SANDEX & BONDIR - [2017] FamCAFC 45

FAMILY COURT OF AUSTRALIA

SANDEX & BONDIR

[2017] FamCAFC 45

FAMILY LAW – APPEAL – EXPEDITION – Where the wife seeks that the hearing of her appeal be expedited – Where it has not been demonstrated to this Court that this case should be given priority over any case already listed, or waiting to be listed – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent and the Independent Children’s Lawyer make oral applications for their costs – Where it is sought that the respective applications for costs be reserved – Costs reserved.

Family Law Act 1975 (Cth) – s 94(2D)(j)

Family Law Rules 2004 (Cth) – r 12.10A

APPLICANT:

Ms Sandex

RESPONDENT:

Mr Bondir

INDEPENDENT CHILDREN’S LAWYER:

Ms Hession

APPEAL NUMBER:

SOA

2017

FILE NUMBER:

MLC

1139

2008

DATE DELIVERED:

3 March 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

3 March 2017

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

24 January 2017

LOWER COURT MNC:

[2017] FCCA 79

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Allen

SOLICITOR FOR THE RESPONDENT:

Macgregor Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Hession

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

The application in an appeal filed on 2 February 2017 be dismissed.
The oral applications for costs made on behalf of the respondent and the Independent Children’s Lawyer be reserved to a date to be fixed following the conclusion of the appeal filed by the appellant on 2 February 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: MLC 1139 of 2008
Appeal Number: SOA 9 of 2017

Ms Sandex

Applicant

And

Mr Bondir

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the Court today is an application in an appeal filed by Ms Sandex (“the wife”) on 2 February 2017 seeking that the hearing of the appeal filed on 2 February 2017 against orders made by Judge Bender on 24 January 2017 be expedited.
There is an affidavit filed in support of that application. However, as I have explained to the wife, who appears without legal representation, I am not able to take into account much of that affidavit, because what is contained therein is, as I see it, the wife re-arguing her case before the trial Judge, making the same allegations that she…

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 & BONDIR [2017] FamCAFC 45
Case: [2017] FamCAFC 45
Decision Date: 3 March 2017

CaseChat Overview and Summary

The parties involved in this matter are the wife, the husband, and the Independent Children’s Lawyer. The wife has filed an appeal against a decision made in family law proceedings, which was originally heard in the Federal Circuit and Family Court of Australia. The wife seeks to expedite the hearing of her appeal and has also applied for costs against the respondent and the Independent Children’s Lawyer. The court was required to decide whether the wife’s application for an expedited hearing should be granted and whether the applications for costs should be reserved.

The court considered the wife’s application to expedite the hearing of her appeal and found that it had not been demonstrated that this case should be given priority over any other cases already listed or waiting to be listed. Therefore, the court dismissed the wife’s application for an expedited hearing. The court also considered the applications for costs made on behalf of the respondent and the Independent Children’s Lawyer. The court found that the respective applications for costs should be reserved until after the conclusion of the appeal filed by the wife on 2 February 2017.

The court found that the wife had not demonstrated that her case should be given priority over any other cases already listed or waiting to be listed. The court also found that the applications for costs should be reserved until after the conclusion of the appeal filed by the wife on 2 February 2017. The court dismissed the wife’s application for an expedited hearing and reserved the applications for costs to be fixed following the conclusion of the appeal. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The application in an appeal filed on 2 February 2017 be dismissed.

The oral applications for costs made on behalf of the respondent and the Independent Children’s Lawyer be reserved to a date to be fixed following the conclusion of the appeal filed by the appellant on 2 February 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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