Judgments

FAMILY LAW – APPEAL – Parenting – Where the mother appeals from interim parenting orders – Where the mother alleges Australia is a clearly inappropriate forum – Procedural fairness – Where no error is demonstrated – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – PARENTING & PROPERTY – INTERNATIONAL RELOCATION – Where the father appeals from final parenting orders permitting the mother to relocate with the parties child to the United Kingdom – Where the father asserts denial of procedural fairness – Where the father asserts discretionary error – Where the father asserts failure to give reasons – Application in an Appeal – Where the father seeks leave to adduce further evidence – Where none of the further evidence demonstrates error by the primary judge – Application dismissed – Appeal dismissed – No orders as to costs.

FAMILY LAW – APPEAL – Appeal from Divorce Order – Where the wife argues Australia is a clearly inappropriate forum – Property settlement hearing completed in Australia with judgment reserved – Where the wife seeks to delay the divorce until property settlement orders are made – Where wife is pursuing divorce proceedings in the UK – Where wife claims there are tax implications in the UK but provides no evidence – No discretion to refuse divorce application – Appeal dismissed.

FAMILY LAW – APPEAL – Divorce – Where the wife appeals from a divorce order – Where the parties married in Country B and thereafter lived in Australia – Where the wife commenced proceedings in Country B against the husband and his family after the husband commenced proceedings in Australia – Where the primary judge found the Country B proceedings were not matrimonial in nature – Where the primary judge rejected the wife’s objection to forum – Where several grounds of appeal make assertions but do not plead appealable errors – Where the wife seeks leave to adduce further evidence – Where the wife’s affidavit and the affidavit of her Country B lawyer do not demonstrate error by the primary judge – Leave refused – Application dismissed – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – PARENTING – Allegations of family violence perpetrated by the father – Primary judge accepted the father posed a risk of harm to the children – Primary judge made orders for the father’s time with the children to be conditional on his engagement in psychological therapy and completion of courses – Application of Lainhart & Ellinson (2023) FLC 94-166 – Order uncertain – Order constitutes an improper divestiture of judicial power – Appeal allowed – Costs certificates issued.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought a costs order against the appellant – Where the appellant was wholly unsuccessful – Where the respondent sought costs against the appellant on an indemnity basis or alternatively costs in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered in a fixed sum of $17,000.

FAMILY LAW – APPEAL – COSTS – Application for costs following the discontinuance of the appeal – Where the respondent incurred expense preparing for the appeal – Where the parties on appeal are not parties to the marriage – Appellant to pay the respondents’ costs in a fixed sum.

FAMILY LAW – APPEAL – Where an appeal is brought from the dismissal of the husband’s contravention application – Where the primary judge fell into error by conflating the different burdens of proof borne by the parties – Where the primary judge incorrectly applied new legislation to historic contraventions – Appeal allowed – Contravention application remitted for re-hearing by another judge – Where the husband is granted a costs certificate.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant appeals from orders made by the primary judge temporarily removing the eldest child from the Airport Watchlist – Where the appellant seeks leave to adduce further evidence in the appeal – Where the further evidence was not relevant to the appealed orders nor determination of the appeal – Application dismissed – Where the grounds of appeal are incompetent and fail to establish appellable error – Where the appellant’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 – Parenting – Where the appellant appeals from orders dismissing the appellant’s Contravention application – Procedural fairness – Where no error is demonstrated – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – Parenting – Where the primary judge made orders vesting the respondent mother with sole parental responsibility and providing that the children only spend time with the appellant father in accordance with their wishes – Assertion of incompetent legal counsel – Where notwithstanding the father’s solicitor’s poor forensic decisions, preparation and submissions no different result would have been reached but for those matters – Assertion of discretionary error – Where the evidence which the father contends was overlooked could not have sensibly made any impact – Where the father is otherwise bound by the case he ran at trial – No error identified – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – Father appeals from final parenting and property orders – Where the primary judge made orders for the child to live with the mother and spend supervised identity time with the father – Allegations of sexual abuse – Findings that the father posed an unacceptable risk of harm to the child – The decision of whether there is an unacceptable risk of harm is evaluative – The primary judge considered the matters the father alleges he failed to take into account – Where the reasoning process is clear – Challenges to weight – Where the primary judge made a further 10 per cent adjustment to the mother following contributions – Where property division is an exercise of a broad discretion – Failure to establish the outcome was unreasonable or plainly wrong – Appeal dismissed – Father to pay the mother’s costs in a fixed sum.

