Martic & Martic

[2022] FedCFamC2F 1433

Federal Circuit and Family Court of Australia

(DIVISION 2)

Martic & Martic [2022] FedCFamC2F 1433

File number(s):	PAC 228 of 2021
Judgment of:	JUDGE STREET
Date of judgment:	28 October 2022
Catchwords:	FAMILY LAW -interim parenting orders varied - where final hearing unable to proceed- fresh hearing date fixed- s102NA order made – ICL appointed
Legislation:	Family Law Act 1975 (Cth) Part VII, ss 43, 68L, 69ZL
Division:	Division 2 Family Law
Number of paragraphs:	14
Date of last submission/s:	20 October 2022
Date of hearing:	20 October 2022
Place:	Sydney
Solicitor for the Applicant:	Mr C Lindo, Macarthur Law Group
Solicitor for the Respondent:	Mr N Kirby, Edwards Kirby Lawyers

ORDERS

PAC 228 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MARTIC Applicant
AND:	MS MARTIC Respondent

order made by:	JUDGE STREET
DATE OF ORDER:	20 OCTOBER 2022

THE COURT ORDERS THAT:

1.The matter is fixed for a final parenting hearing commencing at 10:00am on 30 and 31 May 2023 via video and or audio link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

2.Leave is granted for Mr C Lindo to withdraw from the proceedings as the solicitor for the applicant father.

3.Order 2 made by Senior Deputy Registrar B on 15 April 2021 be varied so that, as soon as possible, there is supervised time commenced between the applicant father and the children of the relationship at a supervised centre on one day every alternate weekend for a 2 hr period, at a time convenient to the supervised centre.

4.Order 4 made by Senior Deputy Registrar B on 15 April 2021 be varied so that the respondent mother is to ensure that the children are able to receive a skype, video or mobile call from the applicant father each Wednesday and Sunday evening between 7:00pm and 7:30pm, and such phone calls are not to be monitored or interfered with by the respondent mother, and to this end the respondent mother is to facilitate the use of devices by the children.

5.Such further contact between the children and the applicant father via mobile, skype or other electronic means is to occur in accordance with the children’s wishes.

6.Pursuant to s 102NA of the Family Law Act 1975 (Cth), neither party is permitted to cross-examine the other personally.

7.Pursuant to s 68L of the Family Law Act 1975 (Cth), there be appointed an Independent Children’s Lawyer (“ICL”) to represent the children X born in 2014 and Y born in 2014.

8.Leave is granted to the parties to provide further affidavit evidence and an updated case outline 14 days prior to the final hearing.

9.Leave is granted to the parties to provide proposed tender bundles electronically via email or USB 7 days prior to the hearing.

10.Leave is granted to the ICL to provide a case outline and proposed tender bundle 7 days prior to the hearing

11.Leave is granted to the parties to provide consent orders, to be made in chambers if appropriate.

12.The Court reserves its reasons for the above orders.

13.Liberty to apply on 3 days’ notice.

THE COURT NOTES THAT:

14.The consequence of the s 102NA order above is that both parties are entitled to seek Legal Aid through federal funding.

15.The applicant father’s meaningful time with the children, absent any incident to the contrary, should progress after 3 months to unsupervised time each alternate weekend, as identified by the parties.

16.At today’s hearing, there were suggested issues concerning a place of handover, an issue which is not being decided by the Court today, but should be at a child-friendly location such as the local McDonalds. There were also suggested issues with regard to overseas travel, which does not seem to need resolving at this stage, although the children are at an age where they would ordinarily benefit from overseas travel, as well as the cultural benefit and family benefit of their mother’s home country which the Court has been informed is a Hague Convention country. The third issue identified was whether there should be join parental responsibility.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is a parenting matter that was listed for a final hearing today being 19 October 2022.  There are two male children of the relationship between the applicant father and respondent mother, being X, born in 2014 and Y, born in 2014 (“the Children”). On 20 January 2021, the proceedings were commenced. On 15 April 2021, a Senior Deputy Registrar made orders that provided for the commencement of supervised access between the applicant father and the Children. Unfortunately, that has not occurred and the applicant father, who commenced these proceedings on 20 January 2021, has not spent any time, supervised or otherwise, with the Children for almost four and a half years. 

2. On 19 October 2022, the Court, upon calling the matter, gave the parties an opportunity to try and narrow the issues. The Court was informed that there was agreement in relation to time spent between the applicant father and the Children and that agreement reflected a commencement of supervision for a period of three months and thereafter a progression to unsupervised time given that the Children had not seen their father in person for four and a half years.  

