HADDIX & MARRETT - [2013] FCCA 1752

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADDIX & MARRETT

[2013] FCCA 1752

Catchwords:
FAMILY LAW – Proceedings precipitated by the death of the child’s mother – parties to the proceedings are the biological father and ‘step father’ – children’s wishes – Part 15 Court Expert evidence.

Legislation:

Family Law Act 1975, ss.4, 10B, 10C, 10E, 13C, 60B, 60CA, 60CC, 61DA, 64C, 65C, 65DAA, 65K, 68LA, 69ZT, 69ZV

Children & Young Persons (Care and Protection) Act 1998
International Convention on the Rights of the Child
Evidence Act 1995 (Cth), s.69
Federal Circuit Court Rules 2001
Family Provisions Act 1969

Knightley & Brandon [2013] FMCAfam 148
Re F Litigation in Person Guidelines (2001) FLC 93-072
Makita (Aust.) Pty Ltd v Sprowles (2001) NSWCA 305
Johnson & Page [2007] FamCA 1235
Aldridge & Keaton (2009) FLC 93-421
Miranda v Arizona 384 U.S 436 (1966)
Valentine & Lacerra And Anor [2013] FamCAFC 53
AMS & AIF (1999) 199 CLR 160
Goode & Goode (2006) FLC 93-286
Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Deacon & Castle [2013] FCCA 691
R & R: Children’s Wishes (2000) FLC 93-000

Harrison & Woollard (1995) 18 Fam LR 788
Doyle & Doyle (1992) FLC 92-286
Stevenson & Hughes (1993) FLC 92-363
Rice & Asplund [1979] FLC 90-725
Bennett [2001] FamCA 462

Applicant:

MR HADDIX

Respondent:

MR MARRETT

File Number:

PAC 1977 of 2012

Judgment of:

Judge Harman

Hearing dates:

8, 9, 10 October 2013

Date of Last Submission:

10 October 2013

Delivered at:

Parramatta

Delivered on:

1 November 2013

REPRESENTATION

Counsel for the Respondent:

Ms Reynolds

Solicitors for the Respondent:

Kalmath Lawyers

ORDERS

That all prior parenting orders with respect to the child [X] born [in] 2000 shall be and are hereby discharged.
That Mr Haddix and Mr Marrett shall have equal shared parental responsibility for [X] provided however that:
(a)Messrs Haddix and Marrett shall be required to consult with each other with respect to major issues decisions (namely the school attended by [X] and any change thereto, specialist and elective medical treatment and/or change of name (sur and fore)) prior to any decision being made with respect to that issue;
(b)
If following consultation no agreement is apparent then

Mr Marrett shall be entitled to determine the issue the subject of the dispute and give effect to that decision and determination;
(c)Each of Messrs Haddix and Marrett shall do all things, sign all documents and give all consents and authorities necessary to cause the details of each to be recorded with any school attended by [X] and as a parent/guardian and emergency contact person and sufficient to allow and authorise each to obtain direct from the school all reports and information (whether written or oral) as they may desire;
(d)Each of Messrs Haddix and Marrett shall do all things, sign all documents and give all consents and authorities necessary to cause the details of each to be recorded with any specialist medical practitioner and the usual GP attended by [X] when with each of…

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 HADDIX & MARRETT

Details

AGLC: Haddix and Marrett [2013] FCCA 1752
Case: [2013] FCCA 1752
Decision Date: 1 November 2013

CaseChat Overview and Summary

This matter concerned parenting orders for a child, [X], born in 2000, between Mr Haddix and Mr Marrett. The dispute revolved around the future living arrangements and shared parental responsibility for [X]. The decision was made by Judge Harman.

The court was required to determine the appropriate parenting orders for [X], specifically addressing issues of equal shared parental responsibility, the child's primary residence, time spent with each parent, and the allocation of costs associated with expert reports and legal representation. The court also considered the expressed wishes of [X] in light of her age and the evidence presented by a family consultant.

Judge Harman discharged all prior parenting orders and made new orders establishing equal shared parental responsibility between Mr Haddix and Mr Marrett. These orders stipulated that Messrs Haddix and Marrett must consult on major decisions concerning [X]'s schooling, medical treatment, and name changes, with Mr Marrett having the final say if agreement could not be reached. The orders detailed specific arrangements for [X]'s living arrangements and time spent with each parent, including provisions for travel between New South Wales and Queensland. The court also ordered Mr Haddix to pay a portion of the costs for a family consultant's report and attendance for cross-examination, and Mr Marrett to reimburse Mr Haddix for half of the cost of obtaining the consultant's report, with a mechanism for offsetting travel costs against this liability. The court noted that [X]'s expressed wishes alone, prior to her 16th birthday, would likely not be considered a significant change in circumstances to warrant varying these orders.

