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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.

  • Michar & Baileford and Anor [2019] FamCAFC 60

    12 Apr 2019

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the appellant father seeks to appeal an order made by the Federal Circuit Court of Australia dismissing his application for leave to have his child support liability reviewed – 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 strength of the grounds of appeal – Where the application for leave and the appeal are heard together – Where the test set out in Medlow & Medlow (2016) FLC 93-692 is applied – Where the appellant demonstrates there has been an error of principle made by the primary judge and that he will suffer a substantial injustice if left unprosecuted – Where leave to appeal granted.

     

    FAMILY LAW – APPEAL – CHILD SUPPORT – Where the appellant father contends the primary judge erred by refusing him leave to review his application under ss 111 and 112(1) of the Child Support (Assessment) Act 1989 (Cth) – Where the respondent opposes the appeal – Where the Child Support Registrar neither supports nor opposes the appeal – Where the primary judge found a disparity between the appellant’s actual taxable income and his adjusted child support income – Where leave to apply was refused by the primary judge under s 111 of the Child Support (Assessment) Act 1989 (Cth) on the basis the appellant had failed to lodge the relevant tax returns – Where the primary judge’s determination of the appellant’s application was different from the approach foreshadowed to the parties at the hearing – Where the appellant was not afforded procedural fairness – Where the primary judge misapplied the statutory criteria under s 112 of the Child Support (Assessment) Act 1989 (Cth) – Appeal allowed – Where the order is set aside for re-hearing by a judge other than the primary judge.   

    FAMILY LAW – APPEAL – COSTS – Where leave to appeal granted and the appeal successful – Where the appellant did not seek costs against the respondent – Where the appellant sought a costs certificate – Where the Child Support Registrar was not entitled to a costs certificate under s 14 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the respondent had no costs to recoup – Where no reason to grant a costs certificate to the respondent – Where costs certificates granted to the appellant for the appeal and the re-hearing.


  • Buchanan & Morgan [2019] FamCAFC 62

    09 Apr 2019

    FAMILY LAW – APPEAL – PARENTING – Order for sole parental responsibility made in favour of the father where no party sought such an order – Where the primary judge misstated the father’s final position as to parental responsibility and time – Where the mother rejected the father’s proposals – Where errors unrelated to relief sought on appeal – Abuse of process – Conduct of trial – Appeal against exercise of discretion – Failure to establish that findings sought at trial in relation to matters of which complaint now made – Contentious findings were neither fundamental or obvious – Adequacy of reasons – Errors not material to the outcome – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the mother was able to point to errors of the primary judge – Where the orders concern the welfare of a young child – Where the parties are of modest means – Application for costs dismissed.

  • Petchey & Petchey [2019] FamCAFC 48

    20 Mar 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no basis for leave to appeal to be granted if time to appeal is extended – Where the proposed grounds of appeal are without merit – Where the prejudice to the respondent outweighs any prejudice to the applicant – Application dismissed.

    FAMILY LAW – COSTS – Where there are circumstances which justify an order for costs being made – Where impecuniosity is not a bar to an order for costs being made where there are circumstances that otherwise justify such an order – Where the applicant has been wholly unsuccessful – Costs ordered in the sum sought by the respondent.
  • Foley & Foley [2019] FamCAFC 61

    11 Apr 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant attempted to file a late Application in an Appeal – Where the appellant sought to file an Amended Notice of Appeal incorporating challenges to a separate costs decision – Where the Appeals Registry rejected this document for filing – Where the solicitor and senior counsel for the appellant were informed that two sets of orders cannot be appealed using one Notice of Appeal – Where the appropriate procedures of s 94 of the Family Law Act 1975 (Cth) and r 22.03 of the Family Law Rules 2004 (Cth) were not followed by senior counsel for the appellant – Where it was conceded by senior counsel for the appellant that the Application should be dismissed – Application in an Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – PROCEDURE – Where senior counsel for the appellant sought leave to rely on an Amended Summary of Appeal – Where the grounds in the Notice of Appeal and Amended Summary of Appeal were difficult to reconcile – Where the Amended Summary of Appeal does not comply with Practice Direction No. 1 of 2017 or r 22.22 of the Family Law Rules.– Where the appellant was permitted to rely on the Amended Summary of Argument with the respondent’s consent – Where the appellant had ample time to file an Amended Notice of Appeal and was bound by the grounds in the original Notice of Appeal.

    FAMILY LAW– APPEAL – PROPERTY – Where each ground pressed on appeal asserted a discretionary error made by the primary judge – Where such grounds of appeal have a high bar to meet in order to warrant appellant intervention – Where there was an issue as to when the company, which held the business, should be valued – Whether the primary judge attributed an incorrect value to the furniture and contents formally held in the former matrimonial home – Whether the primary judge erred in the findings as to the health of the children and subsequently the adjustment to the respondent to account for this, was plainly unjust –Whether the primary judge erred in finding that the appellant’s conduct in respect of the company was reckless – Whether the primary judge erred in determining that the respondent’s standard of living had reduced – Where no error was found – Appeal dismissed. 

