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
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- AGLC
- Sanders & Sanders (No 5) [2023] FedCFamC1F 59
- Case
- [2023] FedCFamC1F 59
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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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