SANDEX & BONDIR - [2017] FCCA 79

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDEX & BONDIR

[2017] FCCA 79

Catchwords:
FAMILY LAW – Parenting – Mother’s application to vary final parenting orders for the parties’ two children – less than two years after they were pronounced – where each parent is seeking sole parental responsibility – parties are unable to communicate and have a highly conflicted relationship – where the Mother alleges the Father is manipulative, intimidating and threatening to the children – where the children are expressing a strong wish to remain living with the Father and to spend very limited, if any, time with the Mother.

HELD – Orders made for the Father to retain sole parental responsibility, for the children to live with the Father and to spend very limited time with the Mother.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64B(2), 65DAA

Cases cited:

AMS v AIF (1999) 199 CLR 160

U & U (2002) 211 CLR 238
Bale-Sutch & Bale-Sutch (No.2) [2010] FamCA 20
Goode & Goode (2006) 206 FLR 212

Applicant:

MS SANDEX

Respondent:

MR BONDIR

File Number:

MLC 1139 of 2008

Judgment of:

Judge Bender

Hearing date:

12 September 2016

Date of Last Submission:

14 September 2016

Delivered at:

Melbourne

Delivered on:

24 January 2017

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Macgregor Barristers & Solicitors

Counsel for the Independent Children's Lawyer:

Ms Agresta

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

All previous parenting orders be discharged.
The Father have sole parental responsibility for all major long term parenting decisions relating to the children X born (omitted) 2002 (‘X’) and Y born (omitted) 2004 (‘Y’).
Before any major long term parenting decision is made in relation to X and Y the Father communicate with the Mother by text or email:
(a)The nature of the decision to be made;
(b)His views as to what should be done; and
(c)Requesting that the Mother provide a response within seven days thereafter.
If the Mother provides a response pursuant to the Father’s request as set out in the foregoing order, the Father shall consider it, and upon making any determination as to that decision, notify the Mother accordingly.
Should the Mother fail to provide any information to the Father with the seven day period as provided in Order 3(c) hereof the Father shall make the decision without further consultation with the Mother.
X and Y live with the Father.
The Mother spend time and communicate with X in accordance with X’s wishes, save for special occasions as set out in Orders 10 (a),(b),(c),(d) and (e) of these orders.
The Mother is permitted to attend X’s (hobby omitted) sporting events, debating and special events only if invited by X to do so in writing including text message.
The Mother spend time and communicate with Y as follows:
(a)during the school term once per month on the first Saturday or Sunday of the month between 10.00am…

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 & BONDIR

Details

AGLC: Sandex and Bondir [2017] FCCA 79
Case: [2017] FCCA 79
Decision Date: 24 January 2017

CaseChat Overview and Summary

In the matter of SANDEX & BONDIR, the mother applied to vary final parenting orders concerning the parties' two children, X and Y, less than two years after they were pronounced. Both parents sought sole parental responsibility, and the relationship was characterised by a high level of conflict and an inability to communicate. The mother alleged the father was manipulative, intimidating, and threatening towards the children, who themselves expressed a strong wish to remain living with the father and have very limited contact with the mother. The case was heard by Judge Bender.

The court was required to determine the parenting arrangements for X and Y, specifically addressing issues of parental responsibility, the children's living arrangements, and the nature and extent of contact between the children and their mother. The court also had to consider the children's expressed wishes and the allegations made by the mother against the father.

Judge Bender reasoned that the children's expressed wishes were a significant factor in determining their best interests, particularly given their ages. The court found that the existing level of conflict between the parents was detrimental to the children and that the father was better placed to provide stability. Consequently, the court ordered that the father retain sole parental responsibility for all major long-term parenting decisions, with a specific process for the father to consult the mother. The children were ordered to live with the father, and the mother's time and communication with the children were significantly limited, largely in accordance with the children's stated preferences, with provisions for specific holidays and communication methods. The court also made orders for ongoing monitoring by a psychologist and the Independent Children's Lawyer, and imposed restraints on the mother regarding future applications without leave.

Orders

Orders of the court

All previous parenting orders be discharged.

The Father have sole parental responsibility for all major long term parenting decisions relating to the children X born (omitted) 2002 (‘X’) and Y born (omitted) 2004 (‘Y’).

Before any major long term parenting decision is made in relation to X and Y the Father communicate with the Mother by text or email:

(a) The nature of the decision to be made;

(b) His views as to what should be done; and

If the Mother provides a response pursuant to the Father’s request as set out in the foregoing order, the Father shall consider it, and upon making any determination as to that decision, notify the Mother accordingly.

Should the Mother fail to provide any information to the Father with the seven day period as provided in Order 3(c) hereof the Father shall make the decision without further consultation with the Mother.

X and Y live with the Father.

The Mother spend time and communicate with X in accordance with X’s wishes, save for special occasions as set out in Orders 10 (a),(b),(c),(d) and (e) of these orders.

The Mother is permitted to attend X’s (hobby omitted) sporting events, debating and special events only if invited by X to do so in writing including text message.

