FEDERAL CIRCUIT COURT OF AUSTRALIA
| JUKES & KEELING (No.2) | [2019] FCCA 1095 |
| Catchwords: FAMILY LAW – Parenting – best interests of child – conduct of parents – family violence – abuse – neglect – cooperative and child focused parenting – allegations of sexual abuse – split of parenting and property issues – leave to introduce evidence late in proceedings – late filing – court resources. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 4AB(2) 60B, 60CA, 60CC, 60CC(2A) 61DA, 65DAA(5), 65DAC, 69ZN Federal Circuit Court Rules 2001 (Cth), rr.7.01, 15.09, 15.12, 15.14, 15.29(a) Federal Circuit Court of Australia Act 1999 (Cth), ss.14, 62 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r.21 |
| Cases cited: Aon Risk Services v Australian National University [2009] HCA 27 Amador & Amador (2009) 43 Fam LR 268 Black & Kellner [1992] FLC 92-287 Hawchar v Dasreef Pty Ltd [2009] NSWDDT 12 Tate & Tate (No.3) (2003) FLC 93-138 New South Wales Law Reform Commission, Evidence (Business Records), Report 17 (1973). |
| Applicant: | MR JUKES |
| Respondent: | MR KEELING |
| File Number: | PAC 2767 of 2016 |
| Judgment of: | Judge Harman |
| Hearing dates: | 4 March 2019 and 5 March 2019 |
| Date of Last Submission: | 5 March 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 8 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms De Vere |
| Solicitors for the Respondent: | Broun Abrahams Burreket |
ORDERS
That the child [X] born … 2013 (“the child”) live with the mother.
That the mother have sole parental responsibility.
That [X] spend time with her father as follows:
During School Term:
(a)In each 2 week cycle:
(i)After school or 3.00pm Thursday until 9.00am or commencement of school Monday in week 1 (extending until Tuesday if a long weekend or pupil free day);
(ii)After school or 3.00pm Thursday until 9.00am commencement of school Friday in week 2.
During School Holidays:
(b)When the child is in Kindergarten:
(i)For 5 consecutive days in Term 1 on days agreed, failing agreement from 9am on the first Saturday following the end of school term until 5pm the following Wednesday
(ii)For 6 consecutive days in Term 2 holidays on days agreed, failing agreement from 9am on the first Saturday following the end of school term until 5pm the following Thursday.
(iii)For 7 consecutive days in Term 3 holidays on days agreed, failing agreement from 9am on the first Saturday following the end of school term until 5pm the following Friday.
(iv)For one half of Term 4 holidays on a week about basis with the child spending the first week with the father commencing 9am on the Saturday immediately following the cessation of school terms and concluding 5pm on…
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- JUKES & KEELING (No.2) [2019] FCCA 1095
- Case
- [2019] FCCA 1095
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the primary residence of the child, the allocation of parental responsibility, and the specific time the child would spend with each parent. Additionally, the court had to consider the father's communication with the child, travel arrangements, and the process for resolving outstanding parenting applications. A significant issue was the referral of the totality of proceedings concerning property matters to arbitration.
The court ordered that the child live with the mother and that the mother have sole parental responsibility. Detailed provisions were made for the child's time with the father, including during school terms, holidays, and special occasions, with specific arrangements for collection, return, and communication. The court also addressed the provision of contact details, notification of address changes, and the suspension of certain orders. Crucially, the court referred all outstanding parenting applications and responses to arbitration, with a clear process for the appointment of an arbitrator and the subsequent steps to be taken by the parties, including disclosure of documents and the filing of affidavits and chronologies. The matter was listed for further directions, with the understanding that this listing would be vacated upon the registration of an arbitral award.
Orders
Orders of the court
1.
That the child [X] born … 2013 (“the child”) live with the mother.
2.
That the mother have sole parental responsibility.
3.
That [X] spend time with her father as follows:
During School Term:
(a) In each 2 week cycle:
(i) After school or 3.00pm Thursday until 9.00am or commencement of school Monday in week 1 (extending until Tuesday if a long weekend or pupil free day);
(ii) After school or 3.00pm Thursday until 9.00am commencement of school Friday in week 2.
During School Holidays:
(b) When the child is in Kindergarten:
(i) For 5 consecutive days in Term 1 on days agreed, failing agreement from 9am on the first Saturday following the end of school term until 5pm the following Wednesday
(ii) For 6 consecutive days in Term 2 holidays on days agreed, failing agreement from 9am on the first Saturday following the end of school term until 5pm the following Thursday.
