Family Law

Cases to Watch

  • Maxwell & Miltiadis [2014] FamCAFC 180 – 10/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is a satisfactory explanation provided by the applicant for failing to file the appeal within time – where there is an arguable case on appeal – where there is prejudice to both parties depending on the result – where the justice of the case requires the granting of the application – time to file extended.
  • Helbig & Rowe [2014] FamCAFC 179 – 17/09/2014 – View PDF
    FAMILY LAW – APPEAL – Where further parenting proceedings commenced after final parenting orders were made by consent – Where leave to appeal interlocutory order relating to practice and procedure is necessary – Where a dispute arose as to the documents to be provided to the independent expert – Where the primary judge excluded from the list of documents to be sent to the expert certain counselling notes  –  Where the single expert can make an application requesting further documents if needed – Leave to appeal refused.FAMILY LAW – APPEAL – Where interlocutory order for children to spend supervised time  – Where allegations of abuse raised against parent to be supervised – Where the primary judge proceeded on the basis the disclosures were serious and required caution – Where the primary judge was entitled to analyse the risks to the children as she did – Where the primary judge is entitled to take objections in relation to admissibility of evidence – Appeal dismissed.
  • Spring & Spring [2014] FamCAFC 178 – 09/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where the draft Notice of Appeal does not contain proper grounds of appeal – where the application cannot succeed in those circumstances – where an adjournment is sought by the applicant to prepare a fresh draft Notice of Appeal containing proper grounds of appeal – where that application is opposed – application to adjourn granted.FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks her costs of the hearing thrown away – where there are circumstances which justify an order for costs being made – costs ordered as sought by the respondent.
  • Jacobs & Sitch [2014] FamCAFC 177 – 09/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is no satisfactory explanation provided by the applicant for failing to file the appeal within time – where there is an arguable case on appeal – where there is prejudice to both parties depending on the result – where the justice of the case requires the granting of the application – time to file extended.
  • Perov & McPherson [2014] FamCAFC 176 – 15/09/2014 – View PDF
    FAMILY LAW – APPEAL – COSTS – Appeal of a costs order against a party’s solicitor – Where the solicitor appeals that order – Whether the appeal is so devoid of merit that it would be futile to make the order sought – Whether the appeal is “arguable”.FAMILY LAW – APPEAL – Application to extend time to appeal – Where the applicant is out of time – Whether the respondent would be prejudiced if leave were granted – Where the appellant will be prejudiced if he loses the ability to challenge the costs order – Where prejudice to the appellant is not such as to outweigh prejudice to the respondent –Where leave is not given.

    FAMILY LAW – APPEAL– COSTS – Where the respondent seeks an order for costs if the application fails – Where the application fails – Where the appellant is to pay the respondent’s costs.

  • Jarrah & Fadel (No. 2) [2014] FamCAFC 175 – 15/09/2014 – View PDF
    FAMILY LAW – APPEAL – Application in an appeal – Review of Appeal Registrar’s decision – Hearing de novo – Where the father seeks the appeal books to be prepared by the Appeal Registrar – Whether the father would suffer exceptional hardship – Where the father would not suffer exceptional hardship – Where the power to prepare appeal books is discretionary – Where in the alternative to the Appeal Registrar preparing the appeal books, the father seeks a six month adjournment of the appeal – Where the application is dismissed.
  • Tizani & Tizani (Security for costs) [2014] FamCAFC 174 – 15/09/2014 – View PDF
    FAMILY LAW – APPEAL – Application to extend time to appeal – Delay – Where the respondent conceded the delay is not significant – Where there is sufficient explanation of the  delay.FAMILY LAW – APPEAL – Prejudice – Whether the applicant would suffer prejudice if leave to appeal was not granted – Whether the respondent would suffer prejudice – Where the appeal has merit.

    FAMILY LAW – COSTS –– Where it is not appropriate to make a costs order.

  • Zanda & Zanda [2014] FamCAFC 173 – 15/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPREHENDED BIAS – Where the father submitted that the primary judge’s orders and reasons gave rise to an apprehension of bias and an apprehension that he prejudged the issues before him – Where the matter was initially considered ex parte – Where the father filed documents after ex parte orders were made – Where his Honour raised issues regarding the father’s citizenship and welfare entitlement that were not raised by the parties  – Where the primary judge identified the appropriate law which did not suggest wrongdoing – Where the primary judge referred the matter to the Department of Immigration and Citizenship without informing the father’s counsel of this intention  – Statements made by primary judge – Where objection to constitution of the court not taken – Waiver – Whether subsequent delivery of reasons revive bias – Whether a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the question – Where a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the question – Appeal allowed.FAMILY LAW – APPEAL – FORUM – Appropriate forum –Where the children were residents of Lebanon – Whether the doctrine of forum non conveniens is applicable to a parenting case – Where an application is made under the provisions of the Act, which prescribes the best interests test, whether or not a child is within the jurisdiction then it is that test and not the test of forum non conveniens which will apply – Appeal allowed.

    FAMILY LAW – APPEAL – INJUNCTIONS – Jurisdiction – Where the father was restrained from leaving Australia – Whether the court has the power to directly restrain the freedom of movement of a parent – Whether the power can be found in s 114(3) or 68B – Where an order requiring a parent to live in a particular place is not a parenting order – Where 68B cannot restrict the movement of a parent – Where the court has discretion under s 114(3) to restrain the movement of a parent – Where exercise of the discretion requires the correct source of power to be identified – Appeal allowed.

