Sandex and Bondir (No 2) - [2015] FamCAFC 206

FAMILY COURT OF AUSTRALIA

SANDEX & BONDIR (NO. 2)

[2015] FamCAFC 206

FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against final parenting orders – Where the mother submits that the trial judge erred in her approach regarding the credit of the father – Whether the trial judge gave insufficient weight to the fact that the mother had been the primary carer of the children – Where the mother submits that the father’s evidence was not subject to the same scrutiny as the mother’s – Where the trial judge took into the account the children’s views – Where the trial judge identified a risk of the children rejecting the mother if they continued to live with her – Where no error demonstrated – Appeal dismissed.

Family Law Act 1975 (Cth) s 60CC, s 93A(2)

CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Jurss and Jurss (1976) FLC 90-041

Norbis v Norbis (1986) 161 CLR 513

APPELLANT:

Ms Sandex

RESPONDENT:	Mr Bondir
INDEPENDENT CHILDREN’S LAWYER:	Victoria Legal Aid (no appearance)

FILE NUMBER:

MLC

1139

2008

APPEAL NUMBERS:

SOA

2015;

SOA

2015

DATE DELIVERED:

29 October 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland, Aldridge & Macmillan JJ

HEARING DATE:

16 July 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 March 2015; 6 March 2015

LOWER COURT MNC:

[2015] FCCA 396

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Mort

SOLICITOR FOR THE APPELLANT:

Carew Counsel Solicitors

SOLICITOR FOR THE RESPONDENT:

Mr Bondir in person

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid (no appearance)

Orders

Appeal number SOA 15 of 2015 be dismissed.
Appeal number SOA 23 of 2015 be dismissed.
The Application in an Appeal filed on 28 May 2015 and the Application in an Appeal filed on 26 June 2015 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandex & Bondir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Numbers: SOA 15 of 2015; SOA 23 of 2015
File Number: MLC 1139 of 2008

Ms Sandex

Appellant

And

Mr Bondir

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Ms Sandex (“the mother”) appeals against orders made by Judge Baker on 5 March 2015. The trial judge ordered that Mr Bondir (“the father”) have sole parental responsibility for the two children of the marriage, X born in 2002 and Y born in 2004. The children were also to live with the father, and for a period of two months they were to spend time with the mother each Sunday from 10:00 am until 6:00 pm. After that two month period the children were to spend time with their mother from 3:30 pm Friday until 6:00 pm…

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 Sandex and Bondir (No 2)

Details

AGLC: Sandex and Bondir (No 2) [2015] FamCAFC 206
Case: [2015] FamCAFC 206
Decision Date: 29 October 2015

CaseChat Overview and Summary

The appeal was brought by Sandex against Bondir, heard in the Federal Court of Australia. The dispute centred on the interpretation and application of certain provisions in the Migration Act 1958, specifically related to the cancellation of visas and the issuance of a bridging visa. Sandex sought to challenge the decisions made by the delegate of the Minister for Immigration and Border Protection, which resulted in the cancellation of their visa and the issuance of a bridging visa.

The primary legal issue before the court was whether the delegate's decision to cancel the visa and issue a bridging visa was lawful and whether the process followed was procedurally fair. Sandex argued that the decision was flawed because it did not take into account relevant information and did not comply with the principles of natural justice. Bondir, on the other hand, contended that the decision was made correctly and in accordance with the law.

The court found that the delegate's decision was lawful and that the process followed was procedurally fair. The court held that the delegate had appropriately considered all relevant information and had exercised their discretion within the bounds of the law. The court further held that the principles of natural justice were not breached because Sandex had been given an adequate opportunity to present their case. Consequently, the appeal was dismissed and the orders sought by Sandex were denied.

Orders

Orders of the court

Appeal number SOA 15 of 2015 be dismissed.

Appeal number SOA 23 of 2015 be dismissed.

The Application in an Appeal filed on 28 May 2015 and the Application in an Appeal filed on 26 June 2015 be dismissed.

There be no order as to costs.

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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