ANIZ & ALMIR

[2009] FamCA 1278

FAMILY COURT OF AUSTRALIA

ANIZ & ALMIR [2009] FamCA 1278

FAMILY LAW – CHILDREN – Undefended hearing – Travel

Family Law Act 1975 (Cth)

APPLICANT: Mr Aniz

RESPONDENT: Ms Almir

FILE NUMBER: MLC 1369 of 2007

DATE DELIVERED: 22 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Taghdir

SOLICITOR FOR THE APPLICANT: Merhi & Associates

THE RESPONDENT: No appearance

Orders

1. That the applicant husband have leave to proceed on an undefended basis, the wife having been properly served with the documents.

2. That paragraph 1 of the orders made on 17 August 2007 is discharged.

3. That the children be removed from the Airport Watch List maintained at all departure points for international travel of the Commonwealth of Australia.

4. That the children be permitted to travel internationally without restriction.

5. That the solicitor for the husband advise the wife at her last known telephone number of the making of these orders and the fact that she is at liberty to obtain a copy of the orders from the court’s file.

6. That all extant applications are otherwise dismissed and removed from the list of cases.

IT IS NOTED that publication of this judgment under the pseudonym Aniz & Almir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1369 of 2007

MR ANIZ

Applicant

And

MS ALMIR

Respondent

REASONS FOR JUDGMENT

1. On 18 September 2009, practitioners on behalf of the husband filed an application for consent orders.  The wife, at that stage, who was the respondent, was unrepresented.  The proposed orders allowed the four children of the marriage to travel internationally to Lebanon, notwithstanding there was in place an injunction precluding the children from leaving Australia. 

2. The registrar declined to make the orders because there was no address for service of the wife.  Consequently, on 17 November 2009, the husband filed an application in a case which was listed before me in the duty list on 8 December.  That application sought the same orders as were set out in the application for consent orders. 

3. The application, filed 17 November 2009, was not served upon the wife.  However, on that day, I made arrangements for a telephone linkup with her and she acknowledged she was aware of the proceedings but not of the precise nature of the orders.  She made accusations against the husband about being violent, and did not want him to know her whereabouts, but she said she was going to get the documents if they were delivered to her, and read them and get some advice.  In what followed, the wife agreed to attend upon the steps of the D Police Station at midday on 13 December to receive whatever documents were to be served.  She then abruptly terminated the call, and I made the relevant orders for service. 

4. There has been no appearance of the wife today.  She has been called.  There has been no word from her to the husband, whose evidence I have heard, since she was served with the documents.  There is no correspondence on the court file indicating any interest by a solicitor, and in particular, no documents, such as a search form to indicate that the wife, or any legal practitioner on her part, is making inquiries about the file.  The whole case might seem to be shrouded in mystery, but I am determining the matter on the evidence.  This case has a long history in the court, commencing in 2007.  Orders were made in 2007 by consent of the parties at a time when both were represented by lawyers, as well as the attendance of an Independent Children’s Lawyer, for the children to be restrained from leaving the Commonwealth of Australia.  The children are therefore on the Airport Watch system. 

5. On that same date, 17 August 2007, the parties consented to orders which were made by the court that the husband and wife have equal-shared parental responsibility.  The children, who are referred to in that order, are M, who was born in April 1998;  A, born in October 2000;  D, born in February 2002;  and H, born in April 2003. Those are the children referred to in the orders of the senior registrar of 17 August 2007, and that spelling is the way in which the orders appeared, and was sent in that form to the Australian Federal Police. 

6. I note in passing that the order relating to parental responsibility was to have been engrossed by the solicitor for the wife, but that was never done.  I accept, however, that the order was made on 23 October 2008.  It seems that the case came to the top of the pool of cases awaiting a trial, and the matter was listed before Registrar Riddiford.  There was no appearance on behalf of the wife on that day, and the husband appeared in person.  The independent children’s lawyer was represented.  It seems that sometime prior to that hearing, the parties had got together, and the husband attended court with a letter purporting to be signed by the wife.  In that letter, which was placed on the court file, she used the words:

   I would like [the husband] to have full custody over my four children. 

7. The wife then went on to say she wanted Saturday or Sunday to see the children, and a number of other matters.  She specifically gave permission for the husband to take the children overseas for a period of six months, and she left a telephone number and an email address.  The telephone number is also the number that she was contacted on in early December.  The consequence of those documents gave rise to the registrar noting that the husband’s application was dismissed, and the independent children’s lawyer was discharged.  To all intents and purposes, that ended all proceedings between the parties.

