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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.

  • Fulwood & Chammalee [2019] FamCAFC 235

    06 Dec 2019

    APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – Where the appeal was deemed abandoned after the father failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – application opposed by the mother – Where explanation for the delay – Where the delay was 12 minutes – Where the proposed grounds of appeal may attract appellate intervention – Where reinstatement of the appeal would not be unjust to the respondent – Application to reinstate granted.

  • Somers & Ettridge (No. 3) [2019] FamCAFC 234

    04 Dec 2019

    APPEAL – EXTENSIONS OF TIME – Where the applicant provides no satisfactory explanation for the failure to file Notices of Appeal within time – Where the proposed appeals have no prospect of success – Where there is a lack of bona fides on the part of the applicant – Where it is beyond doubt that the interests of justice demand that the application for extensions of time be dismissed – Application dismissed.

    COSTS – Where the respondent seeks costs – Orders made for written submissions to be provided by both parties.

  • Soulos & Sorbo [2019] FamCAFC 231

    03 Dec 2019

    APPEAL – PARENTING – Relocation – Appeal from parenting orders permitting the mother and child to relocate overseas – Where the Independent Children’s Lawyer supports the father’s appeal – Where the primary judge found that there was a risk of harm to the child in the father’s care, however, it was not an unacceptable risk – Where the father submitted that the primary judge’s finding as to a risk of harm was not open on the evidence – Where there was no evidence that would support a finding that the child was at risk of harm from his father – Where the expert witness did not support the child relocating overseas with the mother – Where the primary judge omitted to take into account a relevant factor and took into account a mistaken factor – Where the father submitted that the primary judge erred in considering the issue of family violence – Where the issue of family violence was a core issue and weighed greatly in the final determination – Where two grounds of appeal of substance succeeded – Where the orders must be set aside and the matter remitted for a second rehearing.

    APPEAL – COSTS – Where no order for costs was sought in the event that the appeal was successful – Where costs certificates will be granted to each of the parties for the appeal and the rehearing.

  • Goldsmith & Stinson and Ors [2019] FamCAFC 230

    02 Dec 2019

    APPEAL – PROPERTY – Where the wife appealed from property settlement orders made by a judge of the Federal Circuit Court of Australia pursuant to Part VIII of the Family Law Act 1975 (Cth) – Where the trial judge found the spouses overall entitlement was 57.5 per cent to the husband and 42.5 per cent to the wife – Where the second respondents are the executors of the husband’s late father’s estate and did not participate in the appeal – Where the wife contended the trial judge erred in principle by failing to identify and declare her equitable interest in the family home prior to adjusting the parties interests under s 79(2) of the Act – Where the wife contended the process adopted by the trial judge was flawed by the trial judge’s failure to determine the wife’s equity claim to an existing one-half beneficial interest in the family home – Where the trial judge failed to consider the wife’s application seeking a declaration under s 78 of the Act which amounted to a failure to exercise jurisdiction – Where principles in Stanford v Stanford (2012) 247 CLR 104 and Bevan & Bevan (2013) FLC 93-545 are considered – Where the trial judge failed to give adequate weight to the wife’s contributions – Where the trial judge gave inadequate reasons leading to the Full Court accepting the merits of the wife’s case were not given proper and genuine consideration – Where the adjustment made by the trial judge pursuant to s 75(2) of the Act was not made in error – Where findings open on the evidence – Where the appeal succeeds on grounds of legal error and insufficient reasons – Appeal allowed and orders set aside – Proceedings remitted to the Federal Circuit Court of Australia to be re-heard by a judge other than the primary judge.

    APPEAL – COSTS – Where the appeal is successful – Where appeal upheld for legal error and insufficient reasons – Where the appellant and the first respondent are granted costs certificates pursuant to Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the rehearing.

  • Morden & Coad [2019] FamCAFC 233

    28 Nov 2019

    APPEAL – RELOCATION – Where the trial judge made orders permitting the mother to relocate with the parties’ two children – Where that relocation resulted in the mother living 120 kilometres away from the father – Where the father had an older child from a previous relationship who was involved in the children’s lives – Where the father was involved in the children’s extra-curricular and schooling activities – Where the mother’s main reason for seeking relocation was on the grounds that she could more easily obtain better housing for herself and the children – Where the father argued the children were well settled in their school and social networks – Where the trial judge found that, whilst the children’s relationship with the father may suffer, that was not sufficient to categorise the move as not in the children’s best interests – Where the father challenged the trial judge’s statement that there were “effectively two proposals” – Where the father asserted the trial judge applied an erroneously low benchmark when considering whether to permit the mother to relocate – Where the father asserted errors of weight – Where the father’s arguments rely upon a highly selective and simplistic view of the reasoning of the trial judge which cannot be supported when the reasons are considered holistically – Where none of these grounds have any merit – Where the appeal is dismissed – Where the father is to pay the mother’s costs in a fixed sum.

  • Sargent & Selwyn [2019] FamCAFC 232

    12 Nov 2019

    APPEAL – APPLICATION IN AN APPEAL – Where the appellant father seeks to have the Independent Children’s Lawyer discharged – Best interests of a child – Where the Independent Children’s Lawyer had been discharged pursuant to orders made by the primary judge – Where the appellant father had numerous complaint concerning the Independent Children’s Lawyers conduct during the proceedings – Where the Independent Children’s Lawyer had met their obligation in regards to presenting evidence – Where the father’s claims of the Independent Children’s Lawyer being partisan towards the mother does not withstand scrutiny – Where the Full Court makes an order for the Independent Children’s Lawyer to be appointed pursuant to s 68L(2) of the Family Law Act 1975 (Cth) – Application dismissed.

  • Palumbo & Mandel [2019] FamCAFC 228

    29 Nov 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the orders made by the primary judge do not distribute the parties’ property in the stated proportions – Where errors of fact influenced the assessment of the contributions – Care of a child over the age of 18 years – Superannuation – Failure to evaluate contributions when assessing superannuation as a discrete class of property – Appealable errors established – Appeal allowed – Re exercise of discretion.

    FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Short adjournment (one day) given where a longer adjournment was sought – Discretion – Procedural unfairness not established.

