Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction
Addicks & Addicks [2025] FedCFamC1A 112 (27 June 2025)
PARENTING – Where the appellant father appeals against final parenting orders – Where the appellant contends the primary judge failed to afford the appellant procedural fairness by making orders outside the ambit of those proposed by the parties – Where the appellant argues that the primary judge erred in taking into account an irrelevant consideration – Primary judge erroneously set out the proposals of the parties at trial – Primary judge erred in not indicating that he was contemplating orders outside the ambit of those proposed by the parties – Appeal allowed in part – Matter remitted for rehearing by another judge as to the question of the youngest child’s time with the appellant – Costs certificates issued.
Couldrey & Sedgwick [2025] FedCFamC1A 125 (18 July 2025)
APPEAL – Consent final property orders – Where the appellant contends jurisdictional error, inadequate reasons and factual error – Consideration of Harris & Caladine (1991) 172 CLR 84 and Maxwell v Miltiadis (2015) FLC 93-644 – Where compliance with the requirements of s 79 of the Family Law Act 1975 (Cth) in the making of consent orders is much less demanding provided that the court is adequately informed, where the parties are at arm’s length, and are properly represented – Where little more in that circumstance than consent may be needed to establish that the requirements of justice and equity have been met – Where the appellant was legally represented by counsel and a solicitor at the trial and for the purposes of the entry of the consent orders – Where no error of jurisdiction or inadequacy of reasons is established – Where the primary judge did not err as to the fact of the appellant’s consent – Appeal dismissed. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appellant made an oral application to adduce further evidence – Application allowed.
Shinohara & Shinohara [2025] FedCFamC1A 126 (23 July 2025)
PARENTING – Where the appellant’s Summary of Argument does not engage with the grounds in the Amended Notice of Appeal – Consideration of rule 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Consideration as to how deficient grounds of appeal are liable to elude or conceal essential points – Where the appellant alleges factual error, error by failing to take into account a material consideration, weight errors and inadequate reasons – Errors not established – Where the Summary of Argument but not a ground of appeal alleges error in making orders providing for the increase of time spent tethered to the appellant undertaking a specified course of clinical psychological treatment for a finite period – Whether the orders for therapeutic treatment impermissibly delegated judicial authority to the treating psychologist – Consideration of Lainhart & Ellinson [2023] FedCFamC1A 200 and Miyajima & Mikkelson [2024] FedCFamC1A 208 – No merit in the additional matter raised in the Summary of Argument – Where error is not established – Parenting appeal dismissed – Appellant to pay the respondent’s and the Independent Children’s Lawyers costs in the parenting appeal in a fixed sum.
PROPERTY – Where the appellant appeals from two orders adjusting the property of the parties but does not challenge the balance of the suite of orders made pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the primary judge erred in failing to afford procedural fairness, to consider material and provided inadequate reasons – Property appeal allowed.
RE-EXERCISE OF DISCRETION – Consideration of principles as to the notional adding back of property at the date of assessment that no longer exists – Consideration of s 79(3) of the Family Law Act 1975 (Cth) – Where add backs cannot be identified as the legal and equitable interests of the parties or either of them in property at the date of assessment – Where hence add backs cannot be included in the “balance sheet” identifying and valuing that property for adjustment – Where the mandate of justice and equity that permeates s 79 is shaped from the particular circumstances of each case – Where the historic categories of add backs are to be recognised and considered within the matrix of either s 79(4) as part of the contribution history to the date of assessment and/or s 79(5) as a consideration of the impact of the disposal of property on current or future circumstances – Where such consideration, by either s 79(4) or s 79(5), forms part of a holistic assessment – Where the superannuation property remains as consensually adjusted by the primary judge as to 47 per cent to the appellant and 53 per cent to the respondent – Where on re-exercise the non-superannuation property is adjusted 67.5 per cent to the appellant and 32.5 per cent to the respondent, and both the combined superannuation and non-superannuation property is adjusted 57.5 per cent to the appellant and 42.5 per cent to the respondent – Costs certificates ordered.
