Malcher & Malcher (No. 2)

Case [2017] FamCA 989


FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER (NO. 2) [2017] FamCA 989

FAMILY LAW – CONTRAVENTION – proceedings remitted from the Full Court of the Family Court – characterisation of contraventions as more serious or less serious – where contraventions are less serious – significance of multiple contraventions – assessment of sanctions for each contravention –  assessment of total sanction in the light of combined contraventions –  entry into a bond where a person is currently overseas 

FAMILY LAW – COSTS – significance of late application for an adjournment on costs order

Crimes Act 1914 (Cth) s 4AA

Family Law Act 1975 (Cth) ss 70NEA, 70NEB, 70NEC, 70NFA, 112AP, 117
Family Law Rules 2004 r 24.04

Dobbs v Brayson (2007) FLC 93-346
Golf Lynx v Golf Scene Pty Ltd (t/a Custom Golf Club Co) (1984) 59 ALR 343

Gravis v Major [2010] FamCAFC 239

Kohan, In the Marriage of, Re (1993) FLC 92-340

Lenova v Lenova (Costs) [2011] FamCAFC 141

McClintock & Levier (2009) 41 Fam LR 245

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Pearce v The Queen (1998) 194 CLR 610
Reischauer v Knoblanche (1987) 10 NSWLR 40

APPLICANT: Ms Malcher
RESPONDENT: Mr Malcher
FILE NUMBER: SYC 3808 of 2012
DATE DELIVERED: 4 December 2017
PLACE DELIVERED: Canberra
PLACE HEARD: Canberra
JUDGMENT OF: Gill J
HEARING DATE: 30 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing
SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

Noting that the purpose of the proposed requirement to cause the respondent to enter into a bond is to cause the respondent to comply with the terms of the child-related orders in force.

Noting that the effect of the proposed requirement to enter into a bond would be that the respondent will be subject to additional obligations to comply with the orders governing the time that he spends with the children.

Noting that the consequences that may follow if the respondent fails to enter into the bond, namely that a fine may be imposed not exceeding 10 penalty units (a penalty unit at the time of making of the orders being in the sum of $210).[1]

[1] Crimes Act 1914 (Cth) s 4AA.

Noting that a consequence of failure to comply with the terms of the bond may result in the imposition of a fine not exceeding 10 penalty units, or the revocation of the bond, the forfeiture of the sum of the bond being $1,000 and the dealing with the respondent again for the second and third contraventions.

Noting that these matters have been identified to the respondent prior to the making of this order it is ordered that:

  1. In relation to the contravention of 18 August 2014, being the first contravention, no further action will be taken.

  2. In relation to the contravention of 1 September 2014, being the second contravention, it is ordered that Mr Malcher enter into the bond in respect of the third contravention, in the manner set out in order 4 below.

  3. In relation to the contravention…

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AGLC
Malcher & Malcher (No. 2) [2017] FamCA 989
Case
[2017] FamCA 989
Decision Date

CaseChat Overview and Summary

In *Malcher & Malcher (No. 2)*, Gill J of the Family Court of Australia considered proceedings remitted from the Full Court concerning contraventions of child-related orders. The dispute involved the characterisation of these contraventions as more or less serious, the significance of multiple contraventions, and the appropriate sanctions to be imposed, including the entry into a bond by a respondent who was overseas. The court also addressed a late application for an adjournment and its impact on costs.

The primary legal issues before the court were how to assess sanctions for multiple contraventions of child-related orders, particularly when one contravention was deemed less serious. The court was required to determine the appropriate sanction for each contravention and the cumulative effect of these sanctions. A further issue was the feasibility and terms of requiring a respondent, who was currently overseas, to enter into a bond as a condition of compliance with existing orders. The court also considered the implications of a late adjournment request on an order for costs.

Gill J reasoned that while the first contravention would attract no further action, the second and third contraventions warranted a sanction. The court ordered that the respondent enter into a bond for $1,000, to be levied upon his property if he failed to comply with the terms of the bond for 18 months. These terms stipulated that he would not refuse or fail to deliver or return the children to the applicant, other than in accordance with existing court orders. The bond was to be entered into within seven days of the respondent's next entry into Australia, and the Australian Federal Police were requested to notify the Marshal of the Family Court upon his re-entry. Additionally, the respondent was ordered to pay $3,000 in costs to the applicant for costs thrown away on a previous date.

Orders

Orders of the court

Noting that the purpose of the proposed requirement to cause the respondent to enter into a bond is to cause the respondent to comply with the terms of the child-related orders in force.

Noting that the effect of the proposed requirement to enter into a bond would be that the respondent will be subject to additional obligations to comply with the orders governing the time that he spends with the children.

Noting that the consequences that may follow if the respondent fails to enter into the bond, namely that a fine may be imposed not exceeding 10 penalty units (a penalty unit at the time of making of the orders being in the sum of $210).[1]

Noting that a consequence of failure to comply with the terms of the bond may result in the imposition of a fine not exceeding 10 penalty units, or the revocation of the bond, the forfeiture of the sum of the bond being $1,000 and the dealing with the respondent again for the second and third contraventions.

Noting that these matters have been identified to the respondent prior to the making of this order it is ordered that:

1.

In relation to the contravention of 18 August 2014, being the first contravention, no further action will be taken.

2.

In relation to the contravention of 1 September 2014, being the second contravention, it is ordered that Mr Malcher enter into the bond in respect of the third contravention, in the manner set out in order 4 below.

3.

In relation to the contravention of 18 September 2014, being the third contravention, it is ordered that Mr Malcher enter into a bond in accordance with s 70NEC in the manner set out in order 4 below, in the following terms:

(a) I, Mr Malcher acknowledge that I owe the Commonwealth of Australia the sum of $1,000 to be made and levied upon my property (real or personal) to the use of the Commonwealth if I fail to meet the condition that:

(i) For a period of 18 months from the entry into this bond I will not refuse or fail to deliver or fail to return the children, B, born … 2002, D, born … 2006, or C, born … 2003, to Ms Malcher other than in accordance with the orders regarding the children made by Justice Le Poer Trench on 9 December 2016.

4.

The bond referred to above must be entered into by Mr Malcher at a Registry of the Family Court of Australia within seven days of his next entry into the Commonwealth of Australia after the making of these orders.

5.

The respondent is to pay to the wife in respect of costs thrown away on 28 July 2017 the sum of $3,000 within 28 days of the making of this order.

6.

It is requested that the Australian Federal Police notify the Marshal of the Family Court of Australia forthwith on the re-entry of Mr Malcher into Australia.

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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