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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.

  • Ainsley & Lake [2016] FamCAFC 253

    24 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where the applicant failed to provide an adequate explanation for her delay in filing the Notice of Appeal within time – Where the respondent would suffer prejudice if the extension were allowed – Where the property pool is of small compass and the amounts to be pursued on appeal are not of a magnitude that would visit injustice on the applicant if an extension were not granted – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks that the applicant pay his costs of the unsuccessful application – Whether circumstances justify an order for costs – Where the applicant was wholly unsuccessful – Where the application was necessitated by the applicant’s failure to comply with timeframes for filing appeals – Costs ordered. 


  • Cummings & Baxter [2016] FamCAFC 251

    24 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks expedition of his appeal against interim parenting orders which provide for the children to live with the mother – Where the parties were able to reach consent orders pending the final hearing of the proceedings at first instance – Application and appeal discontinued.

  • Brayden & Brayden [2016] FamCAFC 250

    18 Nov 2016

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

    FAMILY LAW – APPEAL – PROPERTY – Where final property orders were made by consent – Where subsequent orders for enforcement of those consent orders were made – Where further orders were made for the husband to pay the wife’s costs – Where the husband filed appeals from each of those orders – Where the hearing was transferred from Hervey Bay to Brisbane – Where the hearing occurred in the husband’s absence – Whether the husband argued that circumstances of the transfer did not accord the him procedural fairness – Where the husband was on notice of the change of venue – Where the husband sought to substantially re-litigate issues raised in earlier appeals – Appeal dismissed.


  • Kacher & Kacher [2016] FamCAFC 249

    29 Nov 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Where the husband filed an application seeking leave to file a Notice of Appeal out of time – Where the husband appeals from final property consent orders, which he alleges he agreed to under circumstances of duress – Where the husband would be required to file substantial further evidence on the appeal to establish his claim – Where the relief he seeks would be better brought as an application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) – The application is adjourned to allow the husband to first file a claim pursuant to s 79A of the Act per Arthurman & Arthurman (2008) FLC 93-389 and W and W [2006] FamCA 260 – Application adjourned – Costs be reserved.


  • Parke & The Estate of the Late A Parke [2016] FamCAFC 248

    24 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the trial judge set aside a financial agreement between the husband and wife – Where the husband appealed – Where husband’s health declined and the wife made an application to expedite the hearing of the appeal – Where the husband neither opposed nor consented to the application – Where the hearing of the appeal was expedited – Where the husband died and his second wife was appointed as his Legal Personal Representative – Where the Legal Personal Representative discontinued the Appeal – Where the wife filed an application for costs of a discontinued appeal on an indemnity basis – Where the wife alleged that the husband’s conduct in the trial should be taken into account as a relevant factor, and in particular his “dishonesty” and refusal to negotiate – Whether a filing of a Notice of Discontinuance can be regarded as attracting a costs order and if so, whether costs should be ordered on an indemnity basis – The extent to which the conduct of a party at the trial can be taken into account in considering whether orders should be made for costs of an appeal. Per MAY & RYAN JJ – Application allowed – A discontinued appeal is not wholly unsuccessful within the meaning of s 117(2A)(e) of the Family Law Act 1975 (Cth) (“the Act”) as it was never heard (per Bant & Clayton (Costs) [2016] FamCAFC 35) – The criteria in s 117(2A)(b) – (f) of the Act are limited to the appeal proceedings and matters from the trial cannot be taken into account under those sections (Dickson and Dickson (No 2) (1999) FLC 92-857 and Re JJT & Ors; exparte Victoria Legal Aid (1998) 195 CLR 184) – Matters of conduct during the trial may be taken into account under s 117(2A)(g) – A costs order should be made but where the circumstances do not justify costs on an indemnity basis. Per MURPHY J – Respondent to pay the costs of the wife fixed in the sum of $51,000.


  • Valdez & Frazier (Costs) [2016] FamCAFC 247

    30 Nov 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – where the respondent mother sought an order against the husband for her party and party costs of and incidental to two applications in an appeal filed by the father which were dismissed by the Full Court – where the reasons for judgment previously delivered by the Full Court containing the reasons for dismissal of the subject application demonstrate no merit – where it was held exceptional circumstances need not exist for there to be circumstances justifying an order for costs – whether the limited financial circumstances of both parties justified an order for costs – where it was held no party is entitled to litigate with immunity from costs – where the father was wholly unsuccessful in the applications in an appeal – where the circumstances justify the making of an order in favour of the mother for costs.


  • Geer & Bilson [2016] FamCAFC 246

    17 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant failed to file the appeal books on time and the appeal was thereby deemed abandoned pursuant to r 22.21 of the Family Law Rules 2004 (Cth) – Where the applicant seeks the reinstatement of his appeal – Where there is no satisfactory explanation for the delay in filing the appeal books – Application dismissed.


