McLory & McLory - [2010] FamCA 305

FAMILY COURT OF AUSTRALIA

MCLORY & MCLORY

[2010] FamCA 305

FAMILY LAW – CHILDREN – Contravention – The Mother withheld the child from spending time with the Father on two occasions – Whether the Mother can establish “reasonable excuse” within the meaning of s 70NAE(5) – Mother argues the father engaged in sexual misconduct – Mother argues the contraventions were necessary for the child’s health and safety – Where Judge declines to make credit findings before the trial – Reasonable excuse not made out – Contravention of orders established

Family Law Act 1975 (Cth) ss 70NEB, 65L, 62G, 70NAE, Div 13A

Ciabo v Ciabo (1996) FLC 92-651
Goode v Goode (2006) FLC 93-286

APPLICANT:

Mr McLory

RESPONDENT:

Ms McLory

INDEPENDENT CHILDREN’S LAWYER:

Mr M.J. Emerson

FILE NUMBER:

BRC

8082

2008

DATE DELIVERED:

23 March 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

23 March 2010

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms R. Lyons of Counsel

SOLICITOR FOR THE RESPONDENT:

Andrew Burrows and Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr M.J. Emerson of Emerson Family Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

Pursuant to section 70 NEB(1)(b) of the Family Law Act 1975 (Cth), paragraph 8(b) of the orders made by the Honourable Justice Murphy on 27 July 2009 be varied to include, in addition, time on Thursdays between the hours of 9.30am until 1.30pm.
AND IT IS NOTED THAT this variation is made solely for the reason that the orders applicable between today and the trial will accommodate only some 12 weeks of that additional day in the alternate week which is considered appropriate compensatory time.

AND IT IS ORDERED THAT

The costs of today are reserved to the final hearing of the matter.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym McLory & McLory is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8082 of 2008

MR MCLORY

Applicant

And

MS MCLORY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By an application filed on 15 December 2009 the father seeks orders pursuant to contraventions, said by him to have occurred on 12 December 2009 and 15 December 2009. Those breaches are alleged in respect of an order made by me on 27 July 2009 that provided at paragraphs (7) and (8) that:
7.Paragraphs 5, 6 and 12 of orders made by Federal Magistrate Coates on 9 September 2008 are discharged.
8.In lieu thereof, [the child] born […] February 2008 shall spend time with the father:
a.from 9.30am until 1.30pm on…

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.

Keep reading for free

Create a free CaseChat account to read McLory & McLory and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FamCA 305
Decision Date: 23 March 2010

CaseChat Overview and Summary

In the matter of *McLory & McLory*, heard before Murphy J, the dispute concerned an application to vary existing parenting orders. The specific nature of the underlying dispute leading to the application for variation is not detailed, but the court was tasked with determining whether to alter the existing arrangements for the children.

The primary legal issue before the court was whether to vary the existing parenting orders pursuant to section 70 NEB(1)(b) of the *Family Law Act 1975* (Cth). This involved considering the appropriateness of introducing additional time for one of the parents. The court also had to consider the implications of its decision on the interim period leading up to a final hearing, as well as the provision of information regarding compliance with court orders.

Murphy J varied the existing orders to include additional time for the father on Thursdays between 9:30 am and 1:30 pm. This variation was specifically noted as being compensatory, acknowledging that the interim orders would only accommodate approximately 12 weeks of this additional day. The court also ordered that the costs of the day be reserved to the final hearing and that particulars of the obligations, consequences of contravention, and available assistance be included in the orders via an attached Fact Sheet, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER THAT

Pursuant to section 70 NEB(1)(b) of the Family Law Act 1975 (Cth), paragraph 8(b) of the orders made by the Honourable Justice Murphy on 27 July 2009 be varied to include, in addition, time on Thursdays between the hours of 9.30am until 1.30pm.

AND IT IS NOTED THAT this variation is made solely for the reason that the orders applicable between today and the trial will accommodate only some 12 weeks of that additional day in the alternate week which is considered appropriate compensatory time.

AND IT IS ORDERED THAT

The costs of today are reserved to the final hearing of the matter.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.