CRISP & CRISP

[2016] FCCA 2042

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRISP & CRISP [2016] FCCA 2042

Catchwords:
FAMILY LAW – Children – Parenting Orders – final orders – where respondent mother does not oppose orders that the child should live with the father – best interests of the child – parental responsibility – equal shared parental responsibility – overseas travel – Family Law Watch List.

FAMILY LAW – Property – application for property settlement – just and equitable – husband’s contributions outweigh those of Wife.  

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 75, 79

Cases cited:
Crisp & Crisp [2012] FMCAfam 556
Crisp & Crisp [2013] FCCA 2028
Hickey & Hickey (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395
Stanford v Stanford (2012) 247 CLR 108; 47 Fam LR 481; FLC 93-518

Applicant: MR CRISP

Respondent: MS CRISP

File Number: SYC 1212 of 2012

Judgment of: Judge Scarlett

Hearing dates: 19-21 November 2013, 13–15 August 2014

Date of Last Submission: 21 August 2014

Delivered at: Sydney

Orders pronounced: 30 June 2015

Delivered on: 28 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Kearney SC

Solicitors for the Applicant: Newnhams Solicitors

Counsel for the Respondent: Ms Graves (until 21 November 2013), in person thereafter

Solicitors for the Respondent: David H. Cohen & Co (until August 2014)

ORDERS

1. All earlier parenting Orders are discharged.

2. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2011.

3. The child X is to live with the Father.

4. The child X is to spend time with the Mother:

   (a)Until the child commences kindergarten at primary school, on a two (2) week cycle from 9:00am on Thursday until 5:00pm on Sunday in the first week of the fortnight and from 9:00am on Thursday until 5:00pm on Friday in the second week of the fortnight;

   (b)From the time the child commences kindergarten at primary school until she commences Year 1 at primary school, during the school term on a two (2) week cycle from the conclusion of school on Friday until the commencement of school on Monday in the first week of the fortnight and from the conclusion of school on Thursday until the commencement of school on Friday in the second week of the fortnight; and

   (c)From the time that the child commences Year 1 at primary school, during the school term on a two (2) week cycle from the conclusion of school on Thursday until the commencement of school on the Monday in the first week of the fortnight and from the conclusion of school on Thursday until the commencement of school on Friday in the second week of the fortnight.

5. In addition to the periods of time referred to in Order (4) above, the child X is to spend time with the Mother:

   (a)until the child commences Year 1 at primary school, for a period of up to one (1) week during each of the NSW school holidays as agreed between the parties or in default of agreement for the first week of the school holiday period commencing at 9:00am on the Saturday immediately after the last day of the school term;

   (b)from the time that the child commences Year 1 at primary school for such periods of time as the parties may agree and in default of agreement for one half of each of the NSW school holidays PROVIDED THAT the holiday period at the conclusion of each school year will be split on the basis of alternating periods of seven (7) days with each of the father and the mother unless otherwise agreed;

   (c)for such periods as the parties may agree or in default of agreement from 9:00am until 6:00pm on:

   (i)the Mother’s birthday , namely (omitted), in each year; and

   (ii)on days that are of special significance to (nationality omitted) people;

   (d)from 5:00pm on the Saturday immediately before Mothers’ day until 6:00pm on Mothers’ Day;

   (e)in the event that time would not occur on (omitted) being the child’s birthday but for this Order, then on X’S birthday:

   (i)if the child’s birthday falls on a day when the child is not required to attend school, from 9:00am to 1:00pm; and

   (ii)if the child’s birthday falls on a school day, from immediately after school until 6:00pm;

   (f)from 9:00am on Boxing Day 26 December until 6:00pm on 27 December in each year.

