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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.

  • Child Support Registrar & Lovell and Anor [2016] FamCAFC 130

    15 Jun 2016

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

    FAMILY LAW – COSTS – Where the appeal was deemed abandoned due to failure to comply with r 22.21 of the Family Law Rules 2004 (Cth) – Where the applicant seeks costs pursuant to r 22.43 of the Family Law Rules 2004 (Cth) – Where the fixed sum for costs sought by the applicant is reasonable – Costs order made.

  • Proctor & Proctor [2016] FamCAFC 129

    19 Jul 2016

    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 Appeal – Reasonable excuse for delay – Where the proposed appeal is not devoid of merit – Leave for an extension of time granted.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition – Where the orders being appealed resulted in significant changes to the child’s living arrangements – Expedition granted.

  • West & White [2016] FamCAFC 128

    19 Jul 2016

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

    FAMILY LAW – APPEAL – Application in an appeal for reinstatement – Where procedural orders were made for the preparation of appeal books – Where the appellant failed to file the appeal books on time – Where the appeal was deemed abandoned – Where the appellant queried the order to include the whole of the trial transcript in the appeal book – Where the respondent agreed to an extension of time for filing the appeal books provided an assurance was received in writing from the appellant that the books will contain the totality of the transcript – Where there was no appearance by the applicant on the hearing of his application for reinstatement – Where the application was allowed and the appeal reinstated.

  • Tipping & Stanton [2016] FamCAFC 127

    18 Jul 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the appellant was not prejudiced by the absence of part of the transcript in the proceedings – Where it was open to the trial judge to make an order for sole parental responsibility – Where there was no error in the trial judge’s interpretation of the single expert evidence or the weight afforded thereto – Where it was open for the trial judge to find that the respondents were witnesses of credit – Where nothing turned on the credit of the respondents in any case – Where it was open to the trial judge to find that the respondents had and would continue to encourage the relationship between the children and the appellant – Where it was open for the trial judge to find the appellant would not promote the relationship between the children and the respondents – Where the trial judge’s findings as to the appellant’s financial circumstances were open on the evidence – Where it cannot be said that a comparison of the parties’ financial circumstances was elevated to a primary consideration or given too much weight – Where it was open for the trial judge to find that the respondents played a greater role in the management of the children’s grief than did the appellant – Where the appellant failed to demonstrate that the trial judge’s order for the children to live with the respondent’s was plainly wrong – Where an order for flexibility in the spend time arrangements would be inconsistent with the trial judge’s order for sole parental responsibility in favour of the respondents – Where the trial judge properly considered the legislative pathway as it applies to people other than parents – Where the trial judge’s reasoning was adequate – Where the evidence demanded a finding that the respondents played a more significant role than the appellant in the children’s lives for the five years before trial – Where the appellant conceded that the children have a meaningful relationship with the maternal grandparents – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondents sought an order for costs – Where the appellant was wholly unsuccessful – Where the respondents incurred considerable expense in successfully defending the trial – Where the appellant is not impecunious – Order for costs made in favour of the respondents on party/party basis.

  • Valdez & Frazier (No. 3) [2016] FamCAFC 126

    18 Jul 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – STAY – Where the application was heard in the absence of the parties – Where the appellant has filed two separate applications for special leave to the High Court of Australia – Where the appellant seeks a stay of orders in relation to costs made in two separate appeal judgments pending determination of the special leave applications – Where the respondent does not wish to be heard on the appellant’s application – Where ultimate success in the High Court proceedings would result in the setting aside of the orders as to costs – Where there is no utility in the parties’ filing submissions on costs as previously ordered or seeking to enforce or pursue costs orders previously made pending the determination of the special leave applications – Application allowed.

  • Milne & Joyce [2016] FamCAFC 125

    15 Jul 2016

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

    FAMILY LAW – APPEAL – PROPERTY – The trial judge did not err in his treatment of “add backs” – The trial judge did not double count particular assets or treat particular assets inconsistently – The trial judge did not err in failing to include some minor chattels in the pool – Appeal dismissed – Order for the appellant to pay the respondent’s costs.

    FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – There was a delay of over two years in the delivery of judgment – The appellant claims that the values of assets and liabilities changed in this time – The onus was on the appellant to seek to reopen the trial – Application dismissed.

