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.

  • Mena & Mena and Anor [2016] FamCAFC 85

    20 May 2016

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

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge found that the parties’ assets should be divided as to 55 per cent to the husband and 45 per cent to the wife – Where the wife complained on appeal that the trial judge’s decision to make a 5 per cent adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) in favour of the husband for “some kind of accounting between” the husband and his mother in relation to loans which the trial judge had found to be legally unenforceable was erroneous – Where the Full Court held that in circumstances where the trial judge had rejected any legally enforceable liability between the husband and his mother in relation to the alleged loans, it was not open to the trial judge to make an adjustment that reflected there would be a liability because it was inconsistent with earlier findings – Where the Full Court also said if the 5 per cent adjustment was made because of a moral rather than a legal obligation owed by the husband to his mother, any such moral obligation should not have resulted in a 5 per cent adjustment between the husband and the wife in circumstances where the trial judge had already adjusted between the parties on the basis of the funds advanced to the husband by his mother as an initial contribution – Where the Full Court re-exercised the discretion – Where the Full Court would have made the same orders made by the trial judge – Appeal dismissed – No order as to costs.

    FAMILY LAW – APPEAL – APPLICATION TO RE-OPEN – Where after the Full Court had reserved its decision the respondent filed an application to re-open the appeal and adduce further evidence – Where the respondent asserted the further evidence was relevant to the appeal and any re-exercise of the discretion – Where the Full Court held the evidence was not relevant to the determination of the appeal but was relevant to the re-exercise of the discretion – Application to re-open allowed – Application to adduce further evidence allowed for the purpose of the re-exercise of the discretion.

  • Grier & Malphas [2016] FamCAFC 84

    24 May 2016

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

    FAMILY LAW – APPEAL – PROPERTY ORDERS – Where the trial judge found that the parties’ assets should be divided as to 60 per cent to 40 per cent in favour of the husband – Where the wife argued on appeal that the trial judge did not give any, or sufficient, weight to the money received by the husband post-separation – Where the Full Court found the evidence disclosed a very significant disparity in the sums expended by the parties and that the trial judge erred in not giving adequate consideration to that disparity or examining the purposes for which the money was used – Where the Full Court found the trial judge could have taken account of those funds either by “adding back” the funds or pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth) – Where the wife also argued on appeal that the trial judge erred in finding the husband’s contributions were of greater value because of a “skill set” he brought into the marriage – Where the Full Court found error in the trial judge’s assessment of contributions – Where the Full Court emphasised it is not a party’s “skill set” that needs to be considered but their contributions in all senses in which that expression is used in s 79 – Appeal allowed – Remitted for rehearing – Costs certificates granted.

  • Faukland & Shikia [2016] FamCAFC 83

    25 May 2016

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

    FAMILY LAW – APPEAL – SENTENCING – CONTEMPT – Where the appellant appeals against the severity of his sentence – Where appellant sentenced to three months imprisonment for each contempt to be served consecutively and wholly suspended indefinitely – Whether the primary judge erred in ordering that the term of imprisonment be served consecutively – Whether the primary judge erred in suspending the term of imprisonment for an indefinite period – Where as a general rule a suspended sentence should only be suspended for a fixed term – Appeal allowed in part – Appellant re-sentenced – Consecutive terms to be wholly suspended for fixed term upon conditions.

  • Padley & Padley [2016] FamCAFC 82

    23 May 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim parenting orders suspending his time with the child – Where the mother and Independent Children’s Lawyer conceded that the appeal should be allowed – Where the primary judge erred in finding that there was a risk of harm to the child that would warrant the suspension of time – Where the trial judge failed to consider other options which might have enabled the child to regularly spend time with the father in a safe setting – Orders set aside – Proceedings remitted for re-hearing. 

    FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where an order for costs as between the parties would not be appropriate – Whether appropriate to grant cost certificates – Cost certificates granted to the parties and Independent Children’s Lawyer for the appeal and the re-hearing.

  • Edsall & Rabkin [2016] FamCAFC 81

    17 May 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Application by the mother seeking an extension of time to file a Notice of Appeal for cross appeal – Where the Notice of Appeal filed by the father (“NA67 of 2015”) and Notice of Appeal for cross appeal (“NA9 of 2016”) raise similar issues and there is possible merit in both appeals – Where the delay is adequately explained – Where the grant of an extension of time would not result in injustice as between the parties – Where father does not oppose leave being granted in circumstances where he can file an Application to Adduce Further Evidence – Application allowed – No order as to costs.

  • Lawler & Oliver [2016] FamCAFC 80

    04 May 2016

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

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Expedition – Where the mother seeks to expedite an appeal against interim parenting orders and an appeal against a refusal to grant a stay of those orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeals does not justify priority to the detriment of other cases – Application dismissed.

  • Colak & Viduka [2016] FamCAFC 79

    16 May 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Child abduction – Where the Department of Family and Community Services filed an application seeking the return of the children to Croatia – Whether a party has standing to appeal if not a party to the original proceedings – Where the children object to returning – Where those views are genuinely held –Where there is a risk of self-harm or suicide if the children are returned – Whether the children’s views were influenced by the mother – Whether the mother can rely on views that she may have influenced – Whether the primary judge erred in assessing the children’s age and maturity – Whether the emotional immaturity of the children was sufficiently taken into account –Where the children have attained an age and degree of maturity at which it is appropriate to take account of their views – Whether the primary judge should have imposed conditions on the children’s return – Appeal dismissed.

  • Cole & Abati [2016] FamCAFC 78

    13 May 2016

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

    FAMILY LAW – APPEAL – INJUNCTION – The husband appealed against an anti-suit injunction restraining him from commencing proceedings in Indonesia in relation to the wife’s property – The injunction was granted on the basis that such proceedings would be in breach of a binding financial agreement between the parties – The trial judge did not err in her construction of the agreement, did not fail to take account of relevant facts, did not fail to give adequate reasons and did not fail to consider principles of comity – Appeal dismissed – Order for the husband to pay the wife’s costs.

  • Wardle & Wardle [2016] FamCAFC 77

    13 May 2016

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

    FAMILY LAW – APPEAL – CHILDREN – The husband appealed a condition on a residence order requiring him to live with his parents – The husband has convictions for possessing child pornography – The trial judge did not fail to identify the risk posed by the husband, did not err in finding that the risk was unacceptable unless the husband lived with his parents, did not fail to give reasons for imposing the condition, did not improperly discount the evidence of the single expert and did not fail to consider the long-term impact of the orders – Appeal dismissed – Order for the husband to pay the wife’s costs.

  • Zau & Uong [2016] FamCAFC 76

    11 May 2016

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

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant complains that the trial judge erred in dismissing her application for an adjournment by failing to give sufficient weight to her submissions – Where the appellant complains that the trial judge erred in not permitting her to have the assistance of the duty solicitor on the day of the hearing, calling the matter on before assistance could be sought – Where the appellant complains that the respondent provided inadequate disclosure – Where the appellant complains that the trial judge gave insufficient weight to her evidence as to the existence of a de facto relationship – Where there is no merit in any of the complaints and no error by the trial judge – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where the appellant sought a number of orders most of which pertained to the preparation of the appeal for hearing – Where the majority of the applications have previously been dealt with and orders are no longer necessary or appropriate – Where it is necessary to consider the application made by the appellant to adduce further evidence – Where much of the evidence sought to be adduced was available at trial and in any event is irrelevant to the issues for determination on appeal – Applications dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks his costs on an indemnity basis – Where the appellant has been wholly unsuccessful and there are circumstances which justify an order for costs being made – Where the appellant opposes any costs order on the basis of her poor financial circumstances – Where impecuniosity in no bar to an order for costs being made where there are circumstances which otherwise justify it – Where the circumstances relied on by the respondent for indemnity costs are not “exceptional” in nature – Costs ordered in favour of the respondent on a party/party basis in default of agreement.

