Al Haq and Leonard and Anor

[2007] FamCA 97

FAMILY COURT OF AUSTRALIA

AL HAQ & LEONARD & ANOR [2007] FamCA 97

FAMILY LAW - CHILDREN - Magellan - Children's Court proceedings - Family Court proceedings struck out

Family Law Act 1975 (Cth)

HUSBAND: Mr Al Haq

WIFE: Ms Leonard

MATERNAL GRANDMOTHER: Mrs Dawson

INDEPENDENT CHILDREN’S LAWYER: Independent children's lawyer

FILE NUMBER: MLF 3580 of 2004

DATE DELIVERED: 9 February, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 9 February, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr Berger

SOLICITOR FOR THE HUSBAND: Berger Kordos, DX 109, Melbourne

COUNSEL FOR THE WIFE: M. Powdey

SOLICITOR FOR THE WIFE: Wilmoth Field Warne, DX 289, Melbourne

No appearance for the maternal grandmother
Ms Rose appeared for the Department of Human Services

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Macgregor

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Macgregors, DX 35711, Balaclava

Orders

1. That all applications in respect of J born in November, 1997 and L born in June, 2000 be struck out with a right of reinstatement.

1. That any application to reinstate may be made by any party to these proceedings, including the current independent children’s lawyer notwithstanding her discharge this day.

1. That the independent children’s lawyer be discharged this day.

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. 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.

1. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3580  of 2004

Mr Al Haq

Husband

And

Ms Leonard

Wife

Mrs Dawson
Maternal Grandmother

Independent children’s lawyer

REASONS FOR JUDGMENT

1. The parties in this case lived together from 1993.  They married in 1996 and separated in 2004.  They have two children:  J, born in November 1997; and L, born in June.

1. Proceedings have been on foot in this court since February 2005 when the husband sought an order that the children live with him.  Earlier orders made in December 2004 provided for J and L to live with the wife and have contact with him. 

1. A form 4 was filed on 2 May 2005 alleging that the husband had sexually abused J.  The husband denied the abuse and asserted that the wife was psychiatrically disturbed.  In June 2005, the maternal grandmother sought leave to intervene and to have contact with the children. 

1. In July 2005 I made orders for psychiatric assessment of the parties and a number of procedural orders.  A number of reports have been filed in this court, including a report from the Department of Human Services, a psychiatric assessment by Dr E, two family reports by Mr V and a psychosexual assessment by Dr K. 

1. In the course of the proceedings it became clear that DHS had significant protective concerns which, in the view of the Department, warranted intervention through the Children’s Court.  DHS brought proceedings there.  Ms Rose appears today, representing DHS as amicus.  I am very grateful for her attendance and to DHS for keeping this Court informed about what is happening in these children's lives.

1. I am now aware that there is a custody to secretary order in respect of J, which will not expire until 5 December 2007.  There is an interim protection order in respect of L and the case is due to resume in the Children's Court on 2 March.  There is to be a family group meeting very soon.  However, it is highly likely that DHS will seek continuing statutory involvement. 

1. This Court works cooperatively with DHS and the Children's Court in its endeavours to protect children.  There should not be parallel proceedings in two courts.  Once protective proceedings are taken in the Children’s Court, this Court cannot make a parenting order in respect of these children, unless the order is to take effect after all State protective orders expire or with the consent of DHS.  The independent children’s lawyer has submitted that the case could be adjourned for twelve months.  However, in my view that is not consistent with the spirit of the legislative provisions and would serve no useful purpose.    

1. I note that the maternal grandmother is not here today.  It is suggested that concerns about costs may be the reason for that.  However, I cannot see that anything said by her would have altered my decision. 

I certify  that the preceding
8 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown.

Dated the           day of            2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as AL HAQ & LEONARD & ANOR