Please enter your search query in the form below to search judgments of the Family Court of Australia

using
Number of results per page:
Austlii logo

Judgments search is powered by Austlii


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.

  • Wilmer & Golding (No. 2) [2017] FamCAFC 213

    05 Oct 2017

    FAMILY LAW – APPEAL – where the wife sought an injunction to restrain the husband’s solicitors from acting for him – where the wife’s solicitor had ceased acting for the wife – where the wife’s former solicitor was employed by the husband’s solicitors’ firm – where the wife had discharged her onus with respect to establishing that confidential information was held and that it was relevant to the proceedings – where the husband’s solicitors provided irrevocable undertakings in respect of that confidential information – whether those undertakings amounted to an effective information barrier – whether the primary judge erred in finding that there was an effective information barrier that ameliorated the risk of disclosure – whether the husband discharged his evidentiary onus to show that there was no real risk the information would come into the possession of the husband’s legal representatives – where that onus was not discharged – where the risk of disclosure was real and not theoretical – where there was no evidentiary basis for the primary judge’s finding – appeal allowed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the wife filed an application for leave to appeal – where the parties agreed that leave was necessary – where the appeal involved matters of principle – where the failure to grant leave would cause significant injustice – application for leave to appeal allowed.

    FAMILY LAW – COSTS – where the wife sought fixed costs against the husband – costs fixed in the sum of $10,000.

  • Wendland & Wendland [2017] FamCAFC 244

    21 Nov 2017

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

    FAMILY LAW – APPEAL – PARENTING – Appeal from a final parenting order permitting the child to relocate to wherever the mother is posted by the Australian Defence Force (“ADF”) – Whether the making of the order was unreasonable – Whether the order effectively gives the mother a “blank cheque” – Whether the primary judge failed to properly evaluate the effect a relocation would have on the relationship between the child and the father and paternal grandmother – Weight attributed to the evidence of the family report writer – Whether findings of fact about the mother’s circumstances if she was discharged from the ADF were open to the primary judge – Where the findings and order made by the primary judge were open on the evidence – No error demonstrated – Appeal dismissed – No order as to costs.

  • Challis & Challis [2017] FamCAFC 240

    13 Nov 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 spends time – Allegations of historical sexual abuse – The respondent concedes the appeal should be allowed and remitted for rehearing before a judge other than the primary judge – The parties seek costs certificates for the appeal and the rehearing – Where the Full Court is satisfied of error sufficient to support the making of the orders sought by the parties – Appeal allowed – Costs certificates issued

  • Bellamy & Gladwell (No. 2) [2017] FamCAFC 238

    17 Nov 2017

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

    FAMILY LAW – APPEAL – final property orders – where the trial judge ordered that the parties retain property in their possession – where the trial judge ordered that each party indemnify the other in respect of mortgages attached to those properties – where the effect of those orders was that the wife was left with significantly more debt than the husband – where the trial judge lost sight of the issue of the allocation of debt between the parties – where it was not the intention of the trial judge that either party bear the sole responsibility for that failure – where the orders were unjust and unreasonable – appeal allowed.

  • Tothill & Crowther (No. 2) [2017] FamCAFC 229

    10 Nov 2017

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

    FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the basis on which the application is made is unclear – Where very little of the applicant’s primary affidavit in support of the application engages with any of the factors this Court needs to take into account – Where security for costs is not intended to provide funds for the applicant to secure his legal representation for the purposes of the appeals – Where at this stage of the proceedings it is impossible for this Court to form a definitive view as to the success or failure of the appeals – Where no issue can be raised as to the bona fides of the appeals the respondent having complied with all orders of the court – Where the respondent’s case is that she will be able to borrow the necessary funds to meet any order for costs – Where there is no justification to require the respondent to provide security for costs – Application dismissed.