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – COSTS – Where the applications were filed due to the appellant’s inability to comply with previous orders made in relation to the filing of documents – Where the appellant had already received an extension of time to file her documents – Where the appellant has clearly been granted an indulgence which placed the respondent in a position of disadvantage – Costs ordered in favour of the respondent on a party/party basis in default of agreement.

  • Sables & Newman [2016] FamCAFC 75

    28 Apr 2016

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

    FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where the Full Court satisfied itself, upon reading the appeal record, that an appealable error had been established – Whether the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted.

  • Hao & Lan [2016] FamCAFC 74

    27 Apr 2016

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

    FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where the Full Court satisfied itself, upon reading the appeal record, that an appealable error had been established – Whether the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted.

  • Meryman & Eastland [2016] FamCAFC 73

    10 May 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Application seeking an extension of time to file a Notice of Appeal – Where orders made by consent requiring further evidence – Where procedural orders were made for disclosure – Where the applicant’s solicitor knowingly attempted to file the appeal out of time – Where no attempt was made by the applicant to remedy the situation after notice from the Appeal Registry – Where significant prejudice is caused to the respondent – Where there is little merit in the proposed appeal and no substantial injustice – Where the orders are interlocutory in nature and leave to appeal would not be granted – Where the orders made directions and orders in preparation for trial (per Norton & Locke (2013) FLC 93-567) – Application dismissed. 

    FAMILY LAW – COSTS – Where the circumstances do not justify an order for indemnity costs – Where the applicant should pay the costs of the respondent in a fixed sum – Where it is appropriate to make an order for costs.

  • Suiter & Suiter [2016] FamCAFC 72

    10 May 2016

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

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant asserts that the orders made were not congruent with existing orders and were made on the basis of findings not supported by the evidence or on irrelevant matters – Where it is also asserted that the trial judge failed to properly determine the applications of the parties before her and in so doing failed to apply the provisions of s 129 of the Child Support (Assessment) Act 1989 (Cth) and failed to give adequate reasons for her decision – Where there is no merit in any of the grounds of appeal – Where no useful purpose would be served in granting leave to appeal in circumstances where the grounds of appeal have been found to be without merit – Leave to appeal dismissed.

    FAMILY LAW – APPEAL – ADDUCE FURTHER EVIDENCE – Where the further evidence would only be relied upon in the event of substance being found in the appeal and the discretion re-exercised – Where leave to appeal was refused – Application to adduce further evidence dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent sought her costs on an indemnity basis – Where there is no basis to order indemnity costs – Where there are circumstances justifying an order for costs in the respondent’s favour – Costs ordered on a party/party basis to be assessed in default of agreement.

  • Jabbar & Gade [2016] FamCAFC 71

    20 Apr 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Expedition – Where the mother seeks to expedite an appeal against interim parenting and procedural orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

  • Maple & Niu [2016] FamCAFC 70

    06 May 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Appeal against orders which depart from an equal time arrangement in favour of substantial and significant time – Where the primary judge made orders restricting the father from entering upon an area where the mother lives with the child – Where the restraining order was justified – Whether proper provision made for the child to spend time with the father on special occasions – Exercise of discretion – Adequacy of reasons – Whether findings were open – Where error not established – Appeal dismissed.

  • Harriott & Arena [2016] FamCAFC 69

    06 May 2016

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – De facto – Appeal against an order dismissing the appellant’s application for property settlement on the basis that the geographical requirement in s 90SK of the Family Law Act 1975 (Cth) was not met – Where the appellant applied proceeds from the sale of a house in New South Wales to the purchase of a property and a business in Vanuatu – The trial judge misdirected himself in finding that contributions made prior to the commencement of the relationship were not “in relation to” the relationship – “Substantial contributions” were made in New South Wales – Appeal allowed – Costs certificates granted.

  • Rodgers & Rodgers [2016] FamCAFC 68

    04 May 2016

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – whether the trial judge erred in refusing to deduct a calculation of the total future taxation payable by the parties’ corporation – where the treatment of the liability should be governed by what is just and equitable as between the parties – where the failure of the trial judge to include the calculated taxation liability is not, of itself, an error – where it was within discretion for the trial judge to treat the liability as a matter to be considered by reference to s 79(4)(e) – where the s 79(4)(e) assessment was not “plainly unjust” or “plainly wrong” – where the trial judge failed to consider relevant considerations in the s 79(4)(e) assessment – where error in the exercise of trial judge’s discretion established – appeal allowed – matter to be re-determined by the Full Court.

  • Wah & Golay [2016] FamCAFC 67

    07 Apr 2016

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

    FAMILY LAW – APPEAL – PROPERTY – APPLICATION IN AN APPEAL – application to amend grounds of appeal – application to adduce further evidence – where no objection to the application to amend the grounds of appeal – application to amend grounds granted – where evidence sought to be adduced is an affidavit containing mostly hearsay and no documentation is provided in support – where evidence is irrelevant to the findings of the trial judge and no explanation is provided as to why evidence was not adduced at trial – application to adduce further evidence dismissed.

    FAMILY LAW – APPEAL – PROPERTY – contributions assessed at 87.5/12.5 in the husband’s favour – where the wife challenges her Honour’s assessment of the contributions – where no discretionary error identified and no error found in respect of contributions – where the wife asserts that the trial judge erred in failing to make an adjustment pursuant to s 79(4)(e) – where the trial judge failed to consider relevant s 75(2) considerations resulting in an injustice to the wife – appeal allowed – re-exercise discretion – adjustment of 7.5 per cent in favour of the wife – costs ordered. 

  • Bant & Clayton (Costs) (No. 2) [2016] FamCAFC 66

    03 May 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where there was an adequate explanation for the father’s failure to file a Notice of Appeal within time – Where the father’s grounds of appeal were not devoid of merit – Where there is no justification for either party to be awarded costs on the basis of the conduct of the other of them – Where the mother was justified in opposing the application – Where the father was seeking an indulgence from the court – Where the financial circumstances of the parties do not justify an order for costs in favour of either of them – Each party to bear their own costs

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where it is apparent that the father could not have incurred any costs as a result of the mother’s discontinued application for an adjournment –Where it cannot be said that the mother’s discontinued application was wholly unsuccessful – No order for costs.

    FAMILY LAW – APPEAL – COSTS – Where the father’s principal or primary grounds were not successful – Where success in two grounds cannot translate into an entitlement for all of the father’s costs to be paid – Where conduct justifying an order of costs has to be conduct in the appeal – Where the parties’ respective financial circumstances neither prevents nor justifies an order for costs in favour of either party – Where the father should receive 20 per cent of his costs and the mother should receive 80 per cent of her costs – Where the mother seeks her costs on an indemnity basis – Where the mother has not established any basis for indemnity costs to be ordered – Where the mother’s claim for costs on an indemnity basis is completely unfounded – Where costs certificates should ordered in relation to the discrete rehearing.

