Bakal and Kapicic

[2014] FamCA 525

FAMILY COURT OF AUSTRALIA

BAKAL & KAPICIC [2014] FamCA 525

FAMILY LAW – CHILDREN – Interim Orders – Compliance – Father failed to deliver up child at handover – evidence from the bar table – capacity of the parents to make decisions in the best interests of the child – Minister for the Department of Education and Child Development invited to intervene in proceedings.

Family Law Act 1975 (Cth) s 91B

APPLICANT: Ms Bakal

RESPONDENT: Mr Kapicic

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4291 of 2011

DATE DELIVERED: 11 July 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT:	In Person
COUNSEL FOR THE INDEPENDENT CHIDLREN’S LAWYER	Ms Du Barry
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Services Commission of SA

Orders

1. Pursuant to Section 91B of the Family Law Act 1975 as amended THAT the Court requests the Minister for the Department for Education and Child Development - Families SA be invited to intervene in these proceedings and if the Minister determines not to intervene in these proceedings it is requested that the Minister send a representative to the Court to explain the Minister’s position on the adjourned date before the Honourable Justice Berman on 6 August 2014 at 9.15 am.

2. It is directed that the information filed since the Consent Orders were made on 27 May 2013 (including the Family Report by Dr C dated 27 April 2013 and the judgment of the Honourable Justice Berman dated 11 April 2014) be made available to the Minister for her consideration.

3. The Independent Children’s Lawyer confer with the parties and make recommendations to the parents of suitable specialist treatment of the child Andre’s urinary incontinence, psychological welfare and dental treatment and if the parties are unable to agree such specialist the decision be made by the Independent Children’s Lawyer.

4. The father return the child B born on … 2005 to the mother at 5.00 pm on Saturday 12 July 2014 inside the Suburb F Police Station UPON NOTING the orders of 27 May 2013 remain in place.

5. Any affidavit material or any amended application upon which either the mother or the father are seeking to rely be filed and served by 4.00 pm on 24 July 2014 UPON NOTING any amended application must set out specifically the full details of the orders which the party is seeking.

6. The Application in a Case filed by the mother on 26 June 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bakal & Kapicic (No 2) 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 ADELAIDE

FILE NUMBER: ADC 4291 of 2011

Ms Bakal

Applicant

And

Mr Kapicic

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. It is not with the consent of the mother, but I make the order in relation to the treatment of the child.  It is usually in the best interests of the child that the parents have the capacity and understanding to make those decisions but failing the capacity of the parents (as in this case it appears they have failed) it is necessary for the Court to exercise the jurisdiction.  Therefore in these unusual circumstances, I consider it is in the best interests of the child that decisions be made promptly in relation to the treatment which is needed.

2. The order that I made in relation to the parties conferring with the Independent Children’s Lawyer and attempting to agree treatment will include dental treatment for the child.

3. It is clearly against the law for either party to harass or attend and behave in a harassing way upon the premises of the other.  The proper considerations of intervention orders and injunctions can be considered when the matter comes before Justice Berman.  In the meantime, if either of the parties behave inappropriately, they will be matters which will be taken into account when the matters come before the Judge.

4. I have taken into account the submissions of the parties and the counsel for the Independent Children’s Lawyer. I remain significantly concerned about the psychological welfare of the child, as well as factors concerning the physical welfare of the child, and I therefore make an order pursuant to section 91B of the Family Law Act1975 (Cth), as amended, that the Minister for the Department of Education and Child Development, Families SA be invited to intervene in these proceedings.

5. If the Minister chooses not to intervene, I request that a representative of the Minister attend on the occasion before Justice Berman to explain the reasons for not intervening in these proceedings.  I direct that the information contained in the affidavit material and the reasons for judgment of Justice Berman, that is the affidavit material filed since the consent orders were made in May 2013 and the judgment of Justice Berman of 11 April 2014 be made available to the Minister for her consideration.

6. In relation to the overall issues, they are listed before Justice Berman on 6 August 2014 for.  Before me today is the Application in a Case of the mother which was filed seeking an urgent order for the return of the child and discharge of the orders providing for the father to spend time with the child. 

7. At the hearing this morning, I have taken into account the affidavit material which is on the Court file from each of the parties, the history of the matter, in particular the consent orders of May 2013 and the detailed reasons for judgment of Justice Berman in April 2014. 

8. I have also heard what could not be described as submissions from the bar table, but ongoing reference to fresh evidence by both of the parties to material which is of concern but which is not evidence before me today it not being in proper form.

9. The concern that the Court has is that the parties maintain today an ongoing inability to agree on many matters which relate to the welfare of the child.  The father admits at the bar table that he has had the child in his care, notwithstanding the orders which provided for the child to be in the mother’s care and spend time with him.  He maintains that he has done so because of the matters set out in the letters which are annexed to his affidavit.  I take those matters into account. 

10. I also take into account the serious issues raised by the mother concerning the father’s suitability as a full time carer of the child. 

11. It is in the best interests of the child at this interim basis for the orders that were made by consent on 27 May 2013 to be complied with by both of the parties. 

12. The issues that are raised by the father and the mother are not exactly the same as the issues which were raised before the consent order in May 2013 (and referred to in the Family Consultant’s report) but are a very similar nature.

13. Therefore having considered all of those matters, it is in the best interests of the child that the parties comply with the orders of 27 May 2013.

14. The question of the ongoing compliance with the orders of 27 May 2013 in relation to parties obtaining treatment and arranging treatment for the child will be matters which will be considered before Justice Berman on 6 August 2014. 

15. There already is an order in relation to the use of the communication book.  The Court considers that the parties need to carry out their role as parents appropriately and use the communication book in the appropriate manner for the best interests of the child.

16. The parties if they wish to change the Address for Service or method of service will need to make sure that the addresses for service on file are those upon which they are prepared to accept service.  The difficulties that exist in the service of these should indicate clearly that if it is to be personal service, then it is not to be conducted by either of the parties upon the other party, nor would it be appropriate in this case for it to be a friend or relative.  It would be appropriate to be some independent person if the documents cannot be served pursuant to the rules to the email address of the other party. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 July 2014.

Associate: 

Date:  16 July 2014