    FAMILY LAW – APPEAL – COSTS – Failure to give full and frank disclosure weighs against costs order – Costs certificates granted to both the appellant and the respondent.

  • Mallory & Mallory [2019] FamCAFC 221

    28 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge made orders reversing the children’s residence so that they live with the mother rather than the father – Where the appellant father contended that the children were at risk in the care of the respondent mother – Where the mother contended that the father’s behaviour was unreasonable towards her, and the children were at risk in the father’s care –Where the father asserts that there were fundamental differences between two findings of the primary judge – Where the primary judge’s findings are different but not inconsistent – Where multiple expert witnesses were engaged in different circumstances during the proceeding – Where the father contended that it was not open for the primary judge to rely on the evidence from one of the expert witnesses – Where the father did not challenge the contented expert’s evidence at trial – Where it was open for the primary judge to consider this evidence – Where the primary judge appropriately considered the relevant sections under Part VII of the Family Law Act 1975 (Cth) and weighed the risk as alleged by each party – No appealable error – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Order made seeking a schedule of costs and submissions responding to the costs.

  • Whitcomb & Whitcomb [2019] FamCAFC 226

    27 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – Relocation – Appeal against orders allowing the mother and child to relocate from Sydney to Queensland – Where the primary judge took into account a myriad of considerations to determine what orders were in the best interests of the child – Where the primary judge gave proportionate weight to the considerations – Where the primary judge’s findings were open on the evidence – Where all ground of appeal are unsuccessful – Where the father also filed an appeal against the primary judge’s orders refusing to grant a stay of the orders allowing the mother and child to relocate from Sydney to Queensland – Where the appeal against the substantive orders is dismissed so there is no point in the appeal from the stay orders – Both appeals are dismissed – The father to pay the mother’s costs of and incidental to the appeal in a fixed sum.

  • Winship & Wrays [2019] FamCAFC 225

    27 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – Where the trial judge ordered that the child live with the maternal aunt who is to have sole parental responsibility for the child – Where the father appeals against those orders – Where the mother is deceased – Whether the trial judge should have recused herself as a result of comments made by the trial judge during cross-examination of the father – Consideration of the test espoused in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the comments made by the trial judge must be considered in their factual matrix – Where the trial judge did not err in failing to recuse herself from the proceedings – Where the trial judge’s reasons for not recusing herself are clear and adequate – Where there was no error by the trial judge in not granting an adjournment for the father to seek a writ of prohibition – Where the father was not prevented from seeking such a writ during the remaining days of the hearing or before judgment was delivered – Where the issue of family violence was one of many issues taken into account – Appeal dismissed – Father to pay the maternal aunt’s costs of the appeal in a fixed sum.

  • Kachmarik & Gebel [2019] FamCAFC 224

    27 Nov 2019

    FAMILY LAW – APPEAL – PROPERTY– Where the wife filed an Application in an Appeal seeking that the appeal be summarily dismissed due to the husband’s failure to comply with previous orders – Where a number of orders were made to enforce the orders of the primary judge – Where the husband sold, received and dissipated the proceeds of the property – Where the principles in Watson & Watson (2013) FLC 93-530 applied – Where the wife has established that the husband is in clear disobedience of previous orders – Where the Court exercises its discretion to not hear the husband in relation to his appeal – Appeal dismissed – Cost submissions ordered.

  • Jolaha & Hanas [2019] FamCAFC 223

    27 Nov 2019

    FAMILY LAW – APPEAL – INTERIM PARENTING – Where the father challenges the primary judge’s exercise of discretion – Where the father challenges the weight given to competing considerations – Where the father’s contention that the primary judge did not take into account his evidence and case fails on the basis that they were considered – Where there was no denial of natural justice in circumstances where the father filed voluminous material out of time – Where the father is bound by the conduct of his case – Appeal dismissed – The father to pay the mother’s costs of the appeal in a fixed sum.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the father sought to adduce further affidavit evidence – Where the evidence was available at the time of the hearing before the primary judge – Application dismissed

  • Kalant & Jordain [2019] FamCAFC 222

    27 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge found that the mother had a “breakthrough” leading to an order that the child primarily live with the mother – Where the appellant father argued that the “breakthrough” either had no evidentiary foundation or alternatively the trial judge did not apportion it the correct weight – Where the child’s primary attachment is with the mother – Where the Independent Children’s Lawyer filed a submitting notice and did not participate – Where no error by the primary judge in failing to order a change of residence for the child – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where there is an absence of evidence concerning the value and the appellant’s equity in the property at the commencement of the relationship – Where given the absence of evidence, it is not possible to identify the primary judge’s reasoning leading to the orders – Appeal allowed in part only in relation to Ground 5 – Property proceedings remitted – Costs certificates sought by the appellant and the respondent denied.

  • Welter & Katz [2019] FamCAFC 219

    26 Nov 2019

    FAMILY LAW – APPEAL – CHILDREN – Where many of the appellant’s grounds of appeal were a combination of assertions and/or comments dressed up as weight challenges – Where the grounds of appeal and the summary of argument do no more than provide the appellant with a vehicle to assert the correctness of his position and his beliefs which were not accepted by the primary judge – Where a careful consideration of the reasons of the primary judge and the evidence before his Honour do not reveal any appealable error – Where none of the 23 grounds of appeal have merit – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks costs as a result of the appeal being dismissed – Where the appellant opposes any order for costs primarily because of his poor financial circumstances – Where the respondent’s financial circumstances are also poor – Where the authorities are such that impecuniosity is not a bar to a costs order being made where it is otherwise justified – Where an order for costs is justified here because the appeal has been entirely unsuccessful – Costs ordered in the amount sought by the respondent.

  • Somers & Ettridge (No. 2) [2019] FamCAFC 229

    25 Nov 2019

    FAMILY LAW – APPEAL – WARRANT – REFUSAL OF STAY – Where the appellant does not seek to pursue his appeal and makes no submission in opposition to the appeal being dismissed – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks her costs on a party/party basis – Where the appeal has been wholly unsuccessful – Where the appellant makes no submission in opposition to an order for costs being made in the terms as sought – Costs ordered in the sum as sought by the respondent.

