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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.

  • Badawi & Badawi (Costs) [2017] FamCAFC 196

    18 Sep 2017

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

    FAMILY LAW – APPEAL – COSTS – Where the wife seeks her costs of the husband’s unsuccessful appeal – Financial circumstances of the parties – Conduct of the proceedings – Where the inclusion of irrelevant documents in the appeal books may be a relevant consideration as to whether to make an order for costs – Where the appeal was wholly unsuccessful – Where the wife made two offers of settlement prior to the hearing of the appeal – Where it is appropriate that the husband pay the wife’s costs of the appeal – Whether those costs should be assessed on an indemnity basis – Where the circumstances do not justify an order for indemnity costs – Husband to pay the wife’s costs of the appeal as agreed or as assessed on a party and party basis.

  • Manotis & Manotis and Ors (Security for Costs) [2017] FamCAFC 191

    15 Sep 2017

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

    FAMILY LAW – APPEAL – SECURITY FOR COSTS – A respondent in an appeal seeks security for costs against the appellant – Delay in making the application – Appeal is bona fide and cannot be said to be without possible merit – Court not satisfied the appellant has the means to meet payment for costs as sought – An order for security would therefore likely stifle the appeal and be oppressive – Application dismissed.

  • Goudarzi & Bagheri (No. 2) [2017] FamCAFC 190

    15 Sep 2017

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

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Contested evidence about the value of real property – Whether the wife was denied procedural fairness and should have been granted an adjournment due to late filing of evidence by the husband – Whether the primary judge’s discretion erred in assessing the contributions of the parties – Treatment of paid legal fees – Husband’s retirement pension excluded from the property pool – Approach to pension in payment phase discussed – Proper form of orders where property is to be sold – Where orders did not give effect to intention of the primary judge as to appropriate outcome – Whether errors vitiate the judgment  – Appeal allowed in part – Whether proceedings should be remitted – Where no application to adduce further evidence is before the court – Where the wife had ample notice that the husband sought that the Full Court re-exercise on the basis of findings by primary judge – Re-exercise of discretion – Error as to treatment of paid legal expenses rectified – Orders for sale of property varied to reflect percentage distribution of the parties’ property.

    FAMILY LAW – APPEAL – COSTS – Where the appeal has been successful in part – Orders made to allow the parties to make submissions on costs.

  • Cuan & Kostelac [2017] FamCAFC 188

    12 Sep 2017

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

    FAMILY LAW – APPEAL – DECLARATION OF DE FACTO RELATIONSHIP – Appeal from declaration of a de facto relationship pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) – Where the appellant challenges findings made by the primary judge pursuant to s 4AA(2) of the Act – Where the findings made by the primary judge were open on the evidence before him – Whether the primary judge erred in finding that hardship was established pursuant to s 44(6) of the Act – Whether the primary judge erred in finding that s 90SB(c) of the Act was satisfied – Whether delay in the delivery of reasons for judgment led to the primary judge failing to give adequate reasons or making unsafe findings – No appealable error established – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.

  • Bega & Secretary, Attorney-General’s Department as Commonwealth Central Authority [2017] FamCAFC 183

    01 Sep 2017

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

    FAMILY LAW – APPEAL – HAGUE CONVENTION – orders made for the return of the children to the Netherlands – where the mother had sole rights of custody at the date of removal – where the father was granted rights of custody after the children were retained in Australia and pursuant to orders made in a Dutch court – where the primary judge found that the children were habitually resident in the Netherlands at the date of wrongful retention – where the primary judge found that there was no grave risk arising from the children’s return to the Netherlands – where no error could be discerned from the primary judge’s approach – appeal dismissed.

    FAMILY LAW – COSTS – where no order for costs was sought by the Central Authority – order made that the parties bear their own costs of and incidental to the appeal.


  • Ralton & Ralton [2017] FamCAFC 182

    07 Sep 2017

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

    FAMILY LAW – APPEAL – CHILDREN – With whom the children live – Application of domestic and international human rights law under the Family Law Act 1975 (Cth) – Procedural fairness – Bias – Weight attributed to the evidence – Where there is no merit in any of the grounds of appeal – Appeal dismissed – Mother to pay the father’s costs of the appeal.

    FAMILY LAW – APPEAL – COSTS – Where the mother sought to appeal a costs order relating to an unsuccessful stay application – Where the grounds of appeal are not competent – Appeal dismissed.

