JUKES & KEELING (No.2)
[2019] FCCA 1095
•8 March 2019
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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;
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.
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.
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.
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.
All outstanding parenting Applications and Responses are dismissed and all issues are removed from the list of matters awaiting hearing.
The matter is listed for further directions on 20 September 2019 at 9:30am.
THE COURT NOTES that the further listing date will be vacated upon the registration of an arbitral award.
IT IS NOTED that publication of this judgment under the pseudonym Jukes & Keeling (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2767 of 2016
| MR JUKES |
Applicant
And
| MS KEELING |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to issues of both property adjustment and parenting. However, this judgment disposes of only that portion of the dispute relating to parenting.
The parenting arrangements concern a young child, [X], born … 2013. [X] is presently five. She will, later this year, turn six.
The parties to the proceedings are [X]’s parents; her father Mr Jukes, the applicant; and her mother Ms Keeling, the respondent.
The parties were married and they have separated but are not yet divorced or so it would seem.
The issues for trial, as would be apparent from the above, related to both financial issues and parenting. It was not possible for the property adjustment proceedings to be heard at the same time as the parenting aspect of the matter for reasons that I will detail shortly.
This judgment is delivered on an ex tempore basis. One would hope that this reality would be taken into account in any appellate controversy.
There has not been time available to draft and settle a nuanced written judgment to a degree of sophistication that would more readily address each and every aspect of the evidence in the proceedings.
The judgment is delivered on an ex tempore basis as the parenting arrangements for [X] require determination, and conclusive determination, as promptly as possible. That arises from a number of circumstances not the least of which is the reality that this young girl has recently commenced school, earlier this year, and both parents urge the Court that change to the present arrangement is fundamentally necessary.
The judgment needs to be delivered in a timely fashion. If judgment were reserved, it is unlikely that judgment would be available to the parties in anything under three months. Whilst that is fixed as the time period in which judgments are intended to be delivered, I do not, in fact, have a judgment writing day in the next three months which could accommodate it.
Since this matter has concluded submissions late on Tuesday of this week, four further cases have been heard and determined to finality, such is the Court’s workload. It is not possible for reservation to occur without significant delay, which is contraindicated by the matters that the parties agitated.
There are other aspects, however, that must be considered. I would not proceed to deliver these reasons on an ex tempore basis if I did not feel that I understood the evidence. I am satisfied that I understand the evidence that the parties have given and the submissions that counsel have put, even though some submissions do not find favour.
I am also conscious that in this case, as in many, justice is best served by the parties hearing the reasons that are given for the making of orders that will affect their lives and the life of their child. Some things are, as it were, better said to the face. Indeed, each of these parties has advanced that proposition with respect to apology, something of significance in the matter and which will be dealt with in due course.
I am conscious that both of these parents should hear the reasons that are given rather than to provide to them a document of 100 pages or so with sterile words on paper for them to read.
Separation of issues
The matter has proceeded, with respect to parenting, only for a number of reasons. Firstly, and predominantly, a quantity of material has been filed or disclosed late in the proceedings. It is suggested that as recently as the evening of the working day prior to the commencement of the hearing that several ring binders of material was produced by way of disclosure for the first time in these proceedings.
A number of affidavits were filed in the days leading up to the hearing and, indeed, on the morning of the hearing. Those affidavits, with one exception, related to the financial issue. Objection to reliance upon that material was taken by the respondent and appropriately so. How it is envisaged the due process can be afforded to a party when they are served with material on the morning of a trial, is beggars belief.
The applicant clearly indicated that they were not in a position to proceed with the financial aspect of the case without the material, late filed as it was, being admitted and read. The applicant went so far, by submissions made by his counsel, to suggest that appealable error would be committed if the Court were to do so. That is somewhat to hold a gun to the Court’s head. It is as though to say to the Court: “I have disregarded all orders and directions as to the timely preparation of this case but now you must ignore my contumelious disregard, not only of those directions, but of any concept of due process and case management lest appeal follow”.
The more concerning aspect, however, is an impermissible amendment of the applicant’s case, at least in relation to the financial aspect of the proceedings. Amendment also occurred with respect to parenting relief sought but was of less concern.
An issue was sought to be joined by the applicant, a significant issue, comprising a plea for spouse maintenance for a period of six years from the date of the order. That is so, notwithstanding:
a)The complete denial of due process to the respondent of making that amendment on the day prior to the trial commencing, noting the proceedings had been on foot for two and a half years and no such order has previously been sought;
b)That affront to common law principles that, once hearing dates are fixed, to hear and determine a controversy defined by the parties, that the parameters of the controversy are not altered; and, thirdly,
c)The existence of an order, made 30 April 2018, that the parties not join any issue to the proceedings without the Court’s leave firsthand and obtained. No such leave has been sought at any time.
Rule 7.01 of the Federal Circuit Court Rules 2001 provides that at any stage in proceedings, the Court may allow or, in fact, direct a party to amend a document in a way or on conditions that the Court thinks fit. No such leave has been sought whether pursuant to that rule or otherwise.
The material evidence that was filed and the material disclosed, on the working day prior to or on the first day of the trial, is problematic noting that the proceedings had been on foot since 17 June 2016.
The purported joinder of issue and the significant prejudice to the respondent if the matter proceeded on that amended position and with additional evidence, not insubstantial evidence, some voluminous affidavits, was abundant.
Thus, it was necessary for one of two courses to be taken. An adjournment of the entirety of the proceedings with the significant issue of costs that would then arise, let alone use of the Court’s finite resources, or the splitting of issues. The third alternative of simply proceeding with later filed material excluded was clearly signalled as leading to inevitable appeal and a cost and inconvenience to the parties.
As the High Court discussed in Aon Risk Services v Australian National University [2009] HCA 27 as well as Haset Sali v SPC Ltd [1993] HCA 47, the Court is responsible for the control and allocation of its own resources. Responsible not only to individual litigants but to the community at large. With a judicial docket well in excess of 400 it is difficult to allocate hearing dates in a timely fashion at all when such dates, even when available, are allocated many months in advance. The orders of 30 April 2018, nearly 12 months ago, were those which fixed the matter for trial, albeit slightly earlier dates which were subsequently altered.
As it is easy to identify the delays which arise from such a volume of work, the Court has a responsibility for the efficient use of resources as do the legal practitioners for parties as officers of the Court.
These parties are both competently legally represented by significantly experienced practitioners. Rule 21 of the Uniform Solicitors’ Conduct Rules require that the Court’s coercive jurisdiction not be invoked other than, effectively, as a last resort and that the Court’s resources then be used effectively once invoked.
It is inefficient and inappropriate for a litigant to seek to file material on the morning of or the day prior to a trial. It is an affront to justice and management of the Court – let alone that fact that there were orders which clearly directed when material was to be filed.
As the Full Court discussed in Tate & Tate(No.3) (2003) FLC 93-138 directions as to the filing of a document are orders of the Court and compliance therewith is expected. That is all the more concerning as a number of the documents filed went to issues of valuation. The matter had been before the Court only some weeks earlier, on 8 February, in relation to an Application in a Case filed by the applicant. At that time the Court was advised that there was no controversy whatsoever in relation to valuations.
The second alternative, other than adjournment of the entirety of the proceedings, was to split the issues. There is no requirement within the Federal Circuit Court Act or Federal Circuit Court Rules to hear all issues together, save and except that which might be inferred from section 14 of the Federal Circuit Court Act (providing that, in every matter, the Court must grant all remedies or other relief on such terms and conditions as considered appropriate and with a view to avoiding a multiplicity of proceedings concerning those matters). That does not, however, bind the Court to hear all issues together. It is simply a matter of practice that has developed, predominantly, because it is usually the most efficient use of the Court’s resources. Rather than two hearings of two days, a hearing of two or three days to determine all controversies is preferable.
