FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed an Amended Application in an Appeal seeking an extension of time to file and serve an Amended Amended Notice of Appeal, an Amended Summary of Argument and an Amended List of Authorities, leave to issue a subpoena to produce documents directed to his prior solicitors and leave to adduce further evidence on the appeal – Where the respondent and the Independent Children’s Lawyer agreed to leave being granted to the applicant to file and rely on his Amended Amended Notice of Appeal, his Amended Summary of Argument and his Amended List of Authorities consequential to an extension of time for them to file their Summary of Arguments and Lists of Authorities – Where all parties agreed that the relief sought as to leave to adduce further evidence on the appeal will be listed for hearing before the Full Court in conjunction with the substantive appeal – Where the relief sought as to the issue of a subpoena to the applicant’s prior solicitors was withdrawn on condition – Order made extending the time for the applicant to file his Amended Amended Notice of Appeal, Amended Summary of Argument and Amended Lists of Authorities – Order made extending the time for the respondent and the Independent Children’s Lawyer to file their Summary of Arguments and Lists of Authorities – Costs reserved to the hearing of the substantive appeal.

FAMILY LAW – APPEAL – PROPERTY – Contributions – Major asset is shares and options in a valuable company which the appellant co-founded which significantly increased post-separation – Contributions assessed as equal by primary judge – Appeal dismissed.

APPEAL – EVIDENCE – Foreign law – Findings as to transferability of shares and options in company in the United States of America – Whether primary judge could consider terms of foreign legislation in absence of expert evidence – Findings as to foreign law are questions of fact – Findings of primary judge open on evidence before primary judge – Appeal dismissed

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed an Application in an Appeal seeking that the Court supply five out of eight days of the digital transcript before the primary judge, or in the alternative that the Court dispense with her obligation to obtain the transcript, permitting her to prosecute the appeal without it – Where the applicant’s contentions as to a failure to afford her procedural fairness or occasioning a denial of natural justice because the Court will not meet the cost of a digital transcript are rejected – Where the Court is not satisfied it should take the exceptional step of obtaining and funding the transcript as sought – Order made dispensing with the requirement for the applicant to obtain and provide the digital transcript – Where the applicant filed a second Application in an Appeal seeking a review of the appeal judicial registrar’s procedural orders – The gravamen of the relief sought on review is to “remove” the appeal judicial registrar “entirely from the matter”, and to adjourn the scheduled appeal hearing – Where the applicant sought an extension of time to file her Summary of Argument – Where it is incumbent upon the Court to ensure that litigation progresses efficiently and is not delayed – Application in an Appeal for a review of the appeal judicial registrar’s procedural orders dismissed – Respondent’s costs of and incidental to each Application in an Appeal reserved to the substantive appeal hearing.

FAMILY LAW – APPEAL – Application in an Appeal – Where the applicant seeks to review a decision of an appeal registrar dismissing an application seeking an extension of time in which to file a Notice of Appeal – Where the time for filing any Notice of Appeal from the judgment expired months ago – 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 futile – Application dismissed

FAMILY LAW – APPEAL – Leave to appeal – Enforcement of final orders involving funds held in a foreign jurisdiction – Where the applicant was required to facilitate the transfer of funds, including executing a Power of Attorney – Where the applicant refused to execute the Power of Attorney and a senior judicial registrar executed it pursuant to s 106A of the Family Law Act 1975 (Cth) – Where the applicant contended the Power of Attorney was invalid, exceeded the scope of the final orders and was procured by fraud – Where no evidence supported the allegation of fraud – Where the applicant contended denial of procedural fairness – Where the Court is satisfied that the applicant was afforded a full opportunity to be heard – Where none of the grounds of appeal identify any appealable error made by the primary judge – Where the appeal is without merit – Leave to appeal is refused – Costs ordered.