  • Sargent & Selwyn [2017] FamCAFC 228

    09 Nov 2017

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

    FAMILY LAW – APPEAL – REASONS FOR JUDGMENT – Validity of reasons for judgment – Where the only inference that can be drawn is that the reasons for judgment were delivered after the expiration of the primary judge’s commission – Whether reasons for judgment delivered after the expiry of a judicial commission are valid – Where the reasons were provided by a person who was no longer a judge and are invalid – Where no reasons were therefore provided for the making of the orders – Error of law established.

    FAMILY LAW – APPEAL – ADEQUACY OF REASONS – Parenting – Where the reasons do not explain why the mother’s proposed orders were found to be in the best interests of the child as opposed to the father’s proposed orders – Where the reasons do not discuss matters relevant to issues arising under ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth) – Where the reasons are inadequate – Appealable error established.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether a delay of 13 months between the making of orders and the provision of reasons constitutes an error of law – Where the orders concerned a child aged three and a half years at the time of the hearing – Where the parties were long denied an explanation for why certain parenting orders were made – Where the interests of justice did not require the orders to be made and the reasons to be delivered at a later time – Where the delay caused a miscarriage of justice and thus an error of law.

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the proposed evidence is adduced to establish that the orders under appeal are erroneous – Where the evidence is not contentious – Application allowed.

  • Pannell & Pannell [2017] FamCAFC 237

    13 Nov 2017

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

    FAMILY LAW – APPEAL – where the respondents concede the trial judge made errors of law and join in seeking that the subject orders be set aside and the parties be granted costs certificates – where Full Court satisfied of error sufficient to support the making of the orders sought by all parties.

  • O'Brien & O'Brien [2017] FamCAFC 219

    17 Oct 2017

    FAMILY LAW – APPEAL – CHILDREN – Where final parenting orders were made in 2013 by consent – Where the primary judge dismissed the mother’s application for variation of the orders – Where the primary judge’s expression of the Rice and Asplund test does not align with Full Court authorities – Where the primary judge impermissibly restricted his consideration of the evidence – Where several orders were sought on discrete issues not covered in the consent orders – Where the primary judge erred in dismissing the application in its entirety – Appealable error demonstrated – Order set aside and matter remitted.

    FAMILY LAW – APPEAL – COSTS – Where the primary judge ordered that the mother pay indemnity costs for a discontinued contravention application – Where his Honour’s conclusion that the mother filed the application for an improper purpose was unsupported by the evidence – Where the primary judge denied the mother procedural fairness – Where the primary judge did not resolve the issue as to the quantum of costs claimed – Appealable error demonstrated – Re-exercise – Where the mother conceded that she should pay costs – Costs ordered as per Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).

  • Norris & Matthews [2017] FamCAFC 233

    13 Nov 2017

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

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks expedition of her appeal against parenting orders – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PREPARATION OF APPEAL BOOKS – Where the mother sought an order that the father be responsible for the preparation and costs of the appeal books – Where the mother has purchased the relevant transcript – Where there is considerable contention about the mother’s financial state – Where there is no reason why the burden of preparing the appeal books should shift to the father – Application dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the application is brought bona fide – Where the mother is bankrupt in Australia – Where it cannot be found that an order for security for costs would stifle the appeal – Security for costs ordered.

  • Nerantsi & Kalekas [2017] FamCAFC 235

    10 Nov 2017

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

    FAMILY LAW – AMENDED NOTICE OF APPEAL – PARENTING – Appeal against interim parenting orders – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where the respondent seeks his costs – Where there are circumstances which justify an order for costs being made – Where the appeal has been wholly unsuccessful – Where impecuniosity does not prevent an order for costs being made – Costs ordered in favour of the respondent.

