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Family Law Court publishes new judgements

The links to the Full Court judgments listed in the May edition of FLS online News issued on Friday have been revised. The revised links are as follows:

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Astin & Harlow [2008] FamCAFC 66 16/05/2008
Children with whom a child spends time consent orders contravention the mother alleged 33 contraventions of the parenting orders mother also sought that she be granted leave to reopen virtually all parenting issues that had been resolved by consent trial Judge heard nine of the alleged contraventions and dismissed them the mother then consented to the dismissal of the balance of the allegations trial Judge dismissed the mother's application for leave to reopen parenting issues mother appealed whether the mother suffered procedural unfairness whether the trial Judge erred in accepting into evidence a letter and whether he placed undue reliance on it whether, in refusing leave to re-open parenting issues, the trial Judge placed reliance on his recollections of evidence of a psychiatrist and social worker who had prepared reports in earlier litigation whether the trial Judge erred by not receiving into evidence contact centre notes whether the trial Judge did not have proper regard to the mother's claims that she had been under duress when signing the consent orders No error in the trial Judge's treatment of the applications appeal dismissed.
Application for leave to adduce further evidence out of time the mother did not show in what way the further evidence demonstrates, had it been before the trial Judge, that the orders, whether for dismissal of the contravention allegations or dismissal of the application for leave seeking to reopen the children's issue, were erroneous or likely to be erroneous.

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Summerfield & Summerfield [2008] FamCAFC 63 13/05/2008
Property findings of fact not established that trial Judge was in error in the inclusion or quantification of a credit loan account or monies expended from Hong Kong bank accounts in the pool of assets. Assertion that trial Judge erred in determination of wife's knowledge of and benefits derived from Hong Kong bank accounts or in relation to the purchase price of personal property not established.
Evidence credibility not established that appellate intervention in trial Judge's conclusions relating to credibility warranted. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588, Devries v Australian National Railways Commission (1993) 177 CLR 472, Abalos v Australian Postal Commission (1990) 171 CLR 167 and SS Hontestroom v SS Sagaporack [1927] AC 37 cited.
Discretion assertion that trial Judge's exercise of discretion miscarried in relation to a taxation liability and any interest or penalties relating to it or in general not established. Norbis v Norbis (1986) 161 CLR 513 and De Winter v De Winter (1979) FLC 90-605 cited.
Costs findings of fact assertion that trial Judge failed to find the husband had not made a full and frank disclosure of his financial position not established. Not established that trial Judge erred in findings relating to offers of settlement.
Discretion not established that trial Judge was in error in the exercise of discretion nor in the weight given to the disparity of financial positions of the parties, to offers of settlement or to the liability owed to the Australian Taxation Office. Penfold v Penfold (1980) 144 CLR 311 cited.
Application of law not established that trial Judge erred in choice of method of assessing costs nor in the amount determined by him.
Judgments adequacy of reasons complaint that trial Judge failed to give adequate reasons relating to the assessment of costs not established.

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Orwell & Watson [2008] FamCAFC 62 09/05/2008
Children child abuse allegations of sexual and psychological abuse made by mother trial Judge found a risk of sexual abuse but was satisfied that the risk not an unacceptable one trial Judge found that the child at unacceptable risk of psychological abuse by the father due to his manipulative and over-bearing behaviour and disrespect for boundaries trial Judge ordered that the child live with the mother and the mother have sole parental responsibility for the child father to spend supervised time with the child the father appealed against all orders most of the challenges raised on appeal were to findings which are in the nature of inferences drawn from primary findings challenges to specific findings the father challenged the trial Judge's conclusions about his behaviour based on a number of incidents and evidence of those incidents the father argued that with respect to the question of whether the father posed a risk of psychological harm to the child the evidence must show more than opportunity and capacity to act in a harmful way, but a propensity to do so argued by the father that the relevant risk must be more than conjecture the trial Judge's findings amounted to more than just conjecture no merits in the arguments on appeal appeal dismissed.
Costs father to pay the mother's costs of the appeal.

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J & R [2008] FamCAFC 61 09/05/2008
Children relocation parenting issues presented for trial parents decided that after the Federal Magistrate had heard some expert evidence the matter would proceed by way of written submissions whether a miscarriage of discretion on appeal the mother challenged the orders in respect of the extension of the time the child spends with the father on weekends and the prevention of her relocating with the child argued by the mother on appeal that the Federal Magistrate unduly elevated evidence of a child and adolescent psychiatrist over all other evidence, which he then inappropriately regarded as untested, and thus wrongly diminished its significance whether certain opinions and observations were wrongly given weight as if they were opinions of an expert for the purposes of s79 Evidence Act 1995 (Cth) no merits in grounds of appeal appeal dismissed.

