MERRELL & MERRELL (No.2) - [2019] FCCA 1846

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERRELL & MERRELL (No.2)

[2019] FCCA 1846

Catchwords:
FAMILY LAW – Property and Parenting orders – respondent seeks to pursue application for an adjustment of property interests in circumstances where applicant is bankrupt – Response does not particularise relief that is to be sought and respondent does seek further conciliation conference.

JUDGMENT AND ORDERS – Parties agreed in final parenting orders – now contend the orders are unworkable – respondent unilaterally relocates with children across Melbourne – sufficiently significant change in circumstances – necessity for greater precision in orders than was provided by parties’ consent minute – orders discharged and further orders made.

TRAVEL ORDERS – Respondent seeks to travel to Country A – respondent alters existing proposal so as to travel at a later time – absence of precision in scope of travel or security – Application refused.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 68P

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant:

MR MERRELL

Respondent:

MS MERRELL

File Number:

MLC 4595 of 2017

Judgment of:

Judge A Kelly

Hearing date:

1 July 2019

Date of Last Submission:

1 July 2019

Delivered at:

Melbourne

Delivered on:

3 July 2019

REPRESENTATION

The Applicant:

In Person

The Respondent:

In Person

ORDERS

Parenting

All previous parenting orders in relation to the children [X] born … 2012 and [Y] born … 2009 (Children) be discharged.
Pursuant to s.11F of the Family Law Act 1975 (Cth) (Act), the parties and the children attend upon a Family Consultant of the Federal Circuit Court of Australia at Melbourne (Family Consultant) for the purposes of a Child Inclusive Conference on 24 September 2019 and:
(a)the party with the care of the children and the children to attend at 9.00am; and
(b)the other party to attend at 10.00am,
at Level 5, Commonwealth Law Courts, 305 William Street, Melbourne.
Pursuant to paragraph (2) of this Order, the Family Consultant shall provide a written report to the court and to the parties with such written memorandum to be released no later than 10 November 2019.
Direct that a copy of these reasons for judgment be provided to the family consultant for the purposes of the s 11F report.
The applicant father and respondent mother shall have equal shared parental responsibility for the children.
The children live with the respondent.
The children spend time and communicate with the applicant as follows:
(a)subject to paragraph (b) of this Order, each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday (and to the commencement of school on Tuesday if Monday is a non-school day);
(b)in each School Term, the children’s spend time with the applicant shall commence on the first Friday after school resumes;
(c)in Term 1 and 3, for the whole of all the Victorian Government gazetted school holiday periods;
(d)in Term 2, for half of the Victorian Government gazetted school holiday period commencing from the conclusion of the…

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 MERRELL & MERRELL (No.2)

Details

AGLC: MERRELL & MERRELL (No.2) [2019] FCCA 1846
Case: [2019] FCCA 1846
Decision Date: 3 July 2019

CaseChat Overview and Summary

The parties, the applicant father and the respondent mother, presented a dispute concerning parenting orders and property adjustment. The court was asked to determine whether existing consent parenting orders were unworkable, particularly in light of the respondent mother's unilateral relocation with the children. Additionally, the respondent sought to pursue an application for an adjustment of property interests despite the applicant's bankruptcy, and also sought to travel overseas with the children.

The court was required to consider the necessity for greater precision in parenting orders than was provided by the parties' initial consent minute, given the alleged unworkability of those orders and the significant change in circumstances arising from the relocation. Furthermore, the court had to assess the respondent's application for overseas travel, including the scope of the proposed travel and the provision of security. The court also had to address the respondent's property adjustment claim in the context of the applicant's bankruptcy.

In its reasoning, the court found that the parties' consent parenting orders were indeed unworkable and that the respondent's relocation constituted a significant change in circumstances. Consequently, the court discharged the previous orders and made new parenting orders, including provisions for equal shared parental responsibility, the children living with the respondent, and detailed arrangements for the children's time and communication with the applicant. The court also imposed specific restraints on both parties regarding the exposure of children to adult-rated content and the use of filming devices. The respondent's application for overseas travel was refused due to a lack of precision regarding the scope of travel and security arrangements. The court also ordered the respondent to deliver the children's passports to the Registrar. Regarding property, the court set the matter down for a final hearing but directed the respondent to file a Further Amended Response detailing the precise relief sought by a specified date, with a consequence of vacating the hearing date in default.