    FAMILY LAW – APPEAL – PROPERTY – COSTS – Where the parties are to file cost submissions within 28 days.


  • Bradford & Donnellan [2019] FamCAFC 59

    04 Apr 2019

    FAMILY LAW – APPEAL – PARENTING – Where the primary judge ordered no contact of any kind between the children and the father – Where the mother has sole parental responsibility of the children – Where the father contends that the primary judge failed to take into account the Independent Children’s Lawyer (ICL) references to the mother’s evidence – Where in fact the ICL’s submissions were that the father’s evidence was not truthful – Where the father complains that the primary judge did not decide the matter in accordance with the parties’ application – Primary judge not bound by the parties’ proposals – Best interests of the children – Orders made in accordance with the submissions of the ICL – No force in the Grounds – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made orders dividing the total assets as to 67 per cent to the wife and 33 per cent to the father – Where the father contends the inclusion of a house he purchased as an asset of the parties – Where the father at trial failed to make any financial disclosure – Where the only evidence before the Court was the mother’s – Where the father challenges the primary judge’s refusal to call the paternal grandfather as witness – No affidavit filed by the father or paternal grandfather – Where the father contends that the mother’s receipt of Centrelink benefits were fraudulent – No evidence adduced in support of that claim by the father – No error established – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Further evidence – Where the father seeks to include evidence as to a mental disability – Where the purpose of this evidence was to demonstrate that the father was incapable of understanding the trial process –  Where the father failed to mention his condition or bring this information during the trial – Where the father concedes that he failed to adjourn the proceedings at trial – Application dismissed – Where the mother filed an application to adduce further evidence rebutting the father’s application and to seek leave to issue subpoenas – Applications dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the father was ordered to pay the costs of the mother and the total costs of the ICL – Where his Honour’s reasons for making the order are unchallenged – Where the father was ordered to pay the costs of the mother’s legal fees – No force to these challenges – Appeal dismissed – Where the ICL seeks an order for costs of the appeal – Costs order made in favour of the ICL against the father in relation to the appeal.


  • Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51

    25 Mar 2019

    FAMILY LAW – APPEAL – RE-EXERCISE – Where this Court found error in the trial judge’s assessment of the s 75(2) factors – Where the parties were unable to reach agreement as to orders consequent upon the decision of this Court – Where both parties sought that this Court re-exercise the discretion – Where the only further evidence adduced was the proceeds of the sale of a property being higher than the agreed value relied upon by the trial judge – Where the restrictions inherent in the appeal process restrict the nature and ambit of the exercise of the s 94(2) power – CDJ v VAJ (1998) 197 CLR 172 and Allesch v Maunz (2000) 203 CLR 172 considered – Where the Court’s re-exercise of discretion is not to be fettered by adherence to the trial judge’s assessment – Where the property pool was found to be $10.2 million – Where the wife undertook the role of homemaker and parent for most of the 19 year marriage – Where there is a large income earning disparity between the parties – Where the wife is to receive a ten per cent adjustment pursuant to the s 75(2) factors – Where the wife held net assets including superannuation of $4.55 million – Where the husband is to pay the wife $1,570,827 $1,407,431 as final property settlement.

    FAMILY LAW – APPEAL – INTEREST – Where the wife seeks interest on the cash sum payable – Where the parties agreed on an interim property settlement when staying the orders pending appeal – Where no term of the stay referred to interest – Where there was no relevant order which had taken effect within the meaning of s 117B(1)(b).


  • Trevi & Trevi (No. 3) [2019] FamCAFC 58

    03 Apr 2019

    FAMILY LAW – APPEAL – RE-EXERCISE – COSTS – Where the Full Court allowed the husband’s appeal from the orders made on 18 May 2017 and set aside Order 1 of those orders – Where the Full Court re-exercised the discretion under s 79 of the Family Law Act 1975 (Cth) to make property settlement orders – Where the husband sought costs of and incidental to the re-exercise of discretion founded primarily on offers of settlement made by the husband – Where the amount of costs sought by the husband included counsel’s fees on an indemnity basis – Where offers of settlement are an important s 117(2A) consideration in determining the question of costs – Where there is no basis for an order to be made for indemnity costs – Where, however, there are justifying circumstances for an order for costs to be made in favour of the husband on a party and party basis – Wife to pay the husband’s costs incurred on and from the date of the husband’s latest offer of settlement in an amount as agreed or, failing agreement, as assessed.

