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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.

  • Trebiano & Trebiano [2018] FamCAFC 110

    15 Jun 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks expedition of his notice of appeal against final property orders – 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.

  • Whent & Marbrand [2018] FamCAFC 95

    25 May 2018

    FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge erred in determining pursuant to s 79(2) of the Family Law Act 1975 (Cth) that it was not just and equitable to make an order for property adjustment in favour of the husband – Where no appealable error established – Appeal dismissed.

    FAMILY LAW – COSTS – Husband to pay wife’s costs of and incidental to the appeal.
  • Werth & Pacapelli [2018] FamCAFC 106

    07 Jun 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the mother sought to adduce further evidence on the appeal – where the further evidence contained opinions expressed by psychologists as to the mental health of one of the three subject children – where the subject evidence was highly contentious and was produced without any input from the father – where the opinions stated by the psychologists provided no elaboration of the criteria used to form such opinions – where the expert family report writer provided her evaluation having had the benefit of being briefed by the ICL, reviewing all relevant documents and interviewing the father, the mother and each of the children – where the mother’s further evidence, if accepted, would not demonstrate that the order under appeal was erroneous or would have produced a different result if it had been available at the trial – application to adduce further evidence dismissed.

    FAMILY LAW – APPEAL – PARENTING – where the mother contended that the trial judge placed insufficient weight on evidence indicating that one of the subject children suffered separation anxiety from the mother – where the mother’s oral evidence at trial and the evidence of the subject child provided to the family report writer identified numerous factors contributing to his depressive state and anxiety – where the expert family report writer, whilst noting significant problems with respect to the child’s mental health, did not identify separation anxiety from the mother as an issue – where the child expressed a desire to live with the father – where challenge as to the weight given in a discretionary judgment can only succeed when the appellate court is satisfied that the trial judge was plainly wrong – where the trial judge concluded that there was no probative evidence to support the mother’s propositions – where the mother criticised the trial judge and the ICL for failing to undertake further enquiries into the issue of separation anxiety – where the ICL does not have a duty to investigate and present the case for one of the parties and the Court is not equipped to conduct inquisitorial proceedings – where the trial judge’s path of reasoning to his conclusion was readily discernible from the reasons for judgment – appeal dismissed – mother to pay father’s costs fixed in the sum of $11,169.


  • Greenhill & Carter [2018] FamCAFC 108

    24 Apr 2018

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Security for costs – To adduce further evidence – Where application dismissed.

  • Bartz & Manthey [2018] FamCAFC 109

    13 Jun 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite her appeal against interim parenting orders – Where the matter is not one  which might ordinarily attract an order for expedition – Unusual circumstances – Where final hearing dates should not be jeopardised – Where there is no obvious nexus between the appeal and the matters to be determined on a final basis – Where it was in the interests of the child and justice that the appeal be determined expeditiously – Application granted.

  • Elei & Dodt [2018] FamCAFC 92

    17 May 2018

    FAMILY LAW – APPEAL – DE FACTO SPOUSAL MAINTENANCE – Appeal against interim orders – Findings of fact – Whether the respondent is unable to support herself – Whether the respondent was obliged to prove unsuccessful applications for employment – Whether the appellant had capacity to pay spousal support – Where the appellant re-partnered and contributes to support of partner and partner’s children – Appeal allowed in part.

    APPEAL – DE FACTO PROPERTY – Partial property order – Where funds are available – Modest order – No error – Leave to appeal refused.

    APPEAL – LEAVE TO APPEAL – Leave to appeal granted in part.

    APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Error established without it being necessary to consider the further evidence – Application dismissed.

    APPEAL – COSTS – Where each party had a measure of success – Application for costs by the appellant dismissed – Application for costs by the respondent dismissed – Costs certificates issued for the appeal.

  • Nailon & Bowkett [2018] FamCAFC 103

    30 May 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother filed an application to adduce further evidence – where the father opposed that application – where the application was heard in conjunction with the substantive appeal – where the further evidence did not meet any of the criteria for admission of further evidence on appeal by reference to the principles espoused by the High Court – application dismissed.

