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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.

  • Yin & Landon [2018] FamCAFC 232

    28 Nov 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Where the wife asserted that a decree of nullity made two years ago was void for actual fraud – Where the wife had filed an Initiating Application in the first instance court – Where the wife had withdrawn that Initiating Application – Where there was no application to adduce further evidence on the appeal – Where an application to adduce further evidence would obliterate the distinction between the original and appellate jurisdiction of the Court – CDJ v VAJ (1998) 197 CLR 172, discussed – Where the further evidence was more properly directed to contested proceedings at first instance – Where such proceedings are the subject of specific legislative grants of jurisdiction and power – Application dismissed.

  • Walters & Carson [2018] FamCAFC 233

    28 Nov 2018

    FAMILY LAW – APPEAL – PROPERTY – where the de facto husband asserted that the trial judge erred in findings of fact relating to the de facto husband’s current and future income – where there was evidence before the trial judge upon which it was open for his Honour to make the finding he made as to the de facto husband’s current income – where it is not essential to be able to vest precision in a term or form of expression used by the trial judge – where the essential task of the trial judge in making the determination of property adjustment orders was to make a fair comparison between the parties as regards the earning capacity of each party rather than reaching, in absolute terms, exact conclusions about what each would earn – where the trial judge made errors in calculation but those errors could not be characterised as material – where most of the de facto husband’s challenges to contribution findings amounted to matters of weight – where it was not incumbent upon the trial judge to identify and discretely reflect upon each and every relevant consideration within the process required in the holistic assessment of contributions – where there was no substance in any of the de facto husband’s grounds of appeal challenging the property settlement orders – appeal from property settlement orders dismissed.

    FAMILY LAW – APPEAL – CHILD SUPPORT – where the trial judge made reference to the s 90SM property settlement orders in general when considering the de facto wife’s child support departure application – where the reasons for judgment do not demonstrate that the trial judge had regard to the de facto wife’s capacity (or not) to derive income from capital under her control in considering her “income, property and financial resources” pursuant to ss 117(4)(d) and 117(7A) of the Child Support (Assessment) Act 1989 (Cth) – where the trial judge failed to consider the existing and future care arrangements for the children and the consequent expenses of the children being met by the de facto husband whilst in his care – where the trial judge did not explain or provide any basis for the conclusion reached in respect of the apportionment of liability to the de facto wife – appeal from child support orders allowed.

    FAMILY LAW – APPEAL – SPOUSE MAINTENANCE – where the trial judge indicated that he had regard to the intended property settlement and child support orders when determining the de facto wife’s maintenance application – where it cannot be discerned from the reasons for judgment that the trial judge had regard to the de facto husband’s financial capacity to meet a maintenance order taking into account his other expenses and the proposed property settlement and child support orders – where no explanation was provided as to how it could be that the de facto wife’s needs were unaffected by the proposed property settlement orders which would see her retaining capital worth approximately $5 million – where more than the bare expression of a conclusionary finding is necessary – appeal from maintenance order allowed.


  • James & Snipper and Anor [2018] FamCAFC 235

    03 Dec 2018

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Treatment of tax debt – Where the husband challenged the wife’s credibility – Where the trial judge gave adequate consideration of matters under s 79(4) – Where the trial judge gave adequate reasons to justify making an adjustment under s 75(2) – Where no error on part of the trial judge demonstrated – Where no merits to grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – CHILDREN – Where the father appealed against an order providing for the children to spend time with him for one discrete period of 24 hours each fortnight – Where the father contended the trial judge intended to make an order providing for him to immediately spend three nights each alternate weekend with the children – Where no merit to ground of appeal.


  • Dautry & Wemple [2018] FamCAFC 237

    03 Dec 2018

    FAMILY LAW – APPEAL – CHILDREN – Where the primary judge did not make an error applying the principles in Rice v Asplund (1979) FLC 90-725 – Application of section 69F – Where the Court determined the trial judge failed to consider the limitations of the discretionary rule in Fahmi & Fahmi (1995) FLC 92-637 and Watson & Watson (2013) FLC 93-530 and wrongly applied the rule to parenting proceedings – Where the primary judge gave inadequate reasons for exercising the discretion under section 69F to stay the Application-Contravention – Where error of law determined – Appeal allowed in part – Where the Application-Contravention remitted for rehearing – Where no orders as to costs.

