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MACK & MACK

MACK & MACK

Case [2017] FCCA 484 27 March 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MACK & MACK

[2017] FCCA 484

Catchwords:
FAMILY LAW – Interim parenting – risk of harm– children to spend supervised time with father.

FAMILY LAW – Child Support – application for a departure order dismissed.

FAMILY LAW – Spousal Maintenance – urgent spousal maintenance.

Legislation:

Family Law Act 1975, ss.72, 77, 79, 80, 60B, 60CA, 60CC, 61DA, 65DAA

Evidence Act 1995 (Cth), s.79
Child Support (Assessment) Act 1989, s.117

Cases cited:

Babbit & Babbit [2011] FamCAFC 151
Banks & Banks (2015) FLC 93-637
Collu & Rinaldo [2010] FamCAFC 53
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Goode v Goode (2007) 36 FamLR 422
Gyselman & Gyselman (1992) FLC 92-279
Hallinan & Witynski (1999) FLC 98 - 009
Hides & Hatton (1997) FLC 92-759
Indoport Pty Ltd v National Australia Bank [2011] NSWSC 123
Johnson & Page (2007) FamCA 1235
Keats & Keats [2016] FamCAFC 156
Luton & Lessels (2002) 210 CLR 333
Makita & Sprowels (2001) 52 NSWLR 705
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Richardson & Brown [2011] FamCA 662
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant:	MS MACK
Respondent:	MR MACK

File Number:

PAC 4754 of 2016

Judgment of:

Judge Obradovic

Hearing date:

28 November 2016

Date of Last Submission:

28 November 2016

Delivered at:

Parramatta

Delivered on:

27 March 2017

REPRESENTATION

Appearing for the Applicant:

Ms Viset

Solicitors for the Applicant:

Slater & Gordon Lawyers

Appearing for the Respondent:

Ms Granger

Solicitors for the Respondent:

Burke & Mangan

PENDING FURTHER ORDER THE COURT ORDERS THAT:

The mother shall have sole parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2011.
The children shall live with the mother.
The children shall spend time with the father supervised at the (omitted) Children's Contact Centre with the parents to bear the cost of supervision on an equal basis.
The parties are directed to do all things necessary to forthwith undertake the intake process such that time at the (omitted) Children's Contact Centre shall commence as soon as practicable.
The father is to spend supervised time with the children in the interim namely, before time at the (omitted) Children's Contact Centre becomes available, such time to be supervised by a private service such as “Connecting Families” and the costs of such supervision to be borne by the father.
The parties are directed to do all things necessary to forthwith undertake the intake process with the private supervisor such that time shall commence as soon as practicable.
Pursuant to section 77 of the Family Law Act1975 the husband is to pay the wife urgent spousal maintenance in the amount of $365 per week.

THE COURT FURTHER ORDERS THAT:

Leave is granted to the parties to inspect material produced on Subpoena from:
(a)(omitted) Medical Practice;
(b)New South Wales Police;
(c)(omitted) Hospital;

(d)(omitted) Child and Family…

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: MACK & MACK [2017] FCCA 484
Case: [2017] FCCA 484
Decision Date: 27 March 2017

CaseChat Overview and Summary

In *Mack & Mack*, the Family Court of Australia considered applications concerning interim parenting arrangements, child support, and urgent spousal maintenance. The proceedings involved a dispute between the parties regarding the welfare and financial support of their children and one of the spouses.

The court was required to determine several key legal issues. Firstly, it had to assess whether there was a risk of harm to the children if they were to spend time with their father, and consequently, what interim parenting orders were appropriate. Secondly, the court had to consider an application for a departure order in relation to child support. Finally, the court was tasked with determining whether urgent spousal maintenance should be ordered.

Obradovic J's reasoning focused on the paramountcy of the children's best interests in the parenting proceedings, applying the principles of the *Family Law Act 1975* (Cth) regarding risk of harm. In relation to child support, the court considered the relevant legislative criteria for departing from the standard assessment. For spousal maintenance, the court assessed the immediate financial needs of the applicant and the capacity of the respondent to pay.

The court made orders for the children to spend supervised time with the father. The application for a departure order in relation to child support was dismissed. An order for urgent spousal maintenance was made.

Orders