(iii) For 7 consecutive days in Term 3 holidays on days agreed, failing agreement from 9am on the first Saturday following the end of school term until 5pm the following Friday.
(iv) For one half of Term 4 holidays on a week about basis with the child spending the first week with the father commencing 9am on the Saturday immediately following the cessation of school terms and concluding 5pm on the seventh day.
Thereafter:
(v) For one half of the Term 1, 2 and 3 school holidays as may be agreed, failing agreement the first half in even numbered years and second half in odd numbered years.
(vi) For one half of the Term 4 school holidays as may be agreed, failing agreement in accordance with Order 3.2.4.
Special Occasions
(c) Father’s Day:
(i) Father’s Day of each and every year commencing at 9.00am and concluding at 6.00pm.
(d) Child’s Birthday:
(i) For a period of not less than (2) hours on the child’s birthday at times agreed and failing agreement between 4pm-6pm
(e) Father’s Birthday:
(i) For a period of not less than (2) hours on the father’s birthday.
(f) Christmas Day:
(i) Commencing at 3.00pm Christmas Eve and concluding at 3.00pm on Christmas Day in the year 2019 and each alternate uneven ending year thereafter.
(ii) Commencing at 3.00pm Christmas Day and concluding at 3.00pm Boxing Day in the year 2020 and each alternate even ending year thereafter.
(g) Further time spent with the Father:
(i) Such further time as the parties may from time to time agree between themselves.
(h) The mother shall spend time with [X] for the same or analogous period on each of the above occasions should [X] be in the care of her father on those days.
4.
Implementation of orders for the time spent with child:
(a) To give effect to orders 3:
(i) The father shall collect the child from the child’s school at the commencement of the child’s time with him and the father shall return the child to the child’s school at the conclusion of the child’s time with him.
(ii) At other times the father shall collect and return the child from the maternal grandparent’s home.
(iii) The father will deliver and collect the child to and from any of her curricular activities or sporting activities as agreed upon between the parties when the child is spending time with the father.
5.
Father’s communication with the child:
(a) Telephone communication at all reasonable times.
(b) That the father be at liberty to forward letters, email, mail and any items to the child and that the mother hand same to the child when the child is able to read.
(c) That each party cause the child to telephone the other party at least twice per week when the child is on holidays with that party.
6.
Contact details:
(a) That both parties each provide to the other in writing a telephone number and address during the period when the child lives with or spends time with either parent during holiday time at least (7) days prior to the holiday time.
7.
Change of address:
(a) That in the event that either party moves from where they live that party will notify the other (2) weeks prior to such move of any change of address and telephone numbers where that party can be reached.
8.
Suspension of orders:
(a) That orders 3.1 and 3.2 be suspended:
(i) During such times as the child is living with the mother during the school holidays.
(ii) From 9.00am until 6.00pm on Mother’s Day each and every year.
(iii) For a period of not less than (2) hours on the child’s birthday at times agreed and failing agreement between 4pm-6pm.
(iv) Each and every year commencing at 9.00am and concluding at 6.00pm on the mother’s birthday.
(v) With agreement between the parties for a holiday with the child twice a year (for up to one week at a time) with four (4) weeks notice to the father.
9.
Additional matters:
(a) That both parties be at liberty to approach the child’s school to obtain copies of all school reports, circulars and any other document relating to the child’s schooling.
(b) That the mother provide the father with the following:
(i) The names and addresses of the child’s treating doctors and dentist; and
(ii) The details of the child’s extra-curricular activities.
(c) That each party immediately notify the other if the child is seriously ill or is to be admitted into hospital at such times as the child is living with that party.
(d) That neither party denigrate the other or members of the other’s family to the child or in the presence of the child or at all.
10.
Removal of the child from the Commonwealth of Australia:
(a) That pursuant to section 65Y(2)(b) of the Family Law Act 1975 (Cth) each parent be at liberty to travel outside of the Commonwealth of Australia with the child during the time that that child is living with or spending time with that parent (or for such other period as agreed between the parents in writing) provided that:
(i) Not a convention country listed in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986; and
(ii) Classified by the Department of Foreign Affairs and Trade as “Level 2 – Exercise a high degree of caution” or higher at the date of travel.
(b) The parent intending to travel with the child provides to the other (4) weeks written notice of his or her intention to travel.
