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Father to keep fighting for baby

New Zealand Herald May 3rd by Louisa Cleave

Father Stephen Jelicich will continue to fight for his daughter in Wales

The father of baby Caitlin Jelicich says he will continue his fight to keep her in the country after a court ruled yesterday that she should return to Wales with her mother.

The Family Court granted an application by Diane Jelicich to take Caitlin, now aged 9 months, back to Wales and let a British court decide on custody.

Lawyer Ann Miller said Mrs Jelicich was "very, very pleased" with the ruling. She expected her client would not want to delay her departure.

Stephen Jelicich, who has been sharing care of Caitlin with his estranged wife during the legal wrangling, said it was not the end of his fight to have a New Zealand court decide custody.

"We assumed the Family Court wanted to do what they wanted to do in the first place - send Caitlin home no matter what - but we did think on the evidence of the case they might see things a different way," Mr Jelicich said yesterday.

"I don’t think the judge has taken proper notice of the evidence or decided to exercise any discretion."

Mr Jelicich said the Court of Appeal had granted his lawyer a hearing on May 16. It relates to an application for discovery of medical records.

Yesterday, in a written decision released to the media, Judge Sarah Fleming said Caitlin was habitually resident in Wales and came to New Zealand with her parents last October for an 11-week holiday.

"Within two months their relationship had deteriorated to such an extent proceedings were filed in court and their holiday was described by them both as a ‘nightmare’."

Judge Fleming said Mr and Mrs Jelicich had been negotiating privately since January but nothing was put in writing and signed by both parties.

"Mrs Jelicich was clearly seriously contemplating moving to New Zealand, although, in my view, one of the motivating factors for her was her wish to reconcile with Mr Jelicich."

Judge Fleming said Mr and Mrs Jelicich did not know what the future held for them and Caitlin and feared they "will not be able to be meaningfully involved in her life because of the distance they live apart".

"The situation is fraught and emotionally challenging for both of them."

The judge rejected a claim from Mr Jelicich that returning Caitlin to Wales would cause her grave risk.

Mr Jelicich was concerned about his estranged wife’s mental health history and propensity for violence, according to the ruling.

He had referred to Mrs Jelicich having post-natal depression in 1993 and 1994 and in 2002 when "she took an overdose of prescribed medication and there was an incident of self-harm in which she cut her legs with a razor".

Judge Fleming said community psychiatric staff were conducting an ongoing review of Mrs Jelicich and last August she was reported as coping well with Caitlin’s care.

A report from a consultant psychiatrist in December indicated Mrs Jelicich was never a risk to her child and there were no concerns about her ability to care for her children.

The judge said there was evidence of physical assaults from both parties and she was "satisfied both Mr and Mrs Jelicich have assaulted each other".

Judge Fleming said the allegations of violence had only arisen during the course of the couple’s relationship.

Mrs Jelicich’s mental health history "is not particularly remarkable" and the evidence was that her depression was limited to post-natal depression.

She said Mr Jelicich also suffered from depression and took medication.

"The evidence about Mrs Jelicich’s ability to safely parent Caitlin is only of marginal relevance anyway.

"The issue is one of forum and the ability of the Welsh legal system to protect Caitlin. The issue is not one of the risk, if any, presented to Caitlin by her mother."

Judge Fleming said Mr Jelicich must prove the legal system in Wales could not protect Caitlin from risk, and there was no suggestion that agencies in that country could not protect her.

Evidence produced by Mrs Jelicich had supported her contention that she was able to care for her daughter.

There might be evidence that pointed to a different conclusion but those issues should be considered in deciding custody.

The Jelicich battle

December 1, 2004: Stephen Jelicich successfully applies for an order preventing baby Caitlin’s removal from New Zealand after his marriage breaks down during an 11-week family holiday here.

December 24: The order is overturned, allowing Caitlin to leave the country. Co-parenting arrangements put in place until January 10, when the family had tickets to return to Wales.

January 5: Mr Jelicich applies to stay the order and appeal against it.

January 6: A Family Court judge hears the application and declines to interfere with the previous judge’s order. He issues a warrant to enforce Mrs Jelicich’s custody from 10am on January 9.

January 8: Mr Jelicich forms plan to take Caitlin into hiding and disappears during the weekend.

January 10: Mrs Jelicich returns to Wales with her 11-year-old daughter, as scheduled.

January 13: Police release details and photographs of father and daughter in an effort to enforce court order.

January 18: Mr Jelicich comes out of hiding after his lawyer wins the right to appeal the Family Court order.

January 19: The British Government invokes Hague Convention proceedings through the New Zealand Government, which appoints Colin Pidgeon, QC, to appear for Mrs Jelicich and argue to have Caitlin returned to Wales.

April 14-15: A hearing is held in the Family Court at Waitakere.

Yesterday: Judge Sarah Fleming rules in favour of Mrs Jelicich.

P4p Comment from By S. Newman, New Zealand

Children can all too often become the innocent victims in a relationship breakdown.
Usually the adults involved manage to work their way through the anger and bitterness that is frequently the aftermath of a dead relationship, keeping the needs of their children to the fore

Sometimes, however, the needs of the children are pushed aside by warring parents, putting their own needs first and using those children as ammunition.

The tragedy of it all is there will never be winners in those battles, just damaged kids who end up confused, hurt and losing out on a normal relationship with one of its parents.

For those parents who cannot agree on custody issues, there is always the family court. That might be the legal avenue of last resort, but often that’s where it all goes wrong.

The courts are charged with making a custodial decision that is not always in the best interests of the child. Occasionally a decision will come down in favour of one parent, effectively removing the other from the parenting plan. Sometimes there are compelling reasons for this. Sometimes there are not.

Just such a decision was handed down recently over baby Caitlin Jelicich. Her mother wanted to return home to Wales with her child, leaving dad Stephen with no access to his daughter. The court said that was fine.

Stephen Jelicich was incensed. He loved his daughter and wanted to watch her grow up and be a part of her growing up. What the Jelicich case highlights is the role of dads when a relationship shatters.

A generalisation perhaps, but the major custodial role is normally assumed by or granted to the mother. That doesn’t mean fathers can’t do the job, it’s just not the way things are normally done.

The father’s legacy of the relationship can be some access and child support payments and that means disenfranchised fathers with fractured relationships with their children. The system is not designed for separated dads.

For Stephen Jelicich there will be a great deal of sympathy for his case.

It appears he is an ordinary Kiwi chap, one who wants to be an involved dad but sadly after this new court ruling this role as for so many other separated dads as been made far more difficult.