Judgments

Division 1 - Appellate division

Judgment delivery date:

FAMILY LAW – APPEAL – PROPERTY – Where final property settlement orders made in 2017 (“the 2017 orders”) were remitted to the primary judge for rehearing on appeal in 2019 – Where the appellant wife appeals from final property settlement orders made in 2024 following the remitter – Where the appellant’s grounds complaining of ostensible bias against the retired judge who made the 2017 orders and not the primary judge are rejected as being absurd –Where the appellant’s dissatisfaction with the rehearing proceeding in her absence does not, of itself, sustain the allegation of apprehended bias of the primary judge – Where the appellant’s complaints of the denial of procedural fairness are rejected – Where the appellant filed a Constitutional Notice in the appeal – Where the appellant contends the appealed orders are ultra vires and invalid – Where the primary judge validly exercised jurisdiction and power under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) – Where the appeal does not genuinely involve a matter arising under the Constitution or its interpretation – Where the appellant does not elaborate on bare propositions of alleged discretionary error by the primary judge in her Amended Summary of Argument and they are rejected – Where the appellant complains the primary judge took into account the 2017 orders – Where the 2017 parenting were not set aside on appeal – Where the primary judge did not rely upon the 2017 parenting orders and did not err by considering evidence in respect of the spouses’ children, as demanded by the Act – Appeal dismissed – Where the respondent sought an order against the appellant for payment of his party/party costs of and incidental to the appeal – Where the appellant objected to any costs order being made against her – Where the appeal was misconceived and should not have been brought – Costs ordered in favour of the respondent on a party/party basis.

APPLICATION IN AN APPEAL – Where the wife seeks four separate forms of interlocutory relief – Where the application to adduce further evidence in the appeal and to issue subpoenas is refused – Where the application to discharge orders not made by the primary judge is dismissed – Where absent resort to the use of the slip rule, the Full Court has no power to re-open its final orders after their entry in 2019 – Where the application to discharge certain orders made by the Full Court in 2019 is dismissed – Application in an Appeal dismissed.

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FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where 33 grounds of appeal are pleaded encompassing more than 200 separate propositions of error – Where the father asserts an apprehension of bias on part of the primary judge – Where the father previously applied for the disqualification of the primary judge on the basis of apprehended bias which application was dismissed – Where the dismissal of the disqualification application was a judgment from which an appeal could be independently brought and so no complaint about the validity of that decision could be agitated in this appeal, but the father nonetheless fails to elaborate how and why the primary judge erred by dismissing the disqualification application – Where the complaints of procedural unfairness fail – Where the complaints about interlocutory decisions made in advance of and during the trial by the primary judge fail – Where the complaints that the primary judge erred in the application of legal principles fail – Where there was no error of law or fact in the way the primary judge treated the evidence – Where the father’s superficial analysis of the factual findings made by the primary judge are rejected – Appeal dismissed – Application in an Appeal – Where the father was granted leave to rely upon his late-filed Summary of Argument of 65 pages – Costs – Where the mother filed a submitting notice and did not participate in the appeal – Where the Independent Children’s Lawyer did not seek costs – No order as to costs.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks to appeal from interlocutory financial orders – Where two of the orders the husband seeks leave to appeal are merely procedural directions and not judgments from which an appeal validly lies – Where the primary judge made an order restraining the parties from bringing any further interlocutory application without the grant of leave to do so – Where the primary judge dismissed all outstanding interlocutory applications not otherwise covered by the remaining suite of orders – Where the husband’s allegations do not vindicate the complaint of apprehended bias – Where the husband complains the primary judge denied him procedural fairness – Where the husband complains the primary judge intervened excessively when he was making submissions – Where the transcript reveals the interventions made by the primary judge were reasonable and proportionate – Where the husband alleges the primary judge failed to give adequate reasons – Where the primary judge correctly cited principles and sufficiently explained the outcome – Where the husband’s ground alleging legal, factual and discretionary errors by the primary judge is not a competent ground of appeal and has no merit – Leave to appeal refused – Notice of Appeal dismissed – Where the wife sought costs of the appeal – Where the husband was wholly unsuccessful – Where the husband conducted the appeal in such a disorganised way that the wife’s costs were increased – Where financial hardship is not a shield against a costs order – Husband to pay the wife’s costs in a fixed sum.

