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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.

  • Wallis & Manning [2017] FamCAFC 14

    10 Feb 2017

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where appeal related to the trial judge’s assessment of contributions – where the appellant counsel’s assertion that the trial judge’s assessment fell ‘outside the range reasonably available in the circumstances’ was insufficient, without more, to found an appealable error – where there was significant delay between trial and delivery of judgement – where that delay resulted in the trial judge’s failure to properly consider evidence in the assessment of contributions – where the trial judge erred by referring to a property purchased jointly by the parties as part of gifts given by the husband’s father – where the trial judge failed to include as a contribution an inheritance received by the wife – where the trial judge then assessed contributions as significantly in favour of the husband – appeal allowed.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – ‘outside the range’ – whether comparable cases should be considered in the exercise of discretion – where comparable cases may provide guidance when exercising the s 79 discretion.

    FAMILY LAW – APPEAL – RE-EXERCISE OR REMITTER – where both parties requested re exercise in the event of error – where the parties submitted that court should proceed on the assumptions that interests in property, their values and uncontroversial fact findings pertained as at the hearing of appeal – where each of the parties provided further written submissions related to the assessment of contributions – s 79 discretion re-exercised.

  • Winters & McGuigan [2017] FamCAFC 13

    09 Feb 2017

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

    FAMILY LAW – APPEAL – COSTS – Application for costs of abandoned appeal – Where the appeal was deemed abandoned because the appellant failed to comply with an order for the filing of the appeal books – Where the financial circumstances of the parties are a relevant consideration – Where the parties have property proceedings currently before the court – Costs ordered to be paid from the appellant’s property settlement entitlement.

  • Fleming & Schmidt [2017] FamCAFC 12

    09 Feb 2017

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

    FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – where the trial judge declared that a de facto relationship existed between the parties for approximately 20 years – where the appellant asserts that the trial judge erred in so declaring – where the appellant attempted to re-agitate the same or similar arguments as he did before the trial judge – where the appellant contended that determinative weight ought to have been placed upon those circumstances which he said contra-indicated the existence of a de facto relationship – where the Full Court found no error in the trial judge’s approach – appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – where the appellant sought to challenge on appeal the findings of the trial judge in respect of the identity and valuation of property to be considered – where the parties had agreed at trial upon the items and valuation of property before the trial judge – where it was not open for him to make such challenges for the first time on appeal – where the appellant made complaint about his legal representation at the trial – where no error on the part of the trial judge was demonstrated – appeal dismissed.

    FAMILY LAW – SEPARATE APPEAL – COSTS – where the appellant in this appeal sought to appeal a costs order made by the trial judge – where the appellant contended that the trial judge erred in the quantum of costs ordered – where no error is demonstrated – appeal dismissed.
  • Kennedy & Thorne (Costs) [2017] FamCAFC 11

    09 Feb 2017

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

    FAMILY LAW – APPEAL – COSTS – Where the appellant seeks an order that the respondent pay the costs of the trial and of the appeal – Where the respondent seeks that there be no order as to costs – Where it is considered that the disparity in the parties’ financial circumstances coupled with the wife’s position at trial not being unreasonable militates against an order for the costs of the trial being made – Where the application for the costs of the trial is dismissed – Where it was plainly unreasonable for the respondent to reject the settlement offers in the context of the appeal – Where the respondent is to pay the costs of the deceased’s estate of and incidental to the appeal.

  • Surridge & Surridge [2017] FamCAFC 10

    03 Feb 2017

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where trial judge erred by including debts owed by the husband in the asset pool – where that finding was not open on the evidence – where husband has not made full and frank disclosure – where trial judge made adverse findings regarding credibility of husband and his evidence – where trial judge gave inadequate consideration of these matters in assessment of s 79(4)(e) – where trial judge should not have included hurt on duty pension in the asset pool – appeal allowed.

    FAMILY LAW – APPEAL – RE-EXERCISE OR REMITTER – where a rehearing would cause substantial injustice – s 79 discretion re-exercised.

  • Goudarzi & Bagheri [2017] FamCAFC 9

    07 Feb 2017

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

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the appellant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where no reasonable explanation for delay – Where prejudice to the respondent if appeal reinstated – Where grounds of appeal unlikely to attract appellate intervention – Application dismissed.

  • Telama & Telama [2017] FamCAFC 8

    06 Feb 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s solicitors failed to file the draft index to the appeal books on time – Where the delay was minimal – Where the respondent would suffer no prejudice if the appeal is reinstated – Where it is in the interests of justice for the appeal to be reinstated – Application allowed – No order as to costs.