  • Rochford & Fitzhugh [2019] FamCAFC 218

    21 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – RELOCATION –Where the primary judge refused the mother’s application to relocate with the child – Whether the primary judge erred in determining that on the mother’s proposal for time there was a very high likelihood that the child’s meaningful relationship with the father would be diminished – Where the primary judge erred in proceeding on the basis that a relationship that is something less than optimal cannot be meaningful – Failure to consider mother’s proposal in light of practicalities – Where the primary judge failed to assess and evaluate the competing proposals of the parties – Where his Honour failed to consider evidence that was before his Honour – Discretion miscarried – Appeal allowed – Cost certificates ordered.

  • Rader & Rader and Ors (No. 2) [2019] FamCAFC 227

    21 Nov 2019

    FAMILY LAW – APPEAL – INTERIM PARENTING – Parenting arrangements – Where children were placed in the care of their maternal grandparents – Assessment of risk – Where a recovery order should not have been sought or granted –Where the father was denied procedural fairness by not being afforded the opportunity to meet the ICL’s proposal that the children live with the maternal grandparents – Appeal allowed and orders set aside – Where the best interests of the children are served by them returning to live with the father until the rehearing, subject to the conditions recommended by the single expert – Where the father is to have parental responsibility – Where no orders are made for time with the mother – Costs certificates ordered for the appellant and respondents for the appeal and the rehearing of the matter – No costs certificates ordered for the ICL.

  • Adderley & Heybourne [2019] FamCAFC 217

    21 Nov 2019

    FAMILY LAW – PROPERTY – Where during the relationship the parties operated a company together as directors – Where following separation the husband operated a new business as sole director – Where the wife says she was excluded from the operation of the business after separation – Where the wife’s grounds of appeal attack the substantive exercise of the primary judge’s discretion –Where an adjustment of 25 per cent in favour of the wife was not made in error – Appeal dismissed – Order that the wife pay the husband’s costs as assessed.

  • Cimorelli & Wenlack [2019] FamCAFC 212

    08 Nov 2019

    FAMILY LAW – APPLICATION IN AN APPEAL FOR EXPEDITION – Parenting – Where the mother filed three separate appeals that all concern an order made by the primary Judge on the first hearing date in October – Where there is nothing to persuade the Court that these appeals should be expedited to the possible determinant of other appeals – Where the application for expedition is untimely – Where the parties are still awaiting the primary judges reasons from the interim parenting matter recently heard which may render the appeals pointless – Application dismissed – All three appeals ordered to be consolidated into one.

  • Prescott & Finley [2019] FamCAFC 211

    08 Nov 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant requires an extension of time – Where the applicant was incarcerated at the time the judgment was delivered –Where the applicant failed to receive a copy of the judgment – Where no current Notice of Address for Service was filed by the applicant – Where the applicant was three months late in filing the appeal – Application dismissed.

  • Emmert & Quarto [2019] FamCAFC 208

    07 Nov 2019

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the respondent made an application for a property settlement order four months out of time – Where the respondent was granted leave to commence the proceedings out of time – Where the appellant appeals the primary judge’s orders – Where the respondent contends that leave to commence the proceedings was never required – Consideration of s 44(6) of the Family Law Act 1975 (Cth) – Where the respondent’s application for a property settlement order was brought within time – Where leave was not required – Whether the primary judge’s order can be amended by reference to the “slip rule” – Whether the order made reflected the primary judge’s intention – Where the order made reflected the primary judge’s intention – Where the primary judge’s order are set aside – Appeal dismissed.

  • Laremore & Speidell [2019] FamCAFC 215

    19 Nov 2019

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appellant contends that the primary judge did not adequately explain the law to him, as a self-represented litigant in the court below – Consideration of Re F: Litigants in Person Guidelines (2001) FLC 93-072 – Whether the primary judge erred in failing to explain to the appellant the consequences of evidence being accepted if it was not cross examined on – Where the appellant was legally represented up until the day before trial – Where the failure of the primary judge to explain the consequences of not challenging expert evidence in cross examination did not deprive the appellant of a fair trial – Challenges not made out – Appeal dismissed – Appellant to pay respondent’s costs.

  • Arthurman & Arthurman [2019] FamCAFC 214

    19 Nov 2019

    FAMILY LAW – APPEAL – INTERIM PROPERTY – Leave to appeal – Whether the primary judge erred by refusing the husband’s application for summary dismissal of the wife’s application for the dissolution of a trust, reimbursement of land tax associated with sale of property and indemnification against future liability – Where the wife filed a Notice of Contention – Where the primary judge found that only the wife’s application for dissolution of the trust had no reasonable prospect of success but declined to strike out part of the wife’s application as the husband had not sought that his Honour do so – Whether the primary judge’s decision was “attended by substantial doubt” to warrant granting leave to appeal – Where the husband asserted that the primary judge had made errors of fact – No error of fact found – Where even if there was an error of fact, it would not be material to the outcome of the primary judge’s decision – Where the decision of the primary judge was not attended by sufficient doubt to warrant the grant of leave to appeal – The husband has not established that he will suffer a substantial injustice if leave to appeal were refused – Leave to appeal not granted – Where the parties had agreed costs of the appeal should follow the event – Husband ordered to pay the wife’s costs of the appeal in a fixed sum.

  • Harshani & Darnith [2019] FamCAFC 213

    18 Nov 2019

    FAMILY LAW – PARENTING – Where the father seeks a discharge of the Watch List Order to facilitate travel overseas by him with the parties’ child of whom the mother has sole parental responsibility – Where the father appeals the discretionary determination refusing the application – Where the father asserts that the Court did not have regard to evidence in support of his application - Where the father did not respond to the mother’s evidence and contentions at first instance - Where the father alleges that the primary judge took irrelevant and extraneous matters into account - Where matters taken into account by the primary judge were found to be relevant and unexceptional - Where the father alleges apprehended bias on the part of the primary judge - Where the father asserted that the primary judge did not permit him to cross-examine the mother but where he did not seek to do so – Where the appeal is dismissed.

