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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.

  • Russell & Withers [2018] FamCAFC 125

    06 Jul 2018

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the Appeal Registrar dismissed the mother’s application for an extension of time to file an electronic transcript within time as required – Where the dismissal of the application was due to non-attendance at the hearing of the application by the mother’s solicitor – Where the mother’s solicitor’s non-attendance was not the fault of the mother – Where the delay was minimal – Appeal reinstated.

  • Pruchnik & Pruchnik (No. 2) [2018] FamCAFC 128

    11 Jul 2018

    FAMILY LAW – APPEAL – PARENTING – Orders changing children’s primary residence from the mother to the father – Where neither party proposed equal shared parental responsibility in relation to all aspects of parental responsibility – Approach to s 61DA(4) discussed –  Circumstances which trigger s 65DAA – Adequacy of reasons – Whether adverse findings made without notice – Procedural fairness – Findings of fact – Adequacy of weight given to children’s views – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Evidence of events that have occurred since the making of final orders – Evidence adduced to demonstrate that had the further evidence been known to the primary judge there would have been a different result – Where the evidence would not have affected the outcome – Application in an appeal dismissed. 

    FAMILY LAW – APPEAL – COSTS – Costs sought by the respondent and Independent Children’s Lawyer – Where the appellant’s lack of success justifies an order for costs – Applications for costs granted – Fixed sum.


  • Jebbett & Corey [2018] FamCAFC 129

    11 Jul 2018

    FAMILY LAW – APPEAL – REFUSAL OF STAY OF INTERIM PARENTING ORDERS – where the mother appealed from the refusal of a stay of interim parenting orders providing for the child to spend limited, supervised time with the father – where further interim parenting orders had since been made – where such further orders would not be disturbed if the appeal succeeded – where the mother sought, via her appeal, to challenge prior interim parenting orders which were not the subject of an appeal – where there was no utility in the appeal – where the matter has sufficient complexity as to meet any test for complexity requisite to a transfer of proceedings from the Federal Circuit Court to the Family Court of Australia – where the parties consented to an undertaking to apply to the Federal Circuit Court for a transfer of the parenting proceedings to the Family Court of Australia – appeal dismissed – parties to each bear their own costs of and incidental to the appeal.

  • Huda & Huda & Laham (Costs) [2018] FamCAFC 127

    11 Jul 2018

    FAMILY LAW –APPEAL – COSTS – where the trial judge’s interventions during the course of a four day trial demonstrated procedural unfairness – where the appeal was allowed – where each of the appellants sought that the wife pay the costs of their appeals – where the circumstances did not justify an order for costs – where the nature of the error renders it appropriate for costs certificates to issue.

  • Edmunds & Edmunds [2018] FamCAFC 121

    06 Jul 2018

    FAMILY LAW – APPEAL – PROPERTY – Leave to institute proceedings out of time – Where the wife sought leave to institute property proceedings six years out of time – Whether the primary judge made a final determination instead of assessing whether the wife had a prima facie case – Whether the primary judge failed to assess the wife’s case at its highest – Whether the primary judge erred in finding that the wife had a weak prima facie case – Where the primary judge erred by not considering whether the wife had a real probability of obtaining an order for property settlement which fell short of the outcome sought by her but which was more favourable than her present legal entitlements to the property – Whether the primary judge made a material error in respect of a finding about the husband’s post-separation contributions to superannuation – Whether the primary judge took an irrelevant consideration into account, namely the costs of the proceedings, in assessing the wife’s prima facie case – Whether the primary judge erred in failing to find that the wife’s reliance on an agreement in relation to the parties’ property was a reasonable explanation for her delay in instituting property proceedings – Whether the primary judge erred in her findings as to the prejudice caused to the husband if leave is granted – Appeal allowed. 

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where leave is required to appeal an order made pursuant to s 44(3) of the Family Law Act 1975 (Cth) – Where the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered and where substantial injustice would result if leave were refused – Leave to appeal granted.


  • Chiou & Vien (No. 2) [2018] FamCAFC 123

    05 Jul 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Costs – Where the applicant seeks her costs of the respondent’s discontinued appeal – Financial positions of the parties – Where the appeal was wholly unsuccessful – Respondent ordered to pay the applicant’s costs of the appeal on a party and party basis – Offer of settlement – Where the respondent imprudently refused an offer of settlement in relation to the costs of the discontinued appeal – Respondent ordered to pay the costs of the applicant’s costs application on an indemnity basis.

