Jukic & Jukic

Case [2021] FamCA 54

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 2021
Place: Melbourne
Solicitor for the Applicant: No appearance
Counsel for the Respondent: Mr Moore

ORDERS

DGC 556 of 2018
BETWEEN:

MR JUKIC
Applicant
AND:

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…

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Jukic & Jukic [2021] FamCA 54
Case
[2021] FamCA 54
Decision Date

CaseChat Overview and Summary

In the matter of *Jukic & Jukic*, Hartnett J of the Family Court of Australia considered an application by the mother for international relocation of the parties' two children, aged nine and seven, to Serbia. The father had disengaged from the proceeding on the final day of the hearing, leading to the matter being heard and determined on an undefended basis. The mother expressed a willingness to foster the relationship between the children and the father.

The central legal issue before the Court was whether the proposed international relocation of the children to Serbia was in their best interests, as mandated by the *Family Law Act 1975* (Cth). This required the Court to assess the various factors relevant to the children's welfare and to determine if the mother's proposal would promote these interests, notwithstanding the geographical separation from the father.

Hartnett J reasoned that relocation cases are determined by the same legislative framework as all parenting proceedings, focusing on the children's best interests. The Court noted that there is no requirement for a parent seeking relocation to establish "compelling reasons" for the move; rather, the paramount consideration is the child's welfare. The Court found that the mother's proposed relocation to Serbia, a country with which the children and father have significant connections, was in the children's best interests. This was supported by the mother's ability to obtain Serbian citizenship and the potential for increased financial support and opportunities for the children in Serbia. The father's expressed intention to return to Serbia also weighed in favour of the relocation.

The Court made orders as sought by the mother, permitting the permanent departure of the children from Australia to Serbia. These orders included provisions for shared parental responsibility, the children living with the mother, and detailed arrangements for the children to spend time with the father, both in Serbia and potentially in Australia. The orders also stipulated requirements for passport applications, notification of travel, and communication between the parties and the children, reflecting the agreed terms between the parties.

Orders

Orders of the court

DGC 556 of 2018

BETWEEN:

MR JUKIC

Applicant

AND:

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).

Background

Background to the litigation

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].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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