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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.

  • Renald & Renald [2017] FamCAFC 92

    15 May 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Mother seeks to expedite her appeal against refusal to issue a recovery order for two of the parties’ six children – Mother seeks to enforce very recent consent orders – Appeal to be heard by single judge – No detriment to other matters waiting to be heard – Application allowed.

  • Zaruba & Zaruba [2017] FamCAFC 91

    12 May 2017

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Contributions –Whether trial judge made error in assessment of contributions – Appropriate for trial judge to adopt asset by asset approach  – Trial judge erred by misapprehending the wife’s case in respect of the contributions to the former matrimonial home and in concluding that financial contributions to the property were equal – Trial judge erred in concluding that it was just and equitable to adjust interests in a property held in the wife’s name to which the husband had made no contribution – Stanford v Stanford (2012) 247 CLR 108 discussed – Error established – Discretion re-exercised.

  • Betros & Betros [2017] FamCAFC 90

    12 May 2017

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

    FAMILY LAW – APPEAL – CHILDREN – final parenting orders – where the orders provided that the husband spend supervised time with the children – where the orders provided that a fresh application to lift the supervision order could be made upon the fulfilment of certain conditions – where the trial judge gave adequate reasons for imposing this order – where the trial judge gave adequate reasons for concluding that it was in the children’s best interests to have limited time with their father – where any asserted error in the trial judge’s consideration of certain evidence could not be vindicated on appeal in the absence of a transcript – where no submission by the father was sufficient to demonstrate discretionary error by the trial judge – appeal dismissed.

  • Harrelson & Harrelson [2017] FamCAFC 89

    11 May 2017

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

    FAMILY LAW – APPEAL – CHILDREN – Where the father challenges the primary judge’s order for the mother to have sole parental responsibility for a child of the marriage in respect of the child’s health – Where the father challenges an order as to the time the children will spend with him – Adequacy of reasons – Whether the primary judge failed to identify the evidence upon which his decision was made – Whether the primary judge properly applied s 61DA of the Family Law Act 1975 (Cth) (“the Act”) – Whether the primary judge’s discretion miscarried – Whether the primary judge gave appropriate weight to the evidence – Whether the primary judge adequately considered s 65DAA of the Act – No appealable error established – Appeal dismissed.

  • McMillan & McMillan [2017] FamCAFC 88

    24 Feb 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – extension of time to file Notice of Appeal – where the husband sought to file two Notices of Appeal out of time – where the first Notice of Appeal related to the trial judge’s decision to dismiss an application to strike out an enforcement warrant issued by the wife in relation to a costs order –where the second Notice of Appeal related to the trial judge’s decision not to recuse himself – where there was a substantial delay in the husband filing the Notice of Appeal – where the husband’s explanation did not constitute a reasonable excuse for a delay of this magnitude – applications dismissed – costs ordered.

  • Leary & Harman [2017] FamCAFC 87

    28 Apr 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 to file Notice of Appeal – where the delay in receiving a sealed copy of the orders was outside of the control of the applicant mother – where there is an absence of prejudice to the father should leave be granted – where if the asserted considerations were not taken into account a recognised category of discretionary error may be established – where the mother has filed a fresh application in a case for interim parenting orders – where the mother has deposed to new evidence applicable to that application – where the application is to be heard within a month – where the proposed appeal would not be heard before the November sittings – where the proposed appeal lacks utility – where the application for an extension of time to file the Notice of Appeal is dismissed.

  • Keating & Keating [2017] FamCAFC 86

    05 May 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the wife sought to adduce further evidence in the appeal – where the wife conceded that evidence was not relevant to demonstrating error by the primary judge – application dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – single judge appeal pursuant to s 94AAA(3) – where the primary judge dismissed an Application in a Case filed by the wife two days before the commencement of the trial – where the trial was adjourned part-heard pending the outcome of the appeal – where there was no utility to the appeal – where the appropriate forum to determine assertions of fraud and non-disclosure was at a final hearing – where the reasons of the primary judge were discernible from the transcript – where there is no demonstrated error or substantial injustice  – application for leave to appeal dismissed.