FAMILY LAW – LEAVE TO APPEAL – INTERLOCUTORY ORDERS – Applicant seeks leave to appeal interlocutory orders of primary judge – Where conjunctive test for leave to appeal in Medlow & Medlow (2016) FLC 93-692 not satisfied – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL –FURTHER EVIDENCE – Applicant seeks leave to adduce further evidence – Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) considered – Where proposed material does not demonstrate error or provide material for re-exercise of discretion – Application in an Appeal dismissed.

FAMILY LAW – APPEAL – DISCRETIONARY JUDGMENT – Where applicant asserts bias and denial of procedural fairness, failure to give reasons, failure to consider evidence, and failure to give proper weight to evidence – All grounds of appeal found to be without merit.

FAMILY LAW – JURISDICTION – Where the primary judge found there was no jurisdiction in the Federal Circuit and Family Court of Australia (Division 1) to entertain applicant’s application for spousal maintenance (including leave to apply out of time) – No grounds of appeal directed at this issue – Consideration by majority of whether ss 25 and 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) preclude jurisdiction where proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2) is subsequently amended to include another cause of action – Consideration by majority of jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) to entertain a fresh cause of action in proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2) – Consideration by majority of whether applications constituted a single justiciable controversy within the court’s associated jurisdiction under s 29 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

FAMILY LAW – COSTS – Appeal wholly unsuccessful – Applicant ordered to pay costs of first and second respondents.

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Appeal from the primary judge’s s 90RD declaration as to the parties’ relationship – Where the appellant asserts apprehended bias – No finding of apprehended bias – Where the appellant asserts the primary judge took into account extraneous matters – Where it is not demonstrated the primary judge improperly took into account extraneous matters – Where the appellant asserts the primary judge made an order against the weight of evidence or gave inadequate reasons – Error of fact established as to the commencement of the parties’ relationship – Error corrected by a substituted order – Costs certificates granted.

APPEAL – PARENTING – Evidence – Effect of state court judgments in family violence proceedings – Whether issue estoppel arose – Whether judgment of state courts should have been adopted pursuant to s 69ZX – Whether State Court judgements otherwise relevant or of weight where primary judge determining issues of family violence on evidence at hearing.

APPEAL – PARENTING – Evidence – Where the Family Report Writer unable to be cross-examined due to illness – Admissibility of Report – Whether report ought to have been excluded pursuant to s 135 of the Evidence Act – Weight to be attached to report.

APPEAL – PARENTING – Definition of family violence – Whether the primary judge was correct in classifying all of the appellant’s behaviour as family violence – Where appellant destroyed engagement rings – Where limited evidence of circumstances of destruction of rings. APPEAL – PRACTICE AND PROCEDURE – Error in order that is amenable to correction under the “slip rule” – Where appeal inappropriate prior to exhausting remedies with primary judge.

APPEAL – PARENTING – Appellant and cross-appellant appeal from final parenting orders – Whether primary judge erred in failing to apply the Briginshaw test – Whether primary judge erred in assessment of findings giving rise to unacceptable risk – Whether primary judge gave adequate reasons – Whether primary judge erred in not accepting expert evidence – Whether primary judge made findings contrary to evidence – Where cross-appellant contends apprehended bias on part of primary judge – Consideration of test in Ebner – No grounds of appeal challenging parenting orders established – Both appeal and cross-appeal dismissed.

APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks leave to issue a subpoena for the production of documents and to adduce the documents subsequently produced as further evidence in the appeal – Where there is no utility in permitting the appellant to issue a subpoena when the documents are not seemingly related to any of the grounds of appeal – Application dismissed.

APPEAL – PARENTING – Where appellant argues Family Law Act amendments should apply to primary judge’s decision – Appellant argues applicability of the Convention on the Rights of the Child – No grounds of appeal established – Appeal dismissed – Application for leave to file cross-appeal out of time – Leave not granted – Application dismissed.

APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where respondent sought costs of the appeal – Applicant to pay respondent’s costs of the appeal in a fixed sum.

