Judgments

FAMILY LAW – APPEAL – PROPERTY – Appeal from final property orders – Where the appellant asserts that it was not just and equitable for a property adjustment to be made – Contention that the trial judge failed to include potential Capital Gains Tax liabilities and interim payments ordered in the property pool – Assertion of error when determining contributions – Contention that there was no basis for a s 90SF(3) adjustment – Inadequate reasons – Examination of principles regarding Capital Gains Tax – Appeal dismissed

FAMILY LAW – APPEAL – Divorce – Application in an Appeal – Stay – Where the wife’s appeal from a divorce order was dismissed – Where by operation of s 55 of the Family Law Act 1975 (Cth) (“the Act”) the divorce order was to take effect one month after that dismissal – Where on the final day the wife served upon the Court an application for special leave to appeal to the High Court of Australia and filed an application seeking the stay of the dismissal of her appeal and the divorce order pending the disposition of her application for special leave – Where an application for special leave is made pursuant to s 55 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and s 35A of the Judiciary Act 1903 (Cth) and is not an “appeal” for the purposes of s 55 of the Act – Where the divorce order has since become operable by force of statute – Where it is now impossible to grant the stay she seeks – Application dismissed.

FAMILY LAW – APPEAL – PARENTING – Whether the primary judge’s decision is plainly wrong – Whether the orders made were plainly unreasonable and unjust or proper having regard to the findings of fact that were made – Whether orders were made in accordance with the legislative requirements promoting safety and the protection from violence – Whether the primary judge failed to give proper consideration to alternative proposed orders – Where no error demonstrated – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – COSTS – Where the wife appeals against a fixed costs order made after a contested final hearing – Where it is argued that the parties were not afforded procedural fairness – Where parties were not aware a fixed costs order was in contemplation – Where parties were therefore not able to make submissions regarding a fixed costs order – Appeal allowed and matter re-determined.

FAMILY LAW – APPEAL – Where the appellant appeals orders made by the Magistrates Court of Western Australia in undefended financial proceedings – Where the primary judge found that the s 75(2) factors warranted a further adjustment in favour of the respondent as to 10 percent, divided the party’s property as to 65 percent to the respondent and 35 percent to the appellant, and dismissed the respondent’s application for spousal maintenance – Where the appellant challenged the jurisdiction of the Magistrates Court of Western Australia and contends that the value of the home was grossly undervalued –Where the appellant’s submissions as to jurisdiction was arrant nonsense masquerading as a legal submission-Where no error is made out – Appeal dismissed – Consideration of s 117(2A) – The appellant is to pay the respondent’s costs assessed in the sum of $3,000 within 60 days.

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious Proceedings – Application for leave governed by s 102QE of the Family Law Act 1975 (Cth) – Where the orders the applicant seeks to challenge are not materially different from the applicant's own minute of order – Where the applicant advances no reasonable grounds for the proposed appeal – Where the proposed appeal is vexatious and the application for leave to appeal must be dismissed – No orders as to costs.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where procedural orders made less than a week ago anticipating the appeal would be heard by the Full Court no earlier than August 2025 – Where the appeal can be heard in late May 2025 – Where the appellant opposes the earlier hearing dates when she is without legal representation – Where the desire of the mother for legal representation is not the dispositive consideration – Where the desire of the father for prompt determination of the appeal must also be accommodated – Orders made – Appeal hearing fixed for May 2025 – Procedural Orders varied.

FAMILY LAW – APPEAL – Practice and procedure – Show Cause – Where the appeal was listed for the appellant to show cause why it should not be summarily dismissed – Where the appellant alleges corruption by the Independent Children’s Lawyer – Where the appellant complains of perjury by the respondent – Where the appellant alleges threats made by the respondent’s father – Where the grounds of appeal do not allege any legal, factual or discretionary error by the primary judge – Where the appeal has no reasonable prospects of success – Appeal summarily dismissed.

