JUKIC & JUKIC - [2019] FamCA 360

FAMILY COURT OF AUSTRALIA

JUKIC & JUKIC

[2019] FamCA 360

FAMILY LAW – CHILDREN – Supervised Time – allegations of denigration by father of mother – contested interim parenting application – father’s relationship with children otherwise sound – not persuaded about need for supervision.

Family Law Act 1975, ss 60CC, 61DA, 67Z

Eaby v Speelman [2015] FamCAFC 104
Goode v Goode (2006) 36 Fam LR 422
Rocacelli v Seles [2019] FamCA 105
In the Marriage of Bieganski (1993) 16 Fam LR 353
Salah v Salah (2016) 56 Fam LR 299
SS v AH [2010] FamCAFC 13

APPLICANT:

Mr Jukic

RESPONDENT:

Ms Jukic

FILE NUMBER:

DGC

556

2018

DATE DELIVERED:

30 May 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

29, 30 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Latham

SOLICITOR FOR THE APPLICANT:

Destra Law

RESPONDENT:

In person

Orders by consent

Until further order –
(a)the parties equally share parental responsibility in relation to the children of the marriage, X born on… 2011 and Y born on … 2013 (“the children”);
(b)the parties are required to make all decisions about major long-term issues in relation to the children jointly; and
(c)the parties are not required to consult the other when making decisions while the children are in their care under this order about issues that are not major long-term issues.
Until further order the children live with the mother.
The parties and the children communicate with each other by Skype or telephone on every second day between 6pm to 8pm and at such other times as may be agreed between the parties.
Without admitting the necessity for the order, both parties, their servants and agents be and are hereby restrained by injunction from –
(a)abusing, insulting, belittling, rebuking or otherwise denigrating each other, the children or any of the parties’ respective family members to or in the presence and/or hearing of the children or either of them, and from allowing anybody else to do so;
(b)discussing these proceedings with, or in the presence and/or hearing of the children or either of them and from allowing anybody else to do so.
Each party will encourage and foster the children’s relationship with the other.

Orders

The father spend time with the children at all times as may be agreed, but failing agreement, as follows –
(a)from the conclusion of school on alternate Fridays, until the commencement of school the following Monday; and
(b)from the conclusion of school to 8pm on the other Thursday.
In relation to the children’s time with each parent –
(a)the children spend time with the father for one half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during gazetted school holidays period;
(b)that the children spend time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JUKIC & JUKIC [2019] FamCA 360
Case: [2019] FamCA 360
Decision Date: 30 May 2019

CaseChat Overview and Summary

The parties to this proceeding were the father and mother, referred to as Jukic & Jukic. The dispute concerned a contested interim parenting application, specifically the mother's allegations of denigration by the father towards her. The court was the Family Court of Australia, presided over by Wilson J.

The central legal issue before the court was whether supervised time between the father and the children was necessary, given the mother's allegations. The court was required to assess the impact of the alleged denigration on the children and determine if the father's relationship with the children, otherwise described as sound, warranted supervision during his time with them.

Wilson J was not persuaded that supervision was required. The reasoning focused on the overall sound relationship between the father and the children, implying that the allegations of denigration, while noted, did not reach a threshold necessitating supervised contact at this interim stage. The court's decision was to refuse the mother's motion for supervised time.

Consequently, the court made orders for the father to spend time with the children on alternate Fridays and specified Thursdays, and to share school holidays and significant dates such as Christmas, birthdays, Father's Day, and Mother's Day. The father was also ordered to be responsible for collecting and returning the children to school during his time. The proceeding was adjourned for trial, and no order was made as to costs.

Orders

Orders of the court

The father spend time with the children at all times as may be agreed, but failing agreement, as follows –

(a) from the conclusion of school on alternate Fridays, until the commencement of school the following Monday; and

(b) from the conclusion of school to 8pm on the other Thursday.

In relation to the children’s time with each parent –

(a) the children spend time with the father for one half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during gazetted school holidays period;

(b) that the children spend time with the mother for one half of all gazetted school holiday periods, being the second half in odd numbered years and in alternate years thereafter and the first half in even numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during gazetted school holiday periods;

(i) the children spend time with the father from 12 noon on Christmas Eve until 12 noon on Christmas Day; and

(ii) the children spend time with the mother from 12 noon on Christmas Day until 12 noon on the following day.

(d) that in all odd numbered years –

(i) the children spend time with the mother from 12 noon on Christmas Eve until 12 noon on Christmas Day; and

(ii) the children spend time with the father from 12 noon on Christmas Day until 12 noon on the following day.

(e) that the children spend time with the father from 9am to 5pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph;

(f) that the children spend time with the mother from 9am to 5pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended; and

(g) that the children spend equal time with the mother and father on –

(i) the children’s birthdays;

(ii) the mother’s birthday; and

(iii) the father’s birthday

at times to be agreed between the mother and father, and failing agreement, the children shall spend time with the father from 3pm until 7pm on those birthdays and the mother at all other times on those days, and that any provision of time under this order that is inconsistent with this paragraph be suspended.

Until further order and unless otherwise agreed, the father shall be responsible for collecting the children from school at the beginning and returning the children to school at the end of the children’s time with the father.

The mother’s motion for supervised time is refused.

10.

The proceeding is placed in the list of cases awaiting docket allocation for trial.

11.

There is no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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