Merritt and Bruckner (No 2) - [2021] FamCA 282

FAMILY COURT OF AUSTRALIA

MERRITT & BRUCKNER (NO. 2)

[2021] FamCA 282

FAMILY LAW – CHILDREN – With whom a child lives – Orders – Variation – Interim arrangements – Where judgment is reserved in relation to the substantive proceedings – Where current orders provide for the children to live with the mother and spend time with the father – Where the father seeks that the mother deliver up the children to him and that they remain in his care – Where the Court considered reopening the evidence was justified – Where there are issues with the children’s level of attendance at school – Where there has been no regularity with compliance with the orders for time spending with the father – Where the mother did not attend Court – Consideration of best interests of the children – Orders.

Family Law Act 1975 (Cth) s 60CC

Marvel v Marvel (2010) 43 Fam LR 348

APPLICANT:

Mr Merritt

RESPONDENT:

Ms Bruckner

INDEPENDENT CHILDREN’S LAWYER:

Duncan Basheer Hannon

FILE NUMBER:

ADC

1267

2016

DATE DELIVERED:

13 April 2021

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

13 April 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roberts

SOLICITOR FOR THE APPLICANT:

Daniel John Lawyers

COUNSEL FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Duncan Basheer Hannon

Orders

That further consideration of the Application in a Case filed 19 January 2021 be listed for hearing at 9.15 am on 20 May 2021.
That the hearing to allow for further evidence to be given is listed for hearing on 9 June 2021 at 10.00 am (2 days allowed).
That on 14 April 2021 the mother do deliver up X born … 2012 and Y born … 2014 (“the children”) to the father as provided for in paragraph 4 herein.
That the mother do attend with the children at the office of Child Dispute Services Child Care Centre situate on Level 2 of the Adelaide Registry of the Family Court of Australia at 3 Angas Street Adelaide at 3.00 pm on 14 April 2021 and do deliver up the children to a designated member of staff as nominated by the Director of Court Services and shall thereafter and forthwith leave the registry.
That the said designated member of staff shall deliver up the children to the father as soon as is practicable on or after 3.15 pm on 14 April 2021.
That in the event the mother fails to deliver up the children in accordance for the delivery up provided for herein pursuant to section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/ directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover 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 Merritt and Bruckner (No 2)

Details

AGLC: Merritt and Bruckner (No 2) [2021] FamCA 282
Case: [2021] FamCA 282
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Mr Merritt (“the father”) seeking to vary existing interim parenting orders concerning his children, X and Y, with Ms Bruckner (“the mother”). The substantive proceedings had concluded with judgment reserved, but the father filed an application seeking significant changes to the status quo, specifically that the children be delivered into his care. The mother, a self-represented litigant, did not attend the hearing.

The court was required to determine whether to reopen the evidence and make orders that would substantially alter the children's living arrangements, given concerns about their school attendance and the mother's compliance with existing orders for the children to spend time with the father. The legal issues included the best interests of the children under section 60CC of the *Family Law Act 1975* (Cth), the mother's failure to attend court and provide adequate explanation, and the need to ensure the children maintained a meaningful relationship with the father.

Justice Berman found that reopening the evidence was justified due to the father's concerns regarding the children's significant school absenteeism and the mother's alleged recalcitrance in complying with time-spent-with-father orders. The court noted the mother's absence from the hearing and the inadequacy of her explanation, which was provided via email citing a suspected viral infection. Despite acknowledging the principle of acting with caution when making significant interim orders, the court concluded that the current circumstances presented a manifest uncertainty regarding the children's future arrangements and their relationship with the father. The court considered that the children's best interests necessitated orders that provided stability and secured their time with the father, particularly in light of the ongoing issues with school attendance.

Consequently, the court made orders for the children to live with the father, suspending previous orders that provided for them to live with the mother. The mother was ordered to deliver the children to the father on 14 April 2021, with provisions for a recovery order to be issued if she failed to comply. Further hearings were scheduled to allow for the mother to be heard and for the substantive proceedings to continue, with leave granted for the independent children's lawyer to issue a subpoena to the school principal.

Orders