Judgments

FAMILY LAW – APPEAL – COSTS – Where the wife seeks her costs following the husband’s unsuccessful Application in an Appeal to extend time to appeal – Where the wife seeks her party/party costs – Where the husband does not oppose a costs order but disputes the quantum claimed – Where costs are fixed – Where the husband is to pay the wife’s costs in a fixed sum.

FAMILY LAW – APPEAL – PARENTING – Applicant seeking leave to file an application in an appeal out of time – Application in an appeal for review of orders refusing reinstatement of a notice of appeal – Where the grounds of appeal are excessively voluminous and repetitive – Where such review application has no real prospects of success – Where no prejudice to applicant is made out – Leave refused – Applicant to pay respondent’s costs.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed two applications in an appeal – Where the first application seeks review of the appeal registrar’s decision to reject and not file the applicant’s Notice of Appeal – Where the intended appeal would commence new proceedings in contravention of the vexatious litigant injunction previously made against the applicant – Where the second application seeks leave to appeal against orders made in December 2021 – Where the December 2021 orders were amended in February 2023 under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where there is no evidence to explain the applicant’s delay in appealing the orders – Where the material upon which the applicant relies is not sufficient to persuade an exercise of discretion in his favour – Applications dismissed.

FAMILY LAW – APPEAL – PARENTING – Where the father appeals from interim parenting orders – Where reasons for judgment given in short form as the appeal raises no question of general principle – Where ex tempore reasons should not be picked over – Where the outcome is not patently unjust or unreasonable – Where no ground of appeal succeeds – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – PARENTING – Where it was not disputed at the appeal hearing that the mediation was conducted by a “family dispute resolution practitioner” – Where the primary judge erred by using information given at the mediation, the orders proposed by the mediator and the mother’s refusal to agree in a very significant way – Where the error was material to the outcome – Appeal allowed – Orders of the primary judge set aside – By consent, parenting orders made – Costs certificate granted to the mother.

FAMILY LAW – APPEAL – Property – Where the respondent brought significant assets to the relationship – Whether the increase in property value should be treated as an equal contribution by each party or holistically – Whether the primary judge erred in failing to consider the appellant’s work on renovations as a contribution where the renovations added no value to the home – Whether the appellant caring for the ’respondent’s child pre-cohabitation is a s 90SF(3)(r) factor – Whether the ’respondent’s occupation of property post-separation was a contribution by the appellant – Appeal allowed – Re-exercise of discretion.

FAMILY LAW – APPEAL – Property – Where the appellant contended that the primary judge erred in assessing and weighing contributions – Where the primary judge undertook a holistic assessment on direct and indirect contributions – No error established – Where the appellant contended that the primary judge made miscalculations – Where the respondent filed a Notice of Cross Appeal contending arithmetical errors – Where the primary judge’s percentage findings did not translate to the orders – Error of fact – Where the appellant was to actually receive 15 per cent less than the payment ordered which the primary judge had found to be just and equitable – Error of law established – Inadequacy of reasons – Where the primary judge’s reasons were adequate and involved a degree of brevity commensurate with the issues – Appeal and cross appeal allowed – Re-exercise of discretion – Costs certificates issued to both parties.

FAMILY LAW – APPEAL – Application in an appeal – De novo hearing – Where the husband sought to review the appeal judicial registrar’s decision to not accept the husband’s Notice of Appeal for filing on the grounds of it being an abuse of process – Where the husband’s appeal had previously been deemed abandoned and reinstatement of the appeal was refused – Where the husband failed to engage with the principles of abuse of process – Where the Court is satisfied that the filing of the new Notice of Appeal would be an abuse of process – Application dismissed – Costs ordered against the husband in a fixed sum.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal from orders dismissing the father’s application for recusal, the father’s oral application to file a further contempt application against the mother and the Independent Children’s Lawyer (“ICL”) and against a costs order – Allegations of apprehended bias – Allegations of denial of procedural fairness – Allegations that the dismissal was unjust and unreasonable – Adequacy of reasons – Where the father’s arguments were misconceived – No error established and no any substantial injustice if leave to appeal was refused – Leave to appeal refused – Appeal dismissed – Father ordered to pay the mother’s costs in a fixed sum of $7,500.