Director-General, Department of Community Services & Frampton (No. 2) [2008] FamCAFC 52 29/04/2008
Hague Convention where the Full Court had allowed an appeal against, and set aside, declarations and orders made by the trial Judge the effect of the Full Court orders was that the child should return to the United Kingdom with her mother pursuant to the Family Law (Child Abduction Convention) Regulations 1986 the Full Court had made directions for submissions to be filed by the parties (in either agreed or separate form) in relation to the machinery orders required to provide for the return of the mother and child to the United Kingdom separate draft orders and supporting submissions were subsequently received from the parties where the mother is now in an advanced state of pregnancy and seeks to remain in Australia for the birth of her child and for the following two months to permit immunisation of the infant proposed machinery orders set out by the Full Court in the reasons for judgment order made that each party file and serve on the other side brief submissions indicating their agreement or otherwise with those proposed orders.

Director-General, Department of Community Services & Frampton (No. 3) [2008] FamCAFC 64 08/05/2008
Hague Convention where the Full Court had set out proposed machinery orders for the return of the mother and the child to the United Kingdom in previous reasons for judgment and ordered that each party file brief submissions indicating their agreement or otherwise with those proposed orders where written submissions were subsequently received by both parties machinery orders made.

Rush & O'Leary [2008] FamCAFC 60 08/05/2008
Relocation where the trial Judge ordered that the mother's application to change the place of residence of the parties' children from Sydney to rural Victoria be refused and that the mother be restrained from changing the children's residence to any place more than 15km from the former family home in Sydney the trial Judge also made orders for defined contact between the children and their father, including the introduction of Wednesday overnight contact whether the trial Judge had pre-judged the matter and raised a reasonable apprehension of bias no merit found in these complaints restraint on the mother relocating to Victoria challenged on the basis that the trial Judge erred in asserting that the mother was required to provide adequate reasons for the proposed relocation and in failing to have regard to the economic impact on the mother if she was not permitted to move to Victoria no merit found in these complaints 15km restraint challenged on the basis that it had not been sought or explored at trial, that inadequate reasons had been given by his Honour for the restraint, that the restraint was contrary to other part of his Honour's reasoning and that the restraint was not supported by the evidence order varied to restrain mother from changing the children's place of residence to any area outside the Sydney metropolitan region Wednesday overnight contact order challenged on the basis that the order was only sought by the father during final submissions and on the basis of inadequacy of reasons order varied to make it an interim order.
Applications to adduce further evidence dismissed.
Costs parties at liberty to file submissions in relation to costs.

Spoke & Spoke [2008] FamCAFC 59 08/05/2008
Property whether the trial judge erred in refusing an injunction restraining the sale of the former matrimonial home whether the trial judge erred in ordering an interim property settlement whether the appellant was denied procedural fairness appeal allowed.
Spousal maintenance application for leave to appeal whether in making interim orders for spousal maintenance and the payment of outgoings on the former matrimonial home the trial judge denied the appellant procedural fairness application granted appeal allowed.
Costs certificate granted to the appellant.

Keenon & Keenon [2008] FamCAFC 58 07/05/2008
Costs whether the appellant was denied procedural fairness by not having the opportunity to make submissions in respect of costs whether Federal Magistrate erred in the exercise of discretion in making costs order lack of procedural fairness established appeal upheld.
Application to admit further evidence where relevance of further evidence questionable where evidence was available at the time of the hearing before the Federal Magistrate and could have been adduced at the hearing application dismissed.

Manotis & Manotis [2008] FamCAFC 55 05/05/2008
Appeal application to extend time to appeal.

Cohen & Cohen [2008] FamCAFC 54 05/05/2008
Superannuation contributions not established that Federal Magistrate erred in the exercise of discretion by failing to have appropriate regard to non-financial contributions of the wife to the superannuation interest of the husband, that being in the payment phase when the parties met. House v The King (1936) 55 CLR 499; Norbis v Norbis (1986) 161 CLR 513 and Gronow v Gronow (1979) 144 CLR 513 cited. Circumstances of this case differed from those in Farmer & Bramley (2000) FLC 93-060 and contributions post-separation were appropriately considered by Federal Magistrate. Federal Magistrate held not to have treated the superannuation interests inconsistently to non-superannuation assets.
Property non superannuation assets contributions assertion that Federal Magistrate erred in the exercise of discretion in evaluating the wife's contributions to the non-superannuation assets not established.
Property s75(2) not established that Federal Magistrate was in error in his assessment of s75(2) factors. Federal Magistrate did not fail to have regard to relevant factors, nor had regard to irrelevant factors. Refusal to make a s75(2) adjustment was within a reasonable ambit of discretion.
Property just and equitable complaint that Federal Magistrate's decision was not just and equitable not established.
Judgments adequacy of reasons assertion that Federal Magistrate's reasons were inadequate not established. Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Bennett & Bennett (1991) FLC 92-191 cited.

