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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.

  • Panno & Panno [2018] FamCAFC 195

    12 Oct 2018

    FAMILY LAW – APPEAL – CONTRAVENTION – Parenting – Vaccination – Where it has not been demonstrated that the parties, and in particular the appellant, have not been accorded procedural fairness or a fair trial by a failure to strictly apply r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) – Where on the evidence before the trial judge there is no doubt that the appellant contravened the order and thus, there is no error in the statement made by the trial judge in that regard – Where the trial judge erred in one aspect of the reasons given for refusing to set aside the consent orders, but there was a clear basis outside that error for the trial judge to refuse to set aside the order and thus, the error cannot be a reason for allowing the appeal – Where a trial judge does not commit an appealable error per se by failing to specifically refer to the legislative pathway or by failing to specifically recite the sections of the Act – Where it can be seen from the reasons for judgment that the trial judge has adequately considered the legislative provisions relevant to the decision to be made – Where the reasons of the trial judge were adequate – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent has not incurred any legal costs or disbursements in responding to the appeal – No order as to costs.


  • Keil & Kingscote and Anor [2018] FamCAFC 194

    25 Sep 2018

    FAMILY LAW – APPEAL – COSTS – Discontinuance – Where as a result of the appeal being discontinued the first and second respondents sought orders for costs, the first respondent on a party/party basis and the second respondent on an indemnity basis –Where the appellant opposes any order for costs given his poor financial circumstances – Where there are circumstances justifying orders for costs being made but there are no exceptional circumstances such as to warrant indemnity costs – Where the appellant has an entitlement to funds held in an account in the name of the first respondent – Where there are sufficient funds to which the appellant is entitled to meet the orders for costs – Costs ordered in favour of the first and second respondents assessed on a party and party basis to be paid from the account held in the name of the first respondent.

  • Jabbar & Gade (No. 3) [2018] FamCAFC 197

    10 Oct 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Dispense With Transcript – Review of Registrar’s orders – Where leave is granted for the appeal to be heard without the requirement to include all transcripts of the trial proceedings in the appeal books.

  • Hants & Magennis [2018] FamCAFC 193

    26 Sep 2018

    FAMILY LAW – APPEAL – PROPERTY AND SPOUSAL MAINTENANCE – Where the parties consented to agreed orders as to the appeal – Where the parties seek cost certificates – Where the appeal is a Federal Appeal – Where the primary judge’s order was plainly wrong – Error of law – Cost certificates issued.

  • Zubcic & Zubcic [2018] FamCAFC 189

    25 Sep 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Application unopposed – Extension of time in which to file a Summary of Argument granted.

    FAMILY LAW – COSTS – Gross sum costs – Costs thrown away as a result of an adjournment – Principles for fixing gross sum costs – Costs fixed in the sum of $16,948.33.


  • Wellen & Wellen [2018] FamCAFC 192

    26 Sep 2018

    FAMILY LAW – APPEAL – COSTS – Where the primary judge ordered that the husband pay the wife’s costs thrown away as a result of an adjournment on an indemnity basis – Procedural unfairness – Where neither party sought an adjournment and the primary judge ordered the adjournment on his own motion – Adequacy of reasons – Where the primary judge failed to give adequate reasons for adjourning the hearing – Where the primary judge failed to give adequate reasons for ordering that the costs thrown away be paid on an indemnity basis – Error demonstrated – Appeal allowed – Order for indemnity costs set aside.

    FAMILY LAW – APPEAL – COSTS – Indemnity costs – Appeal against order quantifying indemnity costs – Where the order for indemnity costs was based on an incorrect premise and was set aside – Where the order quantifying those costs must also be set aside – Appeal allowed.


  • Otero & Otero [2018] FamCAFC 188

    25 Sep 2018

    FAMILY LAW – APPEAL – PARENTING – Interim orders – Orders for both supervised and unsupervised time – Lack of procedural fairness – Inadequate reasons – Challenges to the primary judge’s exercise of discretion – Appeal allowed – Orders for unsupervised time set aside – Matter remitted for rehearing.

    FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Evidence adduced to buttress the findings of the primary judge – Where the evidence is controversial – Leave refused.


  • Bondelmonte & Bondelmonte and Ors [2018] FamCAFC 179

    18 Sep 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Discovery – Inspection of documents – Where the appellant appeals orders as to the inspection of documents relating to proceedings in which freezing orders where sought – Where the appellant was not a party to those proceedings – Where the appellant seeks a variation of the primary judge’s orders to include additional documents – Where the findings of the primary judge found to be clear and encompassing documents relating to the freezing order against the appellant – However where the primary judge failed to include seven documents – Where these seven documents uncontentiously referred to the proceedings against the appellant – Where error found – Leave to appeal granted – Appeal allowed in part – Order refusing leave to inspect certain documents varied to add the documents erroneously excluded.

