Judgments

FAMILY LAW – APPEAL – Procedural fairness – Where magistrate highlighted deficiencies in evidence and allowed appellant time to file further evidence – Whether appellant entitled to expect orders she sought if she filed further evidence – Whether appellant entitled to be told of magistrate’s mental processes prior to judgment – No error on part of magistrate.

APPEAL – PROPERTY – Valuation evidence – Bare assertions of value – Adoption of figure less than bare assertion with evidentiary basis – No error on behalf of magistrate – Where valuation cannot be obtained property should be sold.

APPEAL – PROPERTY – Appeal from property settlement of 54/46 in favour of the appellant – Where contributions assessment in favour of appellant – Where appellant demonstrated greater future needs – Reasons alleged to be inadequate simply because ultimate exercise of discretion disputed – Reasons found to be adequate – Error in exercise of discretion – Grounds of appeal established – Appeal allowed – Orders set aside.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the primary judge dismissed the applicant’s objection to the production and inspection of documents produced under subpoena from the child’s therapist – Where previous orders were made for the child to engage in “non-reportable” therapy –Where the basis of the objection was said to be confidentiality – Where the Independent Children’s Lawyer supports the application – Consideration of legal principles applying to objections to subpoena – Where the objections were misconceived – Application for leave to appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – Parenting – Primary judge made orders permitting respondent to change children’s state of residence – Where appellant argues primary judge applied wrong test to determine relocation application – Where appellant asserts that primary judge erred in admitting opinion evidence from the respondent’s treating psychiatrist – Where appellant argues primary judge failed to accord procedural fairness to appellant by making adverse findings without warning – Primary judge appropriately considered potential adverse impacts on the children – Opinion evidence of a treater is not subject to the same limitations as evidence of an adversarial expert – Primary judge entitled to make the findings available on the evidence without seeking submissions – No denial of procedural fairness found – No grounds of appeal challenging orders established – Appellant to pay respondent’s costs on party/party basis – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Appellant wholly unsuccessful – Respondent seeking indemnity costs – Where the respondent is relying on an offer – Whether the offer constitutes a genuine attempt to compromise – Appellant to pay the respondent’s costs in a fixed sum.

FAMILY LAW – APPEAL – Appeal from a costs order against counsel who appeared in a parenting hearing – Findings that the appellant failed to adequately prepare for the hearing, had accepted a brief in another court on the same date, and did not have standing to appear in a federal court – Where the grounds of appeal are misconceived – Where the primary judge provided reasons for her findings – Where the primary judge considered the material identified by the appellant – No error established – Appeal dismissed – Where the appellant failed to adequately prepare for the appeal – Where the Court holds concerns about the frankness of some of the appellant’s statements – Referral to the Legal Services Commissioner.

FAMILY LAW – APPEAL – Oral application for adjournment of the hearing of an Application in an Appeal – Where the applicant instructed lawyers the day before the hearing – Where the lawyers failed to attend the hearing – Where the lawyers have not filed a Notice of Address of Service – Where the matter has been significantly delayed – Where the applicant has been aware of the listing for some time – Where there is no offer to pay the costs thrown away – Adjournment refused.

FAMILY LAW – APPEAL – Application in an Appeal – Review of an appeal judicial registrar’s decision dismissing an application for reinstatement of an appeal – Where the appeal was deemed abandoned due to the applicant’s failure to file a draft appeal book index – Where the applicant provides no explanation for the delay for filing the application for reinstatement – Where the Notice of Appeal does not identify any ground that has a reasonable prospect of success – Where it would be an injustice to the respondent to permit the appeal to go forward – Application dismissed – Applicant to pay the respondent’s costs in a fixed sum.

FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly unsuccessful in her appeal – Where the second respondent relies on an offer of settlement made to the appellant – Where the appeal was devoid of merit –Costs ordered on a party/party basis in a fixed sum.

FAMILY LAW – APPEAL – Parenting – Primary judge made orders changing the parent with whom the child lives – Where appellant argues primary judge erred in exercise of discretion – Where appellant asserts primary judge failed to give sufficient weight to expert evidence – Where appellant argues primary judge accorded insufficient weight to considerations in s 60CC(2)(b) of the Family Law Act 1975 (Cth) – Where appellant argues primary judge failed to accord sufficient weight to views of the child – Where appellant argues primary judge made errors of law – Where appellant asserts primary judge failed to give consideration to minimising risk of physical and psychological risk of harm to child – Where appellant asserts primary judge erred in failing to apply paramountcy principle – Primary judge not obliged to adopt recommendations of experts – Primary judge not bound to make orders which accorded with express views of child where to do so was contrary to child’s best interests– Orders made by primary judge were open on the evidence – Primary judge squarely considered best interests of the child and orders to protect child from physical and psychological harm – Primary judge correct in considering parenting capacity of parties – No grounds of appeal challenging orders established – Appellant to pay respondent’s costs in fixed sum – Appeal dismissed.

