Al Haq and Leonard and Anor

In the Family Court of Australia at Melbourne, Justice Brown presided over proceedings involving Mr Al Haq (Husband) and Ms Leonard (Wife), with Mrs Dawson (Maternal Grandmother) and an Independent Children's Lawyer also involved. The dispute concerned parenting orders for two children, J and L, born in 1997 and 2000 respectively. The proceedings were initiated in February 2005, with the husband seeking orders for the children to live with him, following earlier orders that they live with the wife. Allegations of sexual abuse by the husband were raised, which he denied, attributing psychiatric disturbance to the wife. The maternal grandmother sought leave to intervene and have contact with the children.

The central legal issue before the court was the appropriate course of action given the existence of parallel proceedings in the Children's Court concerning the welfare and protection of the children. Specifically, the court had to determine whether it could make parenting orders when statutory protective orders were in place in the Children's Court, and if not, what orders should be made in the Family Court proceedings. The court also considered the role and discharge of the independent children's lawyer and the dismissal of extant applications.

Justice Brown reasoned that the Family Court should not conduct parallel proceedings with the Children's Court when statutory protective proceedings are underway. The court noted that it cannot make a parenting order in such circumstances unless it is to take effect after all state protective orders expire or with the consent of the Department of Human Services (DHS). Given that DHS had initiated proceedings in the Children's Court, resulting in a custody to secretary order for J and an interim protection order for L, with ongoing statutory involvement highly likely, the Family Court's jurisdiction to make parenting orders was significantly curtailed. The court found that adjourning the proceedings for twelve months, as suggested by the independent children's lawyer, would not be consistent with legislative intent and would serve no useful purpose.

Consequently, Justice Brown ordered that all applications concerning J and L be struck out with a right of reinstatement, allowing any party, including the discharged independent children's lawyer, to apply for reinstatement. The independent children's lawyer was discharged. All other extant applications were dismissed, and the proceedings were removed from the list of matters awaiting finalisation. The court also included particulars of obligations and consequences in its orders, pursuant to sections 65DA(2) and 62B of the relevant legislation.