Sanders & Sanders (No 5)

Case [2023] FedCFamC1F 59

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sanders & Sanders (No 5) [2023] FedCFamC1F 59

File number: SYC 7660 of 2020
Judgment of: BRASCH J
Date of judgment: 15 February 2023
Catchwords:

FAMILY LAW – PARENTING – Where final parenting orders made in April 2022 – Where children’s residence changed from father to mother – Where father’s appeal dismissed - Where mother has the benefit of a Recovery Order – Where it was anticipated the children residing with the mother would be fraught – Where father applies for new parenting Orders – Where s 79A of the Family Law Act is  not a vehicle to set aside parenting orders - Where the Department of Communities and Justice is supporting family  - Where Rice & Asplund (1979) FLC 90-725 discussed – Where further litigation about the children is not in their best interests - Application for new parenting orders dismissed

FAMILY LAW - COSTS – Where mother seeks costs of an Application in a Proceeding to facilitate sale of the former matrimonial home pursuant to final property orders – Where father did not sign a required form – Costs Order made

FAMILY LAW - PROPERTY – Where final property orders made in April 2022 – Where father’s appeal dismissed - Where father filed an Initiating Application for fresh property orders – Where father did not like the final property orders – Where father twice previously told to consider s 79A of the Act – Where directions made for father to file an Amended Initiating Application – Where the father did not - Where the father’s new property orders dismissed by consent – Where father again seeks fresh property orders in his Case Outline – Where submissions on jurisdiction to make fresh s 79 property orders were ordered – Where father did not comply with those orders - Where power to make orders pursuant to section 79 has been exhausted - Where Gabel & Yardley (2008) FLC 93-386 followed - Where the court has no jurisdiction to entertain fresh s 79 property orders

Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CC(3)(a)-(m), 64B(1), 69ZT, 69ZW, 79, 79A, 79A(1)(d), 91B, 106A(1), 117, 117(1), 117(2), 117(2A),117(4), 117(4A), 117(5), 117(6)
Cases cited:

Fickling & Fickling (1996) FLC 92-664; [1996] FamCA 13

Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162

Hedley & Hedley [2019] FamCA 946

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

King & Finneran (2001) FLC 93-079; [2001] FamCA 344

Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152

McEnerney & McEnerney (1980) FLC 90-866

Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150

Phillips & Hansford (2019) FLC 93-917; [2019] FamCAFC 165

Rice & Asplund (1979) FLC 90-725

Searson & Searson [2017] FamCAFC 119

SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16

Trewitt & Brock [2021] FedCFamC1A 9

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Continue reading Sanders & Sanders (No 5)

Sign in free to access the full text

Details
AGLC
Sanders & Sanders (No 5) [2023] FedCFamC1F 59
Case
[2023] FedCFamC1F 59
Decision Date

CaseChat Overview and Summary

Sanders & Sanders (No 5) was a family law matter heard by the Family Court of Australia, involving disputes between the parents regarding parenting arrangements, property settlements, and costs. The father sought changes to the existing parenting orders, while the mother opposed these changes and sought costs arising from her property application. Additionally, the father sought new property orders.

The legal issues that the court needed to address included whether there were sufficient changed circumstances to warrant a change to the existing parenting orders, and whether the father's late filing of an affidavit should be admitted as evidence. The court also needed to consider the mother's application for costs and the father's application for new property orders.

The court held that the father had not demonstrated any changed circumstances that would warrant a change to the existing parenting orders, and that the late filing of the affidavit should not be admitted as evidence. The court also held that the mother was entitled to costs arising from her property application, but that the father's application for new property orders should be dismissed.

In summary, the court rejected the father's application for changes to the parenting orders and for new property orders, and granted the mother's application for costs arising from her property application. The mother was also awarded costs for the hearing on 24 January 2023.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Before turning to the hearing on 24 January 2023, it is now timely to summarise the familial background and material upon which the parties' relied.Background The father was born in 1975, and the mother was born in 1977. The parties commenced a relationship in 2003. In mid-2004, the parties commenced cohabitation. In 2007, the parties married. X was born in 2009 and Y in 2010. In July/August 2020, the parties separated on a final basis. It was not agreed between the parties what date separation occurred, but it was not necessary for me to decide that on this application.The hearing on 24 January 2023 After all the permutations described above, the following disputes were before me on 24 January 2023:·The Rice & Asplund preliminary issue;·The mother's application for costs arising from her property Application in a Proceeding filed 10 January 2023; and ·The father's agitation of new s 79 property orders in his Case Outline. I will consider, in turn, each of the three disputes listed above.ParentingMaterial The mother filed one consolidated affidavit on 13 January 2023, as required by my 5 December 2022 orders. The father filed three affidavits – one on 13 January 2022 as required by my orders, then another affidavit of 103 pages on 20 January 2023 (purported to be in compliance with Christie J’s directions on the mother’s application to have documents signed) and a third of 116 pages on 23 January 2023. Plainly, the last of these was filed and served the day before the hearing. The mother objected to its receipt. After much discussion, and after giving the father 30 minutes to consider what material he sought to rely upon, the material before me for the father on the parenting aspect of the dispute was his: ·Initiating Application filed 5 October 2022, in particular orders 1-12 and 21-26; ·Affidavit of Mr Sanders filed 13 January 2023; and ·Affidavit of Mr Sanders filed 23 January 2023, but limited to paragraphs 340-350, 405-412 and annexures 15 and 17. The mother relied upon her: ·Response to an Initiating Application filed 1 November 2022; ·Affidavit of Ms Sanders filed 13 January 2023; ·Notice of Child Abuse, Family Violence or Risk; ·Orders and Reasons dated 7 April 2022; ·Orders and Reasons dated 16 May 2022; and ·Single Expert Report (Dr O) dated 14 April 2021. The ICL relied upon:·Orders and Reasons dated 7 April 2022. Each party filed a Case Outline. During the course of the hearing, I received three exhibits into evidence. I also gave the parties a copy of the unreported decision of Justice Jordan in [2006] FamCA 204. I refer to this later in these reasons.Legal Principles The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the children’s best interests. However, the mother’s Response is the application be dismissed. She relies upon Rice & Asplund in that regard. In an often cited extract, Evatt CJ said:The principles which in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some new factor which was not disclosed at the previous hearing which would have been material.(Emphasis added)

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.