  • Bant & Clayton (No. 2) [2019] FamCAFC 200

    07 Nov 2019

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against a dismissal of an application for final property settlement and spouse maintenance orders – Where proceedings took place in Dubai – Claim of res judicata estoppel – Identity of cause of action – Where the cause of action is sufficiently analogous to that which was adjudicated in the Dubai Courts to give rise to a res judicata estoppel – Where it is contended that the primary judge erred in her conclusion that the proceedings in Dubai left open the question of property adjustment which could be considered in the Australian proceedings – Where her Honour erred in seeking a direct analogue in the Dubai law – Challenge to her Honour’s conclusion that the question of alimony had not been determined by the Dubai Court, leaving it to be litigated in the Australian proceedings – Where the wife had available to her but did not press for an order as to her rights to alimony – Wife unable to now bring a claim for spouse maintenance – Challenge successful – Appeal allowed – Wife’s proceedings for an adjustment of property and spouse maintenance orders permanently stayed – Costs certificates awarded to both parties in relation to the appeal.

    FAMILY LAW – APPEAL – Leave to appeal – Where the decision is attended to by sufficient doubt to warrant reconsideration by the Full Court – Substantial injustice – Leave to appeal granted.

  • Bant & Clayton [2019] FamCAFC 198

    05 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – Where the father appeals final parenting orders that the child’s time with him be supervised – Where the father lives overseas – Father’s attitude towards fostering a relationship with the child in a supervised setting – Emotional and physical threats to the mother by the father – Whether there exists a risk of harm that the child needs to be protected from – Risk of the child being unilaterally removed from the country and not being returned to the mother – Effect of indefinite supervision on maintaining a meaningful relationship with the father – Where the consequences of the risk materialising are serious – Assessment of risk based on facts and circumstances – Where his Honour’s conclusion as to the existence and magnitude of risk was well open on the evidence – Where his Honour correctly considered supervision of the child’s time and was conscious of the relationship between the child and the father – No error found – Appeal dismissed – Costs order made in favour of the mother.

  • Ferras & Eskrick [2019] FamCAFC 216

    01 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the father appeals against interim orders allowing the mother to relocate with the children – Where the mother made allegations of family violence and risk in documents which were filed late – Where the primary judge denied the father procedural fairness by not giving him the opportunity to respond to the mother’s allegations of family violence and risk – Where an application to adduce further evidence is allowed and contains documents that would have produced a different result had they been before the primary judge – Where the appeal is allowed – Cost certificate granted to the appellant.

  • Dickens & Dickens (No. 4) [2019] FamCAFC 203

    07 Nov 2019

    FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders that the mother have sole parental responsibility and that the children live with her – Where the children are presently aged 16 and 17 – Where the children have not seen the father since 2014 – Where none of the grounds of appeal identify any proper challenge to the orders of the primary judge – Where the father uses his grounds of appeal to assert his correctness and beliefs that were not accepted by the primary judge – No appealable error – Appeal dismissed.

    FAMILY LAW – PRACTICE AND PROCEDURE – Where an order was made pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) prohibiting the father from instituting further proceedings without the leave of the Court – Where the father seeks to appeal all orders of the primary judge – Where no ground of appeal or submission was made in relation to this order – Appeal dismissed.

  • Dickens & Dickens (No. 3) [2019] FamCAFC 202

    07 Nov 2019

    FAMILY LAW – APPEAL – RECUSAL – Where the appellant made an oral application that her Honour recuse herself from hearing this appeal on the basis of apprehended bias – Where the appellant relies on her Honour hearing previous appeals and applications in this matter and contends that her Honour did not consider complaints made by the father –Where the test for apprehended bias is not made out – Application dismissed.

  • Grange & Grange and Ors [2019] FamCAFC 205

    07 Nov 2019

    FAMILY LAW – APPEAL – PROPERTY – Whether the circumstances justify a finding that the third respondent held on trust the proceeds of sale of the only item of property held by the husband and wife – Whether the retention of the proceeds of sale by the third respondent was unconscionable – Whether the wife was suffering under a special disadvantage which seriously affected her ability to make a judgment as to her interests – Where the evidence does not support a finding of unconscionability – Where not being fully informed is insufficient to meet the standard of special disadvantage – Where an apparent lack of benefit is insufficient to establish unconscionability – Where there was no basis for the imposition of a constructive trust – Where there has been a completed gift of the proceeds of sale to the third respondent – Where the outcome is not the outcome contended for at the hearing by the husband but it is the inevitable legal effect – Where the third respondent will retain the proceeds of sale – Where there is then no property to be divided – Where the proceedings for property division under s 79 of the Family Law Act 1975 (Cth) must be dismissed – Appeal allowed.

    FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge should have considered the appellant’s claim for spousal maintenance – Where the application was recorded by the primary judge but not dealt with – Where the matter will be remitted to the Family Court of Australia for rehearing in respect of spousal maintenance.

    FAMILY LAW – APPEAL – COSTS – Orders made for the provision of written submissions as to costs – If submissions are not received, then there will be no order as to costs.

  • Attaway & Balloch [2019] FamCAFC 206

    07 Nov 2019

    FAMILY LAW – APPEAL – Appeal against orders dismissing the appellant’s application for a stay of interim parenting orders – Where an appeal has also been filed in relation to the interim parenting orders – Where the effect of the dismissal of the application for a stay was that the care of the child moved from the appellant to the respondent – Where a stay of the orders was in the best interests of the child – Where the appeal would be rendered nugatory if a stay was not granted – Appeal allowed – Where the orders are set aside and the discretion re-exercised – Orders made staying the interim parenting orders pending the determination of an expedited appeal against them – Orders made for the parties to file and serve written submissions as to costs.

  • Mityukov & Mityukov [2019] FamCAFC 199

    05 Nov 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made orders dividing the property as to 57.5 per cent to the husband and 42.5 per cent to the wife – Where the husband asserts the trial judge erred in not adequately considering the husband’s contributions – Where it was asserted that the trial judge failed to give sufficient reasons – No error found – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Where an order for costs made against the appellant.

