Judgments

Division 1 - Appellate division

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FAMILY LAW – APPEAL – Where the father makes an oral application for leave to appeal from an order dismissing his application to vary prior consent parenting orders pursuant to the principles in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) – Consideration of the principles in Rice and Asplund – Where the fathers grounds are primarily complaints as to weight – Where the father consented to the prior order that provided for the children to relocate with the mother at a specified time in the future – Where the father asserted that there has been a significant change in circumstances by way of the agreed passage of time since the order and the withdrawal of his support of the prior order – Where the father has not demonstrated that the order subject of appeal is attended by sufficient doubt to warrant leave to appeal –Where despite finding that there was no sufficient change in circumstance to warrant a revisitation of the prior parenting orders, the primary judge made orders as to an aspect of parental responsibility – Where both parties agree that such orders should not be disturbed, irrespective of the outcome of the appeal – Leave to appeal dismissed – Orders made for the father to pay the mother’s costs in a fixed sum.

Judgment published date:

FAMILY LAW – APPEAL – PARENTING – Appeal from orders for summary return of children to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction – Where the appellant father challenges factual findings made by the primary judge – Where the appellant filed an Application to adduce further evidence in support of the challenge – Where the appellant sought to adduce material in a foreign language and accompanying translations obtained through the use of Google Translate – Where the evidence does not meet the requirements of s 146 of the Evidence Act 1995 (Cth) and is inadmissible – Application dismissed – Where the appellant is unable to demonstrate that the primary judge’s findings are wrong – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.

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FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant filed two applications seeking leave to appeal – Where the first application relates to the order dismissing her contempt application against the father – Where the second application relates to a vexatious litigant injunction against her – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where all purported grounds of appeal are spurious and therefore vexatious within the meaning of s 102Q(1) of the Act – Leave refused – Applications dismissed.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks an extension of time to file his summary of argument – Where the appellant accedes to the respondent being given an extension of time to file her summary of argument – Where no prejudice could conceivably be suffered by the respondent if the application is granted – Where the appellant was previously granted permission to expand his summary of argument to 20 pages in length – Where the appellant’s explanation for now seeking to expand his summary of argument to 36 pages is unconvincing – Where the appellant was previously granted permission to file a contentious appeal book – Where the appellant seeks to amend the contentious appeal book – Where the appellant may add to his contentious appeal book those documents identified in his affidavit accompanying the application – Application granted, but only partially and conditionally.

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FAMILY LAW – APPEAL – Final parenting orders – Procedural fairness – Whether a third party whose interests were affected by the outcome was not given notice or the opportunity to participate – Where the third party had notice and gave evidence but was not joined – Whether the primary judge delegating responsibility to the Independent Children’s Lawyer for drafting orders was procedurally unfair – Procedural unfairness not established – Adequacy of reasons – Where the basis upon which the primary judge concludes that the children’s time with the respondent may graduate from supervised to unsupervised is not apparent – Absence of findings that allow an understanding of how the primary judge reached the conclusion that he did concerning risk – Appeal allowed – Remitted for rehearing.

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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 – PROPERTY – Where the appellant appeals from final property orders effecting a 100 per cent division of a piece of real property and 100 per cent of his superannuation interests to the first respondent after sale costs of that property and a cash payment to the second respondent – Where the primary judge made no discretionary error in applying Kennon & Kennon (1997) FLC 92-757 – Where the findings of the primary judge were reasonably open on the evidence – Adequacy of reasons – Where the primary judge’s reasons make plain the basis upon the conclusion was reached – No error established – Appeal dismissed – Costs ordered in a fixed sum.

