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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.

  • Akhtar & Gaber (No.2) [2021] FamCAFC 28

    26 Feb 2021

    FAMILY LAW – APPEAL – Binding financial agreement – Where the parties’ marriage agreement is not a financial agreement recognised by Pt VIIIA of the Family Law Act 1975 (Cth) – Where the marriage agreement does not oust the jurisdiction of the Court to make orders under s 79 of the Act – Property settlement consent orders – Where the primary judge dismissed the appellant’s application pursuant to s 79A(1) of the Act – Disqualification – No apprehension of bias – No error by the primary judge – Appeal dismissed – No order as to costs.

  • Sarber & Tacoma [2021] FamCAFC 24

    24 Feb 2021

    FAMILY LAW – APPEAL – CONSENT ORDERS – Error of law – Where the respondent’s solicitor sought a consent order unilaterally and in non-compliance with r 13.04 of the Federal Circuit Court Rules 2001 (Cth) – Whether, as at the time the substantive orders were made, both parties were consenting to their making – Where neither the appellant, nor any solicitor on his behalf, was on notice that the application for the order was to be made – Where it remained necessary for the Court to be satisfied of the existence of jurisdiction before orders were made in purported exercise of it – Where the respondent conceded the appeal – Appeal allowed – Costs certificate granted to the appellant.

  • Malloy & Stopford Malloy [2021] FamCAFC 23

    24 Feb 2021

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where interveners seek costs against husband – Financial circumstances – Wholly unsuccessful application for leave to appeal – Where written offers to settle were reasonable and should have been accepted – Husband to pay interveners’ costs of the application for leave to appeal as agreed or assessed – Husband to pay the interveners’ costs of the application for costs as agreed or assessed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where wife seeks costs against husband – Financial circumstances – Wholly unsuccessful application for leave to appeal – Details of written offers to settle not provided – Husband to pay wife’s fixed costs of the application for leave to appeal – Wife’s application for costs of the costs application dismissed.

  • Aldous & Samways [2021] FamCAFC 21

    22 Feb 2021

    FAMILY LAW – APPEAL – PARENTING – Appeal against order granting equal time parenting – Failure to consider whether equal time parenting reasonably practicable due to work commitments – Overseas travel – Orders beyond scope of those sought – Appeal allowed – Further submissions required as to orders pending remitted re-hearing – Costs certificates issued to parties and the Independent Children’s Lawyer for appeal and rehearing

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where respondent sought to adduce further evidence of work commitments – Evidence said to be controversial – Purpose of evidence to finalise proceedings without retrial – Purpose cannot be achieved – Application dismissed

  • Beamish & Coburn (Deceased) [2021] FamCAFC 20

    22 Feb 2021

    FAMILY LAW – APPEAL – COSTS – Appeal from costs order against counsel and solicitor – Jointly and severally liable for successful respondent’s costs of proceedings before the primary judge – Breakdown of de facto relationship – Where the proceedings were doomed to fail but were nonetheless pursued – No error by the primary judge – Appeal dismissed with fixed costs – Legal representatives jointly and severally liable for respondent’s costs of appeal and cross-appeal.

    FAMILY LAW – CROSS-APPEAL – COSTS – Cross-appeal from costs order against counsel and solicitor – Rule 19.10 of the Family Law Rules 2004 (Cth) – Where quantum and apportionment were not raised before the primary judge – Cross-appeal dismissed with fixed costs – Legal representatives jointly and severally liable for respondent’s costs of the appeal and cross-appeal.

  • Andris & Andris [2021] FamCAFC 18

    19 Feb 2021

    FAMILY LAW – COSTS CERTIFICATES – Application for costs certificates where parties agree errors of law – Appeal determined without oral hearing – Where the parties contributed to the difficulties which underpin the errors made by the trial judge – Application for certificates refused.

  • Kovac & Hurst [2021] FamCAFC 14

    19 Feb 2021

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Mother seeks expedition of her appeal against final orders relating to the father’s time with the parties’ children – Where the orders are stayed pending appeal – Expedition not opposed – Appeal raises child welfare and abuse issues – Factors justify this appeal being given priority over other appeals – Application granted.

  • Dixon & Elliot [2021] FamCAFC 27

    18 Feb 2021

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the appellant seeks expedition of the hearing of his appeal – Where the matter commenced sometime in 1984 but was not then dealt with for in excess of 30 years – Where the appellant is 81 years of age and is anxious to have the matter finalised as soon as possible given its extended history – Where it is not appropriate that another matter be removed from the April list to include this matter – The matter be listed as the first reserve in the April 2021 list and if not heard in that list it be expedited and be listed with priority in the June 2021 sittings.

