Judgments

FAMILY LAW – APPEAL – PARENTING – Where the parties and Independent Children’s Lawyer settled majority of issues in dispute by consent at final hearing – Where the primary judge determined that the mother should be granted sole parental responsibility of the children – Where the father appeals consent orders made at final hearing on the basis that he did not appreciate their import or effect despite being represented at the time – Where the father disputes that he was a perpetrator of family violence during the parties’ relationship – Where the father has a history of poor mental health – Where the grounds of appeal are incompetent and fail to establish appellable error – Where the father’s Summary of Argument is inadequate – Short form reasons delivered pursuant to s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Appeal dismissed.

FAMILY LAW – APPEAL – FINAL PARENTING ORDERS – Procedural fairness – Whether the primary judge’s involvement in cross-examination amounted to procedural unfairness – Where some of the primary judge’s interventions can be characterised as having “moved into counsel’s shoes” – Where the appellant was permitted to file and rely on all evidence he wished to rely upon and no act of the primary judge prevented the appellant from same – Where the primary judge did not preclude the appellant’s counsel from making submissions on the appellant’s behalf – Where the primary judge’s interventions did not deny the appellant a fair trial nor were they productive of a miscarriage of justice – Unacceptable risk – Whether the primary judge erred in finding there was an unacceptable risk in the children spending unsupervised time with the appellant – Where the underlying facts upon which the primary judge relied were not flawed – Where the primary judge had before him uncontroversial evidence as to threatening and abusive conduct of the appellant and unsatisfactory evidence as to possible recurrence of that conduct – Long-term supervision – Whether the primary judge making an order for the children’s time with the father to be supervised indefinitely constituted error – Where it was open to the primary judge to make an order for indefinite supervision – Whether the primary judge failed to consider that the respondent may remove the children to Country E where she is a citizen – Where the evidence did not establish there was a risk the respondent would unilaterally change the children’s place of residence overseas – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – Property – Practice and Procedure – Where the husband appeals from final property settlement orders – Where the primary judge ordered the net sale proceeds of the former matrimonial home to be divided in shares of 60 per cent to the wife and 40 per cent to the husband – Where the appeal comprises 14 un-numbered grounds – Where the husband was invited to show cause why the appeal should not be summarily dismissed – Where the husband alleges judicial bias – Where the grounds do not distinguish between actual and apprehended bias and are rejected – Where the husband’s complaints of denial of natural justice have nothing to do with the manner in which the trial was conducted – Where several grounds complain of incorrect findings – Where the primary judge’s findings are not incorrect simply because they conflict with the husband’s versions of events – Where the primary judge findings were adequately explained – Where the appeal does not enjoy any reasonable prospects of success – Appeal summarily dismissed.

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders – Where the primary judge ordered the father to engage in cognitive behavioural therapy with a qualified clinical psychologist as the pre-condition for the child to progress to spending expanded unsupervised time with the father – Where no finding was made about the nature of the father’s psychological condition which the therapy is designed to defeat – Where the orders do not specify how long the therapy must be administered – Where the orders do not specify how the presumed success of the course of therapy will be measured – Where the primary judge ordered the father to provide the mother with a progress report from his psychologist – Where the report must confirm the father’s achievement of several milestones – Where the operation of the orders is tantamount to the divestiture of judicial power and the unlawful conferral of such power upon a third party to determine the proper future parenting arrangements for the child – Where the orders are aspirational and unenforceable, not prescriptive and enforceable – Appeal allowed – Matter remitted for rehearing, but confined to the orders which regulate the time the child will spend with the father – Costs certificates granted.

FAMILY LAW – APPEAL – PARENTING – Where the father appeals final parenting orders providing for no contact between himself and the children – Where all but two grounds were abandoned – Where the father contends the orders imposing restraints and injunctions on him with respect to the youngest child are unreasonable or plainly unjust – Where the primary judge carefully and separately considered each of the s 60CC Family Law Act 1975 (Cth) factors – Where there is no merit in either ground of appeal – Appeal dismissed – Father to the pay the mother’s costs in a fixed sum.