  • Sahadi & Savva and Anor [2016] FamCAFC 65

    29 Apr 2016

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

    FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where the appellant required leave to appeal against interlocutory orders – Whether leave to appeal should be granted – Application of test set out in Medlow & Medlow (2016) FLC 93-692 – Where the nature of the issues raised and their implications for the hearing of a serious criminal trial justify a grant of leave – Leave to appeal granted.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Release and use of expert report – Where the Police were granted leave to inspect and copy court file – Where Police applied to release expert report for use in criminal prosecution – Whether Police subject to implied obligation not to disclose the report – Waiver of an implied obligation – Where pursuant to r 15.10(3)(c) of the Federal Circuit Court Rules 2001 report released to the parties involved in the criminal proceedings and the Director of Public Prosecutions – Whether the best interests of the child were the paramount consideration – Appeal dismissed.

  • Bass & Bass and Anor [2016] FamCAFC 64

    29 Apr 2016

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

    FAMILY LAW – APPEAL – CHILD SUPPORT – Where the appellant seeks to appeal against orders made pursuant to the Child Support (Assessment) Act 1989 (Cth) (the “CSAA”) – where a child support trust was established as part of consent orders made on 17 July 2008 – where the appellant contends that the trial judge erred in failing to find that the balance of the funds held in the child support trust were to be held on a resulting trust for the appellant – where the appellant contends that the trial judge erred in the exercise of his discretion in not ordering the return to the appellant of the balance funds held in the trust pursuant to the CSAA.

    FAMILY LAW – APPEAL – terms of a child support trust and the circumstances of its creation – whether settlor disposed of his beneficial interest in the funds settled upon in the trust – purpose or purposes of the child support trust – determined that on the proper construction of the terms of the child support trust in the circumstances of its creation the settlor disposed of his beneficial interest absolutely – no basis for a resulting trust.

    FAMILY LAW – APPEAL – DISCRETION to make orders under the CSAA – no error demonstrated in the trial judge’s exercise of discretion – challenge to the trial judge’s costs orders fails. 

    FAMILY LAW – LEAVE TO APPEAL – consideration of discretion to grant leave to appeal pursuant to the CSAA.

  • Medlow & Medlow (No. 2) [2016] FamCAFC 63

    28 Apr 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – AMENDMENT OF ORDERS – Where the appellant seeks to have orders amended under the slip rule in r 17.02 of the Family Law Rules 2004 (Cth) – Where the appellant seeks an order for payment from a joint bank account – Whether the Full Court inadvertently omitted to make such an order – Whether the slip rule applies to the order sought – Whether the order sought is an order for interim property settlement – Where the Full Court did not intend to make an order for payment – Application in an Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the Application in an Appeal was unsuccessful – Whether conduct of the respondent warrants no costs order being made – Where no order made as to costs.

  • Zlotnik & Gerasimov [2016] FamCAFC 62

    28 Apr 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for extension of time in which to file an appeal – Where the appellant seeks to appeal orders made by consent – Where there are no circumstances to vitiate consent – Whether the Court should exercise its discretion to allow the extension of time – Where the appellant seeks to file an appeal after significant delay – Where the appeal must fail and is futile – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Circumstances justifying order – Where no evidence of parties’ financial positions adduced – Where appellant wholly unsuccessful – Where appellant failed to comply with the Family Law Rules – Where costs order made against appellant.

  • Thornton & Thornton and Anor [2016] FamCAFC 61

    27 Apr 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the appellant seeks to appeal against orders made for the children to spend unsupervised time with the respondent – Where the appellant alleges that the trial judge has made a series of erroneous findings – Where the appellant complains that the trial judge erred in finding no unacceptable risk of the children being exposed to sexual abuse by the respondent – Where the appellant complains that the trial judge accorded insufficient weight to evidence given on her behalf and in assessing the credit of the father failed to consider a number of matters– Where the appellant complains that the trial judge made findings not reasonably open to him – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful in her appeal – Where as a result the respondent and the Independent Children’s Lawyer have unnecessarily incurred substantial legal costs – Where it is appropriate that orders for costs be made – Appellant to pay the costs of the respondent and the Independent Children’s Lawyers as assessed in default of agreement.

  • Haykal & Krawiec [2016] FamCAFC 60

    21 Apr 2016

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

    FAMILY LAW –APPLICATION IN AN APPEAL –Review of the decision of a Registrar –Where the appellant made several applications for an extension of time in which to file appeal books – Where the Registrar dismissed these applications – Where the appeal was deemed abandoned – Review of Registrar’s decision is hearing de novo – Whether the appellant adequately explained the delay in filing the appeal books – Whether the appeal should be allowed in the light of case management principles – Where the appeal has merit – Where there is little prospect the appellant will file the appeal books on time – Where the public interest and the private interest of the respondent outweigh this merit – Application in an appeal dismissed.

  • Carlton & Kethel [2016] FamCAFC 59

    21 Apr 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a draft appeal index – Application for reinstatement of an appeal – Where the father made a Federal Circuit Court contravention application – Where the father applied for an order requiring Centrelink to provide to him with the address of the mother – Where both applications were dismissed – Where the father sought to appeal the dismissal of those applications – Where the father failed to file a draft appeal index in accordance with r 22.13 of the Family Law Rules 2004 (Cth) – Where the appeal was deemed abandoned –  Where the father seeks a review of the Registrar’s decision – Whether the father’s appeal is futile – Application in an Appeal dismissed.

  • Hillekamp & Hillekamp [2016] FamCAFC 58

    18 Apr 2016

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

    FAMILY LAW – APPEAL – DIVORCE – The wife appealed against a divorce order – Matter listed for dismissal on account of the wife’s failure to show reasonable diligence in prosecuting the appeal – The appeal would depend for success on an application to adduce further evidence, which will be controversial – No merit in the appeal – Appeal dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Application for costs dismissed.

  • Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57

    15 Apr 2016

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

    FAMILY LAW – APPEAL – ABDUCTION – CONVENTION – REGULATIONS – Where the trial judge found the child was habitually resident in Indonesia rather than the Netherlands immediately prior to her retention in Australia – Where the trial judge found – apparently as an alternative- that the child could have two habitual residences – Where the Full Court held that the trial judge failed to apply the correct test for determining the child’s habitual resident immediately prior to her retention in Australia – Where the Full Court considered the Abduction Convention was properly invoked upon the child’s retention in Australia as a Convention Country – Appeal allowed – Orders set aside – Orders made to provide for the return of the child to the Netherlands.

  • Valdez & Frazier (No. 2) [2016] FamCAFC 55

    15 Apr 2016

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

    FAMILY LAW – APPLICATION – DISQUALIFY – Where the test is not satisfied – Where disagreement with a decision is no basis for disqualification – Application dismissed.

    FAMILY LAW – APPLICATION – COSTS – Where the respondent filed her submissions seeking costs late and in the wrong jurisdiction – Where there is no application for an extension of time – Where no regard can be had to those submissions – Order for costs made on basis of application alone.