  • Bilson & Geer (Costs) [2017] FamCAFC 7

    06 Feb 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the applicant seeks her costs of an abandoned appeal – Where the respondent’s conduct in the proceedings has caused undue delay and unnecessary costs to the applicant – Where a major purpose of the respondent’s abandoned appeal was to force the applicant to settle – Where an order for costs is justified – Discussion of principles for fixing costs – Order for costs in a fixed sum.

  • Cuthbert & Cuthbert [2017] FamCAFC 6

    06 Feb 2017

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

    FAMILY LAW – APPEAL – PROPERTY – Treatment of a debt owed to a company owned and operated by the parties prior to their separation – Where the primary judge found that the wife should not bear responsibility for the debt – Where the primary judge included the company at nil value in the list of assets and the debt in the list of liabilities – Where the wife argued that by not excluding the debt from the calculation of the asset pool, she in fact shared in the liability – Where the primary judge erred by not excluding the debt from the list of assets and liabilities – Appeal allowed – Order made for an additional payment to the wife by the husband.

    FAMILY LAW – CROSS-APPEAL – PROPERTY – Whether the primary judge incorrectly valued a company held by the husband – Where the valuation of the company depended on whether a sum of money, which had been drawn from the company and used by the husband for personal expenses, could be characterised as a company purchase expense – Where there was conflicting evidence as to whether the transactions could be attributed to the company’s loan account or its expenses ledger – Where the primary judge’s findings were open to him – No error established.

    FAMILY LAW – CROSS-APPEAL – PROPERTY – Whether the primary judge failed to take into account or give sufficient weight to the husband’s post-separation development of a company – Where the majority of an inheritance the wife received had been expended on the parties’ businesses – Where the funds used by the husband to establish the company were derived from the parties’ joint assets – Where the increase in value of the husband’s company was not solely due to his efforts – No error established – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent was wholly unsuccessful – Husband to pay the wife’s costs of both the appeal and the cross-appeal.

  • Bangi & Belov [2017] FamCAFC 5

    03 Feb 2017

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

    FAMILY LAW – APPEAL – CHILDREN – Where the father appealed final parenting orders that the child live with the mother – Where the father alleged the orders were based on inconsistent findings and findings not supported by the evidence – Whether the trial judge failed to give adequate weight to the family consultant’s view about the mother’s parenting capacity – Whether the trial judge erred in the weight she gave to the family consultant’s evidence – Where the mother did not respond to evidence as to risk in the child’s living circumstances and this evidence was accepted by the trial judge – Where the family consultant was not aware of this evidence when he made his recommendations – Where the trial judge erred in the weight she gave to the family consultant’s evidence in these circumstances – Appeal allowed.

    FAMILY LAW – COSTS – COSTS CERTIFICATES – Where there was no order as to costs made – Where the appeal succeeded on errors of law – Costs certificates ordered for the appellant for the appeal and rehearing.

  • Barrett & Barrett and Anor [2017] FamCAFC 4

    03 Feb 2017

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

    FAMILY LAW – APPEAL – CHILDREN – Where the appellant challenged the alleged restriction on his relationship with the children and the orders for time spent – Where the appeal is opposed by the respondent and the Independent Children’s Lawyer – Where the appellant’s grounds of appeal lack particulars and the asserted errors cannot be discerned – Where the trial judge applied the relevant sections of the Family Law Act 1975 (Cth) and gave adequate reasons for her decision – Where the appellant was unable to demonstrate that the trial judge erred in the exercise of her discretion – Where there is no merit in any of the grounds of the appeal – Where the appeal is dismissed.

    FAMILY LAW – COSTS – Where no order is made as to costs.
  • Charles & Charles [2017] FamCAFC 3

    12 Jan 2017

    FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge erred her determination of wastage arguments advanced by the wife – Whether the primary judge erred by including and/or not including certain items in the non-superannuation asset pool – Whether the primary judge erred in her overall assessment of contributions and in making an adjustment of only 15 per cent in favour of the wife pursuant to s 75(2) – Where no appealable error established – Appeal dismissed – Wife to pay husband’s costs of and incidental to the appeal.  