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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 – PARENTING – Where the primary judge dismissed five separate applications brought by the mother – Where leave to appeal is not required from orders that finally determine substantive rights – Where the day before the appeal hearing the mother made an application for an adjournment – Where the reasons advanced by the mother for an adjournment are rejected – Where the mother sought disqualification of a member of the bench on the ground of apprehended bias – Where the grounds for apprehended bias have not been established and the disqualification application is refused – Where the mother does not set out or address each ground of appeal in her Summary of Argument as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where the father sought the summary dismissal of the appeal on account of the mother’s failure to comply with the Rules – Where the appeal is instead dismissed on its merit – Where the mother’s complaint she was constrained by a deadline to prosecute her applications before the primary judge is rejected – Where the mother deliberately refrained from attending the hearing before the primary judge and cannot claim her denial of procedural fairness by reason of the hearing proceeding in her absence – Where the mother did not advance an argument to explain why the judgment is manifestly unjust or reasonable – Where the mother omits to explain the alleged failure by the primary judge to correctly apply legal principles – Appeal dismissed – Where the appeal was wholly unsuccessful – Mother to pay the father’s costs of the appeal in a fixed sum.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the husband seeks leave to appeal interlocutory financial orders requiring him to pay the wife lump sum and periodic spousal maintenance – Where at least one of the grounds of appeal appeared to have merit – Leave to appeal granted – Where the primary judge did not deny the husband procedural fairness by discounting his weekly expenses in determining his capacity to pay spousal maintenance – Where the husband alleges mistaken findings by the primary judge about the wife’s need for spousal maintenance – Where the findings made about the wife’s need for financial support were open on the available evidence and withstands complaints in the appeal that the primary judge could or should have come to different conclusions – Where the primary judge found the husband will earn a higher income from his new business – Where the husband contends the primary judge failed to make due allowance for the extra income tax for which he would inevitably be prospectively liable – Where the amount of the periodic interim spousal maintenance order is too high and the obligation to pay it under the appealed order causes the husband financial hardship – Appeal allowed in part – Where the husband refused the re-exercise of discretion and insisted on his right to adduce updated evidence – Where the periodic spousal maintenance amount is substituted for a lesser sum in the interim – Where the wife’s application for periodic spousal maintenance is remitted for rehearing – Costs reserved.

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FAMILY LAW – APPEAL – Parenting – Non-compliance and non-attendance at hearing – Where the appeal as cast is incomprehensible and hopeless – Where the appellants were ordered to file an Amended Notice of Appeal to address the defects of their appeal – Where the appellants failed to do so – Where the dismissal of the appeal pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) was foreshadowed in advance of the hearing – Where neither appellant appeared at the hearing – Where dismissal is justified pursuant to r 13.31 of the Rules.

APPLICATION IN AN APPEAL – Stay of proceedings – Where the mother sought a stay of the underlying parenting proceedings pending the finalisation of the appeal – Where the mother could point to no circumstances justifying such an order – Application dismissed – Appeal dismissed – Costs ordered in fixed sum.

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FAMILY LAW – APPEAL – Property – Spousal maintenance – Where the primary judge varied earlier interim property orders – Adequacy of reasons – Where the primary judge gave no reason as to why it was reasonable and equitable to make the orders – Procedural fairness – Where the primary judge gave no notice to the appellant – Where the respondent did not seek such an order – Where the respondent concedes the appeal – Error identified – Appeal allowed by consent.

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FAMILY LAW – APPEAL – Apprehended bias – Robust discussion at directions hearing does not satisfy apprehended bias test – Even if comments satisfied test, there was no application for disqualification of the judge made at the time the facts giving rise to the claim of apprehended bias were known to appellant’s legal representatives – Appellant taken to have waived right to seek disqualification of judge – Appeal dismissed. 

APPEAL – COSTS – Divorce Application – Date of separation in dispute – Hearing more than 12 months after date of separation alleged by Appellant – Initial Divorce Application discontinued and divorce granted by consent on oral application – Where appellant sought indemnity costs – Appellant’s costs application dismissed – Whether primary judge erred in refusing to hear hypothetical application in order to determine precise date of separation – No error by primary judge – Appeal dismissed.

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FAMILY LAW – APPEAL – Divorce – Where the husband appeals from a declaration that a divorce order was final – Where the respondent wife originally sought to appeal the divorce order below, but later consented to the dismissal of that appeal – Where pursuant to s 55(3) of the Family Law Act 1975 (Cth) (“the Act”) the divorce order came into effect one month after her appeal was dismissed – Where none of the husband’s grounds of appeal challenge the effect of s 55(3) of the Act, nor are they recognisable grounds of appeal – No error identified – Appeal dismissed.

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FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the appellant was unable to indicate which ground or grounds the further evidence supported – Where the evidence was available at trial and not tendered – Where it is not established that if the evidence was before the primary judge the outcome is likely to have been different – Application dismissed.

FAMILY LAW – APPEAL – Appeal against final parenting orders – Non-compliant Summary of Argument – Where the appellant’s oral submissions do not address the grounds of appeal – Where the grounds of appeal are not made out – Error by the primary judge not demonstrated – Appeal dismissed – Costs ordered.

