BENDON & BENDON - [2018] FamCA 722

FAMILY COURT OF AUSTRALIA

BENDON & BENDON

[2018] FamCA 722

FAMILY LAW – CHILDREN – Parenting – interim orders – where final orders have been extant for some years which restrict the mother’s time with the children of her relationship with the father – where the mother wants to re-open those orders – where her application is for a family report which is resisted by the father – s 11F order made.
FAMILY LAW – PROPERTY – where final orders relating to property transfer are still not finalized. Orders made under s 106A of the Act.
FAMILY LAW – CHILDREN – Parenting – internal travel opposed by wife. Orders made.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

Gin and Hing [2010] FamCA 617 approved in Lorde and Chu [2015] FamCAFC 3
Payne [2001] EWCA Civ 166; [2001] 2 WLR 1826

APPLICANT:

Mr Bendon

RESPONDENT:

Ms Bendon

FILE NUMBER:

DGC

672

2014

DATE DELIVERED:

12 Septemer 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

4 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McGregor

SOLICITOR FOR THE APPLICANT:

Fiona R McGregor

COUNSEL FOR THE RESPONDENT:

Mr Levine

SOLICITOR FOR THE RESPONDENT:

Allan McMonnies

Orders

Pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) a registrar is authorised to sign a transfer of land in respect of the real property at FF Street, I Town in the State of Western Australia and being the whole of the land described in Certificate of Title Volume … Folio … in the name of the wife (Ms Bendon) to give effect to the orders made by this court on 21 April 2015 such that the said property be transferred solely to Mr Bendon (“the husband”).
That the registrar is authorised under s 106A of the Act to sign any other document required from the Land Titles Office in the state of Western Australia to give effect to the said orders and to transfer the real property to the husband.
That the registrar shall be satisfied that it is appropriate to sign such documents upon receiving an affidavit from the solicitor for the husband confirming that the documents are so required.
That the registrar is not required by these orders to further consult with either the wife or any solicitor acting on her behalf.
Pursuant to s 11 of the Australian Passports Act2005 (Cth), the relevant Minister may issue passports for the children D born … 2005, E born … 2007 and F born … 2009 upon the application of the father of the children Mr Bendon without further consultation with the mother of the children (Ms Bendon), the father having sole parental responsibility pursuant to an order of this court to make such applications as are necessary.
Pursuant to s 65Y(1) of the Family Law Act 1975 (Cth) and to the extent necessary to say so, the father of the said children may take them from the Commonwealth of Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BENDON & BENDON

Details

AGLC: BENDON & BENDON [2018] FamCA 722
Case: [2018] FamCA 722
Decision Date: 12 September 2018

CaseChat Overview and Summary

In the matter of Bendon & Bendon, Cronin J of the Family Court of Australia considered disputes between the husband and wife concerning property and parenting arrangements for their children. The wife sought to re-open existing final parenting orders that restricted her time with the children, which the husband resisted, particularly concerning an application for a family report. Concurrently, final property transfer orders remained unsettled.

The court was required to determine several legal issues. These included the finalisation of property transfer orders, specifically concerning real property located in Western Australia. In relation to parenting, the court had to consider the wife's application to re-open extant final orders, the father's opposition to a family report, the father's application for passports for the children, and the father's intention to travel internationally with the children, which the wife opposed. The court also needed to address the wife's application concerning the children's travel and the appropriateness of supervised time arrangements.

Cronin J applied various provisions of the *Family Law Act 1975* (Cth) and the *Australian Passports Act 2005* (Cth). Section 106A of the *Family Law Act* was invoked to authorise a registrar to sign transfer documents for the real property to give effect to prior property orders, ensuring the property was transferred solely to the husband. Regarding the children's passports and international travel, the court made orders pursuant to section 11 of the *Australian Passports Act* and section 65Y(1) of the *Family Law Act*, granting the father sole parental responsibility for passport applications and authorising international travel, subject to specific notification requirements to the mother. The court also made orders pursuant to section 11F of the *Family Law Act* for the father and children to attend upon a family consultant to ascertain the children's views on supervised time arrangements and the potential reconsideration of face-to-face time with the mother.

The court made detailed orders to give effect to its decisions. These included authorising a registrar to sign property transfer documents, permitting the father to obtain passports and travel internationally with the children with specific conditions for notification to the mother, and requiring the father to make up lost time with the children upon their return. The court also dismissed certain applications made by both parties and ordered the mother to file an amended application detailing the specific orders she sought regarding parenting. Furthermore, the court directed that the father, children, and potentially the mother attend a family consultant to assess the children's views on their time with the mother and the appropriateness of existing arrangements.

Orders

Orders of the court

Pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) a registrar is authorised to sign a transfer of land in respect of the real property at FF Street, I Town in the State of Western Australia and being the whole of the land described in Certificate of Title Volume … Folio … in the name of the wife (Ms Bendon) to give effect to the orders made by this court on 21 April 2015 such that the said property be transferred solely to Mr Bendon (“the husband”).

That the registrar is authorised under s 106A of the Act to sign any other document required from the Land Titles Office in the state of Western Australia to give effect to the said orders and to transfer the real property to the husband.

That the registrar shall be satisfied that it is appropriate to sign such documents upon receiving an affidavit from the solicitor for the husband confirming that the documents are so required.

That the registrar is not required by these orders to further consult with either the wife or any solicitor acting on her behalf.

Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the relevant Minister may issue passports for the children D born … 2005, E born … 2007 and F born … 2009 upon the application of the father of the children Mr Bendon without further consultation with the mother of the children (Ms Bendon), the father having sole parental responsibility pursuant to an order of this court to make such applications as are necessary.

Pursuant to s 65Y(1) of the Family Law Act 1975 (Cth) and to the extent necessary to say so, the father of the said children may take them from the Commonwealth of Australia to travel internationally.

That no less than one month prior to the departure of any international travel, the father is to provide to the mother a comprehensive itinerary for the children’s travel including the dates of departure and return to the Commonwealth of Australia and the various places at which they will be residing during their absence.

Upon the return of the children to Australia, the father do all things necessary to make up time lost by the children with their mother under the orders made on 26 April 2017.

That the amended application in a case filed by the father on 19 July 2018 is otherwise dismissed.

10.

That paragraph 1 and paragraphs 2(a), (c) and (d) of the mother’s application in a case filed 2 August 2018 are struck out.

11.

Pursuant to s 11F of the Family Law Act 1975 (Cth), the father and the children (and if the family consultant considers it appropriate and necessary, the mother) attend upon a family consultant in Perth, Western Australia or such other place as may be arranged by the Child Dispute Services Director of the Melbourne Registry of the Family Court of Australia for the purposes of ascertaining the views of the children about the appropriateness of the extant arrangements for supervised time between the mother and them and whether there is a need to contemplate a reconsideration of face to face time between the mother and the children.

12.

Any appointed family consultant under these orders is requested to advise of any negative impacts upon the children of an alteration to the existing orders with particular emphasis on the proposed face to face orders of the mother.

13.

That the application in a case filed 2 August 2018 is otherwise dismissed.

14.

That by 4.00pm on Friday 28 September 2018, the mother file and serve an initiating application setting out with particularity the orders she seeks.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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