  • Delaney & Delaney [2021] FamCAFC 26

    18 Feb 2021

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Application for an extension of time in which to file a Notice of Appeal – Where the circumstances for the failure of the applicant to file the Notice of Appeal within time are not of themselves a basis for dismissing the application – Where none of the so-called grounds of appeal have any chance of success and the appeal is without merit – Where the prejudice to the respondent outweighs the prejudice to the applicant – Where there is no utility in granting the application – Application dismissed.

  • Gamage & Kumara [2021] FamCAFC 25

    18 Feb 2021

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the principal issue is the order for the sale of a property – Where the subject property has been sold – Where the appeal is rendered futile insofar as it seeks to appeal against the order providing for the sale and the other orders in relation to effecting that sale – Where the facts propounded in support of the application for leave to appeal are simply inadequate and do not demonstrate any basis for leave to appeal to be granted – Where the grounds of appeal do not identify any appealable error by the primary judge – Appeal dismissed.

  • Akhtar & Gaber [2021] FamCAFC 22

    18 Feb 2021

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – Apprehended bias – Where the appellant seeks disqualification of each member of the bench – Separate reasons provided by each judge – Test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 not satisfied – Litigants not to pick and choose judges – Application dismissed.

  • Hicks & Trustee of the Bankrupt Estate of Hicks [2021] FamCAFC 19

    18 Feb 2021

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge set aside consent orders pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) and made orders in substitution – Where the husband did not participate in the proceedings – Adequate reasons – Whether the primary judge had proper regard to the husband’s application of substantial funds – Where the husband has not given any explanation as to the transfer of significant amounts overseas – Where the husband’s debts proven in bankruptcy are to be paid solely by him – Where the primary judge emphasised the limitation that existed by reason of the husband’s non-disclosure and non-participation in the proceedings – Non-disclosure – Whether, without information about the husband’s circumstances, it is possible to identify a just and equitable settlement of property – Where recent Full Court authority supports the principle that a party should not be able to take advantage of his or her own non-disclosure – Appeal dismissed – No order as to costs.

    FAMILY LAW – CROSS-APPEAL – PROPERTY – Credibility – Whether the primary judge ought to have found that the wife was an unreliable witness – Where the primary judge’s findings were open on the evidence – Bankruptcy – Whether the primary judge ought to have found that the husband’s debts were joint debts – Where the wife did not have any involvement in the transaction that created the debt – Where it was within the ambit of a legitimate exercise of discretion for the primary judge to deal with the husband’s debts in the manner in which his Honour did – Cross-appeal dismissed – No order as to costs.

  • Stern & Colli [2021] FamCAFC 15

    18 Feb 2021

    FAMILY LAW – APPEAL – PARENTING – Allegation of bias – Best interests (section 60CC Family Law Act 1975 (Cth)) – Findings of fact – Injunctions – Weight challenges – Adequate reasons – Expertise of family report writer – Currency of evidence – Notation re Rice & Asplund (1979) FLC 90-725 – No error of law or of fact is demonstrated and there is no merit in any of the grounds of appeal – Appeal dismissed.

  • Scollan & Allamby [2021] FamCAFC 17

    10 Feb 2021

    FAMILY LAW – LEAVE TO APPEAL – APPEAL – DISMISS – Where the respondent seeks that the appellant’s Amended Notice of Appeal be summarily dismissed – Where the grounds of appeal in the Amended Notice of Appeal are incompetent and fail to identify any appealable error by the primary judge – Where the appeal has no prospect of success and thus the application for leave to appeal should be dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appellant opposes the respondent’s application for costs – Where the opposition by the appellant to the application by the respondent seeking dismissal of his appeal was wholly unsuccessful – Where that satisfies the requirement of a justifying circumstance to make an order for costs – Where the financial circumstances of the parties do not prevent an order for costs being made – Where there is ample Full Court authority which provides that even where there is impecuniosity that is not a bar to an order for costs being made where the circumstances otherwise justify it – Where the appellant’s position cannot be described as impecunious – Costs ordered in favour of the respondent in the amount sought.