  • Pace & Pace (Costs) [2014] FamCAFC 172 – 15/09/2014 – View PDF
    FAMILY LAW – APPEAL – Costs
  • Daines & Daines (Costs) [2014] FamCAFC 170 – 10/09/2014 – View PDF
    FAMILY LAW – APPEAL – COSTS – where the trial judge made orders and delivered reasons purporting to effect a final property settlement between the parties – where those orders were not final property orders – where the matter subsequently came back before her Honour for a further hearing in order to finalise the orders giving effect to the distribution previously ordered by the trial judge – where the hearing was necessitated primarily as a result of the husband’s claim that the trial judge was functus officio – where that claim was found to be without merit by both the trial judge and this Court – where the trial judge ordered that the husband pay the wife’s costs of the subsequent hearing – where the husband appeals that order – where the primary contention is that the trial judge failed to finalise the parties’ financial relationship and that necessitated the subsequent hearing – where that submission is not borne out by reference to the record – no merit in the appeal.FAMILY LAW – APPEAL – COSTS – where the trial judge ordered that the husband pay the wife’s costs of the property proceedings – where the trial judge had, in accordance with a joint balance sheet, included unpaid legal fees of the parties as a liability – where no issue was raised with that approach at the hearing of the wife’s costs application – where the issue raised for the first time on appeal – whether an error of law has been established – where, in including the unpaid legal fees as a liability, and not notionally adding back the corresponding amount, her Honour’s property orders have the effect that each party is liable for a proportion of the other’s costs – where her Honour did not consider that issue when ordering that the husband pay the wife’s costs – where error established – matter remitted.

    FAMILY LAW – APPEAL – COSTS OF APPEAL – where the wife seeks an order that the husband pay her costs of the appeals on a solicitor and own client basis – where the husband has been wholly unsuccessful in three of his four appeals – where the husband raised issues of impecuniosity – where impecuniosity is not itself determinative of whether an order for costs ought be made – whether there are circumstances justifying a departure from s 117(1) of the Family Law Act 1975(Cth) – where the husband received over $500,000 as a result of the property orders made by the trial judge – where the two costs appeals proceeded via written submissions – where the circumstances justify a departure from s 117(1) in respect of the two appeals previously determined – where there is no basis for ordering that the costs be awarded on a  solicitor and own client basis – where there are no circumstances justifying a departure from s 117(1) in respect of the unsuccessful costs appeals, which proceeded via written submissions – husband ordered to pay the wife’s costs of the two previous appeals as assessed.

