Al Fawal and Anor and Fezier

[2007] FamCA 1305

FAMILY COURT OF AUSTRALIA

AL FAWAL AND ANOR & FEZIER [2007] FamCA 1305

FAMILY LAW – CHILDREN – With whom a child lives – Best interests

Family Law Act 1975 (Cth)

APPLICANTS: Mr Al Fawal and Ms Palmer

RESPONDENT: Ms Fezier

FILE NUMBER: MLF 3062 of 2006

DATE DELIVERED: 24 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 24 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the child born … February 2002 shall reside with the applicants Mr Al Fawal and Ms Palmer.

2. That the applicants shall have the sole parental responsibility for the child.

3. That the question of the mother spending time with the child shall be reserved and if it occurs, it shall be supervised to the applicants’ satisfaction.

4. That the mother is restrained by herself or her servants or agents from bringing the child into contact with Mr H (also known as …).

5. That the applicants shall be permitted to obtain a passport for the child in the absence of the mother’s consent.

6. That the application filed on 30 August 2007 shall be otherwise dismissed.

7. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. That the applicants shall arrange service of a sealed copy of these orders on the mother by pre-paid post to the S residents.

9. That the reasons for judgment given this day shall be transcribed and place on the court file.

IT IS NOTED that publication of this judgment under the pseudonym Al Fawal & Fezier is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3062 of 2006

MR AL FAWAL and MS PALMER

Applicants

And

MS FEZIER

Respondent

REASONS FOR JUDGMENT

1. This case was transferred to me in the Judicial Duty List from the Registrar's List this morning.  It is my task to make some orders in the absence of the child's mother, having been satisfied that she has been properly served with the Application of the father and step-mother filed on 30 August 2007, and the detailed affidavit material in support filed on the same day.

2. The child is aged 5½.  She was born in February 2002.  Her parents never lived together.  She was living with her mother until November 2006, but seeing her father and her step-mother regularly.

3. In November 2006, the Department of Human Services removed the child from her mother's care.  There were Children's Court proceedings pursuant to which the child was placed in the care of her father and step-mother.  There were provisions for supervised contact with the mother.  The mother only availed herself of some of that contact.  In fact she has not seen the child now since 20 December 2006.  The various relevant DHS reports are attached to the affidavit material. 

4. I am satisfied that this court has jurisdiction because the Children's Court order that was for the child to live with her father and step-mother expired on 20 October 2007.  It is obvious that it was envisaged by DHS that the father and step-mother would make the application in this court for the child to live with them.

5. When the child came into the care of the applicants, she was struggling with global development delays and there was a concern that she was facing an unacceptable risk of abuse in her mother's household, there being a very serious cloud over the mother's partner in relation to sexual abuse of his own daughters.  The situation now is that she appears to be going very very well in the care of the applicants.  She is improving at kindergarten, and her behaviour generally is improving.  It seems that much of the chaos and uncertainty in her life has currently been replaced by certainty and stability with the father and step-mother.  I am satisfied from all the material that it is in the child’s best interests that she continue to live with them. 

6. I am also satisfied, in the circumstances of the risks in the mother's household and in light of the mother sadly but deliberately opting out of the child's life at this point, that it's appropriate to give the parental responsibility - that is, the decision-making capacity - to the applicants so they can make the major decisions in relation to the child’s education, health and so on.

7. I am satisfied on all the material that the appropriate order for the child is that any contact or time that she spends with her mother should be supervised, to the satisfaction of her father and step-mother.  That is the recommendation of DHS.  It also follows from their concerns, that the application of the father and step-mother that the child not have any contact with the mother's partner is appropriate. 

8. Otherwise, the father and step-mother apply for a passport to be permitted to take the child overseas.  The father apparently wanted to take the child overseas previously when his mother was very ill in Syria.  The child’s mother refused permission.  It seems from the affidavit material that the father and step-mother are saying that they have absolutely no intention of leaving Australia permanently, but they might want to take the child away just for the purposes of seeing family.  That strikes me as entirely reasonable and in the child’s interests to enjoy that opportunity with them.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  24 October 2007