FAMILY LAW – APPEAL – Parenting – Where appellant sought to appeal final property and parenting orders – Where the appeal against property orders was abandoned – Where the appellant’s grounds of appeal confined to those addressed in her Summary of Argument – Where this is the third appeal from final parenting and property orders – Where child has been the subject of litigation for close to the duration of their life – Where primary judge made orders for the child to live with the respondent and for the respondent to have sole parental responsibility – Where the appellant granted leave to communicate with the child by way or letters, cards or gifts and electronically at the child’s instigation – Where child lives with the respondent and stepmother and has spent no time with the appellant for six years – Where the respondent perpetrated egregious family violence against the appellant between 2012 and 2015 – Where as a result of the family violence the appellant was unable to spend time with the child if they remained living with the respondent – Whether primary judge erred in failing to consider potentially significant evidence – Whether primary judge failed to have consideration to family violence – Weight placed on the views of the child – Whether primary judge failed to consider the appellant’s proposed amended spend-time with order – Whether the primary judge failed to appropriately consider s 60CC(2)(a) of the Family Law Act 1975 (Cth) – No error established – Appeal dismissed – Appellant ordered to pay the Independent Children’s Lawyer in the fixed amount of $5,000.

FAMILY LAW – APPEAL – Whether the primary judge was in error by not making orders concerning alternate carers for the child in the event neither parent was available to care for the child – Where the order proposed did not create enforceable rights – Where the proposed order did not specify which arrangement was to take priority nor was there evidence to support the necessity of that order – Where the order did not create certainty – Where the primary judge was not in error to reject the proposed order – Incompetent ground – Where a ground of appeal is directed to an order that is not the subject of the Notice of Appeal –– Parental Responsibility – Whether the primary judge erred in making an order for equal shared parental responsibility – Where the primary judge did not misunderstand nor misapply the law – Where the primary judge was aware of the parties’ difficulties in communication – Where the orders made for parental responsibility were designed to assist the parties in the event of an impasse – Where the appellant herself had sought orders for equal shared parental responsibility in respect of some specified matters – Appeal dismissed – Directions as to costs.

FAMILY LAW – APPEAL – PARENTING – Where the appellant contended that the primary erred in failing to accord procedural fairness through relying on extraneous material not in evidence – Where the extraneous material was first referred to in the judgment and the appellant had no opportunity to respond – Where the extraneous material was used to draw adverse inferences – Applicability of s 144 of the Evidence Act 1995 (Cth) – Where the Court cannot conclude that the primary judge would have made the same findings without reference to the extraneous material – Error of law established – Where the appellant contended that the primary judge erred in findings of fact pertaining to family violence perpetrated by the appellant against one of the children – Where the primary judge’s finding that the appellant was the perpetrator of family violence and in rejecting the single expert’s evidence was based on an erroneous finding – Where such erroneous finding of fact informed the primary judge’s conclusions as to the primary considerations – Error established – Appeal allowed – Matter remitted for rehearing – Costs certificates issued to both parties.

FAMILY LAW – APPPEAL – PARENTING AND PROPERTY – De facto relationship – Mental health issues potentially impacting upon presentation of appellant mother as a witness – Where adverse credit findings were made by the primary judge against the self-represented appellant mother based on demeanour – Where limited weight was given to expert evidence as a result of the adverse credit findings – Where the appellant mother suffered an acute stress reaction during the final hearing and was subsequently hospitalised – Where the primary judge found that the child was at risk due to the appellant mother’s dishonesty and manipulation – Delay in delivering judgment – Where the primary judgment was infected by operative delay – Denial of procedural fairness – Inadequate reasons – Related impact upon property settlement orders – Appeal allowed – Costs set aside – Parties and Independent Children’s Lawyer to file submissions in respect to whether matter should be remitted or whether the Full Court should re-hear the proceedings – Written submissions in respect to costs of the appeal.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Practice and Procedure – Where the primary judge dismissed the applicant’s application to discharge an order prohibiting the parties from cross-examining one another at the final hearing – Where the applicant could not show cause why the application for leave to appeal should not be summarily dismissed – Where appeals only lie from judgments – Where the subject order was no more than a procedural ruling – Where the order does not impugn any legal right enjoyed by the applicant – Application dismissed – No order as to costs.

FAMILY LAW – REVIEW OF DECISION – Where the applicant seeks to review an Appeal Judicial Registrar’s order dismissing his application for an extension of time to appeal – Merits of the proposed appeal considered – Where the primary judge’s findings and conclusions were not glaringly improbable, or contrary to compelling or incontrovertible evidence – Where no ground of appeal has merit – Where discretion to extend time to appeal would be futile – No injustice – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) – Where the proposed appeal lacks reasonable ground and is vexatious – Application dismissed.

