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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.

  • Walker & Page (No. 2) [2019] FamCAFC 134

    09 Aug 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made final property orders distributing the property of the parties – Where the primary judge made indemnification orders in relation to certain outstanding debts – Where the amount of those debts had not crystallised – Where in that event the trial judge could not properly conclude that the proposed order for property settlement was just and equitable – Where the Court was satisfied of appealable error – Appeal allowed – Cost certificates granted.

  • Crabman & Crabman [2019] FamCAFC 141

    15 Aug 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the father filed an application to have the transcript provided to the parties or, alternatively, for leave to be given for the appeal to proceed without transcript – Where the father’s grounds of appeal raise issues of apprehended bias and procedural unfairness – Where a Full Court will require the transcript to properly determine the father’s grounds of appeal – Where the father acknowledged he could afford the cost of the transcript if given extra time – Order made to extend time for father to provide transcript.

    FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF AUDIO OF EX TEMPORE REASONS – Where the father contends that the trial judge omitted a paragraph from the settled reasons for judgment – Where the mother conceded that such a paragraph was omitted – Order made for Appeal Registrar to make available audio of the trial judge’s ex tempore reasons.
  • Hadaway & Beckham [2019] FamCAFC 137

    01 Aug 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Parenting – Where the father appeals against an order made by a Judge of the Federal Circuit Court of Australia dismissing his application to re-open proceedings – Where the father could not establish before the trial judge any material change in circumstances pursuant to the principles in Rice & Asplund (1979) FLC 90-725 (“Rice v Asplund”) – Where the father sought to adduce further evidence – Where proposed evidence not admitted under s 93A(2) of the Family Law Act 1975 (Cth) – Where it was open for the trial judge to find that there was no significant change in circumstances – Where the trial judge correctly applied the principles of Rice & Asplund to the evidence adduced at trial – No appealable error – Where there is no miscarriage of the trial judge’s discretion – Where the appeal lacks merit – Application in an Appeal dismissed – Appeal dismissed – Costs – Where the appeal is wholly unsuccessful – Appellant ordered to pay the respondent’s costs.

  • Ferringer & Melchiori [2019] FamCAFC 136

    08 Aug 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of Time – Application for an extension of time to file a Notice of Appeal against spousal maintenance orders – Where the application for spousal maintenance was an interim application of which leave to appeal is required – Explanation for the delay – Merits of the proposed appeal – Where the explanation for the delay is far from satisfactory – Where the appeal has little merit – Where there is no issue that requires reconsideration by the Full Court of the Family Court of Australia – Where the application has been wholly unsuccessful – Application dismissed – Applicant to pay the respondent’s costs of the application in a fixed sum.

  • Sallings & Ziemann [2019] FamCAFC 135

    09 Aug 2019

    FAMILY LAW – APPEAL – PARENTING – Where orders were in place for the mother to have sole parental responsibility of the children and they spend specified time with the father – Where the father contended that the children were at physical and psychological risk from – Where no risk found – Where the oldest child has significant mental health issues – Where the father contends the child is not receiving appropriate medical care and attention – Where the primary judge found the child’s treatment was appropriate and medically approved – Where the father challenges the apportionment of weight given to the evidence and challenges the exercise of discretion - Where the father’s grounds do not expose appealable error – Appeal dismissed – Costs ordered in favour of the mother.

  • Tsiang & Wu and Ors [2019] FamCAFC 128

    31 Jul 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge dismissed the husband’s interim application seeking certain injunctions – Where property settlement orders were made by consent – Where the husband seeks to set aside the consent orders – Injunction sought by the husband restraining the wife from dealing with property – Injunction sought by the husband restraining the second and third respondents from disposing or encumbering interests in an overseas company – Where the injunctions sought against the wife and the second and third respondents were dismissed on the lack of an evidentiary basis – Whether there is a identified risk that the wife will dispose of the assets in Australia – Whether there is a risk that the second and third respondents may deal with particular overseas assets in a way that would defeat the husband’s possible judgment or claim to it – Balance of convenience favours the making of the injunction against the wife – Where the primary judge failed to take into account all of the evidence of the husband – Where the primary judge erred in refusing to make the injunction in relation to the wife – Where the primary judge was correct in refusing to grant an injunction against the second and third respondents – Appeal allowed in relation to the dismissal of the injunction against the wife – Discretion re-exercised – Orders made in accordance with husband’s Application in a Case – No costs order between the husband and the wife – Husband to pay costs of the second and third respondents.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Interlocutory order – Sufficient doubt attends the decision – Substantial injustice if leave to appeal refused – Leave to appeal granted.

