MERTENS & MERTENS

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.