  • Quickley & Pelissier [2016] FamCAFC 124

    15 Jul 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the trial judge’s findings were open to him on the evidence – Where the trial judge was entitled to listen to as much of the recordings relied on by the appellant as he considered necessary – Where the trial judge’s reasons amply demonstrated the pathway leading to his decision – Where the trial judge properly considered and dispelled the presumption of equal shared parental responsibility – Where there is no error by the trial judge in his approach to the allocation of parental responsibility – Where the trial judge was not obliged to consider equal time – Where the trial judge clearly set out the parenting orders sought by the appellant and was not misled by counsel for the respondent’s final submissions – Where the trial judge was correct in not permitting objections by the appellant during the closing address of the mother’s counsel – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge clearly identified the existing property interests of the parties – Where the care of a child is a discrete factor to be considered separate from the payment of child support pursuant to s 75(2) Family Law Act 1975 (Cth) – Where the trial judge had a duty to end the financial relations between the parties and did so in the orders he made – Where it was not open to the appellant to raise a proposal on appeal that was not raised before the trial judge – Where the trial judge made no error in his assessment of liabilities in circumstances where no evidence was led about them despite there being ample opportunity for the parties to do so – Where there was no error by the trial judge in failing to add back the legal expenses of the parties when neither party raised this issue at trial – Where the trial judge was entitled to make an assessment of the appellant on the basis of how he conducted himself at trial – Appeal dismissed.

    FAMILY LAW – APPEAL – BIAS – Where the appellant asserted that the trial judge’s reasons for judgment demonstrated bias – Where there was a lack of specificity in relation to this complaint – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent sought an order for indemnity costs due to the conduct of the appellant and lack of merit in the appeal – Where the appeal was wholly unsuccessful – Where the appellant’s summary of argument and list of authorities were highly confusing – Where there were no exceptional circumstances to justify indemnity costs – Order for costs on a party/party basis.

  • Bircher & Bircher and Anor [2016] FamCAFC 123

    15 Jul 2016

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

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made findings as to the existence of two loans between the husband and the second respondent – Where the trial judge failed to confront and make findings by reference to the evidence as to the provenance of the loan agreements, the terms of the loans, and if they existed, who should bear liability for those loans – Where it was not open for the trial judge to ignore the plainly relevant evidence of the wife in relation to the inconsistencies between the evidence of the husband and the evidence of the second respondent and which called into question the authenticity of the alleged loans and the mortgages purportedly securing them without giving reasons for doing so – Where the absence of findings by the trial judge in respect of the wife’s case led to a failure to provide adequate reasons – Where there was no error in the trial judge’s treatment of spousal maintenance – Where there was a lack of findings in relation to the trial judge’s assessment of contributions during the marriage and post-separation to sustain her ultimate conclusion that the parties’ contributions were ostensibly equal – Where the trial judge plainly erred in making a finding of negative contribution against the appellant – Where there was no error in the trial judge’s treatment of the parties’ superannuation entitlements – Where the trial judge was entitled to exclude a motor vehicle from the pool of assets as there was insufficient evidence to allow it to be included – Where the appellant’s counsel did not raise the issue of bias at trial and a reading of the transcript did not reveal bias by the trial judge – Appeal allowed.

    FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where the parties sought that the discretion be re-exercised in the event the appeal was successful – Where there was an absence of findings by the trial judge on the evidence in relation to the primary issues – Where it is likely that further evidence would be controversial and would require cross-examination – Where the proceedings should be remitted to the Federal Circuit Court of Australia for rehearing.

    FAMILY LAW – APPEAL – COSTS – Where all parties were self-represented but indicated they had incurred some costs – Where the respondents were wholly unsuccessful – Costs awarded to the appellant payable by the respondents jointly and severally.

  • Harrell & Nesland [2016] FamCAFC 122

    13 Jul 2016

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – De facto relationship – Whether the trial judge failed to provide adequate reasons – Add backs – Contributions – Whether the trial judge failed to consider the non-disclosure of assets  – Appeal allowed on the basis of inadequate reasons – Where the appellant submitted that the trial judge also took into account irrelevant matters, erred in the exercise of discretion and made a number of errors of fact – Where, due to the lack of adequate reasons, the Full Court is unable to determine whether the trial judge erred in his exercise of discretion.

    FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – De facto relationship – Where the trial judge failed to consider and assess s 90SF(3) factors – Where the trial judge erred by taking the appellant’s means-tested pension into account – Where the trial judge failed to give reasons for taking the appellant’s inheritance into account – Where the trial judge failed to identify how he resolved the parties’ competing submissions as to whether the appellant could support herself.

  • Turner & Turner and Anor [2016] FamCAFC 121

    08 Jul 2016

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

    FAMILY LAW – APPEAL – PROPERTY – Undefended hearing – Where there was a substantial property pool – Where the husband’s refusal to participate in the trial made it difficult to value the property pool – Where the husband was involved as both a shareholder and director in a number of companies – Where the trial judge ordered the husband pay the wife a cash – No discount or allowance was made for disposal of shareholdings or taxation – Where the husband was a minority shareholder and would need to dispose of or encumber shareholdings to meet his obligations – Where taxation and realisation costs would be incurred – Where an absence of evidence did not justify the orders made – Where no other inference could be drawn other than there would be a sale of shares – Where two grounds of appeal were conceded by the wife, being an indemnity costs order and an error in the valuation of the husband’s interest in a property – Error established and appeal allowed.

    FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – CHILD SUPPORT – Where it is alleged the trial judge failed to have regard to the husband’s financial circumstances in making spousal maintenance and child support orders – Where the husband argued he did not have the capacity to pay – Where orders were previously made by consent for spousal maintenance – Where the husband has a high income and earning capacity – Where the orders made were appropriate on unchallenged evidence – These grounds were established.

    FAMILY LAW – APPEAL – COSTS – The husband sought costs in his favour as the appeal was allowed – The wife resisted a costs order and sought a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) – Where the husband’s conduct in the trial did not assist the judge and there are no circumstances to justify a costs order in his favour – Where it is not appropriate to order costs or a certificate in favour of the wife – No order as to costs.

  • Malak & Mairie (No. 2) [2016] FamCAFC 120

    06 Jul 2016

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

    FAMILY LAW – APPEAL – CHILDREN – where the appellant father appeals orders excluding the father from having parental responsibility for the children and prohibiting all communication between the father and the children – where the father is a convicted paedophile – where the trial judge found that the father posed an unacceptable risk of psychological harm to the children – where the father asserts that the trial judge erred in failing to obtain the children’s views – where the father asserts that the findings of the trial judge were not open to his Honour on the evidence before him – where no error established – appeal dismissed – no order as to costs.

  • Collins & Ricardo [2016] FamCAFC 119

    20 Jun 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant father sought leave to proceed without transcript of the proceedings below – leave granted.

    FAMILY LAW – APPEAL – TRANSFER – LEAVE TO APPEAL – where the applicant father sought leave to appeal the procedural orders of Rees J transferring the proceedings to Cairns – where there is no merit in the appeal – where there is no substantial injustice to either party – leave refused – the father pay the fixed costs of the Independent Children’s Lawyer.

  • Bendon & Bendon [2016] FamCAFC 118

    06 Jul 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where trial judge made findings that children were at risk of emotional, psychological and physical harm if they remained in the care of the mother – Where trial judge found the children would never have the opportunity of a meaningful relationship with the father were they to remain in the mother’s care – Trial judge determined that the father should have sole parental responsibility and that the children live with the father – Orders for supervised time and communication with mother – Reasonably practicable – Father lives in Western Australia and mother lives in Victoria – Mother’s sole challenge on appeal was that trial judge did not properly consider reasonable practicability under s 65DAA – Section 65DAA not activated given order for sole parental responsibility – Trial judge was cognisant of and addressed geographical distance between parents – No merit in appeal – Reasons in short form s 94(2A).

    FAMILY LAW – APPLICATION IN AN APPEAL – Where the mother sought an order for the Court to provide the trial transcript – Where this Application in an Appeal related to grounds of appeal not ultimately pursued on appeal – Where the Application was dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – Where the mother sought to adduce further evidence – Where it was held the Application did not meet the criteria for admitting further evidence on appeal – Where the evidence that was sought to be adduced did not have any relevance to the sole ground of appeal pursued on appeal – Where the Application was dismissed.

  • Helbig & Rowe and Ors [2016] FamCAFC 117

    06 Jul 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Allegations of risk of sexual abuse – Single expert report – Credit – Alleged errors of fact – Weight attributed to the evidence – Unacceptable risk – Unacceptable risk of abuse not established – Where children to live with father and spend time with mother – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

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

  • Paxton & Child Support Registrar and Anor [2016] FamCAFC 116

    01 Jul 2016

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

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the father sought leave to appeal from the decision of a Federal Magistrate dismissing his application for an extension of time to appeal the decision of the Social Security Appeals Tribunal – Where the mother and the child live in the United States of America – Where the Social Security Appeals Tribunal endorsed the validity of the determination made by the Child Support Registrar to register an overseas maintenance liability under the Child Support (Registration and Collection) Act 1988 (Cth) – Where appeals from the SSAT are confined to questions of law – Where the Federal Magistrate found the SSAT did not err in law – Where the father’s grounds of appeal have no reasonable prospect of success – Application for leave to appeal dismissed. 

    FAMILY LAW – COSTS – Where the Child Support Registrar sought indemnity costs of resisting the father’s unsuccessful application for leave to appeal – Registrar’s costs reserved – Parties to file written submissions.

