FEDERAL CIRCUIT COURT OF AUSTRALIA
Archibald & Kayser [2021] FCCA 982
File number: DNC 17 of 2021 Judgment of: JUDGE YOUNG Date of judgment: 26 March 2021 Catchwords: FAMILY LAW – parenting – application concerning a child who is 19 months old – whether it is in the child’s best interest to relocate his primary residence to Darwin – where the father seeks an interim mandatory injunction for the mother to relocate to Darwin with the child – where the mother has relocated the child’s primary residence to Canberra – where the mother is the primary carer of the child – where the father lives in Darwin – where the father consented to the mother’s relocation for a limited time period – where the father alleges the mother’s intention is for the relocation to be permanent – Court satisfied it is not in the child’s best interests to relocate his primary residence to Darwin on an interim basis. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Adamson v Adamson (2014) 51 Fam LR 626; [2014] FamCAFC 232
Oswald & Karrington (2016) 55 Fam LR 344; [2016] FamCAFC 152
Number of paragraphs: 26 Date of hearing: 26 March 2021 Place: Darwin Solicitor for the Applicant: Ms Farmer of Withnalls Lawyers Counsel for the Respondent: Mr Allen Solicitor for the Respondent: Australian Family Lawyers ORDERS
DNC 17 of 2021 BETWEEN: MR ARCHIBALD
Applicant
AND: MS KAYSER
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
26 MARCH 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the child live with the mother in the Australian Capital Territory.
2.That the parties are to arrange for a private Family Report to be prepared by Ms B and the costs of the Report are to be shared equally between the parties.
3.That the parties are to agree on the terms of reference for the Family Report by Ms B within 21 days of the date of this order and failing agreement the terms of reference are to be the standard terms of the Court.
4.That both parties are to enrol in a post-separation parenting course unless they have already done so and are to provide the other party with a certificate of completion.
5.That the child spend time with the father as agreed between the parties and failing agreement:
(a)In Darwin for 5 consecutive days between 9:00am and 5:00pm in each school holiday period;
(b)That for the purpose of Order 6(a) the mother provide at least 28 days’ notice to the father of the days that she intends to be in Darwin with the child and in line with the time that the father’s other child C spends time with the father in Darwin;
(c)In the event the father is in Canberra and provides the mother with 14 days’ notice of the same the child is to spend time with the father between 9:00am and 5:00pm while the father remains in Canberra; and
(d)The child’s time pursuant to Order 9(a) and (c) be in…
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CaseChat Overview and Summary
The court was required to determine interim parenting orders, including where the child would live, the time the child would spend with each parent, and arrangements for communication and contact with other family members. The court also made directions concerning the preparation of a private family report, the enrolment of parties in a post-separation parenting course, and the exchange of financial information and discovery of documents. Further directions were made regarding the listing of a conciliation conference and the trial of the matter, including the filing of affidavits, case outlines, and the payment of court fees.
The court ordered that the child live with the mother in the Australian Capital Territory. Specific arrangements were made for the child to spend time with the father, including in Darwin during school holidays and when the father was in Canberra, with supervision by an agreed third party or the paternal grandmother. The mother was directed to facilitate phone calls between the father and child and to make the child available for time with the paternal grandmother. The mother was also to facilitate regular time between the child and his sibling. The parties were ordered to attend a conciliation conference and to provide mutual informal discovery of documents and prepare a draft joint statement of assets and liabilities. The matter was listed for trial on 1, 2, and 3 September 2021, with detailed directions for the filing of evidence and case outlines. The court also noted provisions regarding family violence and the cross-examination of parties under section 102NA of the *Family Law Act 1975*.
Orders
Orders of the court
DNC 17 of 2021
BETWEEN:
MR ARCHIBALD
Applicant
AND:
MS KAYSER
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
26 MARCH 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1. That the child live with the mother in the Australian Capital Territory.
