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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.

  • Rozlapa & Hillet [2020] FamCAFC 276

    12 Nov 2020

    FAMILY LAW – APPEAL – CHILDREN – Where there is no obligation on the court to undertake “further investigation” – Where several grounds of appeal do not assert appealable error of the kind identified in House v The King (1936) 55 CLR 499 – Where the mother asserts the primary judge did not consider an email sent to chambers after the conclusion of the trial – Where it is inappropriate, whether by way of email or otherwise, for a party to directly provide evidence to the primary judge – Where it is rejected that the primary judge ignored the mother’s claims that the father had been domestically violent – Where the primary judge undertook an entirely orthodox risk assessment process, and, having carefully identified and evaluated the relevant evidence, assessed the risk – Where objection was taken to playing the recording however no objection was raised to the tender of the recording – Where a party is bound by the conduct of their case at trial – Appeal dismissed.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the mother sought leave to file an Application in an Appeal to adduce further evidence – Where no sensible explanation was advanced by the mother as to why the Application in an Appeal was sought to be filed so close to the hearing – Where material was controversial and of peripheral relevance – Leave refused.

    FAMILY LAW – APPEAL – COSTS – Where indemnity costs was quite properly not pressed by the father – Late filing of party/party costs schedule – Absence of any evidence of either party’s financial position – Father’s application for costs dismissed.

  • Cheadle & Pointer [2020] FamCAFC 277

    10 Nov 2020

    FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from orders providing for the child to live with the father and to spend time with her, with the extent of such time contingent on her psychological assessment – Risk of harm – Whether findings are supported by the evidence – Whether the primary judge took irrelevant matters into account – Adequacy of reasons – Whether the primary judge gave insufficient weight to evidence – Where it was open to the primary judge to order that the child live with the father – No error identified – Appeal dismissed – Costs ordered in a fixed amount.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the mother seeks by two applications to adduce further evidence – Where the applications are misconceived – Where the proposed further evidence would not aid the mother’s case – Where the second application was filed out of time – Where the applications fail the test imposed by CDJ v VAJ (1998) 197 CLR 172 – Applications dismissed.

  • Hobson & Hobson (No. 2) [2020] FamCAFC 275

    10 Nov 2020

    FAMILY LAW – APPEAL – RE-EXERCISE – Where the appeal was allowed and the parties were ordered to file and serve written submissions as to re-exercising the discretion or remitting the matter for rehearing – Where the parties failed to comply with those orders – Upon enquiry by the Appeal Registrar this Court was advised that the matter had resolved – Where a signed Minute of Consent Orders was provided in effect resulting in none of the orders of the primary judge being set aside but the respondent husband paying to the appellant wife an additional sum – Discretion re-exercised – Consent orders made as sought.

    FAMILY LAW – APPEAL – COSTS – Where the parties seek costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the making of those orders was foreshadowed in the reasons for judgment delivered by this Court – Costs certificates ordered as sought.

  • Fabron & Fabron [2020] FamCAFC 274

    09 Nov 2020

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Child support departure order – Where the primary judge dismissed the applicant mother’s application for a child support departure order – Where the respondent father’s ability and capacity to pay weighed against making the order sought – Adequate reasons – Where the primary judge’s decision is not attended by sufficient doubt to warrant it being reconsidered by the Full Court – Application for leave to appeal dismissed – Applicant to pay the respondent’s costs in a fixed sum.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the proposed evidence is controversial – Where the Application in an Appeal was not filed in accordance with r 22.39 of the Family Law Rules 2004 (Cth) – Application dismissed.

  • Loncar & Loncar [2020] FamCAFC 273

    04 Nov 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – Dispense with transcript – Where leave is granted for the appeal to be heard without the requirement to include the transcripts of the trial proceedings in the appeal book.

  • Zagar & Bacall [2020] FamCAFC 268

    06 Nov 2020

    FAMILY LAW – APPEAL – PROPERTY – COSTS CERTIFICATES – Appeal against final property settlement orders – Procedural fairness – Error of law – Appeals allowed by consent – No order as to costs – Costs certificates granted to the parties – Reasons given as to the grant of costs certificates.