    APPEAL – APPLICATION IN AN APPEAL – Further evidence – Evidence of events which have occurred after the orders appealed from were made – Improperly obtained evidence – Evidence which was available to the mother at the time of the hearing before the primary judge – Consideration of principles in CDJ v VAJ (1998) 197 CLR 172 – Application dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to issue subpoenas – Subpoenas not an appropriate procedure for an appeal – Application dismissed.

  • Kelton & Brady and Anor [2017] FamCAFC 186

    07 Sep 2017

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

    FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – where the husband issued a subpoena to the accountant of a discretionary trust – where a notice of objection was filed objecting to part of that subpoena – where the primary judge set aside that part of the subpoena on the basis of “relevance” and “fishing” – whether the primary judge erred in failing to find that the requested documents were “apparently relevant” – whether the primary judge failed to refer to all of the evidence germane to the determination of apparent relevance – whether the primary judge provided adequate reasons – where the relevance of the documents sought to be adduced would be marginal at best – where the applicant failed to identify any discretionary error – application for leave to appeal refused.

  • Healey & Osbourne [2017] FamCAFC 185

    07 Sep 2017

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

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time in which to file a Notice of Appeal – Where the proposed appeal is from interim parenting orders – Where there is not a satisfactory explanation for the delay in filing the Notice of Appeal – Where the proposed grounds of appeal have low prospects of success – Where the father proposes to adduce further evidence on the appeal if the appeal goes ahead – Where the evidence is unlikely to be received by the Full Court in light of the principles in CDJ v VAJ (1998) 197 CLR 172 – Application dismissed – Father to pay the mother’s costs of the application.

  • Hou & Ying [2017] FamCAFC 184

    01 Sep 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 in which to file a Notice of Appeal – Where the husband seeks to appeal from interim orders made 18 months prior to the filing of the Notice of Appeal – Where there is no explanation for the delay – Where the husband seeks to rely on evidence that was not before the primary judge at the time of the hearing – Where the matter is listed for final hearing in four months – Where the appeal has poor prospects of success – Application dismissed – Husband to pay the wife’s costs of the application.

  • Peake & Cousins [2017] FamCAFC 181

    06 Sep 2017

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

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT DEPARTURE – ENFORCEMENT – Where the applicant seeks leave to appeal orders discharging all previous departure orders providing for the payment of financial support for the children and orders for enforcement – Where the facts in support of the application are inadequate and it is necessary to consider the proposed grounds of appeal to determine if leave should be granted – Where although there is a denial of procedural fairness the circumstances are such that an order for a new trial would be futile – Where the other proposed ground is incompetent – Where there is no merit in either of the proposed grounds of appeal – Application for leave to appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent did not appear at the hearing and no application for costs has been made – Pursuant to r 22.53 of the Family Law Rules 2004 (Cth) the respondent has 28 days in which to file an application for any legal costs incurred.


  • Bernieres and Anor & Dhopal and Anor [2017] FamCAFC 180

    01 Sep 2017

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

    FAMILY LAW – APPEAL – CHILDREN – PARENTAGE – Where the child of the relationship was born as a result of a surrogacy arrangement – Where the appellants complain that the primary judge failed to make declarations of parentage in relation to the child as sought by them and to grant leave to apply for a step-parent adoption – Where the appellants submit that it was open to the Court to apply s 69VA of the Family Law Act 1975 (Cth) – Where s 69VA of the Family Law Act 1975 (Cth) is not available here, s 60HB of the Family Law Act 1975 (Cth) covers the field and s 60H of the Family Law Act 1975 (Cth) does not apply – Where the unfortunate result of that conclusion is that the parentage of the child is in doubt – Where there is no question here that the father is the biological father of the child but that does not translate into him being a parent for the purposes of the Family Law Act 1975 (Cth) – Where the mother is not the biological mother and is even less likely to be the “legal parent” – Where in the alternative the appellants sought a declaration pursuant to s 67ZC of the Family Law Act 1975 (Cth) – Where s 67ZC of the Family Law Act 1975 (Cth) does not apply – Where it is alleged by the appellants that the primary judge failed to address their application for leave to apply for a step-parent adoption pursuant to s 60G of the Family Law Act 1975 (Cth) – Where the transcript shows differently – Where it was only necessary for the primary judge to address s 60G of the Family Law Act 1975 (Cth) if there was a declaration of parentage in favour of the second appellant but not in favour of the first appellant – Where the primary judge did not make a declaration in favour of either party and thus on the appellants’ own case the primary judge was not obliged to address the application pursuant to s 60G of the Family Law Act 1975 (Cth) – Where the primary judge did not address s 60G of the Family Law Act 1975 (Cth) in his reasons for judgment but given there was no basis to make an order under that section a lack of reasons specifying that should not result in the appeal being allowed – Where there is no merit in the grounds of appeal – Appeal dismissed.