  • Callas & Callas and Anor [2018] FamCAFC 124

    06 Jul 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Failure of applicant to file draft index to the appeal books within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Explanation for delay – Conduct of the proceedings – Merits of the appeal – Application dismissed.

  • Pascoe & O’Keefe and Anor [2018] FamCAFC 118

    29 Jun 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite her appeal against orders substantially changing the child’s living arrangements – Where the father opposes expedition – Where the orders provide that the child live with the father – Where the mother was the child’s primary carer – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority to the detriment of other cases – Application granted.

  • Parsons and Anor & Masson [2018] FamCAFC 115

    28 Jun 2018

    FAMILY LAW – APPEAL – CHILDREN – Relocation – Two children born as a result of artificial conception procedures – Where the first appellant is the biological and birth mother of both children, the second appellant is a parent of the youngest child by operation of s 60H of the Family Law Act 1975 (Cth) (“the federal Act”) and the respondent is the biological father of the eldest child – Where the primary judge found the respondent is a “legal parent” of the eldest child, allowed him extensive time with both children and restrained the appellants from relocating – Where the primary judge only applied the federal Act – In a case heard in federal jurisdiction it is mandatory for s 79 of the Judiciary Act 1903 (Cth) to be applied – Rizeq v Western Australia (2017) 91 ALJR 707 and Northern Territory of Australia v GPAO (1999) 196 CLR 553 considered – No constitutional reason why s 79 of the Judiciary Act 1903 (Cth) ought not apply to “pick up” the Status of Children Act 1996 (NSW) (“the State Act”) – Held s 60H of the federal Act does not “otherwise provide” within the meaning of s 79 of the Judiciary Act – Section 14 of the State Act must therefore be applied – The respondent is presumed not to be the father of the eldest child – Section 60H of the federal Act does not enlarge the category of persons entitled to the status of “parent” as there can only be two parents for the purposes of the federal Act – Held primary judge erred in finding the respondent is a “legal parent” of the eldest child – Appeal allowed – Matter remitted – Costs certificates issued.

    FAMILY LAW – APPEAL – CHILDREN – Interpretation of the federal Act in relation to the meaning of “parent” considered – Where the rebuttable Division 12 presumptions are trumped by s 60H of the federal Act – Bernieres & Dhopal (2017) FLC 93 793 considered – Biology alone does not determine who is a “parent” for the purposes of the federal Act – State of knowledge of the putative father about the nature of the mother’s relationship with another person irrelevant in the application of s 60H – The intention of a person to “parent” a child does not make them a “parent” within the meaning of the federal Act – Donnell & Dovey (2010) FLC 93-428 and Tobin v Tobin (1999) FLC 92-848 considered – First instances decisions considered – Re Mark: An Application Relating to Parental Responsibilities (2003) FLC 93 173 no longer to be regarded as good law – If state legislation lays down a presumption that members of a class of men are not to be regarded as fathers of a specific class of children, then a court is obliged to apply that presumption unless it is repugnant to the federal Act – Re Patrick: An Application Concerning Contact (2002) FLC 93-096 approved.

    FAMILY LAW – APPEAL – CHILDREN – Consequences of a person being found to be a “parent” considered – In every case it is necessary to determine as a preliminary question which of the parties answers the description “parent” – Matter upon which the court’s power is conditioned – If the wrong person is found to be a “parent” then at a fundamental level the case goes off on a wrong premise – Mulvany & Lane (2009) FLC 93-404 distinguished – Where the primary judge treated the respondent as if he were the parent of both children – Error established.


  • Mhambrey & Vairaja [2018] FamCAFC 120

    05 Jul 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the father sought to adduce further evidence on the appeal – where the evidence sought to be adduced was not further evidence upon any question of fact – where the application did not meet the criteria for admission of further evidence on appeal as prescribed by the High Court – application dismissed.