  • Calafiore & Netia [2018] FamCAFC 220

    15 Nov 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Where the primary judge made a declaration pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) that the father be assessed for child support – Where the Child Support Agency backdated the assessment to when the application for assessment was initially made by the mother – Where the father was assessed by the Child Support Agency as having to pay back a significant child support liability – Whether the primary judge erred in failing to make an order granting the mother an extension of time to file an application pursuant to s 106A – Whether the primary judge failed to consider the respective prejudice to each of the parties of extending time to file an application pursuant to s 106A – Where there was a substantial issue to be raised on appeal – Where there was an adequate explanation for delay – Application allowed.

  • Bryant & Stapleton [2018] FamCAFC 236

    30 Nov 2018

    FAMILY LAW – APPEAL – PARENTING – PROCEDURAL FAIRNESS – Where the primary judge relied upon a s 69ZW report from the Department of Health and Human Services – Where the appellant was not unfairly denied the opportunity to cross-examine the author of the report or to adduce rebuttal evidence – Where the primary judge relied on the report as background information only and did not replicate any of the report’s conclusions in the reasons for judgment – Discussion of s 69ZW of the Family Law Act 1975 (Cth) – Where the primary judge incorrectly concluded that the report was already admitted into evidence by operation of s 69ZW(5) of the Act – Error of law – Where in the particular circumstances of this case the error of law was not material and does not invite appellate intervention – Whether the primary judge unfairly restricted the appellant’s cross-examination or re-examination – Where there was no error in the primary judge’s trial management – Where the primary judge appropriately assisted the appellant in line with the Re F: Litigants in Person Guidelines (2001) FLC 93-072.

    FAMILY LAW – APPEAL – PARENTING – EVIDENCE – Whether the primary judge wrongfully excluded evidence admitted pursuant to a Notice to Admit Facts filed by the appellant – Where the primary judge was correct to exclude the Notice – Whether the primary judge made an error in making a positive finding of child abuse – Where the primary judge made no such finding – Whether the primary judge’s findings were based on material ruled inadmissible – Where the material in question had been admitted – Where all of the primary judge’s findings were open on the evidence – Where none of the grounds of appeal were made out – Appeal dismissed – No order as to costs.


  • Wolleman & Wolleman [2018] FamCAFC 227

    20 Nov 2018

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

  • Sweep & Sweep (No. 2) [2018] FamCAFC 228

    22 Nov 2018

    FAMILY LAW – APPEAL – PROPERTY – Two appeals – No appearance by the respondent – Where the husband drew significant amounts on the mortgage post-separation – Where funds transferred to husband’s partner – Found that husband may retrieve those funds –  Where the primary judge found that the husband failed in his duty of disclosure – Adjustment made in favour of the wife in light of the husband’s non-disclosure and the wife’s caring responsibilities – Apprehended bias – Where more than a year lapsed between the complained of conduct and an application for recusal – Waiver - Procedural fairness – Limitations on re-opening of trial - Whether certain factual findings of the primary judge were open on the evidence – Whether the primary judge failed to take into account relevant considerations – Adequacy of reasons – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where further evidence adduced in support of apprehended bias ground to show conduct of the primary judge following delivery of orders – Where the remainder of the evidence is not relevant to the questions on appeal – Application in an appeal allowed in part.


  • Simpson & McClease and Anor [2018] FamCAFC 226

    22 Nov 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the second respondent seeks an order to file a Notice of Contention out of time – Where the applicant obtained the written consent of the Minister for the NSW Department of Family and Community Services to commence further Federal Circuit Court or Family Court of Australia proceedings relating to issues pursuant to s 69ZK(1)(b) of the Family Law Act 1975 – Where such consent pursuant to s 69ZK(1)(b) may not be valid – Where the primary judge did not have jurisdiction – Application allowed.

