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

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

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

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.
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.
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.
I am quite satisfied that the course urged on me by Ms Webber was the proper course, and I have done so.
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.
Ms Christie for the Father, who is the Respondent…

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 Crisp and Hayes

Details

AGLC: Crisp and Hayes [2015] FCCA 315
Case: [2015] FCCA 315
Decision Date: 29 January 2015

CaseChat Overview and Summary

In the matter of *Crisp and Hayes*, heard before Judge Scarlett, the applicant sought to bring proceedings concerning a dispute that had arisen between the parties. The precise nature of the dispute is not detailed in the provided text, but the applicant initiated legal action on 28 January 2015.

The central legal issue before the court was whether the applicant's application should be permitted to proceed. This required the court to consider the merits of the application and any relevant legal tests or rules that govern the commencement and continuation of legal proceedings.

Judge Scarlett considered the application and, applying the relevant legal principles, determined that the application should be dismissed. The court's reasoning for this decision is not elaborated upon in the provided text.

Consequently, the court ordered that the application filed on 28 January 2015 be dismissed.

Orders

Orders of the court

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

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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