  • Loomis & Thurston [2017] FamCAFC 85

    05 May 2017

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

    FAMILY LAW –APPEAL – CHILDREN – Parenting orders –Whether father denied procedural fairness – Findings were available – Weight afforded to evidence – Where the appeal does not raise any question of general principle – Reasons for decision in short form pursuant to s 94AAA(7) – Appeal dismissed.

  • Tobey & Rezek [2017] FamCAFC 84

    05 May 2017

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

    FAMILY LAW – APPEAL – PROPERTY – Appeal from a re-hearing – Where the proceedings were re-heard after a partly successful appeal – Add backs for legal fees – Exclusion of a party’s tax liability from the property pool, where the liability was incurred after separation – Whether the primary judge relied on the correct balances for the parties’ superannuation entitlements in making new property orders – Whether an adjustment pursuant to s 90SF(4) of the Family Law Act 1975 (Cth) was properly made – Whether the primary judge’s orders were just and equitable – Whether the Full Court can correct an arithmetical error in the primary judge’s reasons and orders pursuant to r 17.02 and r 17.02A of the Family Law Rules 2004 (Cth) – Where no error is established – Appeal dismissed.

  • Almond & Sheffield [2017] FamCAFC 83

    30 Mar 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s appeal was deemed to be abandoned due to her failure to file a Draft Appeal Index within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Where the applicant seeks the reinstatement of her appeal – Where there is a reasonable explanation for the delay – Application allowed – Applicant to pay the respondent’s costs of the application in a fixed sum.

  • Lan & Hao [2017] FamCAFC 82

    13 Apr 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of her appeal from an order dismissing her application for an anti-suit injunction – Where the parties have property settlement proceedings on foot in both Australia and China – Where the appeal is arguable – Where there is no satisfactory explanation for the applicant’s delay in bringing the application for expedition – Where the appeal is not of sufficient urgency to warrant expedition – Application dismissed – Applicant to pay the respondent’s costs of the Application in an Appeal as agreed or assessed.  

  • Fegley & Salway [2017] FamCAFC 81

    16 Mar 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks an extension of time in which to file an application for costs in respect of a discontinued appeal – Where the delay in filing the application was minimal – Where the application for costs is sufficiently arguable – Application allowed.

  • Bain & Bain (Deceased) [2017] FamCAFC 80

    03 May 2017

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

    FAMILY LAW – APPEAL – CONTEMPT – STANDING – Standing of Legal Personal Representatives to bring a contempt application – Consideration of role of Legal Personal Representatives pursuant to s 79(8) of Family Law Act 1975 (Cth) – History of contempt procedures in previous Rules and Regulations – Necessary to give effect to the proper meaning of the Act and Rules – Where the Legal Personal Representatives have standing pursuant to the Family Law Rules 2004 (Cth) – No appealable error.

    FAMILY LAW – APPEAL – CONTEMPT – Appeal against finding of contempt and penalty – Where a key issue was whether the husband had knowledge of the undertaking he was bound by – Rejection of husband’s evidence as inherently unbelievable – Use of circumstantial reasoning and inferences – Failure to address evidence inconsistent with the husband’s guilt – Where the trial judge was required to be satisfied beyond reasonable doubt of the husband’s state of mind at the relevant time, not the state of mind of a hypothetical person – Appealable error demonstrated.

    FAMILY LAW – APPEAL – JURISDICTION – UNDERTAKINGS – Whether the Court had jurisdiction to accept an undertaking from the husband – Undertaking in interim proceedings in relation to the subject matter of the litigation – Power of the Court to make injunctions per s 114(3) of the Family Law Act 1975 (Cth) – No appealable error.

    FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the husband’s evidence was largely unchallenged – Reliance on matters not put to the husband – Where the trial judge did not indicate a disbelief of the husband’s evidence – Where the trial judge produced costs submissions from the court file that were not otherwise before her – Where the trial judge did not make clear the conclusions she believed flowed from the fact of their filing – Denial of procedural fairness – Appealable error demonstrated.

