SAKALA & BAFTUS - [2019] FCCA 3596

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAKALA & BAFTUS

[2019] FCCA 3596

Catchwords:
FAMILY LAW – Undefended hearing – order for no time with mother – change of name.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Cases cited:

Chapman & Palmer (1978) FLC 90-150

Jepson & Fleming [2018] FCCA 400

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Mayes & Denning [2017] FCCA 1754

MRR & GR [2010] HCA 4

Salah & Salah [2016] FamCAFC 100

Sander & Hearn [2012] FMCAfam 812

Slater & Light [2011] FamCAFC 1

Applicant:

MR SAKALA

Respondent:

MS BAFTUS

File Number:

PAC 4784 of 2018

Judgment of:

Judge Obradovic

Hearing date:

25 October 2019

Date of Last Submission:

25 October 2019

Delivered at:

Parramatta

Delivered on:

13 December 2019

REPRESENTATION

Appearing for the Applicant:

Ms Khalil

Solicitors for the Applicant:

Fay Rose Legal

Appearing for the Respondent:

No appearance

ORDERS

The child X (male) born … 2011 shall be henceforth known as X.
The father, Mr Sakala is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X (male) born … 2011 be now registered as X.
Pursuant s.28 (5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child’s name in the form specified in Order 2 herein.
The child Z (female) born … 2012 shall be henceforth known as Z.
The father, Mr Sakala is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as Z (female) born … 2012 be now registered as Z.
The Court directs that the applicant forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
The father shall have sole parental responsibility for decisions concerning the long term care, welfare and development of the children X born … 2011, Z born … 2012 and Y born … 2013 (“the children”).
The children shall live with the father.
The children shall spend no time with the mother.
Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4784 of 2018

MR SAKALA

Applicant

And

MS BAFTUS

Respondent

REASONS FOR JUDGMENT

Introduction

These are final parenting proceedings in respect of the three children of the parties:
a)X born on … 2011;
b)Z born on … 2012; and
c)Y born on … 2013.
The final hearing proceeded on an undefended basis as against the respondent, who has not participated in the proceedings except for a telephone appearance on 31 October 2018 and thereafter appearing in Court on 15 November 2018 and consenting to interim parenting orders. The respondent has not filed any material, despite orders directing her to do so.
The children have been living with the applicant since interim orders were made by…

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 SAKALA & BAFTUS

Details

AGLC: SAKALA & BAFTUS [2019] FCCA 3596
Case: [2019] FCCA 3596
Decision Date: 13 December 2019

CaseChat Overview and Summary

In the Family Court of Australia, Judge Obradovic presided over proceedings involving Mr Sakala and Ms Baftus concerning their children. The dispute centred on orders relating to the children's names and parental responsibility, with the hearing proceeding undefended by Ms Baftus.

The court was required to determine whether to grant orders authorising the father, Mr Sakala, to change the registered names of the parties' three children. Additionally, the court had to consider and make orders regarding the children's living arrangements, time spent with each parent, and the allocation of parental responsibility.

Judge Obradovic made orders that the children, X, Z, and Y, shall henceforth be known by specific names, and authorised Mr Sakala to apply to the Registrar of Births, Deaths and Marriages in New South Wales to have the children’s names registered accordingly. The court further ordered that the father shall have sole parental responsibility for decisions concerning the long-term care, welfare, and development of the children, and that the children shall live with the father and spend no time with the mother. The court directed that a sealed copy of the orders be served on the Registrar of Births, Deaths and Marriages and removed all outstanding issues from the list of cases awaiting finalisation.

Orders

Orders of the court

The child X (male) born … 2011 shall be henceforth known as X.

The father, Mr Sakala is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X (male) born … 2011 be now registered as X.

Pursuant s.28 (5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child’s name in the form specified in Order 2 herein.

The child Z (female) born … 2012 shall be henceforth known as Z.

The father, Mr Sakala is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as Z (female) born … 2012 be now registered as Z.

The Court directs that the applicant forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.

The father shall have sole parental responsibility for decisions concerning the long term care, welfare and development of the children X born … 2011, Z born … 2012 and Y born … 2013 (“the children”).

The children shall live with the father.

The children shall spend no time with the mother.

10.

Remove all outstanding issues from the list of cases awaiting finalisation.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.