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FAMILY LAW – APPEAL – Property – Where the primary judge divided the property pool 60/40 in the appellant’s favour – Where the most valuable asset owned by the parties was a business – Procedural fairness – Whether the refusal to adjourn the trial was a denial of procedural fairness – Where such appeals are prohibited by s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Errors of fact – Whether the it was open for the primary judge to accept the single expert’s valuation of the business – Where the appellant did not raise the issue in cross-examination or submissions at trial – Inadequacy of reasons – Where to accept reading of the primary judge’s reasons urged by the appellant would be unreasonable and pernickety – No error identified – Appeal dismissed – Costs ordered in a fixed sum.

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FAMILY LAW – APPEAL – PROPERTY – Where the primary judge took into account evidence that was struck out or not read – Where irrelevant considerations material to outcome – Where the primary judge did not accept that there was family violence despite evidence to the contrary – Appeal allowed – Costs certificates issued.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant wife seeks leave to appeal from a series of costs orders and consequential orders made between her, her former spouse, and the trustee appointed to sell some of the spouses’ property – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where none of the 10 proposed grounds of appeal are meritorious – Where the proposed appeal evinces no reasonable grounds and is vexatious within the meaning of s 102Q(1) of the Act – Leave refused – Amended Application in an Appeal dismissed.

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FAMILY LAW – APPEAL – Property – Superannuation – Where the wife appeals from final property orders under which she received almost all available assets apart from superannuation – Where no superannuation splitting order could be made in the absence of necessary evidence of taxation consequences and any complying superfund into which a split proportion could be paid in favour of the wife – Where the wife refers to errors of fact, inadequate reasoning, failure to take into account or misunderstanding evidence, bias, procedural unfairness, inadequate assessment of health, manifest injustice – Where the wife did not provide a transcript of the trial to support claims of bias or denial of procedural fairness – Where the wife sought to rely on voluminous documents many of which were not before the primary judge – Where the grounds of appeal are difficult to understand – Where no discernible error in the primary judge’s reasons – Appeal dismissed.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Appellant sought extension of time for filing his Summary of Argument and an Amended Notice of Appeal, the vacation of the hearing date and leave to issue a subpoena – Notice of Appeal is prolix and difficult to understand – Appellant has had difficulty obtaining counsel – Appellant claimed he could not brief a barrister without the transcript or the Appeal Book – Appellant declined to provide communications with barristers regarding availability – Where the appellant’s difficulties are largely of his own making – Where the interests of justice are best achieved by giving an extension of time for filing but not to vacate the hearing date – Where the application for the subpoena needs to be heard by the Full Court hearing the appeal per r 13.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Application for subpoena adjourned.

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FAMILY LAW – APPEAL – Parenting – Where the mother appeals from final parenting orders that vest the father with sole parental responsibility and impose a moratorium of two months of no contact with the mother – Assertions of bias – Where the mother makes claims that border on scandalous – Assertions of a denial of procedural fairness – Where the primary judge’s interjections were polite and helpful – Alleged breach of the Criminal Code Act 1995 (Cth) – Where it was not a crime to order that the children live with the father – Whether primary judge failed to take relevant considerations into account – Where the assertion does not bear out on the transcript – Inadequacy of reasons – Where the primary judge’s reasoning was readily discernible – No error identified.

FAMILY LAW – APPEAL – Application in an Appeal – Further evidence – Where the day prior to the appeal the mother sought to rely upon a further 3797 pages – Where all of the documents were either available at the time of trial, contentious or irrelevant – Application dismissed – Appeal dismissed.

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FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant parents seek review of the appeal registrar’s decision to summarily dismiss their appeal – Where the appealed orders were entirely procedural in nature and do not constitute a judgment from which an appeal competently lies – Where the appealed orders do not affect the applicants’ substantive legal rights in any way – Where the appeal is bound to fail and was correctly dismissed by the appeal registrar – Application dismissed.

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FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks orders for the parties to attend mediation and to appoint a single expert to opine as to a retrospective valuation of the interests of the parties in a corporation of which the husband was the sole director that sold its trading enterprise in the shadow of the separation – Where the husband opposes the appointment of a single expert but supports the orders for mediation – Where the parties are in dispute as to whether the disposal by the corporation was a bona fide transaction conducted at arms-length – Where dispute exists as to whether the consideration received on the sale was less than fair market value – Where the under value of the disposed interest is supported by the wife’s expert who is not a single expert – Orders made as sought by the wife.