  • Valdez & Frazier [2016] FamCAFC 54

    15 Apr 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the appellant did not direct attention to any particular aspect of the conduct of the trial judge which could demonstrate bias – Where the appellant has not demonstrated that the trial judge relied upon undisclosed material or evidence in determining the case – Where the trial judge’s reasons illuminate in detail the evidence considered by the trial judge – Where the trial judge gave detailed consideration of the complaints made by the appellant in her reasons for judgment – Where there is no error in the trial judge’s assessment of the relevant evidence or these issues – Where the trial judge did not make a finding that the respondent was the child’s primary attachment figure and thus the appellant’s complaints as to this finding must fail – Where the appellant did not provide any evidence as to the respondent’s willingness to usurp the parental relationship between her previous foster child and the child’s mother and thus this issue was adequately dealt with by the trial judge – Where there is no substance in the assertion that the trial judge made contradictory findings on the same evidence – Where there is no substance in the complaint that the trial judge did not address each parent’s attitude to the other regarding the child – Where the trial judge provided specific reasons for rejecting the orders sought by the appellant – Where the trial judge demonstrated ample consideration of the proposals of each of the parties – Where the appellant did not agitate the issue of family violence at trial and cannot now seek to agitate it on appeal – Where the trial judge’s reasons reflect careful consideration of future aspects concerning the child and adequately dealt with those to the extent to which she could be reasonably expected to – Where the trial judge’s path to determining the time the child should spend with the father was amply explained – Where there is no substance in the appellant’s complaint that the single expert relied upon undisclosed extrinsic evidence in formulating his opinions – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – RE-OPENING – Where the appellant made two separate applications to re-open the hearing of the appeal – Where the appellant sought to admit an affidavit of a friend as to the alleged distress of the child when transitioning from the father’s care to the mother’s care – Where this was a live issue at final trial – Where this evidence was only sought in first application filed by the appellant – Where the appellant claimed that two social science articles should be admitted into evidence to demonstrate that the opinions and evidence of the single expert were fundamentally flawed and inaccurate – Where the appellant contended for a selective approach of the single expert’s evidence which would omit any evidence which was unfavourable to him – Where it was open to the trial judge to find that the appellant did not wish for the single expert to be recalled about this evidence – Where the trial judge considered that to admit the evidence would be prejudicial to the mother by causing further delay and cost – Where the trial judge did not elevate the prejudice to the mother above all other considerations – Where the trial judge correctly identified the relevant principles to be applied on an application to re-open the evidence – Where the trial judge correctly identified the relevant considerations as to the admissibility of social science research – Where the trial judge was well-placed to consider the relevance of the social science research to the outcome of the case – Where the social science research would not have the effect contended for by the appellant – Where the single expert’s opinions were based on the particular and unique circumstances of the case – Where it is not open to the appellant to challenge prior decisions which are not the subject of appeal –Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – Where it is appropriate in the circumstances that the appellant be granted leave to appeal orders out of time – Application allowed – Where orders sought were overtaken by the hearing of the appeal – Where the appellant misapprehends the nature of the appeal process – Where the orders sought would only apply if the court was to re-exercise the discretion – Where the court is not satisfied the discretion should be re-exercised – Where the orders sought are interrogatories and fishing questions of each member of the court and are not bona fide, legitimate or relevant – Where the appellant seeks to re-open the hearing of the appeal on the basis of actual or apprehended bias – Where this is not a new issue – Where there is no basis to re-open the hearing of the appeals – Where the appellant sought to re-open the hearing of the appeals on the basis of fresh evidence which he argued went to the status, opinions, conclusions, advice and recommendations of the single expert – Where the fresh evidence does not raise any doubt in this regard – Where there is no merit in this application – Where the appellant sought to adduce a variety of irrelevant material – Where there is no basis to allow this evidence to be adduced – Applications dismissed.

    FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – Where costs ought follow the event – Where neither appeal had any merit – Costs granted – Where parties to provide submissions as to costs of two Applications in an Appeal.

  • Lane & Lane [2016] FamCAFC 53

    14 Apr 2016

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Consent order – Where the appellant wife seeks to set aside consent orders made in 2003 – Whether the wife’s consent to the orders was obtained by duress – Where the husband deliberately suppressed evidence of the value of the parties’ assets – Whether the wife knew the value of the parties’ assets at the date of the orders – Where there was a miscarriage of justice – Where the trial judge adopted a flawed approach to s 79A and thereby erred in law – Where the value of the wife’s entitlement under the consent orders was incorrectly determined – Where error in calculation of the wife’s entitlement was immaterial – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the husband sought that the wife pay his costs of and incidental to the appeal if the appeal failed – Where some challenges were successfully made out – Where it is appropriate that each party bear their own costs.

  • Shepherd & Stevenson [2016] FamCAFC 52

    14 Apr 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the appellant sought an extension of time in which to file an appeal – Where the appeal lacked merit – Where the application was dismissed – Where the respondent seeks costs from the appellant – Whether costs should be awarded on a party and party basis or an indemnity basis – Where the circumstances do not justify the award of costs on an indemnity basis – Where the appellant is ordered to pay the respondent’s costs as agreed or in default on a party and party basis.

  • Fraser & Bancroft [2016] FamCAFC 51

    23 Mar 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks an extension of time to appeal against an order listing an application for interim property orders for hearing and issue of subpoena – Application refused.

  • SCVG & KLD and Anor [2016] FamCAFC 50

    08 Apr 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to further amend grounds of appeal – Rule 22.09 of the Family Law Rules 2004 (Cth) – Where the appeal books and summary of arguments have been filed – Where each respondent would suffer prejudice having to address new grounds of appeal – Where the appellant is self-represented – Where prejudice may be remedied by a costs order – Application allowed. 

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to adjourn the substantive appeal hearing and “un-consolidate” the hearing of both appeals – Where there are two appeals and one is not a substantive appeal – Where the appeal books and summary of arguments have been filed – Where the appellant seeks the adjournment to obtain legal representation – Where the appellant wants the appeals heard separately because of medical issues and absence of legal representation – Where no evidence is provided of efforts to obtain legal representation and where the appellant has been able to manage many litigious matters over a number of years – Where the date for the appeals to be heard was agreed by the parties before the primary judge and where specific stay orders were made conditional upon that date – Where each respondent would suffer substantial prejudice – Where vacating dates would unnecessarily waste court resources – Applications refused. 

    FAMILY LAW – COSTS – Where the first respondent seeks the issue of costs to be reserved to the Full Court hearings – Where the second respondent seeks costs in circumstances of the appellant’s conduct and where two applications were wholly unsuccessful – Where the appellant resists any order for costs – Where there was no evidence before the court of the parties financial circumstances – Where it is appropriate to reserve the issue of costs to the Full Court.

  • Thompson & Berg (No. 2) [2016] FamCAFC 49

    24 Mar 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks an expedited hearing of his appeal against enforcement orders for the settlement of property – Where the husband’s four previous appeals against the original property settlement orders and related enforcement orders were dismissed with costs – Where there are orders in place for the husband to provide vacant possession of the parties’ jointly owned property by 31 March 2016 – Where if the husband’s application for expedition is not granted the appeal would be rendered nugatory – Where the husband’s appeal against the enforcement orders, if successful, would have no effect on his obligations imposed under the original property settlement orders or subsequent enforcement orders which he challenged unsuccessfully – Where the husband did not establish facts which would justify his appeal being given priority to the possible detriment of other cases – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks an order for the provision of transcripts at the Court’s expense – Where the husband made a similar application in his first appeal and the Full Court set out the principles by which such applications are determined – Where the husband failed to establish the matters which the Court must consider in applications of this type – Application dismissed.

  • Bondelmonte & Bondelmonte [2016] FamCAFC 48

    08 Apr 2016

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

    FAMILY LAW – APPEAL – CHILDREN – per RYAN AND ALDRIDGE JJ – Where children retained in United States after travelling there for a holiday – Where retention in breach of order for equal shared parental responsibility – Where the father appeals against interim orders which require him to return the children to Sydney pending determination of whether the children are permitted to relocate to the United States – Where children, aged almost 15 and almost 17, express desire to stay in the United States – Whether the trial judge failed to consider and evaluate the relevant statutory considerations – Whether the trial judge gave adequate weight to the views expressed by the children – Consideration of living arrangements on the children’s return – Whether the orders made by the primary judge were in the best interests of the children – Where the primary judge did not err in the exercise of his discretion – No appellable error established – Appeal dismissed.

