Sabado & Sabado - [2019] FamCA 425

FAMILY COURT OF AUSTRALIA

SABADO & SABADO AND ANOR

[2019] FamCA 425

FAMILY LAW – CHILDREN – INTERIM PARENTING – Where consideration of applicable principles – Where father perpetrated family violence – Where father has anger management issues – Where mother to have sole parental responsibility – Where children to live with the mother and spend day time only with the father – Where parents to attend parenting course

FAMILY LAW – INJUNCTIONS – SOLE USE AND OCCUPATION OF HOME – Where mother and children excluded from home by father’s conduct – Where consideration of applicable principles – Where mother to have sole use and occupation of the home

FAMILY LAW – SPOUSE MAINTENANCE – Where application by father for certain payments by way of spouse maintenance – Where father not establish inability to support himself in the circumstances – Where application dismissed

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 69ZL, 72, 75(2), 114

Bassett v Bassett (1975) 1 All ER 513
Davis & Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
Deiter & Deiter [2011] FamCAFC 82
Fedele & Fedele [1986] FamCA 14
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
MRR v GR [2010] HCA 4
Page v Page [1980] FamCA 79
Plowman & Plowman (1970) 16 FLR 447
S & S [2002] FamCA 59

APPLICANT:

Ms Sabado

FIRST RESPONDENT:

Mr Sabado

SECOND RESPONDENT:

Ms Victor

INDEPENDENT CHILDREN’S LAWYER:

Sydney West Family Lawyers

FILE NUMBER:

PAC

5549

2018

DATE DELIVERED:

4 July 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

18 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mahony

SOLICITOR FOR THE APPLICANT:

Forshaw Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Givney

SOLICITOR FOR THE FIRST RESPONDENT:

Maclarens Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

Phillip A Wilkins & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sydney West Family Lawyers

Orders, Pending Further Order

That the mother have sole parental responsibility for the children X born … 2007 and Y born … 2010.
That the said children live with the mother.
That the children spend time with the father as agreed between the parties in writing to include SMS or email communication and in default of agreement:
(a)Commencing on the first Wednesday after the date of these orders each Wednesday from after school to 7.00 pm;
(b)Commencing on the first Saturday after the date of these orders each alternate Saturday from 9.00 am to 5.00 pm (6.00 pm daylight saving time);
(c)Commencing on the second Sunday after the date of these orders each alternate Sunday from 9.00 am to 5.00 pm (6.00 pm daylight saving time).
That changeovers for the children’s time with the father where not at school be at the McDonald’s Family Restaurant Suburb C.
interviews) where the attendance of either or both parents are reasonably to be expected and to attend at the children’s extracurricular activities including sport, religious education and or attendances and other occasions significant…

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 Sabado & Sabado

Details

AGLC: Sabado & Sabado [2019] FamCA 425
Case: [2019] FamCA 425
Decision Date: 4 July 2019

CaseChat Overview and Summary

The case of *Sabado & Sabado* concerned parenting arrangements and spousal maintenance. The mother sought orders for sole parental responsibility for the children, that the children live with her, and that they spend only daytime with the father. She also sought sole use and occupation of the family home, from which she and the children had been excluded by the father's conduct. The father applied for spousal maintenance.

The court was required to determine several key issues. Firstly, it had to consider the applicable principles for interim parenting orders, particularly in light of allegations of family violence perpetrated by the father and his anger management issues. Secondly, the court needed to assess whether to grant the mother sole use and occupation of the family home. Finally, the court had to determine whether the father had established an entitlement to spousal maintenance.

In relation to parenting, Foster J found that the father had perpetrated family violence and had anger management issues, which weighed heavily in favour of the mother having sole parental responsibility. The court ordered that the children live with the mother and have only daytime contact with the father, and that both parents attend a parenting course. Regarding the family home, the court granted the mother sole use and occupation, acknowledging that the father's conduct had led to the exclusion of the mother and children. The father's application for spousal maintenance was dismissed, as he had not demonstrated an inability to support himself in the circumstances.

Orders