COSTS – Where the wife seeks the husband pay her costs in a fixed sum – Where the husband opposes that application – Where the husband’s position on the application was not maintainable - Where the consideration received on the sale of the trading enterprise was at all times a substantive issue in the proceedings attracting the application of Ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appointment of a single expert to opine as to that subject matter – Where the husband ought to have known, with the benefit of his experienced legal representatives, that an absence of success in opposing the orders sought by the wife implementing the purpose of Ch 7 of the Rules was misconceived and would likely lead to costs looming on the horizon – Husband ordered to pay the wife’s costs in a fixed sum.

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FAMILY LAW – APPEAL – COSTS – Where the appeal was discontinued on the morning of the hearing and the question of costs was reserved – Where the respondent seeks that the applicant pay his costs in a lump sum amount – Where the applicant opposed any costs order – Where the applicant contends the respondent has superior access to financial resources – Where financial impecuniosity is not a bar to the making of a costs order where the conduct of a party may otherwise warrant the making of such an order – Where the conduct of the applicant inevitably increased the costs incurred by the respondent – Where the applicant rejected the respondent’s letter of settlement indicating he would consent to the discontinuance of the appeal with no order as to costs – Where the appeal lacked utility – Applicant to pay the costs of the respondent in the fixed sum of $9,194.07.

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FAMILY LAW – APPEAL – CHILDREN – Where the appellant father appeals orders made for the respondent mother to have sole parental responsibility and that the child live with her and she have leave to relocate the child with her from Australia to Country B – Where the appellant appeals on grounds relating to failure to provide reasons and complaints as to weight – Where the judgment is a discretionary judgment – Discussion of authorities relating to appeals from discretionary judgments – Discussion of authorities relating to failure to provide reasons – Where the primary judge is not required to mention every fact or argument in her Reasons for Judgment – Where the appellant sought leave to amend his Notice of Appeal and add an additional ground of appeal at the hearing – Where the additional ground of appeal has no merit – Leave to amend Notice of Appeal refused – Appeal dismissed – No order for costs sought.

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FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from property settlement orders – Where the husband asserts the wife did not comply with pre-action procedures – Where the wife was exempt from complying with pre-action procedures due to allegations or risk of family violence – Where the husband’s complaint that the primary judge failed to accord proper weight to his evidence is without substance – Where the husband’s complaint of procedural unfairness is specious – Where the husband could not establish how the 15 per cent adjustment to the wife was manifestly unjust or unreasonable –Application in an Appeal – Further Evidence – Where the husband did not meet the criteria for admission in respect of each category of document – Application dismissed – Appeal dismissed – Where the wife sought costs of the appeal – Where the appeal was wholly unsuccessful – Where the husband conducted the appeal in such a disorganised way the wife’s costs was bound to increase in having to meet it – Husband to pay the wife’s costs of the appeal in a fixed amount.

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FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision that he pay costs of the Independent Children’s Lawyer (“ICL”) incidental to his previous unsuccessful application in an appeal – Where the ICL opposed the review application – Consideration of s 117(4)(b) of the Family Law Act 1975 (Cth) – Where the Court finds the applicant would suffer financial hardship if required to bear any proportion of the ICL’s costs – Where the applicant is in debt – Where the applicant was recently hospitalised due to an accident – Where the review application succeeds – Where the ICL’s application for costs against the applicant is dismissed – Where the appeal registrar’s order requiring the applicant to pay the ICL’s costs is discharged.

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FAMILY LAW – APPEAL – Property – Appeal from final property orders – Consideration of Stanford & Stanford (2012) 247 CLR 108 – Whether the primary judge conflated the consideration of s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) with the ultimate consideration of whether the outcome was just and equitable – Whether the primary judge failed to consider s 79(2) separately from the assessment of the factors under s 79(4) of the Act – Where there are arithmetical errors in the judgment – Where there is insufficient exposure of reasoning for the conclusion reached by the primary judge – Appeal allowed – Costs certificates granted for the appeal and the rehearing.