  • Shedden & Coyle [2017] FamCAFC 179

    01 Sep 2017

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

    FAMILY LAW – APPEAL – PARENTING – Where the appellant sought orders that the children spend equal time with the parties and there be a change of schooling at the commencement of the 2016 school year – Where grounds of appeal are premised on conflicting assessments of matters of weight an appellate court will be slow to overturn a trial judge’s discretionary decision – Where a trial judge is not required to separately consider a factor relevant to a child’s best interests under both s 60CC and s 65DAA of the Family Law Act 1975 (Cth) – Where the trial judge took into account the best interests of the children in dismissing the application to change their school – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where counsel for the respondent and counsel for the Independent Children’s Lawyer sought orders for costs in the event that the appeal was unsuccessful – Where the father’s counsel did not oppose such orders being made – Costs orders made in favour of the respondent and the Independent Children’s Lawyer.

  • Rostem & Sammarra [2017] FamCAFC 178

    21 Aug 2017

    FAMILY LAW – APPEAL – where appeal raises no question of general principle and reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – where the father challenges the orders the primary judge made in respect of parental responsibility and what time and communication the child was to have with the father – where the child was 14 years old – where the child had expressed a desire not to spend time or communicate with the father – where there is no merit in any of the grounds of appeal – appeal dismissed – application for costs of the independent children’s lawyer dismissed. 

  • Hadesty & Beave (No. 2) [2017] FamCAFC 177

    25 Aug 2017

    FAMILY LAW – APPEAL – CHILDREN – Where the appellant chose to leave the courtroom before the appeal had been dealt with – Where the appellant was aware that consideration would be given to dismissing his appeal – Where the respondent makes application for security for costs if the appeal is to proceed – Where the father has made it plain to the solicitor for the respondent that he has no intention of paying a previous costs order – Where the appeal has no reasonable prospects of success – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent and the Independent Children’s Lawyer seek orders for costs – Where there are circumstances which justify orders for costs being made – Where impecuniosity is no bar to an order for costs being made – Costs ordered in favour of the respondent and the Independent Children’s Lawyer.

  • Walters & Hanson [2017] FamCAFC 176

    24 Aug 2017

    FAMILY LAW – APPEAL – COSTS – Where the parties requested that the Full Court make orders by consent – Where the Full Court set aside the orders of the primary judge – Where the parties each seek certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the challenges the subject of the Notice of Appeal raise questions of procedural fairness – Where there is merit in those challenges – Costs certificates ordered. 

  • Lan & Hao [2017] FamCAFC 175

    29 Aug 2017

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

    FAMILY LAW – APPEAL – ANTI-SUIT INJUNCTION – Appeal from the primary judge’s refusal to grant an anti-suit injunction restraining the husband from pursuing proceedings in China – Discussion of principles applicable to anti-suit injunctions restraining the pursuit of proceedings in foreign jurisdictions – Whether the husband had a legitimate juridical advantage in his proceedings in China – Discussion of the meaning of “the nature of the controversy” – Whether an anti-suit injunction against the husband would have had no utility – Where the injunction would have utility because it could be enforced against the husband when he is in Australia by way of contravention or contempt proceedings – Where the primary judge erroneously found the injunction had no utility – Where that finding was not material to the primary judge’s decision to refuse to grant the injunction as that decision was primarily based upon a consideration of the nature of the two proceedings which was entirely open on the evidence – Where the husband had a juridical advantage in prosecuting proceedings in China – Appeal dismissed – Wife to pay the husband’s costs of the appeal

  • Alberti & Alberti [2017] FamCAFC 174

    24 Aug 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the wife seeks an order for security for costs in default of which the appeal be stayed – Where the appeal is against orders for the settlement of property – Where the wife submits the husband is unlikely to succeed on appeal and has little prospect of meeting a costs order – Where the court is satisfied that the prospects of success of the husband’s appeal are not hopeless – Where an order for security for costs would stifle the appeal – Application dismissed. 