6. Notwithstanding the provisions of any other Order, the child X is to spend time with the Father:

   (a)On the Father’s birthday, namely (omitted), for such period of time as the parties may agree or in default of agreement from 9:00am until 6:00pm;

   (b)From 5:00pm on the Saturday immediately before Fathers’ Day until 6:00pm on Fathers’ Day;

   (c)In the event that time would not occur on (omitted) being the child’s birthday but for this Order, then on X’S birthday:

   (i)If the child’s birthday falls on a day when the child is not required to attend school, from 9:00am to 1:00pm; and

   (ii)If the child’s birthday falls on a school day, from immediately after school until 6:00pm;

   (d)From 2:00pm on Christmas Eve 24 December until 9:00am on Boxing Day 26 December in each year.

7. For the purpose of changeover where the child goes from the care of one parent to the care of the other parent in accordance with these Orders:

   (a)The Mother is to collect the child from the Father’s residence or school as the case may be or from such other place as the parties may agree from time to time at the commencement of the Mother’s time with the child; and

   (b)Except when the child is being returned to school by the Mother at the conclusion of her time with the child, the Father or his nominee being a responsible adult known to the Mother will collect the child from the Mother’s residence or at such other place as the parties may agree at the conclusion of the Mother’s time with the child.

8. Both the Mother and the Father must ensure that the child attends any scheduled period of day-care, pre-school or school as occurs when the child is in the care of that parent.

9. The Mother and Father are each restrained from taking, causing or allowing the child to attend a consultation with any psychologist, psychiatrist or counsellor without the consent of the other party or Order of the Court except in the case of an emergency, other than Ms K, psychologist or Dr J, paediatrician or any psychologist, psychiatrist or counsellor recommended by them or by the child’s school.

10. The Father and the Mother must do all things and sign all documents necessary to ensure the child’s enrolment and attendance at (omitted) School commencing in 2017 on the basis that the Father is to be responsible for the payment of the child’s school fees and associated expenses.

11. Each of them the Father MR CRISP born (omitted) 1971 and the Mother MS CRISP born (omitted) 1983 and their servants or agents are restrained from removing or attempting to remove or causing or permitting the removal of the child X (a female) born (omitted) 2011 from the Commonwealth of Australia AND it is requested that the Australian Federal Police give effect to this Order by placing the name of the child X (a female) born (omitted) 2011on the Family Law Watch List for a period of four (4) years from the date of this Order or until further Order of the Court.

12. Upon the expiration of the period of four (4) years referred to in the immediately preceding Order and subject to any further Order of a Court of competent jurisdiction the Australian Federal Police are to cause the removal of the name of the child X from the Family Law Watch List.

13. Within one (1) month from the date of these Orders the Father is to do all acts and things and execute all documents, instruments and writings necessary to close the parties’ joint account with (omitted) Bank and pay the balance of the account to the Mother.

14. Within seven (7) days the Mother must do all acts and things and execute all documents, instruments and writings necessary to transfer to the Father or his nominee all of her right title and interest in the company (omitted) Pty Ltd including her A Class Share and resign from any position held.

15. Other than is specifically dealt with in these Orders the Father is declared to be the sole owner of all items of furniture, property, effects and superannuation in his name, possession, custody or control and to which he is or may become entitled.

16. Other than is specifically dealt with in these orders, the Mother is declared to be the sole owner of all items of furniture, property, effects and superannuation in her name, possession, custody or control and to which she is or may become entitled.

17. The Father must indemnify the Mother from and against all actions, claims, suits or demands howsoever made against the Mother in relation to or arising out of the following:

    (a)the property at Property B including the mortgages to (omitted) Bank and Mr J secured against the title to the property; and

    (b)her involvement with the company (omitted) Pty Ltd.

18. In default of any party doing all acts and things and executing all such documents, deeds and instruments necessary to give effect to these Orders a Registrar of the Federal Circuit Court of Australia at Sydney is to be appointed under the provisions of section 106A of the Family Law Act 1975 to execute all such documents, deeds or instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such documents, deeds or instruments and the defaulting party will pay the costs of the non-defaulting property arising out of the default.

19. All other outstanding applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1212 of 2012

MR CRISP

Applicant

And

MS CRISP

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Husband

   a)for parenting orders in relation to the parties’ daughter, X, who was born on (omitted) 2011; and

   b)for orders for settlement of the property issues between the parties.

