Bondai and Bretton - [2013] FamCA 24

FAMILY COURT OF AUSTRALIA

BONDAI & BRETTON

[2013] FamCA 24

FAMILY LAW – CHILDREN – mother’s application in a case for summary dismissal or permanent stay of father’s parenting orders application – where mother’s previous application in a case for dismissal on “Rice v Asplund” grounds was dismissed - where the mother has filed an appeal against that decision – where the appeal hearing is pending – where the mother argues the father’s parenting orders application has no realistic prospects of success - where the mother seeks, in the alternative to dismissal of the father’s parenting orders application, $200,000 security for costs - where it is determined the father’s application is not doomed to fail and mother’s application for dismissal or permanent stay of proceedings is dismissed – where security for costs application is dismissed – where application for stay of previous orders in respect of preparing substantive proceedings for trial pending the determination of the appeal is dismissed

Family Law Act 1975 (Cth) Division 12A, s 117(2)
Family Law Rules 2004 r 10.12, r 19.05(2)

Aldred (1986) FLC 91-753

Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685.

Bigg and Suzy (1998) FLC 92-799

In the Marriage of Clemett (1981) 50 FLR 248
Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681

Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
Luadaka & Luadaka (1998) FLC 92-830
Rice and Asplund (1979) FLC 90-725

Sheldon v Weir (Stay Application) [2011] FamCAFC 5

Spellson (1989) FLC 92-046

The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230
Trahn v Long (No 2) [ 2008] FamCAFC 194

APPLICANT:

Ms Bretton

RESPONDENT:

Mr Bondai

FILE NUMBER:

BRC

13855

2007

DATE DELIVERED:

1 February 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

19 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Baston

SOLICITOR FOR THE APPLICANT:

Lynn & Rowland Lawyers

COUNSEL FOR THE RESPONDENT:

Mr A Smith

SOLICITOR FOR THE RESPONDENT:

Hogan Stanton Lawyers

INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley

Dooley Solicitors

Orders

That the mother’s Application in a Case filed 31 August 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bondai and Bretton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC13855/2007

Ms Bretton

Applicant

And

Mr Bondai

Respondent

REASONS FOR JUDGMENT

Introduction

On 8 June 2012, I dismissed the mother’s application in these parenting proceedings for an order dismissing the father’s substantive application for parenting orders. The mother had unsuccessfully argued that the principles in Rice and Asplund (1979) FLC 90-725 applied in this case. Included in the evidence I had considered in determining that application was a report by psychiatrist, Dr W, dated 29 November 2011. He had seen the mother and the father and the two children, pursuant to final parenting…

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 Bondai and Bretton

Details

AGLC: Bondai and Bretton [2013] FamCA 24
Case: [2013] FamCA 24
Decision Date

CaseChat Overview and Summary

In *Bondai and Bretton*, the Family Court of Australia considered an application by the mother, Ms Bretton, seeking to dismiss or permanently stay the father's, Mr Bondai's, application for parenting orders. This application was made notwithstanding a previous unsuccessful attempt by the mother to have the father's application dismissed on "Rice v Asplund" grounds, against which she had filed an appeal that was pending. In the alternative, the mother sought $200,000 by way of security for her costs. The mother also sought a stay of previous orders made in June 2012, pending the determination of her appeal.

The court was required to determine whether the father's parenting orders application had no realistic prospects of success, thereby warranting dismissal or a permanent stay. It also needed to consider whether the circumstances justified an order for security for costs against the father, and whether the court's previous orders should be stayed pending the mother's appeal. The paramount consideration throughout was the best interests of the children.

Justice Forrest found that the father's substantive application was not "doomed to fail," particularly in light of further evidence and answers provided by a psychiatrist, Dr W. The court determined that the evidence did not persuade it that its previous finding of a likelihood of significant variation to existing orders was incorrect. Consequently, the application for dismissal or a permanent stay of the father's proceedings was dismissed. Regarding security for costs, the court considered the financial circumstances of both parties, noting the father's receipt of legal aid and limited income, and concluded that ordering security would be oppressive and likely stifle his ability to pursue his application. Therefore, this application was also dismissed. Finally, the court declined to stay its previous orders pending the appeal, finding no compelling reason to do so and noting that it was unlikely a trial would occur before the appeal was heard.

Orders