Adzic & Adzic
[2022] FedCFamC1F 416
•8 April 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Adzic & Adzic [2022] FedCFamC1F 416
File number(s): BRC10366 of 2021 Judgment of: HOWARD J Date of judgment: 8 April 2022 Catchwords: FAMILY LAW – CHILDREN – Where the mother commenced family law proceedings in Australia in August 2021 – where the father commenced proceedings in [Country B] in October 2021 – where the father seeks a stay of the Australian proceedings to continue proceedings in [Country B] – where the father has been arrested and charged with the attempted murder of the mother. Legislation: Criminal Code Act 1899 (Qld) ss 47(9), 419, 306(1)(a)
Domestic and Family Violence Protection Act 2012 (Qld) s 177(2)(a)
Family Law Act 1975 (Cth) ss 60CC, 69ZL.
Cases cited: Pascarl & Oxley [2013] FamCAFC 47
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. ZP v PS (1994) 181 CLR 639
Division: Division 1 First Instance Number of paragraphs: 26 Date of last submission/s: 8 April 2022 Date of hearing: 8 April 2022 Place: Brisbane Solicitor for the Applicant: Ogge Law Solicitor for the Respondent: DA Family Lawyers Solicitor for the Independent Children’s Lawyer: Feeney Family Law ORDERS
BRC 10366 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ADZIC
Applicant
AND: MR ADZIC
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
8 April 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the children X born in 2007 and Y born in 2009 (“the children”) shall live with the mother.
2.That the mother shall have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 as amended) in respect of the children.
3.That the children spend no time and have no communication with the father.
4.That the Directions Hearing before a Judicial Registrar on 26 April 2022 be vacated.
5.That the Application in a Proceeding filed by the father on 17 January 2022 (seeking a stay of these proceedings) be adjourned for Interim Hearing commencing at 10:00am on 25 May 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
6.That personal attendance in Court by the parties and their legal representatives is required on 25 May 2022.
7.That by no later than 4:00pm on 23 May 2022, the parties and Independent Children’s Lawyer shall file and serve any Outline of Case document upon which they seek to rely on 25 May 2022.
IT IS NOTED:
A.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adzic & Adzic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
The matter before the Court is a parenting case. It was listed today for an application brought by the father. The father sought an order that the proceedings currently before this Court be stayed and he sought an order to permit the litigation in relation to the parenting issues to continue in Country B where the father has commenced proceedings.
When the matter commenced this morning, Ms Foley, the solicitor who appears for the father, informed the Court that in early 2022 the father was arrested and charged with three offences.
The Court has before it Exhibit 1. Exhibit 1 is a bundle of documents including three bench charge sheets.
The first charge is that in early 2022 at Town C, Queensland, the father entered the dwelling of the mother with the intent to commit an indictable offence in the dwelling and the entry was by means of a break and the offence was committed in the night under ss 419(1), (2) and (3)(a) of the Criminal Code Act 1899 (Qld) (“the Criminal Code”) as well as s 47(9) of the Criminal Code. The offence is also a domestic violence offence.
The second charge is particularised as relating to s 177(2)(a) of the Domestic and Family Violence Protection Act 2012 (Qld). The particulars of the charge are that on the day of the offence in 2022 at Town C in the State of Queensland the father, being a respondent against whom a domestic violence order had been made, contravened the said order, namely, the Temporary Protection Order made in early 2021 in the Magistrates Court of Queensland at Brisbane. The father had been served with a copy of the order by a police officer, Constable D.
A third charge is under s 306(1)(a) and s 47(9) of the Criminal Code, specifically that at the time of the above incident in Town C in the State of Queensland the father attempted unlawfully to kill the mother. The offence is also a domestic violence offence.
These are the three charges that have been laid against the father. The parties have agreed on certain facts including that the father remains currently incarcerated and that his next court appearance is scheduled to take place in early 2022.
It is to be noted that neither party actually is aware of the precise purpose of the court appearance referred to in paragraph 7.
Ms Foley, the solicitor for the father, has attempted to obtain instructions and has been able to have one conference on 5 April 2022 by telephone with the father, although I apprehend from her submissions that it has been rather difficult for her to get instructions.
Ms Ogge, the solicitor who appears for the mother, made an oral application today for a parenting order in respect of the children. It seems to me that the orders proposed by the mother are appropriate at this point in time. These reasons are given pursuant to s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) – short form reasons on the making of an interim parenting order. I note, in particular, s 60CC(2)(b) and s 60CC(2A) of the Act, which include the need to protect children from various forms of harm.