  • Sielaff & Staatz [2018] FamCAFC 213

    02 Nov 2018

    FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal be allowed, that the orders appealed be set aside, that the matter be remitted for rehearing and costs certificates issue pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where appealable errors are amply demonstrated and the appeal should succeed – Where there are a lack of adequate reasons provided by the trial judge – Where the appeal is properly characterised as a Federal appeal, it will succeed on a question of law and it has been listed in a public and formal way – Where the parties have been put to unnecessary expense in pursuing the appeal and the matter must be re-litigated – Appeal allowed – Orders set aside – Proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge – Each party bear their own costs – Costs certificates issued as sought by the parties.

  • Nadales & Nadales (No. 2) [2018] FamCAFC 229

    20 Nov 2018

    FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Where the reasons for judgment are inadequate – Where there is no analysis of the evidence, the law that applies or who bore the onus of proof and what needed to be established – Where the Appeal Court is unable from the brief reasons to ascertain the reasoning upon which the decision is based – Where by consent leave to appeal is granted and the appeal is allowed – Orders appealed set aside – Application for spousal maintenance remitted to the Federal Court of Australia for rehearing by a judge other than the primary judge.

  • Merriett & Merriett [2018] FamCAFC 225

    22 Nov 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time in which to file a Notice of Appeal – Explanation for the delay – Merits of the proposed appeal – Application dismissed.

  • Markes & Markes [2018] FamCAFC 222

    16 Nov 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – INADEQUACY OF REASONS – where the trial judge made a declaration that the mother had contravened parenting orders without reasonable excuse – where the trial judge provided no reasons for judgment and the transcript of proceedings was said to constitute the reasons for judgment – where the judicial act being performed was serious in nature and carried potentially very serious consequences for the mother including a term of imprisonment – where the failure to deal with, by adequate reasons, a central controversy raised for resolution itself demonstrates inadequacy of reasons and an error of law – where there is a substantial issue to be raised on appeal – where explanation for delay is a discretionary consideration but it is not determinative – application allowed – no order as to costs.

  • Gourlay & Wellar [2018] FamCAFC 223

    19 Nov 2018

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the applicant seeks an extension of time to file an appeal against orders made – Where the applicant has not appeared to prosecute the application – Application struck out

  • Blanchard & Bean [2018] FamCAFC 219

    16 Nov 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – where the mother failed to file a draft index to the appeal books within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – where the mother’s appeal was deemed abandoned by operation of r 22.13(3) – where the mother’s proposed appeal constitutes only challenges as to weight – where the mother’s appeal was so devoid of merit that it would be futile to reinstate it – where the mother sufficiently explained her delay in filing her application – where the father, and indeed the child, would incur prejudice by the reinstatement of an appeal devoid of merit – application dismissed – no order as to costs.

  • Bhatt & Acharya [2018] FamCAFC 230

    22 Nov 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS OF APPEALS – Where the appeal has limited prospects of success – Where there are outstanding costs orders against the respondent – Where an order for security for costs would likely stifle the appeal – Where the applicant husband ordinarily resides out of Australia – Where there are circumstances justifying an order for security of costs – Where the wife opposes the application – Discretionary factors – Rule 19.05(2) of the Family Law Rules 2004 (Cth) – Where it was determined that in the circumstances of this case there are justifying circumstances within the meaning of s 117(2) of the Family Law Act 1975 (Cth) for an order for security for costs – Application allowed.

  • Noack & Noack [2018] FamCAFC 221

    19 Nov 2018

    FAMILY LAW – APPLICATIONS IN AN APPEAL – EXTENSIONS OF TIME – Where the applicant seeks extensions of time to file Notices of Appeal – Where the applications are opposed – Where there is no satisfactory explanation provided by the applicant for failing to file Notices of Appeal within time – Where none of the proposed appeals have merit – Where there is prejudice to both parties depending on the result – Where the interests of justice require that the Applications in an Appeal be dismissed – Applications dismissed.

