application and focus on the parenting orders – Where the child the subject of the proceedings was nearly 17 years old – Where the mother’s central assertion was a lack of procedural fairness arising from her case in respect of the parenting orders not being properly heard – Where the circumstances justified the expedition of the appeal – Application allowed on the condition that the mother file an Amended Notice of Appeal within 14 days.

  • Keating & Keating [2018] FamCAFC 80

    19 Apr 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the wife sought to file a Notice of Appeal out of time – Where the husband consented to an extension of time.

    FAMILY LAW – APPEAL – COSTS – Where the husband sought an order for costs – Where an offer in writing was made to the wife – Where the wife’s success on appeal is significant to the issue of costs of the application – Where the wife is self-represented and incurred no legal costs in respect of the application – Where the husband’s costs are reserved to the Full Court upon hearing of the appeal.
  • Kai & Gant [2018] FamCAFC 16

    30 Jan 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file a draft appeal book index – Where the applicant seeks to appeal a costs order against her in proceedings she ultimately discontinued – Found there is an adequate explanation for the delay but no substantial issue to be raised on appeal – Relatively small amount of costs in dispute considered – Application dismissed – Respondent’s application for costs dismissed.

  • Jeffers & Jeffers [2018] FamCAFC 57

    28 Mar 2018

    FAMILY LAW – APPEAL – Application to extend time to appeal – With whom a child lives – Applicant seeks to appeal orders made for the children to live with the respondent and spend time with the applicant – Gallo v Dawson (1990) 93 ALR 479 and Joshua & Joshua (1997) FLC 92-767 considered – No mandatory requirement for the court to impose an equal time regime for children – Held no substantial issue to be determined on appeal – Delay greater than eight months with no adequate explanation – Application dismissed.

  • Hoebeek and Anor & Hoebeek [2018] FamCAFC 17

    01 Feb 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –  Application to reinstate the appeal deemed abandoned by operation of the Family Law Rules 2004 (Cth) – Appeal filed within time but the applicant failed to file a draft appeal book index – Adequate explanation for the failure to provide the draft appeal book index – Found there is no utility in reinstating the appeal as the grounds of appeal do not identify appealable error – Application dismissed – Applicant to contribute to the respondent’s costs of the application in a fixed sum payable upon the finalisation of the substantive property settlement proceedings.

  • Hants & Hants [2018] FamCAFC 18

    01 Feb 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –  Application for an extension of time within which to seek an order for costs in relation to an abandoned appeal – Delay involved was minimal and the husband was on notice of the wife’s intention to pursue an order for costs – Appropriate in the interests of justice that the extension of time be granted.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for costs on an indemnity basis in relation to the abandoned appeal – Appeal deemed abandoned by operation of the Family Law Rules 2004 (Cth) – No explanation given by the husband for the failure to prosecute the appeal – The husband is not impecunious and was wholly unsuccessful in the proceedings – Order for costs in favour of the wife – Nothing about the conduct of the matter or behaviour of the husband to warrant an order for costs on an indemnity basis – Husband to contribute to the wife’s costs in fixed sum.

  • Graft & McCormick (Costs) [2018] FamCAFC 82

    14 Mar 2018

    FAMILY LAW – APPEAL – COSTS – Where the husband sought an order for indemnity costs – Where the wife opposed an order for costs – Whether the circumstances were special or extraordinary – Where the wife had been litigating relentlessly since the making of final parenting orders – Where the appeals were filed to re-agitate finalised matters – Where the father had been put to considerable expense meeting the mother’s claims – Where the circumstances were deemed special or extraordinary – Indemnity costs ordered against the wife.

  • Corwin & Corwin [2018] FamCAFC 83

    26 Apr 2018

    FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the appellant mother sought leave to adduce further evidence – where none of the further evidence met any of the criteria for the admission of further evidence upon questions of fact on appeal as prescribed in CDJ v VAJ (1998) 197 CLR 172 or overcame the constraints articulated in that authority – application to adduce further evidence dismissed.