  • Reilly & Drummond [2016] FamCAFC 245

    03 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks an extension of time in which to file Appeal Books – Where the Notice of Appeal was filed within time – Where the delay is due to the applicant awaiting the determination of her application for special circumstances funding for the appeal – Application allowed.


  • Bell & Nahos [2016] FamCAFC 244

    30 Nov 2016

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

    FAMILY LAW – APPEAL – CHILD SUPPORT – LEAVE TO APPEAL – Where the appellant mother seeks leave to appeal pursuant to s 102A of the Child Support (Assessment) Act 1989 (Cth) – Where the trial judge in finding that the respondent father satisfied s 117(7B)(b)(ii) of the Child Support (Assessment) Act 1981 (Cth) appeared to rely on annexures to his affidavit which she had ruled inadmissible – Where it is not clear what weight the trial judge gave to these annexures in making her finding and thus the finding must be considered unsafe and cannot stand – Where there is merit in one of the appellant mother’s grounds of appeal – Leave to appeal granted and the appeal allowed – Proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge.

    FAMILY LAW – APPEAL – COSTS – Where the appellant mother should have costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs incurred by her in relation to the appeal and for the rehearing – Where the respondent father should have a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the rehearing.


  • Warner & Warner [2016] FamCAFC 243

    30 Nov 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the respondent conceded that the appeal should be allowed in part in relation to who should pay the travel costs of the child – Where the appellant challenged the block periods of time the child would spend with the respondent – Where the appellant was unable to demonstrate that the trial judge erred in the exercise of his discretion – Where s 65DAA of the Family Law Act 1975 (Cth) allows for time spent between the child and non-residential parent to be substantial and significant where that time is spent at a place geographically distant from the home of the resident parent – Where the trial judge was aware of the relevant facts and took them into account where appropriate – Where the trial judge applied the relevant sections of the Family Law Act 1975 (Cth) and gave ample reasons for his decision – Where the trial judge arrived at his decision by taking into account the best interests of the child – Appeal allowed in part and otherwise dismissed.

  • Finch & Shibo (No. 4) [2016] FamCAFC 242

    30 Nov 2016

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

    FAMILY LAW – APPEAL – CHILDREN – APPLICATION FOR LEAVE TO FILE APPLICATION – Where the trial judge considered the medical evidence relied upon by the appellant but found that it was not new – Where the trial judge afforded adequate weight to this evidence – Where there was nothing arising from this evidence which justified further litigation – Where there was no error in the trial judge’s determination that there was not a change of circumstances sufficient to allow the parenting issues to be relitigated – Where  the appellant’s complaints lack specificity – Where the appellant failed to satisfy the test for apprehended bias – Where there was no evidence demonstrating actual bias – Where it is not open to the appellant to assert that the trial judge erred in not disqualifying himself in circumstances where the appellant did not ultimately seek this order – Where the trial judge was not bound to act upon the appellant’s allegations of perjury against the respondent – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the appellant raises no basis for the court to receive the further evidence – Where the further evidence does not demonstrate error by the trial judge – Application dismissed.

  • Sargent & Selwyn [2016] FamCAFC 241

    29 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks to file an appeal over 14 months out of time – Where the primary judge delivered written reasons more than a year after orders were made – Where it is uncertain as to whether the primary judge delivered the reasons before he retired – Where the proposed appeal challenges the adequacy of the primary judge’s reasons – Where the extraordinary circumstances of the matter warrant the granting of an extension – Application allowed.

  • Reynolds & Sherman [2016] FamCAFC 240

    29 Nov 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Child’s surname – Where the mother appeals against an order that the child’s surname be hyphenated – Where an order as to a child’s name is a parenting order pursuant to s 64B(2)(i) of the Family Law Act 1975 (Cth) and the court must regard the best interests of the child as the paramount consideration – Whether the primary judge took into account irrelevant considerations or failed to take into account relevant considerations – Whether the primary judge prevented the mother from addressing issues during her cross-examination of the father – No appealable error established – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly unsuccessful – Where the appellant receives Centrelink benefits – Appellant ordered to pay the respondent’s costs of the appeal.

  • Searle & Mellor [2016] FamCAFC 239

    17 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file the appeal books on time – Where the applicant’s solicitor incorrectly diarised the date the appeal books were due – Consideration of principles in Gallo v Dawson (1990) 93 ALR 479 at 480 – Application allowed.

    FAMILY LAW – APPEAL – EXPEDITION – Where the appeal had been expedited – Where the applicant failed to comply with a procedural order and the appeal was deemed abandoned – Where the appeal has been reinstated – Where the orders under appeal have been stayed – Order for expedition revoked. 

  • West & West [2016] FamCAFC 238

    10 Nov 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Application in an Appeal – where the father appeals orders precluding him from having time or communicating with his children – where no error established – appeal dismissed.

