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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.

  • Pollock & Granton [2017] FamCAFC 132

    14 Jul 2017

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

    FAMILY LAW – APPEAL – CHILDREN – Appeal against the primary judge’s exercise of discretion – Where there is no challenge to the primary judge’s statement of law or findings of important facts – Whether the primary judge erred in failing to find that the father’s mental health posed a risk to the child’s wellbeing – Whether the primary judge erred in finding there were no protective concerns for the child in the father’s care – Whether the primary judge erred in failing to give any or sufficient weight to the views of the family consultant –  Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where all parties are in receipt of Legal Aid – No application for orders for costs.

  • Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131

    14 Jul 2017

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

    FAMILY LAW – APPEAL – COSTS – where two appeals were filed in respect of spousal maintenance and final property settlement orders – where the question of costs for the spousal maintenance appeal was reserved until the delivery of orders and reasons in the property settlement appeal – where those orders required each of the parties to file submissions in relation to costs – where applications for costs were made in respect of both appeals – where the wife made an application seeking that the husband pay the costs of both appeals – where the wife sought that no order for costs be made against her by the second to sixth respondents – where the wife sought in the alternative that the husband indemnify her against any costs ordered against her – where the husband sought no order for costs – where the second to sixth respondents made an application that the wife pay their costs – where the success of the spousal maintenance appeal and the parties’ relative financial circumstances justified an order for costs in respect of that appeal – where the wife was wholly unsuccessful in her appeal against the second to sixth respondents – where the wife’s claims on appeal in relation to the second to sixth respondents were not raised at the trial – where those circumstances justified an order for costs against the wife in the property settlement appeal –  where there was no basis to make an order for the husband to indemnify the wife – where the husband resisted the property settlement appeal and should pay the wife’s costs thereof – application for costs in the spousal maintenance appeal allowed against the husband – application by the second to sixth respondents for costs in the property settlement appeal allowed against the wife – application by the wife for costs in the property settlement appeal allowed against the husband.

  • Sandex & Bondir (No 2) [2017] FamCAFC 130

    14 Jul 2017

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

    FAMILY LAW – APPEAL – CHILDREN – Parenting orders – Weight afforded to evidence – Error of discretion – Procedural fairness – Findings open on the evidence – Where the appeal does not raise any question of general principle – Reasons for decision in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Consideration of principles in CDJ v VAJ (1998) 197 CLR 172 – Applications dismissed.

  • Badawi & Badawi [2017] FamCAFC 129

    14 Jul 2017

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

    FAMILY LAW – APPEAL – PROPERTY – Consent orders – Appeal against the primary judge’s dismissal of an application under s 79A(1)(a) of the Family Law Act 1975 (Cth) to set aside consent orders – Distinction between appeals and s 79A applications – Whether the primary judge erred by failing to find the husband lacked the capacity to agree to the consent orders, that relevant evidence had been suppressed or that the husband’s legal representation was the equivalent of no representation at all – No error established – Where consideration of whether there has been a miscarriage of justice arises only if a relevant ground under s 79A(1)(a) has been established – Appeal dismissed.

  • Walters & Carson [2017] FamCAFC 128

    12 Jul 2017

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

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the de facto husband seeks expedition of his application to appeal property settlement, spouse maintenance and child support departure orders – Where the notice of appeal contains 59 grounds and 37 particulars – Where the notice of appeal is oppressive and borders on being an abuse of the court process – Where prejudice would be caused to the respondent if the appeal was expedited – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed – Directions for amended notice of appeal

  • Peck & Peck [2017] FamCAFC 127

    13 Jul 2017

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

    FAMILY LAW – APPEAL – CHILDREN – Where the refusal by the trial judge to allow the appellant father’s legal representative to appear and make submissions on his behalf was a breach of natural justice – Where that breach infects all of the orders made by the trial judge – Where the appeal must be allowed – Where the discretion should be re-exercised – Orders of the trial judge set aside and the proceedings in the lower court adjourned generally with liberty to the parties and the Independent Children’s Lawyer to apply on seven days’ notice.

