Katic and Katic - [2014] FamCA 274

FAMILY COURT OF AUSTRALIA

KATIC & KATIC

[2014] FamCA 274

FAMILY LAW – International travel – no time being spent between father and child – no reason justifying flight restriction.

Family Law Act 1975 (Cth)

Gin and Hing [2010] FamCA 617
Line and Line (1997) FLC 92-729

APPLICANT:

Ms Katic

RESPONDENT:

Mr Katic

INTERVENOR:

Ms B

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

7934

2010

DATE DELIVERED:

30 April 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

29 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Laidlaw

SOLICITOR FOR THE APPLICANT:

Boon Legal

COUNSEL FOR THE RESPONDENT:

Mr Levine

SOLICITOR FOR THE RESPONDENT:

Allan McMonnies

COUNSEL FOR THE INTERVENOR:

Mr Sala

SOLICITOR FOR THE INTERVENOR:

James McConvill & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Agricola Wunderlich & Associates

Orders

That paragraph 6 of the orders made on 28 May 2012 are discharged.
That the child C born … 2001 be permitted to travel internationally without the consent of the husband.
That the Australian Federal Police remove the name of the child C (male) born … from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Katic & Katic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7934 of 2010

Ms Katic

Applicant

And

Mr Katic

Respondent

And

Ms B

Intervener

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Ms Katic (the wife) seeks an order for the removal of an injunction preventing international travel by her son the child who is aged 13 years. Mr Katic (the husband) opposes the removal of the order. Counsel for the Independent Children’s Lawyer has submitted that it is appropriate in the circumstances to discharge to order.
This aspect is but one part of disputed litigation between the husband and the wife. There were extant parenting proceedings which were largely resolved just prior to the case commencing in October 2013. After attending upon a family consultant and reading his report, there was general consensus between the husband and the wife that there should be no contact between the child and the husband unless the child agreed. Thus, the only issue requiring determination concerned the injunction known as the Airport Watch Order.
By her application filed when the proceedings began, the wife sought to discharge the existing order that was made by Young J on 28 May 2012. That was an interim order. It restrained both husband and wife from removing the child from the Commonwealth of Australia. I am unsure of the basis for the order and in this case, it does not matter as the position of each party today reflects how the Court should approach the determination.
In her affidavit filed 26 April 2013, the wife made a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Katic and Katic

Details

AGLC: Katic and Katic [2014] FamCA 274
Case: [2014] FamCA 274
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Katic (the wife) sought to discharge an interim order made on 28 May 2012, which restrained both parents from removing their 13-year-old son, C, from Australia. Mr Katic (the husband) opposed this application. The Independent Children’s Lawyer supported the discharge of the order. The dispute arose within broader parenting proceedings that were largely resolved, leaving only the Airport Watch Order as the outstanding issue.

The court was required to determine whether it was in the child's best interests to permit international travel without the consent of the father, thereby discharging the existing injunction. This involved considering the child's views, the strength of the relationship between the child and the father, the potential for the mother to relocate internationally, and the overall risk to the child's welfare. The court also had to apply the principles of the *Family Law Act 1975* (Cth), particularly the paramountcy of the child's best interests.

Justice Cronin reasoned that the child, C, had consistently expressed a strong aversion to contact with his father, a position supported by a family consultant's report and acknowledged by the husband. Given the non-existent relationship and the child's clear and cogent views, the court found no justification for continuing to restrict his international travel. Applying the principles from *Line and Line* and *Gin and Hing*, the court assessed the risk of the mother relocating permanently, finding it to be modest and concluding that the wife had sufficient ties to Australia and no sinister motive for international travel. The court emphasised that the child's best interests, as mandated by section 60CA of the *Family Law Act 1975*, were the paramount consideration.

The court ordered that paragraph 6 of the orders made on 28 May 2012 be discharged, permitting the child C to travel internationally without the consent of the husband. The Australian Federal Police were also directed to remove the child's name from the Airport Watch List.

Orders