Orders

Orders of the court

That all prior parenting orders with respect to the child [X] born [in] 2000 shall be and are hereby discharged.

That Mr Haddix and Mr Marrett shall have equal shared parental responsibility for [X] provided however that:

(a) Messrs Haddix and Marrett shall be required to consult with each other with respect to major issues decisions (namely the school attended by [X] and any change thereto, specialist and elective medical treatment and/or change of name (sur and fore)) prior to any decision being made with respect to that issue;

(b)

If following consultation no agreement is apparent then

Mr Marrett shall be entitled to determine the issue the subject of the dispute and give effect to that decision and determination;

(c) Each of Messrs Haddix and Marrett shall do all things, sign all documents and give all consents and authorities necessary to cause the details of each to be recorded with any school attended by [X] and as a parent/guardian and emergency contact person and sufficient to allow and authorise each to obtain direct from the school all reports and information (whether written or oral) as they may desire;

(d) Each of Messrs Haddix and Marrett shall do all things, sign all documents and give all consents and authorities necessary to cause the details of each to be recorded with any specialist medical practitioner and the usual GP attended by [X] when with each of Messrs Haddix and Marrett as a parent/guardian and emergency contact person and sufficient to allow and authorise each to obtain direct from such doctor/s all reports and information (whether written or oral) as they may desire; and

(e) Each of Messrs Haddix and Marrett shall, at all times, keep the other advised of their residential address and contact details.

Until 31 December 2016 [X] shall live with Mr Marrett.

Until 31 December 2016 [X] shall spend time with Mr Haddix whilst soever Mr Haddix is resident outside of the greater Sydney Metropolitan Area:

(a) For a period in each of the school holiday periods following completion of Terms 1 and 3 as agreed between Messrs Haddix and Marrett and failing agreement from no earlier than 12 noon (Sydney time) on the first Saturday until no later than 4pm (Queensland time) on the last Friday;

(b) For a period in the school holiday period following completion of Term 2 as agreed between Messrs Haddix and Marrett and failing agreement from no earlier than 12 noon (Sydney time) on the first Saturday until no later than 4pm (Queensland time) on the middle Sunday; and

(c) For a period in the school holiday period following completion of Term 4 as agreed between Messrs Haddix and Marrett and failing agreement:

(i) from no earlier than 12 noon (Sydney time) on the first Saturday after the preceding school term ends until no later than 4pm (Queensland time) 9 January in 2013/14 and each alternate year thereafter; and

(ii) from no earlier than 12 noon (Sydney time) on 9 January until no later than 4pm (Queensland time) on the last Sunday before the resumption of the new school term in 2014/15 and each alternate year thereafter.

For the purpose of [X] travelling between Queensland and New South Wales:

(a) [X] shall travel unaccompanied by air;

(b) Mr Haddix shall book and pay for a return flight/s for [X] and shall provide a copy of the flight itinerary and proof of payment not less than 28 days before the first scheduled flight;

(c) Mr Marrett shall reimburse Mr Haddix one half of the total fare (subject to order 10 hereof) not later than 7 days before the commencement of each period; and

(d) Each of Messrs Haddix and Marrett shall ensure [X] is delivered to the relevant airport to board and be collected from her flights on each occasion

Until 31 December 2016 [X] shall spend time with Mr Haddix whilst soever Mr Haddix is resident within the greater Sydney Metropolitan Area:

(a) Each alternate weekend during school terms from the conclusion of school Thursday until the commencement of school the following Monday (extending to Tuesday if a long weekend or pupil free day) to resume on the first weekend of each school term;

(b) Each intervening Thursday from the conclusion of school until the commencement of school the following day (Friday) to resume on the second Thursday of each term;

(c) For a period in each short school holiday period as agreed between Messrs Haddix and Marrett and failing agreement from the conclusion of school on the last day of term until 6pm on the middle Saturday;

(d) For a period in the school holiday period following completion of Term 4 as agreed between Messrs Haddix and Marrett and failing agreement:

(e) For a period in the Christmas school holiday period in each year as agreed between Messrs Haddix and Marrett and failing agreement:

(i) from 10am on the first Saturday after the preceding school term ends until 6pm 9 January in 2013/14 and each alternate year thereafter; and

(ii) from 10am on 9 January until 6pm on the last Sunday before the resumption of the new school term in 2014/15 and each alternate year thereafter.