    FAMILY LAW – APPEAL – CHILDREN – per LE POER TRENCH J – Where there is a conflict between public policy and children’s best interests – Where it is unclear if the father would return with the children if they are ordered back – Where the mother proposed that the children live with non-parents in Australia – Where there is insufficient evidence as to the proposed living arrangements in Australia – Where there was no evidence as to the wishes of the children aged almost 17 and almost 15 – Least Detrimental Alternative – Legislative pathway as set out in Goode & Goode – Whether the matter was urgent at the time of the hearing – Appeal should be allowed.

    FAMILY LAW – APPEAL – COSTS – Where the father was wholly unsuccessful on appeal – Where the mother sought that the father pay her costs on an indemnity basis – Where the proceedings were necessitated by the failure of the father to comply with previous orders – Where father to pay the mother’s costs of the appeal and of the Independent Children’s Lawyer– Whether costs should be ordered on an indemnity or party/party basis – Where circumstances may justify an order for indemnity costs – Parties directed to file material addressing r 19.08(3) of the Family Law Rules 2004.

  • Harrell & Hancock-Harrell [2016] FamCAFC 47

    16 Mar 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the father filed three Applications in an Appeal seeking to adduce further evidence and dispense with the requirement to file and serve a transcript of the proceedings below – applications granted insofar as it relates to the transcripts and evidence of the father’s psychiatric records. 

    FAMILY LAW – APPEAL – CHILDREN – CONTRAVENTION – where the trial judge dismissed the father’s contravention applications – where the alleged contraventions were in relation to statutory provisions rather than orders – where the father argued the trial judge misinterpreted the heading to Division 13A of Part VII of the Family Law Act 1975 (Cth) – where the Full Court rejected the appellant’s submission – appeal dismissed. 

    FAMILY LAW – APPEAL – CHILDREN – INTERIM PARENTING ORDERS – where the father appeals against interim parenting orders that child live with the mother and spend supervised time only with the father – where no merit in any of the grounds of appeal – appeal dismissed – no order for costs.

  • Wrensted & Eades [2016] FamCAFC 46

    04 Apr 2016

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

    FAMILY LAW – APPEAL – COSTS – Where the appellant’s pre-trial conduct plainly justified an order for costs in favour of the respondent – Where there was no failure by the trial judge to abide by the principles in Div 12A of Part VIII of the Family Law Act 1975 (Cth) in considering the appellant’s pre-trial conduct – Where it was proper for the trial judge to take into account that the appellant was wholly unsuccessful when making an order for costs in favour of the respondent – Where there was no error in the trial judge considering the respondent’s offer to settle in circumstances where it could not be said that such an offer was unreasonable – Where to apply a distinction between categories of family law cases in exercising the wide discretion to order costs would place a fetter on that discretion which has no legislative basis – Where to the extent that the majority in Hawkins & Roe [2012] FamCAFC 77 suggests that certain features need to be present in a parenting dispute (as distinct for example from a property dispute) before a costs order can be made, this court respectfully disagrees – Where the trial judge was justified in making an order for costs against the appellant extending to the entirety of the proceedings – Where the trial judge’s decision was not unreasonable or plainly unjust – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where there were plainly circumstances justifying an order for costs – Where the appellant was wholly unsuccessful – Costs granted.

  • Elford & Elford [2016] FamCAFC 45

    29 Mar 2016

    FAMILY LAW – APPEAL – PROPERTY – contributions – lottery win – whether the trial judge erred in treating the lottery win during the course of the marriage as a special contribution by the husband – where the parties kept their assets and finances separate – where no error established – appeal dismissed.

  • Madden & Callenan [2016] FamCAFC 44

    24 Feb 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite an appeal against interim parenting orders – Where unless the appeal is expedited it is possible that the proceedings at first instance will be heard before the appeal can be finalised – Where the case at first instance is well advanced and will result in a determination of the contested factual matters – Whether the matter should be afforded priority to the detriment of other cases – Where the appeal is against a discretionary judgment – Application dismissed.

  • X Corporation Pty Ltd & Jess and Anor [2016] FamCAFC 43

    24 Mar 2016

    FAMILY LAW – APPEAL – Interlocutory orders – Where the appellant seeks leave to appeal – Where the trial judge found that legal professional privilege did not apply to certain documents – Where the trial judge made orders for the production of the documents –Evidence Act 1995 (Cth) – Whether the trial judge erred in finding that, to the extent there was a joint privilege held by the husband and the appellant, the husband alone could waive it – Where the trial judge was invited to inspect the documents – Whether the trial judge erred by failing to give reasons for not inspecting the documents – Where the trial judge erred in drawing a Jones v Dunkel inference –Whether the appellant was materially distinguishable from the husband – Whether the errors asserted affected the outcome of the proceedings – Appeal dismissed.

  • Lorreck & Watts (No. 2) [2016] FamCAFC 42

    23 Mar 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against final parenting orders which permitted the father to take the children to Europe for a holiday and dismissed her application that the Court hold the children’s passports and transfer the proceedings to the Cairns Registry of the Federal Circuit Court – Where children holidayed in Europe and returned to Australia as planned – Where the parties agreed that the primary judge determine the applications in chambers in Canberra – Where as a consequence of the making of final parenting orders there were no proceedings to transfer – Where the mother did not formulate her remaining grounds in a manner which could establish an error of law– Appeal dismissed – No order as to costs.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the father sought on appeal that a vexatious proceedings order be made per s 102QB of the Family Law Act 1975(Cth) – Where such an order was not sought at first instance – Where the mother opposes the making of such an order on the basis that her conduct does not meet the requirements of s 102QB of the Act – Whether a Court exercising appellate jurisdiction is invested with power pursuant to s 102QB to make, in the first instance, a vexatious proceedings order – Where the father failed to establish the elements required in s 102QB – Application dismissed.

  • Nevill & Nevill [2016] FamCAFC 41

    17 Mar 2016

    FAMILY LAW – APPEAL – PROPERTY – forum – where property applications made in Australia and in New Zealand – application for stay of Australian proceedings under Trans-Tasman Proceedings Act 2010 (Cth) – where correct test is “more appropriate forum test” not the common law “clearly inappropriate forum” test – where the trial judge determined that New Zealand is the more appropriate forum to determine the dispute – consideration of factors identified in s 19(2) of the Trans-Tasman Proceedings Act 2010 (Cth) – where no merit found in any of the grounds of appeal – appeal dismissed – costs ordered.

  • Selwood & Selwood [2016] FamCAFC 40

    21 Mar 2016

    FAMILY LAW – APPEAL – PROPERTY – Where it was not open to the appellant to cherry pick the evidence to suggest the trial judge failed to use the advantage she had in assessing the credit and reliability of the parties and their witnesses – Where the nexus between the appellant’s evidence and the trial judge’s adverse credit findings in relation to the appellant was readily apparent – Where the delay in finalising the matter did not demonstrate error in the trial judge’s assessment of the appellant’s evidence – Where the trial judge gave specific reasons for accepting or rejecting the evidence of particular witnesses – Where there is no basis for asserting that the delay in finalising the matter prevented the appellant from receiving a fair hearing – Where delay of itself does not indicate that a trial has miscarried or that a decision is unsafe – Where it was not demonstrated that any delay has affected the trial judge’s decision – Where no issue of estoppel arose because the consent orders only determined the dispute between the interveners and the parties but not the dispute between the parties – Where the principle of res judicata does not apply because there was no suggestion of re-litigating the same issue – Where there was no error by the trial judge in permitting the wife to agitate matters relating to the claims and counter claims between the interveners and the parties, or in making findings based on that evidence – Where it was readily apparent that the trial judge appropriately identified and weighed all of the appellant’s contributions – Where there was no double-counting by the trial judge – Where it was not open to the trial judge to take into account the appellant’s alleged failure to maintain the mortgage – Where this error does not warrant appellate interference – Where there was ample evidence to justify a finding that the appellant had failed to adequately disclose his true financial position – Where there was no issue of procedural fairness in relation to the orders providing for the respondent to retain the former matrimonial home – Where the trial judge’s pathway for making this order was apparent – Appeal dismissed.

