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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.

  • Ferreday & Layh [2019] FamCAFC 98

    13 Jun 2019

    FAMILY LAW – APPEAL – PARENTING – Whether the primary judge erred in rejecting the father’s claim of sexual abuse – Where the father has not identified any compelling inferences or evidence that warrants the appellate court to interfere with the findings of the primary judge – Where the orders proposed by the father were premised on the finding of sexual abuse for which he unsuccessfully contended – Whether various injunctions should not have been made – Where the father contends that the injunctions prevent him from monitoring the child in light of  alleged sexual abuse – Where the allegations of assault and abuse were not substantiated – Challenges fail.

    FAMILY LAW – APPEAL – PROPERTY – Superannuation splitting order – Where the father would have preferred to receive a larger portion of the non-superannuation property and give up part of his pension entitlement by way of a splitting order – Where the father did not engage with property proceedings – Where a party cannot complain that a judge failed to consider a particular course when it was not put before the judge – Challenge fails.

    FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where it is just in all the circumstances that the father pay the costs of the ICL and the mother.

  • Herford & Berke [2019] FamCAFC 99

    11 Jun 2019

    FAMILY LAW – APPEAL – ADJOURNMENT – Where the appellant seeks an order on appeal that the subject declaration made by a Federal Circuit Court of Australia Judge, as to the non-existence of a de facto relationship as at the relevant date to enliven jurisdiction, be set aside – Where, if this appeal is heard by a single judge, that would entail a single judge effectively offering a second opinion on the same or similar facts as were considered by the trial judge – Where it is inappropriate for the appeal to be heard by a single judge – Where the matter is adjourned to be heard by a bench of three judges – Appeal adjourned.

  • Deodes & Deodes and Ors [2019] FamCAFC 97

    11 Jun 2019

    FAMILY LAW – APPEAL – PROPERTY – Where at the time of the parties’ marriage the husband transferred ownership of a residential property to his sister and brother in law – Where the husband and the transferees gave evidence that the transfer was for good consideration – Where the wife sought a declaration that the property was held on trust for the husband – Where the trial Magistrate dismissed the application – Where the relevant findings of fact were open on the evidence at trial – Where those findings of fact could lead only to the conclusion reached – Appeal dismissed.

  • Markes & Markes (No. 2) [2019] FamCAFC 96

    06 Jun 2019

    FAMILY LAW – APPEAL – PARENTING – Contravention of parenting orders – Adequacy of reasons for declaration made – Serious nature of the matter and the consequent need for sufficient reasons – Whether transcript revealed sufficient reasons – Where leave to appeal was not required – Appeal allowed.

  • Whitcomb & Whitcomb [2019] FamCAFC 66

    16 Apr 2019

    FAMILY LAW – APPEAL – Application for costs of two discontinued applications in two appeals – Conduct of the parties – Consideration of relevant matters under s 117 of the Family Law Act 1975 (Cth) – Husband ordered to pay the wife’s costs of the discontinued applications – Costs as assessed on a party/party basis.

  • Peake & Cousins (No. 2) [2019] FamCAFC 95

    04 Jun 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript by the Court – Where the Court may, in its exercise of discretion, agree to provide transcripts of relevant parts of evidence for use in an appeal – Where such discretion is only exercised in exceptional cases – Where Sampson & Hartnett (Provisions of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 is considered – Where the appellant mother seeks that the Court carry the cost of providing the full transcript because of “financial stress” – Where the respondent agrees to the application in part – Where the Court considers the necessity of all or part of the transcript – Where the Court orders the Regional Appeal Registrar to procure and provide the parties with transcript of the first and third day of the hearing before the trial judge – Application otherwise dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Where the trial judge made two sets of orders to determine applications and the appellant mistakenly only appealed from one set of orders – Where the appellant seeks an extension of time to appeal from the second set of orders – Where the appellant seeks to consolidate appeals relating to the orders and use the appeal books already filed in the existing appeal – Where the respondent agrees to the application in part – Where leave is granted for the appellant mother to appeal out of time, but only in relation to particular orders – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the mother seeks leave to adduce fresh evidence in the existing appeal and to incorporate that evidence in a supplementary appeal book – Where the respondent opposes the application – Where the appellant seeks to adduce evidence relating to former proceedings and the respondent’s lack of credibility – Where the proposed evidence has no probative value – Where the Full Court only looks to whether there was error by the trial judge – Where the proposed evidence does not assist to vindicate the appellant’s appeal point that the trial judge conducted the proceedings unfairly by depriving her the opportunity to rely on that evidence – Application to adduce further evidence dismissed.

