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Recent Family Law Judgments 1. Herz & Picot and Picot & Picot [2008] FMCAfam 1401 (22 December 2008) 2. Riley & Samuels [2008] FamCAFC 208 (19 December 2008) Catchwords: FAMILY LAW - APPEAL - APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL - Leave to appeal documents were originally incorrectly filed in the Federal Magistrates Court - No explanation for delay between the expiry of time as of right and the forwarding of the incorrect application - Period of delay short nonetheless - Merits of proposed appeal - No grounds of appeal - Oral submissions of father as to his arguments on appeal demonstrate no prospects of success - No appellable error discerned in the Federal Magistrate's reasons for dismissing the father's applications - Application dismissed FAMILY LAW - SECURITY FOR COSTS - Sought by the mother if an extension of time within which to appeal was granted - Father alleges he would not be able to meet an order for security for costs - Application for extension of time within which to appeal dismissed - Accordingly the application for security for costs is unnecessary - Application dismissed Date Delivered: 19 December 2008 Before: Warnick J Legislation Cited: Family Law Act 1975 (Cth), Part VII, s 65DA, s 65N, s 70NAC Cases Cited: Jurisdiction Full Court of the Family Court (post-2008) 3. Cain & Irvine [2008] FMCAfam 1373 (18 December 2008) Catchwords: FAMILY LAW - Parenting - alleged disclosure by child of sexual abuse by uncle when aged 2 - child aged 10 - question of whether child should spend time with uncle - question of unacceptable risk considered - no unacceptable risk. Date Delivered: 18 December 2008 Before: Sexton FM Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61DA and 68B Cases Cited: Jurisdiction Federal Magistrates Court 4. Pilot & Pilot [2008] FamCAFC 206 (18 December 2008) Catchwords: FAMILY LAW - APPEAL - SPOUSAL MAINTENANCE - contravention of orders - where trial judge found that the husband contravened spousal maintenance orders but did not impose any sanction - whether payments by the husband to the wife were for spousal maintenance or part-property payments - appeal dismissed. FAMILY LAW - APPEAL - COSTS - husband to pay wife's costs of appeal. Date Delivered: 18 December 2008 Before: Finn, Thackray and Strickland JJ Legislation Cited: Family Law Act 1975 (Cth) ss 112AB(1), 112AC and 112AD Cases Cited: Jurisdiction Full Court of the Family Court (post-2008) 5. Bergman & Bergman [2008] FamCAFC 207 (18 December 2008) Catchwords: FAMILY LAW - APPEAL - SPOUSAL MAINTENANCE - INTERIM - where the trial judge dismissed an application to discharge an earlier interim spousal maintenance order - whether the trial judge adequately considered the evidence which was before him concerning the change in the appellant's financial position - reference to Family Law Act 1975 (Cth) s 83(2) - no adequate reasons for trial judge's decision - error of principle established which caused substantial injustice to the appellant - leave to appeal granted - appeal allowed - application remitted for rehearing. FAMILY LAW - APPEAL - INTERIM COSTS ORDER - where the trial judge ordered that the appellant pay the respondent $100,000.00 Date Delivered: 18 December 2008 Before: Bryant CJ, Faulks DCJ and Finn J Legislation Cited: Family Law Act 1975 (Cth) s 83(2) Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Bennett & Bennett (1991) FLC 92-191 Barro & Barro (Unreported, Family Court of Australia, Strauss J, 15 September 1980) Barro & Barro (Unreported, Full Court of the Family Court of Australia, 6 March 1981) Rutherford & Rutherford (1991) FLC 92-255 Zschokke (1996) FLC 92-693 Jurisdiction Full Court of the Family Court (post-2008) 6. Cooke & Cooke [2008] FMCAfam 1363 (17 December 2008) Catchwords: FAMILY LAW - Children. Date Delivered: 17 December 2008 Before: Baker FM Legislation Cited: Family Law Act 1975, ss.61DA, 60CC, 60CA Cases Cited: Jurisdiction Federal Magistrates Court 7. Simpson & Edwards [2008] FMCAfam 1333 (17 December 2008) Catchwords: FAMILY LAW - Parenting orders - child been in shared care arrangement - competing Date Delivered: 17 December 2008 Before: Bender FM Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 8. Karras & Karras [2008] FMCAfam 1370 (17 December 2008) Catchwords: FAMILY LAW - Parenting - child aged 19 months - where parties separated when child 3 months old - where father has had only supervised time with the child to date - where father seeking extensive unsupervised time, leading to equal time when the