  • Milligan & Milligan and Anor [2017] FamCAFC 218

    25 Oct 2017

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

    FAMILY LAW – APPEAL – where the primary judge dismissed the wife’s claim pursuant to s 106B – where that claim was brought by the wife to facilitate her receiving an entitlement under consent orders – where the effect of those consent orders was that the wife would retain the former matrimonial home and the husband would pay all mortgage instalments by a certain date – where the husband failed to honour his obligations – where at trial the husband had insufficient funds to meet his obligations – where the wife sought to set aside transactions between the husband and the second respondent – where the wife contended that those transactions amounted to an instrument or disposition pursuant to s 106B – whether the primary judge took into account irrelevant considerations – whether the primary judge failed to take into account relevant considerations – where the primary judge failed to address fundamental questions relevant to s 106B – where the primary judge failed to articulate the relevant instrument/s or disposition/s – where the primary judge failed to determine whether any instrument or disposition was likely to defeat the consent orders – where error was established – whether the dismissal of the wife’s s 106B claim should stand despite error – where the wife failed to discharge her onus of establishing the requirements under s 106B – appeal dismissed.

    FAMILY LAW – COSTS – where neither party was wholly unsuccessful – where there were no relevant circumstances justifying departure from s 117(1) – where each party should bear their own costs of and incidental to the appeal.

  • McPherson & McPherson (No. 2) [2017] FamCAFC 195

    14 Sep 2017

    FAMILY LAW – APPEAL – PARENTING – Where there is an incongruence between the primary judge’s reasons for judgment and the orders made – Appeal allowed by consent – Costs certificates granted.

  • Lambton & Lambton (No. 2) [2017] FamCAFC 230

    09 Nov 2017

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

    FAMILY LAW – APPEAL – CHILDREN – RELOCATION – where the mother sought to relocate with the child to the United Kingdom – where the trial judge refused the mother’s application to relocate – where the child was only three and a half years old – where the mother contended that her mental health would improve if she were permitted to relocate – whether the trial judge determined the issue of relocation as a separate and anterior question – whether the trial judge wrongly elevated the consideration of the mother’s reason for relocation – whether the trial judge failed to properly consider the father’s capacity to relocate to the United Kingdom – whether the trial judge failed to pay evident regard to the mother’s legitimate interest and right to live in the place of her choosing – whether the trial judge failed to have regard to the entirety of the expert evidence in relation to the mother’s mental health – where no error demonstrated – where appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY – whether the trial judge erred in a consideration of s 75(2) factors – where no error demonstrated – where appeal dismissed.

  • Gupta & Gupta (No. 2) [2017] FamCAFC 232

    13 Nov 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 applicant’s appeal was deemed to be abandoned due to his failure to file a draft appeal index within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Where the appeal is not so devoid of merit that it would be futile to reinstate it – Appeal reinstated.

  • Casano & Antipov (No. 2) [2017] FamCAFC 234

    09 Nov 2017

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

    FAMILY LAW – APPEAL – Parenting – Family Violence – Best interests of the child – Whether the father was denied procedural fairness – Whether adverse findings made on issues not raised in the case – Whether the reasons given by the primary judge were adequate – Challenges to weight given to evidence – Whether an order for supervised time rather than no time should have been made – Appeal dismissed.

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


  • Atwood & Atwood [2017] FamCAFC 239

    12 Sep 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Extension of time to file a draft index to the appeal books – Application allowed.

  • Atuk and Anor & Atuk [2017] FamCAFC 215

    12 Oct 2017

    APPEAL AND CROSS-APPEAL – final property orders – where the primary judge adjusted the parties’ interests in property as 52.5 per cent to the wife and 47.5 per cent to the husband – where the husband’s mother cross-appealed – where the cross appellant and her late husband contributed to the purchase price of the matrimonial home – where the primary judge found that no resulting trust existed in respect of that amount – where the primary judge found that no constructive trust existed in respect of that amount due to the absence of unconscionability – whether the primary judge should have found that a constructive trust existed – where the cross appellant’s and husband’s sworn evidence showed the existence of a loan – where that evidence was “struck out” during the course of hearing objections due to it being inconsistent with the cross appellant’s case – where his Honour was in error in treating earlier sworn evidence as irrelevant – where that error did not impact on his Honour’s ultimate finding regarding the absence of unconscionability – whether the primary judge should have taken into account certain liabilities of the husband and his company – whether the primary judge should have taken into account a Centrelink debt as a liability of the parties – whether the primary judge failed to give proper weight to the husband’s mother’s contributions during the relationship – where the husband’s appeal did not demonstrate any errors by the primary judge – appeal dismissed.