  • Franklin & Ennis [2019] FamCAFC 91

    05 Jun 2019

    FAMILY LAW – APPEAL – PROPERTY – De Facto relationship –– Adequacy of reasons – Whether orders inconsistent with findings of fact – Appeal conceded –Where failure to give full and frank disclosure of documents connected to beneficial ownership of a private family company needed to be evaluated by reference to what was known about the company – Myriad of contributions made by the appellant over significant period –Lack of regard to financial positions of parties and future financial prospects – Appeal allowed – Orders varied by consent – Respondent to pay additional $125,000.

    FAMILY LAW – APPEAL – COSTS – Where both parties applied for costs certificates – Appellant entitled to a costs certificate – Application for costs certificate by respondent refused.

  • Elliston & Dennell [2019] FamCAFC 90

    04 Jun 2019

    FAMILY LAW – APPEAL – DE FACTO PROPERTY – Appeal from orders made under Part VIIIAB of the Family Law Act 1975 (Cth) – Where the primary judge assessed the appellant’s contribution at 20 per cent – Where the primary judge determined it was not just and equitable to make any property settlement order as the appellant had already received cash approximating 22 per cent of the net assets, consisting of de facto spousal maintenance and partial property settlement – Where the appellant contended the primary judge erred in assessing the parties’ contributions – Where the primary judge correctly adopted a two-pool approach – Where there is no error demonstrated by the primary judge in applying s 90SF of the Family Law Act 1975 (Cth) – Where there is no error of principle by the primary judge in ordering the appellant to pay one-half of the single expert’s fees – Where the primary judge erred in treating the appellant’s receipt of interim de facto spousal maintenance as her proportional entitlement – Where the appeal succeeds on the basis of the primary judge’s erroneous treatment of the interim de facto spousal maintenance and failure to make a property settlement order – No orders as to costs – Appeal allowed.

    FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – DE FACTO PROPERTY SETTLEMENT – Where appeal successful – Where both parties sought that the Full Court re-exercise discretion and make substitute orders – Where neither party adduced further evidence – Where the Full Court determined the parties’ assets and liabilities based on evidence before and the findings of the primary judge – Where it is just and equitable for the parties’ property interests to be adjusted under s 90SM(3) of the Family Law Act 1975 (Cth) – Where the Full Court considers factors under ss 90SM(4) and 90SF of the Family Law Act 1975 (Cth) – Where the Full Court determines the non-superannuation assets should be divided in proportions of 90 per cent to the respondent and 10 per cent to the appellant – Where the orders made by the primary judge are set aside – Where all former orders requiring the payment of de facto spousal maintenance are discharged – Where the Full Court orders the respondent to pay a fixed amount to the appellant or, in default, a percentage of the net proceeds of the sale of a parcel of real property.

  • Elias & Elias (No. 2) [2019] FamCAFC 92

    06 Jun 2019

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs of the appeal on an indemnity basis – Where the appellant submits that no order for costs should be made – Where the parties’ forwarded documents to the Court at will and contrary to the directions of the Court – Where neither party is in a good financial position – Where the respondent made a written offer to settle the appeal and for each party to bear their own costs of the appeal and cross-appeal two working days before the appeal was heard – Appeal was wholly unsuccessful – Respondent to pay the appellant’s costs – Order for costs limited to the appeal itself and each party to bear their own costs of the costs application – Where the costs are not able to be fixed because the respondent has not provided the Court with a schedule of costs – Costs to be agreed, and if they cannot be agreed, they are to be assessed on a party and party basis.

  • Duarte and Anor & Morse [2019] FamCAFC 93

    06 Jun 2019

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – APPLICATION IN AN APPEAL – Where the appellant sought leave to rely on a truncated version of her summary of argument – Where leave was granted – Where the Amended Notice of Appeal is filed jointly by the appellant mother and her partner as the second appellant – Whether the second appellant has standing – Where the Full Court ruled the second appellant has standing on appeal only for particular orders made by the trial judge.

    FAMILY LAW – APPEAL – PARENTING – Bias – Apprehended bias – Ostensible bias – Prejudgment – Where direct and even robust questioning does not point to apprehended bias without more – Where evidentiary rulings contrary to the submissions of the appellant do not establish prejudgment – No evidence of partiality – Grounds of appeal asserting bias fail.