APPEAL – APPLICATION IN AN APPEAL – Where father sought leave to adduce further evidence – Where evidence said to demonstrate the necessity of the contempt application against the mother – Evidence incapable of remedying the deficiencies in the contempt application nor capable of establishing a prima facie case of contempt – Where the evidence would not have affected the outcome of the appeal – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks the release of the audio of the proceedings before the primary judge or that the Court listen to the entirety of the transcript in order to understand his submissions on appeal – Where the appellant contends that the primary judge failed to him procedural fairness – Order made for the appellant listen to the audio in the registry and identify the relevant parts of the transcript – Application in an Appeal otherwise dismissed.

FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where this Court found error in the primary judge’s reasons – Where the parties agreed that this Court should re-exercise the discretion – Where orders were made for further written submissions to be filed as to matters that have occurred since the trial relevant to the property proceedings – On the re-exercise of discretion, the wife is to receive 57.5 per cent of the property available for division and the husband is to receive 42.5 per cent.

FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders where child is to spend no time with the appellant – Where the appellant challenges the primary judge’s finding that he is an unacceptable risk of harm to the child – Where appellant contends counsel incompetent ­– Where the appellant contends the primary judge erred in consideration of the extensive domestic violence – Where the appellant’s Summary of Argument fails to engage with grounds of appeal – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

APPEAL – COSTS – Where respondent seeks costs on an indemnity basis – Where appeal doomed to fail – Indemnity costs order made in favour of the respondent.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Property – Summary dismissal – Where the wife seeks leave to appeal from the primary judge’s dismissal of her application to summarily dismiss and/or permanently stay the husband’s application for property settlement orders – Whether the wife will suffer substantial injustice if leave is refused – Where the fact the wife may be required to litigate the disputed claims is not injustice – Where it is unnecessary to consider the proposed grounds of appeal, although none appeared to enjoy sensible prospects of success – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – Where appellant sought that the Court provide the transcript of the proceedings before the primary judge, variation of procedural orders and for the appeal listing to be vacated – Where unusual circumstances may require the Court to provide the transcript – Where formal orders with respect of the provision of the transcript cannot be presently made – Listing of the appeal vacated – Application otherwise dismissed.

FAMILY LAW – APPEAL – Property – Practice and Procedure – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where several of the husband’s grounds declare his denial of the contents of paragraphs in the reasons for judgment – Where these grounds are rejected as being incompetent – Where the husband makes specious allegations against the primary judge – Where these grounds are summarily rejected – Where the husband’s complaints of judicial bias does not enjoy any reasonable prospect of success – Appeal dismissed.

FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where the primary judge made orders for the children to live with the mother and she have sole parental responsibility and for the father to spend only professionally supervised time with them – Where the father suffered from mental health difficulties – Whether there was unacceptable risk of direct or indirect psychological harm to the children – Where the primary judge found the father presents a psychological risk to the children – Whether the primary judge gave adequate reasons – Whether the primary judge failed to have regard to or placed insufficient weight on certain evidence – Whether the primary judge gave excessive weight to certain evidence – Whether the primary judge’s decision was manifestly wrong – Appeal dismissed.

APPEAL – PROPERTY – Where the father appeals property settlement orders providing for a 55/45 per cent adjustment in favour of the mother – Whether the primary judge failed to give adequate reasons – Where the father contended that his contributions should have been assessed holistically – Where the primary judge did precisely that – Where the father’s complaint that the primary judge failed to have regard to or placed insufficient weight on certain evidence is devoid of merit – Where the father’s complaint that the primary judge erred in law is rejected – Appeal dismissed.

