Recent Family Law Cases


Family Court of Australia – Full Court
Blackwell & Scott [2017] FamCAFC 77 (28 April 2017)
Financial – where the parties reached final consent orders in relation to the just and equitable settlement of their property – where by those consent orders the parties were to receive an equal division of their property – where to effect that settlement the de facto husband was to retain real property held by him and pay to the de facto wife a cash payment of $130,000 – where the husband failed to make the relevant cash payment – where the value of the subject real property increased significantly between the making of the consent orders and the time, 13 months later when the husband made the required cash payment – where the subsequent late payment of the cash sum did not affect an equal division of the property of the parties – where the wife brought an application pursuant to s90SN(1)(c) of the Family Law Act 1975 (Cth) seeking to set aside the consent orders – where the trial judge set aside the original consent orders – whether the circumstances had “arisen as a result of that default” – where the appeal is dismissed.

Dalton & Dalton [2017] FamCAFC 78 (28 April 2017)
Appeal – where the primary judge dismissed the husband’s application to restrain the wife’s solicitors from acting – where the wife’s solicitors had previously acted for the husband – whether an undertaking provided to create an effective information barrier is effective – waiver – implied waiver of the right to object – appeal dismissed – costs ordered.
Leave to appeal – where there was sufficient doubt about the trial reasons to justify consideration and supposing the decision to be wrong the husband would suffer substantial injustice – where the proposed appeal raises matters of considerable importance – leave to appeal granted.

Atkins & Hunt and Ors [2017] FamCAFC 79 (28 April 2017)
Appeal – where certain grounds of appeal were not argued before the trial judge – whether the appellant could argue these grounds by reference to the principles in Metwally – where a significant issue was whether the substantial control exercised by the husband over a company meant that a finding of alter ego should have been made – where the appellant argued that certain loan accounts should not have been included in the assets and liabilities of the parties – where neither argument satisfied the principles in Metwally – where there was no error in the trial judge preferring one single expert witness over another based on the evidence and arguments to which his Honour was directed – where the trial judge’s assessment of s79(4)(e) failed to take into account relevant considerations and took into account an irrelevant consideration – where this constituted discretionary error on his Honour’s behalf – where the trial judge erred in the circumstances by failing to add back fees paid by the husband for a single expert witness – where doing so reduced the assets available for distribution – where the trial judge added back the parties’ respective payments for legal fees – where an error was made in relation to the amount added back for the husband’s legal fees – appeal allowed.

Gong & Wei [2017] FamCAFC 55 (4 April 2017)
Interim parenting orders – where the mother appeals against interim parenting orders which provide for equal shared parental responsibility, remove the previously ordered supervision of the children’s time with the father and increase that time – where the primary judge did not err in her consideration of family violence allegations – where the primary judge’s obligation to consider s60CG and s61DA of the Family Law Act 1975 (Cth) was met – appeal dismissed.
Application to adduce further evidence – where the mother seeks to adduce the Children and Parents Issues Assessment of the Family Consultant provided subsequent to her Honour’s orders – where the further evidence would not have produced a different result from that under appeal – application dismissed.
Costs – mother ordered to pay the father’s costs of the appeal – where the mother seeks to stay any costs orders made against her pending determination of the property proceedings – where there were no grounds for making such an order – no order made.

Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56 (31 March 2017)
Practice and procedure – where the Child Support Registrar who was not a party to the proceedings at first instance seeks leave to apply for leave to appeal and to appeal – where the Child Support Registrar is directly affected or sufficiently interested in the proceedings – leave granted.
Application for extension of time – where consideration is given as to whether the extension is necessary to enable the court to do justice between the parties – where the court considers there to be an adequate reason for failure to file within time and that there was no unreasonable delay – extension of time granted.
Child support – leave to appeal –where there are matters of general public importance going to the proper construction and operation of the Child Support (Registration and Collection) Act 1988 (Cth) and the jurisdiction of the court in relation to the issues sought to be raised – where the court is satisfied that a grant of leave to appeal is warranted.
Child support – stay orders – where the trial judge was in error in relying on s111C of the Child Support (Registration and Collection) Act 1988 (Cth) to make the stay orders on 7 July 2015 and 2 February 2016 – where neither s15 of the Federal Circuit Court of Australia Act 1999 (Cth) nor the implied power of the Federal Circuit Court of Australia provide the trial judge with the jurisdiction to make those stay orders – where those orders are set aside.
Costs – no order as to costs.

Family Court of Australia
Dat & Liang [2017] FamCA 250 (18 April 2017)
De facto relationship – Section 90RD application – where the parties attended court with “consent” to proposed orders but the respondent who was without legal advice or representation maintained there was no de facto relationship after 2005 – where the court determines s90RD application notwithstanding consent orders because of jurisdictional requirements.

Cord & Cord [2017] FamCA 235 (18 April 2017)
Evidence – Section 69ZT(3) – ruling – where order sought by wife involves international relocation – where there would be a significant alteration to the nature of the husband’s contact – where experts provide conclusions without factual foundations – evidence excluded – s135 Evidence Act 1995 (Cth) – consideration of lay opinion evidence.

Family Court of Australia Western Australia
Jarbin and Yabes [2017] FCWA 36 (15 February 2017)
De facto relationship – financial case – transfer of proceedings – where applicant concedes court has no jurisdiction to determine her application as alleged de facto relationship was in NSW – where applicant seeks transfer of proceedings to Family Court of Australia and seeks the proceeds be heard by that court sitting in Perth – where application fundamentally misconceived – application dismissed.

Federal Circuit Court of Australia
Etheridge & Goddard [2017] FCCA 800 (27 April 2017)
Property – application by respondents for summary dismissal of application brought pursuant to provisions of s79A(1)(a) of the Family Law Act 1975 – respondents married between 1991 and 2014 – respondents separated in 2005 and entered into informal agreement in respect of division of matrimonial property – agreement never formally ratified – respondents successfully sought consent property order from Family Court in May of 2016 – applicant and first respondent engaged in de facto relationship between disputed date in 2009/2011 and 2016 – during this period they occupied former matrimonial home of the respondents – property transferred into sole name of second respondent in 2013 – transfer confirmed by consent order of May 2016 – applicant seeks to set aside consent order on the basis that a miscarriage of justice has occurred – matters to be considered – principles applying to application for summary dismissal – no reasonable case – justice and equity.

Drew & Jensen [2017] FCCA 656 (13 April 2017)
Interim parenting – where ex parte recovery order obtained in Local Court – circumstances when ex parte recovery orders should be ordered – duty on lawyer in ex parte proceedings – duty on lawyers for applicants for recovery – duty of disclosure on applicant for recovery – where father’s evidence in support of recovery is less than frank – where father’s own evidence as well as independent material raises serious concerns about family violence – where children should live with mother and spend time with father.