Aladdin and Hakim

[2007] FamCA 719

FAMILY COURT OF AUSTRALIA

ALADDIN & HAKIM [2007] FamCA 719

FAMILY LAW - CHILDREN – Final parenting orders
FAMILY LAW - PROPERTY – Interim application – Lack of clarity in orders sought – No undertaking for damages – Struck out

Family Law Act 1975 (Cth), ss.60B(1), 60CC(1), 61DA, 65DAA(1) and 65DAA(2)

HUSBAND: Mr Aladdin

WIFE: Ms Hakim

INDEPENDENT CHILDREN’S LAWYER: Independent children's lawyer

FILE NUMBER: MLF 1659 of 2005

DATE DELIVERED: 16 July, 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 16 July, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms Masood

SOLICITOR FOR THE HUSBAND: Merhi & Associates

COUNSEL FOR THE WIFE: Mr Metaxas

SOLICITOR FOR THE WIFE: John Snodgrass & Assoc.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hutchins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Donald S Lampe

Orders

1. BY CONSENT IT IS ORDERED  in accordance with the Minutes of Proposed Orders sealed and attached hereto  AND IT IS DIRECTED  that such Minutes remain upon the Court file.

1. That all parenting applications be otherwise dismissed.

IT IS DIRECTED

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

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, 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 that copies be made available to the parties.

IT IS CERTIFIED

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1659  of 2005

Mr Aladdin

Husband

And

Ms Hakim

Wife

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The husband and wife married in 1991 and separated in 2005.  They have two children.  B was born in January, 1994 and Z in March, 1995.  The wife has another daughter, N, aged about 20, who swore an affidavit in support of the husband’s case.

1. On 19 May, 2005 the wife filed an application seeking parenting and property orders, and spousal maintenance.  In relation to the children, she sought that they live with her and have contact with the husband as agreed.  The husband filed a response on 22 June, 2005, in which he sought property orders. 

1. On 27 June, 2005 I made interim orders in respect of the property applications, including an order that, until further order, the wife and children be entitled to possession of the family home.  The husband then filed an application seeking that the children live with him.  The affidavit filed in support of that application alleged that the wife’s family was sexually, verbally and physically abusive of the children and that, in addition to other conduct, the maternal grandfather had placed a gun at the children’s heads.

1. On 20 October, 2005 Kay J. ordered that the children live with the husband until the matter could be more fully considered on 26 October.  On that day a psychologist, Mr B, provided an oral report to the Court, a transcript of which is on the file.  Judicial Registrar Ramsden then made orders providing for the children to live with the husband until further order and for the wife to spend time with them on each alternate weekend.  She was restrained from bringing them into contact with her brother.  At that time the matter was assessed as suitable for the Magellan list of cases. 

1. A report from the Department of Human Services was received and released to the parties on 19 January, 2006.  Among other concerns raised in that report, DHS substantiated allegations of inappropriate sexual behaviour by the children’s maternal uncle.

1. On 20 January, 2006 I made orders severing the applications for financial orders from the application for parenting orders. 

1. A family report was prepared by Ms D on 2 May, 2006 which recommended that the children remain living with the husband, spend regular time with the wife, and not be left alone with the maternal uncle until they had learned appropriate protective behaviours. 

1. Despite efforts made by the Court, it was difficult to get the matter ready for trial.  At a pre trial conference in late 2006, the Court was advised that the wife had moved in with her parents and brother, which created problems with the time her sons were to spend with her, given the injunction relating to her brother.  She also indicated that she wanted to issue a subpoena to the T company to clarify the husband’s shareholdings, an issue which had been simmering since the commencement of the property proceedings. 

1. Following a directions hearing on 9 March, 2007 trial notice directions were issued and an order made, by consent, for the wife to be assessed by a psychologist, Dr H.  His report was provided to the wife’s solicitor at a pre-trial conference on 18 April, 2007.  It concluded that the children should remain with their father and have graduated time with the wife;  he also recommended a psychiatric assessment and ongoing psychiatric treatment of the wife.  Despite that recommendation the independent children’s lawyer indicated at the pre-trial conference that it was not proposed to seek to have the wife psychiatrically assessed.

1. Even by that late stage the wife had not filed any material and it was not clear where she intended to live.  Orders were made providing for her to file affidavit material on or before 2 May, 2007.  If she failed to do so, the husband was granted liberty to proceed on an undefended basis, subject to the discretion of the presiding judge. 

