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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.

  • 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

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

    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

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

    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

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

    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

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

    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

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

    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

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

    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

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

    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.

  • Collins & Ricardo [2017] FamCAFC 42

    10 Mar 2017

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

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

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

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

  • Danks & McCabe [2017] FamCAFC 41

    02 Mar 2017

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant left the courtroom not long after the commencement of the appeal – Where the respondent and the affected person sought that the appeal be dismissed – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs on a party/party basis – Where the affected person sought costs on an indemnity basis – Where there are circumstances that justify orders for costs – Costs ordered in favour of the respondent on a party/party basis – Where the affected person established exceptional circumstances such that his costs should be calculated on an indemnity basis – Costs ordered in favour of the affected person on an indemnity basis.  

  • Lang & Partington [2017] FamCAFC 40

    16 Mar 2017

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

  • Cowper & Jenkins [2017] FamCAFC 39

    16 Mar 2017

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

  • Bakal & Kapicic [2017] FamCAFC 38

    23 Feb 2017

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

  • Cartwright & Manolas [2017] FamCAFC 37

    15 Mar 2017

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

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

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

    01 Mar 2017

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

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

    07 Mar 2017

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

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

  • Weston & Hill [2017] FamCAFC 34

    19 Jan 2017

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

  • Corcoran & Corcoran [2017] FamCAFC 33

    16 Feb 2017

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

  • Decaux & Sabri [2017] FamCAFC 32

    28 Feb 2017

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

  • Bebbington & Bebbington [2017] FamCAFC 31

    28 Feb 2017

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

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

  • Sellink & Sellink [2017] FamCAFC 30

    01 Mar 2017

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

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

  • Rankin & Rankin [2017] FamCAFC 29

    02 Mar 2017

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

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

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

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

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

  • Vontek & Vontek [2017] FamCAFC 28

    28 Feb 2017

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

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

  • Britt & Britt [2017] FamCAFC 27

    27 Feb 2017

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

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

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

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

    27 Feb 2017

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

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

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