Judgments

FAMILY LAW – APPEAL – PARENTING – Where the heart of the appeal is the assessment as to whether the father poses an unacceptable risk of harm to the child – Where the grounds of appeal assert mixtures of complaints as to legal, factual, and discretionary error – Where the primary judge correctly identified the applicable legislative framework and principles – Where the errors alleged by the father cannot be sustained on a plain reading of the reasons – No error demonstrated by the primary judge – Appeal dismissed – Costs ordered in favour of the mother and the Independent Children’s Lawyer.

FAMILY LAW – APPEAL – DIVORCE – Where the appellant contended the parties were not married – Where the appellant asserted the subject marriage was to a person other than herself – Where many of the grounds of appeal fail to identify purported error – Where the appellant failed to make submissions on many of her grounds of appeal – Where the appellant reagitated matters put before and dealt with by the primary judge – No error identified – Appeal dismissed.

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the primary judge granted a conditional stay of financial orders pending the outcome of the applicant’s appeal from such orders (“the substantive appeal”) – Where the applicant was invited to show cause why the application for leave to appeal from the stay orders should not be summarily dismissed following the Full Court’s dismissal of the substantive appeal – Where no right, duty or liability remains to be remedied in the stay appeal – Where the primary judge ordered the applicant to pay the respondent’s party/party costs of the stay application – Where the respondent made an offer to the applicant similar to the stay orders – Where the applicant does not demonstrate how the findings were not validly open to the primary judge – Application for leave to appeal and appeal summarily dismissed.

FAMILY LAW – APPEAL – INTERIM PARENTING – Where the children had not spent time with the father for four years – Allegations of sexual abuse – Where the primary judge found the risk of harm was ameliorated by supervised time in the interim – Alleged failure to apply s 60CC(2) of the Family Law Act 1975 (Cth) – Submissions as to effect of interim time on the mother put higher on appeal than at first instance – Where the primary judge did consider the relevant risks – Adequacy of reasons – Where the primary judge could not decide a number of factual disputes due to the interim nature of the decision – Reasoning process is apparent – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.

FAMILY LAW – APPEAL – PROPERTY – Where the appellant was convicted of multiple offences of sexual assault against the daughter prior to the final hearing – Where the primary judge admitted the sentencing remarks from the District Court into evidence – Discussion of s 91 of the Evidence Act 1995 (Cth) – Where the reasons do not show the primary judge relied on the sentencing remarks to provide facts from which inferences could be drawn – Adequacy of reasons – Discussion of Kennon v Kennon (1997) FLC 92-757 – Where the primary judge found there was an inference that the respondent’s contributions were more arduous – Where the reasoning is clearly apparent – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.

FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals against final property orders – Where his complaints of judicial bias are rejected – Alleged insufficient judicial intervention – Where the husband could not articulate what more the primary judge could or should have done to ensure he was accorded procedural fairness – Legal error – Where the primary judge did not fail to account for the financial and non-financial contributions of the husband – Appeal dismissed – Costs ordered in a fixed sum in the wife’s favour.

FAMILY LAW – APPEAL – ADULT CHILD MAINTENANCE – Where the primary judge summarily dismissed the application of the appellant wife seeking the husband pay adult child maintenance for the parties’ elder child – Where the wife was ordered to pay the husband’s costs of and incidental to the application – Where the wife appeals on grounds of legal, factual and discretionary error – Where the paramountcy principle does not apply to adult child maintenance applications – Where the primary judge correctly considered the factors prescribed by s 117(2A) of the Family Law Act 1975 (Cth) in making the costs order – Appeal dismissed – Mother’s Application in an Appeal to adduce further evidence dismissed – Costs ordered in a fixed sum in the husband’s favour.

FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to reject his Application in an Appeal seeking leave to file an appeal out of time – Where the primary judge made orders for the applicant to pay the respondent’s costs incidental to several hearings in the original proceedings – Where the applicant is a former solicitor of a party in the original proceedings – Where none of the grounds of appeal seem to have any reasonable prospects of success – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals against final property orders – Where the husband complains of his denial of procedural fairness – Where the primary judge made an error in law by relying upon documents not in evidence – Appeal allowed – Orders of the primary judge set aside – Matter remitted.

FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from final property orders – Where the wife asserts the primary judge displayed actual bias – Where aspects of the wife’s appeal are incomprehensible – Appeal dismissed – Written submissions to be filed in relation to costs.