APPEAL – PARENTING – Appellant challenges jurisdiction of the Court – Pseudolegal arguments dismissed– Where the appellant was not denied procedural fairness when he failed to put evidence forward at trial – Where appellant did not engage in family report process – Where appellant is critical of primary judge for not pursuing evidence on his behalf –No grounds of appeal established – Appeal dismissed.

APPEAL – PARENTING – Unacceptable risks – Risks warranting supervision – Nature of risks not limited to “immediate” risks – Risks that are not “immediate” can be unacceptable as can risks from insidious behaviour over time – Primary judge correct to order supervision to ameliorate risks.

APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought an expedited hearing of her appeal from interim parenting orders – Where the matter is listed for trial commencing on 25 November 2024 – Where the appealed orders have been implemented and there is no evidence the children have not managed with the change of residence from the appellant to the respondent – Where the appellant may apply for variation of the interim orders at trial – Where expedition of the appeal would cause prejudice to the respondent and the Independent Children’s Lawyer – Application dismissed.

APPEAL – PARENTING – Appeal from final parenting orders – Whether primary judge erred in findings of family violence – Whether primary judge erred in assessment of findings as to unacceptable risk – Whether primary judge gave adequate reasons – Whether primary judge erred in making adverse inference against appellant – Application of the rule in Jones v Dunkel – Where appellant asserts there was a reversal of onus – Where appellant asserts he was required to prove a negative – No grounds of appeal challenging parenting orders established – Appeal dismissed.

APPEAL – LEAVE TO APPEAL – Where the wife seeks to appeal interim orders restraining the second respondent from dealing with proceeds of sale and otherwise dismissing the second respondent’s Application in a Proceeding – Where the wife seeks an order on appeal extending the restraint to the final hearing – Where the primary judge has already made an order in those terms – Where the subject matter of the Application in an Appeal had been dealt with – Proposed grounds of appeal are unmeritorious – Leave to appeal refused – Orders made as to written submissions on the issue of costs.

APPEAL – APPLICATION IN AN APPEAL – Where the wife sought leave to adduce further evidence – Further evidence is duplicative and redundant – Wife fails to identify the relevance of the material or why it was not adduced at trial – Application dismissed.

FAMILY LAW – APPEAL – Property – Limited evidence available to the primary judge – Where no retrospective valuation of the farming property was conducted by an appropriately qualified expert –– Consideration of s 79 of the Evidence Act 1995 (Cth) – Where the factual error was material to the outcome of proceedings – Appeal allowed – Orders of the primary judge set aside – Matter remitted for rehearing before a judge other than the primary judge – Costs certificate granted to the appellant.

FAMILY LAW – APPEAL – COSTS – Application in an Appeal for a stay partly allowed – Where the respondent seeks indemnity costs for the application – Consideration of offers to resolve the stay application – Applicant has incurred significant legal costs – Where the stay interferes with the respondent’s right to enforce the fruit of the judgment – Where it is just for the applicant to pay the respondent’s costs – Matters do not justify an order for indemnity costs – Applicant to pay the respondent’s costs in a fixed sum.

FAMILY LAW – APPEAL – Application in an Appeal – Leave to commence proceedings – Where the primary judge dismissed the applicant’s application to vary final parenting orders – Where the applicant requires leave to appeal in circumstances where the primary judge made orders restraining him from bringing any further proceedings under the Family Law Act 1975 (Cth) (“the Act”) – Where all 91 grounds of appeal lack reasonable prospects of success and are therefore vexatious within the meaning of s 102Q(1) of the Act – Leave refused – Application dismissed.