FAMILY LAW – APPEAL – Application for leave to appeal – Appeal against orders dismissing an application for leave to commence proceedings out of time – Where the appellant had given evidence on behalf of his brother in his brother’s litigation against the respondent in the New South Wales Supreme Court – Where the appellant’s brother’s claim was partially successful such that the respondent was ordered to pay monies to the appellant’s brother – Where the primary judge found that the appellant had improperly acted to diminish the pool of assets available for distribution between the parties – Where the finding was not open to the primary judge – Leave to appeal granted – Appeal allowed – Re-exercise of discretion – Where the evidence does not allow the Court to be satisfied that the appellant would face hardship from refusal to grant leave to commence property proceedings out of time – Costs certificates issued.

FAMILY LAW – LEAVE TO APPEAL – Where the order to which the appeal relates is interlocutory – Where the primary judge found that legal professional privilege had been waived in relation to documents produced pursuant to subpoena – Where the Full Court is not persuaded that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered – Leave to appeal refused – Costs ordered in favour of the respondent in the fixed sum of $19,800.

FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge’s determination of a 75/25 contribution based division in favour of the husband was manifestly adequate – Whether the primary judge placed sufficient weight on the short duration of the marriage – Whether the primary judge placed sufficient weight on the direct financial contributions of the husband and the husband’s parents – Whether the primary judge placed sufficient weight on the husband’s parents’ non-financial contributions – Where Applications in an Appeal to adduce further evidence withdrawn – No error established – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the father seeks leave to appeal an order dismissing his application to release single expert reports for use in criminal proceedings – Implied Undertaking – Whether the primary judge erred by failing to apply correct legal principles – Discussion of legal principles applicable to release of single expert reports – Where the enquiry as to whether the single expert reports are within the scope of the implied undertaking is whether the circumstances under which the father obtained them mean that he cannot disclose them without leave of the court – Where no question of “privilege” nor s 121 of the Family Law Act 1975 (Cth) is applicable – Where appeal has merit – Substantial injustice – Leave to appeal granted – Appeal allowed – Discretion re-exercised – Leave given to release single expert reports – Costs certificates issued.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks to vacate the hearing date of the appeal and extend time to comply with the procedural orders – Where this is the second time the applicant has applied for an adjournment of the appeal hearing – Where an adjournment of the appeal hearing has previously been granted – Where the applicant adduces evidence in support of his application comprising a medical certificate and two medical reports – Where the medical certificate does not say how the applicant’s medical condition hampers his participation in the appeal proceeding – Where the probative value of the medical certificate is vitiated – Where the medical reports lack detail about the applicant’s diagnosis and symptoms – Where the medical reports carry no evidentiary weight – Where the applicant’s evidence is not persuasive enough to warrant another adjournment – Extension granted to file the relevant documents in the appeal – Application otherwise dismissed.

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders providing for the father to spend supervised time with the child – Where leave to appeal is not required from interlocutory parenting orders – Apprehension of bias – Where a consideration of the transcript, the reasons and the submissions made do not show apprehension of bias on part of the primary judge – Where the mother contended that the primary judge should have recused himself from further hearing the matter because of credit findings made – Where no application for recusal was made to the primary judge – Where the mother contended that the primary judge failed to follow the suggested legislative pathway of Goode & Goode (2006) FLC 93-286 (“Goode”) in making the interim parenting orders – Where the mother’s submissions misstated the law – Where the primary judge did follow the pathway suggested by the Full Court in Goode – Where the mother challenged credit findings made by the primary judge – Where the submissions amount to a complaint at their highest – Inadequacy of reasons – Where the reasons are clearly adequate – No error established – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – Application to appeal from orders dismissing an application for summary dismissal – Where the husband’s trustee in bankruptcy made claims pursuant to s 106B of the Family Law Act 1975 (Cth) to recover the husband’s business interests, held as units in a Unit Trust – Units originally held by the husband who allegedly declared that he held the Units on trust for his son – Where the declaration of trust was determined to be fraudulent – Where the trustee in bankruptcy and the wife seek to restore the Units to the husband (now the husband’s estate) for the Units to form part of the property of the parties pursuant to s 79 – Where the trustee in bankruptcy seeks to set aside the transfer of the Units to the son as at the time of transfer to ensure the Units were held by the husband at the time of bankruptcy, so as to vest in the bankruptcy trustee – Leave to appeal required – Leave to appeal refused – Appeal dismissed – Applicants to pay costs of first respondent wife and intervener in fixed sum.