    FAMILY LAW – APPEAL – PARENTING – EVIDENCE – Whether Division 12A of Part VII of the Family Law Act 1975 (Cth) is constitutionally invalid – Where the appellant submits that s 62G and s 69ZX of the Family Law Act 1975 (Cth) grant the Court an inquisitorial role which is inconsistent with the nature of judicial power and is contrary to the constitutional right to due process – Where provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) give the Court extensive case management powers which are entirely consistent with the exercise of judicial power – Grounds of appeal fail.

    FAMILY LAW – APPEAL – PARENTING – Risk of harm – Unacceptable risk of harm to children – Hearsay – Whether statements containing evidence of the second appellant’s alleged assaults should have been admitted into evidence – Where s 69ZV(2) of the Family Law Act 1975 (Cth) applies and the statement of a child is not inadmissible – Where statements of adult witnesses are inadmissible pursuant to provisions of the Evidence Act 1995 (Cth) – Interpretation of s 69ZV of the Family Law Act 1975 (Cth) – Where statements of witnesses were incorrectly admitted into evidence – Where the error does not vitiate the finding of unacceptable risk based on the admissible evidence – Grounds of appeal fail.

    FAMILY LAW – APPEAL – PARENTING – Where the appellant’s challenges to findings of fact are not sufficient to establish error – Where the appellant must establish that findings of fact were demonstrably wrong by reference to “incontrovertible facts or uncontested testimony” or were “glaringly improbable” or “contrary to compelling inferences” – Asserted errors, even if established, were not material – Grounds of appeal fail.

    FAMILY LAW – APPEAL – PARENTING – Parenting orders – Best interests – Where the mother asserts that s 60CA and s 60CC of the Family Law Act 1975 (Cth) are unconstitutional because they confer on the Court a non-judicial function – Determining a child’s best interests – Where the mandatory list of factors to be taken into account by a court does not mean that the court is exercising executive as opposed to judicial power – Where courts are guided in the exercise of their judicial power by having regard to principles set out in legislation or by the common law – Ground of appeal is misconceived.

    FAMILY LAW – APPEAL – PARENTING – Parenting orders – Risk assessment – Welfare and/or protective orders – Whether conducting a risk assessment is within the jurisdiction of the Court – Operation of s 69ZH of the Family Law Act 1975 (Cth) – Where the trial judge must conduct an assessment of the risk of harm to which a child may be subject if orders are proposed that they live with or spend time with the person alleged to be the source of harm – Grounds of appeal fail – Where the Full Court amend the trial judge’s orders pursuant to s 94(2) of the Family Law Act 1975 (Cth) and r 17.02(e) of the Family Law Rules 2004 (Cth).

    FAMILY LAW – APPEAL – PARENTING – Parenting orders – Injunctions – Procedural fairness – Whether the injunctions made are invalid because they interfere with contractual relationships – Principle of autonomy – Wide powers of the Family Law Act 1975 (Cth) and the need to act in the best interests of the children – Grounds of appeal fail.

    FAMILY LAW – APPEAL – PARENTING – Parenting orders – Common law or “naturalistic” parenting rights – Principle of legality – Rules of statutory construction – Court will not interpret legislation as abrogating fundamental rights or freedoms – Where the mother asserts that she has a “parental right” – Where the concept of “parental rights” and the related concepts of guardianship and custody were abandoned in favour of “parental responsibility” and a shift to centring the rights of children – Grounds of appeal fail.

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Whether the trial judge erred in making a declaration of trust and dismissing the appellant’s equitable defences to the declaration – Consideration of the principles of the presumption of advancement – Where the errors established cannot be rectified by any re-exercise of discretion because the declaration of trust underpinned the subsequent property adjustment orders made between the spouses – Where the property settlement appeal is successful in part – No feasible alternative but to remit the Part VIII of the Family Law Act 1975 (Cth) dispute for re-trial.

    FAMILY LAW – APPEAL – PARENTING AND PROPERTY – COSTS – Where the parenting appeal was wholly unsuccessful – Where the appellant was successful in the property appeal but most of the grounds relied on by her failed – Where factors under s 117(2A) of the Family Law Act 1975 (Cth) are considered – Where the legal costs relating to the parenting appeal would exceed the legal costs relating to the property appeal – Appellants to bear the costs of the parenting appeal – Appellants to pay two-thirds of the respondents costs – Where the appellant sought costs certificates under s 8 and s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where consideration of costs certificates do not arise because a cost order is made.