FAMILY LAW – APPEAL – BINDING FINANCIAL AGREEMENT – Where the wife appeals from a declaration that the financial agreement entered between she and the husband be binding and enforceable – Whether the wife discharged the onus of proof as to the provision of advice to fulfill the requirements of s 90G(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) – Consideration of the principles identified in Abrum & Abrum [2013] FamCA 897 – Where the incontrovertible facts lead to the conclusion that the necessary advice prescribed by s 90G(1)(b) of the Act was not given – Error established – Where the primary judge determined in the exercise of discretion pursuant to s 90G(1A) of the Act that nevertheless it would be unjust and inequitable if the agreement were not binding – Where the wife appeals from an alternative declaration pursuant to s 90G(1B) of the Act – Where the wife appeals from the dismissal of her relief for the agreement to be set aside pursuant to s 90K(1) of the Act for non-disclosure of a material matter, or as to the agreement being void or voidable vitiated by undue influence, or unconscionable conduct – Where the wife contended errors as to a failure to take into account relevant considerations, taking into account irrelevant considerations, conclusions being contrary to the weight of the evidence, and failing to give adequate reasons – Where such errors are not established – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – Property – Where the husband appeals from final property settlement orders – Superannuation – Where the husband contends the primary judge erred in not adopting the diminished value of his superannuation in the balance sheet due to his legal fees – Where the parties conducted the litigation from the common position that legal fees would be added back to the property pool – Where the matters the husband contends were ignored were explicitly taken into account – Where the appeal against the property settlement orders fails – Binding Financial Agreement – Damages – Where the husband appeals from the finding that he did not suffer any compensatory loss – Where notwithstanding the finding of hardship the husband’s claim for compensatory damages required assessment – Error identified – Appeal allowed in part – Damages assessment remitted for re-hearing – Costs certificates granted.

CROSS-APPEAL – Binding Financial Agreement – Negligence – Where the husband’s former solicitors cross-appeal against the award of damages – Whether the primary judge erred in finding that the husband’s contract claim was not statute barred – Consideration of Orwin v Rickards [2020] VSCA 225 and Davys Burton v Thom [2009] 1 NZLR 437 – Where the “damaged asset” characterisation of when damage is first sustained under a negligently drawn contract is neither binding nor persuasive when applied to Binding Financial Agreements – Where the advice of the solicitors was clearly inadequate – Where the cross-appeal fails – Cross-appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was dismissed by consent – Where the Full Court made orders by consent to reflect the intention of the primary judge pursuant to the slip rule – Where the respondent made an application for costs in circumstances where the appeal could have been avoided by application of the slip rule – Costs order granted in favour of the respondent in a fixed sum

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the applicant was invited to show cause why the appeal should not be summarily dismissed – Where the applicant requires leave to appeal from the primary judge’s dismissal of his disqualification application – Where the primary judge dismissed all extant proceedings in reliance upon s 102QAB of the Family Law Act 1975 (Cth) – Where the grounds of appeal lack merit – Where the appeal is an abuse of process – Appeal summarily dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the appellant seeks relief from the financial obligation to procure the transcript of the primary hearing and that the Court procure the transcript at its expense – Where the evidence of the appellant establishes she cannot afford the transcript – Where the grounds of appeal do not appear to warrant advertence to the transcript – Where the submission by the appellant that the prosecution of her appeal would be prejudiced without the transcript is rejected – Order made relieving the appellant of the obligation to file and serve the transcript – Application otherwise dismissed.

FAMILY LAW – APPEAL – STAY – Application for a stay of Full Court orders pending application for special leave to appeal to the High Court of Australia – Subject order remitted the matter back for rehearing – Applicant asserts the Full Court failed to clarify the law in allowing her appeal – Where remitted rehearing is likely to take place next year – The applicant’s prejudice is preparing for the rehearing – Where it likely the High Court would remit any rehearing to the Full Court or a trial judge – Application dismissed.

FAMILY LAW – APPEAL – Leave to appeal – Property – Injunction – Third parties – Where the primary judge extended an injunction granting the respondent wife exclusive occupation over the former matrimonial home on the basis that the wife had an arguable case for relief under both s 79 and s 106B of the Family Law Act 1975 (Cth) (“the Act”) – Where the applicant is a third party who purchased the former matrimonial home from the second respondent husband, unbeknownst to the wife – Whether s 114(1) of the Act is a sufficient head of power to found an injunction against a third party – Where the primary judge clearly had jurisdiction to make an order granting the wife exclusive occupation – Whether the primary judge correctly applied the test for the grant of an interlocutory injunction – Where the wife’s underlying 106B claim is clearly arguable – Adequacy of reasons – Where the urgent reasons of the primary judge are brief, but nonetheless clear – Whether the primary judge failed to consider the matters set out in s 90AF of the Act – Where the injunction was reasonably appropriate and adapted to the eventual effecting of a division of property between the husband and wife – No error identified – Leave to appeal refused – Appeal dismissed.