CROSS APPEAL – Property – Where the success of the appeal means that all of the orders of the primary judge must be set aside and the cross-appeal falls away – Cross appeal dismissed.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the applicant seeks an order that the Court procure the trial transcript (“transcript”) at its expense – Where the applicant’s evidence establishes she cannot afford the transcript – Where the transcript is not required for some grounds of appeal – Where there are no exceptional circumstances to justify the Court funding the provision of the transcript – Order made to extend the time for the applicant to file the transcript – Order made relieving the applicant of the deemed abandonment of the appeal if she fails to file the transcript – Application dismissed.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – Majority judgment – Appeal from orders dismissing the appellant father’s application for recusal of the primary judge and if successful the parenting orders made by the primary judge – Allegations of apprehended bias – Allegations of denial of procedural fairness – No error established and not any substantial injustice if leave to appeal was refused – Leave to appeal refused – Appeal dismissed – The appellant father to pay the respondent maternal grandmother and the Independent Children’s Lawyer’s costs in a fixed sum. 

APPEAL – APPLICATION IN AN APPEAL – Where the appellant father sought leave to adduce further evidence – Where the evidence was not admissible or relevant – Where the evidence would not have affected the outcome of the appeal – Application dismissed.

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FAMILY LAW – APPEAL – Binding Financial Agreement – Where the husband appeals from an order setting aside the agreement on the basis that there had been material non-disclosure by him – Where the husband contends that the primary judge was restricted to the sole non-disclosure issue advanced by the wife in her pleadings – Where cases are determined on the evidence, not the pleadings – Where the husband contends the primary judge erred in fact in making the non-disclosure finding – Where the fact another judge may have reached a different factual conclusion does not mean the finding was not reasonably open on the evidence – Whether wife was estopped from denying the financial agreement was binding – Where it was implicitly conceded that if non-disclosure was established the estoppel claim fell away – Appeal dismissed – Costs ordered in a fixed sum.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where an appeal judicial registrar ordered the appellant file an Amended Notice of Appeal and a Summary of Argument – Appellant seeks relief from filing Summary of Argument – Appellant failed to appear at hearing – Appeal as framed raises no competent grounds – Exemption from filing would therefore be pointless – Application dismissed.

APPEAL – Summary dismissal – Where the appellant has not complied with procedural orders to file documents required to prosecute the appeal – Appellant failed to appear at hearing – No valid grounds of appeal raised – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.

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FAMILY LAW – APPEAL – PARENTING – Where the two young children have been in the care of the respondent since separation – Where the appellant and the respondent, post-separation, lived approximately a nine-hour drive apart from each other –Where the appellant sought orders that if the respondent move to an area closer to him, the children live with him and spend time with the respondent as agreed or, failing agreement, for nine nights a month – Where the appellant sought orders that if the respondent does not move, the children live with him and spend time with the respondent for one weekend a fortnight –Where the primary judge ordered that the children live with the respondent and spend time with the appellant as agreed – Where the appellant contends that the primary judge departed from the proposals of the parties without affording either an opportunity to be heard and thereby was procedurally unfair – Where the appellant contends that the order was made having no regard to the evidence regarding the parties’ capacity to communicate, negotiate, or agree to such time – Where the appellant contends that the primary judge erred in treating his application as an impermissible coercive order – Where the appellant contends that the primary judge made an interim finding on a disputed fact – Where it was found that the appellant proposed no alternative arrangement regarding the circumstance where the children lived primarily with respondent and the respondent did not move – Where the respondent made no proposal for the children to spend time with the appellant – Where the primary judge raised the failure of the parties to place proposals for time and evidence supporting same in her Reasons for Judgment – Where the primary judge concluded that it was not up to her to make up the parenting arrangements – Where it was found that the parties are bound by the way they conducted the hearing – Where the asserted errors of the primary judge were not material to the ultimate determination – Appeal dismissed.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the wife seeks leave to appeal against the dismissal of her application before the primary judge – Where the wife requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where the Court is not satisfied any of the ground contained in the wife’s proposed Notice of Appeal are reasonable and therefore are vexatious under s 102Q(1) of the Act – Leave refused – Application in an Appeal dismissed.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Request for Court to provide transcript for 3 days of the trial – Relevance of transcript to grounds of appeal not explained – No prima facie merit apparent on grounds of appeal – Appellant’s current solicitor wishing to review transcript in search of other possible grounds of appeal – No evidence of the likely costs of the transcript – Application dismissed.