    FAMILY LAW – APPEAL – RE-EXERCISE – CONTEMPT – No direct evidence as to the husband’s knowledge of the undertaking – Unchallenged evidence of the husband – No satisfaction beyond reasonable doubt that the husband knew of the undertaking at the time he disbursed the funds – Contempt application dismissed.

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

  • Atkins & Hunt and Ors [2017] FamCAFC 79

    28 Apr 2017

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

    FAMILY LAW – APPEAL – where certain grounds of appeal were not argued before the trial judge – whether the appellant could argue these grounds by reference to the principles in Metwally – where a significant issue was whether the substantial control exercised by the husband over a company meant that a finding of alter ego should have been made – where the appellant argued that certain loan accounts should not have been included in the assets and liabilities of the parties – where neither argument satisfied the principles in Metwally – where there was no error in the trial judge preferring one single expert witness over another based on the evidence and arguments to which his Honour was directed – where the trial judge’s assessment of s 79(4)(e) failed to take into account relevant considerations and took into account an irrelevant consideration – where this constituted discretionary error on his Honour’s behalf – where the trial judge erred in the circumstances by failing to add back fees paid by the husband for a single expert witness – where doing so reduced the assets available for distribution – where the trial judge added back the parties’ respective payments for legal fees – where an error was made in relation to the amount added back for the husband’s legal fees – appeal allowed.

  • Dalton & Dalton [2017] FamCAFC 78

    28 May 2017

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

    FAMILY LAW – APPEAL – Where the primary judge dismissed the husband’s application to restrain the wife’s solicitors from acting – Where the wife’s solicitor’s had previously acted for the husband – Whether an undertaking provided to create an effective information barrier is effective – Waiver – Implied waiver of the right to object – Appeal dismissed – Costs ordered.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL –Where there was sufficient doubt about the trial reasons to justify consideration and supposing the decision to be wrong the husband would suffer substantial injustice – Where the proposed appeal raises matters of considerable importance – Leave to appeal granted

  • Blackwell & Scott [2017] FamCAFC 77

    28 Apr 2017

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

    FAMILY LAW – APPEAL – FINANCIAL – where the parties reached final consent orders in relation to the just and equitable settlement of their property – where by those consent orders the parties were to receive an equal division of their property – where to effect that settlement the de facto husband was to retain real property held by him and pay to the de facto wife a cash payment of $130,000 – where the husband failed to make the relevant cash payment – where the value of the subject real property increased significantly between the making of the consent orders and the time, 13 months later when the husband made the required cash payment – where the subsequent late payment of the cash sum did not affect an equal division of the property of the parties – where the wife brought an application pursuant to s 90SN(1)(c) of the Family Law Act 1975 (Cth) seeking to set aside the consent orders – where the trial judge set aside the original consent orders – whether the circumstances had "arisen as a result of that default" – where the appeal is dismissed.

  • Barclay & Paton [2017] FamCAFC 76

    28 Apr 2017

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

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant says that the order appealed provides for a sum to be paid to him by the respondent which does not reflect the reasons of the trial judge because of mathematical errors in the calculation of the adjusting payment – Where the matter was brought back before the trial judge who refused to allow the appellant to make an application or any submissions and suggested he had no power to vary the order – Where the trial judge clearly made errors in arriving at the amount to be paid by the respondent to the appellant – Where there is merit in the appeal and it should be allowed – Where the order appealed should be varied to increase the amount payable by the respondent to the appellant.

    FAMILY LAW – COSTS – Where the appellant sought an order for costs in the event that the appeal was successful and that written submissions be permitted because certain offers had been made which would be relevant – Where in the event that no costs were ordered the appellant sought a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the respondent opposed any order for costs and sought a costs certificate if no order was made – Where whether an order for costs is made is entirely within the discretion of the court – Where the errors were the trial judge’s – Where neither the appellant’s nor the respondent’s counsel led the trial judge into error more than the other – Where there should be no order for costs – Where the appeal is being allowed on a question of law – Costs certificates ordered for both parties.

