Merritt & Bruckner (No 2)
[2022] FedCFamC1F 893
•27 October 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Merritt & Bruckner (No 2) [2022] FedCFamC1F 893
File number(s): ADC 1267 of 2016 Judgment of: BERMAN J Date of judgment: 27 October 2022 Catchwords: FAMILY LAW – CHILDREN – Interim orders – Where final parenting orders were made on 9 March 2022 – Where the final orders provide for the father to have sole parental responsibility and to spend significant and substantial time with the children – Where a significant issue at trial was the concerns regarding the mother’s ability to support the children’s medical, health and educational needs – Where the mother has withheld the children since 17 August 2022 – Where the mother has not sent the children to school and unilaterally decided to home-school them – Where the father seeks a recovery order for the deliver up of the children – Consideration of the best interests of the children – Consideration of the consequences of a recovery order – Orders made. Legislation: Family Law Act 1975 (Cth) ss 60CB, 60CC, 60CC(2)(b), 60CC(3)(a), 67Q, 68L Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 27 October 2022 Place: Parramatta – via telephone Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent appeared in person ORDERS
ADC 1267 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MERRITT
Applicant
AND: MS BRUCKNER
Respondent
order made by:
BERMAN J
DATE OF ORDER:
27 OCTOBER 2022
THE COURT ORDERS THAT:
1.On or before 4pm on 28 October 2022, the mother deliver up X, born 2012 and Y, born 2014 (collectively “the children”) to the father.
2.If delivery up is not complied with, then pursuant to section 67Q of the Family Law Act 1975 (Cth) the Marshall, the Deputy Marshall, and all officers of the Australian Federal Police and all officers of the State and Territory Police be authorised and directed with such assistance as is required, if necessary, by force:
(a)to stop and search any vehicle, vessel or aircraft and search any premises of place in which there is, at any time, reasonable cause to believe that the said children may be found;
(b)to recover the children;
(c)to deliver the children to the father; and
(d)to arrest without warrant, the mother in the event that the mother again removes or takes possession of the children.
3.Paragraph 4(a) of the orders made 9 March 2022, be suspended until further order.
4.Until further order, the mother be restrained from attending at the children’s school or removing the children from their school.
5.Upon the children being delivered up to the father, the Initiating Application filed 19 October 2022 and the Affidavit of the mother filed 24 October 2022, shall be listed for hearing before a Judicial Officer other than the Honourable Justice Berman.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merritt & Bruckner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EXTEMPORE REASONS FOR JUDGMENT
BERMAN J
Introduction
The parties are unable to reach agreement in respect of the future parenting arrangements for their two children, X, born 2012, and Y, born 2014.
The application before the Court today, is an Initiating Application filed by Mr Merritt (“the father”) on 19 October 2022. The father’s Initiating Application seeks both final orders and interlocutory orders.
In relation to the final orders, the father seeks that he have sole parental responsibility for the children, that they live with him, and that they spend time with the mother as deemed suitable by the Court. The second part, which is more relevant for the purpose of today’s hearing, are the interlocutory orders that he seeks, namely, that Ms Bruckner (“the mother”) immediately deliver up the children to his care and if delivery up is not complied with, then a recovery order be issued pursuant to s 67Q of the Family Law Act 1975 (Cth) (“the Act”). The father seeks that such an order be enforced as provided for in the Act, but that the Marshal, the Deputy Marshal and officers of the Australian Federal Police and State and Territory Police be authorised to, if necessary, recover the children.
In addition, the father seeks a suspension of Order 4(a) of the final orders made 9 March 2022 (“the final parenting Orders”), and that the mother attend and undertake a psychiatric assessment. The father also seeks that there be an order pursuant to s 68L of the Act, which would see the reappointment of an Independent Children’s Lawyer and orders that the mother be restrained from attending at or removing the children from their school.
The father’s Initiating Application was served on the mother on 22 October 2022. The mother was able to file an affidavit in response, sworn on 24 October 2022. Whilst no formal Response to Initiating Application has been filed, the mother’s position is made clear by reference to page 14 of the affidavit, which sets out the final and interlocutory orders sought. Similar to the father, the mother seeks that the she have sole parental responsibility, that the children live with her as per their wishes and that they spend time with the father as they may wish.
On an interim basis however, the orders sought by the mother are potentially more restrictive in that whilst she has sole parental responsibility and the children live with her, she seeks that the father only have supervised visits with the children on a Sunday, preferably at a handover facility, that the father be restrained from denigrating the mother to the staff at the children’s current school, being B School, and that the children remain at B School for the remainder of their primary years.
The mother also seeks orders that she be given leave to enrol and engage the children in counselling and that paragraphs 1, 2 and 3 of the final parenting Orders be suspended in order to give effect to the orders she seeks, namely for sole parental responsibility and for the children to live with her and spend limited and conditional time with the father.
