FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the primary judge set aside subpoenas issued by the father seeking records related to the mother’s employment – Where the mother’s work rosters and timesheets could only be rationally relevant to her spare capacity to primarily care for the children – Where the trial of the parenting cause is now complete – Where the proposed appeal in so far as it relates to the parenting cause is futile – Where the trial as to the financial cause is yet to commence – Where the primary judge perhaps fell into legal error by dismissing the subpoenas in the financial cause but the father cannot demonstrate how he suffers substantial injustice by the decision – Where the father’s complaint as to the quantum of a costs order is false – Leave to appeal refused – Application to adduce further evidence dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where the father’s complaint his counsel at trial was so incompetent to have caused a miscarriage of justice is rejected – Where the primary judge found the father posed an unacceptable risk of harm to the child and the mother – Where the father’s bare assertion the primary judge erred in the application of legal principle and gave inadequate reasons fails – Where the primary judge did not make any error in making orders that require permanent supervision of the time the child spends with the father – Where the father’s complaint the primary judge failed to consider the child’s views is false – Appeal dismissed – Appellant to pay the respondent’s legal aid costs in a fixed sum.

FAMILY LAW – APPEAL – PARENTING – Procedural fairness – Statements by judge that the Court would force 14 year old to resume residence with a parent prior to hearing argument on that issue – Apprehended bias established.

PARENTING – Application to vary final parenting orders – Whether “significant change in circumstances” as required by s 65DAAA – 15 months of no contact with former resident parent a “significant change in circumstances” within the meaning of s 65DAAA.

FAMILY LAW – APPEAL – PARENTING – Where the appellant is the child’s former step-father – Where the first respondent is the child’s biological mother – Where the second respondent is the child’s putative biological father and did not participate in the primary proceedings or appellate proceedings – Where the appeal does not raise any question of general principle – Where the appellant pleaded guilty to stalking the first respondent early in their relationship – Where the trial judge found the appellant to have continued to commit family violence during and after the relationship – Where the trial judge found that the appellant posed an unacceptable risk to the child – Where the trial judge found that the passage of time had not lessened the risk – Where the trial judge found that the risk could be mitigated by infrequent supervised time with the child – Where the further amended Notice of Appeal contended a denial of procedural fairness, errors of law and a failure to give reasons – Where the appellant’s Summary of Argument addressed grounds of appeal which were not raised in his further amended Notice of Appeal – Where the appellant was confined to the grounds in his further amended Notice of Appeal – Where there was no merit to any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – Harmful proceedings order made pursuant to s 102QAC of the Family Law Act 1975 (Cth) – Whether an application for leave to appeal pursuant to s 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) constitutes an application in a proceeding under the Family Law Act for the purposes of s 102QAC – Where an appeal constitutes an incidental proceeding and is subject to a s 102QAC order – Where leave is required – Where the applicant alleges error in the primary judge’s refusal to restrain the wife’s counsel and solicitors from representing her – Where the wife’s counsel had been representing her in the proceedings for 10 years – Where a solicitor previously employed at the firm representing the applicant is alleged to have commenced employment at the firm representing the wife – Where no proper basis is disclosed for such restraint – Where none of the proposed grounds of appeal have merit – Where the proposed application for leave to appeal falls within the definition of a “vexatious proceeding” for the purposes of s 102QAF(2) – Leave to appeal refused.

FAMILY LAW – APPEAL – Where the appellant challenges an order to pay the costs of an intervener on an indemnity basis in s 79 proceedings – Where none of the prosecuted grounds of appeal have merit – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Appeal from final property orders – Where the appellant’s factual challenges as to the value of the respondent’s minority interest in a corporation and as to discretionary error have no merit – Where the appellant establishes that the primary judge was in error in not attributing a positive value to the respondent’s interests in a self-managed superannuation fund – Where the primary judge conflated the financial circumstances of differing corporations at differing times relevant to the finding under challenge – Appeal allowed in part – Where the matter is remitted limited to specific issues to obtain an updated valuation of the respondent’s interests in the self-managed superannuation fund and thereafter for a superannuation splitting order pursuant to s 90XT of the Family Law Act 1975 (Cth) – Costs certificates for the appeal and limited remitter.

