SANDEX & BONDIR - [2015] FCCA 396

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDEX & BONDIR

[2015] FCCA 396

Catchwords:
FAMILY LAW – Children – parental responsibility – allegations of family violence – no presumption of equal shared parental responsibility – change in long-standing living arrangement of the children – parenting capacity – views of children – time which the children should spend with the non-residential parent.

Legislation:

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

A & A [1998] FLC 92-800
CDJ v VAJ (1998) 197 CLR 172
Howe v Howe (1961) 2 FLR 2
In the Marriage of K and Z [1997] FLC 92-783

Lloyd & Lloyd [1980] FLC 90-816
Loddington & Derringford (No.2) [2008] FamCA 925
M & M [1988] 166 CLR 69
McCall & Clark (2009) FLC 93-405
R v R Children’s Wishes [2002] FLC 93-000
Wheedon & Gomer [2014] FamCAFC 141

Applicant:

MS SANDEX

Respondent:

MR BONDIR

File Number:

MLC 1139 of 2008

Judgment of:

Judge Baker

Hearing dates:

1, 2, 3, 4 and 5 December 2014,

28 January and 17 February 2015

Date of Last Submission:

17 February 2015

Delivered at:

Hobart

Reasons Delivered on:

4 March 2015

Orders Delivered on:

5 March 2015

REPRESENTATION

Counsel for the Applicant:

Ms Devine

Solicitors for the Applicant:

Carew Counsel Solicitors

Counsel for the Respondent:

Ms Manderlert

Solicitors for the Respondent:

Comito & Associates

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.
Mr Bondir have sole parental responsibility for X born (omitted) 2002 (“X”) and Y born (omitted) 2004 (“Y”) (collectively “the children”) save that the father shall prior to making the sole ultimate decision about any long term issue use his best endeavours to advise the mother in writing (via letter, email or communication book) of any decision intended to be made about that long-term issue in order to:
(a)Seek the mother’s written response in relation thereto; and
(b)Consider by reference to the child’s best interests any such response prior to making any decision; and
(c)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The children live with the father commencing 6 March 2015.
The children spend time and communicate with the mother:
(a)Commencing 8 March 2015, for a period of two months each Sunday from 10.00am until 6.00pm;
(b)Commencing 8 May 2015 from 3.30pm Friday until 6.00pm Sunday each alternate weekend, save for 15 March 2015 when the children shall spend time with the mother from 9.00am until 9.00pm, and each alternate Tuesday after school (or such other day during the week as agreed in writing) until 7.00pm;
(c)By telephone each Monday and Thursday with the mother to initiate the call to the children between 7.00pm and 8.00pm and the father ensure that the mother has a telephone contact number to facilitate tis order;
(d)By telephone at all other times as may be reasonably requested by the children with the children to initiate the telephone call to the mother and the…

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.

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Details

AGLC: Sandex and Bondir [2015] FCCA 396
Case: [2015] FCCA 396
Decision Date: 5 March 2015

CaseChat Overview and Summary

This matter concerned parenting orders for two children, X and Y, born in 2002 and 2004 respectively. The dispute was between Mr Bondir and Ms Sandex, the children's parents. The decision was made by Judge Baker.

The court was required to determine the future parenting arrangements for the children, including issues of parental responsibility, living arrangements, time spent with each parent, communication, and various specific provisions relating to schooling, health, holidays, birthdays, and parental conduct. The court also had to consider the implications of contravening the orders made.

The court ordered that all previous parenting orders be discharged. Mr Bondir was granted sole parental responsibility for the children, with a requirement to consult with Ms Sandex in writing regarding long-term decisions before making a final decision. The children were ordered to live with Mr Bondir from 6 March 2015, with detailed provisions outlining the time the children would spend with and communicate with Ms Sandex. Further orders addressed school-related matters, health information, communication between parents, counselling for the children, school enrolment, attendance at extracurricular activities, changeovers, and restrictions on parental conduct, including denigration and discussing the proceedings with the children. The Independent Children's Lawyer was to meet with the children to inform them of the orders.

Orders

Orders of the court

All previous parenting orders be discharged.

Mr Bondir have sole parental responsibility for X born (omitted) 2002 (“X”) and Y born (omitted) 2004 (“Y”) (collectively “the children”) save that the father shall prior to making the sole ultimate decision about any long term issue use his best endeavours to advise the mother in writing (via letter, email or communication book) of any decision intended to be made about that long-term issue in order to:

(a) Seek the mother’s written response in relation thereto; and

(b) Consider by reference to the child’s best interests any such response prior to making any decision; and

The children live with the father commencing 6 March 2015.

