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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.

  • Lancefield & Lancefield (No. 2) [2020] FamCAFC 312

    22 Dec 2020

    FAMILY LAW – APPEAL – PARENTING – RESIDENCE – With whom the children should live – Findings that the father was coercive and controlling led to a change in children’s residence – Misstatement of evidence – Errors of fact influenced findings adverse to the father – Children’s views – Consideration of “impressions” of views compared with stated views – Relevant considerations overlooked – Appeal allowed – Certain orders set aside – Matter remitted for rehearing – Costs certificates issued to parties and the Independent Children’s Lawyer.

  • Markwell & Ranwick and Anor (No. 3) [2020] FamCAFC 318

    18 Dec 2020

    FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the mother appeals against orders that she return the children to live in closer proximity to the children’s fathers – Where the appeal raises no question of general principle – Subject to one matter, reasons given in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) – No error established – Appeal dismissed – No order as to costs.

    FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the mother’s recusal application was not considered before judgment was delivered – Requirement to consider challenges to the constitution of the court before other matters – Where none of the complaints were made contemporaneously – Waiver of right to object – No procedural unfairness established.
  • Gallea & Gallea [2020] FamCAFC 322

    17 Dec 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Appeal from final parenting orders – No risk of harm to the child identified to justify the appeal being expedited – Unusual way the applicant father conducted his case at trial will likely adversely affect his prospects of success in the appeal – No circumstances to justify expedition – Application dismissed – Applicant father to pay the respondent mother’s costs.

  • Saltern & Mink [2020] FamCAFC 320

    17 Dec 2020

    FAMILY LAW – APPEAL – PARENTING – Where the father appeals from parenting orders which provide for, inter alia, the child to live with the mother and spend limited daytime, and no overnight time, with the father – Where the primary judge made numerous adverse findings about the father’s credibility as a witness, including as to the central issue of family violence – Whether the primary judge gave adequate consideration to an “alternate” proposal raised for the first time by the father in written submissions provided after the evidence had closed – Where the primary judge gave discrete consideration to the question of time between the child and his father – Where the primary judge was not required to make mention of every fact or argument raised – Whether the primary judge gave weight to matters which were not put to the father during the trial – Where no substantial miscarriage of justice would be demonstrated even if the complaints of error were established – No error established in any event – Appeal dismissed – No order as to costs.

  • Sarti and Anor & Sarti (No. 3) [2020] FamCAFC 319

    17 Dec 2020

    FAMILY LAW – APPEAL – INTERIM PARENTING – Application by grandfather to spend time with grandchild – Where the parents are separated but united in opposition – Effect on parenting of stress from grandfather – Important for the parents to co‑parent harmoniously – Child has established relationship with grandfather – Appeal allowed in part – Re-exercise of discretion – Orders made as to time in a pattern sustainable for all involved.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the parents sought to adduce further evidence of the grandfather’s failing health – Application allowed by consent – Where the appealed orders would not have been made in light of the further evidence.

    FAMILY LAW – APPEAL – COSTS – Where the grandfather seeks a costs order in relation to the parents’ unsuccessful application for a stay of the orders – Failure of the parents to comply with the orders despite no stay having been ordered – Costs order made against the father as the prime mover of the stay application.
  • Simpkin & Simpkin [2020] FamCAFC 315

    17 Dec 2020

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – SPOUSE MAINTENANCE – Payment of spousal maintenance in a lesser sum ordered to afford the respondent a “financial buffer” – Consideration of the respondent’s ability to meet a spousal maintenance order – Failure to consider that an order may be varied or discharged – Error established – Leave to appeal granted in part – Discretion re-exercised – Order varied.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – INTERIM COSTS – Where the applicant sought a litigation funding order against the respondent in circumstances where she has access to superannuation – Where the applicant has failed to establish inability to meet her own expenses – Leave to appeal refused.
  • Khadem & Dabiri [2020] FamCAFC 321

    16 Dec 2020

    FAMILY LAW – APPEAL – Where the appellant appeals an order dismissing an application – Where that application sought relief in relation to r 15.31 of the Federal Circuit Court Rules 2001 (Cth) – Where the appeal was conceded – Where this Court is satisfied that the primary judge erred in law – Appeal allowed – Costs certificates granted to each party.