    FAMILY LAW – APPEAL – CHILD ABDUCTION CONVENTION REGULATIONS – where the trial judge found the child was not habitually resident in the USA immediately prior to his removal from that country – where the father contended that the trial judge was in error in finding that the child became habitually resident in Canada prior to being removed to Australia – where the father contended that the trial judge gave insufficient or excessive weight to certain evidence in determining the dispositive issue – where the trial judge determined that there was no settled mutual intention on the part of the parents that the child would return to reside in the USA upon returning from Canada – where the trial judge’s findings as to the child assuming habitual residence in Canada, and not resuming habitual residence in the USA upon his return, were open to his Honour on the evidence – where it would not be legitimate for this Court to disturb the trial judge’s conclusion as to the dispositive issue – appeal dismissed – father to pay the mother’s costs of the appeal in the fixed sum of $11,000.


  • Meadows & Meadows [2018] FamCAFC 119

    03 Jul 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR EXPEDITION – Where appeal is listed for hearing before the Full Court in six weeks from the date of the application for expedition – Where the appeal has already been listed for hearing at the first available sitting – Where the mother seeks to expedite an appeal against interim parenting orders that she undergo a psychiatric assessment by an expert appointed for that purpose and that a single expert be appointed to enquire into and report upon matters concerning the welfare of the parties’ child – 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.

  • Chard & Ye [2018] FamCAFC 117

    28 Jun 2018

    FAMILY LAW – APPEAL – PARENTING – Appeal against interlocutory orders and directions – Where there is doubt as to whether the orders and directions are decrees against which an appeal can be taken – Where, in any event, leave to appeal is required – Leave to appeal refused – Appellant to pay the costs of the respondent in a fixed sum.

  • Camden Pty Ltd & Laue and Ors (Costs) [2018] FamCAFC 116

    28 Jun 2018

    FAMILY LAW – APPEAL – COSTS – where the appeal was successful on questions of law – where the appellant sought costs of and incidental to the appeal on a party/party basis or, in the alternative, the grant of a costs certificate – where the appellant was wholly unsuccessful with respect to its challenges to the jurisdiction and power of the Family Court of Western Australia – where there were no circumstances justifying the making of an order as to costs with respect to the appeal proceedings – no order as to costs – costs certificates granted.

  • Zedenyi & Sabel [2018] FamCAFC 113

    21 Jun 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the application provides no explanation for the failure to file a Notice of Appeal on time – Where the proposed appeal concerns orders made in the absence of the applicant – Where the applicant may apply to set aside the orders pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 – Where refusing an extension of time would occasion no injustice in circumstances where the applicant may apply to set aside the orders – Application dismissed.

  • Sikander & Vashti [2018] FamCAFC 111

    20 Jun 2018

    FAMILY LAW – APPEAL – NULLITY – Where the appellant appeals an order refusing the grant of a nullity – Whether the primary judge erred in his application of the Marriage Act 1961 (Cth) – No error demonstrated – Where the appellant asserts that the primary judge erred in his findings as to the mental capacity of the respondent to consent to marriage at the time of the wedding – Where it is unnecessary to consider this challenge as the further evidence adduced by the appellant establishes that the respondent was not capable of consenting – Appeal allowed – Marriage between the appellant and respondent declared to be a nullity.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence –  Where the evidence was not available at the time of the trial - Evidence of the respondent’s mental capacity to consent to the marriage –Where the respondent’s treating psychiatrist deposes that the respondent suffered Wernicke-Korsakoff syndrome with paranoid schizophrenia – Where the respondent was therefore found to be incapable of giving relevant consent or ‘real’ consent at the time of the marriage – Where the respondent was found not to be able to understand the nature and effect of the marriage ceremony – Where the evidence therefore demonstrates that the order under appeal is erroneous – Application allowed.


  • Papendorf & Papendorf [2018] FamCAFC 114

    22 Jun 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – DISPENSE WITH TRANSCRIPTS – DISMISSAL – where the appellant mother failed to file the complete trial transcripts in accordance with orders made of an Appeals Registrar – where the mother sought to proceed with the appeal in the absence of the complete transcripts or, alternatively, for the Court to allow her further time to raise funds to obtain them – where the respondent father sought that the mother’s appeal be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) for non-compliance – where it would not be a legitimate exercise of discretion to adjourn the hearing of the appeal – where the application to proceed without complete transcripts was allowed on the basis that the mother be prevented from advancing any ground of appeal or argument where reference to the trial transcript would be necessary in order for the Court to determine or consider the ground or argument – application to dismiss the appeal pursuant to r 22.45 dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the mother sought to adduce further evidence on appeal – where the further evidence was not capable of demonstrating error and did not meet any established criteria for the admission of further evidence – application dismissed.

