Full Court of the Family Court of Australia

Rankin & Rankin (No. 3) [2019] FamCAFC 133 (8 August 2019)
FAMILY LAW – COSTS – RE-INSTATEMENT – APPLICATION FOR LEAVE TO APPEAL – Where the appellant’s application for leave to appeal was wholly unsuccessful – Where the respondent sought fixed indemnity costs or, in the alternative, fixed party/party costs in relation to the failed application for leave to appeal – Where the respondent also sought the quantum of costs under an interlocutory order be fixed – Where the appellant agrees to pay a fixed amount to the respondent for costs under the interlocutory order – Consideration of ss 117(1) and 117(2A) of the Family Law Act 1975 (Cth) – Application for indemnity costs dismissed – Costs ordered in favour of the respondent on a party/party basis in a fixed amount.

Rankin & Rankin (No. 2) [2019] FamCAFC 74 (3 May 2019)
FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the primary judge made a departure order varying the husband’s payment of child support assessed under the Child Support (Assessment) Act 1989 (Cth) – Where leave to appeal is required under s 102 of the Child Support (Assessment) Act 1989 (Cth) – Where two of the five grounds of appeal were abandoned at the commencement of the appeal – Where the husband contended that the primary judge misapplied the objectives of the Child Support (Assessment) Act 1989 (Cth) by failing to apportion any liability for the children’s support to the wife – Where the Full Court considers the primary judge’s orders prioritising the husband’s payment of child support over his outstanding legal fees were not unjust or inequitable – Where the primary judge correctly applied the criteria prescribed by ss 117(4) and 117(5) of the Child Support (Assessment) Act 1989 (Cth) – Where the primary judge gave adequate reasons for applying the criteria under ss 117(4) and 117(5) of the Child Support (Assessment) Act 1989 (Cth) – Where the appeal lacks merit – Application for leave to appeal dismissed.

Hsiao & Fazarri [2019] FamCAFC 37 (5 March 2019)
FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made a property settlement order after an undefended hearing – Whether the primary judge failed to properly take into account the appellant’s part ownership of a property and entitlements under a Deed of Gift – Whether the primary judge erred in making findings that did not take into account or give sufficient weight to particular evidence – Whether the primary judge made findings that were flawed, erroneous and contrary to the evidence – Where no error is established.

Family Court of Australia

Federal Circuit and Family Court of Australia (Division 1)

Vu & Ton (No. 2) [2021] FedCFamC1F 324 (23 December 2021)
FAMILY LAW – PROPERTY – Interim orders – sale of property – distribution of proceeds of sale – question of whether debts claimed exist – where the applicant claims to be indebted to his mother – where the respondent refutes the claimed debt – need for testing of evidence – injunction against further encumbering items of real property.

Rametta & Rametta and Ors [2020] FamCA 509 (23 June 2020)
FAMILY LAW – PROPERTY – where wife seeks to set aside a final property order made, by consent, in 2007. In the alternative, an extension of time within which she can review the registrar’s decision to make the final property order from seven days to nearly 13 years.

FAMILY LAW – EVIDENCE – agreement to qualify use of evidence so that evidence does not constitute evidence of value or quantity.

FAMILY LAW – COSTS – where legal practitioners were ordered not to charge for the parts of the affidavits which had been struck out and within 48 hours advise their respective clients in writing of the quantum by which this disallowance of fees will reduce his/her costs.

FAMILY LAW – PROPERTY – where it is appropriate to make order sought under s 79A(1A) of the Family Law Act.

Rametta and Ors & Rametta [2020] FamCA 377 (19 May 2020)
FAMILY LAW – INJUNCTIONS – where husband seeks a release of funds to which he is entitled pending determination of wife’s s 79A application – relevant considerations – injunction dissolved and funds paid to husband

FAMILY LAW – COSTS – where wife seeks $200,000 to fund her s 79A litigation which was brought 13 years after orders were made by consent– where court’s power is confined to costs power in s 117 – relevant considerations – where there is a vast disparity in financial positions of the husband and the wife – where costs may be disproportionate to proceedings.