An unfortunate set of circumstances, to say the least, has arisen. The father of the two subject children (X born in 2007 and Y born in 2009), has been charged with three offences including the attempted murder of the mother. One of the most important aspects at the moment, so far as this Court is concerned, is what orders could be made to best assist the children. That is, what is in their best interests at the moment? Given their age it will be reasonably difficult to shield them completely from the current circumstances. However, these are matters for the current resident parent, namely, the mother, to attend to as best she can.
The Independent Children’s Lawyer supports the making of an order that would see that the children live with the mother, that they have no communication with the father, and that the mother have sole parental responsibility. These would be interim orders. I have also heard from Ms Foley (the solicitor for the father) about the making of such orders.
The father does not want to see any reduction in his own time, however, at the moment, of course, he is incarcerated so his time has stopped.
Given the particular nature of the allegations and the circumstances in which the father finds himself, I consider that it is in the best interests of the boys not to have any communication with their father at the moment. My view on that may change down the track once I have seen more extensive evidence, including an affidavit from the mother and one from the father and the police file, which will likely be obtained by way of subpoena through the Independent Children’s Lawyer.
It has to be noted at this point in time that the father, like every person in this country, is entitled to the presumption of innocence regarding these charges that have been laid against him. It remains to be seen whether there are any convictions in respect of these charges. That is a matter for another Court on another day.
So far as this Court is concerned, the urgent oral application made today by Ms Ogge is appropriate in the circumstances. The orders proposed on behalf of the mother are also appropriate. They are in the best interests of the children. I have considered what each of the lawyers have had to say and I have made it very clear which sections of the Act I am placing the most reliance upon at this point in time.
The proceedings this morning began with Ms Foley applying for an adjournment in respect of her own client’s application for a stay of these proceedings in this Court, namely, the Federal Circuit and Family Court of Australia (Division 1). I heard some brief submissions from Ms Ogge about it and Ms Ogge’s instructions were to oppose the granting of an adjournment.
I note the Independent Children’s Lawyer has filed a case outline in respect of the stay application and I have had a look at it. For the benefit of the parties and the Independent Children’s Lawyer, I would note that I think that it sets out the wrong test. In divorce proceedings and in property proceedings it is a forum non conveniens test (the clearly inappropriate forum test) from Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. However, because it is a parenting case, when we reconvene I want to hear submissions in relation to ZP v PS (1994) 181 CLR 639 and Pascarl & Oxley [2013] FamCAFC 47 and other cases related thereto. On my reading of the authorities, it seems clear that because it is a parenting case - when I am considering whether or not to exercise the discretion to stay the proceedings in this Court, I should be applying the best interests test.
I want to hear submissions on which test the parties say should be applied here in determining the stay application.
If the stay is not granted there will be proceedings on foot in both Australia and Country B. I am told, and this is from Ms Ogge via instructions from her client, that apparently the court in Country B has recently come to the conclusion that it has jurisdiction to deal with the matter.
If the stay application is successful it seems to me that would be the end of it. The proceedings would continue in Country B. If the stay is not successful it seems to me that it may be the case that the Court ought to hear an application that would see the Court issue an anti-suit injunction against the father from proceeding further in the Country B court. This will only be necessary if such an application is filed.
It may be that the view of the parties is it is not appropriate to deal with those sorts of applications on the one day and if the stay order was unsuccessful perhaps the father might give an indication about what he might or might not do. It may not need any further involvement from the Court but looking at the question of resourcing it might be as well for the parties to be prepared in case that is what they decide to do.
If that were going to happen it would seem to me that there would obviously need to be notice of that application - which would mean the filing of an application seeking those orders and then an ability to respond.
I am raising these matters so that the litigation or the preliminaries to the litigation potentially do not drag on. It may be that the father is able to convince the Court that a stay here is appropriate – although this is obviously subject to further evidence and further submissions.
I have been doing this long enough to know that sometimes people get charged with all sorts of offences none of which are ever proved and then this Court’s processes just move on. In any event, there are serious matters for consideration in the fullness of time. I am going to adjourn this matter to 25 May 2022. That is, I am going to adjourn the current application, which is the father’s application for a stay, to 10.00am on 25 May 2022 for further hearing.
In the event that there is to be any other applications to be heard on that day, such applications would need to be filed and served and the registry notified.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Howard. Associate:
Dated: 8 June 2022
0
3
3