  • Trevi & Trevi (No. 2) [2019] FamCAFC 57

    03 Apr 2019

    FAMILY LAW – APPEAL – RE-EXERCISE – AMENDMENT PURSUANT TO SLIP RULE – Where the parties jointly sought the correction of an order providing for a cash amount to be paid by the husband to the wife arising from an accidental slip or omission pursuant to r 17.02 of the Family Law Rules 2004 (Cth) – Where the order was amended on 27 March 2019 – Where the husband subsequently sought that the discretion be re considered by the Full Court having regard to the amended figure on the basis that the amendment was “significant” for s 75(2) discretion purposes – Where the subject error had no effect whatsoever on the re-exercise of discretion made by the Full Court – Where reasons for judgment in respect of the amended order made 27 March 2019 were varied pursuant to r 17.02A of the Family Law Rules 2004 (Cth).

  • Sfakianakis & Sfakianakis [2019] FamCAFC 54

    28 Mar 2019

    FAMILY LAW – APPEAL – COSTS – Special costs order – Application for indemnity costs – Where the appeal was wholly unsuccessful – Offers of compromise – Conduct of the proceedings – Where the appellant abandoned much of his case on the day of the appeal – Where the appellant’s original Summary of Argument contained outlandish, indefensible and reckless submissions – Where the respondent has failed to comply with r 22.53(3) of the Family Law Rules 2004 (Cth) – Where the circumstances warrant a special costs order – Order for costs in a fixed sum.

  • Peake & Cousins [2019] FamCAFC 55

    27 Mar 2019

    FAMILY LAW – APPEAL – Where the trial judge found the mother was in contravention of final parenting orders made by consent in October 2015 – Where the trial judge ordered the mother to attend a post-separation parenting program by way of penalty pursuant to s 70NEB(1)(a)(i) of the Family Law Act 1975 (Cth) – Where the trial judge also made interlocutory parenting orders in the substantive proceedings – Where many of the mother’s stated grounds of appeal were so lacking in particulars of the errors purportedly asserted as to not constitute proper grounds of appeal – Where the mother’s grounds of appeal were based primarily upon four central assertions of error – Where nothing to which the mother directed attention on appeal demonstrated appellable error on the part of the trial judge – Appeal dismissed.

  • Garston & Yeo [2019] FamCAFC 56

    28 Mar 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Expedition of the appeal sought on the basis that the hearing of the appeal will be short and that the appeal has strong prospects of success – Where those considerations do not justify prioritising this appeal over others – Application dismissed – Applicant ordered to pay the respondent’s costs of the application.

  • Elias & Elias [2019] FamCAFC 53

    28 Mar 2019

    FAMILY LAW – APPEAL –  PARENTING – Supervised time – Whether there is a substantive difference between “supervised time” and time spent “in the presence of” someone – Whether the primary judge erred by ordering the father’s time with the child be supervised on an indefinite basis – Whether the evidence of the single expert psychiatrist supported the order for indefinite supervised time – No error demonstrated.

    FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Adequacy of reasons – Whether the primary judge erred in his findings as to family violence – Whether it was open to the primary judge to find that the child would be at an unacceptable risk in the unsupervised care of the father – No error demonstrated – Appeal dismissed.


  • Simonds (deceased) & Coyle [2019] FamCAFC 47

    26 Mar 2019

    FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where the de facto wife filed her Initiating Application for property adjustment orders after the standard application period without first obtaining leave – Where the de facto wife filed an Amended Initiating Application seeking leave to institute the proceedings out of time and after the death of the de facto husband – Where the trial judge granted the de facto wife leave, nunc pro tunc, to file an application for property adjustment orders against the deceased de facto husband  – Where the trial judge granted the de facto wife leave, nunc pro tunc, to continue that application against the executors of the estate of the deceased de facto husband – Whether the trial judge had jurisdiction to entertain the de facto wife’s Amended Initiating Application – Consideration of s 90SM(8) of the Family Law Act 1975 (Cth) – Consideration of the meaning of “de facto financial causes” – Consideration of the meaning of “property settlement proceedings” – Consideration of r 1.09 of the Family Law Rules 2004 (Cth) – Where no de facto financial cause had been instituted prior to the death of the de facto husband – Where the trial judge lacked jurisdiction to make the orders that he did – Leave to appeal allowed – Appeal allowed.

  • Rich & Shorland [2019] FamCAFC 50

    27 Mar 2019

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant seeks leave to appeal – No prejudice to the respondent in allowing the appeal to proceed – Where the decision appealed from is attended with sufficient doubt such that it would result in an injustice if leave were not granted – Application for leave to appeal granted.

    FAMILY LAW – APPEAL – DE FACTO – PROPERTY – Leave given to commence property proceedings out of time on the basis of hardship  – Weight given by the primary judge to relevant principles – Where the primary judge failed to give appropriate consideration to the relevant principles – Where the primary judge was required to determine whether there is a real probability of success that will alleviate the hardship – Where the primary judge erred by failing to make the required assessment – Failure of the primary judge to draw a nexus between the probability of success and the alleviation of hardship – Inadequate reasons – Where his Honour failed to take into account the interlocutory nature of the proceedings – Where his Honour failed to engage with the principles around time limits and applications for extension of time to file an application – Appeal allowed – Matter remitted for rehearing.