APPEAL – Application in an appeal – Application by appellant to adduce further evidence in appeal – Where appellant argues further evidence would demonstrate an improper exercise of discretion on behalf of the primary judge – Where further evidence does not demonstrate error – Application in an appeal dismissed.

FAMILY LAW – APPEAL – PARENTING – Where the wife contends an error by the primary judge in failing to give any reasons for the regime as to time spent between each parent and the child during the Christmas holiday and Easter periods or why the regime proposed by the Independent Children’s Lawyer was adopted in promoting the best interests of the child in preference to the differing regimes proposed by either parent – Where the parties and the Independent Children’s Lawyer did not approach the subject matter as de minimis or insignificant – Error established – Orders made in the re-exercise of discretion as agreed by the parents and the Independent Children’s Lawyer during the hearing of the appeal – Costs certificate ordered for the Independent Children’s Lawyer for the costs of the appeal.

APPEAL – PROPERTY – Where the wife contended error by the primary judge in concluding that the wife and the maternal grandmother did not discharge the onus of proof to establish a common intention trust – Where the primary judge identified material that was either extraneous and took it into account, or failed in the reasons to consider and evaluate that material – Where the parties advanced conflicting evidence as to a matter significant to the outcome – Where both sets of evidence should be referred to and reasons provided to explain findings of fact which are critical or determinative – Where the reasons were unable to discern conflict between untested testimony and other evidence – Where the primary judge made overarching blanket findings as to credibility that cloaked the integrity of the fact finding process – Where the primary judge made errors of fact – Where the reasons do not ensure that justice is seen to be done – Where it was found that a trust arrangement was the only logical and plausible conclusion – Where the incontrovertible facts are sufficient to discharge the onus of proof to establish a common-intention constructive trust –Appeal allowed – Re-exercise of discretion – Declaration made that the wife holds her interest in a real property on trust for the benefit of the maternal grandmother – Costs certificates ordered for each of the husband, the wife, and the maternal grandmother for the costs of the appeal.

APPEAL – PROPERTY – Where the determination pursuant to s 79 of the Family Law Act 1975 (Cth) was infected by multiple errors – Where the error as to the common intention constructive trust corrupts the reasons as to the determination as to the adjustment property between the husband and the wife – Matter remitted for re-hearing before a judge other than the primary judge – Costs certificates ordered for the husband and the wife for the costs of the re-hearing.

FAMILY LAW – APPEAL – Contravention – Parenting – Where the appellant brings an appeal from the dismissal of his contravention application – Where the appellant complains the primary judge denied him procedural fairness by not adjourning the hearing to allow him to address the evidentiary deficiency in his case – Where the appellant did not apply for an adjournment – Where the primary judge had to judge the dispute impartially on the evidence which the parties elected to adduce – Where the appellant fails to explain how the decision was wrongly made – Where the appellant asserts the primary judge did not consider the best interests of the child – Where the best interests of the child were not relevant to the determination of the contravention application – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – PARENTING – Where the mother and father appeal from final parenting orders permitting the mother to relocate to the USA with the children after 1 June 2026 subject to the children’s wishes –– Where the orders do not specify when and how the wishes are to be ascertained – Where the operation of the orders is a divestiture of judicial power – Where the orders are not prescriptive and enforceable – Appeal allowed – Matter remitted for rehearing – Costs certificates granted.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant husband seeks leave to appeal from child support orders – Application of Medlow & Medlow (2016) FLC 93-692 – Where the applicant has not demonstrated that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal – No substantial injustice established if leave is refused – Where the appeal is otherwise without merit – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – Parenting – Where the respondent concedes one ground of appeal has merit – Where the Court must be satisfied of appealable error – Adequacy of reasons – Alleged failure to follow the legislative pathway – Weight – No appealable error identified – Appeal dismissed – No orders as to costs.

