Decisions of the Family Court of Australia – March 2018

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Below are the names and and some basic notes of the Family Court of Australia decisions regarding family law matters.

  • Lowin & Lowin [2018] FamCAFC 55

    23 Mar 2018

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – Application to extend time to appeal – Applicant seeks to appeal against property settlement orders – Notice of Appeal filed shortly after prescribed time had expired but applicant had earlier taken steps to challenge the Magistrate’s decision – Joshua v Joshua (1997) FLC 92-767 and Tormsen and Tormsen (1993) FLC 92-392 considered – Although the Notice of Appeal has serious deficiencies, found there is a substantial issue to be raised on appeal – No relevant prejudice to the respondent – Held interests of justice would not be served by preventing the applicant from appealing – Time within which to appeal extended – Application otherwise dismissed.

  • Graft & McCormick [2018] FamCAFC 49

    14 Mar 2018

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother filed three Applications in an Appeal – where the mother sought the children be brought before the appeal judge – where the mother sought for a contravention application to be heard by the appeal court – where the mother sought a review of an Appeals Registrar’s procedural order listing the appeals together – where the mother effectively sought to reopen the parenting proceedings – where each application was dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the mother required leave to appeal a procedural order setting a matter down for hearing – where the mother did not object at the time to the matter being set down – where there is not merit in any of the asserted grounds seeking leave to appeal – where there is no substantial injustice – where no error of principle is involved – where leave to appeal is refused.

    FAMILY LAW – APPEAL – PARENTING – where the mother appeals the summary dismissal of four contravention applications – where the mother appeals the summary dismissal of an Application in a Case – where there was no substantive case before the Court – where the mother appeals a costs order in relation to the summary dismissal of her contravention applications – where the mother seeks orders that the substantive final parenting orders be rescinded – where the appeals lack each or both particularity and foundation – where each appeal is dismissed.

  • Gretton & Merrin [2018] FamCAFC 48

    13 Mar 2018

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – where the father’s application did not contain further evidence but instead sought to issue subpoenas – where the husband speculated that those subpoenas might produce relevant evidence – where the application was misconceived – application dismissed.

    FAMILY LAW – APPEAL – CHILDREN – where the primary judge made parenting orders in relation to a five year old child – where the child had always lived with the mother and spent time with the father – where the parties relationship was brief – where the primary judge ordered that the mother have sole parental responsibility and that she have liberty to relocate with the child – where the primary judge ordered that the father spend time with the child according to a graded regime that increased over a two year period – where the father contended that the primary judge’s reasons did not give appropriate weight to evidence and were inadequate – where the father contended that his legal representatives failed to tender important evidence on his behalf – where there was no merit in the appeal – appeal dismissed.

    FAMILY LAW – COSTS – where in the event the appeal was dismissed the mother and the independent children’s lawyer did not seek an order for costs – where the parties were ordered to bear their own costs of and incidental to the appeal.

  • Perrin & Perrin [2018] FamCAFC 30

    14 Feb 2018

    FAMILY LAW – APPEAL – Application to vacate hearing of an appeal – Orders appealed contained a finding (not an order) concerning the percentage division of the assets and gave liberty to the parties to provide a minute reflecting the finding  – Appeal listed for hearing in the February 2018 sittings in Sydney – Parties’ informal request for an adjournment of the appeal denied by the Appeals Registry – Failure of appellant to comply with procedural directions – Counsel for the respondent now unavailable for the appeal hearing – Final orders still not made by primary judge – Na & Tiu [2017] FamCAFC 264 considered – Hearing vacated.

  • Carter & Carter [2018] FamCAFC 45

    06 Mar 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Access to court file – Whether the adult child of parties involved in Family Court proceedings should be allowed to access his parents’ Family Court file from 1977 – Where the primary judge dismissed that application but made an order allowing the appellant to view consent parenting orders – Where the primary judge gave inadequate reasons – Where the primary judge took into account irrelevant matters – Consideration of r 24.13 of the Family Law Rules 2004 (Cth) – Where appellant found to have proper interest in the proceedings – Where the appellant’s access is reasonable – Appeal allowed – Re-exercise of discretion to allow appellant access to the court file.