1. In terms of the property applications, the Court was told at that pre-trial conference that the family home had been sold by consent and there was a shortfall of approximately $15,000.  The husband alleged that there were no other assets.  The only other asset alleged by the wife was the transport business licence, which she (in the face of continuing denials by the husband) continued to assert was either owned by him or held in trust for him.  At that point she had still filed no affidavit material to substantiate that claim.  A conciliation conference was allocated for 27 April, 2007 but it appears no-one attended.

1. On 13 July, 2007, well after the filing deadline, a number of documents were filed on behalf of the wife, as follows :

   ·An amended application for final orders, naming a second respondent, Ms O.  I have been told by counsel for the husband that she is the wife of a cousin of the husband.  In that application the wife sought no parenting orders but three orders said to relate to matrimonial property, in these terms :

   1.         That the first and/or second respondents be restrained from disposing of any shares or assets of the second respondent including but not limited to [transport business] licence number [...].

   2.         That the 51 shares currently held by the said third respondent be transferred to the wife.

   3.         That the [transport business] licence number […] be transferred to the wife and the first and second respondents do all acts and sign all documents to effect such transfer.

   ·A form 2 application in a case, seeking identical orders to those sought in the amended application for final orders.

   ·An affidavit sworn by the wife on 5 July, 2007, in support of the form 2 application.

   ·An amended financial statement, sworn by the wife on 31 January, 2006.

   ·An undertaking as to disclosure which seemed to be a copy of an earlier undertaking which had been filed on 14 November, 2006. 

   None of this material related to the application for final parenting orders.

1. Nevertheless, the wife appeared today, represented by counsel, as did the husband.  Following discussions with counsel for the independent children’s lawyer, the Court was advised that the parties had resolved all outstanding parenting applications and signed a minute of orders, sought to be made by consent.  In broad terms these provide for B and Z to live with the husband and to spend two out of each three consecutive weekends with their mother, plus time after school on one day a week, and during school term and long summer holidays.  It was proposed that the injunction restraining the wife from bringing the children into contact with their uncle continue.

1. Notations to the orders relate to the wife’s intention to follow the recommendations of Dr H and the parties’ intentions not to denigrate each other in front of the children.  Prior to making the orders I made it clear that while those notations reflect the parties’ intentions, they would not be orders of the Court, and could not be enforced as orders of the Court.  All counsel agreed that was the intention.  In those circumstances, and having regard to the recommendations of the various experts whose reports were before the Court, I made final parenting orders by consent.

1. The amended application for final orders, form 2, financial statement and affidavit in support of the form 2 had not been served on the husband, or on the second respondent named in them.  For some reason, no return date had been fixed for the form 2 application.  Having regard to the manifest defects in the form 2, I struck it out. 

1. In respect of these defects I say only this.  The injunction sought against the husband and second respondent was not limited in time but, on its face, was a permanent injunction.  It was not limited in subject matter, seeking to restrain them both from disposing of any assets whatsoever.  One cannot envisage the circumstances in which such an order would be made;  if it were, it would stop a party bound by it from spending money on food or giving old clothes to a charity.  The form 2 application then sought an order that 51 shares held by the “said third respondent” be transferred to the wife.  There is no third respondent to that application, or to the amended application for final orders.  In the affidavit filed in support of the form 2 application there is a reference to a 51% shareholding in a transport business, and the acquisition of 51 shares in a company, L Pty. Ltd.  No doubt that is what is referred to, but I cannot say what that has to do with the un-named third respondent.  The last order sought in that interim application is couched in final terms, requiring the transfer to the wife of a transport business licence.

1. If the form 2 had been served and listed for hearing I cannot imagine the circumstances in which it would not have been struck out, and significant costs awarded against the wife.  No where in her affidavit does she depose to any understanding of the requirement to give an undertaking for damages;  in this case, it is likely the Court would also want to have evidence about the financial source from which any such undertaking could be enforced. 

1. There is no prejudice to the wife in striking out that application.  An application in proper form can be filed by her.  However, she must understand that if she seeks an injunction against the husband and another respondent or respondents, the application must not only specify with particularity what is sought, and (to succeed) satisfy the stringent test for the granting of such injunctions, but she would be required to give an undertaking for damages.

1. Having regard to the conduct of the wife’s application for financial orders, I propose to relieve the parties from the obligation to attend a conciliation conference and to refer all applications for financial orders to the list registrar for the giving of trial notice directions on a date to be advised by her.

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

Dated the           day of            2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ALADDIN & HAKIM