    FAMILY LAW – APPEAL – PARENTING – where the mother appealed from orders which fundamentally changed the child’s living arrangements – where many of the mother’s stated grounds of appeal were not proper grounds of appeal – where many of the mother’s challenges were as to weight – where challenges to weight given by a trial judge to evidence can only succeed if an appellate court is satisfied the trial judge was plainly wrong – where nothing to which the mother referred on the hearing of the appeal provided any substance to her grounds of appeal – appeal dismissed – no order as to costs of the appeal.


  • Lund & Lund [2018] FamCAFC 112

    25 Jun 2018

    FAMILY LAW – APPEAL – PARENTING – Where the trial judge appropriately applied the principle in Rice and Asplund (1979) FLC 90-725 – Where the trial judge took the evidence of the appellant at its highest – Where the trial judge took into account the relevant factors in s 60CC of the Family Law Act 1975 (Cth) and gave them adequate weight – Where the trial judge provided adequate reasons for her decision – Where there is no merit in the grounds of appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondents sought costs in the event that the appeal was unsuccessful – Where the appellant opposed such an order on the basis of her poor financial circumstances – Where impecuniosity is not a bar to an order for costs being made when there are other circumstances justifying such an order – Costs ordered as sought by the respondents.


  • Kai & Gant (No. 2) [2018] FamCAFC 107

    05 Jun 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal listed for directions – Where the orders appealed make the stay at first instance conditional on the recommendation of the single expert witness – Parties to attend a Late Intervention Alternative Dispute Resolution conference – Appeal to be dismissed in six months if not re-listed.

  • Trebiano & Trebiano [2018] FamCAFC 110

    15 Jun 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks expedition of his notice of appeal against final property orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

  • Whent & Marbrand [2018] FamCAFC 95

    25 May 2018

    FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge erred in determining pursuant to s 79(2) of the Family Law Act 1975 (Cth) that it was not just and equitable to make an order for property adjustment in favour of the husband – Where no appealable error established – Appeal dismissed.

    FAMILY LAW – COSTS – Husband to pay wife’s costs of and incidental to the appeal.
  • Werth & Pacapelli [2018] FamCAFC 106

    07 Jun 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the mother sought to adduce further evidence on the appeal – where the further evidence contained opinions expressed by psychologists as to the mental health of one of the three subject children – where the subject evidence was highly contentious and was produced without any input from the father – where the opinions stated by the psychologists provided no elaboration of the criteria used to form such opinions – where the expert family report writer provided her evaluation having had the benefit of being briefed by the ICL, reviewing all relevant documents and interviewing the father, the mother and each of the children – where the mother’s further evidence, if accepted, would not demonstrate that the order under appeal was erroneous or would have produced a different result if it had been available at the trial – application to adduce further evidence dismissed.

    FAMILY LAW – APPEAL – PARENTING – where the mother contended that the trial judge placed insufficient weight on evidence indicating that one of the subject children suffered separation anxiety from the mother – where the mother’s oral evidence at trial and the evidence of the subject child provided to the family report writer identified numerous factors contributing to his depressive state and anxiety – where the expert family report writer, whilst noting significant problems with respect to the child’s mental health, did not identify separation anxiety from the mother as an issue – where the child expressed a desire to live with the father – where challenge as to the weight given in a discretionary judgment can only succeed when the appellate court is satisfied that the trial judge was plainly wrong – where the trial judge concluded that there was no probative evidence to support the mother’s propositions – where the mother criticised the trial judge and the ICL for failing to undertake further enquiries into the issue of separation anxiety – where the ICL does not have a duty to investigate and present the case for one of the parties and the Court is not equipped to conduct inquisitorial proceedings – where the trial judge’s path of reasoning to his conclusion was readily discernible from the reasons for judgment – appeal dismissed – mother to pay father’s costs fixed in the sum of $11,169.


  • Greenhill & Carter [2018] FamCAFC 108

    24 Apr 2018

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Security for costs – To adduce further evidence – Where application dismissed.