  • Keynes & Keynes [2014] FamCAFC 169 – 10/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN A CASE - Application to extend time to file a Notice of Appeal – Consideration of Chapter 22 of the Family Law Rules 2004 – Where orders made without reasons – Where reasons for judgment published 28 days later – Where the mother would be prejudiced if she was denied the opportunity to appeal matters of real significance – Where expedition sought and not opposed – Application to extend time granted and expedition ordered.
  • Pillai & Doshi (Costs) [2014] FamCAFC 168 – 10/09/2014 – View PDF
    FAMILY LAW – APPEAL – COSTS – Where the wife seeks an order that the husband pay her costs of two appeals – Where the husband opposes any such order – Where the husband seeks an order that the wife pay costs and disbursements which he asserts he has sustained in relation to the appeals – Where the husband was almost wholly unsuccessful in the appeals brought by him – Where the husband has been unreasonable in the manner in which he has prepared and presented his appeals – Where a costs order is made against the husband.
  • Miller & Miller [2014] FamCAFC 167 – 26/08/2014 – View PDF
    FAMILY LAW – APPEAL – COSTS – Where the matter came before the court requiring consideration of the husband’s application to reinstate his appeal – Where the parties were able to consent to discharging the respective spousal maintenance orders in light of a change in circumstances since those orders were made – Whether the husband should be required to pay the wife’s costs – Where the settlement represents a compromise by both parties – Where the husband engaged the appeals process in relation to interlocutory orders when there was a remedy available at first instance – Husband to pay the wife’s costs on a party/party basis.
  • Sadberry & Jablon [2014] FamCAFC 166 – 22/07/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file a Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where the reason for delay in filing a Notice of Appeal is accepted  – Leave granted.
  • Belsito & Levendoski [2014] FamCAFC 165 – 14/08/2014 – View PDF
    FAMILY LAW – APPEAL – Application to extend time to appeal – Where the applicant sought an extension of time to appeal an interim order that required her to pay spousal maintenance to the respondent – Where the applicant left the hearing of the application prematurely – The applicant failed to demonstrate that her proposed appeal has merit – The applicant’s delay is explained by the difficulties she faced as a self-represented litigant – Additional litigation between the parties should be avoided – Application dismissed.
  • Wallis & Best [2014] FamCAFC 164 – 05/09/2014 – View PDF
    FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the father seeks to appeal orders for costs – where the mother and the ICL oppose the appeal – where the grounds of appeal have no merit – appeal dismissed.FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the mother and the ICL sought orders for costs in the event that the appeal was unsuccessful – where the father opposed any such order – where the appeal has been wholly unsuccessful – where impecuniosity is no bar to an order for costs being made where the circumstances otherwise justify it – costs ordered against the father.
  • Allan & Ors & Allan & Ors [2014] FamCAFC 162 – 02/09/2014 – View PDF
    FAMILY LAW – APPEAL – Where re-instatement of an abandoned appeal sought by the second applicant husband – In the absence of prejudice or injustice to the husband the application for re-instatement is dismissed – Husband to pay the party/party costs of the wife, the third respondent and the fourth respondents in respect of the failed application for re-instatement and the abandoned appeal.FAMILY LAW – APPEAL – Where third applicant seeks leave to appeal out of time – Where third applicant as new trustee of a trust is bound by the conduct of the previous trustee in reaching a compromise and consenting to court orders – Where an appeal against the orders by the trustee does not lie in a challenge to the merit of the orders – Where a point is not taken at first instance which could have been addressed by the other parties it cannot be taken afterwards on appeal – Where any breach of fiduciary duty alleged against the former trustee should be remedied by separate cause of action against the former trustee – An appeal by the third applicant on the grounds he contemplates would be futile – Application dismissed – Third applicant to pay the party/party costs of the wife, the third respondent and the fourth respondents in respect of the failed application for leave to appeal out of time.
  • Burns & Grint (Costs) [2014] FamCAFC 161 – 02/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the mother seeks costs in the sum of $5,274.50 – where the father opposes the mother’s application and seeks an order that each party bear their own costs – where the father has been wholly unsuccessful – where the mother was represented by Legal Aid Queensland and has incurred costs she should not have been required to – costs ordered as sought by the mother.
  • Diggelen & Diggelen [2014] FamCAFC 160 – 01/09/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the appellant was entitled to a hearing of her appeal notwithstanding the respondent’s application for an adjournment and non-appearance on the day – Where the husband was made redundant and given an Employment Termination Payment – Where the trial judge assumed the payment was subject to tax and therefore declined to add the whole amount back into the property pool – Where there was no evidentiary basis for his Honour to conclude that tax had not been paid on that amount – Where the wife was not given the opportunity to address the issue as to the tax consequences of the redundancy payment – Where the husband had shares and share options that were to vest at a future date – Where there was evidence from a forensic accountant in relation to the value of the shares and share options – Where the trial judge failed to take into account certain unvested options –– Appeal allowed.
  • Child Support Registrar & Raneri [2014] FamCAFC 159 – 01/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks an order that the appeal be dismissed for non-compliance with orders for the filing of a summary of argument – Family Law Rules 2004 (Cth) r 22.45 – Where the respondent failed to comply with the orders – Where there was no application by the respondent seeking an extension of time – Where in any event there is no utility in the appeal proceeding – Appeal dismissed.FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the respondent should pay the costs of the applicant of and incidental to the application.
  • Danes & Danes and Anor (No. 2) [2014] FamCAFC 158 – 20/08/2014 – View PDF
    FAMILY LAW – COSTS – Where the appellant had previously failed to comply with directions – where the applicant filed a Notice of Discontinuance – where the respondents were self-represented – where the appellant directly briefed counsel – where the Independent Children’s Lawyer sought her costs – where the court was not persuaded that the appeal had any merit – whether there are circumstances justifying a departure from s 117(1) of the Family Law Act 1975 (Cth) – Appellant ordered to pay the Independent Children’s Lawyer’s costs in a fixed amount.
  • Terrell & Connell [2014] FamCAFC 157 – 27/08/2014 – View PDF
    FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal – Where the delay is short – Where the proposed appeal could not be said to have no prospects of success – Where the respondent deposed to significant difficulties in the enforcement of the orders of the trial judge – Where the applicant had yet to pay previous costs orders in the proceedings – Application allowed, conditional upon the applicant paying to the respondent the costs of the application.
  • Jong & Yeng [2014] FamCAFC 156 – 18/08/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY –Where the primary judge did not make orders finalising the financial relationship between the parties – Where further litigation contemplated between the parties and other entities in another court – Appeal dismissed.FAMILY LAW – APPEAL – Cross-appeal – Add back of legal costs – Where moneys applied to legal fees had no connection with the marriage – Cross-appeal dismissed.
  • Redmond & Redmond [2014] FamCAFC 155 – 28/08/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim parenting orders and the trial judge’s subsequent refusal to grant a stay of those interim orders pending appeal – Where the final trial is due to commence some 12 weeks after the hearing of these appeals – Where the father has lodged eight appeals in this Court in the past two years and final trial dates have been lost as a result – Where the mother and the Independent Children’s Lawyer opposed the appeals – Where no merit in the appeals – Where orders were made following oral argument and reasons for judgment were delivered subsequently so as to preserve the final trial dates – Appeals dismissed and no order as to costs.
  • Bircher & Bircher [2014] FamCAFC 154 – 25/08/2014 – View PDF
    FAMILY LAW – APPEAL FROM A DECISION OF A FEDERAL CIRCUIT COURT JUDGE – CONTRAVENTION – Where the trial judge found that the mother had contravened parenting orders on one occasion by failing to deliver the children to the father’s residence on time – Where the mother argued reasonable excuse on the basis that the parties had agreed that the children’s time with the father would commence half an hour later – Where the mother relied upon an annexure to her affidavit which the judge did not refer to in her Honour’s reasons – Discussion of principles relating to errors of fact by reference to De Winter v De Winter (1979) 4 Fam LR 583 – Appeal allowed – The matter be remitted to the trial judge for rehearing.
  • Maloich & Maloich [2014] FamCAFC 153 – 28/08/2014 – View PDF
    FAMILY LAW – APPEAL – FURTHER AMENDED NOTICE OF APPEAL – where the wife puts no proper grounds of appeal before the court – where the husband opposes the appeal – where there is no basis identified by the wife that would lead to appellate interference with the trial judge’s orders – appeal dismissed.
  • Everett & Everett [2014] FamCAFC 152 – 26/08/2014 – View PDF
    FAMILY LAW – APPEAL – ADULT CHILD MAINTENANCE – Where the Federal Magistrate made an order for adult child maintenance until the completion of tertiary education – Where the appellant father submits that the Federal Magistrate erred in placing no temporal limitation on the order for adult child maintenance and that the reasons for making the order were inadequate – Where the Federal Magistrate erred in both respects – Where the orders were otherwise unjust and unreasonable – Where the Federal Magistrate found that it was necessary that an order for adult child maintenance included an allowance for the adult child to purchase a motor vehicle and an amount for house cleaning and pool servicing – Where the “necessity” for the provision of a motor vehicle and house cleaning and pool servicing was not established by the Federal Magistrate – Appeal allowed in part – All orders set aside and the matter remitted for re-hearing.FAMILY LAW – APPEAL – CROSS-APPEAL – Where it is submitted that the Federal Magistrate erred in not backdating the order for adult child maintenance – Where the time of the commencement of the order was a matter of discretion – Where the Federal Magistrate’s discretion did not miscarry – Cross-appeal dismissed.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant father seeks to adduce further evidence on the appeal – Where some of the evidence sought to be adduced is not controversial, was not available to the applicant father at trial, and is potentially relevant to a matter agitated on the appeal – Where the balance of the evidence is not relevant to the appeal – Application allowed in part.

    FAMILY LAW – APPEAL – COSTS – Where no order for costs made – Where the appeal has succeeded on a point of law – Costs certificates granted to the parties for the appeal and re-hearing.