  • Tobias & Tobias [2020] FamCAFC 271

    06 Nov 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal from final orders made dismissing property proceedings – Both parties retained the assets and liabilities then in their name – Where there was a 14 week delay in filing – Where there is some excuse for the very considerable delay – Where challenges which appellant husband seeks to make in relation to the judgment appear to have merit – Application granted – Time to file extended to seven days from the date of these orders – Order for costs against the husband.

  • Philkin & Philkin [2020] FamCAFC 263

    02 Nov 2020

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is no adequate explanation for the failure to file Notices of Appeal within time or for the delay in filing the Application in an Appeal seeking extensions of time – Where leave to appeal is not required but if it were the facts relied on by the applicant do not justify leave being granted and do not address the requirements for that to be achieved – Where the appeals have no merit – Where the prejudice to the respondent looms large if the application succeeds – Where the strict application of the Rules does not work an injustice – Application dismissed.

    FAMILY LAW – COSTS – Where the respondent and the Independent Children’s Lawyer seek orders for costs – Where the application was wholly unsuccessful and thus there is a circumstance which justifies orders for costs – Where the applicant’s financial circumstances should not prevent orders for costs being made – Where no hardship to the applicant is established – Costs ordered as sought by the respondent and the Independent Children’s Lawyer.

  • Philkin & Philkin (No. 2) [2020] FamCAFC 264

    02 Nov 2020

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the applicant seeks orders extending the time to file Notices of Appeal – Where no satisfactory explanation is provided for the failure to file Notices of Appeal within time – Where leave is not required but if it were the facts relied on are completely inadequate and do not demonstrate any basis for leave to be granted – Where there is no merit in either of the proposed appeals – Application dismissed.

    COSTS – Where the respondent seeks an order for costs – Where the applicant opposes any order for costs being made and cites his financial circumstances – Where the application has been unsuccessful and thus there is a circumstance justifying an order for costs – Costs ordered as sought by the respondent.

  • Millwood & Millwood (No. 2) [2020] FamCAFC 266

    06 Nov 2020

    FAMILY LAW – APPEAL – PARENTING – Where the appellant father appeals from final parenting orders – Unacceptable risk of harm – Adequacy of reasons – Whether the primary judge failed to take into account material considerations – Whether the primary judge “elevated” opinions of the single expert – Decision of the primary judge not unreasonable or plainly unjust – No error in exercise of discretion – No error of fact or law established – Appeal dismissed – Costs ordered against the father.

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Written and oral applications by the father to adjourn the appeal hearing – Application by the respondent mother to dismiss the appeal – Where the father did not file his Summary of Argument as directed by the Appeal Registry – History of father’s conduct in prosecuting the appeal shows little prospect of him complying with directions – Procedural fairness – Father afforded the opportunity to make oral submissions on the appeal – Applications dismissed.

  • Malloy & Stopford Malloy and Ors [2020] FamCAFC 270

    06 Nov 2020

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Interim property orders – Appeal against orders for the payment of receivers by the husband – Appeal against litigation funding orders – No error identified – Where insufficient doubt attends the orders sought to be challenged – Where no substantial injustice would result if leave is not granted – Application for leave to appeal dismissed.

    FAMILY LAW – CROSS-APPEAL – LEAVE TO CROSS-APPEAL – PRACTICE AND PROCEDURE – Cross-appeal against orders for the production of unredacted financial accounts – Adequate reasons – Where the primary judge’s findings were open on the evidence – Where insufficient doubt attends the orders sought to be challenged – Where no substantial injustice would result if leave is not granted – Cross-applicant’s application for leave to appeal dismissed.

  • Kipling & Netis [2020] FamCAFC 269

    28 Oct 2020

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is no satisfactory explanation for the failure to file the Notice of Appeal within time – Where there is an adequate explanation for the delay in filing the application for an extension of time, noting that that delay was minimal – Where it cannot be said that the appeal has no chance of success – Where there is prejudice either way depending upon the result – Where the justice of the case requires that the application be allowed – Extension of time to file a Notice of Appeal granted.