    FAMILY LAW – LEAVE TO APPEAL – Errors of principle – Where orders effected substantial injustice – Leave to appeal granted.
  • Adlin & Northern Territory Central Authority [2020] FamCAFC 313

    15 Dec 2020

    FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention – Wrongful retention – Appeal from orders requiring two children to return to Thailand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the primary judge was obliged to make a finding as to the place of the children’s habitual residence but did not do so – Return order made without power – Error of law – Appeal allowed – Matter remitted for rehearing.

  • Heidari & Ebadi [2020] FamCAFC 316

    14 Dec 2020

    FAMILY LAW – APPEAL – INTERIM FINANCIAL – Where the parties sought that the appeal be allowed by consent – Where there is ample law to the effect that an appellate court must be satisfied of error when an appeal is sought by the parties to be allowed by consent – Where this Court is satisfied that leave to appeal should be granted and the appeal should succeed – Where there is merit in the grounds of appeal – Appeal allowed – Orders set aside – Matter remitted for rehearing.

    FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where the appeal is properly characterised as a Federal appeal – Where the appeal has succeeded on a question of law – Where the appeal has been listed in a public and formal way and has proceeded to a hearing – Costs certificates granted as sought.
  • Marino & Bello and Anor (No. 2) [2020] FamCAFC 317

    11 Dec 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Stay of earlier Full Court orders – Application allowed – Order made to stay earlier orders.

    FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Review of Appeal Registrar’s decision to reject filing of documents – One application vexatious, doomed to fail and an abuse of process – Applications dismissed – Applicant to pay the costs of the first and second respondent’s in a fixed sum.
  • Kipling & Netis (No. 2) [2020] FamCAFC 306

    02 Dec 2020

    FAMILY LAW – APPEAL – SECURITY FOR COSTS – Where there are serious doubts about the merits of the appeal and it is more likely than not that it will not succeed – Where it is apparent that the appellant has the ability to obtain funds when he needs them and his financial circumstances are not as dire, or as poor, or as impecunious as he has suggested to this Court – Where there is a proper basis for an order for security for costs to be made and it is not apparent that the litigation will be stifled if that order is made – Costs ordered in the sum of $10,000 to be paid within six months of the date of this order – Appeal stayed pending payment of the said amount.

  • Marino & Bello and Anor [2020] FamCAFC 314

    11 Dec 2020

    FAMILY LAW – APPEAL – PARENTING – RECUSAL – SUMMARY DISMISSAL – Apprehended bias – Procedural fairness – Error of law – Recusal order plainly wrong – Where the respondents concede the appeals – Appeals allowed – No order as to costs.

  • Pitman & Hynes (No. 2) [2020] FamCAFC 310

    11 Dec 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant mother seeks a transfer of proceedings from a judge of the Family Court to the Full Court for hearing – Contempt application – Application dismissed.

  • Akbari & Akbari [2020] FamCAFC 309

    11 Dec 2020

    FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Family violence – Where the father challenges the primary judge’s findings as to sexual assault – Where the mother’s evidence was capable of establishing sexual assault to the requisite standard – Weight challenge – Whether excessive weight was placed on the mother’s evidence despite inconsistencies in it – Adequate reasons – Where the primary judge’s findings were open on the evidence – Appeal dismissed.

  • Rabassa & Zackary [2020] FamCAFC 308

    11 Dec 2020

    FAMILY LAW – APPEAL – PARENTING – Appeal against parenting orders – Best interests of the child – Bias – Procedural fairness – Weight challenges – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Decision of the primary judge not plainly wrong – No error of fact or law established – Adequate reasons – Appeal dismissed – No order as to costs.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where much of the material to be adduced was before the primary judge – Contentious documents – Application dismissed.

  • Radecki & Fairbairn [2020] FamCAFC 307

    11 Dec 2020

    FAMILY LAW – APPEAL – PROPERTY – DE FACTO RELATIONSHIPS – Whether a de facto relationship had broken down – Dispute between the appellant and the NSW Trustee & Guardian as to how the de facto wife’s aged care facility costs should be paid – Intention to separate – Where the primary judge objectively imputed to the appellant an intention to separate – Where a finding that the relationship had broken down was not available on the evidence – No relevant change of substance in the de facto relationship from when it commenced – Appeal allowed – Orders set aside – Initiating Application dismissed – Costs certificate granted to the appellant for the appeal.

