MALCHER & MALCHER - [2016] FamCAFC 204

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER

[2016] FamCAFC 204

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for the Court to provide transcript – Where the matter is not an exceptional case – Where the father sought an adjournment of the appeal – Where the appeal had already been adjourned once on the father’s application – Applications dismissed.

FAMILY LAW – APPEAL – ENFORCEMENT OF ORDERS – Contravention of orders – Where the trial judge imposed a bond on the father – Where the appellant failed to enter into the bond and a fine was imposed under s 70NEB(1)(da) of the Family Law Act 1975 (Cth) – Where the fine comprised three fines for each contravention by the father – Where only one fine should have been imposed as only one bond was imposed – Appeal allowed.

FAMILY LAW – APPEAL – ENFORCEMENT OF ORDERS – Contravention of orders – Where the father asserted that the trial judge failed to consider that sanctions had already been imposed in relation to the contraventions under s 70NEB of the Family Law Act 1975 (Cth) – Where the variation of the parenting orders was not made under s 70NEB – Where the balance of the grounds of appeal related to orders not on appeal, or could not succeed without recourse to transcript – No appealable error demonstrated.

Family Law Act 1975 (Cth) Division 13A, ss 70NBA, 70NEB, 70NFA, 117

Family Law Rules 2004 (Cth) r 22.18

Baldry v Jackson [1976] 1 NSWLR 19
Brookfield v Davey Products Pty Limited [1998] FCA 1201
Forbes & Bream [2008] FamCAFC 189
Medlow & Medlow (2016) FLC 93-692
Pearce v The Queen (1998) 194 CLR 610
Re O’Sullivan; Ex Parte O’Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145

APPELLANT:

Mr Malcher

RESPONDENT:

Ms Malcher

FILE NUMBER:

SYC

3808

2012

APPEAL NUMBER:

2015

DATE DELIVERED:

26 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Cronin JJ

HEARING DATE:

30 September 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 February 2015

LOWER COURT MNC:

[2015] FamCA 281

REPRESENTATION

THE APPELLANT:

In person (via telephone)

COUNSEL FOR THE RESPONDENT:

Ms Lawson

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Family Lawyers

Orders

The Application in an Appeal filed on 14 September 2015 is dismissed.
The appeal against the orders of Johnston J made on 27 February 2015 is allowed.
The re-hearing of the consideration of any sanction to be imposed in relation to the admitted contraventions is remitted to a judge of the Family Court of Australia other than Johnston J.
There will be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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).

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] FamCAFC 204
Case: [2016] FamCAFC 204
Decision Date: 26 October 2016

CaseChat Overview and Summary

Malcher & Malcher involved an appeal against parenting orders made by Johnston J in the Family Court. The father appealed the enforcement of certain orders, arguing that the trial judge had erred in imposing fines for non-compliance with parenting orders. The mother sought to dismiss the appeal and an application for a transcript. The appeal raised several issues, including the imposition of multiple fines for a single contravention, the consideration of prior sanctions, and the relevance of orders not on appeal. The court held that the appeal was not exceptional and denied the request for a transcript. The father’s application for an adjournment was also dismissed as the appeal had already been postponed once. Regarding the fines, the court found that the trial judge imposed three fines for each contravention, whereas only one should have been imposed, as only one bond was made. Consequently, the court allowed the appeal on this ground and remitted the matter for re-hearing to a different judge. Other grounds of appeal, concerning the consideration of prior sanctions and orders not on appeal, were dismissed due to lack of merit.

The court meticulously examined the legal framework under the Family Law Act 1975 (Cth), specifically section 70NEB, which deals with the enforcement of parenting orders. The court noted that the trial judge had the discretion to impose fines for non-compliance but erred in imposing multiple fines for a single contravention. This error warranted the allowance of the appeal on that specific ground. The court also addressed the father’s contention that prior sanctions should have precluded further penalties, clarifying that the variation of parenting orders was not made under section 70NEB. Additionally, the father’s claims about the trial judge's failure to consider prior sanctions and other orders not part of the appeal were rejected, as they did not demonstrate any appealable error. The court ultimately allowed the appeal in part, remitted the matter for re-hearing, and dismissed the application for a transcript and adjournment.

Orders

Orders of the court

The Application in an Appeal filed on 14 September 2015 is dismissed.

The appeal against the orders of Johnston J made on 27 February 2015 is allowed.

The re-hearing of the consideration of any sanction to be imposed in relation to the admitted contraventions is remitted to a judge of the Family Court of Australia other than Johnston J.

There will be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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