The parenting issue, thus, was separated as the child’s best interests require it. It will occasion greater cost to the parties. There will now be the need for the determination, thankfully, subject to the consent of the parties, by an arbitral tribunal, but there is also then the issue of costs that will arise. I am satisfied that, in this case, costs can and will remedy the disadvantage that might otherwise flow to one or other of the parties through the issues being split and, the property adjustment and other financial issues as now purportedly joined, determined separately.
The best interest of the child, however, cannot be addressed by a costs order. The disadvantage that each of the parents and the report writer suggest apply for this child, at this point in time, not entirely as a consequence of but largely connected with the child commencing school, is not remediable by a costs order. What is suggested by all to be required is change. For that change to occur, in this case, it means a hearing of the cause. The parents cannot agree on any change.
I also observe that the matter had been specially fixed with priority, hence, no other matters were listed against or behind it. It was the only business that the Court had for those two days and, accordingly, if all proceedings had been adjourned, it would have been somewhat disadvantageous to other Court users who would not have had the benefit of the dates.
Priority had been given on the basis that the earlier fixed hearing dates, October 2018, had been varied. They were varied prior to the commencement of trial and, thus, the matter was not marked, not reached but priority was given as some form of apology to the parties, if it might be so described, that they had been put to the inconvenience of preparing for a hearing which then did not proceed for another four or five months.
At the time that the October dates were varied and the present dates fixed, both parties had advised that they had filed all material relied upon. Clearly, they had not.
The material that was filed in the applicant’s case was, by large and substantially, exclusively in relation to the financial aspects of the matter, new material. It is material that can and should have been obtained, if it was considered important, for the proper management and presentation of the case, much earlier and filed prior to and in anticipation of the October hearing.
The new material raises issues of valuation, historical in nature, as well as potentially seeking to adduce adversarial evidence in relation to agreed joint experts. Valuations had been prepared by single experts pursuant to rule 15.09 of the Federal Circuit Court Rules. As already indicated, when the matter was mentioned as the consequence of the filing of an Application in a Case, it was confirmed that all valuations were agreed. Clearly, there would appear to be some challenge to at least aspects of them.
Evidence was also filed by an accountant relating to purported capital gains tax. That is certainly a circumstance that can and should have been addressed and assessed much earlier, but was not. The wife is entitled to make her own inquiries. For example, one of the properties the advice in relation to capital gains tax relates to was, for the majority of the time that the husband has been its registered proprietor, been an investment property but it is now and has, for the last few years, been the husband’s principle place of residence. Thus, that circumstance may impact upon the assessment now advanced on the husband’s behalf.
No leave was sought to adduce any of the above evidence or to introduce it late. It was simply filed and with some arrogance perhaps on the applicant’s part and the assumption made that the Court would accept it and roll over. The respondent’s counsel raised objection. If the respondent had been self-represented, it may not have been so.
Rule 15.12 of the Federal Circuit Court Rules require that when a joint valuation is prepared or any Court appointed expert has adduced evidence, that further adversarial expert evidence can only be produced with leave. None has been sought.
The applicant otherwise asserted that the matter must proceed as the proceedings related to the child’s best interests. Those interests are certainly paramount with regard to the parenting aspect of the proceedings. However, I make clear, to not only discourage and dissuade but, I would hope, terminate once and for all the practice of late filing, particularly filing on the day of or the day prior to a trial, that the expectation that one might stand at the bar table and assert the child’s best interests are paramount, therefore, any dalliance, delay or contumelious disregard of Court’s orders as to the filing of material should be overlooked or excused, cannot and it will not succeed.
The child’s best interests do not obviate, by and of themselves, against due process. And I am certainly conscious, as discussed by Forrest J in Gordon & Gordon [2015] FamCA 616, that there are circumstances where due process may need to yield to the child’s best interests. In that case his Honour was making orders on a final, ex parte basis and his Honour observed that such action may, to the casual observer, seem an affront to due process. In the circumstances decided by his Honour clearly it was not.
However, in this case the material to be introduced, with regard to the parenting aspect of the matter, was simply updating evidence if it might be so described. That evidence could and should have been filed some time earlier than it actually was. The wife certainly attempted to file an updated affidavit, to bring matters up to date, permissibly so in light of the vacation of the earlier trial dates. It was filed and served nearly two weeks before the hearing, not the day before.
The paramountcy of the child’s best interest also cannot have any relevance to the financial aspects of the proceedings. Accordingly, that is another basis upon which the issues are split.
Raising the child’s best interests does not ameliorate against the prejudice that the respondent would have suffered, especially when there was no explanation for the lateness of the material. Simply surprise to the wife whom, it would seem, was not given notice that material was anticipated as likely to be forthcoming.
Accordingly, the first hour and a half of the hearing was lost whilst the respondent and her counsel, entirely appropriately, had time to consider the parenting material, take instructions and give advice. The material was not particularly prejudicial or difficult to meet in those circumstances in relation to parenting. It was in relation to the financial aspect of the proceedings.
The children’s best interests, as already indicated, require determination and both parties agitate that there is some urgency to that determination. It has proceeded accordingly as the best interest principles in section 69ZN of the Family Court Act dictate that it be so. Those principles set out below all support the splitting of issues and the determination of parenting aspects of the matter.
69ZN Principles for conducting child‑related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
That is particularly so, as the Court must consider the needs of the child and the impact of the proceedings upon that child. The further delay would have been substantial. If this matter was adjourned then the matter could not have been heard this year. Thus, a school year would pass for this young child, when both parents suggest, albeit for different reasons that the arrangement is not working for the child it would have continued for another year.
The second principle is that the Court must actively direct, control and manage the conduct of the proceedings. Thus, it is the Court’s decision as to whether issues proceed at the same time or not and what material is to be considered.
The third principle is that the proceedings are to be conducted in a way that will safeguard the child from abuse, neglect or family violence and protect the parties from family violence. This is a case in which there are significant allegations of family violence raised by the respondent, that is, not to determine them at this point. Certainly those allegations were not considered, other than for the fact allegations were raised, for the purpose of the splitting of issues.
The fourth principle is that proceedings should, as far as possible, be conducted in a way that will promote cooperative and child focused parenting. It was a real issue in this case as to how cooperative the parents are and how child focused each is. An adjournment and a further delay approaching a year, would not have assisted at all.
The fifth and final principle is that proceedings are to be conducted without undue delay and with as little formality as possible. It is the delay that concerns me.
As was submitted on behalf of the respondent, the Court has an obligation to ensure that it has before it all of the evidence that is necessary to determine the controversy the parties present and that challenged evidence be properly tested. Those two propositions are contrary to the property aspect having proceeded.
Whilst the Court is required to ensure that all available evidence is present, when parties are competently represented it is the obligation of those practitioners to ensure that the evidence is presented. As regard to the testing of evidence, it could not be tested when it is only received on the morning of the trial. There is no opportunity to make any inquiry or to take proper instructions or give proper advice.
As both parties have agitated that the child’s arrangements require consideration, address and change, albeit for very different reasons, the parenting arrangements should be determined as expeditiously as possible. Both parents suggest that the present arrangement is not meeting the child’s best interests.
The matter has been on foot for two and a half years. During that time multiple issues had been raised with the Court, a number of Applications in a Case have been filed and the parties have raised significant issues either with the Court or with other agencies relating to the child’s welfare. All of that dictates that the parenting aspect of the matter can and should be concluded as soon as possible.
There is a suggestion, at least on the respondent’s part, that there is ongoing conflict and disadvantage between and to the parties and their child. That warrants the expeditious determination of the parenting aspect.
Finally, a complaint was raised that the matter could not have been contained, in any event, to the two days allocated and that it was a manifestly inadequate period of time for the hearing. The hearing dates were fixed, initially, some eight months after the call-over date and, ultimately, nearly a year after the call-over date. Neither party had sought to bring any application to vacate the trial or raise any other issue.
