Merritt & Bruckner (No. 3)

[2021] FamCA 304

FAMILY COURT OF AUSTRALIA

Merritt & Bruckner (No. 3) [2021] FamCA 304

File number(s):	ADC 1267 of 2016
Judgment of:	BERMAN J
Date of judgment:	14 May 2021
Catchwords:	FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Interim arrangements – Where the substantive proceedings are part-heard – Where there has recently been a significant change in the interim care arrangements – Where the children are living with the father – Where the father has not promoted any time spending with the mother – Where the mother seeks that the children live with her and spend time with the father – Where the father seeks that the children remain in his primary care and spend limited time with the mother – Where the parties agree that the children should have a meaningful relationship with each of them – Where the children are upset at not being able to spend time with the mother – Consideration of the children’s best interests – Orders.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	41
Date of hearing:	12 May 2021
Place:	Adelaide
Solicitor for the Applicant:	Self Represented
Counsel for the Respondent:	Mr Roberts
Solicitor for the Respondent:	Daniel John Lawyers
Counsel for the Independent Children's Lawyer:	Mr Lewis
Solicitor for the Independent Children's Lawyer:	Duncan Basheer Hannon

ORDERS

ADC 1267 of 2016

BETWEEN:

MS BRUCKNER

Applicant

AND:

MR MERRITT

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 MAY 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That orders 10 and 11 of orders made 13 April 2021 be discharged.

2.That the children X born … 2012 and Y born … 2014 (“the children”) live with the father.

3.That the children live with the mother as follows:

(a)From the conclusion of school on Friday to the commencement of school on Monday commencing 14 May 2021 and each alternate weekend thereafter; and

(b)From the conclusion of school on Friday to 10.00 am on Saturday commencing 21 May 2021 and each alternate week thereafter. 

4.That the handover venue for the parties when the children are not at school shall be the Suburb O Police Station or such other place as the parties may agree.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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).

REASONS FOR JUDGMENT

BERMAN J

1. Mr Merritt (“the father”) and Ms Bruckner (“the mother”) remain unable to resolve the future parenting arrangements for X born … 2012 and Y born … 2014 (“the children”).

2. The proceedings were listed for final hearing in October 2020 with judgment reserved on 15 October 2020.

3. On 23 February 2021 leave was given to the parties to adduce further evidence.  The part-heard proceedings were adjourned to 12 April 2021 with two days allowed.

4. For the reasons as set out in judgments delivered on 12 and 13 April 2021,[1] the adjourned date for the conclusion of the part-heard proceedings was vacated and relisted to commence on 9 June 2021.  

   [1] See Merritt & Bruckner [2021] FamCA 279 and Merritt & Bruckner (No 2) [2021] FamCA 282

5. Relevant to the current interim proceedings, orders were made on 13 April 2021 that the mother deliver up the children to the father with the following orders to apply until further order:

   9.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.

   10.      That the children live with the father.

   11.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.

6. In the absence of any application by the mother, the Court adjourned the father’s Application in a Case filed 19 January 2021 for hearing on 20 May 2021.

7. The mother filed Applications in a Case on 21 April 2021 and 6 May 2021.  The substantive relief sought by the mother is common to both applications, but in summary the mother seeks the following:

   (a)That paragraphs 10 and 11 of orders made 13 April 2021 be discharged.

   (b)That the children live with the mother.

   (c)That the children spend time with the father as follows:

   (i)From the conclusion of school on a Friday (or if not a school day 4.00 pm) to the commencement of school Monday (or if not a school day 9.00 am) each alternate weekend; and

   (ii)For the second week of short term end school holidays from 9.00 am on the second Monday for seven (7) days only, ending on the following Monday at 9.00 am.

8. There are other ancillary orders sought by the mother which are not required to be dealt with at this stage.

9. The mother’s applications were listed for hearing on 20 May 2021.  The mother made an application to a Registrar seeking that her applications be given an earlier date.  She was successful in that regard and the proceedings were listed on 12 May 2021.

10. At the commencement of the hearing, counsel for the father sought that the hearing be adjourned to 20 May 2021 to give him an opportunity to respond to the mother’s applications.

11. The orders which placed the children in the primary care of the father were predicated upon the condition that the children would spend time with the mother, as may be agreed between the parties but in default as may be ordered by the Court.

12. It is not controversial that the only communication between the mother and the children was by FaceTime on Mother’s Day.  Other than that occasion there has been no other time spent between the mother and the children.

13. There is an independent children’s lawyer (“ICL”) involved in the proceedings.  Counsel for the ICL did not support the hearing being adjourned as sought by the father and initially considered that there should be a resumption of time between the children and the mother for some few hours, subject to supervision.  When pressed, counsel agreed that the ICL was not able to identify a suitable supervisor with the clear implication that if an order was made in terms as submitted by the ICL it would be a barren exercise.

14. The significance of the Court considering the mother’s application was heightened by the submission of counsel that the ICL had spoken to the children and they were missing spending time with the mother.

