Judgments

FAMILY LAW – APPEAL – Appeal from a personal costs order against a legal practitioner – Where the primary judge held that an employed practitioner holding a restricted practising certificate did not have a right to appear at a case management hearing – Where the appellant is a principal solicitor who conducted a legal practice involving the acceptance of legal aid assignments in family law matters from the Legal Services Commission of South Australia – Where the right of practitioners holding restricted practising certificates to appear before federal courts is considered – Whether the employed practitioner’s right to appear was affected by the arrangements between the appellant and the Legal Services Commission of South Australia with respect to the provision of legally aided services in South Australia considered – Where error is established – Where there is a re-exercise of the Court’s discretion – Where the applications for costs are dismissed – Appeal allowed – No order as to costs.

FAMILY LAW – APPEAL – PARENTING – Appeal from interlocutory parenting orders – Where the child had lived with the appellant pursuant to final parenting orders – Where the respondents retained the child and raised allegations of abuse and risk in the appellant’s care – Where the primary judge ordered that the child live with the second respondent pending further order and that the appellant’s time occur under professional supervision – Where the appellant contended that the primary judge failed to properly consider the child’s best interests and failed to give adequate weight to relevant evidence, including the child’s relationship with the appellant, police observations and allegations of coaching – Whether the primary judge’s assessment of risk and weighing of the evidence were open on the material before the Court – Where the appellant contended that the orders were plainly unjust or unreasonable – Where none of the grounds of appeal identify any appealable error made by the primary judge – Appeal dismissed – Appellant ordered to pay the costs of the respondents and the Independent Children’s Lawyer in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks to review the decision of a senior appeal judicial registrar rejecting his Notice of Appeal for filing – Where the Notice of Appeal sought to challenge parenting orders that had already been the subject of appellate consideration – Where the controversy between the parties had been finally determined – Where the applicant sought to re-agitate issues previously resolved – Where parties are entitled to finality in litigation – Where the proposed appeal constituted an abuse of process – Application dismissed.

FAMILY LAW – APPEAL – Parenting – Where the primary judge refused to make orders for time – Absence of unacceptable risk of harm to the child does not create a presumption in favour of orders for time – Where it was open to the primary judge to make findings as to likely future events – Where it was accepted that the first respondent’s capacity to parent would likely be impacted by an order for time – Appeal dismissed – Appellants to pay the respondent’s costs of the appeal fixed in the amount of $25,000.

APPEAL – Reasons – Where appellant alleged reasons inadequate – Primary judge presumed to know the law – Claims of inadequate reasons alleged far too often in appeals – Primary judge’s reasons adequate.

FAMILY LAW – APPEALS – Where the appellant asserts discretionary error by the primary judge – Where the respondent cross-appeals from mathematical or clerical errors infecting the appealed orders – Where the primary judge ascribed an individual percentage value to different contributory stages of a 20-year relationship – Appeal allowed – Matter remitted for re-hearing by a judge other than the primary judge in the circumstances of outdated valuations

FAMILY LAW – APPEAL – PROPERTY – De facto relationship – Leave to apply for property settlement orders outside the time limit provided in s 44(6) of the Family Law Act 1975 (Cth) – Whether open to primary judge to limit leave to apply under s 90SM to superannuation issues – Appeal allowed by consent

FAMILY LAW – APPEAL – PROPERTY – Where appellant wife argued that the primary judge erred in finding that the husband’s shares and rights to receive a withdrawal payment were not capable of being ascribed a value and consequently not identified as property for the purpose of the Family Law Act 1975 (Cth) s 79(3)(a) – The Court held that the husband’s interests were not capable of valuation on the evidence presented to the primary judge.

APPEAL – PROPERTY – Where appellant and respondent agreed that the primary judge erred in ‘double counting’ several adjustments – Court held there was error in the primary judge’s inclusion of these adjustments – Appeal allowed in part – Court made orders deleting these adjustments from the final orders.

