Judgments

Division 1 - Appellate division

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FAMILY LAW – APPEAL – Appeal from orders dismissing claims for property settlement and spousal maintenance – Where no ground of appeal challenges the primary judge’s finding as to property ownership – Where the appellant agreed with values of the properties at trial that he then challenged on appeal – Where the appellant failed to challenge various liabilities that he then sought to challenge on appeal – No error identified – Appeal dismissed – Appellant to pay the respondent’s costs.

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FAMILY LAW – APPEAL – Whether the primary judge failed to afford the appellant procedural fairness – Where the primary judge dismissed the appellant’s application in a proceeding without notice and without affording an opportunity to make submissions – Appeal allowed – Where the appellant’s interim application is to be listed for hearing with priority.

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FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Whether the primary judge fell into error by declaring the children should spend no time with the appellant – Where the appellant alleges bias – Where the primary judge previously adjudicated in the proceedings as a registrar before being commissioned as a judge – Where the appellant did not apply to disqualify the primary judge in which event his complaint of bias was waived – Where the primary judge’s view about the appellant’s unreliability as a witness did not represent pre-judgment – Where the appellant’s complaint the primary judge disregarded portions of the expert opinion evidence is rejected – Where the primary judge was obliged to make factual findings about the appellant’s past behaviour according to the civil standard of proof – Where a factual mistake of the primary judge had no bearing upon the ultimate judgment and does not sustain the appeal – Where several appealed orders were made with the parties’ consent – Where one appealed order is procedural in nature and does not embody a judgment from which an appeal validly lies – Appeal dismissed – Where the respondent sought no order for costs against the appellant.

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FAMILY LAW – APPEAL – Where the father seeks leave to appeal, and if successful, to appeal from an order dismissing his recusal application made during the course of adjourned part-heard child related proceedings – Where the father asserts that the primary judge’s questions of him demonstrated a “preconceived view” and amounted to a “cross-examination” – Where the primary judge indicated at the hearing prior to the adjournment that they would accede to a recusal application if made – Leave to appeal refused and appeal dismissed – Father ordered to pay the mother’s costs in a fixed sum.

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FAMILY LAW – LEAVE TO APPEAL – Where leave to appeal is required because orders pursuant to s 44(6) of the Family Law Act 1975 (Cth) are interlocutory – Application of Medlow & Medlow (2016) FLC 93-692 – Where a substantial injustice would be suffered by the de facto husband if he were denied the opportunity to prosecute a meritorious appeal – Leave to appeal granted. 

APPEAL – Where the primary judge erred in failing to provide adequate reasons for the basis of the finding that the de facto wife had a prima facie case of establishing hardship – Where the de facto wife has proved she will suffer hardship if she were not allowed to commence proceedings out of time – Where the Court has to weigh hardship against other discretionary factors – Where the de facto wife has not provided a sufficient reason as to the delay in commencing proceedings – Where neglectful legal advice or lack of knowledge of a limitation period is not an adequate reason for delay in commencing proceedings – Where the length of delay in commencing proceedings causes prejudice to the de facto husband who has administered his affairs on the basis that there will be no further property settlement – Appeal allowed – Re-exercise of discretion – Orders of the primary judge set aside – De facto wife’s application for leave to commence proceedings out of time dismissed – De facto wife’s Application for Review dismissed –Where the de facto wife was wholly unsuccessful – Costs certificate granted to the de facto husband.

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FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to reject his Application in an Appeal seeking leave to file an appeal out of time – Where the applicant provides no adequate explanation for why the appeal was not brought within time – Where the proposed appeal evinces no reasonable prospect of success – Application dismissed.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks that the appeal be heard by a Full Court and not a single judge – Where the appellant could not justify the authorisation of a Full Court appeal – Where the appellant seeks provision of the transcript of the primary judge’s oral reasons (“the reasons”) – Ordered the Court procure the transcript of the reasons on condition the appellant reimburse the Court for the cost of the transcript – Application otherwise dismissed – Where the respondent’s Response to the application is dismissed.

