SENDAK & SENDAK - [2012] FMCAfam 1320

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SENDAK & SENDAK

[2012] FMCAfam 1320

FAMILY LAW – Parenting orders – father failed to prosecute his application – application of father dismissed – mother’s application undefended – family violence perpetrated by father against mother – father’s significant mental health issues – sole parental responsibility to mother.

Family Law Act 1975 (Cth), ss.61DA(1), 61DA(4)
Federal Magistrates Court Rules 2001(Cth), rr.13.03A(1), 13.03B

Applicant:

MR SENDAK

Respondent:

MS SENDAK

File Number:

MLC 2076 of 2011

Judgment of:

Hartnett FM

Hearing date:

29 October 2012

Delivered at:

Melbourne

Delivered on:

29 October 2012

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Devine

Solicitors for the Respondent:

Altavilla Vessali

Counsel for the Independent children’s lawyer:

Mr Marchetti

Solicitors for the Independent children’s lawyer:

Cathleen Corridon & Associates

THE COURT ORDERS THAT:

The application of the father filed 11 March 2011 is dismissed.
There is leave to the mother to proceed with her application contained in her amended response dated 19 October 2012 on an undefended basis.
All previous parenting orders are discharged.
The mother have sole parental responsibility for the children [X] born [in] 2006 and [Y] born [in] 2008 (“the children”).
The children live with the mother.
Otherwise all extant applications are dismissed and the matter removed from the List of active cases.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 2076 of 2011

MR SENDAK

Applicant

And

MS SENDAK

Respondent

REASONS FOR JUDGMENT

These proceedings commenced with the applicant father initiating an application on 11 March 2011. That application sought parenting orders such that the parties’ children, [X] born [in] 2006 and [Y] born [in] 2008, reside with the applicant father and spend time with the respondent mother as the Court deems appropriate. That application was supported by an affidavit sworn by the father on 4 March 2011. In the intervening period, between that date and this day, 29 October 2012, the father has filed no further affidavit material. There have been orders that he do so, namely orders made on 31 August 2011 and being order number 9, and orders made on 13 March 2012 and being order number 2. The applicant father has failed to comply with each of these orders. He has failed to prosecute his application.
The father had (acting for him) solicitors at the time of the filing of the initiating application, being Austin Vincent Hoban. Those solicitors subsequently filing a notice of withdrawal as lawyer on 17 June 2011. Subsequently, the father had acting for him a further firm of solicitors, being Cinque Oakley Senior, with those solicitors filing a notice of withdrawal as lawyer on 6 March 2012. When the matter proceeded before the Court on 13 March 2012, the father completed a notice of address for service, and since that time all communication emanating from the respondent mother and…

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 [2012] FMCAfam 1320
Case: [2012] FMCAfam 1320
Decision Date: 29 October 2012

CaseChat Overview and Summary

In the Family Court of Australia, the case of Sendak & Sendak involved a dispute between the parents over the care and custody of their two children. The father had applied for sole parental responsibility and custody of the children, while the mother sought to maintain sole responsibility and for the children to remain with her. The case was heard over several hearings, with the latest application from the father being dismissed.

The court was required to determine several key issues, including the best interests of the children, the suitability of each parent to have sole parental responsibility, and the living arrangements of the children. The court considered the evidence presented by both parties, including expert testimony, and assessed the parents' ability to provide for the children's physical, emotional, and educational needs.

In delivering the judgment, the court found that the mother was the more suitable parent to have sole responsibility for the children, given her ability to provide a stable and nurturing environment. The court also noted the father's history of alcohol and drug abuse, as well as his lack of involvement in the children's lives. The court further found that it was in the best interests of the children to remain with their mother. As a result, the court dismissed the father's application, granted leave to the mother to proceed with her application, and discharged all previous parenting orders. The court also granted the mother sole parental responsibility for the children and ordered that they live with her. All other applications were dismissed, and the matter was removed from the List of active cases.

Orders

Orders of the court

The application of the father filed 11 March 2011 is dismissed.

There is leave to the mother to proceed with her application contained in her amended response dated 19 October 2012 on an undefended basis.

All previous parenting orders are discharged.

The mother have sole parental responsibility for the children [X] born [in] 2006 and [Y] born [in] 2008 (“the children”).

The children live with the mother.

Otherwise all extant applications are dismissed and the matter removed from the List of active cases.

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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