Category: Case Summaries

The Full Court has dismissed a father’s application to stay orders requiring the return of two children to Japan under the Hague Child Abduction Convention, following the dismissal of his appeal and the children’s subsequent departure from Australia. The Court held that a stay pending an application for special leave to appeal to the High Court is an exceptional exercise of inherent jurisdiction and, critically, could serve no purpose once the return orders had been carried out. The father’s requests for further parenting and protective orders were also dismissed for want of jurisdiction. The decision highlights the importance of seeking urgent interim relief before return orders are implemented, the limits of appellate jurisdiction in international child abduction matters and the potential restrictions on Australian courts exercising jurisdiction over children who are no longer present or habitually resident in Australia.

The Court has dismissed a father’s appeal against parenting orders concerning two children with significant health and behavioural needs, despite identifying an error in the primary judge’s finding of coercive and controlling family violence. Riethmuller J held that controlling behaviour under s 4AB of the Family Law Act must be assessed objectively, rather than solely by reference to how the alleged victim experienced the conduct. However, the error did not affect the outcome, given the remaining findings of family violence and concerns about the father’s parenting capacity. The decision provides important guidance on establishing coercive control, the limited grounds for challenging an Independent Children’s Lawyer and the Court’s discretion to manage cross-examination through appropriate time limits. It also reinforces the difficulties of introducing further evidence or advancing a different case on appeal.

The Court has revisited an earlier ruling admitting a covert recording of alleged sexual assaults in family law property proceedings, following the High Court’s decision in *Potter v The King*. Parker J found that South Australian surveillance legislation prohibited the use of the recording, notwithstanding the discretion under s 138 of the Evidence Act, and that the restrictions applied in federal jurisdiction. Having previously heard the recording and extensive cross-examination concerning its contents, her Honour concluded that a fair-minded observer might reasonably apprehend bias, resulting in her recusal and the trial being aborted. The decision highlights the importance of considering State surveillance laws before seeking to rely on covert recordings, the limitations of the s 138 discretion and the significant consequences of an evidentiary ruling being overturned during a part-heard trial.

The Full Court has allowed a wife’s appeal against property settlement orders following a 22-year marriage, while dismissing her appeal against parenting orders that changed the residence of the parties’ two younger children to the father. The property appeal succeeded because the primary judge had not resolved materially conflicting evidence about the wife’s initial contributions and inheritances and had failed to determine her claim for spousal maintenance. The decision highlights the importance of making clear findings on contested contributions evidence and determining all claims properly before the Court. It also contains significant observations about the use of artificial intelligence in family law appeals, with the Full Court cautioning that AI-generated material may contain inaccurate authorities, irrelevant legal propositions or confused arguments that obscure genuine grounds of appeal.

The Full Court has granted a husband leave to appeal aspects of property settlement orders made after more than a decade of litigation and three final hearings, where he was subject to a harmful proceedings order under s 102QAC of the Family Law Act. The decision confirms that harmful proceedings orders extend to appeals and examines the threshold for obtaining leave, including the requirement that proposed grounds have reasonable prospects of success and are not frivolous, vexatious or an abuse of process. The Court found that grounds concerning the assessment of contributions and a 15% future-needs adjustment could proceed, while other grounds failed because the husband had not identified the specific evidence or error relied upon. The decision provides practical guidance on framing appeal grounds, evidentiary requirements and filing timeframes where a harmful proceedings order is in place.

The Court has declined to enforce a financial agreement negotiated directly between parties following a marriage of more than 40 years, despite the agreement having been signed and partly performed. The husband had provided the wife with a falsified property valuation and understated his superannuation, while the solicitor who documented the agreement had not obtained sufficient instructions about contributions, future needs, disclosure or the parties’ asset pool to properly advise the wife about her rights under Part VIII of the Family Law Act. The decision highlights that a signed certificate of independent legal advice does not establish that the substantive requirements of s 90G(1)(b) have been met, and provides important guidance on the limits of the s 90G(1A) discretion where there has been fraud, misrepresentation or other conduct by the party seeking to enforce the agreement.

The Full Court has considered an appeal arising from property settlement orders following a 22-year marriage involving a substantial asset pool and complex trust and company interests. The decision examines whether a contractual right to withdraw from a corporate structure constituted property capable of valuation, and confirms the importance of avoiding double counting when implementing percentage-based property orders. The Court also considered the operation of s 79(4)(ca) of the Family Law Act and its codification of the Kennon principle, providing guidance on how allegations of family violence and their discernible impact on contributions should be pleaded and established. The appeal succeeded only in relation to adjustments that had effectively required the wife to bear the same expenditure twice.

The Full Court has dismissed an appeal by a child’s paternal grandfather and step-grandmother against orders refusing them time with their four-year-old grandchild, whom they had never met. The Court rejected the argument that the absence of any finding of unacceptable risk of harm meant that orders for time should follow, confirming that safety is only one consideration in determining a child’s best interests under s 60CC of the Family Law Act. The decision provides important guidance on grandparent parenting applications, the relevance of a primary carer’s capacity and anxiety, and the distinction between a carer’s feelings and the child’s needs when assessing what arrangements are in the child’s best interests.

The Full Court has dismissed an appeal against final parenting and financial orders concerning a child with special needs, where the appellant father’s time was ordered to remain supervised. The Court confirmed that open-ended or indefinite supervision is not inherently erroneous where supervision is necessary for a parent to spend time with a child, and that a trial judge is not required to include a review mechanism or create a pathway for future variation. The decision also considers the use of the slip rule to correct drafting errors in financial and maintenance orders without allowing an appeal, and the Court’s power to direct that a costs order be paid from the proceeds of a property sale.