    FAMILY LAW – COSTS – Where costs orders pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) were granted to the appellant father and the Independent Children’s Lawyer – Where it was incorrect to make an order granting the Independent Children’s Lawyer a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificate order made in favour of the Independent Children’s Lawyer is discharged.

  • Rilak & Tsocas (No. 2) [2017] FamCAFC 126

    12 Jul 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Twelve months after orders sought to be appealed were made – No explanation for lengthy delay in first appeal – Inadequate explanation for lengthy delay in second appeal – No merit in the appeals – Substantial injustice to respondent – Applications dismissed.

  • Calvin & McTier [2017] FamCAFC 125

    12 Jul 2017

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

    FAMILY – LAW APPEAL – PROPERTY – Treatment of property acquired after separation – Where the husband received a substantial inheritance four years after the parties separated – Whether the trial magistrate erred by including the inheritance among the assets to be divided between the parties – Where the court has the power to make an order in relation to after-acquired property – Where the decision to make an order dividing after-acquired property is a matter of discretion – Whether the trial magistrate erred by ordering the husband to give effect to the property orders within 28 days – Whether the parties were afforded procedural fairness – Where the parties were provided with an opportunity to comment on the form of orders before judgment was delivered – No appealable error established – Appeal dismissed – Husband to pay the wife’s costs of the appeal.

  • Paxton & Paxton [2017] FamCAFC 124

    15 May 2017

    FAMILY LAW – APPEAL – CONSENT – where the parties are agreed that the appeal should be allowed – orders made by consent allowing the appeal and setting aside the orders

  • Somers & Collier [2017] FamCAFC 123

    11 Jul 2017

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

    APPEAL – DE FACTO – Where application for declaration of de facto relationship dismissed – Finding of de facto relationship is a jurisdictional fact – Section 90SB of the Family Law Act 1975 (Cth) has no work to do unless de facto relationship established – Not asserted that findings were unavailable on the evidence – Appeal dismissed.

  • Amari & Qureshi [2017] FamCAFC 122

    11 Jul 2017

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

    FAMILY LAW – APPEAL – Final parenting orders – Where the appellant claims a denial of procedural fairness when not provided with an interpreter – Whether the primary judge made errors of fact – Whether the primary judge erred in not making certain findings – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the further evidence is irrelevant or contentious – Application in an appeal partly granted.

    FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Where costs are sought by the Independent Children’s Lawyer – Application for costs dismissed.

  • Tedja & Sony [2017] FamCAFC 121

    10 Jul 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – where the appellant seeks that the appeal judge disqualify himself from further hearing this matter – Where the relevant tests have not been satisfied – Where the appellant has failed to identify what might lead the appeal judge to decide the case on anything but its legal and factual merits – Where the logical connection between the matter and the feared deviation of deciding the case on its merits has not been articulated – Where the appellant has not provided any evidence which demonstrates apprehended bias – Application dismissed.

    FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where many of the appellant’s grounds of appeal are incompetent and others have no relevance to the application before the trial judge – Where none of the grounds of appeal demonstrate error by the trial judge and none of the grounds have merit – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the further evidence sought to be adduced by the appellant does not demonstrate that the order under appeal is erroneous – Application dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks an order for costs on an indemnity basis – Where there is no question that there are circumstances here which would justify an order for costs – Where the appellant has been wholly unsuccessful in the proceedings – Where the financial circumstances of the appellant are clearly superior to those of the respondent – Where even impecuniosity is not a bar to a costs order being made where there are circumstances which otherwise justify an order for costs – Where the circumstances are sufficiently exceptional to warrant costs being assessed on an indemnity basis – Costs ordered in favour of the respondent to be assessed on an indemnity basis in default of agreement.

