CRISP & HAYES - [2013] FMCAfam 254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CRISP & HAYES

[2013] FMCAfam 254

FAMILY LAW – Children – parenting orders – interim orders – relocation – whether interim order should be made requiring the respondent to return to live in Sydney with the child.

PRACTICE AND PROCEDURE – Change of venue.

PRACTICE AND PROCEDURE – Independent Children’s Lawyer – whether the interests of the child should be independently represented by a lawyer.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65DAA, 68L
Federal Magistrates Court Rules 2001 rr.8.01, 15.09

Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant:

MR CRISP

Respondent:

MS HAYES

File Number:

SYC 747 of 2013

Judgment of:

Scarlett FM

Hearing date:

18 March 2013

Date of Last Submission:

18 March 2013

Delivered at:

Sydney

Delivered on:

20 March 2013

REPRESENTATION

Counsel for the Applicant:

Mrs Knox

Solicitors for the Applicant:

Diamond Conway

Counsel for the Respondent:

Ms Monastiriotis

Solicitors for the Respondent:

Slater & Gordon

ORDERS

The name of the Respondent is MS HAYES.

UNTIL FURTHER ORDER

The application by the Applicant Father for an Order that the Respondent Mother return the child of the marriage [X] to live within 25 kilometres of the suburb of [P] in the State of New South Wales within 14 days is dismissed.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child of the marriage [X] born [in] 2008.
The Father is to spend time with the child [X] as follows:
(a)each third weekend from 1:00pm to 5:00pm on Saturday and from 9:00am to 1:00pm on Sunday in [C] commencing on Saturday 23 March 2013 until 30 June 2013;
(b)each third weekend from and after 6 July 2013 from 9:00am to 5:00pm on Saturday and from 9:00am to 3:00pm on Sunday in [C];
(c)
on the weekend that includes Father’s Day from 9:00 am to

5:00 pm on Saturday and from 9:00 am to 3:00 pm on Sunday in Sydney; and
(d)at such other times as the parties may agree.
As provided by Rule 15.09 Dr M, Child and Family Psychiatrist, is appointed as Court Expert to inquire into and report on matters relating to the welfare of the child [X] born [in] 2008 and in preparing his report to the Court Dr M is requested to consider the following matters:
(a)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;
(b)whether the child is at risk psychologically from past exposure to psychological counselling or therapy;
(c)any views expressed by the child and any 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 each of the parents and any other relevant person;
(e)the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either the parents or any other…

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 [2013] FMCAfam 254
Case: [2013] FMCAfam 254
Decision Date

CaseChat Overview and Summary

The case of Crisp and Hayes involved a parenting dispute between Mr. Crisp, the father, and Ms. Hayes, the mother, regarding their daughter, X, born in 2008. The father sought an interim order requiring the mother to return to Sydney with the child and a restraining order to prevent relocation outside a 25-kilometre radius of the former matrimonial home. The mother opposed these requests and argued for the independent representation of the child's interests by an Independent Children's Lawyer, the appointment of a Court Expert to prepare a report on the child's welfare, and a change of venue to a registry closer to the new residence. The Federal Magistrates Court had to decide whether interim orders should be made to compel the mother to return to Sydney with the child, and if an Independent Children's Lawyer and a Court Expert should be appointed.

The court concluded that while the father would not have consented to the mother's move had he known it would be permanent, it was not appropriate to make an interim order compelling the mother to return to Sydney with the child. The court considered that the husband had been seeing and speaking to the child regularly, and the mother did not propose to cease this contact. The court also noted that the mother had obtained employment and arranged for the child to attend pre-school and participate in other activities, suggesting that the child had settled well. The unresolved allegations of family violence raised by the mother warranted proper consideration, and the Family Consultant recommended a further comprehensive assessment before determining the child's needs fully. The court appointed Dr. M as a Court Expert to prepare a report on the child's welfare and welfare and agreed to appoint an Independent Children's Lawyer to represent the child's interests. The court dismissed the application to change the venue, noting that the matter could be reconsidered at the final hearing stage. The court ordered equal shared parental responsibility for the child and specified the father's visitation schedule, mainly in C but including one weekend in Sydney on Father's Day.

The court ordered that the father and mother bear equal liability for the cost of Dr. M's report, with each party paying half of the estimated fees of $5,500 into the Trust Account of Slater & Gordon Lawyers for payment upon completion of the expert report. The court also directed the parties to facilitate the preparation of the Court Expert Report and authorized the expert to communicate with the child's treating health care professionals. The court further directed that Legal Aid New South Wales arrange for the appointment of an Independent Children's Lawyer to represent the child's interests and requested the parties to forward relevant documents to the lawyer for use.

Orders