FAMILY LAW – APPEAL – Where the appellant contended that the primary judge failed to provide adequate reasons in relation to the contribution-based findings and the adjustment under s 79(5) of the Family Law Act 1975 (Cth) and further contended that the primary judge made factual errors more properly characterised as challenges to weight – Where the primary judge assessed the parties’ contributions in a segmented and compartmentalised manner – Where orders were made reflecting a division of 56 per cent to the appellant and 44 per cent to the respondent – Where the appellant made significant contributions by way of inheritance from her father’s estate shortly prior to separation– Where the Court is satisfied that the primary judge’s approach to the assessment of contributions was erroneous – Appeal allowed – Costs certificates ordered.

ASSESSMENT OF CONTRIBUTIONS – Where in the re-exercise of discretion, the Court is to undertake an instinctive synthesis of the matters in s 79(4), assessing the contributions of the parties holistically and not by aggregating individual components – Where the appellant’s inheritance represented nearly 50 per cent of the parties’ existing property – Upon re exercise, the appellant’s contributions assessed at 65 per cent – Where the Court was not satisfied that any matter warranted an adjustment under s 79(5) – Orders varied to reflect the revised percentage distribution of the parties’ property.

FAMILY LAW – APPEAL – Application in an Appeal – Transcript – Where the appeal was taken to be abandoned by operation of r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant seeks reinstatement of the appeal – Where the proposed appeal is devoid of merit – Application dismissed

FAMILY LAW – APPEAL – Application in an Appeal – Leave sought to institute appellate proceedings – Where the applicant is subject to a harmful proceedings order – Where the applicant seeks leave to appeal final parenting orders – Where the affidavit in support of the application does not substantially comply with subsection 102QAE(3)(b) – Where the proposed appeal is without reasonable grounds and therefore is vexatious – Application dismissed.

FAMILY LAW – APPEAL – Appeal from a divorce order – Whether there was an error of fact – Whether the respondent’s conduct of the litigation was vexatious or oppressive – No error found on the part of the primary judge – Appeal dismissed – Order made for the appellant to pay the respondent’s costs of the appeal in a fixed sum.

FAMILY LAW – APPEAL – Application for leave to appeal where applicant subject to a harmful proceedings order pursuant to s 102QAC of the Family Law Act 1975 (Cth) – Appeal against findings of contravention – Where conditional term of imprisonment imposed – Whether civil or criminal standard of proof applies in proceedings resulting in an order for imprisonment – Application for leave to file a Notice of Appeal allowed with respect to whether criminal standard of proof should have been applied.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Expedition and provision of transcript – Where the appellant seeks to expedite her appeal against interim parenting orders – Where the appellant contends the child is at a risk of harm in the care of the respondents – Where the appeal has been listed for hearing in less than three months – Where the listing amounts to an expedition of the appeal – Where the appellant seeks that the Court meet the costs of the transcript – Where the appeal is against interim orders and no cross-examination occurred – Where the grounds of appeal do not identify a need for a transcript – Appellant relieved of the obligation to provide the transcript – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PARENTING – Where the final orders provide the children live with the mother and the mother to have sole responsibility, spend supervised time with the father prior to commencement of unsupervised time and family reunification therapy – Application in an Appeal to adduce further evidence dismissed – Where the appellant contends the primary judge failed to accord him procedural fairness and the reasons were infected with various legal, factual and discretionary errors – Where the appellant’s grounds of appeal are misconstrued – Where the appellant’s Summary of Argument is dense, prolix and non-compliant with the relevant Rules – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – Costs – Where the husband had been ordered to pay the wife’s costs of the financial proceedings on an indemnity basis in the sum of $171,900 – Where the husband appealed the substantive judgment but the appeal was subsequently deemed abandoned – Where the basis for the costs order was a range of matters, but primarily the husband’s conduct – Where no reasonable apprehension of bias – Where no failure to take into account a material consideration – Where no material error of fact – Where the husband’s grounds of appeal were unsuccessful, save only for a minor miscalculation by the primary judge as to the quantum of costs ordered – Where that error, when it became apparent to the wife and her lawyers, was conceded – Where the husband could have sought to rectify the error pursuant to the slip rule – Where the husband had already paid the costs ordered – Where, in the circumstances, notwithstanding his very modest success on appeal, the husband is nevertheless ordered to pay the wife’s costs of and incidental to the appeal – Where the overpayment by the husband by reason of the miscalculation is offset against the costs of the appeal payable by him.