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FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where 33 grounds of appeal are pleaded encompassing more than 200 separate propositions of error – Where the father asserts an apprehension of bias on part of the primary judge – Where the father previously applied for the disqualification of the primary judge on the basis of apprehended bias which application was dismissed – Where the dismissal of the disqualification application was a judgment from which an appeal could be independently brought and so no complaint about the validity of that decision could be agitated in this appeal, but the father nonetheless fails to elaborate how and why the primary judge erred by dismissing the disqualification application – Where the complaints of procedural unfairness fail – Where the complaints about interlocutory decisions made in advance of and during the trial by the primary judge fail – Where the complaints that the primary judge erred in the application of legal principles fail – Where there was no error of law or fact in the way the primary judge treated the evidence – Where the father’s superficial analysis of the factual findings made by the primary judge are rejected – Appeal dismissed – Application in an Appeal – Where the father was granted leave to rely upon his late-filed Summary of Argument of 65 pages – Costs – Where the mother filed a submitting notice and did not participate in the appeal – Where the Independent Children’s Lawyer did not seek costs – No order as to costs.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks to appeal from interlocutory financial orders – Where two of the orders the husband seeks leave to appeal are merely procedural directions and not judgments from which an appeal validly lies – Where the primary judge made an order restraining the parties from bringing any further interlocutory application without the grant of leave to do so – Where the primary judge dismissed all outstanding interlocutory applications not otherwise covered by the remaining suite of orders – Where the husband’s allegations do not vindicate the complaint of apprehended bias – Where the husband complains the primary judge denied him procedural fairness – Where the husband complains the primary judge intervened excessively when he was making submissions – Where the transcript reveals the interventions made by the primary judge were reasonable and proportionate – Where the husband alleges the primary judge failed to give adequate reasons – Where the primary judge correctly cited principles and sufficiently explained the outcome – Where the husband’s ground alleging legal, factual and discretionary errors by the primary judge is not a competent ground of appeal and has no merit – Leave to appeal refused – Notice of Appeal dismissed – Where the wife sought costs of the appeal – Where the husband was wholly unsuccessful – Where the husband conducted the appeal in such a disorganised way that the wife’s costs were increased – Where financial hardship is not a shield against a costs order – Husband to pay the wife’s costs in a fixed sum.

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FAMILY LAW – APPEAL – PROPERTY – Where final property settlement orders made in 2017 (“the 2017 orders”) were remitted to the primary judge for rehearing on appeal in 2019 – Where the appellant wife appeals from final property settlement orders made in 2024 following the remitter – Where the appellant’s grounds complaining of ostensible bias against the retired judge who made the 2017 orders and not the primary judge are rejected as being absurd –Where the appellant’s dissatisfaction with the rehearing proceeding in her absence does not, of itself, sustain the allegation of apprehended bias of the primary judge – Where the appellant’s complaints of the denial of procedural fairness are rejected – Where the appellant filed a Constitutional Notice in the appeal – Where the appellant contends the appealed orders are ultra vires and invalid – Where the primary judge validly exercised jurisdiction and power under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) – Where the appeal does not genuinely involve a matter arising under the Constitution or its interpretation – Where the appellant does not elaborate on bare propositions of alleged discretionary error by the primary judge in her Amended Summary of Argument and they are rejected – Where the appellant complains the primary judge took into account the 2017 orders – Where the 2017 parenting were not set aside on appeal – Where the primary judge did not rely upon the 2017 parenting orders and did not err by considering evidence in respect of the spouses’ children, as demanded by the Act – Appeal dismissed – Where the respondent sought an order against the appellant for payment of his party/party costs of and incidental to the appeal – Where the appellant objected to any costs order being made against her – Where the appeal was misconceived and should not have been brought – Costs ordered in favour of the respondent on a party/party basis.

APPLICATION IN AN APPEAL – Where the wife seeks four separate forms of interlocutory relief – Where the application to adduce further evidence in the appeal and to issue subpoenas is refused – Where the application to discharge orders not made by the primary judge is dismissed – Where absent resort to the use of the slip rule, the Full Court has no power to re-open its final orders after their entry in 2019 – Where the application to discharge certain orders made by the Full Court in 2019 is dismissed – Application in an Appeal dismissed.

