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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.

  • D Pty Ltd and Ors & Sadler and Ors (Costs) [2016] FamCAFC 273

    23 Dec 2016

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

    FAMILY LAW – APPEAL – COSTS – Where the appellant companies seek their costs of the appeal – Financial circumstances of the parties – Conduct of the parties to the proceedings – Whether the first respondent wife was wholly unsuccessful – Where the appellants rely on offers of settlement made to the wife – Where one purported offer of settlement cannot properly be regarded as such – Application for costs dismissed – Where it would not be appropriate to issue certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to either party.

  • COG15 & Child Support Registrar and Anor [2016] FamCAFC 272

    22 Dec 2016

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

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the appeal from the Social Security Appeals Tribunal to the Federal Circuit Court of Australia was filed before the commencement of the Tribunals Amalgamation Act 2015 (Cth) but heard and determined afterwards – Where ss 110B and 110F of the Child Support (Registration and Collection Act) 1988 (Cth) thus applied as though they were not repealed (s 7(2)(e) Acts Interpretation Act 1901 (Cth)) and the Family Court of Australia had jurisdiction to hear the appeal – Where the appellant’s claim that he was denied procedural fairness lacks substance – Where the appellant was afforded a reasonable opportunity to present his case – Where it was open to the trial judge to find that the appeal book provided by the first respondent comprised copies of all of the documents before the Social Security Appeals Tribunal – Where the trial judge addressed these documents at length and clarified with the appellant where they were referred to in the reasons for judgment of the Social Security Appeals Tribunal – Where the court is satisfied these documents were before the Social Security Appeals Tribunal – Where it was not established that the trial judge failed to have regard to these documents – Where a financial impact resulting from court orders does not by itself justify a grant of leave to appeal – Where the view expressed by one judge when hearing a security for costs application cannot bind another who subsequently hears and determines the appeal – Where the appellant’s claim of bias was not distinctly made and clearly proved – Where it is not open to the appellant to suggest that the trial judge determined the matter without having read the reasons for judgment of the Social Security Appeals Tribunal – Where the appellant’s complaints comprise bare assertions and are devoid of detail or substance – Where the grounds of appeal failed to demonstrate any error of law – Where there is no error of principle or substantial injustice – Application for leave to appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the first respondent sought their costs in the event leave to appeal was not granted – Where the appellant was wholly unsuccessful – Where financial impecuniosity is not a bar to an order for costs where such order is otherwise justified – Costs ordered in favour of first respondent. 

  • Welch & Abney [2016] FamCAFC 271

    22 Dec 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 wife’s non-commutable and contingent pension for total and permanent disability (“TPD pension”) received as component of her occupational superannuation – Where primary judge adopted as the present value of the TPD pension the capitalised amount calculated pursuant to s 90MT(2) of the Act but made no splitting order – Whether primary judge failed to properly consider the evidence of the single expert as to the different nature of the TPD pension from normal superannuation interests – Where primary judge failed to take account of taxation upon the TPD pension and failed to take account of contingencies – Where primary judge failed to recognise the contribution of the wife if the TPD pension was treated as having the value of the capitalised amount – Where orders made were not just and equitable – Appeal allowed – Proceedings remitted for re-hearing.

  • Maine & Maine [2016] FamCAFC 270

    22 Dec 2016

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

    FAMILY LAW – APPEAL – PROPERTY – appeal against orders for property settlement made 11 years after the parties finally separated – where the trial judge considered issues arising from an agreement between the parties – where the trial judge was required to consider whether it was just and equitable to make an order pursuant to s 79(2) – where the trial judge was then required to consider what order should be made pursuant to s 79(4), including the respective contributions of the parties before, during and after the marriage – where the trial judge’s reasons strongly suggest a conflation of s 79(2) and s 79(4) – where the trial judge failed to consider the parties’ contributions during the 11-year post separation period – where the trial judge erred in his Honour’s assessment of the direct and indirect financial contributions of the parties – where the trial judge was required to make findings in respect of evidence that addressed specifically the impact that the violence in the relationship had upon the wife’s contributions, as outlined in Kennon v Kennon (1997) FLC 92-757 – appealable error established – appeal allowed – matter remitted  for rehearing – costs certificates granted.