  • Sanil & Lennon [2019] FamCAFC 204

    07 Nov 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Security for costs – Where the applicant seeks an order that the respondent pay security for his costs of the appeal brought by the respondent – Where an order to pay security for costs is likely to stifle the appeal – Where the prospects of the appeal succeeding are poor – Where caution must be taken in assessing the merits of an appeal on an application such as this since there is no access to the transcript, evidence or considered submissions in relation to the appeal – Application for security for costs dismissed.

  • Pelley & Thurstan [2019] FamCAFC 207

    06 Nov 2019

    FAMILY LAW – APPEAL – PROPERTY – Where there is no error of fact or law by the primary judge and for this Court to arrive at a different conclusion would be due to nothing other than this Court having a different view as to the weight of the evidence – Where it is clear from the authorities that an appellate court should be slow indeed to overturn a primary judge’s discretionary decision on a weight challenge alone – Where there was no lack of procedural fairness – Where none of the grounds of appeal have merit – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks an order for costs – Where the appellant did not challenge the amount sought nor was anything put in opposition to an order being made – Costs ordered in the sum sought by the respondent.

  • Dickens & Dickens (No. 2) [2019] FamCAFC 201

    06 Nov 2019

    FAMILY LAW – APPEAL – DISQUALIFICATION – Where the appellant seeks that a member of the Full Court be disqualified from further hearing this appeal on the basis of apprehended bias – Where the test for apprehended bias is not satisfied – Where the appellant has not provided any evidence which demonstrates apprehended bias – Application dismissed.

  • Luu & Kaa [2019] FamCAFC 194

    04 Nov 2019

    FAMILY LAW – APPEAL – COSTS – Where the appellant’s solicitor sought to file a lengthy affidavit on the last working day before the appeal was heard – Where the annexures to the affidavit were largely unnecessary – Where the appellant’s solicitor intended to charge for preparing the affidavit – Where it is ordered that the appellant’s solicitor not charge the appellant in excess of $700.00 for drawing the affidavit.

  • Shelbourne & Shelbourne [2019] FamCAFC 196

    04 Nov 2019

    FAMILY LAW – APPEAL – PROPERTY – Where an order pursuant to s 117 of the Family Law Act 1975 (Cth) for a dollar-for-dollar order is made in favour of the wife – Where the primary judge made an order not to discharge the dollar-for-dollar order at the final hearing – Where the husband incurred but did not pay his own legal expenses – Where the final order creates an additional liability for the husband and a corresponding asset for the wife – Where the primary judge erred by failing to consider the impact of the order in the just and equitable division of property – Appeal allowed – Order as to the continued dollar-for-dollar order set aside.

    APPEAL – COSTS – Where the appeal succeeds on a question of law – No order as to costs – Costs certificate granted.


  • Sellers & Burns and Anor (No. 2) [2019] FamCAFC 195

    01 Nov 2019

    FAMILY LAW – APPEAL – COSTS – Where the two appeals before the Full Court succeeded on errors of law – Where costs submissions were provided by both parties – Where the husband seeks an order that the wife pay costs on an indemnity basis – Where an order for costs is not appropriate given the circumstances – Costs certificates awarded to both parties for the appeal.

  • Shirley & Moore [2019] FamCAFC 197

    31 Oct 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – DISCONTINUED APPEAL – Where the appeal was discontinued by the appellant – Where the applicant was the respondent to the discontinued appeal – Where the applicant seeks costs of and incidental to the discontinued appeal on an indemnity basis – Where the respondent seeks costs of and incidental to the applicant’s Application in an Appeal – Where the respondent’s financial circumstances and conduct of the appeal justify departure from s 117(1) of the Family Law Act 1975 (Cth) – Where an award of indemnity costs is not appropriate – Where no orders for costs associated with the Application in an Appeal are made – Ordered the respondent pay the applicant’s costs of and incidental to the discontinued appeal in a fixed amount – Where costs are calculated on an ordinary party/party basis – Applications otherwise dismissed.

  • Mirell & Bellert [2019] FamCAFC 193

    31 Oct 2019

    FAMILY LAW – AMENDED APPLICATION IN AN APPEAL – COSTS – Where the father made two offers to settle the appeal – Where the first offer proposed that if the appeal was withdrawn by the mother the father would not seek costs – Where the second offer proposed that the appeal be discontinued and the mother pay the father’s costs in the sum of $4,000.00 – Where the mother discontinued the appeal – Where the mother failed to respond in a timely matter to both reasonable offers – Where the father filed an Amended Application in an Appeal seeking costs – Order that the appellant pay the respondent’s costs in the sum of $11,479.71 within 60 days.

  • Whiton & Dagne [2019] FamCAFC 192

    31 Oct 2019

    FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the wife appeals final property orders providing for a 75 per cent/25 per cent apportionment in favour of the husband to a de facto relationship – Where the relationship began in 1998 and ended in 2016 with multiple periods of separation throughout that time due to domestic violence perpetrated by the husband – Where the wife was the primary carer for the parties’ two children for the duration of the relationship – Where the trial judge erred in law by discriminating between the worth of the wife’s contributions as a homemaker and parent made in a de facto relationship, as compared with their worth had the parties been married – Where the trial judge erred by giving weight to the husband’s financial assistance to the wife for debts she incurred during periods of separation caused by domestic violence – Where the trial judge failed to take account of, or give weight to, the consequences for the wife of such domestic violence – Where the trial judge’s assessment of the s90SF(3) matters was incorrect, inadequate and unsupported by adequate reasons – Where the appeal is allowed and the matter is to be remitted.

    FAMILY LAW – APPEAL – COSTS – Where the wife seeks her costs in the amount of $13,773.17 – Where there was significant contribution by the husband, in the manner of the conduct of his case and the submissions put to the trial judge on central issues, which contributed to the trial judge’s errors – Where the identified errors ought to have been obvious to the husband – Where the husband should have conceded the appeal – Costs order made in a fixed sum.

  • Kabat & Garacia [2019] FamCAFC 191

    31 Oct 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – Where the father filed a Notice of Appeal from procedural orders listing the matter for a trial which has subsequently taken place – Where the father filed an Application in an Appeal seeking expedition of an appeal from those procedural orders – Where the father subsequently filed an Application in an Appeal seeking an adjournment of the hearing of his expedition application – Where the orders sought to be appealed are purely procedural and are not “decrees” within s 4 of the Family Law Act 1975 (Cth) – Where the Notice of Appeal and the Applications in an appeal are an abuse of process – Where the Notice of Appeal and the Applications in an Appeal are struck out.