  • Luck & Norwood [2018] FamCAFC 207

    02 Nov 2018

    FAMILY LAW – APPEAL – PROPERTY – INJUNCTIONS – Appeal from orders made pursuant to s 114 of the Family Law Act 1975 (Cth) – Whether the primary judge erred by failing to identify the subsection on which she relied to make the injunctions – Prima facie case – Serious question to be tried – Whether the primary judge conflated the principles necessary to the determination of s 114(1) with the making or a maintenance order – Whether the primary judge erred in finding that the wife would be prejudiced if the injunctions were not granted – No error demonstrated.

    FAMILY LAW – APPEAL – PROPERTY – INJUNCTIONS – Personal services – Where the primary judge made an order restraining the appellant from engaging in personal services – Where her Honour did not have the power to make such an order – Where this order exceeded the reach of the wife’s application and the husband was not given the opportunity to make submissions on it – Error demonstrated – Appeal allowed in part – Order as to personal services set aside – No order as to costs.


  • Janos & Alton [2018] FamCAFC 209

    31 Oct 2018

    FAMILY LAW – APPEAL –Where the respondent concedes error by the primary judge – Where there was appealable error – Appeal allowed – Consent orders made.

    FAMILY LAW – APPEAL – COSTS - COSTS CERTIFICATES – Whether costs certificates should be ordered – Where the appeal succeeded upon questions of law – Costs certificates ordered for both parties and the Independent Children’s Lawyer for the appeal and rehearing.


  • Gadzen & Simkin [2018] FamCAFC 218

    16 Nov 2018

    FAMILY LAW – APPEAL – HARDSHIP – where the trial judge made orders allowing the de facto wife to bring property settlement and maintenance proceedings against the de facto husband seven years out of time pursuant to s 44(6) of the Family Law Act 1975 (Cth) – where the trial judge found that the de facto wife would suffer hardship within the meaning of s 44(6)(a) if leave were not granted – where the trial judge correctly identified the authorities relevant to the question of hardship but failed to undertake any analysis of the de facto wife’s potential claim and the likely costs of pursuing that claim – where the trial judge applied the wrong legal test to determining the question of hardship – where leave to appeal is granted and the appeal is allowed.

    FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – where counsel for the de facto wife provided an estimate of prospective legal costs likely to be incurred by the de facto wife in pursuing her claim – where no further evidence was sought to be adduced by the de facto wife – where it was therefore appropriate for the Full Court to re-exercise the discretion rather than remit the proceedings for rehearing – where the Court is not satisfied that the de facto wife established hardship within the meaning of s 44(6) – de facto wife’s Initiating Application was dismissed.


  • Emerald & Emerald [2018] FamCAFC 217

    13 Nov 2018

    FAMILY LAW – CROSS-APPEAL – LEAVE TO CROSS-APPEAL – SPOUSAL MAINTENANCE – where the husband sought leave to cross-appeal against orders of the primary judge granting the wife leave pursuant to s 44(4)(b) of the Family Law Act 1975 (Cth) to institute spousal maintenance proceedings about 30 years out of time – where the primary judge erred in finding that s 44(4)(b) applied in circumstances were the decree nisi became absolute prior to the enactment of s 44(4)(b) by s 19 of the Family Law Amendment Act 1987 (Cth) – leave to cross-appeal granted – cross-appeal allowed – the orders of the trial judge set aside – matter remitted for rehearing.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – where the wife sought leave to appeal against orders of the primary judge dismissing her application for leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute property settlement proceedings against the husband about 30 years out of time – where the application for leave relies on the success of the grounds of appeal – where the primary judge did not err in finding that the husband would be prejudiced if leave were granted – where the primary judge did not misdirect himself in considering the issue of hardship – where the primary judge did not err in dismissing the application for leave with respect to property settlement in circumstances where his Honour granted leave with respect to spousal maintenance – where the primary judge did not err in the exercise of his discretion – where the primary judge erred in finding that the wife had the opportunity to litigate her claim in the Victorian Civil and Administrative Tribunal – consideration of the meaning of “matrimonial cause” pursuant to s 4 of the Family Law Act 1975 (Cth) – a claim does not lose its character as a matrimonial cause as a result of a refusal to grant leave to institute proceedings out of time – where the error did not sufficiently inform the primary judge’s conclusions as to hardship so as to render the conclusion erroneous – leave refused.