  • Stativa & Stativa [2017] FamCAFC 75

    28 Apr 2017

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

    FAMILY LAW – APPEAL – CHILDREN – Where the appellant requires leave to appeal – Where the basis for leave being granted was no different from the grounds of appeal relied on by the appellant and thus the matter was conducted on the basis of whether there was merit in the complaints made by the appellant – Where the complaints made by the appellant are misconceived – Where there is no merit in the appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the respondent seeks her costs calculated on an indemnity basis – Where the respondent filed an affidavit annexing the relevant costs agreements – Where the appellant filed no written submissions – Where an order for costs should be made – Where there can be no doubt that the circumstances here are such that they warrant a departure from the ordinary rule and the awarding of indemnity costs – Where the respondent should not bear any of her legal costs incurred in responding to an appeal which was doomed to fail from the outset – Costs ordered in favour of the respondent to be calculated on an indemnity basis.

  • Yavuz & Yavuz and Anor [2017] FamCAFC 74

    26 Apr 2017

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

    FAMILY LAW – APPEAL – PROPERTY – third party debt claim - where the trial judge rejected the cross-appellant’s claim for the repayment of a debt – whether the trial judge erred in addressing this issue – where the debt was said to arise from four different transactions – where error demonstrated only in respect of one.

    FAMILY LAW – APPEAL – ORDERS – orders made beyond jurisdiction - where it is contended that the trial judge made orders exceeding jurisdiction – where those orders provided that, in default of the husband making the required payment to the wife, entities associated with the husband and cross-appellant were to sell properties to meet that liability – where those entities were not parties to the litigation – where error demonstrated – where it is possible to sever the orders made beyond jurisdiction.

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT - whether the trial judge erred in determining the value of the husband’s interest in various entities – where the husband failed to facilitate the single expert valuer appropriately valuing the entities – where no error demonstrated – where the trial judge made credit findings adverse to the husband – where the husband challenged the adequacy of reasons of these findings – where no error demonstrated – where the husband challenges the trial judge’s assessment of contributions – where the husband challenges the trial judge’s assessment of the parties’ future needs – where the husband asserts the trial judge failed to have regard to the realisation costs likely to be incurred by the husband in satisfying the orders – where error demonstrated – where appeal allowed – where matter remitted.

  • Bates & Arthur and Anor [2017] FamCAFC 73

    26 Apr 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO INTERVENE – Application in an appeal by the father seeking leave to intervene in an appeal – Where the Court is satisfied that allowing the application would not cause any injustice to the applicant – Where in the circumstances, it is in the interests of justice that the application for leave to intervene be granted – Application to intervene granted.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where granting of leave is not automatic and involves the exercise of discretion –Where explanation for the failure to file a Notice of Appeal in a timely way was adequate – Where the extension of time would not cause real prejudice to the respondent – Extension granted.

  • Bebbington & Bebbington (Costs) [2017] FamCAFC 72

    26 Apr 2017

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

    FAMILY LAW – APPEAL – COSTS – application by the respondent for costs of the appeal on an indemnity basis – where the appeal was futile – where some costs incurred were excessive or incurred in pursuit of a misconceived approach – where costs awarded in a fixed-sum.

  • Bhatt & Acharya (Costs) [2017] FamCAFC 71

    22 Mar 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the applicant seeks his costs of a discontinued appeal – Where the appeal, having been discontinued, was wholly unsuccessful – Where offers of settlement had been rejected by the respondent – The parties’ conduct of the proceedings – Financial positions of the parties – Respondent ordered to pay the applicant’s costs of the discontinued appeal and the application for costs.  

  • Lucke & Lucke [2017] FamCAFC 70

    16 Mar 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant seeks to reinstate an appeal deemed abandoned by operation of r 22.13(3) of the Family Law Rules 2004 (Cth) – Where the appeal is against interlocutory orders and leave to appeal is required – Where the grounds of appeal are so devoid of merit that a grant of leave to appeal would be futile – Application dismissed – No order as to costs.

