Merla and Merla - [2018] FCCA 512

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERLA & MERLA

[2018] FCCA 512

Catchwords:
FAMILY LAW – Interim parenting orders – best interests of children – orders made.

Legislation:

Family LawAct 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Gaetano & Gaetano (2017) FamCA 95
Re G: Children’s Schooling [2000] FamCA 462
Kirkland & Granger [2007] FamCA 1471
Raymond & Harold [2009] FamCA 155

Applicant:

MR MERLA

Respondent:

MS MERLA

File Number:

PAC 5685 of 2017

Judgment of:

Judge Newbrun

Hearing date:

27 February 2018

Date of Last Submission:

27 February 2018

Delivered at:

Parramatta

Delivered on:

5 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr West of Coleman Greig Lawyers

Solicitors for the Applicant:

Mr Kent of Kent Attorneys

ORDERS PENDING FURTHER ORDER

The children shall live with the mother, except when spending time with the father in accordance with these Orders.
The children shall, during school term times, spend time with the father on a fortnightly basis, from the conclusion of school (or otherwise 3 PM) Thursday until the commencement of school (or otherwise 9 AM) Monday, such time commencing on Thursday, 15 March 2018.
Changeovers for the above time to be spent by the children with the father shall occur by the father collecting the children from their respective schools on the designated Thursday, and by the father taking the children to their respective schools on the designated Monday.
The children shall spend time with the father for one half of each of the school holiday periods, as agreed between the parents, and failing agreement, for the first half of the school holidays for years ending in odd numbers, and for the second half of the school holidays for years ending in even numbers.
Changeovers for the above holiday time to be spent by the children with the father shall occur at (omitted) McDonalds, unless otherwise agreed in writing.
The parties shall forthwith do all things necessary to ensure that the children attend school as follows:
(a)W at (omitted) High School;
(b)X at (omitted) High School;
(c)Y at (omitted) Public School;
(d)Z at (omitted) Public School.
The parties shall have equal shared parental responsibility for the children.
Pursuant to section 62G(2) of the Family Law Act1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by the Court.
The Family Report to deal with the following matters:
(a)Any views expressed by the child and any factors relevant to the weight to be attached to those views, provided that the child shall not be required to express a view in relation to any matter.
(b)The nature of the child’s relationships…

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 Merla and Merla

Details

AGLC: Merla and Merla [2018] FCCA 512
Case: [2018] FCCA 512
Decision Date: 5 March 2018

CaseChat Overview and Summary

In *Merla and Merla*, the Family Court of Australia considered an application by the respondent father for orders concerning the parenting of the parties' two children, aged 10 and 13. The applicant mother sought to relocate with the children to Queensland, while the respondent father opposed this move and sought orders for the children to live with him in New South Wales. The core of the dispute revolved around the children's best interests in the context of a proposed interstate relocation.

The primary legal issue before the Court was whether it was in the best interests of the children for them to live with their mother and relocate to Queensland, or to live with their father in New South Wales. This required the Court to consider the factors outlined in section 61DA and section 65C of the *Family Law Act 1975* (Cth), particularly the presumption of equal shared parental responsibility and the specific considerations relevant to determining the children's best interests, including the practical realities of each proposed living arrangement and the impact on the children's relationships with both parents.

Judge Newbrun applied the principles established in *Rice and Aslan* and *Goode and Goode*, emphasizing that the presumption of equal shared parental responsibility does not automatically dictate that children should spend equal time with each parent, nor does it preclude relocation. The Court carefully weighed the evidence presented by both parties regarding the proposed arrangements, including the children's schooling, extracurricular activities, and the capacity of each parent to facilitate the children's relationship with the other parent. The Judge considered the children's views, which were expressed through a Family Report, and assessed the practicalities and potential benefits and detriments of each proposed living arrangement. The Court ultimately found that it was in the children's best interests to live with their mother and relocate to Queensland, noting the mother's capacity to support the children's relationship with their father and the potential for the father to maintain a meaningful relationship through regular travel.

Orders