    COSTS – where the appellant and cross appellant were wholly unsuccessful – where the cross appellant’s financial circumstances were not determinative – appellant and cross appellant ordered to pay the respondent’s costs of and incidental to the appeal and cross appeal.

  • Kostas & Kostas [2017] FamCAFC 225

    13 Sep 2017

    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 it is not possible on the limited material before the court to find that all of the grounds of appeal are completely devoid of merit – Appeal reinstated.

  • Tabayag & Geng [2017] FamCAFC 223

    25 Oct 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the application for an extension of time is made some 17 months after delivery of judgment by the trial judge – Where there is no reasonable excuse proffered for the failure to file a Notice of Appeal within time – Where there is no arguable case on appeal – Where the respondent would be severely prejudiced if the appeal was allowed to proceed – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs – Where there are circumstances which justify such an order – Costs ordered in favour of the respondent.


  • Robeck & Robeck [2017] FamCAFC 224

    25 Oct 2017

    FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where the appeal is incompetent – Where no appealable error by the trial judge is identified – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs – Where there are circumstances which justify such an order – Costs ordered in favour of the respondent.


  • Cantwell & Cantwell [2017] FamCAFC 209

    04 Oct 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – final property orders – whether the primary judge failed to take into account a liability – where the husband sought to adduce further evidence – where the further evidence included a loan agreement and mortgage debenture – where there was no adequate explanation for the failure to tender the documents at trial – where the documents had not been stamped in accordance with s 22 of the Stamp Duties Act 1923 (SA) – where the liability consisted of a loan allegedly owed indirectly to the husband’s parents as a result of money invested by them in third party corporations controlled by the parties’ accountant – where the accountant contended that the arrangement was entered into on the instruction of the husband’s parents – where the arrangement was not deposed to by the husband or the husband’s parents – where the evidence did not reveal any legal relationship between the husband’s parents and the parties – where the money was owed between two third party corporations and where the accountant owed independent duties as a director – where no error was demonstrated – application to adduce further evidence dismissed – appeal dismissed. 

  • Minjarez & Minjarez [2017] FamCAFC 222

    19 Oct 2017

    FAMILY LAW – APPEAL – Final parenting orders – where the primary judge made an amendment pursuant to the slip rule – where the amendment related to time spent with each parent during the Christmas and Boxing Day period – whether the amendment changed the substance of the result that was reached or recorded – where the amendment put beyond doubt something that the primary judge plainly intended by her orders – where the amendment was open to her Honour under the slip rule – appeal dismissed. 

  • Harris & Harris & Anor [2017] FamCAFC 221

    13 Sep 2017

    FAMILY LAW – PRACTICE AND PROCEDURE – Where there is an application to appoint a case guardian pursuant to r 6.10 of the Family Law Rules 2004 (Cth) - Where the applicant is the cross-second respondent in appeal proceedings that are part heard – Where the applicant has a clinical diagnosis of cognitive impairment and currently requires assistance with decision-making – Where the application is granted with costs paid on an indemnity basis by the applicant.

  • Rilak & Tsocas (No. 3) [2017] FamCAFC 217

    13 Oct 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the appeal has limited prospects of success – Where there are outstanding costs orders against the mother – Where an order for security for costs would likely stifle the appeal – Where there are circumstances justifying an order for security of costs – Where order conditional upon the father’s solicitors providing undertaking – Application allowed. 