  • E Pty Ltd and Ors & Zunino and Anor (No. 2) [2020] FamCAFC 272

    05 Nov 2020

    FAMILY LAW – APPEAL – COSTS – Where the wife seeks indemnity costs against the appellants in relation to their application for leave to appeal orders dismissing interlocutory applications – Appellants wholly unsuccessful – Offer to settle by the wife unanswered – Where the circumstances justifying an order for costs also justify an order for indemnity costs – Indemnity costs order made in favour of the wife.

  • Dutnall & Rallin [2020] FamCAFC 265

    02 Nov 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the applicant seeks an order that the Court provide the trial transcript at its own expense – Consideration of the factors in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 – No exceptional circumstances which would require the Court to provide the transcript – Application dismissed – Order made to discharge procedural orders to file the transcript.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Vacate hearing date – Where the appeal is against procedural orders – Where the applicant is incarcerated – Limited factual controversy – Requirement for the prompt and efficient disposal of litigation – Application dismissed.

  • Barnsley & Gaynor [2020] FamCAFC 267

    06 Nov 2020

    FAMILY LAW – APPEAL – PARENTING – Where the appellant father sought equal time – Reasonable practicability – Best interests of the child – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Adequacy of reasons – Decision of the primary judge not plainly wrong – No error in exercise of discretion – No error of fact or law established – Appeal dismissed – Costs ordered against the father in a fixed sum.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Evidence to be adduced only if appeal is allowed and the Full Court re‑exercises the discretion – Application dismissed.

  • Nakul & Sabharwal [2020] FamCAFC 262

    29 Oct 2020

    FAMILY LAW – APPEAL – PARENTING – Where the father contends that the primary judge erred in making an order providing the mother with sole parental responsibility with respect to the child’s school – Where this ground fails as no such order was made, but there was a notation to that effect – Where having made no order for equal shared parental responsibility, the primary judge was not required to consider an order for significant and substantial time pursuant to s 65DAA of the Family Law Act 1975 (Cth) – Where his Honour nonetheless did consider significant and substantial time, but rejected the arrangement proposed by the father – Where it was not necessary for the primary judge in the exercise of his discretion to detail each fact or argument said to be relevant, nor make an explicit finding on each disputed piece of evidence – Where the primary judge, in effect, rejected the father’s proposals for school holiday time and communication beyond what the orders made provided – Where there can be no error in making an order for the mother to travel overseas with the child when the father’s counsel made that concession at trial – Where there is no merit in the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where the father raises weight challenges to the primary judge’s assessment of the parties’ contributions and adjustment under s 75(2) of the Family Law Act 1975 (Cth) – Where the reasons are adequate – Where no error of law or fact demonstrated – Where the father’s claim that the decision was “plainly unreasonable or unjust” does not have a “discernible proper foundation” and must be rejected – Where procedural fairness was afforded – Where there is no merit in the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where both the mother and the ICL seek costs against the father – Where there are circumstances justifying a costs order being made in favour of both the mother and the ICL – Where no financial hardship would be suffered by the father – Costs orders made as sought by the mother and the ICL.

  • Warnett & Amerson (No. 2) [2020] FamCAFC 260

    23 Oct 2020

    FAMILY LAW – APPEAL – PARENTING – Majority decision – Appeal against final parenting orders – Unacceptable risk of harm – Whether the appellant father posed an unacceptable risk of sexual abuse to the child – Where orders were made for the child to spend limited supervised time with the father until 2024 – Adequacy of reasons – Where the many allegations made by the child had different probative value – Where a close analysis as to what each allegation actually meant in light of all the evidence was required in this case – Where the primary judge did not discuss and weigh each allegation made by the child – Appeal allowed – Orders set aside – Matter remitted for rehearing – No order as to costs – Costs certificates awarded to the parties and the Independent Children’s Lawyer.