Orders

Orders of the court

Parenting

All previous parenting orders in relation to the children [X] born … 2012 and [Y] born … 2009 (Children) be discharged.

Pursuant to s.11F of the Family Law Act 1975 (Cth) (Act), the parties and the children attend upon a Family Consultant of the Federal Circuit Court of Australia at Melbourne (Family Consultant) for the purposes of a Child Inclusive Conference on 24 September 2019 and:

(a) the party with the care of the children and the children to attend at 9.00am; and

(b) the other party to attend at 10.00am,

at Level 5, Commonwealth Law Courts, 305 William Street, Melbourne.

Pursuant to paragraph (2) of this Order, the Family Consultant shall provide a written report to the court and to the parties with such written memorandum to be released no later than 10 November 2019.

Direct that a copy of these reasons for judgment be provided to the family consultant for the purposes of the s 11F report.

The applicant father and respondent mother shall have equal shared parental responsibility for the children.

The children live with the respondent.

The children spend time and communicate with the applicant as follows:

(a) subject to paragraph (b) of this Order, each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday (and to the commencement of school on Tuesday if Monday is a non-school day);

(b) in each School Term, the children’s spend time with the applicant shall commence on the first Friday after school resumes;

(d) in Term 2, for half of the Victorian Government gazetted school holiday period commencing from the conclusion of the last school day of Term 2;

(e) for twenty-four days of the Victorian Government gazetted Christmas school holiday period commencing at 1:00pm on Christmas Day;

(f) on Good Friday in each alternate year, commencing with the children to spend Good Friday with their father in 2020;

(g) on the applicant’s birthday and on Father’s Day, unless the children are otherwise in his care, from the conclusion of school at 3:15pm until 7:30pm if it is a school day or from 1.00pm until 6:30pm on a non-school day;

(h) on the children’s birthday, unless the children are otherwise in his care, from the conclusion of school at 3:15pm until 7:30pm if it is a school day or from 1.00pm until 6:30pm on a non-school day;

(i) in each alternate week, commencing from the second week in each School Term, by telephone on Tuesday and Thursday of that week from 6.00pm to 6.30pm or as reasonably requested by the children and for that purpose:

(i) the applicant is permitted to send a text message to the respondent to remind her of the appointed telephone call and the respondent is required to acknowledge receipt of that text message;

(ii) the applicant is permitted to provide the children a mobile phone;

(iii) the respondent is further directed to make her mobile phone available to the children should they require it; and

(j) at other times as is agreed in writing between the parties.

The children’s time with the applicant pursuant to paragraph (7) of this Order is:

(a) conditional upon the provision of a separate bedroom and a bathroom equipped with a door and covered shower facilities for the children and the children not sleeping in the applicant’s bedroom;

(b) suspended on the mother’s birthday and on Mother’s Day, unless the children are otherwise in her care, from the conclusion of school at 3:15pm until 7:30pm if it is a school day or from 1.00pm until 6:30pm on a non-school day.

For the purposes of paragraph (7) of this Order:

(a) during school term, the applicant shall collect the children at the conclusion of school on Fridays and return them to school on Monday morning (or on Tuesday where Monday is a non-school day) save that the children may remain in his care if they are unwell on that day but must be returned to the respondent by 6.00pm on a Monday where there were unable to attend school;

(b) at the end of school term, the applicant shall collect the children at the conclusion of school and the respondent shall thereafter collect the children in accordance with paragraph (9)(c) of this Order;

(i) the applicant shall collect the children at the School J Police Station; and

(ii) the respondent shall collect the children at the Suburb K Police Station.

10.