  • Cavey & Aoki [2017] FamCAFC 211

    09 Oct 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – Expedition – where the mother unilaterally relocated with the child – where the Registrar made orders for the return of the child – where the matter was transferred to the Federal Circuit Court of Australia – where the Registrar’s decision did not finally determine the issue of family violence – where a further interim hearing on the issue of relocation was warranted – where the primary judge did not order the return of the child on an interim basis – where the primary judge found that a meaningful relationship could be maintained between the father and child –  where the trial is listed for early next year – where if expedited the appeal would not be heard by the Full Court before November this year – where the primary judge had in mind the impact of the geographical divide on the relationship between the father and child – where it was conceded that there would be real difficulties in the Full Court re-exercising – where a family report was ordered by the primary judge which would assist any interim case and the final trial – application in an appeal dismissed. 

  • Mohsen & Collings and Anor [2017] FamCAFC 198

    18 Sep 2017

    FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Family violence – The appellant challenges an order that the child spend no time with the appellant – Where the appeal raises no question of general principle and reasons are given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Held no error on the part of the primary judge – Appeal dismissed.

  • Tomaras & Tomaras and Anor and Commissioner of Taxation [2017] FamCAFC 216

    13 Oct 2017

    FAMILY LAW – CASE STATED – Whether s 90AE(1)-(2) of the Family Law Act 1975 (Cth) confers power to make an order substituting one party to a marriage for the other party in relation to a taxation debt – Whether presumption that statutory provisions expressed in general terms do not bind the Crown applies only to provisions which impose an obligation or a restraint on the Crown – If the presumption applies, the absence of an express statement binding the Crown is not determinative  – Bropho v State of Western Australia (1990) 171 CLR 1 applied  – The express link between s 79 and s 90AE provides a strong indication that the Commissioner of Taxation should be treated as a “creditor” for the purposes of s 90AE given that Parliament must be taken to have known of the way the Commissioner has historically taken advantage of his status as a “creditor” for the purposes of s 79 – The answer to the question posed by the case stated is “Yes”, subject to a proviso relevant only to the terms of the particular order sought in the substantive proceedings. 

  • Pidoux & Magnin [2017] FamCAFC 214

    11 Oct 2017

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks expedition of his appeal against interim parenting orders – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Where further orders have been made by the primary judge relating to the circumstances advanced in support of the application for expedition – Where the Independent Children’s Lawyer has indicated her willingness to maintain a proactive approach – Application dismissed. 

  • Van Basten & Humboldt [2017] FamCAFC 212

    05 Oct 2017

    FAMILY LAW – APPEAL – PARENTING – Alleged errors of fact – Where the errors, if there are any, are not material – Appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the evidence was available at the time of the trial but not tendered by the father – Application dismissed.


  • Pencious & Searle [2017] FamCAFC 210

    11 Oct 2017

    FAMILY LAW – APPEAL – DISQUALIFICATION – Appeal against dismissal of recusal application – Apprehended bias – Procedural fairness – Whether appellant denied a fair trial due to the primary judge granting an adjournment of proceedings to the respondent and dismissing the oral application for adjournment of the appellant – Prolongation of proceedings and causing prejudice – Consideration of two-step process in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Appeal dismissed.

    FAMILY LAW – APPEAL – VEXATIOUS PROCEEDINGS  – Appeal against order made pursuant s 102QB(2)(b) of the Act, prohibiting the husband from instituting proceedings under the Act without first obtaining leave to commence those proceedings – Appeal against vexatious proceedings order allowed in part – Orders too broad – Orders varied – Appeal otherwise dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Orders prohibiting institution of proceedings did not exclude an appeal – Leave required to “start” a proceeding by filing a Notice of Appeal – Application for leave to file Notice of Appeal granted nunc pro tunc.

    FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Affidavit to form part of appeal book admitted – Application to adduce letter not relevant to subject matter of the appeal – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appeal is largely or wholly unsuccessful – Costs fixed in the sum of $19,000 ordered in favour of the wife.