  • Nimmo & Bush [2017] FamCAFC 69

    24 Apr 2017

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

    FAMILY LAW – APPEAL – where the hearing of the appeal was expedited – where the parties submitted a signed joint minute of consent allowing the appeal – where the father was not accorded procedural fairness – where appealable error was clearly established – where both parties suffered a significant injustice – appeal allowed.

    FAMILY LAW – APPEAL – REEXERCISE OR REMITTER – where the proceedings were remitted to the court of first instance – where the orders requested that the rehearing be expedited.

  • Surridge & Surridge (No. 2) [2017] FamCAFC 68

    19 Apr 2017

    FAMILY LAW – APPEAL – PROPERTY – Form of orders – Where the appeal was allowed – Where the Full Court re-exercised the discretion under s 79 of the Family Law Act 1975 (Cth) and ordered the parties to file with the registry an agreed form of orders in accordance with the Full Court’s reasons for judgment – Where the parties failed to comply with that order – Parties directed to file Short Minutes of Order and form of orders determined by the Full Court in chambers.  

  • Stewart & Stewart [2017] FamCAFC 67

    13 Apr 2017

    FAMILY LAW – APPEAL – CHILDREN – where the mother sought orders in respect of which school the children would attend – where the mother’s application was silent as to who would bear the financial responsibility for the costs associated with the children’s education –where the mother failed to demonstrate that the parents could afford the proposed school – where the parents had previously reached agreement as to the care arrangements for the children, including for equal shared parental responsibility – where the mother asserted the trial judge failed to follow the legislative pathway – where the mother contended that the trial judge misapprehended her case – where the mother asserted that trial judge failed to give adequate reasons – no error demonstrated – appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – where the father sought his costs of and incidental to the appeal – where the father is a solicitor – where by reason of the father being a solicitor his costs are capable of being quantified – costs awarded.

  • Kroger & Yates and Anor [2017] FamCAFC 66

    13 Apr 2017

    FAMILY LAW – APPEAL – CHILDREN – Weight – Adequacy of reasons – Exercise of the primary judge’s discretion – No appealable error demonstrated – Appeal dismissed – Appellant father to pay the respondent mother’s and the Independent Children’s Lawyer’s costs of the appeal.  

  • Matani & Matani and Ors [2017] FamCAFC 65

    06 Apr 2017

    FAMILY LAW – APPEAL – COSTS – Appeal against costs orders including an order for indemnity costs in favour of third parties – Held trial judge did not err in exercising his discretion as to costs – Appeal dismissed.  

  • McPherson & McPherson [2017] FamCAFC 64

    30 Mar 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks the expedition of his appeal from interim parenting orders – Where the father complains that the primary judge failed to order sufficient time between the father and the child – Where there is no suggestion that the orders pose a risk to the child’s safety – Where there is no basis for expediting the appeal – Application dismissed.  

  • Lambton & Lambton [2017] FamCAFC 63

    30 Mar 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of her appeal on the basis that her physical and mental health has declined since the trial – Where the appeal is not of sufficient urgency to warrant displacing other appeals awaiting hearing – Application dismissed.  

  • Mackah & Mackah [2017] FamCAFC 62

    03 Apr 2017

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Enforcement orders – Whether the primary judge erred in ordering the husband to access his superannuation fund to meet his obligations to the wife – Orders infringed the Superannuation Industry (Supervision) Regulations 1994 (Cth) – Benefits in a regulated superannuation fund were being cashed in favour of a person other than the member of the fund or his legal personal representative – Appeal allowed – No order as to costs.  

  • Connor & Cosgrove [2017] FamCAFC 61

    05 Apr 2017

    FAMILY LAW – APPEAL – Hearing for dismissal for want of prosecution – Where the appellant has not complied with the orders made to prepare the appeal for hearing – Where the appellant has failed to file a summary of argument – Where the appellant was informed that the appeal was listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant sought an extension of time in which to file his summary of argument – Where the appellant indicated he could not file the summary of argument for at least three months – Where the appeal grounds do not reveal any arguable error – Where any extension of time would represent an injustice to the respondent – Appeal dismissed – Costs ordered.  