    FAMILY LAW – APPEAL – CHILDREN – Application in an Appeal – application by the father seeking provision of the transcript – application dismissed.

  • Haykal & Krawiec (No. 2) [2016] FamCAFC 237

    09 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant father failed to file and serve the appeal books – Where the respondent mother and Independent Children’s Lawyer oppose reinstatement – Where the applicant failed to adequately explain the delay – Where the appeal is against a discretionary judgment and the grounds of appeal are unlikely to attract appellate intervention – Where reinstatement of the appeal would significantly prejudice the respondent and the subject child of the proceedings – Application dismissed.

  • Wei & Gong [2016] FamCAFC 236

    09 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – EXPEDITION – Where the husband and wife both seek leave to expedite their appeal and cross-appeal against interim financial orders – Where the husband and wife also seek to expedite their appeal and cross-appeal against interim parenting orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal and cross-appeal does not justify priority to the detriment of other cases – Applications dismissed.

  • Yargis & Yargis [2016] FamCAFC 235

    25 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where there was an adequate reason for the delay – Appeal reinstated.

    FAMILY LAW – APPEAL – APPLICATION FOR EXPEDITION OF APPEAL – Where the father seeks that his appeal against interim parenting orders be expedited – Where the orders on appeal make no provision for the father to spend time with the child – Where the mother indicated she was willing to agree to an arrangement of supervised time every weekend – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Where there is no such circumstance – Application dismissed.

  • Lane & Nichols [2016] FamCAFC 234

    25 Nov 2016

    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 orders for the child to spend limited time with the father supervised at a contact centre – where disputed issues of fact surrounding allegations of sexual abuse of child by the father unable to be resolved in interim proceedings – mother alleging abuse and father contending allegations fabricated – where interim issue for determination whether even limited time supervised at a contact centre posed any unacceptable risk to the child – whether any procedural unfairness or inconsistency in approach of the primary judge in the conduct and outcome of two interim hearings – whether primary judge misapprehended or failed to give sufficient weight to evidence of a sexual assault counsellor and a family consultant – where no procedural unfairness or inconsistency on the part of the primary judge established – where subject evidence of sexual assault counsellor and family consultant did not meet the requirements of s 55 of the Evidence Act 1995 (Cth) – where no weight could legitimately be given to such evidence – primary judge did not misapprehend the subject evidence but even if such an error were established no substantial miscarriage could be founded upon the subject evidence – where primary judge legitimately placed weight upon the family consultant’s observations in the report process in determining the question of unacceptable risk – no error established – reasons given by primary judge for orders not inadequate – appeal dismissed.

  • Kavanagh & Kavanagh [2016] FamCAFC 233

    11 Nov 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the trial judge had reserved judgment after a contested parenting trial in which allegations of sexual abuse of a child of the parties had been made – Where the Independent Children’s Lawyer sought to re-open the hearing and delay delivery of judgment because the husband had been charged with unrelated criminal charges concerning child pornography and was released on a bail condition that he have no contact with children.

    FAMILY LAW – APPEAL – Where the husband’s time with the children had been subject to a supervision requirement before the trial judge had commenced the trial but the husband had not been exercising that time and had not seen the children for over a year.

    FAMILY LAW – APPEAL – Where the trial judge considered the lack of time spent, the seriousness of the criminal charges and the uncertainty about whether there was evidence that the children were involved in the criminal activity – Where the husband argued supervision would protect the children – Where the trial judge suspended the supervision order – No error found.

    FAMILY LAW – APPEAL – Where the husband complained that the trial judge allowed evidence to be considered which he had not had an opportunity to respond to – Trial judge offered the husband an adjournment but that was rejected – No error found.

    FAMILY LAW – APPEAL – Where the husband complained that the trial judge was biased but did not raise the issue at the time – No error found – Appeal dismissed.

    FAMILY LAW – COSTS – Costs sought by Independent Children’s Lawyer against husband – No hardship established by husband – Order made for husband to pay Independent Children’s Lawyer’s costs.

  • Manotis & Manotis and Ors (No. 2) [2016] FamCAFC 232

    17 Nov 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a Notice of Appeal against orders made in 2012 – There is no substantial issue to be raised on the proposed appeal – The explanation for the delay is not adequate and the respondents would be prejudiced – Order for the applicant to pay costs in fixed sums.

  • Horwood & Harker [2016] FamCAFC 252

    24 Nov 2016

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

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where explanation for the failure to file a Notice of Appeal in a timely way was adequate – Where the proposed appeal is against parenting orders and the interests of justice weigh in favour of an extension of time – Extension granted.