In terms of the manner in which this matter must proceed, Part 7 of the Act provides how proceedings to which the subdivision apply, should be considered. I am cognisant of s 60CB of the Act, namely the best interests of a child being the paramount consideration. I also give consideration to the separate and individual provisions of s 60CC of the Act, both as to the primary and additional considerations. On an interlocutory basis, there is difficulty in being able to consider at significant length, the provisions both as to primary and additional matters in circumstances where the Court is being asked to consider the matters based upon the affidavit material and not having the benefit of the parties’ evidence, by examination and cross-examination.
I do not resile from the obligation to give consideration to the best interest test as provided for in s 60CC of the Act, and in that regard, I also consider that s 67Q of the Act requires a consideration of whether such an order should be made and if so, whether it is in the best interests of a child for a recovery order to be made. Obviously, the consequences of a recovery order are that in the absence of a delivery up of the children, the Act would enable compliance by force.
Background
The background to this matter is considerable. The parties have been in litigation since 2016 and it is reasonable to suggest that the issues affecting these children, are complex.
I also have regard to the final parenting Orders made consequent upon a final hearing spanning days in July 2020, August 2020, April 2021, June 2021, September 2021 and October 2021. The Court was assisted by the involvement of an Independent Children’s Lawyer (“ICL”) whose position was represented by counsel. The father was represented by counsel. The mother appeared as a self-represented litigant.
The final parenting Orders provide for the father to have sole parental responsibility for the children provided that, there would be some attempt to communicate any major long-term issues that the father may make pursuant to his parental responsibility, to the mother. A genuine effort to come to a joint decision was to be made, but if agreement was not able to be reached, then the final decision would rest with the father.
Importantly, the final parenting Orders provided for the children to live with the father and to spend significant and substantial time with the mother, namely, from the conclusion of school on Friday (or 3.00 pm if a non-school day), until the commencement of school on the following Wednesday (or 9.00 am if a non-school day), and each alternate period thereafter. Provision was also made for block time during various school holidays, the long Christmas school holidays spanning December and January and other days that might be considered special occasions such as Mother’s Day and the Christmas period encompassing Christmas Eve through to Boxing Day.
The final parenting Orders also put in place arrangements for handovers as well as restraints and injunctions in respect of the mother, in relation to the following matters:-
(a)Attending upon any event conducted by any school at which the children attend or causing or permitting any other person to do so other than:
(i)for parent/ teacher interviews;
(ii)for sports days which involve either child;
(iii)for the end of year concert;
(iv)for any extra-curricular sporting activities in which either child is participating conducted on the school premises; or
(v)for any other school event to which the mother has been invited to attend.
The parties were also subject to mutual injunctions which restrained them from:-
(a)Discussing adult issues including, disseminating information in relation to these proceedings whether in the presence of the children or allowing any third party to do so;
(b)Posting material to social media related to the proceedings, the allegations raised within the proceedings or the parties involved in the proceedings or allowing any third party to do so;
(c)Attending within 100 metres of the residence of the other party, other than as may be agreed between the parties;
(d)Attending or contacting the other party at their place or work; and
(e)Contacting any employer or work colleague of the other party at any time other than via a legal representative for lawful purpose.
The evidence
The father seeks support for his Initiating Application by reference to the matters raised in his affidavit. Again, I note that the mother has also filed a comprehensive affidavit in support of the orders she seeks, as well as providing a response to the matters raised by the father in his affidavit. Significantly, the father deposes that as a result of the final parenting Orders, there was some initial compliance by the mother however, he asserts that the mother has breached a number of orders since judgment was delivered.
More relevantly though, for the purposes of the father’s Initiating Application but in particular, the recovery order sought pursuant to s 67Q of the Act, the father alleges that there were dates in May and June when the children were retained by the mother but more significantly that the mother has withheld the children as and from 17 August 2022.
It is uncontroversial, and conceded by the mother, that since 17 August 2022, the children have not spent time with the father, there has been little or no communication between the children and their father, and the children have not been at their school, but rather, they are the subject of home-schooling by the mother.
The father’s affidavit sets out a chronology of events that highlights the mother’s withholding the children both from school and also from him.
Whilst there is some detail provided by the father in respect of each of the two periods that he considers the mother withheld the children, the current circumstances are such that the father considers that without a recovery order and an order for delivery up of the children into his care, the mother will continue to retain the children.
The father also asserts in his affidavit that the mother has breached a variety of the final parenting Orders, including by sharing posts on social media. The father contends that the mother has made various posts to her Facebook page which relate to child abuse by fathers and that something about the social media presentation of the mother, either involves him or is directed to him. For the purpose of today’s hearing, I disregard that aspect in its entirety.