  • Morrall & Olmos [2017] FamCAFC 2

    12 Jan 2017

    FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Where the father appeals against final parenting orders which permit the mother to relocate the child to Germany – Where the grounds of appeal challenge findings, the exercise of discretion and weight given to various factors – Whether the primary judge erred in his consideration of the parties’ competing proposals – Whether the primary judge erred in his application of s 60CC(2)(a) of the Family Law Act 1975 (Cth) – Whether the primary judge erred in his evaluation of expert evidence – Whether the primary judge made errors of fact – Where the exercise of making parenting orders for the future is discretionary as per U v U (2002) 211 CLR 238 – Where the primary judge is not bound to accept the evidence of the family consultant – Where the findings made by the primary judge were open on the evidence – Appeal dismissed.

    FAMILY LAW – APPEAL – STAY – Where the father appeals against refusal to grant a stay of orders pending the determination of his relocation appeal – Where primary appeal will be dismissed – No utility in stay appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where both appeals dismissed and the father has been wholly unsuccessful – Where an order for costs would impede the father’s ability to meet travel costs associated with the parenting orders – Mother’s application for costs dismissed.
  • Backford & Backford and Anor [2017] FamCAFC 1

    12 Jan 2017

    FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – With whom a child spends time – The trial judge made orders for the children to live with their respective fathers and spend a minimum of three hours with the mother every three weeks – The trial judge did not fail to have regard to the Aboriginal heritage of the children; fail to afford procedural fairness; err in allowing the trial to be re-opened; demonstrate apprehended bias; fail to have regard to the factors in s 60CC of the Family Law Act 1975 (Cth); or make findings that were not open on the evidence – Appeal dismissed – No costs orders sought.  

  • Nimmo & Bush [2016] FamCAFC 274

    22 Dec 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – application to expedite an appeal – where Family Law Rules 2004 (Cth), r 12.10A is relevant to applications to expedite appeals – where grounds for appeal assert procedural unfairness and apprehended bias – where applicant has acted reasonably and without delay – where there are concerns of harm to child – where case should be given priority to detriment of other cases – application allowed.  

  • D Pty Ltd and Ors & Sadler and Ors (Costs) [2016] FamCAFC 273

    23 Dec 2016

    FAMILY LAW – APPEAL – COSTS – Where the appellant companies seek their costs of the appeal – Financial circumstances of the parties – Conduct of the parties to the proceedings – Whether the first respondent wife was wholly unsuccessful – Where the appellants rely on offers of settlement made to the wife – Where one purported offer of settlement cannot properly be regarded as such – Application for costs dismissed – Where it would not be appropriate to issue certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to either party.  

  • COG15 & Child Support Registrar and Anor [2016] FamCAFC 272

    22 Dec 2016

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the appeal from the Social Security Appeals Tribunal to the Federal Circuit Court of Australia was filed before the commencement of the Tribunals Amalgamation Act 2015 (Cth) but heard and determined afterwards – Where ss 110B and 110F of the Child Support (Registration and Collection Act) 1988 (Cth) thus applied as though they were not repealed (s 7(2)(e) Acts Interpretation Act 1901 (Cth)) and the Family Court of Australia had jurisdiction to hear the appeal – Where the appellant’s claim that he was denied procedural fairness lacks substance – Where the appellant was afforded a reasonable opportunity to present his case – Where it was open to the trial judge to find that the appeal book provided by the first respondent comprised copies of all of the documents before the Social Security Appeals Tribunal – Where the trial judge addressed these documents at length and clarified with the appellant where they were referred to in the reasons for judgment of the Social Security Appeals Tribunal – Where the court is satisfied these documents were before the Social Security Appeals Tribunal – Where it was not established that the trial judge failed to have regard to these documents – Where a financial impact resulting from court orders does not by itself justify a grant of leave to appeal – Where the view expressed by one judge when hearing a security for costs application cannot bind another who subsequently hears and determines the appeal – Where the appellant’s claim of bias was not distinctly made and clearly proved – Where it is not open to the appellant to suggest that the trial judge determined the matter without having read the reasons for judgment of the Social Security Appeals Tribunal – Where the appellant’s complaints comprise bare assertions and are devoid of detail or substance – Where the grounds of appeal failed to demonstrate any error of law – Where there is no error of principle or substantial injustice – Application for leave to appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the first respondent sought their costs in the event leave to appeal was not granted – Where the appellant was wholly unsuccessful – Where financial impecuniosity is not a bar to an order for costs where such order is otherwise justified – Costs ordered in favour of first respondent. 