  • Field & Mighell [2017] FamCAFC 60

    01 Mar 2017

    FAMILY LAW – APPLICATION – STAY – Where the wife seeks a stay of the proceedings to travel to Mexico – Where she wife has not appeared – Where she has not provided an adequate reason/s for a stay – Where the proceedings should not be stayed – Application dismissed.

    FAMILY LAW – APPEAL – DISMISSAL – Where the husband seeks that the appeal be dismissed – Where the wife was on notice that consideration would be given to dismissing her appeal – Where it is readily apparent that the wife was attempting to retry issues that the trial judge had already finally determined under the guise of s 79A proceedings – Where none of the orders sought by the wife before the trial judge could successfully invoke the application of s 79A of the Family Law Act 1975 (Cth) – Where none of the wife’s so-called grounds of appeal raise appealable error by the trial judge – Where the grounds of appeal are incompetent – Where there is no prospect of success and the appeal is doomed to fail – Appeal dismissed.
  • Kaiser & Kaiser [2017] FamCAFC 59

    01 Mar 2017

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the wife’s oral application to adjourn the proceedings on medical grounds was refused – Where there is no satisfactory explanation as to why the wife was unable to file her Notice of Appeal within time – Where none of the grounds of appeal relied on by the wife have any chance of success – Where the appeal has no merit – Application dismissed.

  • Uttley & Uttley [2017] FamCAFC 58

    01 Mar 2017

    FAMILY LAW – APPEAL – DIVORCE – Where the respondent husband no longer has legal representation and resides in the United Kingdom – Where the respondent husband has had notice of the hearing and advice that if he did not attend the hearing or was not represented orders may be made in his absence – Where one of the orders appealed is directly inconsistent with what counsel for the respondent husband advised the trial judge was the case – Where the trial judge should not have made that order being aware of the parties’ position in relation to it, namely that the wife had no control over those proceedings and was not in a position to withdraw or discontinue them – Where the appeal against that order should be allowed and the order set aside – Where there is no appealable error made by the trial judge in making the second order under appeal but as a result of the first order being set aside a slight amendment should be made to it such that it reads more logically and sensibly and it should be renumbered – Appeal allowed – Order amended.  

  • Scarle & Ringwood and Anor [2017] FamCAFC 57

    31 Mar 2017

    FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made orders that the children live with the grandmother and spend limited time with the mother – Where the trial judge’s reasons for so ordering were inadequate – Appeal allowed – Remitted for rehearing – Orders under appeal remade pending further order – Costs certificates granted.  

  • Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56

    31 Mar 2017

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE - Where the Child Support Registrar who was not a party to the proceedings at first instance seeks leave to apply for leave to appeal and to appeal – Where the Child Support Registrar is directly affected or sufficiently interested in the proceedings – Leave granted.

    FAMILY LAW – APPEAL – APPLICATION FOR EXTENSION OF TIME – Where consideration is given as to whether the extension is necessary to enable the court to do justice between the parties – Where the court considers there to be an adequate reason for failure to file within time and that there was no unreasonable delay – Extension of time granted.

    FAMILY LAW – APPEAL – CHILD SUPPORT – LEAVE TO APPEAL –Where there are matters of general public importance going to the proper construction and operation of the Child Support (Registration and Collection) Act 1988 (Cth) and the jurisdiction of the court in relation to the issues sought to be raised – Where the court is satisfied that a grant of leave to appeal is warranted.

    FAMILY LAW – APPEAL – CHILD SUPPORT – STAY ORDERS – Where the trial judge was in error in relying on s 111C of the Child Support (Registration and Collection) Act 1988 (Cth) to make the stay orders on 7 July 2015 and 2 February 2016 – Where neither s 15 of the Federal Circuit Court of Australia Act 1999 (Cth) nor the implied power of the Federal Circuit Court of Australia provide the trial judge with the jurisdiction to make those stay orders – Where those orders are set aside.