    FAMILY LAW – APPEAL – PARENTING – where the mother contended the trial judge erred in failing to give sufficient weight to the child’s views and to the recommendations of the family report writer – where the trial judge made a finding that the child’s views were manipulated by the mother – where the trial judge was not bound by any opinion or recommendation of the expert – where the trial judge plainly took the child’s views into account in determining whether the child should relocate to South Australia – where the trial judge’s orders were consistent with the mother’s proposal expressed during her closing submissions at trial as to the time the child should spend with the father – where such orders were a legitimate exercise of the trial judge’s discretion – where the mother asserted she had suffered procedural unfairness, that the trial judge was unreasonable and biased and the decision made was plainly unreasonable – where nothing to which the mother directed attention on appeal established such assertions or demonstrated error on the part of the trial judge – appeal dismissed – no order as to costs.

  • Merla & Merla [2018] FamCAFC 101

    30 May 2018

    FAMILY LAW – APPEAL – CHILDREN – Schooling – Where the primary judge made interim orders changing the schools the children were to attend – Where the child the subject of the orders under appeal was resistant to changing schools – Weight given to child’s views – Where there was evidence that the order for the change of schools was having a detrimental impact on the child’s mental health – Whether the primary judge erred by failing to find that there were changed circumstances for the purposes of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) – Error demonstrated – Appeal allowed – Matter remitted to the Federal Circuit Court of Australia for rehearing – Costs certificates issued in accordance with the Federal Proceedings (Costs) Act 1981 (Cth).

    FAMILY LAW – APPEAL – EVIDENCE – Refusal to admit – Where the father tendered a bundle of medical reports about the child’s mental health status – Where the primary judge refused to admit the evidence on the basis that one of the reports was unsigned – Discussion of principles in ss 69ZN and 69ZT of the Family Law Act 1975 (Cth) – Where the documents were relevant to the Rice and Asplund issue and should have been admitted – Error demonstrated – Appeal allowed.

  • Jabbar & Gade [2018] FamCAFC 105

    05 Jun 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of her appeal against final parenting and property orders – Where the appeal raises serious parenting issues – Where the bases on which the applicant brings her application do not support an order for expedition – Application dismissed.

  • Crowley & Picton [2018] FamCAFC 100

    30 May 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Applications to adduce a transcription of a JIRT interview and a Department of Family and Community Services contact record as further evidence in the appeal – Application of principles in CDJ v VAJ (1998) 197 CLR 172 –  Where the evidence was available or obtainable at the time of the trial but was not called – Where the further evidence, if it had been called during the trial, would not have changed the outcome – Applications dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO AMEND – Oral application for leave to amend the grounds of appeal and to rely on an updated Summary of Argument – Application unopposed – Leave granted.

    FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Findings of fact – Weight given to the evidence – Whether the primary judge gave inadequate weight to the need to protect the child from physical and psychological harm – Whether the primary judge gave inadequate weight to evidence about the harm the mother posed to the child when in the mother’s care – Where many of the grounds of appeal were dependent on further evidence being received – Appeal dismissed.

  • Blinko & Blinko [2018] FamCAFC 104

    04 Jun 2018

    FAMILY LAW – APPEAL – CHILDREN – Family Violence – Where father has previously engaged in family violence – Determined that father does not now pose risk to the child but mother believes he does – Expert evidence that contact between child and father would have serious adverse effect on mother’s parenting ability – Expert evidence that child would ultimately grieve loss of relationship with father – Whether the primary judge failed consider a risk of psychological harm to the child when refusing father’s application to spend time and communicate with the child – Failure to make injunction to mitigate a known risk to the child – Whether the primary judge failed to balance of number of risks to the child – Best interests of the child – Whether the primary judge considered the entirety of the evidence – Appeal against failure to make injunction allowed and injunction made - Appeal otherwise dismissed.

    FAMILY LAW – APPEAL – COSTS – Where both parties partly successful – Where the appeal raised matter of substance – Mother’s application for costs dismissed.

  • Ardagh & Ardagh [2018] FamCAFC 102

    30 May 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – where the father sought to expedite the hearing of the appeal – where the orders under appeal enable the mother to take the parties’ child out of the Commonwealth of Australia as and from 30 June 2018 – where the father’s grounds of appeal asserted a risk that the mother may not return to Australia with the child – where r 12.10A of the Family Law Rules 2004 (Cth) can be applied in applications to expedite the hearing of an appeal – where the father acted reasonably and without delay in the conduct of his appeal – where if the appeal was not expedited at least one aspect of the father’s appeal may be rendered nugatory – where the mother raised no issue of prejudice to her if the appeal was expedited and did not oppose the father’s application – application for expedition of the appeal allowed.