  • Sfakianakis & Sfakianakis [2018] FamCAFC 185

    21 Sep 2018

    FAMILY LAW – APPEAL – PROPERTY – Where the husband on appeal abandoned two of the four grounds – Where the trial judge determined it was “just and equitable” to make orders equally distributing the parties’ property and superannuation – Where the husband contended the trial judge erred in his application of s 79(2) of the Act by determining it was just and equitable to make property adjustment orders in response to the wife’s application – Where the husband alleged the wife’s deceit and failure to comply with her disclosure obligations rendered it just and equitable for only his application for property adjustment orders to be entertained – Where no error established – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where appeal is wholly unsuccessful – Where the respondent’s application for costs is deferred with written submissions to be filed.


  • Naparus & Frankham [2018] FamCAFC 190

    21 Sep 2018

    FAMILY LAW – APPEAL – INTERIM PARENTING – Where the appeal cannot be heard and determined prior to the final hearing set for October 2018 – Where the mother has not complied with the interim orders made for the father to spend time with the child and it appears that she has no intention of complying with those orders – Where the father has not filed a Notice of Contravention and there is now no time to do so given the listing of the final hearing – Where Counsel for the Independent Children’s Lawyer urges dismissal of the appeal given its lack of utility – Where the appeal should be dismissed for lack of utility – Appeal dismissed.

  • Harris & Dewell and Anor (No. 2) [2018] FamCAFC 180

    20 Sep 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the husband and wife were unsuccessful in their appeal and cross-appeal – Where the husband’s father was a party to the trial and appeal proceedings – Whether the wife should pay the father’s costs of the appeal and the father’s application for costs – Where the circumstances justified the making of party and party costs orders in favour of the father and against the wife – Where the circumstances did not justify the making of a costs order in favour of the husband – Where the wife agreed to pay half the costs of acquiring the transcripts of proceedings. 

  • Woodby-Chatterjee & Chatterjee [2018] FamCAFC 182

    19 Sep 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the applicant seeks that the respondent provide a copy of the transcript of proceedings before the primary judge – Whether the court has the power to make such an order – Discussion of Sampson & Hartnett (2013) FLC 93-542 – Prima facie merits of the appeal – Whether the applicant can afford all or parts of the transcript – Application dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal was deemed abandoned because the applicant failed to file appeal books that complied with the registry’s requirements – Where reinstatement would be futile if the applicant is unable to also file the transcript – Where it is likely that the applicant will be able to obtain the parts of the transcript necessary to prosecute the appeal – Application allowed – Appeal reinstated.


  • Waring & Penry [2018] FamCAFC 186

    19 Sep 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the father filed an application to adduce further evidence – where the application was heard in conjunction with the substantive appeal – where the further evidence did not meet any of the criteria for admission of further evidence on appeal by reference to the principles identified in CDJ v VAJ (1998) 197 CLR 172 – application dismissed.

    FAMILY LAW – APPEAL – PARENTING – CONSENT ORDERS – where the father sought to appeal final parenting orders made by consent – where the father contended that he “felt under extreme duress” at the time of consenting to the parenting orders – where nothing contained in the transcript of proceedings demonstrated anything to constitute duress on the part of the primary judge and it was not contended any other party was responsible – appeal dismissed – no order as to costs.


  • Vine & Vine [2018] FamCAFC 168

    28 Aug 2018

    FAMILY LAW – APPEAL – DISQUALIFICATION – Where the father appealed against the trial judge’s refusal to disqualify himself from continuing to hear proceedings – Where appeal pursued despite the transfer of proceedings to the Federal Circuit Court of Australia – Where the appeal is futile – Where the trial judge had not prejudged the matter – Where the conduct of the trial judge did not raise an apprehension of bias – Appeal dismissed.

  • Stern & Colli [2018] FamCAFC 183

    19 Sep 2018

    FAMILY LAW – APPEAL – COSTS – Where the appeal was discontinued – Where the respondent sought an order for costs relying on the conduct of the appellant and the futility of the appeal – Where that application was opposed – Where there are circumstances justifying an order for costs being made but only between 2 January 2018 and 5 April 2018 – Costs ordered in favour of the respondent with such costs to be assessed in default of agreement.

  • Probert & Probert and Ors [2018] FamCAFC 134

    20 Jul 2018

    FAMILY LAW – APPEAL – Application for expedition – Where the cross-appellants seek to expedite the appeal and cross-appeal against property orders – Insufficient reasons to permit expedition – Application dismissed.

