(No 2)

Case [2023] FedCFamC2F 592 19 May 2023

No judgment structure available for this case.

Type to search within this case.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Merritt & Bruckner (No 2) [2023] FedCFamC2F 592

File number(s): ADC 1267 of 2016

Judgment of: JUDGE BROWN

Date of judgment: 19 May 2023

Catchwords: FAMILY LAW – parenting proceedings concerning children aged 11 & 9 – parties have been engaged in litigation since 2016 – proceedings finalised by way of final order made in Division 1 of the Court in March of 2022 following lengthy contested hearing – trial judge determined that the children concerned should live with the father and he be conferred with sole parental responsibility – father subsequently recommenced proceedings alleging mother had withheld the children from him in contravention of the orders – original trial judge has recused himself – recovery order subsequently issued – children subsequently returned to father in controversial circumstances – older child has returned to mother – further application for recovery order – issues of child abuse – involvement of Department for Child Protection – application to disqualify Independent Children’s Lawyer – nature of interim hearing – assessment of risk – assessment of views of children – weight to be given to children’s view – best interests

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61DA, 65DAA, 68L, 68LA, 91B

Cases cited:
B & B (1988) FLC 91- 957

Deiter & Deiter [2011] FamCAFC 82

Dickens & Dickens [2016] FamCA 115

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 92-286

Isles & Nelissen [2021] FedCFamC1F 295

Jurchenko & Foster (2014) 51 Fam LR 588

Kingley & Arndale (No 2) [2010] FamCA 968

Knibbs & Knibbs [2009] FamCA 840

Lloyd & Lloyd & the Child Representative (2000) FLC 93-045

M & M (1988) FLC 91-979

Marvel & Marvel (No 2) [2010] FamCAFC 101

Mazorski v Albright (2007) 37 Fam LR 518

Merritt & Bruckner (No 2) [2022] FedCFamC1F 893

Merritt & Bruckner (No 4) [2022] FedCFamC1F 1067

Merritt & Bruckner [2023] FedCFamC2F 208

MRR v GR (2010) 240 CLR 461

Rice & Asplund (1979) FLC 90-725

Slater & Light [2013] FamCAFC 4

T & L (2000) 27 Fam LR 40

W & W (abuse allegations: unacceptable risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 255

Date of hearing: 5 May 2023

Place: Adelaide

Applicant: Appeared in person

Respondent: Appeared in person

Solicitor for the Independent Children's Lawyer: Ms Shorter, Shorter Legal
ORDERS

ADC 1267 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BRUCKNER

Applicant

AND:
MR MERRITT

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BROWN

DATE OF ORDER:

19 MAY 2023

THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1.The oral application made by the mother for the dismissal of the Independent Children’s Lawyer is dismissed.
2.The children of the relationship X born in 2012 and Y born in 2014 (‘the children’) live with the father and he have sole parental responsibility for each child.
3.The children communicate with the mother by telephone/FaceTime on…

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 (No 2)

Details

AGLC: (No 2) [2023] FedCFamC2F 592
Case: [2023] FedCFamC2F 592
Decision Date

CaseChat Overview and Summary

The case of Merritt and Bruckner (No 2) involves ongoing litigation between the parents of two children, X and Y, concerning their care arrangements. The case has been ongoing since 2016 and has involved numerous judicial officers, including Berman J, who made a final order in March 2022, determining that the children should live with their father, Mr Merritt, and he should have sole parental responsibility. Mr Merritt subsequently recommenced proceedings, alleging that Ms Bruckner, the children's mother, had withheld the children from him in contravention of the orders. The case came before Judge Brown in an interim hearing on 5 May 2023. The primary issues in the case were whether the children should live with their father or their mother and the nature of any contact between the children and their mother. The court had to consider the views of the children, the evidence of various experts, and the risk of abuse to the children. The court also had to consider whether the Independent Children's Lawyer should be disqualified. In his reasons for judgment, Judge Brown found that the evidence indicated a significant risk that the children would be deprived of the benefits of having a meaningful relationship with their father and be exposed to abuse if orders were made as sought by the mother. The court found that the views of the children were more reflective of the extraordinary level of conflict between their parents, to which they had long been exposed, and the influence of the mother, who had gone to extreme lengths to restrict the children having a meaningful relationship with their father. The court found that the mother had obstructed the orders of the court and was not able to abide by them, and the evidence did not support the mother's allegations of abuse by the father. The court made interim orders that the children should live with their father and he should have sole parental responsibility. The children were to have limited electronic contact with their mother, pending the production of a further family report. The court also dismissed the mother's application to disqualify the Independent Children's Lawyer. The orders are interim and capable of being reversed at a later stage, depending on the evidence that comes to light.

Orders