child is four years of age - where mother proposing that supervised time continue - where mother assessed by a psychiatrist as having an anxious and avoidant personality - where mother claiming that her ability to parent will be affected if the father is permitted extensive unsupervised time with the child - whether final or interim orders should be made. Date Delivered: 17 December 2008 Before: Terry FM Legislation Cited: Family Law Act 1975 ss.60CC, 61DA, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 9. Ashcroft & Ashcroft (SSAT Appeal) [2008] FMCAfam 1250 (17 December 2008) Catchwords: CHILD SUPPORT - Appeal from decision of SSAT - treatment of business expenses of the payer. Date Delivered: 17 December 2008 Before: Slack FM Legislation Cited: Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988 Cases Cited: Jurisdiction Federal Magistrates Court 10. Sankil & Sankil [2008] FamCAFC 205 (17 December 2008) Catchwords: Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Date Delivered: 17 December 2008 Before: Finn, Coleman and Boland JJ Legislation Cited: Henry & Henry (1996) 185 CLR 571 Cases Cited: Jurisdiction Full Court of the Family Court (post-2008) 11. Wayne & Dillon and Anor [2008] FamCAFC 204 (17 December 2008) Catchwords: FAMILY LAW - APPEAL - Leave to appeal - From decision of Federal Magistrate - PROPERTY SETTLEMENT - PRACTICE & PROCEDURE - Joinder - Wife commenced proceedings in Federal Magistrates Court seeking orders by way of alteration of property interests - Wife alleged a third party had commenced a financial interrelationship with the husband and she sought to join her to the property settlement proceedings as a second respondent and that she be restrained from dealing with certain real property - Reasons were delivered for refusing the wife's application - A few months later the wife brought a further application for joinder of the third party which was heard by a different Federal Magistrate - Federal Magistrate granted leave to wife to join the third party to the proceedings - Third party sought leave to appeal the orders for joinder - The central contention is that the wife had not made out any properly particularised claim, recognisable at law, against the third party - Argued that there was no new, or no sufficient new evidence, upon which the Federal Magistrate could revisit the question of joinder - Argued that issues about disclosure, whether by the husband or the third party, was not a justification for the joinder - Argued that the joinder of the third party to the proceedings was oppressive - Leave to appeal granted - Appeal allowed - Application for amendment to join third party dismissed Date Delivered: 17 December 2008 Before: Warnick J Legislation Cited: Family Law Act 1975 (Cth), s 106B Family Law Rules 2004, r 6.02 Federal Magistrates Court Rules 2001, r 11.01, r 11.01(1), r 11.02, r 11.02(3) Cases Cited: B Pty Ltd and Ors & K and Anor [2008] FamCAFC 113 Butler-Andrews & Andrews and Ors [2007] FamCA 673 Gitane & Velacruz (2007) FLC 93-309 Gould v Gould; Swire Investments Ltd (1993) FLC 92-434 In the Marriage of Bishop (2003) 30 Fam LR 108 Rutherford and Rutherford (1991) FLC 92-255 The State of Queensland and Anor v J L Holdings Pty Ltd (1997) 189 CLR 146 Jurisdiction Full Court of the Family Court (post-2008) 12. PJC & MHC [2008] FamCAFC 203 (16 December 2008) Catchwords: FAMILY LAW - APPEAL - From decision of Federal Magistrate - CHILDREN - Orders made by Federal Magistrate in 2006 after the operation of Family Law Amendment (Shared Parental Responsibility) Act 2006 commenced - Father appealed and appeal allowed - Remitted to the Federal Magistrate for the application to the facts as found to the correct law- Federal Magistrate made orders dismissing both the father's and mother's applications having the effect that earlier consent orders remained the operative orders - Father appealed the dismissal of his application - Whether a miscarriage of the Federal Magistrate's exercise of discretion - Whether the Federal Magistrate failed to give any weight or any proper weight to the evidence before him of the relevant factors under the family law legislation - Whether the Federal Magistrate failed to have any or any proper regard to the best interests of the children on the evidence before him - Whether the Federal Magistrate failed or refused to have regard to relevant evidence, by failing to or refusing to appoint a single court expert to report as to the children's best interests - Whether the Federal Magistrate failed to have regard to relevant evidence of the best