Division 1 - Appellate division
FAMILY LAW – APPEAL – Circumstances in which the parties’ child ought be permitted to travel internationally with either of the parties – Where an order was made for the appellant to own real property as her residence in Australia as a condition precedent to international travel with the child – Whether order was made ultra vires – Where there is no obvious, direct and logical connection between the order and the care, welfare or development of the child – Order set aside – Procedural fairness – Where the order appealed against was within the factual ambit of dispute as defined by the parties but the failure to seek the parties’ input was a denial of procedural fairness – Adequacy of reasons – Where the primary judge’s systematic cataloguing of matters as to risk with extensive reference to the evidence before her, cogently charted the pathway by which the decision was reached to make orders – Jones v Dunkel – Where there was a real controversy about the matters in respect of which no evidence was called and a Jones v Dunkel inference followed –– Where there was no explanation for the evidence being absent – Weight – Where the primary judge’s discretion did not miscarry and findings were not against the weight of the evidence – Appeal allowed in part – Re-exercise – No order made in place of the order set aside – Costs certificates issued.
FAMILY LAW – APPEAL – PROPERTY – Where the primary judge dismissed an application pursuant to s 44(3) of the Family Law Act 1975 (Cth) to bring property settlement proceedings out of time – Where appeals from such decisions are prohibited pursuant to s 26(2)(a)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) – Where likewise an appeal from a refusal to adjourn is also prohibited pursuant to s 26(2)(b)(ii) of the FCFCOA Act – Where the appeal is incompetent – Appeal dismissed.
FAMILY LAW – APPEAL – PROPERTY – Appeal from property orders for sale of former matrimonial home and division of proceeds of sale – No procedural unfairness in appellant proceeding self-represented after electing to terminate retainer of his legal representatives – Appellant had the opportunity to consider and address the respondent’s proposed orders but failed to do so – Orders of the primary judge not manifestly unjust – Primary judge’s reasoning process was clearly expressed – None of the grounds have merit – Appeal dismissed – Appellant to pay the respondent’s costs in fixed sum.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant sought an extension of time to file Amended Notice of Cross-Appeal and Summary of Argument on the date for compliance – Applicant has taken no steps to prepare the documents – Applicant has had difficulties with medical issues and weather – No evidence of the effect of such difficulties on compliance – No adequate evidence explaining non-compliance – Notice of Cross-Appeal fails to identify error on the part of the primary judge – Cross-appeal has no merit – Application dismissed – Cross-appeal summarily dismissed – Applicant to pay the respondent’s costs in a fixed sum.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Applicant seeks order that the Court provide the transcript – Appeal from property orders – Applicant says she cannot afford the transcript – Applicant had the funds available at least for some time – Transcript not required for most grounds of appeal – No exceptional circumstances to justify the Court funding the provision of transcript – Application dismissed – Applicant relieved of the obligation to provide the transcript.
FAMILY LAW – APPEAL – Application in an Appeal – Where the appellant sought to adduce further evidence – Where the further evidence was as to events that post-date the hearing – Application dismissed.
APPEAL – PROPERTY – Where the appellant raises grounds as to a failure to afford procedural fairness, error of principle, and discretionary errors – Whether the primary judge erred in excluding items of property of the parties from the balance sheet without making findings as to the value of such items – Whether the primary judge erred in providing adequate reasons – Where, in reality, the appellant was complaining that her contentions were not given decisive weight – Appeal dismissed.
FAMILY LAW – APPEAL – Procedural fairness – Where the appellant asserts that the primary judge’s making of an order for the immediate commencement of unsupervised time was a denial of procedural fairness – Ambit of the litigation framed by the parties – Where the primary judge significantly deviated from the ambit of the dispute as defined by the parties such that it constituted a denial of procedural fairness – Where the denial of procedural fairness is dispositive of the outcome of the appeal – Adequacy of reasons – Where the inadequacy of the primary judge’s reasons informs the determination that there was a denial of procedural fairness – Where the reader of the reasons is not aware to what extent events of significance informed the parenting orders or approach to the safeguards which were sought as preconditions to unsupervised time – Where the primary judge’s reasons do not reveal any analysis of whether the primary judge accepted or rejected the appellant’s argument that the respondent’s conduct would place the children at risk – Appeal allowed – Matter remitted for rehearing – Costs certificates issued.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought to adduce evidence that was reasonably available at time of trial – Where the proposed evidence would not have produced a different outcome at the trial – Application in an Appeal dismissed.