  • Trang & Kingsley [2017] FamCAFC 120

    06 Jul 2017

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

    FAMILY LAW – APPEAL – where the trial judge determined it would not be just and equitable to alter the property interests of the husband – where the only property capable of identification and valuation was held by the husband – where the wife had failed to make full and frank disclosure of her financial circumstances – where the wife had had access to at least $250,000 in the period immediately prior to and post-separation and failed to make proper disclosure in respect thereof – where the appellant wife contended the trial judge had regard to a document she did not rely upon – where the appellant contended that the trial judge misapprehended her evidence in respect of the husband’s initial contributions – where the appellant contended that the trial judge erred in his treatment of the funds the wife had access to – where no material error demonstrated – appeal dismissed with costs.

  • Searson & Searson [2017] FamCAFC 119

    05 Jul 2017

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

    FAMILY LAW – APPEAL – the rule in Rice & Asplund – where previous consent orders had been made with respect to the parenting arrangements of the children – where the mother subsequently filed an application seeking different final parenting orders – where by that application, the mother sought to relocate herself and the children interstate – where the mother alleged a significant change in circumstances – where the primary judge determined the rule in Rice & Asplund as a preliminary issue – where the primary judge made orders dismissing the mother’s application on the basis that there was no significant change of circumstances – where the primary judge concluded that many of the issues raised by the mother, were raised at the final hearing or could have been raised – where there was no evidentiary foundation for her Honour’s conclusions – where the mother presented a compelling prima facie case that circumstances relevant to co-parenting had changed since the making of the consent orders – appeal allowed – re-exercise of primary judge’s decision.

  • Walker & Page [2017] FamCAFC 118

    14 Jun 2017

    FAMILY LAW – APPEAL – Interlocutory orders appealed – Leave is required to appeal such orders – No leave sought or given – Appeal dismissed

    FAMILY LAW – APPEAL – Application to reinstate appeal – Appeal deemed abandoned due to failure to file a draft Appeal Book Index in time – No adequate explanation for the delay – Notice of Appeal does not disclose appealable error – Application dismissed

  • Ramsey & Ramsey (Costs) [2017] FamCAFC 117

    05 May 2017

    FAMILY LAW – APPEAL – Appeal allowed by consent – Costs certificates issued for rehearing – Circumstances in which costs certificates may be issued under s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) considered. 

  • Ramsey & Ramsey [2017] FamCAFC 116

    03 Feb 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to file Notice of Appeal – Where the applicant wishes to file a Notice of Appeal almost four months out of time – Application of principles in Gallo v Dawson (1990) 93 ALR 479 at 480 –– Where the magnitude of delay is considerable and the reason for it unpersuasive – Where the grounds of appeal argue a lack of reasons –Where an extension of time is granted due to the undoubted merit of the appeal – Application allowed.

    FAMILY LAW – COSTS – Where the applicant conceded in the event the application was successful it would be appropriate that he pay the respondent’s costs – Costs ordered.

  • Tallant & Tallant [2017] FamCAFC 115

    05 Jul 2017

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

    FAMILY LAW – APPEAL – PROPERTY – Where there were two sets of final property settlement orders made by consent between the parties – Where the first orders were by way of property settlement to transfer the husband’s interest in the home to a company and the husband remained liable for the mortgage by way of spousal maintenance – Where neither the husband nor the wife had a legal or beneficial interest in the company – Where the mortgage was refinanced and the first orders required variation – Where the second orders varied the first orders but were not expressed to be paid by way of spousal maintenance – Where the husband subsequently ceased paying the mortgage on the matrimonial home – Where the wife sought to enforce the second orders and the husband sought to have them discharged – Whether the relevant orders should be classified as property settlement or spousal maintenance orders – Whether the second orders are valid – Whether there was any property of the parties such that valid orders for property settlement could be made – Where there was no evidence of the wife retaining an equitable interest – Where the second orders could not be property settlement orders – Where the second orders were a continuation of the husband’s spousal maintenance obligations – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the wife sought to adduce further evidence of the husband’s involvement with the preparation of the second orders to support her argument that the second orders were property orders – Where there was a notation on the coversheet of the second orders which the wife contended supported her argument – Where a notation is not an order – Where the further evidence is not probative of the question whether the orders were property settlement or maintenance orders – Application dismissed.