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FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Where the appeal succeeded on one ground of many pleaded grounds – Where the appellant seeks the grant of costs certificates to the parties – Where the respondent seeks party/party costs of the appeal – Where the respondent made an offer in writing to concede the appeal on the single ground upon which it succeeded – Where many grounds were pursued without merit – Where the appellant is in a stronger financial position than the respondent – Where the appellant shall pay a proportion of the respondent’s costs of and incidental to the appeal in a fixed sum – Where the appellant’s application for costs certificates fails.

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FAMILY LAW – APPEAL – CHILD SUPPORT – Extensive procedural history – Where applicant seeks leave to vary administrative assessment of child support after time limit expired – Where applicant disputes administrative assessment of child support previously – Operation of time limit in s 111 where departure application previously pursued with time – Appeal dismissed.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant wife seeks leave to appeal from procedural orders – Application of Medlow & Medlow (2016) FLC 93-692 – Where the applicant has not demonstrated that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal – No substantial injustice established if leave is refused –Where the orders the applicant seeks to appeal are procedural and do not amount to a judgment from which an appeal validly lies – Leave to appeal refused – Application in an Appeal to adduce further evidence dismissed – Appeal dismissed – Costs ordered in a fixed sum.

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FAMILY LAW – APPEAL – Appeal from orders for enforcement and variation of final consent orders – Appeal from the dismissal of application seeking the respondent be dealt with for contempt – Appeal from the award of indemnity costs – No error established on the part of the primary judge – Appeal dismissed – Order for the appellant to pay the respondent’s costs in a fixed sum.

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FAMILY LAW – CHILDREN – issues narrowed a Trial – most orders by consent – sole issue whether three older children’s time with father should be increased by one day school day per fortnight in term time – issue of disruption to current settled regime – two of three children do not want any change – risk of change outweighs marginal possible additional benefit - on balance no change ordered.

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FAMILY LAW – APPEAL – Appeal from final property orders – Where the appellant had difficulties reading and hearing during the trial – Where the appellant demonstrated sufficient ability to engage with the hearing – No lack of procedural fairness – Challenges to fact finding and weight – Relevant findings did not have a large impact on overall outcome – Contributions findings were reasonable – No miscarriage of justice – Appeal dismissed – Appellant to pay the respondent’s costs.

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FAMILY LAW – APPEAL – CHILDREN – Whether the primary judge failed to take relevant considerations into account in considering the appellant’s proposal to relocate with the children – Adequacy of reasons – Where the primary judge correctly identified the applicable legislative framework and principles – Where the primary judge gave due consideration to the parties’ competing proposals – No appellable error identified – Appeal dismissed.

APPEAL – PROPERTY – Whether the primary judge failed to provide adequate reasons for not including a personal debt of the appellant to her parents as a liability in the balance sheet – Failure to explain why the debt was not included as a liability does not amount to appellable error – Appeal dismissed.

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FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the appellant was invited to show cause why the appeal should not be summarily dismissed –Where the father appeals from interim orders – Where the primary judge has since pronounced final judgment and the interim orders were consequently discharged – Where there is no longer any justiciable controversy in respect of the interim orders and appellate jurisdiction is exhausted – Where the appeal has no reasonable prospect of success –Appeal summarily dismissed – Application in an Appeal to adduce further evidence in the appeal dismissed.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – DE FACTO THRESHOLD – Whether leave to appeal is required – Where by way of Application in an Appeal the respondent sought summary dismissal of the Appeal based on the applicant’s purported breach of the appealed orders and disregard of the overarching principles of proper conduct for litigation – Where the applicant contends apprehended bias on the part of the primary judge – Where the applicant contends denial of procedural fairness and the reasons for judgment were infected by legal and discretionary error – Consideration as to the revival of biased conduct in reasons for judgment – Consideration of the test outlined in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the applicant is taken to have waived her right to raise apprehended bias on the part of the primary judge – Where the primary judge did not deny the applicant procedural fairness – No error on the part of the primary judge established – Application for leave to appeal dismissed – Application in an Appeal dismissed – Applicant ordered to pay respondent’s costs in a fixed sum.

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FAMILY LAW – APPEAL – Application in an Appeal – Where indefinite extension of time to comply with procedural orders is sought – Where that request is premised on a misapprehension of the relevance of further proceedings not yet commenced – Extension of time to a fixed date granted.

