GRIST & GRIST - [2020] FCCA 2992

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRIST & GRIST

[2020] FCCA 2992

Catchwords:
FAMILY LAW – Parenting – father previously paying $9 per week child support – says he now acquired millions of dollars – money not in his name or control – father seeks private schooling – issues about father’s capacity and willingness to pay – issues about capacity of parents to co-ordinate private schooling – children’s time with father – father from Melbourne – whether appropriate for children to spend time with father in a different rental during the school week once a month – alleged family violence by father – father’s own text messages give Court grave concerns: Held: Proposed change of school not in children’s best interests – living in different rental accommodation with father one week a month not in children’s best interests – appointment of ICL – appointment of single expert at father’s cost – Court has concerns about all proposals – will further consider matter when single expert report available.

Legislation:

Family Law Act 1975 (Cth), ss.68L, 60CA, 60CC(3), 64B, 65AA, 65D, 69ZL, Part VII, Division 5

Evidence Act 1995 (Cth)

Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Eaby & Speelman (2015) FLC 93-654

Applicant:

MR GRIST

Respondent:

MS GRIST

File Number:

MLC 1904 of 2020

Judgment of:

Judge B Smith

Hearing date:

6 October 2020

Date of Last Submission:

6 October 2020

Delivered at:

Sydney

Delivered on:

12 October 2020

REPRESENTATION

Solicitors for the Applicant:

M and K Lawyers Group Pty Ltd

Counsel for the Applicant:

Mr Maurice

Solicitors for the Respondent:

Newnhams Solicitors

Counsel for the Respondent:

Ms Beck

ORDERS

The matter be listed on 12 March 2021 at 9:30am for mention.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
Unless otherwise agreed between the parties in writing, the children are to remain at their current schools.
Each party be and is hereby restrained by injunction from discussing any proceedings between the parties, or the issue of schooling, in the presence or hearing of the Children and shall use their best endeavours to ensure no third party does so. In particular, the father is not to suggest, directly or indirectly, to the children that any failure of the children to attend private schools is a consequence of the mother’s conduct or that she is culpable.
Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the children X born 2006 and Y born 2010.
The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

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 GRIST & GRIST

Details

AGLC: Grist and Grist [2020] FCCA 2992
Case: [2020] FCCA 2992
Decision Date: 12 October 2020

CaseChat Overview and Summary

In the matter of GRIST & GRIST, Judge B Smith of the Federal Circuit Court of Australia considered parenting arrangements for two children. The dispute involved the father's assertion of significant wealth, despite funds not being in his name or under his control, and his desire for the children to attend private schooling. The court also had to address concerns regarding the father's capacity and willingness to pay for private schooling, the parents' ability to coordinate such arrangements, the children's time with the father, and allegations of family violence.

The court was required to determine whether the proposed change of school was in the children's best interests and whether the proposed arrangement for the children to spend time with the father in different rental accommodation once a month was appropriate. Further, the court needed to consider the father's capacity and willingness to meet financial obligations related to schooling and the impact of alleged family violence on the children.

Judge B Smith expressed grave concerns about the father's proposals, particularly regarding the change of school and the proposed living arrangements during the children's time with the father. The court found that the proposed change of school and the living arrangements were not in the children's best interests. Consequently, the court ordered that the children remain at their current schools unless otherwise agreed in writing. An Independent Children's Lawyer was appointed to represent the children's interests, and the Legal Aid Commission of New South Wales was requested to arrange representation. The court also appointed a Single Expert Witness, to be a Psychiatrist or registered Clinical Psychologist, at the father's sole cost, to report on various welfare matters concerning the children, including risk of harm, children's views, parental capacity, and the impact of family violence. The court indicated it would further consider the matter upon receipt of the expert report and with the assistance of the Independent Children's Lawyer.

Orders

Orders of the court

The matter be listed on 12 March 2021 at 9:30am for mention.

Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.

Unless otherwise agreed between the parties in writing, the children are to remain at their current schools.

Each party be and is hereby restrained by injunction from discussing any proceedings between the parties, or the issue of schooling, in the presence or hearing of the Children and shall use their best endeavours to ensure no third party does so. In particular, the father is not to suggest, directly or indirectly, to the children that any failure of the children to attend private schools is a consequence of the mother’s conduct or that she is culpable.

Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the children X born 2006 and Y born 2010.

The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.

Each party make available to the Legal Aid Commission of NSW (Sydney Office) forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

The parties facilitate the attendance upon his/her representative of the children at times and dates requested by that representative.

10.

Leave be granted to the Independent Children’s Lawyer to issue more than five subpoena.

11.

Pursuant to Part 15 Rule 9 of the Federal Circuit Court Rules, a Single Expert Witness (hereafter referred to as “the Expert”) be appointed to enquire into and report upon matters relating to the welfare of the child and that in preparing this report to the court, to consider the following matters:

(a) Whether the child is at risk of being exposed to any physical or psychological harm or from being subject to or exposed to abuse, neglect or family violence;

(b) 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 willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

(e) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other person with whom the child has been living;

(f) the capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs;

(g) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person);

(h) The effect on the child of any family violence to which they may have been exposed;

(i) The effect on the child of spending equal time, or substantial and significant time, with each parent having regard to the parent’s current and future capacity to:

(j) Implement such an arrangement; and

(k) Communicate with each other and resolve difficulties that might arise;

(l) The mental state, or capacity, of both parents in so far as it relates to parenting issues including in respect of any mental health impairment or personality traits which may adversely impact on parenting capacity ;

(m) The Expert’s opinion concerning any allegations of abuse of the child; and

(n) Any other matter the expert considers relevant.

I DIRECT that, upon completion, the expert report be forwarded to my Associate via email to associate.judgebsmith@federalcircuitcourt.gov.au.

12.

The Expert is to be a Psychiatrist, or a registered Clinical Psychologist.

13.

In the event the parties cannot reach agreement as to the Expert:

(a) Within 7 days, the mother nominate and provide contact details, fee information and availability for three (3) appropriately qualified Experts; and

(b) Within a further 7 days, the father select an appropriately qualified Experts from the list;

AND the parties thereafter forthwith prepare a joint letter of instruction to be sent to the Expert and each party be liable for one half of the total fees payable in respect of the Expert Report.

14.

The father is to pay for the entire cost of the preparation of the Expert Report.

15.

Liberty is granted to the parties to approach the Court in Chambers to have the matter relisted on short notice once the Independent Children's Lawyer is on the record and the expert report is prepared.

NOTES

16.

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.

17.

The Court will be open to re-considering the issues of Schooling, and of the time the children are to spend with the father, upon receipt of the Expert report and with the benefit of assistance of the ICL.

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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