COSTS – Where the father’s appeal from final parenting and property orders was wholly unsuccessful – Where the mother seeks her costs of the appeal calculated in accordance with the scale prescribed by Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Scale costs particularised by successful respondent only on a solicitor/client basis – Where order for costs is sought, costs should be particularised on a party/party basis at scale and on any other basis on which they may be sought – Order for costs made in accordance with scale in an amount fixed by the Full Court approximating party/party costs.

APPEAL – Where the grounds of appeal are numerous, prolix, repetitive, confused and confusing – Where the grounds of appeal are not properly addressed or advanced in the Summary of Argument – Appeal dismissed.

FAMILY LAW – APPEAL – Property – Practice and procedure – Where the appellant was invited to show cause why the two appeals should not be summarily dismissed – Where the appellant failed to appear – Where the appeals are brought from separate suites of orders made in a financial cause between the respondent spouses – Where the appellant is a business associate of the husband – Where the first appeal lies from interlocutory orders made by the primary judge – Where the appellant lacks standing to prosecute part of the first appeal – Where the appellant needs the grant of leave to appeal in the remaining part of the first appeal – Where the appellant does not plead the facts upon which such leave is sought – Where the second appeal lies from orders made to finally determine the financial cause between the respondent spouses – Where the appellant has no right to challenge orders that do not affect him – Where the appeals are incompetent – Appeals summarily dismissed.

FAMILY LAW – APPEAL – Application in an Appeal – Expedition – Where the mother appeals from orders permitting the father to travel overseas with the parties’ elder child – Where the orders provide for the father to depart with the child in two days – Where the mother filed an application to stay the appealed orders pending the determination of the appeal – Where the stay application is listed before the primary judge tomorrow for mention only – Where if the stay application is not determined by tomorrow the appeal will be rendered nugatory – Where the mother filed an application to expedite the appeal hearing – Where the mother made an oral application to stay the appealed order in reliance on s 38 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the appeal can be heard next week – Where the father could not persuasively complain of the temporary stay of the appealed orders – Orders made – Where the primary judge’s orders are stayed pending the determination of the appeal – Where the hearing of the appeal is expedited.

FAMILY LAW – APPEAL – APPLICATION FOR ADJOURNMENT – Where the applicant sought an adjournment of the appeal – Where the applicant had ample time to prepare for the appeal, there is no new material relied upon by her, the appeal was expedited at the applicant’s instigation, and there is nothing in the material to support a stay of the appeal pending the determination of proceedings elsewhere – Where the adjournment was not justified and is refused. 

APPEAL – APPLICATION IN AN APPEAL – Where the applicant sought leave to represent the third respondent self-managed superannuation fund (“SMSF”) – Where the applicant is a undischarged bankrupt, is a disqualified person pursuant to the Superannuation Industry Supervisory Act 1993 (Cth) and cannot be a trustee of the SMSF – Where the applicant has a greater member benefit interest in the SMSF – Where the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 prevent a party from being represented by a person other than a lawyer other than in special circumstances – Where there are no special circumstances – Application dismissed. 

APPEAL – LEAVE TO APPEAL – Where the applicant seeks leave to appeal from two orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1), namely, an order made 13 February 2023 enforcing a notice under s 139ZQ of the Bankruptcy Act 1966 (Cth) and an order made 23 February 2023 dismissing an Application in a Proceeding made by the applicant wife – Discussion of the relevant test to determine whether an order is final or interlocutory – Where both orders found to be interlocutory in nature as the orders do not, by their nature, finally determine the rights of the parties – Where leave to appeal refused. 

APPEAL – COSTS – Where the second respondent sought costs of and incidental to the appeal and for expedition of the appeal in the sum of $41,759.65 for King’s Counsel’s fees and $3,193.89 for solicitor’s fees – Where applicant opposes costs being awarded however, if awarded, submits the appropriate quantum should be no more than $24,000 – Where it was not considered reasonable to retain King’s Counsel in the matter – Quantum reduced to reflect junior counsel rates – Costs awarded in the fixed sum of $24,000.

FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge erred in dismissing the appellant’s application to set aside the sale of the former matrimonial home pursuant to s 106B of the Family Law Act 1975 (Cth) – Grounds allege denial of procedural fairness and judicial notice being taken erroneously – Whether the appellant was denied procedural fairness in the bifurcation of proceedings and determination of the s 106B issue in a discrete hearing – No error established in the primary judge’s exercise of discretion in determining the s 106B issue prior to final hearing – Whether the primary judge erred in taking judicial notice of falls in real estate prices – Error did not affect the outcome of the hearing – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the applicant wife sought leave to appeal against property orders requiring her to vacate the respondent’s property – Family violence injunctions – The attribution of weight given to the possibility of homelessness – Where the applicant advanced no proper legal reason for her sole use and exclusive occupation of the respondent’s property – Decision of the primary judge not plainly wrong – No error of fact or law established – Adequate reasons – Application for leave to appeal dismissed – Applicant to pay the respondent’s costs in a fixed sum.

FAMILY LAW – APPEAL – Property – Practice and Procedure – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where several of the husband’s grounds declare his denial of the contents of paragraphs in the reasons for judgment – Where these grounds are rejected as being incompetent – Where the husband makes specious allegations against the primary judge – Where these grounds are summarily rejected – Where the husband’s complaints of judicial bias does not enjoy any reasonable prospect of success – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks leave to circumvent a vexatious litigant injunction to enable her to appeal from orders – Where injunction was previously made prohibiting the applicant from instituting proceedings under the Family Law Act 1975 (Cth) against the father or the Independent Children’s Lawyer without first obtaining leave to do so – Where the primary judge dismissed the applicant’s application to review orders of a registrar prohibiting the recording of proceedings and requiring the preparation of a Family Report – Where appeals only lie from judgments – Where an appeal from the primary judge’s order would fail for lack of merit – Where the intended appeal lacks reasonable ground and is therefore vexatious – Application dismissed.

FAMILY LAW – APPEAL – Appeal from costs order – Quantum of costs – Where the appellant joined the second respondent to the proceedings at first instance and sought orders against her – Where the second respondent was removed from the proceedings following a successful summary judgment application – Findings of fact – Adequacy of reasons – No error established – Appeal dismissed – By consent, the appellant is to pay the costs of the second respondent in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – Application to extend time to appeal from interim parenting orders – Where the time for filing an appeal from the orders lapsed months before – Where the father complains the magistrate was biased – Where no disqualification application was made to the magistrate at the hearing – Where the father alleges deprivation of procedural fairness – Where the father was legally represented at the hearing – Where no evidence upon which the father wanted to rely at the hearing was rejected – Where there was no objection taken to any evidence adduced by the mother at the hearing – Where the father is bound by the way in which the case was conducted by his lawyers – Where the father did not identify mistaken findings – Where the findings made by the magistrate were apparently uncontentious – Where the father’s complaint that not all evidence was properly considered is mere speculation – Where the father’s complaint of inadequate reasons seems specious – Where the proposed grounds of appeal lack merit – Where the father’s explanation for his extensive delay is inadequate – Application dismissed.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Provision of transcript – Factors relevant in support of an application for the provision of transcript at the Court’s expense – Whether there are merits in the grounds of appeal which justify the provision of transcript – Complaints as to conduct of lawyer at trial – Trial lasting only 61 minutes – Orders for Court to provide transcript at first instance – Whether either or both parties required to pay costs of transcript reserved until conclusion of appeal.

FAMILY LAW – APPEAL – PARENTING – Where the application before the primary judge was brought on urgently for hearing because the child faced medical and dental treatment about which the parties could not agree – Where the primary judge ordered the mother to have sole parental responsibility for the child’s health and medical treatments and for the appellant to pay her costs of the application – Procedural fairness – Allegations of actual and apprehended bias – Challenges to factual findings – Whether the orders are in the best interests of the child – No error established – Appeal dismissed – Appellant to pay the costs of the respondent in a fixed sum.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant contested the further five per cent adjustment in favour of the respondent and the form of the orders, which left the appellant with the bulk of his share of assets as superannuation – Adequacy of reasons – Error of law – Whether the outcome was disproportionate and plainly unjust – Where neither party sought a superannuation splitting order – No error established – Appeal dismissed – Appellant to pay the costs of the respondent in a fixed sum.