Orders Sought

1. The Husband seeks orders that:

   a)The parents should equal shared parental responsibility for the child;

   b)The child should live with him;

   c)The child should spend time with the Mother during the school term over a graduated period of time:

   i)up until 30^th June 2015;

   ii)from 1^st July 2015 until the child commences kindergarten at primary school;

   iii)from the time the child commences kindergarten at primary school until she commences Year 1; and

   iv)from the time the child commences Year 1 and thereafter; and

   d)the child should also spend time with the Mother for graduated periods of time during the school holidays and on special days such as the child’s birthday and Mother’s Day;

   e)the parties should be restrained from taking the child to a psychologist or psychiatrist other than Ms K, psychologist or Dr J, paediatrician without the other party’s consent or leave of the Court;

   f)the child should attend (omitted) School commencing in 2017;

   g)the parties should be restrained from removing the child from Australia;

   h)the child’s name should be placed on the Family Law Watch List for a period of 10 years;

   i)the Husband close a joint bank account and pay the balance to the Wife;

   j)the Wife should transfer to the Husband all of her interest in the Husband’s company called (omitted) Pty Ltd;

   k)the parties should be declared the sole owners of all items of personalty in their sole name or possession;

   l)the Husband should indemnify the wife in respect of all liabilities relating to:

   i)the property at Property B NSW including mortgages on the property; and

   ii)her involvement with (omitted) Pty Ltd;

   m)if either party defaults in doing all necessary acts and signing all necessary documents a Registrar of the Court should be appointed to do so.

2. The Wife, in a written submission filed in Court on 13^th August 2014, the sixth and final day of the hearing, indicated her consent to parenting orders providing that:

   a)the parties should have equal shared parental responsibility for the child;

   b)the child should live with the Father;

   c)the parties should be restrained from taking the child to psychologists or psychiatrists except for Ms K or Dr J;

   d)the child should attend (omitted) School from 2017 onwards.

3. She opposed the other parenting orders sought.

4. With the exception of the proposed order that the Husband close the joint account with (omitted) Bank, the Wife opposed all the proposed property orders.

Background

1. The Husband was born on (omitted) 1971. He is now 44 years of age.

2. The Wife was born on (omitted) 1983. She is 33 years of age.

3. The parties differ in their accounts as to when they started living together, the Husband asserting it was in mid-2005 but the Wife claims it was not until 2006.

4. The parties were married on (omitted) 2009.

5. The parties’ child X was born on (omitted) 2011.

6. The Wife was admitted as a voluntary patient to (omitted) Hospital on 18^th November 2011 and was prescribed medication for depression. She was discharged on Christmas Eve, 24^th December 2011.

7. The parties spent a short holiday in (omitted), NSW and then returned to live at Property B with the child.

8. Early in 2012 the Husband was prescribed anti-depressant medication.

9. The parties separated on 30^th January 2012 when the Husband took the child to live with his parents until May 2012.

10. The Wife was admitted to (omitted) Hospital on 1^st February 2012 after an overdose of Valium.

11. The Wife remained in (omitted) Hospital until 7^th February 2012, when she was discharged. She went to live with her aunt.

12. The Husband commenced proceedings by filing an Application for parenting and property orders on 2^nd March 2012.

13. On 23^rd April 2012 I made Orders that:

    a)the parties should attend a Child Dispute Conference with a Family Consultant;

    b)the child was restrained from being removed from Australia;

    c)the child’s name was placed on the Family Law Watch List.

14. On 15^th June 2012, after an interim hearing that took place on 28^th May (Crisp & Crisp[1], I varied the earlier Orders and ordered that:

    a)the parties were restrained from removing the child from Australia;

    b)the child’s name was again placed on the Family Law Watch List;

    c)the parties were to have equal shared parental responsibility;

    d)the child would live with the Husband and spend time with the Wife; and

    e)Dr R, a psychiatrist, was appointed as Court Expert.