Indeed, there are two aspects that require comment. Firstly, the parties are required to conduct their business before the Court efficiently and effectively. That has not necessarily occurred at all times in this case and certainly not with regard to the applicant’s case on day one of the trial.
However, the parties must conduct their case within the time that the Court allocates to them. It is not necessary for them to address and agitate each and every issue that they might desire or consider important. What is necessary is to address the evidence that goes directly to the issues that the Court must determine.
Secondly, it must be observed that the parenting aspect of the proceedings is relatively non-complex. Neither party raises at hearing at least, although at earlier times they most assuredly have, any issue of risk to the child by way of abuse, neglect or family violence. Thus, the Court is presented with proposals by these parties that represent, on the applicant’s case, equal time (although, in reality, it is a slight preponderance of time in the applicant’s favour) and, in the respondent’s case, substantial and significant time.
There was no need to chase every rabbit down the hole, as it were, by cross-examining each of the parents repeatedly on issues that do not directly bear upon whether an equal or substantial time arrangement is to be preferred.
Surely, by the relief the parties propose, it is conceded that the child’s best interest will be served by an abundant relationship with each parent. There is, of course, in this case also an issue as to the allocation of parental responsibility but that, of itself, is not particularly complex. It is a significant issue but the evidence relating to it, having now heard it, is far less complex than the parties, one, other or both, might have perceived.
The financial aspect of the matter is also remarkably non-complex. There is certainly an issue regarding initial contribution, the parties being factually at odds as to what was introduced, its value and whether it was encumbered and, if so, how heavily. But that is the only real issue of significance in the case. That is a factual issue which can and should have been determined by disclosure, discovery and the efficient and early obtaining of valuations. Not valuations filed on the day of, or the day prior, to trial.
Accordingly, two days was sufficient for the matter to be properly conducted and ventilated albeit not in the fashion that one or other of the parties may have desired.
The parties have an obligation to tailor the conduct of their case to the time that the Court allocates and to ventilate issues only of genuine importance and relevance.
That also arises from Full Court authority as well as section 62 of the Federal Circuit Court Act. The Court can give direction about limiting the time for testimony. The time must be adequate, otherwise it would deny due process. But parties do not need two days to cross-examine each other about non-complex issues.
Lest there be any future controversy with respect to the separation of issues, it is for those reasons that the matter has proceeded with respect to parenting only. The property issues will now be determined by arbitration.
Applications, Responses and proposals of the parties
The proceedings were commenced by an Application Initiating Proceedings filed on 17 June 2016. Thereby, Mr Jukes had sought, although it was certainly not the relief pressed at final hearing, that young [X] would live with him, that he would have sole parental responsibility for [X] and that the mother would spend time with [X] each alternate weekend from 3.00 pm Friday until 3.00 pm Sunday and for other periods during school holidays and for special events and the like.
An airport watch list order was sought together with a number of injunctions with respect to discipline and such matters. That application was amended relatively early in the proceedings. On 15 May 2017 an amended initiating application was filed. However, it did not dramatically alter the relief that was sought. The father still pressed for [X] to live with him, to spend time with the mother for alternate weekends and for an allocation of sole parental responsibility. The substantial changes related to property.
A Further Amended Application was filed on 1 March 2019 or the evening thereof, to be precise. Thus, on the evening prior to the anticipated trial, amendment occurred which, for the purpose of parenting substantially changed the father’s position. The father now sought equal shared parental responsibility for [X], for [X] to live with her mother and to spend time with her father, Mr Jukes, from 4.00pm Sunday until 10.00am Wednesday in one week and from 9.00am Friday until 10.00am Tuesday in the next week.
That is, in reality, seven nights per fortnight with each parent but slightly more time during the day with the father. There are then orders sought with respect to time on special occasions and the like which provide solely for time in favour of Mr Jukes without a corresponding or collateral provision for the same time or similar time to be spent by Ms Keeling. Hence, my earlier reference to the reality that it is slightly more time with the father than an equal time arrangement.
That is particularly curious as the application is expressed as proposing that the child live with the mother and spend time with the father. Not a great deal turns upon that semantic exercise but one would think, in those circumstances, that the child would either live with each parent at different times or spend time with each parent at different times.
Ms Keeling’s Response when initially filed 13 July 2016. That Response proposed, in relation to parenting, that [X] live with her mother, that Ms Keeling have sole parental responsibility for [X] and that [X] spend time with her father from 5.00 pm Sunday to 5.00 pm Tuesday each week during 2016 and a similar, albeit slightly earlier end time, continuing thereafter but still Sunday to Tuesday.
By an Amended Response filed 8 March 2017 Ms Keeling persisted with seeking orders for [X] to live with her and to be allocated sole parental responsibility but, instead, proposed that [X] spend time with her father from Friday until Monday each alternate weekend and for other periods during school holidays and for special occasions.
It is also to be observed that at the time of family report interviews Ms Keeling had suggested that she desired supervision of that time. I will deal with that issue in due course and at the appropriate time. It is certainly no longer pressed and I do not raise it or refer to it as a criticism of Ms Keeling.
At trial Ms Keeling moved upon a Further Amended Response filed 13 March 2018. That Response proposed that [X] live with her mother, that Ms Keeling have sole parental responsibility and that [X] spend substantial time with her father, Friday to Monday each alternate weekend and Thursday to Friday in the intervening week.
Suffice to observe that this change came about proximate to the release of the family report and very much takes up the recommendations that were made or at least one aspect of those recommendations.
The relief that was sought by each party at hearing is essentially in accordance with the most recently filed Application or Response.
In the case outline provided by counsel for each of the parties, further orders were set out. Those orders do not dramatically depart from or significantly vary the relief as discussed above.
History of proceedings
It is germane to consider the journey that this matter has followed to its final conclusion, at least in relation to parenting. When Mr Jukes’ application was filed it was allocated a date in the usual course. There was no application for a consent to abridgment of time made to a registrar in chambers. That is unfortunate, as at the time that application was filed, young [X] was in the care of the father and the father was not facilitating time between [X] and the mother.
Between a date in June 2016 and 15 August 2016, when the matter first came before this Court, [X] did not spend time with her mother, save for three periods of time supervised by a commercial service.
On the first return date of the proceedings and notwithstanding the above circumstance, one which might be taken to suggest a real concern as to risk for the child, orders were made, following a contested interim hearing rather than by consent, for [X] to spend time with her mother for two day only periods on 20 and 21 August, that time to be supervised by the maternal grandmother. Orders were made imposing certain restraints on the behaviour by each of the parties. That order is expressed as having been made without admissions to the mother’s position and presumably also the father’s.
On 24 August 2016 a judgment was delivered by the then docketed judge, the orders of 15 August being intended to fill the void, as it were, between the interim hearing and delivery of the judgment, expeditiously delivered as it was.
The orders of 24 August 2016 are those which continue to operate. They provide that the mother will have sole parental responsibility for [X], that [X] will live with her mother and spend time with her father in each week from 4.00 pm Sunday until 10.00 am Wednesday as well as provision for periods of time at Christmas and the like.
A number of injunctions were issued restraining the mother from physically disciplining the child, assaulting the child or permitting or allowing any other member of her household to do so. Both parties were restraining from denigrating the other.
The matter was then back before the Court on 9 March 2017. At that point in time the applicant was directed to file and serve a reply addressing the property issues which had been introduced to the proceedings by Ms Keeling. A family report was ordered at the Court’s expense and the proceedings put over to await completion of the family report. The matter was also listed for mention 3 July 2017 in relation to the property adjustment aspect of the proceedings only.
The matter was then back before the Court on 3 July at which point in time a number of orders were made by consent in relation to property valuation, they being orders pursuant to rule 15.09 Federal Circuit Court Rules appointing single expert valuers. Orders were made for the parties to attend Family Dispute Resolution and the matter put over to the date which had already been allocated pending the anticipated release of the family report.