FAMILY LAW – APPEAL – FINANCIAL AGREEMENT – Where the primary judge set aside the spouses’ financial agreement pursuant to s 90K(1) of the Family Law Act 1975 (Cth) (‘the Act’) – Where the primary judge found the second respondent legal corporation was negligent and liable in damages to the husband – Where the proceedings at first instance are currently adjourned for assessment of the damages and determination of the spouses’ property settlement – Where the husband asserts the primary judge erred by relying upon s 90K(1)(d) of the Act to set aside the financial agreement – Where the husband seeks a remedial order to confirm the financial agreement is set aside, but by deleting the reference to s 90K(1)(d) of the Act within the order – Whether the second respondent has standing to contest the appeal – Where the Court accrued jurisdiction at first instance to determine the damages claim conjunctively with the challenge to the financial agreement – Where the common law causes of action relate to the concurrent and pending matrimonial cause between the spouses – Where the text of the appealed order does not match the reasons for making it – Where the reasons of the primary judge make clear the financial agreement was set aside because it is void for uncertainty – Where the husband appeals on a false premise – Where the husband fails to demonstrate an appealable error – Where the grammatical errors within the appealed order may be corrected by resort to the slip rule – Appeal dismissed – Appealed order varied to correct error within its text – Notice of Contention dismissed – Costs – Where the appeal was pointlessly pursued – Husband to pay costs of the wife and the second respondent in relation to the appeal in a fixed sum.

FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Appeal against dismissal of application to commence proceedings out of time – Section 44 of the Family Law Act 1975 (Cth) – Hardship – Where it was open to the primary judge to determine that dismissing the application would not occasion hardship upon the applicant – Where the appeal lacks merit – No error sufficient to warrant appellate intervention – Leave to appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – Where the primary judge summarily dismissed the proceedings for want of compliance with court orders pursuant to r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant contends that r 1.34 permits a party to seek relief from an order under r 1.33, but there is no equivalent rule that applies to r 10.27 – Where the appellant contends that the primary judge erred by taking into account the possibility of reinstatement – Where it was not put to the primary judge at the hearing – Challenges to weight – No error established – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the husband’s appeal from final property settlement orders was unsuccessful – Where costs submissions were sought from the parties – Where the wife seeks her costs of the appeal on an indemnity basis, or alternatively, on a party/party basis in a fixed sum – Where the wife relies on offers of settlement made to the husband – Conduct of parties – Where the appeal was wholly devoid of merit – Where the circumstances do not justify an indemnity costs order – Where costs ordered on a party/party basis in a fixed sum.

