Jacobs and Martinovich

[2013] FamCA 820

FAMILY COURT OF AUSTRALIA

JACOBS & MARTINOVICH [2013] FamCA 820

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the Father is a Country E citizen and the Mother is a Country F citizen – Where the child was born in Country D – Where the parties moved to Australia in 2012 – Where the Mother is residing in Australia on a dependency visa – Where the Department of Immigration and Border Protection is yet to make a decision concerning the Mother’s visa  – Where the parties have reached consent on the parenting orders that best meet the child’s interests in the circumstances of them currently continuing to reside in Australia – Where the Court could not now legitimately determine the child’s best interests for some indeterminate time in the future – Parenting proceedings otherwise stayed

Family Law Act 1975 (Cth)
APPLICANT:	Mr Jacobs

RESPONDENT: Ms Martinovich

INDEPENDENT CHILDREN’S LAWYER: Ms Ellis

FILE NUMBER: BRC 5210 of 2012

DATE DELIVERED: 23 October 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 23 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Brasch

SOLICITOR FOR THE APPLICANT: Anthony Black Family Law Services

COUNSEL FOR THE RESPONDENT: Ms McDiarmid

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Selfridge 

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Burchill & Horsey Lawyers 

Orders

IT IS ORDERED BY CONSENT

Where the Child Lives/Parental Responsibility

1. That while Ms Martinovich (referred to as “the mother”) and Mr Jacobs (referred to as “the father”) reside in Australia they have equal shared parental responsibility for the major long term issues of B, born … 2012 (referred to as “the child”) including:

   (a)       education including primary, secondary and tertiary;

   (b)       health care, medical and dental issues;

   (c)       religious observance;

   (d)       sporting, cultural and social activities;

   (e)       travel, including the obtaining of a passport;

   (f)any changes to the child’s living arrangement that make it significantly more difficult for the child to spend time with either of the parents.

2. That while the mother and father reside in Australia they are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)       they shall inform the other parent about the decision to be made;

   (b)       they shall consult with each other on terms that they agree; and

   (c)       they shall make a genuine effort to come to a joint decision.

3. That each parent will have the sole responsibility for making decisions regarding the child’s day-to-day care, welfare and development during such times as the child is in their care.

4. That the child will live with the mother.

Time with the Father

1. That, unless otherwise agreed to by the parents in writing, the child will spend time with the father as follows:

   (a)       until the child’s second birthday:

   (i)from 4:00pm to 7:00pm every Tuesday and Thursday;

   (ii)from 8:00am to 5:00pm every Saturday and Sunday; 

   (iii)one additional day every fortnight from 8:00am to 5:00pm as nominated by the father; and

   (iv)the father is at liberty to nominate a Tuesday or Thursday for his additional day in accordance with clause 5(a)(iii) not more than twice in a calendar month.

   (b)       from the child’s second birthday to the child’s third birthday:

   (i)from 5:00pm Tuesday to 8:00am Wednesday;

   (ii)from 4:00pm to 7:00pm on Thursday; 

   (iii)from 8:00am Saturday to 6:00pm Sunday on the first weekend out of every two week time period; and

   (iv)from 6:00pm Saturday to 6:00pm Sunday on the second weekend out of every two week time period.

   (c)       from the child’s third birthday:

   (i)from 5:00pm Tuesday to 8:00am Wednesday;

   (ii)from 6:00pm Friday to 6:00pm Sunday on the first weekend out of every two week time period; and

   (iii)from 6:00pm Friday to 6:00pm Saturday on the second weekend out of every two week time period.

2. That the father will collect and return the child to the mother’s residence at the commencement and conclusion of the child’s time with the father.

Holidays/Special Occasions

1. That the child will spend time with each parent on holidays and special occasions, as agreed to by the parents in writing and failing agreement, as follows:

   (a)       with the father:

   (i)Father’s Day – from 5.00pm on the Saturday immediately preceding Father’s Day until 5:00pm on Father’s day each year;

   (ii)Child’s Birthday – from 1:00pm to 5:00pm each even numbered year and 9:00am to 1:00pm on each odd numbered year;

   (iii)Father’s Birthday – from 8:00am to 5:00pm;

   (iv)Christmas – from 5:00pm Christmas Eve to 5:00pm Christmas Day every even numbered year and 5:00pm Christmas Day to 5:00pm Boxing Day every odd numbered year; and

   (v)Easter – from 8:00am Friday to 5:00pm Saturday.