    [1] [2012] FMCAfam 556

15. The parties entered into Interim Consent Orders on 20^th September 2012 increasing the amount of time that the child was to spend with the Wife.

16. Further Orders were made by consent on 6^th February 2012 varying the amount of time that the child was to spend with the Wife and noting that the Wife planned to travel to her native (country omitted) for an estimated period of four weeks.

17. The Wife left Australia for (country omitted) on 8^th February 2013 and remained there until 5^th March 2013.

18. During this time the Husband was admitted to the (omitted) Clinic on 23^rd February for mood disturbance and remained as an inpatient until he was discharged on 5^th March.

19. The Wife again departed Australia for (country omitted) on 28^th May and did not return until 15^th October 2013.

20. A further interim hearing took place on 21^st November 2013 and I made further Orders on 29^th November 2013 (Crisp & Crisp[2]), consequent upon the Wife’s return from (country omitted).

    [2] [2013] FCCA 2028

21. The parties were divorced by Order of this Court on 5^th June 2014. The Order became effective on 6^th July 2014.

Evidence

1. The Husband relied on the following documents:

   a)his Financial Statement of 8^th November 2012;

   b)his further Financial Statement of 5^th August 2014;

   c)his affidavit of 8^th November 2013;

   d)his affidavit of 5^th August 2014;

   e)his affidavit of 12^th August 2014;

   f)the affidavit of Mr J (the paternal grandfather) of 8^th November 2013; and

   g)the affidavit of Dr M, a psychiatrist, of 6^th November 2013.

2. The Wife relied on the following documents:

   a)her financial statement of 11^th November 2013;

   b)her affidavit of 6^th February 2013; and

   c)her affidavit of 11^th November 2013.             

3. The Husband gave oral evidence in November 2013 and was cross-examined by Ms Graves of Counsel for the Wife.

4. Dr M and Mr J gave oral evidence in August 2014 and were cross-examined by the Wife, who by that stage was no longer represented.

5. The Wife gave oral evidence and was cross-examined by Ms E of Senior Counsel. 

Applications for Parenting Orders

1. The Family Law Act 1975 (Cth) at s.60CA requires the Court to regard the best interests of the child as the paramount consideration. The Court must also have regard to the provisions of ss. 60B, 60CC, 61DA and 65DAA of the Act.

2. All of those matters have been considered so far as they are relevant.

Parenting Orders

1. I have read the expert report of Dr R of 13^thAugust 2012 and the Family Report of Ms A of 25^th July 2014. The position of the wife seems to have declined over the period of two years.

2. Dr R recommended that:

   a)the parents should have equal shared parental responsibility for the child;

   b)the Mother’s contact time with the child be unsupervised;

   c)the residence of the child should be shared equally between the parents; and

   d)the child should remain on the Watch List.

3. In July 2014 the Family Consultant, Ms A, recommended that:

   a)the parties should have equal shared parental responsibility;

   b)the child should live with the Father;

   c)the child should spend time with the Mother in a graduated program, up until the child commences Year 1 at primary school.

4. The Family Consultant reported that the Husband had consistently had a clear focus on providing X with stability and safety but may at times have been overly cautious and excluding the Wife. Ms A, in considering the Mother’s attributes, stated:

   However, the disruption that Ms Crisp’s actions have created for X in terms of her care arrangements and her relationship with her mother is an important consideration when determining future parenting arrangements.[3]

   [3] Family Report 24.7.2014 page 22 at [44]

5. The proposal by the Husband accords very strongly with the parenting orders recommended by the Family Consultant in the Family Report. They appear to me to be in the child’s best interests.

6. There is an agreement between the parents about equal shared parental responsibility.

7. Neither parent proposes an equal shared care arrangement (s.65DAA(1)), and whilst the Husband’s proposal initially falls short of substantial and significant time with the Mother, I am satisfied that the best interests of the child will best be met by making orders in accordance with the Family Consultant’s recommendations.   