  • Pannett & Crain [2018] FamCAFC 99

    24 May 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Where the applicant seeks an extension of time to file a Notice of Appeal – Where there was a delay between the primary judge delivering an ex tempore judgment and settling the reasons for judgment – Where the settled reasons were necessary to prepare the Notice of Appeal – Where there is therefore a reasonable explanation for the applicant’s delay in filing a Notice of Appeal – Application allowed. 

  • Oakley & Millar (No. 2) [2018] FamCAFC 98

    23 May 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Transcript – Where the appellant seeks orders that the Court provide the transcript of the hearing before the primary judge and the Appeal Registrar prepare the appeal books – Where there are exceptional circumstances here which justify the making of such an order – Court to provide transcript and prepare the appeal books. 

  • Broughton & Broughton [2018] FamCAFC 96

    25 May 2018

    FAMILY LAW – APPEAL – PARENTING – Where the husband asserts that the trial judge failed to apply the principle that children should be protected from exposure to family violence – Where the trial judge gave specific and prominent consideration to this issue – Where the trial judge made no error in considering the need to protect the children from exposure to family violence – Where the trial judge refused to allow the husband to present evidence of recordings that he had made of conversations taking place between him and the children, and him and the wife – Where the recordings are at least arguably relevant, and thus prima facie admissible – Where the tender of the recordings raises the application of s 138 of the Evidence Act 1995 (Cth) (“Evidence Act”), as it is quite possible that the recordings were improperly made (s 5 Listening Devices Act 1992 (ACT)) – Where it would have been grossly unfair to have allowed admission of the recordings at such a late stage in the proceedings, under such circumstances (ss 135 and 136 Evidence Act) – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the Court is not persuaded that the trial judge erred in finding that the husband had “acted recklessly, negligently or wantonly” in causing the diminution of the value of the former matrimonial home – Where the trial judge correctly took those findings into account when considering the relevant s 75(2) factors – Where the husband failed to establish that the trial judge’s findings of fact in relation to the damage to the property were not open on the evidence – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the Independent Children’s Lawyer sought an order for costs in the event that the appeal was unsuccessful – Where an order for costs would cause financial hardship for the husband – No order as to costs.

  • Harris & Dewell and Anor [2018] FamCAFC 94

    25 May 2018

    FAMILY LAW – APPEAL – CROSS-APPEAL – PROPERTY – Whether the unit trust was the husband’s “puppet” or “creature” – Where the husband did not ostensibly control or hold any interest in the unit trust – Whether the property of the unit trust should be treated as property of the husband by reason of the extent, manner and history of the husband making decisions directly affecting the unit trust and his dealings with its property – Where the primary judge accepted that the husband exercised control over the unit trust – Where the primary judge concluded that nevertheless the husband did not have a “lawful right to benefit from the assets of the trust” in the sense described by Finn J in Stephens and Stephens (2007) FLC 93-336 – Where there was no error in the primary judge’s conclusion – Where control is not sufficient of itself – Where what is required is control over a person or entity who, by reason of the powers contained in the trust deed can obtain, or effect the obtaining of, a beneficial interest in the property of the trust – Whether the primary judge failed to take into account the consequences of the husband’s significant non-disclosure in any meaningful way – Whether funds given to the husband by his father should have been characterised as compensation for work done rather than a gift simpliciter – Whether the primary judge erred in assessing the contributions of the husband and wife – Whether the s 75(2) adjustment was “manifestly excessive” – Whether the primary judge failed to allow the husband sufficient time to adduce evidence as to any potential CGT liability – No appealable error established – Appeal and cross-appeal dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the evidence sought to be adduced was a codicil to the second cross-respondent’s last will and testament and a letter of demand requiring repayment of the second cross-respondent’s loan account with the unit trust – Where the evidence post-dated the trial – Where the evidence was inadmissible and consisted of conclusions and argument as opposed to facts – Where the evidence did not demonstrate any error by the primary judge – Application dismissed.

