Jukic & Jukic
[2021] FamCA 54
•17 February 2021
FAMILY COURT OF AUSTRALIA
Jukic & Jukic [2021] FamCA 54
File number(s): DGC 556 of 2018 Judgment of: HARTNETT J Date of judgment: 17 February 2021 Catchwords: FAMILY LAW – PARENTING – application for international relocation – where mother seeks to return to Europe – where children aged 9 and 7 – defended final parenting hearing with the father disengaging from the proceeding on the last day of hearing – where it is appropriate to proceed with the matter on an undefended basis – where the mother is willing to foster the relationship between the children and the father – where international relocation is in the best interests of the children – relocation permitted. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA
Cases cited: Adamson & Adamson (2014) FLC 93-622
AMS v AIF (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs: 78 Date of hearing: 16 – 17 December 2019
10 – 11 June 2020
28 September 2020
13 January 2021Place: Melbourne Solicitor for the Applicant: No appearance Counsel for the Respondent: Mr Moore ORDERS
DGC 556 of 2018 BETWEEN: MR JUKIC
ApplicantAND: MS JUKIC
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
14 JANUARY 2021
THE COURT ORDERS THAT:
1.All previous orders be discharged, including the Airport Watchlist Orders made on 5 September 2019 and being orders numbered 7, 8, 9 and 10 thereof.
2.The parties share equal parental responsibility in relation to the children X born … 2011 and Y born … 2013 (collectively, ‘the children’).
3.The parties are required to make all decisions about major long-term issues in relation to the children jointly.
4.The parties are not required to consult the other when making decisions while the children are in their care under this order about issues that are not major long-term issues.
5.The children live with the mother.
6.The parties each sign for any Serbian/Australian passports for the children as may be required upon either party giving 28 days’ notice to the other party that their signature is required for the issuing of any and all such passports. In the event the father fails to comply with this order then the mother is permitted to apply for an Australian passport for the children without the consent of the father and the Department of Foreign Affairs and Trade (The Australian Passport Office) is directed to issue a passport in the name of the children or either of them in the absence of consent of the father. There is liberty to the parties to apply on short notice to the Chambers of Justice Hartnett in respect of the operation of this order, should that be required.
7.In the event the father relocates his place of residence to G City, Serbia and/or until such time as the mother and the children cease to reside in Melbourne, Australia, the children shall spend time with the father as follows:-
(a)during school terms:-
(i)every alternate weekend from the conclusion of school on Friday to the commencement of school the following Monday; and
(ii)from the conclusion of school every Thursday from after school to 8.00pm or at a time to conclude as agreed between the parties;
(b)during all school holidays:-
(i)for one half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and
(ii)any provision for time in this order that is inconsistent with school holiday time be suspended during gazetted school holiday periods;
(c)in all even numbered years:-
(i)from 12 noon on Orthodox Christmas Eve until 12 noon on Orthodox Christmas Day; and
(ii)the children’s time with the father is suspended;
(d)in all odd numbered years:-
(i)from 12 noon on Orthodox Christmas Day until 12 noon on the following day; and
(ii)the children’s time with the father is suspended;
(e)from 9.00am to 5.00pm on Father’s Day and that any provision for time of for the children to live with the mother under these orders that is inconsistent with this order be suspended so as to facilitate time under this sub-order;
(f)the children’s time with the father is suspended from 9.00am to 5.00pm on Mother’s Day and that any provision under this order that is inconsistent with this sub-order be suspended; and
(g)any further and other times that may be agreed between the parties in writing from time to time.
8.In the event the father relocates his place of residence to G City, and/or until such time as the mother and children cease to reside in Melbourne, Australia, the children shall spend equal time with the mother and father as follows:-
(a)the children’s birthdays;
(b)the mother’s birthday; and
(c)the father’s birthday;
at times to be agreed between the mother and father, and failing agreement, the children shall spend time with the father from 3.00pm until 7.00pm on the father’s birthday and the children’s birthdays and the mother at all other times on those days, and with the mother from 3.00pm until 7.00pm on her birthday, and that any provision of time under these orders that is inconsistent with this order be suspended.
9.In the event the father relocates his place of residence to G City, and/or until such time as the mother and children cease to reside in Melbourne, Australia, the children shall spend further time with the mother and father as follows:-
(a)in even numbered years:-
(i)the children spend time with the father from 12 noon on the day prior to Orthodox Easter until 12 noon on Orthodox Easter; and
(ii)the children spend time with the mother from 12 noon on Orthodox Easter until 12 noon on the following day; and
(b)in odd numbered years:-
(i)the children spend time with the mother from 12 noon on the day prior to Orthodox Easter until 12 noon on Orthodox Easter; and
(ii)the children spend time with the father from 12 noon on Orthodox Easter until 12 noon on the following day.
10.On a date after 1 March 2021, the mother is permitted to permanently depart the Commonwealth of Australia and internationally relocate the permanent residence of the children to G City, Serbia subject only to her compliance with order 13 herein.
11.The mother, at her expense, is to attend to the formal registration of these orders in a court of competent jurisdiction in Serbia and/or the Serbian Central Authority pursuant to Articles 26 and 29 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (‘the Child Protection Convention’);
12.The mother is to provide to the father and to the Court a certified copy of document/s evidencing the registration of these orders and any orders a Serbian court makes, together with a certified translation in English of such documents.