CROSS-APPEAL – Leave to appeal –Where the cross-appeal was expressly premised upon the appeal succeeding – Where the cross-appeal falls away with the dismissal of the appeal – Leave to cross-appeal refused – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the appellant seeks to be relieved from the obligation to obtain the transcript – Where the appellant’s evidence seeks to establish she cannot afford the transcript – Where the transcript is not required for the appeal – Where there are no exceptional circumstances to justify the Court funding the provision of the transcript – Appellant relieved of obligation to provide the transcript – Application otherwise dismissed.

FAMILY LAW – APPEAL – Where the mother appeals from final parenting orders – Where the orders provide for the children to spend confined time with the mother once every three months under supervision – Where the mother does not make clear the nature of the alleged bias by the primary judge – Where the alleged prejudgement by the primary judge of the mother’s mental health is rejected – Where the refusal of the mother’s adjournment application neither constituted nor resulted in her denial of procedural fairness – Where the complaint of factual errors lack specificity and are rejected – Where the complaint of discretionary errors is rejected – Where the complaint of inadequate reasons is not addressed in the Summary of Argument and is rejected – Appeal dismissed – Where the father did not seek an order as to costs – Where the mother’s penury precludes any costs order against her in favour of the Independent Children’s Lawyer – No order as to costs.

FAMILY LAW – APPEAL – PARENTING AND PROPERTY ORDERS – Discrete issues for primary judge – Apprehended bias – Interventions by primary judge did not undermine presentation of appellant’s case – Complaint of errors of law leading to miscarriage of justice – Failure to consider evidence – No procedural unfairness from the primary judge’s refusal to accept amended proposed orders after close of evidence – Where many of the appellant’s particulars stem from a misunderstanding of the reasons and orders – No error established – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Appeal from final property settlement orders – Where the husband complains of not being legally represented at trial after his lawyers were allowed to withdraw at the start of the trial – Where the husband did not apply for an adjournment of the trial – Where the suggestion the primary judge should have considered appointing a litigation guardian for the husband is rejected – Where the solicitors for the husband currently accept and act on his instructions without a litigation guardian – Where the husband argues the primary judge should have joined his two witnesses as parties to the proceedings – Where no application for joinder was made by the husband – Where the husband’s contention of erroneous factual findings by the primary judge is rejected – Where the grounds complaining the primary judge made mistaken findings which influenced the 10 per cent adjustment in the wife’s favour are unmeritorious – Where the grounds asserting an inadequacy of reasons are rejected – Appeal dismissed – No application for costs.

FAMILY LAW – APPEAL – Appeal from interim parenting orders – Apprehended bias – Discretion – Weight – Where the primary judge did not err in his treatment of s 60CC of the Family Law Act 1975 (Cth) – Appeal dismissed.

FAMILY LAW – APPEAL – Where the father requires leave to appeal from an order dismissing his application to vary final parenting orders pursuant to the principles in Rice v Asplund (1979) FLC 90-725 – Where the father’s complaints as to procedural error are not made out – Where the complaints were, in reality, as to errors of fact and weight – Error of fact established – Where that error is not material to the determination – Where contended errors as to weight are not made out – Where the father’s dissatisfactions as to the role and conduct of the Independent Children’s Lawyer do not identify appellate error – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – Application in an Appeal – Where the father seeks relief from the obligation to obtain the transcript of the primary proceedings – Where the father is currently incarcerated – Where with one exception the transcript would not inform the father’s grounds of appeal – Where the father should not be deprived of the opportunity to prosecute his appeal because he cannot obtain the transcript – Where the application is not opposed – Application granted.

FAMILY LAW – APPEAL – Appeal and cross appeal from final property orders – Where the parties agreed the primary judge erred – Primary judge considered material that was not relied on – Finding of fact contrary to the evidence – Orders for sale of property and division of proceeds expressed as lump sum instead of percentage – Error established – Appeal and cross appeal allowed.

FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the decision of the appeal registrar to dismiss her Application in an Appeal seeking reinstatement of an abandoned appeal – Where the failure to file the draft appeal index in time was the fault of the applicant’s previous lawyers – Where the applicant sought to immediately correct the default – Where the respondent admits the appeal evinces merit in some respects – Where there is more prejudice to the applicant if the appeal is not reinstated than to the respondent if the appeal is reinstated – Appeal reinstated.

