BONDELMONTE & BONDELMONTE - [2015] FCCA 1774

FEDERAL CIRCUIT COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE

[2015] FCCA 1774

Catchwords:
FAMILY LAW – Children – overseas travel – injunction – parenting orders – variation of parenting orders – insufficient evidence.

FAMILY LAW – Property – injunction – an injunction merely restating the effect of Family Law Act 1975 (Cth) s.121 is unnecessary and undesirable.

PRACTICE AND PROCEDURE – Transfer to the Family Court – where parenting Orders made by consent in the Family Court on 25 June 2014 – where father seeks to reopen parenting proceedings relating to the parties’ daughter.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 68L, 121

Federal Circuit Court of Australia Act 1999 (Cth), s.39

Cases cited:
Sitwell & Sitwell [2014] FamCAFC 5

Applicant:

MR BONDELMONTE

Respondent:

MS BONDELMONTE

File Number:

SYC 4839 of 2011

Judgment of:

Judge Scarlett

Hearing date:

16 March 2015

Date of Last Submission:

16 March 2015

Delivered at:

Sydney

Delivered on:

26 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Batey

Solicitors for the Applicant:

Broun Abrahams Burreket

Counsel for the Respondent:

Mr Schonell SC

Solicitors for the Respondent:

Karras Partners

ORDERS

The Application for Interim Orders filed on 11 December 2014 is dismissed.
As provided by section 68L of the Family Law Act 1975 the interests of the children X born (omitted) 1999, Y born (omitted) 2001 and Z born (omitted) 2004 are to be independently represented by a lawyer and Legal Aid New South wales is requested to arrange such representation.
Within seven (7) days the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney copies of all Applications, Responses, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.
The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.
The wife must within seven (7) days disclose to the husband’s lawyers copies of:
(a)any documents provided by her or on her behalf to Mr B of The (omitted);
(b)any documents provided by her or on her behalf to Mr J, Chartered Accountant, of (omitted) Sydney NSW; and
(c)any documents provided by her or on her behalf to Mr I, Chartered Accountant, of (omitted) Sydney NSW.
The Applications are otherwise transferred to the Family Court of Australia at Sydney to be listed for mention on a date to be fixed.
The parties’ costs are to be costs in the cause.

IT IS NOTED that publication of this judgment under the pseudonym Bondelmonte & Bondelmonte is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4839 of 2011

MR BONDELMONTE

Applicant

And

MS BONDELMONTE

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the mother for suspension of an Order made by consent on 25 June 2014 permitting the parties to take the their three children out of Australia for a holiday and for an injunction restraining the parties from doing so without the written consent of the other party.…

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 BONDELMONTE & BONDELMONTE

Details

AGLC: BONDELMONTE & BONDELMONTE [2015] FCCA 1774
Case: [2015] FCCA 1774
Decision Date: 26 June 2015

CaseChat Overview and Summary

In the matter of Bondelmonte & Bondelmonte, Judge Scarlett of the Family Court of Australia considered an application by the father to reopen parenting proceedings concerning the parties' daughter, following consent parenting orders made on 25 June 2014. The dispute also involved an application for interim orders filed on 11 December 2014.

The court was required to determine whether to grant the father's application to reopen the parenting proceedings and whether to grant the interim orders sought. A further issue was the appropriateness of an injunction that merely restated the effect of section 121 of the Family Law Act 1975 (Cth).

Judge Scarlett dismissed the application for interim orders, finding insufficient evidence to support it. The court reasoned that an injunction merely restating the effect of section 121 of the Family Law Act 1975 was unnecessary and undesirable. The court also ordered that the interests of the children be independently represented by a lawyer, requesting Legal Aid New South Wales to arrange such representation, and directed the parties to provide relevant documents to the appointed Independent Children's Lawyer. The applications were otherwise transferred to the Family Court of Australia at Sydney for further listing, with costs to be costs in the cause.

Orders

Orders of the court

The Application for Interim Orders filed on 11 December 2014 is dismissed.

As provided by section 68L of the Family Law Act 1975 the interests of the children X born (omitted) 1999, Y born (omitted) 2001 and Z born (omitted) 2004 are to be independently represented by a lawyer and Legal Aid New South wales is requested to arrange such representation.

Within seven (7) days the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney copies of all Applications, Responses, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.

The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

The wife must within seven (7) days disclose to the husband’s lawyers copies of:

(a) any documents provided by her or on her behalf to Mr B of The (omitted);

(b) any documents provided by her or on her behalf to Mr J, Chartered Accountant, of (omitted) Sydney NSW; and

The Applications are otherwise transferred to the Family Court of Australia at Sydney to be listed for mention on a date to be fixed.

The parties’ costs are to be costs in the cause.

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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