FAMILY LAW – APPEAL – Parenting – Practice and procedure – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where grounds upon which a discretionary judgment may be challenged on appeal are well known – Where the single ground of appeal does not fall within the rubric of those principles – Where the appeal is bereft of any legitimate contention of appealable error – Where the appeal is incompetent – Where the appeal has no reasonable prospect of success in its current form – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from final property settlement orders – Procedural fairness – Where the appellant asserts he was denied procedural fairness – Where the appellant was self-represented at times throughout the trial – Length of trial – Where the matter was heard over four years – Where reasons for delay cannot be imputed to the primary judge – Time constraints on submissions not unreasonable – Where appellant was incarcerated for entire period of trial – Where the appellant’s physical location during the trial does not amount to procedural unfairness – Where the primary judge made accommodations for the appellant to understand and answer the case – Where various asserted issues neither individually nor cumulatively constitute procedural unfairness – Whether exercise of discretion was unjust, inequitable and/or plainly wrong – Where no error in the exercise of discretion is found – Adequacy of reasons – Where complaint about the primary judge’s reasons relate to treatment of parties’ assets overseas – Where the primary judge took into account existence of assets overseas – Where no ground of appeal has merit – Appeal dismissed – Slip rule – Where the primary judge’s orders do not reflect her intention – Where the primary judge intended for the first respondent to assume responsibility for mortgage liability and to transfer her interest in companies to the appellant – Where appellant did not approach the primary judge to amend the orders under the slip rule – Exercise of r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by appellate court – Costs ordered.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Appeal in relation to parenting orders – Where the appellant seeks leave to issue subpoenas – where the request is in aid of a forthcoming application to adduce further evidence – Where the appellant seeks leave to issue subpoenas to two police entities – Where the documents sought to be produced under subpoena are neither necessary, appropriate nor able to demonstrate error on the part of the primary judge – Where the appellant seeks leave to issue subpoenas to the child’s former day-care centre, current school and relevant health services – Where the appellant is unable to demonstrate that the documents which she seeks to obtain via leave to issue subpoenas are documents that should be before the Court on appeal to demonstrate error on the part of the primary judge – Leave refused.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks leave to appeal from a decision of the primary judge prohibiting the parties from cross-examining one another – Where an injunction was previously made prohibiting the mother from instituting proceedings under the Family Law Act 1975 (Cth) against the father or the Independent Children’s Lawyer without first obtaining leave to do so – Where appeals only lie from judgments – Where the subject order was no more than a procedural ruling – Where the order does not determine any right enjoyed by the applicant – Where the proposed appeal lacks reasonable ground and is therefore vexatious – Application dismissed.

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

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

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.

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.

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.

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.

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.

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.

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.

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.

FAMILY LAW – APPEAL – PROPERTY AND SPOUSAL MAINTENANCE – Appeal from orders made under Part VIII of the Family Law Act 1975 (Cth) – Where the primary judge ordered, inter alia, the appellant husband to pay to the respondent wife three years’ worth of arrears of spousal maintenance – Where there was no operative spousal maintenance order – Where interim orders were made in November 2011 for weekly payments of spousal maintenance – Where the financial cause between the parties was dismissed in March 2014 – Where the proceedings were re-commenced in July 2014 but the interim order for spousal maintenance was not revived – Where the primary judge was in error to assume the interim spousal maintenance order subsisted without interruption from November 2011 until the trial in February 2023 – Where the respondent conceded the erroneous calculation – Where the parties agreed the error could be rectified by variation of the appealed orders – Where the parties did not address the arithmetical error made by the primary judge in calculating the net value of the parties’ assets – Where the sum payable by the appellant to the respondent is corrected as permitted by s 36(1)(a) and s 36(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the respondent submitted the re-calculated sum should be increased by adding accrued interest – Where that submission is rejected – Where there are no circumstances to justify departure from the ordinary rule that the parties should bear their own costs of the appeal – No order as to costs – Appeal allowed.

FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge erred in adopting a two pool approach to the adjustment of the parties’ property in treating the parties’ superannuation as separate to the remaining assets – Where both parties advanced a one pool approach – Inadequate reasons for departing from a one pool approach – Appeal allowed – Re-exercise of discretion – Consideration of contributions and future needs – Finding of 65 per cent adjustment in favour of the appellant as just and equitable – 65 per cent to the appellant and 35 per cent to the respondent adjustment to apply to the totality of the parties’ property, including superannuation – Written submissions as to costs.

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders – Where the appellant is self-represented – Where the grounds of appeal do not expose any complaint of appealable error – Where the appeal enjoys no reasonable prospect of success in its current form – Where the appellant has 14 days within which to file an Amended Notice of Appeal in default of which the appeal is summarily dismissed – Orders made.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PARENTING – Interim parenting orders – Appeal against orders for sole parental responsibility and injunctions – No error identified – Where insufficient doubt attends the orders sought to be challenged – Where no substantial injustice would result if leave is not granted – Application for leave to appeal dismissed.