FAMILY LAW – APPEAL – PROPERTY – Asset preservation injunction – The husband alleged the magistrate provided inadequate reasons for granting the wife the injunctive relief against the husband – The Court emphasised that an applicant for injunctive relief must establish that there is a real risk of assets being disposed of and that, as a result of that risk, there is a real ground for believing that the applicant will be prejudiced in the remedy they are seeking – The magistrate failed to outline principles regarding issuing injunctive orders – Leave to appeal granted as the appellant would suffer substantial injustice if leave were not granted, as they would face hardship due to the effect of the interim injunctions – Appeal ground allowed.,

APPEAL – PROPERTY – Cross appellant company appealed anti-suit injunction – When assessing whether to grant the anti-suit injunction, the magistrate took a ‘holistic approach’ to the parties’ circumstances – Court held that the appropriate test in determining whether to make an anti-suit injunction order is whether the court “was a clearly inappropriate forum” not an assessment of the more convenient forum. – Leave to appeal granted as depriving an entity of its legal rights without proper justification amounts to substantial injustice – Appeal ground allowed.,

APPEAL – PROPERTY – Spousal maintenance – Where the husband contended the magistrate failed to take into account material considerations – Where the husband argued the magistrate should have taken into account the wife’s access to funds post-separation – The Court held that the fact that a party has access to a lump sum amount of the collective marital property is not, in itself, a disentitling factor to an order of spousal maintenance if the expenditure has been or will be accounted for – The lump sum was no longer available to the wife to meet her weekly needs – The Court emphasised that there was no requirement for the wife to extend her credit card debt to establish she was unable to adequately support herself – The magistrate’s failure to refer to relatively insignificant amounts of funds drawn on by the wife was held not to have impacted upon the magistrate’s assessment of the wife’s capacity to adequately support herself – Appeal ground dismissed.,

APPEAL – PROPERTY – Spousal maintenance – Where the husband contended that the magistrate failed to recognise that part of his declared income was a non-cash fringe benefit and should not have been included in his total income – The magistrate was not obliged to break down husband’s income into cash and non-cash benefits, particularly where they were not requested to do so by any argument presented by the husband – Where the husband contended the magistrate erred by failing to assess the weekly quantum of payments ordered by the magistrate and their impact on surplus income – Court held the magistrate adequately considered the payments – Appeal ground dismissed

FAMILY LAW – APPEAL – Application in an Appeal – Where the self-represented appellant requests a further adjournment for six months for medical reasons and lack of legal representation – Where the medical reports relied upon are inconsistent with the appellant’s conduct in preparing and filing documents in the appeal – Where the appellant did not adduce evidence as to incapacity to re-engage legal representation – Where adjournment of the appeal will cause prejudice to the respondent – Adjournment application refused – Where the appellant did not further participate in the appeal hearing and the appeal was thereafter adjourned for a short period – Appellant ordered to pay the respondent’s fixed costs thrown away

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks to review the appeal judicial registrar’s decision to dismiss his application seeking an extension of time in which to file a Notice of Appeal – Where the Court is not satisfied the applicant has demonstrated an arguable case on appeal – Where none of the grounds of appeal have merit – Where the granting of the extension would be an exercise in futility – Application dismissed.

FAMILY LAW – APPEAL – SHOW CAUSE HEARING – Where the applicant seeks leave to appeal interlocutory orders – Where the orders do not constitute a judgment from which an appeal may lie – Where the orders do not determine any party’s rights – Where the appellant failed to show cause as to why the Notice of Appeal should not be summarily dismissed – Where s 60CA and the best interests of the child are inapplicable – Where an order for the appointment of a single expert to prepare a Family Report is not a parenting order pursuant to s 64B – Where leave to appeal is refused and the Notice of Appeal is dismissed – Where the appellant must pay the respondent’s costs.

FAMILY LAW – APPEAL – PROPERTY – Where appellant alleges the primary judge failed to uphold procedural fairness, natural justice, and mishandled the conduct of the hearing – Where the appellant alleges the primary judge intimidated counsel and ‘abused’ their discretion – Where appellant alleges the primary judge was biased and failed to recuse themselves – Where the appellant alleges the primary judge failed to properly assess the available evidence – Where the appellant alleges the primary judge’s reasons were inadequate – Appeal dismissed – Appellant failed to establish any unfairness in the case management rulings made by the primary judge – The primary hearing was conducted fairly – The primary judge’s firm instruction that the appellant follow courtroom decorum is not a punitive or biased act – The primary judge’s involvement in an internal Court committee did not support a reasonable apprehension of bias – Appellant’s contentious exchange with the primary judge did not create actual bias or a reasonable apprehension of bias – The primary judge’s findings were reasonably open on the evidence – The primary judge provided adequate reasons – Appellant wholly unsuccessful – Appellant to pay the costs of the respondent on a party and party basis.