  • Kovacs & Graham [2017] FamCAFC 173

    23 Aug 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript by the Court – Whether the transcript of proceedings is necessary for the prosecution of all or in particular the appeal from final parenting orders – Where the transcript would not assist in the prosecution of the appeals – Where the provision of transcript would cause undue delay to the hearing of the appeal – Where the circumstances do not warrant the court providing the transcript at its own expense – Where there is no basis to order the Independent Children’s Lawyer to provide the transcript – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father seeks orders compelling a Crown prosecutor or a Commissioner of the Royal Commission into Institutional Responses to Child Sexual Abuse to attend the hearing of the appeal – Where the Court has no power to make such an order – Where the father seeks the discharge of the Independent Children’s Lawyer – Where it is not appropriate for the Full Court to make such an order – Where the father seeks that the Court “read” his Summary of Argument – Where the Full Court reads parties’ Summaries of Argument as a matter of course – Application dismissed.
  • Hsueh & Cai [2017] FamCAFC 172

    07 Aug 2017

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Interpretation and declaration relating to a financial agreement between the parties – Parties agreed the primary judge erred when making an order that in effect contradicted the provisions of one clause in the financial agreement – Appeal allowed by consent – Each party to bear their own costs of the appeal. 

  • Navarro & Navarro [2017] FamCAFC 171

    23 Aug 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – where the father sought to appeal orders refusing his application to travel overseas with the children – where the father applied to expedite the hearing of his appeal – where proposed travel was to occur in a matter of weeks after the hearing of this application – where the father also sought the permanent removal of the children’s names from the airport watch list – where the father had consented to the children’s names being placed on the watch list – where the appeal would not be rendered nugatory – where the application is dismissed – costs awarded in a fixed sum. 

  • Alaim & Alaim [2017] FamCAFC 170

    21 Aug 2017

    FAMILY LAW – APPEAL –¬ whether the primary judge erred in the structure of the orders ultimately made – whether the primary judge failed to make orders to give effect to findings – whether the primary judge erred in making orders by reference to both fixed sums and percentages – where the final orders did not provide for the discharge or refinance of existing mortgages upon the transfer of property – where such error could be remedied pursuant to the “slip rule” or by consent pursuant to s 79A(1A) – whether the primary judge erred in assessing the husband’s contributions – whether the primary judge erred in assessing the wife’s future needs pursuant to s 75(2) – whether the result was manifestly unjust – where no material error demonstrated.

    FAMILY LAW – APPLICATION IN AN APPEAL –– leave granted to rely on amended grounds of appeal – application to adduce further evidence dismissed.

    FAMILY LAW – COSTS – where the appellant is ordered to pay the wife’s costs.
  • Tabb & Tabb [2017] FamCAFC 169

    21 Aug 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – where the father’s appeal was deemed abandoned when he failed to file the appeal books pursuant to court orders – where the father sought to have his appeal reinstated – where there was a three month delay between the appeal being deemed abandoned and when the application was filed – where the parenting orders the subject of the appeal were made in November 2015 – where there is no merit in the appeal – application dismissed – father to pay the mother’s costs. 

  • Almasi & Lee [2017] FamCAFC 168

    27 Apr 2017

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Application to adjourn appeal hearing – Two years since appeal filed – Agreed property the subject of the appeal has little or no equity – Substantive property settlement proceedings being heard in the near future – Appeal hearing adjourned on the basis the appellant meets the mortgage payments – No order as to costs. 

  • Snider & Taylor [2017] FamCAFC 167

    16 Jun 2017

    FAMILY LAW – APPEAL – Application to extend time to appeal – Proposed appeal against dismissal of financial enforcement proceedings – Adequate explanation for delay – Notice of Appeal does not demonstrate appealable error – No merit in the proposed appeal – Application dismissed – Applicant to pay respondent’s costs of appeal in fixed sum. 

  • Medlow & Medlow [2017] FamCAFC 159

    15 Aug 2017

    FAMILY LAW – APPEAL – Contempt – Appeal against dismissal of contempt application – Deliberate breaches of asset-preservation orders and injunctions alleged – Approach to prima facie case considered – Ambiguity – Obligation to construe the orders – Need to construe orders does not foreclose contempt – Where the orders contain typographical errors – An order which requires determination of a fact by a court is not self-executing – Denial of procedural fairness – Test for flagrant challenge to the authority of the court discussed – Admission of evidence in contempt proceedings – Appeal allowed – Contempt application remitted for rehearing.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the appeal is allowed and it is not necessary to consider application – Application in an Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly successful – Respondent to pay costs.

