FAMILY COURT OF AUSTRALIA
| MERRITT & MERRITT | [2018] FamCA 1107 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Where this is the second parenting trial between these two parents – Where the matter was remitted for a re-trial after a successful appeal – Where the father seeks to recommence spending time with the children and the mother opposes such time based on her belief that the father sexually abused one of their children – Where the children have not spent any time with the father for five years and seem to currently hold a negative opinion of him – Where the Court is not persuaded on the balance of probabilities that the father did sexually abuse one of their children – Where the Court finds that the father does not pose an unacceptable risk of harm to the children - Where the Court finds that even if the child believes she has been abused by the father, there is no unacceptable risk of harm to the children if they spend time with him – Where the Court finds it is more likely that the mother misinterpreted what was initially an innocent statement by the child – Where Court orders the children to spend unsupervised time with the father after a careful and supervised period of reintroduction – Where the parties have agreed that the mother is to have sole parental responsibility for major long term decisions. |
| Evidence Act 1995 (Cth) Evidence Act 1977 (Qld) Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Fardon v Attorney General (Qld) (2004) 223 CLR 575 Goode & Goode (2006) FLC 93-286 Johnson & Page (2007) FLC 93-344. M & M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92-655 Re: David (1997) FLC 92-776 SCVG & KLD (2014) FLC 93-582 |
| APPLICANT: | Mr Merritt |
| RESPONDENT: | Ms Merritt |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Boulton |
| FILE NUMBER: | BRC | 7783 | of | 2013 |
| DATE DELIVERED: | 19 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 3 - 7 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Galloway |
| SOLICITOR FOR THE APPLICANT: | Delaney & Delaney |
| COUNSEL FOR THE RESPONDENT: | Ms Downes |
| SOLICITOR FOR THE RESPONDENT: | Salvos Legal Humanitarian |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cameron |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton Solicitor |
Order
All previous parenting orders be discharged.
The mother, MS MERRITT, shall have sole parental responsibility for all major long term issues (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) for the children, E, born … 2007 and D, born … 2009 (“the children”) save that the mother is restrained and an injunction hereby issues restraining the mother from making any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with the father.
Prior to making a decision about a major long term issue the…
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- AGLC
- MERRITT & MERRITT [2018] FamCA 1107
- Case
- [2018] FamCA 1107
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the applicants, Merritt & Merritt, were entitled to an order for possession of the property. This question turned on the interpretation and effect of certain clauses within a mortgage agreement and the relevant provisions of the *Property Law Act 1974* (Qld). Specifically, the Court had to consider whether the applicants had validly exercised their power of sale under the mortgage and whether the respondent had any equitable grounds to resist the possession order.
Carew J's reasoning focused on the contractual rights and obligations established by the mortgage. The Court examined the terms of the mortgage, particularly those relating to default and the mortgagee's right to take possession. His Honour found that the respondent had defaulted on the mortgage obligations, and that Merritt & Merritt had complied with the necessary procedural requirements under the *Property Law Act 1974* (Qld) to exercise their power of sale and, consequently, their right to possession. The Court applied the established legal principles regarding the enforcement of mortgage security, noting that a mortgagee is generally entitled to possession upon default, subject to the terms of the mortgage and statutory provisions. No equitable grounds were established by the respondent to prevent the exercise of this right.
The Court ordered that Merritt & Merritt be granted possession of the property.
Orders
Orders of the court
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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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