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FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Where the appeal succeeded on one ground of many pleaded grounds – Where the appellant seeks the grant of costs certificates to the parties – Where the respondent seeks party/party costs of the appeal – Where the respondent made an offer in writing to concede the appeal on the single ground upon which it succeeded – Where many grounds were pursued without merit – Where the appellant is in a stronger financial position than the respondent – Where the appellant shall pay a proportion of the respondent’s costs of and incidental to the appeal in a fixed sum – Where the appellant’s application for costs certificates fails.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant wife seeks leave to appeal from procedural orders – Application of Medlow & Medlow (2016) FLC 93-692 – Where the applicant has not demonstrated that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal – No substantial injustice established if leave is refused –Where the orders the applicant seeks to appeal are procedural and do not amount to a judgment from which an appeal validly lies – Leave to appeal refused – Application in an Appeal to adduce further evidence dismissed – Appeal dismissed – Costs ordered in a fixed sum.

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FAMILY LAW – APPEAL – Appeal from orders for enforcement and variation of final consent orders – Appeal from the dismissal of application seeking the respondent be dealt with for contempt – Appeal from the award of indemnity costs – No error established on the part of the primary judge – Appeal dismissed – Order for the appellant to pay the respondent’s costs in a fixed sum.

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FAMILY LAW – APPEAL – Appeal from final property orders – Where the appellant had difficulties reading and hearing during the trial – Where the appellant demonstrated sufficient ability to engage with the hearing – No lack of procedural fairness – Challenges to fact finding and weight – Relevant findings did not have a large impact on overall outcome – Contributions findings were reasonable – No miscarriage of justice – Appeal dismissed – Appellant to pay the respondent’s costs.

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FAMILY LAW – APPEAL – CHILDREN – Whether the primary judge failed to take relevant considerations into account in considering the appellant’s proposal to relocate with the children – Adequacy of reasons – Where the primary judge correctly identified the applicable legislative framework and principles – Where the primary judge gave due consideration to the parties’ competing proposals – No appellable error identified – Appeal dismissed.

APPEAL – PROPERTY – Whether the primary judge failed to provide adequate reasons for not including a personal debt of the appellant to her parents as a liability in the balance sheet – Failure to explain why the debt was not included as a liability does not amount to appellable error – Appeal dismissed.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – DE FACTO THRESHOLD – Whether leave to appeal is required – Where by way of Application in an Appeal the respondent sought summary dismissal of the Appeal based on the applicant’s purported breach of the appealed orders and disregard of the overarching principles of proper conduct for litigation – Where the applicant contends apprehended bias on the part of the primary judge – Where the applicant contends denial of procedural fairness and the reasons for judgment were infected by legal and discretionary error – Consideration as to the revival of biased conduct in reasons for judgment – Consideration of the test outlined in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the applicant is taken to have waived her right to raise apprehended bias on the part of the primary judge – Where the primary judge did not deny the applicant procedural fairness – No error on the part of the primary judge established – Application for leave to appeal dismissed – Application in an Appeal dismissed – Applicant ordered to pay respondent’s costs in a fixed sum.

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FAMILY LAW – APPEAL – Application in an Appeal – Where indefinite extension of time to comply with procedural orders is sought – Where that request is premised on a misapprehension of the relevance of further proceedings not yet commenced – Extension of time to a fixed date granted.

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FAMILY LAW – APPEAL – PROPERTY – Leave to appeal – Where the wife seeks leave to appeal from enforcement orders requiring her to vacate the former matrimonial home – Where the wife contends the enforcement orders were final – Where contrary to her assertion the orders are interlocutory – Whether the decision is attended by sufficient doubt to warrant appellate intervention – Where all of the wife’s grounds lack merit – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum.

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FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where parties were requested to leave the court room when judge made disclosures of facts and circumstances that may go to apprehended bias – Where judge instructed counsel not to advise the parties of the matters disclosed by the judge – Failure to afford procedural fairness – Appeal allowed. 