  • Holland & Holland [2017] FamCAFC 166

    09 Aug 2017

    FAMILY LAW – APPEAL – PROPERTY – where the husband inherited an unencumbered property three and a half years after separation – where the trial judge “excluded” the property from the pool of assets and referred to it as a financial resource of the husband – where it is wrong as a matter of principle to refer to any existing legal or equitable interest of the parties as being “excluded” from consideration – where the property was not a financial resource, but property to which the parties were presently entitled – where these errors amounted to an error of principle – where the trial judge conflated issues relevant to the contributions assessment with issues relevant to an assessment of s 75(2) factors – where it was not possible to discern the path of reasoning by which the trial judge concluded the property of the parties should be distributed – appeal allowed – no order as to costs – costs certificates issued. 

  • Nhan & Vuong [2017] FamCAFC 165

    17 Aug 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – where the husband failed to comply with the requirement to file a draft appeal index – where the husband’s appeal was deemed abandoned –where the husband applied to reinstate the appeal – where there was no merit in the appeal – where the wife would have been put to the expense, stress and inconvenience of resisting an unmeritorious appeal had the application been allowed – application dismissed – order for costs. 

  • Bain & Bain (Deceased) (Costs) [2017] FamCAFC 164

    16 Aug 2017

    FAMILY LAW – APPEAL – COSTS – Costs of the proceedings at first instance – Where the appellant sought that the respondents pay his costs personally – Where the respondents were wholly unsuccessful – Consideration of whether costs should be paid from the estate – Where the costs of the litigation were not reasonably incurred – Where the estate is insolvent – Where the respondents did not seek judicial advice – Costs ordered against the respondents personally.

    FAMILY LAW – APPEAL – COSTS – Costs of the appeal – Where appeal upheld by reason of errors of law – Costs certificates ordered.

    FAMILY LAW – APPEAL – COSTS – Substitution of parties – Where the appellant is now bankrupt – Where the appellant’s Trustees in Bankruptcy have made an election to continue the application for costs – Whether the application for costs is property as defined in the Bankruptcy Act 1966 (Cth) – Where it is not necessary to determine the point conclusively – Trustees joined as parties in substitution of the appellant.

  • Marriott & Draper [2017] FamCAFC 163

    16 Aug 2017

    FAMILY LAW – APPEAL – CHILDREN –Where the father appealed a finding of unacceptable risk and supervised contact orders – Weight given to experts’ reports – Where the primary judge assessed the experts’ opinion against the whole of the evidence – Challenges to findings of risk of harm – Where the findings were open on the evidence – Weight given to the objects and principles of the Family Law Act 1975 (Cth) – Application of s 60CC considerations – No appealable error – Where the father contended other orders were open to the primary judge – No error as per House v The King (1936) 55 CLR 499 made out – Appeal dismissed – Costs ordered. 

  • Granville & Blakeslee [2017] FamCAFC 162

    16 Aug 2017

    FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – Where both parties’ minutes of orders sought an order for equal shared parental responsibility without qualification – Where the primary judge made orders giving the mother responsibility for decision making in relation to medical and educational issues – Error conceded by mother – Appeal allowed on this point – Re-exercise – Order for equal shared parental responsibility made.

    FAMILY LAW – APPEAL – CHILDREN – Consideration of s 65DAA – No error in his Honour’s approach – Failure to make orders in relation to “special days” – Where the error is not productive of any substantial miscarriage of justice in the circumstances – Not sufficient to warrant appellate intervention.

    FAMILY LAW – APPEAL – PROPERTY – Assessment of contributions – Where the father asserted that the primary judge placed insufficient weight on his contributions –Where the father’s father was not called to give evidence as to the intention of funds gifted –Where the Court is satisfied that the primary judge regarded the funds as being a contribution on the father’s behalf – Where it was undisputed that the mother owned a property and savings at the start of the relationship and made substantial post separation contributions – Where the father’s contributions were correctly described in this context – No appealable error.

    FAMILY LAW – APPEAL – PROPERTY – Consideration of s 75(2) factors – Where the father asserted that the primary judge failed to make findings of fact as to income and earning capacity – Where his Honour’s findings were sufficient – Where it was undisputed that the mother would continue to be the primary financial support for the children – Whether the primary judge erred in his treatment of the mother’s superannuation fund in the United Kingdom – Where the United Kingdom fund could not be treated as property – Where the primary judge did not consider the s 75(2) factors in relation to the superannuation pool – Where the primary judge’s consideration of the non superannuation property interests obviously proceeded on the basis of superannuation pool assessment – No appealable error.

