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 of 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

1. 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.

2. 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).

3. 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.

4. 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.

5. 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.

6. 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 children X born … 2012 and Y born … 2014; and

   (b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found; and

   (c)to deliver the children to the father MR MERRITT at such place as the father MR MERRITT and the person effecting such recovery agree to be appropriate.

7. That leave is given to the independent children’s lawyer to issue a subpoena to Mr M, Principal of B School to attend and give evidence at 10.00 am on 9 June 2021 unless advised otherwise.

8. That the costs of the father and the independent children’s lawyer thrown away with respect of the hearings on 12 and 13 April 2021 be reserved for further consideration to 9.15 am on 20 May 2021.

UNTIL FURTHER ORDER:

1. That paragraphs 2 and 3 of orders made 8 November 2018, paragraph 2 of orders made 5 December 2019 and paragraphs 4 and 5 of orders made 23 February 2021 be suspended.

2. That the children live with the father.

3. That the children spend time with the mother as may be agreed between the parties and in default of agreement as ordered by this honourable Court.

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 Merritt & Bruckner 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 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1267 of 2016

MR MERRITT

Applicant

And

MS BRUCKNER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings between Mr Merritt (“the father”) and Ms Bruckner (“the mother”) concern the future parenting arrangements for X, born in 2012 and Y, born in 2014.  The proceedings are assisted by the involvement of an independent children’s lawyer by order made 9 August 2016.  The proceedings have therefore been before the Court now for in excess of five years.  The substantive applications of the parties came on for final hearing in July of 2020, with judgment being reserved on 15 October 2020. 

2. The mother appears as a self-represented litigant.  The father is represented by solicitor and counsel.  The independent children’s lawyer is also represented by counsel. 

3. The parties commenced their cohabitation in 2010.  They separated in 2015, and since that date, there has been difficulties between them.  The father’s position is that the mother was anxious in respect of the children and that she sought to exclude the children from him and to alienate them.  The mother’s position is that the father presented as a significant risk by reason of his conduct, his personal circumstances and his living environment and arrangements.  The father commenced proceedings in 2016.

4. The interim arrangements have as their genesis an order made on 8 November 2018 which provides for the parties to have equal shared parental responsibility of the children, that the children live with the mother and spend time with the father from the conclusion of school on Friday until the commencement of school on the following Wednesday in each alternate week and for one half of each school holiday period as may be agreed, but in default for the second half of the short end of term holidays, and then during the Christmas school holiday period on a week about arrangement.

5. Interim orders also provided for the children’s enrolment at B School, and that the mother is restrained from taking the children for any consultation with a specified general practitioner, Dr C.  There was also an injunction restraining the mother from causing the children to undertake any surgical procedure without the written consent of the father. 

6. The children’s health is a live issue as between the parties.  Each of the parties contend that the health issues have relevance.  The father considers that the children’s health is not generally problematic but is exacerbated and/or exaggerated by the mother.  The mother is concerned that the father is not properly alive to the serious and significant health risks which affect the children.  The health of the children impact upon their day to day function, in particular in terms of the more significant issue of their ability to attend regularly at school.  Each of the parties seek orders that the children live primarily with them. 

7. At the conclusion of the substantive hearing on 15 October 2020, judgment was reserved. However, as a result of the father’s Application in a Case filed 19 January 2021, the Court heard argument as to the issues raised. He seeks what might be considered to be dramatic orders, in the sense that they significantly change what has been the status quo, namely, that the children reside primarily with the mother. He seeks that the mother deliver up the children to him and that in the event that the mother does not comply then there should be a recovery order issued pursuant to section 67U of the Family Law Act 1975 (Cth) (“the Act”).

8. When that application came on for hearing, a decision was made by the Court based upon the submissions by all parties that the issues raised were such that the Court considered it justified a reopening of the evidence.  It is fair to say that the matters raised by the father in his affidavit and the matters raised by the mother’s response in her affidavits went to the important issues raised during the course of the proceedings which underpin the final orders that each of the parties seek. 

9. The broad thrust of the father’s case was that the mother was recalcitrant in her compliance with orders, in particular the children’s time with the father was problematic.  It was entirely at the discretion of the mother as to whether the children did or did not spend time with the father.  In addition, the father’s principal complaint is that there has been a significant level of school absenteeism by the children which is having a deleterious impact on their education.