  • Welch & Abney [2016] FamCAFC 271

    22 Dec 2016

    FAMILY LAW – APPEAL – PROPERTY – Superannuation – Whether the primary judge erred in the approach he took to the division of the parties’ property with respect to the wife’s non-commutable and contingent pension for total and permanent disability (“TPD pension”) received as component of her occupational superannuation – Where primary judge adopted as the present value of the TPD pension the capitalised amount calculated pursuant to s 90MT(2) of the Act but made no splitting order – Whether primary judge failed to properly consider the evidence of the single expert as to the different nature of the TPD pension from normal superannuation interests – Where primary judge failed to take account of taxation upon the TPD pension and failed to take account of contingencies – Where primary judge failed to recognise the contribution of the wife if the TPD pension was treated as having the value of the capitalised amount – Where orders made were not just and equitable – Appeal allowed – Proceedings remitted for re-hearing.  

  • Maine & Maine [2016] FamCAFC 270

    22 Dec 2016

    FAMILY LAW – APPEAL – PROPERTY – appeal against orders for property settlement made 11 years after the parties finally separated – where the trial judge considered issues arising from an agreement between the parties – where the trial judge was required to consider whether it was just and equitable to make an order pursuant to s 79(2) – where the trial judge was then required to consider what order should be made pursuant to s 79(4), including the respective contributions of the parties before, during and after the marriage – where the trial judge’s reasons strongly suggest a conflation of s 79(2) and s 79(4) – where the trial judge failed to consider the parties’ contributions during the 11-year post separation period – where the trial judge erred in his Honour’s assessment of the direct and indirect financial contributions of the parties – where the trial judge was required to make findings in respect of evidence that addressed specifically the impact that the violence in the relationship had upon the wife’s contributions, as outlined in Kennon v Kennon (1997) FLC 92-757 – appealable error established – appeal allowed – matter remitted  for rehearing – costs certificates granted.  

  • Loomis & ML Lawyer [2016] FamCAFC 269

    22 Dec 2016

    FAMILY LAW – APPEAL – SINGLE JUDGE APPEAL – COSTS – where the appeal was dismissed – where the respondent solicitors seek an order for costs – where the appellant father was wholly unsuccessful – where an offer and counter offer were made between the parties – conduct of the parties – financial circumstances – where the circumstances of the case justify an order for costs – where the appellant father ordered to pay the costs of the respondent solicitors fixed in the sum of $9,000.  

  • Gaynor & Barnsley [2016] FamCAFC 268

    21 Dec 2016

    FAMILY LAW – APPEAL – CHILDREN – Interim parenting orders for a baby – Where the parties proposed consent orders in relation to the disposition of the appeal – Denial of procedural fairness – Where trial reasons were inadequate – Appeal allowed – Orders set aside – Where proposed interim parenting orders were in the best interest of the child.  

  • Brick & Brick [2016] FamCAFC 267

    20 Dec 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the father for an extension of time to file an Amended Notice of Appeal and Summary of Argument – Application allowed.

    FAMILY LAW – APPEAL – CHILDREN – Where the orders made by the trial judge provided that the mother have sole parental responsibility and the father may not communicate or see the children unless at their instigation or invitation – Where the mother must facilitate any request by the children to spend time or communicate with the father – Where the father appeals on the basis that the trial judge should have made orders for equal shared parental responsibility and should not have restricted his communication with the children – Where the children previously spent time with the father – Where the mother suspended the children’s time with the father because of allegations made by the father’s step-child – Where the father was charged and acquitted of all charges – Where the father argued the trial judge made errors of fact in finding the parents could not communicate – Where there is no error by the trial judge and where the father misunderstands the nature of an order for equal shared parental responsibility – Where the father argued the trial judge failed to have regard to relevant evidence such as his proposals for weekend time and that the children attend counselling – Where the father argued the children gave conflicting views about their desire to see him and that he did not breach an order by communicating with the children in a language other than English – Where there is no merit in the appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where the mother sought costs – Where in the circumstances of this case an order for costs is not justified – No order as to costs.
  • Penman & Felton [2016] FamCAFC 266

    14 Dec 2016

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the respondent opposes reinstatement – Where the applicant provided an adequate explanation for the delay – Where the applicant is a self-represented litigant and has applied for a review of the decision of Legal Aid NSW to refuse his application for legal aid – Where the serious subject matter of the appeal weighs in favour of reinstatement – Appeal reinstated.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks that the applicant pay her costs of the application – Where circumstances giving rise to the application were caused by the applicant’s failure to comply with rules – Applicant to pay respondent’s costs fixed at $3,000.