Summaries of some of the recent Full Court of the Family Court of Australia Decisions – May 2018


  • Molloy & Reid [2018] FamCAFC 89

    11 May 2018

    FAMILY LAW – APPEAL – CHILDREN – International relocation – Where the mother was not permitted to relocate with the children from Queensland to New Zealand – Whether the primary judge erred in creating a “checklist” of issues and by reciting dicta in Morgan & Miles (2007) FLC 93-343 – Deiter & Deiter [2011] FamCAFC 82 and MRR v GR (2010) 240 CLR 461 considered – Held there was no error in the primary judge paraphrasing the law or developing a list of issues with the assistance of the parties – Jurchenko & Foster (2014) FLC 93-598 considered – Held primary judge had regard to s 65DAA(5) and the essential basis on which his decision rested could be understood – No error in the attribution of weight to the father’s behaviour – The primary judge’s focus upon and findings regarding the “diminishment” of the children’s relationship with the father did not amount to error – Held the mother’s case did not fail because she did not present “compelling reasons” for relocation – Where the primary judge was satisfied that the children would maintain a “meaningful relationship” with both parents if the relocation was permitted but found the father’s proposal was in the best interests of the children – Held the primary judge evaluated the benefits and detriments associated with relocation and did not treat the appellant mother’s fall-back position as a “proposal” – U v U (2002) 211 CLR 238 considered – Appeal dismissed – Timetable set out for the filing of costs submissions.

    FAMILY LAW – APPEAL – Cross appeal – Discrete issue concerning a notation to an order – Held no error and therefore no basis to amend the notation – Cross appeal dismissed.

  • Merritt & Merritt [2018] FamCAFC 88

    10 May 2018

    FAMILY LAW – APPEAL – CHILD ABUSE – Unacceptable risk of sexual assault and emotional harm – Findings of fact – Adequacy of reasons – Appeal allowed.

    FAMILY LAW – APPEAL – COSTS – Application for costs dismissed – Costs certificates issued pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

  • Malcher & Malcher (No. 2) [2018] FamCAFC 87

    11 May 2018

    FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Oral application for an adjournment of the appeal hearing – Where the husband gave no adequate reason for seeking an adjournment – Application for adjournment refused – Oral application to amend the Notice of Appeal to add a ground of appeal – Where the husband’s proposed ground of appeal was raised only vaguely in his Summary of Argument – Application refused.

    FAMILY LAW – APPEAL – PROPERTY – Assessment of factors pursuant to s 75(2) of the Family Law Act 1975 (Cth) – Whether the primary judge failed adequately to take into account the disparity between the income earned by the wife and that by the husband – Whether it was open to the primary judge to find that the husband had a significant earning capacity and had access to a source of funds – Whether the husband’s “substantial” contributions were taken into account by the primary judge – Whether the primary judge failed to address specific contributions relied on by the husband – Whether the primary judge gave no reasons for dismissing the husband’s application for spousal maintenance – Whether the primary judge erred as to his findings about the husband’s earning capacity for the purposes of the Child Support (Assessment) Act 1989 (Cth) – Where the primary judge’s finding was open on the evidence – Whether the primary judge failed to take into account an exhibit comprising bank statements tendered by the husband – Where the exhibit could be given little weight – Whether the primary judge erred by failing to take into account the wife’s late disclosure of some evidence – Whether the primary judge failed to understand the husband’s case as to his financial circumstances – Whether the primary judge demonstrated actual bias or failed to afford the husband procedural fairness – No appealable error demonstrated – Appeal dismissed.

    FAMILY LAW – APPEAL – PARENTING – Single expert – Whether the primary judge erred by relying on the evidence of the single expert – Where the husband asserts that the single expert’s evidence was tainted because of an extensive and unauthorised conversation that occurred between the single expert and the children’s therapist – Where the husband made an oral application for the removal of the single expert – Where the primary judge refused the application and indicated that he would give reasons for doing so in the reasons for judgment but failed to do so – Where this failure was not material to the outcome as the primary judge did not ultimately rely on the single expert’s recommendation as to parental responsibility – Where the husband asserted that the primary judge failed to take into account that the single expert had changed his opinion on multiple occasions – Where the primary judge expressly considered this and did not base his decision on the single expert’s evidence – No appealable error demonstrated – Appeal dismissed.

    FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Where the wife seeks an order for indemnity costs – Where the circumstances of the appeal fall short of constituting exceptional circumstances justifying an order for indemnity costs – Costs order in favour of the wife on a party/party basis in a fixed sum – Costs order in favour of the Independent Children’s Lawyer in a fixed sum calculated at Legal Aid scale.

