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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.

  • Collins & Ricardo [2017] FamCAFC 42

    10 Mar 2017

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

    FAMILY LAW – APPLICATION IN AN APPEAL – where an oral application for recusal was made by the father – where the basis of that application was that the Honourable Justice Strickland and the Honourable Justice Murphy had sat on a previous unsuccessful application for leave to appeal brought by the father – where there is no proper foundation for that application – application dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – where an application was filed to proceed without a transcript – where that application also sought to adduce further evidence – where there is no prejudice to the respondent in allowing these applications – applications allowed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the father sought leave to appeal orders made by the trial judge dismissing two applications made by him – where the first application sought an unsupervised contact visit between the father and the child – where the subsequent application sought recusal of the trial judge – where there was no error made by the trial judge – applications for leave to appeal dismissed.

    FAMILY LAW – COSTS – where counsel for the respondent mother made an application for costs – where that application was opposed by the father – where the mother was in receipt of legal aid – where the proceedings were wholly unsuccessful – where the father had been informed by registry staff that there was no substance to these proceedings – where counsel for the mother sought to include costs in relation to solicitor’s travel – where it would not be just to require the father to pay travel costs – costs otherwise ordered.

  • Danks & McCabe [2017] FamCAFC 41

    02 Mar 2017

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

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant left the courtroom not long after the commencement of the appeal – Where the respondent and the affected person sought that the appeal be dismissed – Appeal dismissed.
    FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs on a party/party basis – Where the affected person sought costs on an indemnity basis – Where there are circumstances that justify orders for costs – Costs ordered in favour of the respondent on a party/party basis – Where the affected person established exceptional circumstances such that his costs should be calculated on an indemnity basis – Costs ordered in favour of the affected person on an indemnity basis.

  • Lang & Partington [2017] FamCAFC 40

    16 Mar 2017

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

    FAMILY LAW – APPEAL – CHILDREN – Interim orders – Best interests – Whether the primary judge erred in making an order for the child to spend time with the mother, whose partner has a criminal history and refusing to make an order restraining the partner from having contact with the child – Whether the primary judge erred in assessing the risk of harm posed to the child by the mother’s partner – Adequacy of reasons – Assessment of evidence at an interim stage – Meaningful relationship – Whether the primary judge erred by failing to consider s 60CC(2) of the Family Law Act 1975 (Cth) – No appealable error established – Appeal dismissed – Where the appeal was wholly unsuccessful – Father ordered to pay the mother’s costs of the appeal.

  • Cowper & Jenkins [2017] FamCAFC 39

    16 Mar 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Application for an extension of time in which to file a Notice of Appeal – Where the applicant seeks to appeal three sets of orders made by the primary judge – Where one set of orders was made by the consent of the parties – Where the applicant alleges fraud on the part of the respondent – Where there is no evidence that there is any merit to the proposed appeal – Where there is no reasonable explanation for delay – Application dismissed – Applicant ordered to pay the respondent’s costs of the application.

  • Bakal & Kapicic [2017] FamCAFC 38

    23 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 – oral application for an extension of time to file a summary of argument – where the appellant has previously complied with the direction to file appeal books – where there has been some explanation for the delay – where there are no consequences for the respondent if an extension of time is granted – where extension granted.

  • Cartwright & Manolas [2017] FamCAFC 37

    15 Mar 2017

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

    FAMILY LAW – APPLICATION IN AN APPEAL – where mother sought leave to adduce further evidence and for appeal to proceed without transcript – where the evidence sought to be adduced did not satisfy requirements – where mother alleged her failure to file a transcript arose from her impecuniosity – where the trial judge had obtained a copy of the transcript – where the trial judge gave leave for counsel to uplift and read the transcript from the lower court file – where counsel for both parties considered it appropriate for the appeal judge to have reference to the transcript – application dismissed.

    FAMILY LAW – APPEAL – final parenting orders – where the central ground of appeal was the absence of adequate reasons – where the proceedings were confined to very narrow issues – formal reasons not required as trial judge’s reasoning was sufficiently apparent from the transcripts – where the remaining grounds concerned issues of weight given to specific matters – where the trial judge was clearly guided by relevant considerations and the Objects and Principles of the Act – where there is no error in the attribution of weight – appeal dismissed.