  • Waldon & Kipley [2017] FamCAFC 114

    09 May 2017

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Appellant challenging a costs order and an order dismissing his application for the primary judge to “review” his own order – Alleged lack of procedural fairness – No error established – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Appellant wholly unsuccessful – Appellant to pay costs.


  • Van Housen & Analka [2017] FamCAFC 113

    28 Jun 2017

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

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks expedition of her application to appeal an order dismissing the mother’s relocation application – Whether  the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

  • XYZ Pty Ltd and Anor & Charisteas & Ors; ABC Pty Ltd & Charisteas and Ors [2017] FamCAFC 112

    30 Jun 2017

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

    FAMILY LAW – APPEAL – Two appeals – Cross Appeal – Appeal against dismissal of recusal application – Apprehended bias – Waiver of right to object – Where the primary judge found that the fictional bystander would not apprehend bias – Appeal against interim injunctions against third parties – Where the third-party was not a party to the proceedings – Whether the third party was afforded procedural fairness – Notice requirement to non-parties when making injunctions –– Appeal against dismissal of recusal application dismissed – Appeal as to interim orders allowed in part – Where the Full Court will re-exercise.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Application for leave largely unsuccessful.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Application granted by consent.

    FAMILY LAW – APPEAL – COSTS – Where the appeal and cross-appeal is largely or wholly unsuccessful – Costs ordered in favour of respondent and apportioned between various parties.

  • Arthur & Secretary, Department of Family & Community Services and Anor [2017] FamCAFC 111

    29 Jun 2017

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

    FAMILY LAW – APPEAL – CHILD ABDUCTION – HAGUE CONVENTION – Wrongful removal – Where the primary judge ordered the return of the child to New Zealand subject to conditions – Where the mother appealed the return order – Whether the primary judge erred in finding that the father had and was exercising rights of custody at the time of the child’s removal – Whether the primary judge erred in finding there was no grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation – Whether the primary judge erred in finding that the father had not consented to the relocation of the child to Australia — Where the Full Court found no merit in any ground of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – CHILD ABDUCTION – HAGUE CONVENTION – Conditions to return – Where the primary judge imposed conditions on the return of the child – Where the father appealed certain conditions on the basis that he could not fulfil them – Where a failure to fulfil the conditions would lead to the child not being returned to the country of habitual residence – Where the Full Court held that the primary judge erred in failing to consider the father’s capacity to satisfy the conditions – Appeal allowed – Particular conditions set aside.

  • Proctor & Proctor [2017] FamCAFC 110

    29 Jun 2017

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

    FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – With whom a child spends time – Siblings separated – Mother given sole parental responsibility of youngest child – Father restrained from approaching and communicating with the youngest child – Primary judge’s decision within the proper exercise of discretion – No error established – Appeal dismissed – No order as to costs.

    FAMILY LAW – APPEAL – First instance judgment – Language and length of reasons considered – While the length, complexity and repetitiveness of the judgment came very close to obscuring the reasons, it was ultimately possible to discern the central ratio – No appealable error established.

  • Garvey & Metcalfe [2017] FamCAFC 109

    23 Jun 2017

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Appeal allowed by consent – Discretion of the primary judge re-exercised.