APPEAL – PARENTING – Where the appellant mother alleges procedural unfairness and bias on the part of the primary judge – No unfairness or bias established – Where none of the other grounds of appeal relied upon were successful – No error established on the part of the primary judge – Appeal dismissed – Each party to bear their own costs.
FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the appeal was wholly unsuccessful – Application for costs by the respondent to the appeal – Where the appellant opposes the quantum of costs sought by the applicant for costs – Where there are justifying circumstances to make a costs order – Where the costs sought are not party/party.
FAMILY LAW – APPEAL – Application in an Appeal – Where the respondent sought to adduce further evidence – Where most of the further evidence was before the primary judge and/or events that post-date the hearing – Application dismissed.
APPEAL – Leave to appeal – Where the appellant sought to appeal an order appointing a litigation guardian for the husband – Where the appellant contended error by way of denial of procedural fairness, error by admitting evidence objected to and connected errors, inadequacy of reasons and discrete error of fact – Where there is no merit to the appeal – Where the Court does not find that substantial injustice would result if leave to appeal were refused – Leave to appeal refused – Appeal dismissed – Costs ordered as agreed or assessed.
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.
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.
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.
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.
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.
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.
FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the parties entered into a contract to purchase property – Where the trial judge ordered the parties to complete the purchase – Dispute as to one of the consequential orders for the mechanisms of repaying the mortgage – Orders required repayments from a re-draw account – Amount in dispute no more than seven per cent of the assets of the parties – Wife conceded husband will receive 40 per cent of the assets of the parties – More than sufficient assets to make any appropriate adjustments when making final orders – No substantial injustice if leave refused – Leave refused – Appeal dismissed – Applicant to pay the respondent’s costs.
FAMILY LAW – APPEAL – Powers and discretion of Full Court – Where the appeal was allowed and the parties and Independent Children’s Lawyer were invited to file submissions in respect of whether the matter ought to be remitted for rehearing – Whether the Full Court ought re-exercise its discretion – Where controversial fresh evidence is likely to be adduced – Matter remitted for rehearing before a judge of Division 2, other than the primary judge.
FAMILY LAW – APPEAL – Costs – Where the parties were invited to file written submissions in respect to the issue of costs on the appeal – Dispute resolution strongly encouraged – Costs certificates granted to the parties and Independent Children’s Lawyer in relation to the appeal, but not the rehearing.
FAMILY LAW – APPEAL – PARENTING – Whether the trial judge erred in the exercise of discretion – Whether the trial judge failed to give adequate weight where appropriate – Where the appellant is seeking more time with the child – Dispute over holiday time allocation –Where the child is quite young – Appeal allowed in part – Re-exercise of discretion – Orders varied.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks adjournment until after criminal proceedings finalised – Applicant submits appeal will prejudice his criminal proceedings – No further cross-examination or re-examination on appeal – But for an application to adduce further evidence the appeal would already have been heard – Other parties entitled to have the appeal heard expeditiously – Not in the best interests of the children to grant a further adjournment – Application refused.
FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed an Application in an Appeal to set aside orders made in his absence – Where the applicant did not have a reasonable excuse for failing to appear in the first instance – Where the applicant could not demonstrate a reason to suspect the result might have been different had he appeared and been able to present the case he intended – Where this is the fourth time in four months the applicant has unsuccessfully tried to initiate an appeal from final property settlement orders – Where the Court has the power to make orders that prevent an abuse of its process and protect the integrity of its functions – Where the Court will no longer exercise its appellate jurisdiction in this suit unless compelled to do so by prerogative writ of mandamus issued by the High Court of Australia – Order made permanently staying this appeal suit – Application dismissed.