    FAMILY LAW – COSTS – where mother was wholly unsuccessful but the appeal was not frivolous – where impecuniosity is not determinative of the question whether to order costs – where a costs order would add a further financial impost – no costs ordered.
  • Vale & Vale [2017] FamCAFC 36

    01 Mar 2017

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

    FAMILY LAW – APPLICATION IN AN APPEAL – extension of time – where the applicant mother sought to file a Notice of Appeal out of time – where the orders sought to be appealed dismissed an application for transfer to the Sydney Registry – where the final hearing had already taken place in the Brisbane – application dismissed.

    FAMILY LAW – COSTS – where impecuniosity is not necessarily an answer to a claim for costs – where an order for costs against the applicant was appropriate in the circumstances.
  • Millwood & Millwood [2017] FamCAFC 35

    07 Mar 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a Notice of Cross-Appeal – Where the Application in an Appeal was allowed by consent.

    FAMILY LAW – APPEAL – CHILDREN – Where the appeal was allowed by consent – Where the proceedings are to be remitted – Where the primary judge made an error of law – Costs certificated issued for the appeal and rehearing under the Federal Proceedings (Costs) Act 1981 (Cth).

  • Weston & Hill [2017] FamCAFC 34

    19 Jan 2017

    FAMILY LAW – APPEAL – APPLICATION  IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of his appeal against interim parenting orders – Where the applicant filed his appeal and this application reasonably promptly – Where no prejudice would be caused to the respondent if the appeal was expedited –Where the matter is not sufficiently urgent to warrant expedition – Application dismissed.  

  • Corcoran & Corcoran [2017] FamCAFC 33

    16 Feb 2017

    FAMILY LAW – APPEAL – COSTS – Where the primary judge failed to give reasons for making a costs order – Appeal allowed by consent – Matter remitted for rehearing in the Federal Circuit Court of Australia – Costs certificates issued for the appeal and the rehearing under the Federal Proceedings (Costs) Act 1981 (Cth).  

  • Decaux & Sabri [2017] FamCAFC 32

    28 Feb 2017

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

    FAMILY LAW – APPEAL – change of venue – where the trial judge transferred proceedings from Brisbane to Newcastle – where the procedural orders made were interlocutory and leave to appeal was required – where the applicant alleged the balance of convenience was in his favour – where there was no substantial injustice – where there was no error in the exercise of the trial judge’s discretion – leave to appeal not granted.

  • Bebbington & Bebbington [2017] FamCAFC 31

    28 Feb 2017

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

    FAMILY LAW – APPEAL – where the trial judge made orders varying final orders affecting a property settlement between the parties – where the appellant contends that the court was functus officio and had no power to make those orders – where it is accepted that the court has power to vary machinery or consequential orders – whether the orders were machinery or consequential in nature – where the variation did not affect the substantive rights of the parties – where the orders had already been executed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – whether the orders subject of appeal were interlocutory – where the orders did not finally determine the rights of the parties – where leave is required – where there is no utility in the appeal – where leave is refused.

  • Sellink & Sellink [2017] FamCAFC 30

    01 Mar 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 an appeal against final parenting orders was deemed abandoned when appeal books were not filed in accordance with procedural orders – where the mother alleged that this failure was because of negligence by her former solicitor – where the mother took all reasonable steps to rectify the default upon the appeal being abandoned – where the father did not challenge these facts – where counsel for the mother conceded the notice of appeal had limited prospect of success and expressed an intention to file an amended notice of appeal – where the proposed amended grounds of appeal contained real issues to be determined – appeal reinstated.

    FAMILY LAW – COSTS – where counsel for the mother foreshadowed an application for costs against the former solicitor – where there may be issues sought to be argued by the solicitor in respect of any costs order – where the question of costs for this application was reserved for the appeal hearing – costs reserved.

  • Rankin & Rankin [2017] FamCAFC 29

    02 Mar 2017

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

    FAMILY LAW – APPEAL – PROPERTY – Just and equitable – Whether the cumulative effect of the primary judge’s orders led to a just and equitable division of the parties’ assets – Where the husband conceded that he should be responsible for certain debts – Where the primary judge excluded the debts from the table of assets and liabilities – Where the primary judge considered whether the orders were just and equitable – No error established – Whether the primary judge erred in making an order for the payment of the wife’s lawyers prior to the division of the parties’ property – Whether the order was a costs order made under s 117 of the Family Law Act 1975 (Cth) or whether it was a lump sum adjustment made under s 75(2) – Where payment was a lump sum adjustment – No error established.

    FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Whether the primary judge erred in making an order for capitalised spousal maintenance – Where the husband was liable to pay the children’s school fees and related expenses – Where the primary judge had increased the husband’s child support obligations – Where the primary judge erred in finding that the husband had the capacity to meet the order for spousal maintenance, because she failed to take into account the husband’s debts and other financial obligations – Order for payment of spousal maintenance set aside – Matter remitted for rehearing.

    FAMILY LAW – APPEAL – CHILD SUPPORT – Whether the primary judge properly made orders for the husband to pay child support – Where the quantum of child support payable by the husband constituted a sizeable proportion of the husband’s after tax income – Where the primary judge was required to take into account the income, property and financial resources of each party to the proceedings – Where s 125 of the Child Support (Assessment) Act 1989 (Cth), a mandatory provision, was not complied with – Where the primary judge was in error and the orders for child support must be set aside – Matter remitted for rehearing.

    FAMILY LAW – APPEAL – SUPERANNUATION – Superannuation splitting order – Where the primary judge made a superannuation splitting order under s 90MT of the Family Law Act at the invitation of the parties – Where the husband submits that, due to the delay between the hearing and the making of orders, the primary judge erred by allocating a base amount to the wife instead of a percentage of the parties’ total superannuation entitlements – Where the husband has consented to the superannuation order – No error established.

    FAMILY LAW – APPEAL – COSTS – Where the appeal as to child support and spousal maintenance was allowed on the basis of an error of law – Costs certificates issued under the Federal Proceedings (Costs) Act 1981 (Cth).

  • Vontek & Vontek [2017] FamCAFC 28

    28 Feb 2017

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

    FAMILY LAW – APPEAL – CHILDREN – where the trial judge permitted the mother to relocate with the three children 63 km away – where the father opposed the move – where the father appealed – where the appellant contended that the trial judge failed to properly analyse the children’s current relationships with their parents and the impact of any proposed change to the nature and quality of those relationships – where no error demonstrated – where the appellant contended that the trial judge failed to properly analyse the evidence of the family report writer – where no error demonstrated – where the appellant contended that the trial judge made comments critical of the father’s lack of financial support for the children without analysing the evidence – where it was not demonstrated that any such finding had any material impact upon the trial judge’s ultimate findings – where no error demonstrated – where the appeal is dismissed.

    FAMILY LAW – APPEAL – COSTS – where the appeal was wholly unsuccessful – where orders are made for the appellant to pay the respondent’s costs of the appeal.

  • Britt & Britt [2017] FamCAFC 27

    27 Feb 2017

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

    FAMILY LAW – APPEAL – EVIDENCE – Whether the appellant’s evidence of family violence was properly taken into account by the primary judge – Where the primary judge rejected parts of the appellant’s evidence of family violence on the basis that it lacked particularity and took the form of conclusions – Discussion of s 55 and s 56 of the Evidence Act 1995 (Cth) – Whether the rejected evidence had probative value – Distinction between admissibility and weight – Where the evidence was relevant to an issue in the proceedings and should not have been rejected – Discussion of the effect of a finding that the primary judge wrongly excluded evidence – Where the Court cannot be satisfied that the rejected evidence, if it had been admitted, would not have affected the outcome of the case – Where the matter must be remitted – Appeal allowed – Re-hearing ordered – Costs certificates granted pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether the primary judge should have given the appellant leave to adduce oral evidence – Where the decision is a discretionary one and it is impossible to conclude that the primary judge erred – No error established.

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant contends that the primary judge made erroneous findings about the appellant’s conduct in relation to the Australian Taxation Office (“ATO”) – Where the parties had received a large fine because appellant had defrauded the ATO – Where the primary judge made an adjustment in favour of the respondent – Where the parties misdirected the primary judge as to the precise sum of the loss suffered by the parties – Error established.

    FAMILY LAW – APPEAL – NOTICE OF CONTENTION – Where the respondent contended that the primary judge erred in finding that s 75(2)(d)(ii) of the Family Law Act distinguishes between children of the marriage and other children that a party has a legal duty to support – Where this matter can be addressed during the re-hearing.
  • Rilak & Tsocas [2017] FamCAFC 26

    27 Feb 2017

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

    FAMILY LAW – APPEAL – CHILDREN – Best interests – Unacceptable risk of harm – Credit – Weight – No error established.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether court should have ordered an updated single expert report – Adjournment – Party’s absence from court – Cross-examination of single expert – Disqualification – Procedural fairness – No error established – Appeal dismissed – Appellant mother to pay costs of respondent father.

