MENARD & MENARD - [2019] FCCA 1493

FEDERAL CIRCUIT COURT OF AUSTRALIA

MENARD & MENARD

[2019] FCCA 1493

Catchwords:
FAMILY LAW – Parenting – interim hearing – whether the father poses an unacceptable risk to the children if he spends unsupervised time with them – whether the children should live with the mother – whether the children should spend time with the father in accordance with their wishes.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 11F, 60B, 60C, 60CA, 60CC, 61C, 61DA, 61DB, 65D, 68L

Evidence Act 1995 (Cth), s.140

Crimes Act 1900 (NSW), s.61AA

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
A & A (1998) FLC 92-800
Goode & Goode (2006) FLC 93-286
Napier & Hepburn (2006) FLC 93-303
Mazorski & Albright [2007] FamCA 520
Johnson & Page [2007] FamCA 1235
Godfrey & Sanders (2007) FamCA 102
M & S (formerly E) (2007) FLC 93-313
McCall & Clark (2009) FLC 93-405
SS & AH [2010] FamCAFC 13
Harridge & Anor & Harridge [2010] FamCA 445
Marvel & Marvel (2010) 43 Fam LR 348
Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Eaby & Speelman (2015) FLC 93-654

Applicant:

MS MENARD

Respondent:

MR MENARD

File Number:

SYC 3667 of 2018

Judgment of:

Judge Morley

Hearing date:

21 March 2019

Date of Last Submission:

21 March 2019

Delivered at:

Sydney

Delivered on:

7 June 2019

REPRESENTATION

Counsel for the Applicant:

Ms Kennedy

Solicitors for the Applicant:

Marks Griffiths & Bova Solicitors

The Respondent appeared in person

Solicitors for the Independent Children’s Lawyer:

Mr Grooby of Legal Aid NSW Sydney Central Family Law

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

The children, [X], born … 2003 (‘[X]’); [Y], born … 2006 (‘[Y]’); and [Z], born … 2008 (‘[Z]’) (collectively ‘the children’) live with the mother.
The child, [X], spend time with the father in accordance with her wishes, expressed from time to time.
The children [Y] and [Z], spend time with the father:
(i)Each alternate Saturday from 9:00 a.m. until 5:00 p.m.;
(ii)On 24 December 2019 from 9:00 a.m. until 5:00 p.m.;
(iii)On 25 December 2020 from 10:00 a.m. until 5:00 p.m.;
(iv)On Easter Monday, 22 April 2019 from 9:00 a.m. until 5:00p.m.;
(v)On Easter Sunday 2020 from 9:00 a.m. until 5:00 p.m.;
(vi)On Father’s Day from 9:00 a.m. until 5:00 p.m.;
(vii)On the father’s birthday, …, from the end of school until 7:30p.m.;
On all occasions that the father is spending time with the children, except on his birthday when changeover at the start will be at the children’s schools, the father will collect the children from the mother’s residence at the start of his time with the children and deliver the children to the mother’s residence at the end of his time with the children.
All occasions of the father spending time with the children will be supervised by either of the paternal grandmother, Ms A, or the father’s current girlfriend, Ms B, until such time as the father has complied with the subsequent…

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: MENARD & MENARD [2019] FCCA 1493
Case: [2019] FCCA 1493
Decision Date: 7 June 2019

CaseChat Overview and Summary

In *Menard & Menard*, the Family Court of Australia considered an interim application concerning the parenting arrangements for two children. The mother sought orders that the children live with her and that the father not be permitted unsupervised time with them, alleging he posed an unacceptable risk. The father sought orders for the children to spend time with him, taking into account the children's expressed wishes.

The central legal issues before Morley J were whether the father posed an unacceptable risk to the children during unsupervised time, and consequently, whether the children should reside with the mother and have limited or no unsupervised contact with the father. The court was also required to consider the weight to be given to the children's expressed wishes in the context of these risk concerns.

Morley J applied the principles of the *Family Law Act 1975* (Cth), particularly focusing on the paramountcy of the children's best interests. The court assessed the evidence presented regarding the alleged risks posed by the father, weighing this against the importance of maintaining a meaningful relationship between the children and both parents. The judge considered various factors, including the children's ages, maturity, and the nature of the concerns raised, to determine the most appropriate interim arrangements to safeguard the children's welfare while also facilitating their relationship with their father where safe to do so. The court's decision ultimately hinged on a careful balancing of these competing considerations.

Orders