   (b)       with the mother:

   (i)Mother’s Day – from 5:00pm on the Saturday immediately preceding Mother’s Day until 5:00pm on Mother’s Day each year;

   (ii)Child’s Birthday – from 9:00am to 1:00pm on each even year and 1:00pm to 5:00pm on each odd numbered year;

   (iii)Mother’s Birthday – from 8:00am to 5:00pm;

   (iv)Christmas – from 5:00pm Christmas Eve to 5:00pm Christmas Day every odd numbered year and 5:00pm Christmas Day to 5:00pm Boxing Day every even numbered year; and

   (v)Easter Sunday – from 5:00pm the Saturday to 5:00pm Monday.

2. That the parents are at liberty to reach agreement in relation to holiday time.

Communication Issues:

1. That the mother and father will communicate with each other about the child through the use of ‘sms’ text messages and email and these communications will include but are not limited to when the child has last slept and last eaten  prior to changeover unless it is in an emergency situation and then they will communicate by using telephone voice call.

2. That both parents are to keep the other informed of a current residential contact address for the child and a contact telephone number while the child is with that parent and will inform the other parent in writing within 48 hours of any change to these details.

3. That the parent responsible for the care of the child is to contact the other parent as soon as practicable if the child:

   (a)       becomes seriously ill;

   (b)       is hospitalised; or

   (c)       is involved in an accident; and

   (d)inform the other parent of the name and address of any treating doctor and medical facility

4. That, in the event that an urgent decision must be made by either parent and the other parent is not able to be contacted after all reasonable attempts have been made or fails to respond to reasonable request for information, the parent then caring for the child will make that decision and inform the other parent by the most immediate means possible.

5. That these orders provide authorisation to:

   (a)allow the provision to the other parent by any health, educational or welfare professional or other professional attended by the child of any information affecting the health and welfare of the child;

   (b)permit the child’s day care centre/school to provide reports, notices and school photographs to the other parent;

   (c)permit the other parent to discuss with the child’s child carer/teacher their performance.

6. That both parents shall do all things to ensure that each parent is listed as the child’s parents and emergency contact on the enrolment form of any child care centre that the child attends.

7. That both parents shall do all things to ensure that each parent is informed of the name, address and telephone numbers of any health service provider engaged or proposed to be engaged in relation to the child, and any form of treatment administered, recommended or proposed for the child within seven (7) days of these orders or of any attendance.

8. That each parent shall ensure that the child will continue any medication or prescribed treatment while the child is in their care.

9. That each parent is restrained from enrolling the child in an activity that occurs during the time that the child is to spend with the other parent, in accordance with these orders, without first obtaining the other parent’s agreement in writing.

10. That, pursuant to section 68B of the Family Law Act 1975 (“the Act”), the parents are restrained from:

    (a)entering or remaining in the other parent’s place of residence or employment;

    (b)approaching within 50 metres of each other’s place of residence or work except for the purpose of spending time with the child as provided for by these Orders;

    (c)from contacting each other unless such contact is necessary for executing these orders or for the health, welfare and development of the child;

    (d)from enrolling the child in a child care centre without first obtaining the written consent of the other parent and such written consent is to be dated with the signatures witnessed by either a Justice of Peace or a solicitor;

    (e)       behaving aggressively toward the other parent at changeover;

    (f)       quarrelling or arguing with the other parent during changeover; and

    (g)physically disciplining the child and from permitting any other person to do so.

11. That the mother is at liberty to provide officials from the Department of Immigration and Border Protection with a copy of these orders. 

Travel Overseas

1. That, while the parents are able to reside in Australia, the parents and their servants and/or agents are restrained from removing or attempting to remove or causing or permitting the removal of B, born … 2012 ( referred to as “the child”) from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by maintaining the names of the said child on the All Ports Watch List in force at all points of arrival and departure in the Commonwealth of Australia until the Court orders their removal or the child turns 14 years of age.

2. That the Marshal and all the officers of the Australian Federal Police and the police forces of the states and territories are requested and authorised to give effect to these orders.

3. That the Independent Children’s Lawyer must immediately notify the Marshal and the Australian Police Family Law Team in Queensland by telephone of these Orders and provide them with a copy of these Orders as soon as possible.

4. That, while the parents are able to reside in Australia, the parents are restrained from applying for any visas or travel documents for the child without written agreement by the other parent and each parent’s signature is witnessed by a Justice of the Peace.