During the adjournment period an Application in a Case was filed. That Application in a Case would appear to have come before the Court on 13 February 2018. By that date the family report had been released, approximately a fortnight earlier. Orders were made by consent which required that the parties notify each other, via their solicitors, prior to instigating any further investigation by the Department of Family and Community Services. The period April to August 2017 had seen a significant number of reports to the Department giving rise to the child being interviewed by Departmental officers.
The parties were also restrained from questioning [X] about any allegation of abuse by the other parent or their partner or member of the other parent’s family. In reality, there is no evidence lead in the proceedings that the mother has ever done so, nor allowed or permitted anyone else to do so. It would appear that the order was mutualised rather than being specifically directed to the parties for deliberate purpose. Trial directions were also made to move the matter forward.
The proceedings were to be allocated hearing dates before a visiting judge. However, due to changes in circuit arrangements, that listing did not eventuate. The proceedings, accordingly, came before me on 30 April 2018, having left the docket of the original judge. At that time the original trial dates, in October 2018, were fixed and an order made that no further issue be joined without the Court’s leave. Those dates, as indicated, were subsequently amended due to difficulties with the calendar and resourcing.
On 8 February 2019 the matter came before the Court in relation to an Application in the Case by which certain orders were sought with respect to the release of information by the Australian Transaction Reports and Analysis Centre. A number of orders were made relating to that application and the proceedings otherwise adjourned to hearing.
The hearing, as already indicated, proceeded and the parenting aspect determined, having been contained to the two days allocated.
Material considered
In dealing with the proceedings I have read and considered the Applications and Responses as above and the Case Outline documents provided by counsel for each of the parties, which also enumerate the parties’ documents.
In the case of the husband, that has comprised his affidavit sworn or affirmed 6 March 2018 and filed that date, an affidavit sworn or affirmed 1 March 2019 and filed that date, and two notices of risk, one filed 17 June 2016 and one filed 7 March 2018.
Reference was made in opening submissions to an amended notice of risk having been filed on 1 or 4 March 2019. However, no record can be found of that document. In any event, it was indicated that the purpose of filing the amended notice of risk was to make clear that no allegations were raised. Indeed, the notice filed 7 March 2018 fills that purpose.
In the wife’s case I have read and considered, in addition to the above material, three affidavits by the wife filed respectively on 13 March 2018, 4 October 2018 and 25 February 2019 together with an affidavit of the maternal grandmother Ms A sworn or affirmed 9 August 2016 and filed 10 August 2016, an affidavit of Mr B, the mother’s partner, sworn or affirmed 13 March 2018 and filed the same date together with two notices of risk filed in the mother’s case, one by her former attorney, one by her current attorney.
Whilst the former notice raised significant issues the subsequent notice, filed 15 March 2018, raises issues with respect to family violence only. I do not suggest that this in any way discounts the wife’s position. It is simply the reality of the document.
Each of the parties attended for cross-examination as did Mr B. Ms A, the child’s maternal grandmother, did not attend for cross-examination. However, I intend to admit her evidence without challenge pursuant to rule 15.29(a) of the Federal Circuit Court Rules allowing the Court to dispense with the attendance for cross-examination of a person making an affidavit and to admit the affidavit, without cross-examination. That arises for a number of reasons.
Firstly, there is no controversy that notice had not been given and that any deponent was required for cross-examination before the matter was called for hearing on the first day of trial. The above rule was raised by counsel for the applicant to the extent that it is or was suggested that the rule would require the respondent to make application to the Court to dispense with cross-examination. I do not accept that this is how the provision can or should be interpreted.
It should be interpreted, in combination with the sections of the Federal Circuit Court Act to which I have already referred and the section 69ZN Family Law Act principles, as well as the analogous provision in the Family Law Rules, rule 15.14. That rule provides that a party seeking to cross-examine a deponent must give at least 14 days’ notice of that fact.
The Federal Circuit Court Rule set out above should be interpreted consistently with the balance of provisions. Thus, if notice is given and a witness is not available the Court retains a discretion to admit the evidence without cross-examination rather than imposing an obligation upon a party to seek that a witness not be required for cross-examination, even though no desire or intent to cross examine has been communicated.
In addition, to the above evidence there are a number of exhibits:
a)Exhibit A, the family report;
b)Exhibit A1 text messages from 2015 sent by the mother to the father;
c)Exhibit A2 text messages from March/April 2016;
d)Exhibit A3 police material as tagged;
e)Exhibit R1 the statement of agreed facts;
f)Exhibit R2 police material as tagged;
g)Exhibit R3 a letter from the husband’s then solicitors to the wife’s solicitors dated 8 May 2017 suggested to detail the father’s allegations of sexual abuse made at that time and subsequently retracted;
h)Exhibit R4 material from the Department of Family and Community Services as tagged;
i)Exhibit R5 email correspondence from April 2018 related to the child’s school enrolment;
j)Exhibit R6 three different colour coded calendars suggested to represent the effect of different proposals as to time.
Conduct of the hearing
The matter proceeded for its two days and concluded within time but, sadly, with no time available for judgment, even though, at the commencement of the case, it had been made clear that this was the expectation. I do not intend to be critical of counsel in that regard. It is simply a reality that the case consumed more time in cross-examination and submissions, than was intended. Perhaps that is also explicable by the loss of the first hour and a half of the hearing whilst the wife was given the opportunity to confer with her counsel about material she had not, till that point, seen, her lawyers only being served with it the night before.
The husband’s counsel conceded that a substantive quantity of the material, in addition to the affidavit material, had only been served or disclosed the business day prior to or on the morning of the hearing, including a quantity of material that was ultimately tendered. That material should all have been disclosed at least two years earlier.
Disclosure and the obligation to give full and frank disclosure, as discussed in Weir & Weir [1993] FLC 92-338, Black & Kellner [1992] FLC 92-287and similar authorities, applies to all proceedings before the Court, not only property proceedings. It is inappropriate and unacceptable for a party to keep documents to themselves for two and a half years and to then, on the eve of the hearing or as is it commences, provide a copy and to indicate they intend to cross-examine with respect to those documents and tender them. Due process requires better.
Disclosure is a process designed to ensure that both parties have disclosed to them the case that they will meet. That is not intended to be a duty discharged within moments of a person taking the witness box.
It was conceded that no notice had been given to the witnesses that were required for cross-examination. That is one of the bases upon which Ms A’s material is admitted. It was made clear that Ms A required an interpreter. Accordingly, a direction was given that if the applicant required Ms A for cross-examination then he would need to arrange and pay for the interpreter. None was organised, thus, she was not requited. Mr B was cross-examined although briefly.
Following submissions the matter was adjourned with judgment reserved for, thankfully, only a matter of days.
Agreed Facts
At the fortuitous listing 8 February 2019, an order was made in the following terms:
The parties shall, prior to the scheduled hearing dates of these proceedings, confer with each other for the purpose of identifying the facts that each will allege in these proceedings and to then provide a joint schedule identifying the facts that are agreed, facts that are in dispute and identifying the evidence or portions of evidence that each party proposes to rely upon in seeking to prove or disprove the facts in issue, such schedule to be tendered at the commencement of the hearing.
The schedule was, in fact, tendered as will be apparent when I enumerate the exhibits. The statement of agreed and disputed facts is, however, of very little assistance.
In relation to the parenting aspect of the proceedings, 86 facts, using that term in its loosest sense, were alleged by Ms Keeling. That which is alleged as fact sometimes simply is not. Most alleged facts were somewhat partisan and non-neutral allegations. That may well explain why of the 86 allegations only 12 were agreed by the husband and 74 were put in issue.
The statement of agreed facts includes, for example, at the very first alleged fact “the wife says the husband told her…” – and a statement following. The difficulty is that it is, in reality, not possible for the husband to agree or disagree with that or for any agreement or disagreement by the husband to prove or disprove a fact.