  • Corson & Corson [2020] FamCAFC 311

    10 Dec 2020

    FAMILY LAW – APPEAL – INTERIM PARENTING – Where the mother appeals from interim parenting orders allowing the father to spend unsupervised time with the children – Where evidence was untested – Challenge to the adequacy of reasons – Where the primary judge extensively referred to and commented upon the single expert’s report and traversed the parties’ evidence and their particular positions – Where the primary judge’s reasons, taken as a whole, explain why the outcome which he determined was in the children’s best interests, represented the least-worst outcome – Where the primary judge’s risk assessment was exquisitely one to which, absent error of the kind identified in House v The King (1936) 55 CLR 499 being established, is not susceptible to appellate interference – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the father and the Independent Children’s Lawyer each sought their costs from the mother – Where the circumstances justify an order for costs – Costs orders made in favour of the father and the Independent Children’s Lawyer in the amounts sought.

  • Benson & Drury [2020] FamCAFC 303

    07 Dec 2020

    FAMILY LAW – APPEAL – PROPERTY – Kennon argument – Where the primary judge assessed an adjustment of 5% – Whether the primary judge erred in the way her Honour took into account contributions made by the respondent that had been made significantly more arduous by the family violence perpetrated by the appellant – Where the primary judge was required to take a holistic approach and not make an adjustment, based upon the Kennon argument, against the remaining contributions – Where, notwithstanding the error, there had been no miscarriage of justice and a rehearing should not be ordered – Where the primary judge did not err in the assessment of the appellant’s initial contribution of real estate – Appeal dismissed – Costs awarded in a fixed sum.

  • Ericsson & Jarrold (No. 3) [2020] FamCAFC 300

    02 Dec 2020

    FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the respondent makes an oral application for her costs calculated on an indemnity basis – Where the appellant was wholly unsuccessful and his appeals and Applications in an Appeal were dismissed – Where the circumstances justify an order for costs – Where there are exceptional circumstances that warrant an order for indemnity costs – Where in the exercise of discretion, pursuant to r 19.18(1)(a) of the Family Law Rules 2004 (Cth), costs will not be ordered in the full amount as sought by the respondent - Indemnity costs ordered in favour of the respondent fixed in the sum of $25,000.

  • Ericsson & Jarrold (No 2) [2020] FamCAFC 299

    02 Dec 2020

    FAMILY LAW - APPEAL – CONTRAVENTION – Where in dismissing his contravention application the appellant asserts that the primary judge did not provide adequate reasons – Where the primary judge has provided adequate reasons and the pathway to the decision is entirely transparent – Where there is no merit in this aspect of the appeal and it must be dismissed.

    APPEAL – PARENTING – Where the application to vary previous parenting orders was dismissed pursuant to the principle in Rice and Asplund (1979) FLC 90-725 – Where there is no denial of procedural fairness – Where there is no lack of adequate reasons – Where having found no sufficient change of circumstances there was no basis to order a family report – Where the primary judge has not erred – Where there is no merit in any of the grounds of appeal and this aspect of the appeal must be dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks leave to adduce further evidence – Where the respondent seeks dismissal of this application – Where there is plainly an issue of admissibility in relation to the evidence sought to be adduced and it is clear that it is controversial – Where the evidence post-dates the hearing before the primary judge by substantial periods of time and does not satisfy the test propounded in CDJ v VAJ (1998) 197 CLR 172 – Application dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs in the event that the appeal was dismissed – Costs to be dealt with separately.

  • Ericsson & Jarrold [2020] FamCAFC 298

    02 Dec 2020

    FAMILY LAW - APPEAL – PARENTING – BIAS – Where the appellant complains of apprehended bias by the primary judge – Where no apprehended bias is demonstrated – Where none of the complaints made by the appellant satisfy the two step test propounded in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where there is no merit in the appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – CONTRAVENTION – APPLICATION IN AN APPEAL – Where the appellant seeks leave to adduce further evidence – Where the evidence sought to be adduced is arguably inadmissible and even if admitted would be controversial – Where the evidence fails to demonstrate error by the primary judge – Application dismissed – Where there is no merit in any of the so-called grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs in the event that the appeals are dismissed – Costs to be dealt with separately.