FAMILY LAW – APPEAL – LEAVE TO APPEAL –Where the applicant seeks leave to appeal from interlocutory spousal maintenance orders – Where the applicant contends he was denied procedural fairness where the primary judge relied on documents from a previous hearing between the parties – Where the documents were only used for purpose of enlivening s 83 of the Family Law Act 1975 (Cth) – Where the use of the documents did not amount to procedural unfairness – Where the applicant could not establish any errors of fact made by the primary judge – Where the applicant complains the primary judge did not provide adequate reasons for a costs order being made against him – Where this complaint is rejected – Where the costs order was well within the primary judge’s discretion – Leave to appeal refused – Appeal dismissed – Costs ordered.

FAMILY LAW – APPEAL – Parenting – Where the primary judge found he could not determine what was in the three year old child’s best interest beyond six years of age – Where the primary judge did not fail to consider the prospect of further litigation – Construction of s 65DAAA – Where the orders accord with recommendations from the Court Child Expert such that the parties were on notice – No procedural unfairness – Claims the respondent’s evidence should not have been accepted – Where the outcome is not glaringly improbable or contrary to compelling inferences – Adequate reasons – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the decision of the appeal registrar to reject his Application in an Appeal seeking leave to file an appeal out of time – Where none of the orders the applicant proposes to challenge comprise a judgment from which an appeal validly lies – Where the proposed grounds of appeal are ostensibly bereft of merit – Application dismissed – No application for costs.

FAMILY LAW – APPEAL – Application in an Appeal – Extension of time to file Notice of Appeal – Where the applicant seeks an extension of time to bring an application for leave to appeal against interlocutory spousal maintenance orders made in June 2023 – Where the applicant argues the respondent’s financial circumstances have changed – Where the applicant asserts the need for the immediate termination of the interim spousal orders – Where the applicant does not assert any legal, factual or discretionary error by the magistrate – Application for extension of time dismissed.

FAMILY LAW – APPEAL – Appeal from Divorce Order – Where the wife argues Australia is a clearly inappropriate forum – Property settlement hearing completed in Australia with judgment reserved – Where the wife seeks to delay the divorce until property settlement orders are made – Where wife is pursuing divorce proceedings in the UK – Where wife claims there are tax implications in the UK but provides no evidence – No discretion to refuse divorce application – Appeal dismissed.

FAMILY LAW – APPEAL – Parenting – Where the mother appeals from interim parenting orders – Where the mother alleges Australia is a clearly inappropriate forum – Procedural fairness – Where no error is demonstrated – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – PARENTING & PROPERTY – INTERNATIONAL RELOCATION – Where the father appeals from final parenting orders permitting the mother to relocate with the parties child to the United Kingdom – Where the father asserts denial of procedural fairness – Where the father asserts discretionary error – Where the father asserts failure to give reasons – Application in an Appeal – Where the father seeks leave to adduce further evidence – Where none of the further evidence demonstrates error by the primary judge – Application dismissed – Appeal dismissed – No orders as to costs.

FAMILY LAW – APPEAL – Divorce – Where the wife appeals from a divorce order – Where the parties married in Country B and thereafter lived in Australia – Where the wife commenced proceedings in Country B against the husband and his family after the husband commenced proceedings in Australia – Where the primary judge found the Country B proceedings were not matrimonial in nature – Where the primary judge rejected the wife’s objection to forum – Where several grounds of appeal make assertions but do not plead appealable errors – Where the wife seeks leave to adduce further evidence – Where the wife’s affidavit and the affidavit of her Country B lawyer do not demonstrate error by the primary judge – Leave refused – Application dismissed – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – COSTS – Application for costs following the discontinuance of the appeal – Where the respondent incurred expense preparing for the appeal – Where the parties on appeal are not parties to the marriage – Appellant to pay the respondents’ costs in a fixed sum.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought a costs order against the appellant – Where the appellant was wholly unsuccessful – Where the respondent sought costs against the appellant on an indemnity basis or alternatively costs in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered in a fixed sum of $17,000.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant appeals from orders made by the primary judge temporarily removing the eldest child from the Airport Watchlist – Where the appellant seeks leave to adduce further evidence in the appeal – Where the further evidence was not relevant to the appealed orders nor determination of the appeal – Application dismissed – Where the grounds of appeal are incompetent and fail to establish appellable error – Where the appellant’s Summary of Argument is inadequate – Short form reasons delivered pursuant to s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Appeal dismissed.