FAMILY LAW – APPEAL – Property – Where the appellant contends that the primary judge erred in removing a contended mortgage from the final asset pool – Assertions of factual error – Where contrary evidence does not of itself establish error – Where the evidence was not before the primary judge – Where the appellant is bound by his conduct at trial – No error identified – Appeal dismissed – Costs ordered in a fixed sum.

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 appellant appeals from final parenting orders – Where the appealed orders were made with his consent – Where the appellant alleges his consent to the appealed orders was not properly informed – Where the appellant is bound by the manner in which his lawyers conducted the proceeding for him – Where the grounds of appeal lack reasonable prospects of success – Appeal summarily dismissed.

FAMILY LAW – APPEAL – Costs – Where the primary judge made a personal costs order against the appellant firm that represented the second respondent wife in the primary proceedings – Where the appellant’s only opportunity to be heard was in response to an email from the primary judge’s chambers seeking two paragraphs of submissions on that discrete issue – Procedural fairness – Where the appellant was denied a reasonable opportunity to provide submissions or give evidence – Where the first respondent husband conceded the appeal – Appeal allowed – Costs order set aside.

FAMILY LAW – APPEAL – Property – Where the primary judge delivered reasons for judgment and determined that there should be a 65/35 division of property in the husband’s favour – Where the primary judge mistakenly relied upon the husband’s contentious balance sheet – Where the primary judge made arithmetical errors – Where the primary judge delivered supplementary reasons and purported to re-open the proceedings to accept the correct balance sheet into evidence and amend the arithmetical error – Where the fundamental error of assessing the parties’ contributions by reference to a materially incorrect pool cannot be assumed to automatically flow across to the correct pool – Appeal allowed – Matter remitted for re-hearing – Costs certificates granted for the appeal and the rehearing.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the applicant seeks an extension of time in which to file a Notice of Appeal – Where the application is opposed by the respondent – Where the applicant advances no satisfactory explanation for the 10 month delay – Where the appeal enjoys no merit – Where no prejudice can be suffered by the dismissal of an unmeritorious appeal – Application dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – Where two business days before the hearing of the appeal before the Full Court the appellant filed an application seeking disqualification of two members of the bench – Separate reasons provided by each judge – Where the appellant alleges apprehended bias of a judge in the appeal – Where the appellant failed to articulate how an objective bystander could reasonably apprehend bias of the judge – Application relating to the disqualification of the judge dismissed.

FAMILY LAW – APPEAL – ARBITRATION – Property – Where the appellant seeks to appeal the decision to dismiss his application for review of a registered arbitral award pursuant to s 13J of the Family Law Act 1975 (Cth) – Where the grounds of appeal do not identify any error in respect to a question of law on the part of the primary judge – Where the complaints raised by the appellant merely reflect the submissions made on review before the primary judge – Adequacy of reasons – Where the appellant complains that there was no transcript from the arbitral hearing – Where the appellant was at liberty to supplement that deficiency in the record, but did not do so – Where the absence of transcript is not a passport to a new trial – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal in a fixed sum.

FAMILY LAW – APPEAL – COSTS – Where costs orders were made in the absence of the appellant – Where the appellant appeals those orders – Where it is contended that given the existence of a substantive appeal, it was practically reasonable to request that the appellate court address the primary judge’s costs judgment – Where the appellant has not exhausted all reasonably available remedial options at first instance before appealing the primary judge’s decision – Costs appeal dismissed.

FAMILY LAW – APPEAL – Actual bias – Apprehended bias – Where the appellant contended that the primary judge’s determination was tainted by actual or in the alternative apprehended bias – Where the appellant contended that the way in which the primary judge conducted the proceedings denied the appellant a fair hearing – Where the appellant contended that the primary judge prejudged the contributions and the s 75(2) adjustment – Where the primary judge did not make findings of fact on contested issues instead dismissing the appellant’s relief as a consequence of the appellant’s repeated failure to comply with directions – Appeal dismissed – Costs ordered in favour of respondent in a fixed sum.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – Where two business days before the hearing of the appeal before the Full Court the appellant filed an application seeking disqualification of two members of the bench – Separate reasons provided by each judge – Where the appellant alleges apprehended bias of the presiding judge in the appeal – Where the appellant failed to articulate how an objective bystander could reasonably apprehend bias of the presiding judge –Application relating to the disqualification of the primary judge dismissed.