    FAMILY LAW – APPEAL – COSTS – Orders made to allow the parties to file submissions on the question of costs. 

  • Rankin & Rankin [2019] FamCAFC 52

    26 Mar 2019

    FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the respondent seeks costs on an indemnity basis against the applicant and the applicant’s solicitor but ultimately against the applicant leaving the applicant to pursue his solicitor if so advised – Where the applicant opposes any order for costs on the basis that he was successful in having his appeal reinstated – Where the application was only necessary because the applicant had not complied with orders of this Court – Where  the respondent has demonstrated the presence of exceptional circumstances such as to warrant a departure from the ordinary rule as to costs – Costs of the proceedings ordered in favour of the respondent to be assessed on an indemnity basis in default of agreement.

  • Rimac & Rimac (No. 2) [2019] FamCAFC 45

    21 Mar 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the respondent seeks her costs of the applicant’s application for an extension of time to file a Notice of Appeal – Where that application was wholly unsuccessful – Financial circumstances of the parties – Conduct of the proceedings – Order for costs as agreed or assessed.

  • Mackerith & Mackerith [2019] FamCAFC 44

    18 Mar 2019

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE –  LEAVE TO APPEAL – Where the husband sought to appeal interim property orders – Where leave to appeal is required under s 94AA of the Family Law Act 1975 (Cth) and reg 15A(1) of the Family Law Regulations 1984 (Cth)  – Where the wife opposes the appeal – Leave to appeal granted.

  • Keating & Keating [2019] FamCAFC 46

    21 Mar 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the parties’ liabilities exceed their assets – Where the husband has significant business assets and income – Where the business will continue to trade - Where the husband has significant director loans – Where both parties are held liable for a failed investment debt and subsequent reduction in the net assets – Failure of the primary judge to engage with the wife’s case – Inadequate reasons – Appeal allowed – Matter remitted for rehearing.
    FAMILY LAW – APPEAL – PROPERTY – Family Violence – Where the wife sought an adjustment under the Kennon principles – Where the primary judge declined to make the adjustment sought – Discussion of Spagnardi & Spagnardi [2003] FamCA 905 – Approach to findings of fact - Consideration of discernible impact of the violence – Appeal allowed – Matter remitted for rehearing.  
    FAMILY LAW – APPEAL – No order as to costs – Costs certificates granted for appeal and rehearing.



  • Skivington & Skivington [2019] FamCAFC 36

    11 Mar 2019

    FAMILY LAW – APPEAL – PROCEDURAL – Where the Federal Circuit Court Judge dismissed the parties' initiating application and response for failure to prosecute the matter – Where the judge failed to comply with the requirements of Rule 13.2 of the Federal Circuit Court Rules 2001 (Cth) – Where the appeal allowed – Where costs certificates awarded.

  • Mahoney & Dieter [2019] FamCAFC 39

    07 Mar 2019

    FAMILY LAW – APPEAL – PARENTING – Appeal against dismissal of application for parenting orders pursuant to the principles of Rice and Asplund – Where the parenting orders were made in New Zealand and registered in Australia – Where the appellant adduced evidence about her mental health – Where the parenting orders were not predicated on the appellant suffering a mental illness – Where the appellant misconstrued the basis of the parenting orders – Where the appellant sought to challenge the New Zealand judgment – Use of New Zealand judgment –  Risk of harm – Errors of fact – Where the errors of fact are immaterial to the order made – Appeal dismissed.

  • Worth & Worth and Anor [2019] FamCAFC 40

    08 Mar 2019

    FAMILY LAW – APPEAL – PARENTING – Where there was no error by the trial judge in ordering that the wife have sole parental responsibility for the two children of the marriage as a result of the high conflict between the parties and the fact that both children would be residing with the wife – Where there was no error by the trial judge in ordering that the youngest child reside with the wife – Where there is no merit in any of the complaints made by the appellant – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where there was no error by the trial judge in his treatment of the wife’s evidence as to her expenditure on legal fees and her disclosure in relation to the same – Where there was no error by the trial judge in his treatment of “add-backs” – Where there was no error by the trial judge in his assessment of the respective contributions of the parties – Where the alleged unethical conduct by the wife’s solicitor does not sound in error by the trial judge – Where there is no merit in any of the complaints made by the appellant – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent sought an order for costs – Where the Independent Children’s Lawyer did not seek an order for costs against the appellant in the event the appeal was dismissed – Where the respondent’s costs sought were based on offers made by her – Where it was accepted that written submissions as to costs would be required once the result of the appeal was known – Orders made setting out a regime for the filing of written submissions.


  • Padbury & Wendon [2019] FamCAFC 41

    06 Mar 2019

    FAMILY LAW – APPEAL – PROPERTY – Appeal against property settlement orders including orders splitting the appellant’s hurt on duty pension – Where the primary judge failed to consider the special features of the pension or the parties’ contributions to it – Errors of fact – Appealable error established and appeal conceded – Orders made by consent in lieu of those under appeal.