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Non-publication – Where the appellant sought an order for the non-publication of this judgment and the removal of the primary judge’s reasons from the Family Court of Australia website and AustLII – Where the Family Court anonymises all judgments it publishes pursuant to s 121 of the Family Law Act 1975 (Cth) – Application dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – Preliminary view that the order appealed from is interlocutory and appeal is required – Appeal found to have merit – Leave to appeal granted.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Further evidence – Application to adduce letters and a supplementary appeal book – Letters demonstrate that the appellant’s parents consent to him accessing their court file  – Leave given to adduce letters as further evidence on the appeal – Affidavits in supplementary appeal book found not relevant to appeal – Application to adduce supplementary appeal book as further evidence in the appeal dismissed but allowed insofar as the evidence contained therein can inform the re-exercise of discretion if the appeal is allowed.

  • Saboski & Garth [2018] FamCAFC 53

    21 Mar 2018

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Inadequate explanation for the delay in filing a Notice of Appeal – Where the proposed appeal has poor prospects of success – Application dismissed.

  • Long & Long [2018] FamCAFC 52

    21 Mar 2018

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is a reasonable explanation for the delay in filing a Notice of Appeal – Where the proposed appeal lacks merit – Application dismissed.

  • Gatenby & Chisler [2018] FamCAFC 46

    09 Mar 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITE HEARING – Where the primary judge made orders providing for a new arrangement to commence from the start of the 2018 school year which was a significant change to the pre-existing arrangement – Where the applicant’s case is that the new arrangement would be deleterious for the children – Where the primary judge stayed the relevant orders – Where the primary judge was concerned that an application for expedition of the hearing of the appeal be filed – Where the applicant withdrew her application on the basis of the appeal being listed earlier than the week advised by the Appeals Registrar and her senior counsel not being available in that week – Where the respondent’s counsel made an oral application for the appeal to be listed at the earliest opportunity – Where the issue to be determined should be heard and decided as soon as possible – Appeal expedited.

  • Aaron & Jenkins [2018] FamCAFC 51

    20 Mar 2018

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made final property orders distributing the property of the parties and either of them in the proportions 90 per cent to the wife and 10 per cent to the husband – Where the primary judge found that a debt was owing to the wife’s mother – Where the primary judge determined that the husband was to bear a significant portion of that debt – Where the primary judge ordered that the wife should pay to her mother the full amount of the loan – Where the primary judge deducted the amount owed by the husband from the amount payable to him by the wife pursuant to his ultimate entitlement – Where counsel for the husband on appeal abandoned all but one ground – Where that ground alleged a mathematical error by the primary judge – Where the ground did not demonstrate any error –  Where even if the ground was accepted the difference in outcome would be de minimis – Where the overall result was not unjust and inequitable – Appeal dismissed – No order as to costs.

  • Shaw & Lamb and Ors [2018] FamCAFC 42

    13 Mar 2018

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – CHILDREN – SURROGACY – where the primary judge made an order requiring the parties to do all acts and things to ensure that the male respondent’s name was entered as the father of the child on the child’s birth certificate – where that conclusion was based on his Honour’s interpretation of s 23 of the Status of Children Act 1978 (Qld) – where the preconditions necessary for the application of s 23 were not addressed in his Honour’s reasons – where the submissions of counsel below did not assist his Honour in addressing those preconditions – where there is demonstrated error – where that error was not contained in the appellant’s grounds of appeal – where nevertheless an appellate court is authorised and obliged to discharge its appellate duties – appeal allowed – matter remitted for a rehearing – each party ordered to bear their own costs.

  • Jess & Garvey [2018] FamCAFC 44

    13 Mar 2018

    NOTE: The period for seeking special leave to appeal to the High Court has not expired.