The children spend time and communicate with the mother:

(a) Commencing 8 March 2015, for a period of two months each Sunday from 10.00am until 6.00pm;

(b) Commencing 8 May 2015 from 3.30pm Friday until 6.00pm Sunday each alternate weekend, save for 15 March 2015 when the children shall spend time with the mother from 9.00am until 9.00pm, and each alternate Tuesday after school (or such other day during the week as agreed in writing) until 7.00pm;

(c) By telephone each Monday and Thursday with the mother to initiate the call to the children between 7.00pm and 8.00pm and the father ensure that the mother has a telephone contact number to facilitate tis order;

(d) By telephone at all other times as may be reasonably requested by the children with the children to initiate the telephone call to the mother and the father to facilitate the children doing so;

(e) In even numbered years (“even years”) from 5.00pm Christmas Day until 5.00pm Boxing Day;

(f) In odd numbered years (“odd years”) from 5.00pm Christmas Eve until 5.00pm Christmas Day;

(g) For one half of the Victorian School holidays and in default of agreement, the first half, commencing from the conclusion of the school term to 5pm of the middle Saturday of the holidays;

(h) For one half of the long summer holiday period as agreed and in default of agreement on a week-about basis, from the conclusion of Y’s school year for a period of 7 days, the mother to have the first week in 2015 and each alternate year thereafter, and the father to have the first week in 2016 and each alternate year thereafter. X’s time, between the date of her finishing that school year and the date of Y finishing his school year, be divided equally between the parties, the mother to have the first half of that time in 2015 and each alternate year thereafter, and the father to have the first half of that time in 2016 and each alternate year thereafter;

(i) From 5.00pm on the Saturday preceding Mother’s Day until 7.00pm on Mother’s Day;

(j) For the children’s birthdays when the children are not in the mother’s care on that day:

(i) From 3.30pm to 6.00pm on school days, with the children to be collected from Y’s school;

(ii) From 2.00pm to 6.00pm on non-school days.

(k) For the mother’s birthday when the children are not in her care on that day from 3.30pm on 31 December until 3.30pm 1 January of each year.

The mother’s usual time be suspended as follows:

(a) From 5.00pm on the Saturday preceding Father’s Day until 7.00pm on Father’s Day;

(b) For the children’s birthdays when the children are not in the father’s care on that day:

(i) From 3.30pm to 6.00pm on school days, with the children to be collected from Y’s school;

(ii) From 2.00pm to 6.00pm on non-school days.

(c) For the father’s birthday when the children are not in his care on that day from 3.30pm on 10 January until 3.30pm 11 January of each year.

Changeover is to take place at the children’s schools unless otherwise mutually agreed and all other changeover take place at the McDonalds fast food outlet situated at the corner of (omitted).

Each party:

(a) Be entitled to obtain copies of all school photographs, school reports, newsletters, notices, information pertaining to the children’s education, progress, school activities, parent-teacher interviews, extracurricular events and any other circulars as may be available from the school; and

(b) Be permitted to attend any school concerts, sporting events, parent-teacher interviews and other functions ordinarily attended by parents.

Each parent keep the other informed of the children’s health and any health issues affecting the children whilst the children are in their care and inform the other parent of any procedures or operations to be undertaken and obtain their consent prior to those procedures or operations being undertaken (except in cases of emergency with the parent in whose care the children is in to inform the other parent as soon as possible) and both the mother and father be at liberty to attend the hospital at different times whilst there are any intervention orders in place.

The mother and father use a communication book to communicate with each other on matters relevant to the children’s welfare and education and each parent will use their best endeavours to ensure that the communication book travels with the children at changeover.

10.

Forthwith the father arrange counselling for the children from a suitably qualified and experienced counsellor to assist them in the adjustment of their living arrangements.

11.

The parents are restrained from removing the children from their current schools without the prior written consent of the other parent.

12.

Unless otherwise agreed in writing between the parties Y shall be enrolled at (omitted) Secondary College for his secondary education in 2016 or any other school at which the child X attends.

13.

Each party is restrained from attending the children’s extra-curricular sporting or other activities including training and games, but not including finals or concerts, whilst the children are in the care of the other party, unless the party having the care of the children otherwise agrees in writing that the other can attend.

14.

Subject to any direction to the contrary from the children’s schools, each party is at liberty to attend all school events to which parents are invited in the usual course of the school year, including but not limited to concerts, family days, sports days and fetes and parent teacher interviews.

15.

Each party is restrained from being present at the end of the school day on those days when the other party is to collect the children for changeover pursuant to this order.

16.

Each party is restrained from denigrating the other party in the presence or within the hearing of the children or allowing any other person to do so.

17.

In the event that the children are to be removed from the state of Victoria for the purpose of holidays the travelling party give the other party at least 7 days written notice of the intention to travel and ensure that the other party has contact details for the children whilst they are away.

18.

Each party is restrained from discussing the evidence adduced in these proceedings or the judgment with the children or in the presence or hearing of the children or allowing any other person to do so.

19.

Each party keep the other informed at all times of a current residential address and telephone number on which the children can be contacted and each party is otherwise restrained from attending at or upon the other party’s residential address without the prior written consent of the other party.

20.

Within 7 days the ICL meet with the children and inform them of these orders, following which the appointment of the ICL shall be discharged.

THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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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