  • Rankin & Rankin (No. 3) [2019] FamCAFC 133

    08 Aug 2019

    FAMILY LAW – COSTS – RE-INSTATEMENT – APPLICATION FOR LEAVE TO APPEAL – Where the appellant’s application for leave to appeal was wholly unsuccessful – Where the respondent sought fixed indemnity costs or, in the alternative, fixed party/party costs in relation to the failed application for leave to appeal – Where the respondent also sought the quantum of costs under an interlocutory order be fixed – Where the appellant agrees to pay a fixed amount to the respondent for costs under the interlocutory order – Consideration of ss 117(1) and 117(2A) of the Family Law Act 1975 (Cth) – Application for indemnity costs dismissed – Costs ordered in favour of the respondent on a party/party basis in a fixed amount.

  • Frederick & Frederick (No. 2) [2019] FamCAFC 131

    07 Aug 2019

    FAMILY LAW – APPEAL – COSTS – Where directions were made for the provision of written submissions dealing with the costs of the appeal – Where the appellant seeks an order that the respondent pay her costs in a fixed sum – Where the respondent submits that each party should bear their own costs because the appeal succeeded on a matter of law – Where the respondent invited the trial judge to make the error – Where the appellant was entirely successful – Where the disparity of the parties’ financial position supports an order in favour of the appellant – Respondent to pay the appellant’s costs in a fixed sum.

  • Fabin & Lukey [2019] FamCAFC 117

    03 Jul 2019

    FAMILY LAW – APPEAL – CHILDREN – Relocation – Interim parenting orders – Where the mother moved interstate with the infant child – Where the father appeals from orders providing for the mother to facilitate time between the father and the child in accordance with those orders at her own cost – Where the father is unable to demonstrate that he was deprived of procedural fairness – Where the primary judges’ reliance upon a submission made by the mother’s solicitor did not materially influence the decision – Where the primary judge made findings of fact which did not materially affect the orders – Where the appeal lacks merit – Appeal dismissed – No order as to costs.

  • Calafiore & Netia [2019] FamCAFC 132

    02 Aug 2019

    FAMILY LAW – APPEAL – CHILD SUPPORT – Where the father seeks leave to appeal from a declaration made pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) – Where the mother, after the child’s birth, made an application to the Child Support Agency for an assessment for the father to pay child support – Where the father did not believe he was the father and no assessment was made – Where the mother took no further action for over four years – Where the father consented to a paternity test which confirmed his paternity – Where the mother sought a declaration that the father pay child support from the child’s birth – Where the trial judge found such a determination was to be made by the Child Support Agency – Where the central question on this appeal is whether the trial judge misapprehended the effect of the making of a declaration pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) – Where the trial judge’s conclusion that it would be a matter for the Child Support Agency to determine the date upon which the assessment would commence was an error of law – Where the trial judge failed to consider adequately the question of an extension of time for the mother’s application –– Where the trial judge failed to consider a relevant consideration, namely, that if the s 106A application was dismissed it would remain open to the mother to apply to for an administrative assessment of child support supported by an unchallenged declaration of paternity – Where the requirements for a grant of leave to appeal are satisfied – Appeal allowed – Where there is no order as to costs.

  • Babcock & Waddell [2019] FamCAFC 129

    31 Jul 2019

    FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the primary judge permitted the mother to relocate the residence of the child from Sydney to Perth – Where the father asserts that the primary judge erred by referring to and relying only on the advantages of relocation without balancing those advantages with the disadvantages – Where the father asserts that the primary judge only addressed the disadvantages of relocation after deciding that relocation should be permitted, and in framing orders to address those disadvantages – Where the primary judge undertook the necessary balancing of the advantages and disadvantages of the parties’ competing proposals – Where it was appropriate for the primary judge to mould the orders to address the disadvantages of permitting relocation once it was determined that relocation was in the child’s best interests – Consideration of the application and relevance of Re: TC and JC (Children: Relocation)[2013] EWHC 292 in Australian law – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the mother and the Independent Children’s Lawyer sought orders for costs in the event that the appeal was unsuccessful – Where the father failed to put any factor before the Court in opposition of the applications for costs – Costs ordered in favour of the mother and the Independent Children’s Lawyer.