The father also sets out in his affidavit, the various concerns regarding the mother and the children’s schooling. The father annexes various school reports relating to the children and it is clear from that information, that the mother has been home-schooling the children. The father’s position is that he did not consent to the children being home-schooled, and as would be immediately apparent, the issue of home-schooling would be a significant major issue and not one that could be exercised unilaterally by the mother in circumstances where the final parenting Orders provide for the father to have sole parental responsibility.
There are some issues relating to the mother’s concern as to the accuracy of the school attendance records, but it appears from the communication and the school reports that the school is concerned that the children may well be held back by their inability to attend school or their significant absenteeism from school.
So much is self-evident from a letter dated 8 September 2022, from Mr M, the Principal of B School.
However, the father’s affidavit is the subject of detailed response from the mother in her affidavit of 24 October 2022. The mother concedes that the children have been retained by her as and from 17 August 2022, although she sets out that prior to that date, she had attempted to engage in correspondence, communication and dialogue with the father, with the view to getting him to accept and/or understand her view which was that the children were not faring well in his care and that the final parenting Orders, as far as she considered them, were not suitable for the children’s needs. The mother proposed that the parties should attempt a mediated resolution. It is the mother’s position that the father disregarded her request to engage in mediation and has refused to discuss the relevant issues.
At paragraph 6 of the mother’s affidavit, she suggests that the children have not attended school as a result of medical conditions. She asserts that the children are still currently not attending school due to those medical conditions and that they are substantiated by medical certificates. Annexure “MB-4” to the mother’s affidavit is a raft of medical certificates issued by Dr DD from D Health. Most of those medical certificates are of little or no assistance, in that they provide inadequate information as follows:-
This is to certify that [X] has a medical condition. She is unfit to continue in her usual occupation for the period 21/09/2022 to 28/10/ 2022.
Of more relevance to the matters raised by the mother, are annexures “MB-2” and “MB-3”. “MB -2” is a letter forwarded by Dr DD to the father on 28 September 2022. It appears from the body of that correspondence, that Dr DD concedes that he has been recently caring for the children at the clinic, that he was aware of their complex custody case and the Court order, although he only recently received a copy of the most recent order.
He notes the history, as provided by the mother, and he considers that the children have expressed a strong reluctance to continue to have shared care and he says as follows:-
Further independent questioning of both [X] and [Y] confirmed that most of their gastrointestinal symptoms occurred during the periods that they spent in [the father’s] custody. While all of this may be confronting, I believe that there was a recent situation during a routine handover of the children at the police station during which [X] and [Y] also expressed their wishes in respect to this.
Dr DD goes on to say in the third paragraph, that he recommends that the children remain in the custody of the mother until mediation has been arranged and preferably a full psychosocial review of both children has been undertaken. It appears, for reasons that are difficult to understand, that Dr DD is also supportive of the children being home-schooled.
“MB-3” is a letter forwarded by Dr DD to Mr M, the Principal of B School, on 19 October 2022. He says the following:-
[X] and [Y] have stated that they no longer wish to be obligated to live with their father [Mr Merritt], and as a result [X] and [Y] have been under significant psychological and emotional stress, which has been causing a range of physical and psychological symptoms.
He also raises a matter that he considers to be part of the psychological stress being exacerbated on the 29 August:-
…when the teaching staff at [B School] effectively forced [Y] to call [Mr Merritt] to talk to him when it was obvious that [Y] did not wish to do this.
The final sentiment expressed by Dr DD to Mr M is as follows:-
This situation could certainly begin to be rectified if [X] and [Y]s [sic] father would contact [Ms Bruckner] and agree to begin mediation meetings to obtain an [sic] mutually agreeable solution to this situation that is in the best interests of [X] and [Y]. At the moment, the onus is on [Mr Merritt] to respond to [Ms Bruckner]s [sic] requests with respect to resolving this issue and allowing [X] and [Y] to return to a ‘normal life’.
“MB-3” also comprises a further piece of correspondence, being a letter from Dr DD to Mr M on 28 September 2022, where he says as follows:-
Both [Y] and [X] are highly concerned that if they attend the school, their father will be notified and will attend to pick them up. From previous similar episodes, they feel that the staff at the school will not prevent this from occurring and as a result, in conjunction with their mother, they have elected to have home schooling with their mother [Ms Bruckner] instead.
The issue of the importance of the children attending school, was a matter of significance expressed in the judgment delivered on 9 March 2022. It is also fair to say, that an area of concern was the extent to which the parties were able to agree the children’s education and the proper focus on their medical and dental health needs.
I determined that whilst the detail was not as simple as asserted by the ICL, I considered that there was a focus on the children’s poor school attendance and that left to the decision-making of the mother, the children’s attendance at school was likely to be problematic. The importance of the children’s schooling was highlighted by the changing circumstances of the position of the ICL across the history and duration of the proceedings. The ICL changed her position from one of supporting the children remaining in the primary care of the mother, to one of supporting the children being placed in the primary care of the father on the basis that the predominant periods of absenteeism and late attendance, took place whilst the children were in the mother’s care.
