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

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

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 (No. 3)

Details

AGLC: Merritt & Bruckner (No. 3) [2021] FamCA 304
Case: [2021] FamCA 304
Decision Date: 14 May 2021

CaseChat Overview and Summary

In *Merritt & Bruckner (No. 3)*, Berman J of the Family Court of Australia considered interim parenting arrangements for two children, X and Y. The proceedings were part-heard, and there had been a recent significant change in the children's interim care, with them living with the father. The mother sought orders for the children to live with her and spend time with the father, while the father sought for the children to remain in his primary care with limited time spent with the mother. Both parties agreed that the children should maintain a meaningful relationship with each parent.

The central legal issues before the court were to determine the interim parenting arrangements that would best serve the children's interests, particularly in light of their expressed upset at not being able to spend time with their mother. The court was required to consider the primary and additional considerations outlined in section 60CC of the *Family Law Act 1975* (Cth), including the children's right to a meaningful relationship with both parents and the impact of any further changes to their living arrangements. The court also had to address the parties' ongoing disagreement regarding handover arrangements.

Berman J reasoned that while the father had not yet had an opportunity to formally respond to the mother's recent submissions, the Independent Children's Lawyer's (ICL) confirmation that the children were upset about not seeing their mother was a significant factor. The court acknowledged the complexity of the situation, including the protracted nature of the litigation and the recent shift in interim care. Despite the father's proposal for the children to live primarily with him, his final orders contemplated significant time with the mother, indicating an acceptance that the children should spend time with her. The court found that the children's best interests would be served by resuming time with their mother, rather than another disruptive change in their primary care. The mother's concession regarding the importance of court orders and compliance was also noted as a positive development. The court also identified the need for a different handover venue due to ongoing issues between the parties, ultimately favouring the father's proposal for handover at the Suburb O Police Station.

Consequently, Berman J ordered that the previous interim orders be discharged. The children were to live with the father, but also live with the mother on alternate weekends from Friday school conclusion to Monday school commencement, and on alternate Fridays from school conclusion to Saturday 10:00 am, commencing from specified dates. Handover arrangements were to occur at the Suburb O Police Station or another mutually agreed location.

Orders

Orders of the court

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

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

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