13.The mother is to provide 28 days’ written notice to the father of the children’s intended departure date from Australia, together with documentary evidence of the children’s precise itinerary including departure and arrival times and locations, and notice to the father of the children’s place of residence in G City, Serbia.
14.Notwithstanding anything to the contrary as set out in order 2 and order 3 of these orders, the mother shall provide details of any proposed school for the children within 14 days of her arrival in Serbia to the father and allow him the opportunity to suggest another school for the children. Should the father fail to advise the mother within a further 14 days of the mother providing those details of any proposed school to the father, the mother shall be at liberty to enrol the children at her proposed school. Should the father suggest a differing school, the mother shall consider that school proposed by the father, but ultimately the mother shall be solely responsible for this parental decision.
15.In the event the father does not relocate his place of residence to G City, Serbia and the children are residing in G City, Serbia, the children shall spend time with the father as follows:-
(a)two months of the long summer holidays in June/July as agreed between the parties and failing agreement the first two months (or any shorter period if the father elects in writing, also commencing at the commencement of that holiday) with the father in Serbia where the father shall be responsible for his own travel expenses;
(b)two weeks during the Christmas school holiday period as follows:-
(i)in odd numbered years in Serbia where the mother shall be responsible for half the costs of the father’s return (economy unless otherwise agreed) air ticket to Serbia with the children’s time with the father to occur the week before and the week after the traditional Christmas public holidays; and
(ii)in even numbered years in Melbourne where the mother shall be responsible for half the costs of the children’s return (economy unless otherwise agreed) air tickets to Melbourne, and the children’s time with the father shall include the traditional Christmas public holidays;
(c)the father (at his expense) is at liberty to travel to G City/Serbia at any time to spend time with the children upon the giving of twenty-eight (28) days’ written email notice to the mother, with the children to spend time with the father:-
(i)if during the school term for a total duration of 28 days and nights with the father to deliver and collect the children to and from school; and/or
(ii)for up to seven (7) days in the term 1 and term 3 G City/Serbian school holiday periods ; and
(d)any other times as agreed between the parties in writing.
16.For the purposes of changeover and unless otherwise agreed between the parties, the father shall be responsible for collecting the children from school at the beginning and returning the children to school at the end of the children’s time with the father.
17.The parties and the children communicate with each other by Skype or telephone on every second day between 6.00pm to 8.00pm and at such other times as may be agreed between the parties.
18.The mother shall provide the children with an email account of their own so that they can communicate with their father by email and he may communicate with them, as and when they like, with preferred messaging via Viber or Skype, with the mother to encourage the children to check it regularly, to write to their father regularly, and to respond to any emails their father may send them on a regular basis. If and when each of the children has his own mobile phone, they shall be at liberty to communicate with the father by such device as they see fit to and the mother shall inform them of that.
19.Without admitting the necessity for the order, both parties, their servants and agents be and are hereby restrained by injunction from:-
(a)abusing, insulting, belittling, rebuking or otherwise denigrating each other, the children or any of the parties’ respective family members to or in the presence and/or hearing of the children or either of them, and from allowing anybody else to do so; and
(b)discussing these proceedings with, or in the presence and/or hearing of the children or either of them and from allowing anybody else to do so.
20.Each party will encourage and foster the children’s relationship with the other.
21.The parties download and use the ‘OurFamilyWizard’ app to use in relation to any communication with either party in relation to parenting matters at the father’s expense and the parties are at liberty to use this app to communicate in relation to the parenting arrangements for the children.
22.The parties must:-
(a)advise the other immediately by text message in the event the children or any of them suffer any serious illness or injury;
(b)authorise any medical practitioner upon whom the children may attend from time to time to communicate with either party in respect of the children’s medical condition/and or requirements; and
(c)authorise the children’s school or any educational facility that the children shall attend to provide reports, information to either party at that party’s cost.
23.This order shall be an authority directed to the children’s doctors and any other treating medical or health practitioners to provide each party with all information including documents and reports relating to the health of the children that may lawfully be provided to the party, and to discuss with any party all matters relating to the children’s health and well-being that they may lawfully be entitled to discuss.
24.Each party keep the other informed of their residential address and telephone number at all times and notify the other within seven days of any change to either their residential address or telephone number.
25.Each party be at liberty to attend all school and extra-curricular activities that parties are invited to attend, including but not limited to parent teacher nights, school concerts, sporting events and school related functions.
26.Should either party wish to take the children for international travel, then the following apply:-
(a)the travelling party shall provide no less than 60 days’ written notice of their intention to travel internationally;
(b)30 days prior to any proposed travel the travelling party shall provide the other party the following:-
(i)a full copy of the itinerary;
(ii)copies of return air tickets for the children;
(iii)addresses of where the children will be staying for the duration of the holiday; and
(iv)contact telephone numbers for the duration of travel where the non-travelling party can contact the children;
(c)in the event an itinerary for travel needs to be adjusted due to unforeseeable circumstances, either prior to or during the travel, the travelling party will provide notice of the same to the other party as soon as practicable;
(d)the travelling party must facilitate telephone or Skype/Viber contact with the non-travelling party at least once for every five-day period;
(e)any international travel be no longer than 45 days; and
(f)make-up time for the children with the non-traveling party is to be agreed between the parties in writing and exercised upon the return from travel.
