Federal Circuit and Family Court of Australia – (Division 1) Appellate Jurisdiction
Marlin & Henson [2025] FedCFamC1A 71 (30 April 2025)
PROPERTY – Appeal from final property orders – Where the appellant asserts that it was not just and equitable for a property adjustment to be made – Contention that the trial judge failed to include potential Capital Gains Tax liabilities and interim payments ordered in the property pool – Assertion of error when determining contributions – Contention that there was no basis for a s 90SF(3) adjustment – Inadequate reasons – Examination of principles regarding Capital Gains Tax – Appeal dismissed.
Navickas & Fried (No 2) [2025] FedCFamC1A 80 (7 May 2025)
PARENTING – Where the appellant appeals final parenting orders – Where the primary judge found that each party had perpetrated family violence and that the bests interests of the children necessitated a change of residence and sole parental responsibility from the appellant to the respondent – Where the appellant contends a denial of procedural fairness and apprehended bias – Where the appeal was opposed by the respondent and initially opposed by the Independent Children’s Lawyer – Where the respondent contends the learned judge applied the incorrect law but that application of the correct law to the primary judge’s findings of fact would lead to the same result – Where the Independent Children’s Lawyer in submissions conceded that there had been an error of law and that the appeal must be allowed – Where the primary judge erred at law by considering s 60CC of the FAMILY LAW ACT 1975 (Cth) as amended – Appeal allowed – Proceedings remitted for re-hearing – Costs certificates granted.
Dumont & Cabrara [2025] FedCFamC1A 82 (9 May 2025)
PROPERTY – Contributions – Primary judge erred by assuming equality as a starting point in assessing the parties’ contributions –Where no principle or presumption of equality of contributions exists in property settlement cases – Whether error of principle contributed to errors of approach to fact-finding – Appeal allowed – Matter remitted for a rehearing before of a judge of Division 2 other than the primary judge.
PROPERTY – Where appellant sought s 102NA order on the day of the trial – Where appellant sought for the matter to be determined on the papers at trial – Where matter was determined on the papers at trial – Where appellant contends the primary judge failed to afford her procedural fairness – Whether primary judge made factual error due to determining the matter on the papers.
WHERE APPELLANT SEEKS ADDUCE FURTHER EVIDENCE THAT SHE INTENDS TO RELOCATE TO AUSTRALIA – Where the evidence was available at the time of trial – Where the evidence could have been adduced at the trial – Application refused.
B Pty Ltd & Anker [2025] FedCFamC1A 85 (14 May 2025)
MEANING OF “INTERLOCUTORY ORDER” – Where the primary judge made orders summarily dismissing the creditor’s claim pursuant to s 79 of the FAMILY LAW ACT 1975 (Cth) – Whether the creditor requires leave to appeal orders summarily dismissing the s 79 claim – Orders summarily dismissing s 79 proceedings are “interlocutory orders” for the purposes of seeking leave to appeal – Leave to appeal required – Leave to appeal refused.
PROPERTY – Rights of third parties – Rights of creditors intervening in property settlement proceedings – Consideration of “matrimonial cause” – Where the creditor seeks to pursue a s 79 claim independently of a spouse of the marriage –Whether a creditor can pursue property settlement orders where there is no pending claim by a spouse of the marriage – Whether rights of a spouse under s 79 can be pursued by a creditor in the absence of extant proceedings – Whether a creditor’s rights are limited to the procedural rights of a party either supporting or opposing the orders sought by a spouse of the marriage – Claims under s 79 are limited to proceedings which constitute a “matrimonial cause” – S 79 only applies where a claim is brought under circumstances arising out of a marital relationship – Creditor’s application to pursue a s 79 claim independently of spouses dismissed – Appeal dismissed.
Abano & Backus (No 2) [2025] FedCFamC1A 88 (15 May 2025)
WHERE LEAVE IS REQUIRED TO APPEAL FROM ORDERS OF THE PRIMARY JUDGE DISCHARGING A STAY OF DE FACTO THRESHOLD PROCEEDINGS PENDING FINALISATION OF THE APPELLANT’S CRIMINAL TRIAL – Where the appellant is charged with serious historical sexual offences of the respondent’s twin daughters – Consideration of the right to silence – The applicable appellate standard of review – Waiver of the privilege against self-incrimination – Where the primary judge failed to identify the correct test to revisit an interlocutory order – Where the primary judge acted inconsistently with the maintenance of the privilege against self-incrimination and was plainly wrong to conclude the appellant would not be prejudiced if the civil trial preceded the criminal trial – Leave to appeal granted – Appeal allowed – Costs ordered in a fixed sum.