  • Wadsley & Cabassa [2021] FamCAFC 16

    09 Feb 2021

    FAMILY LAW – APPEAL – REINSTATE – Where the applicant seeks to reinstate an appeal deemed abandoned as a result of his failure to file an appeal book as ordered – Where there is no utility in allowing the appeal to proceed – Where there is no adequate or acceptable reason for the failure to file the appeal book 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.

  • Colburn & Cleese [2021] FamCAFC 12

    12 Feb 2021

    FAMILY LAW – APPEAL – COSTS – Appeal succeeded on a ground not raised by the appellant – Hypothetical or advisory opinion – Where the respondent seeks that the appellant pay her costs of the appeal – Financial circumstances – Conduct of both parties to the proceedings weighs in favour of no order as to costs – No costs certificates granted – Appellant’s application for his costs of meeting the respondent’s costs application dismissed.

  • Atwood & Atwood [2021] FamCAFC 11

    12 Feb 2021

    FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – No recognised ground of appeal particularised – No appealable error identified – Notation made on the invitation of the parties that the child may approach the mother of his own volition.

    FAMILY LAW – APPEAL – PROPERTY – Appeal against superannuation splitting order – Undeclared superannuation interests – No evidence adduced at trial or in the appeal – No error demonstrated.

    FAMILY LAW – APPEAL – COSTS – Appeal against costs order – Financial circumstances – No error identified – Appeal dismissed – No order as to costs.

  • Best & Best [2021] FamCAFC 13

    11 Feb 2021

    FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Rebuttal of presumption of equal shared parental responsibility – Best interests of the child – Relocation – Restraint – Reasons given in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Decision of the primary judge not plainly wrong – Adequate reasons – Appeal dismissed – Appellant father to pay the respondent mother’s costs of the appeal.

  • Beroni & Corelli [2021] FamCAFC 9

    10 Feb 2021

    FAMILY LAW – APPEAL – BINDING FINANCIAL AGREEMENT – Undue influence – Unconscionability – Free will – Wife’s proficiency in English – Adequacy of legal advice – Circumstances amounting to undue influence – Onus of proof – Special disadvantage – Terms of the binding financial agreement a factor in demonstrating vitiating factors – Failure to call solicitor – Rule in Jones v Dunkel – No merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the husband wholly unsuccessful in the appeal – Where substantial disparity between the financial circumstances of the parties, favouring the husband – Costs ordered in favour of the wife in the amount sought.

  • Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10

    05 Feb 2021

    FAMILY LAW – APPEAL – HAGUE CONVENTION – Where the orders appealed providing for the return of the subject child from Australia to Canada have not been complied with – Where the appellant has now filed an application pursuant to regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the appellant asserts that since the making of the return order circumstances have arisen which make it impracticable for the order to be carried out and/or there are exceptional circumstances which exist that justify the return order being discharged – Where the application has not been dealt with by the primary judge because her Honour considered it should await the hearing and determination of this appeal – Where all remedies that are available at first instance should be pursued before any appeal is heard and determined – Where in the event that this appeal proceeded and was heard and determined and the regulation 19A application was pursued there may very well be an appeal against that determination and that circumstance should be avoided – Where the respondent is principally concerned about any delay that may flow from the adjournment of this appeal given the non-compliance with the return order – Appeal adjourned to a date to be fixed.

  • Butler & Gibson [2021] FamCAFC 8

    05 Feb 2021

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – Appeal from interim parenting orders – Appellant failed to file Summary of Argument – Appellant failed to appear at hearing of summary dismissal application – Grounds of appeal too broad to make sense without a Summary of Argument – Any extension of time would deprive respondent of the opportunity properly to prepare for the appeal – Appeal dismissed.

  • Jaynes & Rundle [2021] FamCAFC 7

    05 Feb 2021

    FAMILY LAW – APPEAL – COSTS – Where the appeal was dismissed – Where the father seeks costs at scale in a fixed sum – Father’s financial circumstances stronger than the mother’s – Wholly unsuccessful – Conduct of the parties to the proceedings considered – No order as to costs.

  • Ellsworth & Hunnisett [2021] FamCAFC 6

    04 Feb 2021

    FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders made by consent – Where the “correctness” or merits of orders made by consent cannot be challenged on appeal – Where the appeal does not raise any question of general principle – Where a number of grounds contain no sufficient particulars such that it is possible to discern the precise error or errors contended for – Whether the lawyers representing the father at the time the orders were made were incompetent – Where the father fails to establish anything about the asserted conduct of his lawyers as to sustain a characterisation of incompetence in their conduct – Appeal dismissed – Father to pay mother’s costs in a fixed sum.