APPEAL – PROPERTY – Where the appellant wife argued that the primary judge failed to undertake steps required under Family Law Act 1975 (Cth) s 79(4)(ca) – Appellant argued that the primary judge was required to make findings of the family violence allegations prior to considering the impact on contributions – Court held it would have been preferable for the primary judge to firstly, determine whether the appellant had been subject to family violence, secondly, to assess the nature, extent and context of that violence and, consequently, assess whether it had any discernible impact upon the appellant’s contributions in terms of s 79(4)(ca) – Court held that the primary judge nevertheless could not have made the family violence findings due to the lack of specificity of the allegations – Court held the primary judge adequately dismissed the remainder of the appellant’s allegations.

APPEAL – PROPERTY – Appellant argued that the primary judge’s findings in relation to the parties’ contributions were unreasonable or plainly unjust and that the primary judge did not give specific reasons as to what led to that conclusion – Court held that the primary judge’s reasons were adequate and the findings in relation to contributions were well within the range of outcomes available.

FAMILY LAW – APPEAL – Parenting – Where the appellant advances a series of grounds of error – Where the appellant’s Notice of Appeal and Summary of Argument are prolix, confusing and incorporates pseudo-legal terms – Where the appellant asserts denial of procedural fairness and apprehension of bias – Where the appellant advances legal and factual error – Where the primary judge is alleged to have misapprehended the law – Appeal wholly unsuccessful and dismissed with costs.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks to review the decision of a senior appeal judicial registrar rejecting his Notice of Appeal for filing – Where the proposed appeal challenges orders dismissing an Application for Review of a deputy registrar’s allocation of a first return date – Where the substantive proceedings sought a recovery order and urgent interim parenting orders following the children’s relocation interstate – Where s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) prohibits appeals from determinations dealing with the expedition of a hearing – Where the allocated first return date has passed – Where the proposed appeal lacks utility – Application in an Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the parties jointly proposed that the appeal be allowed by consent – Where an appellate court must be satisfied of error and give reasons accordingly – Where the primary judge made material errors of fact in determining the property pool available for division – Where the primary judge denied the parties procedural fairness – Appealable error established – No occasion to re-exercise discretion – Error of law established – Costs certificates awarded to both parties in respect of the appeal.

FAMILY LAW – APPEAL – Determinations pursuant to s 90RD of the Family Law Act 1975 (Cth) as to the date of termination of a de facto relationship and an alternative application pursuant to s 44(6) of the Family Law Act 1975 (Cth) to extend time to commence Pt VIIIAB proceedings – Where the assessment of s 4AA considerations pivoted from global or blanket credibility findings made against the appellant and in favour of the respondent – Where those findings embrace a challenge to the reasoning process – Where the adverse credit findings against the appellant were used as a basis to reject his version of events – Where intermediate findings as to s 4AA considerations were contrary to compelling inferences or demonstrably wrong in the face of incontrovertible facts, materially contributing to the outcome – Where the pathway of reasoning does not adequately explain findings critical to the outcome – Where an error of law is established in the alternate s 44(6) conclusion to warrant the granting of leave to appeal and allowing the appeal as to that issue – Appeal allowed – Matter remitted for rehearing.

FAMILY LAW – APPEAL – LEGAL PRACTITIONERS – Appeal by a law practice which intervened in the financial proceedings between the first respondent and her estranged husband seeking to recover costs pursuant to a costs agreement – Consideration of the Legal Practitioners Uniform Law 2014 (NSW) s 174(1) and s 178 and the Legal Profession Uniform General Rules 2015 (NSW) r 72A – Held the law practice did not provide disclosure and a costs agreement as soon as practicable – Arguments not raised before the primary judge are unavailable on appeal – Whether a charging clause in a costs agreement can be relied upon where the agreement was not provided to the client “as soon as practicable” – Consideration of equitable fruits of litigation lien in circumstances where the claims for property division under the Family Law Act 1975 (Cth) were dismissed and property was retained as opposed to recovered – Held no fruits of litigation lien – No necessity to determine the priority of asserted charges between the appellant and the second respondent – Appeal dismissed – Appellant to pay the second respondent’s costs.