    FAMILY LAW – APPEAL – COSTS – where the cross-appeal was allowed and leave to appeal was dismissed – where neither party seeks an order for costs in relation to the cross-appeal – costs certificates issued – where the husband sought costs for responding to the application for leave to appeal and the appeal – where the order for costs was opposed by the wife on the basis of poor financial circumstances – where there are circumstances that justify an order for costs being made – costs ordered in favour of the husband to be assessed in default of agreement.


  • Topel & Topel [2018] FamCAFC 214

    07 Nov 2018

    FAMILY LAW – APPEAL – PARENTING – Spend time orders – Adequacy of reasons – Appeal allowed – Cost certificates issued.

  • Rycroft & Hamlett [2018] FamCAFC 212

    12 Nov 2018

    FAMILY LAW – APPEAL – PARENTING – Relocation – Where the father appeals orders made allowing the mother to relocate with the child – Findings of the primary judge unsupported by the evidence – Where adverse findings against the father were not put in evidence or raised by the primary judge – Procedural fairness – Appeal supported by the Independent Children’s Lawyer – Appeal conceded – Orders made by consent setting aside certain orders and remitting the matter for rehearing.

    FAMILY LAW – APPEAL – COSTS – Appeal successful on a question of law – Costs certificates ordered in favour of all parties for the appeal and rehearing.


  • Mulcaster & Mulcaster [2018] FamCAFC 216

    07 Nov 2018

    FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Appeal against interim parenting orders allowing the mother and children to move – Where the mother and children have already moved in accordance with the orders – Where there has been no change in the time the children spend with the father as a consequence of the relocation – Whether the matter should be afforded priority to the detriment of other cases – Where dates have been set for the final hearing – Where, if the appeal was expedited and successful, the final hearing dates would almost certainly be lost – Allegations of family violence which should be tested as soon as possible – Grounds of appeal not sufficiently compelling to sway granting expedition – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the applicant has been wholly unsuccessful – Applicant on notice of possibility of adverse costs order – Costs order made in favour of the respondent.


  • Kerson & Blake [2018] FamCAFC 215

    12 Nov 2018

    FAMILY LAW – APPEAL – PARENTING – INTERNATIONAL RELOCATION – Where the mother sought to return to the United States of America with the children – Application for relocation opposed by the father  – Where the primary judge gave determinative weight to a finding made which failed to consider all of the evidence – Orders not supported by the evidence – Appeal allowed – Matter remitted for rehearing.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE –– Where consideration of further evidence not necessary as matter remitted for rehearing – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appeal succeeds on an error of law – No reason as to why the provisions of s 117(1) of the Family Law Act 1975 (Cth) that each party bear his or her costs should not apply – No orders as to costs.
  • Horrigan & Jennings [2018] FamCAFC 206

    02 Nov 2018

    FAMILY LAW – APPEAL – PROPERTY – Where the parties were in a long standing de facto relationship – Where the parties had entered into consent orders in 2011 – Where the consent orders had been fully implemented – Whether dismissal of an application for property settlement constitutes an order under s 90SM of the Family Law Act 1975 (Cth) – Whether the primary judge erred by not considering the s 90SM(4) factors in dismissing an application for property settlement – Adequacy of reasons – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Application for costs granted. 


  • Gilligan & Addison and Ors [2018] FamCAFC 211

    01 Nov 2018

    FAMILY LAW – APPEAL – CHILDREN – Where the appellant is not biologically related to the subject children – Where the trial judge found the appellant poses an unacceptable risk of harm to the children – Where the appellant appealed against orders eliminating him from the children’s lives – Where the trial judge canvassed the relevant evidence thoroughly and gave cogent reasons for the conclusions reached – Where the overarching risk of sexual abuse posed by the appellant was an overwhelming feature of the evidence – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the fourth respondents and the Independent Children’s Lawyer sought costs against the appellant – Where the appellant would suffer financial hardship if ordered to pay costs – Where the fourth respondents and the Independent Children’s Lawyer did not comply with procedural orders – Costs applications dismissed.