  • Herriot & Howes [2020] FamCAFC 302

    01 Dec 2020

    FAMILY LAW - APPEAL – PARENTING – Where the subject orders were of an interim or procedural nature directed to advancing the father’s substantive applications for contravention and contempt to a final hearing – Where there is no utility in this appeal given that the final hearing of those applications has now proceeded to completion with judgment being reserved – Where the appeal does not raise any question of general principle – Where, given the nature of the issues in dispute and the consequent need for further evidence, this Court could not re-exercise discretion even if error were established – Where an order for remitter would be nugatory given the final hearing has already proceeded – Appeal dismissed – Costs ordered in a fixed sum.

  • Beaton & Beaton [2020] FamCAFC 297

    01 Dec 2020

    FAMILY LAW - APPEAL – PARENTING – INTERIM RELOCATION – Appeals against interim relocation orders and dismissal of a stay of those orders – Conduct of proceedings – Nature of the orders made – Interim findings of fact – Weight challenges – Proper consideration given to relevant matters – Findings open on the evidence – Adequate reasons – No error of fact or law established – Appeals dismissed – Costs ordered in a fixed sum.

  • Hanif & Dallal [2020] FamCAFC 305

    30 Nov 2020

    FAMILY LAW - APPEAL – DIVORCE – Where the grounds of appeal are incompetent and do not identify any appealable errors made by the primary judge – Where there is no prospect of success of the grounds of appeal – Appeal dismissed.

  • Meadis & Meadis and Ors [2020] FamCAFC 301

    27 Nov 2020

    FAMILY LAW - APPEAL – PARENTING – Where the primary judge affirmed interim parenting orders and a costs order made by a Senior Registrar – Where the appellant father challenged that decision – Family violence perpetrated upon the mother for which the father is imprisoned – Privilege – Admissibility of redacted transcripts of the father’s telephone calls during his incarceration – Where it was open for the primary judge to admit transcripts – Adequacy of reasons – Procedural fairness – Errors of fact – Errors of law – Weight challenge as to the views of the children – No error identified – Appeal dismissed – Father to pay the mother’s costs in a fixed amount.

  • Murray & Murray [2020] FamCAFC 293

    24 Nov 2020

    FAMILY LAW - APPEAL – PROPERTY – Where the appellant appeals from property settlement orders granting the respondent 73.2 per cent of the “identifiable asset pool” – Lack of financial disclosure – Whether primary judge erred in declining to add back to the asset pool credit card and tax liabilities – Whether appellant’s post‑separation expenditure on living expenses was reasonable – Where primary judge’s assessment of parties’ contributions was open – Adjustments pursuant to s 75(2) factors was open – Just and equitable – No error identified – Appeal dismissed – Costs ordered in a fixed amount.

    FAMILY LAW – APPEAL – COSTS – Appellant appeals from costs orders arising out of substantive proceedings – Financial non‑disclosure – Adequacy of reasons – Whether primary judge failed to take into account compromises reached over child support and spousal maintenance – No error identified – Appeal dismissed – Costs ordered in a fixed amount.

  • Washburn & Pacini [2020] FamCAFC 296

    26 Nov 2020

    FAMILY LAW – APPEAL – PROPERTY – Appeal against final property settlement orders – Appeal resolved by consent – Where the respondent concedes legal error – No consideration of s 90SM(3) of the Family Law Act 1975 (Cth) as to whether there ought be any property adjustment at all – Matter remitted for re-hearing – Costs certificates issued.

  • Dutnall & Rallin (No. 2) [2020] FamCAFC 295

    26 Nov 2020

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – PRACTICE AND PROCEDURE – Subpoena – Notice of Objection – Where the primary judge upheld the respondent’s Notice of Objection to a subpoena issued to the child’s high school by the applicant – Where there is no doubt as to the correctness of the primary judge’s decision – Where no substantial injustice would result if leave to appeal is not granted – Application for leave to appeal dismissed – Applicant to pay the respondent and the Independent Children’s Lawyer’s costs in fixed sums.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the documents sought to be adduced could not show any error on the part of the primary judge – Application dismissed.

