Crisp and Hayes

[2015] FCCA 315

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRISP & HAYES [2015] FCCA 315

Catchwords:
FAMILY LAW – Children – parenting orders – application in a case – application for orders that parties should enrol the child at [P] Public School – where final parenting orders have been made – where Court is functus officio – application dismissed.

Legislation:
Family Law Act 1975 (Cth)

Cases cited:
Crisp & Hayes [2014] FCCA 3029

Applicant: MR CRISP

Respondent: MS HAYES

File Number: SYC 747 of 2013

Judgment of: Judge Scarlett

Hearing date: 29 January 2015

Date of Last Submission: 29 January 2015

Delivered at: Sydney

Delivered on: 29 January 2015

REPRESENTATION

Counsel for the Applicant: Ms Christie

Solicitors for the Applicant: Diamond Conway Lawyers

Solicitor for the Respondent: Ms McKinnon

Solicitors for the Respondent: Slater & Gordon

Solicitor for the Independent Children’s Lawyer: Ms Webber

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. The application in a case filed on 28 January 2015 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Crisp & Hayes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 747 of 2013

MR CRISP

Applicant

And

MS HAYES

Respondent

REASONS FOR JUDGMENT

1. There is an Application in a Case in this matter relating to parenting matters.  I must say that the Application deals with one of the very matters that I hoped to ensure would not happen when I handed a decision on 19^th December 2014 (Crisp & Hayes[1]).

   [1] [2014] FCCA 3029

Order Sought 

1. The Application in the Case has been brought in circumstances of some urgency, and it seeks the following order, which I quote:

   That both parents do all things necessary to cause the child, [X], born [omitted] 2008, to be enrolled at [P] Public School.

2. The Application is supported by an affidavit of the Applicant’s solicitor, Heather Margaret McKinnon, which was sworn on 27^th January 2015.  Essentially, Ms McKinnon, in her affidavit refers to the orders, and then annexes copies of all of the correspondence relevant to the issue between her firm and the father’s solicitors. 

3. I am quite satisfied that all relevant correspondence has been included.  Ms Webber, who appeared for the Independent Children’s Lawyer this morning, referred me to matters in the correspondence and reaffirmed the view that I took earlier this morning that I should not decide this issue until I had read the affidavit and its annexures thoroughly.

4. I am quite satisfied that the course urged on me by Ms Webber was the proper course, and I have done so. 

5. The factual situation is that there have been disagreements between the parties about what school this little girl is to attend now that she has relocated back to Sydney, and there is a discussion about, in the correspondence, about various schools proposed, distances and agreements and disagreements about what should transpire. 

6. Ms Christie for the Father, who is the Respondent to this application, submits that the application should be dismissed because the Court is functus officio in respect of parenting proceedings.

7. As I commented in the decision, the three hearing days allocated were fully taken up by the parenting proceedings.  Indeed, the parties entered into consent orders on the final day, 12^th December 2014.  I did, however, hear submissions from counsel for the Father, counsel for the Mother and counsel for the Independent Children’s Lawyer about the very issue of what school should the child attend upon her taking up residence in Sydney and how that should be decided.

8. I heard submissions, and I made a point of handing down orders on Friday, 19^th December 2014, which was the last day that I sat in the year 2014.  I indicated to the parties that, as those orders were amongst a number of decisions which I handed down on that day, I would release reasons for that decision as soon as possible, and, indeed, the search of my own records indicates that the reasons were completed on the evening of 30^th December 2014, and they were sent out to the parties’ solicitors early in the year.

9. If the Court is not functus officio, the alternative view would be that the Application in a Case would be intended to enforce the orders made on 19^th December 2014.  That is not a view taken by the Father’s counsel, and I have considered that matter. 

10. On the face of it, the Application does not look as if it is an application to enforce the orders.  It appears to be a variation of the earlier orders, but what the Court needs to do is to decide the Father’s application that the Court is functus officio in respect of parenting proceedings, in other words, that the orders made on 19^th December 2014 were final orders which, in conjunction with the consent orders made on 12^th December 2014, finalised the parenting proceedings.

Whether the Court is functus officio

1. Functus officio, of course, can be loosely translated as “having discharged his office”, and it is a term used to indicate that the Court has resolved the matter and that it should not be reopened.  I heard in submissions from counsel for the Father some quotes from the transcript of the proceedings, the submissions, in fact, made by counsel for the parties, including counsel for the Independent Children’s Lawyer.  In my view, with respect, for a Court to decide whether or not it is functus officio in respect of subject matter, it is usually not appropriate for the Court to go behind the judgment itself.

2. What must be considered are the orders that the Court made and also the reasons for that decision.  The orders that were made on 19^th December 2014 provided, in summary, that the parties were to enrol the child at such public school as they agreed within 15 kilometres of the Father’s present residence at [suburb omitted].  Orders 2 and 3 set out a mechanism whereby the Mother would advise the Father of schools that she considered by Friday 9^th January and that Father would advise the Mother by Friday, 16^th January 2015 of any schools that he selected from those provided by the mother or any alternate school within 15 kilometres.  Order 4 provides, and I quote:

   In the event that the parties are unable to agree on a choice of school by 23 January 2015, then the parties are to do all things necessary to enrol the child, [X], at the [C] Public School, to commence school at the beginning of the first school term in 2015.

3. What is put on behalf of the Mother is that the Father had not complied with the mechanism proposed by the Court in the orders and that in doing what she had done to enrol the child at [P] Public School, the Mother was acting within the spirit and the meaning of the orders, that there was no default on the Mother’s part, but there was default on the Father’s part.  The correspondence between the parties’ solicitors enlivens that discussion.  As I said, what the Court has to look at is the orders that were made and the reasons for the orders that were made.

4. The orders in the judgment consisted of some 31 paragraphs.  29 of them related to parenting proceedings.  Paragraph 30 related to any application that the Independent Children’s Lawyer might seek to make for an order for costs in which I said, quote:

   The Independent Children’s Lawyer has indicated that she will be seeking an order for costs once the parenting proceedings have completed.  Noting the time of year, I’m prepared to allow some latitude for that application to be made.

5. Paragraph 31 comes under the heading “property proceedings”.  As I said, quote:

   The three hearing days allocated were fully taken up by the parenting proceedings, and the property issues between the parties have not yet been resolved.  I will allow time in the New Year for the property issues to be finalised if the parties are unable to reach agreement.

6. When I handed out the orders on the 19^th, I set out a mechanism by which the school should be selected, and order 4 contained the, if you like, the default provision that in the event that the parties were unable to agree on a choice of school by 23^rd January 2015, then a particular school was ordered.  It is noteworthy that paragraph 5, order 5 of those orders says, and I quote:

   The property application is adjourned to 29 January 2015 at 10 am for further mention before Judge Scarlett in court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney, New South Wales, 2000.

7. I get back to the point that I have made twice in these reasons.  In order to ascertain whether a Court is functus officio, the proper procedure is to look at the judgment itself, the orders that were made and the reasons for the orders.  In my view, it is clear that the orders made on 19^th December 2014 were made to finalise the parenting proceedings between the parties.  I am not satisfied that the application in the case in some way is an application to enforce the orders.  If it is suggested that the Father in some way contravened the orders in his approach to selection of the school, then the appropriate procedure, in my view, would have been for a contravention application to have been brought.

8. That is not, however, the situation.  In my view, final orders in the parenting proceedings were made by consent on 12^th December in respect of all but the school issue, and final orders were made in respect of the school issue on 19^th December 2014.  It follows that in respect of parenting proceedings, the Court is functus officio.  The application in a case filed on 28^th January 2015 is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  29 January 2015