  • Pendleton & Pendleton [2017] FamCAFC 108

    20 Jun 2017

    FAMILY LAW – APPEAL – PROPERTY – SECTION 79A – Whether the primary judge erred in varying consent orders – Where the husband had undisclosed assets and received undisclosed payments – Where the primary judge engaged with the legal representatives on the question of how the case was to be conducted should he find that the husband had suppressed evidence – Where the judge made orders without hearing further from the husband – Where the husband was not accorded procedural fairness in the conduct of the s 79A proceeding and should have been given an opportunity to put further evidence and submissions before the court after his Honour found there had been a miscarriage of justice – Where, having found there was such a miscarriage of justice, his Honour should have considered the relevant provisions of s 79 of the Act before requiring the husband to pay an additional $300,000 by way of variation of the consent orders – Where the magnitude of the change to the orders required that the consent orders be set aside and not varied – Where the husband’s obligation to make disclosure did not extend so far as to require him to explain the meaning of documents to the wife – Appeal allowed.

    FAMILY LAW – COSTS – COSTS CERTIFICATES – Where it is appropriate to order a rehearing because of an error of law – Where a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) should be granted to both parties for the appeal and the rehearing.

  • Walton & Walton and Anor [2017] FamCAFC 107

    15 Jun 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Application for an extension of time to file a Notice of Appeal – Where there is an explanation for the delay in filing – Where the proposed appeal is arguable – Application allowed. 

  • Jabbar & Gade [2017] FamCAFC 106

    07 Jun 2017

    FAMILY LAW – APPEAL – Four appeals – Appeals against interim parenting orders and s 68B injunctions –Appeal against dismissal of contravention application – Where the appellant mother seeks a re-exercise of discretion and interim parenting orders – Whether the primary judge placed inappropriate weight on an untested expert report – Whether the primary judge afforded the mother procedural fairness – Risk of harm – Whether the primary judge appropriately balanced the risk of psychological and physical harm posed by the mother with the children’s relationships and stated views – Appeals dismissed. 

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the further evidence is said to be “helpful” – Where the evidence does not assist in determining error in the orders under appeal – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs from the appellant – Where the ICL seeks costs from the appellant – Where the appeals have been wholly unsuccessful – Where impecuniosity is no barrier to a costs order – Where costs can be met from the appellant’s property settlement – Applications for costs granted.

  • Strahan & PP Lawyers (Form of Orders) [2017] FamCAFC 105

    06 Jun 2017

    FAMILY LAW – APPEAL – ORDERS – Further orders to give effect to the reasons of Full Court – Appellant failed to comply with various orders – Orders proposed by respondent not appropriate – Appellant granted further time to comply with orders – In the event appellant fails to comply with these orders, the appeal will be dismissed.

    FAMILY LAW – APPEAL – COSTS – Costs of first instance proceedings – Appellant failed to file submissions – Respondent seeks leave to file affidavit in support of submissions – Leave to file affidavit granted – Costs decision further reserved.

    FAMILY LAW – APPEAL – COSTS – Costs of appeal – Timetable for making of submissions concerning costs of appeal varied.

  • Huda & Huda and Anor (Costs) [2017] FamCAFC 104

    02 Jun 2017

    FAMILY LAW – APPEAL – COSTS – Where the wife filed an application in an appeal to restrain the husband’s solicitors – Where that application was dismissed – Where orders were made for each of the parties to file submissions in relation to costs – Where the husband sought costs against the wife and/or her solicitors on an indemnity basis – Where the husband did not file a Costs Agreement in accordance with the Family Law Rules 2004 (Cth) – Where the wife’s initial application to restrain the solicitors, although unsuccessful, was not unreasonable – Where the financial circumstances of the wife are such that an order for costs would not be appropriate – Whether the wife’s solicitors acted improperly or unreasonably – Where the conduct of the solicitors was not such to warrant a costs order – Application for costs is dismissed.

  • Bakal & Kapicic (Appeal) [2017] FamCAFC 102

    08 Jun 2017

    FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Appeal against orders providing child live with the father and spend time with the mother – Allegations of family violence, bias on behalf of the Family Consultant and lack of procedural fairness – No error established – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Appeal against property settlement dividing modest asset pool 75/25 in favour of the mother – Adequate reasons given by the trial judge – Trial judge did not err in making adjustments under s 75(2) – No error established – Appeal dismissed.