  • Seden & Kehoe [2020] FamCAFC 294

    25 Nov 2020

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – INTERIM SPOUSAL MAINTENANCE – Section 72 of the Family Law Act (Cth) met – Adequacy of reasons – Complaint about form over substance – Consideration of financial benefits received by applicant from testamentary trust – Where the primary judge concluded financial resources were available to the applicant which created a capacity to pay interim spousal maintenance – Where any failure to take into account evidence about the amount the respondent needed for rent was not material – Where the applicant had not established that the primary judge’s decision was attended by sufficient doubt to warrant reconsideration by the Full Court – and that substantial injustice would result if leave to appeal was refused – Application for leave to appeal refused – Application for a stay of any costs order dismissed – Costs ordered in a fixed sum.

  • Jaynes & Rundle [2020] FamCAFC 292

    23 Nov 2020

    FAMILY LAW – APPEAL – PARENTING – Preliminary hearing applying the rule in Rice and Asplund (1979) FLC 90-725 – Where the primary judge determined that the respondent father’s application for reconsideration of final parenting orders should proceed to a final hearing – Whether the primary judge erroneously applied principles relating to summary dismissal – Where the primary judge found a change in circumstances – Where the primary judge’s consideration was directed to principles in Rice and Asplund (1979) FLC 90-725 – Appeal dismissed.

  • Dulton & Dulton (No. 2) [2020] FamCAFC 288

    18 Nov 2020

    FAMILY LAW – APPEAL – PROPERTY – SLIP RULE AMENDMENT – Where the parties jointly request alteration of the figure of $163,359 in the amended order made as a result of the re-exercise of discretion and the recalculation of net assets of the parties pursuant to findings made in a previous judgment – Where it was not apparent from the reasons of the primary judge how that figure had been arrived at – Where the figure was not the direct subject of any of the grounds of appeal nor the subject of any written or oral submissions made to this Court during the earlier hearing – Where as a result of submissions made the figure should be changed – Order amended pursuant to r 17.02 of the Family Law Rules 2004 (Cth).

  • Rahman & Rahman [2020] FamCAFC 279

    12 Nov 2020

    FAMILY LAW – APPEAL – PROPERTY – Where the appellant husband seeks the discharge of an injunctive order preventing his departure from Australia pending his satisfaction of property settlement order made under Pt VIII of the Family Law Act 1975 (Cth) – Where it was contended the property settlement order amounted to a money judgment, which debt the respondent wife had to prove in the husband’s bankruptcy – Whether the primary judge erred as to the operative effect of s 59A of the Bankruptcy Act 1966 (Cth) – No error demonstrated in the primary judge’s application of the legislation and the dismissal of the application – Where the designated sum of money did not vest in the trustee in bankruptcy and was not divisible amongst the husband’s creditors – Appeal dismissed – No order as to costs.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the husband seeks leave to appeal from an interlocutory injunction – Where there was a fundamental error in principle and leave to appeal should be granted – Where final property settlement order made in February 2012 exhausted the jurisdiction under Pt VIII of the Family Law Act 1975 (Cth) – No jurisdictional basis for the wife’s application for further final and interim relief in 2020 – Where the interim injunction was made in error – Appeal allowed – No order as to costs.

  • Eagle & Scarlett (No. 2) [2020] FamCAFC 291

    20 Nov 2020

    FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders – Where no time was ordered between the appellant father and the child – Apprehended bias – Alleged errors of fact – Only material errors of fact justify appellate intervention – Whether there was internal contradictions within the reasons – Alleged failure to have regard to evidence – Weight challenges – Alleged failure to order a further psychological report – Where the behaviours of the father, not their cause, plainly concerned the primary judge – Where the conviction of the father for assaulting the respondent mother post-separation compelled the displacement of the presumption of equal shared parental responsibility – Where no ground of appeal is established – Appeal dismissed.