  • Worth & Worth (No. 2) [2019] FamCAFC 126

    29 Jul 2019

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs on an indemnity basis – Where regardless of the concession by the appellant that he should make a payment, albeit a much lesser sum than the amount sought by the respondent, the appeal was dismissed, the appellant was wholly unsuccessful, and that alone provides a circumstance justifying an order for costs – Where the circumstances cannot be categorised as being exceptional such as would warrant indemnity costs – Where in the alternative the respondent seeks costs on a solicitor/own client basis – Where this would still be a significant departure from the usual costs assessment on a party/party basis – Where the respondent needs to make out a case for achieving greater indemnity than would be received by her on a party/party basis – Where there is no basis here for departing from the usual approach of assessing costs on a party/party basis – Appellant to pay the respondent’s costs of and incidental to the appeal, such costs to be assessed on a party/party basis in default of agreement.

  • Tilliard & Pindar [2019] FamCAFC 122

    18 Jul 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the parties reached consent orders to allow the appeal and vary the trial judge’s orders – Where the trial judge included, in respect of each party, the capitalised amount of their non-commutable pension payments in circumstances where neither party sought a splitting order and nor was a splitting order made – Where the Full Court is satisfied of an error of law – Where the proposed consent orders reflect a just and equitable outcome in all the circumstances of the case – Appeal allowed – Orders made in accordance with the consent orders – Costs certificates granted.

  • Hanslow & Hanslow [2019] FamCAFC 130

    31 Jul 2019

    FAMILY LAW – APPEAL – Parenting – Interim orders – Where there is no merit in the complaints made by the appellant of bias, prejudgment, lack of procedural fairness and application of wrong principle by the primary judge – Where the existing interim parenting orders were left in place and the only “new” orders made were in relation to parental responsibility, change of primary school and future high school – Where the primary judge made no error in making an order that the respondent have sole parental responsibility – Where it is legitimate to question the interim order made changing the child’s primary school given the final hearing was still to take place but given the passage of time that issue is now best dealt with at the imminent final hearing – Where the primary judge erred in making an order as to the child’s future attendance at high school – Where the reasons in relation to this order are inadequate – there is no explanation as to why the order was necessary and how it could be described as an “interim order” – Appeal allowed in part – Order (9) made by the primary judge be set aside – Appeal otherwise dismissed.

    FAMILY LAW – EVIDENCE – APPLICATION TO LEAD FURTHER EVIDENCE – Where the respondent sought to adduce further evidence effectively updating the court as to the child’s transition from her previous primary school to her new primary school – Where given the outcome of the appeal it is unnecessary for that evidence to be considered by this Court – Application dismissed.

  • Garrety & Steyn [2019] FamCAFC 124

    01 Aug 2019

    FAMILY LAW – APPEAL – PARENTING – Whether the primary judge failed to have regard to the totality of the relevant evidence, in particular the recommendations of the single expert – Whether the primary judge adequately considered conditions that the single expert’s recommendations were contingent upon – Where the parenting of the children by all parties fell short of adequate – Whether the appellant and respondent were equally blameworthy or culpable – Whether a change in residence posed an insurmountable challenge for the children – Where the children would not have a relationship with the respondent if they continued to live with the appellant, whereas the respondent would attempt to maintain all existing relationships – Where the reasons when taken as a whole are a consideration of the conditions and caveats attached to the single expert’s recommendations – Whether the primary judge failed to have regard to a number of relevant issues – Where the primary judge’s reasons and treatment of relevant issues were adequate and sufficient – Appeal dismissed – Wording of order varied.

    FAMILY LAW – APPEAL – COSTS – Where the appeal was entirely unsuccessful – Fixed costs – Where the written and oral submissions made on behalf of the respondent did not provide assistance – Appellant to pay costs of the respondent fixed in a sum ordered by the Court – Appellant to pay costs of Independent Children’s Lawyer.

  • Chaborne & Chaborne [2019] FamCAFC 125

    29 Jul 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME TO FILE NOTICE OF APPEAL – Where the applicant’s forensic decision not to appeal and await the outcome of the trial does not provide a satisfactory explanation for his failure to file an appeal within time – Where the trial Magistrate considered r 15.49 of the Family Law Rules 2004 (Cth) – Where there is no merit in the ground of appeal – Where there is prejudice to both parties dependent upon the result but on balance the greater prejudice will be visited on the mother – Application dismissed.

    FAMILY LAW – COSTS – Where neither party sought an order for costs – Where the Family Law Rules 2004 (Cth) provide that such an application can be made within 28 days of an order being made – Left to the parties to consider whether such an application will be filed.