10. The mother did not agree that the absentee records of the school properly reflected the basis upon which the children were not at school or were delayed from attending school on a particular day.  In any event, the mother says that there was good and proper reason, and whilst it may be regrettable that the children were not attending school with regularity, it was not a contrivance by her.

11. The issues raised by the father post the conclusion of the proceedings on 15 October 2020 were to highlight that for the balance of the 2020 academic year, and the commencement of the 2021 academic year, there had not been a change in the level of absenteeism by the children at school, and if anything, it appears to be a trend that was increasing.  The consequence, as the father highlights by the tendering of school reports, was that the children’s academic progress was significantly impeded by their non-attendance at school. 

12. The mother’s position was to reject that assertion.  She is in conflict with the school, with the teachers, and with the teachers’ assessment of the level of functioning by the children and the extent to which their absenteeism may have adversely impacted upon their academic progress. 

13. There is also an ongoing issue, as far as the father is concerned, in that the mother is resistive to the children spending time with the father pursuant to those orders. 

14. The matter came on for hearing yesterday not so much in respect of the application which was adjourned to that date but was not likely to be the primary focus; but that the Court would hear and determine the further evidence with the hope that a timely judgment would resolve this longstanding litigation. 

15. The mother did not attend.  Extensive reasons were given by me yesterday as to the circumstances by which the Court had attempted to contact the mother and the extent to which the mother has both responded to the Court in explanation as to why she is not present and the reasons for that. 

16. In summary, the mother had indicated at 9.00 am and shortly thereafter in two separate emails, forwarded from her phone, that she may have a viral infection and that it prevented her from attending Court.  It is not controversial that neither the father, his solicitors, the independent children’s lawyer nor the Court received any prior advice from the mother that her ability to attend may be at risk.  Attempts were then made to contact the mother by telephone and by email, and the response received at 3.19 pm yesterday 12 April 2021 was to forward, again from the mother’s phone, an email which referred to an attached report from her general practitioner, Dr C.  The report was of two lines, notable for its brevity, and provided that the doctor had reviewed the mother yesterday and that it was suspected that she may have viral gastroenteritis.  Nothing more was forwarded.  I have already given reasons as to why I found that the report was wholly inadequate in respect of the circumstances of this case. 

17. The matters before the Court, however, were troubling in that there was evidence that required consideration as to the extent to which the children are attending school and the concern that their absenteeism may be adversely impacting upon their proper academic progress.  It is also an important consideration that on 23 February 2021, an order was made that changed the time that the children spend with the father pursuant to the orders of 8 November 2018 and 5 December 2019.  Order 5 of the orders made 23 February 2021 provided that the children shall spend time with the father from 5.00 pm on 11 April 2021 to 5.00 pm on 18 April 2021, that time being the seven day period to coincide with the children’s current school holidays.  That was done because it was clear at the time that the parties were not able to agree readily the commencement of the time that the children spend with the father.

18. The issue was also one of argument on the last occasion, in that whilst the mother did not oppose the children spending holiday time with the father, it was her contention that the order of 8 November 2018, would have meant that the first two days of the school holiday time with the mother would be taken up with the current Court proceedings.  The father however, was prepared to take that on board.  It was upon his indication that proper arrangements could be made for the children during what was anticipated to be the first two days of the hearing, namely 12 and 13 April, and that it would not be a matter of concern to him in terms of the time he would spend with the children.  The mother was alive to those issues.  The order was made to suit the convenience of the mother as opposed to the father. 

19. I gave leave for the father to be examined by his counsel and cross-examined by the independent children’s lawyer in circumstances where there was still further matters that needed to supplement the affidavits.  The further evidence was to the effect that the children had not attended school on a regular basis.  School reports which were tendered and marked as exhibits provided the assessment of the teachers at the school as to the level of absenteeism, and the consequence upon the children’s education. 

20. There had been no regularity with the compliance of the children spending time with the father.  If anything, it appears that the relationship between the parties had become more fractured and the level of uncertainty as to how the children would be spending time with the father was more manifest. 