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FAMILY LAW – APPEAL – PROPERTY – Leave to appeal – Where the wife seeks leave to appeal from enforcement orders requiring her to vacate the former matrimonial home – Where the wife contends the enforcement orders were final – Where contrary to her assertion the orders are interlocutory – Whether the decision is attended by sufficient doubt to warrant appellate intervention – Where all of the wife’s grounds lack merit – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum.

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FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where parties were requested to leave the court room when judge made disclosures of facts and circumstances that may go to apprehended bias – Where judge instructed counsel not to advise the parties of the matters disclosed by the judge – Failure to afford procedural fairness – Appeal allowed. 

APPEAL – PARENTING – Error of fact – Error as to the effect of the interim orders with respect to the time spent with the mother – Where expert recommended against reducing time with mother – Finding that orders would not reduce time – Where effect of orders is to halve time – Appeal allowed.

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FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the respondents in the substantive proceeding (“the respondents”) seek to appeal from financial disclosure orders – Where the respondents seek to appeal from the dismissal of their application to stay the financial disclosure orders – Where the respondents contend leave to appeal is not required when the orders infringe their substantive right to keep documents confidential – Where the respondents’ desire for the retention of confidentiality is not the same thing as the enjoyment of a right to the retention of confidentiality – Whether the primary judge denied the respondents procedural fairness by rejecting their application to amend their Defence – Where the doctrine of procedural fairness is concerned only with the fairness of the hearing, not with the fairness of the result – Where not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation – Where this ground is devoid of merit – Where the primary judge ordered one respondent to file an affidavit requiring his opinion as to the estimated value of certain unit holdings – Where this order did not reflect the intentions of the primary judge and should not extend so far as to require expert valuation opinion evidence – Where the respondents conceded the application of the slip rule is appropriate – Order varied under the slip rule – Leave to appeal refused – Where the applications were wholly unsuccessful – Where the respondents did not cavil with the wife’s application for costs – Respondents ordered to pay the wife’s costs in a fixed sum.

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FAMILY LAW – APPEAL – COSTS – Where the appellant filed a Notice of Discontinuance two days prior to the hearing of the appeal – Where the appellant conceded he should pay the respondents costs – Where the only issue was as to the sum of the costs to be paid by the appellant – Costs ordered in a fixed sum of $27,000.

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FAMILY LAW – APPEAL – CONTRAVENTION PROCEEDINGS – Nature of contravention proceedings – Where the appellant failed to prove that the primary judge pressured her to continue the contravention hearing without a lawyer appointed pursuant to s 102NA – Where the primary judge and self-represented appellant miscommunicated and the appellant wrongly believed she could not adduce further evidence beyond an affidavit –Contraventions involving obligations affecting children are a different scheme to those that do not – Where the primary judge erred by not considering and distinguishing contraventions under two different statutory schemes – Where the primary judge’s orders failed to identify the specific count in the Contravention Application – Requirement for particularity including in the disposition of a contravention – Privilege in respect of self-incrimination – No obligation upon an alleged contravener to give evidence or to file an affidavit – Appeal allowed – Orders relating to the alleged contraventions be set aside – Matter remitted for rehearing to a judge other than the primary judge.

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FAMILY LAW – APPEAL – FINAL PARENTING ORDERS – Procedural fairness – Reference by the primary judge to his interlocutory decision in the proceedings without notice to the parties – Where the references to the interim reasons were necessary and apposite – No denial of procedural fairness – Apprehended bias – Where the appellant asserts a fair-minded lay observer would apprehend bias on the part of the primary judge from having relied on earlier adverse findings in the interlocutory decision – Where no specific adverse findings are identified – Adequacy of reasons – Where the reasons chart the pathway by which a conclusion consistent with the evidence was reached – Appeal dismissed – Order for the appellant to pay the respondent’s costs of the substantive appeal in a fixed sum.