  • Loomis & ML Lawyer [2016] FamCAFC 269

    22 Dec 2016

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

    FAMILY LAW – APPEAL – SINGLE JUDGE APPEAL – COSTS – where the appeal was dismissed – where the respondent solicitors seek an order for costs – where the appellant father was wholly unsuccessful – where an offer and counter offer were made between the parties – conduct of the parties – financial circumstances – where the circumstances of the case justify an order for costs – where the appellant father ordered to pay the costs of the respondent solicitors fixed in the sum of $9,000.

  • Gaynor & Barnsley [2016] FamCAFC 268

    21 Dec 2016

    FAMILY LAW – APPEAL – CHILDREN – Interim parenting orders for a baby – Where the parties proposed consent orders in relation to the disposition of the appeal – Denial of procedural fairness – Where trial reasons were inadequate – Appeal allowed – Orders set aside – Where proposed interim parenting orders were in the best interest of the child.  

  • Brick & Brick [2016] FamCAFC 267

    20 Dec 2016

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the father for an extension of time to file an Amended Notice of Appeal and Summary of Argument – Application allowed.

    FAMILY LAW – APPEAL – CHILDREN – Where the orders made by the trial judge provided that the mother have sole parental responsibility and the father may not communicate or see the children unless at their instigation or invitation – Where the mother must facilitate any request by the children to spend time or communicate with the father – Where the father appeals on the basis that the trial judge should have made orders for equal shared parental responsibility and should not have restricted his communication with the children – Where the children previously spent time with the father – Where the mother suspended the children’s time with the father because of allegations made by the father’s step-child – Where the father was charged and acquitted of all charges – Where the father argued the trial judge made errors of fact in finding the parents could not communicate – Where there is no error by the trial judge and where the father misunderstands the nature of an order for equal shared parental responsibility – Where the father argued the trial judge failed to have regard to relevant evidence such as his proposals for weekend time and that the children attend counselling – Where the father argued the children gave conflicting views about their desire to see him and that he did not breach an order by communicating with the children in a language other than English – Where there is no merit in the appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where the mother sought costs – Where in the circumstances of this case an order for costs is not justified – No order as to costs.
  • Penman & Felton [2016] FamCAFC 266

    14 Dec 2016

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – 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 the respondent opposes reinstatement – Where the applicant provided an adequate explanation for the delay – Where the applicant is a self-represented litigant and has applied for a review of the decision of Legal Aid NSW to refuse his application for legal aid – Where the serious subject matter of the appeal weighs in favour of reinstatement – Appeal reinstated.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks that the applicant pay her costs of the application – Where circumstances giving rise to the application were caused by the applicant’s failure to comply with rules – Applicant to pay respondent’s costs fixed at $3,000.
  • Marsh & Marsh [2016] FamCAFC 265

    19 Sep 2016

    FAMILY LAW – APPEAL – application for leave to appeal out of time against interim parenting orders – where no merit or utility in the proposal appeal – application dismissed.

  • Molloy & Molloy [2016] FamCAFC 264

    14 Dec 2016

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – 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 the respondent opposes reinstatement – Where the failure to file the draft appeal index within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Where the applicant provided an adequate explanation for the delay – Appeal reinstated.

    FAMILY LAW – COSTS – Where the respondent seeks that the applicant or the applicant’s solicitors pay his costs of the application for reinstatement – Where the circumstances giving rise to the application for reinstatement are the sole responsibility of the solicitors acting on behalf of the applicant – Where there are justifying circumstances for an order for costs to be paid by the applicant’s solicitors – Applicant’s solicitors to pay respondent’s costs fixed at $2,500.
  • Barclay & Paton [2016] FamCAFC 263

    13 Dec 2016

    FAMILY LAW – APPEAL – APPLICATION TO LEAD FURTHER EVIDENCE – Where the respondent seeks leave to adduce further evidence – Where the evidence sought to be led relates to complaints that the respondent has that are not raised in the appeal before the court – Where the respondent has not filed a cross-appeal and there is no utility in the further evidence sought to be led being admitted – Application dismissed.

