JUKIC & JUKIC
[2019] FamCA 360
•30 May 2019
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 | of | 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 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;
(c)that in all even numbered years –
(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.
The proceeding is placed in the list of cases awaiting docket allocation for trial.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jukic & Jukic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 556 of 2018
| Mr Jukic |
Applicant
And
| Ms Jukic |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
On 17 April 2018, her Honour Judge Small made consent orders for the two children born to the marriage of the applicant and the respondent to spend supervised time with the father, such supervision to be conducted by a parish priest of the C Church or his nominee.
The father contended that in breach of her Honour’s orders of 17 April 2018 the mother failed to deliver the children to his care. He cited five separate occasions when that occurred namely 1 June 2018, 19 October 2018, 12 April 2019, 2 May 2019 and 3 May 2019. The father filed an application in a case on 16 May 2019 in which he sought orders recasting the time he should have with the children. The mother appeared before me in person contending that by reason of risks associated with family violence the father’s time with the children needed to be supervised. She insisted that the best person to conduct the supervision was the current parish priest at the C Church.
Synopsis
For the reasons that follow, in my judgment –
(a)orders should be made in accordance with the father’s application in a case;
(b)the mother’s motion for supervised time should be refused; and
(c)the proceeding should be otherwise adjourned to trial.
A short factual narration
This proceeding began in the Federal Circuit Court of Australia on 26 February 2018. It has twice been the subject of orders, once before her Honour Judge Small on 17 April 2018 and the other before the Honourable Justice Johns of this court on 7 August 2018 when Johns J refused an application for an expedited hearing. Despite the fact that the case has been on foot for over a year it has not progressed very far to date.
Two children are the subject of this case, one eight years of age and the other five years of age. The parents commenced a relationship in 2009, they married in Country F in 2010, they moved to Sydney in 2013, they moved to Melbourne in 2015 and they separated in 2016 under the one roof leading to the father departing the former matrimonial home in 2017. The eldest child attends primary school. The youngest child is in childcare. The mother is a public servant. The father said he is a tradesman. The mother has applied for orders permitting her to relocate internationally. In consequence, this proceeding was transferred to this court.
The mother made a collection of assertions in her affidavit affirmed 22 October 2018. On 29 May 2019 I heard this case as an interlocutory application. The issues were therefore untested and of necessity, I was unable to determine whether all or any of the allegations were proved. The father disputed the allegations of family violence in particular.
Very often justices of this court are confronted with disputed factual allegations on urgent interim parenting applications when it is not possible to determine the validity of those conflicting facts. Various decisions of this court have identified the correct approach to be adopted in those circumstances, especially when conflicting facts can only be determined at trial when all the evidence of all relevant witnesses is tested, usually upon witnesses being cross-examined. It was held by the Full Court in Goode v Goode[1] that a single judge in my shoes, on the hearing of an interim disputed parenting application must –
[1] (2006) 36 Fam LR 422
(a)identify the competing factual positions advanced by the parties;
(b)identify the issues in dispute;
(c)identify any agreed or uncontested relevant facts;
(d)where possible, address the matters set out in s 60CC(3) of the Family Law Act;
(e)decide whether the presumption of equal shared parental responsibility is in the best interests of the child or children;
(f)establish whether the presumption under s 61DA is rebutted in the circumstances of the case;
(g)consider whether equal time with both parents should be ordered;
(h)if equal time is not appropriate whether an order should be made that the child or children spend substantial and significant time with the parents;
(i)if neither equal time nor substantial and significant time is in the best interests of the child or children, what orders in the discretion of the court are in the best interests of the child or children; and
(j)consider issues of procedural fairness.
In Salah v Salah,[2] a differently constituted Full Court offered guidance when a court is determining an application for interim parenting orders in a disputed factual context. The Full Court there held –
(a)the procedure will be curtailed and abridged;
(b)the court should not be drawn into factual matters relating to the merits of the substantive case where factual findings are not possible;
(c)the court should examine and consider any agreed facts; and
(d)the court should consider care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future.