  • Kulat & Azzarudin [2018] FamCAFC 97

    24 May 2018

    FAMILY LAW – APPEAL – PARENTING – where the appellant contended the trial judge erred in the exercise of her discretion and provided inadequate reasons concerning application of the rule in Rice and Asplund (1979) FLC 90-725 – where no application was made by the appellant to have the rule in Rice and Asplund dealt with as a preliminary issue – where the rule was considered after a family report was undertaken and at the end of a trial – where previous final parenting orders made in 2012 provided for a change in the child’s primary care arrangements and for the child to relocate to Country C in 2018 to commence secondary school – where the child expressed views to the single expert report writer contrary to the terms of the 2012 orders – where the child’s intelligence and level of maturity was “impressive” – where the operative terms of the 2012 orders carried profound changes for the child – where ample evidence existed of circumstances requiring reconsideration of the 2012 orders – where the reasons for judgment demonstrated that the trial judge had regard to far more than simply the parties’ inability to agree on time in disposing of the Rice and Asplund issue – where the trial judge properly exercised her discretion in assigning weight to the child’s views as one of the considerations taken into account pursuant to s 60CC of the Family Law Act 1975 (Cth) – where there is no merit in the appellant’s challenges – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $18,515.10 

  • Ayre & Ayre [2018] FamCAFC 93

    23 May 2018

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant asserts that the trial judge “mixed up” the properties the subject of the property settlement application resulting in the parties each retaining a property they had not sought to keep – Where in the event that the trial judge determined that the parties were to retain specific properties not in accordance with their submissions he should have provided the parties with an opportunity to address him on that proposal – Where that was not done and it therefore adds weight to the argument that the trial judge simply mixed up the properties – Where the respondent argued that the liberty to apply given by the trial judge was the way this difficulty could have been addressed – Where the liberty to apply only permitted the parties to address the machinery provisions of the trial judge’s order and not to seek to have any of the substantive provisions of that order altered – Where the trial judge did not err in finding that the appellant retained cash monies at the time of separation – Where there is merit in three of the grounds of appeal – Appeal allowed – Discretion re-exercised – Distribution of the properties reversed and the amount to be paid to the respondent by the appellant recalculated.

    FAMILY LAW – COSTS – Where no order for costs was sought by the appellant in the event that the appeal was successful – Where both parties sought costs certificates – Where the appeal is allowed on a question of law and each party is to bear their own costs – Costs certificates granted to the parties.

  • Flinton & Flinton [2018] FamCAFC 90

    10 May 2018

    FAMILY LAW – APPEAL – Appellant deceased – Where the respondent seeks an order dismissing the appeal for want of prosecution – Where even after notification of listing of the appeal for dismissal no-one came forward to pursue the appeal – Appeal dismissed. 

  • Molloy & Reid [2018] FamCAFC 89

    11 May 2018

    FAMILY LAW – APPEAL – CHILDREN – International relocation – Where the mother was not permitted to relocate with the children from Queensland to New Zealand – Whether the primary judge erred in creating a “checklist” of issues and by reciting dicta in Morgan & Miles (2007) FLC 93-343 – Deiter & Deiter [2011] FamCAFC 82 and MRR v GR (2010) 240 CLR 461 considered – Held there was no error in the primary judge paraphrasing the law or developing a list of issues with the assistance of the parties – Jurchenko & Foster (2014) FLC 93-598 considered – Held primary judge had regard to s 65DAA(5) and the essential basis on which his decision rested could be understood – No error in the attribution of weight to the father’s behaviour – The primary judge’s focus upon and findings regarding the “diminishment” of the children’s relationship with the father did not amount to error – Held the mother’s case did not fail because she did not present “compelling reasons” for relocation – Where the primary judge was satisfied that the children would maintain a “meaningful relationship” with both parents if the relocation was permitted but found the father’s proposal was in the best interests of the children – Held the primary judge evaluated the benefits and detriments associated with relocation and did not treat the appellant mother’s fall-back position as a “proposal” – U v U (2002) 211 CLR 238 considered – Appeal dismissed – Timetable set out for the filing of costs submissions.

    FAMILY LAW – APPEAL – Cross appeal – Discrete issue concerning a notation to an order – Held no error and therefore no basis to amend the notation – Cross appeal dismissed.

  • Merritt & Merritt [2018] FamCAFC 88

    10 May 2018

    FAMILY LAW – APPEAL – CHILD ABUSE – Unacceptable risk of sexual assault and emotional harm – Findings of fact – Adequacy of reasons – Appeal allowed.

    FAMILY LAW – APPEAL – COSTS – Application for costs dismissed – Costs certificates issued pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).