  • Sha & Cham [2017] FamCAFC 161

    16 Aug 2017

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

    FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the primary judge found that the parties were in a de facto relationship – Adequacy of reasons and application of legislative criteria in s 4AA of the Family Law Act 1975 (Cth) – Where there is no requirement in the Act to carry out a specific evaluation of the s 4AA(2) factors – Where his Honour’s conclusion took into account the entirety of the evidence – Challenges to the primary judge’s findings of fact – Primary judge’s conclusion open to his Honour on his findings – No appealable error – Error as to date of commencement of relationship in order – Not material to ultimate conclusion – Order amended – Appeal otherwise dismissed – Costs ordered.


  • Garnett & Beckworth [2017] FamCAFC 160

    16 Aug 2017

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

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Grounds of appeal contained in Notice of Appeal incompetent – Leave given to file and serve an Amended Notice of Appeal.

  • Duarte & Morse [2017] FamCAFC 158

    15 Aug 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the appeal was deemed abandoned after the appellant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Merits of the appeal – Where it would be futile to extend time – Application dismissed.

  • Kent & Kent [2017] FamCAFC 157

    10 Aug 2017

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

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the primary judge dismissed an application to stay Australian proceedings – where the primary judge granted an anti-suit injunction concerning overseas proceedings – in respect of the stay application – whether the primary judge failed to take into account relevant considerations when deciding if Australia was a clearly inappropriate forum – where the husband’s contentions would have required the primary judge to consider the wrong test – where no error was demonstrated – in respect of the anti-suit injunction – where the injunction was granted primarily on a finding that parallel proceedings would exist overseas and in Australia – where the issues being litigated overseas are not the same as those in Australia – where the overseas proceedings would not be oppressive and vexatious in the Voth sense – application for leave to appeal granted – appeal allowed.

    FAMILY LAW – APPEAL – RE-EXERCISE – decision of the primary judge re-exercised – the anti‑suit injunction set aside and a more limited injunction made in lieu.

  • Harrelson & Harrelson (Costs) [2017] FamCAFC 156

    11 Aug 2017

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

    FAMILY LAW – APPEAL – COSTS – Where the appeal was allowed in part – Where both parties seek their costs of the appeal assessed on an indemnity basis – Financial circumstances of the parties – Conduct of the parties to the proceedings – Whether the appeal has been wholly unsuccessful – Offers of settlement – Where the offers of settlement did not reflect the outcome of the appeal – Where the circumstances do not justify an order for costs – Costs applications dismissed.

  • Gupta & Singhal [2017] FamCAFC 155

    02 Aug 2017

    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 is inadequate – Where the draft notice of appeal does not identify appellable error – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the orders appealed are not amenable to appeal – Application dismissed.

  • Boyle & Zahur [2017] FamCAFC 154

    02 Aug 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother filed an application to adduce further evidence – Where the mother seeks to expedite her appeal against an order dismissing her relocation application – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority to the detriment of other cases – Application granted.

  • Ping & Truang [2017] FamCAFC 153

    07 Aug 2017

    FAMILY LAW – APPEAL – COSTS – Appeal against orders that the husband pay the wife’s costs of an application resolved by consent – Approach to the assessment of success where the proceedings are resolved without a hearing – Where the question of costs was determined on the basis that the wife was wholly successful in resisting the primary application – Where it was open to the primary judge to take success into account – Where the circumstances justified an order for costs – Appeal dismissed – Wife’s application for costs of the appeal dismissed.

  • Stott & Holger and Anor [2017] FamCAFC 152

    07 Aug 2017

    FAMILY LAW – APPEAL – CHILDREN – The child lives with the maternal grandmother – The grandmother appeals orders for the child to spend time with the father – The primary judge misapprehended the evidence of the Family Consultant and failed to afford procedural fairness to the grandmother in relation to one of the orders – The primary judge found the father did not pose an unacceptable risk to the child – Where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case – Primary judge misapplied the unacceptable risk test and did not provide adequate reasons considering the nature, magnitude and potential effect of the risks for the child – Appeal allowed – The issue of the father’s time with the child remitted for rehearing – No order as to costs – Costs certificates issued.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the father to adduce further evidence in opposition to the appeal – No utility in the proposed further evidence – Application dismissed.

  • Sellink & Sellink (No 2) [2017] FamCAFC 151

    04 Aug 2017

    FAMILY LAW – APPEAL – where the parties filed joint submissions – where those joint submissions provided for the appeal to be allowed – where the primary judge failed to have regard to the family report – where this failure amounted to appealable error – appeal allowed by consent.

    FAMILY LAW – COSTS – where there was a demonstrated error of law – where the circumstances justified granting certificates to both parties.