  • Pitman & Hynes [2020] FamCAFC 259

    22 Oct 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant mother seeks expedition of her appeal against procedural orders – Where the final hearing is listed in three months – Competence of the appeal – Service – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed.

  • Sarti and Anor & Sarti (No. 2) [2020] FamCAFC 261

    21 Oct 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for a stay of a number of orders made by the primary judge sitting in parenting proceedings – Where the primary judge refused to grant a stay – Whether a judge of the Appeal Division of the Family Court of Australia has the power to hear an application for a stay of orders –A refusal to grant a stay would not render every aspect of the appeal nugatory – Application dismissed.

  • Jardine & Sackville [2020] FamCAFC 258

    16 Oct 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Appeal from final parenting orders – The Court is not funded to obtain transcript for parties – Where the interests of justice do not require the Court to provide the transcript in this case – Poor prospects of success on appeal – Where the time to file the transcript is extended – Application in an Appeal dismissed – No order as to costs.

  • McMillan & McMillan (No. 3) [2020] FamCAFC 256

    16 Oct 2020

    FAMILY LAW – APPEAL – RECUSAL APPLICATION – COSTS – Appeal against the primary judge’s refusal to recuse himself and in making an order for costs – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Where the appellant husband uses the grounds of appeal as a vehicle to make broad, unspecified and unsupported criticisms of the primary judge, respondent wife and her legal representatives – No error in the primary judge’s exercise of discretion – No error of fact or law established – Appeal dismissed – Husband to pay the wife’s costs of this appeal in a fixed sum.
    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Adjourn proceedings – Challenge to the completeness of documents in the Appeal Book – Orders sought by the husband cannot be made by the Full Court – Adduce further evidence – Documents sent by the husband on the afternoon before the appeal hearing – Documents not relevant to the appeal – Leave refused.

     

  • Woolam & Odivilas [2020] FamCAFC 257

    15 Oct 2020

    FAMILY LAW – APPEAL – PARENTING – Where the father appeals from parenting orders which provide for, inter alia, the children to live with the mother, for the mother to have sole parental responsibility and for a three month moratorium on the children’s time and communication with the father – Where the primary judge found the father could not provide for the children’s emotional and psychological needs and his conduct presented a risk of psychological harm – Where the primary judge relied upon expert evidence – Where the father alleges bias both on the part of the primary judge and the expert witness – Where no issue of bias on the part of the primary judge was raised at first instance – Where merely making findings adverse to a party does not in and of itself found any complaint of either actual or apprehended bias – Where the central findings made by the trial judge adverse to the father were compelled by the evidence – Where the father’s appeal is without merit – Appeal dismissed – Where there is no order as to costs.

  • Conrad and Anor & Conrad [2020] FamCAFC 255

    15 Oct 2020

    FAMILY LAW – APPEAL – COSTS – Offers of settlement – Scope of s 117(2A)(f) of the Family Law Act 1975 (Cth) – Not limited to offers “plainly more favourable” than the outcome – Offers of settlement one factor relevant to costs – Third party joined – Respondent abandoned action against third party – Where third party sought relief against the respondent – Costs application by third party dismissed – No error established – Appeal dismissed – Costs order made against the appellants in favour of the respondent.

  • Atkins & Hunt and Ors [2020] FamCAFC 252

    09 Oct 2020

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Dispute as to husband’s interest in family companies – Where the husband transferred and disposed of part of his shares from a holding company when the wife’s appeal was pending – “Mere puppet” argument – Where the wife orally asserted that the primary judge introduced two elements to the test, namely a first limb being the establishment of a “mere puppet” and a second limb being “that the company does not truly exist as a separate legal entity”– Onus on the wife to establish “mere puppet” case – Where a Ferrcom inference does not have to be drawn and whether it is drawn remains a matter for the primary judge – Challenge to the observational reference made by the primary judge to s 232 and s 254T of the Corporations Act 2001 (Cth) – Likelihood of any respondents seeking to invoke their rights under the Corporations Act 2001 (Cth) – Where issue was not ventilated before the primary judge – Where the primary judge factored in the ability of the husband to control the direction of income into the value of his shares and included a control premium – Inadequate proof of liabilities by the wife as to whether they were devoted to living expenses or legal fees – Where counsel for the wife encouraged the primary judge to “take a more global approach” in relation to such liabilities – Appeal dismissed.
    FAMILY LAW – APPEAL – COSTS – Where the wife has been wholly unsuccessful and has the capacity to meet an order for costs against the respondents – Costs order in the sum claimed by husband – Wife to pay the costs of the other respondents as agreed or assessed.