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FAMILY LAW – APPEAL – PARENTING – Where the primary judge had regard to documents that neither party had sought to rely upon – Where the parties were not given notice by the primary judge that she would have regard to those documents in her determination – Consideration of Macgregor & Macgregor (2012) FLC 93-507 – Error of law established – Appeal upheld – Costs certificates granted.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the third respondent died shortly before the hearing of the appeal and letters of administration of her estate had not yet been granted – Third respondent is an essential party to the proceedings – No provision in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Family Law Rules”) for the appointment of a representative pending a grant of letters of administration – The High Court Rules 2004 (Cth) (“High Court Rules”) apply where the Family Law Rules are insufficient – The High Court Rules permit appointment of a representative of the deceased’s estate for the purposes of proceedings – Second respondent consented to act as representative – Order made for the second respondent to represent the estate of the third respondent.

APPEAL – PROPERTY – Appeal from final property orders – Whether the primary judge erred in making findings as to the ownership of funds, businesses and properties between the spouse parties and the husband’s parents and the subsequent division of property between the spouse parties – Where the evidence was unreliable, confusing and contradictory – Parties are bound by the way they conducted their case at trial – No reversal of the onus of proof apparent – Positive findings of ownership were based on all of the evidence – Appropriate inferences were drawn – Findings were open on the evidence – No suggestion the outcome was unreasonable or plainly wrong – No error in the primary judge’s approach – Appeal dismissed.

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FAMILY LAW – APPEAL – Property – Parenting – Where the appellant alleges errors of fact – Where the parties agreed to leave their vehicles off the balance sheet – Where the primary judge mistakenly included appellant’s vehicle in balance sheet resulting in error – Respondent accepts error was made and advocates for use of slip rule – Error not within the ambit of the slip rule – Appeal allowed.

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FAMILY LAW – APPEAL – PROPERTY – Where the appellant contends that she was not afforded procedural fairness – Where the Court determines that the appellant failed to clarify whether she continued to press her proposed orders that the properties be sold, despite being given the opportunity to do so at first instance – Where the primary judge’s assessment of contributions was adequately explained – No merit in any grounds of appeal – Decision of the primary judge not plainly wrong – Where the primary judge’s ultimate conclusion did not exceed the generous ambit of discretion allowed for trial judges – Adequate reasons – Judgment not infected by operative delay – Appeal dismissed – No order as to costs.

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FAMILY LAW – APPEAL – PROPERTY – Where in January 2024 the primary judge made consequential orders to facilitate the implementation of property settlement orders made between the parties in 2021 (“the final orders”) – Where the appellant appeals from the January 2024 orders (“the substantive appeal”) – Where the appellant’s application to stay the January 2024 orders was partially granted by the primary judge in February 2024 – Where the appellant seeks leave to appeal those orders (“the stay appeal”) – Where the substantive appeal is really a complaint about the final orders – Where the appellant’s grievance with the final orders cannot be ventilated in this appeal – Where the substantive appeal is dismissed – Where the appellant fails to plead any recognisable form of appealable error in the stay appeal – Where leave to appeal is refused – Where the appellant was wholly unsuccessful – Where impecuniosity is not a shield against a costs order – Appellant to pay the costs of the respondent in the fixed sum of $5,000.

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FAMILY LAW – APPEAL – PROPERTY – Appeal from a determination that it was not just and equitable to make orders adjusting property – Where the appellant raises grounds as to error of principle and failure to provide adequate reasons, and asserts that the primary judge made findings which were either not available on the evidence or against the weight of the evidence – Where no error of principle is established – Where the findings were open on the evidence and not contrary to the weight of the evidence – Where the findings were satisfactorily explained – Appeal dismissed – Order for the appellant to pay the respondent’s costs in a fixed sum.

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FAMILY LAW – APPEAL – Parenting – Where the mother appeals final parenting orders that imposed a no-time regime – Inadequacy of reasons – Where the reasons of the primary judge do not disclose why no other regime was workable, nor why a no-time order was the only reasonable outcome – Where the respondent and the Independent Children’s Lawyer conceded the appeal – Error identified – Where it is unnecessary to consider the other grounds – Appeal allowed in part – Costs certificates granted.

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

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

Judgment published date:

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

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

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FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to refuse an extension of time within which she may appeal from orders made in February 2020 (“the orders”) – Where the orders appointed the respondent as the sole trustee for sale of the parties’ property – Where the applicant wants her proposed appeal from the orders allowed and the orders set aside – Where the orders have been executed – Where neither party has enjoyed any legal or beneficial interest in the property since the third party purchaser became the exclusive registered proprietor of it in April 2023 – Where any appeal now from spent orders would be an exercise in futility and waste – Where there is no justiciable controversy to be quelled by the grant of any appellate remedy – Where the applicant failed to explain how the orders were vitiated by jurisdictional error – Application in an Appeal dismissed – Where the applicant acceded to pay the costs of the respondent in a fixed sum.

