Malave and Ratcliffe (No.2) - [2017] FCCA 1074

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALAVE & RATCLIFFE (No.2)

[2017] FCCA 1074

Catchwords:
FAMILY LAW – Parenting – allegations of alienation – the court having previously made findings that this was a hybrid case of realistic estrangement, enmeshment and alienation – whether a change of residence should be ordered at this stage – whether one final effort should be made for child to spend time with mother.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Malave & Ratcliffe [2015] FCCA 201
Matthews & Bender (No.2) [2013] FamCA 740

Pavli & Beffa [2013] FamCA 144; (2013) 48 Fam LR 677

Applicant:

MS MALAVE

Respondent:

MR RATCLIFFE

File Number:

MLC 5843 of 2012

Judgment of:

Judge Riley

Hearing dates:

19, 20 and 21 December 2016 and
1 and 2 May 2017

Date of last submission:

2 May 2017

Delivered at:

Melbourne

Delivered on:

24 May 2017

REPRESENTATION

Counsel for the applicant:

Mr Williams

Solicitors for the applicant:

Pearsons Lawyers Pty Ltd

Advocate for the respondent:

In person

Solicitors for the respondent:

None

Counsel for the independent children’s lawyer:

Mr Marchetti

Solicitors for the independent children’s lawyer:

Victoria Legal Aid

UPON THE UNDERTAKING of Ms L of (omitted), in the State of Victoria (“Ms L”) until 2 November 2017 to supervise and facilitate X born on (omitted) 2004 (“X”) spending two hours per fortnight with her mother, or arrange for Ms M of (omitted), in the State of Victoria (“Ms M”) to do so,

AND UPON THE UNDERTAKING of Ms M until 2 November 2017 to supervise and facilitate X spending two hours per fortnight with her mother, or arrange for Ms L to do so,

THE COURT ORDERS THAT:

The mother post letters of apology to Ms L and Ms M.
Until further order, X spend two hours per fortnight with her mother under the supervision of Ms L or Ms M commencing on the fourth Sunday after the mother posts the letters of apology to Ms L and Ms M.
Until further order, X’s time with her mother be spent (hobby omitted) or engaged in such other activity as Ms L or Ms M reasonably chooses.
Until further order, the father facilitate X spending time with her mother pursuant to these orders, including by ensuring that suitable times and places are arranged, and by genuinely encouraging X to attend the sessions with her mother.
Each party have liberty to apply on short notice.
The matter be adjourned for final hearing on 1 November 2017 at 10am.

IT IS NOTED that publication of this judgment under the pseudonym Malave & Ratcliffe (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5843 of 2012

MS MALAVE

Applicant

And

MR RATCLIFFE

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for parenting orders in respect of X, who was born on (omitted) 2004 (“X”) and Y born on (omitted) 2001 (“Y”). However, ultimately, no…

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 Malave and Ratcliffe (No.2)

Details

AGLC: Malave and Ratcliffe (No.2) [2017] FCCA 1074
Case: [2017] FCCA 1074
Decision Date: 24 May 2017

CaseChat Overview and Summary

In the matter of *Malave and Ratcliffe (No.2)*, Judge Riley considered an application concerning the time spent between a child, X, and her mother. The dispute involved the father and mother of X, with the court seeking to establish appropriate arrangements for X's contact with her mother.

The court was required to determine the terms of supervised contact between X and her mother, including the frequency, duration, and nature of these contact sessions. Furthermore, the court needed to address the father's role in facilitating this contact and the specific activities X and her mother should engage in during their time together.

Judge Riley ordered that the mother send letters of apology to Ms L and Ms M. Subsequently, X was to spend two hours per fortnight with her mother under the supervision of Ms L or Ms M. The supervised time was to be dedicated to specific activities, or others as reasonably chosen by the supervisors, and the father was directed to facilitate these arrangements by ensuring suitable times and places were organised and by encouraging X's attendance. The matter was adjourned for a final hearing.

Orders

Orders of the court

The mother post letters of apology to Ms L and Ms M.

Until further order, X spend two hours per fortnight with her mother under the supervision of Ms L or Ms M commencing on the fourth Sunday after the mother posts the letters of apology to Ms L and Ms M.

Until further order, X’s time with her mother be spent (hobby omitted) or engaged in such other activity as Ms L or Ms M reasonably chooses.

Until further order, the father facilitate X spending time with her mother pursuant to these orders, including by ensuring that suitable times and places are arranged, and by genuinely encouraging X to attend the sessions with her mother.

Each party have liberty to apply on short notice.

The matter be adjourned for final hearing on 1 November 2017 at 10am.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.