    FAMILY LAW – APPEAL – where the mother contended that the trial judge erred in making a number of findings of fact – where those findings of fact were based largely on the evidence provided by the single expert family report writer reporting statements made by the parties’ children during the family report interview – where the mother asserted that the children were coached by the father to provide negative statements about the mother to the family report writer – where the trial judge accepted the family report writer’s opinion that the children were not coached – where it was open to the trial judge to accept the expert’s opinion and the evidence of the children – where the trial judge was keenly aware of the father’s history of domestic violence and his criminal history when making the orders – where the trial judge accepted the evidence of the father and the children that the father’s pattern of behaviour had changed – where the mother’s complaints devolved into complaints that the trial judge ought to have elevated the mother’s own evidence – where there was no substance in the mother’s contentions concerning asserted errors of fact – where there was no substance in any of the complaints of the mother directed to any issue of procedural fairness afforded to her by the trial judge – appeal dismissed – no order as to costs.

  • Causey & Causey [2018] FamCAFC 81

    19 Apr 2018

    FAMILY LAW – APPEAL – PROPERTY – Where the husband did not participate in the Federal Circuit Court proceedings – Where the wife sought 80 per cent of the matrimonial pool – Where the primary judge determined a split of 70 per cent to the wife and 30 per cent to the husband – Where the primary judge ordered the wife pay a cash sum to the husband – Where the primary judge did not take into consideration the wife’s non-financial contributions – Where the appeal was upheld.

    FAMILY LAW – APPEAL – RE-EXERCISE – Where an expeditious end to the financial relationship of the parties was preferred by the wife – Where the husband retained his superannuation – Where the wife retained the former matrimonial home and her superannuation – Where no payment to the husband was required by the wife.

  • Rilak & Tsocas (No. 2) [2018] FamCAFC 78

    23 Apr 2018

    FAMILY LAW – APPEAL – Where the appellant failed to comply with an order for security for costs in relation to an appeal – Where the appeal was thus listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where it is important that disputes be resolved in a just and timely manner – Where the requirements of r 22.45 of the Family Law Rules 2004 (Cth) were satisfied – Appeal dismissed.

  • Gupta & Gupta (No. 2) [2018] FamCAFC 77

    19 Apr 2018

    FAMILY LAW – APPEAL – PARENTING – Findings of fact – Where appeal proceeds in absence of appellant – Whether primary judge made error in findings of fact – Whether the primary judge erred in failing to admit certain affidavit evidence – Whether the primary judge erred in the conduct of the case – No error – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to dispense with the requirement to provide the transcript – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where appellant wholly unsuccessful – Whether the appellant would suffer financial hardship – Application for costs of the ICL granted.

  • Gupta & Gupta [2018] FamCAFC 71

    12 Apr 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Adjournment -  Application for adjournment made by appellant by email to the registry two days before the appeal hearing – Inadequate medical evidence – Where the appellant was able to attend court before the primary judge and prepare applications and affidavits during the time covered by his medical certificate – Where the appellant also sought an adjournment on the basis that he had not adequately prepared his appeal – Where the appellant had ample time to prepare his appeal – Application for adjournment dismissed. 

  • Whitby & Zeller [2018] FamCAFC 64

    06 Apr 2018

    FAMILY LAW − APPEAL – PARENTING – Where the mother appeals interim orders requiring her to facilitate the child being informed of his father’s identity – Where the mother has brought appeals from similar orders before – Where the primary judge’s findings were open on the evidence – No appealable error demonstrated – Appeal dismissed. 

  • Rilak & Tsocas [2018] FamCAFC 70

    12 Apr 2018

    FAMILY LAW – APPEAL –  APPLICATION IN AN APPEAL – Where the appellant sought that the presiding judge recuse herself – Where the appellant argued apprehension of bias – Application dismissed. 