FAMILY LAW – APPEAL – RECUSAL APPLICATION – Application made for recusal on the basis of apprehended bias – Where the applicant father filed an Amended Application in an Appeal on 29 November 2023 seeking the recusal of one of the primary judges comprising the Full Court – Where the relevant test is well established by Ebner v Official Trustee in Bankruptcy  HCA 63, Johnson v Johnson  HCA 48 and QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs  HCA 15 – Where the test is not satisfied – Application dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s appeal was deemed abandoned due to his failure to file a draft appeal index within the time prescribed by r 13.14(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where one hour before the appeal book index was due the applicant lodged for filing an Application in an Appeal seeking an extension of time within which to file it – Where the appeal registrar rejected the Application for filing – Where the Application could not have been served, heard and determined within the time the appeal book index was due and it would have been futile to accept the Application – Where no prejudice could accrue to the respondent by the appeal’s reinstatement after such a short interlude of abandonment – Where the respondent sought security for her costs of the appeal – Security for costs ordered – Application to reinstate appeal granted.
FAMILY LAW – – LEAVE TO APPEAL – Property - Interim costs order for litigation funding – Partial property settlement order - Where application for adjournment refused - Where the applicant alleges procedural unfairness as a result of comments in argument – Test for partial property settlement – No substantial injustice – Leave to appeal is refused
FAMILY LAW – APPEAL – Application in an Appeal – Where the appellant sought to adduce further evidence – Where the further evidence was available to the appellant at the time of the trial – Where the Court is not satisfied that the evidence has any bearing on the appeal – Application dismissed.
APPEAL – Where the grounds of appeal as presented in the Notice of Appeal and/or the appellant’s Summary of Argument are difficult to ascertain – Where the appeal is from the exercise of discretion – Where the grounds of appeal appear to relate to error on part of the primary judge in findings made in relation to money that was contended to be missing, family violence, the appellant’s gambling and the appellant’s credit – Where no error is established – Where the appellant also contended that his solicitor at trial failed to present his case – Where the Court does not find that there was a miscarriage of justice occasioned by the conduct of the solicitor – Appeal dismissed – Costs ordered in a fixed sum.
FAMILY LAW – APPEAL – 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.
FAMILY LAW – APPEAL – Relocation – Where the primary judge made orders permitting the respondent to relocate to Country D with the child – Where the appellant contended that the primary judge did not follow the statutory requirements mandated by s 65DAA of the Family Law Act 1975 (Cth) – Where the primary judge delivered reasons after the first hearing but did not make any orders – Where the primary judge’s reasons following the second hearing comprise four parts, with Part II being the reasons delivered after the first hearing – Where it would have been preferable for the reasons to systematically have addressed the evidence through the prism of the statutory considerations – Where the primary judge made an order for equal shared parental responsibility but did not thereafter consider s 65DAA – Where the primary judge did not consider the appellant’s proposal on its merits – Where the primary judge treated the respondent’s application for relocation as the primary issue for determination instead of evaluating the competing proposals – Error established – Appeal allowed – Matter remitted for rehearing – Costs certificates issued to both parties.
FAMILY LAW – APPEAL – Application in an Appeal – Reinstatement – Where the appeal was deemed abandoned due to a failure to file the draft appeal index in time – Where the appellant’s solicitor filed an affidavit stating that he inadvertently mistook the date for filing – Where the need for reinstatement is through no fault of the appellant – Where the Notice of Appeal needs amendment and it cannot be said that it is without merit – Where there is more substantial prejudice to the appellant if the appeal is not reinstated – Appeal reinstated – Appellant to file draft appeal index with 72 hours.
FAMILY LAW – APPEAL – Costs – Where the primary judge ordered the appellant husband to pay the respondent wife’s costs in property settlement proceedings – Where the appellant complains the primary judge denied him of natural justice and discretion miscarried – Where the appellant’s complaints are baseless – Where the appellant’s complaint of inadequate reasons is baseless – Where the primary judge regularly exercised discretion under s 117 of the Family Law Act 1975 (Cth) – Where the costs order against the appellant was not incongruent with the primary judge’s findings or established legal principles – 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 amount.
FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against the primary judge appointing a case guardian – Where the ground of appeal does not comply with the Federal Circuit and Family Court of Australia (Rules) 2021 (Cth) r 13.02 – Where a ground of appeal is against an interlocutory order – No leave sought by appellant – Ground abandoned.