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence on appeal – Application dismissed.

  • Gadoury & Koller [2017] FamCAFC 25

    22 Feb 2017

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

    FAMILY LAW – APPEAL – CHILDREN – PRACTICE AND PROCEDURE – Where the trial judge delivered ex tempore reasons for judgment and made orders in court – Where the published orders are different from the ex tempore reasons and orders as pronounced by the judge on the day of the hearing – Where the father sought to clarify the orders at the hearing – Where the transcript reveals an inconsistency between the ex-tempore and settled orders – Where there has been procedural unfairness – Appeal allowed.

    FAMILY LAW – APPEAL – COSTS – Where the appeal was successful – Where both parties requested costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where it would be appropriate in the circumstances to award each of the parties costs certificates pursuant to that Act.

  • Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24

    21 Feb 2017

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

    FAMILY LAW – APPEAL – CONTRAVENTION – Where the appellant was ordered to pay costs relating to his contravention application – Where the appellant alleges the costs order was unreasonable – Where the appellant withdrew the application after the matter had been before the Court on three occasions – Where such an order was appropriate – Appeal dismissed.

    FAMILY LAW – APPEAL – CONTEMPT – Where the trial judge dismissed the appellant’s application for contempt – Where the appellant challenges the weight which the trial judge gave to the evidence before him – No appealable error demonstrated – Appeal dismissed.

    FAMILY LAW – APPEAL – DISAQUALIFICATION – Where the trial judge dismissed an application that he disqualify himself – Where none of the grounds of appeal raise any error in his Honour’s findings – Appeal dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant required leave to appeal against procedural orders in four appeals before the Court – Whether leave to appeal should be granted – Leave to appeal refused.

  • Waterman & Waterman [2017] FamCAFC 23

    08 Feb 2017

    FAMILY LAW – APPEAL – PROPERTY – SECTION 79A – Whether the trial judge erred in dismissing the appellant wife’s application to set aside property orders made by consent in 1998 in circumstances where the parties reconciled in early 2000 before finally separating in 2012 –Where the Full Court held the trial judge erred in not finding that there had been the suppression of evidence through non-disclosure pursuant to s 79A(1)(a) and that the trial judge erred in finding that there was no miscarriage of justice – Where the Full Court found that, considering the circumstances that existed at the date of the consent orders, the only finding reasonably open was that justice had miscarried – Where the Full Court held pursuant to s 79A(1A) that, on an assessment of the circumstances of reconciliation, it could be inferred that the parties impliedly consented to the setting aside of the consent orders made in 1998 – Where the Full Court further held that the trial judge failed to identify what evidence of the parties was accepted, made inconsistent findings of fact and gave inadequate reasons – Leave to appeal granted – Appeal allowed – Order made pursuant to s 79A setting aside the consent orders made in 1998 – Direction made that the matter be listed for hearing in the Federal Circuit Court for the determination of s 79 proceedings – Costs certificates granted.  

  • Strahan & PP Lawyers Pty Ltd [2017] FamCAFC 22

    20 Feb 2017

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

    FAMILY LAW – APPEAL – LEGAL PRACTITIONERS – Appeal against declaration that solicitors are entitled to exercise a lien over their former client’s files – Primary judge did not err in concluding the solicitors had just cause for ceasing to act and were entitled to exercise a lien – Primary judge did not err in concluding the lien was not lost because of the solicitors’ claim for ongoing storage fees of the files  – Oral reasons given during submissions were formally incorporated into the reserved judgment and parties could understand basis of the decision – Reasons were therefore adequate.

    FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Error of law conceded in relation to conditions on which files should be made available to new solicitors for use in ongoing litigation – Appeal be allowed in part – Order made for delivery of files conditional upon undertaking from new solicitors – Former solicitors retain lien over the fruits of the litigation.

    FAMILY LAW – APPEAL – COSTS – First instance costs order set aside – Timetable provided for submissions concerning costs at first instance and on appeal.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Some evidence admitted by consent – Balance not received.