  • Layh & Ferreday [2019] FamCAFC 123

    19 Jul 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – DISMISS NOTICE OF APPEAL – Where the mother seeks dismissal of the father’s appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where it is apparent from the grounds of appeal that the appeal has no reasonable prospects of success – Where the appeal lacks utility – Where the matters raised in the grounds of appeal and the orders sought in the appeal are the same matters that the father sought to raise in a previous appeal which was dismissed – Appeal dismissed.
    FAMILY LAW – COSTS – Where the mother and the Independent Children’s Lawyer seek costs – Where the mother has been wholly successful in having the appeal dismissed – Where this provides a circumstance which justifies a costs order being made in favour of the mother – Where it was not necessary for the Independent Children’s Lawyer to attend the hearing and costs should not be ordered – Costs ordered in the sum sought by the mother – Oral application for costs by the Independent Children’s Lawyer dismissed.
  • Peake & Cousins (No. 3) [2019] FamCAFC 119

    15 Jul 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the mother sought leave to file and rely on an application to adjourn the hearing of the substantive appeal, rely on further transcript of proceedings and adduce further evidence – Where the mother has filed a contempt application in the Federal Circuit Court of Australia on the basis of the evidence given by the father at the hearing the subject of the substantive appeal – Where the mother seeks the appeal be adjourned until after the determination of that application – Where the mother was given, and took, the opportunity to cross-examine the father and test him on his evidence given in the contravention proceedings – Where there is no basis shown sufficient for the appeal to be adjourned – Where the transcript sought to be relied on by the mother was already before the Full Court – Where the application to adduce further evidence was not pursued – Application dismissed.

  • Peake & Cousins (No. 4) [2019] FamCAFC 120

    15 Jul 2019

    FAMILY LAW – APPEAL – Where the mother appeals from orders made in relation to contravention applications filed by the mother and father – Where no question of general principle is raised – Where short reasons are adequate – Where the mother alleged bias on the part of the trial judge – Where it is not a disqualifying ground that a judge decides an issue in the proceedings against a party – Where nothing to which the mother directs attention demonstrates that the trial miscarried, by reason of either actual or apprehended bias on the part of the trial judge – Where the mother also complains of a denial of procedural fairness, errors of fact and law and an inadequacy of reasons – Where nothing to which the mother directs attention establishes any such error – Appeal dismissed – Where there is no order as to costs.

  • Masih & El Saeid [2019] FamCAFC 89

    28 May 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Expedition of an appeal against parenting orders – Where the respondent and the ICL neither oppose nor consent to the orders sought by the applicant– Where the applicant has acted promptly in filing both the appeal and the application for expedition – Whether the urgency of the appeal is such that it should displace other appeals waiting to be heard – Where the children are not spending time with the applicant as provided for in the orders made by the primary judge – Where the applicant submits that the longer the delay before the appeal comes on for hearing, the more difficult it will be for him to re-establish his relationship with the children – Where the appeal will not solve the underlying issue of the children refusing to see the applicant – Application dismissed – No order as to costs.

  • Carron & Laninga [2019] FamCAFC 115

    08 Jul 2019

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the trial judge made orders providing for final entitlements of 55 per cent to the wife and 45 per cent to the husband – Where the trial judge allowed for a 10 per cent adjustment in favour of the wife based on factors under s 75(2) of the Family Law Act 1975 (Cth) – Where the trial judge correctly took into account the wife’s contributions pursuant to ss 79(4)(d), 79(4)(g), 75(2)(d)(ii), 75(2)(e) and 75(2)(na) of the Family Law Act 1975 (Cth) – Where a denial of procedural fairness was not established – Where the appellant husband’s complaints of the trial judge providing inadequate reasons were unsubstantiated – Where an amount notionally added-back by the trial judge was wrongly allocated to the appellant husband – Where appealable error is established – Where both parties are adversely affected by errors of law – Appeal allowed – Where the orders made by the trial judge are set aside and the matter remitted for rehearing.

    FAMILY LAW – APPEAL – SUPERANNUATION – Value and treatment of superannuation – Military Superannuation Benefits Scheme – Where one part of the wife’s superannuation was in the growth phase and the other in the payment phase – Where grounds of appeal challenge the trial judge’s failure to distinguish between the two separate components and determine the value of the payment phase – Where the primary appeal point was whether the trial judge’s discretion miscarried by failing to consider the superannuation in the growth phase as an asset of the parties – Where the trial judge did not need to ascertain the capitalised value of a superannuation interest unless superannuation splitting order was sought – Where it was open for the trial judge to find the payment phase should not be taken into account as an asset – Where no error is established.   