27.All extant applications be dismissed and the matter be removed from the list of pending cases awaiting judicial determination
AND THE COURT NOTES THAT:
A.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) (‘the Act’), 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 the Annexure 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jukic & Jukic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
Preliminary
This proceeding commenced some considerable time ago, 26 February 2018, when the Applicant father (‘the father’) filed an Initiating Application in the Federal Circuit Court of Australia (‘FCC’) seeking final and interim parenting orders. The proceeding concerns the parties’ two children X born in 2011, who is now aged nine years and nine months, and Y born in 2013, who is now aged seven years and four months (‘the children’).
In his Initiating Application the father sought that the parties have equal shared parental responsibility of their children, and that the children live with the Respondent mother (‘the mother’). His application went to the time the children would spend with him and included, relevantly, some restrictions in respect of the children travelling overseas. The father sought an Airport Watch List order until further order such that each of the parties would be restrained from removing or attempting to remove, or causing or permitting the removal of the children from the Commonwealth of Australia. He requested that the names of the children be placed on all family law watch lists, enforced at all points of arrival and departure in the Commonwealth of Australia, and so maintained on the family law watch list until the Court further ordered.
In her Response filed 9 April 2018, the mother sought both final and interim parenting orders, which included a dismissal of the father's application; that the children live with her; and that she have sole parental responsibility for the children. Additionally, the mother sought permission to relocate the residence of the children from Australia to Country B with an order also being sought by the mother that “[t]he mother keeps in contact with [the father’s] parents, siblings and cousins in Serbia.” The mother proposed in her final orders sought that the children spend time and communicate with their father by electronic means, and further, that for the purposes of spending time with the children, the father travel to Europe to see the children, or the mother travel to Australia with the children for the purpose of the children spending time with their father.
On 17 April 2018, the proceeding was transferred from the FCC to the Family Court of Australia. The relevant procedural history is as follows:-
(a)on 1 June 2018 orders were made by Registrar Field adding the proceeding to the list of cases awaiting allocation to a judicial docket; adjourning all extant applications to Her Honour Justice Johns for determination as to the question of whether to expedite the trial; and for the filing of a summary of argument in relation to the application for expedition;
(b)on 7 August 2018, Her Honour Justice Johns dismissed the mother’s application for expedition of the trial;
(c)on 30 May 2019 the proceeding came before His Honour Justice Wilson in the judicial duty list on the father’s Application in a Case filed 8 May 2019, and on his Contravention Application filed 16 May 2019. His Honour made orders that day by consent and until further order for the parties to have equal shared parental responsibility of the children, and for the children to live with the mother. Additionally, orders were made for the father to spend time, unsupervised, with the children each alternate weekend from Friday after school until the commencement of school on the following Monday, and from the conclusion of school until 8.00pm on Thursday in the alternate week; and for each of the mother and father to spend one half of school holiday periods with the children and share in special occasions;
(d)on 5 September 2019 the proceeding was listed for a case management hearing. On that day the Court made orders by consent, adjourning the proceeding to a two day trial on 16 December 2019; requiring the parties to file and serve updated affidavit material; for the preparation of a family report; and for the children to be placed on the Airport Watch List until further order;
(e)the trial proceeded on 16 and 17 December 2019. At the conclusion of the second day of the trial, orders were made by consent adjourning the matter part-heard to 11 June 2020 for a further two days; for the mother to file and serve a further affidavit dealing with her altered proposal for relocation to G City, Serbia; for the father to file and serve a response to the mother’s proposed relocation to G City; for the family report writer, Dr H, to be provided with copies of any further affidavits filed in the proceeding; and reserving the father’s costs thrown away. Up until December 2019, the mother had sought to relocate the children’s place of residence, and that of her own, to Country B, a country where the mother could obtain employment and a country in which she spoke the local language, namely Country B language;
(f)the proceeding was then listed in the callover before the Chief Justice on 26 and 27 February 2020. Orders were made by consent on 27 February 2020 in respect of the spend time with arrangements for the children and their father over Orthodox Easter. The proceeding was otherwise adjourned for a continuation of the trial on 10 June 2020. On 10 and 11 June 2020, the matter proceeded;
(g)on 28 September 2020, being the fifth day of the trial, it was noted by the Court that the father’s solicitors had filed a Notice of Ceasing to Act. The Court made orders granting the father’s counsel leave to withdraw; adjourning the trial to a date to be fixed; requiring the mother to file and serve a further affidavit of evidence to include details of any employment changes as a result of the COVID-19 pandemic; requiring the father to file and serve an affidavit in reply to the mother’s affidavit; and requesting the appointment of an Independent Children’s Lawyer. Victoria Legal Aid declined the request to appoint an Independent Children’s Lawyer;
(h)on the final day of the trial, being 13 January 2021, the father failed to appear. At that time, the matter proceeded undefended. Up until that time, neither party had sought to urgently proceed with the matter as the father wished for the children to remain in Australia in the ongoing arrangement agreed between the parties, and the mother did not intend to immediately remove the children from the Commonwealth of Australia as a consequence of the COVID-19 pandemic, and her then uncertain job prospects.