  • Pandelis & Pandelis [2018] FamCAFC 66

    11 Apr 2018

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Primary judge adopted a “two pool” approach – Husband argued the determination of contributions in relation to the main “pool” was against the weight of the evidence – Proper approach to assessment of contributions – Zyk and Zyk (1995) FLC 92-644 and Dickons v Dickons (2012) 50 Fam LR 244 considered – Husband contended the primary judge gave insufficient weight to his pre-separation contributions – Held primary judge erred in principle in assessing a particular contribution, but appellate interference was not warranted – Wife received a 10 per cent adjustment on account of s 75(2) factors – Held adjustment was not manifestly excessive – Primary judge understood the real impact of the assessment made – Clauson and Clauson (1995) FLC 92-595 considered – Inconsistency in reasons regarding husband’s tax liability – Found the primary judge erred by leaving the husband entirely responsible for the tax debt – Primary judge inappropriately differentiated between “matrimonial” and “non-matrimonial” debts – Miller and Miller (1984) FLC 91-542 considered – Appeal allowed – No order as to costs – Costs certificates issued.

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Superannuation – Form of orders – Neither party sought a superannuation splitting order at trial – Primary judge ordered an “equal division of superannuation” – No appeal against this decision or the form of the splitting order – Held the order does not achieve the outcome intended and does not comply with s 90MT(4) of the Family Law Act 1975 (Cth) – Procedural fairness appears not to have been given to the trustee – Necessary to afford the parties an opportunity to consider the form of orders the Full Court considers appropriate and to ensure notice is given to the trustee.

    FAMILY LAW – APPEAL – Re-exercise of discretion – Primary judge’s orders set aside and timetable set out for the filing of minutes regarding the re-exercise of the discretion.

  • Oakley & Millar [2018] FamCAFC 47

    09 Mar 2018

    FAMILY LAW – APPEAL – Appeal from an order dismissing the father’s application for an injunction restraining him from leaving Australia to be lifted – Where the father’s Amended Notice of Appeal is incompetent because it is directed to orders other than the order from which he appeals and fails to disclose any proper grounds of appeal – Where the injunction was properly made – Where the primary judge’s finding that the father did not demonstrate sufficient changed circumstances to have the injunction varied was open on the evidence – Appeal from costs order – Costs order properly made – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where most of the evidence the father seeks to adduce was available to him at the time of the hearing before the primary judge – Where much of the evidence is irrelevant – Application dismissed.

  • Nord & Van [2018] FamCAFC 75

    13 Apr 2018

    FAMILY LAW – APPEAL – where leave to amend grounds of appeal was not opposed and was granted – where the trial judge determined the existence of a de facto relationship and made a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – where a party can appeal a s 90RD declaration as of right and therefore leave to appeal is not required – where the appellant contended that the evidence before the trial judge did not support the finding of the existence of a de facto relationship – where the trial judge made adverse findings in respect of the appellant’s credibility at trial – where the trial judge preferred the evidence of the respondent and her witness and placed greater weight upon it – where the trial judge’s ultimate finding of fact as to the existence of a de facto relationship could not be said to be wrong by reference to “incontrovertible facts or uncontested testimony” or is “glaringly improbable” or “contrary to compelling inferences” – where the appellant appealed an order that he pay the respondent’s costs of trial in the fixed sum of $30,000 – where the appellant alleged the trial judge failed to consider relevant s 117(2A) factors – where the trial judge clearly considered s 117(2A) – where the appellant contended he was not provided an opportunity to make submissions in respect of costs – where the trial judge provided ample opportunity for the appellant to make submissions as to costs – where there is no evidence that the trial judge exercised his discretion to make a costs order on wrong principles – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $7,000. 

  • Meadows & Meadows [2018] FamCAFC 76

    16 Apr 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – PREPARATION OF APPEAL BOOKS –  Where applicant sought an order that the respondent or Regional Appeals Registrar prepare the appeal books – Where the applicant asserts financial difficulties and difficulties associated with residence in a remote location – Where little utility in the appeal - Directions made permitting the applicant to file electronic appeal books. 

