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 of 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

1. That paragraph 6 of the orders made on 28 May 2012 are discharged.

2. That the child C born … 2001 be permitted to travel internationally without the consent of the husband.

3. 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

1. 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.

2. 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.

3. 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.

4. In her affidavit filed 26 April 2013, the wife made a series of allegations relating to family violence. They have generally been denied by the husband. In addition, the wife led evidence that there is an extant intervention order made by a state court precooling time between the husband and the child except where this Court determines otherwise or there is agreement. The husband’s position was that there would never be agreement between he and the wife about time with the child.

5. In attending the family consultant, the husband was said to have attended upon a psychologist for the purpose of having her tell the wife that she was not to influence the child about seeing him. That said, the husband told the family consultant that he thought that the psychologist had been influenced by the wife. The family consultant reported a concession by the husband about one incident of family violence involving the use of a cricket bat. The husband countered the allegations by claiming that the wife was violent towards him. My impression was that the family consultant had difficulty obtaining a clear position of what the husband wanted even if it was clear what he thought was the truth as to what had happened.

6. C had been to four meetings over the years and was familiar with the process. He told the family consultant that he had not changed his mind about seeing his father. His last communication was in 2013 which he described as a telephone discussion where threats were made. He had nothing positive to say about his father.

7. The family consultant recommended that if the Court found that family violence had occurred, then the child would benefit by not having orders made compelling him to have contact with his father. He would benefit however if the husband understood and accepted his views and allowed him to go to counselling with the psychologist. Thus, it was said, the child would benefit from having his views followed.

8. To his credit, the husband accepted that was the child’s position and as his counsel said, the only concern was that the wife would not foster anything even if the child wanted time and the existing intervention order would preclude any time occurring or indeed, get the husband into trouble.

9. In that context, is there any basis to restrict the travel movement of the child?

10. Counsel for the husband submitted that in the property proceedings there were serious allegations involving the wife about tax fraud which might be sufficient to encourage her to leave the jurisdiction. In addition, she had family in Country D and was assisting them financially already. Thus, I inferred, if there was any prospect of the child being interested in contacting his father, he would be thwarted by the move to Europe.

11. Counsel for the wife said that the wife had no reason to leave Australia other than for a holiday and Country D was a signatory to the Hague Convention. Against that of course is the question of whether the orders the Court is otherwise being asked to make give the husband rights of custody.

12. It was submitted by the wife that she had no plans and was well –established here.

13. Counsel for the Independent Children’s Lawyer submitted that there was no contact imminent and therefore what was the point in making restrictive orders.

14. I find that on the evidence of the family consultant which seems consistent with that of the psychologist, considerable time has gone by and the child has not altered his position. His views are clearly and cogently articulated and even on the husband’s view, should be accepted. Why then would there be a need to restrain his movement when, as counsel for the Independent Children’s Lawyer put it, the child might want to go internationally on a school excursion and would have to seek court approval in circumstances where there was no extant relationship with his father.

15. This is a parenting matter and as such, the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) govern the exercise of the Court’s power. Part VII of the Act provides that each of the parents of a child who has not attained the age of 18 years has parental responsibility for that child. Normally, parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child. It therefore includes questions such as international travel because s 61C(3) provides that parental responsibility is subject to any order of the Court. In this case however, that issue has been determined before and there is no point me dealing with it again.

16. Fundamental to my decision in this case is s 60CA which says:

    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. 

17. In determining what is in a child’s best interests, s 60CC provides that the Court must consider a number of matters in determining what is in the child’s best interests. In this case, issues about parenting capacity, responsibility and so forth were not argued nor could they be for this discreet issue. The question is whether it is in the best interests of the child that he be able to travel internationally without having to obtain court permission or indeed, the permission of his father. The strength of the relationship at the moment is non-existent and the evidence of the family consultant supports my finding that it is unlikely to change in the foreseeable future. If that does change, the best I can see occurring is that the child will show interest out of inquisitiveness and at that point, he is going to be well into his teenage years. If that happens, as counsel for the husband submitted, he will make up his own mind and nothing will stop him. I agree with that but on the evidence before me at the moment, the child is a child whose views should be seriously considered. Even if he changed his mind, that would not necessarily mean that the Court would agree that contact should occur. Whilst he might “vote with his feet”, it might also be possible that the state welfare department might intervene if they had protective concerns. Thus, I think I can conclude that the prospect of a relationship at least in the formative years is doubtful. In that light, why should the child and by extension his mother, have to return to court for such things as holidays? Why should it not be the wife’s prerogative in the short term to decide where the child lives if she has the sole responsibility for those decisions? The answer is somewhat academic but in my view, the Court should still consider the risks involved? The height of the risk can be assessed in the context of what difference it would make to any parenting order in the future?

18. The approach to international travel was considered in Line and Line (1997) FLC 92-729 where the factors relevant for consideration in such a case were said to be:

    (a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here); and

    (b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and

    (c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

    (d)Whether the country of travel is a signatory to the Hague convention.

19. As I said in Gin and Hing [2010] FamCA 617:

    Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.

20. This case is really about risk to the welfare of the child.  In relation to the risk, I find that it is modest. I am satisfied that the wife has ties in Australia and has no sinister motive for wanting to live in Europe.  Nothing in any evidence presented suggests that she would want to live there permanently. In relation to the tax issue, it was observed by counsel for the wife that it was she who had gone to the Tax Office to concede there had been significant under-reporting of income. It was interesting to observe that the husband’s accountant gave evidence and said that the returns for the relevant period about which the wife has made the concession had not been re-lodged notwithstanding his view that there was significant under-reporting. The wife’s concession must count in her favour.

21. I acknowledge that Country D is a signatory to the Convention relating to the abduction of children but the husband is not in a position to be the alternate parent here in any event as a result of what I have earlier said.

22. The factors in s 60CC of the Act provide little assistance in this case because of my earlier observations.

23. Accordingly, on what little evidence I have, I am satisfied that it is in the best interests that the child be able to travel internationally and the reasons for the injunctive orders made by Young J have now largely if not entirely, disappeared.

24. It is therefore in the best interests of the child and proper that the injunctive order be discharged.

I certify that the preceding Twenty Four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 April 2014.

Associate:

Date:  30 April 2014