interests of the children and had regard to irrelevant evidence and errors of fact in determining the best interests of the children - Appeal dismissed - Appellant to pay the respondent's costs of and incidental to the appeal FAMILY LAW - APPEAL - From decision of Federal Magistrate - Application to adduce further evidence - The father sought to adduce further evidence in the appeal in relation to Christmas School holidays, school and health issues in relation to the children and that in the mother's household there had been violent treatment of the children - The mother sought in her response that the application be dismissed - Respective considerations of CDJ and VAJ (1988) FLC 92-828 - Application rejected by majority of Full Court 2:1 Date Delivered: 16 December 2008 Before: Warnick, May & Boland JJ Legislation Cited: Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Cases Cited: CDJ & VAJ (No 1) (1998) FLC 92-828 Goode & Goode (2006) FLC 93-286 Rice and Asplund (1979) FLC 90-725 Jurisdiction Full Court of the Family Court (post-2008) 13. Elkin & Cheney [2008] FMCAfam 1361 (15 December 2008) Catchwords: FAMILY LAW - Child aged seven - mother has Tanzanian background - father has Cypriot background - parties never lived together - parties have poor relationship - child born in France - father's identity not registered on birth certificate - parties in dispute regarding child's given name - child registered as Date Delivered: 15 December 2008 Before: Brown FM Legislation Cited: Family Law Act 1975, ss.68LA Cases Cited: Jurisdiction Federal Magistrates Court 14. Carne & Carne [2008] FMCAfam 1245 (12 December 2008) Catchwords: FAMILY LAW - Parenting orders - relocation - Wife seeking to relocate to Sydney (where parties originally from) with the parties two children aged 8 and nearly 5 - Husband seeks orders the children remain in Melbourne - children's wishes - meaningful relationship with both parents - ordered children remain living in Melbourne with the Wife. Date Delivered: 12 December 2008 Before: Bender FM Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 15. Garde & Raddison [2008] FamCAFC 198 (12 December 2008) Catchwords: FAMILY LAW - APPEAL from a decision of a Federal Magistrate - where the Federal Magistrate made no orders regarding the parties' interim applications - where the parties agree that the Federal Magistrate gave inadequate reasons - whether the appeal would have succeeded on a question of law - appeal allowed by consent. FAMILY LAW - PRACTICE AND PROCEDURE - Transfer of proceedings - whether the Full Court has power to transfer proceedings from the Federal Magistrates Court to the Family Court- issue not determined. Date Delivered: 12 December 2008 Before: Bryant CJ, Warnick AND O’Ryan JJ Legislation Cited: Family Law Act 1975 (Cth) Federal Magistrates Act 1999 (Cth), s 39, s 40, s 41 Federal Proceedings (Costs) Act 1981 (Cth), s 6, s 9 Family Law Rules 2004 Federal Magistrates Court Rules 2001, r 8.02 Cases Cited: B & B (Costs Certificates) (2007) FLC 93-339 Bennett and Bennett (1991) FLC 92-191 Cramer & Davies (1997) 72 ALJR 146 Re: K (1994) FLC 92-461 Sun Alliance Insurance Limited v Z & B Massoud [1989] VR 8 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Jurisdiction Full Court of the Family Court (post-2008) 16. Kiefer & Kiefer [2008] FamCAFC 197 (12 December 2008) Catchwords: FAMILY LAW - APPEAL from decision of a Federal Magistrate - procedural fairness - whether the Federal Magistrate failed to hear and determine an application for an adjournment by a litigant in person during the final hearing of property settlement proceedings - whether the Federal Magistrate failed to give adequate reasons for declining adjournment - consideration of whether the denial of procedural fairness to the appellant could have made any difference to the final property settlement orders made in the proceedings - appeal allowed Date Delivered: 12 December 2008 Before: Bryant CJ, Finn and Mushin JJ Legislation Cited: Family Law Act 1975 (Cth) s 79 Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9 Cases Cited: Bennett and Bennett (1991) FLC 92-191 Johnson v Johnson (1997) FLC 92-764 Kowaliw & Kowaliw (1981) FLC 91-092 Prior v Prior (2002) FLC 93-105 Quinn and Quinn (1979) FLC 90-677 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stead v State Government Insurance Commission (1986) 161 CLR 141 Sun Alliance Insurance Limited v Z & B Massoud [1989] VR 8 Weir and Weir (1993) FLC 92-338 Jurisdiction Full Court of the Family Court (post-2008) 17. Stewart & Stewart [2008] FMCAfam 850 (11 December 