    FAMILY LAW – APPEAL – COSTS – No orders for costs made – Where both parties applied for costs certificates – Where the conduct of the trial contributed to errors – Applications for costs certificates refused.


  • Carson & Hillman [2019] FamCAFC 42

    08 Mar 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge made an order which provided for the splitting of the appellant’s superannuation pension such that the respondent was to receive 30 per cent of that entitlement – Where the trial judge made an erroneous finding about how the appellant’s superannuation entitlement was accumulated but that finding was of no material significance – Whether the trial judge made other erroneous findings and failed to have regard to relevant considerations – Where the trial judge had not done so – Appeal dismissed.

    FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Where the trial judge dismissed the appellant’s spousal maintenance application – Where the appellant had not established that she was unable to support herself adequately – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks an order for costs – Where the appellant opposes such order – Where there are circumstances which justify an order for costs being made – Where the appellant has been wholly unsuccessful in the appeal – Where the appellant’s Summary of Argument failed to comply with r 22.22 of the Family Law Rules 2004 (Cth) and Practice Direction No. 1 of 2017 – Where an Application in an Appeal to adduce further evidence was dismissed when the appellant conceded the evidence was inadmissible – Costs ordered in the sum sought by the respondent.


  • Halford & Halford [2019] FamCAFC 43

    13 Mar 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the matter was listed for trial in August 2018 – Where a trial judge rejected the husband’s application for an adjournment made via email the day prior to the hearing on the basis that he was unwell and proceeded on an undefended basis – Where a trial judge made final orders for property settlement and lump sum spousal maintenance – Where the husband filed an Application in a Case seeking those orders be set aside – Where another trial judge set the orders aside and listed the matter for another trial – Where the wife attempted to file a Notice of Appeal but was rejected for being out of time – Where the wife filed an application for extension of time four weeks after the time for filing the appeal had expired – Where it is difficult to discern what the judge found to be the specific material arguments available to the husband which were said could lead to the making of different orders – Where the judge did not identify any argument made by the husband in respect of the wife’s lump sum spousal maintenance claim – Where there are reasonable issues to be raised on appeal – Where the wife’s delay in filing the application was not inordinate – Application allowed.

  • Maddax & Danner [2019] FamCAFC 38

    05 Mar 2019

    FAMILY LAW – APPEAL – PARENTING – Where final orders were made in February 2016 – Where the father subsequently withheld the child in Germany – Where the mother initiated Hague Convention proceedings – Where the child was returned to the mother three months after proceedings were initiated – Where the mother and child returned to Australia in April 2017 – Where the father returned to Australia 13 months later – Where the father filed a contravention application within two months of his return to Australia – Where that application asserted over one hundred contraventions including the mother failing to provide face to face time when she and the child lived in Australia and the father continued to live in Germany – Where the primary judge adjourned the proceedings and ordered that a family report be prepared – Where the primary judge suspended the father’s contact with the child – Where the father had not seen the child in 19 months – Where the primary judge prohibited the parties from filing any further contravention applications or applications in a case until the matter returned to court – Whether the primary judge erred in failing to deal with the contravention application before the substantive parenting proceedings – Where no substantial injustice was established – Where the father’s grounds of appeal were without merit – Application for leave to appeal dismissed – Appeal dismissed.

  • Lethbridge & Taylor [2019] FamCAFC 34

    28 Feb 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the mother sought to adduce further evidence – Where the evidence which the mother argued was given to the Court at the hearing is that which formed the basis of her application to adduce further evidence in the appeal – CDJ v VAJ (1998) 197 CLR 172 considered – Where the evidence would facilitate the correction of an error – Application allowed.

    FAMILY LAW – APPEAL – PARENTING – Where the mother sought to re-open the parenting proceedings following her compliance with final orders made in 2014 – Where the mother was invited to compile the relevant documents establishing her compliance and hand them to the primary judge’s associate following the hearing – Where the Court record does not reveal those documents ever having been received either as evidence or as part of the correspondence file – Where the mother swears to having supplied the documentation to the primary judge’s associate – Where the primary judge found there was no evidence of the mother’s compliance – Where the primary judge was not satisfied of a sufficient change in circumstances – Rice and Asplund (1979) FLC 90-725 considered – Where it is accepted that the further evidence may have impacted upon the findings made by the primary judge and may have led to different orders – Where error is established – Appeal allowed.


  • Huth & Huth [2019] FamCA 26

    18 Feb 2019

    FAMILY LAW – APPEAL – CONTRAVENTION – Where the appellant failed to appear at the hearing alleging he did not know about the listing and in any event he was unwell and he would not be appearing – Where the appellant had not complied with the orders of this Court – Where Senior Counsel on behalf of the respondent sought that the appeal be dismissed on its merits and in the alternative, that the Amended Notice of Appeal be struck out on the basis that the appellant failed to appear to pursue his appeal and failed to comply with orders – Where the appellant was well aware of the hearing – Amended Notice of Appeal struck out.

