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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.
Stringer & Nissen  FamCAFC 170
02 Oct 2019
FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a Notice of Appeal against interim parenting orders – Where the settled reasons were not provided to the parties before the expiration of the appeal period – Where the orders involve a young child and significant change to the child’s arrangements – Where some of the proposed grounds of appeal are arguable – Where the failure to file a Notice of Appeal in a timely way was not the appellant’s fault – Where interests of the child justify extension of time.FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Costs to be costs in the appeal.
Oswin & Oswin  FamCAFC 164
26 Sep 2019
FAMILY LAW – APPEAL – CONTRAVENTION – Where the primary judge found the mother had contravened parenting orders providing for equal shared parental responsibility without reasonable excuse – Where this was the first contravention application with respect to parenting orders made some three years earlier – Where the father sought the imposition of a bond – Where the primary judge imposed a sentence of seven days imprisonment suspended for two years – Where it must follow that the primary judge was obliged to apply the criminal standard of proof – Where the primary judge failed to fulfil the mandatory statutory requirement to give reasons for finding that no other penalty was appropriate – Where investigation of available options for schooling did not constitute a unilateral “decision” about a major long-term issue – Where the mother had declined to sign passport forms which the father had not completed or signed – Where, on the whole of the evidence, it was not reasonably open to the primary judge to find any contravention on the criminal standard or the civil standard of proof – Where the appeal was conceded – Appeal allowed and the findings of contravention and the order for imprisonment set aside – Where the father’s Application-Contravention at first instance is dismissed – Costs certificates ordered.
FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the mother was self-represented with no relevant legal training – Where the primary judge failed to sufficiently explain to the mother the relevant law to be applied and procedure – Where neither party was afforded any opportunity to make submissions as to whether the application was to proceed under Subdivision E or under Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Where the failure of the primary judge to provide that explanation to the mother and to invite her submissions upon the point was a fundamental failure to provide procedural fairness to the mother – Where the primary judge was not attentive to the fundamental distinction between Subdivision E and Subdivision F of Division 13A – Where the primary judge impermissibly intervened in cross-examination – Where the primary judge’s comments bespeak pre-judgment or predetermination – Where such interventions amount to a denial of procedural fairness – Where the primary judge did not afford the mother the opportunity to be heard as to sentence.
Milen & Milen (No. 2)  FamCAFC 167
01 Oct 2019
FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs on an indemnity basis – Where the financial circumstances of the parties do not militate against an order for costs being made in favour of the respondent – Where as a result of the appeal being dismissed, the appellant was wholly unsuccessful, and that circumstance alone is a powerful circumstance justifying an order for costs – Where the appeal was commenced in circumstances where, properly advised, the appellant should have known that it had no chance of success – Where there are exceptional circumstances which allow for the costs ordered to be calculated on an indemnity basis – Costs ordered on an indemnity basis to be as assessed or taxed in the event of there being no agreement as to the same.
Herbert & Herbert  FamCAFC 149
30 Aug 2019
FAMILY LAW – APPEAL – PARENTING – Where the mother appeals interim parenting orders – Where the orders discharged a previous interim order made which provided for the mother to spend unsupervised time with the children in alternate weekends – Where a Recovery order was issued – Where the Recovery order has expired so the appeal in that regard has no utility – Where the mothers application to adduce further evidence is dismissed on the basis that the material that the mother seeks to adduce is not relevant to the issues on the appeal – Where there is no merit in the grounds that the mother agitates – Appeal dismissed.
Walsh & Maher  FamCAFC 162
25 Sep 2019
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR AN EXTENSION OF TIME – Where the Applicant was six weeks late in filing the Notice of Appeal – Where the judgment and orders were delivered by telephone and the final judgment delivered in writing one month later – Where the delay is explained – Where the appeal has merit – Application allowed.
FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where it was asserted the father was in breach of orders and should not be heard – Application dismissed.
FAMILY LAW – APPEAL – COSTS – Where the respondent sought an order for costs in accordance with Schedule 3 of the Family Law Rules 2004 (Cth) – Costs order made.