    FAMILY LAW – COSTS – Where costs should follow the event – Where the appeal was dismissed – Costs order in favour of the respondent – Where part of the appeal was allowed by consent – Where there should be no costs in relation to that part of the appeal – Where that part of the appeal was allowed on a question of law – Costs certificates ordered.

  • Bateman & Bowe [2016] FamCAFC 39

    21 Mar 2016

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant is bound by the way in which he presented his case before the trial judge – Where the appellant sought that a development property be included in the asset pool at trial, and thus it was not open to him on appeal to suggest otherwise – Where the trial judge was not in error in adopting an agreed pre-completion value for the development property where there was no value otherwise asserted – Where there was no error in the trial judge taking the value of the development property and its relative liabilities as at the date when the value of the assets and liabilities were struck – Where it would be illogical to include the development property at its pre-completion value, but exclude the liabilities incurred to bring the property to that value – Where there was no evidence which would indicate the trial judge was in error in his treatment of the development property – Where the trial judge clearly identified, considered and weighed the appellant’s contributions – Where there was no error by the trial judge in determining that the respondent made a greater contribution to the development property – Where there was no error by the trial judge in finding that the appellant made an indirect contribution to the development property – Where the trial judge clearly considered the greater income of the appellant and the appellant’s financial contributions post-separation – Where there was no error by the trial judge in how he treated the non-disclosure of the respondent – Where there was no error in the trial judge accepting the existence of a debt to third parties – Where there was no error by the trial judge in making the adjustment that he did pursuant to s 90SF(3) of the Family Law Act 1975 (Cth) – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where neither party sought to pursue their application in an appeal – Applications in an appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Order for costs in favour of the respondent.

  • Monfort & Bade [2016] FamCAFC 38

    17 Mar 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to file out of time an amended Notice of Appeal for each appeal and a summary of argument for each appeal – Where the orders the subject of appeal provided for the sale of certain properties – Where the appellant concedes to consenting to orders for the sale of property – Where the orders do not characterise the source of power permitting such orders – Where the orders sought by the appellant on appeal are the subject of applications before the primary judge – Where the appellant provides an adequate explanation for the delay, little merit in the appeals and prejudice is caused to the respondent – Application dismissed. 

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where there is little merit in the existing appeals and no summary of argument was filed on time – Where the orders are interlocutory in nature – Leave to appeal refused.

  • Morley & Morley [2016] FamCAFC 37

    16 Feb 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file appeal books – Where subsequent to the filing of the application the solicitor for the appellant contacted the parties and indicated a Notice of Discontinuance would be filed – Where the Notice of Discontinuance was never filed – Where attempts were made to contact the appellant without success – Where the appellant failed to attend the hearing of the application – Application dismissed – Where by virtue of the application for an extension of time being dismissed and r 22.21 of the Family Law Rules 2004 (Cth) the appeal is deemed abandoned.

    FAMILY LAW – APPEAL – COSTS – Where the respondent sought an order that the appellant pay his costs of the application in appeal – Where the appellant is not present and it is appropriate to proceed on the basis that the application for costs would be opposed – Costs ordered against the appellant fixed in the amount of $500.

  • Calder & Calder [2016] FamCAFC 36

    11 Mar 2016

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the husband appealed findings concerning the value of livestock – Appeal conceded – Where the wife cross-appealed – The trial judge did not err in adopting a two-pool approach without notice – The trial judge did not err in deciding not to divide livestock in specie – The trial judge’s reasons were inadequate because it was not clear whether his Honour had taken into account the wife’s post-separation debt in assessing contributions – The trial judge erred by adding back some of the wife’s paid legal costs but not the husband’s – Cross-appeal allowed in part – On the re-exercise of the discretion, the property was divided in the same proportions as found by the trial judge. 

    FAMILY LAW – APPEAL – PRACTICE & PROCEDURE – Parties should be in a position to properly address the question of whether any error found on appeal can be remedied by the Full Court re-exercising the discretion – In case the Full Court is minded to re-exercise, parties should at least be able to advise of material changes in circumstances since trial that need to be the subject of further evidence.

  • Bant & Clayton (Costs) [2016] FamCAFC 35

    09 Mar 2016

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

    FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – COSTS – Where the applicant seeks costs on an indemnity basis as a result of the respondent discontinuing an Amended Application in an Appeal – Where the applicant’s superior financial situation should not stand in the way of a costs order being made if otherwise appropriate – Where the respondent claims that the application was discontinued because a controversy had arisen and she was not in a financial position to continue with the litigation – Where the respondent’s conduct in discontinuing the proceedings in the circumstances that she did provides the necessary justification for an order for costs to be made – Where a costs order should be made in favour of the applicant – Where there are no exceptional circumstances demonstrated by the applicant which would justify an order for costs being made on an indemnity basis – Where the costs should be assessed in default of agreement to provide the respondent with the opportunity to challenge the items claimed – Costs ordered in favour of the applicant to be assessed on a party/party basis in default of agreement.

  • Medlow & Medlow [2016] FamCAFC 34

    08 Mar 2016

    FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Appeal against interlocutory orders – Consideration of Niemann v Electronics Industries Ltd [1978] VR 431 and Jess and Ors & Jess and Ors (2014) FLC 93-620 – Where Full Court of the Family Court of Australia adopts a new test to be applied in applications for leave to appeal under s 94AA of the Family Law Act 1975 (Cth) – Whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused – Leave to appeal granted.

    FAMILY LAW – APPEAL – PROPERTY – INTERIM – Where the respondent is involved in ongoing litigation which will affect the assets of the parties – Where the respondent has significant ongoing legal expenses – Where the respondent was granted an interim property order for a disbursement of $2.9 million – Where the respondent was restrained by Family Court of Australia orders from dealing with certain property – Where the respondent’s share of proceeds of sale from an asset were frozen to meet the respondent’s obligations in another case  – Where the appellant argued that the $2.9 million disbursement would therefore come from her property – Whether the primary judge failed to determine the source of power supporting the orders made – Whether the primary judge erred by making orders which have a real prospect of depleting the property of the parties – Whether the primary judge failed to give sufficient weight to previous breaches of orders –  Appeal allowed - Where the funds advanced fully disbursed  – Where the orders of the primary judge are discharged.

    FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant made an oral application for a stay of the orders for payment of the funds to the respondent and for interim property orders preventing the respondent from dealing with property – Where the funds were expended following hearing of the appeal – Where there is no utility in the proposed appeal – Application dismissed.

    FAMILY LAW – COSTS – Where the appellant sought an order for costs if the appeal was allowed –Where the respondent submitted he was not in a position to pay costs – Where impecuniosity is not, of itself, a bar to a costs order – Where there is evidence that the financial circumstances of the parties are in the category of high asset worth – Where the respondent has been wholly unsuccessful in the appeal – Where the respondent has breached Family Court of Australia orders – Where the respondent is to pay the appellant’s costs of the appeals.