  • Bradford & Donnellan [2018] FamCAFC 191

    24 Sep 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Whether there are exceptional circumstances that justify the Court providing the transcript – Applicant’s financial circumstances – Application dismissed.

  • Jabbar & Gade (No. 4) [2018] FamCAFC 210

    05 Nov 2018

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Two appeals – Appeal against interlocutory orders that the wife vacate a property of the parties after non-compliance with collateral orders that she pay outgoings – Appeal against the dismissal of stay application of the order to vacate – Where the applicant has a history of non-compliance with orders to pay the property’s outgoings – No challenge to the primary judge’s findings of fact – Where the grounds fail to raise sufficient doubt to warrant reconsideration of the matter – Leave to appeal on the basis of the grounds of appeal refused. 

    FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where, if the further evidence had been before the primary judge, there would have been a different result – Application to adduce further evidence allowed in part – Leave to appeal in both appeals on the basis of the further evidence allowed in part – Appeals allowed in part – Re-exercise – Orders set aside and further orders made in relation to appellants occupation of the property.

    FAMILY LAW – COSTS – Applicant to pay portion of Respondents costs.


  • Eames & Eames [2018] FamCAFC 204

    01 Nov 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Summary dismissal – Whether the primary judge erred in finding that the appellant’s application under s 66M of the Family Law Act 1975 (Cth) had no reasonable prospects of success – Where the appellant argued that there is a divergence of judicial opinion about the application of s 66M – Judicial comity and precedent – Where the primary judge correctly found that she should follow the Family Court decisions on the point – No error demonstrated.

    FAMILY LAW – APPEAL – CHILD MAINTENANCE – Step-children – Operation of s 66M of the Family Law Act 1975 (Cth) – Whether a standalone declaration or order can be made under s 66M – Where an order can only be made under s 66M when there is a concomitant application seeking specific orders for the maintenance of step-children.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Summary dismissal – Whether the primary judge erred in finding that the appellant’s application under s 123 of the Child Support (Assessment) Act 1989 (Cth) had no reasonable prospects of success – Where the appellant failed to particularise his application for a substitution order pursuant to s 123 – Whether the primary judge failed to give adequate reasons for summarily dismissing the application – Whether the primary judge failed to take into account a relevant consideration – No error demonstrated.

    FAMILY LAW – APPEAL – CHILD SUPPORT – Leave to appeal – Test to be applied for leave applications pursuant to s 102 of the Child Support (Assessment) Act 1989 (Cth) – Application of the test in Medlow & Medlow (2016) FLC 93-692 at [57] – Where no error demonstrated – Leave refused.

    FAMILY LAW – APPEAL – COSTS – Where the application for leave to appeal and the appeal were wholly unsuccessful – Where the respondent seeks an order for costs on an indemnity basis – Where the appeal had no reasonable prospects of success – Where the claim made pursuant to s 66M of the Family Law Act 1975 (Cth) was made for a collateral purpose – Where the costs of the appeal were out of proportion to the issues involved – Costs ordered on an indemnity basis.


  • Dawe & Short [2018] FamCAFC 205

    30 Oct 2018

    FAMILY LAW – APPEAL – PARENTING – Registration of parenting orders made in the United Kingdom – Application to vary the registered orders – Orders registered pursuant to reg 12 of the Child Protection Convention Regulations – Where the primary judge dismissed the mother’s application pursuant to ss 70G and 70J of the Family Law Act 1975 (Cth) – United Kingdom is not a prescribed overseas jurisdiction as required to invoke ss 70G and 70J – Appeal allowed by consent – Matter remitted for rehearing.

    FAMILY LAW – APPEAL – COSTS – Where the appeal is allowed by consent and succeeds on a question of law – Costs certificates ordered for both parties for the appeal and rehearing.