     

  • Hobson & Hobson [2020] FamCAFC 251

    09 Oct 2020

    FAMILY LAW – APPEAL – PROPERTY – Appeal against final property adjustment orders – Where overwhelming disparity of initial contributions made by husband – Where both parties made equal contributions during cohabitation – Error in assessment of contribution based entitlements – Consideration of s 75(2) factors – Where a different percentage division is insufficient to establish appealable error – Error in the application of s 75(2)(k) factors – Where an adjustment of four per cent did not adequately compensate the wife for the disparity in earning capacity between the parties – Inadequate reasons – No explanation as to why the outcome arrived was found to be just and equitable – Appeal allowed – Submissions sought as to remission or re-exercise.

  • Hunter & Borman and Anor [2020] FamCAFC 250

    09 Oct 2020

    FAMILY LAW – APPEAL – PROPERTY – Where the parties were in a de facto relationship for approximately 34 years – Whether the primary judge intended to make no orders adjusting the existing property interests of either party in favour of the other – Whether it is readily discernible from the reasons for judgment that the primary judge was not satisfied as to the just and equitable requirement of s 90SM(3) or whether the outcome of the application of s 90SM(4) was that no property adjustment orders be made – Whether the primary judge’s reasons for judgment are adequate – Whether the primary judge failed to take account of material considerations – Appeal allowed and proceedings remitted for rehearing – Where costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) are granted.

  • Spencer & Spencer (No. 4) [2020] FamCAFC 254

    09 Oct 2020

    FAMILY LAW – APPEAL – APPLICATION FOR STAY – Where the Applicant’s appeal to the Full Court of the Family Court of Australia was dismissed – Where the Applicant was ordered to pay the Respondent’s costs of the unsuccessful appeal in a fixed amount of $9,22.94 – Where the Applicant has filed an application to extend time to apply for special leave to appeal to the High Court of Australia – Where the Applicant seeks a stay of the costs order pending her application in the High Court of Australia – Where the Respondent chose not to participate in this application – Application allowed.

  • Sarti and Anor & Sarti [2020] FamCAFC 253

    08 Oct 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Two appeals – Where parents appeal interim parenting orders –Where terminally ill respondent grandfather is to spend time with grandchild – Where parents application for a stay refused – Whether the matter should be afforded priority to the detriment of other cases – Failure to grant expedition would render appeal nugatory – Efficient use of Court’s resources – Appeals consolidated – Application granted.

  • Frangoulis & Xennon [2020] FamCAFC 249

    07 Oct 2020

    FAMILY LAW – APPEAL – PARENTING – Where the father appeals against parenting orders in relation to his time with the children – Family violence – Highly conflicted parental relationship – No unacceptable risk – Eldest child refused contact for years – Younger children have ongoing contact with father – Contact disrupted and supervised – Graduated arrangement for younger children to spend time with father – Exercise of discretion – Order sought by father at trial that he be permitted to attend school events not dealt with – Appeal allowed in part – Re-exercise on discrete issue – Order as to school events not made – Other orders made by consent – Appeal otherwise dismissed.