  • Valdez & Frazier (No. 2) [2017] FamCAFC 208

    05 Oct 2017

    FAMILY LAW – APPEAL – CONTRAVENTION – Where the primary judge dismissed the appellant’s contravention application – Where the primary judge’s interpretation of the final orders alleged to have been contravened was open to him – Appeal dismissed.

    FAMILY LAW – APPEAL – DISQUALIFICATION – Appeal against dismissal of recusal application – Where the primary judge found the test for apprehended bias was not satisfied – Where the primary judge’s articulation of law and principle was entirely correct – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Application for adjournment – Where the appellant sought an adjournment due to the respondent’s failure to file submissions as ordered – Appellant given leave to file written submissions in response – Application to adduce further evidence – Where the circumstances in which the Court can accept further evidence are circumscribed – No circumstance established – Applications dismissed – Where the appellant sought leave to file an application seeking that the proceedings be transferred to the Federal Court or Supreme Court – Where the application is an attempt to re-litigate a matter already determined – Leave refused.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – Where the appellant seeks the recusal of the appeal bench – Application brought after hearing – Where the test for apprehended bias is not satisfied – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the appeal is wholly unsuccessful – Costs ordered in favour of the mother on party/party basis.

  • Groth & Banks [2017] FamCAFC 206

    04 Oct 2017

    FAMILY LAW – APPEAL – Parenting – Relocation – Whether the findings of the primary judge were available on the evidence – Whether the primary judge failed to make findings in the context of unchallenged evidence of family violence – Where findings not made but evidence taken into account – Where case turns on its own facts – Appeal dismissed.

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

  • Malloy and Anor & Stopford Malloy [2017] FamCAFC 205

    05 Oct 2017

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – SUBPOENAS – Where the decision pertains to practice and procedure – Where an adjournment of the hearing was unnecessary – Where the task of the primary judge at the interlocutory stage was not to determine whether the documents sought would be admissible as relevant at trial – Where the task of the primary judge was to consider whether the wife had a legitimate forensic purpose in seeking production of the documents, and that is usually established by demonstrating that they have an apparent relevance to the issues in the substantive proceedings – Where the decision of the primary judge discloses no error of principle and its correctness is not attended with sufficient doubt to be overturned – Where no substantial injustice can result from the refusal of leave supposing the decision to be wrong – Application dismissed.

    FAMILY LAW – APPEAL – FURTHER EVIDENCE – Where the further evidence sought to be adduced is in dispute which renders it practically impossible to allow its admission – Where the application misconceives the subpoena process and the requirements placed on the recipient of the subpoena – Where the task of the primary judge is to consider the “apparent relevance of the documents, not determine once and for all their relevance” – Where the further evidence fails to demonstrate error by the primary judge – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where no application for costs was made in the written submissions of either party – Rules as to costs apply.

  • Malloy and Ors & Stopford Malloy [2017] FamCAFC 204

    05 Oct 2017

    FAMILY LAW – APPEAL – CROSS-APPEAL – LEAVE TO APPEAL – SPOUSAL MAINTENANCE – ENFORCEMENT – VARIATION – Where there is sufficient doubt about the decision so as to justify its reconsideration and substantial injustice would flow if the orders are not set aside, supposing those orders to be wrong – Leave to appeal granted and leave to cross-appeal granted in part – Where the primary judge did not err in finding that there was no change of circumstances sufficient to justify a variation of the spousal maintenance orders – Where the primary judge did not err in finding that there were arrears of spousal maintenance such that the application for enforcement was able to be brought – Where the primary judge found it appropriate to appoint receivers and managers to effect the enforcement of spousal maintenance – Where the primary judge applied Chapter 20 of the Family Law Rules 2004 (Cth) – Where s 109A of the Family Law Act 1975 (Cth) provides the power to make Rules which apply to the present circumstances – Where s 109A must be given a wide interpretation – Where s 80(3) of the Family Law Act 1975 (Cth) is not an exclusive source of power for the Rules made in Chapter 20 and does not impermissibly enlarge the court’s jurisdiction – Where the primary judge was not limited to s 80(1)(k) of the Family Law Act 1975 (Cth) as being the only source of power to appoint Receivers  Where the primary judge erred in the exercise of her discretion in finding that it was appropriate to make the orders appointing Receivers – Appeal and the cross-appeal allowed in part.