  • Malcher & Malcher (No. 2) [2018] FamCAFC 87

    11 May 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Oral application for an adjournment of the appeal hearing – Where the husband gave no adequate reason for seeking an adjournment – Application for adjournment refused – Oral application to amend the Notice of Appeal to add a ground of appeal – Where the husband’s proposed ground of appeal was raised only vaguely in his Summary of Argument – Application refused.

    FAMILY LAW – APPEAL – PROPERTY – Assessment of factors pursuant to s 75(2) of the Family Law Act 1975 (Cth) – Whether the primary judge failed adequately to take into account the disparity between the income earned by the wife and that by the husband – Whether it was open to the primary judge to find that the husband had a significant earning capacity and had access to a source of funds – Whether the husband’s “substantial” contributions were taken into account by the primary judge – Whether the primary judge failed to address specific contributions relied on by the husband – Whether the primary judge gave no reasons for dismissing the husband’s application for spousal maintenance – Whether the primary judge erred as to his findings about the husband’s earning capacity for the purposes of the Child Support (Assessment) Act 1989 (Cth) – Where the primary judge’s finding was open on the evidence – Whether the primary judge failed to take into account an exhibit comprising bank statements tendered by the husband – Where the exhibit could be given little weight – Whether the primary judge erred by failing to take into account the wife’s late disclosure of some evidence – Whether the primary judge failed to understand the husband’s case as to his financial circumstances – Whether the primary judge demonstrated actual bias or failed to afford the husband procedural fairness – No appealable error demonstrated – Appeal dismissed.

    FAMILY LAW – APPEAL – PARENTING – Single expert – Whether the primary judge erred by relying on the evidence of the single expert – Where the husband asserts that the single expert’s evidence was tainted because of an extensive and unauthorised conversation that occurred between the single expert and the children’s therapist – Where the husband made an oral application for the removal of the single expert – Where the primary judge refused the application and indicated that he would give reasons for doing so in the reasons for judgment but failed to do so – Where this failure was not material to the outcome as the primary judge did not ultimately rely on the single expert’s recommendation as to parental responsibility – Where the husband asserted that the primary judge failed to take into account that the single expert had changed his opinion on multiple occasions – Where the primary judge expressly considered this and did not base his decision on the single expert’s evidence – No appealable error demonstrated – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Where the wife seeks an order for indemnity costs – Where the circumstances of the appeal fall short of constituting exceptional circumstances justifying an order for indemnity costs – Costs order in favour of the wife on a party/party basis in a fixed sum – Costs order in favour of the Independent Children’s Lawyer in a fixed sum calculated at Legal Aid scale.

  • Huda & Huda & Laham [2018] FamCAFC 85

    10 May 2018

    FAMILY LAW – APPEAL – PROCEDURAL UNFAIRNESS – Whether interventions by the primary judge during the trial resulted in procedural unfairness to the husband and a third party – Where the primary judge found that the husband and third party had attempted to perpetrate a fraud upon the Court – Where the procedural unfairness challenge should be considered prior to any other challenges – Where an appellate court should restrict its assessment of the evidence to matters necessary to the finding of error – Where the evidence of the third party was that there was an outstanding debt owing to him by the husband – Where the veracity and reliability of the husband’s and the third party’s evidence was crucial to that issue – Whether the primary judge’s interventions impacted the ultimate findings – Where the “number, length, terms and circumstances of the interventions” were an important consideration – Where the interventions occurred at critical points of the husband’s and third party’s cross examination – Where the interventions, when read in the context of the transcript and the primary judge’s reasons as a whole, demonstrated procedural unfairness – Appeal allowed – Remitted for rehearing.

    FAMILY LAW – APPEAL – COURTS AND JUDGES – Apprehended Bias – Whether the primary judge failed to bring an impartial mind to credit findings – Whether the conclusions of dishonesty were drawn without any factual foundation or from an insufficient factual foundation – Where the primary judge was not asked to recuse himself – Where the circumstances in this case can be distinguished from Vakauta v Kelly (1989) 167 CLR 568 – Where the failure to raise the issue of bias and seek the primary judge’s recusal militated strongly against the success of any such claim – Where apprehended bias not demonstrated.

