CANH & CANH - [2020] FamCA 882

FAMILY COURT OF AUSTRALIA

CANH & CANH [2020] FamCA 882

FAMILY LAW – CHILDREN – Interim parenting orders – Where interim parenting orders previously made – Where the mother is experiencing financial distress due to the father’s alleged failure to meet his spousal maintenance obligations – Where the mother proposes to relocate with the children to take up gainful employment – Where the relocation would entail changing the children’s school enrolment – Where the father’s Response to an Application in a Case is summarily dismissed but his evidence is still relevant to his defence of the mother’s application – Where the father opposes the mother’s relocation with the children and any change to the children’s schools – Where the mother submitted her relocation with the children will not affect the time the children spend with the father under the current interim parenting orders – Where there is no need to make an order allowing the mother to relocate – Ordered the mother be allocated sole parental responsibility to decide the schools at which the children are to be enrolled.

FAMILY LAW – PROPERTY – SINGLE EXPERT WITNESS – Where previous orders were made appointing single expert witnesses to value different assets owned by the parties – Where a single expert witness has withdrawn – Where the mother seeks appointment of a substitute single expert witness – Where the father opposes appointment of the single expert witness proposed by the mother – Where existing orders require the parties to jointly instruct the singe expert witnesses – Where the parties have been unable to cooperate sufficiently well to procure the expert evidence needed for trial – Ordered the single expert nominated by the mother be appointed – Ordered the mother be vested with responsibility for instructing the single experts.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) Pts VII, VIII, ss 61C, 61D, 61DA, 69ZL, 114

Family Law Rules 2004 (Cth) r 19.08

AMS v AIF (1999) 199 CLR 160
Franklyn & Franklyn [2019] FamCAFC 256
Gadde & Gadde [2019] FamCAFC 116
Sampson v Hartnett (No.10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Zanda & Zanda (2014) FLC 93-607

APPLICANT: Ms Canh

RESPONDENT: Mr Canh

FILE NUMBER: NCC 2413 of 2016

DATE DELIVERED: 18 September 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 18 September 2020
REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms K. Fielden, Fielden & Associates

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable
Orders
PENDING FURTHER ORDER, IT IS ORDERED THAT
1.The mother shall have sole parental responsibility in respect of decisions related to the school at which the following children are enrolled:
a)X, born … 2011; and
b)Y, born … 2013.

2.Order 8 made on 15 June 2018 is discharged upon the mother notifying the father in writing of her relocation of the children’s residence to the northern suburbs of Sydney and, in lieu thereof, the parties shall then…

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.

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Details

AGLC: CANH & CANH [2020] FamCA 882
Case: [2020] FamCA 882
Decision Date: 18 September 2020

CaseChat Overview and Summary

In the Family Court of Australia, Austin J considered applications by a mother and father concerning their children and property. The mother sought to relocate with the children to take up employment, which would involve changing their school enrolment. She contended this relocation would not impact the existing interim parenting orders regarding the children's time with the father. The father opposed the relocation and any changes to the children's schooling. Separately, the parties were involved in property proceedings where previous orders had appointed single expert witnesses to value assets. One of these experts had withdrawn, and the mother sought to appoint a substitute, which the father opposed. The court noted the parties' ongoing difficulties in cooperating to obtain expert evidence.

The primary legal issues before the court were whether to grant the mother sole parental responsibility for decisions regarding the children's school enrolment and whether to appoint a substitute single expert witness in the property proceedings. The court also had to determine the implications of the mother's proposed relocation on the existing interim parenting orders and how to facilitate the necessary expert valuations in the property dispute, given the parties' lack of cooperation.

Regarding the children, the court reasoned that while the mother proposed to relocate, there was no immediate need to make a specific order permitting the relocation itself, as the existing interim orders could be adapted. However, to resolve the immediate dispute over schooling, the court exercised its power to allocate sole parental responsibility to the mother for decisions concerning the children's school enrolment. In the property proceedings, the court found it necessary to appoint a substitute single expert witness, nominating the one proposed by the mother, and vested the mother with the responsibility for instructing the single experts to overcome the parties' inability to cooperate. The court also varied the existing interim parenting orders to reflect the children's potential relocation and to adjust the exchange arrangements between the parties.

The court ordered that the mother have sole parental responsibility for decisions regarding the children's school enrolment. It also ordered that a substitute single expert witness nominated by the mother be appointed and that the mother be responsible for instructing the single experts. Existing orders were varied to reflect these changes and to adjust the children's exchange arrangements upon the mother notifying the father of her relocation. Other outstanding applications for interim relief were dismissed.

Orders

Orders of the court

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. The mother shall have sole parental responsibility in respect of decisions related to the school at which the following children are enrolled:

a) X, born … 2011; and

b) Y, born … 2013.

2. Order 8 made on 15 June 2018 is discharged upon the mother notifying the father in writing of her relocation of the children’s residence to the northern suburbs of Sydney and, in lieu thereof, the parties shall then respectively ensure the children’s exchange between them by:

a) Their collection from school whenever the children’s residence or expenditure of time with the party is to commence at or about the conclusion of school during school term;

b) Their return to school whenever the children’s residence or expenditure of time with the party is to conclude at or about the commencement of school during school term; and otherwise

c) D Area northbound on the expressway.

3. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

4. Order 1 made on 15 August 2018 is varied to substitute the appointment of Mr B for Ms C as the single expert witness.

5. Order 2 made on 15 August 2018 and Order 1(a)(1.2) made on 15 January 2020 are discharged.

6. The wife shall provide written instructions to the single expert witnesses to fulfill Order 1 made on 15 August 2018 and Order 1 made on 15 January 2020.

7. Otherwise:

a) The Application in a Case filed on 14 August 2020 is dismissed;

b) The Response to an Application in a Case filed on 18 September 2020 is dismissed; and

c) Any and all other outstanding applications for interim relief are dismissed.

NOTATIONS

A. The parties agree the orders made on 15 June 2018 should be amended under the slip rule in accordance with proposed orders 16, 17, 18 and 19 as set out within the Application in Case filed on 14 August 2020.

B. Other than as varied by these orders, the orders made on 15 June 2018 continue to operate with full force and effect.

C. The mother is at liberty to establish the children’s residence wherever she chooses provided she complies with the parenting orders made on 15 June 2018 (as amended by these orders).

D. The proceedings remain listed before the Registrar for further procedural directions on 14 October 2020.

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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