Bahytovich & Anor and Jachai & Anor

[2012] FamCA 140

FAMILY COURT OF AUSTRALIA

BAHYTOVICH AND ANOR & JACHAI AND ANOR [2012] FamCA 140

FAMILY LAW - CHILDREN - With whom a child lives - Where the Respondent Father is in custody on remand for the alleged murder of the subject child's mother - Where the maternal grandparents seek that the subject child live with them and that they have sole parental responsibility - Where the Respondent Father consents to the application of the maternal grandparents - Where the Intervenor and the Independent Children's Lawyer consent to the Orders sought by the maternal grandparents - Where the child is ordered to live with the maternal grandparents in Country 1

1st APPLICANT: Ms S Bahytovich

2nd APPLICANT: Mr Bahytovich

RESPONDENT: Mr Jachai

INTERVENOR: Department of Communities (Child Safety Services)

INDEPENDENT CHILDREN’S LAWYER: Mr Williams

FILE NUMBER: BRC 11101 of 2011

DATE DELIVERED: 19 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 19 March 2012

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: Couper Geysen Animal & Family Law

SOLICITOR FOR THE INTERVENOR: Crown Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Williams Lawyers

Orders by Consent

1. The Applicants be given leave to file and serve an Initiating Application in this matter.

2. The child, M, born … June 2011, live with the maternal grandparents.

3. The maternal grandparents be granted authority to execute all documents necessary to enable M to leave the jurisdiction of the Commonwealth of Australia.

4. The maternal grandparents be granted authority to execute all documents necessary to enable M to obtain permanent residency in Country 1.

5. The maternal grandparents have sole parental responsibility for all decisions to be made in relation to major long-term issues pertaining to the child.

6. The maternal grandparents have sole parental responsibility for making decisions about the day-to-day care, welfare and development of M during the periods when M is living with them, except as otherwise provided for in these Orders.

7. The maternal grandparents shall forward to the Father copies of M’s school records and any other relevant documents.

8. The Father be at liberty to forward to M gifts, cards and other writings in the future.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bahytovich and Anor & Jachai and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11101 of 2011

Ms S Bahytovich and Mr Bahytovich

Applicants

And

Mr Jachai and Intervenor

Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings concern M, who is nine months of age, having been born in June 2011. The parties to the current proceedings are the maternal grandparents, who are the Applicants, the Respondent is M’s father, Mr Jachai (“the Father”), M is represented by an Independent Children’s Lawyer, namely Mr Peter Williams of Williams Lawyers, and the Intervenor in the proceedings is the Department of Communities (Child Safety Services), who appears by way of representation from Crown Law by Mr Parrott.

2. The child’s mother, Ms T Bahytovich (“the Mother”), is deceased. The Father, who is the Respondent to these proceedings, has been charged with the Mother’s murder. The Father remains in custody at a Correctional Centre following his arrest and he appeared by telephone before me for the purpose of these proceedings.

3. The Applicant maternal grandparents live in Country 1, and are non-English speakers. There is an interpreter present in Court this morning for the purpose of interpreting the exchanges that have occurred this morning and what I am currently saying.

4. The evidence before me establishes that the maternal grandparents travelled to Australia in January of this year and commenced to see M via the auspices of the Department of Communities (Child Safety Services). M has resided with foster carers since 1 October 2011.

5. The maternal grandparents seek Orders for, inter alia, M to return to live with them in Country 1 and for them to have sole parental responsibility for M. Mr Williams, the Independent Children’s Lawyer, raised this morning the question of whether parental responsibility ought be shared. However, Mr Jachai, the Respondent Father, has informed me that he does not seek an Order for joint parental responsibility and willingly consents to an Order in terms that the maternal grandparents have sole parental responsibility provided he is able to at least make contact with M and there are, in the Orders sought by the maternal grandparent Applicants, Orders enabling that contact to occur and a positive obligation is imposed on the maternal grandparents to forward to the Father copies of M’s school records and any other relevant documents.

6. There is material before me as to the maternal grandparents’ home situation, if it may be described that way. The maternal grandmother is employed in the education field and works approximately 20 hours in a five day week. The parties live in a four room apartment in a village, not far from the regional centre.

7. An affidavit in the proceedings has been filed by Ms F, a Child Safety Officer with the Department, that provides a history to this matter and deals with the Orders sought by the maternal grandparents for the long-term care of M. That affidavit speaks to the bonding that has occurred between M and the maternal grandparents and the strengthening of that bond through ongoing contact between them since the maternal grandparents travelled to Australia in January. Overnight contact between M and the maternal grandparents commenced in or about late February 2012, and it appears M has responded well to that contact.

8. In the circumstances, I am satisfied that it is in M’s best interests to make Orders by consent as set out at the commencement of these reasons.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 March 2012.

Associate: 

Date:  20 March 2012