Terms of Danny Jovica RSSWed, 01 Dec 2021 05:41:16 GMTValasco & Pellam [2021] FedCFamC1A 70 (19 November 2021)An employee of the respondent’s solicitor, Ms R, deposed in her affidavit filed on 17 December 2020, that on 11 December 2020 she sent the appellant a copy of the Application in a Case and the supporting affidavits filed on 9 December 2020 by registered post and to four email addresses used by the appellant.  The appellant claims that he did not understand the later email.  That carries an implicit admission, contrary to his evidence, that he did receive the documents.  The appellant conceded that he received the email of 11 December 2020.  He was therefore properly served.

]]>Wed, 01 Dec 2021 05:41:16 GMTMetwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 - relied upon in the assertion that the transcript was not accurate was not made to the primary judge.  Had it been made, evidence could have been called on the issue and the audio obtained.  It is therefore now too late to raise this allegation

]]>Wed, 01 Dec 2021 05:37:15 GMTKennon v Kennon(1997) FLC 92-757; [1997] FamCA 27 - provided that absent statutory instruction, there is no warrant in s 75(2)(b) Matters to be taken into consideration in relation to spousal maintenance to discount the outcome of the analysis under s 79(4)(a)–(c) Alteration of property interests under the Act. Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303 - cautioned against the use of the short-hand descriptor of a “Kennon claim” and the reference to the issue as a “Kennon adjustment” given that those epithets might invite the treatment of the issue as an isolated claim for an additional share of the available property.  

]]>Mon, 25 Oct 2021 06:23:46 GMTMetwally v University of Wollongong (1958) 60 ALR 68; [1985] HCA 28 - provides that unless there are exceptional circumstances, a party is bound by their conduct of their case at trial.  Meaning your or your lawyers conduct at trial binds you and is not a grounds for appeal. Appeals are not opportunities to remedy evidentiary oversights or revisit poor forensic (strategic) decisions by the parties in the conduct of their cases at trial.Khadem & Penk [2020] FamCAFC 211; (27 August 2020)  : If further examination of the witnesses and additional evidence will unlikely change the result of the case, the appeal shall be dismissed.  The Full Court in OP v TP (Conduct of Counsel)  [2002] FamCA  1155;  (2002) 30 Fam LR 281 at [124] stated:   ...from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.  Section 93A(2) of the Act provides for a discretion in an appeal for the Court to receive further evidence upon questions of fact.  Rules 1.10 and 10.12(d) of the Family Law Rules 2004 (Cth), allow this Court to make an order on its own initiative in circumstances where an application has no reasonable likelihood of success.   ... Read more

]]>Wed, 15 Sep 2021 20:00:26 GMTLC v TC (1998) FLC 92-803; [1998] FamCA 47 - the authority for the proposition that counsel do not need to put all contrary contentions to a witness (relevantly cross examine), if the witness is sufficiently on notice of them, not that a judge must then reject that witness’ evidence.  Essentially if your lawyers fail to relevantly cross examine a witness this is not grounds for appeal.

]]>Wed, 15 Sep 2021 19:58:02 GMTHouse v The King (1936) 55 CLR 499; [1936] HCA 40 - the majority of the High Court said that the manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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. It must appear that some error has been made in exercising the discretion.

]]>Wed, 15 Sep 2021 19:53:18 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

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