FAMILY LAW – APPEAL – COSTS – Application for the respondent to pay the costs of the appeal and cross-appeal – Where the applicant’s appeal was allowed – Where the respondent’s cross-appeal was dismissed – Where the Full Court set aside the property division orders and re-exercised the discretion – Where the respondent has to repay the applicant a portion of her original cash settlement sum – Where the respondent has significant real property – Where a number of the applicant’s grounds of appeal were unsuccessful – Where slip rule orders rendered many of the grounds of cross-appeal nugatory – Where a costs order is not justified – Application dismissed.

FAMILY LAW – APPEAL – Ex parte injunctions – Procedural steps required when respondent is not heard before making an injunctive order – Importance of procedural steps to minimise procedural unfairness inherent in ex parte applications – Importance of directions for service and the allocation of a further listing date to allow the respondent an opportunity to be heard., Powers pursuant to Part VIIIAA with respect to third parties – Requirement to identify relevant “property of a party to a marriage” to engage s 90AF – Section 90AF is not a free ranging power – Party seeking orders may be required to show “serious question to be tried” in the form of a cause of action or statutory claim that relevant “property” is “property of a party to the marriage” – Family Law Act 1975 (Cth), s 90AF.

FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the appellant seeks review of the appeal registrar’s decision to summarily dismiss the appeal – Where the Further Amended Notice of Appeal is incurably defective – Where the Court is satisfied the grounds of appeal have no reasonable prospects of success – Application dismissed – Costs ordered in favour of the respondent in a fixed sum.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the primary judge granted the respondent de facto wife leave to commence proceedings for financial relief out of time – Where the applicant de facto husband seeks leave to appeal – Where the applicant contends the primary judge erred in finding trust funds existed – Where the parties were only in dispute about the correct amount of the funds – Whether there was a denial of procedural fairness – Where the hearing was contested and the applicant was permitted to cross-examine the respondent – Where the primary judge did not err in finding the respondent would suffer financial hardship if denied leave to commence proceedings for financial relief out of time – Application for leave to appeal refused – Appeal dismissed – Applicant to pay the respondent’s costs of the appeal.

FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders providing for the child to live with the father and spend time with the mother – Where the mother sought to relocate with the child – Where each parent applied for the child’s residence but proposed alternatives if not granted – Whether the mother was denied procedural fairness – Where the mother alleged the primary judge should have reconvened the Court to seek further submissions on her alternative position – Where the mother had ample opportunity to present her case – Where the primary judge was not required to disclose provisional views before delivering judgment – Where the primary judge made no factual mistake in finding the father provided the child with the most stability – Appeal dismissed – Costs – Where the parties agreed costs should be in a fixed sum if the appeal was dismissed.

FAMILY LAW – APPEAL – PARENTING – Where the primary judge varied final parenting orders governing the time the child spends with the father, commencing immediately after school – Where the mother contends the primary judge had no power to vary the final orders – Where the primary judge correctly relied upon s 70NBC of the Family Law Act 1975 (Cth) as the source of power to vary the existing final orders – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – ENFORCEMENT – Where the husband alleged the wife breached final property orders and filed an enforcement application – Where the husband appeals the dismissal of that application – Where the final orders appointed the wife as trustee for sale of two real properties – Where the orders enabled the husband to compete with other prospective purchasers to acquire either or both properties on the open market – Where the primary judge found the wife breached the final orders – Where the primary judge incorrectly found the husband tried to acquire title to the properties in an illegitimate way – Where the decision to refuse the enforcement of the final orders was plainly erroneous – Appeal allowed – Re-exercise of discretion – Supplementary procedural orders made to facilitate the implementation of the final orders – Costs awarded to the husband in a fixed sum.