FAMILY LAW – APPEAL – PARENTING – Allegations of family violence perpetrated by the father – Primary judge accepted the father posed a risk of harm to the children – Primary judge made orders for the father’s time with the children to be conditional on his engagement in psychological therapy and completion of courses – Application of Lainhart & Ellinson (2023) FLC 94-166 – Order uncertain – Order constitutes an improper divestiture of judicial power – Appeal allowed – Costs certificates issued.

FAMILY LAW – APPEAL – Where an appeal is brought from the dismissal of the husband’s contravention application – Where the primary judge fell into error by conflating the different burdens of proof borne by the parties – Where the primary judge incorrectly applied new legislation to historic contraventions – Appeal allowed – Contravention application remitted for re-hearing by another judge – Where the husband is granted a costs certificate.

FAMILY LAW – APPEAL – Parenting – Where the appellant appeals from orders dismissing the appellant’s Contravention application – Procedural fairness – Where no error is demonstrated – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – LEAVE TO APPEAL – INTERLOCUTORY ORDERS – Applicant seeks leave to appeal interlocutory orders of primary judge – Where conjunctive test for leave to appeal in Medlow & Medlow (2016) FLC 93-692 not satisfied – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL –FURTHER EVIDENCE – Applicant seeks leave to adduce further evidence – Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) considered – Where proposed material does not demonstrate error or provide material for re-exercise of discretion – Application in an Appeal dismissed.

FAMILY LAW – APPEAL – DISCRETIONARY JUDGMENT – Where applicant asserts bias and denial of procedural fairness, failure to give reasons, failure to consider evidence, and failure to give proper weight to evidence – All grounds of appeal found to be without merit.

FAMILY LAW – JURISDICTION – Where the primary judge found there was no jurisdiction in the Federal Circuit and Family Court of Australia (Division 1) to entertain applicant’s application for spousal maintenance (including leave to apply out of time) – No grounds of appeal directed at this issue – Consideration by majority of whether ss 25 and 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) preclude jurisdiction where proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2) is subsequently amended to include another cause of action – Consideration by majority of jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) to entertain a fresh cause of action in proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2) – Consideration by majority of whether applications constituted a single justiciable controversy within the court’s associated jurisdiction under s 29 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

FAMILY LAW – COSTS – Appeal wholly unsuccessful – Applicant ordered to pay costs of first and second respondents.

FAMILY LAW – APPEAL – Parenting – Where the primary judge made orders vesting the respondent mother with sole parental responsibility and providing that the children only spend time with the appellant father in accordance with their wishes – Assertion of incompetent legal counsel – Where notwithstanding the father’s solicitor’s poor forensic decisions, preparation and submissions no different result would have been reached but for those matters – Assertion of discretionary error – Where the evidence which the father contends was overlooked could not have sensibly made any impact – Where the father is otherwise bound by the case he ran at trial – No error identified – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Appeal from the primary judge’s s 90RD declaration as to the parties’ relationship – Where the appellant asserts apprehended bias – No finding of apprehended bias – Where the appellant asserts the primary judge took into account extraneous matters – Where it is not demonstrated the primary judge improperly took into account extraneous matters – Where the appellant asserts the primary judge made an order against the weight of evidence or gave inadequate reasons – Error of fact established as to the commencement of the parties’ relationship – Error corrected by a substituted order – Costs certificates granted.

FAMILY LAW – APPEAL – Father appeals from final parenting and property orders – Where the primary judge made orders for the child to live with the mother and spend supervised identity time with the father – Allegations of sexual abuse – Findings that the father posed an unacceptable risk of harm to the child – The decision of whether there is an unacceptable risk of harm is evaluative – The primary judge considered the matters the father alleges he failed to take into account – Where the reasoning process is clear – Challenges to weight – Where the primary judge made a further 10 per cent adjustment to the mother following contributions – Where property division is an exercise of a broad discretion – Failure to establish the outcome was unreasonable or plainly wrong – Appeal dismissed – Father to pay the mother’s costs in a fixed sum.

APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where respondent sought costs of the appeal – Applicant to pay respondent’s costs of the appeal in a fixed sum.

APPEAL – PARENTING – Evidence – Effect of state court judgments in family violence proceedings – Whether issue estoppel arose – Whether judgment of state courts should have been adopted pursuant to s 69ZX – Whether State Court judgements otherwise relevant or of weight where primary judge determining issues of family violence on evidence at hearing.