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FAMILY LAW – APPEAL – CONTRAVENTION – PENALTY – Where orders were made in 2018 to finalise property and parenting between the parties – Where in 2020 the respondent wife brought an Application-Contravention against the appellant husband – Where another judge found the husband had contravened the orders on one count as to the property orders and on one count as to the parenting orders –Where the husband was sanctioned with respect to the parenting order contravention but not the property order contravention – Where the husband previously filed two separate appeals – Where the previous appeal as to the contravention of the property order was dismissed as the justiciable dispute between the parties had not yet been determined (“the first appeal”) – Where the appeal in respect of the sanction imposed as to the contravention of the parenting order was allowed on grounds the husband had been denied procedural fairness – Where the primary judge made an order by consent dismissing all outstanding contravention applications, but the order did not enjoy the wife’s consent – Where the transcript records the primary judge realised the mistake and expressly announced the need for the dismissal order to be discharged but then inadvertently failed to do so – Where the order is discharged ab initio – Where the primary judge imposed a fine upon the husband for the outstanding property order contravention – Where the dismissal of the first appeal did not preclude another appeal from the judgment finally determining the contravention – Where the sanction imposed constitutes the judgment from which an appeal lies – Where the primary judge incorrectly took the view the dismissal of the first appeal meant his Honour only needed to determine the appropriate sanction – Appeal allowed – Matter remitted for re-hearing – Where the wife did not participate in the appeal – Costs certificate issued to the husband.

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FAMILY LAW – APPEAL – PARENTING – Orders made for the children to live with the mother and spend no time with the father – Primary judge made findings of sexual assault, violence and coercive and controlling behaviour perpetrated by the father against the mother – Some matters cast doubt on aspects of the mother’s evidence but insufficient to compel its rejection – Father needs to do more than show alternative finding was available – Father failed to show findings affected by impressions of credibility and demeanour were glaringly improbable – Evidence of Family Report provides basis for primary judge’s findings of risk – Path of reasoning readily identifiable – Outcome cannot be described as unreasonable or plainly unjust – Appeal dismissed – Father to pay the costs of the mother and Independent Children’s Lawyer.

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FAMILY LAW – APPEAL – PROPERTY – Whether primary judge had “double dipped” in notionally adding back sums to the property pool – Where one add-back conceded by respondent – Evidence does not establish further add-backs were “double dipped” – Whether primary judge erred in not making any adjustment for non-disclosure by respondent – Where appellant’s case at trial did not seek an adjustment – Whether primary judge gave inadequate weight to appellant’s initial submissions – Set aside Order 2 of the orders made on 16 August, 2023 – Appeal otherwise dismissed.

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FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks orders for legal aid to provide transcript – No basis for ordering legal aid to provide transcript – Whether the Court should provide transcript – Whether the appellant has assets – Whether transcript is necessary for the appellant’s case – Application for the Court to provide transcript refused – Whether requirement for transcript is dispensed with –Transcript dispensed with – Application to adduce further evidence more appropriately dealt with at the hearing of the appeal – Oppressive number of grounds of appeal – Orders for Amended Notice of Appeal.

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FAMILY LAW – APPEAL – Appeal from a costs order – Where costs orders will rarely be interfered with on appeal unless the result is plainly unjust or arrived at on wrong principles – Where no ground of appeal succeeds – Appeal dismissed – Costs ordered against wife.

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FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders for indefinite supervision – Procedural fairness – Incompetency of counsel – Weight challenges – Where no error of a House v The King (1936) 55 CLR 499 kind is made out – Where the weight given to competing evidence is quintessentially a matter for a trial judge – Where the orders are not patently wrong or plainly unreasonable – That another judge may have made different orders does not demonstrate error – Appeal dismissed – Application in an Appeal dismissed – No order as to costs.

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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.

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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.

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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.

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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.

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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.

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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 [2000] HCA 63, Johnson v Johnson [2000] HCA 48 and QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2023] HCA 15 – Where the test is not satisfied – Application dismissed.

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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.

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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

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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.

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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.

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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.

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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.

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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.