Federal Circuit and Family Court of Australia – (Division 1)
Earle & Earle [2025] FedCFamC1F 84 (18 February 2025)
RECONSIDERATION OF FINAL PARENTING ORDERS – Where final parenting orders were made in 2021 providing for the parties’ children to live with their father, for him to have sole parental responsibility, and for the children to spend time with their mother on a supervised basis – Where the final parenting orders included an order that the parties have leave to apply for a variation of the orders relating to the mother’s time with the children and the matter of supervision at the expiry of 24 months from the date of the orders by filing and serving an application – Where such order is made without power pursuant to Halloran & Keats [2023] FedCFamC1A and mandatory provisions of s 65DAAA of the Family Law Act 1975 (Cth) – Where the mother filed an application seeking sole parental responsibility, for the children to live with her, and if the Court were to find the father an unacceptable risk, for the children to spend no time with the father – Where the father sought the dismissal of the mother’s application – Where the mother sought at trial through counsel a reconsideration of the final parenting orders pursuant to s 65DAAA – Where the father and the ICL both opposed the relief sought by the mother.
RECONSIDERATION OF FINAL PARENTING ORDERS – Significant change of circumstance – Where a final parenting order can only be reconsidered if there is a significant change of circumstance and it is in the child’s best interests for the order to be reconsidered – Where the mother submitted as a significant change of circumstance that there has been a substantial effluxion of time since the orders were made, that there has been a change in the medical evidence, and that the mother does not meet the criteria for a diagnosis of schizophrenia or delusional disorder – Where the Court is not satisfied that the mother has established a significant change of circumstances regarding the medical evidence or the mother’s diagnosis – Where the Court is satisfied that the substantial effluxion of time is a significant changed circumstance – Consideration of the best interests of the children – Where the Court limited the orders to be reconsidered to those provided by s 64B(2)(b) of the Act.
PRACTICE AND PROCEDURE – Where the mother filed an application in June 2023 – Where in August 2023 a Judge of Division 2 made orders appointing an ICL and fixing the matter for hearing to commence in November 2023 – Where no such hearing commenced on that date, instead orders were made appointing another single expert to prepare a report and transfer of the matter to Division 1 – Where the Court finds that this is inconsistent with the provisions of s 95 of the Family Law Act 1975 (Cth).
Henschel & Sartre (No 7) [2025] FedCFamC1F 204 (31 March 2025)
PROPERTY – MAJOR COMPLEX FINANCIAL PROCEEDING – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the husband’s parents both personally and by way of corporations they control have made significant advances of funds to the husband prior to, during the course of, and subsequent to, the parties marriage – Where the husband contends an advance in 2001 and a series of advances from 2015 to 2020 were by way of loan agreements, being liabilities in the balance sheet identifying the property of the parties – Where the wife contends that the evidence does not establish loan agreements in the terms contended by the husband, or in the alternative that recovery of the 2001 advance is statute-barred, or in the further alternative that it is not likely that either advance will be called upon to be repaid (Biltoft and Biltoft (1995) FLC 92-614) – Where the husband’s initial financial contributions and the financial support provided by his parents during the marriage attracts significant weight when consideration is given to the use made of those contributions (Pierce v Pierce (1999) FLC 92-844) – Where both the parties worked hard in their respective spheres throughout the marriage relationship – Where the wife makes a Kennon v Kennon (1997) FLC 92-757 contention that her contributions were made more onerous and arduous – Orders made adjusting the property of the parties 45.5 per cent to the wife and 54.5 per cent to the husband.