  • Bartz & Manthey [2018] FamCAFC 109

    13 Jun 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite her appeal against interim parenting orders – Where the matter is not one  which might ordinarily attract an order for expedition – Unusual circumstances – Where final hearing dates should not be jeopardised – Where there is no obvious nexus between the appeal and the matters to be determined on a final basis – Where it was in the interests of the child and justice that the appeal be determined expeditiously – Application granted.

  • Elei & Dodt [2018] FamCAFC 92

    17 May 2018

    FAMILY LAW – APPEAL – DE FACTO SPOUSAL MAINTENANCE – Appeal against interim orders – Findings of fact – Whether the respondent is unable to support herself – Whether the respondent was obliged to prove unsuccessful applications for employment – Whether the appellant had capacity to pay spousal support – Where the appellant re-partnered and contributes to support of partner and partner’s children – Appeal allowed in part.

    APPEAL – DE FACTO PROPERTY – Partial property order – Where funds are available – Modest order – No error – Leave to appeal refused.

    APPEAL – LEAVE TO APPEAL – Leave to appeal granted in part.

    APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Error established without it being necessary to consider the further evidence – Application dismissed.

    APPEAL – COSTS – Where each party had a measure of success – Application for costs by the appellant dismissed – Application for costs by the respondent dismissed – Costs certificates issued for the appeal.

  • Nailon & Bowkett [2018] FamCAFC 103

    30 May 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother filed an application to adduce further evidence – where the father opposed that application – where the application was heard in conjunction with the substantive appeal – where the further evidence did not meet any of the criteria for admission of further evidence on appeal by reference to the principles espoused by the High Court – application dismissed.

    FAMILY LAW – APPEAL – PARENTING – where the mother contended the trial judge erred in failing to give sufficient weight to the child’s views and to the recommendations of the family report writer – where the trial judge made a finding that the child’s views were manipulated by the mother – where the trial judge was not bound by any opinion or recommendation of the expert – where the trial judge plainly took the child’s views into account in determining whether the child should relocate to South Australia – where the trial judge’s orders were consistent with the mother’s proposal expressed during her closing submissions at trial as to the time the child should spend with the father – where such orders were a legitimate exercise of the trial judge’s discretion – where the mother asserted she had suffered procedural unfairness, that the trial judge was unreasonable and biased and the decision made was plainly unreasonable – where nothing to which the mother directed attention on appeal established such assertions or demonstrated error on the part of the trial judge – appeal dismissed – no order as to costs.

  • Merla & Merla [2018] FamCAFC 101

    30 May 2018

    FAMILY LAW – APPEAL – CHILDREN – Schooling – Where the primary judge made interim orders changing the schools the children were to attend – Where the child the subject of the orders under appeal was resistant to changing schools – Weight given to child’s views – Where there was evidence that the order for the change of schools was having a detrimental impact on the child’s mental health – Whether the primary judge erred by failing to find that there were changed circumstances for the purposes of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) – Error demonstrated – Appeal allowed – Matter remitted to the Federal Circuit Court of Australia for rehearing – Costs certificates issued in accordance with the Federal Proceedings (Costs) Act 1981 (Cth).

    FAMILY LAW – APPEAL – EVIDENCE – Refusal to admit – Where the father tendered a bundle of medical reports about the child’s mental health status – Where the primary judge refused to admit the evidence on the basis that one of the reports was unsigned – Discussion of principles in ss 69ZN and 69ZT of the Family Law Act 1975 (Cth) – Where the documents were relevant to the Rice and Asplund issue and should have been admitted – Error demonstrated – Appeal allowed.

  • Jabbar & Gade [2018] FamCAFC 105

    05 Jun 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of her appeal against final parenting and property orders – Where the appeal raises serious parenting issues – Where the bases on which the applicant brings her application do not support an order for expedition – Application dismissed.

  • Crowley & Picton [2018] FamCAFC 100

    30 May 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Applications to adduce a transcription of a JIRT interview and a Department of Family and Community Services contact record as further evidence in the appeal – Application of principles in CDJ v VAJ (1998) 197 CLR 172 –  Where the evidence was available or obtainable at the time of the trial but was not called – Where the further evidence, if it had been called during the trial, would not have changed the outcome – Applications dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO AMEND – Oral application for leave to amend the grounds of appeal and to rely on an updated Summary of Argument – Application unopposed – Leave granted.

    FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Findings of fact – Weight given to the evidence – Whether the primary judge gave inadequate weight to the need to protect the child from physical and psychological harm – Whether the primary judge gave inadequate weight to evidence about the harm the mother posed to the child when in the mother’s care – Where many of the grounds of appeal were dependent on further evidence being received – Appeal dismissed.

  • Blinko & Blinko [2018] FamCAFC 104

    04 Jun 2018

    FAMILY LAW – APPEAL – CHILDREN – Family Violence – Where father has previously engaged in family violence – Determined that father does not now pose risk to the child but mother believes he does – Expert evidence that contact between child and father would have serious adverse effect on mother’s parenting ability – Expert evidence that child would ultimately grieve loss of relationship with father – Whether the primary judge failed consider a risk of psychological harm to the child when refusing father’s application to spend time and communicate with the child – Failure to make injunction to mitigate a known risk to the child – Whether the primary judge failed to balance of number of risks to the child – Best interests of the child – Whether the primary judge considered the entirety of the evidence – Appeal against failure to make injunction allowed and injunction made - Appeal otherwise dismissed.

    FAMILY LAW – APPEAL – COSTS – Where both parties partly successful – Where the appeal raised matter of substance – Mother’s application for costs dismissed.

  • Ardagh & Ardagh [2018] FamCAFC 102

    30 May 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – where the father sought to expedite the hearing of the appeal – where the orders under appeal enable the mother to take the parties’ child out of the Commonwealth of Australia as and from 30 June 2018 – where the father’s grounds of appeal asserted a risk that the mother may not return to Australia with the child – where r 12.10A of the Family Law Rules 2004 (Cth) can be applied in applications to expedite the hearing of an appeal – where the father acted reasonably and without delay in the conduct of his appeal – where if the appeal was not expedited at least one aspect of the father’s appeal may be rendered nugatory – where the mother raised no issue of prejudice to her if the appeal was expedited and did not oppose the father’s application – application for expedition of the appeal allowed.

  • Pannett & Crain [2018] FamCAFC 99

    24 May 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Where the applicant seeks an extension of time to file a Notice of Appeal – Where there was a delay between the primary judge delivering an ex tempore judgment and settling the reasons for judgment – Where the settled reasons were necessary to prepare the Notice of Appeal – Where there is therefore a reasonable explanation for the applicant’s delay in filing a Notice of Appeal – Application allowed. 

  • Oakley & Millar (No. 2) [2018] FamCAFC 98

    23 May 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Transcript – Where the appellant seeks orders that the Court provide the transcript of the hearing before the primary judge and the Appeal Registrar prepare the appeal books – Where there are exceptional circumstances here which justify the making of such an order – Court to provide transcript and prepare the appeal books. 

  • Broughton & Broughton [2018] FamCAFC 96

    25 May 2018

    FAMILY LAW – APPEAL – PARENTING – Where the husband asserts that the trial judge failed to apply the principle that children should be protected from exposure to family violence – Where the trial judge gave specific and prominent consideration to this issue – Where the trial judge made no error in considering the need to protect the children from exposure to family violence – Where the trial judge refused to allow the husband to present evidence of recordings that he had made of conversations taking place between him and the children, and him and the wife – Where the recordings are at least arguably relevant, and thus prima facie admissible – Where the tender of the recordings raises the application of s 138 of the Evidence Act 1995 (Cth) (“Evidence Act”), as it is quite possible that the recordings were improperly made (s 5 Listening Devices Act 1992 (ACT)) – Where it would have been grossly unfair to have allowed admission of the recordings at such a late stage in the proceedings, under such circumstances (ss 135 and 136 Evidence Act) – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the Court is not persuaded that the trial judge erred in finding that the husband had “acted recklessly, negligently or wantonly” in causing the diminution of the value of the former matrimonial home – Where the trial judge correctly took those findings into account when considering the relevant s 75(2) factors – Where the husband failed to establish that the trial judge’s findings of fact in relation to the damage to the property were not open on the evidence – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the Independent Children’s Lawyer sought an order for costs in the event that the appeal was unsuccessful – Where an order for costs would cause financial hardship for the husband – No order as to costs.