15. Given the circumstances as presented to the Court, I determined that the interests of the children would be served by the Court hearing the mother’s applications but retaining the adjourned date of 20 May 2021 should the father wish to rely upon a responding affidavit.  The final orders proposed by the father are that the children would live with him and spend time with the mother from the conclusion of school on Friday until 5.00 pm on Sunday and each alternate weekend thereafter.  The interim orders sought propose that the children spend time with the mother from 10.00am to 4.00pm each Sunday and for 20 minutes by FaceTime each Wednesday at 5.30pm.

16. The ICL was given an opportunity to reflect upon the orders sought by the father and ultimately reconsidered her position namely, that the mother’s time with the children albeit limited did not require supervision.

17. For her part, the mother has reconsidered her orders and now seeks:

    (a)That the children live with her from 13 May 2021 until 28 May 2021; and

    (b)That thereafter the children spend time with the father as provided for by the suspended interim orders but essentially five nights per fortnight and live with the mother at all other times.

18. The mother’s affidavit filed 21 April 2021 in support of her first application is of limited assistance.

19. The mother does highlight that the father has not allowed the mother any communication or contact with the children since 13 April 2021.  The mother alleges that the father has not responded to her emails and/or SMS communications.

20. Whilst not the subject of an affidavit, the father’s counsel alluded to a vast quantity of communication sent by the mother.

21. The mother also highlights that correspondence has been forwarded by the father to the Child Support Agency on 14 April 2021, confirming that child support should be assessed on the basis that the children spend no nights with the mother.

22. The mother argues that the father’s behaviour in not promoting a greater level of communication between the mother and the children and the representation to the Child Support Agency that the children would be spending no time with the mother should be seen as an indication that the father is not prepared to support the children’s relationship with her.

23. In anticipation of Mother’s Day on 9 May 2021, the mother proposed that the children come into her care on 8 May 2021 at 9.00 am until the commencement of school on Monday being 10 May 2021. 

24. Further correspondence from the mother to the father on 9 May 2021 highlights that the mother had not been able to communicate or spend time with the children for 26 days and that there had not been any response from the father to the mother’s proposal for communication with the children on Mother’s Day.

25. The mother contends that without notice the father facilitated a FaceTime video call with the children.

26. The mother’s assessment of the FaceTime call was that the children were distressed at not being able to see her.

27. Whilst the father has not been given an opportunity to respond to the matters raised by the mother, the submissions of counsel for the ICL confirms that the children are upset at not being able to spend time with the mother.

    PARENTING CONSIDERATIONS

28. The circumstances in which the children and the parties find themselves is complex.  The litigation has been ongoing since 2016 and the parties thought that the proceedings had concluded in October 2020.  The parties find themselves in the invidious position of the proceedings being part-heard and with a significant change in the interim parenting arrangements.

29. It is not suggested by the father that the children should spend no time with the mother.  The final orders sought by him contemplate that the children should live primarily with him but spend significant and substantial time with the mother.

30. It is not suggested that the Court considered the children should spend no time with the mother during the period of the adjournment.  It is apparent that left to their own best endeavours, the parties are not able to reach any consensus as to the most suitable parenting arrangements for the children.

31. In considering what is in the children’s best interests, I bring to account the primary and additional considerations in s 60CC of the Family Law Act 1975 (Cth). Both parties concede that the children should have a meaningful relationship with each of them. Whilst the parties do not agree as to the extent of time that the children should spend with the father and the mother, each of them concede that at the very least the children should spend significant time with each party. The current circumstances do not reflect that position.

32. The submissions on behalf of the ICL confirm that which is already understood by the Court namely, that the children wish to see and have a relationship with both of their parents.

33. I am concerned that the orders sought by the mother would represent another dramatic shift in the children’s circumstances during the adjourned period.  It is also a relevant consideration that the father has not had an opportunity to file a response and affidavit.

34. The evidence supports a finding that the children’s interests will be best served by them resuming time with the mother as opposed to a further change in their primary care.

35. There is good reason why the mother should be able to resume a relationship with the children’s school given her concession in Court that she now recognises that orders of the Court are designed to serve the children’s best interests and that compliance is an important consideration.

36. The parties remain concerned as to the method and manner by which handover can occur.  The present handover arrangements are unsatisfactory.  Each of the parties complains as to the mechanics of handover and I am satisfied that a different handover venue is required.

37. The father’s proposal is that handover should occur at the Suburb O Police Station.  The mother’s proposal is that handover should occur to and from each of the party’s home.  The ICL did not have a strong view, but ultimately supported the father’s proposal.

38. There is scant evidence that would assist in the Court coming to a more informed decision as to handover arrangements.  It is an option of last resort that children should transition from one party to the other in the precinct of a police station.  At this stage, there is insufficient evidence for the Court to give proper consideration to the mother’s more benign proposal.

39. Any order made by the Court does not prevent the parties from using their best judgement.

40. I propose to order that the children spend time with the mother from the conclusion of school on Friday to the commencement of school on Monday and each alternate weekend thereafter.  In addition, the children will spend time with the mother from the conclusion of school on the intervening Friday to 10.00 am on Saturday morning.  The handover venue will be the Suburb O Police Station unless the parties agree otherwise.

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

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

Associate:

Dated:       14 May 2021