The mother relied upon the following documents:-
(a)a Response to Initiating Application filed on 9 April 2018 and a Minute prepared by Counsel for both parties during the course of the trial which set out proposed orders in the event that the mother was successful in her application, and alternate orders in the event that she was not; and
(b)affidavits of evidence affirmed on 1 October 2019, 22 May 2020 and 19 October 2020.
Whilst the father participated in the proceeding, he relied upon the following documents:-
(a)an Initiating Application filed 26 February 2018; and
(b)affidavits of evidence sworn 7 May 2019 and 27 May 2020.
An affidavit of Dr H affirmed 12 December 2019 to which a family report dated 25 October 2019 was annexed was before the Court by way of expert evidence.
Factual findings as set out in these reasons are made on the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) is as follows:-
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
BACKGROUND
The father was born in Serbia in 1975. He is now 45 years of age. His primary language is Serbian. He has some limited command of the English language. His family reside in Serbia, and mostly in G City in Serbia.
The mother was born in ex-Country J in 1975. She is now 45 years of age. She is multi-lingual, and able to teach languages and other subjects. The mother arrived in Australia on 29 March 1998 as a refugee from Country K. Her immediate family reside in Country K, Serbia and Country L. Other members of her family reside throughout Europe. The mother has lived in, and often travelled across ex-Country J. She previously lived in Country AD for one year, Country M for four years, and Country B for eight years.
The mother left Australia in March 2006, having obtained Australian citizenship, as she wished to reside closer to her family overseas. Following her departure from Australia, she commenced working in a full-time permanent teaching job in Country B.
The parties met in Serbia and commenced a relationship in January 2009. In August 2010, the mother became pregnant with the parties' elder son, X. The parties married in Serbia in 2010. At the time of the marriage the wife was living and working in N City in the Q School. The mother flew to Serbia for a civil wedding with the father, after which there was a small celebration with her family. Following the wedding the mother returned to N City alone. She returned to her teaching job whilst studying for a Masters Degree at R University in N City.
Following the parties’ marriage, the mother continued to live in N City and the father in Serbia. They did not see each other following their wedding in 2010 until 27 March 2011, when the father travelled to N City one month prior to X’s birth. The father followed the mother to N City with the intention of staying for 90 days, however at the time he was granted a residential visa because he had the full financial support of the mother. That support included healthcare, language classes and finances.
The child X was born in 2011 in N City. The parties’ younger son, Y, was born in 2013, also in N City. Following each of the children's birth, the mother continued to work in her full-time job at S School, and, additionally, undertook the role of primary homemaker and parent. The father attended some Country B language classes but did not progress in his classes, and subsequently ceased to attend. The father worked intermittently in Country B, and commenced to smoke marijuana regularly. This caused difficulties in the parties’ relationship. The father had frequent and aggressive outbursts. The father would hit walls and smash chairs. The mother’s evidence was that the father also used derogatory language when speaking to her, and would call her “a chicken, schizophrenic and an imbecile”.[1] Additionally, the father forbade the mother from speaking her Serbian dialect to the children which he claimed was not good enough and resembled Country L Language.
[1] Affidavit of Ms Jukic affirmed 22 May 2020, [35].
Whilst the mother thrived in Country B, the father struggled, and, ultimately, in December 2013 the parties left Country B and by agreement commenced to reside in Serbia, the place of the father’s family, and also near the maternal family in Country AA. The mother in particular wished to be closer to her family, and wanted the children to meet, and develop relationships with, their extended families on both sides.
Whilst the parties resided in G City, they resided at the father’s parents’ home. The mother alleges, and the Court accepts, that drugs and alcohol were regularly and excessively consumed by the father and his relatives in this time, and that the father continued his verbal abuse toward her, using derogatory language in the Serbian dialect.
In January 2014, the mother commenced work at her cousin’s business. She again took on the responsibility of being solely responsible for the family’s financial needs. The father would frequently demand money from her. Although the father informed the mother that he had job offers with friends in G City, he did not work. The father had the capacity to care for the children when the mother was working on a full-time basis but did not do so. It was the father’s relatives who mostly assisted the mother in the children's care. This was facilitated by the father, mother and children living in accommodation which was divided into five flats. The flats not occupied by the parties were occupied by the father's relatives, which included the paternal grandmother. The father, mother and children lived in this manner in Country J for approximately nine months prior to their move to Australia.
In March 2014, the father travelled to Australia to activate his Australian permanent resident visa by virtue of him being the spouse of the mother, an Australian citizen. He returned to Serbia within two weeks of his arrival in Australia.
The parties and children immigrated to Australia in September 2014. The father had a friend in New South Wales whom the father claimed had promised to help him obtain employment.
Initially, the family lived in Sydney and resided with the father's friend. They then rented a unit in Suburb T near the father’s friend’s residence.
The mother enrolled the children in childcare so they could socialise and learn English. She enrolled the father in English language school.
The mother’s evidence is that it soon became apparent that the job the father had told her was available to him, had never existed. The father’s violent outbursts continued and he continued to abuse drugs and alcohol. In December 2014, and again, in March 2015, the mother attended the Suburb T Police Station to report the father's violent physical outbursts and verbal abuse. The mother was unable to find employment for herself in Sydney, and the father made no attempts to find employment. The family moved again.