APPEAL – PARENTING – Error of fact – Error as to the effect of the interim orders with respect to the time spent with the mother – Where expert recommended against reducing time with mother – Finding that orders would not reduce time – Where effect of orders is to halve time – Appeal allowed.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the respondents in the substantive proceeding (“the respondents”) seek to appeal from financial disclosure orders – Where the respondents seek to appeal from the dismissal of their application to stay the financial disclosure orders – Where the respondents contend leave to appeal is not required when the orders infringe their substantive right to keep documents confidential – Where the respondents’ desire for the retention of confidentiality is not the same thing as the enjoyment of a right to the retention of confidentiality – Whether the primary judge denied the respondents procedural fairness by rejecting their application to amend their Defence – Where the doctrine of procedural fairness is concerned only with the fairness of the hearing, not with the fairness of the result – Where not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation – Where this ground is devoid of merit – Where the primary judge ordered one respondent to file an affidavit requiring his opinion as to the estimated value of certain unit holdings – Where this order did not reflect the intentions of the primary judge and should not extend so far as to require expert valuation opinion evidence – Where the respondents conceded the application of the slip rule is appropriate – Order varied under the slip rule – Leave to appeal refused – Where the applications were wholly unsuccessful – Where the respondents did not cavil with the wife’s application for costs – Respondents ordered to pay the wife’s costs in a fixed sum.

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FAMILY LAW – APPEAL – COSTS – Where the appellant filed a Notice of Discontinuance two days prior to the hearing of the appeal – Where the appellant conceded he should pay the respondents costs – Where the only issue was as to the sum of the costs to be paid by the appellant – Costs ordered in a fixed sum of $27,000.

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FAMILY LAW – APPEAL – CONTRAVENTION PROCEEDINGS – Nature of contravention proceedings – Where the appellant failed to prove that the primary judge pressured her to continue the contravention hearing without a lawyer appointed pursuant to s 102NA – Where the primary judge and self-represented appellant miscommunicated and the appellant wrongly believed she could not adduce further evidence beyond an affidavit –Contraventions involving obligations affecting children are a different scheme to those that do not – Where the primary judge erred by not considering and distinguishing contraventions under two different statutory schemes – Where the primary judge’s orders failed to identify the specific count in the Contravention Application – Requirement for particularity including in the disposition of a contravention – Privilege in respect of self-incrimination – No obligation upon an alleged contravener to give evidence or to file an affidavit – Appeal allowed – Orders relating to the alleged contraventions be set aside – Matter remitted for rehearing to a judge other than the primary judge.

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FAMILY LAW – APPEAL – FINAL PARENTING ORDERS – Procedural fairness – Reference by the primary judge to his interlocutory decision in the proceedings without notice to the parties – Where the references to the interim reasons were necessary and apposite – No denial of procedural fairness – Apprehended bias – Where the appellant asserts a fair-minded lay observer would apprehend bias on the part of the primary judge from having relied on earlier adverse findings in the interlocutory decision – Where no specific adverse findings are identified – Adequacy of reasons – Where the reasons chart the pathway by which a conclusion consistent with the evidence was reached – Appeal dismissed – Order for the appellant to pay the respondent’s costs of the substantive appeal in a fixed sum.

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FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the appellant was invited to show cause why the appeal should not be summarily dismissed –Where the father appeals from interim orders – Where the primary judge has since pronounced final judgment and the interim orders were consequently discharged – Where there is no longer any justiciable controversy in respect of the interim orders and appellate jurisdiction is exhausted – Where the appeal has no reasonable prospect of success –Appeal summarily dismissed – Application in an Appeal to adduce further evidence in the appeal dismissed.

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FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to refuse an extension of time within which she may appeal from orders made in February 2020 (“the orders”) – Where the orders appointed the respondent as the sole trustee for sale of the parties’ property – Where the applicant wants her proposed appeal from the orders allowed and the orders set aside – Where the orders have been executed – Where neither party has enjoyed any legal or beneficial interest in the property since the third party purchaser became the exclusive registered proprietor of it in April 2023 – Where any appeal now from spent orders would be an exercise in futility and waste – Where there is no justiciable controversy to be quelled by the grant of any appellate remedy – Where the applicant failed to explain how the orders were vitiated by jurisdictional error – Application in an Appeal dismissed – Where the applicant acceded to pay the costs of the respondent in a fixed sum.