    FAMILY LAW – COSTS – Where the respondent seeks her costs thrown away – Where the amount sought is reasonable in the circumstances and less than what the costs would be on a party/party basis – Costs ordered as sought by the respondent in the sum of $5,000.


  • Hsiao & Fazarri [2019] FamCAFC 37

    05 Mar 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made a property settlement order after an undefended hearing – Whether the primary judge failed to properly take into account the appellant’s part ownership of a property and entitlements under a Deed of Gift – Whether the primary judge erred in making findings that did not take into account or give sufficient weight to particular evidence – Whether the primary judge made findings that were flawed, erroneous and contrary to the evidence – Where no error is established.

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the appellant sought leave to adduce further evidence – Where the appellant had an opportunity prior to the trial before the primary judge to file the evidence upon which she sought to rely and deliberately withheld doing so – Where none of the further evidence met any of the admission criteria as prescribed in CDJ v VAJ (1998) 197 CLR 172 – Where the application was refused.


  • Ding & Ding [2019] FamCAFC 35

    28 Feb 2019

    FAMILY LAW – APPEAL – LEGAL PRIVILEGE – Where the trial judge delivered ex tempore reasons upholding the husband’s claim to legal advice privilege in respect of a letter authored by his solicitors – Where the parties held no property in their own names at the date of trial – Where the wife’s application invoked s 106B of the Family Law Act 1975 (Cth) and sought to set aside specified dispositions from the husband to members of his family in April 2010 – Where the wife asserted that the marriage had been unhappy since 2008 – Where the impugned transactions occurred two months after the letter the subject of the trial judge’s privilege ruling was authored – Where the wife alleged that the husband alienated property interests to members of his family in anticipation of proceedings for property settlement – Section 125 of the Evidence Act 1995 (Cth) considered – Where the relevant question before the trial judge was whether privilege was lost through fraud or implied waiver – Where the trial judge expressed his concern that he would be disqualified if he inspected the letter and refused to inspect the letter – Where the trial judge considered it relevant that the document had been in the wife’s possession for a long time – Where the trial judge found the determinative issue to be whether the husband knew of the letter – Where the trial judge failed to consider whether the inspection of the document might illuminate a potentially false answer given by the husband – Where the trial judge took into account irrelevant considerations – Where discretionary error is established – Appeal allowed.

    FAMILY LAW – APPEAL – APPREHENDED BIAS – Where the wife applied for the trial judge to recuse himself on the basis of apprehended bias said to arise from findings made within the privilege reasons for judgment – Where the relevant test is whether a fair minded lay observer might reasonably apprehend that the trial judge might not bring an impartial mind to the determination of the issues to be decided – Where the wife argued that the trial judge made factual findings on the privilege issue pertaining to central factual issues in the s 106B proceedings – British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 considered – Where the trial judge had heard six days of evidence – Where the trial judge expressed qualified findings in the privilege reasons – Where, in the circumstances, the fictional observer could not reasonably reach the conclusion that the trial judge might have closed his mind – Where no error is established in the trial judge’s refusal to recuse himself.


  • Strahan & Strahan [2019] FamCAFC 31

    21 Feb 2019

    FAMILY LAW – APPEAL – ADJOURNMENT – Where the trial judge dismissed the wife’s application for an adjournment of the trial due to commence that day – Where trial dates in the matter had previously been vacated on nine occasions – Where the wife asserted that refusing the adjournment effectively shut her out of the proceedings – Where the wife was not precluded from appearing at the trial by any order made by the trial judge – Where the wife had been on notice for five months that the husband was seeking orders that the trial proceed on an undefended basis in default of the wife’s preparation for trial – Where the wife was not present and only provided instructions for her legal representatives to argue the adjournment application – Where the litigation’s history, impost upon public resources, impact upon other litigants seeking to avail those resources and the need to bring an end to the parties’ financial relationship were all highly relevant – Where such considerations outweighed any injustice to the wife – Leave to appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – Where the trial judge identified the parties’ existing interests in property totalling approximately $48 million – Where the wife alleged that the husband had sent $142 million offshore – Where the trial judge considered the appropriate just and equitable settlement of property by reference to the pre-marriage period, the cohabitation period, the post-cohabitation period and the future – Where the trial judge ordered that the wife retain property and cash totalling about $11.6 million – Where the wife had received about $12 million in partial property settlements and $1.5 million in spousal maintenance during the protracted course of the litigation – Where the wife contended that the trial judge ought to have made interim orders rather than final orders given her absence – Where it is not open to the wife to assert on appeal a substantive issue that was neither raised nor foreshadowed before the trial judge – Where the wife’s remaining grounds of appeal failed to demonstrate any appealable error – Appeal dismissed.

    FAMILY LAW – APPEAL – STAY – Where the trial judge refused the wife’s application for a stay of the substantive property orders pending determination of her appeal – Where the wife did not press the stay appeal – Leave to appeal dismissed.