Tong & Niem  FamCAFC 161
23 Sep 2019
FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the father seeks to expedite his appeal against orders dismissing his application that the primary judge be disqualified by reason of alleged apprehended bias – Where final hearing involves significant issues – Appeal in relation to the constitution of the court to be afforded reasonable priority – Application granted.
Rich & Shorland (No. 2)  FamCAFC 163
25 Sep 2019
FAMILY LAW – APPEAL – COSTS – Where the appeal was successful – Where the appellant sought that the respondent pay the appellants costs – Where in the alternative the appellant sought a costs certificate – Costs certificates also sought by the respondent – Where appeal succeeded on an error of law – Costs certificates granted to both parties for the appeal and the rehearing of the application.
Luu & Kaa  FamCAFC 160
19 Sep 2019
FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where interim orders made requiring money held in the parties’ offset accounts to pay off the mortgage over the former matrimonial home as well as the sale of this and another property – Where proceeds of sales ordered to allow the wife to settle the purchase of a unit – Where the husband wishes to retain the former matrimonial home – Where the husband seeks that the appeal hearing be expedited –Where rule 12.10A(1) and (4) relevant – Where the primary judge relied on section 80(1)(k) to make the order – Where presumably the primary judge instead intended to refer to section 90SS because the parties were in a de facto relationship, not married – Where if no expedition ordered the husband’s appeal will be made irrelevant and he will suffer irreversible prejudice – Order made for expedition.
Yabon & Tabano  FamCAFC 159
17 Sep 2019
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR AN EXTENSION OF TIME – Where ex tempore reasons were delivered – Where no written reasons were available to file a notice of appeal within the specified time – Where application was allowed.
Goulder & Jessett  FamCAFC 158
17 Sep 2019
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR EXPEDITION – Where the mother seeks expedition of his appeal against interim parenting orders – Where the substantive proceedings are listed for final hearing on 18 December 2019 – 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.
Petchey & Petchey (No. 2)  FamCAFC 157
18 Sep 2019
FAMILY LAW – APPEAL – PROPERTY – Where only two grounds of appeal are potentially competent – Where there is no merit in either of the grounds of appeal, nor in any of the complaints made by the appellant in his “brief summary of argument” or his “Pre-argument Statement” – Appeal dismissed.
FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the appellant has been wholly unsuccessful – Costs awarded in favour of the respondent in the sum of $13,108.89.
Yau & Lac  FamCAFC 156
18 Sep 2019
FAMILY LAW – APPEAL – TRANSCRIPT – Where the applicant seeks that the court provide the transcript relevant to her appeal at its own expense – Where the applicant has not satisfied this Court as to her financial circumstances and why she needs the transcript she seeks – Where the merits of the appeal are seriously in doubt given that it is difficult to discern from the applicant’s grounds of appeal what appealable errors are asserted – Where the application stands dismissed.
FAMILY LAW – APPEAL – FURTHER EVIDENCE – Where the further evidence comprises matters that have occurred or arisen since the orders the subject of the appeal were made – Where it has not been demonstrated that receipt of the further evidence would reveal error by the trial judge or would have produced a different result if it had been available at trial – Where it is not apparent that the evidence is admissible and there is no doubt that it is controversial – Application dismissed.
Hencken & Dow  FamCAFC 154
11 Sep 2019
FAMILY LAW – APPEAL – DIVORCE – Where the husband appeals the making of a divorce order on the basis that there was a reasonable likelihood of the parties’ relationship being resumed – Where the husband appeals the primary judge’s refusal to allow cross-examination of the wife to explore the possibility of reconciliation and to persuade the wife to attend marriage counselling – Where the primary judge is entitled to refuse cross-examination of a witness as it was found to be an abuse of process – Where there is nothing equivocal in the evidence of the wife as to her attitude towards reconciliation – No error is established – Whether the primary judge failed to give proper weight to the “statutory mandate” in s 43 of the Family Law Act 1975 (Cth) – Where s 43 is no more than context to the legislative intention – Where there is no merit in this ground of appeal – Where the husband contends that her Honour erred in making an order abridging the time in which the divorce order was to become final on the basis of special circumstances – Adequacy of reasons for special circumstances – Where her Honour made findings that entitled her to abridge the time – No error is established – Appeal dismissed – Order made for the divorce to become final immediately – Husband ordered to pay the wife’s costs.