    FAMILY LAW – APPEAL – Application to adduce further evidence – Evidence would not have demonstrated error on the part of the trial judge – Application dismissed.

  • Pawley & Pawley [2017] FamCAFC 103

    02 Jun 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite a cross-appeal against interim parenting orders – Where the mother seeks to expedite an appeal against a dismissal of a stay application – Where the nature of appeal justified priority to the detriment of other cases – Application granted.

  • Whitby & Zeller and Anor [2017] FamCAFC 101

    01 Jun 2017

    FAMILY LAW – APPEAL – CHILDREN – Interim orders – Where the mother appeals against the primary judge’s refusal to replace the Independent Children’s Lawyer (“ICL”) – Where the evidence and submissions put to the primary judge by the mother did not make a case as to why the ICL should be replaced – No error established on the part of the primary judge – Where the mother appeals against an order restraining her from leaving Australia – Injunction properly made under s 114(3) of the Family Law Act 1975 (Cth) – Where injunction necessary to ensure mother’s compliance with orders – Where injunction made in the best interests of the child – Mother afforded procedural fairness in the making of the order – Primary judge’s reasons adequate – No error established – Appeal dismissed – No order as to costs. 

  • Millwood & Millwood (Costs) [2017] FamCAFC 100

    01 Jun 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the mother seeks her costs of an application brought by the father and concluded by consent orders –  Where the consent orders included orders allowing the appeal and setting aside final parenting orders but did not include interim orders to govern the father’s time with the child until the remitted proceedings are reheard – Where it is controversial as to whether the parties reached an agreement as to interim orders – Where an application by the father to set aside or amend the consent orders was resolved by the agreement of the parties – Where the mother seeks her costs of that application – Financial circumstances of the parties – Conduct of the proceedings – Whether the father was wholly unsuccessful in the proceedings – Application dismissed – Parties to bear their own costs of the application. 

  • Harrison & Ward and Anor [2017] FamCAFC 99

    30 May 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the applicant seeks an extension of time within which to file a notice of appeal – where the foreshadowed appeal seeks to challenge two orders made by the primary judge – where other orders made by the primary judge are already the subject of challenge in two extant appeals – where the material in respect of the extant appeal is the same as the material which would be required to consider this appeal – where the extant appeals are already listed – where an extension of time is granted – where the extension of time is conditional upon the applicant paying a sum into court – where directions are made to ready the appeal for hearing with the extant appeals. 

  • Hadesty & Beaven [2017] FamCAFC 98

    26 May 2017

    FAMILY COURT – APPEAL – CHILDREN – Where most of the appellant’s grounds of appeal are irrelevant, without substance or any basis in fact or law, or comprise a combination of general assertions and evidence – Where no question of general principle is raised and the reasons will be given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Where no appealable error by the trial judge is established – Where the appeal has no merit – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent and the Independent Children’s Lawyer seek orders for costs – Where the appellant opposes any such orders on the basis of his financial circumstances – Where there are circumstances which justify orders for costs being made – Where the appellant has been wholly unsuccessful in the appeal – Where it is readily apparent that there was never a reasonable chance of the appeal succeeding – Costs ordered in favour of the respondent and the Independent Children’s Lawyer.

  • Malloy and Ors & Stopford Malloy [2017] FamCAFC 97

    22 Feb 2017

    FAMILY LAW – APPEAL – Leave to appeal – Whether applications for leave to appeal are to be heard at the same time as the proposed appeal – Both to be heard at the same time.

  • Bagheri & Goudarzi and Anor [2017] FamCAFC 96

    23 May 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the husband to dismiss wife’s appeal – Appeal commenced by wife who subsequently became bankrupt – Appeal stayed upon bankruptcy – Election of trustee to prosecute or discontinue action – Action deemed abandoned if the trustee fails to make an election after 28 days – Section 60 of Bankruptcy Act 1966 (Cth) – Mere knowledge of the action is not notice – Minimum requirements of notice – Application in an Appeal dismissed.