  • Camden Pty Ltd & Laue and Ors [2018] FamCAFC 91

    11 May 2018

    FAMILY LAW – APPEAL – JURISDICTION – whether the Family Court of Western Australia (“FCWA”) lacked jurisdiction and power to determine claims involving a third party and to make a declaration pursuant to Part VIIIAA of the Family Law Act 1975 (Cth) – where the appellant contended that if the FCWA had accrued jurisdiction, the Court’s powers were confined to those contained within the Family Court Act 1997 (WA) or Part VIIIAA of the Family Law Act 1975 (Cth) – where the FCWA is invested with federal jurisdiction and has the authority to adjudicate all issues comprising the matter between properly-joined parties – where the court’s powers derive from a single composite body of federal and non-federal law – where the trial judge had all powers as were necessary to quell the controversy arising from the matrimonial cause and was not restricted to Part VIIIAA of the Family Law Act 1975 (Cth) – where no error was demonstrated in the trial judge finding that there was a single justiciable controversy – where the contractual claim and remedies sought were within the federal jurisdiction of the FCWA.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where further evidence comprising two relevant Trust Deeds was adduced by consent – where the appellant sought to also adduce further evidence in respect of an application by two of the children of the husband and wife for distribution to them from the husband’s estate – where such further evidence was opposed by the wife – where the further evidence sought to be adduced was not capable of demonstrating that the trial judge was in error in determining that there was a single justiciable controversy – application dismissed.

    FAMILY LAW – APPEAL – where the appellant contended it was not open to the trial judge to conclude on the evidence that there was an enforceable agreement between the parties and the husband’s mother, Mrs Laue Snr, and their respective entities in relation to a real property and sheep business known as Property B – where the wife argued that it was unconscionable for Mrs Laue Snr to resile from the representations provided – where the reasons of the trial judge do not provide a discernible path to the conclusions reached as to the agreement, particularly in relation to the parties’ contractual intention and the terms of the agreement – where the trial judge’s adverse credit findings in respect of Mrs Laue Snr were infected with factual errors – where it was asserted that the trial judge’s excessive intervention gave rise to a reasonable apprehension of bias on the part of the trial judge – where the trial judge acted on evidence inconsistent with the facts in making significantly adverse findings as to Mrs Laue Snr’s credit – appeal allowed – parties to file written submissions as to costs.

  • Strand & Strand [2018] FamCAFC 74

    13 Apr 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file a notice of appeal against property settlement orders – Adequate explanation for the delay – Held substantial issue to be determined on appeal – Time within which the applicant had to file a notice of appeal extended – Respondent’s application for costs reserved to the Full Court. 

  • Rayson & Dargusch [2018] FamCAFC 40

    02 Mar 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file notice of appeal against spousal maintenance order – Proposed notice of appeal does not contain identifiable grounds of appeal – Application dismissed. 

  • Nelson & Nelson [2018] FamCAFC 86

    08 May 2018

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the first respondent, third respondents and Independent Children’s Lawyer consent to an order for 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 – Application allowed. 

  • Cubbin & Cutler and Anor [2018] FamCAFC 84

    03 May 2018

    FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Father appeals orders for the children to live with the mother and spend substantial time with him, seeking instead that the children live with him and spend significant time with the mother – Independent Children’s Lawyer supports the appeal and also cross-appeals the orders – Held primary judge gave adequate reasons for decision and reached conclusions independently by relying on evidence before him – No substantive error established – Orders relating to the parties attending mediation and therapy were not sufficiently raised with the parties – Orders relating to the father’s time with the children uncertain – Appeal allowed in part – Specific issues remitted, preferably to be heard by the primary judge – Father to pay the mother’s costs in fixed sum – Costs certificates issued to the father and the Independent Children’s Lawyer for the rehearing. 

  • Widmann & Widmann [2018] FamCAFC 54

    19 Mar 2018

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Consent orders proposed by the parties to allow the appeal and re-exercise the discretion – Consideration of the merit of parties reaching their own resolution – Consideration of the costs likely to be incurred when parties elect to be represented by counsel of great ability – Orders made by consent – Appeal allowed and discretion re-exercised – Each party to bear their own costs.

  • Taccini & Taccini [2018] FamCAFC 27

    01 Feb 2018

    FAMILY LAW – APPEAL – Application to extend time to appeal – Applicant seeks to appeal against property settlement orders – Joshua v Joshua (1997) FLC 92-767 and Tormsen and Tormsen (1993) FLC 92-392 considered – There is a substantial issue to be raised on appeal – Adequate explanation for the delay – No relevant prejudice to the respondent – Time within which to appeal extended – Applicant to contribute to respondent’s costs in fixed sum.