Alobi & March [2025] FedCFamC1F 216 (03 April 2025)
JURISDICTION – Where the husband contends Australia is an inappropriate forum for the hearing of the wife’s parenting and property applications – Where the parties have involved themselves in many proceedings in India – Application of principles – Where all the major assets are in Australia – Where there is no evidence that an Indian court would make orders in relation to property in Australia – No property proceedings presently on foot in India – Where the child is in India – Where there are custody proceedings on foot in India – Australia is not a clearly inappropriate forum for the property dispute – Australia is a clearly inappropriate forum for the parenting dispute whilst the child remains in India – Stay of parenting proceedings whilst the child is in India.
Bhagat & Sandhu (No 4) [2025] FedCFamC1F 229 (09 April 2025)
PROPERTY – Final Orders – Proceedings for financial adjustment pursuant to Pt VIII – 15-year marriage – Where the parties are agreed as to the value of their assets and as to how their assets should be divided in specie save for a jointly owned property – Where the parties are in dispute as to the inclusion of various addbacks – Where the husband contends that there be no adjustment under s 75(2) – Where the wife contends that a further 15 per cent adjustment under s 75(2) should be made in her favour. FAMILY LAW – ISSUE ESTOPPEL – Where the husband contends that the family violence allegations have already been litigated in the parenting proceedings such that an issue estoppel arose – Where there is no finding determining the family violence allegations in the earlier proceedings, so no issue estoppel can arise in these proceedings. FAMILY LAW – FAMILY VIOLENCE – Where the wife sought an adjustment for family violence perpetrated by the husband as the wife’s contributions were made significantly more arduous – Where the husband denied all incidents of family violence – Where the husband elected to call no evidence about allegations of family violence beyond a denial – Where the Court finds that the husband perpetrated family violence such that the wife’s contributions would have been made more arduous. FAMILY LAW – Contributions by grandparents – Where counsel submitted that the Court should have regard to the contributions made by their respective parents – Where at times throughout the relationship both the maternal and paternal grandparents would assist in the care of the children – Where the wife conceded that the paternal grandparents were present in the parties’ homes more often than the maternal grandparents for cultural reasons – Consideration of s 79(4) and s 75(2)(o) – Where there needs to be some evidentiary foundation for consideration even within the rubric of something as broad as the “justice of the case” – Where the Court is not satisfied that the evidence is sufficient to conclude that assistance by grandparents constitutes a contribution.
Pacek & Saltzer (No 4) [2025] FedCFamC1F 252 (30 April 2025)
MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – respondents ordered to execute deeds and instruments to indemnify the applicant – respondents failing to execute the relevant documents – applicant seeking orders requiring a registrar of this court to execute documents to give effect to the orders made on 17 October 2024 – held, a registrar must execute documents.
MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – two proceedings transferred to this court from the Supreme Court of Victoria – no cause of action survives either proceeding – held, the two proceedings cross-vested to this court from the Supreme Court of Victoria are dismissed pursuant to r 10.22.
CORPORATIONS LAW – s 199A of the Corporations Act – whether s 199A applies to indemnities given in pursuance of court orders rather than voluntarily – detailed consideration of the statutory provisions containing a prohibition on companies indemnifying directors.
Glos & Glos (No 4) [2025] FedCFamC1F 318 (15 May 2025)
PRACTICE AND PROCEDURE – where the husband seeks that the wife’s lawyers be restrained from acting for the wife – where documents belonging to the husband and subject to legal professional privilege were improperly accessed by the wife – where information from those documents was utilised by the wife against the husband in the financial proceedings – where orders are made restraining the wife’s lawyers from acting on behalf of the wife.
Federal Circuit and Family Court of Australia – (Division 2)
Petrone & Petrone [2024] FedCFamC2F 1038 (02 August 2024)
CHILD SUPPORT – Enforcement of a purported Binding Child Support Agreement – Whether the Binding Child Support Agreement is a valid agreement – Binding Child Support agreement found to be void ab initio.
CHILD SUPPORT – Departure Application – Orders sought in the alternative for a Departure of Child Support Assessment – Procedural fairness – Where application not properly pleaded – Application dismissed.