  • Collingridge & Aiolfi [2019] FamCAFC 88

    28 May 2019

    FAMILY LAW – APPEAL – INTERIM ORDER – Spousal maintenance – De Facto relationship – Inconsistent findings – Whether findings available – Adequacy of reasons – Earning capacity – Appeal allowed – Error established as to the reasons for awarding $1,000 – Discretion re-exercised – Where it was found that the respondent cannot support herself adequately – Respondent’s reasonable needs assessed to be $617 per week – Where the appellant has the capacity to meet those needs – Order made that the appellant pay interim spousal maintenance in the amount of $617 per week – Order varied.

    FAMILY LAW – APPEAL – LEAVE – Leave to appeal interim order required – Where the decision of the primary judge is attended to by sufficient doubt to warrant reconsideration – Where a substantial injustice would result if leave to appeal were refused – Leave to appeal granted.

  • Sanders & Taro [2019] FamCAFC 86

    23 May 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother filed an application for expedition of her appeal from interim parenting orders when the matter is listed for trial commencing on 24 June 2019 – where disputed issues of fact can only be resolved at trial rather than on appeal – application of r 12.10A(2) of the Family Law Rules 2004 (Cth) – where the mother delayed the bringing of her expedition application for four months – where there is no basis made out by the mother for this appeal to be given expedition at the expense of other appeals awaiting hearing – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISPENSE WITH TRANSCRIPT – Where the trial of the matter will precede the appeal hearing – where there may be a lack of any utility in an appeal from the interim orders to be heard after the trial has taken place – where the application for dispensation with transcript need not be dealt with pending the outcome of the trial– Application adjourned

  • Keshari & Ludhani [2019] FamCAFC 79

    10 May 2019

    FAMILY LAW – APPLICATIONS IN AN APPEAL – FURTHER EVIDENCE – Where none of the further evidence sought to be adduced satisfies the requirements of CDJ v VAJ (1998) 197 CLR 172 – Where much of the further evidence is inadmissible, either because of its form, or its lack of relevance – Applications dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the facts relied on by the applicant are substantially the same as the grounds of appeal – Where the grounds of appeal are incompetent and/or incomprehensible – Where there is no merit in any of the grounds of appeal – Where there is no basis to grant leave to appeal – Application for leave to appeal and, if necessary, the appeal be dismissed.

  • Jolaha & Hanas [2019] FamCAFC 81

    13 May 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Expedition – Where the appellant seeks expedition for the hearing of an appeal of interim parenting orders in respect of a child who is less than two years of age – Where in the ordinary course, if the parties prepare the appeal in a timely way there is currently no delay in having an appeal heard – Where there are no relevant significant circumstances in this case that would justify the displacement of other appeals – Where the Application in an Appeal seeking expedition is dismissed – Where procedural orders shall be made to enable the appeal to be heard in the sittings commencing 12 August 2019.

  • Gholke & Gholke [2019] FamCAFC 64

    16 Apr 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME TO FILE NOTICE OF APPEAL – Where the evidence as to why the applicant did not file within time is not challenged by the respondent – Where it cannot be said that there is no chance of success on appeal – Where even if there is the remotest chance of success that is sufficient to allow the appeal to proceed – Where the prejudice suffered by either party depending on the result tends to balance itself out – Where the justice of the case requires that the application be allowed – Time to file a Notice of Appeal extended.

  • Genesalio & Genesalio [2019] FamCAFC 85

    24 May 2019

    FAMILY LAW – APPLICATION IN A CASE – APPOINTMENT OF CASE GUARDIAN – Where the appellant’s brother seeks an order that he be appointed as the appellant’s Case Guardian – Where the application is made in the appeal proceedings and any order made can necessarily only be for the purposes of those proceedings – Where there is no dispute that the appellant’s brother is the manager of the affairs of the appellant and he consents to be appointed as Case Guardian – Where the issues raised by the respondent are whether the appellant has a disability that requires a Case Guardian, whether his brother has an adverse interest in the case and whether the brother can “fairly and competently” conduct the case for the appellant – Where the appellant has a disability which prevents him from adequately conducting the appeal proceedings and he requires a Case Guardian from that perspective – Where nothing was put to this Court to demonstrate that the appellant’s brother has an adverse interest to the appellant in the appeal proceedings and rule 6.09(b) of the Family Law Rules 2004 (Cth) is satisfied – Where the appellant’s brother can fairly and competently conduct the appeal proceedings for the husband – Appellant’s brother appointed as his Case Guardian but limited to the appeal proceedings.