  • Danh & Loi [2019] FamCAFC 190

    31 Oct 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge failed to address the splitting order sought by appellant whereby she sought to receive 70 per cent of respondent’s superannuation entitlement – Where the error identified does not affect any other order made by the primary judge – Appeal allowed in part – The assessment and determination of what if any order should be made in relation to the respondent’s superannuation entitlements be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge – Appeal otherwise dismissed.

    FAMILY LAW – COSTS – COSTS CERTIFICATES – Where both parties sought their costs – Where in the circumstances of this matter s 117(1) of the Family Law Act 1975 (Cth) should prevail and each party should bear their own costs – No order as to costs – Oral applications for costs certificates dismissed.

  • Percy & Curtis and Anor [2019] FamCAFC 189

    28 Oct 2019

    FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal be allowed and that orders in relation to the appellant having no time with the children be set aside – Where the appealable error relates to a denial of procedural fairness by the primary judge – Where appealable error is amply demonstrated and the appeal should succeed – Appeal allowed – Orders set aside.

    FAMILY LAW – APPEAL – COSTS CERTIFICATE – Where the appellant seeks a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appeal is properly characterised as a Federal appeal, it will succeed on a question of law and it has been heard by the Full Court in a public and formal way – Where the appellant has been put to unnecessary expense in pursuing the appeal – Costs certificate issued as sought by the appellant.

  • Hassewell & Kromza [2019] FamCAFC 188

    29 Oct 2019

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the husband failed to file a Draft Appeal Index as directed – Where the appeal was deemed abandoned – Where the husband seeks reinstatement of his appeal – Where the husband appealed against a finding that a defacto relationship existed – Where leave was granted to bring property proceedings out of time – Where there are no merits in the proposed appeal – Where there would be prejudice to the respondent wife if the application was allowed – Where it would be futile to reinstate the appeal – application dismissed.

  • Jabbar & Gade (No. 2) [2019] FamCAFC 187

    29 Oct 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION - Where the mother seeks expedition of her appeals against parenting and costs orders and an order declaring her a vexatious litigant pursuant to s.102QB – Where there is no merit in the appeal – Where there is no relevant circumstance which would cause the case to be given priority over other cases to their possible detriment – Application dismissed.

  • Eagans & Rennell [2019] FamCAFC 210

    24 Oct 2019

    FAMILY LAW – APPEAL – REINSTATE – Where the applicant seeks to reinstate his appeal deemed abandoned as a result of his failure to file appeal books within the time ordered by the Appeal Registrar – Where there is a reasonable excuse for the failure to file within time – Where it cannot be said that the appeal has no chance of success – Where the prejudice to the respondent outweighs the prejudice to the applicant but the justice of the case requires that the appeal be reinstated – Application granted.

  • Somers & Ettridge [2019] FamCAFC 209

    24 Oct 2019

    FAMILY LAW – APPEAL – REINSTATE – Where the applicant seeks to reinstate an appeal deemed abandoned as a result of his failure to file a draft appeal index as ordered – Where there is no utility in allowing the appeal to proceed – Where if reinstatement is to be considered the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties – Where there is no adequate or acceptable reason for the failure to file the draft appeal index on time – Where the applicant raises no competent ground of appeal which would allow the appeal to proceed – Where in the interests of justice the application must be refused – Application dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the application is opposed but no reason is provided as to why those costs should not be ordered – Where the applicant has been wholly unsuccessful – Costs ordered in the sum as sought.

  • Stringer & Nissen (No. 2) [2019] FamCAFC 185

    23 Oct 2019

    FAMILY LAW – APPEAL – PARENTING – RELOCATION – Appeal against interim parenting orders as to with whom the child should live, contingent on where either party would reside – Failure to engage with evidence as to child’s best interests – Where the mother unilaterally decided to relocate with the child and the father unilaterally decided not to return the child to the mother’s care – Family violence – Where the approach to evidence of family violence was flawed – Challenges made out – Appeal allowed – Matter remitted for rehearing – Cost certificates granted for the appeal and rehearing.

  • Spencer & Spencer (No. 2) [2019] FamCAFC 181

    15 Oct 2019

    FAMILY LAW – APPEAL – RECUSAL – Where the appellant seeks that one of the members of the Full Court be disqualified on the basis of apprehended bias – Where the test is not satisfied – Where the appellant fails to appreciate that the test is objective, not subjective – Application dismissed.

  • Mansfield and Ors & Mansfield and Anor [2019] FamCAFC 186

    25 Oct 2019

    FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the appellants are third parties to the marriage – Application by first respondent wife to join appellants to the proceedings below dismissed – Application by appellants for indemnity costs dismissed –  Where the joinder attempt was “imprudent” – Where the disparity between the financial circumstances of the primary appellant and the first respondent is great – No appealable error – Application for costs of costs application dismissed below without reasons – Appeal allowed in part – Re-Exercise – Application for costs of costs application dismissed. 
    FAMILY LAW – APPEAL – COSTS – Where the appeal is largely unsuccessful – Where the first respondent has incurred legal expenses unnecessarily – Where an order for costs will occasion no financial discomfort for the primary appellant – Costs order made. 
  • Scarlett & Bradshaw [2019] FamCAFC 184

    24 Oct 2019

    FAMILY LAW – APPEAL – PARENTING – Spend time arrangement – Graduated regime of time – Where the parties agree that they should have equal shared parental responsibility and that the child should live with the mother – Where the primary issue for the trial judge was determining the time and manner in which the child would spend time with the father – Whether the trial judge, faced with two competing graduated regimes of time, made orders for a third graduated regime of time, and failed to give reasons for doing so – Where the trial judge was not bound to make one or the other of the sets of orders proposed by the parties and was free to formulate his own orders – Where the trial judge’s reasons are clear and soundly based on the evidence – Whether the trial judge failed to take into account the capacity of the parties to implement the spend time arrangement having regard to s 65DAA(5)(b) and (c) of the Family Law Act 1975 (Cth) – Where the trial judge had regard to the matters set out in s 65DAA(5) – Whether the trial judge erred by having regard to the expert witness’s recommendations despite making a finding that the expert witness did not fully appreciate the father’s poor impulse control – Where the orders made did not mirror the expert witness’s recommendations – Where a trial judge is entitled to accept some parts of a witness’s evidence and not accept other parts – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – Application in an Appeal to adduce further evidence – Where the father provided a Response to the mother’s application to adduce further evidence – Where the further evidence of both parties is accepted insofar as it relates to the father’s completion of an anger management course – Where the applications are otherwise dismissed.