FAMILY LAW – APPEAL – Parenting – Where the child was conceived by the respondent as a result of an artificial conception procedure – Where an earlier judgment found the parties were not in a de facto relationship at time of child’s conception such that the appellant was not a parent pursuant to s 60H of the Family Law Act 1975 (Cth) – Where the appellant’s application for parenting orders was subsequently dismissed by a later judgment– Where the appellant’s 16 grounds of appeal are entirely misconceived – Appellant appealed later judgment on numerous grounds – Appellant challenged the threshold parentage finding in the earlier judgment which was adopted by the later judgment – Where none of the grounds of appeal are found to have merit – Appeal dismissed.

FAMILY LAW – APPEAL – Practice and procedure – Summary dismissal – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where the hearing proceeded in the absence of the appellant – Where none of the grounds assert a recognisable ground of appeal – Appeal summarily dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL - COURTS AND JUDGES – where the Kings Counsel briefed on behalf of the Husband at the trial of the matter is the nephew of one of the Judges assigned to the hearing of the appeal – apprehended bias – recusal application granted

FAMILY LAW – APPEAL – Practice and Procedure – Review of Decision – Where the appellant seeks review of the appeal registrar’s decision to reject her Application in an Appeal seeking leave to file an appeal out of time – Where there is no utility in extending the time within which the appeal may be brought because it is futile – Application dismissed – Costs

FAMILY LAW – APPEAL – Oral interlocutory application – Recovery – Stay – Where the mother seeks an order for the recovery of the child from the father – Where the mother conceded the Court had no power to summarily grant the relief she sought – Where the mother seeks to stay the operation of the appealed orders pending the determination of her appeal – No circumstances to depart from ordinary rule – Father entitled to fruits of litigation – Application dismissed – Costs.

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals final parenting orders – Where the father asserts a lack of procedural fairness – Where the primary judge was not bound by the parties’ proposals – Where the father asserts a lack of reasons – Where the reasons give careful consideration of the evidence – Where the primary judge conducted an assessment of the risk of harm that each parent presented – Where there are no challenges to the findings made by the primary judge – All grounds fail – Appeal dismissed.

FAMILY LAW – APPEAL – Appeal from divorce order – Where the appellant pleads three grounds of appeal with numerous sub-grounds – Where the appellant argues Australia is a clearly inappropriate forum – Whether the primary judge erred by failing to find that the Australian proceedings were vexatious – Adequacy of reasons – Bias –Failure to consider material in the appellant’s affidavit – Where the appellant disputes the primary judge’s finding that he engaged in controlling behaviour – No error of fact or law established – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the appellant seeks review of the decision of the appeal registrar to extend the time to obtain and file the transcript of the primary hearing, in default of which the final appeal hearing proceeds without it – Where the appellant asserts a lack of financial capacity to acquire the transcript – Where there are no exceptional circumstances to justify the Court funding the provision of the transcript – Time for the appellant to file the transcript further extended – Review application dismissed.

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the appellant contends that the parties were in a de facto relationship for over three years Where the respondent’s case was that the parties were never in a de facto relationship, that they were engaged in a personal relationship, and thereafter were friends and business partners – Where the primary judge determined that the appellant had not established that the parties were in a de facto relationship so as to enliven jurisdiction to consider the adjustment of property pursuant to s 90SM of the Family Law Act 1975 (Cth) and dismissed the appellant’s application – Where there was no error in the approach taken by the primary judge in assessing the parties’ and witnesses credibility – Where the appellant contended that the primary judge failed to grapple with the central controversies in dispute by way of failing to “properly evaluate” the evidence – Where there was no error in the primary judge’s evaluation of the evidence – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.