  • Frederick & Frederick [2019] FamCAFC 87

    28 May 2019

    FAMILY LAW – APPEAL – EVIDENCE – Whether the primary judge erred by giving no weight to the husband’s evidence about the current values of certain assets identified in the parties’ binding financial agreement – Where the evidence was relevant and admissible – Whether the primary judge should have accepted the husband’s evidence despite the fact that evidence capable of being given greater weight could have been called – Error demonstrated.

    FAMILY LAW – APPEAL – PROPERTY – Binding financial agreement – Whether the primary judge erred in his assessment of hardship pursuant to s 90K(1)(d) of the Family Law Act 1975 (Cth) – Where there were changed circumstances relating to the care of a child – Where the assessment required a comparison between the position of the child and the person with caring responsibility for her if the agreement is set aside with the position if the agreement remains in place – Where that preliminary assessment required the primary judge to give some weight to the husband’s evidence about the current values of certain assets – Error demonstrated – Appeal allowed – Orders of the primary judge set aside.

    FAMILY LAW – APPEAL – PROPERTY – Binding financial agreement – Hardship – Caring responsibility for child – Whether the primary judge erroneously took into account the fact that the wife had not sought a child support assessment and the possibility of the wife seeking spousal maintenance – Whether the primary judge erroneously took into account the “relative care responsibilities” of the parties – Error demonstrated – Where there is merit in the appeal – Appeal allowed.

    FAMILY LAW – APPEAL – PROPERTY – Binding financial agreement – Construction – Whether the parties were bound by the values ascribed to certain assets in a schedule to the binding financial agreement or whether the wife had the onus of adducing evidence of the value of the assets at the time the agreement was signed – Where this argument was not raised at trial – Where an objective construction of the schedule suggests that the parties intended to be bound by the values set out in it – Estoppel by convention.

  • Acharya & Bhatt [2019] FamCAFC 83

    20 May 2019

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISMISSAL – Where the appellant has failed to comply with an order for security for costs in relation to an appeal, failed to take procedural steps to prosecute the appeal and has failed to appear at the hearing – Where the requirements of r 22.45 of the Family Law Rules 2004 (Cth) have been satisfied – Appeal dismissed with no order as to costs.

  • Zieth & Yim [2019] FamCAFC 75

    30 Apr 2019

    FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the appellant determined to withdraw his appeal partway through the hearing – Where the mother incurred significant costs in opposing the appeal – Where there are exceptional circumstances which allow for the costs ordered to be calculated on an indemnity basis – Where the appeal had no utility, was doomed to fail and should have been discontinued – Costs ordered on an indemnity basis.

  • Milen & Milen [2019] FamCAFC 80

    13 May 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the grounds of appeal are misconceived and the summary of argument does not assist – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks her costs on an indemnity basis – Orders made for the filing of submissions.

  • Markes & Markes [2019] FamCAFC 84

    17 May 2019

    FAMILY LAW – APPEAL – REVIEW ORDER OF APPEAL REGISTRAR – Where the respondent confirms he will be taking no part in the appeal and does not object to the application brought by the applicant nor the orders sought by her – Where the applicant takes issue with certain transcript and a judgment being included in the appeal books – Where prima facie the judgment does not appear to be relevant to the appeal and the transcript certainly does not – Where it is appropriate that the Full Court be made aware of this issue and decide what should happen after hearing submissions from the applicant’s counsel – Orders made by the Appeal Registrar discharged – Question of costs reserved to the Full Court.

  • Chau & Cao [2019] FamCAFC 82

    14 May 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal was deemed abandoned because the applicant’s solicitors failed to file the draft appeal index within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Where the applicant seeks the reinstatement of her appeal – Application allowed – Applicant to pay the respondent’s costs of the application in a fixed sum.

  • Sandex & Bondir [2019] FamCAFC 71

    24 Apr 2019

    FAMILY LAW – APPEAL – Where three of the four grounds of appeal are misconceived and have no merit – Where there is no error by the primary judge as alleged in the other ground of appeal – Appeal dismissed.