Aldam & Cesari [2020] FamCA 54 (4 February 2020)
FAMILY LAW – COSTS – respondent’s conduct in proceeding dilatory – non-participation in parts of litigation – application for costs of one appearance – costs ordered.

McMurphy & McMurphy [2019] FamCA 947 (11 December 2019)
FAMILY LAW – PARENTING – Allegations of risk of harm – evaluation of risk both parents pose to the children – should orders be made for living arrangements of teenage children – whether an order should be made for equal shared parental responsibility or sole parental responsibility.

Rudd & Riddick (No. 3) [2019] FamCA 908 (4 December 2019)
FAMILY LAW – PROPERTY – Interim applications – where Applicant seeks to place chattels and personal items of the Respondent into storage – whether the Respondent should have continuous access to the parties’ property until the sale of the property – where the Respondent seeks a stay of sole use and occupation order pending an appeal – where the appeal is unlikely to be heard before the final trial – orders made – stay refused.

Rudd & Riddick (No. 2) [2019] FamCA 691 (4 October 2019)
FAMILY LAW – Parenting and Property applications – Injunctive relief – Sole use & occupation – Orders proper.

Toscani & Toscani [2019] FamCA 581 (25 July 2019)
FAMILY LAW – PRACTICE AND PROCEDURE – application for the appointment of a case guardian for the husband pursuant to rule 6.10 of the Family Law Rules 2004 (Cth) – where the husband lacks capacity to make decisions and understand the proceedings – application not opposed – case guardian appointed.

Riddick & Rudd [2019] FamCA 518 (12 June 2019)
FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – leave granted to the husband to apply out of time for review of orders made by a Deputy Registrar of the Family Court – where orders made by the Deputy Registrar inter alia for indemnity costs against the husband – orders made for husband to pay party/party costs – application for review otherwise dismissed

Barrett & Kynaston [2019] FamCA 221 (3 April 2019)
FAMILY LAW – CHILDREN – Parenting – Unopposed final orders – Sole parental responsibility.

Harty & Harty and Ors [2019] FamCA 522 (17 January 2019)
FAMILY LAW – PROPERTY – where it is just and equitable to make orders altering the parties’ interests in property – where the husband and wife were in a relationship for about six years and had no children – where significant disagreement as to contributions during the relationship and contributions of the wife to the husband’s entity – approach to valuation of the husband’s entity considered –where adversarial expert evidence adduced – where experts agree that husbands’ interest can be valued on the basis of its value to the husband – where experts agree on standard of value but disagree on methodology – where wife seeks a Kennon adjustment by reason of allegations of family violence – where Court finds insufficient basis for Kennon adjustment – consideration of the parties’ income earning capacities – where the husband has a greater earning capacity than the wife – final property orders made as to a 57.5/42.5 division in the husband’s favour

Fazarri & Hsiao (No. 3) [2018] FamCA 867 (29 October 2018)
FAMILY LAW – COSTS – where a property settlement application had been opposed until trial when the respondent sought an adjournment which was refused – where the matter proceeded on an undefended basis – where the applicant now seeks costs – where some costs should be awarded on the basis of wasted time.

Fitzwater & Fitzwater [2018] FamCA 1013 (18 October 2018)
FAMILY LAW – CHILDREN – Magellan List – Final parenting orders – Where there are two children of the marriage aged six and two – Allegation of unacceptable risk of sexual abuse by the father – Where the children live with the mother and the father has spent only supervised time with the children since January 2017 – Where the mother alleges the daughter made statements on several occasions during the marriage and subsequently demonstrated to her that the father digitally penetrated her vagina – Where the mother asked the father to leave the former matrimonial home as a result of what the child told her – Where there have been allegations of family violence during the marriage and an interim intervention order made by consent of the father without admission of the allegations in the complaint – Where the child has not made any complaint about the conduct of the father to police, any professional or the family consultant – Where there are no allegations made that the father has acted inappropriately towards the male child of the parties who was aged eight months at separation – Where the father denies the allegations and seeks that the children live with him – Where the father maintains that the mother is malicious and has conspired with the maternal grandmother and maternal aunt to make false statements about what the child told them with the purpose of ending the marriage and obtaining a property settlement – Where the father maintains that the mother is paranoid with child sexual abuse because her work has some connection to child abuse – Where the Independent Children’s Lawyer submits there is not sufficient evidence to make a finding that the father is an unacceptable risk – Where the Independent Children’s Lawyer does not support the father’s application for change of residence – Where the mother has a genuine belief on reasonable grounds that the child is telling the truth – Finding that the father is an unacceptable risk – Order that the children live with the mother and spend supervised time with the father – Order that the mother have sole parental responsibility.