[2] (2016) 56 Fam LR 299
Helpful as any agreed facts may be, in and of themselves, that is not the determining feature on an interim hearing where disputed facts arise. However, as the Full Court held in Eaby v Speelman,[3] factual findings on an interim hearing should be couched with great circumspection. By reason of there being an incomplete version of the evidence on the hearing of the interim application, frequently the judge must do the best he or she can by weighing the probability of competing claims and assessing the likely impact on the children in the event that a controversial assertion is acted upon or rejected. The Full Court made that observation in SS v AH.[4]
[3] [2015] FamCAFC 104
[4] [2010] FamCAFC 13
In February of this year, Tree J in Rocacelli v Seles[5] made useful observations about the correct approach to be adopted which I gratefully embrace.
[5] [2019] FamCA 105
Let me now turn to a brief excursus of the more salient facts in this case, beyond those narrated above.
In August 2017 an incident took place leading to police involvement. The father denied the factual circumstances of the incident. He stated in his affidavit made 7 May 2019 that prior to that incident, he and the children’s mother were separated under the one roof and that the lives of the children were normal and happy, as they were unaware of any disputation between the parents. The father’s denial of the incident in August 2017 meant that, according to the authorities mentioned above, I should approach the evidence about that incident recognising that the position of the parents in respect of it was disputed, that a final determination in respect of it must await the trial of the proceeding and that I should weigh the probability of the competing claims in respect of it and assess the likely impact on the children if I were to act upon the disputed evidence or to reject it.
The father stated in his affidavit that following the August 2017 incident, he has had very little time with the children.
The precise details of events leading to the making of the intervention order on 17 August 2017 need not be essayed here as the factual findings about it must be couched with great circumspection. That said, neither party before me denied the making of the intervention order and both recognised that at trial it will be necessary to examine the incident in real detail.
In resisting the father’s application for the orders recorded in his application in a case, the mother relied on events subsequent to the date of the orders made by her Honour Judge Small, especially incidents where the father allegedly denigrated the mother in discussions with the children. The mother told me that the children were not enthusiastic about communicating with the father by Skype. The wife exhibited to her affidavit made 9 April 2018 a copy intervention order made 7 August 2017 and one made 17 August 2017. The father exhibited a copy intervention order relating to an incident that allegedly occurred on 14 August 2017. Based on the number of intervention orders, I am willing to proceed on the basis that the relationship between the parents is one of significant hostility. Findings of fact about the phenomenon of family violence must await the trial of this proceeding.
Supervised time was ordered by consent by her Honour Judge Small. The mother told me that the supervisor, a parish priest, undertook the task of supervision in a satisfactory way yet he left the parish and was thereafter unable to fulfil the role. The mother told me that another parish priest was unwilling to undertake the role and that no other priest familiar with supervising could assist. The mother said it was important for any supervisor to act as a translator as well because, so she said, the father’s command of the English language is very limited.
On behalf of the father Mr Latham of counsel told me the father resisted the need for supervision and that the father wanted to recast the orders previously agreed that incorporated supervision. In discussions with Mr Latham I sought clarification of the reasons underpinning the requirement for supervision. Mr Latham submitted that his client resisted the need for supervision. He said the children have enjoyed a very favourable relationship with the father and that, so the father said, there was no substance in the allegations of family violence.
This was not a case involving allegations of sexual abuse where supervision was sought, as were the circumstances in In the Marriage of Bieganski.[6] The mother’s complaints were mainly concentrated upon allegations of her denigration. In discussions with the mother I canvassed the making of orders that had the effect of enjoining both parties from making insulting or belittling comments to or about the other. The mother agreed that orders in those terms were appropriate and necessary.
[6] (1993) 16 Fam LR 353
Issues in dispute
After a useful discussion with the mother the issues on this interim hearing were crystallized. They were –
(a)whether to accede to the mother’s request for reinstatement of the consent orders made by her Honour Judge Small;
(b)whether, by reason of events subsequent to April 2018 those orders remained appropriate having regard to the departure of the parish priest and the absence of a supervisor;
(c)whether it was appropriate to order the father’s time be supervised; and
(d)what orders were appropriate in relation to the father’s contravention application.
Agreed issues
Both parents agreed that they should have equal shared parental responsibility for their children. Each agreed they were to jointly make all major long-term decisions in relation to the children. Each agreed that while the children were in the care of the other, they were not required to consult the other when making decisions about issues that were not major long-term issues. Each agreed to encourage and foster the children’s relationship with the other.