    FAMILY LAW – APPEAL – INTERIM PARENTING – Where there is nothing anomalous about the primary judge finding, by virtue of s 61DA(3) of the Family Law Act 1975 (Cth) (“the Act”), that it would “not be appropriate” to apply the presumption in favour of equal shared parental responsibility, while going on to make an order for equal shared parental responsibility ¬ Where it can be seen that the primary judge addressed what was necessary from s 65DAA of the Act, given the parameters of the dispute, and how the parties’ respective cases were presented – Where the primary judge adequately and appropriately considered what she is obliged to in determining where the best interests of the children lie, bearing in mind that that consideration is framed by the parameters of the issues in dispute, and how each party has presented their case – Where there is no merit in the grounds of appeal ¬ Appeal dismissed.

    FAMILY LAW – APPEAL – LEAVE TO APPEAL – FINANCIAL AGREEMENT ¬ Where, given the history of proceedings and, specifically, an earlier order which the primary judge treated as preventing any further application to set aside the financial agreement, the Court is inclined to proceed on the basis that leave is not required – Where the primary judge summarily dismissed the wife’s application that the financial agreement be set aside, or alternatively, a declaration be made that the agreement is not valid, enforceable or effective – Where the primary judge applied the principle articulated in Henderson v Henderson (1843) 67 ER 313, and approved by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun”) – Where it is apparent that the issue before the primary judge in earlier proceedings was whether there was an agreement to be enforced – Where the wife had “notice, invitation and opportunity” to argue her case that the agreement should not be enforced in the earlier proceedings, and plainly that would include any claim to set aside the agreement pursuant to ss 90K and/or 90KA of the Act – Where the Court considers that the question of the enforceability of the agreement was finally determined – Where the Court considers that the claims pursuant to s 90K and/or s 90KA were “so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceedings for the claim not to have been made or the issue not to have been raised in that proceeding” – Where the primary judge was correct in applying the Anshun principle – Where the Court is not persuaded that the primary judge erred in finding that the wife was estopped from bringing the further proceedings – Where there is no merit in the grounds of appeal – Appeal dismissed.

    FAMILY LAW – COSTS – Where both parties submitted that costs should follow the event – Costs ordered in favour of the respondent.

  • Teh & Muir (Deceased) [2018] FamCAFC 43

    06 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the appellant sought to amend the appeal books to include an affidavit filed in the substantive proceedings – where the trial judge had directly considered the contents of that affidavit in his judgment – where the respondent did not object to the affidavit being included in the appeal books – where an application to adduce further evidence was not necessary in the circumstances – where the appeal book was amended to include the appellant’s further affidavit – application dismissed.

    FAMILY LAW – ORAL APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – where the respondent sought an order to summarily dismiss the appeal pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) – where the application was first foreshadowed in the respondent’s recently filed and served Summary of Argument – where the appellant is a self-represented litigant – where the objective of s 96AA(1) is for such applications to be made well in advance of the appeal hearing itself – where the challenges asserted by the appellant are clear enough from her Notice of Appeal and Summary of Argument – where the respondent has identified and addressed the complaints the appellant seeks to advance on appeal – where the appellant should be allowed the opportunity to make submissions as to the merit of her appeal – oral application dismissed.

    FAMILY LAW – APPEAL – COSTS – where the appellant appealed an order that she pay the respondent’s costs of trial in the fixed sum of $100,000 – where the case of the respondent was conducted by his case guardian – where the party died after the appeal was instituted – where the case guardian for the respondent was substituted for the respondent by an Appeals Registrar – where the respondent submitted that the appeal proceedings abate upon death – where the Full Court held the proceedings do not abate – where the case guardian for the respondent has standing to seek costs pursuant to r 6.14 of the Family Law Rules 2004 (Cth) and the costs orders made are characterised as costs of the case guardian within that rule – where the appellant alleged she was unable to meet an order for costs given her poor financial circumstances – where the appellant was wholly unsuccessful at trial – where financial impecuniosity is not a bar to a costs order being made – where there is no evidence that the trial judge exercised his discretion on wrong principles – where ordering the costs in a fixed sum was within the trial judge’s discretion – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $11,524.