FAMILY LAW – APPEAL – Appeal from decision of primary judge dismissing appellant’s application under s 79A of the Family Law Act 1975 (Cth) – Most grounds of appeal are incompetent and misconceived – Whether the primary judge erred in finding that certain non-disclosures by the respondent did not amount to a miscarriage of justice – Where it was determined that even if there had been a miscarriage of justice, the primary judge was not prepared to exercise his discretion – Where the parties have repeatedly failed to make full and frank disclosure – No error established – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where an injunction was previously made prohibiting the applicant from instituting proceedings under the Family Law Act 1975 (Cth) against the father or the Independent Children’s Lawyer without leave – Where the applicant seeks leave to appeal from two decisions of the primary judge in relation to parenting matters and her application to reopen the proceedings to adduce further evidence – Where the proposed appeals lack reasonable grounds and are therefore vexatious and are devoid of utility– Applications dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Stay – Expedition – Where the mother appeals from final parenting orders – Where the primary judge made supplementary orders dismissing the mother’s Application in an Appeal to stay the final orders – Where the primary judge did not have jurisdiction or power to hear and determine an application filed in the appellate jurisdiction – Supplementary orders set aside – Where neither party will be personally prejudiced by the refusal of the stay application – Where the mother’s belief the refusal of the stay application will be detrimental to the children is not objective proof of the fact – Where the mother did not pursue her expedition application – Where the parties are mutually satisfied if appeal is heard by April 2025 as anticipated – Application dismissed.

FAMILY LAW – APPEAL – Contravention – Summary dismissal – Where judgment is not a “prescribed judgment” pursuant to reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) – Leave to appeal not required – Where appellant asserts primary judge erred in concluding compliance with Orders 8 and 9 were preconditions for spending time in Orders 29(a) and Order 29(c) – Where appellant argues primary judge erred in summarily dismissing application due to lack of evidence – Primary judge erred in determining compliance with Order 8 and Order 9 were preconditions for time in accordance with Order 29(a) – Primary judge’s intention was for Orders to function methodically upon preconditions being satisfied – Orders amended to reflect intention of primary judge pursuant to the slip rule – Appellant failed to provide prima facie evidence – No grounds of appeal challenging orders established – Appeal dismissed.

FAMILY LAW – APPEAL – Where the primary judge made orders compelling the parties’ child to be returned to Belgium – Where the child was born in Belgium and is a Belgian citizen – Where the child was wrongfully removed by the appellant mother to Australia – Whether the primary judge erred in determining the child was habitually resident in Belgium – Where the primary judge carefully applied the principles in LK v Director-General, Department of Community Services (2009) 237 CLR 582 – Where the Belgian court had already exercised jurisdiction in respect of the child – Where the findings of the primary judge were well-founded in the evidence – Appeal dismissed – No application for costs.

FAMILY LAW – APPEAL – Practice and procedure – Where the Notice of Appeal is prolix and vexatious in its current form – Where many of the grounds of appeal assert the primary judge erred by failing to accept the appellant’s case – Where it is inherently unlikely that a judge of the Federal Circuit and Family Court of Australia (Division 1) would make hundreds of errors material enough to vitiate the reasons – Notice of Appeal struck out – Where the appellant has leave to lodge an Amended Notice of Appeal for further consideration.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Expedition – Where the father seeks expedition of his appeal from interim orders for the parties’ children to live with the mother from mid-January 2025 – Where the orders would require the children to relocate from Queensland to Western Australia – Where the matter is set down for final hearing in April 2025 – Where the father took one month to file his expedition application – Where the father’s argument that the appealed orders do not promote the children’s best interest is not convincing – Where the father will suffer no personal prejudice if the appeal takes its normal course – Application dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – SUMMARY DISMISSAL – Where before the primary judge the applicant sought to rely on a previously dismissed Amended Application in a Proceeding and to review a Registrar’s decision – Where proposed grounds of appeal are expressed generally without reference to any particular order – Where there is no basis for any of the proposed grounds of appeal – Where no substantial injustice would result from refusing leave to appeal – Where applicant does not have reasonable prospects of prosecuting the application for leave to appeal – Application for leave to appeal summarily dismissed – Costs ordered in a fixed sum

FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Where the appellant has a shareholding in a corporation – Where the primary judge erred at law by fixing the parties with joint and several liability for a tax debt owed by the corporation – Where the tax debt is an exclusive liability of the corporation – Appeal allowed – Re-exercise of discretion – Self-represented parties – No application for costs.

FAMILY LAW – APPEAL – LEAVE TO APPEAL Parenting – Where the appellant seeks leave to appeal against an order made dismissing his application to re-open parenting proceedings – Consideration as to whether s 65DAAA codifies the rule in In the marriage of Rice and Asplund (1979) FLC 90-725 (“the rule in Rice and Asplund”) – Clarification of the principles which apply to applications under s 65DAAA of the Family Law Act 1975 (Cth) – Whether the wording of s 65DAAA creates a meaningful distinction and departure from application of common law principles – Whether the Court is still required to make a finding about changed circumstances or alternatively, merely “consider” whether or not there has been any change – Where parliament’s intention was to codify the rule in Rice and Asplund – Where a literal interpretation of the wording of s 65DAAA is at odds with the purpose of the statute and leads to absurdity – No discernible difference between the threshold to be applied under the new statutory regime and the common law principles espoused by the rule in Rice and Asplund – Appealable error established – Leave to appeal granted – Remitted for rehearing of the application under s 65DAAA – Costs certificate granted.