2008) Catchwords: FAMILY LAW - Property - age difference between spouses - income-earning potential - indirect contributions to superannuation - De Angelis considerations. Date Delivered: 11 December 2008 Before: Neville FM Legislation Cited: Family Law Act 1975, Part VIII ss.75 (2), 79, 79 (4) Cases Cited: Jurisdiction Federal Magistrates Court 18. Maddock & Caffyn [2008] FMCAfam 1221 (11 December 2008) Catchwords: FAMILY LAW - Parenting orders - competing Date Delivered: 11 December 2008 Before: Bender FM Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA Cases Cited: Jurisdiction Federal Magistrates Court 19. Trahn & Long (No. 2) [2008] FamCAFC 194 (11 December 2008) Catchwords: FAMILY LAW - APPEAL - REFUSAL OF STAY - Where trial Judge refused to stay the operation of parenting orders pending the hearing of the appeal against those orders - Where appeal against discretionary judgment -Whether refusal to grant stay would render the appeal nugatory - Where trial Judge appropriately gave significant weight to 15 year old child's firmly held views- Whether trial Judge erred in failing to consider refusal to stay certain orders would permit child to travel overseas - Error by trial Judge established - Where appropriate for Full Court to re-exercise the discretion -Where, in light of age of child, strength of views and absence of contact for several years, there was little utility in allowing appeal in part to prevent overseas travel - Where on re-exercise Full Court came to same result as trial Judge - Appeal against refusal of stay dismissed. FAMILY LAW - APPLICATION IN A CASE - TRANSCRIPT - Where applicant / appellant father sought that the Court provide transcript at its own cost - Where case not 'exceptional' - Where best interests of child did not require provision of transcript - Application dismissed. FAMILY LAW - APPLICATION IN A CASE - REGISTRAR TO PREPARE APPEAL BOOKS - Where applicant / appellant father sought that the Registrar be ordered to prepare the appeal books - Where no basis established to support the order sought - Application dismissed. FAMILY LAW - COSTS - Where applicant / appellant father largely unsuccessful - Where Independent Children's Lawyer sought a costs order against the applicant / appellant father - Where substantive appeal still pending - Costs reserved to the determination of the substantive appeal. Date Delivered: 11 December 2008 Before: Warnick, Boland & Dessau JJ Legislation Cited: Family Law Act 1975 (Cth) - s 118 Family Law Rules 2004 (Cth) - r 22.24 Cases Cited: Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Clemett and Clemett (1981) FLC 91-013 Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 Forbes & Bream [2008] FamCAFC 189 House v The King (1936) 55 CLR 499 Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 JRN & KEN & IEG & BLG (1998) 72 ALJR 1329 Jurisdiction Full Court of the Family Court (post-2008) 20. Davey & Davey and Anor [2008] FamCAFC 196 (11 December 2008) Catchwords: FAMILY LAW - APPEAL FROM FEDERAL MAGISTRATE - Appeal from interlocutory orders made in respect of the payment of security for costs by the husband for the costs of the two respondents - Where appellant failed to attend a conciliation conference - Whether security for costs should be ordered before the conciliation conference - Whether security for costs is appropriate before the trial - Appeal allowed in part FAMILY LAW - APPLICATION IN A CASE - Application to the Full Court to join a party - Where that party is unconnected to the appeal - Application dismissed FAMILY LAW - APPLICATION IN A CASE - Application to adduce further evidence - Where the evidence is entirely contentious - Application dismissed FAMILY LAW - COSTS - Appellant and respondents granted a cost certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) Date Delivered: 11 December 2008 Before: May J Legislation Cited: Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth), s 6, 9 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 AMS v AIF (1999) 199 CLR 160 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 CDJ & VAJ (No 1) (1998) FLC 92-828 Dietrich v R [1992] 177 CLR 292 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Johnson & Johnson (1997) FLC 92-764 Luadaka & Luadaka (1998) FLC 92-830 Nelson v Nelson (1995) 184 CLR 538 Penfold v Penfold (1980) FLC 90-800 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Rutherford & Rutherford (1991) FLC 92-255 Jurisdiction Full Court of the Family Court (post-2008) | Fathers4Equality | this page has been most recently updated on 27 December 2008 | |