FAMILY LAW – APPEAL – Application to appeal decision of primary judge with respect to discovery – Reasons given but orders not yet made – Necessity of orders as the basis for an appeal – Leave to appeal refused – Appeal dismissed – Applicants to pay costs of first respondent wife and intervener in fixed sum.

FAMILY LAW – APPEAL – Application to appeal decision of primary judge to refuse a stay application with respect to discovery – Leave to appeal refused – Appeal dismissed – Applicants to pay costs of first respondent wife and intervener in fixed sum.

FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders providing for the child to live with the mother and spend no time with the father – Where the father alleges he was denied procedural fairness – Where the mother did not participate in the appeal – Whether the primary judge unnecessarily interrupted cross-examination – Whether the primary judge unfairly curtailed cross-examination – Whether the primary judge made findings of fact as to family violence which were unfounded and made unfairly – Whether there was a miscarriage of justice – Appeal allowed – Costs certificates issued for the father and Independent Children's Lawyer.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband appeals from final property orders – Where the husband seeks to adduce 244 pages of further evidence – Where the grounds of appeal are prolix by way of sub grounds asserting bias, a failure to afford procedural fairness, errors of fact and errors of weight – Where errors of fact are established but are not material to the final determination – Where the husband is, in reality, seeking to re-run his case – Where no ground of appeal succeeds – Applications for leave to adduce further evidence dismissed – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – Findings of fact – Where updated valuation was delayed – Application in an Appeal to admit further evidence granted by consent – Where further evidence makes the finding of the primary judge incorrect – Parties seek consent orders – Error of fact established – Appeal allowed – Consent orders made.

FAMILY LAW – APPEAL – COSTS – Where the parties seek costs certificates – No error of law established – Parties’ conduct inconsistent with obligations under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Application for costs dismissed.

FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Weight challenges – Where the mother cannot now construct a different case on appeal than at first instance – Where the order for supervised time between the child and the mother is not a delegation of judicial power – Where the reasons are clear and able to be ascertained – Where no ground of appeal enjoyed merit – Appeal dismissed – Costs ordered in favour of Independent Children’s Lawyer.

FAMILY LAW – APPEAL – PARENTING – Schooling – Where the father appealed against orders regulating the child’s school enrolment – Where the father argued the primary judge erred at law by failing to assess the practical difficulties he would experience by the child attending the school advanced by the mother – Where the ground mistakenly assumes the evidence was available to find the asserted material fact – Where the ground is prosecuted on a false premise and fails – Where several grounds allege multiple mistakes of fact by the primary judge and are rejected – Where the father contends the primary judge did not place enough weight on a piece of evidence which he perceived was favourable to his case – Where the complaint fails as no ground of appeal contends the overall result was manifestly unreasonable or unjust – Where the father complains of insufficient reasons – Where reasons are not required to mention every fact or argument relied on by the father – Where the reasons plainly explain the outcome and are therefore adequate – Appeal dismissed – Where the appeal was wholly unsuccessful – Costs application of the mother granted.

FAMILY LAW – APPEAL – Parenting – Where the appellant contended that the primary judge erred by denying the appellant procedural fairness – Where the primary judge made an order compelling the appellant to obtain a referral for counselling – Where neither party sought such an order – Where the primary judge said she would not make such an order – Where the primary judge fell into error by not giving notice to the parties and denying them the opportunity to be heard about the making of the order – Inadequacy of reasons – Where the reasons are clearly adequate – Appeal allowed in part – Costs certificates issued to both parties.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file the digital transcript within time as required – Where the applicant seeks reinstatement of the appeal and relief in relation to the transcript – Delay in bringing the application – Proposed appeal has no reasonable prospects of success – No adequate explanation for the delay given – Not in the interests of justice to reinstate the appeal – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the applicant seeks that an Order requiring her to obtain a transcript of the original proceedings be vacated or, in the alternative, she be relieved from the obligation to provide a transcript – Appeal from final parenting orders – Where the transcript of the first three days of a five day hearing are already in the Court’s and parties’ possession – Where it is necessary for the appellate court to have the transcript of the oral evidence of the Court Child Expert – Order relieving the applicant from obtaining the outstanding transcript save for the transcript of the Court Child Expert’s oral evidence – Where exceptional circumstances do not exist to warrant the court providing funds for the outstanding transcript.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appellant failed to file Summary of Argument in the appeal – Where the appellant provided a cursory and outdated medical certificate – Notice given pursuant to r 13.45(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Appeal dismissed pursuant to r 13.45 – Costs ordered against the appellant.

