Merla and Merla (No.2) - [2018] FCCA 831

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERLA & MERLA (No.2)

[2018] FCCA 831

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

Cases cited:

O’Brien & O’Brien [2017] FamCAFC 219

Rice & Asplund (1978) 6 Fam LR 570

Applicant:

MR MERLA

Respondent:

MS MERLA

File Number:

PAC 5685 of 2017

Judgment of:

Judge Newbrun

Hearing date:

14 March 2018

Date of Last Submission:

14 March 2018

Delivered at:

Parramatta

Delivered on:

14 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Gardiner

Solicitors for the Applicant:

Coleman Greig Lawyers

Solicitors for the Respondent:

Mr Kent of Kent Attorneys

ORDERS

The father’s Application in a Case is dismissed.
Leave for the parties to file further interim property and parenting terms of settlement in Chambers together with a brief written submission (no longer than two pages relating to any ongoing disagreement). The Court notes that the parties permit the Court to make a decision on the papers without the need for further oral submissions.

IT IS NOTED that publication of this judgment under the pseudonym Merla & Merla (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5685 of 2017

MR MERLA

Applicant

And

MS MERLA

Respondent

REASONS FOR JUDGMENT

In this matter of Merla & Merla, the father has filed an urgent Application in a Case, on 13 March last, seeking Orders that this application be dealt with on an urgent basis; that Order 3 of the Court’s Orders made on 5 March last be suspended, insofar as it relates to the child, W, born (omitted) 2003; that pending further Order, the child, W, live with the father and spend time with the mother from 5 pm Friday until 5 pm Sunday on each alternate weekend; that Order 7(a) of the Orders of the Court made on 5 March 2018 be suspended, and each party shall each forthwith do all things necessary to enrol W at (omitted) High School, pending further order. Another Order is sought, in proposed Order 5, relating to medical appointments. Those applications are opposed by the mother.
The father relies upon his Affidavit affirmed 13 March 2018. The mother relies upon her Affidavit filed 14 March 2018, together with a shorter Affidavit, affirmed today, of three pages, and which is handwritten. The Court refers to its interim decision, including its Reasons for Judgment, made on 5 March last. The Court refers to the oral exchanges between the Court, Counsel for the father, and the solicitor for the mother, today.
Inter alia, the father contends, in relation to this urgent Application in a Case, that the material presently before the Court, indicating the child’s oppositional behaviour since the Court’s Orders of 5 March 2018 in, inter alia, refusing to attend the (omitted) High School, is such compelling evidence of the child’s views, this child being about fourteen and a half years of age, that the Court should give decisive weight to these implicit…

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 (No.2)

Details

AGLC: Merla and Merla (No.2) [2018] FCCA 831
Case: [2018] FCCA 831
Decision Date: 14 March 2018

CaseChat Overview and Summary

In *Merla and Merla (No.2)*, heard by Judge Newbrun, the father sought to have certain orders set aside. The dispute concerned the finalisation of property and parenting matters following the breakdown of the parties' marriage.

The primary legal issue before the court was whether the father had established sufficient grounds to warrant setting aside existing orders. This required the court to consider the principles governing the setting aside of consent orders, particularly in the context of family law proceedings.

Judge Newbrun dismissed the father's application. The court's reasoning, though not detailed in the provided text, would have involved an assessment of the evidence presented by the father against the legal threshold required to overturn previously agreed-upon orders. The court noted that the parties had permitted it to make a decision on the papers, indicating a desire for a resolution without further oral argument.

Consequently, the father's application was dismissed. The court granted leave for the parties to file further interim property and parenting terms of settlement in Chambers, accompanied by a brief written submission of no more than two pages addressing any remaining disagreements.

Orders

Orders of the court

The father’s Application in a Case is dismissed.

Leave for the parties to file further interim property and parenting terms of settlement in Chambers together with a brief written submission (no longer than two pages relating to any ongoing disagreement). The Court notes that the parties permit the Court to make a decision on the papers without the need for further oral submissions.

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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