    FAMILY LAW – CROSS-APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the Child Support Registrar sought leave to appeal from the decision of a Federal Magistrate dismissing the Registrar’s application for costs of the father’s unsuccessful application for leave to appeal – Leave to appeal refused – No order as to costs.

  • Kuan & Toh [2016] FamCAFC 115

    21 Apr 2016

    FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – where proceedings instituted initially in Malaysia and subsequently in Australia – where the father’s application sought the speedy return of the children to Malaysia – where the trial judge refused the father’s application – where his Honour’s orders are an “interlocutory decree” within the meaning of reg 15A of the Family Law Regulations 1984 (Cth) – where leave to appeal required – where no error established – leave to appeal refused – appellant to pay the respondent’s costs.

  • Malak & Malak [2016] FamCAFC 114

    29 Jun 2016

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

    FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – BIAS – PREJUDGMENT – Where the appellant alleged the primary judge’s decision to dismiss his application under r 16.05 of the Federal Magistrates Court Rules 2001 (Cth) to vary or set aside parenting and property enforcement orders made in his absence was attended by prejudgment, bias and a lack of procedural fairness – Where the Full Court so found – Where the Full Court re-determined the appellant’s application brought pursuant to r 16.05 – Where the appellant failed to demonstrate an arguable case for orders different to those made in his absence – Where the Full Court held the appellant had not otherwise satisfied the criteria under r 16.05 that would lead to a varying or setting aside of the orders made in his absence – Balance of appeal therefore dismissed – Respondent’s application for costs dismissed.

  • Bondelmonte & Bondelmonte (Costs) [2016] FamCAFC 113

    30 Jun 2016

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

    FAMILY LAW – COSTS – Where the appellant father was wholly unsuccessful on appeal – Where the proceedings were necessitated by the failure of the father to comply with previous orders – Where stance adopted by the father in the appeal can properly be seen as wilful disregard of clearly established law – Where it is appropriate that the father pay the mother’s costs of the appeal on an indemnity basis.

  • Malak & Mairie [2016] FamCAFC 112

    03 May 2016

    FAMILY LAW – APPEAL – REINSTATEMENT – Where the applicant seeks to reinstate an appeal deemed abandoned when appeal books were not received within the time ordered by the Appeal Registrar – Where there is an adequate explanation for the failure to file the appeal books within time – Where it is not possible on the limited material before the court to find that all of the grounds of appeal are completely devoid of merit – Where there is even the remotest chance of success an appeal should be reinstated – Where there is prejudice to the applicant if the appeal is not reinstated and to the respondent if the appeal is reinstated – Appeal reinstated.

  • O'Connor & Healy [2016] FamCAFC 111

    28 Jun 2016

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

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the trial judge delivered oral reasons for judgment – Where the trial judge subsequently amended the reasons pursuant to the slip rule prior to publication – Where the trial judge substantially altered the substance of the judgment in doing so – Where such a change was impermissible – Appealable error demonstrated. 

    FAMILY LAW – APPEAL – CHILDREN – INTERIM ORDERS – Where the trial judge erred in his approach to an interim hearing – Where the trial judge made findings of fact on untested assertions on an interim basis – Where the trial judge ignored allegations of family violence – Appealable error demonstrated. 

    FAMILY LAW – COSTS – Costs Certificates – Where the appeal was conceded by the father – Where the Full Court satisfied itself that an appealable error had been established – Where the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted.

  • Foster & Jurchenko [2016] FamCAFC 110

    24 Jun 2016

    FAMILY LAW – APPEAL – COSTS – Appeal deemed abandoned for failure to file appeal books – No submissions filed in response to the application for costs – Order for the appellant to pay the respondent’s costs in fixed sums.

  • Finch & Shibo (No. 3) [2016] FamCAFC 109

    24 Jun 2016

    FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – With whom a child spends time – The trial judge did not err in ordering that the mother have sole parental responsibility given the expert evidence about the father’s behaviour – The trial judge did not err in ordering that the father only spend time with the child during school holidays; that the father’s time with the child be cancelled if he fails to collect the child within 30 minutes of the designated time; or that the mother have liberty to apply if the father misses two consecutive visits – Appeal dismissed – No order as to costs.

  • Finch & Shibo (No. 2) [2016] FamCAFC 108

    07 Jun 2016

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – The appellant seeks that the court pay for a transcript of the trial – The court is not funded to obtain transcript for parties – Consideration of the factors in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 – Applications dismissed.

  • Gerasimov & Zlotnik (Costs) [2016] FamCAFC 107

    22 Jun 2016

    FAMILY LAW – COSTS – Where the respondent instituted an appeal against interim parenting orders and subsequently filed a Notice of Discontinuance – Where the applicant seeks that the respondent pay her costs of the discontinued appeal in a fixed amount – Whether there are circumstances that justify an order for costs being made – Where the amount of costs sought is reasonable – Respondent to pay the costs of the applicant in a fixed sum.

