MALCHER & MALCHER - [2015] FamCA 281

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER

[2015] FamCA 281

FAMILY LAW – ENFORCEMENT OF ORDERS – Contravention of orders – Sanctions – Where the Court found that the father had breached a parenting order without reasonable excuse on three occasions – Where the Court declined a finding that the contraventions be dealt with under Subdivision F (more serious contravention) of Division 13A of Part VII and instead dealt with them under Subdivision E (less serious contravention)– Where the father submitted an adjournment would be appropriate for further parenting orders to be put in place – Where the parties’ have a poor relationship – Where the Court found that, in the best interests of the children, it was essential that orders not be departed from – Where the Court ordered the father to enter into a bond – Where the father did not agree to enter into a bond – Where the Court imposed a fine on the father.

FAMILY LAW – COSTS – Where the father was ordered to pay the mother’s costs of the contravention proceedings.

Family Law Act 1975 (Cth) – Division 13A, Part VII, s 70NEA, s 70NEB, s 70NFA, s 70NFB

Dobbs v Brayson (2007) FLC 93-346
Gravis & Major [2010] FamCAFC 239

APPLICANT:

Ms Malcher

RESPONDENT:

Mr Malcher

FILE NUMBER:

SYC

3808

2012

DATE DELIVERED:

27 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

27 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Morozov, solicitor of Barkus Doolan Family Lawyers

FOR THE RESPONDENT:

Mr Malcher, father in person

Orders

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.
That it is noted that the father has informed the Court that he is not prepared to enter into a bond and that in these circumstances it is proposed to impose a fine of $5100.00 on the father.
That a fine of $5100.00 is imposed on the father to be paid to the Registry Manager, Sydney within thirty (30) days.
That the father pay to the mother’s solicitors within 60 days her costs of the contravention proceedings as agreed or as assessed by the Court.

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

Ms Malcher

Applicant

And

Mr Malcher

Respondent

REASONS FOR JUDGMENT

On 20 October 2014, I made a finding that the father breached order 2.2 of the orders of 16 July 2012 without…

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 & MALCHER

Details

AGLC: MALCHER & MALCHER [2015] FamCA 281
Case: [2015] FamCA 281
Decision Date: 27 February 2015

CaseChat Overview and Summary

In the matter of *Malcher & Malcher*, Johnston J of the Family Court of Australia considered proceedings concerning the contravention of parenting orders. The proceedings were brought by the mother against the father, who was alleged to have breached a parenting order on three occasions without reasonable excuse. The father sought an adjournment to facilitate the establishment of further parenting orders, citing the parties' poor relationship.

The central legal issues before the Court were whether the father's contraventions constituted a more serious contravention under Subdivision F of Division 13A of Part VII of the *Family Law Act 1975* (Cth) or a less serious contravention under Subdivision E, and what sanctions, if any, should be imposed. The Court was also required to determine the appropriate orders regarding the costs of the contravention proceedings.

Johnston J reasoned that, in the best interests of the children, it was imperative that the existing parenting orders be strictly adhered to. The Court found that the father had breached the orders without reasonable excuse but declined to categorise these as more serious contraventions. Instead, the Court determined that the father should enter into a bond to ensure future compliance. However, the father indicated his unwillingness to enter into such a bond. Consequently, the Court imposed a fine of $5100.00 on the father and ordered him to pay the mother's costs of the contravention proceedings.

Orders

Orders of the court

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.

That it is noted that the father has informed the Court that he is not prepared to enter into a bond and that in these circumstances it is proposed to impose a fine of $5100.00 on the father.

That a fine of $5100.00 is imposed on the father to be paid to the Registry Manager, Sydney within thirty (30) days.

That the father pay to the mother’s solicitors within 60 days her costs of the contravention proceedings as agreed or as assessed 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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