Mertens & Mertens

Case [2016] FamCAFC 136

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

  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.

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
Decision Date

CaseChat Overview and Summary

In the case of Mertens & Mertens, the appeal was lodged against parenting orders made by the Family Court of Australia. The dispute centred on the safety of the child in the care of the father, with the trial judge determining that the father posed an unacceptable risk to the child. Consequently, the trial judge issued orders that the child was to have only supervised contact with the father. The father, who was self-represented during the proceedings, appealed the decision, claiming procedural unfairness due to the lack of representation. He also sought leave to subpoena additional evidence and requested an adjournment of the appeal.

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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