21. The father was cross-examined at significant length by counsel for the independent children’s lawyer with a particular focus upon the matters raised by the mother in her affidavit material. The mother is not here to prosecute her own situation. There may have been issues as to her ability to cross-examine the father in circumstances where the current orders may well prevent cross-examination pursuant to s 102NA of the Act. That wasn’t an issue that I needed to consider in the circumstances.

22. At the conclusion of that evidence I heard submissions from the father’s counsel, which was that the orders sought in the Application in a Case should be made as being the only way to enable the children to spend time with the father in order to maintain the relationship that both parties considered to be important and that at present it is only the father that is able to ensure that the children attend school properly.  The independent children’s lawyer supports the delivery of the children to the father. 

23. The assessment of the independent children’s lawyer is that the current status in respect of the children is uncertain, in that notwithstanding the protestations of the mother, there are issues relating to the attendance of the children at school and the circumstances by which their education is able to proceed uninterrupted and without conflict.  There is a credible finding by the Court that no good reason has been promoted on behalf of the mother for the non-compliance with orders on a regular basis.

24. This is a case where from very early in the proceedings, or at the very least from 8 November 2018, the Court considered that it was important that the children maintain a meaningful relationship with the father and that the children should spend significant and substantial time with him.  This is not a case where marginal orders have been made which are considered not optimal but at least serve the most basic purpose of maintaining a relationship.  This is a case where the Court has considered that significant and substantial time is required. 

25. It is an unusual circumstance where the Court is required to consider such orders in the middle of proceedings.  The Court is not satisfied as to the explanation proffered by the mother remotely and by email, as to the circumstances which have not enabled her to attend.  That is not to suggest that the Court can possibly know all of the circumstances that impact upon the mother.  But the ability, or the obligation, that rests on parties to properly engage in court proceedings is obvious. 

26. It is not a matter where parties are obliged to be heard or that the Court cannot proceed unless a party is heard.  Court proceedings enable a party with the opportunity to be heard.  That opportunity very much rests with them.  It is not a matter for the Court to force a party to be heard if they do not wish to be. 

27. The mother in this case is a self-represented litigant and it could be said that significant assistance has been provided to her across the years of this litigation in terms of practice and procedure.  Indeed, accommodation have been made to the mother on previous occasions during the course of the trial relating to ill health, misadventure, and other factors which may have impacted upon the mother’s ability to properly engage. 

28. It could be said that, more often than not, the Court acted out of an abundance of caution in respect of accommodation to the mother as a self-represented litigant.  The circumstances that present themselves in terms of this hearing is quite different.  There can be no misunderstanding by the mother as to the import of the current proceedings.  This was a day where the final hearing was to be continued and upon the conclusion of the evidence, judgment was to be reserved.  More was required of the mother than I consider has been undertaken by her. 

29. I cannot know the mother’s current circumstances, but I take into account that the mother was able to take herself to the doctor for a review, that the mother was able to communicate with the Court from her phone, and that notwithstanding every opportunity given to the mother, in terms of the Court proactively ringing the mother, forwarding email communication and late last night, ensuring that a copy of the orders made were forwarded to the mother, there has been no further response by her.  Nor has there been compliance with the order of 23 February 2021 which provided for the children to spend time with the father from 5.00 pm on 11 April 2021 for a period of seven days, expiring at 5.00 pm on 18 April 2021. 

30. In any application, whether it be interim considerations or a final hearing, it is not a matter where I make orders simply in default or because a party has not attended. The focus must always be on the best interests of a child or children. And in that regard, I am obliged to consider in each and every case the provisions of s 60CC of the Act. It may be that the circumstances obviate the need for all of the relevant sections or factors that can be considered under s 60CC to be considered.

31. I refer to the decision of the Full Court in Marvel v Marvel (2010) 43 Fam LR 348. In that decision the Court indicates that changes of orders made on an interim basis, particularly where the order may be of dramatic effect, ought to be tempered. The Court should always act out of an abundance of caution. That does not mean, however, that in an appropriate case the Court cannot make orders that change or vary the current arrangements.

1. In the circumstances of this case, the primary consideration is for the children to have a meaningful relationship with both parents.  At this stage, there is now a high level of uncertainty as to when and under what circumstances the children will resume spending time with the father.  There is nothing from the mother which indicates that whilst she considered her current circumstances may provide the basis for a hiatus to the current orders, they would resume in terms of the children spending time with the father at some nominated point in the future. 