2. That the parties are to arrange for a private Family Report to be prepared by Ms B and the costs of the Report are to be shared equally between the parties.
3. That the parties are to agree on the terms of reference for the Family Report by Ms B within 21 days of the date of this order and failing agreement the terms of reference are to be the standard terms of the Court.
4. That both parties are to enrol in a post-separation parenting course unless they have already done so and are to provide the other party with a certificate of completion.
5. That the child spend time with the father as agreed between the parties and failing agreement:
(a) In Darwin for 5 consecutive days between 9:00am and 5:00pm in each school holiday period;
(b) That for the purpose of Order 6(a) the mother provide at least 28 days’ notice to the father of the days that she intends to be in Darwin with the child and in line with the time that the father’s other child C spends time with the father in Darwin;
(c) In the event the father is in Canberra and provides the mother with 14 days’ notice of the same the child is to spend time with the father between 9:00am and 5:00pm while the father remains in Canberra; and
(d) The child’s time pursuant to Order 9(a) and (c) be in the substantial attendance of an agreed third party, and failing agreement the paternal grandmother.
6. That the mother will facilitate phone calls between the father and the child each Monday, Wednesday and Friday between 5:30pm and 7:00pm or as otherwise agreed.
7. That the mother make the child available to spend time with the paternal grandmother as agreed with the paternal grandmother and failing agreement at least once per week.
8. That the mother take all reasonable steps to facilitate regular time occurring between the child and his sibling, X.
AND IT IS ORDERED:
9. That the parties attend a Conciliation Conference with a Registrar of the Court at Darwin on 29 June 2021 at 2:00pm (NT Time).
10. That the applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.
11. That the Respondent reimburse the Applicant one half of the Conciliation Conference fee within 14 days thereafter.
12. That within 28 days of the date of this order the parties provide mutual informal discovery of all documents in their respective possession, custody or control.
13. That the parties prepare a draft joint statement of assets and liabilities within 28 days of the date of this order.
14. That with respect of any asset the value of which is not agreed the parties obtain a joint written valuation at their joint expense to be available within 14 days prior to the conciliation conference.
15. That in the event either party seeks a superannuation splitting order that a copy of the proposed splitting order be served upon the Trustee of the superannuation fund at least 14 days prior to the conciliation conference.
16. That in the event that valuations have not been agreed by the parties they are to notify the Registrar 14 days prior to the conciliation conference and confirm if the conference is to proceed.
17. That both parties produce to the other fourteen (14) days prior to the conciliation conference, documents as prescribed in Annexure A to this order.
18. That the matter is listed for trial on 1, 2 and 3 September 2021 at 10.00am (allowing three days).
19. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness and updated financial statement complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.
20. That on or before 28 days prior to trial the applicant pay the setting down fee and such further daily hearing fee should the matter continue to day 3 and the respondent pay such further daily hearing fee on day 2 as required pursuant to the Family Law (Fees) Regulation 2012.
21. That at least 48 hours prior to trial, Counsel for each party and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:
Parenting orders
(a) a list of the material relied upon;
(b) a brief chronology listing significant events;
(c) a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);
(d) a list of other contentions relevant to the decision;
(e) whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;
(f) a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);
(g) a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and
(h) the actual orders sought.
Property orders
(a) a list of the material relied upon;
(b) a statement of any agreed facts;
(c) a brief chronology listing significant events;
(d) a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(e) main contentions in dispute as to:
(i) inclusion in the pool; and
(ii) value of assets;
(f) list of contributions claimed or contended for (including expression as a percentage);
(g) list of other factors relied upon (section 75(2) factors) and percentage adjustment contended for;
(h) other relevant contentions to determining a just and equitable division of property; and
(i) the actual orders sought.
22. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.
23. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.
24. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.
25. That the parties have liberty to apply.
AND IT IS FURTHER NOTED:
A. That if in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B. That affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C. That further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D. That if s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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