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Malcher & Malcher

Malcher & Malcher

Case [2016] FamCA 1063 9 December 2016

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FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER [2016] FamCA 1063

FAMILY LAW – CHILDREN – Where the three children of the marriage live with the wife – Where the husband currently resides overseas with his partner and child – Consideration of s 60CC factors – Where the wife’s allegations of family violence are accepted by the court – Where there is a lack of cooperation between the parties – Where orders are made for the wife to have sole parental responsibility – Where orders are made for the children to spend a significant amount of time with the husband during the school terms, school holidays and special occasions – Where different spend time with orders are made for each child – Where orders are made for the children to continue attending therapy.

FAMILY LAW – PROPERTY SETTLEMENT – Application by parties for an adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the wife has the care of the children and earns a considerable income – Where the husband is unemployed but is found to have considerable earning potential – Where the husband engaged in extensive dealings with his father during and after the marriage and operated business through various companies and trusts – Where the husband was assessed to have made greater contributions than the wife to the asset pool excluding superannuation – Where the consideration of s 75(2) factors led to an adjustment being made to the wife, resulting in a 70/30 split of the assets in the wife’s favour – Where the wife will keep the former matrimonial home – Where the wife is ordered to pay to the husband a sum representing his entitlements under the orders less his child support arrears and other specific liabilities as found by the Court.

FAMILY LAW – SUPERANNUATION – Where the husband made an application for a superannuation splitting order – Where the parties’ contributions to their combined superannuation is found to be 80/20 in favour of the wife – Where this represents a figure close to the parties’ respective superannuation entitlements so as to negate the making of a superannuation splitting order – Where the husband’s application is dismissed.

FAMILY LAW – CHILD SUPPORT – Applications by both the husband and the wife for a child support departure order under the Child Support (Assessment) Act 1989 – Where the wife seeks an order for a lump sum payment – Where the husband is in arrears of his child support payments – Where there exists special circumstances to justify the making of a lump sum order – Where such lump sum order will be held in a controlled monies account as security for the payment of future child support payments as assessed by the Child Support Agency.

FAMILY LAW – PRACTICE AND PROCEDURE – Application to re-open the hearing prior to the delivery of judgment –Where the matter was re-opened for the purpose of admitting up-to-date evidence of the parties’ assets…

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: Malcher & Malcher [2016] FamCA 1063
Case: [2016] FamCA 1063
Decision Date: 9 December 2016

CaseChat Overview and Summary

In *Malcher & Malcher*, heard by Le Poer Trench J, the court considered a range of family law matters concerning the three children of the marriage and the parties' property settlement. The children resided with the wife, while the husband was living overseas with his partner and child. The wife had made allegations of family violence, which the court accepted. The proceedings also involved applications concerning child support, superannuation, and costs.

The primary legal issues before the court included determining the parenting arrangements for the children, specifically considering the factors outlined in s 60CC of the *Family Law Act 1975* (Cth), and making orders for parental responsibility and time spent with each parent. The court was also required to determine an adjustment of the parties' property interests pursuant to s 79 of the *Family Law Act 1975* (Cth), taking into account the parties' contributions and financial circumstances, including the husband's earning potential and dealings through various entities. Further issues involved an application for a superannuation splitting order, applications for child support departure orders, and the admission of up-to-date evidence prior to judgment.

Regarding parenting, the court found a lack of cooperation between the parties and made orders for the wife to have sole parental responsibility, with specific arrangements for the children to spend significant time with the husband during school terms, holidays, and special occasions, with differing orders for each child. The court also ordered the children to continue attending therapy. In relation to property settlement, despite the husband's unemployment, his considerable earning potential and extensive dealings were considered. The court found the husband made greater contributions to the asset pool excluding superannuation, but after considering s 75(2) factors, an adjustment was made in the wife's favour, resulting in a 70/30 split of assets. The wife retained the former matrimonial home and was ordered to pay the husband his entitlements less child support arrears and other liabilities. The husband's application for a superannuation splitting order was dismissed as the parties' contributions were found to be close to their respective entitlements. The court also made a lump sum child support order in favour of the wife due to special circumstances and arrears, to be held in a controlled monies account. The hearing was re-opened to admit updated asset and liability evidence and a new valuation of the former matrimonial home. Finally, the parties were ordered to each pay half of the costs incurred by the Independent Children's Lawyer for a portion of the hearing.

Orders