  • Ganem & Ganem and Anor [2016] FamCAFC 106

    21 Jun 2016

    FAMILY COURT – 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 – Where there was no appearance by or on behalf of the appellant or second respondents – Appeal dismissed – Appellant to pay costs of the first respondent in relation to the appeal.

  • Lamery & Beason [2016] FamCAFC 105

    14 Jun 2016

    FAMILY LAW – APPEAL – Hearing for dismissal for want of prosecution – Notice from the Registrar – Where the appellant failed to file a transcript and summary of argument as required by the procedural orders – Where the appellant failed to attend the procedural hearing or respond to letters from the Appeals Registry – Where the appellant was informed that the appeal was listed for dismissal pursuant to the Family Law Rules 2004 (Cth) and did not appear – Appeal dismissed and no order as to costs.

  • Rodgers & Rodgers (No. 2) [2016] FamCAFC 104

    10 Jun 2016

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – whether the trial judge erred in refusing to deduct a calculation of the total future taxation payable by the parties’ corporation – where the treatment of the liability should be governed by what is just and equitable as between the parties – where the failure of the trial judge to include the calculated taxation liability is not, of itself, an error – where it was within discretion for the trial judge to treat the liability as a matter to be considered by reference to s 79(4)(e) – where the s 79(4)(e) assessment was not “plainly unjust” or “plainly wrong” – where the trial judge failed to consider relevant considerations in the s 79(4)(e) assessment – where error in the exercise of trial judge’s discretion established – appeal allowed – matter to be re-determined by the Full Court.

    FAMILY LAW – APPEAL – PROPERTY – RE-EXERCISE OF DISCRETION – where the appeal was allowed – where the husband held to be entitled to 55 per cent of the net assets and the wife to 45 per cent – costs certificate granted.

  • Walter & Walter (Costs) [2016] FamCAFC 103

    10 Jun 2016

    FAMILY LAW – APPEAL – CHILDREN – COSTS – where the appeal was dismissed – where the appellant was “wholly unsuccessful” – where the circumstances of the case justify the departure from s 117(1) of the Family Law Act 1975 (Cth) that each party shall bear his or her own costs – appellant ordered to pay the respondent’s costs of and incidental to the appeal.

  • Needham & Trustees of the Bankrupt Estate of Needham [2016] FamCAFC 102

    17 Jun 2016

    FAMILY LAW – APPEAL – Application for expedition of the hearing of appeal – Where the husband has been declared bankrupt – Where the proceedings are between the wife and Trustees of the Bankrupt Estate of the husband – Where the respondents agree the appeal should be expedited – Where the proceedings have been ongoing for a period of ten years – Where it is appropriate to expedite the hearing.

  • Maddigan & Geary [2016] FamCAFC 101

    17 Jun 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition of hearing of appeal – Where the mother seeks to expedite an appeal against parenting orders that the child live with the father and that the mother is restrained from approaching the children for a period of time – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed – Where there is no order as to costs.

  • Salah & Salah [2016] FamCAFC 100

    17 Jun 2016

    FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders – Where the trial judge failed to give sufficient weight to issues of family violence and failed to have regard to and apply s 61DA(3) of the Family Law Act 1975 (Cth) – Where interim parenting orders providing for the respondent’s time with the children to be supervised had been made by consent shortly before the interim hearing – Where the trial judge made interim orders removing the need for supervision – Whether the trial judge erred in failing to give adequate reasons – Appeal allowed. 

    FAMILY LAW – APPEAL – COSTS – Costs certificates – Where the trial judge made material errors of law – Where it is appropriate to order a costs certificate to both parties – Costs certificates granted.

  • SCVG & KLD and Anor (No. 2) [2016] FamCAFC 99

    27 May 2016

    FAMILY LAW – APPEAL – DISQUALIFICATION – Where the applicant made an oral application that one of the members of the Full Court be recused from hearing the appeal – Where the applicant alleges apprehended bias because the judge had previously formed part of the Full Court bench which dismissed an earlier appeal – Where the test for apprehended bias is not made out – Application dismissed.

  • Holsworth & Holsworth [2016] FamCAFC 98

    09 Jun 2016

    FAMILY LAW – APPEAL – CHILDREN – INTERIM ORDERS – Where the appellant appeals two interim decisions of the trial judge – Where the appellant asserts the trial judge demonstrated apprehended bias – Whether the trial judge erred in refusing to recuse herself – Where the trial judge could not make findings on allegations of family violence until the evidence was properly tested at a trial – Where the appellant challenged procedural orders – Whether the trial judge erred in refusing to discharge the family consultant – Where the appellant did not want the family consultant to prepare a second report – Where a second report had already been prepared by a different consultant – Where the appellant challenged the matter being set down for trial – Appeals dismissed. 

