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Mercer and Friedson & Anor

Mercer and Friedson & Anor

Case [2017] FamCA 711 14 September 2017

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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

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

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

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 Mercer and Friedson & Anor

Details

AGLC: Mercer and Friedson & Anor [2017] FamCA 711
Case: [2017] FamCA 711
Decision Date: 14 September 2017

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

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

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

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

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.

Citations

AGLC Citation

Mercer and Friedson & Anor [2017] FamCA 711

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Cases cited in this decision · 12 of 12 shown

Jarrah & Fadel
[2014] FamCAFC 14 Para 3

…s pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High…
Yamada & Cain
[2013] FamCAFC 64 Para 11

…The Full Court in Yamada & Cain [2013] FamCAFC 64 said: 19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions d…
Valentine & Lacerra and Anor
[2013] FamCAFC 53 Para 10

…is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]: … there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order b…
Farmer & Rogers
[2010] FamCAFC 253 Para 8

…In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said: 197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from ot…
Donnell & Dovey
[2010] FamCAFC 15 Para 8

…This matter, however, involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescr…
Aldridge & Keaton
[2009] FamCAFC 229 Para 8

…This matter, however, involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescri…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27

…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 & Lace…
Mazorski & Albright
[2007] FamCA 520 Para 1

…In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed: [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “…
Potts & Bims
[2007] FamCA 394 Para 8

…ent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining…
Goode & Goode
[2006] FamCA 1346

…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 & Lace…
J v Lieschke
[1987] HCA 4 Para 8

…ngs is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457: If an unqualified application of the principles of natural justice would frustrate the purpose for which t…
McCall & Clark
[2009] FAMCAFC 92 Para 2

…In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said: … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ens…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN 8 mentions (from Para 4)
Family Law Rules 2004 (Cth)
16.07 3 mentions (from Para 1)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
1 mention (from Para 9)