  • Paradin & Paradin [2020] FamCAFC 245

    07 Oct 2020

    FAMILY LAW – APPEAL – COSTS – Where the respondent made a Calderbank offer – Where the appellant asserts that he could not have accepted the offer put by the respondent because it was ambiguous and did not mention spousal maintenance or child support – Where the issue of child support was vitally important to the appellant as to whether or not he could accept the offer made by the respondent and with that issue unresolved he could not be sure that he could afford to make the payment to the respondent which the offer required – Where the primary judge did not take into account all of the relevant circumstances in play in relation to the offer – Where it is critical to consider the context in which an offer is made – Where there is merit in five of the grounds of appeal – Appeal allowed – Orders made be set aside.
    FAMILY LAW – COSTS – Where both parties sought that costs certificates issue pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appeal is being allowed on a question of law and no order for costs is being made – Costs certificates ordered as sought.

     

  • Suris & Suris [2020] FamCAFC 248

    06 Oct 2020

    FAMILY LAW – APPEAL – INTERIM ORDERS – Where the father appeals from interim parenting orders – Where the primary judge received oral evidence from a family consultant pursuant to s 11F of the Family Law Act 1975 (Cth) – Where the family consultant interviewed the subject children and both parents – Where the children were living with the father and spending limited time with the mother – Where the family consultant recommended the children live with the mother and spend no time with the father – Where the primary judge made such orders on the basis the matter would return in six weeks – Where the father challenges the primary judge’s reliance on the family consultant’s evidence – Consideration of the scope of s 11F of the Family Law Act 1975 (Cth) – Where Division 12A permits the primary judge to control the receipt of expert evidence – Where the primary judge was correct in identifying the limitation on making findings at interim hearings – Where there is no error demonstrated by the father – Appeal dismissed – Father to pay the costs of the mother in a fixed sum.

  • Millwood & Millwood [2020] FamCAFC 246

    29 Sep 2020

    FAMILY LAW – APPEAL – APPLICATION FOR ADJOURNMENT – Where the father made an application to adjourn the hearing of his appeal against final parenting orders – Appeal previously deemed abandoned and re-instated – Where the father has repeatedly failed to comply with directions and rules of Court in relation to the conduct of the appeal – No satisfactory explanation is provided for his failure to satisfy procedural orders – Effect of ongoing litigation on the child – On balance it is not in the interests of justice to delay the hearing – Applications for costs by the respondent and Independent Children’s Lawyer granted.

  • Bligh & Trott (No. 2) [2020] FamCAFC 237

    22 Sep 2020

    FAMILY LAW – APPEAL – DISMISSAL – Where the appellant father’s appeal is listed for consideration of dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the father has not complied with a procedural order to file a Summary of Argument – Where the father has been on notice since December 2019 that his appeal may be listed for dismissal – Where the preconditions of the application of r 22.45 of the Family Law Rules 2004 (Cth) are satisfied – Appeal dismissed.
    FAMILY LAW – APPEAL – COSTS – Where the respondent mother seeks her costs of and incidental to the appeal and of and incidental to the father’s unsuccessful application to adjourn this hearing fixed on a party/party basis – Where the Independent Children’s Lawyer does not seek costs – Costs ordered as sought by the respondent.

     

  • Bligh & Trott [2020] FamCAFC 234

    17 Sep 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the appellant seeks an adjournment of his appeal hearing asserting that it clashes with another hearing in another jurisdiction – Where the appellant has not taken part in this hearing – Where the Court is not satisfied that there is any proper basis to grant the adjournment – Application dismissed.
    COSTS – Where the respondent’s costs of today be reserved to the hearing of the appeal.

     

  • Velderman & Velderman [2020] FamCAFC 243

    01 Oct 2020

    FAMILY LAW – APPEAL – PARENTING – Variation of interim parenting orders – Adequacy of reasons – Approximately three month and 13 day delay between the making of the orders and the delivery of the reasons – Where the delay is troubling but resulted in no practical injustice – Where the delay resulted in the reasons requiring greater scrutiny – Denial of procedural fairness – Where the primary judge erred in taking the Family Report into account under the circumstances of the proceedings – Appeal allowed – Orders set aside – Matter remitted for rehearing – Costs certificates granted to the parties and the Independent Children’s Lawyer for the appeal and the rehearing.

