MALAVE & RATCLIFFE (No.3) - [2018] FCCA 328

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALAVE & RATCLIFFE (No.3)

[2019] FCCA 328

Catchwords:
FAMILY LAW – Parenting – alienation – hybrid case of alienation, realistic estrangement and enmeshment – 13 year old girl – youngest of five siblings, all of whom are estranged from their mother – repeated attempts by the court to assist with restoring the relationship between the girl and her mother – mother not taking appropriate steps to restore the relationship – change of residence not ordered.

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

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34

Malave & Ratcliffe [2015] FCCA 201
Malave & Ratcliffe(No.2) [2017] FCCA 1074

Applicant:

MS MALAVE

Respondent:

MR RATCLIFFE

File Number:

MLC 5843 of 2012

Judgment of:

Judge Riley

Hearing dates:

1 November and 6 and 7 December 2017

Date of last submission:

7 December 2017

Delivered at:

Melbourne

Delivered on:

15 February 2018

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:

Ms Carter

Solicitors for the independent children’s lawyer:

Victoria Legal Aid

ORDERS

There be no orders in relation to X born on (omitted) 2001.
Y born on (omitted) 2004 (“Y”) spend time with her mother in accordance with Y’s wishes.
The mother be at liberty to send letters, cards and gifts to Y.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATIONS

(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Malave & Ratcliffe (No.3) 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 filed by the mother for parenting orders in respect of X born on (omitted) 2001 (“X”), who is now 16 years old, and Y born on (omitted) 2004 (“Y”), who is now 13 years old. Ultimately, the mother did not pursue her application in respect of X. Basically, the mother seeks orders for a change of Y’s residence. The mother maintains…

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 & RATCLIFFE (No.3)

Details

AGLC: MALAVE & RATCLIFFE (No.3) [2019] FCCA 328
Case: [2018] FCCA 328
Decision Date: 15 February 2018

CaseChat Overview and Summary

In *Malave & Ratcliffe (No.3)*, Judge Riley of the Federal Circuit and Family Court of Australia considered parenting orders concerning two children, X and Y. The dispute involved the arrangements for X and Y, with specific attention to Y's time spent with her mother and the mother's ability to communicate with Y.

The court was required to determine the specific terms of the parenting orders, including how Y would spend time with her mother, and whether the mother should be permitted to send letters, cards, and gifts to Y. Furthermore, the court needed to ensure that the obligations and consequences of contravening these orders were clearly articulated, as required by section 65DA(2) of the *Family Law Act 1975*.

Judge Riley made no orders in relation to X. For Y, the court ordered that Y spend time with her mother in accordance with Y's wishes, reflecting the child's autonomy in this matter. The mother was also granted liberty to send letters, cards, and gifts to Y. The court stipulated that the particulars of the obligations and potential consequences of contravening these orders, as well as information regarding support services, were to be set out in an attachment to the orders, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975*. The judgment also included a reminder of the confidentiality provisions under section 121 of the *Family Law Act 1975*.

Orders

Orders of the court

There be no orders in relation to X born on (omitted) 2001.

Y born on (omitted) 2004 (“Y”) spend time with her mother in accordance with Y’s wishes.

The mother be at liberty to send letters, cards and gifts to Y.

Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATIONS

(A) Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B) Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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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