FAMILY LAW – APPEAL – Where the appellant appeals from a costs order made against him arising from parenting proceedings – Where the respondent conceded the appeal in part – Where the remaining grounds allege bias and errors in reasons – No bias or errors identified – Application in an appeal to adduce further evidence – Where the material the appellant sought to adduce was not relevant to the grounds of appeal – Application dismissed – Appeal allowed in part – Respondent’s application for costs remitted for rehearing – Costs certificates granted.

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

FAMILY LAW – COSTS – where three trials have taken place – where an appeal against the orders made at the conclusion of the second trial was allowed – where at the conclusion of the third trial, one party seeks a costs order in respect of the second trial – application dismissed.

FAMILY LAW – CHILDREN – Final hearing – Family violence – where parties reached consent position as to a child nearing the age of 18 prior to trial – where Independent Children’s Lawyer, mother and maternal aunt proposed a joint minute of order seeking no time and no communication with the father – serious allegations of physical, psychological and sexual abuse family violence against the father – where father denied family violence or risk – where findings of serious long term family violence by father poses a high and unacceptable risk of any time or any communication - Ordered there be no time and no communication between the father and the child – s 68B injunctions ordered for the protection of the child.

FAMILY LAW – DIVORCE – Declaration of validity – Where the parties are citizens of Pakistan – Where the parties married in Australia – Where the respondent asserted the parties had been divorced in Pakistan – Where the applicant asserted the Pakistan divorce was invalid and sought a divorce in Australia – Where the respondent produced a Divorce Registration Certificate and a Divorce Deed – Where there is evidence that Talaq was pronounced – Where there is no cogent reason not to give effect to the Pakistan divorce – Declaration of validity made.

FAMILY LAW – PARENTING – Application by mother that children live with her, that she have sole responsibility for the long-term decision-making for the children and the father spend conditional supervised time with the children – Application opposed by the father – Orders that children live with the mother and that she have sole parental responsibility for long-term decision-making in respect of medical issues for the children – The parents otherwise share joint parental responsibility for the long-term decision-making for the children – Father to initially spend supervised time with the children gradually transitioning to unsupervised time.

FAMILY LAW – PROPERTY – Enforcement Application – No need to resolve the judicial controversy – Earlier orders superseded by orders made within jurisdiction.

FAMILY LAW – PARENTING – Undefended hearing – Where neither biological parent made an appearance –Where serious allegations of risk and neglect are substantiated – Where the maternal grandmother seeks for the child to live with her – Where the Independent Children’s Lawyer consents to the maternal grandmother’s position – Where orders were made in favour of the maternal grandmother.

FAMILY LAW – PRACTICE AND PROCEDURE –experts’ evidence – experts’ reports – application for leave to rely on adversarial expert witness report – application allowed.

FAMILY LAW – ENFORCEMENT – Where the Court is asked to determine whether the respondent breached final orders of this Court – Where the respondent prevented the sale of the former matrimonial home – Where the Court determines that the respondent is in breach of final orders mandating the former matrimonial home to be sold by auction – Where the final orders are a contingent obligation to pay money – Where the respondents’ contravention of orders is enforceable – Where the Court orders that the former matrimonial home be sold by auction on an urgent basis.

FAMILY LAW – COSTS – Where the wife sought an order for indemnity costs – Where the parties entered into consent orders for property settlement – Where the wife had earlier offered to settle the proceeding in the same terms as that consented to by the husband during the trial – Costs order made against the husband on a party-party basis.

FAMILY LAW – PROPERTY – Final hearing – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Consideration of s 75(2) – Where husband has a far superior earning capacity– Where wife has primary care of the children – Wife’s earning capacity.

CHILD SUPPORT – Application for departure – Where the wife seeks a departure order for periodic and non-periodic child support – Finding of grounds for a departure order – Orders made for non-periodic child support departure but not for periodic departure order.