    FAMILY LAW – APPEAL – COSTS – Order made for the filing of written submissions as to costs, as requested by the parties.

  • Rader & Rader and Ors [2019] FamCAFC 183

    24 Oct 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father sought expedition of an appeal against orders concerning the parenting arrangement for his children – Where the parenting orders were of a drastic nature – Where the solicitor for the first respondent sought an application for the adjournment of the application for the expedition of the appeal – Where the application for an adjournment was refused – Where the father’s appeal raises substantial issues – Where it is in the best interests of the children that the issues are determined as quickly as possible – Where the application for expedition of the appeal is allowed – Where the hearing of the appeal is expedited.

  • Herford & Berke (No. 2) [2019] FamCAFC 182

    24 Oct 2019

    FAMILY LAW – APPEAL – DE FACTO RELATONSHIP – Declaration that the de facto relationship finally broke down before 1 March 2019 – Application for property settlement orders dismissed – Where the parties lived under the same roof until November 2008 – Where the parties agreed that up until this point they were living in a de facto relationship –Where there is contention as to whether the parties’ de facto relationship continued after this point up until the cessation of the relationship in 2015 – Where his Honour considered the nature and character of the relationship and came to the conclusion that the relationship had changed after November 2008 and a de facto relationship no longer existed – Where the challenge as to weight is not made out – Where the conclusion was open to his Honour – Appeal dismissed – No order as to costs made.

  • Spencer & Spencer [2019] FamCAFC 180

    15 Oct 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – DISQUALIFICATION – Application for disqualification on the basis of apprehended bias – Application made orally – Exchanges between judge and appellant - Application dismissed.

  • Cabadas & Cabadas [2019] FamCAFC 179

    11 Oct 2019

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the husband appeals from final property orders – Where the trial judge found the date of separation to be 28 August 2015 – Where the parties’ property interests totalled $901,078.63 – Where both parties concede that the trial judge erroneously included in that total as a notional asset of the husband a figure of $130,176 representing “cattle sales - post-separation” – Where the trial judge took no account of the husband’s longstanding dependence upon income from cattle sales for his livelihood – Where the trial judge gave no consideration to the fact that reasonably incurred expenditure by the husband had to be taken into account as an offset to the gross amount of cattle sales income – Where error is established sufficient for the appeal to be allowed – Where the wife is granted a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for her costs of the appeal.

    FAMILY LAW – APPEAL – RE-EXERCISE – Where both parties sought this Court re-exercise the discretion rather than remit the proceedings – Where s 79(2) is readily satisfied – Where the parties agreed to adopt the values of property as found by the trial judge other than those successfully challenged on appeal – Where the majority  of the parties’ property interests consist of the former matrimonial property consisting of two lots – Where the husband sought an equal distribution of property overall – Where the wife sought a finding of an equal contributions-based entitlement but a 3 per cent uplift in her favour to account for the husband’s non-disclosure – Where neither party addressed the Court on a guarantee given by the parties for a loan taken out by their son – Where such guarantee ought be included as a liability – Where the parties’ right to subrogation ought be included as an asset – Where a finding of equal contributions is appropriate – Where no adjustment pursuant to s 75(2) is called for – Where an equal division of the parties’ property interests is just and equitable in all the circumstances – Where the husband offered no evidence in support of his orders seeking only one lot of the former matrimonial property be sold – Where the entirety of the property must be sold.
  • Metford & Faddin [2019] FamCAFC 176

    11 Oct 2019

    FAMILY LAW – APPEAL – APPLICATION FOR EXTENSION OF TIME – Where the father seeks an extension of time to appeal from a costs order against him fixed in the sum of $6,000 – Where a sum of $4,682 for costs was fixed following an application brought about due to the father having retained the children on some five occasions contrary to orders – Where the father’s Notice of Appeal raises no substantial issue – Where the mother should not be prejudiced by being subjected to a meritless appeal – Application dismissed.

  • Kellner & Kellner and Anor [2019] FamCAFC 178

    11 Oct 2019

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the trial judge divided the parties’ property interests in the proportions of 70 per cent to the de facto wife and 30 per cent to the de facto husband – Where the trial judge found that the de facto husband’s post-separation conduct was the only factor justifying an adjustment to the parties’ equal contributions-based entitlements – Where the trial judge granted a 10 per cent uplift to the de facto wife pursuant to the s 75(2) factors – Where the de facto husband’s challenges on appeal relate solely to complaints of procedural fairness – Where there are no specific challenges to the findings of fact made by the trial judge or, beyond the assertions of denials of procedural fairness, that the trial judge acted on wrong principle or made any errors of law – Where Ground 1 was abandoned – Where neither of the remaining two grounds raise any question of general principle – Where only short reasons are required – Consideration of the extent of a trial judge’s obligations under Re F: Litigants in Person Guidelines (2001) FLC 93-072 – Where a trial judge is not bound to specifically inform a party that if they fail to put their case to the other party in cross-examination, the other party’s evidence may be accepted – Where the determinative issue, being the de facto husband’s significant failure to provide full and frank disclosure, did not rest on the de facto wife’s evidence – Appeal dismissed – Where the de facto husband is ordered to pay the de facto wife’s costs of the appeal on a party/party basis fixed in the sum of $30,000.

  • Harrell & Hancock-Harrell [2019] FamCAFC 177

    11 Oct 2019

    FAMILY LAW – APPEAL – FAMILY VIOLENCE – Parenting orders – Where the absence of the trial transcript could not be permitted to undermine the presumption in favour of the correctness of the decision – Where the conclusion that the appellant posed an unacceptable risk of emotional harm to the child was available – Where the primary judge was entitled to accept the evidence of the single expert – Presumption of equal shared parental responsibility – Where findings that the appellant engaged in family violence were open – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence on appeal – Where the majority of evidence sought to be adduced was either before the primary judge or irrelevant – Application allowed in part.