  • Ortleib & Lloyd [2016] FamCAFC 231

    17 Nov 2016

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

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the father seeks to appeal an order dismissing his application for costs in proceedings under the Child Support (Assessment) Act 1989 (Cth) – Where leave to appeal is required under s 102A of the Child Support (Assessment) Act 1989 (Cth) – Where the determination of leave requires consideration of the grounds of appeal – Where the father asserts that the trial judge erred in not awarding costs on the basis of offers of settlement made to the mother – Where it could not be said that the offers were readily capable of acceptance – Where the decision as to award costs is a matter of discretion for the trial judge and the threshold for appellate intervention is high – Application of test set out in Medlow & Medlow (2016) FLC 93692 – Leave to appeal refused.

  • Atkins & Hunt [2016] FamCAFC 230

    12 Nov 2016

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

    FAMILY LAW – APPEAL – SPOUSE MAINTENANCE – leave granted to the appellant wife to file a further Amended Notice of Appeal – leave to appeal – where the wife sought orders for interim and final spouse maintenance pursuant to s 83 of the Act – where the wife made an oral application for leave to amend her Initiating Application so as to permit her to seek an order for maintenance pursuant to s 74 of the Act – where the trial judge dismissed the wife’s Initiating Application finding that the court was without jurisdiction to make an order under s 83 – where the trial judge correctly made a finding that there was no order “in force” within the meaning of s 83 – where the trial judge dismissed the wife’s oral application for leave to amend on the basis that allowing the amendment would effectively circumvent s 44(3) of the Act – where the wife was not required to seek leave pursuant s 44(3) so as to permit any amended application for spousal maintenance to proceed – where the trial judge erred in law in considering the application of s 44(3) as a matter relevant to the exercise of the discretion in refusing leave – where the trial judge erred in taking into account “the finality principle”, “natural justice” and “prejudice” to the husband, as each was not relevant to the exercise of his Honour’s discretion – error established – leave to appeal granted – appeal allowed.

  • Maddax & Danner (Costs) [2016] FamCAFC 229

    11 Nov 2016

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

    FAMILY LAW – APPEAL – COSTS – Multiple appeals – Where appeals either wholly unsuccessful or discontinued – Where respondent seeks indemnity costs – Where circumstances not sufficiently exceptional to warrant indemnity costs – Appellant to pay respondent’s costs calculated on a party/party basis.

  • Harrell & Nesland (Costs) [2016] FamCAFC 228

    09 Nov 2016

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

    FAMILY LAW – APPEAL – COSTS – where the appeal was successful – where the appellant sought an order for costs, or in the alternative, a certificate – where the respondent sought costs with respect to the successful Application in an Appeal and a certificate for the costs of the appeal – where the appeal succeeded on the basis of errors on behalf of the trial judge – where there are no circumstances to warrant a departure from the principle that each party bear their own costs – applications dismissed.

  • Russo & Wylie [2016] FamCAFC 227

    09 Nov 2016

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

    FAMILY LAW – APPEAL – PROPERTY – Superannuation – Whether the primary judge erred in the approach he took to the division of the parties’ property with respect to the respondent’s Military Superannuation Benefit Scheme defined benefit (“MSBS benefit”) – Where the MSBS benefit is paid to the respondent as a non-commutable indexed pension which cannot be received as a lump sum and cannot be assigned – Whether the primary judge erred by making an adjustment under s 90SM(3) of the Family Law Act 1975 (Cth) (“the Act”) – Whether the primary judge erred by failing to take relevant matters into account under s 90SF(3) of the Act – Whether the primary judge’s reasons for judgment are contradictory – Where the primary judge evaluated three possible approaches to dealing with the MSBS benefit before ultimately determining that only one of those approaches was just and equitable – Where the appellant contends that the primary judge erred by failing to make a superannuation splitting order pursuant to s 90MT of the Act – Where neither party sought a superannuation splitting order at first instance – No appealable error established – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly unsuccessful – Appellant ordered to pay the respondent’s costs of the appeal.
  • Valdez & Frazier (No. 4) [2016] FamCAFC 226

    10 Nov 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – DISQUALIFICATION – Where the applicant seeks that one of the members of the Full Court be disqualified from further hearing this matter – Where the basis for disqualification is not clear – Where the test for apprehended bias is not satisfied – Application dismissed.

  • Nemelia & Kenta [2016] FamCAFC 225

    09 Nov 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the mother asserted that she did not consent to share the costs of travel – Where the mother asserted that she could not afford to share the cost of travel and the child should undergo his orthodontic treatment in the Gold Cost rather than Sydney – Where the mother was unable to demonstrate that the trial judge was in error in finding that the mother consented to orders to share the cost of travel – Where the trial judge was clearly aware of the mother’s income position – Where the trial judge’s findings about the mother’s capacity to share the costs of travel were open to her Honour on the evidence – Where it was open to her Honour to order that the child undergo orthodontic treatment in Sydney.