SPOUSAL MAINTENANCE – Consideration of the parties’ respective financial positions – Where some expenses of the wife were not qualified with evidence and were unreasonable –Wife will have significant financial resources available to her – The benefits of finality – Application for periodic or lump sum spousal maintenance refused.

FAMILY LAW – COSTS – Where judgment was delivered following a final hearing – Where the husband seeks costs – Consideration of whether the wife was wholly unsuccessful – Where each of the parties’ cases were arguable and had merit – Where neither party was wholly unsuccessful – Consideration of various offers made by the husband – Consideration of whether it was reasonable for the wife to accept an offer pending valuation reports – Where the offer was open for 14 days – Consideration of whether 14 days was a reasonable time – No order for costs.

FAMILY LAW – COSTS – Where the applicant seeks costs on an indemnity basis for $235,000 – Where the applicant concedes that costs should be assessed on a party/party basis and limited to $150,000 held in a joint bank account – Where the respondent also seeks an order for costs – Where the respondent provides no evidence or assistance in relation to the quantum sought – Consideration of s 117(2A) of the Family Law Act 1975 (Cth) – Consideration of the various offers made – Consideration of the parties financial circumstances – Costs order.

FAMILY LAW – ENFORCEMENT – Where the wife seeks to enforce orders made on an undefended basis for the sale of three real properties in her capacity as trustee for sale – Where the husband opposes the sale of the properties – Where the parties are in a precarious circumstance – Orders made broadly as sought by the wife.

FAMILY LAW – PRACTICE & PROCEDURE – application by mother for leave to adduce further evidence after evidence has closed – application to reopen case – prejudice to the respondent and ICL the grant of the application to reopen outweighs the probative value in reopening the case – application dismissed.

FAMILY LAW – PARENTING – Where an oral application for supervised time is made – Where the Court receives information about the father’s mental health – Where the new information received changes the calculous with respect to the child’s safety – Where promoting the safety of the child requires that time be supervised – Where the Court allows the oral application for supervised time.

FAMILY LAW – PROCEEDURE – Where the Court receives new information about the father’s mental health during a final hearing – Where an oral application for adjournment is made – Where the final hearing is adjourned to consider the new information provided – Where consent orders are made for disclosure of the father’s mental health records – Where consent orders are made for the filing of updated material.

FAMILY LAW – COSTS – Where the siblings of the husband were joined as Second and Third Respondents (“the siblings”) in the substantive proceedings by the wife – Where the siblings seek costs of proceedings on an indemnity basis against the wife – Where $100,000 of the adjustment payment by the husband to the wife pursuant to the final orders is held on trust as security for the siblings’ costs application – Where the wife was wholly unsuccessful in her equitable claim against the siblings – Indemnity costs not established – Wife to pay 50 per cent of the siblings’ costs of proceedings and the application for costs on a party/party basis as agreed or assessed – Payment in first instance to be from funds held on trust by wife’s solicitors.

FAMILY LAW – PARENTING – Where the father seeks spend time with arrangements for both children – Where the parties reach a consent position for one child – Where the other child expresses a strong view to spend no time with the father – Where consent orders are made for decision making, family therapy, spend time with arrangements for one child, interstate travel and restraints – Where the Court orders time for one child in accordance with his wishes and telephone time only.

FAMILY LAW – PRACTICE AND PROCEDURE – Where applicant husband first sought orders pursuant to the Child Support (Assessment) Act 1989 (Cth) in an Amended Initiating Application filed less than two months prior to Final Hearing – where the respondent wife objected on both jurisdictional and procedural fairness grounds -where jurisdictional ground unclear – finding that wife was not given procedural fairness to address the claim at the final hearing – in circumstances where final hearing is likely to be stood-over part-heard – judicial determination as to whether the husband may seek child support departure orders stood-over to a later date.

FAMILY LAW – CHILDREN – Best Interests – Where the operation of interim orders by this Court were interrupted due to State Court proceedings resulting in an Apprehended Violence Order being ordered, naming the father as the Respondent and the children as the aggrieved parties, following an allegation of the children being reported by a third party – Where the children were ordinarily living with the father by consent on an interim basis – Where the State Court proceedings are yet to be finalised – Where the nature of such allegations are yet to be particularised or available to the Court.

PRACTICE AND PROCEDURE – Where the father sought leave to dispense with the Harman undertaking.