    FAMILY LAW – COSTS – Where the appellant is an undischarged bankrupt in receipt of welfare benefits – Where the appellant has been wholly unsuccessful – Greater weight placed on the appellant’s lack of success and that the respondent incurred legal expenses unnecessarily – Order made for the appellant to pay the respondent’s costs within six months.

  • Whyatt & Chadwin [2019] FamCAFC 175

    03 Oct 2019

    APPEAL – COSTS – Where the appellant has misunderstood the liberty to apply order made by the Magistrate – Where there is no ground of appeal set out in the appellant’s Notice of Appeal which identifies appealable error by the Magistrate – Where the order for costs made by the Magistrate arose from an exercise of his Honour’s discretion and the amount the appellant was ordered to pay was far less than that which was sought by the respondent – Where there is no reasonable chance of success – Appeal dismissed.

  • Stammler & Stammler [2019] FamCAFC 174

    02 Oct 2019

    FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal should be allowed, the order appealed be set aside, and the matter be remitted for rehearing – Where there is a basis here for leave to appeal to be granted and for the appeal to be allowed – Where it is conceded that the Magistrate was led into error as a result of incorrect facts put by the respondent in relation to his income – Leave to appeal granted – Appeal allowed – Order set aside – Proceedings remitted to the Magistrates Court of Western Australia for rehearing by a Magistrate other than the trial Magistrate.

  • Bindon & Beatham [2019] FamCAFC 173

    02 Oct 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATE – Where partway through the hearing the applicant left the courtroom stating that she was withdrawing the appeal – Where there was no appeal to withdraw it having been abandoned as a result of her failure to file appeal books within time – Where it was not clear whether the applicant also withdrew her Application in an Appeal the subject of the hearing which sought reinstatement of her appeal deemed abandoned – Application adjourned to enable the applicant to consider her position in relation to whether she intends to pursue the application or withdraw it.

  • Diglen & Keartley (No. 2) [2019] FamCAFC 172

    09 Oct 2019

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs on an indemnity basis and in the alternative on a party and party basis – Where the appellant opposes any order for costs but submits that if this Court is minded to make such an order that it be on a party and party basis and only apply to costs incurred within a specific timeframe – Where the husband has the capacity to meet a costs order and the financial circumstances of the wife do not militate against such an order being made – Where the appeal was not dismissed on its merits but because the appellant chose to withdraw it – Where the failure to comply with an order of this Court, the finding that the one remaining challenge had no merit, and the withdrawal of the appeal by the appellant provide a constellation of circumstances justifying an order for costs being made – Where the circumstances are not of an exceptional nature so as to permit costs being awarded on an indemnity basis – Appellant to pay the respondent’s costs on a party and party basis fixed in the sum of $6,712.28.

  • Estate of the late Carney & Carney [2019] FamCAFC 166

    04 Oct 2019

    FAMILY LAW – APPEAL – PROPERTY – Appeal by the estate of the deceased husband against property settlement orders – Where the primary judge found that  contributions of the husband and the wife to their property and to the welfare of the family were equal – Whether the primary judge erred by making a 10 per cent adjustment in favour of the wife – Whether the amount of the adjustment made by the primary judge was out of all proportion to the wife’s needs – Where the adjustment made was not out of all proportionality to the likely expenses of the wife – Where the adjustment made by the primary judge was within the ambit of a reasonable exercise of discretion – Whether the primary judge engaged with and made relevant findings in relation to disputed issues as to contributions – Where the premises on which the estate’s contentions are based cannot be made out and the grounds fail – Whether the primary judge was obliged to take into account the terms of the husband’s will – Where a testator’s intentions in relation to the disposition of their property on their death should not override the considerations mandated by the Court in s 79(4) and s 75(2) of the Family Law Act 1975 (Cth) – Where no grounds of appeal succeed – Appeal dismissed – The estate to pay the wife’s costs of the appeal, as agreed, or in default of agreement, as assessed.

  • Phillips & Hansford (No. 2) [2019] FamCAFC 165

    04 Oct 2019

    FAMILY LAW – APPEAL – Appeal against interim parenting orders – Whether the primary judge erred by making an interim order without conducting a Rice and Asplund (1979) FLC 90-725 hearing – Whether the primary judge gave consideration to the necessary s 60CC considerations – Where the primary judge did not err and did not deny the parties procedural fairness by not conducting a Rice and Asplund (1979) FLC 90-725 hearing – Where the primary judge had regard to relevant s 60CC considerations – No merit in any of the grounds of appeal – Appeal dismissed – Written submissions to be provided as to costs.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the mother sought to adduce further evidence that was likely to be controversial – Where the evidence was not admissible – Application dismissed.

  • Zao & Lee [2019] FamCAFC 169

    04 Oct 2019

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Summary dismissal – Where the primary judge dismissed the appellant wife’s application for summary dismissal – Where the appellant wife sought summary dismissal on the basis that the respondent husband failed to provide adequate disclosure – Where the appellant wife submits that the primary judge erred by failing to admit exhibits to affidavits into evidence – Where the contents of the exhibits to the affidavits were before the Court and were taken into account by the primary judge – Application of r 11.02 and r 13.14 of the Family Law Rules 2004 (Cth) – Where no substantial injustice flows from any error of the primary judge – Where leave to appeal was required but was not sought in the Notice of Appeal – Where leave was granted to amend the Notice of Appeal to include an application for leave to appeal – Where the application for leave to appeal is dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent husband did not comply with the Registrar’s direction for a costs schedule to be filed and served no later than seven days prior to the first day of the sittings in which the appeal is listed – Where the respondent husband did not comply with the Registrar’s direction for a schedule of costs to be sought at the scale prescribed by the Family Law Rules 2004 (Cth) –  Where there was no explanation for the failure to comply – Where the Court will not extend time for the costs schedule to be filed in accordance with the Registrar’s directions – No order as to costs.