  • Sullivan & Tyler (No. 2) [2014] FamCAFC 151 – 11/08/2014 – View PDF
    FAMILY LAW – APPEAL – PROCEDURAL – Where there are a number of appeals relating to the same factual history – Where it is appropriate to consolidate appeals – Where reason for expedited hearing no longer exists and order for expedition is discharge order – Where it is accepted that the mother did not receive a copy of the Stay orders and was unaware of the correct date to file a Notice of Appeal – Where leave is granted to file a Notice of Appeal out of time.
  • Valdez & Frazier (No. 2) [2014] FamCAFC 150 – 18/08/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file a Notice of Appeal – Where granting of leave is not automatic and involves the exercise of discretion – Where the applicant failed to establish an adequate explanation for his failure to apply for an extension of time – Where consideration of the grounds of appeal find that it would not be an injustice to the applicant to not grant an extension of time – Where applicant filed an application to reopen the case in order to adduce affidavit evidence – Where the applicant contends that the evidence reinforces the merits of the proposed appeal – Where the potential of prejudice to the respondent is relevant and would involve a further appearance with costs in circumstances where the proposed appeal adds little to the merits of the case – Where the matter does not warrant an order of indemnity costs against the applicant – HELD – Appeal dismissed.
  • Jollie & Dysart [2014] FamCAFC 149 – 15/08/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – with whom a child lives – where orders were made that the parties’ child live with the father and spend limited time with the mother – where those orders represented a very significant change to the erstwhile care arrangements for the child – where the mother appeals on a number of grounds – where the mother challenges the weight given by the trial judge to a range of evidence, in particular the opinions of a single expert – whether the trial judge erred in the weight given to the single expert’s evidence – where no error demonstrated – where the mother also contends that the trial judge’s discretion miscarried in the making of a recovery order that was stayed for up to three and a half years – whether the trial judge’s discretion miscarried – where that issue is tied to a further challenge to the adequacy of her Honour’s reasons – where her Honour’s reasons do not reveal the path that led to her Honour’s determination that the recovery order was presently in the child’s best interests – where her Honour’s reasons do not reveal the basis for a determination that the recovery order would be in the child’s best interests at any point in the next three and a half years – error demonstrated – appeal allowed in part – where the recovery order and ancillary orders set aside – where remaining substantive orders remain in force.FAMILY LAW – APPEAL – STAY – where the appellant mother applied for a stay of the substantive parenting orders – where that application was dismissed – where the mother appeals that order – where the appeal against the substantive parenting orders has largely failed – no error demonstrated – appeal dismissed.
  • Maclin & Maclin [2014] FamCAFC 148 – 15/08/2014 – View PDF
    FAMILY LAW – APPEAL FROM A DECISION OF A FEDERAL CIRCUIT COURT JUDGE HEARD BY A SINGLE JUDGE OF THE APPEAL DIVISION  – COSTS – Where the trial judge dismissed the husband’s application for costs and ordered that the husband pay the wife’s costs of the substantive parenting and property proceedings and three applications – Where the husband relied upon an offer to settle which would have seen the wife receive a greater sum of property division – Where the judge was correct in dismissing the husband’s costs application as the final orders made were vastly different to the husband’s offer – Where the husband argued that the judge wrongly exercised his discretion in making the costs orders in favour of the wife – Where although is it unusual to order costs in first instance parenting proceedings, the judge’s decision was not amenable to appellate intervention – Where costs were ordered for an application contained as an interim property order sought by the wife within her response to the husband’s initiating application – Where the reasons suggest that the judge believed the application and hearing  to be a discrete court event – Where costs were ordered for an application that was not heard and the husband’s explanations regarding his conduct subsequently were never tested –   Consideration of the appellate principles contained in House v The King (1936) 55 CLR 499 and De Winter v De Winter(1979) 4 Fam LR 583 – Appeal allowed in part – Two costs orders set aside – Matter not remitted.FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the husband sought to rely upon transcripts of proceedings not included in the draft index, evidence of the sale price of certain property and material not before the trial judge by way of presumed administrative error – Where it is appropriate that the transcripts of the proceedings be adduced – Where the evidence of sale price was not relevant – Where the material not considered by the trial judge may have altered the decision of the judge and should be adduced – Application allowed in part.
  • Bevis & Bevis [2014] FamCAFC 147 – 14/08/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Contributions – Where the assets were of negligible value, apart from a property acquired by the husband from an inheritance after separation – Where the parties had significant superannuation entitlements, mainly held by the husband – Whether the trial judge erred in assessing post-separation contributions by giving insufficient weight to the husband’s inheritance and the large increase in value of his superannuation – Whether the outcome was outside the range of discretion – Appeal dismissed – No order as to costs.
  • Shaw & Shaw [2014] FamCAFC 146 – 14/08/2014 – View PDF
    FAMILY LAW – APPEAL – application in an appeal for reinstatement following abandonment of appeal.
  • Padnall & Padnall [2014] FamCAFC 145 – 14/08/2014 – View PDF
    FAMILY LAW – APPEAL – NOTICE OF APPEAL – LEAVE TO APPEAL – where the husband seeks leave to appeal and if leave is granted to appeal against orders made by Federal Magistrate Simpson (as his Honour then was) – where the wife opposes the appeal – where the orders appealed provide for the husband to pay the wife interim spousal maintenance in the sum of $1,462 from 11 May 2012 until the final hearing of the matter – where the Federal Magistrate erred in failing to take into account a bank account held in the name of the wife and in assessing the needs of the wife including all of the expenses of the children of the parties – where the errors of principle relied on to establish leave are comprised in the proposed grounds of appeal – where there is merit in four of the five proposed grounds of appeal pursued – where leave to appeal is granted – where the appeal is allowed in part – where given the nature of the errors of the Federal Magistrate identified his Honour’s orders must be set aside and the matter remitted for rehearing – where the matter has been transferred to the Family Court of Australia and thus the rehearing will take place before a judge of that court.FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – FURTHER EVIDENCE – where the husband seeks to adduce further evidence which goes to his income and his capacity to pay spousal maintenance – where the evidence sought to be adduced does not establish error by the primary judicial officer – where in any event the evidence is controversial – where if the evidence is admitted the wife would seek to present her own evidence and to cross-examine the husband and the authors of the documents the husband seeks to present – where the husband did not seek to vary or discharge the order made but instead sought to address the issue through an appeal – applications to adduce further evidence dismissed.

    FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where both parties sought costs certificates for the appeal and any rehearing in the event that the application and the appeal were successful – where each party should bear their own costs – where the appeal succeeded on a question of law – parties granted costs certificates.

