Partos & Merritt - [2023] FedCFamC1F 307

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Partos & Merritt [2023] FedCFamC1F 307

File number(s): BRC 15338 of 2021

Judgment of: HOWARD J

Date of judgment: 20 January 2023

Catchwords: FAMILY LAW – PARENTING – Contravention Applications – Where the mother was found to have contravened orders however where it was also found that the mother did so with reasonable excuse – Where the child is now aged 16 years – Variation of earlier parenting orders – Best interests considerations.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 70NAC, 70NAE, 70NBA, Part VII

Cases cited:
Carrington & Gunby (No 2) [2013] FamCA 433

Irvin & Carr (2007) FLC 93-322

Rice & Asplund (1979) FLC 90-725

Sandler & Kerrington (2007) FLC 93-323

Division: Division 1 First Instance

Number of paragraphs: 60

Date of hearing: 19 – 20 January 2023

Place: Brisbane

Counsel for the Applicant: Mr Duplock

Solicitor for the Applicant: O’Sullivans Law Firm

Counsel for the Respondent: Ms Cullen

Solicitor for the Respondent: Jurgensen Horne Lawyers

Counsel for the Independent Children’s Lawyer: Ms Fuller

Solicitor for the Independent Children’s Lawyer: TLG Law
ORDERS

BRC 15338 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PARTOS

Applicant

AND:
MS MERRITT

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HOWARD J

DATE OF ORDER:

20 JANUARY 2023

THE COURT FINDS:
1.That the Respondent, MS MERRITT, born 1968:
(a)contravened paragraph 5(b) of the Order of 11 September 2015 on 29 October 2021, but did so with a reasonable excuse; and
(b)contravened paragraph 6(a) of the Order of 1 September 2015 and paragraph 2 of the Order of 7 April 2017 on 31 October 2021, but did so with a reasonable excuse.

THE COURT ORDERS ON A FINAL BASIS:
1.That the Application for Contravention filed by the father on 14 October 2022 is dismissed.
2.That paragraph 3 of the Order of Justice Bell made 18 March 2011 remains in force.
3.That all previous parenting orders are discharged.
4.That the mother have sole parental responsibility for the child C born 2006.
5.That the child live with the mother.
6.That the mother be and is hereby authorised, in her exercise of sole parental responsibility for the child, to make an application to seek renewal of a passport in the name of the child, without the necessity for the consent of the father, and it is requested that all officers of the Department of Foreign Affairs and Trade (the Australian Passports Office) do all acts and things necessary to facilitate the mother obtaining or renewing a passport for the child.
7.That the child spend time and communicate with the father at any time as the child may express a wish to do so.
8.That the father be at liberty to communicate with the child via the email address …@....
9.That the father is otherwise restrained from contacting the child unless invited by the child to do so.
10.That the father is restrained from contacting the mother or the child by way…

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.

Keep reading for free

Create a free CaseChat account to read Partos & Merritt and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FedCFamC1F 307
Decision Date

CaseChat Overview and Summary

In the case of Partos & Merritt, the Federal Circuit and Family Court of Australia, Division 1, was called upon to determine an application for contravention filed by the father, Mr Partos, against the mother, Ms Merritt. The matter involved allegations that Ms Merritt contravened specific parenting orders concerning their child, C, who was born in 2006. The Court was required to decide whether Ms Merritt had contravened the parenting orders and, if so, whether she had a reasonable excuse for doing so. Additionally, the Court needed to consider whether there had been a significant change in circumstances warranting a variation of the existing parenting orders. The Court found that Ms Merritt had indeed contravened the orders but did so with reasonable excuse, given the significant opposition expressed by C to spending time with his father. The Court also determined that there had been a significant change in circumstances, justifying the variation of the earlier parenting orders. In light of C's strong opposition to spending time with his father and communicating with him, the Court held that it was in C's best interests to grant sole parental responsibility to Ms Merritt and to allow C to live with her. The Court further ordered that Ms Merritt be authorised to apply for a passport for C without the father's consent and restrained the father from contacting C in various ways, including discussing certain topics and attending specific locations. The Court dismissed the father's application for contravention and discharged all previous parenting orders except for a specific order made by Justice Bell in 2011, which continued to restrain the parents from instituting further proceedings without leave of the Court or a Judge.

Orders