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Applications to adduce further evidence – Where the appeals had no merit and there was no basis for admitting the evidence – Applications dismissed.

    FAMILY LAW – COSTS – Where the appellant is ordered to pay the Independent Children’s Lawyer’s costs.

  • Raffety & Spencer [2016] FamCAFC 97

    10 Jun 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the mother had been the primary carer of the child – Where the father spent specified time with the child – Where the trial judge’s central findings included a finding that the child was at an unacceptable risk of emotional abuse in the mother’s care and there was a need to protect the child from that risk – Where orders for the child to live with the father – Where the mother argued on appeal that the Reasons for Judgment of the trial judge were inadequate – Where the mother argued that the trial judge failed to consider options put to her by the mother at trial as alternatives to changing the child’s primary residence – Where it was determined on appeal that none of the options argued by the mother had any sufficient evidentiary basis to constitute them as material considerations the trial judge was bound to consider – Principles in relation to determining the adequacy of Reasons discussed – Where the test in Bennett & Bennett (1991) FLC 92-191 was applied – Where having regard to the central findings of the trial judge, none of which were challenged on appeal, and the principles to be applied, it was unnecessary for the trial judge to discuss these options in the Reasons – Where it was held the trial judge had provided sufficient Reasons – Where the appeal was dismissed.

    FAMILY LAW – COSTS – Where the appellant mother was wholly unsuccessful in the appeal – Where it was appropriate for the appellant to pay the respondent’s costs of the appeal on a default of agreement basis.

  • Oaks & Udall [2016] FamCAFC 96

    14 Jun 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time – Where the father filed a Notice of Appeal out of time – Where the father seeks to appeal final parenting orders which provide that the child live with the mother and spend no time with the father until he turns sixteen – Where there is sufficient merit in the appeal such that granting an extension of time would not be futile – Where the father would suffer an injustice if leave is not granted – Application allowed – Applicant ordered to pay the costs of the Independent Children’s Lawyer.

  • Paretino & Paretino [2016] FamCAFC 95

    14 Jun 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition of hearing of appeal – Where the father seeks to expedite an appeal against interim parenting orders requiring a family member to supervise his time with the children – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed – Where the applicant is to pay the respondent’s costs of the application.

  • Peters & Ortona [2016] FamCAFC 94

    10 Jun 2016

    FAMILY LAW – APPEAL – CHILDREN AND PROPERTY – Appeal dismissed – Order for the appellant to pay the respondent’s costs. 

    FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Applicable principles – Eight applications dismissed.

  • Edgar & Strofield [2016] FamCAFC 93

    07 Jun 2016

    FAMILY LAW – APPEAL – CHILDREN – INTERIM ORDERS – Whether the trial judge erred in placing undue emphasis upon the issue of relocation in determining interim parenting orders – Where the parties had been separated for six years – Where the mother was the primary carer of the children – Where the mother moved 88 kilometres away with the children – Where it was ordered on an interim basis that there be a progression to shared care or for the children to reside with the father if the mother did not return – Where the trial judge was concerned with unilateral decision to relocate – Where the mother moved for employment and family health – Where the children had a primary attachment to the mother and relationships with their step-brother and maternal grandmother – Where an application to stay the orders was made – Where the findings recorded in the Reasons for Judgment in the stay application demonstrated an error of the trial judge in determining the interim orders – Where the appeal was allowed. 

    FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether appropriate to grant leave for the mother to adduce further evidence on appeal – Where the evidence comprised of further affidavits and the Reasons for Judgment of the stay application – Whether the appellant satisfied the criteria to adduce further evidence as per CDJ v VAJ(1998) 197 CLR 172 – Where it was held the evidence did not satisfy the criteria – Where the application to adduce further evidence was dismissed. 

    FAMILY LAW – COSTS – Where appropriate to grant each party costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

  • Montrose & Montrose [2016] FamCAFC 92

    06 Jun 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal from interim parenting orders granting the mother permission to travel overseas with the child to China for the purpose of a holiday – Where there is no adequate explanation for the delay – Where there is no merit in the proposed appeal – Where the father was unable to demonstrate error on the part of the trial judge – Application dismissed – No order as to costs.

  • Davalos & Davalos [2016] FamCAFC 91

    25 May 2016

    FAMILY LAW – APPEAL –Where the appeal is finalised by consent – Where the parties agree the appeal should be allowed and the matter remitted for rehearing – Appeal allowed. 