(f) For such further and/or other periods as are agreed between Messrs Haddix and Marrett from time to time.

For the purpose of [X] spending time with Mr Haddix, Mr Haddix shall collect from and return [X] to her school or, if not a school attendance day, Mr Marrett’s home.

Each of Messrs Haddix and Marrett shall be entitled to communicate with [X] at all times when she is not in their care by telephone, Skype, Facebook and other electronic means and each shall, whilst [X] is in their care, allow [X] to communicate with the other by those means.

That each of Messrs Haddix and Marrett shall, within 28 days of these orders, pay to the Legal Aid Commission of New South Wales a sum of $950 each representing one half of the costs of Dr K with respect to preparation for and attendance for cross examination.

10.

Mr Haddix shall pay to Mr Marrett, within 6 months of the date of these orders, a sum of $4,950 representing one half of the amount paid by Mr Marrett to obtain Dr K’s report and with respect to same:

(a) Provided the total sum is paid within 6 months of today’s date interest shall not accrue;

(b)

Mr Marrett shall not, for so long as that sum or any portion thereof remains outstanding, be required to reimburse funds to

Mr Haddix as required by order 5 hereof and the amount that would be payable pursuant to order 5 shall, instead, be credited towards the liability created by this order).

11.

Pursuant to s.65Y of the Family Law Act 1975 the parties and each of them shall be entitled to remove [X] from the Commonwealth of Australia for periods whilst she is in their care provided that an itinerary of intended travel is provided by that party to the other not less than 28 days prior to the intended date of departure and advising the date of departure and return, the travel destination and a contact telephone number and/or email which can be used to contact [X] during [X]’s absence from the Commonwealth.

12.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

13.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

NOTED:

14.

In the event that either party files an Application seeking to vary these orders on the basis of [X]’s suggested or alleged expressed wishes and prior to her 16th Birthday it is likely that the Court will not consider that factor alone as constituting a significant change of circumstances, subject to further submissions at that time, sufficient to warrant the reopening of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Haddix opines in the above material (largely consistent with the evidence of Dr K to which I will return shortly) that:I am concerned about what I have witnessed in [X]. At times she is overexcited and exceedingly talkative and happy and other times I have observed her become withdrawn and quiet. I have also witnessed those events prior to the mother’s death. [X] also has trouble making decisions and unless she is asked a direct question she will rarely state her position [emphasis added]. Paragraph 11 of the Affidavit relates a conversation between Mr Haddix and [X] regarding her attendance upon the family consultant Ms K. Complaint is raised within that paragraph that the family consultant had not asked [X] with whom she would prefer to live (the evidence of Ms K, to be addressed shortly, is at odds therewith). Curiously the paragraph ends with the following:I then said to her “Did the psychologist [Ms K] ask you where you wanted to live?” to which she replied “No”. She then said “should I have said where I wanted to live and that you were my dad and I love you?” to which I replied “It would have helped if you told them what you really wanted”. She then started to cry and said “Sorry dada, I want to stay living here with you”. I comforted her and said “Everything should be ok on Monday” [the next Court event] or words to that effect. Paragraph 19 of the Affidavit deals with matters connected with decisions for [X]’s school and her suggested, expressed preference in that regard (although Mr Haddix’s later evidence casts some doubt upon the veracity of that view). In the Affidavit of 9 January 2013 [X]’s views are raised substantially and throughout the Affidavit. It is the primary theme of the Affidavit being dealt with in paragraphs 1, 2, 3, 4, 6, 7 (and Annexure ‘A’ referred to therein), 9, 10, 12, 13, 14, 16, 19 and especially paragraph 20. It is to be remembered that the Affidavit of 9 January 2013 follows upon the Child Inclusive Child Dispute Conference in which, without canvassing it in any more detail at this time, [X] expressed no preference for her future living arrangements save:[X] said that it would be her preference not to live in a week about parenting arrangement… [X] looked visibly pleased when discussing possible spend time with arrangements and it was discussed that some children live primarily with one care giver and spend more than just every second weekend with their other care giver, for example a Thursday to Monday each alternate weekend……[X] said that she always wanted to see both Mr Haddix and Mr Marrett. She said she could live primarily with either Mr Haddix or Mr Marrett. It would appear that following that Child Inclusive Child Dispute Conference and, indeed, following the report interviews with Dr K (which occurred on 5 November 2012) that the focus of Mr Haddix’s evidence turned to [X]’s views. Prior thereto issues relating more specifically to criticism of Mr Marrett had been the focus of Mr Haddix’s evidence.

Ratio Decidendi

Legal Principle Established

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