Judgments

FAMILY LAW – APPEAL – Where the husband appeals from a costs order of a modest sum – Where a ground of appeal attempting to go behind previous orders made by the primary judge is incompetent – Where the husband alleges legal and factual error by the way in which the primary judge applied various subsections of s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) – Where the complaint the primary judge failed to consider the conduct of both parties is rejected – Where the provisions of s 117(2A) of the Act do not foreclose a costs order being made against a party who has been partially successful – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where leave is required to appeal from two sets of orders made by the primary judge – Where the first application seeks leave to appeal from orders permitting the respondent to provide certain documents to AUSTRAC – Where AUSTRAC is a statutory body with ostensible significant and legitimate interest in the documents – Where s 114S(1)(a) of the Family Law Act 1975 (Cth) is engaged – Where the first application is dismissed – Where the second application seeks leave to appeal from an indemnity costs order – Where the findings made by the primary judge by determination on the papers were not open and gave rise to an error of law – Where the second application for leave to appeal is allowed – Appeal allowed in part – Ordered the indemnity costs application be remitted for hearing before a judge other than the primary judge – Costs ordered to the appellant in the sum of $1500.

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Appeal from declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) as to the parties’ relationship – No factual error capable of materially affecting the outcome demonstrated – Appellant failed to establish incompetence of counsel – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.

APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the material the appellant sought to adduce was of no utility or relevance to issues in proceedings – Application dismissed.

FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention – Where the father appeals against a refusal to make a return order – Whether the primary judge erred in assessing the existence of a grave risk of harm or an intolerable situation – Where the primary judge applied the correct principles – Appeal dismissed.

FAMILY LAW – APPEAL – Practice and Procedure – Show cause – Where the appellant was invited to show cause why his appeals should not be summarily dismissed – Where the first appeal is from orders that do not determine any right or liability of either party and is incompetent – Where the second appeal has no prospect of success – Where the appellant conceded the first two appeals could be summarily dismissed – Where the grounds of appeal contained within the third appeal are misconceived – Appeals summarily dismissed – No order as to costs.

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 a superannuation splitting order without the superannuation trustee first having had procedural fairness in respect of it – Orders of the appeal registrar set aside – Where the time for the applicant to appeal from the orders is extended by one day – No order as to costs.

FAMILY LAW – APPEAL – Application for leave to appeal – Where the applicant argues that the primary judged erred in granting a permanent stay of proceedings in the Family Court of Western Australia – Application for leave to appeal dismissed – Appeal dismissed.

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the appellant was invited to show cause why her appeal should not be summarily dismissed – Where the refusal of an adjournment application is not a judgment from which any appeal validly lies – Where the interim parenting orders have been overtaken by more recent orders – Appeal summarily dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – Where the mother appeals from a variation of interlocutory spend time with orders as between the mother and the children made after a three day trial pending delivery of reserved judgment – Where the mother contends error as to fact, weight, and as to procedural unfairness – Where some errors as to fact are made out – Where such errors are immaterial to the overall determination – Appeal dismissed – No order as to costs

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the applicant was invited to show cause why her appeal should not be summarily dismissed – Where the primary judge dismissed the applicant’s application seeking to consolidate her industrial cause with the matrimonial cause – Where the applicant could not demonstrate she would suffer substantial injustice if leave to appeal was refused – Where the statutory causes of action are distinct – Consideration of issue estoppel – Appeal summarily dismissed – No order as to costs.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s appeal was deemed abandoned due to his failure to file transcript on time – Where the applicant filed an application seeking reinstatement of the appeal – Where the appeal evinces no obvious merit and to reinstate it would cause prejudice to the wife – Where the applicant did not make a disqualification application to the magistrate and waived his complaint of bias – Where none of the applicant’s complaints about his denial of procedural fairness can be made good – Where complaints of unsatisfactory professional performance by lawyers other than his own is not a competent ground of appeal – Re-instatement application refused – No order as to costs.