    FAMILY LAW – APPEAL – COSTS – Where the wife has incurred significant costs in progressing the appeal – Where an order for costs can be made by a single judge pursuant to s 94(2B)(b) of the Family Law Act 1975 (Cth) – The husband to pay the wife’s costs.

  • Zahawi & Rayne [2016] FamCAFC 90

    03 Jun 2016

    FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – where the father seeks to relocate the children to Dubai – where the father was the “unchallenged custodian” of the children – where the trial judge found that a move to Dubai would deprive the children of developing a strong relationship with the mother – where the trial judge found that the mother was unable to visit the children in Dubai and that there was no guarantee that any Australian orders could be enforced in Dubai – whether the trial judge examined the relevant s 60CC considerations – whether the trial judge failed to consider a relevant consideration – whether the appellant was afforded procedural fairness – where no error established – appeal dismissed – each party bear their own costs.

  • Jabbar & Gade (No. 2) [2016] FamCAFC 89

    02 Jun 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where explanation for the failure to file a Notice of Appeal in timely way is inadequate – Where the proposed appeal is against interlocutory orders – Where consideration of the grounds of appeal establish that it would not occasion an injustice to refuse an extension of time – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks expedition of her appeal against interim parenting orders – Where the applicant’s appeal was filed out of time – Where the application for an extension of time to file the Notice of Appeal was dismissed rendering application for expedition otiose – Application dismissed.

  • Sresbodan & Sresbodan and Ors [2016] FamCAFC 88

    27 May 2016

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant is a discharged bankrupt but the estate is not finalised – Where the trustees and previous lawyers of the appellant are parties to the proceedings – Where the trial judge made orders for property settlement, with moneys to be variously distributed to the first respondent, trustees and the third and fourth respondents – Where the grounds of appeal do not identify appellable error – Where the appellant continues to challenge the bankruptcy in circumstances where it has been finalised in the Federal Court of Australia – Where the appellant asserts the trial judge did not allow him to subpoena various parties – Where the transcript reveals the appellant was afforded every opportunity to present his case – Where on appeal the appellant could not identify the evidence the subpoenas would have produced – Appeal dismissed. 

    FAMILY LAW – COSTS – INDEMNITY – Where first respondent sought costs – Where the second, third and fourth respondents sought costs on an indemnity basis as these proceedings fell within the range of matters described in Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536(1993) 46 FCR 225 – Where the appellant has been wholly unsuccessful and did not present an arguable case – Where the appellant has constrained financial circumstances and is on a pension, but where the appellant’s own conduct has contributed to this position – Where an order for costs of each of the respondents should be made, but not on an indemnity basis – An order for costs will be made in favour of each of the respondents, of and incidental to the appeal, to be assessed.

  • Theophane & Hunt and Anor [2016] FamCAFC 87

    24 May 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders providing for the parties’ child to live with the mother and spend no time with the father – Where the father was self-represented on appeal – Where the errors alleged on appeal were not easily discernible – Where the Full Court identified and considered a number of complaints – Where no complaint was found to have merit – Appeal dismissed – Father to pay the costs of the mother and the Independent Children’s Lawyer in a fixed sum.

  • Sullivan & Tyler and Anor [2016] FamCAFC 86

    26 May 2016

    FAMILY LAW – APPEAL – CHILDREN – Credibility – Expert Evidence – Procedural Fairness – Adequacy of Reasons – Where there is no merit in any of the appellant’s grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the evidence is controversial – Where the evidence would not demonstrate that the order under appeal is erroneous – Where the evidence would not have produced a different result if it had been available at trial – Where there is no basis for admitting the evidence – Application dismissed.

    FAMILY LAW – COSTS – Where the appeal has been wholly unsuccessful – Costs awarded.

  • Mena & Mena and Anor [2016] FamCAFC 85

    20 May 2016

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge found that the parties’ assets should be divided as to 55 per cent to the husband and 45 per cent to the wife – Where the wife complained on appeal that the trial judge’s decision to make a 5 per cent adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) in favour of the husband for “some kind of accounting between” the husband and his mother in relation to loans which the trial judge had found to be legally unenforceable was erroneous – Where the Full Court held that in circumstances where the trial judge had rejected any legally enforceable liability between the husband and his mother in relation to the alleged loans, it was not open to the trial judge to make an adjustment that reflected there would be a liability because it was inconsistent with earlier findings – Where the Full Court also said if the 5 per cent adjustment was made because of a moral rather than a legal obligation owed by the husband to his mother, any such moral obligation should not have resulted in a 5 per cent adjustment between the husband and the wife in circumstances where the trial judge had already adjusted between the parties on the basis of the funds advanced to the husband by his mother as an initial contribution – Where the Full Court re-exercised the discretion – Where the Full Court would have made the same orders made by the trial judge – Appeal dismissed – No order as to costs.