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from the primary judge’s decision to summarily dismiss her parenting application – Where judgment in New Zealand family law proceedings (“New Zealand proceedings”) was reserved at the time of the primary judge’s decision and the appeal was filed, but has since been delivered – Where the mother attempted to initiate proceedings by relying upon her status as an Australia citizen who now resides in Western Australia – Where the father is the biological parent of one child but not the other – Where the children have lived predominantly with the father in New Zealand since 2018 – Where the mother’s generic complaint about the Family Court of Western Australia and the law is not a competent ground of appeal – Where the mother could not verify the allegation that the primary judge admitted bias – Where the mother provides no rational explanation for why she asserts the orders in New Zealand are unlawful – Where the primary judge found the mother’s application was an abuse of process and the Court was a clearly inappropriate forum to hear the parenting dispute – Where any factual error made by the primary judge about the findings made in the New Zealand proceedings does not vitiate the decision – Where the mother’s belief the appeal raises issues of jurisdiction and Constitutionality is not proof of fact – Where the mother’s Application in an Appeal and oral application to adduce further evidence in the appeal are dismissed as being futile – Where the mother’s oral application to rescind previous interlocutory appellate orders is dismissed – Where the mother’s oral application to appeal from the recently pronounced final orders in the New Zealand proceedings is dismissed – Appeal dismissed.

FAMILY LAW – APPEAL – Property – Where appellant argues that amount of overcapitalisation was greater than that conceded by the respondent at trial – Where appellant argues the primary judge erred in accepting the concession of the respondent that the overcapitalisation was around $500,000 – Where appellant claims that the Court should make an assessment based on the use of funds during the relationship as opposed to initial contributions – Where appellant argues primary judge failed to properly exercise discretion – Consideration of authorities on overcapitalisation – Where no detailed argument or authorities regarding overcapitalisation were put to the primary judge – Ground of appeal not established – No error of discretion as per House v The King (1936) 55 CLR 499 established – Appeal dismissed – Costs awarded.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the Magistrate dismissed the father’s application to vary final parenting orders – Where the father alleges the Magistrate made an error of law by taking extraneous material into account – Where the Family Law Act 1975 (Cth) (“the Act”) permits material on which existing final parenting orders were based to be considered when deciding whether final parenting orders should be re-opened – Where the Magistrate informed the parties of the intention to take the single expert report into account and gave them the opportunity to be heard – Where the father contends the Magistrate misapplied the Act – Where the father contended his changes circumstances, including his new living arrangements, the child’s wishes and some improvement in the state of his mental health, were sufficient to justify fresh litigation – Where the Magistrate concluded the changes in circumstance asserted by the father, individually and in aggregation, did not justify the reconsideration of the final parenting orders – Application dismissed – Application for costs in the sum of $1,000 granted.

FAMILY LAW – APPEAL – PARENTING – Where the primary judge made an order that final parenting orders be reconsidered – Where the primary judge found s 65DAAA did not require a change in circumstances for the reconsideration of final parenting orders – Where the subsequent Full Court decision in Radecki & Radecki [2024] FedCFamC1A 246 (“Radecki”) rendered the primary judge’s construction of s 65DAAA erroneous – Where the respondent contended Radecki should not be followed – Where the Full Court decision is binding – Discussion of Radecki and the codification of Rice and Asplund (1979) FLC 90-725 – Where the appeal is flawed as the order is not a judgment from which an appeal lies – Appeal dismissed.

FAMILY LAW – APPEAL – PARENTING – Appeal from parenting orders – Where the appellant submits the primary judge has misrepresented facts in direct bias, wilfully misapplied evidence, wilfully ignored objections to evidence, intentionally misrepresented facts in favour of the other party, and intentionally misrepresented facts against the children – Dissatisfaction with outcomes does not amount to bias – Where none of the appeal grounds have been established – Appeal dismissed