The applicant without admitting the necessity for same, be restrained from:

(a) exposing the children to any adult rated images or content and/or viewing such content in the presence of the children or either of them;

(b) using any concealed filming devices whilst the children are in his care and/or installing any filming devices in the bedrooms, bathroom and living areas of his accommodation;

(c) permitting the children or either of them to come into contact with heavy machinery including forklifts whilst they are being operated at the father’s workplace.

11.

The respondent be restrained whether by herself, her servants, agents, or howsoever otherwise from exposing the children to any adult rated images or content and/or viewing such content while they are in her care.

12.

The applicant attend upon Dr C or such other psychiatrist as recommended by Dr F for the purposes of addressing his paraphilia diagnosis as directed by those professionals.

13.

The respondent authorise any school which the children attend from time to time to forward all school reports, school photographs and school notices to the Father at his expense.

14.

The applicant and respondent are permitted to attend school functions that parents normally attend.

15.

Direct that a copy of this order be provided to the children’s school.

16.

The parties each:

(a) authorise each of the children’s treating medical professionals to provide the other party with copies of any medical reports or assessments made with respect to the children, particularly in relation to the child [X]’s assessment for Autism Spectrum Disorder;

(b) file and serve an affidavit by 4pm on Wednesday 31 July 2019 to which they will exhibit all communications which they have sent to or received from any such medical professional to date.

17.

Each party immediately inform the other party of any serious illness, injury or accident suffered by the children whilst in their care.

18.

Each party keep the other informed at all times as to their current residential address and mobile telephone contact numbers.

19.

Should either party wish to travel overseas with the children, the travelling parent shall provide the non-travelling parent with at least 60 days written notice of their intention to travel with the children and provide the other party with copies of all return flight tickets, a travel itinerary, contact details of where the children can be contacted during the travel period and a proposal for security for the return of the children, for the children’s contact time with their non-travelling parent and for the make-up time that they should have either before or following the period of proposed travel.

20.

All extant parenting applications be dismissed.

21.

The matter be adjourned for Mention at 10.00am on 24 February 2020 in the Federal Circuit Court of Australia at Melbourne.

Contravention

22.

The respondent’s contravention application filed 6 March 2019 be dismissed.

Travel orders

23.

The respondent’s application in a case filed 6 March 2019 be dismissed.

24.

The respondent forthwith deliver the children’s passports into the custody of the Registrar of the Federal Circuit Court of Australia at Melbourne and the Registrar is directed to retain those passports until further order.

Other parenting matters

25.

This Order is to operate pursuant to s 68P of the Act notwithstanding the provisions of any intervention order that has been made by a Magistrates’ Court.

26.

Pursuant to s 68P(3) of the Act, a copy of this Order be served on the Police Commissioner of Victoria and the Department of Health and Human Services.

27.

Direct that the parties, the Police Commissioner of Victoria and the Department of Health and Human Services may produce these orders and reasons for judgment to a state court.

28.

Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes any one of these orders are set out in Annexure A and these particulars are included in these orders.

Property

29.

Subject to paragraph (30) of this Order, the proceeding is set down for final hearing at 10.00am on 7 September 2020.

30.

Order and direct that:

(a) by 4.00pm on Tuesday, 1 October 2019, the respondent file and serve a Further Amended Response to the Amended Initiating Application stating the precise relief that is sought by her by way of any adjustment of property interests; and

(b) in default of compliance with paragraph 30(a) of this Order, the hearing set down for 7 September 2020 is vacated.

31.

Direct that each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:

(a) the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;

(b) the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.

32.

Other than as provided by this Order, no party may file or rely upon any further evidence without leave of the court.

33.

The evidence in chief of each party and any witness be by way of affidavit as provided by paragraphs 31 to 32 of this Order.

34.

Not later than two months prior to the final hearing the parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including the following:

(a) a list of the material relied upon;

(b) a brief chronology listing significant events;

(d) a list of contentions with respect to each of the considerations relevant to determining the issues in the proceeding;

(e) the actual orders sought.

35.

In default of compliance with the obligations in any paragraph of this Order, either party may apply to the Chambers of Judge A Kelly for the matter to be listed for mention.

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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