  • Spencer & Spencer [2014] FamCAFC 144 – 08/07/2014 – View PDF
    FAMILY LAW– APPEAL – Application to extend time to appeal – Where the proposed appeal lacks merit – Where the explanation for delay was inadequate – Application dismissed – Applicant ordered to contribute to the respondent’s costs in a fixed sum with enforcement delayed.
  • Tau & Casmore [2014] FamCAFC 143 – 11/08/2014 – View PDF
    FAMILY LAW – APPLICATION IN AN APPEAL – Application to extend the time to file a notice of appeal – Where the applicant failed to appear – Where the proposed appeal was unmeritorious – Application dismissed.
  • Cadman & Hallett [2014] FamCAFC 142 – 11/08/2014 – View PDF
    FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the trial judge declared that a de facto relationship existed between the parties – Where an application for summary dismissal of the application was before the trial judge – Where the issue before the trial judge was when the de facto relationship ended – Where the appellant submitted that the trial judge had erred finding that the relationship ended in mid-2010 – Where the ground of appeal misstates the trial judge’s finding – Where no error demonstrated – Where the appellant relied on a single factor in the determination of whether a de facto relationship existed pursuant to s 4AA of the Family Law Act 1975 (Cth) – Where the trial judge referred to the circumstances and gave appropriate weight to those circumstances – Where it was further submitted that the respondent, in attempting to arrange a “sham” marriage for the purposes of staying overseas, should compel a finding that an intention had been conveyed to the appellant to end the relationship – Where this would not necessarily be inconsistent with a de facto relationship continuing – Where no error demonstrated – Appeal dismissed.FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the appellant sought an order for costs – Where a costs order was not opposed by the respondent – Costs order made in favour of the respondent.
  • Wheedon & Gomer [2014] FamCAFC 141 – 08/08/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – where the trial judge made orders the effect of which was that the mother would have sole parental responsibility for the children and the mother be permitted to relocate with the children – where the father has a history of alcohol dependence – where the father represented himself on the appeal – where the majority of the father’s grounds of appeal were premised upon the contention that the trial judge erred in making findings that were not based on the evidence – no error demonstrated – appeal dismissed and no order as to costs.
  • Rimmington & Healey [2014] FamCAFC 140 – 07/08/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – with whom the child is to live – parental responsibility – where the trial judge made orders the effect of which was that the mother would have sole parental responsibility for the parties’ twin sons and the father would have no time or communication with them – where the father represented himself on the appeal – where the father’s Notice of Appeal contained 45 grounds – where, during the appeal, the father condensed his challenges to ten “grounds”– where the majority of those “grounds” were premised upon the contention that the trial judge erred in accepting the mother’s evidence over his own evidence – where no such error was demonstrated – where the father also contends that the trial judge made various errors of law and errors of fact – whether the trial judge so erred – where no error demonstrated – appeal dismissed – father ordered to pay the mother’s costs of the appeal.
  • Kashani & Kashani [2014] FamCAFC 139 – 05/08/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY – VALUATION – Where the parties have lived apart for over ten years – Where there were limited assets of the parties – Where the appellant wife disputes the value of a unit purchased by the respondent husband in North America – Where the trial judge adopted the value contained within the respondent husband’s balance sheet – Where the wife asserted there was an agreement as to the value of the unit – Where the trial judge was not provided with any evidence regarding the agreed value of the unit at trial – Appeal dismissed.FAMILY LAW – APPEAL – PROPERTY – CONTRIBUTIONS – Where the appellant wife submits that the trial judge erred in relation to the weight placed on the respondent husband’s sole parenting of the parties’ child, a payment made by the wife to the husband, and the wife’s upkeep of the former matrimonial home – Where the appellant wife further submits that the trial judge erred in not making an adjustment in favour of the appellant wife pursuant to s 75(2)  of the Family Law Act 1975 (Cth) due to the duration of the marriage, the appellant wife’s health issues and minimal prospects of future employment – Where the findings made by the trial judge were reasonably open and within a proper exercise of discretion – Appeal dismissed.
  • Adcock & Adcock [2014] FamCAFC 138 – 29/07/2014 – View PDF
    FAMILY LAW – APPEAL – Consent orders.FAMILY LAW – COSTS – Costs Certificate.
  • Tokely & Tokely [2014] FamCAFC 137 – 29/07/2014 – View PDF
    FAMILY LAW – APPEAL – RECOVERY ORDER – Where the child was taken into the father’s care and not returned – Where the mother’s evidence was that, until removal, she had been the primary carer of the child –  Where the mother sought orders on an urgent basis returning the child to her – Where the trial judge acknowledged that the matter was urgent – Where the trial judge made orders adjourning the matter for 4 months to allow the father to file additional evidence and to allow the matter to be heard in a circuit court closer to where the parties lived –  Whether there was a denial of procedural fairness by failing to properly engage in the issues by determining the recovery order application or failing to set the recovery order application down for hearing in a suitable time frame – Where the evidence suggested that an urgent hearing was required – Where the length of the adjournment and the listing of the matter for mention as opposed to hearing did not meet the urgency of the situation – Where it was accepted that a lengthy adjournment was tantamount to a refusal of the application on an interim basis – Where the trial judge did not determine whether the child’s best interests were to be served by remaining with the father  – HELD – Appeal allowed.
  • Melton & Maddison [2014] FamCAFC 136 – 30/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – Whether the trial judge provided inadequate reasons for imposing a restraint on the child spending time with the father’s family members – Where the trial judge referred to ss 60CC(2)(b), and 60CC(3)(m) of the Family Law Act 1975 (Cth) when determining whether to impose the restraint  – Where the evidence supporting the imposition of the restraint was uncontradicted – Where the trial judge was asked to consider the father’s living arrangements when making orders for the child to spend time with the father – Where the trial judge was entitled to frame orders for the future arrangements for the child, having regard to past conduct of the appellant father and his family – Where the trial judge’s discretion did not miscarry – Appeal dismissed.
  • Maldera & Orbel [2014] FamCAFC 135 – 30/07/2014 – View PDF
    FAMILY LAW – APPEAL – STATUTORY CONSTRUCTION – Proper role of objects provisions in legislation considered – Where greater weight attached s 60B (objects and principles) than s 60CC – B & B: Family Law Reform Act 1995 (1997) FLC 92-755 considered as to the role and significance of s 60B – Where B & B: Family Law Reform Act 1995 provides that a judge is expected to identify and discuss the significance and weight of relevant s 60B factors and that where there are no countervailing factors, s 60B may be decisive – Where regard may be had to objects clauses to resolve uncertainty or ambiguity in the legislation but not to control clear statutory language or command a particular outcome of exercise of discretionary power – HELD – B & B: Family Law Reform Act 1995 overruled to the extent that it holds that s 60B does more than provide context, indicate the legislative purpose of Part VII and operate as an aid to construction of the Act.FAMILY LAW – APPEAL – CHILDREN – PARENTING ORDERS – With whom a child lives – Where in a parenting case undertaken between a parent and another person interested in the welfare of the child, the fact of parenthood requires careful consideration – Part VII does not prescribe a hierarchy of applicants – Where s 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex – Where the significance for a child of parenthood is to be weighed and considered along with other matters identified in s 60CC – Where child had lived with grandparent most of his life – Where application for a family report refused – Where no Independent Children’s Lawyer – HELD – Error established as to determination that it was in child’s best interests to live with his father – Orders in favour of father set aside and proceedings remitted for rehearing.
