MERTENS & MERTENS - [2014] FamCA 475

FAMILY COURT OF AUSTRALIA

MERTENS & MERTENS

[2014] FamCA 475

FAMILY LAW – CHILDREN – Best interests – With whom the child shall live and spend time – Child has meaningful relationship with both parents – Mother is the child’s primary attachment figure – Mother alleged father posed unacceptable risk of harm to the child through subjection to sexual abuse and exposure to family violence – Magellan protocol – Unacceptable risk of harm through sexual abuse established – Child to live with the mother – Child to spend limited supervised time with the father.

FAMILY LAW – CHILDREN – Parental Responsibility – Presumption of equal shared parental responsibility does not apply – Reasonable grounds to believe that both parties engaged in past family violence – Mother to have sole parental responsibility.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Johnson v Page (2007) FLC 93-344; [2007] FamCA 1235
M v M (1988) 166 CLR 69
Michaels v Commonwealth (2002) 124 FCR 473
Nikolakis v Nikolakis [2010] FamCAFC 52
NSW Bar Association v Somosi (2001) 48 ATR 562; [2001] NSWCA 285
Rogers v The Queen (1994) 181 CLR 251
Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19; (1991) 30 FCR 578
Savage v Lunn [1998] NSWCA 203
Schorel & Schorel (1990) FLC 92-144; (1990) 99 FLR 375; (1990) 14 Fam LR 105
TransportIndustries Insurance Co Ltd v Longmuir [1997] 1 VR 125

APPLICANT:

Mr Mertens

RESPONDENT:

Ms Mertens

INDEPENDENT CHILDREN’S LAWYER:

Grant & Co

FILE NUMBER:

NCC

2009

2013

DATE DELIVERED:

3 July 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

16, 17, & 18 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr A. Mooney

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr B. Kelly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Grant & Co

Orders

All former orders relating to the child M Mertens, born … 2009, (“the child”) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the child spends supervised time with the father for not more than two hours each alternate weekend on the conditions set out hereunder.
In the event the father fails to attend two consecutive scheduled visits with the child in accordance with Order 4 hereof, unless otherwise agreed, Order 4 is discharged and each of the parties shall instead take all reasonable steps to ensure that the child spends supervised time with the father for not more than two hours on or about the first weekends of March, June, September and December each year on the conditions set out hereunder.
For…

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 MERTENS & MERTENS

Details

AGLC: MERTENS & MERTENS [2014] FamCA 475
Case: [2014] FamCA 475
Decision Date

CaseChat Overview and Summary

The parties, Mr. Mertens (applicant father) and Ms. Mertens (respondent mother), were in dispute before the Family Court of Australia concerning parenting arrangements for their young daughter. Both parents sought sole parental responsibility and the child’s residence. The father proposed significant time with the mother but argued his residential care was necessary for the child to maintain a meaningful relationship with him, alleging the mother obstructed this. The mother, however, proposed that any contact the child had with the father should always be supervised due to an alleged unacceptable risk of harm. The Independent Children’s Lawyer agreed with the mother's concerns.

The court was required to determine whether the presumption of equal shared parental responsibility applied, and if not, to make orders regarding the child's residence, time spent with each parent, and parental responsibility, considering the best interests of the child. Specifically, the court needed to assess the mother's allegations of an unacceptable risk of harm to the child, including potential sexual abuse and exposure to family violence, and the impact of these allegations on the child's relationship with both parents. The court also had to consider the father's contention that the mother was thwarting his relationship with the child.

Justice Austin found that there were reasonable grounds to believe that both parties had engaged in past family violence, which meant the presumption of equal shared parental responsibility did not apply. The court determined that an unacceptable risk of harm to the child through sexual abuse had been established, necessitating orders to restrict the nature of the child's interaction with the father. The court applied principles relating to the best interests of the child, as outlined in sections 60B and 60CC of the *Family Law Act 1975* (Cth), and considered the evidence presented, including the allegations of sexual abuse and family violence.

The court ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The child was to spend limited, supervised time with the father, not exceeding two hours each alternate weekend, with specific conditions regarding supervision, venue, and costs. Further provisions were made for communication between the child and father, including restrictions on denigration and specific terms of address. The father was also restrained from approaching within 100 metres of the mother's residence or the child's school.

Orders