Owens & Pratt (No 3) [2024] FedCFamC2F 1013 (02 August 2024)
PARENTING – Where an order for joint decision-making is in the best interests of the children – Live with and spend time with orders – Where the court made an order for the children’s principal residence to be maintained in a defined area
PROPERTY – Assessment of contributions adjustment under s. 75(2)
SPOUSAL MAINTENANCE – Whether the wife is unable adequately to support herself – Amount of maintenance – Payment of maintenance as lump sum
Kruse & Boysen [2025] FedCFamC2F 523 (19 March 2025)
PARENTING – Parents separated shortly after birth of child – Where father initially sought orders for 2-year-old child to live with him and spend time with the mother – Father changes orders sought on third day of trial – Father then seeks joint decision making, child live with mother and spend time with father in graduated regime – Where mother facilitated time between father and child following separation – Where father made unreasonable demands for time whilst child still breastfeeding – Serious allegations made by father against mother and mother’s friend – Transactional nature of allegations raised by father against mother –– Father’s evidence found to be unreliable – Orders made largely as sought by mother.
Binav & Rangar [2025] FedCFamC2F 436 (07 April 2025)
PRACTICE AND PROCEDURE – objection to subpoena for lack of legitimate forensic purpose – objection to production based on religious confession privilege – section 127 of the Evidence Act 1995 (Cth)
Paige & Muir [2025] FedCFamC2F 470 (10 April 2025)
PARENTING – family violence – abusive, harassing and threatening communications – impact on Mother – limited insight – unacceptable risk – orders made for Father to spend no time and have no communication with child
Shala & Shala (No 2) [2025] FedCFamC2F 478 (14 April 2025)
Transfer to Division 1 – where the wife seeks transfer of proceedings to Division 1 of the Court – where the husband opposes the transfer – findings that the length of the hearing, the complexity of the issues in dispute, and the potential for orders against a corporation weigh in favour of a transfer to Division 1 – transfer ordered
FAMILY LAW – Change of venue – where wife seeks a change of venue to the Melbourne Registry of the Court – where the husband opposes the change of venue – where the wife resides in Tasmania and the husband resides in New South Wales – where the parties’ real property is located in Tasmania – change of venue declined
Lishman & Ester (No 3) [2025] FedCFamC2F 542 (01 May 2025)
PARENTING – Where the parties agree that the children should live with the mother and that the mother be granted sole decision-making responsibility – Where the mother seeks a positive order that the children have no contact with the father – Where the father resides in Country B – Where the father did not return from Country B to participate in these proceedings – Where the father has no immediate plans to return to Australia – Where the trial proceeded in the absence of the father’s affidavit – Where the Court accepts the mother’s evidence in full – Best interests considerations – Where the father failed to complete a men’s behavioural change course – Where the father is in arrears of spousal maintenance payments – Where the father has engaged in family violence, including coercive and controlling conduct – Where the Court is cautious in creating a parenting regime underpinned by indefinite supervision – Where it is not appropriate for the Court to make a positive order that the children either spend time or communicate with the father – Orders made for the children to live with the mother – Sole decision-making granted to the mother – Costs of the Independent Children’s Lawyer to be shared by the mother and father equally.
Artigas & Merino [2025] FedCFamC2F 949 (10 July 2025)
PROPERTY – Application for an adjustment under s 79 of the Family Law Act 1975 (Cth) – Where the husband was the principal income earner and funded the acquisition and maintenance of the former matrimonial home – Where the wife was the primary homemaker and caregiver after the birth of the parties’ child – Competing contentions over financial and non-financial contributions – Whether increase in husband’s shares and superannuation post-separation should form a separate property pool – One-pool approach adopted – Consideration of addbacks for funds expended by the wife – Future needs factors under s 75(2) of the Family Law Act 1975 (Cth) – Final orders for lump sum payment to wife with settlement effected by sale of former matrimonial home – Just and equitable division of property.