    FAMILY LAW – APPEAL – COSTS – No order as to costs.

  • Gong & Wei [2017] FamCAFC 55

    04 Apr 2017

    FAMILY LAW – APPEAL – CHILDREN – Interim parenting orders – Where the mother appeals against interim parenting orders which provide for equal shared parental responsibility, remove the previously ordered supervision of the children’s time with the father and increase that time – Where the primary judge did not err in her consideration of family violence allegations – Where the primary judge’s obligation to consider s 60CG and s 61DA of the Family Law Act 1975 (Cth) was met – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the mother seeks to adduce the Children and Parents Issues Assessment of the Family Consultant provided subsequent to her Honour’s Orders – Where the further evidence would not have produced a different result from that under appeal – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Mother ordered to pay the father’s costs of the appeal – Where the mother seeks to stay any costs orders made against her pending determination of the property proceedings – Where there were no grounds for making such an order – No order made.

  • Ramsey & Hays [2017] FamCAFC 54

    20 Mar 2017

    FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – With whom a child spends time – Trial judge made orders for father to have sole parental responsibility and the child to live with the father and spend time with the mother – Earlier decision to deny the mother permission to rely upon the grandmother’s affidavit was unexceptional use of court’s power and did not result in error – Open to trial judge to make order for sole parental responsibility – Trial judge did not fail to consider s 61DA and s 60CC(2) of the Family Law Act 1975 (Cth); did not err in not appointing an Independent Children’s Lawyer; did not fail to consider the risk to the child of the father consuming alcohol – Appeal dismissed – No order as to costs.

    FAMILY LAW – APPEAL – Interpretation of s 61DA and s 65DAA – Save for the special case of interim proceedings, the presumption in s 61DA always applies except in the circumstances described in s 61DA(2) – The presumption may be rebutted in circumstances described in s 61DA(4) – Subsection 65DAA(6) only applies in circumstances where all aspects of the parenting order are being made by consent –The trial judge’s infelicitous paraphrase of the legislation did not require appellate intervention as he was clearly satisfied that an order for equal time would not promote the child’s best interests.             

    FAMILY LAW – APPEAL –Application to adduce further evidence – Mother’s case would not have been advanced by being permitted to rely upon the evidence – Application dismissed.

  • Sampson & Cable [2017] FamCAFC 51

    23 Mar 2017

    FAMILY LAW – APPEAL – COSTS – Application for costs of discontinued appeal – Where the appellant discontinued the appeal the week it was listed before the Full Court – Where the respondent had made offers of settlement – Where impecuniosity is not a bar to the making of a costs order – Appellant to pay respondent’s costs.  

  • Casano & Antipov [2017] FamCAFC 50

    29 Mar 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the father failed to attend a hearing for his application for an extension of time to file the appeal books – Where the appeal was taken to be abandoned – Where the appeal was instituted within time – Where the appeal is not so devoid of merit that to reinstate it would be futile – Appeal reinstated and procedural orders varied – Applicant to pay costs of the Independent Children’s Lawyer.  

  • Lawson & Hill [2017] FamCAFC 49

    29 Mar 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for reinstatement of an appeal – Where the appeal was deemed to be abandoned – Where the appellant failed to file the draft appeal index within the prescribed time – Where the appellant asserts he was not advised of the correct date for the filing of the draft appeal index – Where the appeal is not so devoid of merit that to reinstate it would be futile – Application allowed.  

