MERRITT & MERRITT - [2018] FamCA 1107

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

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…

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 & MERRITT

Details

AGLC: MERRITT & MERRITT [2018] FamCA 1107
Case: [2018] FamCA 1107
Decision Date: 19 December 2018

CaseChat Overview and Summary

The parties in this matter were Merritt & Merritt, and the dispute concerned an application for an order for possession of a property. The application was heard by Carew J in the Supreme Court of Queensland.

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