  • Akhtar & Gaber (No. 3) [2018] FamCAFC 208

    02 Nov 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time - Where the applicant attempted to file his Notice of Appeal on a number of occasions – Where these attempts were within the time frame – Where for various reasons the attempts to file the Notice of Appeal were unsuccessful and therefore not filed in time – Where correspondence between the applicant and the appeals registry was considered – Where the applicants explanations for the delay in filing the Notice of Appeal are accepted – Where the merits of the appeal are considered in line with the documents available the Court – Where the applicants challenges as to procedural fairness and the primary judges failure to accept evidence are not in dispute – Where there is no substantial issue to be raised on appeal - Where the granting  of an extension of time to appeal would be futile – Where injustice would be caused to the respondent mother and children – Application dismissed.

  • Pendleton & Pendleton [2018] FamCAFC 203

    30 Oct 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the mother sought an extension of time to file a Notice of Appeal against final parenting orders – where all but two of the mother’s proposed grounds of appeal were abandoned – where the remaining two grounds of appeal as stated in the mother’s draft Notice of Appeal enjoy negligible prospects of success – where the mother provided sufficient medical evidence to explain the delay in filing a Notice of Appeal within the requisite time period however provided no adequate reasons for a significant delay of a further five months – where having regard to the principle concerning the desirability of finality of litigation and the history of the parenting proceedings, it would be unfair and unjust to the father and to the children to subject them to a meritless appeal – Application in an Appeal dismissed – mother to pay the costs of the father and the ICL of and incidental to the application as assessed, payable upon the finalisation of current s 79A proceedings in the Federal Circuit Court.


  • Robeck & Robeck [2018] FamCAFC 201

    28 Oct 2018

    FAMILY LAW – APPEAL – PROCEDURAL – Where there is some confusion as to whether or not the appeal was discontinued – Where the appeal is against orders made for the filing of documents in relation to the issue of transferring the proceedings to the Family Court of Australia at Melbourne – Where the facts in support of leave to appeal and the grounds relied upon should leave be granted are incomprehensible – Where the orders appealed are not decrees within the definition of a decree in s 4(1) of the Family Law Act 1975 (Cth) and cannot be appealed – Where the appeal is incompetent – Appeal dismissed.

    FAMILY LAW – APPEAL – TRANSFER OF PROCEEDINGS – Where leave to appeal has not been sought but is necessary – Where the grounds of appeal and the summary of argument are incomprehensible – Where there is no doubt that the Family Court of Australia has jurisdiction to hear and determine an application for a declaration of nullity – Where the appeal is incompetent and has no reasonable prospect of success – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs on the basis that the two appeals are to be dismissed – Where the appellant opposes any costs order – Where there are circumstances justifying an order for costs – Where the conduct of the appellant deserves condemnation – Where the costs proposed by the respondent are reasonably modest – Where the appellant in opposing the application for costs did not contend that his financial circumstances precluded or inhibited his ability to meet a costs order – Costs ordered in the sum as sought by the respondent.


  • Moritzen & Moritzen [2018] FamCAFC 198

    18 Oct 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Where an oral application was made, out of time, at the commencement of the hearing for leave to further amend the Amended Grounds of Appeal – Where the appellant has not adequately explained delay – Where the appellant has not established that the proposed new ground has some merit – Where the property settlement order has been stayed pending finalisation of the appeal - Where although the prejudice to the respondent might be partially compensated by an order for costs, the respondent will be prejudiced by losing the opportunity to finalise the litigation – Where leave is not granted to the appellant to further amend the Amended Notice of Appeal.