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FAMILY LAW – APPEAL – CONTRAVENTION – PENALTY – Where orders were made in 2018 to finalise property and parenting between the parties – Where in 2020 the respondent wife brought an Application-Contravention against the appellant husband – Where another judge found the husband had contravened the orders on one count as to the property orders and on one count as to the parenting orders –Where the husband was sanctioned with respect to the parenting order contravention but not the property order contravention – Where the husband previously filed two separate appeals – Where the previous appeal as to the contravention of the property order was dismissed as the justiciable dispute between the parties had not yet been determined (“the first appeal”) – Where the appeal in respect of the sanction imposed as to the contravention of the parenting order was allowed on grounds the husband had been denied procedural fairness – Where the primary judge made an order by consent dismissing all outstanding contravention applications, but the order did not enjoy the wife’s consent – Where the transcript records the primary judge realised the mistake and expressly announced the need for the dismissal order to be discharged but then inadvertently failed to do so – Where the order is discharged ab initio – Where the primary judge imposed a fine upon the husband for the outstanding property order contravention – Where the dismissal of the first appeal did not preclude another appeal from the judgment finally determining the contravention – Where the sanction imposed constitutes the judgment from which an appeal lies – Where the primary judge incorrectly took the view the dismissal of the first appeal meant his Honour only needed to determine the appropriate sanction – Appeal allowed – Matter remitted for re-hearing – Where the wife did not participate in the appeal – Costs certificate issued to the husband.

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FAMILY LAW – APPEAL – PARENTING – Orders made for the children to live with the mother and spend no time with the father – Primary judge made findings of sexual assault, violence and coercive and controlling behaviour perpetrated by the father against the mother – Some matters cast doubt on aspects of the mother’s evidence but insufficient to compel its rejection – Father needs to do more than show alternative finding was available – Father failed to show findings affected by impressions of credibility and demeanour were glaringly improbable – Evidence of Family Report provides basis for primary judge’s findings of risk – Path of reasoning readily identifiable – Outcome cannot be described as unreasonable or plainly unjust – Appeal dismissed – Father to pay the costs of the mother and Independent Children’s Lawyer.

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FAMILY LAW – APPEAL – PROPERTY – Whether primary judge had “double dipped” in notionally adding back sums to the property pool – Where one add-back conceded by respondent – Evidence does not establish further add-backs were “double dipped” – Whether primary judge erred in not making any adjustment for non-disclosure by respondent – Where appellant’s case at trial did not seek an adjustment – Whether primary judge gave inadequate weight to appellant’s initial submissions – Set aside Order 2 of the orders made on 16 August, 2023 – Appeal otherwise dismissed.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks orders for legal aid to provide transcript – No basis for ordering legal aid to provide transcript – Whether the Court should provide transcript – Whether the appellant has assets – Whether transcript is necessary for the appellant’s case – Application for the Court to provide transcript refused – Whether requirement for transcript is dispensed with –Transcript dispensed with – Application to adduce further evidence more appropriately dealt with at the hearing of the appeal – Oppressive number of grounds of appeal – Orders for Amended Notice of Appeal.

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FAMILY LAW – APPEAL – Appeal from a costs order – Where costs orders will rarely be interfered with on appeal unless the result is plainly unjust or arrived at on wrong principles – Where no ground of appeal succeeds – Appeal dismissed – Costs ordered against wife.

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FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders for indefinite supervision – Procedural fairness – Incompetency of counsel – Weight challenges – Where no error of a House v The King (1936) 55 CLR 499 kind is made out – Where the weight given to competing evidence is quintessentially a matter for a trial judge – Where the orders are not patently wrong or plainly unreasonable – That another judge may have made different orders does not demonstrate error – Appeal dismissed – Application in an Appeal dismissed – No order as to costs.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the parties entered into a contract to purchase property – Where the trial judge ordered the parties to complete the purchase – Dispute as to one of the consequential orders for the mechanisms of repaying the mortgage – Orders required repayments from a re-draw account – Amount in dispute no more than seven per cent of the assets of the parties – Wife conceded husband will receive 40 per cent of the assets of the parties – More than sufficient assets to make any appropriate adjustments when making final orders – No substantial injustice if leave refused – Leave refused – Appeal dismissed – Applicant to pay the respondent’s costs.