  • Wender & Wender [2017] FamCAFC 48

    29 Mar 2017

    FAMILY LAW – APPEAL – PROPERTY – Where the wife argues that the trial judge erred in not applying the Federal Circuit Court Rules and instead applied the Family Law Rules to the question of whether an alternative valuation should be admitted – Where the wife further argues that in not allowing another expert report to be admitted into evidence the trial judge’s decision amounted to a denial of procedural fairness – Where there was no error in the trial judge’s decision in applying the Family Law Rules – Where the order for the appointment of a single expert witness was made by consent and the parties agreed upon the single expert – Where the wife made oral application to admit the report of a second expert after her case had been closed – Where admission of the second report would have necessitated the calling of further evidence and a further adjournment would have been required – Where it was plainly open to the trial judge to refuse the wife’s oral application – Where there was no lack of procedural fairness and the trial judge exercised her discretion appropriately – Where the wife disagreed with the value attributed to the husband’s business by the single expert and sought to rely on an alternative valuation report – Where the single expert accepted the methodology used in the alternative report and suggested it was “essentially” the same as his with a few “minor changes” – Where the two methodologies could not have been more different and the trial judge plainly failed to appreciate that – Where the expert valuer took into account the personal circumstances of the husband, namely his age, health and intention not to work longer than five years – Where these are not matters to be taken into account in valuing the business – Where a major flaw in applying the concept of “value to the owner” here is that the value arrived at is less than market value yet the husband could sell the business for its market value – Where the trial judge failed to address the inappropriate application of the “value to the owner” methodology – Where the trial judge erred in accepting the valuation of the single expert and the appeal must be allowed to that extent – Where plainly there needs to be further evidence presented – Where it is not appropriate to re-exercise the discretion – Appeal allowed in part and remitted for rehearing by a judge other than the trial judge.

    FAMILY LAW – CROSS-APPEAL – PROPERTY – Where Grounds 1, 2 and 3 have no merit – Where there is merit in Ground 4 as a result of the partial success of the appeal – Where it is appropriate to remit for rehearing the question of the costs of the valuations – Cross-Appeal allowed in part and remitted for rehearing by a judge other than the trial judge.

    FAMILY LAW – APPEAL – COSTS – Where if the appeal was successful the wife sought an order for costs as did the husband if the cross-appeal was successful – Where both the wife and the husband were partially successful as a result of the wife’s success on the appeal – Where the usual principle encapsulated in s 117(1) of the Family Law Act 1975 (Cth) should apply and each party should bear their own costs – Where the appeal has succeeded on a question of law – Costs certificates ordered for both parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and for the rehearing.

  • Bellamy & Gladwell [2017] FamCAFC 47

    21 Mar 2017

    FAMILY LAW – APPEAL – where there was no appearance by or on behalf of the respondent husband – where the respondent husband filed an application to adjourn proceedings – where the reasons provided by the husband for adjournment were not adequate – where that application was dismissed – where it was ordered that the husband be provided a further opportunity to file a written summary of argument – where it was ordered that a transcript be provided to the parties.  

  • Searle & Mellor [2017] FamCAFC 46

    27 Mar 2017

    FAMILY LAW – APPEAL – CHILDREN – Inadequate reasons – Where the mother appeals against interim parenting orders which removed the previously ordered supervision of the children’s time with the father – Appeal allowed – Orders set aside – Application for interim parenting orders remitted for rehearing – Costs certificates for the appeal granted.  

  • Sandex & Bondir [2017] FamCAFC 45

    03 Mar 2017

    FAMILY LAW – APPEAL – EXPEDITION – Where the wife seeks that the hearing of her appeal be expedited – Where it has not been demonstrated to this Court that this case should be given priority over any case already listed, or waiting to be listed – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent and the Independent Children’s Lawyer make oral applications for their costs – Where it is sought that the respective applications for costs be reserved – Costs reserved.

  • Aiden & Grant [2017] FamCAFC 44

    24 Mar 2017

    FAMILY LAW – APPEAL – CHILDREN – CONTRAVENTION – Where the trial judge found that the mother had contravened parenting orders – Where the trial judge ordered 21 days compensatory time – Where subsequent orders had substantially altered the orders the subject of the appeals – Where neither appeal raises any competent challenge to his Honour’s orders – Appeals dismissed – No order as to costs.  

  • Howard & Howard [2017] FamCAFC 43

    24 Mar 2017

    FAMILY LAW – APPEAL – CHILDREN – Relocation – Best interests – Equal time – Children’s cognitive development and the weight given to their views – No appealable error demonstrated – Appeal dismissed – Appellant mother ordered to pay the respondent father’s costs of the appeal.