  • Gongsun & Paling [2020] FamCAFC 244

    30 Sep 2020

    FAMILY LAW – APPEAL – Appeal from orders made by a judge of the Supreme Court of New South Wales – Financial Agreement – De facto relationship – Where s 90UM(1)(f) of the Family Law Act 1975 (Cth) applies – Where the subject property was only registered in appellant’s name – Where the respondent executed a will leaving the property to the appellant – Undue influence – Where the findings made by the primary judge were inadequate to support a conclusion of undue influence – Unconscionable conduct – Where although a ground of appeal succeeded, the orders remain supported by the primary judge’s undisturbed conclusions in relation to unconscionability – Where circumstances of special disadvantage were identified by the primary judge, namely the respondent’s “infatuation” with the appellant and his consequent “vulnerability” – Where the primary judge found that the respondent was entitled to 50 per cent of the property on the basis of equitable principles and would have arrived at the same outcome under s 90SM of the Family Law Act 1975 (Cth) – Appeal dismissed.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where appellant made an oral application to amend the Notice of Appeal to include a further ground of appeal – Where the proposition referred to in the proposed ground of appeal was put to the appellant in cross-examination – Amendment refused.

    FAMILY LAW – APPEAL – NOTICE OF CONTENTION – Where the respondent challenges the primary judge’s determination that there was an intention to transfer the beneficial interest in the property to the appellant – Interpretation of s 90SA of the Family Law Act 1975 (Cth) – Notice of Contention dismissed.

  • Santariga & Farris [2020] FamCAFC 241

    30 Sep 2020

    FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the primary judge made orders for the child to remain living with the mother in rural Queensland – Where the primary judge made an erroneous finding that the father did not want the child to live with him – Where that erroneous finding affected the primary judge’s decision – Where the plurality found that the primary judge did not follow the legislative pathway under s 65DAA of the Family Law Act 1975 (Cth) – Where the primary judge failed to properly address the proposals of the parties and the advantages and disadvantages of those proposals – Where the primary judge failed to consider and make findings with respect to relevant s 60CC factors – Where the primary judge failed to make findings clearly open on the evidence – Where the primary judge’s reasons for judgment are plainly inadequate in revealing how he has arrived at his decision – Where his Honour took into account irrelevant considerations – Where the primary judge erred in making findings not available on the evidence – Where the erroneous findings infected his Honour’s decision – Where there is merit in almost all of the grounds of appeal – Certain orders set aside as on and from the rehearing before the court below – Rehearing in relation to where and with whom the child lives, spends time and communicates with.

    FAMILY LAW – APPEAL – COSTS – Where the appeal is allowed on questions of law – Costs certificates granted to the father and ICL for the appeal – Costs certificates granted to all parties for the rehearing subject to the mother making an application.

  • Yeates & Yeates (No. 2) [2020] FamCAFC 242

    29 Oct 2020

    FAMILY LAW – PROPERTY – INTERIM PROPERTY – CONCEDED APPEAL – Where the primary judge made orders, inter alia, requiring the husband to pay the wife $100,000 – Where the primary judge failed to give any or any adequate reasons for that order – Where the wife concedes the primary judge’s failure to provide reasons is the basis for allowing the appeal – Where subsequent orders made to enforce the $100,000 payment should also be set aside – Where the Court is satisfied of appellable error – Appeal allowed – Costs certificates granted.

  • Cantrell & North and Anor (No. 2) [2020] FamCAFC 239

    28 Sep 2020

    FAMILY LAW – APPEAL – COSTS – Where the first respondent sought indemnity costs – Where there are no exceptional circumstances – Where the first respondent was a third party creditor – Where three appeals in this matter were wholly unsuccessful – Financial circumstances given weight but are not determinative – Appellant to pay the first respondent’s costs in a sum fixed by the Court.

  • Naparus & Frankham (No. 2) [2020] FamCAFC 238

    25 Sep 2020

    FAMILY LAW – APPEAL – INTERIM PARENTING – Appeals against interim parenting orders for the return of the child from Western Australia to Victoria – Recovery order – Execution of recovery order – Stay – Recusal – Apprehended bias – Prejudgment – Right of appeal – Where the appeals are futile – Where there is no practical utility in the challenges to the interim orders given the proximity of the final hearing – Appeals dismissed – No order as to costs.