  • Navarro & Navarro [2019] FamCAFC 32

    21 Feb 2019

    FAMILY LAW – APPEAL – PARENTING – PROCEDURAL FAIRNESS – Where the father’s challenges on appeal were founded on contentions that the trial judge denied him procedural fairness and natural justice – Where the mother conceded the appeal – Where the Court is satisfied that the appealable errors as contended for, including errors of law, were established – Where the trial judge forfeited the advantage of judicial detachment he would otherwise have enjoyed if he had adhered to each of the principles espoused in Michel v The Queen [2010] 1 WLR 879 – Appeal allowed – Costs certificates issued.

  • Lysons & Lysons and Anor [2019] FamCAFC 29

    21 Feb 2019

    FAMILY LAW – APPEAL – CHILDREN – Child’s surname – Whether the primary judge erred by refusing the appellant’s application to change the child’s surname – Whether the primary judge failed to take into account relevant considerations – Where the appellant did not make submissions on those considerations at trial – No error established.

    FAMILY LAW – APPEAL – CHILDREN – Order for baptism – Where the primary judge made an order for the child to be baptised if it is in the view of a priest that it is appropriate for the baptism to occur – Where neither party nor the Independent Children’s Lawyer expressly sought such an order – Whether the prospect of the making of such an order was sufficiently foreshadowed – Procedural unfairness – Appealable error established – Order for baptism set aside.


  • Langley & Tarelli and Anor [2019] FamCAFC 30

    21 Feb 2019

    FAMILY LAW – APPEAL – Appeal against property and parenting orders – Where parties agree the appeal should be allowed – Leave given to appeal against orders for costs – Failure to consider evidence – Approach to re-opening – Error established – Matter remitted for rehearing.

    FAMILY LAW – COSTS – No order as to costs – Costs certificates granted for appeal and rehearing.


  • James & Snipper and Anor [2019] FamCAFC 28

    22 Feb 2019

    FAMILY LAW – APPEAL – COSTS – Where factors under s 117(2A) of the Family Law Act 1975 (Cth) considered – Where the financial circumstances of the parties are unequal – Where the appellant’s conduct in the appeal warrants a cost order – Where appeal wholly unsuccessful – Where the second respondent supported the failed appeal in part – Where the appellant and the second respondent ordered to pay costs on a party/party basis – Where the sum agreed or assessed is to be apportioned between the appellant and the second respondent.

  • Graham & Squibb [2019] FamCAFC 33

    27 Feb 2019

    FAMILY LAW – APPEAL – FINANCIAL AGREEMENT – Where the parties executed an agreement before marriage purporting to deal with their pre-marital assets in the event of separation – Where upon final separation the wife commenced proceedings in the Federal Circuit Court of Australia seeking a declaration that the agreement was binding on the parties – Where the husband sought to have the agreement set aside – Where the primary judge correctly rectified the agreement to reflect its status as a financial agreement under s 90B of the Family Law Act 1975 (Cth) – Where it was open on the evidence for the primary judge to infer the parties’ common intention to execute a binding financial agreement – Where the primary judge was correct to make a declaration that the financial agreement was binding on the parties pursuant to s 90G(1) of the Family Law Act 1975 (Cth) – Where no merit to appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Whether the orders appealed are interlocutory or final – Where determination of the validity and binding nature of a financial agreement is a final order – Where leave to appeal is not necessary.

    FAMILY LAW – APPEAL – COSTS – Where the wife sought indemnity costs or alternatively, costs calculated on a party/party basis – Where factors under s 117(2A) of the Family Law Act 1975 (Cth) considered – Where the wife contended she made a reasonable offer of settlement which the husband imprudently refused – Where appeal wholly unsuccessful – Discussion of principles governing fixing costs – Where the husband ordered to pay the wife’s costs on a party/party basis in a fixed amount.


  • Baldin & Baldin [2019] FamCAFC 19

    07 Feb 2019

    FAMILY LAW – APPEAL – COSTS – Where the appellant has filed nothing in compliance with the orders made to prepare the appeal for hearing – Where the appellant’s oral application to adjourn the hearing of the appeal was dismissed – Where there is no detail which provides a basis for any of the grounds of appeal – Where none of the grounds of appeal have merit – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – Where the subpoenas sought to be issued by the appellant are not relevant to the appeal – Where the other orders sought in the application cannot be made – Application dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the appellant has made clear that he will not pay whatever costs are ordered – Where there should be an order for costs – Costs ordered in the sum sought by the respondent.


  • Yein & Zihao [2019] FamCAFC 20

    15 Feb 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the parties were married for 15 months – Where the real property at the centre of the dispute was in the husband’s sole name – Where the trial judge found that the real property was purchased from funds provided solely by the wife – Where the husband was self-represented at trial – Whether the trial was affected by procedural unfairness – Re F: Litigants in person guidelines (2001) FLC 93-072, discussed – Where the failure to follow the Re F guidelines did not amount to injustice to the husband – Where the circumstances did not require the trial judge to appraise the husband of “the rule in Browne v Dunn” – Whether the trial judge showed apprehended bias – Where the trial judge’s interventions were to understand and clarify the husband’s evidence – Where the trial judge failed to properly consider s 79(2) – Where the failure to consider s 79(2) did not amount to an injustice – Appeal dismissed.