FAMILY LAW – APPEAL – PARENTING – Summary dismissal – Where the appeal was listed to afford the appellant mother the opportunity to be heard about why the appeal should not be summarily dismissed – Where the mother appeals from an order dismissing her application to discharge the Independent Children’s Lawyer (“the ICL”) – Where pursuant to s 68L of the Family Law Act 1975 (Cth) the appointment of an ICL in parenting proceedings lies in the discretion of the Court, as does the discharge of an ICL – Where the mother’s claim of the denial of procedural fairness is misconceived – Where the mother was afforded the chance to be heard but failed to attend the hearing before the primary judge – Where the mother appeals orders listing the matter for further directions and reserving costs of the father and the ICL – Where appeals only lie from judgments – Where none of the orders made by the primary judge is a judgment capable of supporting an appeal – Appeal summarily dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant filed two applications in an appeal – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where the provisions of s 102QE of the Act have not been complied with – Where the proposed appeals lack ostensible merit – Application dismissed.

FAMILY LAW – APPEAL – PARENTING – PROPERTY – Where the mother appeals from final parenting and property settlement orders – Where these reasons are given in short form given the appeal raises no question of general principle – Procedural fairness – Appeal from discretionary judgment – Where no error of the kind identified by House v The King (1936) 55 CLR 499 is identified by the grounds – Where no ground of appeal succeeds – Appeal dismissed – Where each party should bear their own costs.

FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders made following an undefended hearing – Where reasons for judgment are given in short form – Where many of the grounds of appeal were specious and misconceived – Where no ground of appeal enjoys merit and fails – Appeal dismissed – Each party to bear their own costs.

FAMILY LAW – APPEAL – PARENTING – PROPERTY – Appeal from final parenting and financial orders – Relocation – Where the primary judge made orders permitting the mother to relocate to Country B with the children – Where the parenting determination failed to follow the statutory requirements – Where the primary judge failed to identify the basis of the reasoning for the decision as to adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) – No order providing for spousal maintenance despite express intention – Appeal allowed – Matter remitted for rehearing – Costs certificates granted.

FAMILY LAW – APPEAL – Arbitration – Where the appellant contended before the primary judge that the arbitrator failed to accord procedural fairness by not seeking further submissions and/or evidence as to the effect of capital gains tax that would fall on the appellant in paying the sum ordered to the respondent – Where the appellant argued that the ordinary principles of procedural fairness that apply in judicial disputes apply to arbitrations as well – Where the primary judge rejected the propositions advanced by the appellant and dismissed the review – Where the appellant’s failure to adduce evidence on the capital gains tax did not relieve the decision maker from making orders that were just and equitable – Where the orders made by the arbitrator did not achieve justice and equity in that the net assets retained by the appellant were not as contemplated when considering the capital gains tax that he would have to bear – Where ordinary notions of procedural fairness apply to arbitrations – Error of law established – Appeal allowed – Costs certificates issued. 

FAMILY LAW – CROSS APPEAL – Arbitration – Where the primary judge held that an arbitrator appointed under s 13E or s 10L(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) does not have power to make an order pursuant to s 106B – Where the arbitrator was appointed pursuant to s 10L(2)(b) – Where amendments to the Act in 2000 moved the then s 85 and its renumbering as 106B from Pt VIII to Pt XIII – Where the legislative intention behind moving the section to Pt XIII is absent – Where s 10L(2)(b) when read with s 80 enables the making of an order under s 106B – Error of law established – Cross appeal allowed – Costs certificates issued.

FAMILY LAW – APPEAL – Practice and procedure – Where the wife filed two applications for leave to appeal – Where the proposed appeals were listed to afford the wife the opportunity to be heard about why they should not be summarily dismissed for lack of any reasonable prospects of success – Where the first proposed appeal lies from orders dismissing the wife’s application for the discharge of the single expert – Where appeals only lie from judgments – Where the dismissal order did not determine any legal right enjoyed by the wife – Where the second proposed appeal lies from orders directing the parties to pay any outstanding fees due to the single expert – Where the proposed appeal is futile – Where discharge of the order would not relieve the wife of the burden of her share of the single expert’s fees – Applications dismissed – Where the parties are self-represented – No order as to costs.