    FAMILY LAW – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the mother sought that the requirement to file all of the transcript of the first instance hearing be dispensed with – Where the mother understood the forensic difficulty for the court where the transcript was unavailable – Where there was no objection by the father – Requirement for transcript dispensed with – Where the mother sought that the court obtain the transcript of the first instance hearing – Where the mother did not establish that this is an exceptional case where the court should provide transcript – Application dismissed – Where the mother sought to exclude the 96 pages of annexures contained within the affidavit of the father from the appeal books – Where there was no objection by the father.

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the further evidence was relied upon by the mother to dispute the evidence accepted by the trial judge – Where the evidence would not demonstrate that the orders under appeal are erroneous – Application dismissed.
  • Leone & Cino [2016] FamCAFC 224

    08 Nov 2016

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

    FAMILY LAW – APPEAL – DISMISSAL – Consideration of whether the appeal should be dismissed pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) for having no reasonable prospect of success – Appeal dismissed.

  • Paxton & Child Support Registrar and Anor (No. 2) [2016] FamCAFC 223

    20 Oct 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – STAY – Application for a stay of orders pending the outcome of a special leave application to the High Court – Where the special leave application had been dismissed before the hearing of the stay application – Where the stay application was otiose – Application dismissed

    FAMILY LAW – COSTS - Applicant ordered to pay the Child Support Registrar’s costs on an indemnity basis.
  • Ahmed & Jeret [2016] FamCAFC 222

    08 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the applicant filed an Application in an Appeal seeking an extension of time in which to file a Notice of Appeal more than eight weeks late – Where the applicant’s explanation of the delay is unsatisfactory – Where the proposed appeal has poor prospects of success – Application dismissed.

  • Rosemond & Rosemond [2016] FamCAFC 221

    21 Oct 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the wife seeks expedition of her application for leave to appeal and appeal against interim financial 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.  

  • Jopson & Lilwall [2016] FamCAFC 220

    03 Nov 2016

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

    FAMILY LAW – APPEAL – Application for expedition of hearing the appeal – Where the mother seeks to expedite her appeal against interim orders of the primary judge which afforded the father time with the child unsupervised – Where the father neither consents nor opposes to the application for expedition – Where the matter is clearly in the category of cases requiring expedition – Application allowed.

  • Findley & Vitez and Ors [2016] FamCAFC 219

    03 Nov 2016

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

    FAMILY LAW – APPEAL – Application for expedition of hearing the appeal – Where the mother seeks to expedite her appeal against orders of the primary judge which changed the primary residence and parental responsibility of the child – Where the child has now moved from living with the mother in South Australia to live on the Gold Coast with the father – Where the father and paternal grandparents oppose the application – Where the circumstances do not justify priority being given to the appeal – Application dismissed.

  • Jabbar & Gade (No. 3) [2016] FamCAFC 218

    04 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the applicant is 12 months late in filing the Notice of Appeal –  Where a previous application for an extension of time relating to the same orders sought to be appealed was dismissed in Jabbar & Gade (No. 2) [2016] FamCAFC 89 – Where there was no explanation for the failure to file a Notice of Appeal in a timely way – Where it would not occasion an injustice to refuse an extension of time – Where there was no need to consider the question of expedition – Application dismissed.

  • Debrossard & Official Trustee in Bankruptcy [2016] FamCAFC 217

    04 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the applicant is five years late in filing the Notice of Appeal – Where there was inadequate explanation for the failure to file a Notice of Appeal in a timely way – Where the appeal would be futile as the property has been sold and the funds disbursed – Application dismissed.

  • Tracey & Wilkes [2016] FamCAFC 216

    04 Nov 2016

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition of hearing of appeal – Where the mother seeks to expedite an appeal against interim parenting orders – Where the orders on appeal re-instate final parenting orders from 2015 – Where the orders had been suspended while the father was imprisoned – 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.

  • Zebic & Barron [2016] FamCAFC 215

    22 Sep 2016

    FAMILY LAW – APPEAL – COSTS – Where the primary judge failed to afford the parties procedural fairness – Appeal allowed by consent.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for costs – Where the appeal was allowed by consent – Where the appellant submits that the appeal was wholly successful and that an order for costs should be made – Where the appellant’s grounds of appeal did not particularise the alleged lack of procedural fairness – Where it is appropriate that the parties bear their own costs of the appeal.

  • Fewster & Drake [2016] FamCAFC 214

    04 Nov 2016

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

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Whether the orders appealed from are interlocutory or final – Where the order setting aside the binding financial agreement is a final order and leave to appeal is not necessary – Where the order for spousal maintenance is interlocutory and leave to appeal from it is required – Application of Medlow & Medlow (2016) FLC 93-692 – Leave to appeal granted.