(c) The parent intending to travel with the child provides to the other (4) weeks prior to such travel a detailed itinerary of the proposed travel (including details of the departure and return dates, destinations, flight numbers, methods of travel and where the child will be staying, emergency contact numbers, copies of documents sufficient to demonstrate that the child and the travelling parent has paid for return tickets, and at least one telephone contact number for the other parent to communicate with the child during the absence).
(d) Neither parent is to take the child out of Australia for a period of more than (3) weeks without agreement between the parties and permission shall not be unreasonably withheld.
(e) That the travelling parent will ensure that the child is fully vaccinated for the destination(s) of travel.
11.
Retention of the child’s travel documents:
(a) That the child’s travel documents shall be held by the mother;
(b) That the mother release the child’s travel documents to the father at least (14) days prior to any travel pursuant to these orders and the father return such travel documents to the mother within (14) days after the travel has concluded; and
(c) That in the event that the travel documents of the child has expired, or will expire within (6) months prior to the proposed date of travel the mother shall make an application for issue of further Australian travel documents for the child under the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision) and the father and mother shall do all acts and things and sign all documents necessary to ensure that the travel documents are renewed.
12.
Pursuant to section 13E of the Family Law Act 1975, the totality of proceedings between the parties pursuant to Part VIII are referred to Arbitration to be conducted by an Arbitrator (being an arbitrator appearing upon the list of qualified arbitrators maintained by AIFLAM pursuant to Regulation 67B Family Law Regulations 1984) as agreed between the parties or failing agreement the Respondent shall within 7 days provide to the Applicant the names and details (including cost) of 3 proposed arbitrators and the Applicant shall within 7 days of receipt select one of the three nominated arbitrators.
13.
Upon an Arbitrator being agreed or appointed then each party shall forthwith:
(a) Do all things, sign all documents and give all consents, authorities and instructions as are necessary to retain that Arbitrator including executing an Arbitration Agreement which, in default of agreement between the parties as to the terms of that agreement, shall be in accordance with the AIFLAM Arbitration Kit August, 2016;
(b) Fix a date for Arbitration such date to be no later than 49 days from the date of appointment of the arbitrator;
(c) Attend at such times, dates and places as nominated by the arbitrator for the purpose of conducting and completing the arbitration;
14.
Within 28 days of the date of appointment of the arbitrator each party shall:
(a) Pay one half of any fees charged by the Arbitrator (including payment of funds into trust if so requested);
(b) To the extent that they have not already done so, disclose to the other party (by provision of a copy of the document to the other party) each document within their possession, custody or control and which would tend to prove or disprove any allegation of fact raised in the proceedings and, further, any document not disclosed prior to or in accordance with this order cannot be tendered, admitted or relied upon;
(c) Provide to the arbitrator and the other party:
(i) A copy of all documents which they propose to rely upon at arbitration including the application or response in accordance with which orders are sought by that party and one Affidavit of evidence per witness, such affidavit material to contain all of the evidence relied upon by that party at arbitration;
(ii) A joint chronology of events setting out those matters that are agreed and where an event is alleged by one party but not agreed by the other party a reference to the evidence of each party as to that event;
(iii) A joint statement of agreed facts;
(iv) A summary of the findings of fact that each party urges the arbitrator to make and suggested to support the relief that is sought and identifying the paragraph numbers of the affidavit material which is suggested to support the making of such findings of fact.
15.
Leave is granted to the Arbitrator and the parties to apply to relist the proceedings on 14 days’ notice in the event that further Orders or directions are required and provided that in the event that such liberty is exercised then the person seeking to relist the proceedings shall:
(a) Make the request for relisting in accordance with the Federal Circuit Court protocol as to communication with chambers;
(b) Forthwith notify all other parties and/or the arbitrator of the relisting;
(c) Contemporaneous with notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, such evidence as is relied upon by the party in seeking such orders.
16.
Leave is granted to vacate the future listing of the proceedings upon the arbitrator’s award being registered with the Court or upon Terms of Settlement being filed and Orders made in Chambers.
17.
The Respondent will provide to the Applicant within seven days the names and details (including cost) of three proposed arbitrators and the applicant shall within seven days of receipt select one of the three arbitrators.
18.
All outstanding parenting Applications and Responses are dismissed and all issues are removed from the list of matters awaiting hearing.
19.
The matter is listed for further directions on 20 September 2019 at 9:30am.
20.
THE COURT NOTES that the further listing date will be vacated upon the registration of an arbitral award.
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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