The mother had been offered some employment, for a few months at V Institution in Victoria. In August 2015, the parties and children relocated from Sydney to Melbourne and the mother commenced her employment at V Institution. From August 2015, the mother has worked as an educator and in part-time and full-time contract jobs for different schools. She has never been made a permanent offer of employment. Despite this lack of permanency, the mother has always financially supported the family. Throughout the parties and children’s time in Australia, the mother has continued her search for permanent employment. Despite her admirable work ethic, and significant qualifications and experience, a permanent offer of employment has never eventuated.
From December 2015 to February 2016, the father worked for a construction company. He left that company being owed wages by the company, which he did not seek to recover.
The father has no formal education or qualifications, nor does he have a trade certificate. The father ceased school at year 10. The father has found it very difficult to obtain stable employment in Australia. Whilst he was able to find jobs that did not require a high level of skills or qualifications during the parties' marriage, many of these jobs only lasted for short periods of time. His inability to find steady employment caused his behaviour within the home to deteriorate. His drug and alcohol abuse continued. He would not accompany the mother and children on family outings or involve himself with the children's activities. Those activities included their swimming and abacus lessons.
In February 2016, the mother again enrolled the father into English classes. She requested that the father care for the children on some nights and on a Saturday morning so that she could teach languages. The father would not give her an answer regarding her proposal. She was consequently unable to take up that offer of part-time employment.
In June 2016, the mother was offered a job with W School, a bilingual Country B -English school. She needed a car to take up the position. The father did not have a licence and was not able to transport her to work. He did not support the mother obtaining a motor vehicle. The mother obtained other work.
In June 2016, the father again ceased English classes and became completely economically and socially dependent on the mother. He had limited, or almost no, English speaking skills.
By November 2016, the father had obtained regular construction work. The mother asked him to apportion some part of his income to the family expenses such that each of the father and mother bore such expenses equally. The father responded that he “longs for everything and will not support the family expenses.”[2]
[2] Affidavit of Ms Jukic affirmed 1 October 2019, [73].
SEPARATION
In November 2016, the parties separated after a cohabitation period approaching six years. At the time the children were still very young. X was approximately five years of age and Y was three years of age. The parties separated under the one roof for a period of time up until August 2017. On 13 August 2017, there was a family violence incident which required the presence of Victoria Police at the family home. The father lost his temper and was screaming at the mother in the presence and hearing of the children. He then grabbed a large plastic children’s climbing frame and shoved it at the mother. The children witnessed this incident. The mother called the police who subsequently made an application for a family violence intervention order on behalf of the mother. The matter came before the Magistrates' Court on 17 August 2017. A family violence intervention order was made against the father for a period of two years. It expired on 17 August 2019. Upon the making of the order, the father moved out of the home. The mother continued to reside in the home with the children. The children were also listed as affected family members on the intervention order obtained by the mother.
In the period whilst the parties had resided under the one roof following separation, being the period between November 2016 and August 2017, the father had refused to move out of the home. The mother and children spent six weeks in Europe in December 2016 to January 2017 and spent time with the paternal family on many occasions. The father spoke to the children regularly on Skype and would call at random times during the day. He spoke to the children whilst the children and mother were in Country AA, Country B and Serbia. The children were provided with a room to speak to their father, and toys to talk about, by their mother. On return to Australia and between February and May of 2017, the mother attended at both the Suburb Z Police Station and Suburb O Police Station to report family violence perpetrated against her by the father. That violence included verbal abuse, hitting the mother and threats to kill.
In May 2017, the father travelled to Serbia for a period of six weeks. The mother asked the father to take the children with him to Serbia but the father did not do so. He again communicated with the children via Skype, but he made no contribution toward the rental payments on the home, in which the mother and children resided, or toward the children's needs for the period that he was absent. He took $10,000 cash to Serbia.
During the father’s holiday in Serbia, the mother was given a letter from the child Y’s childcare centre. The letter stated that Y had told employees at the childcare centre that ‘Dad did not treat mama properly’ and that Y had a ‘hiding place from Dad’.[3]
[3] Affidavit of Ms Jukic affirmed 22 May 2020, [93].
Post-Physical Separation
Between 17 August 2017 and 11 December 2017, at his election, the father spent no time with the children. Between September 2017 and July 2018, the mother attended upon a clinical psychologist to obtain assistance on how to support the children following the separation.
On 11 December 2017, the father and mother attended at a family mediation centre, and a parenting plan was agreed to. Following the entering into by the parties of that parenting plan on 11 December 2017, the father would speak to the children on Skype each Sunday afternoon for approximately 15 to 30 minutes. Whilst the mother did not supervise such calls, she was generally around. The children seemed to enjoy that time spent with the father, from the mother’s observation.
On the mother and children's return from Europe in January 2017, the mother informed the father that she wished to relocate back to N City, taking the children with her. In August 2017, and again in January 2018, the mother asked the father to consider her request. She received no response from the father.
In February 2018, the father initiated the proceeding in the Federal Circuit Court of Australia. Orders were made by consent on 17 April 2018 for the father to spend time with the children every Friday before their Serbian language lesson at C Church with such time to be supervised by the parish priest or his nominee; and otherwise for the father to spend up to four hours per fortnight with the children as agreed with the time to be supervised by a professional supervisor. The costs of the supervision were to be met by the father. This arrangement continued until the children commenced complaining about the father’s behaviour toward them.