On the basis of how the suggested facts are framed the husband should simply have agreed with all. The husband agreeing that the wife says something in her affidavit does not prove that what she says is true. A fact is something which occurred, not such statements. They were unhelpful. In any event, the entire document does not achieve the purpose that it was intended to achieve, that is, minimising controversy.
The parties would appear to wish to agitate a great many facts.
There are a number of alleged facts which the husband concedes and which should be recited, bearing in mind the difficulty there has been in obtaining that agreement. These include:
a)The husband has spent $47,500 on forensic accounting.
b)During the proceedings the husband sought to be advised of the wife’s name as shown on her Nationality passport, noting the wife entered Australia using that passport and has not used it since the age of 12. She is now 47.
c)That on 3 June 2016 the husband rang the police to report an argument at the wife’s home at which [X] was suggested to be present. [X] was certainly present with the wife but the wife denies there was any such argument or anyone at the home who could have been involved in such an argument.
d)The wife says she has never physically mistreated [X]. Indeed, the agreement to that fact does not prove or disprove whether mistreatment has occurred, merely that the wife says she has never done so. I made clear no finding will be made that the wife has ever mistreated [X]. She has not.
e)On 8 May 2017 the husband’s lawyers sent a letter detailing allegations of sexual abuse of [X]. The suggested perpetrator of abuse was the mother’s partner Mr B. It should be noted that, at hearing, no such allegation was pressed and the allegations were suggested to be “retracted”. As I had observed to the parties and their counsel during the hearing, the lyrics of Pete Townshend come to mind, “Apologies mean nothing once the damage is done.” Certainly, that would appear apt with regard to a number of issues in this case and the distrust of the parties of each other, whether that distrust is equal or otherwise.
f)[X]’s half yearly assessment at day care raised no issue of concern regarding [X]’s toileting. One would assume that is in 2017.
g)The husband told the family report writer that he retracted all sexual abuse allegations.
h)On 16 February 2017 and 6 September 2017 the wife’s solicitors wrote to the husband’s solicitors raising concerns regarding the husband’s coaching of the child, that is, telling the child what to say or making statements to the child that might influence or impact upon a statement she might subsequently make. That is of some importance as an agreed fact as a call was made, during the hearing seeking, for the wife’s legal representatives to produce copies of any correspondence that had been sent by the wife’s solicitors, since a date in 2017, which raised that allegation. Clearly, she had. The husband agreed that it was so, thus, why the call was necessary is unclear. Further, the husband in his affidavit material, sets out the specific dates of correspondence received in respect of that issue. Accordingly, it would not appear to have ever been a fact in dispute.
i)The wife engaged with friends of the husband to arrange child care during this hearing.
j)The wife says [X] has a close relationship with the maternal grandmother and three maternal aunts. Again, the nomenclature of the alleged fact is difficult. The husband agreeing that the wife says something does not prove that [X] has such a relationship, although I readily accept that she does. It is demonstrated on the evidence.
k)The wife is assessed to pay the husband child support. Indeed, she is.
l)The husband has not paid child support since separation.
Whilst I have recited the above agreed facts, none of them, in reality, are matters of any real significance. The facts that are significant to the substantive dispute are all the subject of controversy.
Significant evidential issues
The significant areas of controversy can be clearly identified. I will deal with them by a consideration of the evidence more broadly as follows:
a)The allegation, suggested to be made by each party, of family violence perpetrated upon them by the other.
b)Allegations by the father in, June 2016, and his actions consequent there upon, by withholding the child and keeping the child in his care for a period of three months or thereabouts. The period was certainly, from June to late August 2016. During this time, as already recited above, the mother spent only three periods of supervised time with the child.
c)The sexual abuse allegations that were raised by the father against the mother and/or Mr B and/or the maternal grandmother in 2017.
d)Allegations raised by the father in relation to the child and behaviour of the child suggested to have been observed by the father at day care in August 2018.
e)The attitude of the parties towards each other.
f)The ability of these parties to effectively communicate and problem solve.
g)Lastly, whether there is any ongoing risk to [X] and, if so, what that risk is.
Credit
Wherever there is controversy on the evidence and the parties do not agree on facts, sadly the majority thereof, I accept and prefer the evidence of the mother. That is for reasons that I will discuss.
The father’s evidence was, at times, glib, verging upon, if not, in fact, arrogant. For example, when the father was asked about the absence of telephone communication between the mother and the child when he withheld the child for the three month period in 2016 he responded, “I imagine she didn’t call or perhaps I just missed the call.”
The father’s evidence was, at times, flippant and self-focused. The father was questioned about a message that the mother had sent to the father. The mother’s message asked the father a question prefaced upon the mother stating that she had researched the particular issue. The father responded “If you’ve researched this can you share the research” rather than engaging with the question put. When the message was put to the father in cross examination his response was “Yes, that would be nice” clearly intending to suggest that the mother should share research with him and had not previously.
The father’s responses to questions in cross-examination were largely non-responsive, evasive or typified by obfuscation. They were also typified by an absence of detail and simple address. That relates not only to evidence during cross-examination but the father’s evidence in the parenting aspect of the proceedings in total.
The father does not include within his affidavit material, for example, what the sexual abuse allegations were that he had raised in 2017. He simply refers to a letter sent by his solicitors. The letter referred to is not annexed to his affidavit. A call was needed for its production so it could be tendered and that issue understood.
The mother’s evidence was much clearer. Certainly, the mother engaged in a degree of unresponsiveness and dismissal of questions. For example, when it was put to her that she had sent certain texts to the father, (exhibit A1), in early 2015, in which messages she referred to the father, amongst other things, as a paedophile, her response was simply, “It was a text. I didn’t mean it,” as though that excused the entire issue (although I am not as critical of the mother for those texts as the father would have me be and for reasons that I will explain).
The mother was able, however, to accept error when she was in error. She was prepared to make admissions against interests. This was in contradistinction to the father’s evidence and to the father’s actions as demonstrated by that evidence. For example, whilst it is suggested that the texts that the mother had sent to the father were rude they were equated by the father to and were suggested to be just as bad as the father’s actions in raising allegations of sexual abuse which he then readily retracted or the father’s withholding the child for three months. The father simply could not concede that there was anything wrong with either of those actions.
Importantly, and a matter to which I will return several times, the father, by the close of his case, sought to suggest that his actions in withholding the child for those three months in 2016 and in the reports he had made to the department of Family and Community Services, was somehow justified or that there was some connection between those actions and the mother’s earlier texts. The father sought to suggest that his reports were to protect himself from allegations in light of what the mother had already said in the earlier texts. I will deal with that in more detail as it warrants and requires examination.
Suffice to observe that such justification does the father no credit whatsoever, as would be clear and apparent, for example, from the evidence of the family report writer, who, when that suggestion was put to her emitted a sound that can only be described as a guffaw and dismissed the proposition out of hand.
The mother’s texts in January 2015, rude as they are, have a context. Those text messages, a bundle thereof tendered, require some examination.
The first is not particularly problematic. It simply answers an inquiry from the father in relation to [X]. By the second page the following is found. The father sends a text:
You need to stop your rage. It’s wrong and it’s hurting [X]. Do you understand that?
The mother then responds:
You’re a rapist and you’re a sexual abuser. You and your lawyer can warn me all you like but it doesn’t change the fact you raped me the night at the Suburb C unit where you physically abused me and you sexually assaulted me back in January. You want to sue me, go ahead. Maybe I do need that push to get the case going. I’ll devote my life fighting for…the message then ends.
The earlier event, the Suburb C incident, is not readily apparent from the mother’s evidence. However, the allegation in January 2015 is very much contained in the mother’s evidence. It is an allegation that, whilst the parties were living under the one roof, the father, without the mother’s consent, digitally penetrated her. That was reported to the police. It is put in the father’s evidence and repeated in submissions, on the father’s instructions, that there was no charge preferred, as though that should somehow impact upon the weight the Court gives the mother’s evidence regarding that allegation.
