Sandex & Bondir (No 2) - [2017] FamCAFC 130

FAMILY COURT OF AUSTRALIA

SANDEX & BONDIR (NO. 2)

[2017] FamCAFC 130

FAMILY LAW – APPEAL – CHILDREN – Parenting orders – Weight afforded to evidence – Error of discretion – Procedural fairness – Findings open on the evidence – Where the appeal does not raise any question of general principle – Reasons for decision in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Consideration of principles in CDJ v VAJ (1998) 197 CLR 172 – Applications dismissed.

Family Law Act 1975 (Cth) s 94AAA(7), 117
Health Records Act 2001 (Vic)

CDJ v VAJ (1998) 197 CLR 172
Edwards v Noble (1971) 125 CLR 296
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT:

Ms Sandex

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Mr Bondir

Victoria Legal Aid

FILE NUMBER:

MLC

1139

2008

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

14 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland, Ainslie-Wallace & Loughnan JJ

HEARING DATE:

5 July 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

24 January 2017

LOWER COURT MNC:

[2017] FCCA 79

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Whitchurch

SOLICITOR FOR THE RESPONDENT:

Macgregor Barristers and Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dr R Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

The appeal be dismissed.
The appellant mother pay the respondent father’s costs of and incidental to the appeal, such costs to be agreed or assessed in default of agreement and to be paid 28 days after such agreement or assessment.

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 (No. 2) 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

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

Ms Sandex

Appellant

and

Mr Bondir

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By her Notice of Appeal filed on 2 February 2017 Ms Sandex (“the mother”) appeals against final parenting orders made by Judge Bender on

24 January 2017.
The orders from which the appeal is brought concern the parties’ two children, X who was born in 2002 and Y who was born in 2004. The parties, having married in August 1999, separated in August 2007, and although they originally entered into consent…

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 (No 2)

Details

AGLC: Sandex & Bondir (No 2) [2017] FamCAFC 130
Case: [2017] FamCAFC 130
Decision Date: 14 July 2017

CaseChat Overview and Summary

Sandex & Bondir (No 2) involved an appeal from a decision regarding parenting orders for the parties' children. The appeal was brought by the mother, and the father was the respondent. The Family Court of Australia was tasked with determining whether the primary judge's decision was correct, including the weight given to evidence and whether there was any procedural unfairness.

The court examined whether the primary judge erred in the weight afforded to evidence and whether there was a procedural error that affected the outcome. The appeal also considered if the findings were open on the evidence and if the appeal raised any questions of general principle. Furthermore, the court reviewed the principles for granting permission to adduce further evidence, as outlined in CDJ v VAJ (1998) 197 CLR 172.

In dismissing the appeal, the court found that the appeal did not raise any questions of general principle and provided reasons in a short form as permitted by section 94AAA(7) of the Family Law Act 1975 (Cth). The court held that the primary judge's findings were open on the evidence and there was no procedural unfairness. The applications to adduce further evidence were also dismissed. Consequently, the appeal was dismissed, and the mother was ordered to pay the father's costs of and incidental to the appeal. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal be dismissed.

The appellant mother pay the respondent father’s costs of and incidental to the appeal, such costs to be agreed or assessed in default of agreement and to be paid 28 days after such agreement or assessment.

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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