  • Huda & Huda & Laham [2018] FamCAFC 85

    10 May 2018

    FAMILY LAW – APPEAL – PROCEDURAL UNFAIRNESS – Whether interventions by the primary judge during the trial resulted in procedural unfairness to the husband and a third party – Where the primary judge found that the husband and third party had attempted to perpetrate a fraud upon the Court – Where the procedural unfairness challenge should be considered prior to any other challenges – Where an appellate court should restrict its assessment of the evidence to matters necessary to the finding of error – Where the evidence of the third party was that there was an outstanding debt owing to him by the husband – Where the veracity and reliability of the husband’s and the third party’s evidence was crucial to that issue – Whether the primary judge’s interventions impacted the ultimate findings – Where the “number, length, terms and circumstances of the interventions” were an important consideration – Where the interventions occurred at critical points of the husband’s and third party’s cross examination – Where the interventions, when read in the context of the transcript and the primary judge’s reasons as a whole, demonstrated procedural unfairness – Appeal allowed – Remitted for rehearing.

    FAMILY LAW – APPEAL – COURTS AND JUDGES – Apprehended Bias – Whether the primary judge failed to bring an impartial mind to credit findings – Whether the conclusions of dishonesty were drawn without any factual foundation or from an insufficient factual foundation – Where the primary judge was not asked to recuse himself – Where the circumstances in this case can be distinguished from Vakauta v Kelly (1989) 167 CLR 568 – Where the failure to raise the issue of bias and seek the primary judge’s recusal militated strongly against the success of any such claim – Where apprehended bias not demonstrated.

  • Camden Pty Ltd & Laue and Ors [2018] FamCAFC 91

    11 May 2018

    FAMILY LAW – APPEAL – JURISDICTION – whether the Family Court of Western Australia (“FCWA”) lacked jurisdiction and power to determine claims involving a third party and to make a declaration pursuant to Part VIIIAA of the Family Law Act 1975 (Cth) – where the appellant contended that if the FCWA had accrued jurisdiction, the Court’s powers were confined to those contained within the Family Court Act 1997 (WA) or Part VIIIAA of the Family Law Act 1975 (Cth) – where the FCWA is invested with federal jurisdiction and has the authority to adjudicate all issues comprising the matter between properly-joined parties – where the court’s powers derive from a single composite body of federal and non-federal law – where the trial judge had all powers as were necessary to quell the controversy arising from the matrimonial cause and was not restricted to Part VIIIAA of the Family Law Act 1975 (Cth) – where no error was demonstrated in the trial judge finding that there was a single justiciable controversy – where the contractual claim and remedies sought were within the federal jurisdiction of the FCWA.

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where further evidence comprising two relevant Trust Deeds was adduced by consent – where the appellant sought to also adduce further evidence in respect of an application by two of the children of the husband and wife for distribution to them from the husband’s estate – where such further evidence was opposed by the wife – where the further evidence sought to be adduced was not capable of demonstrating that the trial judge was in error in determining that there was a single justiciable controversy – application dismissed.

    FAMILY LAW – APPEAL – where the appellant contended it was not open to the trial judge to conclude on the evidence that there was an enforceable agreement between the parties and the husband’s mother, Mrs Laue Snr, and their respective entities in relation to a real property and sheep business known as Property B – where the wife argued that it was unconscionable for Mrs Laue Snr to resile from the representations provided – where the reasons of the trial judge do not provide a discernible path to the conclusions reached as to the agreement, particularly in relation to the parties’ contractual intention and the terms of the agreement – where the trial judge’s adverse credit findings in respect of Mrs Laue Snr were infected with factual errors – where it was asserted that the trial judge’s excessive intervention gave rise to a reasonable apprehension of bias on the part of the trial judge – where the trial judge acted on evidence inconsistent with the facts in making significantly adverse findings as to Mrs Laue Snr’s credit – appeal allowed – parties to file written submissions as to costs.

  • Strand & Strand [2018] FamCAFC 74

    13 Apr 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file a notice of appeal against property settlement orders – Adequate explanation for the delay – Held substantial issue to be determined on appeal – Time within which the applicant had to file a notice of appeal extended – Respondent’s application for costs reserved to the Full Court.

  • Rayson & Dargusch [2018] FamCAFC 40

    02 Mar 2018

    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file notice of appeal against spousal maintenance order – Proposed notice of appeal does not contain identifiable grounds of appeal – Application dismissed.

  • Nelson & Nelson [2018] FamCAFC 86

    08 May 2018

    FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the first respondent, third respondents and Independent Children’s Lawyer consent to an order for reinstatement – Where the failure to file the draft appeal index within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Application allowed.

  • Cubbin & Cutler and Anor [2018] FamCAFC 84

    03 May 2018

    FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Father appeals orders for the children to live with the mother and spend substantial time with him, seeking instead that the children live with him and spend significant time with the mother – Independent Children’s Lawyer supports the appeal and also cross-appeals the orders – Held primary judge gave adequate reasons for decision and reached conclusions independently by relying on evidence before him – No substantive error established – Orders relating to the parties attending mediation and therapy were not sufficiently raised with the parties – Orders relating to the father’s time with the children uncertain – Appeal allowed in part – Specific issues remitted, preferably to be heard by the primary judge – Father to pay the mother’s costs in fixed sum – Costs certificates issued to the father and the Independent Children’s Lawyer for the rehearing.