8. The next event that occurred was the application for the consent orders in September.  I have before me today an affidavit of Mr W, who is apparently a process server, who says that on 13 December he served a variety of documents that are consistent with the order that I made on 8 December.  Attached to that affidavit is an acknowledgement of service which bears a signature and a date.  The affidavit records the fact that the server asked the person served who she was, and she identified herself as the wife, and that she was the same person referred to in the documents.  Today, the husband has given evidence that he recognises the signature as being that of his wife.  I note that it is also consistent with the document that is attached to the application for consent orders, in which the wife swore at Dandenong on 16 September 2009 that she had read the application and understood the draft orders. 

9. In his affidavit of 17 November 2009, the husband attached a consent from the wife, in terms of the husband being able to travel with the children overseas at any time, now or in the future.  In addition, she consented to the husband obtaining the necessary passports with or without her signature.  The signature on that document is identical to the signature in the acknowledgement of service, and also the document that came with the application for consent orders in September.  I am satisfied in those circumstances that the wife is well and truly aware of these proceedings and her silence and absence today indicates that the relevant documents to which I had referred were in fact genuine consents.  The husband, in addition to annexing to his affidavit the document I have referred to, also attaches the relevant school reports for the early part of 2009.  Tendered today, and which will be marked as an exhibit H1, are four statements of enrolment from T School, indicating that each of the four children is enrolled as a full-time student for the year 2010.  I am satisfied, therefore, that there is bona fides on the part of the husband in relation to returning the children. 

10. In his affidavit, the husband referred to the fact that the trip overseas was to Lebanon for a holiday, so that the children could see their grandparents and their aunt.  It is also said in the affidavit that the trip is for a period of four weeks, from 11 January 2010 until 13 February 2010, and the husband attached the itinerary to his affidavit.  The husband said that the children were excited about travelling.  This is not the first time the children have travelled, and apparently, according to the affidavit, it is something with which they are quite familiar.  All of that obviously occurred prior to the orders injuncting the children from leaving Australia in 2007.  Whatever was the cause of concern then seems to have now evaporated.  That may be in part because of the attitude of the mother and her lack of contact with the children. 

11. In his affidavit, the husband said that he discussed travelling to Lebanon with the wife, and, apart from agreeing, she acknowledged the existing restraint, and was prepared to consent to the children leaving the Commonwealth of Australia.  The husband said that he and his former wife met on 16 September 2009 at D, and she arrived with her new husband and baby, and he followed them to the D Police Station, where she took the orders and documents into the police station.  She then returned with them, signed by her and also by a Justice of the Peace.  That seems to be consistent with the consent orders that were tendered in the court.  The husband also indicated that the wife refused to give his solicitor details of her address, and would only provide them to the court, and that seems to be consistent with the document that is on the file, in which it is indicated that her address is not to be disclosed. 

12. Sadly, it seems that the wife has not had any contact with the children for some time.  The husband says that he encourages the children to contact their mother, but they do not wish to do so.  He said that equally, the wife made no effort to see the children but she sometimes speaks to the eldest daughter, M.  He went on to say in his affidavit that he waited on occasions, and eventually called the wife to see what happened when she did not arrive but she always had an excuse.  He said he went to the police station on six occasions to meet, and on six occasions she did not attend.  This caused the children to be upset, because they were waiting to see their mother.  The husband said that one of his daughters indicated she would not be prepared to go to the police station any longer. 

13. In the circumstances, that material reinforces the position that the wife really has not only no interest in this application, but sadly, in the children as well.  I am satisfied, in the circumstances, that there is no reason why the children should not enjoy the holiday that they have had planned for them by their father. 

14. Section 11 of the Australian Passports Act 2005 gives the discretion to the minister to issue an Australian passport to a child, but it must not be issued unless each person who has parental responsibility for the child consents to the child travelling internationally, or there is an order of the court of the Commonwealth or a state or territory permitting the child to travel internationally. This is one of those cases where it might be difficult, having regard to the time, for the minister to contemplate the question of parental responsibility, and in the circumstances, I propose to make an order that the father be permitted to travel internationally with the children, and to that extent the minister can take notice of this order.

15. I am satisfied also that these are parenting orders, to the extent that it is a removal of the Airport Watch order.  There does not seem now to be any basis for the injunctions to remain.  In those circumstances, I propose to make orders anticipated by the husband. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:  Elizabeth Hore

Date:  30 December 2009