    FAMILY LAW – APPEAL – BINDING FINANCIAL AGREEMENT – Appeal against the setting aside of a binding financial agreement – Where the parties entered into a financial agreement under s 90C of the Family Law Act 1975 (Cth) – Where the agreement did not exclude the wife from making an application for spousal maintenance – Where the primary judge set aside the binding financial agreement pursuant to s 90K(1)(d) of the Family Law Act 1975 (Cth) – Discussion of the requirements of s 90K(1)(d) – Discussion of Pascot & Pascot [2011] FamCA 945 – Where the primary judge erred in his construction and application of s 90K(1)(d) –– Appeal allowed – Whether the Court should re-exercise the discretion or remit the matter – Where a re-exercise of the discretion is appropriate – Where the wife’s application under s 90K(1)(d) is dismissed.

    FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Appeal against an order for interim spousal maintenance – Where the primary judge failed to have proper regard to the wife’s capital resources – Where the primary judge took into account an irrelevant consideration by determining the application for interim spousal maintenance on the basis that property proceedings between the parties were imminent – Where the primary judge failed to consider the wife’s concession about her unexercised earning capacity – Appeal allowed – Application for spousal maintenance remitted to the Family Court of Australia.

    FAMILY LAW – APPEAL – COSTS – Where the primary judge was in error – Costs certificates granted.
  • Jarrah & Neeson and Anor [2016] FamCAFC 213

    04 Nov 2016

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

    FAMILY LAW – APPEAL – CHILDREN – Where the mother and father appeal from orders that the Minister of the Department of Family & Community Services (NSW) have sole parental responsibility for the children and determine where the children live – Assessment of risk – Whether there was sufficient evidence before the primary judge to support a finding that it would be in the best interests of the children to be placed under the sole parental responsibility of the Minister – Out of home care arrangements per Part 8 Children and Young Persons (Care and Protection) Act 1998 (NSW) – Whether children denied the right to enjoy Aboriginal culture – No error established –  Appeal dismissed – No order as to costs.

  • Spencer & Spencer [2016] FamCAFC 212

    03 Nov 2016

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

    FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Appeal against an order for the mother’s contact with the child to be limited to the exchange of letters, photos, presents and videos – The mother’s complaints lack merit – Appeal dismissed.

    FAMILY LAW – APPEAL – VEXATIOUS LITIGANT – Appeal against an order restraining the mother from commencing further child-related proceedings – The mother concedes that her applications were all unsuccessful – The trial judge was not only justified but perhaps compelled to impose some limit on the proceedings – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Appeal against an order for the appellant to pay fixed costs to the respondent and Independent Children’s Lawyer – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Various applications to adduce further evidence dismissed, except to the extent that some documents were adduced by consent.

    FAMILY LAW – APPEAL – COSTS – Order for the appellant to pay the costs of the appeal sought by the respondent and Independent Children’s Lawyer, with enforcement stayed until the resolution of the property proceedings.
  • Chong & Chong [2016] FamCAFC 211

    03 Nov 2016

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

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks an extension of time to file an appeal – Where the respondent seeks that the application be dismissed – Where the affidavit filed by the respondent in support of the application for dismissal is unnecessary and improper – Where there is neither an adequate nor an acceptable explanation for the failure to file a Notice of Appeal within time – Where there is no merit in any of the proposed grounds of appeal and there is no chance of the appeal succeeding if leave to appeal was granted – Where the prejudice to the respondent in defending the proposed appeal outweighs any prejudice or injustice caused to the applicant if the application is dismissed – Application dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the respondent seeks costs on a party/party basis – Where the application has been wholly unsuccessful and the respondent should have an order for costs in her favour – Costs ordered in favour of the respondent save and except for costs in relation to the respondent’s affidavit filed in support of an order for dismissal.
  • Lockley & Bardot (No. 2) [2016] FamCAFC 210

    12 Sep 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the parties have reached consent orders in relation to the disposition of the appeal – Where the primary judge erred in failing to apply the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) – Appeal allowed – Orders set aside – Proceedings remitted for rehearing.  

  • Bilson & Geer [2016] FamCAFC 209

    22 Sep 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the applicant seeks an extension of time in which to file an application for costs in respect of an appeal which was abandoned by the respondent – Where there is a reasonable explanation for the delay – Where the applicant acted reasonably promptly in filing the application – Where the costs application does not lack merit – Application allowed.

  • Rosetti & Morris [2016] FamCAFC 208

    01 Aug 2016

    FAMILY LAW – APPEAL – CHILDREN – Appeal against interim orders for the child to spend time with the father – Appeal conceded by the father – Parts of the orders were not sought by either of the parties or recommended by the family report writer – His Honour failed to explain why the orders were in the child’s best interests and failed to afford procedural fairness to the parties – Appeal allowed – Matter remitted for rehearing – Costs certificates granted.  

  • Tallant & Kelsey [2016] FamCAFC 207

    26 Oct 2016

    FAMILY LAW – APPEAL – JURISDICTION – Right of appeal – Where the primary judge overruled an objection against the admission into evidence of an expert’s report – Where ruling was drawn up in the form of an order and reasons were provided.