  • Kingston & Field (No. 2) [2020] FamCAFC 235

    24 Sep 2020

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where grounds of appeal contend apprehended bias by both conduct and omission – Mistake of fact, assessment of contributions and the application of s 75(2) of the Family Law Act 1975 (Cth) – Where the appellant alleges the primary judge failed to take material considerations into account – Procedural fairness – Where the appellant could not establish discretionary error – Where the appealed orders were not “unreasonable or plainly unjust” or “plainly wrong” – Where the primary’s judges assessment of the parties’ contribution-based entitlements did not miscarry – Where the primary judge’s reasons are adequate – Where the primary judge correctly exercised discretion pursuant to s 75(2) of the Family Law Act 1975 (Cth) – No discretionary error apparent – No denial of procedural fairness – Where the appeal lacks merit – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where further evidence applies to grounds of apprehended bias by omission – Where only some of the further evidence is received in the appeal.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Leave to rely on a summary of argument exceeding the permitted length – Where the longer summary of argument assisted the self-represented appellant – Where there is no detriment to the appellant – Leave granted.

    FAMILY LAW – APPEAL – COSTS – Where the appeal is wholly unsuccessful – Where the respondent seeks costs – Where all costs are opposed by the appellant – Where the appellant’s financial circumstances are a salient consideration, but the appellant was self-represented and his contentions lacked an evidentiary premise or were plainly wrong – Where application of s 117 of the Family Law Act 1975 (Cth) warrants a cost order – Costs ordered in a fixed sum.

  • Scriven & Scriven [2020] FamCAFC 236

    23 Sep 2020

    FAMILY LAW – APPEAL – SUPERANNUATION SPLITTING – Where the primary judge failed to make the required determination pursuant to s 90XT(2) of the Family Law Act 1975 (Cth) – Where absent that determination the primary judge was not able to make a splitting order pursuant to s 90XT(1)(b) of the Family Law Act 1975 (Cth) – Where there is merit in the assertion that the primary judge erred by not assessing the respective contributions of the parties separately in relation to each asset – Where Ground 3 is an unnecessary ground in this appeal and there is no requirement to come to a conclusion about its merits – Where it is not apparent that the primary judge took the appellant’s health and income earning capacity into account – Where in some areas the primary judge’s reasons were inadequate – Where there is merit in four of the five grounds of appeal – Appeal allowed – Paragraphs 5, 6, 7 and 8 of the Order under appeal set aside – The issue of the appellant’s superannuation interest be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

    FAMILY LAW – COSTS – Where in the event that the appeal is allowed the parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appeal is being allowed on a question of law and no order for costs is being made – Costs certificates to issue as sought.

  • Jebbett & Corey (No. 3) [2020] FamCAFC 233

    21 Sep 2020

    FAMILY LAW – APPEAL – CHILDREN – Expert evidence – Where primary judge plainly did not uncritically adopt the Family Report – Where appellant contends no legitimate basis for the exclusion of material – Where basis for its exclusion cannot be determined without the relevant transcript – Where s 106A of the Family Law Act 1975 (Cth) is not limited in scope by s 112AA of the Act – Findings of fact – Where the primary judge did not accept that the child is at a great risk of bullying in mainstream schooling – Weight of Department of Child Safety letter –Weight given to the child’s wishes in relation to home schooling challenges – Appeal dismissed – No order in relation to costs.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Leave sought to file a further Application in an Appeal – Discharge of Independent Children’s Lawyer – Where delay in filing would have resulted in deferral of the hearing of the appeal – Where material relied upon considered by primary judge from which decision no appeal was brought – Leave refused.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Paediatric report and psychological report – Where if reports were admitted into evidence in the appeal, it is likely that cross-examination would be required – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION FOR STAY OF ORDERS – Refusal of primary judge to stay his orders – Stay appeal futile once substantive appeal fails – Appeal dismissed.