    FAMILY LAW – APPEAL – COSTS – Where the appeal is successful and the matter remitted for rehearing – Where the appellant husband is self-represented – Where the appellant husband’s application for costs is dismissed – Where only two grounds of appeal had merit – Where no order as to costs – Where costs certificates are granted pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for both parties for the appeal and rehearing.

  • Diglen & Keartley [2019] FamCAFC 114

    28 Jun 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant failed to comply with an order of this Court – Where the appellant says that this Court is not the appropriate forum to litigate the issues in dispute – Where the appeal has no merit – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks costs on an indemnity basis – Orders made for written submissions to be filed and served.

  • Leister & Leister [2019] FamCAFC 121

    18 Jul 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR AN EXTENTION OF TIME – Where the applicant husband seeks an extension of time in which to appeal the primary judge’s orders – Where the husband failed to attend the hearing before the primary judge – Where the husbands explanation is not sufficient to explain the delay in bringing the appeal – Prejudice to the respondent wife – Where the appeal has such limited prospects of success it would be futile to grant an extension of time – Application dismissed – Costs orders in favour of wife.

  • Markell & Markell [2019] FamCAFC 118

    17 Jul 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR EXTENSION OF TIME – Where the husband seeks an extension of time in which to appeal the primary judge’s orders – Rule 22.03 of the Family Law Rules 2004 (Cth) –Where there is no order from which an appeal can be brought – No utility in granting an extension of time in which to appeal – Application to extend time dismissed – Where the husband seeks a stay of the primary judge’s orders – Where no application for a stay was made to the primary judge – Order for stay refused – Costs order in favour of wife.

  • Tutton & Jordison [2019] FamCAFC 77

    07 May 2019

    FAMILY LAW – APPEAL – PROPERTY – Where leave to appeal is not required – Where most if not all of the grounds of appeal are incompetent – Where the purported grounds are either mere assertions, fail to identify appealable errors made by the primary judge, or relate to orders not the subject of this appeal – Where the primary judge has not erred in any way – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent has not incurred legal costs or disbursements – No order as to costs.

  • Shahidi & Beiranvand [2019] FamCAFC 65

    18 Apr 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Application for an extension of time in which to file a Notice of Appeal – Notice of Appeal filed in time but rejected by Registry – Merits of the appeal – Where the prospects of success of the appeal do not justify an extension of time – Application dismissed – No order as to costs.

  • Sellers & Burns and Anor [2019] FamCAFC 113

    04 Jul 2019

    FAMILY LAW – APPEAL – INTERIM PROPERTY – Where the husband was ordered to pay the wife the sum of $150,000 – Error of principle asserted by husband – Whether the primary judge failed to provide adequate reasons – Where there is no error in the primary judge’s principles or articulation of the applicable principle – Whether the primary judge incorrectly identified the property available to the parties – Where the primary judge’s assumption as to the source of funds available to the husband was incorrect – Whether the interim property order is capable of being reversed – Where there is no legitimate expectation that the wife would be called upon to return part or whole of the ordered sum of $150,000 – Consideration of ss 79 and 79(4) of the Family Law Act 1975 (Cth) – Where there are significant uncertainties as to husband’s income and value of financial resources – Where the wife would likely receive a final property settlement more than the proposed interim order – Where the primary judge’s reasons fail to give proper consideration to the husband’s capacity to pay legal costs – Where it is found that there is merit in the husband’s challenges to the adequacy of the primary judge’s reasons – Leave to appeal property adjustment order granted – Order set aside – Matter remitted for rehearing by another judge.

    FAMILY LAW – APPEAL – INTERIM SPOUSAL MAINTENANCE – Where the primary judge made an error of fact in determining the wife’s reasonable expenses – Where the primary judge’s findings were unclear as to the reduction made – Error found – Leave to appeal granted – Order set aside – Matter remitted for rehearing.

    FAMILY LAW – APPEAL – ORDERS RESTRAINING A SOLICITOR – Where there was an alleged assault by the husband’s solicitor upon the maternal grandmother – Whether primary judge failed to afford the husband procedural fairness – Where the restraining order granted was in excess of that sought – Where the breadth of the order is an error – Error conceded by the wife – Whether procedural fairness was denied as the solicitor was not a party to the application for injunction – Where the solicitor was not required to be joined as a party to the proceedings – Where the solicitor cannot be said to hold rights and interests individual to that of the husband – Where it is unnecessary that the solicitor be made a party to make orders enjoining him acting for the husband – Where the solicitor was aware of the application – Where the solicitor had ample opportunity to be heard – No error found as to procedural fairness and joinder – Whether there is no basis for the primary judge’s conclusions to enjoin the solicitor from acting – No loss of objectivity by the husband’s solicitor – Where the primary judge’s conclusion was unsupported by the evidence and the reasons – Where there is no administration of justice that required the making of the injunction – Where the primary judge erred in failing to take the wife’s delay into account – Appeal upheld – Injunction set aside – Discretion re-exercised – Application for injunction dismissed.