  • Probert & Probert and Ors (No. 2) [2018] FamCAFC 178

    14 Sep 2018

    FAMILY LAW – APPEAL – Application for reinstatement – The appellant seeks to reinstate an appeal deemed abandoned by operation of the Family Law Rules 2004 (Cth) – Where the cross-appeal is scheduled for hearing before the Full Court – Application adjourned for hearing before the Full Court.

  • Oram & Lambert and Ors (No. 3) [2018] FamCAFC 162

    22 Aug 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Expedition – Where the application was not brought promptly – Whether an expedited appeal would avoid serious emotional or physical trauma to the children – Where the appeal is not so urgent that it should be given priority over other pending parenting appeals – Application dismissed.

  • Langley & Tarelli and Anor [2018] FamCAFC 181

    19 Sep 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Application for an extension of time in which to file a Notice of Appeal – Explanation for the delay – Merits of the appeal – Where the proposed parenting appeal raises serious subject matter – Application allowed.

  • Frost (Deceased) & Whooten [2018] FamCAFC 177

    17 Sep 2018

    FAMILY LAW – APPEAL – JURISDICTION – Matrimonial cause – Whether the wife’s Initiating Application sufficiently identified the matrimonial cause relied upon to invoke the jurisdiction of the Family Court – Where the primary judge found that the Initiating Application sought property orders pursuant to s 79 of the Family Law Act 1975 (Cth) – No error demonstrated.

    FAMILY LAW – APPEAL – JURISDICTION – Death of a party – Electronic filing – Where the wife electronically lodged an Initiating Application with the Family Court after the deadline prescribed in r 24.05(2) of the Family Law Rules 2004 (Cth) and the husband died several hours later – Application of r 24.05(2) – Meaning of “filed” – Distinction between “received by the registry” and “filed” – Whether rules can have a substantive effect on parties’ rights – Whether rules can be applied to create or invoke jurisdiction – Where the primary judge erred by deeming the Initiating Application to have been filed at the time it was electronically received by the Court as he lacked the jurisdiction to do so – Appeal allowed. 


  • Cameron & Brook [2018] FamCAFC 175

    13 Sep 2018

    FAMILY LAW – APPEAL – PARENTAL RESPONSIBILITY – Where the mother filed an application to allow the child to participate in an overseas exchange programme – Where the primary judge determined that he lacked power to make the orders sought – Where the Court had power – Where the Court’s powers are enlivened if its jurisdiction is properly invoked – Where the circumstances are not analogous to a case invoking the “rule in Rice and Asplund” – Where the primary judge did not consider the application on its merits – Where the primary judge allowed extraneous matters to determine the result rather than a determination of what was in the child’s best interests – Where it was in the child’s best interests to allow her the opportunity to be chosen for the programme – Appeal allowed – Order for costs made against the father.

  • Adair & Adair [2018] FamCAFC 184

    18 Sep 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant failed serve and file the appeal books and transcripts on time – Where the applicant sought an extension of seven days from the respondent – Where the respondent refused – Where the appeal was deemed abandoned as per Rule 22.21 of the Family Law Rules (2004) – Where the applicant seeks a reinstatement of the appeal – Where it was found that the appeal has merit – Where there would be no significant prejudice to the respondent – Appeal reinstated – Orders made to extend time for the filling and serving of appeal books, Summary of Arguments and List of Authorities.

  • Dobbs & Dobbs [2018] FamCAFC 174

    10 Sep 2018

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the s 75(2) adjustment of five per cent in the wife’s favour was allegedly “not open” due to factual error – Where the husband claimed that the trial judge made a mistake of fact by assuming the wife would bear the burden of the child’s private school fees – Where it was probable the wife would have greater financial responsibility for the child in the future – Where the trial judge effectively identified the factors which justified the adjustment under s 75(2) in the wife’s favour – Where the findings of the trial judge were open on the evidence – Where there was no error on part of the trial judge demonstrated – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs of appeal – Where the appeal has been wholly unsuccessful – Appellant to pay respondent’s costs of a specific sum calculated on a party/party basis.