  • Marcon & Cussen [2017] FamCAFC 150

    03 Aug 2017

    FAMILY – LAW APPEAL – PROPERTY– Procedural fairness – Primary judge delivered reasons and listed matter for further submissions – Failure to allow parties to give submissions on superannuation pool – Reasons – Primary judge gave no further reasons for final orders made where he had indicated submissions would be taken into account – Appealable error demonstrated – Matter remitted to Federal Circuit Court of Australia – Costs certificates granted. 

  • Pennant & Tomlinson [2017] FamCAFC 149

    27 Jul 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a Notice of Appeal – Where the applicant’s solicitor failed to properly file the Notice of Appeal on time – Where the appeal is at least arguable – Where no prejudice would flow to the other parties if an extension of time is granted – Application allowed. 

  • Hillier & Wooton [2017] FamCAFC 148

    26 Jul 2017

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant husband failed to file and serve the appeal books – Where the respondent opposes reinstatement – Where the failure to file the appeal books within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Where there is little prejudice to the respondent – Application allowed 

  • Moorcroft & Moorcroft [2017] FamCAFC 147

    21 Jul 2017

    FAMILY LAW – APPEAL – COSTS – costs of a discontinued appeal – where the appeal lacked merit – where the appeal was futile in circumstances where the trial of the matter had commenced – where costs awarded in a fixed sum. 

  • Swain & Searle [2017] FamCAFC 146

    26 Jul 2017

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Application in an Appeal for expedition of two appeals – Where the mother seeks to expedite both the substantive appeal against final parenting orders and orders dismissing her stay application – Where in the ordinary course the appeals would be heard in three months’ time – Applications withdrawn 

  • Tuckson & Elsey [2017] FamCAFC 145

    13 Jul 2017

    FAMILY LAW – APPEAL – DE FACTO PROPERTY – Whether the trial judge erred in adding back the entire proceeds of sale of a piece of real property – Whether the trial judge erred in the assessment of the parties’ contributions and whether the percentage adjustment was within the range of reasonable exercise of discretion – Whether the adjustment made pursuant to s 90SF(3) was within the range of a reasonable exercise of discretion – Whether the trial judge failed to deal with the appellant’s application for spousal maintenance – Where the trial judge’s final orders did not reflect the assessment and findings in the reasons for decision – Where this error was conceded by the respondent – Where the Full Court found error in the primary judge’s treatment of the piece of real property – Where the Full Court re-exercised discretion – Where the Full Court found that the primary judge failed to deal with the appellant’s application for spousal maintenance – Where the application for spousal maintenance was remitted to the Federal Circuit Court

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for dismissal for want of prosecution – Where the appellant did not file their summary of argument within the time stipulated in directions – Where the Full Court found that there was no gross delay – Application dismissed – Appellant to pay respondent’s costs of the Application in an Appeal

  • Stenson & Osmund [2017] FamCAFC 144

    28 Jun 2017

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant asserts that the trial judge erred in finding that there was no asset of value – Where the trial judge failed to consider the effect of the financial statements of the business and erred in finding that that business had no value – 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 appeal is being allowed as a result of errors of law by the trial judge – Where it cannot be suggested that the respondent caused or led the trial judge into those errors – Where each party should bear their own costs – Costs certificates granted pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

  • Ridley & Radford [2017] FamCAFC 143

    26 Jul 2017

    FAMILY LAW – COSTS – APPLICATION IN AN APPEAL – reinstatement – where a Notice of Discontinuance was filed in relation to the father’s Application in an Appeal – where counsel for the Independent Children’s Lawyer sought costs – where all the circumstances of the case do not justify an order for costs against the father – no costs ordered. 

  • Henley & Henley [2017] FamCAFC 142

    20 Jul 2017

    FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Where the primary judge made an erroneous finding as to the father’s residence – Where the mistaken fact did not lead into substantive error – Where the primary judge admitted into evidence and relied upon a psychiatrist’s report – Where the report was objected to in the father’s Case Outline – Where the primary judge did not raise with the father his objection to the report and whether the father wanted to challenge the evidence – Where it was not open to the primary judge to find that the father did not challenge the report – Where the Court cannot be satisfied that the errors did not cause the primary judge’s discretion to miscarry – Appeal allowed – Remitted for rehearing – No order as to costs – Costs certificates issued.

    FAMILY LAW – APPEAL – Application to adduce fresh evidence – As matter remitted for rehearing unnecessary to consider application – Application dismissed.