Abramsson & Abramsson (No 2) [2025] FedCFamC1A 86 (19 May 2025)
WHERE THE PARTIES AGREED TO ORDERS ALLOWING THE APPEAL AND CROSS APPEAL ON THE BASIS OF INADEQUACY OF REASONS – Where the Court is required to be satisfied that there has been appellable error before allowing the appeal – Where each party makes significant allegations of family violence – Where the Family Law Act 1975 (Cth) mandates that the Court consider family violence when making parenting orders – Endorsement of the reasons for decision of Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230 – Where the primary judge’s reasons are inadequate in regard to consideration, evaluation and the fact-finding exercise as to the allegations of family violence – Where the inadequacy of reasons is a fundamental flaw – Appeal allowed – Costs certificates granted.
Federal Circuit and Family Court of Australia – (Division 1)
Sansone & Chancellor [2025] FedCFamC1F 59 (17 January 2025)
PARENTING – Where the mother had a case guardian – Where the maternal grandmother had full time care of the child – Where the father had no existing relationship with the child – Where the father sought joint decision making and live with orders – Where there is an extremely limited ability for the father and maternal grandmother to foster a co-parenting relationship – Where the Court determines that it is not in the child’s best interest to commence any relationship with the father.
Department of Communities and Justice & Austin [2025] FedCFamC1F 18 (22 January 2025)
HAGUE CONVENTION – Child Abduction – Return application to New Zealand – Where the father alleges wrongful removal – Whether the father consented to the mother relocating the children to Australia – Where the mother has a mild intellectual disability and is reliant on her family for daily support – Where the maternal family have relocated to Australia –Where the mother has established a reasonable and acceptable reason for her refusal to return to New Zealand – Grave risk of exposure to physical or psychological harm or intolerable situation established – Grave risk of harm cannot be adequately ameliorated by available protective measures – Discretion to return not exercised – Application dismissed.
Duran & Duran [2025] FedCFamC1F 136 (7 February 2025)
PRACTICE AND PROCEDURE – Voir Dire – preliminary question – whether evidence sought to be adduced by a lay witness without prior notice in cross examination is sufficiently probative to allow admission - consequence of admission of late evidence likely to be adjournment part heard of final hearing – evidence goes to significant factual issue in dispute – issue whether mother remains in a relationship with, or continues to expose children to, a person who is alleged to pose an unacceptable risk of sexual harm to the children - evidence relevant and potentially highly probative – evidence on voir dire admitted into evidence in trial - an adjournment will be granted if necessary to allow the late evidence to be addressed.
Humphrey & Humphrey (No 5) [2025] FedCFamC1F 73 (27 February 2025)
CONTRAVENTION APPLICATION – PARENTING – where the teenage son lives with the father – where there has been strong resistance displayed by the son to spending time with the mother – reasonable attempts to comply with the orders – reasonable excuse – application for contravention dismissed – interim parenting orders made
Jepson & Jepson (No 8) [2025] FedCFamC1F 146 (7 March 2025)
PROPERTY – Application for an adjustment under s 79 of the FAMILY LAW ACT 1975 (Cth) – Where the husband was the primary income earner and the wife was the primary caregiver for the parties’ children – Issues of credit – Non-disclosure – Where the wife failed to provide items of jewellery for valuation – Where the wife has returned to the workforce but the husband has remained unemployed – Where the wife’s inheritance and superannuation must be treated as a post-separation asset – Financial orders made for payment of monies to the husband and for the wife to retain her property.
ADDBACKS – Exception not the rule –Whether legal fees of criminal proceedings should be added back – Where the wife contends that the husband should have declared bankruptcy – Where the husband was in his right to defend criminal proceedings – Where the legal expenses were reasonably incurred – Where the husband’s expenditure on legal fees was neither wasteful, reckless or wonton – Where an addback is sought due to the asserted “loss of businesses” – Where the wife’s allegations that the husband engaged in dishonest and illegal conduct does not satisfy the burden of proof – Where the husband contends that the wife’s reckless conduct led to a significant reduction in the sale price of the former matrimonial home – Where the husband asserts that the wife provided information to a journalist knowing it would create adverse media publicity and diminish the sale price of the property – Where any reduction could not be accurately quantified – Finding some items be added back with the balance to be considered under s 75(2)(o) of the FAMILY LAW ACT 1975 (Cth).
RESTITUTION – Associated jurisdiction of the Court – Where the wife sold two motor vehicles belonging to the second respondent at the time of the sale – Where the Court does not accept the wife’s account of the sale price – Where there is a lacuna in the evidence regarding the advertisement of the motor vehicles for sale – Consideration of Armory v Delamirie (1722) 1 Strange 505 [1722] EWHC KB J94; [93 ER 664] – Facilitation principle – Wife to pay the second respondent $130,000 as compensation.