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Summary dismissal – Where the Amended Notice of Appeal contains four well recognised potential errors – Where the particulars of the grounds suggest there may be difficulty in succeeding on the appeal – Where it cannot be said the appeal has no prospects of success – Application for summary dismissal dismissed – Appellant’s application for an adjournment dismissed given the application was decided in her favour.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Review of registrar’s decision as to filing of documents – Where the substantive appeal has been heard and dismissed – Where the court no longer has jurisdiction to deal with procedural decisions of the registrar made prior to the appeal – Where the respondent seeks a vexatious proceedings order in relation to the applicant – Where the Response suffers the same jurisdictional flaw – Where the applicant is aware of the difficulties with running meritless applications – Where the applicant seeks to relitigate the issues determined by the primary judge and upheld on appeal – Order for the applicant to pay the respondent’s costs on an indemnity basis.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –SUMMARY DISMISSAL – Appeal from declaratory order – Appellants beneficiaries of testamentary trust – coversheet of Notice of Appeal naming wrong party as appellant – Where the first respondent sought summary dismissal of the appeal – Where the appellants sought leave to amend Note of Appeal – Application for summary dismissal dismissed – leave to amend granted

FAMILY LAW – APPEAL – COSTS – Where the appellant’s appeal was wholly unsuccessful – Where the appeal grounds were unmeritorious and the appellant made unjustified and serious allegations to impugn the primary judge – Where the incomprehensible aspects of the appeal contributed to the respondent’s costs – Appellant to pay the respondent’s costs of the appeal on an indemnity basis.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of Transcript – Where the appellant seeks that the court provides the transcript – Whether transcript is necessary for appellant’s case – Application for the Court to provide transcript refused – Appellant relieved of obligation to provide the transcript – Application otherwise dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the father appealed from all final parenting and property orders – Where his appeal was deemed abandoned due to his failure to file the transcript on time – Where the father asserted the delay was modest – Where the father admitted the entirety of the transcript had still not been filed – Where the appeal appears to have no merit – Where the father could not show some miscarriage of justice ostensibly resulted from his allegedly incompetent legal representation at trial – Where there was nothing unusual about the expert witnesses altering their opinion during cross-examination when confronted with new factual evidence – Where simple dissatisfaction with add-back findings is not a competent ground of appeal – Where the Magistrate acknowledged how add-backs were the exception rather than the rule – Where the father did not seek any adjournment of the trial on account of the alleged late financial disclosure by the mother and he suffered no consequential prejudice – Application dismissed.

FAMILY LAW – APPEAL – PROPERTY – Narrow ground of appeal regarding valuation of a business – Whether the primary judge erred in adopting the new valuation of the business – Where the appellant alleged it was incorrect to change one element of the valuation without changing others – Where it is common for experts to express opinions on assumptions put to them – Where the appropriate weight for an expert’s answer is a matter for the court – Where the appellant failed to challenge the new valuation at trial – Where there was no evidence to draw a Jones v Dunkel (1959) 101 CLR 298 inference from – Appeal dismissed – Appellant to pay the respondent’s costs.

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the appellant was invited to show cause why his appeal should not be summarily dismissed – Where final parenting orders were made by the parties’ consent – Where no ground of appeal argues the orders impeached the anterior agreement reached between the parties – Where no ground of appeal alleges the magistrate was bereft of jurisdiction or power to make the consent orders – Where no ground of appeal alleges the appellant’s consent of the orders was inveigled or induced by fraud, mistake or some other fundamental misunderstanding – Appeal summarily dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the decision of the appeal registrar to reject his Notice of Appeal for filing – Where the applicant incorrectly claimed an exemption from payment of the filing fee for his Notice of Appeal – Where the time for filing an appeal then expired – Where the applicant was advised he could file an Application in an Appeal seeking an extension of time to appeal – Where the applicant instead sought judicial review – Where the Notice of Appeal was correctly rejected – Application dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where a 10 per cent s 75(2) adjustment was made in favour of the respondent – Where the appellant contended that he was not afforded procedural fairness to make submissions on the s 75(2) adjustment – Where the parties were afforded the opportunity to make submissions about the relevant issues – Where the appellant contends that the primary judge’s reasons were inadequate – Where the matters taken into account by the primary judge were clearly articulated and sufficiently described – Where the appellant contended that the s 75(2) adjustment was “manifestly excessive” – Where the orders made were not outside of the generous ambit within which reasonable disagreement is possible – Where the appellant contended that the primary judge failed to accord him procedural fairness on the form of the orders made – Where the form of the primary judge’s order was not materially different to the orders sought by the respondent – Where the form of the primary judge’s orders were within the parameters established by the parties’ positions – Appeal dismissed – Written submissions ordered on the question of costs.

FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the appeal registrar rejected the applicant’s Application in an Appeal seeking leave to file an appeal out of time – Where the primary judge discharged previous orders temporarily staying the parties’ financial proceedings pending the finalisation of parallel criminal proceedings prosecuted against the applicant – Where the primary judge set the financial proceedings down for trial in April 2025 – Where the criminal proceedings are set down for trial in September 2025 – Where the applicant failed to demonstrate a reasonably arguable case the primary judge erred in concluding the applicant would not suffer prejudice if the stay was discharged – Where the applicant alleges the primary judge took into account irrelevant considerations in concluding the applicant had acted inconsistently with the maintenance of his privilege against self-incrimination, which proposition is at least arguable – Where the respondent did not assert she would be prejudiced by the applicant being permitted to bring the appeal one day late – Orders of the appeal registrar set aside – Where the appeal registrar shall file the Notice of Appeal.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Application to adjourn the appeal hearing to allow the appellant time to file his Summary of Argument and listen to the audio of the trial to correct the transcript – Application for the appeal to be dismissed – Where the appellant has already been granted multiple indulgences – Where the utility of the transcript corrections was not identified – Where the appeal is wholly lacking in particulars and clarity – Where the appellant has not filed a Summary of Argument and failed to comply with procedural orders – Where it would be a significant injustice to the respondent to permit the appeal – Application dismissed – Appeal dismissed.

FAMILY LAW – APPEAL – Where the father appeals from final parenting orders – Where the father asserts that the primary judge failed to consider the relevant legislation, made “wrong” findings of fact, and failed to make findings of fact – Adequacy of reasons – Where the primary judge undertook a methodical evaluation of the evidence and cogent considerations of the relevant legislation – Where no ground of appeal has merit – Appeal dismissed – Costs ordered in favour of the mother and the Independent Children’s Lawyer.

FAMILY LAW – APPEAL – EX-TEMPORE – Leave to appeal – Practice and procedure – Where orders the subject of appeal were superseded by later consent orders – Where appellant failed to attend hearing before primary judge – Where the review application was dismissed by the primary judge – Where the appeal was listed to hear submissions regarding utility – Where appellant did not exhaust all existing remedies available at first instance under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Leave to appeal refused for futility – Appeal dismissed with costs.

FAMILY LAW – APPEAL – Appeal from divorce order – Where the appellant argues that Australia is a clearly inappropriate forum – No error of fact or law established – Appeal dismissed – Order made for the wife to pay the husband’s costs of the appeal on a party/party basis.

FAMILY LAW – APPEAL – BINDING FINANCIAL AGREEMENT – Where appellant appeals from a determination that the financial agreement entered between appellant and respondent was not binding and enforceable – Where appellant previously acted for respondent in parenting proceedings against former partner – Where primary judge found appellant did not receive independent advice because financial agreement was prepared by law firm that previously acted for respondent – Where law firm had ceased to advise respondent at the time financial agreement was signed – Where respondent had separate legal presentation for purposes of financial agreement – Where primary judge erred in finding that a former client is owed a fiduciary duty – No fiduciary duty apart from confidentiality is owed to a former client – Appeal allowed.

APPEAL – PARENTING – Where primary judge refused to allow an application to change child’s surname – Where appellant alleges primary judge erred in exercise of her discretion – It was within primary judge’s discretion to refuse name change application – Where appellant alleges primary judge made irrelevant findings not open on the evidence – Primary judge squarely addressed the evidence and recounted uncontroversial facts – Appeal dismissed. 

APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence in parenting appeal – Unnecessary to address application to adduce further evidence where appeal is dismissed on parenting grounds.
 

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PRACTICE AND PROCEDURE – Appeal against dismissal of an application for release from the implied undertaking – Where appellant is facing criminal charges in District Court of New South Wales – Where appellant sought to use a redacted version of the single expert report prepared in the course of the parenting proceedings to defend the criminal charges – Where there is a real possibility that release of the report from the implied undertaking may contribute to the administration of justice in the appellant’s criminal proceedings – All grounds of appeal established – Leave to appeal granted – Appeal allowed – Costs certificates issued.

APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where evidence relates to the attitude of the single expert report writer in relation to use of the report in the criminal proceedings – Where attitude of the expert found to be of limited relevance – Leave granted to adduce further evidence.

FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from a single order adjusting the property of the parties as to the value of a payment to be made by the husband, and does not challenge the balance of the suite of orders made pursuant to s 79 of the Family Law Act 1975 (Cth) – Limited and haphazard evidence available to the primary judge – Sub-optimal conduct of the trial before the primary judge by the parties – Limited and haphazard evidence adduced as to a factual finding challenged on appeal as to a value on an entity controlled by the husband – Where the primary judge erred in part in making a finding as to that value – Where the error is discrete and confined – Where no other grounds of appeal have merit – Appeal allowed – Orders on re-exercise to correct the confined error without varying the percentage division of the property of the parties or changing the specie of property achieved by way of the primary judge’s orders – Where the correction finalises the litigation as quickly, inexpensively, and efficiently as possible – Costs certificates ordered.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Property – Where the husband requires leave to appeal from interlocutory financial orders made by the primary judge – Where the primary judge dismissed the husband’s interlocutory injunction application with costs – Allegations of bias – Where mere disappointment with the original result is not evidence of bias – Where there was no denial of natural justice – Where contentions of jurisdictional, legal, evidentiary and discretionary error fail – Where the result was not manifestly unjust – Where several grounds are rejected as being incompetent – Application in an appeal to issue subpoena – Where the husband’s application to issue subpoena could not advance the prospects of the appeal – Application in an appeal to adduce further evidence – Where the further evidence does not aid the competency of the proposed appeal – Applications dismissed – Leave to appeal refused – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – Where the grounds of appeal involved a degree of overlap by contending errors in the exercise of discretion and errors of fact – Where the appellant contends that the primary judge “doubled counted” the effect of the conduct of the appellant at both the assessment of contribution stage and in relation to the matters under s 75(2) – Where the respondent contended that there was no double counting, that the primary judge’s determination needed to be viewed in aggregate, and that a consideration of the primary judge’s determination revealed no error in the approach of the primary judge – Where the Full Court found that the conduct finding was material to the determination of the primary judge at each of stages two and three and was “double counted” – Where the error permeated the percentage findings at each stage – Ground 1 of the appeal succeeds.

APPEAL – RE-EXERCISE OF DISCRETION – Where this Court found error in the primary judge’s reasons – Where the parties agreed that the Full Court should re-exercise the discretion – Where orders were made for further written submissions to be filed as to the re-exercise of discretion – 28 year marriage – Where the parties had acquired a number of assets including the business, investment properties, a home and farm – On the re-exercise of discretion, the respondent is to receive 62 percent of the property available for division and the appellant is to receive 38 percent – Costs certificates issued.
 

