Merritt and Bruckner (No 2)

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.