  • Sheill & McMurr (No. 2) [2014] FamCAFC 134 – 28/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – FINAL OR INTERLOCUTORY ORDERS – Whether the appealed orders were final or interlocutory – Where primary judge adopted procedure  referrable to applications for interim orders and described the orders as interim – Licul v Corney (1976) 180 CLR 213 applied – Whether the judgment or order finally disposes of the rights of the parties in the principal case – Where the test is concerned with the legal rather than the practical effect of the judgment – Where the application of the test rests on the nature of the order made and not the nature of the application made to the court – Where it was conceded that the order under challenge could be reversed at the final hearing –  HELD – Orders made were interlocutory.FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the mother knew the date of the hearing and the date to file her affidavit material and did not do so – Where the mother did not attend the hearing – Where procedural fairness requires no more than the opportunity to be heard – Where his Honour was entitled to rely on untested evidence in circumstances where it was an interim hearing and the mother did not file any evidence to cast doubt on the evidence relied on –  HELD – No denial of procedural fairness – APPEAL DISMISSED.
  • Estella & Morena (No. 2) [2014] FamCAFC 133 – 23/07/2014 – View PDF
    FAMILY LAW – APPLICATION IN AN APPEAL - Application to file a notice of appeal out of time – Where leave was granted to file a notice of discontinuance at the commencement of the hearing – Application dismissed.FAMILY LAW – COSTS - Where the respondent made application for costs – Where the respondent had only been informed that the applicant was not pursuing the application the day before the hearing – Where the proposed appeal had no merits and the application would not have been granted – Where the respondent is in receipt of a grant of legal aid – Where the public purse has been put to expense in responding to the application – Application allowed.
  • Harrell & Hancock-Harrell [2014] FamCAFC 132 – 23/07/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to file a notice of appeal from an interim parenting decision of a Federal Circuit Court judge out of time – Where the delay is adequately explained – Where the applicant makes allegations about the respondent misleading the court – Where the appeal, if allowed, would be unmeritorious and of no utility – Application refused.
  • Enmore & Smoothe [2014] FamCAFC 131 – 23/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Where the appellant mother alleged a risk of child sexual abuse and the Federal Circuit Judge did not suspend interim orders allowing the respondent father to spend unsupervised time with the child, but transferred the proceedings to the Family Court – Whether the Judge erred by failing to act on evidence that was “not far-fetched, fanciful or remote” – Whether the Judge erred by relying on evidence other than that of an expert – Whether the Judge placed excessive weight on inconsistencies in the evidence – Appeal dismissed – Submissions to be filed in relation to costs.FAMILY LAW – APPEAL – CONTRAVENTION – Where the respondent father brought contravention proceedings in relation to orders that allowed him to spend unsupervised time with the child – Where the Judge found that the mother did not have a reasonable excuse for breaching the orders and required the mother to enter into a bond to comply – Whether the Judge erred by relying on the reasons delivered in the substantive proceedings – Appeal dismissed – Submissions to be filed in relation to costs.
  • Scrymegeour & Scrymegeour [2014] FamCAFC 130 – 23/07/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY – PROCEDURAL FAIRNESS – Where the appellant husband submitted that the trial judge adopted a different course from that discussed at trial – Where the trial judge adopted a single pool approach including the parties’ assets and superannuation interests when both parties submitted a two pool approach would be appropriate in the circumstances and despite the concurrence of the trial judge with this approach during the trial – Where the respondent wife sought at trial 50 per cent of the superannuation assets of the parties and the appellant husband proposed that the wife receive 45 per cent, the trial judge determined that the respondent wife should receive 65 per cent of all assets including superannuation – Where the parties at trial were in agreement that any periodic spouse maintenance order should be confined to two years – Where the trial judge’s orders required payment of periodic spouse maintenance for five years – Where the parties were not given any opportunity to be heard on the adoption of a single asset pool, on the percentage division of the superannuation assets or the duration of periodic spouse maintenance – Where the result was manifestly unjust to the appellant husband – Appeal allowed.FAMILY LAW APPEAL – COSTS – Where the appeal succeeded on a relatively narrow question of law which should have been apparent to the parties – Where the appellant husband needed to articulate concise grounds of appeal – Where the success of the appeal on an obvious point warrants the payment of some costs by the respondent wife to the appellant husband – Where the appellant should not receive all costs because of the needless expense incurred by the respondent wife in addressing grounds of appeal not pursued – Respondent wife to pay one-half of the appellant husband’s costs of the appeal – Costs certificates granted to the parties for the re-hearing.
  • Matthews & Matthews (No. 2) [2014] FamCAFC 129 – 19/06/2014 – View PDF
    FAMILY LAW – APPEAL – INTERIM PROPERTY ORDERS – Where the trial judge made an order providing for a lump sum payment to the wife – Where appellant complained that the terms of the order did not disclose the source of power being relied on by the trial judge to make that order, i.e. whether it was an order for costs, interim property settlement or child maintenance – Where the appellant also appealed on the basis that the trial judge did not provide any published reasons for the orders – Where the respondent conceded that the appeal should be allowed – Appeal allowed – Where the Full Court re-exercised the discretion and made orders for interim property settlement pursuant to ss 79 and 80(1)(h) of theFamily Law Act 1975 (Cth) – Costs certificates granted.
  • Poisat & Poisat [2014] FamCAFC 128 – 21/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – PRACTICE AND PROCEDURE – where the appellant father sought at trial to vary final parenting orders – where the father challenges on appeal the trial Judge’s application of the “rule in Rice v Asplund” – where the father contends the trial Judge erroneously confined herself in the manner in which she dealt with the father’s application for a variation of parenting orders – consideration of the “rule in Rice v Asplund” – whether the trial Judge erred – where nothing to indicate the trial Judge’s discretion miscarried – no error demonstrated – father ordered to pay the mother’s costs of the appeal.
  • Jurchenko & Foster [2014] FamCAFC 127 – 18/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the Magistrate made orders preventing the mother from relocating the child’s residence from Perth to a town in the Pilbara – Whether it is appropriate for a judicial officer to provide a preliminary view before trial – Whether it is necessary for expert evidence to be provided before a judicial officer can make a  finding about the likely effect of a relocation – Where the mother said during cross-examination she would remain in Perth if relocation was refused and where the Magistrate erred by proceeding on the basis that this was a proposal – Where the Magistrate erred by focussing on the maintenance of a meaningful relationship with both parents at the expense of a proper consideration of all other relevant factors – Where the Magistrate gave insufficient attention to the impact on the mother’s new family of the relocation being refused – Where the Full Court was satisfied that the Magistrate erred by failing to carry out a proper evaluation of the competing proposals – Appeal allowed – Matter remitted for rehearing – Costs certificates granted to both parties for the appeal and the rehearing.
  • Layton & Layton [2014] FamCAFC 126 – 17/07/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY – ADEQUACY OF REASONS – Where the appellant husband submits that the Federal Magistrate’s reasons were inadequate – Where the Federal Magistrate refused to “add back” an amount of $50,000 into the asset pool for a personal loan – Where the Federal Magistrate disregarded that the respondent wife had apparent sole use of the loan – Where no weight was given to a purported loan agreement between the parties – Where the Federal Magistrate’s reasons do not support the conclusion reached in relation to the property to which the percentage distribution (arrived at on the basis of contributions and s 75(2) factors) was to be applied – Appeal allowed.FAMILY LAW – APPEAL – COSTS – Where no order for costs made – Where the appeal has succeeded on a point of law – Both parties to receive certificates for the appeal and rehearing.
  • Tethys & Tethys [2014] FamCAFC 125 – 17/07/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY – Where there was a property overseas – where the husband did not disclose this property – where the valuation of this property was not clear – where the husband and the wife had two businesses – where there were tax implications of those assets.
  • Vismay & Shaw [2014] FamCAFC 124 – 16/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – with whom a child spends time – where the effect of the orders was the father spent less time with the children – whether spending less time with the children was an error which was “plainly wrong” – Whether the finding was open to the magistrate – where there was nothing “plainly wrong” about the finding – where the finding was open to the Magistrate.FAMILY LAW – APPEAL – CHILDREN – Child related proceedings – Evidence – where a trial judge is not required to advert to every piece of evidence or submission – where the report writer’s evidence was that the children were sensitive – where there is no error.