  • Tabb & Tabb [2019] FamCAFC 22

    12 Feb 2019

    FAMILY LAW – APPEAL – PARENTING – Appeal against the dismissal of the father’s application on Rice & Asplund grounds – Whether the primary judge’s conduct during the trial resulted in procedural unfairness to the father – Whether the primary judge erred in determining the substantive proceedings when the matter was only listed for directions – Where the nature of the hearing did not disadvantage the father – Appeal dismissed.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Order made restraining the father from filing any further applications without leave – Where the order was made without notice and without an apparent source of power – Procedural unfairness – Failure to give reasons – Appeal allowed.


  • Stradford & Stradford [2019] FamCAFC 25

    15 Feb 2019

    FAMILY LAW – APPEAL – CONTEMPT – Where the primary judge made a declaration that the husband was in “contempt” of orders made for the provision of full and frank disclosure – Where the primary judge ordered the husband to be sentenced to 12 months’ imprisonment – Where the husband appealed from the declaration and order and the wife supported the husband’s appeal – Where there was no factual foundation or requisite finding which justified any such declaration and order – Where the processes employed by the primary judge were so devoid of procedural fairness, and the reasons for judgment so lacking in engagement with the issues of fact and law to be applied, that to permit the declaration and order for imprisonment to stand would be an affront to justice – Appeal allowed – Costs certificate issued to the husband.

  • Sandwell & Sandwell [2019] FamCAFC 24

    15 Feb 2019

    FAMILY LAW – APPEAL – PARENTING – Change in living arrangements – Single expert report – Father’s psychiatric health – Whether the primary judge erred by relying on assertions of risk of harm posed by the father’s psychiatric health in the single expert report as a basis for changing the older child’s residence – Where the primary judge determined parental responsibility and with whom the children would live based on the children’s strong attachment to the mother, the lack of a risk to them in her care and the desirability of the children living together – No error demonstrated.

    FAMILY LAW – APPEAL – PARENTING – Supervised time – Where the primary judge ordered that the children spend supervised time with the father – Where the primary judge took into account the single expert’s opinion in ordering supervised time – Where any risk posed by the father’s psychiatric health could not be ameliorated by an order for supervision – Error demonstrated – Appeal allowed in part – Order for supervised time set aside – Interim parenting orders made in lieu by consent.


  • Peda & Feaster and Anor [2019] FamCAFC 21

    15 Feb 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the father filed a Notice of Appeal on 2 October 2018 – Where the father failed to file a draft index to the appeal books within the prescribed timeframe – Where the father’s appeal was deemed abandoned – Where the father’s grounds of appeal were largely incomprehensible and misguided – Where there were serious allegations and findings of abuse perpetrated by the father against all members of the family – Consideration of Joshua v Joshua (1997) FLC 92-767 – Where there was no substantial issue to be raised on appeal – Where the father asserted impecuniosity and being self-represented as explanation for delay – Where neither are satisfactory explanations – Where the Court is not satisfied of requirements to grant an application to reinstate – Application dismissed.

  • Kelk & Stehn [2019] FamCAFC 23

    15 Feb 2019

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the appellant complains that she was not afforded procedural fairness or natural justice and the primary judge did not apply the correct principles when dismissing her substantive application – Where the appellant did not comply with the orders of the court but there was confusion about the orders made and the orders were not sent by the court to the appellant’s legal representatives on the record – Where the primary judge had no regard to what the appellant did to ready her case for trial and it was the respondent who had failed to do anything in that regard – Where the primary judge dismissed the appellant’s application without proper notice, without adequate or accurate reasons and without giving her the opportunity to present her case – Where there is merit in the grounds of appeal – Appeal allowed – Matter remitted for rehearing by a judge other than the primary judge.

    FAMILY LAW – EVIDENCE – Further Evidence – Where the only part of the affidavit comprising the further evidence with any relevance to the application for leave to appeal and the appeal is the section detailing the circumstances surrounding the appellant’s non-compliance with the orders of the primary judge – Where the balance of the affidavit was either inadmissible or irrelevant – Where leave to appeal is to be granted and the appeal allowed it is therefore unnecessary to receive any further evidence – Application dismissed.

    FAMILY LAW – COSTS – Where the appellant sought an order for costs if leave was granted and the appeal allowed and in the alternative sought a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1975 (Cth) – Where the respondent opposed an order for costs being made but joined in the application for costs certificates – Where the appeal is being allowed on an error of law and there should be no order for costs – Where it is appropriate for both parties to have costs certificates for the appeal but not for the rehearing given that the hearing of the appellant’s substantive application is yet to take place – Costs certificates granted.