FAMILY LAW – APPEAL – COSTS – Where the appellant’s appeals were allowed and the property proceedings remitted for rehearing – Where costs submissions were sought from the parties – Where the appellant seeks a costs order from the respondent, or in the alternative costs certificates – Where the matters enumerated in s 117(2A) do not persuade the Court that the circumstances here justify an order for costs – Costs certificated issued to both parties.

FAMILY LAW – APPEAL – PROPERTY – COSTS – Where the wife appeals from final property settlement orders and a costs order – Where the trial miscarried in an irremediable way during the course of submissions to the primary judge – Where the primary judge was made aware of a Calderbank offer during submissions and before delivery of judgment of the property settlement orders – Where this matter was not raised on appeal – Where the appeal is resolved on the grounds of appeal in any event – Inadequate reasons challenge – Whether the outcome was unreasonable and plainly unjust – Where the primary judge failed to determine a number of disputes as to values of items in the property pool – Where the necessary and fundamental foundation for embarking upon any division of the property pool was lacking – Where the primary judge did not articulate any conclusion as to the actual outcome of each party’s overall position as a result of the property orders – Where the primary judge transformed notional add-backs into actual payments to the husband from the wife – Where no reasons exist for making such an order – Where the reasoning of the primary judge is manifestly deficient – Where the utterance of a ritual incantation that the result is “just and equitable” is an inadequate exposure of reasoning in this case – Procedural fairness – Where the wife was denied the opportunity to properly present her case as to costs – Appeals allowed – Orders set aside – Matter remitted for rehearing – Where these reasons are suppressed for a period to prevent prejudice to the proper administration of justice – Timetable for costs submissions ordered.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant wife seeks leave to appeal from procedural orders made by the primary judge in anticipation of the final hearing between the spouses – Where no appeal lies from a decision about the grant or refusal of an adjournment – Where the wife’s complaint that the primary judge denied her procedural fairness by not allowing her leave to rely upon the affidavits of three witnesses at trial is rejected – Where the procedural direction requiring the wife to file written submissions within a given period is not an appealable judgment – Where the appeal has no reasonable prospects of success – Where the trial has been heard –Appeal summarily dismissed – No order as to costs.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks that orders made in his absence dismissing his application for leave to appeal be set aside – Where the applicant did not properly explain his absence from the hearing – Where the applicant did not properly explain how the orders pronounced in his absence were wrongly made – Application dismissed.

FAMILY LAW – APPEAL – Where the primary judge made orders fixing the remuneration of a liquidator’s costs in a fixed sum and ordered that the appellant pay that sum – Whether the primary judge erred in assessing the quantum of the liquidator’s remuneration in a fixed sum – Whether the primary judge erred in accepting the resolution of creditors – Procedural fairness – Adequacy of reasons – ,Application of guidelines in Re F: Litigants in Person Guidelines (2001) FLC 93-072 – No error established – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – Where the mother appeals from final parenting orders providing for the children to live with the father and spend time with the mother – Where the mother’s grounds of appeal are loquacious and span pages of narrative – Where self-represented litigants are bound by the same principles and obligations as any other litigant – Where the mother’s complaints of apprehended bias and denial of procedural fairness are rejected – Where no complaint of apprehended bias can be competently asserted from merely dissatisfaction with the ultimate result – Where the mother’s assertion the primary judge ignored some evidence she adduced cannot be anything more than supposition – Where the mother’s assertion the primary judge erred in law in failing to consider certain provisions of the Family Law Act 1975 (Cth) is rejected – Where the primary judge correctly identified the legal principles governing the dispute – Where the mother could not explain why identified findings were wrong – Appeal dismissed – Application in an Appeal – Where the mother’s application to join the paternal grandparents to the appeal was unnecessary given they were named as respondents in the Notice of Appeal – Application dismissed – Application in an Appeal – Adduce further evidence – Where the mother could have adduced the evidence during the trial – Where the mother does not explain how the evidence of 11 lay witnesses would help demonstrate any of the alleged appealable errors – Application dismissed – Appellant mother ordered to pay respondents costs in a fixed sum – Where the mother would suffer financial hardship if ordered to pay any of the ICL’s costs in addition to the costs due to the respondents – ICL’s Application for costs dismissed.