    FAMILY LAW – APPEAL – Delay and/or prejudice – Whether delay in delivery of judgment has made the decision unsafe or contributed to error – where the delay in delivery of judgment has not made the decision unsafe or contributed to error.

    FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – where the appellant is ordered to pay the respondent’s costs.

  • Nada & Nettle [2014] FamCAFC 123 – 16/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – Relocation – where a child lives – best interests of a child – reasonably practicable – where the mother unilaterally relocated – where the father was not told the mother relocated until just before a contravention hearing – where the court was not told the mother relocated until a directions hearing before a contravention hearing – where the trial came from a contravention application – whether the trial judge followed the “legislative pathway”.FAMILY LAW – EVIDENCE – Admissibility – where the mother was self-represented at trial – where the mother gave evidence about legal advice – whether the trial judge should have given the mother a warning.

    FAMILY LAW – EVIDENCE – whether the trial judge should have called a witness – whether the trial judge should have instructed the mother to call the maternal grandfather – whether the trial judge drew an adverse inference – Jones v Dunkel.

  • Gahen & Gahen [2014] FamCAFC 122 – 11/07/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing to allow the child’s general practitioner to give oral evidence or file affidavit material – Where the potential for the general practitioner to give evidence was raised in a directions hearing but not further pursued  – Where extracts of the general practitioner’s clinical notes were subpoenaed and tendered into evidence – Where the trial judge was not informed of the nature and substance of the proposed evidence – Where the proposed evidence is inadmissible or could not be accorded significant weight – Application refused.FAMILY LAW – APPEAL  – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing to allow the child’s psychologist to give oral evidence or file affidavit material – Where the potential for the psychologist to give evidence was raised in a directions hearing but not further pursued – Where extracts of the psychologist’s clinical notes were subpoenaed and tendered into evidence – Where the trial judge was not informed of the nature and substance of the proposed evidence – Where the affidavit sought to be relied upon contains unjustified opinions that the dependent may be unqualified to give – Application refused.

    FAMILY LAW – APPEAL  – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing allow the child’s childcare worker to file affidavit material – Where the childcare worker reported a conversation she had with the child to the Department of Community Services – Where the evidence is almost wholly inadmissible – Application refused.

    FAMILY LAW – APPEAL – CHILDREN – ALLEGATIONS OF SEXUAL ABUSE  – Where the mother’s belief that the child had been sexually abused whilst in the father’s care was found to be honestly but not reasonably held by the trial judge – Where the child had been medically examined on more than one occasion – Whether this aspect of the evidence invited evaluation of the child’s representations – Whether the child’s representations were true or false – Where the trial judge made a conclusion about the veracity of the child’s representations – Whether evidence is in fact directly contradictory to the trial findings was not addressed in the argument – Appeal dismissed.

