Alfarsi and Elhage (No 2)

[2016] FamCA 1098

FAMILY COURT OF AUSTRALIA

ALFARSI & ELHAGE (NO 2) [2016] FamCA 1098

FAMILY LAW – CHILDREN – WATCH LIST ORDERS – where orders previously made restraining father from leaving Australia – where such order made in attempt to procure return of children to Australia from Iraq – where previous orders placing children on watch list – where such orders will expire by effluxion of time after two years – whether  appropriate to extend such orders – where orders extended.

Family Law Act 1975 (Cth) s 68B

APPLICANT: Ms Alfarsi

RESPONDENT: Mr Elhage

FILE NUMBER: PAC 6203 of 2014

DATE DELIVERED: 12 December 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 12 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Azim of Thurlows Family Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Mando of Kings Law Group

Orders

1. The watchlist order in respect to the children and the father made on 23 December 2014 continue for a further period of two years from this date.

2. Liberty to apply as to the continuation or otherwise of this order or other orders restraining the father from leaving the country.

3. Leave granted to either party to re-list on short notice.

4. The father Mr ELHAGE born … 1972 is hereby restrained from leaving the Commonwealth of Australia.

5. Each of the father Mr ELHAGE  and the mother MS ALFARSI and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of A (female) born … 2009 and Z (male) born … 2011 from the Commonwealth of Australia.

6. The children A (female) born … 2009 and Z (male) born … 2011 be and is/are hereby restrained from leaving the Commonwealth of Australia.

7. It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said children A (female) born … 2009 and Z (male) born … 2011, and the name of the father Mr ELHAGE  born … 1972 on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s names and the father’s name on the Watch List for a period of two (2) years.

8. Upon expiration of the period referred to in Order 4 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names and the father’s name from the Watch List.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Alfarsi & Elhage has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6203  of 2014

Ms Alfarsi

Applicant

And

Mr Elhage

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The application before the Court today is an Application in a Case filed by the mother in the proceedings.  There is a long history of this matter that is the subject of previous judicial determinations, in particular, a judgment of his Honour Judge Dunkley in the Federal Circuit Court of Australia with reasons delivered on 1 February 2016 (Alfarsi & Elhage [2016] FCCA 200).

2. Prior to that date orders were made by Judge Dunkley that restrained the husband from leaving the Commonwealth of Australia and also restrained the husband or his servants or agents from removing the subject children from the Commonwealth of Australia in the event they were to arrive in this country.

3. The order as to the children by reason of the administrative arrangement between the Australia Federal Police and the Court required a sunset provision to be imposed on the order, and in that regard Judge Dunkley imposed or set a period of two years at the expiration of which the orders would expire. 

4. The matter has been before this Court on several occasions in the intervening period since its transfer to the Family Court of Australia from the Federal Circuit Court in circumstances whereby the husband has failed to comply with his obligation to return the children to Australia, thus he has remained injuncted from leaving the Commonwealth of Australia until he complies with the Court orders.

5. The Application in a Case filed by the mother on 14 November 2016 simply seeks administrative extension of the order in relation to the children for a further period of time.  The application is supported by an affidavit by the mother sworn 11 November 2016 and filed on 14 November 2016. 

6. The father appears today through his solicitor, Mr Mando, who says that the father opposes the orders sought by the mother and seeks a dismissal of her application, yet he has filed no Response nor any affidavit in support of that dismissal. 

7. Section s 68B of the Family Law Act 1975 provides that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child.

8. In all of the circumstances, it is patently clear that it is appropriate in the circumstances where the subject children remain overseas contrary to Court orders and the father steadfastly appears to be incapable or refusing to make arrangements for their return to Australia to extend orders seeking to facilitate the children’s return. 

9. Orders will be made accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 December 2016.

Associate: 

Date:  20 December 2016