MERRITT & BRUCKNER - [2021] FamCA 279

FAMILY COURT OF AUSTRALIA

MERRITT & BRUCKNER

[2021] FamCA 279

FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – Where judgment was reserved – Where the father made an application for delivery up of the children – Where the mother considered the current orders were no longer in the children’s best interests – Where the matter was listed for the hearing of further evidence – Where the mother failed to appear – Where the mother emailed the Court advising she was unwell – Where the mother was advised she could appear by phone – Where a medical report was provided to the Court – Where the report was unable to assist the Court in understanding whether in the proper administration of justice the proceedings should be adjourned – Where the Court attempted to contact the mother by email and phone – Where the hearing was adjourned for one day to give the mother an opportunity to provide further information or attend by phone.

APPLICANT:

Mr Merritt

RESPONDENT:

Ms Bruckner

INDEPENDENT CHILDREN’S LAWYER:

Duncan Basheer Hannon

FILE NUMBER:

ADC

1267

2016

DATE DELIVERED:

12 April 2021

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

12 April 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roberts

SOLICITOR FOR THE APPLICANT:

Daniel John Lawyers

COUNSEL FOR THE RESPONDENT:

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

The Application in a Case filed 19 January 2021 be adjourned for further hearing to 10.00 am on 13 April 2021.
The transcript be ordered in respect of today’s hearing.
The costs of the father and the independent children’s lawyer of today’s attendance be reserved to 13 April 2021.

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

The parties remain in dispute in respect of the future parenting arrangements for the children, X born … 2012 and Y born … 2014 (“the children”).
The proceedings have been before the Court in one form or another since 2016. Following a ten day final hearing, judgment was reserved on 15 October 2020.
Before judgment could be delivered the father filed an Application in a Case on 19 January 2021 seeking that the mother forthwith deliver…

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 & BRUCKNER

Details

AGLC: MERRITT & BRUCKNER [2021] FamCA 279
Case: [2021] FamCA 279
Decision Date: 12 April 2021

CaseChat Overview and Summary

In the matter of Merritt & Bruckner, Berman J of the Family Court of Australia considered an application by the father for the delivery up of the children. The mother contended that the existing orders were no longer in the children's best interests and the matter was listed for the hearing of further evidence. The mother failed to appear at the hearing, advising the Court via email that she was unwell. Despite being offered the opportunity to appear by phone and the provision of a medical report that did not assist the Court in determining whether an adjournment was appropriate, the Court attempted to contact the mother further.

The central legal issue before the Court was whether to proceed with the hearing in the mother's absence or to grant an adjournment, given her non-appearance and stated illness. The Court was required to balance the need for the efficient administration of justice with the mother's right to participate in proceedings concerning her children and the potential impact on the children's best interests.

Berman J reasoned that the medical report provided was insufficient to determine the necessity of an adjournment. The Court's attempts to contact the mother by email and phone demonstrated a commitment to affording her an opportunity to be heard. Consequently, the Court adjourned the hearing for one day to allow the mother a further chance to provide additional information or attend by telephone. The costs of the father and the independent children's lawyer were reserved.

Orders

Orders of the court

Orders

1. The Application in a Case filed 19 January 2021 be adjourned for further hearing to 10.00 am on 13 April 2021.

2. The transcript be ordered in respect of today’s hearing.

3. The costs of the father and the independent children’s lawyer of today’s attendance be reserved to 13 April 2021.

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).

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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