  • Sellers & Burns [2019] FamCAFC 111

    28 Jun 2019

    FAMILY LAW – APPEAL – PROCEDURAL – DISQUALIFICATION – Where the husband appeals from the primary judge’s refusal to recuse himself from further proceedings between the husband and wife – Consideration of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337  (“Ebner”) – Whether a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the question to be decided – Where the primary judge made comments during the enforcement application reflective of a formed opinion – Where it is contended that the primary judge’s response to the application to recuse himself was sarcastic – Whether directions made by the primary judge in response to the request for adjournment were dismissive and intimidating –Where the comments leading to the adjournment being granted raised the required apprehension – Error established – Where an injunction granted to restrain the husband’s solicitor and all employees of that firm was in excess of the injunction sought – Whether this gives rise to an  apprehension of bias adverse to the husband –No error made out – Whether the primary judge erred in the application of the two step test in Ebner – Where the primary judge erred in isolating the matters complained of as opposed to the cumulative effect – Where error is established in relation to step one – Consideration of the logical connection – Where no error established in this part – Whether his Honour, in restricting his attention to the enforcement application, prevented  a consideration of the effect on the fair-minded lay observer in relation to all hearings involving the parties – Where his Honour erred in his approach to determining the issue of recusal – Error established – Orders set aside – Primary judge disqualified from hearing further proceedings between the parties.

    FAMILY LAW – APPEAL – COSTS – Costs certificates sought and granted.

  • Saunders & Saunders [2019] FamCAFC 94

    06 Jun 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to appeal from property orders – Principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 – Where the Application in an Appeal was initially not served on the respondent – Where the application was not ready to proceed until some 10 and a half weeks after a Notice of Appeal should have been filed – Where the applicant’s solicitor’s explanation for the delay is essentially that he did not receive the primary judge’s reasons for judgment – Application of the considerations in Tomko v Palasty (No. 2) (2007) 71 NSWLR 61 – Balancing exercise – Where there are a series of lengthy unexplained delays and an explanation that is difficult to accept – Where the grounds of appeal do not have substantial merit – Where the prospects of success of the appeal are not strong and are insufficient to overcome the inadequacy and prejudice that has and will be suffered by the respondent – Application dismissed – Applicant to pay respondent’s costs of the application in a fixed amount.

  • Gadde & Gadde [2019] FamCAFC 116

    08 Jul 2019

    FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the husband’s challenges on appeal were founded on contentions that the trial judge denied him procedural fairness – Where it was open for the trial judge to exercise discretion to grant or refuse an adjournment – Where the husband failed to demonstrate error in the trial judge’s procedural conduct of the trial – Where there is no prejudice to the husband – Where the husband failed to demonstrate he was denied procedural fairness or natural justice – Where those grounds of appeal fail.

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – PARENTING AND PROPERTY – Where both parties sought to adduce further evidence – Where leave was granted by consent for the respondent to rely on selected paragraphs of her affidavit filed with her Application – Where it was unclear to the Full Court how the respondent’s evidence was relevant to the appeal’s disposition – Where the appellant sought to adduce evidence to be led in the sense contemplated by Allesch v Maunz (2000) 203 CLR 172 – Where fresh evidence sought to be adduced by the appellant was limited – Where the appeal fails and there is no discretion for the Full Court to re-exercise – Application dismissed.