  • Finch & Shibo [2016] FamCAFC 33

    26 Feb 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to file proposed Notice of Appeal out of time – Where the orders the subject of the application were made over two years ago – Where the applicant has previously filed Notices of Appeal against those orders and subsequently discontinued those appeals – Where there is no explanation for the delay and no merit in the proposed Notice of Appeal – Application dismissed. 

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to consolidate and expedite the hearing of two appeals – Where one of the appeals is already listed for the next available sittings – The two appeals will be consolidated and heard together in the next available sittings – Application dismissed.

  • Higgins & Higgins [2016] FamCAFC 32

    04 Mar 2016

    FAMILY LAW – PROPERTY SETTLEMENT – APPEAL – Valuation of a business – where there were two competing valuation methodologies leading to significantly different valuations – where one valuation was on the basis of a sale on an open market and the other was on the basis of the capitalisation of maintainable profits – where the trial judge found the latter was appropriate – no error found.

    FAMILY LAW – PROPERTY SETTLEMENT – APPEAL – “Addbacks” including money taken at separation by the husband to repay a loan to his mother and also the funding of the husband’s legal fees – where there was a concession by the husband’s counsel that the husband unilaterally paid money to his mother after separation from a line of credit – money added back to the list of assets – no error found – where the husband asserted his mother had then repaid him the money he had given her for him to pay his legal fees – no evidence to corroborate such assertion – legal fees added back by the trial judge – no error found.

    FAMILY LAW – PROPERTY SETTLEMENT – APPEAL – Section 75(2) factors – matter of weight – whether the trial intended the percentage to be added to the wife’s entitlement or to reflect the difference between the parties’ ultimate entitlements – decision of the trial judge unequivocal – no error found.

    FAMILY LAW – APPEAL – COSTS – circumstances justifying order – where the appeal had been abandoned and subsequently reinstated – where necessity for application to reinstate appeal arose partly due to issues of the appellant’s solicitor ceasing to act without informing him – no order made.

    FAMILY LAW – APPEAL – COSTS – where appellant wholly unsuccessful – consideration of s 117(2A) – costs ordered against the appellant.

  • Ghazel & Ghazel and Anor [2016] FamCAFC 31

    04 Mar 2016

    FAMILY LAW – APPEAL – where the husband and wife were married in Iran under Iranian law which permits a husband to take three additional wives – where the wife sought a declaration that the marriage is recognised as valid in Australia under Part VA of the Marriage Act 1961 (Cth) – where such a declaration was refused by the primary judge on the basis that amendments made to the Marriage Act in 2004 prevent the recognition in Australia of a potentially polygamous marriage – where the wife appealed the primary judge’s decision – where at the invitation of the Full Court the Attorney-General intervened to argue that theMarriage Amendment Act 2004 (Cth) did not prevent the recognition of potentially polygamous marriages in Australia – appeal upheld – orders set aside – declaration of validity made – no order for costs – costs certificates made

  • Grefeld & Grefeld and Anor (Costs) [2016] FamCAFC 30

    02 Mar 2016

    FAMILY LAW – APPEAL AGAINST COSTS ORDERS – Where the trial judge made an order for costs in favour of a third party in property proceedings between husband and wife – where the wife appealed – where the Full Court upheld the trial judge’s orders accepting that costs orders are particularly within the discretion of a trial judge especially in circumstances where the challenge to the costs orders was based upon the contents of documents before the trial judge – appeal dismissed.

  • Reeves & Grinter [2016] FamCAFC 29

    01 Mar 2016

    FAMILY LAW – APPEAL – CHILDREN – Application for expedition of appeal – Where the father seeks to expedite an appeal against final parenting orders – Where the child has significant intellectual and behavioural issues – Where the child has primarily lived with the mother and spent limited time with the father – Where the single expert’s recommendation was not followed by the trial judge – Where the father relies upon the single expert’s recommendation – Whether a case should be given priority to the detriment of other cases – Where the matter does not justify priority to the detriment of other cases – Application dismissed.

  • Linden & Templeman [2016] FamCAFC 28

    29 Feb 2016

    FAMILY LAW – APPEAL – DIVORCE – Where the wife argued that the parties’ relationship had continued notwithstanding they no longer lived together – Where the court was satisfied that the parties had separated pursuant to s 48(2) of the Family Law Act 1975 (Cth) – Appeal dismissed.

  • Geer & Bilson [2015] FamCAFC 250

    14 Dec 2015

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks to expedite an appeal against final property orders – Whether a case should be given priority to the detriment of other cases – Where the wife opposes the application for expedition – Where the application is dismissed.

  • Pencious & Searle [2016] FamCAFC 27

    26 Feb 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFY – Where the husband sought an order disqualifying the Honourable Justice Strickland from further hearing these matters – Where the husband has not satisfied the test as it applies to apprehended bias – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the husband seeks an extension of time to appeal orders dismissing the joinder of the wife’s parents to the property settlement proceedings, and ordering that the husband pay the wife’s costs – Where there is no adequate explanation by the husband for the delay after May 2013 in bringing the application – Where the proposed appeal against the orders dismissing the joinder application is futile – Where there is no merit in either of the proposed appeals – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the husband seeks an extension of time to appeal against orders for costs made consequent upon the dismissal of his application to restrain the wife’s solicitor and his legal firm from acting for her – Where the husband asserts that information has come to light since the proceedings concluded which show that his application should not have been dismissed and he should not have had a costs order made against him – Where the husband has unsuccessfully raised these matters previously – Where the proceedings have concluded – Where it is not open to the husband to now pursue those claims via a challenge to the costs orders – Where there is no merit in the proposed appeal – Where no error appealable or otherwise by the trial judge is raised in the draft Notice of Appeal – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REVIEW DECISION OF APPEAL REGISTRAR – Where the Appeal Registrar refused to accept for filing an application by the husband insofar as it sought an extension of time to appeal orders dismissing the husband’s application that the wife’s solicitor and his legal firm be restrained from acting for her – Where an application by the husband to reinstate a Notice of Appeal against those orders had been previously dismissed – Where the husband asserted that the application was a different application because it sought an extension of time and not reinstatement – Where the nature of the applications are the same and the facts relied on do not raise anything new – Where there is no merit in the proposed appeal – Where the proposed appeal is futile – Where it would be an abuse of process to allow the application to be filed – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the wife seeks that the husband pay her costs of the application of the husband to reinstate the abandoned Notice of Appeal – Where the husband opposes the application and seeks an order for costs in his favour – Where there is no basis for making an order for costs in the husband’s favour – Where there are clearly circumstances which justify an order for costs being made in the wife’s favour – Where the husband asserts that his poor financial circumstances as compared with the wife’s financial circumstances should prevent an order for costs being made – Where impecuniosity is no bar to an order for costs – Husband’s application seeking costs dismissed – Costs ordered on a party/party basis in favour of the wife with such costs to be assessed in default of agreement.

  • Luo & Liew [2016] FamCAFC 26

    25 Feb 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against final parenting orders – Where the mother lives in Melbourne and the child lives in Sydney – Where the child has been living with the father since 2009 – Whether the trial judge gave insufficient weight to the child’s views and health – Where the child has indicated a desire to live with both parents – Where the mother submits that the child is at risk of psychological harm while living with the father – Where these submissions were not before the trial judge – Where the findings of the trial judge were open to his Honour – Appeal dismissed.