Fazarri & Hsiao (No. 2) [2018] FamCA 447 (19 June 2018)
PROPERTY SETTLEMENT – Undefended proceeding – where the wife was refused an adjournment and then did not participate further, refusing to return to the court on the second day – where the husband satisfies the court that his contribution both financial and non-financial was overwhelming by comparison to that of the wife – where the s 75(2) factors do not assist the wife because of the absence of evidence and because of the fact that the husband maintained that the wife could obtain employment – s 106A order made on the basis of anticipatory non-compliance by the wife.

Fazarri & Hsiao [2018] FamCA 446 (19 June 2018)
RECUSAL – where the wife asserts conflict of interest because judge’s associate has same name as husband’s former wife and contemplates there is a connection – where the wife asserts apprehended bias based on issues of discussion with various counsel – application for recusal rejected.

ADJOURNMENT – where wife seeks adjournment maintaining husband has not complied with discovery obligations – application refused.

Federal Circuit Court of Australia

Paletta & Quaney [2020] FCCA 1616 (24 June 2020)
FAMILY LAW – Application for leave to institute property proceedings out of time – parties entering into informal agreement in 2017 – whether delay in making application adequately explained – whether applicant had reasonable prima facie case if proceedings had been issued in June – whether applicant will face hardship if leave not granted – where amount in dispute if leave granted will likely be wholly or largely consumed in costs – balancing of competing considerations – application not granted.

Gong & Yee (No.2) [2020] FCCA 670 (26 March 2020)
FAMILY LAW – Costs – respondent seeks costs after applicant wholly unsuccessful in application for leave to proceed out of time.

Gong & Yee [2020] FCCA 400 (28 February 2020)
FAMILY LAW – Application to proceed out of time – flaws in application – 5 years out of time – short relationship.

Bustos & Bustos [2019] FCCA 3522 (5 December 2019)
FAMILY LAW – Costs – application for adult child maintenance and child support departure – application discontinued – mutual costs applications.

Garfield & Cassano (No.2) [2019] FCCA 2089 (2 August 2019)
FAMILY LAW – Costs – mother’s application for costs against father in substantive proceedings – father’s application for costs against mother in costs application – no costs awarded.

Birmingham & Colwell [2019] FCCA 1837 (2 July 2019)
FAMILY LAW – Property settlement – de facto relationship – agreed property pool – consideration of respondent’s initial contributions – consideration of future needs.

FAMILY LAW – Parenting – where father has history of alcohol dependence and ill mental health – whether father’s time with the children should be supervised – whether father poses an unacceptable risk to the children – best interests of the children.

Roden & Montiel [2019] FCCA 1641 (14 June 2019)
FAMILY LAW – Child conceived via artificial insemination – whether or not the applicant sperm donor has standing to bring an application for parenting orders.

Allman & Allman [2019] FCCA 909 (11 April 2019)
FAMILY LAW – Parenting – interim parenting orders – where the Children live with the Mother – time spent between the Children and the Father – whether the Children should spend overnight midweek time with the Father – distance between the parties – interim application dismissed pending further evidence.

Garfield & Cassano [2018] FCCA 3265 (14 November 2018)
FAMILY LAW – Parenting – parental responsibility – international relocation – consideration of child’s schooling – best interests of the child.