SENDAK & SENDAK - [2014] FamCAFC 12

FAMILY COURT OF AUSTRALIA

SENDAK & SENDAK

[2014] FamCAFC 12

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – where the appellant seeks to appeal final parenting orders made following the dismissal of his application for want of prosecution and leave being granted to the respondent to proceed on an undefended basis – where the appellant complains that there was a denial of procedural fairness – where the respondent opposes the appeal – where the Independent Children’s Lawyer did not appear at the hearing of the appeal because of the unavailability of legal aid but had supported the final parenting orders made – where there is no merit in any of the grounds of appeal – appeal dismissed.

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where the respondent seeks her costs in the event that the appeal is dismissed – where the appellant opposed any order for costs – where impecuniosity is no bar to an order for costs being made – where the appellant has been wholly unsuccessful – costs ordered in favour of the respondent.

Family Law Act 1975 (Cth) – s 61DA(4), Division 12A
Federal Magistrates Act 1999 (Cth) (as it then was)

Allesch v Maunz (2000) 203 CLR 172
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Forbes & Bream (2008) 222 FLR 96
Trahn v Long (No. 2) [2008] FamCAFC 194

APPELLANT:

Mr Sendak

RESPONDENT:

Ms Sendak

FILE NUMBER:

MLC

2076

2011

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

10 February 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

14 June 2013

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

29 October 2012

LOWER COURT MNC:

[2012] FMCAfam 1320

REPRESENTATION

THE APPELLANT:	In Person
COUNSEL FOR THE RESPONDENT:	Ms Devine

SOLICITOR FOR THE RESPONDENT:

Altavilla Vessali Lawyers

Orders

The appeal be dismissed.
The father pay the costs of the mother of and incidental to the appeal on a party/party basis, such costs to be assessed in default of agreement

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

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

Appeal Number: SOA 84 of 2012
File Number: MLC 2076 of 2011

Mr Sendak

Appellant

And

Ms Sendak

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 19 April 2013 Mr Sendak (“the father”) appeals against final parenting orders made by Federal Magistrate Hartnett (as she then was) on 29 October 2012. Ms Sendak (“the mother”) opposes the appeal.
Her Honour found that the father had failed to comply with orders for the filing of affidavit material, and thus that he had failed to prosecute his Initiating Application filed on 11 March 2011. As a result, her Honour dismissed the father’s application and gave leave…

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: SENDAK & SENDAK [2014] FamCAFC 12
Case: [2014] FamCAFC 12
Decision Date: 10 February 2014

CaseChat Overview and Summary

The appellant, who is the father in this family law case, sought to appeal final parenting orders made by the Family Court of Australia. The orders were made following the dismissal of his application for want of prosecution and the granting of leave to the respondent, the mother, to proceed on an undefended basis. The father complained that there was a denial of procedural fairness, while the mother opposed the appeal. The Independent Children's Lawyer did not appear at the hearing due to the unavailability of legal aid but had supported the final parenting orders made. The father argued that there was a denial of procedural fairness, but the court found that there was no merit in any of the grounds of appeal.

The court found that there was no procedural unfairness, and that the father's application for leave to appeal was not made within the requisite time. The court noted that the father had not provided any evidence to support his claims of procedural unfairness, and that the mother had acted appropriately in proceeding on an undefended basis. The court found that the appeal had no merit and was dismissed. The mother sought her costs in the event that the appeal was dismissed, and the court found that impecuniosity was no bar to an order for costs being made. The court found that the father had been wholly unsuccessful in his appeal, and that an order for costs was appropriate.

The court ordered that the appeal be dismissed, and that the father pay the costs of the mother of and incidental to the appeal on a party/party basis. The costs were to be assessed in default of agreement. The court found that the mother was entitled to her costs, and that the father's opposition to any order for costs was without merit. The court noted that the father had been wholly unsuccessful in his appeal, and that the mother was entitled to her costs as a result. The court ordered that the costs be paid by the father on a party/party basis, and that they were to be assessed in default of agreement.

Orders

Orders of the court

1. The appeal be dismissed.

2. The father pay the costs of the mother of and incidental to the appeal on a party/party basis, such costs to be assessed in default of agreement

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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