  • Belmont & Flores [2020] FamCAFC 290

    20 Nov 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the appellant seeks expedition of the appeal brought from an order dismissing an application for a recovery order – Where the recovery order relates to a period which has already passed – Where the appeal is futile – Where the appellant seeks for this Court to provide an authoritative interpretation of the relevant order – Where that is not the function of an appellate court – Where a futile appeal should not be given priority to the possible detriment of other cases – Application dismissed – No order as to costs.

  • Darley & Darley (No. 3) [2020] FamCAFC 289

    19 Nov 2020

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO ISSUE SUBPOENAS – Where the mother was given leave to issue a subpoena to Medicare to obtain a list of the father’s treating medical professionals – Where the mother now seeks leave to issue subpoenas to three medical practices identified by records produced from Medicare as having provided medical treatment to the father – Where the subpoenas sought by the mother are unconfined as to any timeframe at all – Where the terms of the subpoenas sought are far too broadly drawn and expressed – Where the mother agreed to leave being granted to a subpoena more limited in scope than initially sought – Where the father did not wish to participate in the hearing – Application granted.

  • Nestor & Haden [2020] FamCAFC 287

    19 Nov 2020

    FAMILY LAW – APPEAL – PARENTING – Rice and Asplund (1979) FLC 90-725 threshold issue – Where the primary judge dismissed the appellant mother’s application to re-open proceedings – Exposure to further litigation – Best interests of the child – Weight challenges – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Conclusion drawn by the primary judge not plainly wrong – Appeal dismissed – Mother to pay the respondent father’s costs of the appeal.

  • Grace & Grace [2020] FamCAFC 286

    19 Nov 2020

    FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders – Conflation of summary dismissal hearing and Rice and Asplund (1979) FLC 90-725 threshold hearing – Material error of fact affecting the final result – Procedural fairness – Application to adduce further evidence dismissed – Appeal allowed – Matter remitted – Orders made for written submissions as to costs.

  • Maddyson & Maddyson (No. 2) [2020] FamCAFC 285

    19 Nov 2020

    FAMILY LAW – APPEAL – PROPERTY – Where it is asserted that the appellant was not afforded procedural fairness – Where all that was before the Magistrate as to a valuation was the respondent’s evidence in the form of a text message received from a valuer providing a figure for the appellant’s interest in the property – Where that evidence was inadmissible and also provided the appellant with no opportunity to question the amount or anything about the valuation – Where although the Magistrate adjourned the matter to await receipt of the valuation report no report was ultimately received and nowhere did the Magistrate give leave to the respondent to rely on the figure provided and nor was the appellant given the opportunity to cross-examine the valuer – Where the Magistrate does not explain how and on what basis the discretion was exercised enabling the valuation figure provided by the respondent to be utilised – Where there was a lack of procedural fairness that infected the orders made – Appeal allowed – Orders set aside – Proceedings remitted to the Magistrates Court of Western Australia to be reheard by a Magistrate other than the primary Magistrate.

    FAMILY LAW – APPEAL – FURTHER EVIDENCE – Where the evidence does not satisfy the principles expounded in CDJ v VAJ (1998) 197 CLR 172 – Where the evidence was available but the appellant made no attempt to present it despite ample opportunity to do so – Where much of the evidence was inadmissible and in any event controversial – Application dismissed.

    APPEAL – COSTS – Where the appellant sought costs in the event that the appeal succeeded – Where the respondent opposed any order for costs – Where it was reasonable for the respondent to oppose the appeal and no order for costs should be made – Where in the event that a costs order was not made the appellant sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and for the rehearing – Where the respondent joined in that application but only for the rehearing given that she had incurred no legal costs in relation to the appeal – Costs certificates ordered as sought.
  • Goswami & Rapozo (No. 2) [2020] FamCAFC 282

    19 Nov 2020

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – APPLICATION FOR ADJOURNMENT OF APPEAL – Where the husband appeals final property settlement orders – Pattern of non-compliance – Application for adjournment – Procedural fairness – Significant financial non-disclosure by the husband – Where the grounds of appeal lack particularity – Challenges unmeritorious – No appealable error established – Appeal dismissed – Costs order made against the husband in favour of the wife.

