Crispen & Crispen - [2008] FamCAFC 14

FAMILY COURT OF AUSTRALIA

CRISPEN & CRISPEN

[2008] FamCAFC 14

FAMILY LAW - APPEAL – From decision of Magistrate – CHILDREN – Parental responsibility – With whom a child spends time – Competing proposals of parents – Father sought an arrangement at trial that the child would spend approximately equal time with both parents – Mother sought sole parental responsibility except for day to day responsibility when the child would spend time with the father – Magistrate made orders essentially in terms of mother’s proposal – Father appealed on the basis of the cogency and sufficiency of the Magistrate’s reasons – Argued on appeal that there was much evidence not discussed in the reasons but which was relevant to the Magistrate’s conclusions – Appellant referred to evidence of various events which he contended were relevant to the issues before the Magistrate – Arguments as to cogency were that findings about the positive capacities of the father were inconsistent with negative findings about him and with the final result; and that some ultimate conclusions were unsupported by preceding findings that were a necessary foundation for those ultimate conclusions – Appeal dismissed

FAMILY LAW - APPEAL – Application to adduce fresh evidence – Father sought to adduce SMS text messages sent by the mother to the father – Argued that the SMS messages would have been relevant to the learned Magistrate’s conclusions about the father based upon the content of those messages sent by him to the mother – At the appeal, the respondent raised the context of the issue at trial of SMS texts between the parties – Application refused

Family Law Act 1975 (Cth); ss 60CC; 60CC(2); 60CC(3); 61DA; 65DAA; 65DAA(5); 117(2A)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

A v J (1995) FLC 92-619
Athens & Anor v Randwick City Council [2002] NSWCA 83
Bennett and Bennett (1991) FLC92-191
CDJ v VAJ (1998) FLC 92-828
Goode and Goode (2006) FLC 93-286
Soulemizis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Strbak v Newton (NSWCA, 18 July 1989, unreported)
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd)v Dixon (2003) 200 ALR 447

APPELLANT:

MR CRISPEN

RESPONDENT:

MS CRISPEN

APPEAL NUMBER:

2007

FILE NUMBER:

PTW

5573

2006

DATE DELIVERED:

21 February 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Perth

JUDGMENT OF:

COLEMAN, WARNICK AND THACKRAY JJ

HEARING DATE:

29 January 2008

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

24 July 2007

LOWER COURT MNC:

N/A

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr S Jones

SOLICITOR FOR THE APPELLANT:

Hearty and Tam

COUNSEL FOR THE RESPONDENT:

Mr F Castiglione QC

SOLICITOR FOR THE RESPONDENT:

Lane Buck & Higgins

Orders

That the application to adduce further evidence be dismissed.
That the appeal be dismissed.
That the father pay the mother’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Crispen and Crispen is approved…

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.

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Details

AGLC: Crispen & Crispen [2008] FamCAFC 14
Case: [2008] FamCAFC 14
Decision Date: 21 February 2008

CaseChat Overview and Summary

In this appeal, the father contested the decision of a Magistrate who had determined an arrangement for the parental responsibility of a child. The father sought an arrangement where the child would spend approximately equal time with both parents. Conversely, the mother sought sole parental responsibility, except for day-to-day care, where the child would spend time with the father. The Magistrate ruled in favour of the mother's proposal, leading the father to appeal, arguing that the Magistrate's reasons were insufficient and did not adequately address the evidence presented. The father also sought to introduce new evidence in the form of SMS text messages that he claimed would have been pertinent to the Magistrate’s conclusions about him.

The legal issues before the court were primarily whether the Magistrate's reasons were cogent and sufficient, and whether the father's proposed new evidence should be admitted. The father argued that the Magistrate failed to discuss certain relevant evidence and that some of the Magistrate's findings were inconsistent with others and unsupported by the evidence. The court had to determine if the appeal was valid based on the cogency and sufficiency of the Magistrate’s reasons and if the new evidence could be considered.

The court dismissed the father’s appeal, finding that the Magistrate's reasons were sufficient and coherent. The court also declined to allow the introduction of the new evidence, as the father failed to demonstrate that the SMS texts were relevant to the Magistrate's conclusions. The appeal was dismissed, and the father was ordered to pay the mother’s costs of and incidental to the appeal.

Orders

Orders of the court

That the application to adduce further evidence be dismissed.

That the appeal be dismissed.

That the father pay the mother’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.

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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