Marsey & Marsey  FamCAFC 148
29 Aug 2019
FAMILY LAW – APPEAL – INTERIM PARENTING – Where the primary judge erred in making an order for sole parental responsibility without allowing the parties the opportunity to make submissions – Appeal allowed in part – Matter remitted for rehearing – Costs certificates granted.
Meadis & Meadis and Ors  FamCAFC 146
02 Sep 2019
FAMILY LAW – APPEALS – COSTS – Where the appellant father consented to an order that his appeal be dismissed during the appeal hearing – Where the father is unrepresented – Where the respondent mother sought an order for costs – Where the father opposed an order for costs due to his impecuniosity – Where the father is incarcerated and relies on his parents for financial support – Where neither the mother or the father is in receipt of legal aid – Where the father’s conduct warrants an order for costs – Where the father is ordered to pay a portion of the mother’s costs – Appeal dismissed.
Kabra & Sachin  FamCAFC 155
12 Sep 2019
FAMILY LAW – APPEAL – PARENTING – Where the father’s Amended Notice of Appeal did not contain identifiable and competent grounds of appeal – Where the father fell into the trap of simply looking to rerun his case in the Court below – Where the father failed to identify any appealable error made by the Magistrate and nor is error apparent – Where none of the complaints made by the father have merit – Appeal dismissed.
Ellwood & Ravenhill  FamCAFC 153
06 Sep 2019
FAMILY LAW – APPEAL – PARENTING – INITIATING PROCEEDINGS – Section 60I certificate – Where the father initiated proceedings without having undertaken family dispute resolution – Where the subject Initiating Application did not fall within an exception in s 60I(9) – Where the primary judge made orders notwithstanding there being no s 60I certificate – Where the primary judge was in error in proceeding to hear the father’s application not having made any finding to the effect that any of the exceptions in subsection (9) applied – Consideration of s 60I(11) – Where the purpose of s 60I(11) is to preserve the integrity of proceedings and orders made where, for example, perhaps through oversight subsection (7) is not complied with – Where the subject orders likely do not fail for want of jurisdiction but the failure to apply subsection (7) amounts to legal error – Appeal allowed.
Dickens & Dickens  FamCAFC 150
04 Sep 2019
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR REVIEW OF REGISTRAR'S DECISION – Where the Registrar rejected an Application in an Appeal for filing as an abuse of process – Application in an appeal allowed in part.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PRACTICE AND PROCEDURE – SUBPOENAS – Where the applicant seeks leave to issue subpoenas in preparation of an appeal – Where documents previously produced to the Court were mistakenly destroyed – Where the applicant seeks to reconstruct exhibits and subpoena parties to reproduce those documents to the Court – Court directed to notify the recipients who previously produced documents to reproduce those documents - Appellant granted leave to inspect those documents. Appellant denied leave to copy documents.
Bader & Spinner  FamCAFC 152
03 Sep 2019
FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal be allowed, that the orders appealed be set aside, that the matter be remitted for rehearing and costs certificates issue pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where appealable error is demonstrated and the appeal should succeed – Where there are a lack of adequate reasons provided by the trial judge – Where the appeal is properly characterised as a Federal appeal, it will succeed on a question of law and it has been listed in a public and formal way – Where the parties have been put to unnecessary expense in pursuing the appeal and the matter must be re-litigated – Appeal allowed – Orders set aside – Proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge – Costs certificates issued as sought by the parties.
Beckham & Quarrington  FamCAFC 144
20 Aug 2019
FAMILY LAW – APPEAL – PROPERTY – De Facto relationship – Where the appellant appeals from an order granting the respondent leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) to apply for property settlement – Where the parties agreed that the primary judge erred in the approach taken to the question of hardship – Leave to appeal required – Appeal conceded by the respondent – Appeal allowed – Matter remitted for rehearing.
FAMILY LAW – APPEAL – COSTS – Where an application for costs made by the appellant against the respondent was appropriately withdrawn – Where neither party could be made responsible for the deficiencies in the trial reasons – Costs certificates to issue for the appeal and rehearing.