Acerbi & Hodson [2025] FedCFamC1F 87 (11 February 2025)
PARENTING - Children's last names - Where the mother changed her own and the children's last name to the last name of her then partner after he committed a serious crime and died in the same violence - Where mother serving a lengthy custodial sentence for complicity in this crime - Where children have no biological connection to the deceased former partner - Where all parties agree oldest child's last name be changed to his father's - Where mother seeks to keep the deceased former partner's last name for the two younger children and hyphenate it with each child's respective father's last name - Where all other parties propose the children have the last names of their respective fathers - Order made - No hyphenation - Children to have last name of their respective fathers - All other proposed consent orders in best interests of children.
Srbinovska & Srbinovska (No 2) [2025] FedCFamC1F 155 (14 March 2025)
PROPERTY – Bankruptcy – Where the husband is bankrupt and the trustees in bankruptcy are parties – History of proceedings in the Supreme Court – Where there is a shortfall in funds required to annul the bankruptcy – Whether the trustees improperly distributed proceeds of sale – Where the dispersed sale proceeds do not form part of the pool of assets – Where there is one real property available for division – Where the wife made substantial contributions – Where there should not be any adjustment between the wife and the trustees – Property to be sold – Wife to retain 50 per cent of proceeds of sale – Trustees to retain 50 per cent of the proceeds of sale and repay to the wife any surplus following annulment of the bankruptcy.
Federal Circuit and Family Court of Australia – (Division 2)
Crighton & Salinas [2024] FedCFamC2F 1652 (20 November 2024)
PARENTING – registration of overseas child orders – child orders made in State B, USA – requirements of s 70G of the FAMILY LAW ACT 1975 and reg.23 of the Family Law Regulations 1984 – discretion as to registration – application granted – orders registered.
Crighton & Salinas (No 2) [2025] FedCFamC2F 242 (27 February 2025)
JURISDICTION – Overseas parenting order registered in Australia – application by mother for this Court to exercise jurisdiction and make a parenting order – application of s 70J of the FAMILY LAW ACT 1975 – consideration of first step, s 70J(1); whether the Court is satisfied that there are substantial grounds for believing that the child’s welfare requires that this Court exercise its jurisdiction – Court being satisfied – jurisdiction enlivened – insufficient evidence before the Court for consideration of second step, s 70J(2) – matter adjourned for case management.
Vogel & Arcas [2024] FedCFamC2F 1681 (25 November 2024)
PARENTING – Child abuse and neglect – child left alone for lengthy periods of time at 2 years of age – criminal conviction – no time order sought – child abuse and neglect substantiated – past allegations of abuse proven – supervised time considerations – whether orders can ameliorate risk of harm to child – risk of harm to child balanced against long-term risks of severing maternal relationship.
Simon & Birch [2025] FedCFamC2F 181 (17 February 2025)
PRACTICE AND PROCEDURE – Application to be released from the Harman undertaking – Where the applicant is defending serious criminal charges in the District Court – Where the applicant seeks the release of documents filed in these proceedings for use in the criminal proceedings – Where the Court is satisfied that special circumstances exist which would justify release from the implied undertaking – Order.
Moyle & Houston [2025] FedCFamC2F 426 (3 April 2025)
PARENTING – Where the mother who had a psychiatric disorder passed away shortly after giving birth to twins – children initially placed with the Department who organise for children to live temporarily with the maternal grandparents and then supported the twins being placed with father – maternal grandparents seek orders for twins to live with them – grandparents subsequently agree to Consent Orders for twins to live with the father who is of aboriginal descent and for father to relocate in to the future with the children – when the father relocates the grandparents refuse to return children to his care and commence a second round of family law litigation – grandparents re-agitate issues of father’s mental health and allegations he lived in a household where he was subjected to family violence – where maternal grandparents now blame the father for the suicide death of the mother – family violence has occurred in both households – children of mixed racial heritage – maternal grandparents dispute Aboriginal father’s cultural knowledge – considerations of the children’s right to enjoy their culture with others within that culture.
Saidov & Saidov (No 4) [2025] FedCFamC2F 495 (16 April 2025)
PARENTING – Whether the parties’ three young children are at unacceptable risk of physical, psychological and emotional harm from Mother – where serious concerns raised about Mother’s mental health and parenting capacity – failure by Mother to support relationship with Father – persistent failure by Mother to comply properly with court orders – where children are to reside with Father and spend no time with Mother.
PROPERTY – Dispute as to whether funds received from De Facto Husband’s parents were a gift or a loan – whether funds withdrawn by De Facto Wife from superannuation are to be added back – full-time care of young children.
PRACTICE AND PROCEDURE – Whether evidence elicited under cross-examination by a member of Counsel who did not hold a valid practising certificate should be excluded pursuant to s 138 of the Evidence Act 1995 (Cth).