  • Pace & Pace [2014] FamCAFC 121 – 11/07/2014 – View PDF
    FAMILY LAW – APPEAL – CONTRAVENTION – Interlocutory parenting proceedings – Where one party unilaterally relocated –Where there was a contravention  – Whether there was reasonable excuse – Where the primary judge found there was limited evidence – Where there was no evidence of persuasive error.FAMILY LAW – APPEAL – CHILDREN – Family violence – Whether the trial judge erred in making an order for equal shared parental responsibility – Whether equal shared parental responsibility was inapplicable because of domestic violence – Where no submission was made to the trial judge about equal shared parental responsibility – Where equal shared parental responsibility is not inapplicable.

    FAMILY LAW – APPEAL – EVIDENCE – Whether the trial judge placed too much weight on the father’s evidence – Where the mother raised questions about the father’s bona fides in a property transaction – Where the issue before the primary judge related to the mother’s evidence – Where there was no error.

  • Higginson & Higginson [2014] FamCAFC 120 – 08/07/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the appeal was allowed by consent in circumstances where the parties agreed that the trial judge’s orders were manifestly unjust – where the circumstances were appropriate for the grant of costs certificates to the parties in relation to the costs of the appeal and the new trial.
  • Kedis & Kedis [2014] FamCAFC 119 – 07/07/2014 – View PDF
    FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the appellant seeks a further adjournment to file an amended Notice of Appeal containing proper grounds of appeal – where the adjournment is opposed – where the ground of appeal set out in the Notice of Appeal does not raise any appealable error of fact or law by the trial judge – where the oral application of the appellant for a further adjournment is dismissed – where the appeal is groundless – appeal struck out.FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks costs for the work involved in responding to the appeal and for the appearance of counsel and solicitor today – where the appellant opposes any order for costs – wife’s costs to be paid by the husband as agreed or in default of agreement as assessed.
  • Carroll & Carroll [2014] FamCAFC 118 – 08/07/2014 – View PDF
    FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – where the husband appeals final property settlement orders – where the appeal is opposed by the wife – where as a result of findings on contribution the Federal Magistrate determined that the property of the parties be divided as to 75 per cent to the wife and 25 per cent to the husband – where the husband asserts that the Federal Magistrate’s assessment of his contributions was manifestly inadequate – where the principal challenge appears to be that the Federal Magistrate’s reasons for her finding on contributions were inadequate – where there is a wide discretion reposed in the court pursuant to s 79 of the Family Law Act 1975 (Cth) – where the wife says the complaint can only be as to weight – where it is not apparent from the findings how the Federal Magistrate arrived at the percentage division that she did – where the Federal Magistrate erred – appeal allowed.FAMILY LAW – APPEAL – NOTICE OF APPEAL – REMIT OR RE-EXERCISE DISCRETION – where there is a need for further evidence which may be controversial – where the Appeal Court is not equipped to hear cross-examination and to determine disputed issues of fact – where if the Appeal Court re-exercised the discretion the only avenue of appeal open to the parties would be to seek special leave to appeal to the High Court of Australia – where the appropriate course is to remit the proceedings to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Baker – proceedings remitted for rehearing.

    FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where both parties seeks costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where the appeal has been allowed on a question of law and there is no order for costs – costs certificates granted to the parties as sought.

  • Esperanza & Giminez [2014] FamCAFC 117 – 04/07/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is no satisfactory explanation provided by the applicant for failing to file the appeal within time or for failing to file the application expeditiously – where the appeal has no merit and is doomed to fail – where there is prejudice to both parties depending on the result – where the justice of the case requires the refusal of the application – application dismissed.
  • Prusta & Kertescz [2014] FamCAFC 116 – 02/07/2014 – View PDF
    FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where the parties agreed that the appeal should be allowed and the orders set aside – Where both parties sought costs certificates in the federal appeal – Where the trial judge had made errors of law – Where the appeal had been heard in the necessary sense – Application allowed.
  • Sheill & McMurr [2014] FamCAFC 115 – 02/07/2014 – View PDF
    FAMILY LAW – APPEAL – Application in an Appeal – Where the mother sought an extension of time to file an appeal and expedition of the appeal – Where the evidence established an acceptable explanation for the mother’s failure to file a notice of appeal on time – Where the issues on appeal, if successful, could enable the court to set aside the orders – HELD – Appeal granted.
  • Miller & Miller [2014] FamCAFC 114 – 30/06/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against interim parenting orders that the child spend week about time with the mother and the father.
  • Moore & Moore [2014] FamCAFC 113 – 27/06/2014 – View PDF
    FAMILY LAW – APPEAL – Where the wife appealed against a dismissal of her application to revoke the approval of a Deed pursuant to s 87(8) of the Family Law Act 1975 (Cth) – Where the wife asserts the husband misrepresented the true ownership of the very valuable asset of a trust – The findings made by the trial Judge were open to him on the evidence – Where the wife asserts the husband provided misleading information concerning disbursement of the proceeds of sale of two properties – The document provided was not misleading and in any event, the wife did not rely on any representation – Where the wife asserts the husband failed to disclose an arrangement between the husband and his mother relating to a mortgage – The trial Judge’s findings were open to him – Where the wife asserts the husband exerted undue pressure on her in circumstances where a mortgage was called up – The trial Judge’s findings were open to him – No merit in any grounds of appeal – Appeal dismissed.
  • Caballes & Tallant [2014] FamCAFC 112 – 27/06/2014 – View PDF
    FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – CONTRAVENTION – Where the trial judge found that the mother had contravened consent orders on one occasion but not another, but ordered no sanction – Where the trial judge denied procedural fairness to the father by departing from the procedure outlined in r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) and not explaining to the father the process that was to be used at the hearing – Where the trial judge did not allow the father the opportunity to address him on why in relation to the count not established not only had he established a prima facie case, but the mother had failed to establish a reasonable excuse – Appeal allowed.FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – PARENTING ORDERS – Where the parties agreed that an order providing for the exchange of information should be set aside – Where the parties proposed a variation of this order – Where the order is in the child’s best interests – Order varied by consent.

 


Academic research. Under construction…

 

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