    FAMILY LAW – APPEAL – Property orders – Whether the primary judge erred in providing for a s 75(2) adjustment in the husband’s favour only in the amount of five per cent and whether the primary judge failed to give adequate or any adequate reasons for making that adjustment – Where the challenge to the primary judge’s adjustment is unsuccessful and where the primary judge gave reasons that were more than adequate – Whether the primary judge erred in finding that the wife helped pay off the mortgage on the former matrimonial home that was in existence at the date of cohabitation or gave too much weight to such a finding – Where the primary judge did not err in making that finding and did not err in the weight given to that finding – Whether the primary judge’s discretionary decision miscarried in that it resulted in a property settlement order that was plainly wrong or manifestly unjust – Where the primary judge’s discretion did not miscarry – Where the appeal is dismissed

    FAMILY LAW – COSTS – Where it was conceded, in the event the appeal is dismissed, that an order for costs should be made in the respondent’s favour – Where the quantum of costs are to be on a party/party basis as agreed or assessed 


  • McMillan & McMillan [2018] FamCAFC 200

    25 Oct 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the appellant sought that the appeals be adjourned – Where the appellant relied on medical certificates to demonstrate that he was unable to present his appeals – Where the medical certificates presented did not establish that there was any medical reason why the hearing of the appeals should be adjourned – Application dismissed.

    FAMILY LAW – APPEAL – REFUSE TO STAY – Where the appeal was deemed abandoned on 7 September 2017 – Where there is no appeal on foot that would justify a stay being granted as sought in the appellant’s application before the trial judge – Where even if leave to appeal was granted the application seeking a stay could not be pursued and thus the appeal is futile – Where pursuing the appeal in these circumstances borders on an abuse of process – Where there is no proper basis for leave to appeal to be granted – Where the grounds of appeal relied on are incompetent and no appealable error is demonstrated – Application for leave to appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appeal does not raise any question of general principle – Where none of the grounds of appeal have merit – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks an order for costs – Where the appellant opposes any such order – Where there are circumstances here which justify an order for costs being made – Where the appellant has been wholly unsuccessful in the appeals – Costs ordered in the sum as sought by the respondent.


  • Genner & Rooks [2018] FamCAFC 202

    24 Oct 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time in which to file a Notice of Appeal – Where the Notice of Appeal was filed on time but rejected as defective – Where a further Notice of Appeal was filed within the specified time – Where payment details for the filing fee were defective causing the Notice of Appeal to be filed out of time – Where the wife provides an adequate explanation for her delay in filing the Notice of Appeal – Where the merits of the appeal were considered – Where it is found that to not allow an extension of time would cause an injustice to the applicant – Extension of time granted.

  • Etola & Imani [2018] FamCAFC 196

    15 Oct 2018

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge ordered that the children spend no face to face time with their father and not be required to communicate with him – Where the father asserts the primary judge mistook facts, did not take into account material considerations, allowed irrelevant matters to affect the outcome and that the orders made were unreasonable and plainly unjust – Where the primary judge was not in error in any of the ways asserted by the father – Whether the primary judge denied the father procedural fairness – Where the primary judge did not deny the father procedural fairness – Appeal dismissed.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – DISQUALIFICATION – Whether the primary judge should have recused herself on her own motion – Where there was no basis for the primary judge to do so – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Whether leave should be granted to the father to adduce further evidence – Where part of what the father wished to adduce could have been reasonably obtained by him at the time of the hearing and where the further evidence would not have produced a different result if it had been available at the trial – Where the further evidence does not demonstrate that the order under appeal is erroneous – Application dismissed.


  • Caffyn & Protz Group and Anor (No. 2) [2018] FamCAFC 199

    23 Oct 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Application for costs by the second respondent against the applicant on an indemnity basis – Agreement as to costs previously reached between applicant and first respondent – Where the applicant has been wholly unsuccessful – No submissions made by the second respondent as to how costs should be calculated – Where the circumstances do not justify costs on an indemnity basis – Second respondents application for costs granted in the same amount as between the applicant and the first respondent.

  • Akhtar & Gaber (No. 2) [2018] FamCAFC 176

    14 Sep 2018

    FAMILY LAW – LEAVE TO APPEAL – Procedural orders – Application for leave to appeal from an order consolidating applications and fixing them for hearing – Leave refused.

    FAMILY LAW – APPEAL – COSTS – Where the application for leave to appeal was wholly unsuccessful – Where the application was an abuse of process – Indemnity costs ordered.