CRISP & HAYES - [2020] FCCA 3359

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRISP & HAYES

[2020] FCCA 3359

Catchwords:
FAMILY LAW – Parenting matter – interim hearing – where parties are in dispute over selection of high school for child – where there is some geographical distance between high school nominations – whether the child should attend a selective school if offered a placement – whether a single expert report order should be made – where single expert report was prepared in previous proceedings – whether the Court should re-appoint expert with prior knowledge of the matter, or a new expert – whether the child’s telephone time during school holidays should be reduced and/or specified – discrete issues – definition of midpoint day and time during school holidays – best interests of the child

Legislation:

Family Law Act 1975, ss.4, 60CA, 60CC, 61C, 61DA, 62G, 64B, 65D, 69ZL
Family Law Regulations 1984, r.7
Federal Circuit Court Rules 2001, r.15

Cases cited:

Atuk v Atuk [2015] FamCA 283
Crisp & Hayes (No.2) [2014] FCCA 3029

Crisp & Hayes [2015] FCCA 315

Newlands & Newlands [2007] FamCA 168
Raymond v Harold [2009] FamCA 155

Re G:Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Applicant:

MR CRISP

Respondent:

MS HAYES

File Number:

SYC 747 of 2013

Judgment of:

Judge Monahan

Hearing date:

22 October 2020

Date of Last Submission:

22 October 2020

Delivered at:

Sydney

Delivered on:

18 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr Longworth

Solicitors for the Applicant:

Blanchfield Nicholls

Solicitors for the Respondent:

Ms Morton of Morton Family Lawyers

Solicitors for the Independent Children’s Lawyer:

Ms Smith of NSW Legal Aid

ORDERS

THE COURT ORDERS THAT:

The parties do all acts and things and sign all such documents as may be required to enrol the child X born in 2008 (“X”) and attend B High School to commence in year 7 in 2021 and in the event that X is offered a place through the selective high school program at C High School (“the selective school”), the parties shall do all acts and things and sign all such documents forthwith as may be required to have X be enrolled in and attend the selective school.
Dr D, Child and Family Psychiatrist, be appointed as a Single Expert Witness (“the Single Expert”) to enquire into and report upon matters relating to the welfare of X.

(2A)In the event that Dr D has no capacity to complete such a report within a reasonable timeframe, then the parties thereafter approach Dr E or Dr F, and the expert with the capacity to complete the report earlier be appointed as Single Expert pursuant to these orders.

The parties shall:
(a)Attend all appointments made with the Single Expert.
(b)Ensure the attendance of X at the times and dates as directed.
(c)Comply with all reasonable directions and requests made by the Single Expert to assist him or her in the preparation of the Report.
(d)Do all things to ensure the attendance of their current partner (if any)…

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 & HAYES

Details

AGLC: CRISP & HAYES [2020] FCCA 3359
Case: [2020] FCCA 3359
Decision Date: 18 December 2020

CaseChat Overview and Summary

This matter concerned a dispute between parents regarding the education and holiday contact arrangements for their child, X. The court was required to determine which high school X should attend, specifically whether X should be enrolled in a selective high school if offered a place, and to address issues concerning X's telephone contact with parents during school holidays. Additionally, the court considered the appointment of a single expert witness to report on matters relating to X's welfare.

The legal issues before the court included the selection of X's secondary school, the potential appointment of a single expert witness, and the specifics of telephone contact arrangements during school holidays. The court also had to consider the definition of "midpoint day" and time for holiday contact, all within the overarching principle of X's best interests.

The court ordered that X be enrolled at B High School, with the provision that if X is offered a place at C High School (a selective school), X should be enrolled there instead. Dr. D was appointed as the Single Expert Witness, with alternative experts nominated should Dr. D be unable to complete the report. The parties were directed to cooperate fully with the expert, including ensuring X's attendance and authorising mental health practitioners to speak with the expert. The court also varied existing orders regarding changeover locations and times during school holidays, and specified telephone contact times. The father was ordered to pay the initial cost of the single expert report, with the issue of contribution from the mother to be determined later.

The court made detailed orders regarding the appointment and conduct of the single expert, including payment for the report and potential cross-examination costs. Existing orders concerning changeover arrangements and telephone contact during school holidays were varied to provide greater clarity and specificity. The matter was adjourned for further directions, with the purpose of considering the expert report and resolving any remaining disputes.

Orders

Orders of the court

THE COURT ORDERS THAT:

The parties do all acts and things and sign all such documents as may be required to enrol the child X born in 2008 (“X”) and attend B High School to commence in year 7 in 2021 and in the event that X is offered a place through the selective high school program at C High School (“the selective school”), the parties shall do all acts and things and sign all such documents forthwith as may be required to have X be enrolled in and attend the selective school.

