Malcher and Malcher (No 3) - [2015] FamCA 388

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER (NO 3)

[2015] FamCA 388

FAMILY LAW – CHILDREN – Interim parenting orders – extension of time spend with the father – where the time sought has been previously suspended.

Family Law Act 1975 (Cth) ss 60CC(3)

APPLICANT:

Mr Malcher

RESPONDENT:

Ms Malcher

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYC

3808

2012

DATE DELIVERED:

18 May 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

30 April 2015

REPRESENTATION

ADVOCATE FOR THE APPLICANT:

Self

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid NSW Sydney Central Family Law

Orders

PENDING FURTHER ORDER:

Subject to the orders set out herein relating to the re-introduction of C to the time all three children are to spend with the father, order 2.2 of the orders made by this Court on 16 July 2012 be varied on follows:
On week 2 from after school Monday to before school Wednesday.
Subject to the orders set out herein relating to the re-introduction of C to the time all three children are to spend with the father, order 2.1 of the orders made by the court on 16 July 2012 and order 1.1 of 15 November 2012 be varied to provide as follows:
“Subject to the orders made herein relating to [C], on Week 1 from after school Friday until 8.00 p.m. Monday”.
The time the child B is to spend with the father on weekend time is to extend to school time on Tuesday as and from 15 June 2015.
The time C born … 2003 spends with the Father pursuant to the orders of 16 July 2012 and 15 November 2012 is suspended until the completion of the following provision for the reintroduction of C to the time to be spent by him with the father pursuant to those orders and the other provision of the orders made this day:
4.1From the conclusion of school or 3.00 pm on Monday until 8.00 pm commencing Monday 11 May 2015 and each fortnight thereafter;
4.2From the conclusion of school on Monday until the commencement of school on Tuesday commencing Monday 1 June 2015 and each alternate week thereafter;
4.3After C has spent 2 consecutive visits with the Father pursuant to these provisions the time shall be extended to include from the conclusion of school on Tuesday until the commencement of school on Wednesday (being consistent with the time the children, B and D spend with the Father);
4.4During the 1^st half of the 2015 June/July school holidays, the last 2 consecutive nights the children, B and D spend with the Father, being from Monday 29 June 2015 at 9.00 am until 6.00 pm on Wednesday 1 July 2015 (being the changeover date pursuant to Orders made on 6 December 2013);
4.5Such other times as agreed between the mother and the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher…

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 3)

Details

AGLC: Malcher and Malcher (No 3) [2015] FamCA 388
Case: [2015] FamCA 388
Decision Date: 18 May 2015

CaseChat Overview and Summary

In *Malcher and Malcher (No 3)*, Le Poer Trench J considered applications to vary existing parenting orders concerning the time three children, B, C, and D, were to spend with their father. The dispute centred on the practical implementation and modification of the children's time with the father, particularly in relation to the child C.

The court was required to determine how to vary the existing orders to adjust the time the children, specifically B and C, would spend with their father. Key issues included the suspension and gradual reintroduction of C's time with the father, and the extension of B's weekend time. The court also needed to consider the specific dates and fortnightly or alternate week arrangements for these changes.

Le Poer Trench J applied principles of child welfare in varying the orders. The court suspended C's time with the father pending a structured reintroduction plan, which involved phased increases in contact over specific periods, commencing in May 2015. This plan aimed to gradually increase C's time with the father, eventually aligning it with the time the other children, B and D, spent with him. The court also extended B's weekend time to include Tuesday school time from June 2015.

The court made orders varying the previous parenting arrangements. These included specific adjustments to the time B and C would spend with the father, with provisions for the gradual reintroduction of C's time. The orders also included arrangements for holiday time and allowed for further agreement between the parents.

Orders

Orders of the court

PENDING FURTHER ORDER:

Subject to the orders set out herein relating to the re-introduction of C to the time all three children are to spend with the father, order 2.2 of the orders made by this Court on 16 July 2012 be varied on follows:

On week 2 from after school Monday to before school Wednesday.

Subject to the orders set out herein relating to the re-introduction of C to the time all three children are to spend with the father, order 2.1 of the orders made by the court on 16 July 2012 and order 1.1 of 15 November 2012 be varied to provide as follows:

“Subject to the orders made herein relating to [C], on Week 1 from after school Friday until 8.00 p.m. Monday”.

The time the child B is to spend with the father on weekend time is to extend to school time on Tuesday as and from 15 June 2015.

The time C born … 2003 spends with the Father pursuant to the orders of 16 July 2012 and 15 November 2012 is suspended until the completion of the following provision for the reintroduction of C to the time to be spent by him with the father pursuant to those orders and the other provision of the orders made this day:

4.1 From the conclusion of school or 3.00 pm on Monday until 8.00 pm commencing Monday 11 May 2015 and each fortnight thereafter;

4.2 From the conclusion of school on Monday until the commencement of school on Tuesday commencing Monday 1 June 2015 and each alternate week thereafter;

4.3 After C has spent 2 consecutive visits with the Father pursuant to these provisions the time shall be extended to include from the conclusion of school on Tuesday until the commencement of school on Wednesday (being consistent with the time the children, B and D spend with the Father);

4.4 During the 1st half of the 2015 June/July school holidays, the last 2 consecutive nights the children, B and D spend with the Father, being from Monday 29 June 2015 at 9.00 am until 6.00 pm on Wednesday 1 July 2015 (being the changeover date pursuant to Orders made on 6 December 2013);

4.5 Such other times as agreed between the mother and the father.

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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