Dobbs & Brayson [2008] FamCAFC 53 02/05/2008
Children contravention application by father mother convicted of contravention of parenting orders appeal allowed question remained of what should be done with the father's application some irregularity in proceedings at first instance mother already served two months' imprisonment in a further appeal against the parenting orders upon which the father's contravention application was founded, the Full Court discharged the relevant parenting orders parties directed to file written submissions application for contravention dismissed.

Commissioner for Taxation & Worsnop and Anor (Extension of Time to Appeal) [2008] FamCAFC 48 22/04/2008
Application to extend time child support where trial Judge dismissing wife's application for a departure from child support assessment where wife failed to seek leave to appeal within time - where satisfactory explanation for the delay consideration of principles applicable to exercise of discretion as discussed in Gallo v Dawson (1990) 93 ALR 479 and Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 where wife's application brought on a "defensive basis" rather than on basis of any error of law where wife can apply for departure order and under s123 of the Child Support (Assessment) Act 1989 (Cth) for lump sum child support no error by trial Judge in dismissing wife's application for departure extension of time refused - where wife sought leave to cross appeal whether proposed grounds disclose likely prospects of success of appeal whether wife would be substantially prejudiced if an extension of time was not granted where an appeal is on foot - where wife appears to have capacity to meet costs order if the cross appeal fails prejudice to husband and/or ATO by granting the extension of time outweighed by the prejudice the wife would suffer - extension of time to file cross appeal granted.

Christian & Donald [2008] FamCAFC 44 18/04/2008i
Property where trial Judge dismissed husband's application to set aside orders for property settlement whether trial Judge erred in failing to properly consider husband's application to set aside orders for property settlement pursuant to s79A of the Family Law Act 1975 (Cth) where husband alleged a miscarriage of justice by way of suppression of evidence of the children's wishes to live with him where trial Judge noted the prior property orders specifically took into account the children's stated wishes - where no claim under s79A(1)(b) and raised at trial husband's case on appeal was fundamentally different to that at trial whether trial Judge failed to consider the evidence that the children had moved to live with husband - whether trial Judge erred in finding that the children's move to live with the husband constituted "circumstances of an exceptional nature" but was within "the ordinary vicissitudes of life" discussion of Simpson & Hamlin (1984) FLC 91-576 - under s79A(1)(d), the husband had to establish both "exceptional circumstances" and "hardship" no error by trial Judge. Whether trial Judge erred in failing to deal with application to return youngest child's belongings to husband where Trial Judge not required to set aside or vary earlier property orders where husband did not establish what items of the child remained with the wife no error by trial Judge.
Children whether trial Judge erred in refusing to discharge order in respect of child aged 16 years and/or to vary contact changeover arrangements for youngest child - where trial Judge found variations sought by the husband not in the children's best interests - where trial Judge gave sound reasons for refusing application - no error by trial Judge.
Application for leave to appeal child support departure whether trial Judge erred in upholding the Child Support Registrar's application of a prior Full Court's decision in respect of the husband's child support assessment where no statutory basis for relief as sought by the husband where trial Judge's findings on the departure application were open to her leave to appeal refused.
Adult and child maintenance where trial Judge refused husband's application for reimbursement from wife of child's tertiary education expenses and weekly maintenance by way of adult child maintenance where trial Judge held that the husband failed to demonstrate that maintenance was "necessary" to complete the child's education where expenditure had already occurred - Cosgrove & Cosgrove (1996) FLC 92-700 followed - trial Judge erred in failing to consider the evidence in relation to the "necessity" of maintenance to complete child's education Full Court re-exercised the discretion and concluded the husband failed to establish a "necessity" for payment of adult child maintenance by the wife - husband failed to meet the requirements of s66L.
Litigant in person whether trial Judge's conduct of the hearing was prejudicial to the husband whether trial Judge failed to provide husband with proper assistance - where husband appeared as a litigant in person where trial Judge provided explanations and assistance to the husband where trial Judge went to considerable lengths to ensure that the husband understood procedures of court trial Judge's conduct of the hearing was not prejudicial to the husband.
Costs where the husband was wholly unsuccessful where the husband filed voluminous material which did not comply with the Family Law Rules 2004, requiring the wife to apply for further orders where circumstances under s117(2A) warranted an order that the husband pay the wife's costs husband to pay wife's costs of and incidental to the appeal.