     


  • Trevi & Trevi [2018] FamCAFC 173

    06 Sep 2018

    FAMILY LAW – APPEAL – PROPERTY – where final property orders were made eight and a half years after the parties separated – where the net property of the parties was substantial – where the trial judge concluded that contributions should be assessed as equal – where the wife received a 10 per cent adjustment pursuant to s 79(4)(e) – whether the trial judge erred in failing to addback amounts received by the wife pursuant to interim orders – where the trial judge erred in failing to addback an amount expended by the wife on legal fees – Chorn and Hopkins (2004) FLC 93-204 considered – where the trial judge confused two well-established approaches to dealing with the wife’s paid legal fees – Omacini and Omacini (2005) FLC 93-218 considered – whether the trial judge erred in the assessment of contributions – where the husband sought to agitate on appeal an argument not agitated below – whether the trial judge erred in failing to make a splitting order – where the trial judge considered it just and equitable to maximise the amount of cash the wife would receive – where the trial judge was well aware of the effect of making a splitting order – whether the trial judge erred in the assessment of s 79(4)(e) – appeal allowed in part.

  • Tallowfield & Tallowfield [2018] FamCAFC 172

    05 Sep 2018

    FAMILY LAW – APPEAL – INADEQUACY OF REASONS – where the reasons for judgment did not engage with the wife’s case – where the wife inherited two unencumbered income producing real properties, the net value of which equated to 85 per cent of the pool found to be available for division – where no finding was made by the trial judge to the effect that the wife had used some of her inheritance for her own purposes – where contributions of all kinds, including some incapable of being measured in monetary terms, fall into the holistic assessment of contributions in s 79 property settlement determinations – where the reasons recorded a series of conclusions expressed in general terms which were not illuminated by specific findings – where the Court was unable to discern from the reasons the path by which the result has been reached – where the reasons are inadequate – where the Court cannot be satisfied that the orders made by the trial judge were just and equitable based upon a legitimate exercise of judicial discretion – appeal allowed.

  • Selby & Robilliard [2018] FamCAFC 159

    13 Aug 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applications in the alternative for adjournment of appeal and extension of time to file documents – Where procedural orders were made by the Appeals Registrar listing the appeal and fixing a timetable – Where the applicant provides explanation for the need for an adjournment or extension of time – Where there is no undue prejudice – Adjournment granted and fresh procedural orders made.

  • Sahrawi & Hadrami [2018] FamCAFC 170

    04 Sep 2018

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge found that the father behaved in a psychologically coercive manner to secure sex from the mother based upon words said in a recorded telephone conversation between the mother and the father – Where the father was not afforded procedural fairness to comment upon the primary judge’s interpretation of those words – Where another interpretation was available – Where this error led the primary judge to conclude that the presumption of equal shared parental responsibility did not apply and impacted upon s 60CC(2) and (3) considerations – Where the primary judge did not err in failing to make credibility findings - Where the primary judge erred in failing to make findings about whether the mother had fabricated allegations –Where the primary judge misstated the breadth of the test in M v M (1988) 166 CLR 69 – Where, given the error the primary judge made in finding that no determination could be made as to whether the mother had fabricated allegations, there is error in the primary judge’s consideration of the family consultant’s evidence and the Independent Children's Lawyer’s submissions which were based upon the proposition that such a finding would be made – Where the father made an application pursuant to s 67ZC of the Act for the return of the children to Country E without the court making final parenting orders – Where the primary judge did not err in not making a summary order for the return of the children without making parenting orders – Where the appeal is allowed.

  • Pates & Pates [2018] FamCAFC 171

    06 Sep 2018

    FAMILY LAW – APPEAL – PROPERTY – Long lapse of time between separation and final hearing – Whether the trial judge’s assessment of the parties’ contributions was outside the permissible ambit of discretion – Whether the  trial Judge erred by failing to notionally add-back certain amounts to the parties’ property interests – Sufficiency of reasons – Disclosure – Whether the trial judge erred in not making an adverse inference against the husband in line with Jones & Dunkel – No obligation on the husband to disclose all aspects of his current wife’s financial circumstances – Appeal dismissed.

    FAMILY LAW – CROSS APPEAL – Whether the s 75 (2) adjustment in the wife’s favour was “not open” and “plainly wrong” – Character of the parties’ superannuation interests – No objection to wife’s submissions that the parties’ disparate superannuation interests warranted an adjustment in her favour – Findings of the trial judge open on the evidence – Cross-appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where both appeal and cross-appeal have been wholly unsuccessful – Respondent’s application for costs in respect of abandoned grounds of appeal granted.


  • Oram & Lambert and Ors (No. 2) [2018] FamCAFC 161

    22 Aug 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Restraint of solicitors from acting – Where the first respondent’s law firm previously represented the appellant’s sister in care and protection proceedings – Where the solicitor for the first respondent started working at the firm after it stopped acting for the appellant’s sister – Where the sister’s file was destroyed in 2017 – Whether the circumstances give rise to a breach of confidence – Where the issue was not raised at first instance – Lack of evidence as to the nature and materiality of the confidential information sought to be protected – Application dismissed.