The Mother spend time and communicate with Y as follows:

(a) during the school term once per month on the first Saturday or Sunday of the month between 10.00am and 4.00pm on whichever of those days he does not have extra-curricular or sporting commitments (or if he does that the Mother must ensure he attends);

(b) commencing term 1 holidays 2017, during the school term holidays from 3.30pm or the conclusion of school on the last Friday of term to 5.00pm on the first Sunday (i.e the first weekend) of the school term holidays; and

(c) during the long summer school vacation holidays commencing the first Friday after Christmas Day in the 2017/18 long summer vacation from 5.30pm Friday to 5.00pm Sunday and each alternate weekend thereafter subject to any other orders being in force and subject to the Mother being available to care for Y.

10.

The Mother otherwise spend time and communicate with X and Y as follows:

(a) from 10.00am to 4.00pm on Boxing Day in even-numbered years;

(b) from 10.00am to 4.00pm on Christmas Day in odd numbered years;

(d) On each of X and Y’s birthdays from 3.30pm to 5.00pm on a school day, with X and Y to be collected from school, and from 2.00pm to 6.00pm non-school days ((omitted) for X and (omitted) for Y);

(e) from 12 noon to 6.00pm on (omitted) in each year (the Mother’s birthday);

(f) by telephone each Tuesday with the Mother to initiate the call to X and Y between 7.00pm and 8.00pm, such calls to be made to X and Y’s mobile phones that have been provided by the Father and the Father to ensure X and Y’s phones are charged and have the necessary funding to enable X and Y to receive calls; and

(g) otherwise as agreed between the parents in writing by text message.

11.

The Mother’s time that would otherwise take place in accordance with these Orders be suspended on Father’s Day and on the Father’s birthday between 10.00am and 4.00pm ((omitted) in each year).

12.

The Father ensure X and Y attend an appointment to meet with Ms B, at his expense, at least once every four months or as otherwise directed by Ms B for a period of twelve months from the date of these orders (to monitor how X and Y are and make any recommendations).

13.

The appointment of the Independent Children’s Lawyer be extended for twelve months from the date of the final orders or seven days from the conclusion of the last appointment with Ms B pursuant to paragraph 12, whichever is the latter and the Independent Children’s Lawyer is requested to liaise with Ms B to receive her feedback on how X and Y are and Ms B’s recommendations.

14.

The Independent Children’s Lawyer have liberty to apply on short notice.

15.

In the event the Mother is willing to attend a clinical psychologist who is familiar with family law matters the Mother shall advise the Independent Children’s Lawyer of the name and contact details of the psychologist and the Independent Children’s Lawyer is to provide a copy of the judgment of Judge Baker of 4 March 2016, a copy of the family report of Ms B dated 13 July 2016 and a copy of the judgment and final orders made in this matter to the psychologist.

16.

Changeover is to take place at X and Y’s school and if not at school at the McDonald’s fast food outlet situated at the corner (omitted), (omitted) unless otherwise agreed by the parents in writing including text message.

17.

Each parent is entitled to obtain copies of all school photographs, school reports, newsletters, notices, information pertaining to X and Y’s education, progress, school activities, parent teacher interviews, extra-curricular events and other circulars as may be available from the school and usually available to parents, at each parent’s expense.

18.

The Mother is permitted to attend any school concerts and sporting events, for Y, at times when Y is in the Mother’s care pursuant to these orders, or as otherwise agreed between the parties.

19.

Each parent is permitted to attend parent teacher interviews separately with the Mother’s interview to be in the absence of X and Y.

20.

The Mother is restrained from making any decisions about X’s and Y’s education or their involvement in school events and communicating such decision to X and Y’s school/s without first obtaining the Father’s written consent.

21.

Each parent must advise the other parent as soon as practicable of any serious illness or injury suffered by either of X and Y when in that parents care and provide details of the nature of the illness or injury suffered, the details of the treating practitioner and provide any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

22.

The Father is authorised to provide a copy of these Orders to X and Y’s school/s and their treating medical practitioners.

23.

Each parent is restrained from denigrating the other parent in the presence or within the hearing of X and Y or allowing any other person to do so.

24.

In the event X and Y are travelling outside the State of Victoria for the purpose of holidays the travelling parent give the other parent at least seven days written notice of the intention to travel and ensure that the other parent has contact details for X and Y whilst they are away.

25.

Each parent keep the other informed of their current residential address and telephone number on which X and Y can be contacted and each parent is otherwise restrained from attending at or upon the other parent’s residential address without the prior written consent of the other parent.

26.

Pursuant to section 64(2)(g) of the Family Law Act 1975 (Cth) (‘the Act’) the Mother be restrained from making any application under Part VII of the Act in relation to X and/or Y without first making an ex-parte application seeking and obtaining leave of a Judge of the Federal Circuit Court of Australia and for that purpose:

(a) the Mother must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking these orders;

(b) unless otherwise ordered such application is not to be served on the Father or any other person; and

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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