  • Harris & Dewell and Anor [2018] FamCAFC 94

    25 May 2018

    FAMILY LAW – APPEAL – CROSS-APPEAL – PROPERTY – Whether the unit trust was the husband’s “puppet” or “creature” – Where the husband did not ostensibly control or hold any interest in the unit trust – Whether the property of the unit trust should be treated as property of the husband by reason of the extent, manner and history of the husband making decisions directly affecting the unit trust and his dealings with its property – Where the primary judge accepted that the husband exercised control over the unit trust – Where the primary judge concluded that nevertheless the husband did not have a “lawful right to benefit from the assets of the trust” in the sense described by Finn J in Stephens and Stephens (2007) FLC 93-336 – Where there was no error in the primary judge’s conclusion – Where control is not sufficient of itself – Where what is required is control over a person or entity who, by reason of the powers contained in the trust deed can obtain, or effect the obtaining of, a beneficial interest in the property of the trust – Whether the primary judge failed to take into account the consequences of the husband’s significant non-disclosure in any meaningful way – Whether funds given to the husband by his father should have been characterised as compensation for work done rather than a gift simpliciter – Whether the primary judge erred in assessing the contributions of the husband and wife – Whether the s 75(2) adjustment was “manifestly excessive” – Whether the primary judge failed to allow the husband sufficient time to adduce evidence as to any potential CGT liability – No appealable error established – Appeal and cross-appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the evidence sought to be adduced was a codicil to the second cross-respondent’s last will and testament and a letter of demand requiring repayment of the second cross-respondent’s loan account with the unit trust – Where the evidence post-dated the trial – Where the evidence was inadmissible and consisted of conclusions and argument as opposed to facts – Where the evidence did not demonstrate any error by the primary judge – Application dismissed.

  • Kulat & Azzarudin [2018] FamCAFC 97

    24 May 2018

    FAMILY LAW – APPEAL – PARENTING – where the appellant contended the trial judge erred in the exercise of her discretion and provided inadequate reasons concerning application of the rule in Rice and Asplund (1979) FLC 90-725 – where no application was made by the appellant to have the rule in Rice and Asplund dealt with as a preliminary issue – where the rule was considered after a family report was undertaken and at the end of a trial – where previous final parenting orders made in 2012 provided for a change in the child’s primary care arrangements and for the child to relocate to Country C in 2018 to commence secondary school – where the child expressed views to the single expert report writer contrary to the terms of the 2012 orders – where the child’s intelligence and level of maturity was “impressive” – where the operative terms of the 2012 orders carried profound changes for the child – where ample evidence existed of circumstances requiring reconsideration of the 2012 orders – where the reasons for judgment demonstrated that the trial judge had regard to far more than simply the parties’ inability to agree on time in disposing of the Rice and Asplund issue – where the trial judge properly exercised her discretion in assigning weight to the child’s views as one of the considerations taken into account pursuant to s 60CC of the Family Law Act 1975 (Cth) – where there is no merit in the appellant’s challenges – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $18,515.10 

  • Ayre & Ayre [2018] FamCAFC 93

    23 May 2018

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant asserts that the trial judge “mixed up” the properties the subject of the property settlement application resulting in the parties each retaining a property they had not sought to keep – Where in the event that the trial judge determined that the parties were to retain specific properties not in accordance with their submissions he should have provided the parties with an opportunity to address him on that proposal – Where that was not done and it therefore adds weight to the argument that the trial judge simply mixed up the properties – Where the respondent argued that the liberty to apply given by the trial judge was the way this difficulty could have been addressed – Where the liberty to apply only permitted the parties to address the machinery provisions of the trial judge’s order and not to seek to have any of the substantive provisions of that order altered – Where the trial judge did not err in finding that the appellant retained cash monies at the time of separation – Where there is merit in three of the grounds of appeal – Appeal allowed – Discretion re-exercised – Distribution of the properties reversed and the amount to be paid to the respondent by the appellant recalculated.

    FAMILY LAW – COSTS – Where no order for costs was sought by the appellant in the event that the appeal was successful – Where both parties sought costs certificates – Where the appeal is allowed on a question of law and each party is to bear their own costs – Costs certificates granted to the parties.

  • Flinton & Flinton [2018] FamCAFC 90

    10 May 2018

    FAMILY LAW – APPEAL – Appellant deceased – Where the respondent seeks an order dismissing the appeal for want of prosecution – Where even after notification of listing of the appeal for dismissal no-one came forward to pursue the appeal – Appeal dismissed.