  • Kellner & Kellner & Anor [2017] FamCAFC 141

    20 Jul 2017

    FAMILY LAW – APPEAL – consent orders – where both parties agreed that the trial judge’s reasons were inadequate – where the parties filed minutes of orders seeking that the appeal be allowed and the matter be remitted for a retrial – appeal allowed – remitted.

    FAMILY LAW – APPEAL – COSTS – applications made for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where second respondent did not appear at the appeal or formally seek a costs certificate – costs certificates granted in favour of appellant and first respondent.

  • Lane & Lane [2017] FamCAFC 140

    17 May 2017

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Proposed consent orders to allow the appeal and vary the property settlement – Appeal allowed – Appellant to pay the respondent’s costs in a fixed sum. 

  • Xuarez & Vitela [2017] FamCAFC 139

    17 Jul 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an adjournment – Where the appellant filed a Notice of Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth) – Whether the matter should be adjourned pending responses from Attorneys General – Where the notice does not “really and substantially” raise a matter under the Constitution or involving its interpretation – Whether an applicant is entitled to publicly-funded legal representation – Where the notice is incompetent and frivolous – Application dismissed. 

  • D Pty Ltd & Hunter [2017] FamCAFC 138

    17 Jul 2017

    FAMILY LAW – APPEAL – COSTS – where the appellant challenges an order for costs – where the appellant contends it was not wholly unsuccessful because the husband’s case shifted prior to the commencement of the trial – where the appellant asserts that the written offer of settlement relied upon by the trial judge was not sufficiently certain – where the appellant contends the trial judge did not have regard to the disparity of financial circumstances of the parties and the order for costs was otherwise unreasonable or unjust – where no error is demonstrated – where the appeal is dismissed. 

  • Tebello & Corla [2017] FamCAFC 137

    19 Jul 2017

    FAMILY LAW – APPEAL – Final parenting orders – Where there is no appearance by the appellant on the appeal – Where the appellant claims a denial of procedural fairness when not provided with an interpreter – Whether the appellant was entitled to an interpreter – Where adjournment of trial would be contrary to the child’s interests – Where the appellant is competent in written and spoken English – Where the appellant failed to submit to cross-examination or question witnesses – Whether the primary judge misinterpreted or misapplied the Family Law Act 1975 (Cth) – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Applications for costs granted.

  • Pawley & Pawley (No 2) [2017] FamCAFC 136

    22 Jun 2017

    FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Interim order permitting the father time with two young children – Where the order did not prevent the mother from remaining in a new location where she was living when proceedings commenced – Father argued primary judge erred in failing to order the mother to return to live in the area where she previously resided – Mother prepared to continue facilitating weekly time between father and children – No error by the primary judge – Appeal dismissed.      

    FAMILY LAW – CROSS-APPEAL – CHILDREN – Interim orders amended under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) by imposing a requirement that the mother live in the area of her former place of residence for part of each week – Slip rule can be applied only where the proposed amendment is one about which no real difference of opinion can exist – As this condition was not met the primary judge erred in amending the order – Father correct in conceding the cross-appeal.

    FAMILY LAW – APPEAL – COSTS – Offer of settlement – Both parties in difficult financial positions – No order as to costs – Costs certificates issued for both parties.

  • Child Support Registrar & McFarlane and Anor [2017] FamCAFC 135

    21 Jun 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Leave to appeal as a non-party – Where the Child Support Registrar seeks leave to appeal as a non-party affected by orders made by the primary judge pursuant to s 107A of the Child Support (Registration and Collection) Act 1988 (Cth) – Application allowed.

    FAMILY LAW – APPEAL – CHILD SUPPORT – Departure order – Where the primary judge ordered a permanent stay of the payment and collection of child support – Where the power conferred by s 111C of the Child Support (Registration and Collection) Act 1988 (Cth) does not extend to granting a permanent stay – Appeal allowed – Child support departure order made in lieu of the order granting the stay.

  • Idanov & Dunstable and Anor [2017] FamCAFC 134

    07 Jul 2017

    FAMILY LAW – APPEAL – CHILDREN – Unacceptable risk – Appeal from finding of the primary judge that the father poses an unacceptable risk of sexual abuse – Challenges to the factual findings made by the primary judge – Whether the primary judge’s discretion miscarried in the weight she gave to the evidence as to the children’s allegations – Whether the primary judge failed to give adequate weight to or take into account the father’s evidence and submissions – Whether the primary judge erred in her findings relating to the mother’s credit – No appealable error established – Appeal dismissed – Father to pay the mother’s costs of the appeal.