Mercer and Friedson & Anor

Case [2017] FamCA 711


FAMILY COURT OF AUSTRALIA

MERCER & FRIEDSON AND ANOR [2017] FamCA 711

FAMILY LAW – CHILDREN – Best Interests – Undefended final hearing – Where the applicant is a non-parent – Where both parents have disengaged from proceedings – Where there are allegations of family violence and drug use – Where there are serious concerns as to each parent’s capacity to care for the children – Where the applicant paternal grandmother has had primary care of both children for nearly two years – Where there are no concerns as to the capacity of the paternal grandmother to care for the children – Where orders made as sought by the paternal grandmother.

FAMILY LAW – PRACTICE AND PROCEDURE – Where both parents have disengaged from the proceedings – Where both parents have been multiple opportunities to participate in the proceedings – Where it is appropriate to proceed on an undefended basis. 

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN
Family Law Rules 2004 (Cth) r 16.07
Aldridge & Keaton [2009] FamCAFC 229
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15
Farmer & Rogers [2010] FamCAFC 253
Goode & Goode [2006] FamCA 1346
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64
APPLICANT: Ms Mercer
FIRST RESPONDENT: Ms Friedson
SECOND RESPONDENT: Mr Mercer
INDEPENDENT CHILDREN’S LAWYER: Ms Hafey
FILE NUMBER: PAC 2152 of 2015
DATE DELIVERED: 14 September 2017
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Foster J
HEARING DATE: 28 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere
SOLICITOR FOR THE APPLICANT: Amanda Little & Associates
FIRST RESPONDENT: SELF-REPRESENTED LITIGANT No appearance
SECOND RESPONDENT: SELF-REPRESENTED LITIGANT: No appearance
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hafey of Legal Aid NSW Parramatta Family Law

Orders

  1. That the paternal grandmother, Ms Mercer, shall have sole parental responsibility for the children, B born … 2005 and C born … 2010.

  2. That the children shall live with the paternal grandmother Ms Mercer.

  3. That the children shall spend time with the mother as agreed in writing, such writing to include SMS or email communication, between the mother and the paternal grandmother such time to be subject to such conditions as are reasonably imposed by the paternal grandmother for the welfare and safety of the children.

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 Mercer & Friedson 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…

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Mercer and Friedson & Anor [2017] FamCA 711
Case
[2017] FamCA 711
Decision Date

CaseChat Overview and Summary

In the matter of *Mercer and Friedson & Anor*, heard before Foster J, the dispute concerned the parental responsibility and living arrangements for two children. The applicant, the paternal grandmother, sought orders for sole parental responsibility and that the children live with her. Both parents had disengaged from the proceedings, despite multiple opportunities to participate. The case involved allegations of family violence and drug use, raising serious concerns about each parent's capacity to care for the children.

The court was required to determine whether it was appropriate to proceed with the final hearing on an undefended basis, given the parents' disengagement. Furthermore, the court had to consider the paramountcy of the children's best interests in determining the parenting orders, particularly in light of the concerns raised about the parents and the applicant's established care of the children.

Foster J reasoned that proceeding on an undefended basis was appropriate due to the parents' repeated failure to engage with the court process. Applying the principles of the *Family Law Act 1975* (Cth), the court found that the children's best interests were served by granting the paternal grandmother sole parental responsibility and ordering that they live with her. This decision was informed by the fact that the paternal grandmother had provided primary care for the children for nearly two years without any concerns regarding her capacity to do so, while significant concerns existed regarding the parents' ability to provide adequate care.

The court ordered that the paternal grandmother, Ms Mercer, have sole parental responsibility for the children and that they live with her. The children were to spend time with the mother as agreed in writing between the mother and the paternal grandmother, subject to reasonable conditions imposed by the paternal grandmother for the welfare and safety of the children.

Orders

Orders of the court

1.

That the paternal grandmother, Ms Mercer, shall have sole parental responsibility for the children, B born … 2005 and C born … 2010.

2.

That the children shall live with the paternal grandmother Ms Mercer.

3.

That the children shall spend time with the mother as agreed in writing, such writing to include SMS or email communication, between the mother and the paternal grandmother such time to be subject to such conditions as are reasonably imposed by the paternal grandmother for the welfare and safety of the children.

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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