    FAMILY LAW – APPEAL – PARENTING – Where the husband appeals from final parenting orders permitting the wife to relocate with the child to New Zealand – Where the trial judge’s orders provided for alternative arrangements for the child to spend time with the husband, regardless of the husband’s residence in Australia or New Zealand – Where the grounds of appeal challenge findings, the exercise of discretion and weight given to various factors – Where the trial judge applied and adequately considered the factors pursuant to ss 60CC(2) and 60CC(3) of the Family Law Act 1975 (Cth) – Where it was open to the trial judge to find the presumption of equal shared parental responsibility rebutted – Where there is no appealable error by the trial judge – Where the findings made by the trial judge were open on the evidence – Where the trial judge gave adequate reasons – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – CHILD SUPPORT – Where the trial judge made property settlement orders to distribute the parties’ property, 66 per cent to the wife and 34 per cent to the husband – Where the husband alleges the trial judge erred in identifying and valuing “add-backs” and liabilities – Where the husband contended the trial judge’s contribution-based adjustments were excessive – Where findings relating to the parties’ contribution-based entitlements were open to the trial judge and clearly explained – Where no error in the trial judge’s approach in making findings under ss 75(2) and 79(4) of the Family Law Act 1975 (Cth) is demonstrated – Where the findings of the trial judge were open on the evidence – Where the trial judge gave adequate reasons – Where mathematical error established, but may be corrected by the Full Court under s 94(2) of the Family Law Act 1975 (Cth) – Where no other appealable error is found – Where the Full Court makes an order to implement the trial judge’s determination to dismiss a child support application, pursuant to s 94(2) of the Family Law Act 1975 – Where appeal lacks merit – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs in a fixed amount – Where appeal dismissed for lack of merit – Where the need to prosecute the appeal could have been avoided if the appellant sought correction of mathematical error under the slip rule – Where the Full Court is not satisfied the appellant’s poor financial circumstances preclude a costs order – Where the appellant ordered to pay 75 per cent of the wife’s costs of the appeal, calculated on an ordinary party/party basis.

  • Ferreday & Layh (No. 2) [2019] FamCAFC 112

    01 Jul 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no satisfactory reason for the failure to file a Notice of Appeal within time – Where there is no merit in the appeal – Where the prejudice falls heavily on the respondent – Where the application should not have been accepted for filing – Application dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks her costs – Where there are circumstances which justify an order for costs – Costs ordered in favour of the respondent in the sum of $1,000 plus GST.

  • DeLuca & Farnham and Anor [2019] FamCAFC 100

    13 Jun 2019

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge made final parenting orders following a 10 day trial – Where the appellant was ordered sole parental responsibility – Where the orders provide that the appellant must consult with the respondent on “long term welfare issues” for either child, including change of residential address – Where the definition of “long term welfare issues” is inclusive and permits expansion – Where the parties were prevented from taking the children overseas, without written consent, until the elder child attained majority – Where the appellant has close family overseas – Where the primary judge failed to give adequate reasons as to why the appellant was a flight risk – Where the primary judge ordered the respondent have telephone communication on a night not sought by either party or by the Independent Children’s Lawyer – Where there is nothing in the reasons for judgment which would explain why the primary judge made an order for Friday night telephone calls – Where error is established – Where the primary judge ordered that the respondent have discretion to dictate when makeup time is to occur should the children be unable to spend time with him pursuant to the orders – Where it is not apparent how the primary judge reached that result – Where error is established – Appeal allowed in part – Where it is appropriate to re-exercise the discretion – Appeal otherwise dismissed – Costs certificates granted to the appellant and Independent Children’s Lawyer.

    FAMILY LAW – APPLICATIONS IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where both parties sought to adduce further evidence – Where the appellant sought to adduce evidence of an email exchange between the parties post the primary judge’s orders – Where the appellant’s application was granted on the basis that the respondent could admit a further email which completed that chain – Where the respondent’s application was opposed by the appellant and the Independent Children’s Lawyer – Where the content of the respondent’s affidavit was not admissible – Where the respondent’s application to adduce further evidence was dismissed.

  • Beckham & Desprez [2019] FamCAFC 110

    27 Jun 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the primary judge found the mother had contravened, without reasonable excuse, final parenting orders by failing to facilitate the child’s time with the father – Where the father sought an extension of time pursuant to r 1.14 of the Family Law Rules 2004 (Cth) to file a Notice of Appeal – Where neither the mother nor the independent children’s lawyer sought to participate in this application – Where there is no prejudice to either the mother or the independent children’s lawyer – Where the delay in bringing the application was not overly lengthy and the father offers at least some explanation for it – Where it cannot be said that Ground 2 of the draft Notice of Appeal is devoid of merit – Where an extension of time is required to prevent an injustice upon the father – Application granted.

  • Wolleman & Wolleman [2019] FamCAFC 107

    21 Jul 2019

    FAMILY LAW – APPEAL – PROCEDURAL – Where the Notice of Appeal failed to disclose any proper grounds of appeal – Where the mother failed to file a summary of argument in time pursuant to procedural orders made by the Regional Appeal Registrar and r 22.21 of the Family Law Rules 2004 (Cth) – Where the mother attempted to file her summary of argument the day before the appeal hearing – Where the father and the Independent Children’s Lawyer reasonably objected to the Full Court receiving the mother’s summary of argument – Where the Full Court determined it was inappropriate to accept the mother’s summary of argument
    – Where the mother did not provide a transcript of proceedings – Where the appeal could have been deemed as abandoned – Where leave was granted allowing the mother to reinstate the appeal absence of a transcript – Where leave granted for the mother to prosecute her grounds of appeal orally in the absence of a summary of argument.