FAMILY LAW – APPEAL – Application in an Appeal – Where the applicant seeks that orders made in his absence dismissing his appeal be set aside – Where the applicant could not properly explain his absence from the hearing or how the orders pronounced that day were wrongly made – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where mother seeks leave to appeal from orders dismissing two Applications – Contravention against the father – Where an injunction was previously made pursuant to s 102Q of the Family Law Act (Cth) prohibiting the mother from instituting proceedings against the father or Independent Children’s Lawyer without first obtaining leave pursuant to s 102QE – Primary judge was not satisfied mother’s Application – Contravention was not vexatious and dismissed mother’s application – Where mother must satisfy the Court that her proposed appeal is not vexatious – Where grounds of proposed appeal are without merit – Court satisfied mother’s proposed appeal lacks any reasonable ground – Court not satisfied appeal is not vexatious – Leave refused – Application in an Appeal dismissed.

FAMILY LAW – APPEAL – Where the appellant alleges bias on behalf of primary judge – Challenges to the findings of fact – Whether trial miscarried as a result of conduct of appellant’s - Whether primary judge’s discretion miscarried– Whether primary judge erred in contributions assessment - No error demonstrated - No grounds established - Appeal dismissed.

FAMILY LAW – – LEAVE TO APPEAL – Property - Interim costs order for litigation funding – Partial property settlement order - Where application for adjournment refused - Where the applicant alleges procedural unfairness as a result of comments in argument – Test for partial property settlement – No substantial injustice – Leave to appeal is refused

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Spousal maintenance – Where applicant sought to vary and clarify the spousal maintenance orders to assist enforcement – Where the respondent also sought to vary quantum of spousal maintenance payments – Where the primary judge dismissed the applicant’s application for enforcement and varied the orders for spousal maintenance by reducing the amounts to be paid by the respondent – Where the primary judge did not permit the applicant to rely on further affidavit material dealing with financial circumstances – Lack of procedural fairness – Where primary judge considered there had been a change of circumstances enlivening s 83(2) of the Family Law Act 1975 (Cth) – Where any change of circumstances not sufficient to warrant re-examination of the spousal maintenance orders – Error established – Leave to appeal granted – Appeal allowed – No order as to costs.

FAMILY LAW – APPEAL – Application in an Appeal – Where the appellant sought to adduce further evidence – Where the further evidence was available to the appellant at the time of the trial – Where the Court is not satisfied that the evidence has any bearing on the appeal – Application dismissed. 

APPEAL – Where the grounds of appeal as presented in the Notice of Appeal and/or the appellant’s Summary of Argument are difficult to ascertain – Where the appeal is from the exercise of discretion – Where the grounds of appeal appear to relate to error on part of the primary judge in findings made in relation to money that was contended to be missing, family violence, the appellant’s gambling and the appellant’s credit – Where no error is established – Where the appellant also contended that his solicitor at trial failed to present his case – Where the Court does not find that there was a miscarriage of justice occasioned by the conduct of the solicitor – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Where the appellant husband asserted the primary judge’s decision was impugned by bias – Where the husband could not demonstrate the conduct of the primary judge was inconsistent with the fair performance of judicial duty – Where the primary judge preferred the uncorroborated evidence of the wife to that given by the husband – Where the husband complained the primary judge denied him procedural fairness – Where the assessment of the spouses’ credit was open to the primary judge – Where the husband complained the primary judge did not properly consider the evidence – Where there is no rational foundation from which to impute the husband’s case and evidence was not properly evaluated by the primary judge – Where the husband asserted the primary judge made mistaken findings – Where the husband failed to point to the specific error – Appeal dismissed – Where the appeal lacked merit – Costs ordered in a fixed sum on a party/party basis.

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders providing for no contact between herself and the children – Whether the primary judge failed to afford the mother procedural fairness – Whether the primary judge demonstrated bias – Adequacy of reasons – Where most of the purported grounds are not proper grounds of appeal and lack particularity – Where no ground of appeal succeeds – Appeal dismissed – Costs ordered in favour of the Independent Children’s Lawyer.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal registrar granted the wife leave to file a Notice of Appeal out of time – Where the matter was listed to hear the Application in an Appeal filed by the husband to review the appeal registrar’s decision – Where shortly before hearing the wife failed to file the draft index to the appeal book on time – Where the appeal was deemed abandoned – Where the wife made an oral application to re-instate the appeal – Where there is no ostensible merit in the appeal – Oral application to re-instate the appeal dismissed – Where it is unnecessary to consider the husband’s review application – Where the husband sought party/party costs of the interlocutory dispute – Application for costs dismissed.