Whether a person is charged with an offence or not is a forensic decision by a police officer investing the matter. It does not prove guilt or innocence. If it did the corollary would be that if the police charge a person then they must be guilty. That is why we have Courts and judicial process.
Those issues and allegations can be dealt with in a further consideration of the evidence.
There is then a message from the mother, presumably the same day:
All psychos like yourself are silent killers. They are depressed like yourself with no friends and family, no one to talk to.
It continues for some little time but need not be recited.
There is then a message:
You really love to fight, don’t you? How have you become such a pathetic lowest loser? [X] will be ashamed by you. Sooner than later she will know that you are a rapist who likes little girls too much. What do you think about that?
There is, again, a further text which need not be recited. At one point the mother sends a message threatening to report her complaints and allegations to various agencies, particularly, the police and the Department of Family and Community Services. What is readily apparent is that the mother did not do so.
Those allegations were certainly made at a point in time when the relationship between the parties was disintegrating or they had recently separated. That does not excuse them. It simply renders them explicable, not appropriate. They are views which, when first expressed by the mother, are suggested to be based in her lived experience at that time. Referring to the father as having sexually assaulted the mother at a time when the mother had, in fact, made a report to the police of that very allegation, could not be taken as a significant criticism of the mother.
The mother also expanded, during her cross-examination, that her references in those text messages were based upon her concerns that the father’s relationship with [X], from her perspective, was unhealthy and obsessive. That view has some support from a view expressed by investigating officers from the Department of Family and Community Services and the Joint Investigation Response Team (‘JIRT’). Similar comments are made by them although not in those specific terms.
The later views arose from investigation of sexual abuse allegations that the father had raised with the Department and after the child had been interviewed twice and the investigation concluded. The record follows:
“Whilst her physical needs are being provided for [X]’s father’s ongoing fixation and [redacted] that [X] is being abused and is unsafe is concerning”. [X] is at a highly impressionable age and her father’s fixation with sexual abuse has the potential to cause psychological harm for [X]. [X] made nil disclosures of sexual abuse and as such sexual harm has not been substantiated. However, [redacted] involvement of police and other government agencies, his ongoing fixation and escalation of [redacted] [X] is being abused and his ongoing conversations with [X] around sexual abuse indicate that a risk of psychological harm by the father is substantiated”.
It must be observed, in relation to those statements by Departmental officers, that it is merely their opinion. It is recited on that basis. It is not recited to suggest that they are findings made by this Court.
The father speaks to these issues at paragraphs 20 to 23 of his March 2018 affidavit. He denies that he said certain things to Departmental officers which have then been taken into account in forming those views. The father specifically denies having regular conversations with the child about sexual abuse. That, of course, is not what is recorded within the Departmental record.
Applicant’s Evidence
From the outset it must be observed that the father’s evidence, with respect to parenting, is, at best, frugal. The majority of each of the father’s affidavits, and there are a myriad of affidavits including those filed immediately prior to the trial, deal with the issues of property adjustment.
The father’s March affidavit deals with issues of parenting but only paragraphs 1 to 46, the first six pages of the document. The balance of the document relates to property adjustment.
The subsequent affidavit March 2019 has a similar apportionment of space. The father’s evidence regarding the relationship of the parties and the arrangements for [X] would appear to commence only from the making of interim orders 24 August 2016. Anything prior to then is largely or completely absent other than referring to the dates of births of the parties. The affidavit reveals that the parties commenced cohabitation in early 2005, married in … 2006, have a child together and separated 11 November 2014. There is no mention, other than in the most oblique and tangential way, of events prior to those orders made in August 2016. Accordingly, the child’s retention in June 2016, the very precipitating event for these proceedings, is not discussed in any detail. Those events are only discussed in paragraphs 11, 38 and 39 of the affidavit.
At paragraph 11 the father said:
In early 2016 I started to observe behaviour by [X] which over the period of the next six months concerned me. This was a distressing period of time in my life.
Indeed, I accept it would have been. The parties were relatively recently separated and the father had, around that time, left the former matrimonial home, a matter that seems to have caused him significant distress judging by the text messages between the parties relating to that event.
The father’s evidence continues “In hindsight I may have overreacted.” The problem, of course, is that the evidence led by the father does not tell you what happened or what could possibly have been the overreaction. It concludes:
I had, however, genuine concerns for her welfare and I reacted to those by communicating those concerns to Family and Community Services.
That would appear to be incorrect as none of the material from the department that is tendered relates to that period. It relates to the sexual abuse allegations in 2017.
At paragraphs 38 and 39 the father says of the 2016 events:
“In 2016 I had concerns about [X] being the subject of physical mistreatment by either Ms Keeling or members of her family. I withheld [X] as a result of those concerns from her mother and it was in that context that the interim orders were made which restored [X] to a largely shared arrangement between Ms Keeling and me on 24 August 2016”
What is absent those two paragraphs is any reference to the child being withheld for three months. If the casual reader were to read those paragraphs there would be no indication whatsoever of what actually happened. What happened is led in the mother’s material and, to some extent, recited in the family report, including what the father indicated to the family report writer at paragraphs 9, 25 and 40.
In paragraph 9 of the report the following is stated:
In June 2016 when [X] was two and a half years old Mr Jukes made a unilateral decision not to return [X] to her mother’s care after a period of contact with him. Mr Jukes refused to allow [X] to spend time with her mother unless that time was supervised. In the event Contact Centre provided fee for service supervision until the interim parenting orders were made 24 August 2017 (sic) returning [X] to her mother’s care.
At paragraph 25 the report writer states:
Mr Jukes has made a number of notifications to the Department of Community Services with issues ranging from his finding unexplained red marks on [X] to sexual abuse. A photo of [X] with red marks are provided as attachments to an affidavit filed by Mr Jukes [and not one relied upon at hearing]. No risk of harm has been substantiated. Mr Jukes abducted [X] from 3 June to 24 August in an attempt to provide her with safety [Of course, absent evidence by Mr Jukes safety from what is left completely unanswered]. During that time she saw her mother on only three occasions.
Finally, at paragraph 40 the report writer states:
Mr Jukes explained that he removed [X] from her mother when she was two and a half because he had found red marks on the child’s back and could find no satisfactory explanation for them. He said that he just wanted his daughter to be safe.
In the absence of Mr Jukes leading any evidence regarding that event, it is impossible to not be critical of him for those actions.
The mother is detailed in her evidence about those events. In her trial affidavit the mother makes abundantly clear that she was not contacted by Mr Jukes on that occasion, although, on an earlier occasion she had been so contacted. Ms Keeling is clear that there was no report to the Department of Family and Community Services and that the retention followed the parties having attended mediation and, reportedly, having agreed to trial an equal or at least substantial care arrangement between them. The willingness of Ms Keeling to trial, agree to or even consider an equal time arrangement was very much dashed by Mr Jukes’ own actions. Since that point Ms Keeling has not felt that she can trust Mr Jukes.
Ms Keeling, at paragraph 78 of her affidavit, confirms that which the family report sets out, that between 6 June and 24 August 2016 [X] was retained by her father, that she spent three periods of time with the child supervised by Contact Centre.
The family report writer was very clear as to the likely impact of that period upon the child. It was made very clear by the family report writer that the child would have been highly distressed.
During that period it proved difficult, if not impossible, for the mother to speak to the child on any regular basis. The child having been withheld is suggested, by the family report writer, to have likely caused some ongoing anxiety for the child or potentially so. As a matter specifically addressed by the family report writer who suggests that this exuberate, confident, assertive child had constantly asked for her mother during her play session with the father, (paragraph 80).
The report writer then opines:
Perhaps her distressing memories of the abduction and being restricted from contact with the mother were reactivated during the strange situation and context or perhaps [X] is primarily attached to her who has been her primary caregiver.