  • Grella & Jamieson [2017] FamCAFC 21

    20 Feb 2017

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

    FAMILY LAW – APPEAL – CHILDREN – where the mother sought to relocate with the nearly five year old child to Europe – where the trial judge did not permit the relocation – where the mother appeals those orders – where the mother contends that the trial judge wrongly elevated the consideration of s 60CC(2)(a) and the benefit to the child of having a meaningful relationship with both parents – where it is contended that the trial judge failed to decide issues of fact her Honour was obliged to decide – where it is contended that her Honour made errors of fact material to the ultimate determination – where no error demonstrated – appeal dismissed.

  • Official Trustee in Bankruptcy & Galanis and Anor [2017] FamCAFC 20

    17 Feb 2017

    FAMILY LAW – APPEAL – JURISDICTION – Matrimonial cause – Whether the Family Court of Australia has jurisdiction to hear an application to set aside a financial agreement entered into under the Family Law Act 1975 (Cth) (“the Family Law Act”), where that application is made by the trustee in bankruptcy of a discharged bankrupt – Construction of definitions (cb) and (eab) within the definition of “matrimonial cause” in s 4(1) of the Family Law Act – Construction of “government body” within s 4A of the Family Law Act – Where the phrase “bankrupt party to the marriage” in definition (cb) means an undischarged bankrupt – Where the Official Trustee in Bankruptcy is not a government body for the purposes of s 4A of the Family Law Act – Where the Court has no jurisdiction to hear the application as it does not fall within the definition of a matrimonial cause – No error established – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly unsuccessful – Where the respondent seeks costs on an indemnity basis – Where the circumstances do not justify indemnity costs – Costs as agreed or assessed.

  • Reeves & Grinter [2017] FamCAFC 19

    17 Feb 2017

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against final parenting orders – Where the child has significant intellectual and behavioural issues – Where the grounds of appeal challenge the trial judge’s exercise of discretion and weight given to various factors – Where the single expert recommended a change of residence for the child to live with the father – Where the trial judge was entitled to consider the expert’s evidence against the entirety of the evidence – Where the findings of the trial judge were open to him – Where the father asserted that the trial judge failed to give proper consideration to the s 60CC considerations – Where the trial judge did not err in his consideration of the evidence as a whole – Where the trial judge did not err in his application of the evidence to the legislative considerations – Appeal dismissed – Costs ordered.  

  • Valdez & Frazer [2017] FamCAFC 18

    17 Feb 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for review of Registrar's decision – Where the Registrar rejected two of the orders sought for filing in an Application in an Appeal – Where the orders sought were an abuse of process, frivolous, scandalous or vexatious – Where the Court lacked jurisdiction to make the orders sought – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the applicant was wholly unsuccessful – Costs ordered.

  • Huda & Huda and Anor [2017] FamCAFC 17

    16 Feb 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – LEGAL PRACTITIONERS –Where an employee of the solicitors for the respondent to an appeal resigned and commenced employment with the solicitors for the appellant – Where the respondent in the appeal seeks orders restraining the solicitors from continuing to act – Where the employee in question did have access to the file during employment with the solicitors – Where there was no evidence that the employee received confidential information from the client – Where the applicant has failed to identify the nature of the information received or likely to have been received – Where mere access to a file does not meet the evidential threshold – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent foreshadowed filing an application for costs against the solicitors of the applicant personally – Where such application must be filed within the timetable prescribed in the orders.

  • Baird & Reynold [2017] FamCAFC 16

    16 Feb 2017

    FAMILY LAW – APPEAL – PROPERTY – Where the application to adduce further evidence is dismissed – Where there is a material error in the adequacy of the reasons – Where there is a failure to have regard to relevant evidence – Where the trial judge fell into error – Where some grounds of appeal did not succeed but the principal grounds of appeal all succeeded – Where the orders appealed against are set aside and the matter is remitted for rehearing.

    FAMILY LAW – APPEAL – COSTS – Where there is an order for costs in favour of the wife.

  • Dakin & Sansbury (Costs) [2017] FamCAFC 15

    16 Feb 2017

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks an order that the appellant pay costs – Where the circumstances justify an order for costs – Where an order is made for the appellant to pay the costs of the respondent in a fixed sum.  

  • Wallis & Manning [2017] FamCAFC 14

    10 Feb 2017

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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.