FAMILY LAW – APPEAL – Appeal from a declaration made pursuant to s 90RD of the Family Law Act 1975 (Cth) as to the fact and period of a de facto relationship – Where the grounds of appeal as to procedural, legal, factual and discretionary error and as to inadequate reasons have no merit – Where the appellant’s written material recited generalised and unsupported legal concepts and language, failing to engage with the requirement to demonstrate legal error – Where the appellant’s oral submissions revealed her lack of familiarity with the terms she had endeavoured to employ in writing – Appeal dismissed – Where the appellant persisted with the appeal after interlocutory reasons were delivered highlighting that her grounds of appeal faced significant obstacles – Where the appellant’s conduct of the appeal was contrary to the overarching purpose identified in s 95 and s 96 of the Family Law Act 1975 (Cth) – Where the circumstances justify an order for indemnity costs – Orders made for the appellant to pay the respondent’s costs on an indemnity basis in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where the applicant is subject to a harmful proceedings order and therefore requires leave to appeal – Where the applicant seeks to appeal interlocutory orders dismissing an application seeking to discharge the harmful proceedings order and recusal of the primary judge – Where reasons for the interlocutory orders have not yet been delivered – Where the application is brought solely to preserve alleged appeal rights pending delivery of reasons – Consideration of whether the applicant was denied procedural fairness by the reservation of reasons – Where all purported grounds of appeal are devoid of merit and therefore vexatious – Leave refused – Application in an Appeal dismissed.

FAMILY LAW – APPEAL – Contravention application brought under Division 13A of Part VII of the Family Law Act 1975 (Cth) – Where the primary judge dismissed all charges of contravention – Where the appellant asserted the primary judge applied the incorrect legal test for summary dismissal – Where the appellant asserts a denial of procedural fairness arising from the primary judge’s refusal to permit the appellant to amend the contravention application – No miscarriage of justice caused by error of law – Appeal dismissed – No order as to costs

FAMILY LAW – APPEAL – Where the appellant contended that the primary judge failed to afford procedural fairness – Where both parties submitted that the primary judge should adopt a global assessment as to contributions, combining superannuation and non-superannuation property interests – Where the primary judge did not raise the possibility of applying a different methodology – Where the primary judge adopted a two pool approach as to the assessment of contributions and consideration of s 90SM(5) (as it now is) factors of the Family Law Act 1975 (Cth) (“the Act”) by reference to superannuation and non-superannuation property – Where one party sought a superannuation splitting order and the other opposed it – Where it is a matter for the trial judge to determine how to affect justice and equity by reference to s 90SM of the Act – Where the outcome was within the parameters of the competing claims – Where a failure to afford procedural fairness to the appellant was not established – Where the appellant’s contention that there was no legal or evidentiary basis requiring the separate or distinct treatment of superannuation is not established – Where the appellant contended an error as to the finding of the value of a real property – Where the primary judge had regard to the elements of value which the property possessed and considered them to determine a value having regard to the property’s present and future potential – Where the primary judge’s finding was reasonably open on the evidence – Where the appellant’s contentions as to a failure to provide adequate reasons identifying the evidentiary pathway of subsidiary findings to inform the conclusory finding as to contributions to the superannuation property pool and a consideration of s 90SM(5) factors to that conclusion is established rendering the reasoning process defective, it being carried through to the overall property division result – Error established – Re-exercise of discretion – Contributions assessed at 62 per cent in favour of the appellant with a one per cent adjustment pursuant to s 90SM(5) in favour of the respondent – Orders varied to provide an overall division of 61 per cent to the appellant and 39 per cent to the respondent – Appeal allowed – Costs certificates ordered.

FAMILY LAW – APPLICATION IN AN APPEAL – Where applicant seeks review of an appeals judicial registrar’s decision to dismiss an application to reinstate the appeal – Where appeal was deemed abandoned pursuant to r 13.14(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where Initiating Application for reconsideration of parenting orders pursuant to s 65DAAA of the Family Law Act 1975 (Cth) filed by applicant three days after final orders pronounced - Where the Notice of Appeal is incurably defective – Where applicant unable to demonstrate any basis to challenge the primary judge’s finding of no material change of circumstances between final orders and application - Where the Court is satisfied the grounds of appeal have no reasonable prospects of success – Application dismissed.

FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Where it was common ground that the children should live with the respondent and that he should have sole long-term decision-making responsibility – Where the primary judge found that the appellant had perpetrated family violence, lacked insight into the effect of her conduct, remained capable of minimising or masking her mental health symptoms and posed an unacceptable risk of psychological harm to the children – Consideration of whether acts of self-harm were capable of constituting family violence pursuant to s 4AB of the Family Law Act 1975 (Cth) – Where the appellant contended that conduct arising from mental illness did not constitute family violence – Where the primary judge found that the respondent was fearful as a consequence of the appellant’s conduct – Whether findings of family violence, future risk and emotional harm were open on the evidence – Adequacy of reasons – Whether the primary judge sufficiently exposed the path of reasoning – Evidence – Treating psychiatrist – Whether the expert evidence was properly excluded pursuant to r 7.01(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Whether video recordings were properly excluded pursuant to s 135 of the Evidence Act 1995 (Cth) – Where no appealable error established – Where parenting orders contained a clerical error capable of correction pursuant to r 10.13(1)(e) of the Rules – Appeal dismissed – Orders amended pursuant to the slip rule – No order as to costs.

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where the applicant is subject to a harmful proceedings order and therefore requires leave to appeal – Where all purported grounds of appeal are devoid of merit and therefore vexatious – Leave refused – Application dismissed.

FAMILY LAW – FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where the applicant seeks leave to appeal from a harmful proceedings order made against him – Where the applicant contends the presiding magistrate failed to consider the nature and outcome of applications filed in the proceedings – Where the Court is not required to consider whether prior applications were successful or unsuccessful – Where the statutory focus is upon the proceedings, their frequency and the cumulative or potentially cumulative effect of resulting harm – Where all purported grounds of appeal are devoid of merit and therefore vexatious – Leave refused – Application dismissed.

FAMILY LAW – APPEAL – PROPERTY – Appeal from orders for property division of 65/35 in favour of the respondent – Where appellant contended an asset was incorrectly attributed to him on balance sheet or associated liability not included – Where appellant sought orders to set aside the attribution of property – Appellant argued primary judge erred in their findings of percentage entitlements with inadequate reasons or findings not open in the evidence – Where appellant sought adjustment to the valuation of property pool – Where in the alternative appellant sought the proceedings be remitted – Appeal dismissed.

APPLICATION IN AN APPEAL – Application to adduce further evidence – Consideration of the Court’s discretion to receive further evidence – Where the appellant was afforded considerable procedural generosity and the respondent had limited time to consider the further material – Where the power to receive further evidence to be exercised by reference to the overarching purpose – Application dismissed.

APPLICATION IN AN APPEAL – Application to rely on Amended Notice of Appeal filed out of time and Summary of Argument filed outside of compliance of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Application allowed.

APPEAL – COSTS – Where the respondent sought costs in the event the appeal was unsuccessful – Where the circumstance justifies a costs order against the appellant pursuant to s 114UB of the Family Law Act 1975 (Cth).

FAMILY LAW – APPEAL – Application under s 79A(1)(a) of the Family Law Act 1975 (Cth) – Where the primary judge dismissed the appellant’s application to set aside consent orders providing for property adjustment between the appellant and the respondent – Where the appellant contended a lack of procedural fairness afforded to him where the appellant was denied an opportunity to cross examine a witness – Held primary judge not required to assist a self-represented party to the extent sought by the appellant and absent relevant application by the appellant – Where it is asserted the primary judge failed to apply the relevant steps required under s 79A(1)(a) – Held no error by the primary judge – Where an asserted failure to find a miscarriage of justice was unmeritorious – Where it was asserted deficiencies and incorrect information in the Application for Consent Orders and the subsequent consent orders should result in a miscarriage of justice – Held contrary findings by the primary judge available on the evidence and the appellant’s own knowledge of the asserted incorrect information does not cause a miscarriage of justice – Unsuccessful weight challenge – Appeal dismissed with costs

FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant seeks to review the appeal judicial registrar’s decision dismissing her Notice of Appeal – Where the Notice of Appeal challenges parenting orders, most of which were made by consent, with the remaining orders determined by the primary judge on the papers – Where the appellant contends that her consent to the final parenting orders was not voluntary, informed or procedurally fair and was affected by duress – Where the appellant further contends that the primary judge erred by relying upon the existing parenting arrangements without determining how they came about, failed to properly consider allegations of family violence and coercive control and the children’s views and erred in ordering sole parental decision-making responsibility to the respondent – Where the parties elected to resolve substantial issues by consent and invited the primary judge to determine the remaining issues on submissions without findings of disputed facts – Where parties are bound by the manner in which they elect to conduct their case and cannot on appeal complain of the consequences of that choice – Where no jurisdictional error, procedural miscarriage, discretionary error or other appealable error is established – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Reliance on audio and visual recordings – Application filed out of time – Where there was no prejudice to the Respondent – Leave granted

APPEAL – EVIDENCE – Whether the primary judge erred in placing reliance on the opinion of the Family Report writer – Where the appellant makes allegations of bias about the Report Writer – Consideration of the role of the Court in assessing opinion evidence – No error demonstrated

PRACTICE AND PROCEDURE –Whether the primary judge erred in setting aside subpoenas – Consideration of whether the setting aside of subpoenas would vitiate the judgment – No error established.

APPEAL – CHILDREN – Whether the primary judge erred in making final orders for the children to spend time with the appellant in accordance with their wishes, and in making injunctive orders against the appellant – Orders for injunction varied

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant seeks leave to institute an appeal pursuant to s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where oral submissions made in support of the application were irrelevant or highlighted the applicant’s voracious appetite for litigation and making complaints to other authorities about wrongs perceived by him – Where all purported grounds of appeal are baseless and therefore vexatious within the meaning of s 102Q(1) of the Act – Leave refused – Application dismissed.

FAMILY LAW – APPEAL – Property – Contended errors of fact and failure to consider a relevant consideration – Where funds received by the appellant before separation applied to acquisition of property after separation – Exercise of discretion is a holistic exercise, not a mathematical one, and does not require a retrospective audit – Errors of fact must be material – Where no grounds of appeal have merit – Where costs are ordered against the appellant – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks to further amend a Notice of Appeal, Summary of Argument and List of Authorities out of time and in the shadow of the hearing of the appeal – Where the new grounds sought to be prosecuted fundamentally recast and alter the nature of the appeal – Where the applicant conceded significant challenges in securing success on appeal generated from the grounds pleaded prior to the proposed amendment – Where the interests of justice require the appeal to be determined on its true merits – Orders made in part – Applicant granted leave to rely upon the amended grounds of appeal, Amended Summary of Argument and Amended List of Authorities – Time for the respondent to file his Summary of Argument extended – Substantive appeal hearing adjourned – Application in an Appeal otherwise adjourned to the hearing of the substantive appeal.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks an extension of time to review the determination of an appeal judicial registrar dismissing his Application in an Appeal seeking leave to extend the time to appeal from parenting orders and a costs order – Consideration of Whitmore & Whitmore [2022] FedCFamC1A 75 – Where there is no substantial issue to raise in the intended appeal – Where it would be futile to extend time for the applicant to review the decision of the appeal judicial registrar refusing the extension of time to bring the appeal – Application in an Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the applicant filed an Application in an Appeal seeking her costs of the appeal – Where the respondent abandoned the appeal shortly prior to the date fixed for the appeal hearing – Where the Court in considering what costs order (if any) should be made, the Court had regard to various factors pursuant to section 114UB of the Family Law Act 1975 (Cth) – Where the applicant relies on the principle set out in Hadkinson v Hadkinson [1952] 2 All ER 567 – Indemnity costs ordered – The respondent pay the applicant’s costs in a fixed sum

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Whether a five per cent adjustment for s 90SM(5) factors was unreasonable – Factors taken into account included differences in income, costs of caring for children, and unilateral use of assets – Where the Court is satisfied the property settlement order was not unreasonable – Appeal dismissed.