  • Silva & Phoenix [2018] FamCAFC 41

    07 Mar 2018

    FAMILY LAW – APPEAL – DISQUALIFICATION – Where the primary judge was asked by the parties to make consent orders – Where the primary judge had to be satisfied on the material before him that it was just and equitable to make the consent orders as sought – Where the primary judge refused to make the consent orders finding the proposed compromise to be “manifestly inadequate” and set the matter down for hearing before him – Where the test is whether “a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide” – Where the test is satisfied here – Where the primary judge’s knowledge of the compromise the appellant was prepared to make for the purposes of the consent orders would be taken into account by a lay observer as apprehending that the primary judge may not bring an impartial mind to the subsequent hearing – Where the primary judge found definitively that there should be an alteration of the parties’ interest in property of greater than 10 per cent in favour of the respondent – Where the primary judge has prejudged the issue in dispute – Where it is not open on appeal for the appellant to raise a complaint of actual bias when all that was argued before the primary judge was that he be disqualified for apprehended bias –– Where there is merit in the grounds of appeal save and except to the extent that actual bias is argued – Appeal allowed.

    FAMILY LAW – COSTS – Where the appellant sought his costs in the event that the appeal was successful – Where the respondent opposed an order for costs – Where the respondent having not participated in the appeal was not in a position to seek a costs certificate if the appeal was successful on a question of law and no costs order was made – Where there is nothing put that would justify an order for costs against the respondent – Where each party should bear their own costs – Where the appellant should have a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) – Costs Certificate ordered in favour of the appellant.

  • Nasha & Belinchon [2018] FamCAFC 38

    05 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – EXTEND TIME TO FILE APPEAL – Where the applicant has not provided an adequate explanation for the failure to file a Notice of Appeal within time – Where there appears to be a substantial issue to be raised on appeal – Where there is prejudice to each of the parties depending on the outcome – Where the interests of justice require that an extension of time be allowed – Application granted.

    FAMILY LAW – COSTS – Where the applicant is being granted an indulgence because of his failure to file a Notice of Appeal within time – Costs ordered in favour of the respondent.

    FAMILY LAW – COSTS CERTIFICATES – Where both parties apply for costs certificates pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) to cover the costs associated with a previous hearing – Where the parties submit that the previous proceedings were “discontinued” and “a new hearing” ordered which was not caused by the “neglect, default or improper act” of either of the parties – Where the granting of a costs certificate is entirely discretionary – Where the time available at the previous hearing was used to clarify issues and shorten the time required to hear the application for an extension of time – Where the discretion should not be exercised in favour of the parties – Application dismissed.

  • Manotis & Manotis and Ors [2018] FamCAFC 29

    21 Feb 2018

    FAMILY LAW – APPEAL – where the husband filed an application pursuant to s 106B seeking to set aside the transfer of property to a third party – where the primary judge refused that application – where litigation between the parties spanned some 14 years – where the husband’s contentions on appeal had no foundation – where no error was demonstrated – appeal dismissed – costs ordered against the husband.

    FAMILY LAW – APPLICATION IN AN APPEAL – where the husband sought an extension of time to file a Notice of Appeal relating to a costs order made against him – where there was no substantial issue to be raised on appeal – application dismissed – costs ordered against the husband.

  • Decaux & Sabri [2018] FamCAFC 39

    06 Mar 2018

    FAMILY LAW – APPLICATION IN AN APPEAL – Review of registrar’s orders – Whether the Court should provide the applicant with a copy of the transcript – Where the transcript is not essential to the prosecution of the appeal – Whether the Court should prepare the appeal books – Where there is no evidence to support the applicant’s assertion that preparing the appeal books would cause him exceptional hardship – Whether the Registrar should be directed not to take further steps in this matter due to apprehended bias – Where the Court has no power to make such a direction – Whether the Registrar’s orders as to the filing of appeal books and electronic transcript should be stayed – Orders made extending the time for filing the appeal books and electronic transcript – Application otherwise dismissed.

 

 

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