  • Madin & Palis (Costs) [2016] FamCAFC 25

    24 Feb 2016

    FAMILY LAW – APPEAL – COSTS – where the Full Court ordered that each party bear their own costs of the appeal – where the Full Court found that an offer for settlement relied on by the applicant for costs could not be relied on because it impliedly purported to confer jurisdiction on the Court – where although the respondent was ultimately wholly unsuccessful the main appeal raised a novel issue to which there was no existing authority – where the Full Court reiterated that orders for indemnity costs would only be made in the most extreme cases, because the primary rule in this jurisdiction is that each party bear their own costs – no orders for costs.

  • Masoud & Masoud [2016] FamCAFC 24

    24 Feb 2016

    FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals against property settlement, spousal maintenance and child support departure orders – Where the trial judge incorrectly found that the husband failed to disclose certain financial documents – Where the trial judge incorrectly concluded that the husband had access to undisclosed assets – Whether a sum of $800,000 advanced by the wife’s parents to her was a gift or a loan – Whether the sum ought to have been taken into account as a liability of the wife – Whether the trial judge ought to have drawn a Jones v Dunkel inference due to the unavailability of the wife’s parents for cross-examination – Where the trial judge incorrectly characterised certain other payments to the wife as liabilities and thereby erred in his determination of the balance sheet – Where the trial judge ignored significant financial contributions of the husband – Whether the parties were denied procedural fairness by the trial judge’s failure to adopt their suggested approach to “add backs” – Where the trial judge failed to provide reasons for his spousal maintenance orders, failed to consider the husband’s capacity to pay the amount ordered and failed to take into account the significant cash sums and investment properties the wife received under the property orders – Where the trial judge failed to first determine the issue of child support where both parties sought a departure from the assessed amount – Where the trial judge failed to provide reasons for his determination of what constituted the children’s “reasonable needs” – Where the trial judge failed to consider the wife’s capacity to contribute to the support of the children and failed to consider the husband’s capacity to support them – Appeal allowed.

  • SCVG & KLD (No. 2) [2016] FamCAFC 23

    24 Feb 2016

    FAMILY LAW – APPEAL – Application to extend time to appeal – Where final parenting orders were made after ten years of litigation – Where the final orders provided for no face-to-face contact between the father and the children – Where the trial judge ordered that the father be restrained from bringing further parenting applications without leave – Where the father’s proposed Notice of Appeal was filed seven months out of time – Where the father contends the delay was caused by his involvement in multiple other proceedings – Where the proposed appeal is not futile but the reason for the delay is not adequate and the mother and children would suffer prejudice if the application is allowed – Application dismissed.

    FAMILY LAW – APPEAL – Leave to appeal – Application to review a decision of a Registrar – Where the father was ordered to pay the mother’s costs in previous proceedings – Where those costs were assessed by a Registrar pursuant to Rule 19.31 of the Family Law Rules – Where there was no objection to the Registrar’s preliminary assessment – Where the costs order was made in accordance with the Rules – Where no application was made to a judge for a review of the Registrar’s decision – Where the application is incompetent – Application dismissed.

  • SCVG & KLD [2016] FamCAFC 22

    24 Feb 2016

    FAMILY LAW – APPEAL – DISQUALIFICATION – Where the applicant made an oral application that the presiding judge disqualify herself from hearing the during the applications in an appeal – Where the applicant alleges apprehended bias because the judge had previously presided on a Full Court which dismissed an appeal– Where the test for apprehended bias is not made out – Application dismissed.

  • Blanding & Blanding [2016] FamCAFC 21

    24 Feb 2016

    FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the mother has been the primary carer of the parties’ three children – Where the trial judge made an order for equal shared parental responsibility – Where the father sought orders for equal time – Where the trial judge made orders permitting the mother to relocate with the children from Sydney to the Central Coast – Whether the trial judge correctly applied s 65DAA of the Family Law Act 1975 (Cth) – Whether the trial judge, having decided that an order for equal time was not in the best interests of the children, was obliged to separately consider an order for substantial and significant time where such an order was not sought by the father – Whether the trial judge gave too much weight to the issue of the mother’s happiness and her financial circumstances – Appeal dismissed.

  • Thompson & Berg [2016] FamCAFC 20

    19 Feb 2016

    FAMILY LAW – APPEAL – Appeal against orders made for enforcement of final property orders – Further appeal against orders refusing a stay of the enforcement orders made – Appellant seeking to re-litigate issues that have previously been finally determined – Whether trial judge erred in the exercise of the discretion to make enforcement orders – No error demonstrated – Where appeal against refusal of stay of enforcement orders rendered nugatory by reason of there existing no merit in the appeal against enforcement orders – Costs – Where justifying circumstances exist for order for costs in favour of respondent.

  • George & George [2016] FamCAFC 19

    17 Feb 2016

    FAMILY LAW – APPLICATIONS IN AN APPEAL – Where there was no attendance by the applicant at the hearing – Where the history of the applicant’s conduct is relevant – Where appropriate measures were taken to inform the applicant of the hearing – Where it can be assumed that the applicant was aware of the hearing – Applications dismissed.

    FAMILY LAW – COSTS – Where the respondent sought costs on an indemnity basis – Where the applicant’s conduct in the proceedings and failure to appear to argue his own applications justified an order for costs – Where there were no exceptional circumstances justifying an order for indemnity costs – Costs awarded on a party/party basis.

  • Gull & Gull [2016] FamCAFC 18

    22 Feb 2016

    FAMILY LAW – APPEAL – where an adjustment was made by the trial judge to reflect a failure by the appellant to comply with orders which would have provided funds to the respondent at an earlier time – where the trial judge also quantified previously unquantified costs orders – principles for interfering with costs orders.

  • Redmond & Redmond and Anor [2016] FamCAFC 17

    19 Feb 2016

    FAMILY LAW – CHILD SUPPORT – APPEAL – Application for leave to appeal by the father against a decision of the primary judge to dismiss his appeal against a determination by the Social Security Appeals Tribunal (“the SSAT”) which increased the father’s liability to pay child support – where the primary judge found it was not demonstrated that there was substance to the appeal or substantive rights had been affected by an error of principle – where the mother made a departure application to the Child Support Agency on the basis of the costs of educating the child –Where the father alleges a number of instances of procedural unfairness or bias in the conduct of the hearings before the SSAT – Where the father was afforded procedural fairness – Where there was no bias on the part of the SSAT – leave refused.

    FAMILY LAW – COSTS – Where the mother and the Child Support Registrar both sought an order for costs – Where the father is a declared bankrupt – Where the father has a litigious history and the proceedings have been wholly successful – Where the mother is responsible for the full time care of the child – Where it appropriate to order the father to pay the costs of and incidental to this appeal for the mother and the Child Support Registrar.

  • Esperanza & Gimenez [2016] FamCAFC 16

    12 Feb 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks an extension of time to file an appeal – Where the application is opposed – Where there is no satisfactory explanation provided by the applicant for failing to file the appeal within time – Where the appeal has no merit and is doomed to fail – Application dismissed.

  • Dunst & Dunst [2016] FamCAFC 15

    18 Feb 2016

    FAMILY COURT – APPEAL – Hearing for dismissal for want of prosecution – Where the appellant had failed to file a Summary of Argument before the hearing – Where the appellant was informed that the appeal was listed for dismissal pursuant to the Rules – Where the appellant sought an adjournment of the appeal – Where the appellant filed written submissions subsequent to the appeal – Where the appellant had sought a supplementary report to be provided by the expert –  Whether there was insufficient evidence to support findings of there being a risk of harm to the children –  Whether the trial judge erred in the exercise of his discretion – Appeal dismissed.