FAMILY COURT OF AUSTRALIA
| MERTENS & MERTENS | [2016] FamCAFC 136 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal against parenting orders – Where the trial judge found that the father posed an unacceptable risk to the child – Where such a finding was open on the evidence before the trial judge – Where the trial judge ordered that the child spend only supervised time with the father to avert this risk – Where the father claimed a denial of procedural fairness as he was self-represented in the proceedings – Where the trial judge assisted the father to understand and participate in the process of the hearing as a self-represented litigant – Appeal dismissed – Costs orders made. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father sought leave to issue a subpoena to adduce further evidence and that the appeal be adjourned – Where there is no indication that the evidence sought to be adduced would fall under the guidelines in CDJ & VAJ (1998) 197 CLR 172 – Where it has been two years since the orders on appeal were made – Where there was no reason given for the delay in seeking the adjournment – Where the Court found it is not necessary to do justice between the parties to grant the father’s application for adjournment – Application dismissed. |
| Family Law Act 1975 (Cth) ss 64B, 65D, 66E, 68B(2), 97(3), 114(3), 117 |
Family Law Rules 2004 (Cth) rr 1.04, 1.08, 22.39
| Aon Risk Services v Australian National University [2009] 239 CLR 175 CDJ v VAJ (1998) 197 CLR 172 Edwards v Noble (1971) 125 CLR 296 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Re F: Litigants in person guidelines (2001) FLC 93-072 |
| APPELLANT: | Mr Mertens |
| RESPONDENT: | Ms Mertens |
| INDEPENDENT CHILDREN’S LAWYER: | Grant & Co |
| FILE NUMBER: | NCC | 2009 | of | 2013 |
| APPEAL NUMBER: | EA | 97 | of | 2014 |
| DATE DELIVERED: | 22 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Kent JJ |
| HEARING DATE: | 22 July 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 July 2014 |
| LOWER COURT MNC: | [2014] FamCA 475 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Mooney |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fraser |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Grant & Co |
Orders
The Application in an Appeal be dismissed.
The appeal be dismissed.
The appellant pay the costs of the respondent and the Independent Children’s Lawyer of and incidental to the appeal as agreed and in default of agreement, as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mertens & Mertens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment…
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- Mertens & Mertens [2016] FamCAFC 136
- Case
- [2016] FamCAFC 136
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CaseChat Overview and Summary
The court had to decide two main legal issues. Firstly, whether the trial judge's findings regarding the father's unacceptable risk to the child were justified based on the evidence presented. Secondly, the court needed to consider the father's claims of procedural unfairness due to his self-representation and whether the trial judge provided adequate assistance to ensure a fair hearing. Additionally, the court examined the father's application to adduce further evidence and for an adjournment of the appeal, assessing whether such actions were warranted and necessary to achieve justice.
In dismissing the appeal, the court found that the trial judge's findings were open on the evidence, and the orders made were appropriate to protect the child. Regarding the procedural fairness claim, the court held that the trial judge had provided adequate assistance to the father as a self-represented litigant, thus ensuring a fair hearing. The court also dismissed the father's application to subpoena further evidence and for an adjournment, as there was no indication that the new evidence would fall under the criteria set out in CDJ & VAJ. The court emphasised that the delay in seeking the adjournment and the lack of justification for it further supported the dismissal of the application.
The court ordered that the appeal be dismissed and that the father pay the costs of the appeal as agreed between the parties, or assessed if an agreement could not be reached. Additionally, the application in the appeal for leave to issue a subpoena and for an adjournment was also dismissed.
Orders
Orders of the court
1.
The Application in an Appeal be dismissed.
2.
The appeal be dismissed.
3.
The appellant pay the costs of the respondent and the Independent Children’s Lawyer of and incidental to the appeal as agreed and in default of agreement, as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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