During the proceeding the mother ceased to seek a relocation back to N City and instead sought such relocation of herself and the children to G City, Serbia. The mother knew at that time that she could obtain employment in Serbia. She anticipated that the father would join the family in Serbia, a country in which there were no language barriers for any member of the family; extended family support and relationships available to all members of the family; and as she saw it, plenty of opportunity for the children in part by virtue of her ability to adequately support them.
The mother’s proposed relocation, now to Serbia, is in the context of the father and the children having Serbian citizenship and the mother having Country AA citizenship. The mother’s evidence is that her Country AA citizenship and relationship with the father and children will enable her to also obtain Serbian citizenship, whilst in the interim having no difficulty with obtaining permanent residency. This was not challenged by the father. The mother and father agreed in principle that if the mother’s relocation application was successful, then the orders made by the Court on 14 January 2021 were orders that promoted the children’s best interests. The father indicated to the Court whilst he continued to participate in the proceeding that he would follow his family to Serbia, and thus return to his country of birth, the country where his extended family reside.
CONSIDERATION
Parenting proceedings which involve relocation are to be determined in the same manner in which all parenting proceedings are determined.[4] That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (‘the Act’) to determine what is in the best interests of the children.
[4] U v U (2002) 211 CLR 238
In Zahawi & Rayne [2016] FamCAFC 90, the Full Court of the Family Court of Australia stated:-
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U [(2002) 211 CLR 238 at [92]]:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
While the Full Court noted that, as a result of the consequences of a proposed relocation, the burden rendered on the parties may be more acute, it is not the case that the party desiring to relocate needs to establish “compelling reasons” for the relocation.[5] In Adamson & Adamson (2014) FLC 93-622 at 79,700 [65]-[66], the Full Court said:-
It follows from the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate "compelling reasons" to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate "compelling reasons" for her choice to remain living in Town S than was the father to so do with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother's in Town S and the father's in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child's best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
(emphasis in original)
[5] AMS v AIF (1999) 199 CLR 160, 191.
Relevant statutory provisions
Section 60CA of the Act provides that:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Pursuant to s 60CC(1) of the Act:-
…in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Those primary considerations contained in s 60CC(2) and additional considerations contained in 60CC(3) are set out hereafter.
Section 60CC is contained within Pt VII of the Act. The objects and principles underlying Pt VII of the Act are contained within s 60B of the Act.
The objects of Pt VII of the Act are set out in s 60B(1) of the Act, and 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 them 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.
The principles underlying the objects of Pt VII of the Act are set out in s 60B(2) of the Act, and are (except when it is or 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;
(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);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(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).
Section 61DA of the Act requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption has not been rebutted in the circumstances of this proceeding and the Court shall make an order for the parties to have equal shared parental responsibility and make all major long-term decisions about the children jointly. Indeed, this is a matter that was conceded by the mother during the proceeding and considered by the parties when contemplating a set of orders which they might agree to in the event the Court determined that the residence of the children could become G City, Serbia.
Primary considerations
Pursuant to ss 60CC(2) and 60CC(2A) of the Act:-
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The consideration set out in s 60CC(2)(a) of the Act is an important one in this case given the considerable benefit to the children of being able to have a meaningful relationship with their mother and father and the difficulties that the relocation of the mother and the children to G City may present should the father elect to remain in Australia. In respect of s 60CC(2)(b) of the Act, there is a history of family violence perpetrated by the father against the mother. As described above, a family violence intervention order was made on 17 August 2017 for a period of two years. The father was charged with a breach of that intervention order in or around December 2017. The wife’s evidence was that she was unaware of the father’s sentence, but was aware that the father was ordered to attend a Men’s Behavioural Change program. She is unaware as to whether the father completed such program. Whilst there has been family violence directed by the father toward the mother and on occasion in the presence of the children, the mother did not seek any restriction on the father spending time with the children because of the historical making of this order. She considered there were no protective concerns or risk factors presently, in respect of the children having a meaningful relationship with their father and that being promoted.
Additional considerations
Pursuant to s 60CC(3) of the Act, the additional considerations required to be considered by the Court, as far as they are relevant to this proceeding, are discussed hereafter.
Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The wishes of the children as to the mother’s proposal to relocate their residence to G City have not been ascertained however in relation to the child X, Dr H stated in the family report as follows:-
70. In terms of issues of time, [X] described a wish for his parents to be together. He is aware that his mother is hoping to return to Europe to spend time with cousins and support. In terms of the time arrangements at home, [X] indicated that he is happy with the time arrangements as they are.
…
72. [X] gave a clear indication that he is comfortable with the time arrangement and did not want an alteration to this.
In relation to the child Y, Dr H stated in the family report as follows:-
80. ...[Y] was uncertain about what his parents want in terms of time. He reported that the time arrangement is positive for him, although indicated that on occasions the father does not take him to birthday parties or other activities and he misses out. He reported that his father knows about the birthday party and his father just ignores him. He indicated that this never happens with his mother, only if she was sick. He indicated that the time with his father is enough.
Section 60CC(3)(b) - the nature of the relationship of the child with (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)
The mother is very clearly the primary carer of the children. She has provided for the children emotionally, physically and financially since their birth. The children and mother have a close and loving relationship. The children depend heavily upon their mother. As Dr H noted in his report the mother’s “[o]verall parental engagement behaviours, expression of warmth, verbal interaction and anticipation of needs showed [a] sound parent-child relationship” and her “parental skills…were also particularly sound with a focus on the children throughout”.[6]
[6] Family Report dated 25 October 2019, [53].