The issue of the children not regularly attending school was a matter of concern to the father and to the ICL. It was at least one of the considerations as to why the final parenting Orders were made, that provided for the father to have sole parental responsibility and also for the transition of the children from the primary care of the mother, to the primary care of the father.
The concern raised by Dr DD, of his observations of the children’s extreme reluctance to now engage with the father and even their fear of returning to school lest the father attend and attempt to retake the children back into his care, is at stark odds with the evidence. I found that the evidence of the Family Consultant, in terms of the observations of the beneficial relationship between the children and the father, was such that the children presented without any concern after having spent time with him.
The mother’s position that the children were fearful of the father, was not supported by the evidence generally or the specific evidence of the Family Consultant.
Those matters are set out in significant detail in my judgment, but in particular, commencing at paragraph 179 where detailed consideration is given to the Family Consultant’s third report and the summary and her observations of the children’s interaction with the father.
The father’s Initiating Application
I now return to the father’s Initiating Application. There is usually some difficulty on an interim basis in attempting to ascertain the accuracy of the information and the evidence that each of the parties present.
But what is uncontroversial, is the final parenting Orders made and that there was no appeal by the mother in respect of those orders.
The orders were made after many days of hearing and a detailed consideration of the evidence.
It is of concern that the mother would have resorted to taking the children to Dr DD in circumstances where part of that issue related to the children not attending school and the mother not complying with the final parenting Orders. They are matters to which sole parental responsibility would ordinarily have been a significant matter. I am not satisfied that the medical certificates provided by Dr DD provide the explanation as to why the children have not been at school. What is behind that, is not the medical health of the children but rather the obvious understanding by the mother that were the children to attend their school, there would be then no impediment to the father collecting them pursuant to the final parenting Order. The mother also had no confidence that the teachers and staff at the children’s school would do anything other than fall in with the father’s ability to have the final parenting Orders complied with.
Section 60CC of the Act seeks that the primary consideration be considered, namely the benefit to a child of having a meaningful relationship with both of the child’s parents. At present, there is no relationship between the children and the father and no attempt has been made by the mother to facilitate the same or even re-engage telephone time with the children. The mother’s position is that the children have been reluctant or refused to do so. She will not encourage the children to resume communication with the father.
It is also a relevant factor that, notwithstanding that the children have been in the sole care of the mother since 17 August 2022, no application was made to attempt to regularise the arrangement or to put in place a different arrangement. It is only the father’s Initiating Application that brings the mother to the Court’s attention.
The mother relies on s 60CC(2)(b) of the Act, namely, the need to protect the child or children from physical or psychological harm. It is the mother’s assertion that harm is occurring. Findings that I made as recently as 9 March 2022, did not find favour with the children being at risk in the father’s care but rather considered that there was a significant risk to the children if they remained in the primary care of the mother, in circumstances where their health needs would not be properly attended to and they would not be able to attend their school with regularity.
Section 60CC(3)(a) of the Act refers to the views and wishes of a child or children. The mother would want the Court to understand that as a result of that which transpired between the children and Dr DD, their wishes should be given significant and substantial weight. I do not give the children’s wishes, allegedly expressed to Dr DD, any significant weight in circumstances where there was no attempt made by Dr DD to consider the complex circumstances of the family, it was of relatively recent date that he received the final parenting Orders and he has not read the judgment. Dr DD’s correspondence was self-serving and a recitation of the mother’s position rather than any attempt to ascertain the broad circumstances of the children. The final parenting Orders that I made, determined that the issue of long-term considerations affecting the children, was to be resident in the father and not the mother.
The judgment determined that the best interests of the children would be served by them remaining in the primary care of the father, although I did not follow the submissions of the ICL, nor the father, as to the more limited extent of time that they considered the children should spend with the mother. I considered that the children’s interests would be served by more expansive time with the mother.
Conclusion
What has now happened, is that there has been unilateral action taken by the mother to cause a change in the circumstances of the children without any regard to the effect that it would have on them. In circumstances where I made detailed findings as to the nature of the relationship between the children and their father, it is alarming that the mother should now have placed the children in the circumstance where they no longer have a relationship with him.
I have regard to the balance of the matters in s 60CC of the Act, although I do not consider that, for the purposes of the current Initiating Application, there are issues relating to the practical difficulties and expense of the children communicating with, and/or living with each of the parties that need to be considered.
The children’s best interests are served by their recovery and return to the primary care of the father.
I have also determined that because of my long involvement with the matter, any further applications should be determined by a different Judicial Officer.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 15 November 2022
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