Collingridge & Aiolfi (No. 2)  FamCAFC 143
20 Aug 2019
FAMILY LAW – APPEAL – COSTS – Application for costs – Costs determined in chambers on written submissions – Where an offer for settlement in substantially similar terms to the outcome achieved in the appeal was rejected by the respondent – Where the risk of a costs order resulting from opposing the appeal was clearly articulated to the respondent at the outset – Where other factors contained in s 117 of the Family Law Act 1975 (Cth) cannot be attributed greater weight than those raised by the appellant in favour of the application – Application granted.
Daly & Terrazas  FamCAFC 142
13 Aug 2019
FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband challenges the primary judge’s assessment of the parties’ relative contributions and contends that the primary judge failed to give adequate reasons for her decision – Where the husband contends that the assessment of 20 per cent reflecting the wife’s contributions is erroneous – Where her Honour’s conclusion was open on the evidence – Whether the primary judge’s conclusion was unsupported by reasons – Where her Honour took into account all the evidence and facts – Where the appeal is dismissed – No costs ordered.
Falcken & Weule  FamCAFC 140
16 Aug 2019
FAMILY LAW – APPEAL – PROPERTY – Appeal against orders for the division of property – Whether the primary judge erred in the determination of the parties’ various contributions and thus the overall assessment – Whether a disability insurance payment to the respondent should have been treated as a joint contribution since the premiums of the policy were paid from joint funds – Where a joint decision to use joint funds to obtain an insurance policy is a relevant consideration – Challenge to the weight that was given to the appellant’s contributions – Contributions are not assessed in isolation but as part of the myriad of contributions – Whether the primary judge erred in identifying the parties’ assets and liabilities to determine the property available for division – Where the appellant submits that items of property were or should have been “added-back” to the list of property to be divided – Where there was no error in the primary judge’s approach – Appeal dismissed – No order as to costs.
Garston & Yeo (No. 2)  FamCAFC 139
16 Aug 2019
FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal against an interim order for spousal maintenance pending the determination of property proceedings between the parties – Where leave to appeal is required – Whether the trial judge’s decision is attended with sufficient doubt to warrant its reconsideration – Whether substantial injustice would flow if it were not reconsidered – Whether the trial judge’s reasons are adequate – Whether the evidence supports a finding that the amount ordered for spousal maintenance was a reasonable amount to meet the respondent’s needs – Where the trial judge’s path of reasoning is clear and the reasons are adequate – Where the evidence supports the trial judge’s findings – Where a claim for spousal maintenance is not limited by reference to current expenses – Where verification of expenditure depends on the nature of the claim and may not necessarily be required – A person seeking spousal maintenance is not necessarily obliged to resort to their capital before they can receive the benefit of an order for spousal maintenance – No merit in any ground of appeal – No basis for granting leave to appeal – Application dismissed – Appellant to pay the respondent’s costs, as agreed, or in default of agreement, as assessed.
Elmi & Munro  FamCAFC 138
16 Aug 2019
FAMILY LAW – APPEAL – PARENTING – Where the trial judge considered that Rice and Asplund (1979) FLC 90-725 had not been correctly decided – Where there is no scope for doubting the correctness of Rice and Asplund (1979) FLC 90-725 – Where there is an obligation on a judge of the Federal Circuit Court of Australia or the Family Court of Australia to follow and apply decisions of the Full Court of the Family Court of Australia – Where the trial judge wrongly relied on principles of res judicata and failed to follow and apply the principles in Rice and Asplund (1979) FLC 90-725 – The concept of res judicata or issue estoppel does not apply to parenting cases – Appeal allowed and matter remitted – Costs certificates granted for costs of the appeal and rehearing.
Walker & Page (No. 2)  FamCAFC 134
09 Aug 2019
FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made final property orders distributing the property of the parties – Where the primary judge made indemnification orders in relation to certain outstanding debts – Where the amount of those debts had not crystallised – Where in that event the trial judge could not properly conclude that the proposed order for property settlement was just and equitable – Where the Court was satisfied of appealable error – Appeal allowed – Cost certificates granted.