5. That, while the parents are able to reside in Australia, the child’s passports:

   (a)will be held by Brisbane Registry of the Family Courts of Australia and will only be released on the receipt of a written agreement signed by both of the parents with each parent’s signature to be witnessed by a Justice of the Peace; and

   (b)The parents must, within 14 days of being presented with the documents sign all necessary documents to renew the child’s passport and if a parent fails to do so the other parent is at liberty to apply and have this matter listed within three (3) days.

6. That in the event there is agreement for one of the child’s passports to be released to a parent, the passports released must be returned to the Brisbane Registry of the Family Courts of Australia within 48 hours after the purpose for which it has been released is completed.

Spousal Maintenance

1. That, while Ms Martinovich (referred to as “the wife”) remains on a 457 dependent visa or any visa arising from the circumstances of her relationship with Mr Jacobs ( referred to as “the husband”), pursuant to section 74 of the Act the husband will pay the wife, by way of spousal maintenance the following amount:

   (a)a periodic payment of seven hundred and six dollars  ($706.00) every week commencing from the date of these orders; and

   (b)the sum of money noted in clause 26(a) will be paid to a bank account nominated by the wife. 

2. That, in the event the husband fails to pay the wife the spousal maintenance, as set out in clause 26 then, upon the wife providing the husband or the husband’s solicitor with forty-eight (48) hours notice of her intent to do so, the wife is at liberty to apply and have this matter listed within three (3) days for the purpose of seeking further ancillary relief orders by way of enforcement or capitalisation.

Step-Child Maintenance

1. That, while C born … 1997 ( referred to as “C”) remains on a 457 dependent visa or any visa arising from the circumstances of the mother’s relationship with father, pursuant to section 66M of the Act and from the date of these orders, the father husband will pay the mother, until 19 May 2015, by way of child maintenance for C born …1997, the sum of forty dollars ($40) per week to a bank account nominated by the wife.

2. That, while C remains on a dependent 457 visa or any visa arising from the circumstances of the mother’s relationship with the father, pursuant to section 74 and section 66 of the Act the father will provide private family health insurance for the child, the mother and C while they remain living in Australia and they are unable to obtain welfare benefits from Centrelink and the public Medicare scheme.

IT IS FURTHER ORDERED THAT

1. The parenting proceedings otherwise be stayed.

2. The parties and the Independent Children’s Lawyer have liberty to apply on the giving of seven (7) days notice to the other parties.

3. Pursuant to section 121(9) of the Act, each of the parties have liberty to provide a copy of these orders and reasons for judgment to the Department of Immigration and Border Protection.

4. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jacobs & Martinovich 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 5210 of 2012

Mr Jacobs

Applicant

And

Ms Martinovich

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings within the meaning of Part VII of the Family Law Act (“the Act”) concerning one child B born in Country D in 2012. 

2. The Applicant Father, Mr Jacobs (“the Father”), was born in Country E in 1972.  He is a Country E citizen living in Australia on a four year working visa, working as a professional. 

3. The Respondent Mother, Ms Martinovich (“the Mother”), was born in Country G in 1977.  She is a Country F citizen who is a qualified teacher in Country F, but is living in Australia on what is known as a dependent “457” visa. 

4. B is the child of these parents, who married in 2011.  C was born in 1997 and is the Mother’s child from a previous marriage.

5. The parents, C and the child B came to Australia on or about 23 April 2012 after the Father gained employment here. The jurisdiction of this Court is engaged on the basis that at the time of the institution of these proceedings in the Federal Magistrates Court (as it then was) on 14 June 2012, the parents were ordinarily resident in Australia on the visas referred to, as was the child.

6. The jurisdiction of this Court under Part VII of the Act importantly records the objects of Part VII as including in section 60B the following:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

7. Section 60B (2) provides that:

   (2) The principles underlying these objects are that (except where it would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

8. Those objects find reflection in many of the statutory considerations expressed in section 60CC(3) of the Act by which the Court determines parenting orders to be made in the best interests of a child. It is readily apparent from those brief references that the focus of the jurisdiction of this Court under Part VII is upon the best interests of the child the subject of the proceedings, and the rights of a child, rather than rights of parents.

9. In the event these parents and the Independent Children’s Lawyer appointed to independently represent the interests of the child in the proceedings have been able to reach agreement concerning the parenting orders that best meet the best interests of the child in the circumstances of the parents currently continuing to reside in Australia.

