JACSIC & MAMULA

[2014] FamCA 901

FAMILY COURT OF AUSTRALIA

JACSIC & MAMULA [2014] FamCA 901

FAMILY LAW – CHILDREN – Long standing litigation and conflict – No contact and no relationship between father and children – Father decides not to proceed – Orders made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Jacsic

RESPONDENT: Ms Mamula

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6282 of 2012

DATE DELIVERED: 8 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 September 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER Agricola Wunderlich & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Combes

Orders

1. That the application of the husband seeking parenting orders is withdrawn.

2. That the wife have sole parental responsibility for the child B JACSIC born … December 1999 (but otherwise known to the wife and the child herself as (a spelling similar to her birth given name) MAMULA), C JACSIC born … November 2000 (but otherwise known to the wife and the child himself as (a spelling similar to his birth given name) MAMULA) and D JACSIC born … June 2003 (but otherwise known to the wife and to the child himself as (a spelling similar to his birth given name) MAMULA).

3. That the husband be restrained by injunction from having any contact with the said children other than by letters, cards and presents.

4. For the purposes of paragraph 3 of these orders, the wife provide to the husband forthwith upon her arrival in Sydney, an address to which the letters, cards and presents can be forwarded to the children and the wife shall immediately upon receipt of any such items, advise the husband in writing that those items have been received and have been given to the children.

5. That the children be at liberty to live permanently in New South Wales or such other Australian place as the wife determines.

6. That the Independent Children’s Lawyer is discharged from the proceedings.

7. That all outstanding applications are otherwise dismissed.

8. That pursuant to s 65DA(2) and s 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 Jacsic & Mamula 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 MELBOURNE

FILE NUMBER: MLC 6282 of 2012

Mr Jacsic

Applicant

And

Ms Mamula

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are parenting proceedings which sadly have an appalling history through the litigation system, culminating in them being transferred from the Federal Circuit Court to this Court.  Each of the applicant and the respondent has appeared today without legal representation, which has made the task for them and for the Court somewhat more difficult.  The dispute is about three children whose birth names are recorded on the Victorian Register as B Jacsic, born in December 1999;  C Jacsic, born in November 2000;  and D Jacsic, born in June 2003.

2. The proceedings arose out of a dispute as to what happened in the personal relationship of the parents.  The consequences of that affected the children.  Suffice to say that, for almost four years, Mr Jacsic (“the father”) has had nothing to do with these three children.  There have been counsellors, psychologists and family reports involved in this case, and none of that resolved the matter until today. 

3. In the midst of cross-examination of the father by counsel for the Independent Children’s Lawyer, he broke down and indicated that he could no longer continue with the proceedings.  That occurred as a result of an obvious question which sooner or later had to be faced, which was how these children could be forced to do something which they would not want to do, particularly bearing in mind two out of the three children’s ages. 

4. The father had the luncheon break to have a think about things, and he had ultimately came to a decision that he wanted to stop the proceedings and allow the children to get on with their lives.  After lunch, the issues were further canvassed, and he confirmed his position, leaving the mother of these children with sole parental responsibility for them.  That includes the question of where they live.  It has always been the mother’s desire to live with the children in Sydney.  There would then be no contact face to face, at least for the foreseeable future.  There does not seem to be any reason why the children should not live with her where she so chooses in Australia. 

5. As counsel for the Independent Children’s Lawyer rightly pointed out, Sydney may not be the most ideal situation from the community’s point of view, but without any other option left open, it does not seem appropriate that I should retain the children at a place contrary to the wishes of their mother.

6. There was subsequently debate about the question of whether I should make orders which sought to affect changes to the birth registry practice in Victoria, because each of the names of the children does not accord with either what their first names are as shown on the register; what the children are calling themselves now; and also issues about their surname.  Absent four years of having a father in their life, they have reasons to call themselves by their mother’s surname.

7. I had indicated it is not appropriate for the Court to be directing the Registrar to alter the names, bearing in mind that the power of the Court is limited.  In any event it seems to me there has been no error here, in the registration of the births, but rather a dispute between the parties as to exactly what the correct spelling of the children’s names should have been at the time of registration.  In respect of each of the children, the error, or disagreement, occurred for each occasion the children’s names were registered. 

8. The other issue in relation to names concerns the fact that the children are calling themselves by their mother’s surname, and that is creating some difficulty with identification.  As I have pointed out, and the order I will make will cover that contingency, that situation leads into the final order sought by the wife, which relates to the issue of an Australian passport. 

9. I have expressed to the wife the role of the Court and the limitations of the power in relation to the Australian Passports legislation, and whilst she might want to have the birth certificates with the names that she wants to register as the passport names of the children, in my view it is a matter for the Minister involved in the issuing of passports to decide what name the children should use.

10. This is a very sad outcome for these children in one way, and good in another.  It gives them an opportunity to get on with their lives, but they will not have a father in their lives.  It may be that that problem can be resolved by him expressing, in appropriate terms by letters, cards and presents to an address that the mother will be obliged to give him, so that they can at least understand that their father does know of them and has some views about them. 

11. I am proposing to make a restraining order precluding the father from having any contact with them other than by that correspondence.  For that purpose, the wife will be obliged to provide a Sydney address, as soon as she arrives in Sydney, to which those items can be sent.  Immediately she is there, she is to advise the husband that she has received the items and given them to the children. 

12. There does not seem to be any further role for the Independent Children’s Lawyer, so I propose to discharge the Independent Children’s Lawyer.  I make the usual orders under ss 65DA(2) and 62B, which I direct will be attached to the order itself, and I otherwise dismiss the proceedings. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 September 2014.

Associate: 

Date:  22 October 2014