Each agreed to the imposition of a restraint upon one another concerning denigration. Specifically each agreed that each, whether by himself or herself was restrained from –
(a)abusing, insulting, belittling, rebuking or otherwise denigrating each other, the children or any of the parents’ family members in the presence of or in the hearing of the children or either of them and from permitting anyone else from so doing; and
(b)discussing this proceeding with the children or either of them in the hearing of each other or of them or discussing this proceeding with anyone else or permitting anyone else from so doing.
The parents agreed that the children would live with the mother.
No evidence from a family consultant
Aside from a response to the notice given under s 67Z of the Family Law Act, no objective evidence from a person skilled in child protection was in evidence before me. Correspondence from the Department of Health and Human Services (“DHHS”) dated 16 April 2018 indicated several things, namely –
(a)the department did not intend to intervene in this proceeding and that instead, it intended to take no further action in this matter;
(b)the department’s investigations revealed that the father had made no threats to the children nor posed a risk to their physical safety;
(c)the parents live separately thereby reducing the likelihood of the children being exposed to family violence; and
(d)the children will continue to live with the mother and no information existed to suggest that the mother will not continue to act in their best interests regarding their safety and emotional well-being.
The DHHS closed its file on 16 April 2018.
The father’s time with the children
The father affirmed in his affidavit made on 7 May 2019 that prior to separation and even after separation the children’s relationship with him was excellent. He said that after he left the former matrimonial home, that is to say, after the period of being separated under the one roof had come to an end, the mother has severely restricted and continues to severely restrict his time with the children, contending that the children have reported that the father allegedly instructed the children to be rude to the mother and that the father allegedly became angry upon the mother’s name being mentioned.
The restraints mentioned above will serve to enjoin each parent from speaking about the other in derogatory terms.
No evidence in this case beyond that given by the parents addressed the wishes of the children.
The father stated that between 13 August 2017 and April 2018 he did not spend any time with the children beyond sporadic Skype communications. He said he feared the mother was engaging in behaviour the effect of which was likely to procure the alienation of the children from the father. He stated that he had proposed an arrangement for his time with the children yet the mother’s solicitors had not responded to that proposal since June 2018. He stated that his time is flexible and he is able to devote time to the children. He proposed a regime to spend time with the children as follows –
(a)from the conclusion of school each alternate Friday until the commencement of school the following Monday; and
(b)from the conclusion of school until 8pm each alternate Thursday.
He stated that he lived in a two-bedroom house one room of which could be established for the children. He said he lives 30 minutes away from the mother.
So far as school holidays were concerned, he proposed that he spends half of all gazetted school holiday time with the children. He also proposed that the children spend time with the father on a half-half basis on Christmas Eve and Christmas Day along with other carefully considered proposals essentially representing equal time. The mother refused any time for the father to spend time with the children unless in accordance with the consent orders made in April 2018.
Self-evidently, the orders made by her Honour Judge Small have become unworkable largely by reason of the need for a particular parish priest to supervise the father’s time and the departure of that parish priest. The mother was unable to offer the services of a different parish priest. The mother has taken the stance that in the absence of supervision by the parish priest who departed, the father’s time with the children has come to a halt. She adopted the seemingly contradictory position of requiring the orders of April 2018 to be restored yet she was unable to nominate a parish priest who was willing and able to assume the role of supervisor. In debate with her about the need for a supervisor the mother relied on her contentions that she urged me to accept as proven about the father making derogatory comments about her. Yet at the same time she, quite properly, conceded that it was in the best interests of the children to have a meaningful relationship with the father.
I was not persuaded that the children needed to be supervised when they are in the father’s care. I say that for several reasons. First, there was no evidence the father had behaved in a manner that posed a risk to the children. DHHS took the same view. To the contrary, the father’s relationship with the children appeared, at least to the extent that I can assess it at this interlocutory juncture, to be very favourable. Next, the mother’s contentions about the father’s behaviour seemed confined to comments or spoken words. The parents live apart so the risk of repetition of that behaviour has been commensurately reduced. Further, by operation of the restraint I intend to impose the parents will be forbidden from denigrating the other. Next, the mother acknowledged that the children will benefit from a relationship with their father. In my view, any such relationship will be doomed if I order the imposition of a person who polices the interaction of the father with his children. Next, I am concerned that by acceding to the mother’s insistence upon supervised time up to four hours per fortnight, alienation is likely to be the consequence.