APPEAL – EVIDENCE – EXPERT EVIDENCE – Opinion of expert relied, in part, upon opinion of second expert – No objection to reliance on second expert’s opinion – No request to have second expert made available for cross-examination – No submissions at the primary hearing that the first expert’s opinion was without proper foundation – Appeal dismissed.

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Appellant prevented from cross-examining respondent personally as a result of orders pursuant to s 102NA – Appellant represented at final hearing by solicitor appointed shortly before the final hearing by the legal aid agency – Appellant previously represented by solicitors and counsel he had engaged privately – Application to adjourn the final hearing refused – Appellant given reasonable opportunity to arrange representation but had not taken steps to engage representation in a timely way – Lack of preparation of the appellant’s case is the result of his own choices and delay, not the effect of any denial of procedural fairness – Appeal dismissed.

FAMILY LAW – FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Refusal of adjournment application on resumed hearing date – Appellant still under cross-examination – Section 102NA prohibited the appellant from personally cross‑examining the respondent – Absence of legal representatives that had appeared for the appellant on first day of hearing – Pending Notice of Intention to terminate grant of legal aid pursuant to Family Violence and Cross‑Examination of Parties Scheme – Whether adjournment ought to have been granted – Appeal allowed – Costs certificate issued – Matter remitted for rehearing before a judge of Division 2.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal from orders dismissing the applicant’s application for summary determination of relief sought by the respondent pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) “for want of commencement” – Consideration of whether the dismissal of a summary determination is interlocutory – Leave to appeal required – Where the applicant contends that a s 79 cause was never validly commenced and jurisdiction not engaged after the making of an order pursuant to s 44(3) of the Act – Where the s 79 jurisdiction was regularly invoked – Consideration of “sufficient doubt” and “substantial injustice” – Application for leave to appeal refused – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Application in an Appeal for extension of time to amend Notice of Appeal and update Summary of Argument – Application granted – Where the applicant appeals against an order of the primary judge dismissing his Initiating Application on the basis of s 44(3) of the Family Law Act 1975 (Cth) and an order for costs – Where the primary judge made an error in law in the application of s 44(3) where the parties’ divorce order was obtained overseas – Where the respondent submitted to the orders of the Court – Leave to appeal granted – Appeal allowed – Orders of the primary judge set aside – Proceedings remitted for rehearing – Costs certificate granted to the applicant.

FAMILY LAW – APPEAL – Application in an Appeal – Leave to appeal – Harmful proceedings order – Where the orders sought to be challenged are procedural, including refusing to vacate a trial – Where the applicant sought leave to appeal from those orders – Where the orders the subject of the application for leave to appeal are not judgments from which a competent appeal may be brought – Where the proposed proceedings for leave to appeal are vexatious – Application for leave to appeal dismissed.

FAMILY LAW – APPEAL – Property – Where the parties sought that the appeal and cross-appeal be allowed by consent – Where the authorities are such that an appellate court must still be satisfied of error and give reasons accordingly – Where the primary judge made material factual errors in determining the property pool available for division – Where an asset was double counted – Where the primary judge made an error in calculating the cash adjustment payable between the parties – Where no provision was made for the distribution of the proceeds of sale of certain assets – Where taxation liabilities and taxation entitlements were incorrectly recorded – Where the Court was satisfied of appealable error – Consent orders made – Costs certificates awarded to both parties in respect of the appeal.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant contended that the primary judge erred in the exercise of discretion by failing to give proper weight to her parenting contributions – Where the primary judge assessed contributions at 98 per cent to the respondent and 2 per cent to the appellant – Where the appellant was the primary carer of the parties’ two children throughout their lives and undertook the substantial majority of parenting responsibilities over a period of approximately 13 years – Where the Court was satisfied that the primary judge’s contribution assessment was plainly wrong – Where the assessment of contributions required a holistic evaluation of contributions made over the entirety of the relationship and not merely the period of cohabitation – Where the respondent made overwhelming financial contributions and the appellant made substantial parenting contributions – Upon re-exercise contributions assessed at 16.5 per cent in favour of the appellant with an 8.5 per cent adjustment pursuant to s 90SM(5) of the Family Law Act 1975 (Cth) – Orders varied to provide for an overall division of 25 per cent to the appellant and 75 per cent to the respondent – Appeal allowed – Costs certificates ordered.