    FAMILY LAW – APPEAL – FURTHER EVIDENCE – Where the further evidence sought to be adduced is controversial – Where the evidence does not buttress the findings of the primary judge – Application dismissed.

    FAMILY LAW – APPEAL – REOPEN – FURTHER EVIDENCE – Where the basis and the purpose of adducing the further evidence is unclear, and its relevance to the appeal and the cross-appeal is not apparent – Where the evidence does not demonstrate any error by the primary judge and nor does it buttress her Honour’s findings – Application dismissed. – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where it was agreed that the question would be the subject of written submissions by the parties – Where orders are made for the filing of submissions from the date hereof.

  • Wilmer & Golding [2017] FamCAFC 203

    03 Oct 2017

    FAMILY LAW – APPEAL – EXPEDITION – Where the wife seeks to expedite the hearing of the appeal in relation to the refusal by the primary judge to grant a stay – Where the wife should have sought to expedite the hearing of the appeal against the dismissal of her restraint application – Where the wife makes an oral application to expedite that appeal – Where if the appeal is not expedited and heard and determined before the hearing of the listed trial it will be rendered nugatory – Hearing of the appeal against dismissal of the restraint application expedited.

    FAMILY LAW – APPEAL – COSTS – Where the husband seeks his costs – Where the application is opposed – Where there are circumstances which justify an order for costs – Costs ordered as sought.

  • Malcher & Malcher (Security For Costs) [2017] FamCAFC 202

    29 Sep 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – Security for costs – Where the appellant husband ordinarily resides outside of Australia – Where the appellant husband has few assets in Australia – Where the appellant husband is in a poor financial position and it is likely that an order for security for costs would stifle the appeal – Where the appeal is arguable – Where there was delay in the bringing of the application for security for costs – Where the appellant husband is unlikely to comply with an order for costs if the appeal is unsuccessful – Where, on balance, the matters raised weigh against the making of an order for security for costs – Application dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Where the appellant husband seeks an extension of time to file transcript and a Summary of Argument – Where the application is not opposed by the wife or the ICL – Extensions of time granted.

  • West & White [2017] FamCAFC 201

    19 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 – Application to adduce further evidence – Where the evidence was available to be adduced before the primary judge – Where the circumstances in which Court can accept further evidence are circumscribed – Where these conditions are not met – Application dismissed.

    FAMILY LAW – APPEAL – CONTRAVENTION – Appeal against dismissal of contravention application – Weight afforded to evidence – 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 94(2A) of the Family Law Act 1975 (Cth) – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent to the appeal seeks quantified costs – Where the appeal was wholly unsuccessful – Where impecuniosity is not a bar to the making of a costs order – Application of principles set out in Sresbodan & Sresbodan and Ors [2016] FamCA 954 – Costs ordered in quantified sum.

  • Telama & Telama (No. 2) [2017] FamCAFC 194

    15 Sep 2017

    FAMILY LAW – APPEAL – CHILD SUPPORT – Binding child support agreement – Appeal against decision to set aside a binding child support agreement pursuant to s 136(d) of the Child Support (Assessment) Act 1989 (Cth) – Non-disclosure of evidence as required under a Notice to Produce and the Federal Circuit Court Rules 2001 (Cth) – Whether there was sufficient evidence for the primary judge to find exceptional circumstances and hardship – Appeal allowed.       

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Leave granted.

    FAMILY LAW – APPEAL – COSTS – No application for costs against the respondent – Application for a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and rehearing granted.

