CRISP & CRISP - [2020] FamCA 7

FAMILY COURT OF AUSTRALIA

CRISP & CRISP

[2020] FamCA 7

FAMILY LAW – CHILDREN – Equal time – High conflict case – Where older children spend no time with the father – Where Orders made for the younger children’s time with the father to gradually increase to equal time – Need to protect children from further parental conflict.

FAMILY LAW – PROPERTY – Small pool – Superannuation Splitting Order.

Family Law Act 1975 (Cth) ss 60CC, 75(2), 79

Ferraro & Ferraro [1992] FamCA 64
Goode & Goode [2006] FamCA 1346
Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-145
Kannis & Kannis [2002] FamCA 1150
Weir & Weir [1992] FamCA 69

APPLICANT:

Ms Crisp

RESPONDENT:

Mr Crisp

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

SYC

3877

2015

DATE DELIVERED:

17 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

11, 12, 13, 14 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self-Represented Litigant

COUNSEL FOR THE RESPONDENT:

Mr Ford

SOLICITOR FOR THE RESPONDENT:

Owen Hodge Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

Orders

That the parents have equal shared parental responsibility for the children W born … 2004, X born … 2006, Y born … 2008 and Z born … 2011.
That Y and Z continue to spend time with their father during the school term from after school Thursday and to the commencement of school Monday morning.
Commencing the first week of the second term of the school year in 2020 the children spend time with the father from after school Thursday to the commencement of school Friday morning in week one and from after school Thursday to the commencement of school Monday morning in week 2.
Commencing the second week of the second term in the school year 2021 the children’s time with their father to extend from after school Thursday until the commencement of school Tuesday morning in week two.
Commencing the first week of the second term in the school year 2022, the children will spend equal time with their parents as agreed and, if not agreed:
(a)Commencing in week one, with the father from after school Thursday to the commencement of school the following Thursday morning; and
(b)In week two, with the mother from the cessation of school Thursday to the commencement of school the following Thursday morning.
In relation to the 2020 long term school holiday and each even year thereafter, the children’s time with their father commences 9 am the day after the last day of school in term 4 until 5 pm 11 January 2021 and with their mother from 5pm on 11 January until the children’s time with their father resumes in accordance with Orders 3, 4 and 5 herein, or as otherwise agreed.
In relation to the 2021 long term school holiday and each odd numbered year thereafter, the children’s time with their mother commences 9…

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 & CRISP

Details

AGLC: CRISP & CRISP [2020] FamCA 7
Case: [2020] FamCA 7
Decision Date: 17 January 2020

CaseChat Overview and Summary

In the matter of CRISP & CRISP, Henderson J considered disputes between the parents concerning their four children, born between 2004 and 2011, and their property settlement. The children's living arrangements were a central focus, particularly given the high conflict between the parents and the fact that the older children were not spending any time with their father. The court also addressed the division of a small property pool, including a superannuation splitting order.

The primary legal issues before the court were how to establish a parenting arrangement that would serve the best interests of the children, specifically addressing the gradual reintroduction of the father into the younger children's lives with a view to achieving equal time, while also protecting all the children from ongoing parental conflict. Additionally, the court was required to determine the appropriate division of the parties' limited financial resources, including the allocation of superannuation interests.

Henderson J reasoned that a phased approach to increasing the children's time with their father was necessary to manage the high conflict and ensure the children's well-being. The court made orders for equal shared parental responsibility and a progressive increase in the younger children's time with the father, culminating in equal time by the second term of the school year in 2022. These orders included specific arrangements for school terms and long-term holidays, with provisions for the allocation of costs associated with the new school year. In relation to property, the court ordered the husband to pay a sum of $34,500 to the wife and made a superannuation splitting order, allocating a base amount of $50,000 from the husband's superannuation fund to the wife. Costs orders were also made against both parents.

Orders

Orders of the court

That the parents have equal shared parental responsibility for the children W born … 2004, X born … 2006, Y born … 2008 and Z born … 2011.

That Y and Z continue to spend time with their father during the school term from after school Thursday and to the commencement of school Monday morning.

Commencing the first week of the second term of the school year in 2020 the children spend time with the father from after school Thursday to the commencement of school Friday morning in week one and from after school Thursday to the commencement of school Monday morning in week 2.

Commencing the second week of the second term in the school year 2021 the children’s time with their father to extend from after school Thursday until the commencement of school Tuesday morning in week two.

Commencing the first week of the second term in the school year 2022, the children will spend equal time with their parents as agreed and, if not agreed:

(a) Commencing in week one, with the father from after school Thursday to the commencement of school the following Thursday morning; and

(b) In week two, with the mother from the cessation of school Thursday to the commencement of school the following Thursday morning.

In relation to the 2020 long term school holiday and each even year thereafter, the children’s time with their father commences 9 am the day after the last day of school in term 4 until 5 pm 11 January 2021 and with their mother from 5pm on 11 January until the children’s time with their father resumes in accordance with Orders 3, 4 and 5 herein, or as otherwise agreed.

In relation to the 2021 long term school holiday and each odd numbered year thereafter, the children’s time with their mother commences 9 am the day after the last day of school in term 4 until 5 pm 11 January 2022 and with their father from 5pm on 11 January until the children’s time with their father resumes in accordance with Orders 4 and 5 herein or as otherwise agreed.

That the parent who has the children for the second half of the Christmas holidays is the parent that will be responsible to outfit the children for the new school year and will bear any cost associated therewith.

Property Orders

That the husband pay the wife the sum of $34,500 within 90 days of today’s date.

10.

That in relation to the husband’s interest in his Australian Super Fund (“the Fund”):

(a) A base amount of FIFTY THOUSAND ($50,000) is allocated, as required by s 90XT(4) of the Family Law Act 1975, to the wife, Ms Crisp, out of the interest of the husband, Mr Crisp, member number: …30, in the Fund.

(b) In accordance with section 90XT(1)(a) of the Family Law Act 1975, the Trustee of the Fund (“the Trustee”):

(i) Creates an entitlement on the part of the wife to be paid into her nominated superannuation fund in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

(ii) The husband’s entitlement in the Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) is correspondingly reduced;

(iii) Whenever the Trustee makes a splittable payment out of the husband’s interest in the Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 12 of this Order in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and

(iv) Orders effect from the operative time and the operative time is four business days after a certified copy of the sealed Orders are served on the Trustee.

11.

That the father is to pay the sum of $4,990 to the Legal Aid Commission, and the mother $6,569, by way of costs, within 90 days of the date of these Orders.

12.

The Order appointing the Independent Children’s Lawyer is discharged, pending any Appeal of this matter.

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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