  • Gongsun & Paling (No. 2) [2020] FamCAFC 284

    18 Nov 2020

    FAMILY LAW – APPEAL – COSTS – Where the Full Court dismissed an appeal by the appellant from orders made in the Supreme Court of New South Wales – Where the respondent sought costs of the appeal from the appellant on a party/party basis, or alternatively, in a fixed sum – Where the appellant has been wholly unsuccessful – Where the appellant’s rejection of a Calderbank offer was unreasonable – Where there were other circumstances justifying an order for costs pursuant to s 117(2A) of the Family law Act 1975 (Cth) – Costs ordered in a fixed sum – Costs order to be met from the appellant’s share of the net proceeds of sale of the property the subject of the litigation.

  • Barnwell & Kendrick [2020] FamCAFC 283

    18 Nov 2020

    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Relationship spanning at least eight years – Where factual error by the primary judge materially impacted upon the adjustment of s 90SF(3) matters – Where capital gains tax implications of adjustment – Where evidence could have permitted a finding that there was a disparity between the parties’ future earning capacities to some degree – Error of fact – Where the family trust was a financial resource of an unspecified value – Where the wife did not include the items of property in the balance sheet – Where the wife is bound by her conduct at trial: Metwally v University of Wollongong (1985) 60 ALR 68 – Where the wife submits that the dismissal of the application to re-open the proceedings and adduce further evidence was manifestly unjust and caused the final orders to miscarry – Irrelevant principles relating to discretionary decisions – Where the wife was not taken by surprise at the allegation of unpaid commission – Where unfairness not established – Where there is no error by the primary judge in failing to articulate the specific features of contributions made by the wife – Where referring to Stanford v Stanford (2012) 247 CLR 108 at [42] is a sufficient exposure of reasoning as to why it was just and equitable to make an order – Appeal allowed in part – No order as to costs.

  • Balmer & Balmer [2020] FamCAFC 281

    17 Nov 2020

    FAMILY LAW – APPEAL – NON-COMPLIANCE – Where the appeal is listed for consideration of dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant has not complied with procedural orders made to prepare the appeal for hearing – Where the appellant has been given the requisite notice – Where the appeals are almost wholly devoid of merit – Where the explanation for the appellant’s failure to comply with the procedural orders is weak – Where there is no realistic prospect of the appellant being able to comply with further procedural orders within a timeframe which does not visit undue prejudice to the respondent – Appeals dismissed – No order as to costs.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought an extension of time to comply with procedural orders and an adjournment of the appeal hearing – Where the first and third appeals are futile –Where the court is not satisfied the appellant will comply with further procedural orders in a timely manner – Where the second appeal lacks merit – Application dismissed.
  • Colburn & Cleese [2020] FamCAFC 278

    16 Nov 2020

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – PRACTICE AND PROCEDURE – De facto relationships – Financial causes – Jurisdictional issue – Where a declaration was made which was not based on agreed or found facts – Hypothetical or advisory opinion – Application for leave to appeal allowed – Appeal allowed – Declaration set aside – Matter remitted for further hearing – Orders made as to written submissions on the issue of costs.

  • Sureda & Vergonyos [2020] FamCAFC 280

    06 Nov 2020

    FAMILY LAW – APPLICATION IN AN APPEAL – REMOVE RESPONDENT’S LEGAL REPRESENTATIVES – Where the appellant asserts that there is a conflict of interest given that the parties’ daughter works for the firm of solicitors representing the respondent – Where it has not been established and indeed no allegation is made that there is the prospect of confidential information being passed by the daughter to the firm of solicitors which would be available to that firm in the context of their representation of the respondent – Where the mere fact of the daughter being employed by the solicitors who represent the respondent is insufficient to justify an order being made as sought – Application dismissed.

    FAMILY LAW – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – Where the respondent seeks summary dismissal of the appellant’s Notice of Appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where the grounds of appeal are incompetent and do not identify any appealable errors made by the primary judge – Where there is no prospect of success of the grounds of appeal – Appeal dismissed.

    FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs – Where the amount sought is reasonable and within the scale of costs which would be applied by this Court – Where the appellant has chosen to make no submissions but this Court will proceed on the basis that the application is opposed and the appellant is impecunious – Where the appellant has been wholly unsuccessful – Where impecuniosity is not a bar to an order for costs being made where there are circumstances justifying an order for costs such as apply here – Costs ordered as sought by the respondent.