2. No information has been provided and the Court is then left in the invidious position to try and understand what the future circumstances are for these children.  There is no doubt that the children benefit from a relationship with the father.  At present, there is no understanding as to how that relationship would go forward or whether it is the mother’s intention to comply with orders.  It appears from the evidence of the father that the children did not come into his care at 5.00 pm on 11 April 2021. 

3. The very fact that the mother understood that there was an order that required the children to transition to the father’s care on 11 April would have required a separate and independent consideration by her as to how that issue was to be dealt with.  I am not told of any correspondence or communication that has passed in respect of that.  Nothing that has been presented or tendered into evidence explains how the mother’s particular issues impacts adversely upon her ability to comply with the order. 

4. The circumstances that now present themselves enable the Court to find that there is no understanding as to when and if the children will resume spending time with the father and the circumstances by which that will occur. 

5. Whenever a consideration is made as to the benefits to a child of having a meaningful relationship with a party, the Court must consider the provisions of s 60CC(2)(b) of the Act, namely the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence.

6. I adopt a cautious approach when considering s 60CC(2)(b) considerations, in particular because s 60CC(2A) of the Act requires that when I consider the matters raised in s 60CC(2) I must give greater weight to the considerations as set out in s 60CC(2)(b). I do so by reference to my broad knowledge of the matter, the extensive evidence of each of the parties during the substantive trial, but also the further affidavit material filed by each of the parties. I do not consider that there are any matters raised, either by the mother, in terms of the substantive proceedings part heard, or supplemented by her most recent affidavit in response to the father’s application, which elevate the issues that she raises to a point where there is a need to protect the children from harm, neglect, or abuse, or the potential for family violence.

7. Indeed, it is not the mother’s position that the children should spend no time with the father, or that the children’s time with the father should be under strict conditions of supervision.  Rather, she contends that the children should spend time with the father on a reduced level.  That is, reduced from the five days a fortnight, as originally provided in the orders of 8 November 2018. 

8. I have to consider the additional considerations in s 60CC(3) of the Act. Whilst I have no present evidence as to the views expressed by the children, there is nothing in the court proceedings which would suggest that the children do not wish to spend time with the father, or wish to spend time with the father but under a different set of circumstances. Indeed, if anything, the evidence as was presented suggests that the relationship between the children and the father was such that it was a relationship that should be promoted, rather than in some way restrained.

9. I do not need to consider the nature of the relationship that the child has with each of the parents.  I acknowledge that there is an ongoing dispute between the parties.  The father’s position is that the mother is attempting to alienate the children from him.  The mother’s position is that she is attempting to protect the children in such a way that the orders that she seeks are orders that she can then manage in terms of the consequence that flows from the children’s interaction with the father.  She says that manifests itself in issues relating to their health and their conduct.

10. The parties have a difficulty in terms of any ability to communicate with each other, and there are competing claims between the parties as to the extent to which each of them make decisions about major long term issues affecting the children.  The principal concern in respect of the additional considerations however relates to the issue of the children’s attendance at school.  It was likely that if this matter had proceeded in the way it was anticipated, the Court would have heard some further evidence in respect of matters relating to the allegation that the mother has caused the children to be significantly absent from school.

11. The Court would have been able to determine whether there was something in the father’s argument that the mother has been recalcitrant in that regard, or the mother’s position that absenteeism can be adequately, appropriately and properly explained and placed into the context which renders it benign, as opposed to detrimental.  There are no issues in respect of family violence in the sense that they impact upon the current orders.  There are historical issues and allegations.  That’s between the parties.

12. In terms of the current position of the parties, it is not suggested that the orders sought by the father, or by the mother, should be varied by matters of family violence.  I have given careful consideration to these matters and ultimately, I find that there is now a manifest uncertainty in respect of the children’s current circumstances.  In any event, the children should be with the father, pursuant to the order.  There is no explanation by the mother, or no application by the mother, as to why that order should not be complied with or should be varied.