  • Sadasivam & Seshan [2019] FamCAFC 76

    01 May 2019

    FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – Overseas Travel – Where the destination is not a signatory to the Hague Convention – Where the primary judge made orders in March 2019 temporarily suspending both an interim injunction restraining the child’s removal from Australia and an interim airport watch list order, which orders were made in September 2017 – Where the mother’s application to suspend the interim orders was made on the mistaken basis that the interim orders were still operable and survived the final consent orders made in August 2018 – Where the final consent orders conferred equal shared parental responsibility for the child upon the parties and did not preserve the interim injunction and interim airport watch list order – Where the father is concerned the mother is a flight risk and she will not return to Australia with the child – Where the appeal succeeds for reasons unrelated to the grounds of appeal – Where the grounds of appeal are considered but were misconceived – Where the appealed orders were made pursuant to errors of law – Where no material deprivation of procedural fairness – Where factual findings made by the primary judge were open on the evidence – Where there is no valid application to remit for re-hearing – Where an order made to dismiss the mother’s application – Where no option but for the appeal to succeed and the orders set aside – Where a single judge of the Full Court declares all interim orders made prior to the final consent orders concerning the child are discharged – Where the party seeking to travel with the child outside Australia will need to file fresh proceedings if the parties cannot reach agreement in exercise of their equal shared parental responsibility.

    FAMILY LAW – COSTS – Where appeal successful – Where the appeal succeeds on questions of law unrelated to the pleaded grounds of appeal – Where the parties sought costs certificates – Where the grounds of appeal were misconceived and the appellant’s costs needlessly incurred – Where the respondent was only represented on the day of the appeal and had no prior costs to recoup – Where no valid application to remit for rehearing – Where grant of costs certificates refused.

  • Probert & Probert and Ors [2019] FamCAFC 67

    24 Apr 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT OF THE APPEAL – Where the husband failed to file appeal books in compliance with procedural orders and his appeal was deemed abandoned – Where there was an adequate explanation proffered for the failure to comply with orders – Where the appeal is devoid of all merit and it would be futile to allow it to proceed – Application dismissed.

    FAMILY LAW – CROSS-APPEAL – Where two of the three grounds of appeal were misconceived in that the errors alleged were not in fact errors made by the Magistrate – Where matters raised by the cross-appellants in challenging findings made by the Magistrate were not put to the Magistrate and thus it is not open to raise these matters on appeal – Where the Magistrate took into account the matters complained of by the cross-appellants and no error is demonstrated – Where there is no merit in any of the grounds of appeal – Cross-appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO ADDUCE FURTHER EVIDENCE IN THE CROSS APPEAL – Where it is not demonstrated how the admission of this further evidence would render the orders under appeal “erroneous” or “lead to a different result” – Application dismissed.

    FAMILY LAW – COSTS – Where the husband did not seek costs in the event that the cross-appeal was dismissed – No order as to costs.

  • Jabour & Jabour [2019] FamCAFC 78

    10 May 2019

    FAMILY LAW – APPEAL – PROPERTY – Contribution-based entitlements – Initial contributions – Where equal contributions made over a long period of time – Where property to be divided was rezoned and increased in value – Approach to the apportionment of the increase in value of the assets initially contributed discussed – Where the initial purchase of the property was a springboard for what occurred subsequently – Where increase in value of property through rezoning did not favour one party over the other – Weight to be attached to initial contribution to be assessed against rubric of all contributions made by the parties – Post-separation contributions – The weight afforded to a number of post-separation contributions – Procedural fairness – Appeal allowed – Orders set aside – Re-exercise – Where the primary judge assessed the husband’s contributions at 66 per cent – On re-exercise husband’s contributions assessed at 53 per cent.

    FAMILY LAW – COSTS – Husband to pay wife’s costs.

  • Rodelgo & Blaine [2019] FamCAFC 73

    26 Apr 2019

    FAMILY LAW – APPEAL – PARENTING – Where the trial judge conducted a discrete trial, as a separate issue or matter within the meaning of Division 12A of Part VII of the Family Law Act 1975 (Cth), of the issue as to whether the children were at risk of harm from either parent – Where the experts in the case were not cross-examined at trial pursuant to directions made by the trial judge – Where the trial judge made findings of fact following the conclusion of the trial and sought submissions from the parties as to the utility of any further hearing, or whether the Court should proceed to make final orders – Where the Independent Children’s Lawyer and the mother sought that the trial judge make final parenting orders – Where the father opposed the making of final orders and sought a further hearing – Where the trial judge made final parenting orders – Where no substantial injustice was occasioned to the father in the procedures the trial judge adopted – Where there was otherwise no substance in the complaints raised by the father on appeal – Appeal dismissed – No order as to costs.