APPEAL – PARENTING – Evidence – Where the Family Report Writer unable to be cross-examined due to illness – Admissibility of Report – Whether report ought to have been excluded pursuant to s 135 of the Evidence Act – Weight to be attached to report.

APPEAL – PARENTING – Definition of family violence – Whether the primary judge was correct in classifying all of the appellant’s behaviour as family violence – Where appellant destroyed engagement rings – Where limited evidence of circumstances of destruction of rings. APPEAL – PRACTICE AND PROCEDURE – Error in order that is amenable to correction under the “slip rule” – Where appeal inappropriate prior to exhausting remedies with primary judge.

APPEAL – PARENTING – Appeal from final parenting orders – Whether primary judge erred in findings of family violence – Whether primary judge erred in assessment of findings as to unacceptable risk – Whether primary judge gave adequate reasons – Whether primary judge erred in making adverse inference against appellant – Application of the rule in Jones v Dunkel – Where appellant asserts there was a reversal of onus – Where appellant asserts he was required to prove a negative – No grounds of appeal challenging parenting orders established – Appeal dismissed.

APPEAL – PARENTING – Appellant and cross-appellant appeal from final parenting orders – Whether primary judge erred in failing to apply the Briginshaw test – Whether primary judge erred in assessment of findings giving rise to unacceptable risk – Whether primary judge gave adequate reasons – Whether primary judge erred in not accepting expert evidence – Whether primary judge made findings contrary to evidence – Where cross-appellant contends apprehended bias on part of primary judge – Consideration of test in Ebner – No grounds of appeal challenging parenting orders established – Both appeal and cross-appeal dismissed.

APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought an expedited hearing of her appeal from interim parenting orders – Where the matter is listed for trial commencing on 25 November 2024 – Where the appealed orders have been implemented and there is no evidence the children have not managed with the change of residence from the appellant to the respondent – Where the appellant may apply for variation of the interim orders at trial – Where expedition of the appeal would cause prejudice to the respondent and the Independent Children’s Lawyer – Application dismissed.

APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks leave to issue a subpoena for the production of documents and to adduce the documents subsequently produced as further evidence in the appeal – Where there is no utility in permitting the appellant to issue a subpoena when the documents are not seemingly related to any of the grounds of appeal – Application dismissed.

APPEAL – LEAVE TO APPEAL – Where the wife seeks to appeal interim orders restraining the second respondent from dealing with proceeds of sale and otherwise dismissing the second respondent’s Application in a Proceeding – Where the wife seeks an order on appeal extending the restraint to the final hearing – Where the primary judge has already made an order in those terms – Where the subject matter of the Application in an Appeal had been dealt with – Proposed grounds of appeal are unmeritorious – Leave to appeal refused – Orders made as to written submissions on the issue of costs.

APPEAL – APPLICATION IN AN APPEAL – Where the wife sought leave to adduce further evidence – Further evidence is duplicative and redundant – Wife fails to identify the relevance of the material or why it was not adduced at trial – Application dismissed.

APPEAL – PARENTING – Where appellant argues Family Law Act amendments should apply to primary judge’s decision – Appellant argues applicability of the Convention on the Rights of the Child – No grounds of appeal established – Appeal dismissed – Application for leave to file cross-appeal out of time – Leave not granted – Application dismissed.

APPEAL – PARENTING – Appellant challenges jurisdiction of the Court – Pseudolegal arguments dismissed– Where the appellant was not denied procedural fairness when he failed to put evidence forward at trial – Where appellant did not engage in family report process – Where appellant is critical of primary judge for not pursuing evidence on his behalf –No grounds of appeal established – Appeal dismissed.

APPEAL – PARENTING – Unacceptable risks – Risks warranting supervision – Nature of risks not limited to “immediate” risks – Risks that are not “immediate” can be unacceptable as can risks from insidious behaviour over time – Primary judge correct to order supervision to ameliorate risks.

FAMILY LAW – APPEAL – COSTS – Application in an Appeal for a stay partly allowed – Where the respondent seeks indemnity costs for the application – Consideration of offers to resolve the stay application – Applicant has incurred significant legal costs – Where the stay interferes with the respondent’s right to enforce the fruit of the judgment – Where it is just for the applicant to pay the respondent’s costs – Matters do not justify an order for indemnity costs – Applicant to pay the respondent’s costs in a fixed sum.