Dr D, Child and Family Psychiatrist, be appointed as a Single Expert Witness (“the Single Expert”) to enquire into and report upon matters relating to the welfare of X.

(2A) In the event that Dr D has no capacity to complete such a report within a reasonable timeframe, then the parties thereafter approach Dr E or Dr F, and the expert with the capacity to complete the report earlier be appointed as Single Expert pursuant to these orders.

The parties shall:

(a) Attend all appointments made with the Single Expert.

(b) Ensure the attendance of X at the times and dates as directed.

(c) Comply with all reasonable directions and requests made by the Single Expert to assist him or her in the preparation of the Report.

(d) Do all things to ensure the attendance of their current partner (if any) and any other persons who lives in the same household as the parents, should the Single Expert request to interview said persons.

The Single Expert be requested to consider the following matters in preparing the Report:

(a) the benefit of the child having a meaningful relationship with both of her parents;

(b) whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;

(c) any views expressed by the child and any other factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

(d) the relationship between the child and with each of her parents and any other relevant person;

(e) the extent to which each of the child’s parents has taken or failed to take the opportunity:-

(i) to participate in making decisions about major long term issues in relation to the child; and

(ii) spend time with the child; and

(iii) communicate with the child;

(f) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

(g) the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other person with whom the child has been living;

(h) the practical difficulty and expense of the child spending time with and communicating with either parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(i) the capacity of each of the child’s parents and any other person, to provide for the needs of the child including their emotional and intellectual needs;

(j) the maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the child and either of their parents and any other characteristics of the child that the Single Expert thinks is relevant;

(k) if in the view of the Single Expert the child and parents require family therapy, please specify the type of therapy and the issues that it should target; and

(l) any other matter the Single Expert considers relevant.

The father do all acts and things to deposit into the trust account of Legal Aid NSW the cost of the single expert report fee within twenty-eight (28) days of the date of these orders and that the issue of contribution by the mother to the cost of the report be determined at a later time and not later than the final hearing.

The amount deposited by the father pursuant to paragraph 5 herein be applied for payment by Legal Aid NSW to the Single Expert following the issue of a tax invoice by the Single Expert to Legal Aid NSW.

The Single Expert not be required to release his or her report to the Court until payment for that report has been made.

In the event that the Single Expert is required for cross examination by any party, including the Independent Children’s Lawyer, at any hearing in these proceedings:

(a) 42 days prior to any final hearing dates in the matter, or such lesser time as may be directed, the mother and father do all acts and things to pay into the trust account of Legal Aid NSW, money to cover one half of any payments required to cover the Single Expert’s additional costs;

(b) Any costs be paid within 7 days of receipt of a Tax Invoice from the Single Expert; and

(c) In the event that there remain monies available subsequent to the receipt of the memorandum of fees from the Single Expert these monies are to be returned to the father and mother in the proportion of which they were paid into the trust account.

Leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing same to the Court Expert and the fees in respect of that photocopying be waived.

10.

Liberty is granted to the Independent Children’s Lawyer to apply to relist if any issues arise regarding interviews or payment relevant to the Single Expert report.

11.

The father and mother do all acts and things to authorise any mental health practitioner attended by the parents and/or the child to speak with the Single Expert.

12.

Paragraph 13 of the Orders made 12 December 2014 (and varied by paragraph 1(a) of the Orders made 22 October 2020) be further varied to read as follows:

“13. For the purposes of changeover:

a. where changeover is to occur on a school day, that it take place at the child’s school premises; and

b. where changeover is on a non-school day, it occur at the McDonald’s Restaurant, located at G Street, Suburb Q, and failing agreement in writing, the following apply:

(i) the changeover time be midday on the first and last days of the holiday period, and

(ii) The middle day if it is a holiday period with an odd number of days or the “first” middle day if it is a holiday period with an even number of days.”

13.

Paragraph 14(c) of the Orders made 12 December 2014 (and varied by paragraph 1(b) of the Orders made 22 October 2020) be further varied to read as follows:

“During school holidays, each parent be at liberty to telephone X as agreed between the parties in writing and failing agreement:

(a) each Wednesday and Sunday at 7.30am; and

(b) on Christmas morning at 9.30am;

and the parent with the care of X shall ensure that X takes the call.”

AND THE COURT FURTHER ORDERS THAT:

14.

All extant applications be adjourned to this Court on 16 June 2021 at 9.30am for directions (“the directions hearing”).

15.

Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these Orders until the date of the next directions hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.

AND THE COURT NOTES THAT:

(A) These Orders followed an interim hearing heard on 22 October 2020.

(B) These Orders should be read together with the Orders made on 12 December 2014 and 22 October 2020.

(i) consider the Expert report or, if not yet released, the likely release date; and

(ii) in the event that the parties remain in dispute, ascertain the ambit of the dispute and make further directions.

(D) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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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