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 – 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 – 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 – 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 – 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 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 – 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 – 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 – 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 – CHILDREN – With whom a child spends time – Where the applicant asserts that the respondent presents an unacceptable risk of harm – Where it is agreed that the child should live with the applicant – Where the applicant seeks that the child spend no unsupervised time with the respondent – Where the respondent ultimately seeks unsupervised and overnight time with the child – Where the child derives value from his relationship with the respondent and his sibling – Where the Court considers that ongoing supervision is appropriate.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks to amend her substantive relief to include the setting aside of the disposition of a real property by a corporation of the parties in the shadow of the trial that she contends was not bona fide or at arm’s length – Where the wife seeks the joinder of three additional respondents to the proceedings pursuant to r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where the joinder is resisted by one of the proposed respondents – Proposed additional respondent is a corporation whose interests are affected by the wife’s relief sought pursuant to s 106B of the Family Law Act 1975 (Cth) – Where two of the proposed three additional respondents are necessary parties for the purposes of r 3.01 of the Rules – Wife’s application for leave to amend granted – Application for joinder allowed in part.
PRACTICE AND PROCEDURE – Notice of Objection to subpoena – Where the wife issued a subpoena to a corporation of the husband’s brother to produce documents relevant to her contention that the husband has sought to disguise the control and benefit of his property through his brother’s corporation, while maintaining de facto use and control of it – Where the wife contends that the husband’s brother’s corporation is the property of the husband and that his brother and the corporation are “a puppet” of the husband – Where the corporation filed a Notice of Objection to set aside the subpoena on the basis of an absence of apparent relevance, as to the scope of the subpoena being unduly onerous, as to the terms of the subpoena being vague, and as to privacy – Where the contentions as to absence of apparent relevance, the subpoena being unduly onerous, and as to privacy are not accepted – Where the terms of the subpoena may be varied such that its terms are not vague – Amendments to schedule of documents subpoena ordered.
 

FAMILY LAW – PROPERTY – Where both parties seek an adjustment of property interests pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) – Where there is a consideration of s 90SF(3) of the Act – Where the property pool is modest – Where both parties sought a 70/30 division of assets in their favour – Where the husband sought add-backs – Where the wife is the primary carer of the parties’ three children – Where there was a dispute as to the date of the parties’ separation – Where the parties had outstanding debts – The Court finds a just and equitable outcome to be a 60/40 percentage division of the net non-superannuation assets in the wife’s favour – Parties to retain their respective superannuation entitlements.

FAMILY LAW – PARENTING – Final orders – Where, for years with the parties’ consent, their two sons have lived with the father and their daughter has lived with the mother – Where the mother has not complied with interim orders – Where the mother has not facilitated the youngest child spending time with the father as ordered – Where the mother breached an interim injunction restraining her from moving too far from the father – Where the mother amended her application throughout the hearing – Where the mother sought orders for the two youngest children to live with her within a certain proximity to the father – Where counsel for the mother conceded there was no evidentiary foundation for the second child to live with the mother – Where the father sought orders for all children to live with him – Where the youngest child suffers from significant medical disorders – Where the father contended the mother’s diagnosed psychological conditions were liable to result in the youngest child’s needs being neglected – Where the mother has satisfactorily met the youngest child’s developmental, physical, psychological, and emotional needs – Ordered the two eldest children live with the father and spend time with the mother – Ordered the youngest child live with the mother on condition the mother relocates her residence closer to the father.

FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – Where the wife seeks that the husband pay her $1,806 per week in spousal maintenance – Where the husband concedes that spousal maintenance should be paid, but puts the quantum into issue – Where the husband does not put the wife’s evidence as to her weekly expenses into issue – Where the wife does not utilise one of her unoccupied real properties to produce income – Where the husband did not file and Financial Statement and did not adduce material evidence as to his financial circumstances – Where an inference is made, and the evidence establishes, that the husband has capacity to pay a reasonable periodic amount to maintain the wife – Orders made providing for the husband to pay to the wife $1,500 each week by way of interim spousal maintenance.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Where there is an objection to a subpoena – Where the subpoena sought production of documents over an eight year period – Where compliance would require review of 765,487 emails – Where documents needed to be reviewed against the scope of the subpoena and whether there was an entitlement to claim legal professional privilege – Where it is determined that the scope of the subpoena, as drafted, was burdensome and oppressive – Where the applicant has paid retrieval costs – Where the subpoena is set aside and the applicant ordered to pay further costs.