FAMILY LAW – APPEAL – Application in an Appeal – Leave to commence proceedings – Where the primary judge dismissed the applicant’s application to vary final parenting orders – Where the applicant requires leave to appeal in circumstances where the primary judge made orders restraining him from bringing any further proceedings under the Family Law Act 1975 (Cth) (“the Act”) – Where all 91 grounds of appeal lack reasonable prospects of success and are therefore vexatious within the meaning of s 102Q(1) of the Act – Leave refused – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the appellant seeks relief from the financial obligation to procure the transcript of the primary hearing and that the Court procure the transcript at its expense – Where the evidence of the appellant establishes she cannot afford the transcript – Where the grounds of appeal do not appear to warrant advertence to the transcript – Where the submission by the appellant that the prosecution of her appeal would be prejudiced without the transcript is rejected – Order made relieving the appellant of the obligation to file and serve the transcript – Application otherwise dismissed.

FAMILY LAW – APPEAL – Property – Where the husband appeals from final property settlement orders – Superannuation – Where the husband contends the primary judge erred in not adopting the diminished value of his superannuation in the balance sheet due to his legal fees – Where the parties conducted the litigation from the common position that legal fees would be added back to the property pool – Where the matters the husband contends were ignored were explicitly taken into account – Where the appeal against the property settlement orders fails – Binding Financial Agreement – Damages – Where the husband appeals from the finding that he did not suffer any compensatory loss – Where notwithstanding the finding of hardship the husband’s claim for compensatory damages required assessment – Error identified – Appeal allowed in part – Damages assessment remitted for re-hearing – Costs certificates granted.

CROSS-APPEAL – Binding Financial Agreement – Negligence – Where the husband’s former solicitors cross-appeal against the award of damages – Whether the primary judge erred in finding that the husband’s contract claim was not statute barred – Consideration of Orwin v Rickards [2020] VSCA 225 and Davys Burton v Thom [2009] 1 NZLR 437 – Where the “damaged asset” characterisation of when damage is first sustained under a negligently drawn contract is neither binding nor persuasive when applied to Binding Financial Agreements – Where the advice of the solicitors was clearly inadequate – Where the cross-appeal fails – Cross-appeal dismissed.

FAMILY LAW – APPEAL – STAY – Application for a stay of Full Court orders pending application for special leave to appeal to the High Court of Australia – Subject order remitted the matter back for rehearing – Applicant asserts the Full Court failed to clarify the law in allowing her appeal – Where remitted rehearing is likely to take place next year – The applicant’s prejudice is preparing for the rehearing – Where it likely the High Court would remit any rehearing to the Full Court or a trial judge – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was dismissed by consent – Where the Full Court made orders by consent to reflect the intention of the primary judge pursuant to the slip rule – Where the respondent made an application for costs in circumstances where the appeal could have been avoided by application of the slip rule – Costs order granted in favour of the respondent in a fixed sum

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 – APPEAL – BINDING FINANCIAL AGREEMENT – Where the wife appeals from a declaration that the financial agreement entered between she and the husband be binding and enforceable – Whether the wife discharged the onus of proof as to the provision of advice to fulfill the requirements of s 90G(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) – Consideration of the principles identified in Abrum & Abrum [2013] FamCA 897 – Where the incontrovertible facts lead to the conclusion that the necessary advice prescribed by s 90G(1)(b) of the Act was not given – Error established – Where the primary judge determined in the exercise of discretion pursuant to s 90G(1A) of the Act that nevertheless it would be unjust and inequitable if the agreement were not binding – Where the wife appeals from an alternative declaration pursuant to s 90G(1B) of the Act – Where the wife appeals from the dismissal of her relief for the agreement to be set aside pursuant to s 90K(1) of the Act for non-disclosure of a material matter, or as to the agreement being void or voidable vitiated by undue influence, or unconscionable conduct – Where the wife contended errors as to a failure to take into account relevant considerations, taking into account irrelevant considerations, conclusions being contrary to the weight of the evidence, and failing to give adequate reasons – Where such errors are not established – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the applicant was invited to show cause why the appeal should not be summarily dismissed – Where the applicant requires leave to appeal from the primary judge’s dismissal of his disqualification application – Where the primary judge dismissed all extant proceedings in reliance upon s 102QAB of the Family Law Act 1975 (Cth) – Where the grounds of appeal lack merit – Where the appeal is an abuse of process – Appeal summarily dismissed.