    FAMILY LAW – APPEAL – ORAL APPLICATION TO ADJOURN – Where the respondent seeks to adjourn the hearing of the appeal to file a Notice of Cross-Appeal – Where the respondent asserts that as she is without legal representation and she was not fully aware of what was required in relation to a cross-appeal – Where having heard the submissions of the parties in relation to the appeal the initial view is that the appeal should be allowed – Where an adjournment would cause significant prejudice to the appellant who should be allowed to enjoy the fruits of a successful appeal and what he thought was to be a correct order made by the trial judge in finalisation of the property settlement dispute between the parties – Where the complaints that the respondent would want to raise on a cross-appeal do not appear to have a reasonable chance of success – Where it is still open to the respondent to make application for an extension of time to file her own appeal – Application dismissed.
  • Jopson & Lilwall (No. 2) [2016] FamCAFC 262

    09 Dec 2016

    FAMILY LAW – APPEAL – CHILDREN – where the trial judge made interim parenting orders for the father to spend unsupervised time with the child during a period of four months – where the mother applied for a stay of those orders and for the trial judge to recuse herself – where those applications were dismissed – where the mother appeals those orders – where there are allegations of family violence and risk to the child – where the mother asserts procedural unfairness, prejudgment of the issues for determination and failure of the trial judge to determine the best interests of the child – where no appealable error established – appeal dismissed – each party to bear their own costs.  

  • May & Longley and Anor (Costs) [2016] FamCAFC 261

    09 Dec 2016

    FAMILY LAW – APPEAL – COSTS – Where the respondents seek their costs on an indemnity basis with such costs to be paid by the appellant and/or the appellant’s lawyers – Where there are circumstances justifying an order for costs against the appellant but not against her lawyers – Where although there is no evidence that the proceedings were commenced or continued for an ulterior purpose, or with disregard of any proper consideration of the prospects of success, it is still incumbent on a legal practitioner to provide fearless advice to the client as to the prospects of success – Where there are exceptional circumstances enlivening the discretion to award indemnity costs – Where the appeal and the amended application in an appeal were doomed to fail from the outset – Where the appeal lacked utility given the child the subject of the appeal was aged 17 years at the time of the filing of the Amended Notice of Appeal and the hearing of the appeal – Where the respondents should not have to bear any of their legal costs incurred in responding to the appeal and the amended application in an appeal – Where the charges specified in the costs agreements before the court are not unreasonable relative to the family law costs scale – Costs ordered in favour of the respondents to be calculated on an indemnity basis.  

  • Woden & Silver (Costs) [2016] FamCAFC 260

    06 Dec 2016

    FAMILY LAW – APPLICATION FOR COSTS OF DISCONTINUED APPEAL – Where the wife required leave to file her application – Where leave to file application was granted – Where the wife sought costs consequent upon the husband filing a notice of discontinuance of appeal – Where circumstances favoured orders be made for costs in favour of the wife – Where the husband repeatedly failed to comply with rules and orders in respect of the process of the appeal – Where the issues agitated in the husband’s notice of appeal were issues that had been resolved by the trial judge – Whether the wife’s conduct at first instance operated as a discretionary factor militating against an order for costs being made in her favour – Where the husband was ordered to pay the wife’s costs of the appeal in a fixed sum.  

  • Webster & Webster [2016] FamCAFC 259

    10 Nov 2016

    FAMILY LAW – APPEAL – COSTS – Where the appeal was dismissed after the parties reached an agreement during the hearing of the appeal – Where the respondent seeks her costs of the appeal on the basis that the appeal was dismissed – Where the respondent could have made relevant concessions earlier – No order as to costs.  