    FAMILY LAW – WORDS AND PHRASES – Meaning of “decree” and “judgment” – Whether decision to admit an expert’s report into evidence is a decree – Where ruling did not determine the proceedings or a part of them – Where the decision is not a decree – Where decision not capable of appeal – Application for leave to appeal dismissed.

    FAMILY LAW – COSTS – Where the ICL seeks costs of the appeals – Where applicant wholly unsuccessful – Costs ordered.


  • Ulster & Viney (No. 2) [2016] FamCAFC 206

    27 Oct 2016

    FAMILY LAW – APPEAL – STAY – Where the applicant seeks a stay of orders made by the Full Court pending determination of an application for special leave to appeal to the High Court – Where the orders the subject of the application for special leave permit the respondent to relocate intrastate with the children – Where the refusal to grant a stay of orders would not render the application and any consequential appeal nugatory – Whether there is a substantial prospect that special leave to appeal will be granted – Where the grant of a stay will cause “loss” to the respondent – Where the balance of convenience lies with the respondent – Application dismissed – Costs ordered.  

  • Piercy-Wright & Mullins [2016] FamCAFC 205

    05 Oct 2016

    FAMILY LAW – APPEAL – Where the appellant has not complied with the orders made to prepare the appeal for hearing – Where the respondent seeks that the appeal be dismissed pursuant to r 22.45 of the Family Law Rules 2004 – Where there was no appearance by or on behalf of the appellant – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.  

  • Malcher & Malcher [2016] FamCAFC 204

    26 Oct 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for the Court to provide transcript – Where the matter is not an exceptional case – Where the father sought an adjournment of the appeal – Where the appeal had already been adjourned once on the father’s application – Applications dismissed.

    FAMILY LAW – APPEAL – ENFORCEMENT OF ORDERS – Contravention of orders – Where the trial judge imposed a bond on the father – Where the appellant failed to enter into the bond and a fine was imposed under s 70NEB(1)(da) of the Family Law Act 1975 (Cth) – Where the fine comprised three fines for each contravention by the father – Where only one fine should have been imposed as only one bond was imposed – Appeal allowed. 

    FAMILY LAW – APPEAL – ENFORCEMENT OF ORDERS – Contravention of orders – Where the father asserted that the trial judge failed to consider that sanctions had already been imposed in relation to the contraventions under s 70NEB of the Family Law Act 1975 (Cth) – Where the variation of the parenting orders was not made under s 70NEB – Where the balance of the grounds of appeal related to orders not on appeal, or could not succeed without recourse to transcript – No appealable error demonstrated.
  • Kopel & Ferro [2016] FamCAFC 202

    14 Oct 2016

    FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the appellant appeals against final parenting orders dismissing an application to relocate overseas with the child – Whether the primary judge erred in his assessment of the parties’ competing proposals – Where the primary judge failed to evaluate the proposal advanced by the appellant – Where the error is material – Appeal allowed – Whether the remitted re-hearing should be limited to the issue of relocation – Matter remitted without limitation.  

  • Tullo & Tullo [2016] FamCAFC 201

    07 Oct 2016

    FAMILY LAW – APPEAL – APPLICATION IN APPEAL – Expedition – Where the wife seeks expedition of her application for leave to appeal and appeal against interim financial 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.  

  • Manotis & Manotis and Ors [2016] FamCAFC 200

    09 Aug 2016

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application for review of the Appeal Registrar’s decision not to accept the Notice of Appeal for filing – The Registrar was wrong in his initial view that the Notice of Appeal was filed out of time – A registrar does not have authority to reject a Notice of Appeal on the on the basis that it does not disclose a proper complaint or that the relief sought is incompetent – Decision set aside – Order for the Notice of Appeal to be accepted for filing.  

  • WGOC & GH and Anor [2016] FamCAFC 199

    14 Oct 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against final parenting orders according the mother sole parental responsibility of one of the children – Where the child previously lived with the father but absconded and refused to return – Where the father refused to consent to the child attending a new school – Where the child had not attended school for a period for two years as a result – Where the father alleged the trial judge failed to consider the best interests of the child and properly apply the relevant provisions – Where it was found the trial judge appropriately applied the relevant provisions of the Family Law Act 1975 (Cth) – Where the orders were appropriate in the circumstances – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appeal has failed and the father and mother are self-represented – No order as to costs.
  • Dakin & Sansbury [2016] FamCAFC 198

    14 Oct 2016

    FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where the respondent seeks summary dismissal of the appellant’s Notice of Appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where the grounds of appeal are incompetent and do not  identify any appealable errors made by the trial judge – Where it is apparent that the purpose behind the proceedings is for the appellant to revisit and re-agitate issues previously raised in the context of her property settlement and spousal maintenance proceedings – Where those proceedings have been finalised and there is no opportunity for the appellant to re-litigate them – Where there is no prospect of success and the appeal is doomed to fail – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – where the respondent seeks his costs – Where as a result of the appellant arriving late at court there was no time to take submissions as to costs – Orders made for the parties to file written submissions.
  • Cane & Payton [2016] FamCAFC 197