The children spent no time with the father between August 2017 and December 2017. The father’s time with the children occurs in accordance with the orders made on 30 May 2019 as referred to in paragraph 4(c) above. Following his observation of the father with the children, Dr H noted the following:-
•Although there are aspects of the parental verbal and non-verbal interactions that appeared appropriate, there are concerns associated with the father’s ability to focus on the children.
•Within the one-hour interaction at various points the father lost focus and focused on other things apart from the children and at those periods of time did not play with the children, but rather did other things such as looked at his mobile phone, did colouring in himself and drawing, while the children were not necessarily engaged in meaningful or appropriate play.
•As such the primary issue that was identified is the father’s ability to attend to the children’s needs and engage with them meaningfully.
•At other points he clearly was able to engage with the children.
•It is likely that the father relies more on activities with the boys, and that likely reflects his personality and also verbal skills.
The children have both maternal and paternal family members who reside in G City and throughout Serbia and Europe. In particular, the children’s aunts and uncles reside in G City and these relatives are within 20 kilometres from the paternal grandparents. The mother listed the following maternal family members residing in Country AA who would be able to provide her and the children with support:-
(a)the maternal grandparents Ms BB and Mr CC are pensioners;
(b)the children’s uncle and the mother’s twin brother, Mr DD, an educator. The uncle intends to move to G City to support the mother and the children on a daily basis;
(c)the children’s aunt, Ms M, an educator.
In G City, the children and the mother have the following family members and support in place:-
(a)uncle Mr EE (pensioner) and aunt Ms FF (health professional). They have a flat available for the mother and children in G City. The flat is 10km from the paternal grandparents;
(b)aunt Ms GG (educator) and uncle Mr HH (professional);
(c)uncle Mr JJ (educator) and aunt Ms KK (professional);
(d)Ms LL;
(e)uncle Ms MM (professional) and aunt Ms NN (finance professional);
(f)aunt Ms OO (health professional) and uncle Mr PP (professional);
(g)uncle Mr QQ (professional) and aunt Ms RR (professional);
(h)grandmother Ms SS (a pensioner);
(i)aunt Ms TT (educator in G City);
(j)Ms VV;
(k)grandmother Ms WW (a pensioner);
(l)aunt Ms XX (a pensioner);
(m)grandmother Ms YY (a pensioner).
(n)Ms ZZ; and
(o)aunt Ms AF, (educator).
The mother and children are able to reside with these family members until such time as the mother is able to obtain accommodation. Further, the mother has maintained contact with many of her high school friends, some of whom are willing to provide her with assistance in obtaining accommodation for herself and the children and with obtaining employment. The majority of these family members have residences in relatively close proximity to the paternal grandparents.
During the family report interviews the child X told Dr H of the connection he had with his mother’s family, and of speaking to them “every day on face time or other devices online.”[7] The children will be able to further establish and maintain ties with both the paternal and maternal families. Those relationships are actively promoted by the mother, and will continue to be so promoted. The assistance available to the mother from her family and friends in Serbia and Country AA would allow the children to build relationships with their relatives and have ties with their culture and religion. The children will benefit from this wide emotional support network, and from knowing and interacting with their extended family.
Section 60CC(3)(c) - the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; to spend time with the child; and to communicate with the child
[7] Family Report dated 25 October 2019, [63].
Since May 2019 the children have spent substantial time with the father in accordance with the orders of the Court and by agreement with the mother. The children live with their mother and it is she who has made decisions about long-term issues in relation to them. That has on occasion been in the context of a failure to involve himself in such decision-making by the father. The mother has otherwise organised the drop off and pick up arrangements for the children at school and day care; cared for the children when they were sick; and facilitated their attendance at a range of extra-curricular activities including swimming lessons and piano lessons.
Section 60CC(3)(ca) - the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The mother has been primarily responsible for the children’s day to day expenses. The mother is a qualified teacher however has had difficulty securing stable and ongoing work with reasonable remuneration. It was her evidence that her contract as an educcator at AC School would expire in late January 2021. She would not be renewed. She had previously been employed in several other casual positions, all of which were terminated due to the effects of the COVID-19 pandemic. She has not received any government assistance in the form of JobKeeper or JobSeeker payments. The mother held approximately $784.92 in her day-to-day spending account; approximately $15,072.54 in a savings account; and approximately $10,000 in a term deposit account established with her earnings whilst she was living in N City. She intended to apply these funds towards the costs of relocation to Serbia for herself and the children.
The mother submitted that her financial circumstances would be “stronger” should she be permitted to relocate to Serbia, as G City was an “inexpensive city” compared to Melbourne; had great schools; was well connected with public transport and had an international airport and international trains and buses to the rest of Europe. Its infrastructure was sound.
The mother is qualified to work in Serbia and is able to teach in both primary and secondary schools. Whilst the mother lived in Europe previously in 2013 to 2014, the mother worked at her cousin’s business on a full-time basis. Due to her qualifications, the mother is able to work in a number of government institutions and/or undertake interpreting jobs. The mother’s evidence was as follows:-[8]
If I gain employment with one of the schools in G City, that part of the city is called Suburb AB and that children and I would have accommodation with family members in that area. If I obtained employment with one of the embassies in G City, I would also stay in Suburb AB…
[8] Affidavit of Ms Jukic affirmed 22 May 2020, [147].