  • Hutcheson & Meli [2016] FamCAFC 258

    07 Dec 2016

    FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – Where orders were made permitting the mother to relocate the child’s residence to the United Kingdom – Where the trial judge found that the mother would suffer serious psychological detriment if she were required to remain in Australia – Where the father asserts that there was no evidentiary basis for the trial judge’s findings – Where the trial judge was stating the conclusion of her evaluation of the evidence – Where the evaluation of evidence and the weight attributed to it is a matter for the trial judge –Where decisions in children’s matters will invariably involve a measure of prediction about the future – Where it was open for the trial judge to reach such a conclusion – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the father conceded that if the appeal failed he could not argue against the mother’s application for costs – Costs ordered.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where there was an application for dismissal of the appeal and an application for extension of time before the Court – Where orders on the applications were made on the hearing of the appeal and costs of the applications were reserved – Where both applications resulted from the father’s solicitor’s default in failing to file the summary of argument in accordance with the procedural orders – Where the summary of argument was not filed until the morning of the appeal despite numerous communications from the Appeals Registrar about the issue – Where it is appropriate that an order for costs be made personally against the father’s solicitor – Whether an order for indemnity costs is warranted – Where costs on an indemnity basis are awarded only in exceptional cases – Where the solicitor’s default is not such as to warrant a departure from the usual rule that costs are ordered on a party/party basis – Costs ordered against the father’s solicitor personally.

  • Horner & Horner [2016] FamCAFC 257

    28 Nov 2016

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to reinstate appeal which was deemed abandoned pursuant to r 22.2(1) of the Family Law Rules 2004 (Cth) (“the Rules”) – Where there is some explanation for the delay and the appeal may have some merit – Where the father must file and serve his appeal books by a fixed date or the appeal will be dismissed – The issue of costs to be reserved to the Full court – Application allowed.  

  • Chancellor & McCoy [2016] FamCAFC 256

    02 Dec 2016

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – De facto – Appeal against an order dismissing an application for property settlement on the basis that it was not just and equitable to make an order adjusting property interests – The trial judge did not hold the parties to a “higher or different standard than other de facto couples” – The trial judge did not err by misapplying Stanford v Stanford (2012) 247 CLR 108 and Fielding and Nichol [2014] FCWA 77 – The trial judge did not fail to give adequate consideration to the factors in s 90SM(4)(b) to (e) – An error of fact made by the trial judge was not material – The result was not manifestly unjust – The trial judge did not err in finding that the parties had agreed to keep their financial affairs separate – Appeal dismissed – Order for the appellant to pay the respondent’s costs.  

  • Masters & Cheyne [2016] FamCAFC 255

    02 Dec 2016

    FAMILY LAW – APPEAL – CHILD SUPPORT – Binding child support agreement – Setting aside a binding child support agreement – Apprehension of bias and pre-judgment – Distinction between bias or pre-judgment and testing the parties’ propositions – Exceptional circumstances – Hardship – Discussion of setting aside and termination of child support agreements under the Child Support (Assessment) Act 1989 (Cth) – Whether a change in the living arrangements of the child alone can amount to exceptional circumstances – Where the primary judge was in error in finding hardship, where that hardship flowed not from the changed circumstances but from the agreement itself – Where the primary judge erred in her exercise of discretion under s 136(2)(d) of the Child Support (Assessment) Act 1989 (Cth) in setting aside the binding child support agreement – Appeal allowed.

    FAMILY LAW – APPEAL – COSTS – Where error established – Where the appellant and respondent are self-represented – Where the appellant will receive a windfall as a result of her success in the appeal – No order as to costs.

  • Hart & Sellwood [2016] FamCAFC 254

    02 Dec 2016

    FAMILY LAW – APPEAL – JURSIDICTION – Where order pursuant to s 11F of the Family Law Act 1975 (Cth) that the parents and child attend upon a family consultant for assessment – Whether s 11F order is a “decree” capable of appeal – Whether leave to appeal is required – Whether s 11F order a “child welfare matter” as defined in reg 15A(2) of the Family Law Regulations 1984 (Cth) – Consideration of reg 15A(2)(c) of the Regulations and s 61B of the Act – Where s 11F order is an order in relation to an aspect of parental responsibility – Leave to appeal not required.

    FAMILY LAW – APPEAL – CHILDREN – Where final parenting orders made six months before respondent commenced fresh proceedings – Where threshold Rice and Asplund (1979) FLC 90-725 issue to be determined as a discrete hearing - Whether the primary judge erred in making the s 11F order without considering best interests of the child – Where the primary judge erred in failing have regard to evidence relevant to the exercise of that discretion – Appeal allowed – Order set aside – Proceedings remitted for rehearing.

    FAMILY LAW – COSTS – Respondent to pay appellant’s costs.

  • Ainsley & Lake [2016] FamCAFC 253

    24 Nov 2016

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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

    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.