    FAMILY LAW – APPEAL – PARENTING – Where there are two children of the relationship – Where the appellant mother’s main contention on appeal was that the primary judge failed to consider the appellant’s fixed belief that the respondent father had sexually abused the eldest child – Where the primary judge considered allegations of family violence and sexual abuse – Where the appellant failed to establish that the primary judge was in error – Where the findings made by the primary judge were open on the evidence – Where the primary judge had conducted the proceedings appropriately – Where no merit to certain grounds of appeal

    – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent father did not seek costs – Where the Independent Children’s Lawyer sought a cost order against the mother in the event the appeal was unsuccessful – Where s 117(4) of the Family Law Act 1975 (Cth) operates as a legislative hurdle – Where the mother has been in receipt of Legal Aid during the proceedings – Where the mother would face substantial hardship if ordered to pay the Independent Children’s Lawyer’s costs – Where no order as to cost.

  • Ritter & Ritter [2019] FamCAFC 109

    25 Jun 2019

    FAMILY LAW – APPEAL – APPLICATION FOR AN EXTENSION OF TIME – Where the applicant attempted to file the Notice of Appeal on the last day for filing – Where the applicant was given incorrect information by court staff – Where the appeal registry subsequently rejected the filing of the Notice of Appeal – Where the applicant seeks an order pursuant to s 79A setting aside final orders – Where there is sufficient merit in the appeal such that granting an extension of time would not be futile – Where the applicant would suffer an injustice if leave is not granted – Application allowed.

  • Anison & Anison [2019] FamCAFC 108

    21 Jun 2019

    FAMILY LAW – APPEAL – COSTS – Where the husband appeals from orders made for him to pay the wife’s costs of and incidental to property proceedings finalised in February 2018 – Where the husband was ordered to pay the wife the sum of $233,550 by way of final property settlement – Where each party sought costs orders against the other, and each opposed the applications of the other – Where the trial judge was called upon to determine costs applications with respect to three distinct subject matters – Where the trial judge made orders that the husband pay the wife’s costs on a party and party basis from 6 November 2015 – Where the trial judge concluded the husband had been “wholly unsuccessful” – Meaning of “wholly unsuccessful” – Where the trial judge exercised the discretion to make the costs orders by incorrectly interpreting and applying s 117(2A)(e) of the Family Law Act 1975 (Cth) – Appeal allowed in part.

    FAMILY LAW – APPEAL – RE-EXERCISE – Where both parties, in the event the appeal succeeded, sought the Full Court re-exercise the discretion – Where neither party sought to place any further evidence before the Court and were content to rely upon the material already filed before the trial judge – Where the husband put the wife to the expense of incurring the costs of an application in a case when she had an obviously undeniable claim for spousal maintenance and litigation funding – Where the husband ought be ordered to pay the wife’s costs of that application – Where there otherwise ought be no order as to costs in relation to the substantive proceedings – Where both parties granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal on the basis that it succeeded on an error of law.

  • Bethke & Bethke [2019] FamCAFC 106

    19 Jun 2019

    FAMILY LAW – APPEAL – Dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant repeatedly failed to file a Notice of Address for Service and an Amended Notice of Appeal joining the trustees as parties to the proceedings – Where the matter was adjourned several times – Consideration of merits of substantive appeal – Where the appellant is an undischarged bankrupt– Whether the primary judge misinterpreted the law – Where the primary judge was well aware of requirements and in ordering the joinder of the Trustees – Whether the primary judge erred in considering ss 79(2) and 79(4) of the Family Law Act 1975 (Cth) in making the orders – Where consent orders were made between represented parties – Where the primary judge was entitled to conclude that it was appropriate to make the consent orders – Where there were no discrete reasons for judgment delivered – Where it was sufficient for the primary judge to demonstrate, in the transcript, that the orders consented to were just, equitable and appropriate – Where there is no apparent merit in any of the grounds of appeal – Appeal dismissed.

  • Cao & Chau [2019] FamCAFC 105

    21 Jun 2019

    FAMILY LAW – APPEAL – Application for security for costs – Where the application is brought bona fide – Where the respondent had previously failed to give full and frank disclosure as to her financial circumstances – Where it cannot be found that an order for security for costs would stifle the appeal – Application allowed.