Bondai and Bretton - [2012] FamCA 429

FAMILY COURT OF AUSTRALIA

BONDAI & BRETTON

[2012] FamCA 429

FAMILY LAW – CHILDREN – interim application for summary dismissal of substantive proceedings having regard to Rice and Asplund principles – where previous orders are eighteen months old – where previous orders were made by consent on the last day of a five day trial that included a lot of expert evidence – where the father was to be reintroduced to the children with the therapeutic assistance of a psychiatrist – whether the failure of reintroduction as expected by the orders amounts to a change in circumstances – where the trial judge made it clear in reasons that a failure of reintroduction would be a significant and outstanding change of circumstances – where the therapeutic assistance of the psychiatrist failed to effect reunification of the children with the father – whether a fresh application by the father for substantively changed parenting orders should be dismissed – whether there is a likelihood of orders being varied in a significant way as a result of a new hearing – whether when things do not actually occur as envisaged in the Court’s orders that amounts to a change of circumstances sufficient for Rice and Asplund purposes – where the existing orders could be varied in a significant way as a result of new hearing – whether the father’s substantive application should be given an expedited hearing due to not having spent time with the children for a long time – where the application does not bear features that justify it being given priority over all other cases already in list

Family Law Act 1975 (Cth) Division 12A

Rice & Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93-363
Miller & Harrington (2008) FLC 98-283
Marsden & Winch (2009) FamCAFC 152
Reid v Lynch (2010) FLC 93-448

APPLICANT:

Mr Bondai

RESPONDENT:

Ms Bretton

FILE NUMBER:

BRC

13855

2007

DATE DELIVERED:

8 June 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

29 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A Smith

SOLICITOR FOR THE APPLICANT:

Hogan Stanton

COUNSEL FOR THE RESPONDENT:

Mr G Page SC

SOLICITOR FOR THE RESPONDENT:

Lynn & Rowland

Orders

That the mother’s application filed 7 February 2012 in which she seeks dismissal of the father’s substantive application for parenting orders filed 16 December 2011 is dismissed.
That the father’s application for interim and procedural orders contained within his Initiating Application filed 16 December 2011 is dismissed.
That pursuant to s 68L(2), the interests of the children B Bondai born … March 2000 and E Bondai born … April 2001 be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the children's interests.
That the matter is adjourned to the Registrar for the making of all such directions as might be necessary for the further progress of the matter, including, if considered appropriate, directions for the final hearing…

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 [2012] FamCA 429
Case: [2012] FamCA 429
Decision Date: 8 June 2012

CaseChat Overview and Summary

The case of *Bondai and Bretton* concerned an application by the mother seeking to dismiss the father's substantive application for parenting orders. The father had filed his application on 16 December 2011, and the mother's application to dismiss it was filed on 7 February 2012. The matter came before Forrest J.

The primary legal issue before the court was whether the father's substantive application for parenting orders should be dismissed. A secondary issue arose regarding the father's application for interim and procedural orders, which was also before the court.

Forrest J dismissed the mother's application to dismiss the father's substantive application for parenting orders. The court also dismissed the father's application for interim and procedural orders. Crucially, pursuant to section 68L(2) of the relevant legislation, the court ordered that the interests of the two children, B Bondai and E Bondai, be independently represented by a lawyer, requesting Legal Aid Queensland to make arrangements for this representation. The matter was then adjourned to the Registrar for directions regarding the further progress of the proceedings, including potential directions for a final hearing.

Orders

Orders of the court

That the mother’s application filed 7 February 2012 in which she seeks dismissal of the father’s substantive application for parenting orders filed 16 December 2011 is dismissed.

That the father’s application for interim and procedural orders contained within his Initiating Application filed 16 December 2011 is dismissed.

That pursuant to s 68L(2), the interests of the children B Bondai born … March 2000 and E Bondai born … April 2001 be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the children's interests.

That the matter is adjourned to the Registrar for the making of all such directions as might be necessary for the further progress of the matter, including, if considered appropriate, directions for the final hearing of the matter.

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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