  • SCVG & KLD and Anor [2017] FamCAFC 95

    24 May 2017

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

    FAMILY LAW – APPEAL – CHILD SUPPORT – Application for leave to appeal against decision of a Federal Circuit Court judge affirming a decision of the Social Security Appeals Tribunal to amend the appellant’s adjusted taxable income for the purposes of a child support assessment – Proposed appeal discloses no error of law – The appellant had himself provided the evidence on which the Tribunal’s decision was based and the decision was not illogical, irrational or unreasonable – Procedural fairness does not extend to giving notice of a conclusion open on the known material – The Tribunal does not have a general obligation to make investigations on behalf of a party –Application for leave to appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where indemnity costs were awarded for 50 per cent of the respondent’s costs in parenting proceedings – An appellate court will not interfere with such an order unless the result is plainly unjust or the primary judge’s discretion was exercised on wrong principles – Failure to comply with rule 19.08(3) did not invalidate the costs order – No error established – Appeal dismissed.

    FAMILY LAW – APPEAL – Applications to adduce further evidence and to extend time in which to appeal – No merit in the applications – Applications all dismissed save for one that was discontinued after the hearing of the appeal.

    FAMILY LAW – APPEAL – COSTS – Appellant wholly unsuccessful – Appellant to pay the first and second respondent’s costs to be assessed, if not agreed.  

  • Needham & Trustees of the Bankrupt Estate of Needham [2017] FamCAFC 94

    23 May 2017

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

    FAMILY LAW – APPEAL – PROPERTY – Where the husband and wife were separated for over seventeen years at the time of the trial – Where the husband was declared bankrupt and the Trustees became the respondents in the property proceedings pursuant to s 79(11) of the Family Law Act 1975 (Cth) – Where the contributions prior to separation were found to be equal – Where apart from assets acquired by the wife post separation, the only asset was the matrimonial home – Where the wife was the sole carer of the children post-separation and solely responsible for the upkeep of the matrimonial home and expenses for the children, save for the school fees which were paid by the husband – Where the trial judge ordered that the matrimonial home be sold and 68 per cent less the sum of $12,555 be paid to the wife and 32 per cent plus the sum $12,555 be paid to the trustees – Where these orders included property acquired by the wife post-separation – Whether the trial judge properly assessed the wife’s post separation contributions and gave adequate reasons – Where the trial judge erred in assessing the wife’s post separation contributions – Where it is not possible to ascertain how the trial judge arrived at the figures ordered – Whether it was just and equitable for the trial judge to include the wife’s post-separation acquired assets in the property pool – Where it was not correct in the circumstances of this case to give the Trustees a share of the wife’s post-separation assets – Whether the trial judge erred in not considering whether the husband had additional assets and whether the trustees had a duty of disclosure to make further enquiries – Where the trial judge did not err and it is sufficient if all reasonable enquiries are made taking into account the particular circumstances, and the need for proportionality – Whether the adjustment for the wife’s future needs was appropriate and whether the overall outcome was just and equitable – Where the percentage was inadequate and does not properly reflect the wife’s contributions post separation and future needs – Appeal allowed – Re-exercise of discretion in favour of the wife.

    FAMILY LAW – APPEAL – COSTS CERTIFICATES – Costs certificates granted. 

  • Knox & Knox [2017] FamCAFC 93

    18 May 2017

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

    FAMILY LAW – APPEAL – JURISDICTION – where the father applied to the Federal Circuit Court for a copy of the transcript of completed parenting proceedings – where the application was refused – where the father appeals that determination – where the Full Court does not have jurisdiction to determine the appeal – where the orders the subject of appeal were not made in the “exercise of original jurisdiction” under the Family Law Act 1975 (Cth) – where appeal dismissed.