Malcher & Malcher (No 2) - [2012] FamCA 1115

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER (NO. 2)

[2012] FamCA 1115

FAMILY LAW – CHILDREN –Where the father made an application to vary interim parenting orders made two weeks previously –– Where it was determined that the father’s application did constitute an abuse of process –– Where the father’s interim application is dismissed

FAMILY LAW – COSTS – Where the mother made an application for costs on an indemnity basis in circumstances where father was wholly unsuccessful in his interim application –– Whether dismissal of the father’s application on the basis that it constitutes an abuse of the Court’s process attracts the entitlement to an order for indemnity costs –– Consideration of section 117(2A) –– Order for costs made in the mother’s favour on an indemnity basis

Family Law Act 1975 (Cth): ss 117(1); 117(2); 117AA; 118; 117(2A)

Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225
Munday & Bowman (1997) FLC 92-784
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Malcher

RESPONDENT:

Mr Malcher

FILE NUMBER:

SYC

3808

2012

DATE DELIVERED:

3 December 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

3 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R. Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Clinch Long Letherbarrow Pty Limited

COUNSEL FOR THE RESPONDENT:

Mr M.P. Kearney SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

That the father’s Application in a Case filed 27 November 2012 is dismissed.
That the father pay the mother’s costs of his Application in a Case filed 27 November 2012 on an indemnity basis in the amount of $6,000.00.
That the father pay the costs referred to in Order 2 within twenty eight (28) days.
The Court Notes the parties will proffer written undertakings to each other that the children will not be removed from the Commonwealth of Australia without the prior written consent of the other party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher (No. 2) 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

Mr Malcher

Applicant

And

Ms Malcher

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.
Before the Court is Mr Malcher’s (“the father”) application to vary interim parenting orders made on 15 November 2012. The November 2012 interim orders are the second set of interim parenting orders made since Ms Malcher’s (“the mother”) initiating application was filed on 29 June 2012.
The first set of interim parenting orders were made on 16 July 2012. Essentially, the July 2012 orders provided that the father would vacate the family home, the children would live with the mother and spend time with their father four nights overnight each fortnight plus one afternoon during term. Arrangements for the term 3, 2012 school holidays were also addressed.
The July 2012 orders were silent in relation to the children’s…

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 (No 2)

Details

AGLC: Malcher & Malcher (No 2) [2012] FamCA 1115
Case: [2012] FamCA 1115
Decision Date: 3 December 2012

CaseChat Overview and Summary

In *Malcher & Malcher (No 2)*, the father applied to vary interim parenting orders that had been made only two weeks prior. The mother contended that the father's application constituted an abuse of process. The court was required to determine whether the father's application was indeed an abuse of process and, if so, whether the mother was entitled to an order for indemnity costs.

The court found that the father's application did constitute an abuse of process. In reaching this conclusion, the court considered the principles governing the proper use of court processes and the need to prevent vexatious or repetitive litigation. The court then considered the mother's application for costs on an indemnity basis, given the father's complete lack of success in his interim application. The court had regard to section 117(2A) of the *Family Law Act 1975* (Cth) in determining whether the dismissal of the father's application on the grounds of abuse of process warranted an order for indemnity costs.

The court ordered that the father's application be dismissed. Furthermore, the father was ordered to pay the mother's costs of that application on an indemnity basis in the sum of $6,000.00, to be paid within twenty-eight days. The court also noted that the parties would provide written undertakings to each other that the children would not be removed from the Commonwealth of Australia without the prior written consent of the other party.

Orders

Orders of the court

That the father’s Application in a Case filed 27 November 2012 is dismissed.

That the father pay the mother’s costs of his Application in a Case filed 27 November 2012 on an indemnity basis in the amount of $6,000.00.

That the father pay the costs referred to in Order 2 within twenty eight (28) days.

The Court Notes the parties will proffer written undertakings to each other that the children will not be removed from the Commonwealth of Australia without the prior written consent of the other party.

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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