  • Sabrosky & Putnam [2018] FamCAFC 32

    14 Feb 2018

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Single judge appeal – Where the wife has not participated in proceedings at first instance or on appeal and did not provide disclosure as ordered by the court – Undefended hearing where the Acting Magistrate foreshadowed making the orders as sought by the husband – Judgment delivered five months after hearing held the husband’s proposed orders were not just and equitable and cash payment ordered in favour of the wife – No notice given to the husband of the order for a cash payment or its form – Held husband denied procedural fairness – Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 considered – Clear expectation was disappointed and unfairness to the husband – Held Acting Magistrate failed to properly take into account the significance of the wife’s failure to participate in the proceedings – Merit in both grounds of appeal – Appeal allowed.

    FAMILY LAW – APPEAL – Re-exercise of discretion – Matter proceeded almost entirely on the papers – Appeal court in as good a position as any other judicial officer to determine the matter – Held it is just and equitable to make orders as proposed by the husband – Costs certificate issued.

  • Keehan & Keehan [2018] FamCAFC 79

    19 Apr 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the application was heard undefended – Where the primary judge made orders in relation to a contravention application filed by the mother – Where the primary judge also made final parenting orders – Where the gravamen of the mother’s appeal related to the parenting orders – Where the mother sought to abandon the grounds related to the contravention application and focus on the parenting orders – Where the child the subject of the proceedings was nearly 17 years old – Where the mother’s central assertion was a lack of procedural fairness arising from her case in respect of the parenting orders not being properly heard – Where the circumstances justified the expedition of the appeal – Application allowed on the condition that the mother file an Amended Notice of Appeal within 14 days.

  • Keating & Keating [2018] FamCAFC 80

    19 Apr 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the wife sought to file a Notice of Appeal out of time – Where the husband consented to an extension of time.

    FAMILY LAW – APPEAL – COSTS – Where the husband sought an order for costs – Where an offer in writing was made to the wife – Where the wife’s success on appeal is significant to the issue of costs of the application – Where the wife is self-represented and incurred no legal costs in respect of the application – Where the husband’s costs are reserved to the Full Court upon hearing of the appeal.
  • Kai & Gant [2018] FamCAFC 16

    30 Jan 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file a draft appeal book index – Where the applicant seeks to appeal a costs order against her in proceedings she ultimately discontinued – Found there is an adequate explanation for the delay but no substantial issue to be raised on appeal – Relatively small amount of costs in dispute considered – Application dismissed – Respondent’s application for costs dismissed.

  • Jeffers & Jeffers [2018] FamCAFC 57

    28 Mar 2018

    FAMILY LAW – APPEAL – Application to extend time to appeal – With whom a child lives – Applicant seeks to appeal orders made for the children to live with the respondent and spend time with the applicant – Gallo v Dawson (1990) 93 ALR 479 and Joshua & Joshua (1997) FLC 92-767 considered – No mandatory requirement for the court to impose an equal time regime for children – Held no substantial issue to be determined on appeal – Delay greater than eight months with no adequate explanation – Application dismissed.

  • Hoebeek and Anor & Hoebeek [2018] FamCAFC 17

    01 Feb 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –  Application to reinstate the appeal deemed abandoned by operation of the Family Law Rules 2004 (Cth) – Appeal filed within time but the applicant failed to file a draft appeal book index – Adequate explanation for the failure to provide the draft appeal book index – Found there is no utility in reinstating the appeal as the grounds of appeal do not identify appealable error – Application dismissed – Applicant to contribute to the respondent’s costs of the application in a fixed sum payable upon the finalisation of the substantive property settlement proceedings.

  • Hants & Hants [2018] FamCAFC 18

    01 Feb 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –  Application for an extension of time within which to seek an order for costs in relation to an abandoned appeal – Delay involved was minimal and the husband was on notice of the wife’s intention to pursue an order for costs – Appropriate in the interests of justice that the extension of time be granted.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for costs on an indemnity basis in relation to the abandoned appeal – Appeal deemed abandoned by operation of the Family Law Rules 2004 (Cth) – No explanation given by the husband for the failure to prosecute the appeal – The husband is not impecunious and was wholly unsuccessful in the proceedings – Order for costs in favour of the wife – Nothing about the conduct of the matter or behaviour of the husband to warrant an order for costs on an indemnity basis – Husband to contribute to the wife’s costs in fixed sum.