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the father seeks to adduce a number of documents which he says support his position – Where the documents were either available at the time of trial or dated subsequent to the final orders – Where the nature and content of the further evidence could only be relevant to a challenge on appeal as to the merits of the orders – Where none of the criteria for the admission of further evidence on appeal identified in CDJ v VAJ (1998) 197 CLR 172 are met – Application dismissed.

  • Grace & Grace [2021] FamCAFC 5

    03 Feb 2021

    FAMILY LAW – APPEAL – COSTS – Wholly unsuccessful – Offer in writing – Financial circumstances – Conduct of the respondent mother – Mother to pay the appellant father’s costs of the appeal.

  • Thompson & Finch [2021] FamCAFC 3

    28 Jan 2021

    FAMILY LAW – APPLICATION IN AN APPEAL – INDEMNITY COSTS – Where costs are sought calculated on an indemnity basis – Where the respondent was wholly unsuccessful and her appeal was dismissed – Where the circumstances justify an order for costs – Where there are exceptional circumstances which warrant an order for indemnity costs – Costs fixed in the sum of $13,500 pursuant to r 19.18(1)(a) of the Family Law Rules 2004 (Cth).

  • Tomaras & Tomaras [2021] FamCAFC 4

    25 Jan 2021

    FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the husband seeks that the wife pay security for costs – Where there is substantial delay in the application being brought – Where in the interim the wife has incurred significant expense to prepare the appeal book and is impecunious – Where an order for security for costs in the amount sought by the husband would likely stifle the hearing of this appeal – Where there is no suggestion that the appeal is not brought bona fide – Application dismissed – No order as to costs.

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the husband sought an extension of time to file his Summary of Argument and List of Authorities – Where the husband has a history of non-compliance with orders for filing material – Where the wife does not identify any particular prejudice that is occasioned to her if the extension of time was granted – Extension of time granted – No order as to costs.

  • Fei & Woong [2021] FamCAFC 2

    22 Jan 2021

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the primary judge made an interim order that the parties be equally responsible for mortgage repayments – Where no formal application was filed by the wife in advance of the hearing – Where there is no articulation in the reasons of the juridical source of power the primary judge relied upon for making the order – Where a vast majority of his Honour’s reasons were dedicated to establishing the need for an order which would encourage settlement between the parties – Where the primary judge’s reasons as a whole support the wife’s argument that his Honour was guided by irrelevant considerations – Leave to appeal granted – Appeal allowed.

    FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where both parties sought costs certificates – Where the wife contributed to the misdirection of the proceedings by failing to file a proper application and affidavit in advance of the hearing – Where submissions made by the husband’s counsel before the primary judge appear to have been instrumental in leading the primary judge into error – Where it is inappropriate to expect the public purse to meet any of the costs associated with these proceedings.

    FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Where the further evidence sought to be adduced is not relied upon to establish error on the part of the primary judge, but for the purpose of any re-exercise of discretion – Where matter remitted for rehearing – Application dismissed.
  • Keane & Keane [2021] FamCAFC 1

    18 Jan 2021

    FAMILY LAW – APPEAL – PARENTING – Where the mother appeals against parenting orders in relation to the father spending unsupervised time with the child – Where the primary judge made orders for a graduated arrangement for the child to spend supervised to unsurprised time with the father – Family Violence – Where the appellant argues that the primary judge erred in not inferring from the evidence available to him that the mother’s parenting capacity would be adversely impacted such that it was necessary for him to make an order for the child’s time with the father be supervised in order to ameliorate the extent of the mother’s distress – No error in the primary judge’s exercise of discretion – Findings open to the primary judge – No error of fact or law established – No error in attributing weight to the evidence – Appeal dismissed – No order as to costs.

  • Lietzau & Lietzau (No. 3) [2021] FamCAFC 324

    17 Dec 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – REOPEN – Where the applicant seeks that an earlier hearing of this Court be reopened and the question of whether leave to appeal is required be reheard – Where there are two circumstances according to authority which would allow for a reopening of the hearing – Where the applicant does not address either of those two circumstances and instead asserts that he was not afforded procedural fairness – Where this Court heard the earlier application and determined it should be dismissed –– Where whether the applicant was afforded procedural fairness or not is not an issue for this Court on an application to reopen but for any Appeal Court should the applicant wish to complain on that basis – Where the applicant’s only remedy is to seek special leave to appeal to the High Court of Australia – Application dismissed.