MENUHIN & MENUHIN - [2020] FamCA 349

FAMILY COURT OF AUSTRALIA

MENUHIN & MENUHIN

[2020] FamCA 349

FAMILY LAW – CHILDREN – best interests of the child – spend time arrangements – where husband seeks to increase overnight time with children to four nights per fortnight – where wife says overnight time with the husband should be three nights per fortnight – where wife seeks for the older child to have counselling with a psychologist – where Family Report supports increase of overnight time with the husband to four nights per fortnight to foster meaningful relationship between the children and their husband and does not recommend psychological intervention for the older child – orders made for overnight time with the husband immediately to increase to three days a fortnight, moving to four days a fortnight after six weeks.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Menuhin

RESPONDENT:

Ms Menuhin

FILE NUMBER:

MLC

6298

2018

DATE DELIVERED:

5 May 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

5 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Delidis

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Werner

SOLICITOR FOR THE RESPONDENT:

Meerkin & Apel Lawyers

Orders

That order 2 of the orders dated 9 October 2018 be discharged.
That the children Y born … 2015 and X born … 2017 (collectively known as “the children”) spend time and communicate with the husband in a two (2) week cycle as follows:
(a)    in week 1 (commencing on 4 May 2020):
(i)on Tuesday from 8.45 am to 12.30 pm; and
(ii)on Friday from 3.30 pm through until Monday at 7.30 am;
(b)    in week 2 (commencing on 11 May 2020):
(i)on Tuesday from 8.45 am to 12.30 pm; and
(ii)on Thursday from 2.30 pm to 6.30 pm;
(c)    in week 2 (commencing on 15 June 2020):
(i)on Tuesday from 8.45 am overnight until 7.30 am Wednesday; and
(ii)on Thursday from 2.30 pm to 6.30 pm.
That the wife’s Further Amended Response filed 1 May 2020 be dismissed.
That the husband’s Amended Application in a Case filed 30 April 2020 be otherwise dismissed.
The parties to bear their own costs of these applications.

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 Menuhin & Menuhin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6298 of 2018

MR MENUHIN

Applicant

And

MS MENUHIN

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the Court is the husband’s Amended Application in a Case dated 30 April…

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 MENUHIN & MENUHIN

Details

AGLC: MENUHIN & MENUHIN [2020] FamCA 349
Case: [2020] FamCA 349
Decision Date: 5 May 2020

CaseChat Overview and Summary

In the matter of *MENUHIN & MENUHIN*, McEvoy J of the Family Court of Australia considered a dispute between a husband and wife concerning the parenting arrangements for their two young children. The husband sought to increase his overnight time with the children to four nights per fortnight, while the wife proposed three nights per fortnight and also sought for the older child to undergo counselling with a psychologist.

The court was required to determine the appropriate spend time arrangements for the children, specifically addressing the quantum of overnight time the husband should have, and whether psychological intervention was necessary for the older child. The paramount consideration for the court was the best interests of the children.

McEvoy J's decision was informed by a Family Report which supported an increase in the husband's overnight time to four nights per fortnight to foster a meaningful relationship between the children and their father. The report did not recommend psychological intervention for the older child. Applying the principles of the best interests of the child, the court ordered an immediate increase in overnight time with the husband to three nights per fortnight, with a further increase to four nights per fortnight to take effect after six weeks. The wife's application for counselling was dismissed.

Orders

Orders of the court

Orders

1. That order 2 of the orders dated 9 October 2018 be discharged.

2. That the children Y born … 2015 and X born … 2017 (collectively known as “the children”) spend time and communicate with the husband in a two (2) week cycle as follows:

2. (a) in week 1 (commencing on 4 May 2020):

2. (i) on Tuesday from 8.45 am to 12.30 pm; and

2. (ii) on Friday from 3.30 pm through until Monday at 7.30 am;

2. (b) in week 2 (commencing on 11 May 2020):

2. (i) on Tuesday from 8.45 am to 12.30 pm; and

2. (ii) on Thursday from 2.30 pm to 6.30 pm;

2. (c) in week 2 (commencing on 15 June 2020):

2. (i) on Tuesday from 8.45 am overnight until 7.30 am Wednesday; and

2. (ii) on Thursday from 2.30 pm to 6.30 pm.

3. That the wife’s Further Amended Response filed 1 May 2020 be dismissed.

4. That the husband’s Amended Application in a Case filed 30 April 2020 be otherwise dismissed.

5. The parties to bear their own costs of these applications.

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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