10. The difficulty in this case is that what is presently unknown is for how long both of the parents will retain a right of residence in Australia.  On the evidence, it would seem that the Mother has no right of residence in the Father’s country of origin, namely Country E, nor has the Father any automatic right of residence in the Mother’s country of origin, namely Country F.  Thus it is the fact that on all the evidence presently available, the best interests of the child can currently only be met by the feature that the child and his parents remain living in Australia which affords the capacity to meet the objects to which I have referred, as reflected in the statutory considerations to which I have referred.

11. That is of particular importance when the child the subject of these proceedings is not yet two years of age and his cultural background, obviously derived from his parents, is Country E on the Father’s side and Country F on the Mother’s side.

12. The evidence before me is that the Department of Immigration and Border Protection (“the Department”) has yet to make a decision concerning the Mother’s visa.  On 13 July 2012 the Department corresponded to the effect that a determination as to cancelation of the Mother’s 457 dependant visa, and indeed that of C, would be made by the Department once notified of the outcome of these proceedings.

13. The jurisdiction of this Court, as already noted, was engaged by the filing of the application on 14 June 2012.  The matter came before the Federal Magistrates Court (as it then was) on 18 July 2012, but was adjourned for the purpose of a family consultant undertaking a family report. 

1. Federal Magistrate Spelleken (as her Honour then was) delivered orders and reasons on an interim basis, and notably those provided for the parents to have equal shared parental responsibility within the meaning of the Act, with respect to the child.

2. On 28 August 2012, the complexity of the matter was such that Federal Magistrate Turner (as her Honour then was) transferred the matter to this Court and it came on for trial before me today.

3. As already mentioned, the parties have reached consent and the orders they have consented to reflect, like the objects I have referred to, and the statutory considerations for best interests I have referred to, the need for the child to have a meaningful involvement from both of his parents in his life. 

4. Those consent orders provide for the parents to have equal shared parental responsibility and provide a regime for substantial and significant time for the child to spend with each of his parents.

5. This Court does not have jurisdiction to bind the Department, but it is worth noting that each of Australia, Country E and Country F are parties to the Hague Convention on the Civil Aspects of International Child Abduction. That is a recognition by each of those countries that best interest considerations should lie at the forefront of determining parenting arrangements for children.  Irrespective of any questioning or criticisms that can be made of parents in a case such as this, in circumstances where the Department were to exercise a determination that would see either of these parents having to leave Australia, the hapless victim of that, by reference to the child’s best interests as referred to, would be the child given the geographical distance between his parents that such a determination would impose.  

6. In the result, each of the parents intend that if the Department resolves to cancel visa entitlements for residents, that they will each take such steps as they can to appeal that decision.  It is uncontroversial, so far as I am aware, that if, for example, the Mother’s visa were cancelled and she launched an appeal process to the Migration Review Tribunal, then to Federal Magistrates Court, and thereafter to the Federal Court, that it may be some considerable time before that appeal process has been exhausted.  Moreover, as has been noted before me, the information currently from the Department is that there is no set date or deadline by which the Department may determine one way or the other the current visa status of the Mother.

7. Whilst, as I have noted, this Court cannot bind the Department, one would hope that regard to the child’s best interests might find some expression in the Department’s determination or that of its Minister in determining the Mother’s continuing residence in Australia, having regard to notions of comity, given the membership of each of the countries referred to to the Hague Convention, but more particularly the best interests of the child in circumstances where an Australian court is exercising its jurisdiction under the Family Law Act 1975 as it is obliged to do with respect to the child in these circumstances in making the orders by consent that have been agreed to by the parties.

8. Given the uncertainties made obvious, as referred to, in terms of any time frame by which change might come about by reason of action of the Department and by reason of the appeal processes I have briefly referred to, it seems to me that beyond the consent orders that are agreed to by the parties, this Court could not now legitimately exercise discretion or determine the child’s best interests for some indeterminate time in the future. 

9. Obviously, the nature of human affairs is such that change is ever present and, in particular, in this case there is obvious scope for changes occurring, having regard also to the child’s tender age.  It may well be that some months or years go by before there is any change confronted by, for example, the Mother, in terms of her visa requirements. 

10. On that basis, it seems to me that beyond the making of the consent orders that I intend to make, the parenting proceedings in this Court ought be stayed for further consideration and determination upon the parties being given liberty to apply to re-enliven the proceedings.

11. For these reasons I therefore make the Orders set out at the commencement of them.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 23 October 2013.

Associate:  PP

Date:  23 October 2013