  • Selwood and Anor & Selwood & Selwood [2017] FamCAFC 197

    19 Sep 2017

    FAMILY LAW – APPEAL – procedural fairness ¬ where the trial judge expressed a preliminary view as to the outcome of the proceedings –where the orders ultimately pronounced were not in accordance with this preliminary view – where the appellants contend that they were denied procedural fairness because her Honour failed to seek further addresses from the parties after changing her view – where the preliminary view was expressed at the conclusion of oral argument when the parties had finished making their oral submissions – where no error demonstrated.

    FAMILY LAW – APPEAL – JUDGMENTS – adequacy of reasons – where the appellant contends that her Honour’s reasons do not adequately explain the conclusion reached by her Honour when regard is had to the preliminary view her Honour expressed – where no error demonstrated – appeal dismissed.

  • Rusken & Jenner [2017] FamCAFC 187

    06 Sep 2017

    FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – property adjustment – where the wife was admitted to a mental health facility – where the wife sought an adjournment on the basis that she was unable to prepare her case as a result – where the primary judge dismissed the adjournment application – where the husband sought that the matter be summarily dismissed – where the primary judge dismissed the wife’s Initiating Application – where justice demanded that the orders be set aside to afford the wife an opportunity to make and prosecute her case – where substantial injustice would occur if leave was refused – application for leave to appeal allowed – appeal allowed – costs certificate issued to the husband.

    FAMILY LAW – APPLICATION IN AN APPEAL – adduce further evidence – where the evidence to be adduced included a large number of mental health records in respect of the wife’s admission to hospital – where leave was confined to pages identified during the course of the appellant’s oral argument.

  • Paret & Paret and Ors [2017] FamCAFC 199

    18 Sep 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no satisfactory explanation as to why the applicant was unable to file his Notice of Appeal within time – Where none of the grounds of appeal relied on by the applicant have any chance of success – Where the appeal has no merit – Where there is prejudice to all parties no matter what the decision – Where the lack of any adequate explanation of the failure to file within time and the absence of any prospect of success of the proposed appeal outweigh any prejudice to the applicant in refusing his application – Application dismissed.

    FAMILY LAW – COSTS – Where the respondents seek their costs thrown away – Where there are circumstances which justify such an order – Costs ordered in favour of the respondents.

  • Crowther & Tothill [2017] FamCAFC 200

    18 Sep 2017

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is an adequate reason for the failure by the applicant to file her Notice of Appeal within time – Where it cannot be demonstrated that the appeal is hopeless or doomed to fail – Where there is prejudice to both parties no matter what the decision and in the circumstances the interests of justice require that the application be granted – Application granted.

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

    FAMILY LAW – COSTS – Where the respondent seeks his costs – Where there are circumstances which justify such an order – Costs ordered in favour of the respondent.

  • Coston & Spratt [2017] FamCAFC 192

    13 Sep 2017

    FAMILY LAW – APPEAL – COSTS – Application for costs of discontinued appeal – Where the appellant discontinued the appeal the day preceding the procedural hearing – Where the respondent incurred costs unnecessarily – Where costs awarded in a fixed sum. 

  • Bandent & Bandent [2017] FamCAFC 193

    14 Sep 2017

    FAMILY LAW – APPEAL – CHILDREN – Where the matter was adjourned to enable the appellant to file an amended Notice of Appeal setting out competent grounds of appeal – Where the appellant was aware of the adjourned hearing but has not appeared – Where the respondent seeks that the appeal be dismissed – Where there are no competent grounds of appeal set out in the Notice of Appeal and the appeal has no reasonable prospect of success – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs thrown away – Where there are circumstances which justify such an order – Costs ordered in favour of the respondent.

  • Kappas & Kappas [2017] FamCAFC 189

    13 Sep 2017

    FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the applicant’s draft Notice of Appeal does not disclose competent grounds of appeal identifying appealable errors by the trial judge – Where the applicant seeks an adjournment to file an amended draft Notice of Appeal containing competent grounds of appeal – Application adjourned.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs of today thrown away – Where there are circumstances which justify such an order – Costs ordered in favour of the respondent.