Katic & Katic (No. 2)

[2014] FamCA 419

FAMILY COURT OF AUSTRALIA

KATIC & KATIC (NO. 2) [2014] FamCA 419

FAMILY LAW – CHILDREN - no contact.

Family Law Act 1975 (Cth)

APPLICANT: Ms Katic

RESPONDENT: Mr Katic

INTERVENOR: Mr B

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7934 of 2010

DATE DELIVERED: 29 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 INTERVENER: Mr Sala

SOLICITOR FOR THE INTERVENER: 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 there be no order for the child to spend time with the respondent husband and the intervener save and except in the event that the child expressly states in writing that he wishes to spend time with the husband and/or the intervener.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Katic & Katic (No. 2) 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

Mr B
Interverer

RULING

1. In the middle of a trial, a parenting issue has arisen which requires not only some consensus, but a ruling.  The problem is that the child C, (“the child”) has made it clear to two experts in the social science field that he did not want to have contact with his father and with his adult brother.  The Independent Children’s Lawyer has drafted an order which suggests that the solution to the problem is that the child might have contact with his father if he expressly said so in writing.   That effectively places the whip hand, as I described it, with the child.  Whilst a child of 15 or 16 might use that more sensibly and with a mature approach, I do not think that I could draw anything from the expert’s view about the child’s state of maturity to make the decisions he is currently making.  It seems to me therefore that I need to look at the power to make the order. 

2. Section 64B of the Act says that orders can be made that can deal with a number of events in a child’s life.  None of those provisions in subs (2) provides for a child effectively to make the decision.  However, subs (2)(i) says that the parenting order may deal with any aspect of care, welfare or development of the children, or any other aspect of parental responsibility.

3. All of that to some extent is overridden by the power given to the court by s 65D which says that in proceedings for a parenting order, the court may, subject to the rebuttable presumptions, make such parenting order as it thinks proper.   I think that the proposal fits within the welfare and development provision in s 64B, and that only then leaves the question of whether it is proper to make an order in those terms.  The major issue in this case revolves around the wording of an intervention order which precludes the husband from having contact with the child unless the Family Court order provides for it, or there is a written agreement. 

4. I tend to think that having regard to the relationship between the husband and wife, consensus in the future is unlikely, even if the child wanted to see his father.  It is all very well to say that the child might vote with his feet when he is 15, but at the age of 12, I am not so sure that I would be comfortable.  I think in the circumstances, it is appropriate to make an order that reads that he has no contact with his father at this stage, unless he expresses to the contrary in writing.  That obviously extends also to his brother.  I propose to make orders in those terms, and having regard to the evidence of Mr A in particular, I find that that sort of order is in the best interests of the child.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 April 2014.

Associate: 

Date:  18 June 2014