  • Knox & Knox [2018] FamCAFC 73

    17 Apr 2018

    FAMILY LAW – APPEAL –PARENTING – Where the parties observe different religious practice – Whether the mother’s influence on the children’s religious practice posed an unacceptable risk – Whether the primary judge erred by not making an order she agreed to make – Mother’s failure to mediate with the father – Whether the findings of the primary judge were open on the evidence – Whether the primary judge considered all the evidence in making findings – Conduct of the Independent Children’s Lawyer – Appeal dismissed.

    FAMILY LAW – APPEAL –EVIDENCE – Whether the primary judge erred by not treating evidence as expert evidence.

    FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the evidence would not have affected the outcome – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Costs sought by the Independent Children’s Lawyer – Application for costs dismissed.

  • Goldman & Goldman [2018] FamCAFC 65

    12 Apr 2018

    FAMILY LAW – APPEAL – PARENTING – Whether the primary judge’s order for only a four week moratorium on the time the children spend with the wife was inconsistent with the expert evidence and was therefore erroneous – Where the order was open on the evidence – Whether the primary judge erred by placing insufficient weight on her findings of unacceptable risk – Where the point of the moratorium was to ameliorate the risk – Whether the primary judge should have made an order requiring the wife to complete treatment before the moratorium is lifted – Where the husband did not seek such an order at first instance, made no submissions in support of such an order to the primary judge, where the evidence did not support such an order and where no ground of appeal was directed to such a complaint – Adequacy of reasons – Appeal dismissed – Husband ordered to pay the costs of the wife and the Independent Children’s Lawyer.

    FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge’s findings about the payment of the parties’ mortgage were erroneous – Where the findings were supported by the evidence – Whether the primary judge erred by omitting from the property pool a sum of money held by the wife’s solicitors on the basis that it was a loan from the wife’s parents – Where this finding was open on the evidence – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the evidence the husband seeks to adduce is controversial – Application dismissed.

  • Gantz & Billian [2018] FamCAFC 72

    12 Apr 2018

    FAMILY LAW – APPEAL – RE-EXERCISE OR REMITTER – Where the respondent conceded error by the primary judge – Whether the appeal court could re-exercise the discretion – Whether there was a proper basis upon which the appeal court could re-exercise the discretion – Where a re-exercise would require an examination of s 79 of the Family Law Act 1975 (Cth) – Where the parties each owned real property acquired separately prior to cohabitation – Where there was no current value of the interests held by each of the parties in their respective property portfolios – Where the orders sought by each of the parties in relation to the amount to be paid to the wife differed significantly and were based on competing contentions as to the direct financial contributions of each of the parties – Where the findings of the primary judge did not provide a proper basis to enable the appeal court to re-exercise the discretion – appeal allowed and remitted for rehearing.

  • Fontana & Fontana [2018] FamCAFC 63

    12 Apr 2018

    FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge adequately revealed process of reasoning in assessing contributions – Whether division of property in favour of wife plainly wrong or unjust so as to bespeak error – Whether division of property in favour wrong erroneous in principle – Whether the primary judge failed to consider a potential insurance payment – Whether the husband’s lack of full and frank disclosure should have resulted in a further adjustment to the wife – No error established – Appeal dismissed. 

  • Duarte and Anor & Morse [2018] FamCAFC 69

    13 Apr 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time to file an application to review a registrar’s orders – Where the delay was insignificant – Application granted.

    FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW OF A REGISTRAR’S ORDERS – Notices to the Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth) – Whether the Court and its registrars have the power to direct that the noticed be served by a particular date – Whether procedural orders provided adequate timeframes for the filing and service of documents – Whether the registrar should have made an order allowing for the issue of a Notice to Produce – Where Notices to Produce are an interlocutory process not appropriate for an appeal – Where the applicant sought clarification of the Court’s powers – Where the Court cannot give an advisory opinion – Extensions of time and of the length of the parties’ Summaries of Argument granted – Application otherwise dismissed.

