FEDERAL CIRCUIT COURT OF AUSTRALIA
| READDIE & KERMODE | [2019] FCCA 6 |
| Catchwords: EVIDENCE – Where the mother is self-represented – where the mother did not call her new partner as a witness – where the father asserts the rule in Jones v Dunkel (1959) 101 CLR 298 should be applied – where the rule of Jones v Dunkel is applied – where the father relies on video footage of the children being interviewed by the police in relation to the alleged misuse of firearms – where the interviews are given little weight. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 44, 60B, 60CA, 60CC, 61C, 61DA, 62G, 68B, 65D, 65DAA, 65DAB, 69ZN, 69ZT, 69ZV, 69ZX Evidence Act 1995 (Cth), s.140 Firearms Act 1996 (NSW), s.39 |
| Cases cited: Amador & Amador (2009) 43 Fam LR 268 ASIC v Hellicar (2012) 247 CLR 345 Bondelmonte & Bondelmonte [2016] FamCAFC 48 Brandi v Mingot (1976) 12 ALR 551 Briginshaw v Briginshaw (1938) 60 CLR 336 Champness & Hanson (2009) FLC 93-407 Donaghey & Donaghey [2011] FamCA 13 Godfrey & Sanders (2007) FamCA 102 Goode & Goode [2006] FamCA 1346 Ho v Powell (2001) 51 NSWLR 572 HML v R (2008) 235 CLR 334 M & S (2007) FLC 93-313 M v M (1988) 166 CLR 69 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 Morse & Duarte [2017] FamCA 1039 Murphy & Murphy [2007] FamCA 795 Sigley & Evor (2011) 44 Fam LR 439 Stott & Holgar & Anor [2017] FamCAFC 152 |
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- AGLC
- READDIE & KERMODE [2019] FCCA 6
- Case
- [2019] FCCA 6
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the mother's new partner posed an unacceptable risk of harm to the children, and consequently, whether an injunction should be granted. The court was also required to determine the parenting arrangements for the children, specifically how much time they should spend with their mother and their half-siblings, in accordance with the best interests of the children. The court also had to consider the application of the rule in *Jones v Dunkel* concerning the mother's failure to call her new partner as a witness, and the weight to be given to video footage of police interviews with the children regarding alleged firearm misuse.
In determining the matter, Judge Harper applied the rule in *Jones v Dunkel*, drawing an adverse inference from the mother's failure to call her new partner as a witness. The court gave little weight to the video footage of the children's police interviews. Ultimately, the court discharged all previous parenting orders and made new orders. These orders established equal shared parental responsibility for long-term decisions regarding the children's care, welfare, and development, while each parent retained sole responsibility for day-to-day decisions concerning the children when in their respective care. The children were ordered to live with their father.
The court then set out detailed arrangements for the mother's time with the children. During Queensland school terms, the mother was permitted one weekend per calendar month with the children in Queensland, subject to specific notice requirements and exceptions for Father's Day. During Queensland mid-year school holidays, the mother was to spend the first ten days with the children in Town A. Easter break arrangements were also specified, and for the Christmas school holidays, the mother was to spend alternating halves of the holiday period with the children in Town A. The orders also stipulated financial responsibilities for travel and accommodation, communication protocols between parents and children, and obligations regarding information sharing, non-denigration, and the children's passports.
Orders
Orders of the court
1.
All previous orders in respect of the children, [X] born …2005, [Y] born …2007 and [Y] born …2011 (hereinafter "the children") are discharged.
2.
That the parties shall have equal shared parental responsibility for making decisions about long term care, welfare and development of the children, including but not limited to:
(a) Education of the children both current and future;
(b) Religion of the children;
(c) Health of the children; and
(d) Changes to living arrangements.
3.
That each party respectively shall have sole parental responsibility for making decisions about the day to day care, welfare and development of the said children whilst the children are in their respective care.
4.
That the children live with their father.
5.
During the Queensland School Terms the mother may spend one weekend each calendar month with the children in the Region 1 area from 5:00pm Friday until 5:00pm Sunday.