    12 Oct 2016

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant has provided no basis for leave to be granted – Where no error of principle and/or substantial injustice has been demonstrated – Where it was open to the trial judge to make the orders that he did –– Where this is not a case where leave to appeal should be granted.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – Where the respondent seeks summary dismissal of the appellant’s Further Amended Notice of Appeal – Where s 96AA of the Family Law Act 1975 (Cth) is the relevant section –– Where none of the grounds of appeal have any reasonable chance of success – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks an order for costs based on the success of the application for summary dismissal – Where the order was opposed by the appellant on the basis that pursuant to s 117 of the Family Law Act 1975 (Cth) each party should bear their own costs – Where the appellant’s financial circumstances are not such that they provide a basis for there being no order for costs being made against her – Where there are circumstances which justify an order for costs being made – Costs order made in favour of the respondent.
  • Carlson & Carlson [2016] FamCAFC 196

    14 Sep 2016

    FAMILY LAW – APPEAL – CHILDREN – Where interim parenting orders provided that the mother have sole parental responsibility, except with respect to education where parental responsibility was to be equally shared – Where the primary judge found it was not appropriate for the presumption of equal shared parental responsibility in s 61DA of the Family Law Act 1975 (Cth) to apply – Where that finding was open on the evidence – Where the appeal raises no issue of principle – No merit to the appeal – Appeal dismissed.  

  • Thompson & Berg (No. 3) [2016] FamCAFC 195

    30 Sep 2016

    FAMILY LAW – APPEAL – Where the appellant did not comply with the orders made to prepare the appeal for hearing – Where the appellant 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 made an oral application that he be permitted to make oral submissions as an alternative – Where several grounds of appeal lack merit on their face – Where the only utility of any order made would be in relation to costs – Where the wife is entitled to a conclusion of the issues with the husband – Where it is important that disputes be resolved in a just and timely manner – Where the requirements of r 22.45 of the Family Law Rules 2004 (Cth) were satisfied – Appeal dismissed.  

  • Acquaah-Akuffo & Abioye [2016] FamCAFC 194

    27 Sep 2016

    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals from orders that he return the child to a non-Hague Convention country –Where the trial judge was required to determine in which forum the parenting dispute should be heard – Where the focus of the hearing turned to a consideration of interim parenting orders – Where the trial judge did not appoint an Independent Children’s Lawyer – Where this decision was open to his Honour in the circumstances – Where the father asserted that the trial judge failed to give sufficient weight to the risk that the child may not be returned to Australia if such an order was made – Where the trial judge found that this risk was outweighed by the benefit of the child returning to the care of his primary caregiver – Appeal dismissed.

  • Daren & Long [2016] FamCAFC 193

    05 Oct 2016

    FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – PROPERTY – Where the appellant alleges that there has been a denial of natural justice in his counsel not being permitted to complete and to commence cross-examination of the remaining two witnesses – Where a judicial officer has a wide discretion to control the court’s procedures and ensure that proceedings are not unduly protracted – Where there is also an obligation on any court in Australia to provide a proper and full hearing of the parties’ controversy – Where it is plain that the trial judge put counsel on notice of when the hearing would conclude – Where no objection was raised by either counsel, and importantly the appellant’s counsel, to the time limit imposed by the trial judge – Where it was appropriate for the trial judge to impose a time limit – Where it is readily apparent that counsel for the appellant failed to tailor her cross-examination to meet the timeframe imposed by the trial judge – Where the appellant’s counsel failed to object when it was open for her to do so – Where if an objection had been raised the respondent’s counsel would have had the opportunity to make submissions – Where no complaint was raised and no prejudice suggested in the appellant’s final written submissions – Where there has been a waiver of the right to object and the issue cannot be raised on appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs – Where the appellant opposes such an order on the basis of his financial circumstances – Where on the morning of the appeal the appellant withdrew 16 of his 17 grounds of appeal – Where the respondent has been put to unnecessary costs in opposing the appeal – Where there are circumstances that justify an order for costs – Costs ordered in favour of the respondent to be assessed in default of agreement.

  • Acharya & Bhatt [2016] FamCAFC 192

    21 Sep 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Expedition – Where the wife seeks expedition of her application for leave to appeal and appeal against interim financial orders – Where the wife contends she is suffering undue stress and financial hardship as a result of the ongoing litigation – 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.

    FAMILY LAW – COSTS – Where the applicant was wholly unsuccessful – Where the respondent sought costs in an amount that bore no relationship to the scale for party/party costs – Where there was no basis for an order for indemnity costs in circumstances where the respondent has complied with r 19.08(3) of the Family Law Rules – Where the circumstances justify an order for costs on a party/party basis – Costs to be paid out of the applicant’s entitlement to a property settlement.