3. The Court was informed by the solicitor for the respondent mother that there was an issue in relation to permitting the Children to participate in overseas travel. The Court observed, without determining the matter and still having an open mind, that there is often a benefit for children participating in safe overseas travel as well as, in this case, the potential travel to the respondent mother’s place of birth being what is now known as the Country C, which is a party to the Hague Convention. The potential benefit of the Children participating in overseas travel is further supported by the potential for the Children meeting their broader family as well as engaging with their cultural background.

4. The Court also was informed by the solicitor for the applicant father that there was an issue, between the parties, in relation to the place of handover being either a school or a police station.  The Court indicated that a police station is a fairly serious environment in which to be regularly exposing the Children for the purpose of handover.  The Court was informed by the solicitor for the applicant father that there was a desire by the applicant father to ensure that the handover occurred at a place where there was CCTV footage/cameras and the Court was informed of where the respective parties resided and the Court suggested that it may be appropriate to consider an appropriate McDonalds as a desirable place for handover of the Children. 

5. The Court was informed by the solicitor for the applicant father that the other issue between the parties was one of parental responsibility. The Children have been living with the respondent mother for the past four and a half years, in which period the applicant father has not seen the Children. The Court observed that it may be a case where parental responsibility might be given to one party, being the respondent mother, with obligations to consult with the applicant father on long-term issues concerning the Children such as school and significant mental health or medical issues. 

6. The parties were given an opportunity to have further discussions.  The Court had a three-day parenting matter which was also listed to commence at 10:00 am on that day, and that parenting matter then commenced.  When the matter was re-mentioned before the Court, the solicitor for the applicant father sought leave to withdraw from the proceedings.  The Court, upon hearing identifying a proper explanation for the withdrawal, granted that leave. The Court notes that there was also an issue as to the availability of the booked Country C interpreter who had notified chambers that they had become unavailable, and another Country C interpreter had not been able to be obtained for 19 October 2022. 

7. The Court inquired about whether it was an appropriate matter for a s 102NA order and it was informed it was appropriate to do so and was also informed that it appeared to be an appropriate matter, potentially, that would benefit from the appointment of an independent children’s lawyer, and accordingly made an order under s 68L of the Family Law Act 1975 (Cth).

8. Given the circumstances of withdrawal of the solicitor for the applicant father as well as the Court, in fact, having no further time available to hear the matter, the Court indicated the matter would have to be adjourned and fixed the matter for the end of the May 2023. Taking into account the principles identified in s 43 of the Family Law Act 1975 (Cth) as well as the principles in Part VII of the Family Law Act 1975 (Cth) and the statutory regime and the ability to issue short form reasons in an interim parenting order under s 69ZL of the Family Law Act 1975 (Cth), the Court raised with the parties what steps could be taken to ensure that the supervised access commenced between the applicant father and the Children.

9. The Court was informed that at the particular centre that was the subject of the orders by the Senior Deputy Registrar on 15 April 2021, there may be a three-month delay.  The Court identified that there are other supervision entities that may be available, that may permit supervised access to commence earlier. 

10. The Court were satisfied that it was in the best interests of the children to vary the order of the Senior Deputy Registrar dated 15 April 2021, to identify that supervised access commence as soon as practicable, not limited to the D Counsellors entity and that that supervised access would only be for a period of three months, every second weekend for a period of two hours. The Court noted that the parties should agree upon, as they appear to have done, unsupervised progression of significant and meaningful time to advance the meaningful relationship of the applicant father with the Children, following the completion of the three months supervised time.  The Court varied the Senior Deputy Registrar’s orders accordingly. 

11. The Court was also informed that there had been a recent cessation of the one week video contact by the Children with the applicant father.  It was identified that there was an issue over whether the respondent mother should initiate the communications, between the Children and the applicant father or if it should be the responsibility of the applicant father. The applicant father identified a concern and hesitation in being the person who initiated the video calls because of, allegedly, advice from others and personal experiences he had in the past.  Whatever discomfort the applicant father may have in being the person who has to initiate the communications, it is in the best interests of the Children that he participates in regular video contact with the Children.

12. The Court varied the existing order to provide for that video contact to occur twice a week and also to ensure that the respondent mother took steps to facilitate that contact twice a week as well as on any further occasions where the boys wished to do so. 

13. The Court did explore, given the age of the Children, the possibility of there being unsupervised access between the applicant father and the Children, but the Court was satisfied that with a four and a half year gap in seeing the Children, it was appropriate for a progression of the kind that would flow from a short period of supervised access. 

14. It is for the above reasons the Court made the interim parenting orders and procedural orders on 19 October 2022. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       20 October 2022