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FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appellant failed to file his Amended Notice of Appeal and Summary of Argument– Notice given pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the first respondent filed an Application in an Appeal seeking that the appeal be dismissed pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and that the appellant pay their costs – The appellant’s oral application to adjourn the appeal is dismissed – Appeal dismissed pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – The respondent may file an application for costs pursuant to r 13.54 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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FAMILY LAW – APPEAL – Where the appellant appeals from a discretionary judgment – Whether the primary judge erred in making a finding not available on the evidence – Where the error is established but is not material – Orders of the primary judge not manifestly unjust – Where none of the grounds have merit – Appeal dismissed.

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FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders changing the children’s residence from the father to the mother with a six month moratorium on time with the father followed by 12 months of supervised time – Allegations of apprehended bias – Allegations of denial of procedural fairness – Adequacy of reasons – Whether the primary judge failed to give sufficient weight or consideration to evidence – No error established – Appeal dismissed – Father ordered to pay costs of the mother and the Independent Children’s Lawyer.

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FAMILY LAW – APPLICATION IN AN APPEAL – STAY – Where orders of Full Court made on 28 November 2023 dismissing the appeal and ordering the applicant to pay the costs of the Independent Children’s Law in fixed sum of $5,000 – Where applicant filed an application for special leave in the High Court of Australia on 2 January 2024 – Where applicant seeks a stay of the orders of 28 November 2023 pending the determination of the special leave application – Order requiring the payment of the costs of Independent Children’s Lawyer is stayed – Application in an Appeal otherwise dismissed.

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FAMILY LAW – APPEAL – PROPERTY – Recusal – Where the primary judge was exposed to proposed property settlement orders which materially deviated from the formal position of both parties – Where an application for recusal was made and later refused by the primary judge – Consideration of the second step of the test outlined in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where from the perspective of the fair-minded lay observer, knowledge of the proposed settlement orders and balance sheet might affect the primary judge’s future assessment of the evidence and the discretionary exercise of determining any adjustments to the parties’ property – Error identified.

APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought an extension of time to seek leave to appeal – Where a substantial injustice would be suffered by the appellant if he were denied the opportunity to prosecute a meritorious appeal – Leave to appeal granted – Appeal allowed.

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FAMILY LAW – APPEAL – Parenting – Summary dismissal – Where the appellant has not complied with procedural orders to file documents required to prosecute his appeal – Where the appellant failed to appear – Where the sole ground of appeal is as currently cast is patently misconceived and doomed to fail.

APPLICATION IN AN APPEAL – Relief from filing Summary of Argument – Where the appeal judicial registrar ordered the appellant file an Amended Notice of Appeal and a Summary of Argument – Where the appellant seeks relief only in respect of the latter document – Where the appeal as cast is hopeless – Where the relief from filing a Summary of Argument in relation to a hopeless appeal would be an exercise in futility – Application dismissed – Appeal dismissed – Costs ordered in a fixed sum.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the appellant to adduce further evidence – No adequate explanation for failure to produce taxation assessment at trial – Other documents of limited significance in circumstances of case – Application dismissed.

APPEAL – PROPERTY – Appeal from final property orders and interim spousal maintenance order – Whether the primary judge erred in assessing the property pool, contributions and the appellant’s income – Where evidence before the primary judge was far from helpful – Findings not unreasonable or plainly unjust – Findings open on the state of the evidence – No appealable error – Appeal dismissed – Appellant to pay the respondent’s costs in fixed sum.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – Summary dismissal – Where the mother seeks to appeal the decision of the primary judge dismissing her review application of orders of a judicial registrar – Where the judicial registrar adjourned the substantive proceeding for compliance and readiness hearing to the first available date – Where the decision to refuse the mother’s application to expedite the hearing of the substantive application to an earlier date is not a decision from which an appeal competently lies – Where the mother was invited to show cause why the appeal should not be summarily dismissed – Where no recognisable legal, evidentiary, factual or discretionary appealable error is alleged the in the proposed grounds of appeal – Where the application for leave to appeal evinces no reasonable prospect of success – Leave to appeal refused – Appeal summarily dismissed.

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FAMILY LAW – APPEAL – COSTS – Where the appeal was dismissed during its hearing on the appellant’s application –Where the respondent sought costs – Where the appeal was incompetent – Where the appellant had not filed a schedule of costs in accordance with Court orders and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant opposed the costs application – Order for the appellant to pay the respondents costs.

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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.