The Proper Approach to determination of a Property Application

1. The Court must begin by considering the matters set out by the High Court of Australia in Stanford v Stanford[4], which provides at [37]-[40] that the Court must consider whether it is just and equitable to make  a property order by;

   a)identifying the existing legal and equitable interests of the parties;

   b)not exercising the power under s.79 according to an unguided judicial discretion; and

   c)not beginning from the assumption that one party has the right to have the property divided between the parties or has a right to interest in marital property fixed by reference to the matters in s.79(4).

   [4] (2012) 247 CLR 108; 47 Fam LR 481; FLC 93-518

1. In my view, the Court should still consider the four step process set out by the Full Court of the Family Court in Hickey & Hickey[5]. The Full Court held at [39] that the Court should:

   a)identify the property, liabilities and financial resources of the parties;

   b)identify and assess the contributions of the parties and determine the parties’ entitlements as a percentage of the net value of the property;

   c)identify and assess the other factors under s.79(4) including the relevant matters in s.75(2) of the Act; and

   d)resolve what order is just and equitable in all the circumstances.

   [5] (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395

Just and Equitable

1. The parties are divorced and there appears to be no likelihood of any reconciliation. I am satisfied that it is just and equitable in all the circumstances to make orders for settlement of their property.

The Parties’ Assets and Liabilities

1. I identify the assets and liabilities as follows:

Non-superannuation Asset Pool

1. I find the value of the non-superannuation asset pool to be:

   a)Husband's (omitted) Bank account  $33.00

   b)Husband's (omitted) Bank account  $ 6.00

   c)Joint (omitted) Bank account  $.6.00

   d)Husband’s interest in (omitted) Pty Ltd               $-37,475.00

   e)Husband’s household contents  $5,000.00

   f)Wife's (omitted) Bank account  $ 764.00

g)Husband’s anticipated income tax refund  $3,000.00

Total$ - 28,666.00

Liabilities

1. I find the parties’ liabilities to be:

   a)Husband’s loan from his parents  $125,315.00

b)Husband’s loan account – (omitted) Pty Ltd           $128,192.00

Total$253,307.00

1. The parties’ liabilities greatly exceed their assets. I find the total of the non-superannuation asset pool to be a negative figure of $281,973.00.

Superannuation

1. I find the parties’ superannuation assets to be:

   a)Wife's (omitted) super  $ 555.00

   b)Wife’s uncollected superannuation entitlement     $13,068.00

   c)Husband's (omitted) superannuation[6]  $3,269.00

   d)Husband's (omitted) Super[7]  $10,465.00

e)Husband’s TAL[8]                    $4,380.00

[6] At 30 June 2014

[7] At 30 June 2014

[8] At 30 June 2014

Total$31,837.00

1. The net assets amount to a negative total of $250,136.00.

The Contributions of the Parties

1. The financial contributions of the Husband vastly outweigh those of the Wife. At the time cohabitation commenced, in either 2005 or 2006, the Wife had minimal assets and the Husband had assets totalling about $130,000.00.

2. During the term of the marriage the Husband made the major financial contribution. Whilst the Wife made a contribution as homemaker and mother, as Mr Kearney SC for the Father pointed out, the relationship only lasted for about six months after the child X was born.

3. After separation, the Husband assumed the primary care of the child X.

4. It has been submitted and I believe correctly, that this is a case where no alteration to the parties’ present interest in property is warranted.

Other Factors taken into account under subsection 79(4)(d) to (g)

1. The proposed orders will have no effect on the working capacity of either party.

Subsection 75(2) matters

1. The parties have both had health issues. The Husband will continue to have the care and control of the child X, who was born on (omitted) 2011 and is still only four years old.

2. There is no basis for any alteration of the parties’ under s.75(2) of the Act.

Spousal Maintenance

1. Although the Wife has sought an order for spousal maintenance, she has not provided any sufficient of her financial circumstances to allow a finding to be made. It is the Husband who will have the care and control of the child.

2. The Husband does not appear to have any capacity to pay spousal maintenance.

Just and equitable

1. I am satisfied that in all the circumstances the Orders I propose to make are just and equitable.     

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 28 July 2016