  • Crick & Bennett [2018] FamCAFC 68

    13 Apr 2018

    FAMILY LAW – APPEAL – DECLARATION OF DE FACTO RELATIONSHIP – Appeal from declaration of a de facto relationship pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) – Adequacy of reasons as to why one party’s evidence was preferred over the other’s – Whether her Honour erred by finding that the parties “presented as a couple” and whether that phrase added an impermissible gloss to the primary judge’s analysis under s 4AA of the Act – Whether findings made by the primary judge were open on the evidence – Whether errors of fact made by the primary judge were material – Whether the finding of a de facto relationship was against the weight of the evidence – No appealable error established – Appeal dismissed – Appellant ordered to pay the respondent’s costs of the appeal, except in respect of the respondent’s unsuccessful application to adduce further evidence.

    FAMILY LAW – LEAVE TO APPEAL – Where declarations pursuant to s 90RD of the Act are final orders and leave to appeal is not required.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the evidence is not relevant to the issues raised in the appeal – Application dismissed.

  • Akhtar & Gaber [2018] FamCAFC 56

    15 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of his appeal from procedural orders – Where a final hearing of the proceedings is imminent – Where the Notice of Appeal does not identify error on the part of the primary judge – Application for expedition dismissed – Applicant ordered to file an Amended Notice of Appeal – Applicant to pay the respondent’s costs of the application. 

  • Welton & Welton [2018] FamCAFC 59

    06 Apr 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no adequate explanation for the failure to file within time – Where the proposed appeal is without merit and has no 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. 

  • Stege & Stege [2018] FamCAFC 31

    12 Feb 2018

    FAMILY LAW – APPEALS – Multiple appeals brought on for hearing – Five of the appeals relating to interim or interlocutory orders in financial and parenting proceedings futile – Appellant agreed to discontinue these appeals without prejudice to his remaining appeals and the ground of bias – Appellant granted leave to discontinue appeals or application for leave to appeal in five of the seven appeals.

    FAMILY LAW – APPEAL – Application for reinstatement of appeal – Failure to provide draft appeal book index within time – Already a properly constituted appeal against the property settlement matters – Appropriate for the entire property issue to be considered by the Full Court – Not a significant delay in filing the draft appeal book index – Not possible to say that the appeal is entirely without merit – Jackamarra v Krakouer (1998) 195 CLR 516 considered – No prejudice to the respondent – Appeal reinstated – Consolidated with remaining appeal.

    FAMILY LAW – PROVISION OF TRANSCRIPT – Oral application – Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 considered – Appeals relate only to financial matters – Appeals can proceed in part even if no transcript is provided – Transcript likely to be expensive – Appellant would have difficulty affording the transcript – Proportionality of the cost of the transcript to appellant’s anticipated costs of the appeals considered – Oral application for provision of transcript dismissed.

  • Pruchnik & Pruchnik [2018] FamCAFC 67

    09 Apr 2018

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

  • Lankester & Cribb [2018] FamCAFC 60

    06 Apr 2018

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge made orders changing the child’s primary residence, providing for a six-month moratorium on the time the child spends with the mother and providing for a supervised time regime ultimately leading to unsupervised time – Adequacy of reasons – Whether the primary judge properly applied s 60CC of the Family Law Act 1975 (Cth) – Whether the orders were not supported by the evidence – Where Order 7 was made in error and will be set aside – Whether the primary judge’s failure to make specific orders for changeovers made the orders for time unenforceable – Where orders as to changeovers are consequential or machinery orders – Whether, in light of the mother’s poor financial circumstances, the primary judge erred by ordering the mother to pay for supervision – Where the mother did not adduce any evidence nor provide any submissions to show she was not in a position to meet the costs of supervision – Appeal allowed in part – Application for costs dismissed.