I do not suggest that a finding could safely be made that the child was, in fact, retriggered at the family report interviews, but the concern is most assuredly raised.
In relation to that retention the husband does not give any evidence save to observe, as indicated from the relevant paragraph, “I may have overreacted.” Indeed, his overreaction was titanic.
The evidence, as it fell from cross-examination, and that is the only place it is to be found in the husband’s evidence, is that he had observed one or more red marks on the child’s neck or back, first, early in 2016 and then again in June. And without consultation with the mother, without seeking explanation, without seeking medical treatment or investigation the father took the unilateral action of retaining the child.
In relation to that event and the subsequent sexual abuse allegations, the father was similarly lacking in detail. That might be excused and explained on the basis that the husband advances that he simply realises now that nothing happened and, accordingly, he retracts the allegations and, on that basis, may not have repeated them in his evidence to spare the mother. Although, that would be inconsistent with the balance of his presentations and behaviours.
The letter of 8 May 2017, from the father’s then lawyers to the mother’s lawyers, sets out a list of toileting issues, if they might be so described and to adopt the language of the statement of agreed and disputed facts, regarding young [X]. What the father records are curious and unusual behaviours involving repeated urination on various items or persons. The father states through his lawyers that he was extremely concerned by these observations. The father acknowledges that whilst the child might have accidents, even if toilet trained, that the frequency of the incidents is unusual and, so much so, that the father had taken the child to the doctor to be examined.
Whilst not making a positive statement or allegation within that letter of abuse, or if abuse, who might be responsible for it, the husband concedes, and was certainly clear with the family report writer, that the finger was very much pointed, at that point in time, at Mr B and that he held the belief, at that point in time, when he contacted the Department of Family and Community Services, that the child was being sexually abused by Mr B and possibly the mother and others through her negligence and failure to supervise.
As a consequence, the father sought that the mother give undertakings to not leave [X] unsupervised with any third party unless both parents consented, to not allow any third party to bathe or toilet [X] and to not allow any third party to discipline the child. That issue had already been addressed by Judge Obradovic’s orders. The father also sought that a child psychologist be appointed for the purpose of providing [X] with protective behaviour education as well as support and assistance. That, thankfully, did not occur as it would appear to have been entirely unnecessary, although, the husband did indicate in his evidence, during cross-examination although nowhere else in any document filed in the proceedings, that the child had seen a psychologist on some occasions whilst in his care.
Ms Keeling needs to know what arrangements are in place for this child when the child is in her care. Ms Keeling is a perfectly competent and diligent parent who can make decisions that are for the child’s advantage. If it is genuinely accepted by Mr Jukes, although there is some question as to whether it is so, that Mr B is a good bloke, a person, of importance to the child and no risk whatsoever to the child, then there is and could be no concern about his collecting the child, or for that matter, the child’s grandmother collecting the child. Accordingly, I do not propose to make that order. Otherwise, those additional relationships assist the mother’s proposals.
The extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spend time or communicate with the child
Neither has. The more relevant consideration might be the drafting of the provision prior to the June 2012 amendments when contained in subsection (4).
The extent to which each parent has interfered in the other’s capacity
Historical, as it may be, Mr Jukes has and Ms Keeling has not. That includes Ms Keeling supporting, encouraging and facilitating the relationship, albeit in accordance with orders of this Court, after the events of June and after the reports to the Department and the child’s interview, on two occasions, as a consequence of Mr Jukes’ readily retracted allegations of sexual assault. One might well expect that many parents would have reacted differently at that point.
As I commenced, early in these reasons, at the time of family report interviews, Ms Keeling had indicated to the report writer that she sought supervision. It was to address that very issue, that allegations were being raised whereas the JIRT team had concluded that the father was a risk to the child because of his questioning of the child and continued suggestions to the child. That must reflect some acceptance by Ms Keeling that matters have changed somewhat, even if not completely. Accordingly, I am not satisfied it is a significant issue, but to the extent that there is any relevance, it favours the mother.
The extent to which each parent has fulfilled, or failed to fulfil, their obligation to maintain the child
Ms Keeling pays child support as assessed. That arises notwithstanding that she has the preponderance of time, albeit very slightly, as she earns more than the father, or at least for tax purposes. I do not suggest any wrongdoing on the part of Mr Jukes, but he is a self‑employed tradesman. Thus, he controls his income. He has indicated that he can work when he wishes and is flexible.
Accordingly, it is something that has become an issue between the parties. However, the mother does not complain bitterly or loudly – she pays as assessed. The assessment will change following the making of these orders. It is a matter for the Child Support Registrar to determine what those changes might be, however, the mother has met her obligation.
Both parties have met the child’s needs, although there is issue, for example, regarding the father’s contribution towards the child’s school items and needs and payment of fees, the father suggesting, during his cross‑examination, that he is happy to pay the fees or some portion of them, although to date he has not. It does not assist greatly beyond that.
Likely effect of change, including separation from either parent or other child
On the basis of the orders I propose to make, young [X] will spend one day less per fortnight with her father during school terms than she has done to date. She will spend one day more with her mother. I am satisfied that is an advantage for the reasons already given at length above.
It will also mean that there will be the introduction of periods of block time during school holidays which have not largely occurred to date. Accordingly, that change is also beneficial, increasing the unstructured holiday time this little girl can spend with each of her parents.
Practical difficulty and expense
I incorporate herein section 65DAA (5) Family Law Act.
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Consent orders
(6) If:
(a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b) the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
The parents live remarkably close to each other in adjoining suburbs. The property adjustment proceedings between them may change that, but it will not change it to any great extent.
Ms Keeling and Mr B were both clear in their evidence that they intend to stay in the same area, irrespective of whether the Suburb G home, in which Ms Keeling presently lives, is sold, whether as a consequence of orders of the Court, or through her own choice to be able to buy with Mr B. They will stay living in the same general area in the inner west.
Mr Jukes, similarly, has no intention of moving. Accordingly, on that basis, I see no need to make the restraint that is sought by Mr Jukes that neither party is to move more than 30 kilometres away from the other. Indeed, either could move less than that distance and create major difficulties even if they desired. The mother or father could move from their present location, for example, to Suburb H. They would then have great difficulty traversing what would be a relatively short distance but through clogged roads and with little direct public transport. There is simply no evidence that supports the need for injunctive restraint.
The parents’ capacity to implement an arrangement for equal of substantial time must be demonstrated by the past two and a half years of practice. It is what they have been doing. Accordingly, whether it is four, five or seven days a fortnight that the child spends with her father, these parties can make it work.
Their ability to communicate and resolve difficulties is somewhat more problematic, however. Decisions are made, but they are made after unnecessary squabbles. They are largely made by the mother after she has consulted with the father. Notwithstanding that an order for sole parental responsibility has operated for some two and a half years, the mother consults the father. She keeps him informed. She does so much better than the father does with respect to her.
The mother’s discomfort, if not fear, in relation to the father, her displeasure in dealing with the father and for explicable reasons obviates against shared parental responsibility. If it was simply the mother saying, “I want nothing to do with him”, it would be a matter of little consequence to the Court, but she bases it upon her lived experience, her cogent and detailed evidence, which I accept, and in respect of which findings have been made. That would support the mother continuing to have sole parental responsibility.
I accept that which has been opined by the High Court, that to strip a parent of a right to be involved in decisions for their child is a significant step. The order that is proposed by the mother will not strip Mr Jukes of involvement in decisions. She involves him and has involved him notwithstanding the interim order.
Major issues decisions are all that are impacted by parental responsibility. Decisions about education, for example, for the next few years. For the next six and half years, she will be in primary school at the school she is presently attending. If the mother moves any significant distance, that may change, but it is not her proposal.