FAMILY LAW – APPEAL – Where the parties jointly seek the appeal be allowed – Where the parties agree an Order seeking the parties bear their own costs was erroneous – Consideration of appealable error – Consent orders made – Costs certificates awarded.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where a litigation guardian sought leave to appeal interlocutory procedural orders – Where the litigation guardian was not represented by a solicitor – Consideration of a litigation guardian’s right of appearance – No right of appearance – Where further evidence was sought to be adduced on appeal – Consideration of the relevance of further evidence to the disposition of the appeal – Consideration of whether the impugned orders were an appealable judgment – Where such orders are not appealable – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – Where the appellant challenged Orders for no time or communication – Consideration of safety of carer – Consideration of adequacy of reasons – Challenge to factual finding – Appeal dismissed with costs.

FAMILY LAW – APPEAL – Where the appellant seeks to appeal a costs order made against him as a result of the respondent’s costs thrown away for two adjourned final hearings – Where both adjournments occurred as a result of the appellant’s late or non‑disclosure – Where the appellant contends the primary judge made various factual errors which resulted in the primary judge erring in his exercise of discretion to make a costs order – Where the Court is not persuaded that the primary judge made any errors of fact – Appeal dismissed – Costs ordered in a fixed sum

FAMILY LAW – APPEAL – Applications in an Appeal – Where the appellant and putative cross-appellant are brothers who seek to appeal enforcement orders made in respect of final financial orders made by consent in August 2024 – Where the applications concern, respectively, a review of an appeal judicial registrar’s decision summarily dismissing a Notice of Appeal and a review of a decision rejecting for a filing a Notice of Cross-Appeal – Where both proposed appeals seek to impugn earlier joinder orders and the validity of consent orders on jurisdictional grounds – Where those issues have previously been determined by the Full Court and the High Court – Where the proposed grounds seek to re-litigate matters already determined and therefore constitute an abuse of process – Where no substantial issue is raised and no reasonable prospect of success is demonstrated – Applications dismissed – Costs ordered in favour of the respondent in a fixed amount.

FAMILY LAW – APPEAL – PARENTING – Where the appellant appeals from interim and final parenting orders – Where the substantive proceedings are ongoing – Where final orders were made restraining the appellant from relocating internationally with the children – Where interim orders were made for the appellant to undergo mandatory therapy and for the reversal of care should the appellant fail to comply with therapy orders – Reversal of care as a self-executing order set aside on the basis that it is unreasonable and plainly wrong – Interim orders for mandatory therapy set aside on the basis that they are stand-alone orders untethered to a parenting order – Appeal allowed in part and the balance of the appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Application for transcript at public expense – Parenting proceedings – In the alternative the appellant requests dispensation from requirement to file transcript – Whether exceptional circumstances established – Financial hardship – Proportionality of cost – Necessity of transcript for appeal – Prima facie merits of appeal – Allegations of procedural unfairness and bias – Scope of transcript sought includes case management events – Appellant self‑represented – Whether grounds of appeal sufficiently particularised – Application for transcript at public expense dismissed – Application allowed in part – Requirement to file transcript dispensed with – Costs reserved.

FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders made by consent – No error of law or fact established – No breach of procedural fairness established – Where the primary judge did not err in the exercise of discretion – Appeal dismissed – No order as to costs.

FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce fresh evidence – Where the appellant sought to adduce updated valuation evidence – Where the appellant agreed to the valuation at the time of the trial – Where the proposed evidence is hearsay, contentious, vague and not an updated valuation but a general opinion – Where the proposed evidence has not been obtained or put before the Court in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant had the opportunity to seek adduce updated valuation evidence prior to judgment delivery – Application dismissed.