FAMILY LAW – APPEAL – PARENTING AND PROPERTY – Where the appellant appeals from final parenting and property orders – Where the children were ordered to live with the appellant and that she have sole-decision making responsibility for them – Where the appellant complains of inadequate reasons in respect of limitations placed on her decision-making responsibilities - No error established – Where the appellant contends an adversarial report relied on by the primary judge was inadmissible – Where there was no application to exclude the adversarial report and the appellant relied on it in closing submissions – Whether the primary judge erred in her Honour’s application of s 79(3)(a)(i) and s 79(5)(v) of the Family Law Act 1975 (Cth) – Treatment of monies held in trust by the respondent’s solicitor – Treatment of the respondent’s employee entitlements where he is the sole shareholder and director of the company – Treatment of missing chattels – Treatment of non-disclosure – Where the primary judge did not give adequate weight to the appellant’s initial contributions – Property appeal allowed in part – Re-exercise of discretion – Property adjustment by way of a superannuation splitting order – Parenting appeal dismissed – Costs certificates granted.

FAMILY LAW – APPEAL – COSTS – Where the respondent’s appeal was wholly unsuccessful – Where the applicant has limited financial means – Where the respondent has apparent wealth but now claims to be impecunious – Where the respondent paid security for costs of the appeal which would cover the majority of the claimed costs – Costs order justified – Whether counsel’s fees should be as charged or at scale – Respondent to pay the applicant’s costs in a fixed sum.

FAMILY LAW – APPEAL – Appeal by the husband from a costs order against him – Cross-appeal by the wife from the costs order and enforcement orders against her for the sale of a property – Complaints about broad-brush approach to fixing costs – Where the primary judge assumed a taxation would result in a reduced costs figure – Where the primary judge’s approach was permissible – Adequacy of reasons – Where the wife’s application for indemnity costs was doomed to fail – Where the wife raised an issue with potential forgery by the husband in relation to the mortgage over a property the subject of the enforcement orders – Further evidence allowed – Where the potential forgery may render the enforcement order unreasonable – Where the evidence may have resulted in an adjournment to obtain more detailed material from the police – Cross-appeal allowed in part – Enforcement application remitted for rehearing.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the wife sought leave to adduce further evidence in the appeal to support an application that the appeal be summarily dismissed – Where the further evidence was contended to establish the husband to be in disobedience of an order in the proceeding – Where the wife relied on the principles identified in Watson & Watson (2013) FLC 93-530 seeking an exercise of discretion not to permit the party in disobedience of an order to be heard (“the benching rule”) – Application in an Appeal allowed – Wife’s application for summary determination of the appeal dismissed.

APPEAL – Error in relying on extraneous material – Where the error is not material so as to amount to a miscarriage of justice – Contended factual and discretionary errors not established – Contended error as to payment of capital gains tax from the default sale of real property not established – Where the possible incident of capital gains tax was considered by way of considerations, s 79(5) factors pursuant to the Family Law Act 1975 (Cth) and the form of the order made – Appeal dismissed – Order as to costs.

FAMILY LAW – APPEAL – PARENTING AND PROPERTY – Where the appellant appeals final parenting orders that provide for the children to live with the respondent and have no time with the appellant – Where the primary judge found the appellant was coercive and controlling, had a “monumental absence of insight” and posed an “unacceptable risk” of harm – Where the grounds of appeal allege bias, errors of fact, challenges to weight, errors in law, inadequate reasons and unreasonable outcome – Where the appellant appeals property orders made by a different judge in a separate judgment – Where no appealable error is established in either appeal – Property and parenting appeals dismissed.