An order for equal shared parental responsibility would require consultation between the parents about religious upbringing. Leaving aside the fact that the child attends a Catholic school, neither party gives any evidence that they have any religious observance at all. The mother is from a Nationality background, the father a Nationality background. It had been an issue in the case at some point, although there is no evidence led by the father on the issue at all, that he may have Aboriginal heritage. It is ultimately conceded that is not so. He does not identify as Aboriginal and thus nor does [X].
Accordingly, that aspect of cultural upbringing need not be addressed as specifically directed by the Family Law Act1975. Cultural upbringing can and will be addressed by each of these parents. They have done so to date. They did not interfere with or disparage the other party’s cultural practice. Accordingly, it will not be impacted by an order for sole parental responsibility.
Issues with respect to the child’s health are addressed by these parents jointly, even if the mother has sole parental responsibility. The mother proposes that she will keep the father involved and consult with him in relation to such matters. The child, thankfully, is generally in good health and it is unlikely to be an issue in the future.
Neither party suggests that the child’s name should be changed. Accordingly, that would not be impacted. Changes to the child’s living arrangements that would make it more difficult for one parent to spend time with the child similarly will not be impacted.
There is little meaning of the order other than in a philosophical sense, I accept that it will have greater meaning to the father, however, it is important to signal to young [X] that there is clear and certain authority in the mother to make decisions, particularly when she perceives, as she expresses to the family report writer, that her father is “in charge” of her. That is not the case nor is it a reality.
Both of her parents are in charge of her. Both of her parents are responsible for her. It is her mother who will be responsible for major issues and decisions, so there need not be the unproductive emailing backwards and forwards about very minor issues such as the school enrolment. That supports the mother’s case in many respects.
Capacity of each parent to meet the child’s needs, including emotionally and intellectually
The parents are relatively equal in this regard, subject to the criticisms and comments above. To the extent that those criticisms are historical, they do not assist. But there is the real issue of insight. I cannot be fully satisfied that the father is genuinely remorseful or even understands fully the consequences of his actions upon young [X] when she was withheld, subject to questioning, subject to reports of abuse which were so readily retracted. This causes some real concern as to why those allegations were ever raised.
That would also suggest that the child would benefit from the discontinuance of those practices. I accept there is no evidence to suggest they have returned or reoccurred save and except for August 2018. It does not assist greatly in either decision although to the extent there are those criticisms, they impact only Mr Jukes not Ms Keeling. It might lend some small support to her case especially regarding parental responsibility.
Maturity, Sex, Lifestyle and Background of the Child
This has some relevance, bearing in mind the family consultant’s evidence that as this little girl grows the prognosis for her remaining a bubbly, bright and confident young child is poor, if conflict continues or if she continues to be subject to the behaviours of which the mother complains, and upon accepting her evidence, I am concerned, have a real potential to reoccur in the future.
Aboriginality is not relevant as already described.
The attitude of the parents is discussed adequately above.
Family Violence Involving the Child or a Member of the Child’s Family
The mother gives evidence, which I accept, that she has experienced family violence. It is a real consideration in relation to the allocation of parental responsibility. An order for equal shared parental would bring with it the obligations of section 65DAC Family Law Act, an obligation to consult with each other and make genuine effort to arrive at joint decisions in relation to major issues decisions as set out above. That would be an onerous burden to place upon the mother. She is able to put a brave face on things and be cordial and exchange pleasantries. Beyond that it would be unrealistic and unreasonable to expect that she would engage abundantly in such consultation in the future, albeit, that very few situations would arise that would require it. However, it does lend further support to that proposition.
Family Violence Orders
There are none. Each has sought one at different times. They have never eventuated on a final basis. This is not relevant, save and except that if an order had existed the nature of the order, the circumstances of it, and ensuring that there was no inconsistency with any parenting order would become important.
Whether it is preferable to make orders that will avoid future proceedings
I am satisfied that the best that can be done, in this, is to make orders that are clear, certain and sustainable.
I am satisfied that this would support an order whereby the child would be with the father five nights a fortnight and with the mother nine. There is no real issue as to what night might occur. The family report writer had suggested it would ideally be a night that works well for the father’s work arrangements. They are suggested to be fluid. Accordingly, I am satisfied that the nights should be fixed, not a moveable feast where the parties are required to consult on a week to week basis. That will simply erode the very basis upon which the orders are put in place.
I propose, for the sake of symmetry and certainty, to make the overnight each week Thursday. That is partially consistent with the mother’s position so that it would be, in the off-week, Thursday to Friday. It also means that there can be a four day block with the father, something which this child is abundantly familiar with having spent three day blocks with her father for two and a half years. Accordingly, in due course orders will be made providing for that arrangement, Thursday to Monday, extending to Tuesday in the event of a long weekend, each alternate weekend and Thursday to Friday in the off-week during school times.
I propose also to make the orders that are sought by the mother with respect to school holiday periods starting with a gradual build up and building fairly quickly so that it is half of the school holidays by the end of this year. As I have already observed this young lass has just started school. That is already a significant issue for her to deal with having moved from day care or pre-school to the more formal education system. She should have the opportunity to enjoy holidays but to do so in a gradual build up, and it is a fairly rapid build-up at that, whilst settling into the school year and all that that entails.
Those orders would allow collection to and from school, by and large. When it is not possible, I propose to make the orders for changeovers as proposed by the mother such that the child is collected from the maternal grandmother’s and, again, avoiding face to face contact between the parents as much as possible. That is not to suggest that the mother is at direct risk of physical injury if such changeovers occur. It simply presents too many opportunities, again, to adopt the language of the family consultant, for young [X] to be placed in a conflict zone.
Both parents seek orders of a remarkably similar nature regarding involvement with school and medical emergencies, knowledge of each other’s address and contact details and such matters. They are very much agreed that they should be included. There are only minor differences of language. For the sake of simplicity and consistency I will adopt the language expressed in the mother’s response.
The father seeks an order that there be daily communication between him and the child. I do not propose to make such an order. Again, such communication has been the cause of real controversy between these parties in the past. This child will be seeing her father each week as she will be seeing her mother. It does not mean that the parties cannot facilitate communication between them should the child wish to or should they consider it necessary and important. However, to have such daily communication for this child, in light of that history, is problematic and counterintuitive as regards the very things that are sought to be avoided.
The Restraint on Movement
This I have already addressed. There is no evidence to support or suggest that it is necessary. Indeed, the evidence is to the contrary. Everyone intends to stay living in the area that they are.
Passports and Travel
Both parties seek orders that the child have a passport. The only real issue is who holds it. I propose to make the orders that the mother seeks. She will have primary care and should hold the passport.
The mother seeks orders with respect to overseas travel. The father would also seem to seek orders relating to that issue although perhaps of a different nature. Neither party has specifically addressed that issue in submissions. That is not a criticism merely that, in all probability and with the time restraints that applied by that stage in the proceedings, each seeking not dissimilar orders they would have felt it unnecessary.
There is no issue or concern raised in these proceedings by reference to authority such as Line & Line (1997) FLC 92-729 that the mother, if she left the country with the child, would return. The mother has a strong connection with Australia. She is a citizen. She has lived here since she was 12 years of age. She owns substantial property. She has a job. She has a partner who has no right to live anywhere else.
There is no evidence that the mother has any citizenship right in any other country. The mother’s evidence, in relation to the issue, is clear. The father’s evidence is silent. I thus prefer the mother’s evidence. It supports the order that she seeks regarding overseas travel.
The parties consent to the property aspect of the proceedings being referred to arbitration. For that reason, however, I do not propose to make the usual order for the return or secure destruction of material produced on subpoena. Much of that produced relates to the property proceedings. It would be an onerous and unreasonable burden to impose upon junior APS staff to go through the material and determine what can and cannot be returned. It can simply all stay here until all aspects of the matter are concluded.
I certify that the preceding three hundred and thirty-seven (337) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 2 May 2019
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