Popular Terms RSSTue, 14 Sep 2021 22:31:16 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 GMTCDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 - provides that the proper exercise of discretion in parenting cases may be broad, “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require”.  Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16 - provides that the determination of issues regarding children whether on an interim basis or at a final hearing is by reference to the best interests principle. Digests Foys & Laidler [2021] FedCFamC2F 364 (12 November 2021)  - where according to Counsel for the father, the order made by the Judicial Registrar that the parties and the children attend appointments for the preparation of the Child Impact Report (“CIR”) were contrary to the best interests of the children, as it would implicate the children having to be again interviewed by a Court Child Expert.   

]]>Fri, 03 Dec 2021 00:08:40 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 GMTFamily Law Act 1975 (Cth), ss 4AA, 44, 79, 90RD - provides that a  person is in a de facto relationship with another person if the persons are not legally married to each other and the persons are not related by family.  Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.    Crick & Bennett [2018] FamCAFC 68 - provided for the proper construction to be applied to section 4AA of the Act.    Marriage of Jacenko [1986] FamCA 25; (1986) 11 Fam LR 341 - where the Full Court stated that the general principle is that the Court proceeds on the evidence of the Applicant, which should be accepted unless it is inherently unbelievable or contradictory. Crowley & Pappas [2013] FamCA 783 - provided that a de facto relationship does not need to be akin to a marriage although the nature of the association involved in a marriage relationship may be instructive.  Dahl & Hamblin [2011] FamCAFC 202 - relied upon in holding that the two brief separations (during which they remained living at B Street, Town C) does not prevent the conclusion that the parties were in a de facto relationship. Jonah & White [2011] FamCA 221 - provided that the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis”.  Jones & Dunkel [1959] HCA 8; (1959) 101 CLR 298 - relied upon by the counsel for the Respondent in submitting that the Court should draw an adverse inference about the evidence that the Applicant’s brother would have given as to the nature of the relationship between the Applicant and Respondent at various times.   Tomson & MacLaren [2021] FamCA 620 - where the fact finding required is somewhat complicated when the parties have different perceptions and their perceptions may be motivate... Read more

]]>Fri, 31 Dec 2021 02:35:27 GMTHeath & Hemming (No. 2) [2011] FamCA 749 - where the Honourable Justice Kent opined that the Full Court in Sigley approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child.  McCall & Clark [2009] FamCAFC 92 - dealt with the benefit to the child of having a meaningful relationship. Sigley v Evor [2011] FamCAFC 22; (2011) 44 Fam LR 439 - concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in s 60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, Orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”).  Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 - provided that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. M v S [2006] FamCA 1408; (2008) 37 Fam LR 32 - Dessau J made comments in relation to a long-distance and meaningful relationship and how it is inevitably different from a relationship where people live closer together with regular face-to-face contact.  Digests Collins & Monroe [2021] FedCFamC1A 75 (6 December 2021) - where weighing up of those matters and risks as against the benefits to the child of pursuing a meaningful relationship with the mother within a structure that ameliorated those risks, if that was possible, was the very basis for the decision that any time spent between the child and his mother was required to be supervised by a professional agency. ... Read more

]]>Thu, 02 Dec 2021 05:23:06 GMTSalah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 - provides that the denial of serious allegations of risk to children does not mean that in interim proceedings, a court can thereafter ignore them.TF & JF [2005] FamCA 394 -  where Her Honour having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. George & Nichols [2016] FamCA 519 - where the Court discusses the issue of unacceptable risk.  M v M [1988] FLC 91-979 - the High Court held that “the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk ... (and) to achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of abuse.”B and B [1993] FamCA 143; (1993) FLC 92-357 - the Full Court of the Family Court of Australia said that where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. Stott & Holgar and Anor [2017] FamCAFC 152 - an eminent former judge said that the unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.   N and S and the Separate Representative [1995] FamCA 139... Read more

]]>Thu, 02 Dec 2021 05:23:11 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 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 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

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