The mother’s proposal is unrealistic and antithetical to the best interests of the children.
Naturally, in any consideration of the best interests of the children the separate elements of s 60CC(3) fall for assessment.
From the foregoing it will be apparent that both parents recognise the need –
(a)for the children to have a meaningful relationship with both mother and father; and
(b)to protect the children from physical or psychological harm upon being subjected to or exposed to family violence.
As s 60CC(2A) provides, a court is required to give greater weight to the need to protect the children from physical or psychological harm over the need for the children to have a meaningful relationship with both parents.
Section 60CC(3) sets out an array of additional considerations that I must address in determining the best interests of the children in this case. Lengthy as it may be, each calls for separate attention.
Subsection (a) requires me to take into account any views expressed by the children. None have been expressed.
The nature of the children’s relationship with each parent is a matter of relevance under subsection (b). It seemed plain that the children enjoy a favourable relationship with each parent.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, to spend time with the children and to communicate with the children is relevant to subsection (c). Each parent has been diligent as a parent, in my view. But for the mother’s activities in not permitting the father to spend time with the children, the evidence reveals that he would have fully participated in the matters canvassed under this subsection.
No issue arose about maintaining the children, as is made relevant by subsection (ca) although the mother pointed out that the father could have earned greater sums than he has, in fact, earned.
Under subsection (d) the likely effect on the children of any change in the children’s circumstances is a matter to be taken into account. With an increase in the father’s time it seemed to me that the children’s circumstances will be enhanced rather than being adversely affected.
No practical difficulties of the sort set out in subsection (e) are identified.
The capacity of each parent to provide for the needs of the children is relevant under subsection (f). Neither party suggests that the other was unable to meet the needs of the children, whether financial, emotional or intellectual.
Under subsection (g) the maturity of the children is relevant. Here the children are young.
The children are not Aboriginal or Torres Strait Islanders so subsection (h) was not relevant.
Under subsection (i) the attitude to the children and to the responsibility of parenthood is relevant. Each parent seemed to be diligent in their responsibilities as a parent, although the mother pointed out that the father had returned the children hungry at least once.
Family violence issues have already been addressed. They are made relevant under subsection (j).
So is subsection (k) relevant. The facts about all issues concerning the family violence alleged will be determined at trial.
Lastly, in making the appropriate order I am required to consider whether it would be preferable to make the order least likely to lead to further litigation between the parties.
Applications of facts to the law
In my view the mother’s proposal for a return to the orders made in April 2018 is unrealistic and unworkable. Those consent orders while appropriate at the time, were the subject of agreement yet they provided for a very constrained regime for the father to have time with his children. It was supervised and it was for up to four hours per fortnight. Since then the relevant parish priest has departed. The allegations of family violence have not caused DHHS to become concerned. Further, on one version of the evidence the mother failed to implement the intended operation of the time the father was to have with the children. The mother has recognised that the children should have a meaningful relationship with the father. Even if I were persuaded about the need for supervised time, and at this interim juncture I can say I am not persuaded of that need, no suggestion about the most appropriate person to undertake the supervision has been volunteered by the mother.
In those circumstances I am not willing to accede to the mother’s proposal.
So far as the father’s application for orders set out in his application in a case is concerned, they appear to me to be appropriate and in many respects the mother has agreed to some of those proposals especially in relation to equal shared parental responsibility, the children living with the mother, the non-denigration proposal and the need for each parent to promote the children’s relationship with the other parent.
In my view, the mother’s concerns about denigration are addressed by the injunction I have already mentioned. Once that risk is addressed, no impediment exists to the father having time with the children in accordance with the regime he proposes.
In my view a significant different risk is present, namely, the risk of alienation of the father by the mother. That must be addressed immediately. The orders I make stems that risk, as much as can be done at the present time.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 30 May 2019.
Associate:
Date: 7 June 2019
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