  • Kappas & Kappas [2018] FamCAFC 61

    06 Apr 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the only admissible piece of evidence sought to be presented by the appellant was received subject to it demonstrating that the orders under appeal were erroneous – Where that evidence does not establish that the primary judge erred in accepting the evidence of the wife and making the findings that she did – Application dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where the one complaint gleaned from the appellant’s documents that needed to be addressed was whether the primary judge erred in her conclusions as to appellant’s parents’ contribution and interest in a property – Where there was no admissible or credible evidence that established that the husband’s parents provided funds towards the purchase of the property on the understanding that they would have an equitable interest in the same, held on trust for them by the parties – Where the appellant failed to establish his case before the primary judge – Where the appellant has not demonstrated that the primary judge erred in any of her findings, the findings being reasonably open on the evidence – Where it is insufficient to establish that an alternative finding might have been available – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks costs on an indemnity basis – Where the appellant opposed any order for costs based on his alleged poor financial circumstances – Where impecuniosity is not a bar to there being an order for costs where there are circumstances otherwise that justify it, which is the case here – Where although the issues raised have some synergy with the circumstances that have been found to be sufficiently exceptional, the normal rule should not be departed from – Costs ordered on a party/party basis fixed in the sum sought by the respondent.

  • Henare & Henare [2018] FamCAFC 62

    09 Apr 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Where the husband did not file his Notice of Appeal within 28 days – Where the proposed appeal relates to interim spousal maintenance orders – Where the husband requires leave to appeal that interlocutory decree – Where leave to appeal is an important consideration in the exercise of the discretion to extend time – Where the explanation for delay was inadequate – Where the delay was short and did not prejudice the wife – Where dismissing the application did not finally determine the husband’s rights – Where the husband did not establish that his application for leave to appeal involved any error of principle or substantial injustice¬ Where the husband’s application for leave to appeal had little prospects of success – Application dismissed.

    FAMILY LAW – COSTS – Where the husband was wholly unsuccessful – Where the wife sought indemnity costs – Where the circumstances were not exceptional so as to warrant an order for indemnity costs – Where the Court ordered that costs be fixed in the sum of $2,500.

  • Orchide & Orchide [2018] FamCAFC 58

    04 Apr 2018

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge did not err in her findings as to the informal agreement reached between the parties at separation – Where as a result the trial judge was correct to discount the claim by the husband that he allowed the respondent and their child to occupy the former matrimonial home and that should be taken into account as a contribution by him – Where the trial judge provided adequate reasons – Where it was open to the trial judge to accept the evidence of one party over the other – Where it cannot be said that the trial judge erred in the exercise of her discretion and/or that her decision was plainly wrong – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks an order for costs – Where the appellant opposes such an order being made on the basis of his poor financial circumstances – Where the respondent is in a financially better position than the appellant but impecuniosity is not a bar to an order for costs being made where there are circumstances which justify the making of such an order – Where the appellant has been wholly unsuccessful – Costs ordered in favour of the respondent.

  • Lowin & Lowin [2018] FamCAFC 55

    23 Mar 2018

    FAMILY LAW – APPEAL – Application to extend time to appeal – Applicant seeks to appeal against property settlement orders – Notice of Appeal filed shortly after prescribed time had expired but applicant had earlier taken steps to challenge the Magistrate’s decision – Joshua v Joshua (1997) FLC 92-767 and Tormsen and Tormsen (1993) FLC 92-392 considered – Although the Notice of Appeal has serious deficiencies, found there is a substantial issue to be raised on appeal – No relevant prejudice to the respondent – Held interests of justice would not be served by preventing the applicant from appealing – Time within which to appeal extended – Application otherwise dismissed. 