FAMILY LAW – APPEAL – PARENTING – Where the primary judge found that the child was at an unacceptable risk in the appellant’s care – Where the appellant challenged final orders permitting the other parent to relocate internationally with the child – Appeal dismissed.

FAMILY LAW – APPEAL – Application in an Appeal – where the appellant seeks to adjourn the hearing of the appeal – where the appellant is attending a mediation with NCAT on the date of the hearing of the appeal – where the application is granted – where the hearing of the appeal is adjourned for one day

FAMILY LAW – APPEAL – Application in an Appeal – Where the applicant requests an adjournment for six months for medical reasons – Where the applicant has also filed an application for a stay before the primary judge – Where the respondent will suffer prejudice if the stay is successful and the appeal is adjourned – Where the applicant is without legal representation – Where the applicant has not adduced evidence as to any incapacity to re-engage legal representation for the purposes of the appeal – Where the medical evidence adduced by the applicant fails to address the central question for the purposes of the application for the adjournment of the appeal, being whether the applicant’s health challenges prevent her from preparing for and attending on the appeal – Application in an Appeal dismissed – Respondent’s costs of the Application in an Appeal are costs in the appellate cause.

FAMILY LAW – APPEAL – Application in an Appeal – Where the appellant seeks access to the full transcript of the primary proceedings at the Court’s cost, a subpoena be issued to NSW Police and leave to adduce further evidence on appeal – Where the application seeking leave to adduce further evidence on appeal is adjourned to the hearing of the substantive appeal – Where the appellant has purchased the transcript for one of the trial days – Where the appellant contends financial hardship prevents her from purchasing the balance of the transcript – Where the Court provides the transcript to litigants at its own cost only in exceptional circumstances – Where the transcript is not required for the vast number of sub-grounds of appeal as prosecuted by the appellant – Request for the Court to provide the transcript at its own cost refused – Extension of time granted for the appellant to elect to purchase the remaining transcripts and file her Summary of Argument and List of Authorities – Where the subpoena subject to leave as constructed by the appellant would be an abuse of process on appeal – Application in an Appeal refused in part.

FAMILY LAW – APPEAL – EX-TEMPORE – Property settlement – Where parties were in a relationship for 34 years – Where the primary judge assessed the parties’ contributions at 75 percent in favour of the respondent and 25 per cent in favour of the appellant – Primary judge made an adjustment under s 75(2) resulting in 88 per cent distribution in favour of the respondent and 22 per cent in favour of the appellant – Where the appellant argued inadequacy of reasons – A 22 per cent distribution in favour of the appellant was outside the ambit of a reasonable assessment pursuant to the test in House v The King (1936) 55 CLR 499 – Parties agreed on terms of settlement – Orders made by consent – Appeal allowed by consent – No matters of principle.

FAMILY LAW – APPEAL – Parenting – Where the appellant father attempted to file a Notice of Discontinuance the day before the hearing – Where the appellant did not comply with the filing rules – Where the appellant did not attend the hearing – Appeal dismissed pursuant to r 13.31 of the Rules. -No order as to costs.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks an extension of time to obtain the transcript – Requirement to file transcript dispensed with – Where the applicant seeks an expansion of the contents of the Appeal Book – Leave granted to file a Contested Appeal Book – Application otherwise dismissed.

FAMILY LAW – APPEAL – Recovery order – Where appellant father did not comply with the filing rules – Where the appellant did not attend the hearing – Where there is no merit in the appeal – Where the orders subject of the appeal are no longer operative – No utility in allowing the appeal – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – PROPERTY – Appeal from final property orders made pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the primary judge determined that family violence made the respondent’s otherwise equal contributions more difficult, onerous or arduous – No error of fact – Adequacy of reasons – Error of law – Reasons as to why the primary judge made an adjustment in favour of the respondent inadequate – Appeal allowed – Matter remitted for rehearing.