13. I consider that there is merit in the father’s application.  It is dramatic, but the circumstances are such that I consider there is little or no avenue left open to the Court to ensure that there is some stability brought to the lives of these children and that the circumstances by which the children ought to be spending time with the father, in order to promote the relationship that is clearly important to them, can be secured.  For those reasons, I propose to make orders broadly in terms of the orders sought by the father and supported by the independent children’s lawyer.

14. That is not to suggest that those orders subsume the further consideration of the part heard proceedings.  It seems to me that the current circumstances in which the parties and the children find themselves, in particular, in terms of today’s hearing, should be considered as not dissimilar to an ex parte application.  Whilst the Court should be careful in respect of orders made on an ex parte basis, if an order is made, it is important that the order be the subject of early and timely review lest there are matters that explain the absence of a party and the circumstances by which that has occurred.

15. I consider I should make the orders sought until further order. I should bring the matter back in a timely fashion, and give the mother an opportunity to be heard in terms of any change to the circumstances of the children. It will be a change in the children’s current circumstances and I have regard to the provision of s 60CC(3)(d) of the Act. In tempering those considerations, it is clear that the current orders provide for the father to have extended time during the current school holidays.

16. In circumstances where I propose to bring this matter back on 20 May 2021 for further consideration of the interim proceedings, I do not consider that any difficulties that may be occasioned to the children by the change are not able to be adequately ameliorated by the father.  The father clearly impresses as a person who is invested in the care and progress of the children.

17. I propose to make an order adjourning the substantive proceedings to 9 and 10 June 2021.  Noting, that if those dates provide a difficulty for the mother when and if the mother seeks to be heard, then further consideration can be made if those dates are not suitable to her. 

18. At the conclusion of the proceedings, counsel for the father has asked the Court to consider the handover arrangements in circumstances where the current provision is that handovers are to occur, when not to and from the children’s school, to the park opposite the N Hotel or as otherwise agreed.  The parties are not able to otherwise agree.  The submission is that the Court is able to find that the park has been problematic.  My recollection of the evidence given during the substantive proceedings is that the park was not without incident.

19. The father’s position was to seek that handover occur at the Suburb O Police Station.  Whilst there is no difficulty with the Suburb O Police Station in circumstances where clearly it is a public place and of public safety, the Court should be reluctant to have as the default position a police station, in circumstances where the children see the level of conflict between their parties as of necessity requiring police intervention.  These children are of an age when they have an understanding as to the importance of police. 

20. It is an unfortunate situation where children consider that the only way they can easily transition between one parent to another is via a police station or under the supervision of police.  Counsel for the independent children’s lawyer has a significantly better proposal, and that is that the handover occur utilising the services of Child Dispute Services.  What that means is the Court is being asked to make an order that the children be delivered up by the mother to a designated person at Child Dispute Services, and then they are able to be collected by the father. 

21. There is some good sense in that.  That will require some proper communication with Child Dispute Services to ascertain the availability and the preparedness to undertake the process and to craft orders that give effect to the concerns properly expressed on behalf of the independent children’s lawyer.  I will need to stand matters down in a moment to enable the Court to consider the extent of those orders.  The second matter raised by counsel for the independent children’s lawyer is that the principal of the B School, namely Mr M, should be called to give evidence by subpoena at the resumption of the part heard proceedings. 

22. Ordinarily, the Court would not grant leave unless there was some indication given that the potential recipient of a subpoena has some notice, and that a subpoena is required.  It is immediately apparent from the matters raised by the parties, in particular the father, that the evidence of Mr M is relevant.  Mr M is the principal.  He may not necessarily have authored the school report for the children, but he has oversight in that regard.  He is integrally involved in the education of the children.  He is involved in the environment in which the children are educated and he has had involvement and interaction with each of the parties. 

23. I propose to grant leave for a subpoena to issue in respect of Mr M to give evidence on the adjourned hearing date, being 9 June 2021, on the understanding that whilst it is currently school holidays and there may be difficulty in getting a message to him, that, as soon as is practicable, the independent children’s lawyer will make contact with Mr M and advise him of the subpoena that is to issue, and that he is to be served.   If he has any difficulty, in terms of the arrangements for his attendance, then they will be matters conveyed to the Court.

24. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty-three (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 April 2021.

Associate:

Date:  11 May 2021