Crabman & Crabman  FamCAFC 141
15 Aug 2019
FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the father filed an application to have the transcript provided to the parties or, alternatively, for leave to be given for the appeal to proceed without transcript – Where the father’s grounds of appeal raise issues of apprehended bias and procedural unfairness – Where a Full Court will require the transcript to properly determine the father’s grounds of appeal – Where the father acknowledged he could afford the cost of the transcript if given extra time – Order made to extend time for father to provide transcript.FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF AUDIO OF EX TEMPORE REASONS – Where the father contends that the trial judge omitted a paragraph from the settled reasons for judgment – Where the mother conceded that such a paragraph was omitted – Order made for Appeal Registrar to make available audio of the trial judge’s ex tempore reasons.
Hadaway & Beckham  FamCAFC 137
01 Aug 2019
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Parenting – Where the father appeals against an order made by a Judge of the Federal Circuit Court of Australia dismissing his application to re-open proceedings – Where the father could not establish before the trial judge any material change in circumstances pursuant to the principles in Rice & Asplund (1979) FLC 90-725 (“Rice v Asplund”) – Where the father sought to adduce further evidence – Where proposed evidence not admitted under s 93A(2) of the Family Law Act 1975 (Cth) – Where it was open for the trial judge to find that there was no significant change in circumstances – Where the trial judge correctly applied the principles of Rice & Asplund to the evidence adduced at trial – No appealable error – Where there is no miscarriage of the trial judge’s discretion – Where the appeal lacks merit – Application in an Appeal dismissed – Appeal dismissed – Costs – Where the appeal is wholly unsuccessful – Appellant ordered to pay the respondent’s costs.
Ferringer & Melchiori  FamCAFC 136
08 Aug 2019
FAMILY LAW – APPLICATION IN AN APPEAL – Extension of Time – Application for an extension of time to file a Notice of Appeal against spousal maintenance orders – Where the application for spousal maintenance was an interim application of which leave to appeal is required – Explanation for the delay – Merits of the proposed appeal – Where the explanation for the delay is far from satisfactory – Where the appeal has little merit – Where there is no issue that requires reconsideration by the Full Court of the Family Court of Australia – Where the application has been wholly unsuccessful – Application dismissed – Applicant to pay the respondent’s costs of the application in a fixed sum.
Sallings & Ziemann  FamCAFC 135
09 Aug 2019
FAMILY LAW – APPEAL – PARENTING – Where orders were in place for the mother to have sole parental responsibility of the children and they spend specified time with the father – Where the father contended that the children were at physical and psychological risk from – Where no risk found – Where the oldest child has significant mental health issues – Where the father contends the child is not receiving appropriate medical care and attention – Where the primary judge found the child’s treatment was appropriate and medically approved – Where the father challenges the apportionment of weight given to the evidence and challenges the exercise of discretion - Where the father’s grounds do not expose appealable error – Appeal dismissed – Costs ordered in favour of the mother.
Tsiang & Wu and Ors  FamCAFC 128
31 Jul 2019
FAMILY LAW – APPEAL – PROPERTY – Where the primary judge dismissed the husband’s interim application seeking certain injunctions – Where property settlement orders were made by consent – Where the husband seeks to set aside the consent orders – Injunction sought by the husband restraining the wife from dealing with property – Injunction sought by the husband restraining the second and third respondents from disposing or encumbering interests in an overseas company – Where the injunctions sought against the wife and the second and third respondents were dismissed on the lack of an evidentiary basis – Whether there is a identified risk that the wife will dispose of the assets in Australia – Whether there is a risk that the second and third respondents may deal with particular overseas assets in a way that would defeat the husband’s possible judgment or claim to it – Balance of convenience favours the making of the injunction against the wife – Where the primary judge failed to take into account all of the evidence of the husband – Where the primary judge erred in refusing to make the injunction in relation to the wife – Where the primary judge was correct in refusing to grant an injunction against the second and third respondents – Appeal allowed in relation to the dismissal of the injunction against the wife – Discretion re-exercised – Orders made in accordance with husband’s Application in a Case – No costs order between the husband and the wife – Husband to pay costs of the second and third respondents.
FAMILY LAW – APPEAL – LEAVE TO APPEAL – Interlocutory order – Sufficient doubt attends the decision – Substantial injustice if leave to appeal refused – Leave to appeal granted.