Alfarsi & Elhage

[2016] FamCA 428

FAMILY COURT OF AUSTRALIA

ALFARSI & ELHAGE [2016] FamCA 428

FAMILY LAW – JURISDICTION – Where both parents and children are Australian citizens – Where children were removed from Australia to Iraq by the father in September 2014 – Where agreed that children were habitually resident in Australia at the time of their removal – Where the father asserts that he does not know who is caring for the children in Iraq – 1996 Convention as implemented in the Family Law Act 1975 does not have application – Consideration of habitual residence of the children – Children have remained “habitually resident” in Australia – Satisfied the Court has jurisdiction.

Convention on the Civil Aspects of International Child Abduction
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children
Family Law Act 1975 (Cth) ss 69E, 111CA, 111CC, 111CD

[Alfarsi] & [Elhage] No. 2 [2016] FCCA 200 (unreported)
Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57
State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906

APPLICANT: Ms Alfarsi

RESPONDENT: Mr Elhage

FILE NUMBER: PAC 6203 of 2014

DATE DELIVERED: 2 June 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Snelling

SOLICITOR FOR THE APPLICANT: Thurlows Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Mando

SOLICITOR FOR THE RESPONDENT: Kings Law Group

Orders

1. That the father’s application for dismissal for want of jurisdiction is dismissed.

2. That any application for costs be made within 14 days by way of written submissions with any response thereto to be by way of written submission within a further 14 days thereafter.

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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6203  of 2014

Ms Alfarsi

Applicant

And

Mr Elhage

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings concerning the children A born in 2009 and Z born in 2011 who were taken to war-torn Iraq in September 2014 by their father and left there whilst he returned to Australia. The mother seeks the return of the children.

2. The father contests the jurisdiction of this Court to make orders in relation to the children as, he asserts, the children are now habitually resident in Iraq.

3. The father through his counsel conceded that there were no relevant proceedings in Iraq in relation to the children.

4. He seeks a dismissal of the proceedings and consequently the discharge of the injunction restraining him from leaving Australia.

A History: The Federal Circuit Court Proceedings

1. Proceedings concerning the children were commenced by the mother in the Federal Circuit Court of Australia by application filed on 23 December 2014. In that application the mother sought final orders in relation to the children that in summary provided:

   a)That the mother…