APPEAL - PROPERTY – Estoppel – Where the parties entered into a Deed of Settlement following separation – Error by the primary judge in refusing to make a property adjustment order by reason of estoppel – Whether error was material – Error by primary judge did not result in a miscarriage of justice – Where primary judge found it was not just and equitable to make a property adjustment order – no error in applying principles in Stanford v Stanford (2012) 247 CLR 108– Evidentiary basis for the primary judge’s conclusion not squarely addressed by appellant – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.
FAMILY LAW – APPEAL – PROPERTY – Appeal from order requiring husband to pay the wife a lump sum amount to acquire her interest in the parties’ company – Whether the primary judge considered the husband’s capacity to pay the lump sum amount – Whether adequate reasons were given for rejecting husband’s proposal for sale of the company – Multiple judgments delivered – Inappropriateness of delegating responsibility for drafting the nature and form of final orders to the parties – Husband’s capacity to pay was a fundamental and obvious issue requiring consideration – Error established – Matter remitted – No order as to costs as both parties well resourced.
Division 1 - First instance
FAMILY LAW – PROPERTY – Application in a Proceeding – Where husband seeks orders for disclosure as to the transaction for sale of a property – Where the husband seeks orders to restrain the second respondent from dealing with property – Where the only asset of the parties has been sold – Where the husband seeks orders for the sale proceeds in a controlled monies account – Where no particulars as to the application of the sale proceeds – Where no appearance for the first or second respondent – Where the application was served by substituted service – Orders restraining the second respondent from dealing with property – Orders for sale proceeds to be placed in a controlled monies account.
PRACTICE AND PROCEDURE – Joinder – Where husband seeks the joinder of the wife’s father – Whether the wife’s father was previously joined to the proceedings – Where proposed party has played active role in proceedings to date – Orders made joining wife’s father as second respondent.
FAMILY LAW – PARENTING – Final – Where there is high conflict and no trust between the parents – Where the older children have lived with the father and the younger children have lived with the mother – Where the oldest child killed a pet and the Court finds both parents failed to adequately manage this issue – Both parents seek primary care of all four children – Where the expert and the Independent Children’s Lawyer propose equal time – The Court determines equal time is not in the best interests of the children nor reasonably practicable pursuant to s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) – Where the ultimate conclusion about the children’s best interests is a “least worst” determination – It is ordered the children live with the father and spend significant and substantial time with the mother – Where an order for parenting coordination is sought pursuant to s 13C of the Act – Where the Court has made the order for parenting coordination after considering seeking the advice of a nominated family consultant pursuant to s 11E of the Act.
FAMILY LAW – COSTS – Where final orders were made to finalise the property and parenting proceedings between the parties – Where the applicant’s application to set aside a Binding Financial Agreement was unsuccessful – Where the respondent’s application for an order for costs is dismissed – where there is no order as to costs in relation to the proceedings, including the application for costs.
FAMILY LAW – PROPERTY – Application by husband for the alteration of property interests – Where there are evidentiary deficiencies on the cases of both parties – Contributions – Dispute as to add-backs to the pool – Dispute as to status of advancements – Where it is just and equitable to adjust the parties’ net property interests as to 51 per cent to the husband and 49 per cent to the wife.
FAMILY LAW – CHILDREN – Interim Hearing – best interests of a child - with whom a child lives – parental responsibility – father unilaterally withheld children alleging child made disclosure to medical practitioner – objective evidence to the contrary - concerns regarding father’s credibility and protective capacity – father did not inform Court Child Expert or mother of a further different disclosure made by the child about a step sibling to a teacher – where mother was primary carer – where children have suffered disruption from primary attachment - where court cannot make findings of fact – assessment of risk.
FAMILY LAW – Orders – Mother to have sole parental responsibility in relation to educational and medical or health issues – otherwise parties to share parental responsibility – children live with mother – children spend supervised time with father – mother to obtain referral for child to undergo full paediatric assessment – changeover – conditional recovery order if father fails to hand the children over.
FAMILY LAW – PROPERTY- Where there is an application for removal of caveats– Where that application has in substance been brought previously – Where the removal of caveats would likely further diminish the de facto wife’s interest in the property pool - Where the applicant cannot establish capacity to fund borrowings – Where the applicant provides an undertaking which does not allow for proper protection of the assets - Where the applicant has further exposed properties of the de facto relationship to caveat by another lender –– Where an order is made for costs against the applicant – Where the application for the removal of caveats is dismissed.