(a) Unless otherwise agreed in writing by the parties, such time may commence on Friday 22 February 2019 upon the mother giving notice to the father by 5:00pm on 8 February 2018 of her intention to spend time with the children in accordance with this order and thereafter is to occur on the last weekend of each calendar month, with the exception of the month of May in which the mother will spend time with the children on the Mother’s Day Weekend.
(b) If Father’s Day falls on the last weekend of the calendar month, the mother’s time with the children will be suspended during that month and may occur on the weekend immediately after the Father’s Day Weekend.
(c) After 22 February 2019, the operation of this order is conditional upon the mother providing the father with at least twenty-eight (28) days’ notice, including by email or text message, of her intention to spend time with the children in accordance with this order.
(d) This order may be varied by agreement and in writing between the parties.
6.
During the gazetted Queensland mid-year school holiday periods (school holidays for Term 1, 2 & 3) the mother shall spend time with the children in the Australian Capital Territory Town A for the first ten (10) days of the school holiday periods calculated as commencing from the last day of the school term and concluding on the tenth day of those school holidays, or as such other times as agreed between the parties in writing.
7.
If the Easter break falls outside of the gazetted Queensland school holiday periods, the mother shall spend time with the children from 10am Good Friday until 5pm Easter Sunday, with such time to be spent in the Australian Capital Territory Town A or as agreed between the parties in writing.
8.
In the gazetted Queensland Christmas school holiday period the mother shall spend time with the children in the Australian Capital Territory Town A as follows:
(a) In 2019/2020 and each alternate year thereafter, for the first half of the holiday period; and,
(b) In 2020/2021 and each alternate year thereafter, for the second half of the holiday period.
9.
That for the purpose of implementing the mother's time with the children in Queensland in accordance with order 5 herein:
(a) The mother shall be responsible for the payment of flights and accommodation when she spends time with the children in Queensland; and
(b) The parents shall meet at the McDonald's Restaurant in Town B, or any other location as may be agreed between the parties in writing from time to time, for changeover.
10.
That for the purpose of implementing the mother's time with the children in accordance with orders 6, 7 & 8 herein:
(a) The mother is responsible for organising the travel for the children from Queensland to the Australian Capital Territory Town A including payment of the travel fares;
(b) The father is responsible for organising the travel for the children from the Australian Capital Territory Town A to Queensland including payment of the travel fares;
(c) Each parent shall ensure such travel is arranged at least twenty-eight (28) days prior to the scheduled travel day and that the other parent is advised by email of such arrangements including a copy of the tickets;
(d) The mother is responsible to collect and deliver the children to and from the airport located in the Australian Capital Territory; and
(e) The father is responsible to collect and deliver the children to and from the airport located in the Region 1 area.
11.
That each parent may communicate with the children while they are in the care of the other parent via telephone or internet services, including Skype, with the calls to be made to either of the children's mobile telephones.
12.
That each party keep the other informed as to any serious illness or emergency affecting any of the children as soon as reasonably practicable.
13.
That each party keep the other informed as to their residential and email address, telephone number and the children's telephone numbers and shall advise the other within twenty-four (24) hours of any change to these details.
14.
That each party is restrained from denigrating the other party or anyone else living in the household in the presence or hearing of the children and will use their best endeavours to ensure that no other person denigrates the other party or member of their respective households to the children or in the presence of the children.
15.
That each party be and is hereby restrained from the discussing the details of these proceedings, or any matters that had arisen from these proceedings, with the children.
16.
That each party authorise and do all things, and sign all documents and give all consents necessary to enable any health or educational professional and any school attended by the children to provide each parent with copies of reports and any other documentation relevant to the health and education of the children. This order acts as sufficient consent in relation to both parents obtaining information from health and education authorities.
17.
Each party shall ensure the other parent's details are provided to the relevant authorities, including but not limited to the children’s school and health care professionals, as an emergency contact.
18.
That parties do all acts and things and give all consents necessary to ensure each child maintains a current Australian passport with the cost of any application to be shared equally by the parents.
19.
That the father be responsible for holding the children's passports while ever the children are not travelling internationally with the mother.
20.
The father will provide the children's passports to the mother at least twenty-one (21) days prior to any proposed travel should the mother advise she is travelling internationally with the children and the mother is to return the passports to the father within seven (7) days of returning from any overseas travel with the children.
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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