FAMILY LAW – APPEAL – PROPERTY – Consensual allowance of the appeal and cross-appeal – Where judgment debt was entered in the Supreme Court of Victoria in favour of the cross-appellant against the husband – Where the wife initiated financial proceedings against the husband – Where the cross-appellant was granted leave to intervene at first instance but restrained from executing its judgment against the husband pending disposition of the spouses’ financial cause – Where the primary judge omitted the judgment debt from the balance sheet – Where the claims of creditors should not be subordinated to the claims between spouses in the matrimonial cause – Where the unsecured debt was neither treated as an individual debt of the husband, nor as the joint and several liability of the spouses – Error of law – Appeal allowed – Orders of the primary judge set aside – Matter remitted for rehearing – No order as to costs.

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge found there was no property capable of division – Where the appellant contends that finding was in error – Definition of property – Discussion of add backs as notional assets – No error identified – Where the appellant contends she did not agree with the way her counsel ran her case – No evidence that conduct of counsel led to an unfair result – Appeal dismissed.

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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – 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 – PARENTING – Final parenting orders – Where the children have been exposed to parental conflict and family violence – Where younger child is experiencing school refusal – Where older child has rejected maternal family – Where Court finds father poses a psychological risk of harm to children – Children to live with mother and spend supervised time with father graduating upon condition to unsupervised time – Injunctions granted.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant sought a stay of final orders pending hearing of his appeal – Where compliance with the final order has the real risk of rendering the appeal nugatory –Where a conditional stay is granted pending appeal – Where orders are made for the applicant to ensure the removal of unlawful occupants from a property subject of the final orders, and for the applicant to secure the property and provide proof of that to the respondent’s legal representatives – Where the applicant is to pay the respondent weekly spousal maintenance – Where the applicant is restrained from dealing with property.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant sought a stay of final parenting and property orders made pending appeal – Where the applicant submitted that the appeal may be rendered nugatory if a stay is not granted – Where the respondent and the Independent Children’s Lawyer opposed the granting of a stay – Where it is not in the best interests of the child to grant a stay of the final parenting orders – Where the balance of convenience favours determining not to grant the stay of the final property orders – Application dismissed.

FAMILY LAW – PARENTING – Unacceptable risk – Where it is the mother’s case that the father presents an unacceptable risk to the children – Where the mother asserts that the father has sexually abused a female child - Where the Court finds that the father does not present an unacceptable risk to the children.

PARENTING – Where the Independent Children’s Lawyer makes an application to restrain the mother from facilitating the attendance of the children on a psychologist – No matters of principle.

FAMILY LAW – PRACTICE AND PROCEDURE - Ex Tempore Reasons – Appointment of a litigation guardian.

FAMILY LAW – PROPERTY – application for property settlement – where the parties had a short marriage – where the wife has primary care of the child – where the husband continues to live in the former matrimonial home, being a farming property – where the wife has continued to be liable for mortgage repayments in the post-separation period – where the husband has received advances from his current partner in the post-separation period and submits they ought be included in the pool as a liability – where the wife made greater initial contributions – where the wife earned greater income during the relationship – where the husband has not made full and frank disclosure – consideration of section 75(2) factors – where the husband seeks superannuation splitting orders – where the wife submits the court adopt a two-pool approach – division of 62/38 in wife’s favour of non-superannuation assets – order for parties to each retain their own superannuation entitlements.

FAMILY LAW – PARENTING – Where the father sought that the parents have equal shared parental responsibility and that the child spend time with him on a gradually increasing basis until she attains eight years of age, at which time she live in an equal time parenting regime – Where the mother sought sole parental responsibility and that the child live with her and spend no time with the father – Where the Independent Children’s Lawyer supported the mother’s proposed orders – Where the child has not seen the father since October 2021 when she was an infant – Where the mother’s eldest daughter had made disclosures of sexual assault at the hands of the father – Where the eldest daughter has a fear of the father – Where orders are made for the child to live with the mother and spend no time with the father.