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FAMILY LAW – APPEAL – Powers and discretion of Full Court – Where the appeal was allowed and the parties and Independent Children’s Lawyer were invited to file submissions in respect of whether the matter ought to be remitted for rehearing – Whether the Full Court ought re-exercise its discretion – Where controversial fresh evidence is likely to be adduced – Matter remitted for rehearing before a judge of Division 2, other than the primary judge. 

FAMILY LAW – APPEAL – Costs – Where the parties were invited to file written submissions in respect to the issue of costs on the appeal – Dispute resolution strongly encouraged – Costs certificates granted to the parties and Independent Children’s Lawyer in relation to the appeal, but not the rehearing.

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FAMILY LAW – APPEAL – PARENTING – Whether the trial judge erred in the exercise of discretion – Whether the trial judge failed to give adequate weight where appropriate – Where the appellant is seeking more time with the child – Dispute over holiday time allocation –Where the child is quite young – Appeal allowed in part – Re-exercise of discretion – Orders varied.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks adjournment until after criminal proceedings finalised – Applicant submits appeal will prejudice his criminal proceedings – No further cross-examination or re-examination on appeal – But for an application to adduce further evidence the appeal would already have been heard – Other parties entitled to have the appeal heard expeditiously – Not in the best interests of the children to grant a further adjournment – Application refused.

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FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed an Application in an Appeal to set aside orders made in his absence – Where the applicant did not have a reasonable excuse for failing to appear in the first instance – Where the applicant could not demonstrate a reason to suspect the result might have been different had he appeared and been able to present the case he intended – Where this is the fourth time in four months the applicant has unsuccessfully tried to initiate an appeal from final property settlement orders – Where the Court has the power to make orders that prevent an abuse of its process and protect the integrity of its functions – Where the Court will no longer exercise its appellate jurisdiction in this suit unless compelled to do so by prerogative writ of mandamus issued by the High Court of Australia – Order made permanently staying this appeal suit – Application dismissed.

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FAMILY LAW – APPEAL – RECUSAL APPLICATION – Application made for recusal on the basis of apprehended bias – Where the applicant father filed an Amended Application in an Appeal on 29 November 2023 seeking the recusal of one of the primary judges comprising the Full Court – Where the relevant test is well established by Ebner v Official Trustee in Bankruptcy [2000] HCA 63, Johnson v Johnson [2000] HCA 48 and QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2023] HCA 15 – Where the test is not satisfied – Application dismissed.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s appeal was deemed abandoned due to his failure to file a draft appeal index within the time prescribed by r 13.14(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where one hour before the appeal book index was due the applicant lodged for filing an Application in an Appeal seeking an extension of time within which to file it – Where the appeal registrar rejected the Application for filing – Where the Application could not have been served, heard and determined within the time the appeal book index was due and it would have been futile to accept the Application – Where no prejudice could accrue to the respondent by the appeal’s reinstatement after such a short interlude of abandonment – Where the respondent sought security for her costs of the appeal – Security for costs ordered – Application to reinstate appeal granted.

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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

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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.

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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.

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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.

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FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW OF DECISION – Where the applicant seeks review of the decision by the appeal registrar to refuse to accept for filing an Application in an Appeal seeking an extension of time to file an appeal – Where the proposed appeal seeks to appeal orders which have previously been the subject of an earlier appeal – Where the previous appeal was dismissed for non-compliance – Whether the filing of the second proposed appeal is an abuse of process – Where it was open to the applicant in the first appeal to raise the grounds in the proposed second appeal – Application dismissed – Costs ordered in a fixed sum.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the husband’s appeal was deemed abandoned due to his failure to file transcript in the time directed by the appeal registrar’s procedural orders – Where the husband filed an application seeking reinstatement of the appeal – Where the husband sought to set aside the appeal registrar’s decision to abandon the appeal – Where the registrar did not make any such decision – Where the husband’s appeal was abandoned by operation of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the reason for non-compliance is reasonable – Where it is necessary to advert to the prospects of the appeal – Where each ground of appeal constitutes an attack on the primary judge’s decision to refuse the husband’s application for an adjournment – Where a decision not to adjourn is immune from appeal – Where it would be futile to re-instate the appeal – Applications dismissed – Where the appeal remains abandoned – Husband ordered to pay the wife’s party/party costs in a fixed sum.