  • Trebiano & Trebiano (No. 2) [2019] FamCAFC 72

    26 Apr 2019

    FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly successful –  Where the appeal succeeded on a point of law – Where the appeal was allowed and the matter was remitted for hearing – Where the circumstances justify a different order to the general principle that each party bears its own costs – Where the appellant has not provided the Court with a schedule of costs – Financial circumstances of the parties – Where the respondent is to pay the appellant’s costs of the appeal as agreed or in default of agreement as assessed – Where the cost order made by the Court precludes the appellant from receiving a Costs Certificate – Where it is not appropriate for the Court to grant costs certificates to the parties under s 6 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).

  • Adair & Adair [2019] FamCAFC 70

    29 Apr 2019

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made property settlement orders providing for three parcels of real property exclusively held by the husband to be transferred to the wife – Where the three parcels of real property were the parties’ only alienable assets – Where the appellant husband was unable to demonstrate he was not afforded procedural fairness – Where various findings made by the primary judge were open on the evidence – Where the primary judge gave sufficient reasons for the findings made – Where the Full Court considers admissibility of evidence under the Evidence Act 1995 (Cth) and the Family Law Act 1975 (Cth) – Where the primary judge’s consideration of findings made by another judge in relation to family violence was valid – Where the primary judge made no discretionary error in applying Kennon & Kennon (1997) FLC 92-757 to property settlement orders – Where the primary judge’s adjustments made pursuant to ss 75(2) and 79(4) of the Family Law Act 1975 (Cth) were just and equitable – Where no appealable error established – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where no merit in appeal – Where the appellant abandoned grounds of appeal before or during the appeal – Where the remaining grounds of appeal were wholly unsuccessful – Where the appellant is ordered to pay the respondent’s costs of and incidental to the appeal in a fixed amount.

  • Acland & Grohl [2019] FamCAFC 69

    12 Apr 2019

    FAMILY LAW – APPEAL – COSTS – Appeal discontinued – Where the respondent seeks an order for the payment of her costs on an indemnity basis – Where the appellant asserts that the costs should be assessed on a party and party basis – Where the appeal was doomed to fail – Where the appeal was based on a fundamentally flawed premise – Where the appellant imprudently refused an offer of settlement – Order made for the appellant to pay the respondent’s costs on an indemnity basis – Fixed costs.

  • Selkirk & Selkirk [2019] FamCAFC 63

    10 Apr 2019

    FAMILY LAW – PARENTING – APPEAL – Interim – Where the appellant asserts that the primary judge erred by not admitting certain evidence and relying upon irrelevant considerations – Whether the primary judge properly considered ss 65DAA(1) and (5) – Whether the orders are substantial and significant time pursuant to s 65DAA(3) –Where the appeal is allowed by consent in part but is otherwise dismissed – The appellant to pay the respondent’s costs.

  • Feiteiro & Feiteiro [2019] FamCAFC 49

    21 Mar 2019

    FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where the appellant’s grounds of appeal are incompetent and do not identify any appealable error by the trial judge – Where the appeal is doomed to fail and should be dismissed to relieve this Court of the burden of wasting time in relation to an action which has no chance of success – Appeal dismissed.

    FAMILY LAW – COSTS – Where there are circumstances which justify an order for costs being made – Where the respondent has been completely successful in her application for summary dismissal – Where the financial circumstances of the appellant are not such as would prevent an order for costs being made – Costs ordered in the sum sought by the respondent.

  • Dobey & Shey [2019] FamCAFC 68

    24 Apr 2019

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time in which to file a Notice of Appeal – Where procedural irregularities – Where appeal concerns recusal – Where appeal raises matters which go to the administration of justice – Where the applicant should not be disadvantaged by mistakes made by his representative – Extension of time granted.

    FAMILY LAW – APPLICATION IN AN APPEAL – CONSOLIDATION – Where in the event that an extension of time is granted to file a Notice of Appeal the applicant seeks an order that this appeal be heard concurrently with all other appeals in this matter – Appeals consolidated.