Alphabetical Index RSSWed, 08 Jun 2022 09:03:20 GMTAluminium Louvres & Ceilings Pty Ltd v Zheng (2006) 4 DDCR 358; [2006] NSWCA 34 - Bryson JA (with whom Handley JA and Bell J agreed) at [32] stated that the absence of the transcript of proceedings before a Conciliation Commission Arbitrator was a “serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers” of the appellate body.

]]>Wed, 08 Jun 2022 09:03:20 GMTAccess is Reserved or Access was Reserved.Access being reserved means it is yet undecided by the Court.  It can apply in different ways. For instance here it was reserved as the court felt the parties could work it out themselves.The question of  access was reserved  by consent in the Magistrates Courts because the parties believed that they could arrange between themselves all matters of access.  (Armstrong and Armstrong [1983] FamCA 57). In another matter it was reserved, pending the court receiving more information.access were reserved ; a sec. 62A welfare report order was granted; a special fixture in February was ordered; the only procedural order was that not less than seven days before the commencement of the hearing of the application each party was to file and serve any further affidavits sought to be relied upon at the hearing and any amendment to any pleading. ((1987) FLC ¶91-810).The term is not often used, according to the austlii database the last published case was 1996 for the Family Court. ... Read more

]]>Wed, 16 Sep 2020 01:50:31 GMTTrevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173 - held that add backs are “exceptional”, a matter of discretion for the trial judge, and reasonably incurred expenditure does not usually come within accepted categories of addback. AJO v GRO [2005] FamCAFC 104; (2005) 191 FLR 317 - the Full Court identified three types of addbacks that are commonly encountered in property settlement decisions.  Vass & Vass [2015] FamCAFC 51 - where the Full Court held that there is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties.  

]]>Mon, 03 Jan 2022 06:59:11 GMTAdamson and Adamson [2014] FamCAFC 232; (2014) FLC 93-622 - the Full Court said that in parenting proceedings, an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to. Carlson & Fluvium [2012] FamCA 32 - Justice Kent in the Full Court said that as a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise.   

]]>Thu, 06 Jan 2022 11:14:48 GMTMyers & Myers[2011] 253 FLR 445 - provides that a Registrar can deal with the issue of allocating a “court date” being: (a) Where the Registry proposes to fix a first Court date in the normal course and the applicant seeks a different date but one that would still allow for compliance with the relevant Rules fixing time limits referable to the application;(b) Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application, but does not seek any variation of time limits fixed by the Rules; and(c) Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application and seeks that any of those normal time limits fixed by the Rules be shortened or dispensed with.

]]>Thu, 06 Jan 2022 09:29:49 GMTGronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 - provided that an error cannot be demonstrated simply by establishing that another judge or an appellate court may have reached a different conclusion.

]]>Thu, 16 Sep 2021 22:08:23 GMTRobinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 - requires the findings made by the primary judge, which underpin the conclusion, to have been proved to be wrong by “incontrovertible facts or uncontested testimony."House v The King (1936) 55 CLR 499; [1936] HCA 40 - provides that it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.    House & The King (1936) 55 CLR 499; [1936] HCA 40 - held that if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.U v U (2002) 211 CLR 238; [2002] HCA 36 - held that the fact that different orders could have been made by the primary judge does not indicate error by the primary judge.    Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 - provides that it is not necessary for a trial judge to “mention every fact or argument relied on by the losing party as relevant to an issue”. Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 - where the findings were clearly open on the evidence.     Lee v Lee (2019) 266 CLR 129; [2019] HCA 2 - where the matters relied on by the appellant do not demonstrate that the primary judge’s findings are contrary to incontrovertible evidence or compelling inferences and are not glaringly improbable.  Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63 - relied upon as the father says, in the final analysis, the gravamen of the mother’s complaint under this ground is really that the primary judge’s error was that he “failed to place greater weight upon the [m]other’s allegations” which challenges face a very high bar.    Sun Alliance Insuranc... Read more

]]>Tue, 14 Sep 2021 22:31:16 GMTLane & Lane[2016] FamCAFC 53; (2016) FLC 93-699 - where in order to succeed in his application to set aside the consent order the father must establish three things: (a) That there is evidence to support one of the grounds in s 79A(1)(a); and (b) That there has thereby been a miscarriage of justice; and (c) That the Court should exercise its discretion to set aside the order.

]]>Thu, 06 Jan 2022 10:46:06 GMTEbner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 - provides that the relevant test in apprehended bias looks at the assessment made by a “fair minded and reasonably well informed observer who might conclude that the assessment/decision maker might not approach the issue with an open mind.”.  Where the test for disqualification for apprehended bias appears.   Her Honour applied the test by considering the first step, namely the identification of what it is said might “lead a judge to decide a case other than on its legal and factual merits”. Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 - held that to fail to raise an objection to an asserted demonstration of apprehended bias can in some circumstances prevent it being later raised. R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 - provides that claims of judicial bias should usually be confined only to apprehended bias and there is no suggestion of actual bias.  Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 - provides that a judge should not disqualify him or herself for reasonable apprehension of bias unless substantial grounds exist. Digest Abani & Child Support Registrar [2021] FedCFamC1A 52 (5 November 2021) - where the bare assertions of the applicant about deficiencies in a valuation report, and his misunderstanding of the instructions for the valuation, fails to identify or articulate the logical connection between the matters identified by him and the deviation from deciding the case on its merits.  It is no demonstration of apprehended bias that the applicant dislikes or disagrees with one of the valuations before the primary judge or asserts the primary judge relied on a disputed valuation.    ... Read more

]]>Wed, 22 Sep 2021 23:04:09 GMTMinister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 - provides that an assertion of bias would require the applicant to demonstrate that the primary judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.

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