  • Graft & McCormick [2018] FamCAFC 49

    14 Mar 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother filed three Applications in an Appeal – where the mother sought the children be brought before the appeal judge – where the mother sought for a contravention application to be heard by the appeal court – where the mother sought a review of an Appeals Registrar’s procedural order listing the appeals together – where the mother effectively sought to reopen the parenting proceedings – where each application was dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the mother required leave to appeal a procedural order setting a matter down for hearing – where the mother did not object at the time to the matter being set down – where there is not merit in any of the asserted grounds seeking leave to appeal – where there is no substantial injustice – where no error of principle is involved – where leave to appeal is refused.

    FAMILY LAW – APPEAL – PARENTING – where the mother appeals the summary dismissal of four contravention applications – where the mother appeals the summary dismissal of an Application in a Case – where there was no substantive case before the Court – where the mother appeals a costs order in relation to the summary dismissal of her contravention applications – where the mother seeks orders that the substantive final parenting orders be rescinded – where the appeals lack each or both particularity and foundation – where each appeal is dismissed.

  • Gretton & Merrin [2018] FamCAFC 48

    13 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – where the father’s application did not contain further evidence but instead sought to issue subpoenas – where the husband speculated that those subpoenas might produce relevant evidence – where the application was misconceived – application dismissed.

    FAMILY LAW – APPEAL – CHILDREN – where the primary judge made parenting orders in relation to a five year old child – where the child had always lived with the mother and spent time with the father – where the parties relationship was brief – where the primary judge ordered that the mother have sole parental responsibility and that she have liberty to relocate with the child – where the primary judge ordered that the father spend time with the child according to a graded regime that increased over a two year period – where the father contended that the primary judge’s reasons did not give appropriate weight to evidence and were inadequate – where the father contended that his legal representatives failed to tender important evidence on his behalf – where there was no merit in the appeal – appeal dismissed.

    FAMILY LAW – COSTS – where in the event the appeal was dismissed the mother and the independent children’s lawyer did not seek an order for costs – where the parties were ordered to bear their own costs of and incidental to the appeal.

  • Perrin & Perrin [2018] FamCAFC 30

    14 Feb 2018

    FAMILY LAW – APPEAL – Application to vacate hearing of an appeal – Orders appealed contained a finding (not an order) concerning the percentage division of the assets and gave liberty to the parties to provide a minute reflecting the finding  – Appeal listed for hearing in the February 2018 sittings in Sydney – Parties’ informal request for an adjournment of the appeal denied by the Appeals Registry – Failure of appellant to comply with procedural directions – Counsel for the respondent now unavailable for the appeal hearing – Final orders still not made by primary judge – Na & Tiu [2017] FamCAFC 264 considered – Hearing vacated.

  • Carter & Carter [2018] FamCAFC 45

    06 Mar 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Access to court file – Whether the adult child of parties involved in Family Court proceedings should be allowed to access his parents’ Family Court file from 1977 – Where the primary judge dismissed that application but made an order allowing the appellant to view consent parenting orders – Where the primary judge gave inadequate reasons – Where the primary judge took into account irrelevant matters – Consideration of r 24.13 of the Family Law Rules 2004 (Cth) – Where appellant found to have proper interest in the proceedings – Where the appellant’s access is reasonable – Appeal allowed – Re-exercise of discretion to allow appellant access to the court file.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Non-publication – Where the appellant sought an order for the non-publication of this judgment and the removal of the primary judge’s reasons from the Family Court of Australia website and AustLII – Where the Family Court anonymises all judgments it publishes pursuant to s 121 of the Family Law Act 1975 (Cth) – Application dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Preliminary view that the order appealed from is interlocutory and appeal is required – Appeal found to have merit – Leave to appeal granted.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Further evidence – Application to adduce letters and a supplementary appeal book – Letters demonstrate that the appellant’s parents consent to him accessing their court file  – Leave given to adduce letters as further evidence on the appeal – Affidavits in supplementary appeal book found not relevant to appeal – Application to adduce supplementary appeal book as further evidence in the appeal dismissed but allowed insofar as the evidence contained therein can inform the re-exercise of discretion if the appeal is allowed.