APPEAL – Where the appellant claims he was denied procedural fairness – Where appellant sought orders for the sale of property and those orders were made – Appellant provided with the opportunity to make submissions – Adopting part but not all of a party’s proposal does not amount to procedural unfairness – Delay itself not being a ground of appeal – Where the primary judge was unable to deliver reasons immediately following the trial due to non-compliance of the parties – Where the primary reasons are comprehensive – Where no error was established in relation to the treatment of addbacks – Where the appellant’s forensic decisions at trial did not lead to the outcome he sought – Where the appellant’s challenges as to weight and discretion were unsuccessful – Where parties agreed that an error in the recording of an agreed value can be remedied pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where save for error corrected pursuant to the “slip rule” the appeal is wholly unsuccessful – Order for costs in accordance with scale.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed an Amended Application in an Appeal seeking an extension of time to file and serve an Amended Amended Notice of Appeal, an Amended Summary of Argument and an Amended List of Authorities, leave to issue a subpoena to produce documents directed to his prior solicitors and leave to adduce further evidence on the appeal – Where the respondent and the Independent Children’s Lawyer agreed to leave being granted to the applicant to file and rely on his Amended Amended Notice of Appeal, his Amended Summary of Argument and his Amended List of Authorities consequential to an extension of time for them to file their Summary of Arguments and Lists of Authorities – Where all parties agreed that the relief sought as to leave to adduce further evidence on the appeal will be listed for hearing before the Full Court in conjunction with the substantive appeal – Where the relief sought as to the issue of a subpoena to the applicant’s prior solicitors was withdrawn on condition – Order made extending the time for the applicant to file his Amended Amended Notice of Appeal, Amended Summary of Argument and Amended Lists of Authorities – Order made extending the time for the respondent and the Independent Children’s Lawyer to file their Summary of Arguments and Lists of Authorities – Costs reserved to the hearing of the substantive appeal.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed an Application in an Appeal seeking that the Court supply five out of eight days of the digital transcript before the primary judge, or in the alternative that the Court dispense with her obligation to obtain the transcript, permitting her to prosecute the appeal without it – Where the applicant’s contentions as to a failure to afford her procedural fairness or occasioning a denial of natural justice because the Court will not meet the cost of a digital transcript are rejected – Where the Court is not satisfied it should take the exceptional step of obtaining and funding the transcript as sought – Order made dispensing with the requirement for the applicant to obtain and provide the digital transcript – Where the applicant filed a second Application in an Appeal seeking a review of the appeal judicial registrar’s procedural orders – The gravamen of the relief sought on review is to “remove” the appeal judicial registrar “entirely from the matter”, and to adjourn the scheduled appeal hearing – Where the applicant sought an extension of time to file her Summary of Argument – Where it is incumbent upon the Court to ensure that litigation progresses efficiently and is not delayed – Application in an Appeal for a review of the appeal judicial registrar’s procedural orders dismissed – Respondent’s costs of and incidental to each Application in an Appeal reserved to the substantive appeal hearing.

FAMILY LAW – APPEAL – PROPERTY – Contributions – Major asset is shares and options in a valuable company which the appellant co-founded which significantly increased post-separation – Contributions assessed as equal by primary judge – Appeal dismissed.

APPEAL – EVIDENCE – Foreign law – Findings as to transferability of shares and options in company in the United States of America – Whether primary judge could consider terms of foreign legislation in absence of expert evidence – Findings as to foreign law are questions of fact – Findings of primary judge open on evidence before primary judge – Appeal dismissed

FAMILY LAW – APPEAL – Application in an Appeal – Where the applicant seeks to review a decision of an appeal registrar dismissing an application seeking an extension of time in which to file a Notice of Appeal – Where the time for filing any Notice of Appeal from the judgment expired months ago – Where the court is not satisfied the applicant has demonstrated an arguable case on appeal – Where none of the grounds of appeal have merit – Where the granting of the extension would be futile – Application dismissed