O'Hurley & O'Hurley [2008] FamCAFC 57 11/04/2008
Property s79A application to set aside consent orders findings of fact assertion that Federal Magistrate erred in his finding relating to the duration of a second period of cohabitation not established. Not shown that such duration materially impacted on exercise of discretion.
Judgments adequacy of reasons not established that Federal Magistrate failed to give sufficient reasons for concluding as he did, his reasoning process being reasonably apparent from his reasons for judgment and revealing that he was clearly aware of the facts upon which the husband based his claim. Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Bennett & Bennett (1991) FLC 92-191 cited. Husband failed to establish his case on the balance of probabilities. Prowse & Prowse (1995) FLC 92-557 cited.
Justice contention that justice demands that consent orders be set aside by this Court and/or that Federal Magistrate erred in failing to consider the justice of the case not established. Section 79A Family Law Act 1975 (Cth) discussed. Section 79A does not require consideration of the justice of the case where no relief pursuant to the section has been made out. No alleged unfairness at the time of making the consent orders nor arising thereafter could have assisted the husband's case before the Federal Magistrate.
Consensual setting aside of consent orders not established that Federal Magistrate erred in finding that the change in parenting and homemaking roles of the parties did not constitute implied consent to set aside consent orders.
Costs the appeal against the substantive judgment of Federal Magistrate being unsuccessful, no disturbance of costs order warranted.

Hilton & Hilton [2008] FamCAFC 42 02/04/2008
Property long marriage equal assessment by Federal Magistrate of contributions of parties leaving aside inheritances failure by Federal Magistrate to discuss husband's evidence relating to an inheritance money from husband's inheritance used as part payment of an investment property Federal Magistrate failed to mention the tax debt of the husband at trial on appeal the husband also attacked the Federal Magistrate's inclusion in the asset pool of the equity of the husband in property purchased with his new partner after separation (but not an alleged debt in relation to it) on appeal the husband also attacked the Federal Magistrate's deduction of a credit card debt of the wife at the time of separation the respondent conceded that at least one of the grounds of appeal had merit.
Re-exercise of discretion parties agreed on asset pool save as to the inclusion or exclusion of three items parties agreed upon including the superannuation interests of each party in the single asset pool the parties agreed that no adjustment to assessment of contributions required because of any factors included in s75(2) of the Family Law Act 1975 (Cth) issues to consider on re-exercise are assessment of contributions; whether the tax debt should be deducted from gross assets; whether the husband's equity in The Burrows should be included in the asset pool; and whether the amount of the Visa card debt at separation should be deducted from the asset pool.

Simpson & Simpson [2008] FamCAFC 43 19/03/2008
Children substantial and significant time whether Federal Magistrate erred in failing to give adequate reasons for her determination that the husband spend every second weekend with the children instead of two out of each three weekends Held: the manner in which the parties ran their case, by not disputing certain issues, calling oral evidence or cross-examining the family consultant, did not relieve the Federal Magistrate from the requirement of considering the various statutory provisions of the Act in accordance with the authorities appeal allowed matter remitted for rehearing on the issue of the proportion of time the children are to spend with the husband during weekends.

Reece & Reece [2008] FamCAFC 56 14/03/2008
Costs application by applicant husband to adjourn proceedings adjournment granted order for costs to respondent wife.

Kendling & Kendling (Application to Extend Time to Appeal) [2008] FamCAFC 49 26/02/2008
Application to extend time to appeal where the applicant sought an extension of time to file Notice of Appeal application of Gallo & Dawson (1990) 93 ALR 479 where proposed grounds of appeal raised at least one substantial issue where the leave application was filed reasonably promptly after the expiration of the time provided in the Family Law Rules 2004 for filing an appeal where the delay in filing the appeal was not solely due to the applicant delay was regrettable but understandable where applicant able to pay costs in amelioration of any prejudice experienced by the respondent if the appeal is unsuccessful where there is other continuing litigation between the parties currently before the court failure to grant leave would constitute injustice extension of time granted.
Costs where applicant sought and obtained an indulgence from the court applicant to pay respondent's costs of and incidental to the application.

Kettle & Baker & Green (No. 2) [2007] FamCA 1651 26/11/2007
Reinstatement of appeals appeals deemed abandoned failure to file pre-argument statement appeals reinstated and consolidated.
Stay application order to sell part of land.
Costs considerable expense to the respondents costs in relation to directions reserved appellant to pay the respondents costs in relation to the reinstatement of the appeal fixed at $1,100.

Christian & Donald [2004] FamCA 1171 21/12/2004
Child support departure capital disparity where wife awarded an extra 20% in division of property for care of the children where residence of two children subsequently shifted to the husband and one child to a shared residence arrangement whether court should take capital disparity into account under s117(2)(i) or s117(2)(ii) of the Child Support (Assessment) Act 1989 whether unjust to require wife to deplete capital to pay child support.

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