  • Graft & McCormick (Costs) [2018] FamCAFC 82

    14 Mar 2018

    FAMILY LAW – APPEAL – COSTS – Where the husband sought an order for indemnity costs – Where the wife opposed an order for costs – Whether the circumstances were special or extraordinary – Where the wife had been litigating relentlessly since the making of final parenting orders – Where the appeals were filed to re-agitate finalised matters – Where the father had been put to considerable expense meeting the mother’s claims – Where the circumstances were deemed special or extraordinary – Indemnity costs ordered against the wife.

  • Corwin & Corwin [2018] FamCAFC 83

    26 Apr 2018

    FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the appellant mother sought leave to adduce further evidence – where none of the further evidence met any of the criteria for the admission of further evidence upon questions of fact on appeal as prescribed in CDJ v VAJ (1998) 197 CLR 172 or overcame the constraints articulated in that authority – application to adduce further evidence dismissed.

    FAMILY LAW – APPEAL – where the mother contended that the trial judge erred in making a number of findings of fact – where those findings of fact were based largely on the evidence provided by the single expert family report writer reporting statements made by the parties’ children during the family report interview – where the mother asserted that the children were coached by the father to provide negative statements about the mother to the family report writer – where the trial judge accepted the family report writer’s opinion that the children were not coached – where it was open to the trial judge to accept the expert’s opinion and the evidence of the children – where the trial judge was keenly aware of the father’s history of domestic violence and his criminal history when making the orders – where the trial judge accepted the evidence of the father and the children that the father’s pattern of behaviour had changed – where the mother’s complaints devolved into complaints that the trial judge ought to have elevated the mother’s own evidence – where there was no substance in the mother’s contentions concerning asserted errors of fact – where there was no substance in any of the complaints of the mother directed to any issue of procedural fairness afforded to her by the trial judge – appeal dismissed – no order as to costs.

  • Causey & Causey [2018] FamCAFC 81

    19 Apr 2018

    FAMILY LAW – APPEAL – PROPERTY – Where the husband did not participate in the Federal Circuit Court proceedings – Where the wife sought 80 per cent of the matrimonial pool – Where the primary judge determined a split of 70 per cent to the wife and 30 per cent to the husband – Where the primary judge ordered the wife pay a cash sum to the husband – Where the primary judge did not take into consideration the wife’s non-financial contributions – Where the appeal was upheld.

    FAMILY LAW – APPEAL – RE-EXERCISE – Where an expeditious end to the financial relationship of the parties was preferred by the wife – Where the husband retained his superannuation – Where the wife retained the former matrimonial home and her superannuation – Where no payment to the husband was required by the wife.

  • Rilak & Tsocas (No. 2) [2018] FamCAFC 78

    23 Apr 2018

    FAMILY LAW – APPEAL – Where the appellant failed to comply with an order for security for costs in relation to an appeal – Where the appeal was thus listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where it is important that disputes be resolved in a just and timely manner – Where the requirements of r 22.45 of the Family Law Rules 2004 (Cth) were satisfied – Appeal dismissed.

  • Gupta & Gupta (No. 2) [2018] FamCAFC 77

    19 Apr 2018

    FAMILY LAW – APPEAL – PARENTING – Findings of fact – Where appeal proceeds in absence of appellant – Whether primary judge made error in findings of fact – Whether the primary judge erred in failing to admit certain affidavit evidence – Whether the primary judge erred in the conduct of the case – No error – Appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to dispense with the requirement to provide the transcript – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where appellant wholly unsuccessful – Whether the appellant would suffer financial hardship – Application for costs of the ICL granted.

  • Gupta & Gupta [2018] FamCAFC 71

    12 Apr 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Adjournment -  Application for adjournment made by appellant by email to the registry two days before the appeal hearing – Inadequate medical evidence – Where the appellant was able to attend court before the primary judge and prepare applications and affidavits during the time covered by his medical certificate – Where the appellant also sought an adjournment on the basis that he had not adequately prepared his appeal – Where the appellant had ample time to prepare his appeal – Application for adjournment dismissed.