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FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from final property settlement orders – Procedural fairness – Whether the primary judge failed to afford the husband procedural fairness – Where the husband failed to comply with orders to file affidavit material – Where the final hearing proceeded on an undefended basis – Whether the primary judge failed to consider relevant matters – Where there was no evidence of the purported matters before the primary judge – Whether there was a miscarriage of justice – Where no ground of appeal is successful – Appeal dismissed – Orders made for the filing of written submissions on costs.

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FAMILY LAW – APPLICATION IN AN APPEAL – Leave to appeal – Vexatious proceedings – Where the applicant seeks leave to appeal against the dismissal of an application to review the decision of a Senior Judicial Registrar – Where the applicant failed to comply, or substantially comply, with s 102QE(3)(b) of the Family Law Act 1975 (Cth) – Application dismissed.

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FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the applicant seeks review of the decision of the appeal registrar summarily dismissing the appeal – Where the applicant appeals from orders joining him as a party to the original proceedings between the spouses – Where appeals from orders joining a party to proceedings are prohibited by s 26(2)(b)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the applicant contends the primary judge fell into jurisdictional error – Where no jurisdictional fact needed to be established as an intrinsic component of the interlocutory decision about joining the applicant to the substantive matrimonial proceeding – Where the appeal has no reasonable prospects of success – Application dismissed – Costs ordered in favour of the respondent on a party/party basis in a fixed amount.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal from orders dismissing the appellant husband’s applications to set aside three judgments on the basis of fraud and for leave to seek a variation in a child support assessment out of time – Where the wife is deceased and her estate is the first respondent to the appeal – Whether leave to appeal is required – Primary judge exercised jurisdiction pursuant to s 111 of the Child Support (Assessment) Act 1989 (Cth) – An order dismissing application to set aside a judgment is interlocutory – Leave to appeal required – Appellant failed to demonstrate the wife’s representations of her assets were fraudulent – Materiality of the fraud to the decision – Appellant failed to demonstrate sufficient doubt and substantial injustice – Leave to appeal refused – Appeal dismissed – Appellant to pay the first and second respondents’ costs in fixed sum.

APPLICATIONS IN AN APPEAL – Adduce further evidence – Written and oral applications advanced – Where the evidence would not have affected the outcome of the appeal – Majority of evidence available at trial – No new cogent evidence – Applications dismissed.

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FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders changing the child’s residence from the mother to the paternal aunt – Where the orders were the product of judicial review of orders made by a senior judicial registrar – Where the object of the father’s review application was to expand the time the child spends with him – Whether the primary judge denied the mother procedural fairness by changing the child’s residence – Where the review hearing by the primary judge entailed an original hearing of the competing applications before the registrar, including the contest over the child’s residence – Where the mother was accorded procedural fairness – Where the mother’s complaint the primary judge erred by failing to follow the guideline decision of Goode & Goode (2006) FLC 93-286 is rejected – Where the primary judge considered the relevant factors under s 60CC of the Family Law Act 1975 (Cth) – Appeal dismissed – Where no application for costs was made – No order as to costs.

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FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from final orders made under Part VIII of the Family Law Act 1975 – Where the wife’s grounds of appeal allege error by the manner in which the primary judge evaluated single expert opinion evidence – Where the primary judge was entitled to rely upon unchallenged expert opinion evidence – Appeal dismissed – Where the appeal was wholly unsuccessful – Where the respondent sought costs of the appeal – Appellant to pay the respondent’s costs of the appeal in a fixed sum.