The father has not made a significant financial contribution to the care of the children. The mother’s evidence was that whilst cohabitating the father did not “show an interest in spending time with the children” and “did not accompany [her] and the children on any family outings or involve himself with the children’s activities”.[9] The cost of such outings and activities was borne by the mother.
[9] Affidavit of Ms Jukic affirmed 22 May 2020, [69]-[70].
The father has had difficulty finding ongoing employment in Australia. The mother’s evidence was that the father “only very occasionally pays child support”. In paragraph 248 of her affidavit affirmed 22 May 2020 the mother stated:-
Child support payment have always been very irregular and lately, child support coincides with the Court hearings. For example, I have received child support payments on 23 February 2020, 21 November 2019 and 25 August 2019. Court events were scheduled within 30 days of each of these payments.
The Court determines that the mother will be able to provide a more stable and financially secure life for the children in Serbia, where she will be able to obtain full-time permanent employment.
Section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
In his report Dr H noted that the children presented as “able to cope with relocation, if both parents were located in the same city/area.”[10]
[10] Family Report dated 25 October 2019, [141(9)].
There is some risk that the nature of the children’s relationship with the father will change if the father is to remain in Australia. However, the Court accepts that the mother understands the importance of, and supports the children in having a relationship with, their father. She will endeavour to encourage and enable that relationship wherever the parties may reside. She is prepared to travel to Australia to do so.
The children speak both Serbian and English. The mother’s evidence is that all primary schools in Serbia teach English as a first foreign language from Grade 3 and another second foreign language from Grade 5. The child X is on an individual learning plan for advanced children and has completed the Grade 4 English curriculum and the Grade 3 and 4 Maths curriculum in Grade 2. It is the mother’s evidence that X would not “have a problem adjusting to [a] Serbian curriculum”. The mother’s evidence was that the Australian and Serbian curriculum are very similar, and according to a 2018 Programme for International Student Assessment (‘PISA’) study, both curriculums are at a similar level in reading, writing and mathematics. Within the Serbian curriculum, the children would each be in their same class from Grade 1 to Grade 8 at primary school. The secondary education starts at Year 9. In Years 9 and 10 there is a general education with Years 11 and 12 being courses and preparation for the State examination much like the Victorian Certificate of Education programme in Victoria. Further, post-secondary education is free of charge and the children would have full government health cover whilst studying.
All primary schools in G City have before school care that runs from 6.30am until school commences at 7.45am or 8.00am as well as after school care from the conclusion of school around 1.00pm or 1.30pm until 5.30pm. Children are required to complete their homework first with the assistance of the school teachers. All schools provide breakfast, cooked lunches and snacks. The mother would be able to avail herself of these services and the children are familiar with such a routine.
Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father indicated to Dr H in October 2019 that if the Court allowed the children to relocate with the mother to Europe, he would only be able to return to Europe once per year unless he relocated to his home country. However, as noted by Dr H:-
If the Court said that they could relocate to G City, [the father] reported that he would be able to do this and that that would be the ideal for him as he would have accommodation and work and his family involvement.
The mother’s evidence was that should the father choose to relocate to Serbia, he would have employment opportunities there as his parents own land and farm raspberries in western Serbia. In 2017, prior to his departure from Serbia, the father had spoken to his brother about buying land in the area to expand the family’s production of raspberries. In addition, there is no language barrier for the father. It is highly probable on the evidence that he will resume his residence in Serbia to facilitate his ongoing relationship with the children.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The children speak Serbian as their first language. Their culture and traditions are European.
Section 60CC(3)(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; and Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
It is clear that the mother’s capacity exceeds that of the father to provide for the various needs of the children including their emotional, financial, physical and intellectual needs as set out elsewhere in these reasons. Likewise, the mother’s attitude to the responsibilities of parenthood is demonstrably more evident than the father as evidenced elsewhere in these reasons.
Section 60CC(3)(j) any family violence involving the child or a member of the child's family; and Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter
As referred to in these reasons a family violence order was made against the father wherein the mother and children were affected family members. The circumstances in which that order was made are as set out in these reasons, as is the mother’s view that the father does not currently present a risk to the children.
Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant.
Prior to the COVID-19 pandemic, the Australian Smart Traveller website stated that travellers to Country AA and Serbia were to exercise normal safety precautions. Serbia is a country which the parties and their children have significant connection to. The parties will be better able to provide financial support and increased opportunity to their children upon returning to Serbia. The father’s relationship with the children is now well established and will withstand some distance although the Court finds that the likelihood of the father’s return to Serbia is high. He wishes to be with his children and whilst Country B was not a feasible option for him, Serbia certainly is. The mother took that into account in proposing Serbia thereby promoting the children’s best interests.
CONCLUSION
The Court made orders as sought by the mother on the final day of hearing. The evidence overwhelmingly supported that outcome. The father had abandoned the proceeding by that time but had made known the orders to which he would agree in the event the mother was successful in her application. It was those orders as agreed to by the parties that were made by the Court.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 17 February 2021
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