    FAMILY LAW – APPEAL – APPLICATION TO RE-OPEN – Where after the Full Court had reserved its decision the respondent filed an application to re-open the appeal and adduce further evidence – Where the respondent asserted the further evidence was relevant to the appeal and any re-exercise of the discretion – Where the Full Court held the evidence was not relevant to the determination of the appeal but was relevant to the re-exercise of the discretion – Application to re-open allowed – Application to adduce further evidence allowed for the purpose of the re-exercise of the discretion.

  • Grier & Malphas [2016] FamCAFC 84

    24 May 2016

    FAMILY LAW – APPEAL – PROPERTY ORDERS – Where the trial judge found that the parties’ assets should be divided as to 60 per cent to 40 per cent in favour of the husband – Where the wife argued on appeal that the trial judge did not give any, or sufficient, weight to the money received by the husband post-separation – Where the Full Court found the evidence disclosed a very significant disparity in the sums expended by the parties and that the trial judge erred in not giving adequate consideration to that disparity or examining the purposes for which the money was used – Where the Full Court found the trial judge could have taken account of those funds either by “adding back” the funds or pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth) – Where the wife also argued on appeal that the trial judge erred in finding the husband’s contributions were of greater value because of a “skill set” he brought into the marriage – Where the Full Court found error in the trial judge’s assessment of contributions – Where the Full Court emphasised it is not a party’s “skill set” that needs to be considered but their contributions in all senses in which that expression is used in s 79 – Appeal allowed – Remitted for rehearing – Costs certificates granted.

  • Faukland & Shikia [2016] FamCAFC 83

    25 May 2016

    FAMILY LAW – APPEAL – SENTENCING – CONTEMPT – Where the appellant appeals against the severity of his sentence – Where appellant sentenced to three months imprisonment for each contempt to be served consecutively and wholly suspended indefinitely – Whether the primary judge erred in ordering that the term of imprisonment be served consecutively – Whether the primary judge erred in suspending the term of imprisonment for an indefinite period – Where as a general rule a suspended sentence should only be suspended for a fixed term – Appeal allowed in part – Appellant re-sentenced – Consecutive terms to be wholly suspended for fixed term upon conditions.

  • Padley & Padley [2016] FamCAFC 82

    23 May 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim parenting orders suspending his time with the child – Where the mother and Independent Children’s Lawyer conceded that the appeal should be allowed – Where the primary judge erred in finding that there was a risk of harm to the child that would warrant the suspension of time – Where the trial judge failed to consider other options which might have enabled the child to regularly spend time with the father in a safe setting – Orders set aside – Proceedings remitted for re-hearing. 

    FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where an order for costs as between the parties would not be appropriate – Whether appropriate to grant cost certificates – Cost certificates granted to the parties and Independent Children’s Lawyer for the appeal and the re-hearing.

  • Edsall & Rabkin [2016] FamCAFC 81

    17 May 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – Application by the mother seeking an extension of time to file a Notice of Appeal for cross appeal – Where the Notice of Appeal filed by the father (“NA67 of 2015”) and Notice of Appeal for cross appeal (“NA9 of 2016”) raise similar issues and there is possible merit in both appeals – Where the delay is adequately explained – Where the grant of an extension of time would not result in injustice as between the parties – Where father does not oppose leave being granted in circumstances where he can file an Application to Adduce Further Evidence – Application allowed – No order as to costs.

  • Lawler & Oliver [2016] FamCAFC 80

    26 May 2016

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Expedition – Where the mother seeks to expedite an appeal against interim parenting orders and an appeal against a refusal to grant a stay of those orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeals does not justify priority to the detriment of other cases – Application dismissed.

  • Colak & Viduka [2016] FamCAFC 79

    16 May 2016

    FAMILY LAW – APPEAL – CHILDREN – Child abduction – Where the Department of Family and Community Services filed an application seeking the return of the children to Croatia – Whether a party has standing to appeal if not a party to the original proceedings – Where the children object to returning – Where those views are genuinely held –Where there is a risk of self-harm or suicide if the children are returned – Whether the children’s views were influenced by the mother – Whether the mother can rely on views that she may have influenced – Whether the primary judge erred in assessing the children’s age and maturity – Whether the emotional immaturity of the children was sufficiently taken into account –Where the children have attained an age and degree of maturity at which it is appropriate to take account of their views – Whether the primary judge should have imposed conditions on the children’s return – Appeal dismissed.