Crisp and Hayes - [2014] FCCA 1681

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRISP & HAYES

[2014] FCCA 1681

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – whether mother should relocate child’s residence back to Sydney from [C] – Court Expert Report considered – where Court Expert gave oral evidence in interim hearing – Court not bound to follow recommendation of Court Expert.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Crisp & Hayes [2013] FMCAfam 254
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Hall & Hall (1979) 5 Fam LR 609; FLC 90-713

Applicant:

MR CRISP

Respondent:

MS HAYES

File Number:

SYC 747 of 2013

Judgment of:

Judge Scarlett

Hearing date:

16 December 2013

Date of Last Submission:

16 December 2013

Delivered at:

Sydney

Delivered on:

31 July 2014

REPRESENTATION

Counsel for the Applicant:

Ms Clifford

Solicitors for the Applicant:

Diamond Conway

Counsel for the Respondent:

Mr Theobald

Solicitors for the Respondent:

Slater & Gordon

Independent Children's Lawyer:

Ms Smith

Solicitors for the Independent Children's Lawyer:

Legal Aid New South Wales

ORDERS

UNTIL FURTHER ORDER

All earlier parenting Orders are discharged.
The parties are to have equal shared parental responsibility for the child [X] born [omitted] 2008.
The child [X] is to live with the Mother.
The Mother is restrained from changing the child’s residence from the [C] area without the written consent of the father or Order of this Court.
The child is to spend time with the Father as follows:
(a)During school term time:
(i)On a six weekend cycle on alternate weekends from 9:00am Saturday to 5:00pm on Sunday with the first two such weekends to be in Sydney and third weekend to be in [C];
(ii)In [C] for up to two (2) consecutive nights on weekends or weekdays provided that the Father gives the Mother not less than four (4) days’ notice of his intention to spend time with the child and the amount of time that he intends to spend with her.
(b)During school holiday time:
(i)For the school holidays in April, June/July and September for a period commencing on the first Saturday of the holidays and concluding on the middle Sunday of the holidays with the Father to collect and deliver the child to and from the Mother’s residence at times that coincide with the Father’s booked flights and as advised to the Mother two (2) weeks prior to the commencement of the holidays;
(ii)From 2 January to Australia Day 26 January in each year with the Father to collect and deliver the child to and from the Mother’s residence at times that coincide with the Father’s booked flights and as advised to the Mother two (2) weeks prior to the commencement of the holidays.
(c)For special occasions:
(i)For three (3) hours on the child’s birthday in each year from 3:30pm to 6:30pm if the birthday falls on a day when the child is not otherwise in his care;
(ii)On the weekend that includes Father’s…

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 [2014] FCCA 1681
Case: [2014] FCCA 1681
Decision Date: 31 July 2014

CaseChat Overview and Summary

In the matter of *Crisp and Hayes*, Judge Scarlett of the Federal Circuit and Family Court of Australia considered parenting orders concerning a child, [X], born in 2008. The dispute involved the arrangements for the child's residence, time spent with each parent, and parental responsibility.

The court was required to determine the most appropriate parenting orders for the child, including whether to grant equal shared parental responsibility, where the child would live, and the specific time the child would spend with each parent. Additionally, the court addressed the geographical restrictions on the child's residence and the communication arrangements between the parents and the child. The court also considered orders restraining the parties from discussing the proceedings with the child or criticising each other in the child's presence.

Judge Scarlett discharged all earlier parenting orders and made new orders. The court ordered equal shared parental responsibility for the child, with the child to live with the Mother. The Mother was restrained from changing the child's residence from the [C] area without the father's consent or a court order. Specific time arrangements were detailed for the Father, including alternate weekends, weekday time with notice, and significant periods during school holidays. The orders also included provisions for special occasions, liberal communication between parents and the child, and prohibitions against discussing the proceedings or criticising each other in the child's presence. The final hearing of the application for final orders was to be expedited.

Orders

Orders of the court

UNTIL FURTHER ORDER

All earlier parenting Orders are discharged.

The parties are to have equal shared parental responsibility for the child [X] born [omitted] 2008.

The child [X] is to live with the Mother.

The Mother is restrained from changing the child’s residence from the [C] area without the written consent of the father or Order of this Court.

The child is to spend time with the Father as follows:

(a) During school term time:

(i) On a six weekend cycle on alternate weekends from 9:00am Saturday to 5:00pm on Sunday with the first two such weekends to be in Sydney and third weekend to be in [C];

(ii) In [C] for up to two (2) consecutive nights on weekends or weekdays provided that the Father gives the Mother not less than four (4) days’ notice of his intention to spend time with the child and the amount of time that he intends to spend with her.

(b) During school holiday time:

(i) For the school holidays in April, June/July and September for a period commencing on the first Saturday of the holidays and concluding on the middle Sunday of the holidays with the Father to collect and deliver the child to and from the Mother’s residence at times that coincide with the Father’s booked flights and as advised to the Mother two (2) weeks prior to the commencement of the holidays;

(ii) From 2 January to Australia Day 26 January in each year with the Father to collect and deliver the child to and from the Mother’s residence at times that coincide with the Father’s booked flights and as advised to the Mother two (2) weeks prior to the commencement of the holidays.

(i) For three (3) hours on the child’s birthday in each year from 3:30pm to 6:30pm if the birthday falls on a day when the child is not otherwise in his care;

(ii) On the weekend that includes Father’s Day from 12 noon on Saturday to 3:00pm on Sunday if that day falls on a day when the child is not otherwise in his care; and

(iii) At any school activity to which parents are usually invited.

(d) At such other times as the parties may agree in writing between themselves.

The Father and the Mother are to have liberal telephone and Skype communication with the child when she is in the care of the other parent.

The parties are restrained from discussing these proceedings with the child or in her presence or hearing.

The parties are restrained from criticising or denigrating each other in the presence or hearing of the child or permitting third parties to do so.

The Father has leave to provide a copy of these Orders to any school that the child attends.

10.

The final hearing of the Application for final orders is to be expedited.

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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