Malcher and Malcher (No 2) - [2015] FamCA 298

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER (NO 2)

[2015] FamCA 298

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the father sought a stay of orders pending outcome of appeal – Where orders were made by the Court following a finding that the father had committed three contraventions of current parenting orders without reasonable excuse – Where the father refused to enter into a good behaviour bond and was fined $5100 – Where a stay of the orders was granted subject to certain conditions.

Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 106
Vadisanis & Vadisanis [2013] FamCAFC 90

APPLICANT:

Mr Malcher

RESPONDENT:

Ms Malcher

FILE NUMBER:

SYC

3808

2012

DATE DELIVERED:

24 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

24 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Malcher in person

SOLICITOR FOR THE RESPONDENT:

Ms Morozov, solicitor of Barkus Doolan Family Lawyers

Orders

That the orders made on 27 February 2015 are stayed pending completion of the father’s appeal on condition that the father complies with all current court orders.
That in the event that the father is found in breach of any current court order the stay will be immediately discharged.
That all costs are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3808 of 2012

Mr Malcher

Applicant

And

Ms Malcher

Respondent

REASONS FOR JUDGMENT

This is an application in a case filed by Mr Malcher on 30 March 2015. For convenience, I shall refer to Mr Malcher as “the father”. The father has filed an appeal against orders made by me on 27 February 2015. He now seeks a stay of those orders until the appeal is heard or until the final hearing in the substantive parenting proceedings by Le Poer Trench J. Those substantive proceedings are listed for hearing to commence on 20 July 2015.
The respondent is Ms Malcher and, for convenience, I shall refer to Dr Malcher as “the mother”.
The orders made by me on 27 February 2015 followed findings which I had made that the father had committed three contraventions of current parenting orders under the Family Law Act1975 (Cth) (“the Act”) without reasonable excuse. The orders are as follows:
1.That the father forthwith enter into a bond on the conditions that he be of good behaviour for a period of eighteen (18) months, to comply with all current court orders and to acknowledge himself to owe to the Commonwealth of Australia the sum of $5000.00 to be made and levied on his several goods and chattels, land and tenements to the use of the said Commonwealth if he shall fail in these conditions.
2.That it is noted that the father has informed the Court that he…

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 Malcher and Malcher (No 2)

Details

AGLC: Malcher and Malcher (No 2) [2015] FamCA 298
Case: [2015] FamCA 298
Decision Date: 24 April 2015

CaseChat Overview and Summary

In *Malcher and Malcher (No 2)*, Johnston J of the Family Court of Australia considered an application by the father for a stay of orders made on 27 February 2015, pending the completion of his appeal against those orders. The specific nature of the dispute leading to the original orders is not detailed in the provided text, but the father sought to suspend their operation.

The central legal issue before the court was whether to grant a stay of the existing orders. This required the court to consider the conditions under which such a stay should be granted, particularly in the context of an ongoing appeal. The court also had to determine the consequences of any breach of existing court orders by the father.

Johnston J ordered that the orders of 27 February 2015 be stayed, but this stay was conditional upon the father complying with all current court orders. The court stipulated that if the father were found to be in breach of any of these existing orders, the stay would be immediately discharged. The court also reserved all costs associated with this application.

Orders

Orders of the court

That the orders made on 27 February 2015 are stayed pending completion of the father’s appeal on condition that the father complies with all current court orders.

That in the event that the father is found in breach of any current court order the stay will be immediately discharged.

That all costs are reserved.

Background

Background to the litigation

Full text does not contain this section.

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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