ABUD & ABUD

[2015] FamCA 801

FAMILY COURT OF AUSTRALIA

ABUD & ABUD [2015] FamCA 801

FAMILY LAW – CHILDREN – Application by the father seeking parenting orders and orders for the purpose of  collecting the parties’ children from Lebanon – where the father is on the Airport Watch List – where the father was previously ordered to deliver his passport to the Registry – where the children have lived in Lebanon with the paternal grandparents for the past seven years – where the parties have reconciled  and have agreed to bring the children back to Lebanon to live with the parties – where the mother consents to the orders and has received legal advice – paternal grandparents not served with the application – interim orders made for the return of the father’s Australian passport and the removal of his name from the Airport Watch List – application for parenting orders adjourned until the paternal grandparents can be served.

Family Law Act 1975 (Cth)

APPLICANT: Mr Abud

RESPONDENT: Ms Abud

FILE NUMBER: MLC 9424 of 2007

DATE DELIVERED: 7 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 7 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Zeno

SOLICITOR FOR THE APPLICANT: Zeno Family Lawyers

THE RESPONDENT: In person by telephone

Orders

IT IS ORDERED BY CONSENT THAT

1. The Registry of this Court forthwith return the Australian Passport of Mr Abud born … 1977 to the father.

2. The father and the mother do all such acts and things, and sign all such documents to renew the children’s Australian passports for the purposes of facilitating the children’s travel to Australia via their Australian passports.

3. The father’s name be hereby removed from the Airport Watch List, including all international departing points within Australia.

4. The father be permitted to travel overseas for the purposes of returning the children of the marriage, M born … 2004 and L born … 2005, to Australia.

5. Paragraphs 5, 7, 8 and 9 of the father’s Initiating Application filed 11 May 2015 be adjourned to the Registrar’s Direction List at 10.00 am on 7 September 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abud & Abud 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 9424 of 2007

Mr Abud

Applicant

And

Ms Abud

Respondent

REASONS FOR JUDGMENT

1. In this matter, I have before me an Initiating Application by the father seeking, amongst other things, orders:

   ·    for the return of his Australian passport; 

   ·    that he and the mother do all acts and things and sign all such documents to renew the children’s Australian passports for the purposes of facilitating the children’s travel to Australia on those Australian passports; 

   ·    that the father’s name be removed from the Airport Watch List, allowing him to depart from the Commonwealth;  and

   ·    that the father be permitted to travel overseas for the purposes of returning the children of the marriage:  M, who is almost 11, and L, who is nine.

2. In that application, orders are also sought for equal shared parental responsibility and that the children live with the father and the mother and a further order that the father and mother will not unreasonably withhold their consent for the children to travel to Lebanon for the purpose of visiting their paternal grandparents.

3. The father and mother were marred in June 2002, separated in 2006 and were divorced in 2008.  The children have been living in Lebanon since 2008.  There have been proceedings in this Court and various orders made with respect to the mother’s applications seeking the children’s to return to Australia.  The orders restraining the father from leaving the Commonwealth of Australia and requiring him to deliver his passport to the registry were as part of that process,  intended to encourage the father to return the children to Australia.

4. The children live in Lebanon with the father’s parents, and they have orders for guardianship of the children in Lebanon.  The father gave some limited evidence and said that there is an order preventing the children from leaving Lebanon and that it would be necessary for him to take proceedings to lift that order and that he is  required to do that rather than the mother.  He also said, however, that if he were to travel to Lebanon to collect the children, the mother could accompany him.

5. The parties have now reconciled, and I am told by the mother, who appeared by telephone, that she is in daily telephone contact with the children, that she has also spoken to the paternal grandmother,  and that the children have been told that they will be returning to Australia in the near future. It was also submitted on behalf of the father that arrangements are already in train I Lebanon for the children to be issued with new Australian passports.

6. The mother consents to the application made by the father.  She is aware and understands that the father could leave Australia, he could travel to Lebanon, and there would be no way that any orders could be made requiring him to return and that, in effect, there is no guarantee that the children will be returned to Australia. 

7. Clearly, this is distressing for the mother, however she sees this as her only chance of having the children returned to Australia and wishes to consent to the orders on that basis.  Clearly, that is a big decision.  I am somewhat comforted by the fact that the mother says she has spoken to Legal Aid on the telephone for half an hour in relation to these issues approximately a month and a half ago, and, even having spoken to Legal Aid,  wishes to consent to the orders.  Whilst there is no guarantee that the children will be returned, I also do not see that I should refuse to make the orders in light of her consent. I am satisfied that she does understand the ramifications of the orders.

8. The order with respect to equal shared parental responsibility for the long‑term care and development of the children and orders with respect to the children living with the father and mother, will in my view need to be served upon the paternal grandparents, who currently have orders with respect to those children., I will adjourn the application to a directions hearing some time after it is anticipated the children will be returned to Australia.

9. For fairly obvious reasons, as clearly there is no guarantee the father will return with the children, I have reservations about these orders. However, I am also mindful of the fact that if the father is not permitted to leave Australia, it is unlikely, given the history of this matter, that he would, in any event, return these children to Australia to live with the mother.  So I do acknowledge that the mother sees this as at least an opportunity that the children might be returned, and I trust that that will be so.

10. It was also submitted on behalf of the father that the arrangements are already in train in Lebanon for the children to be issued with new Australian passports.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 7 July 2015.

Associate:

Date:  29 July 2015