Azem and Azem

[2009] FamCA 624

FAMILY COURT OF AUSTRALIA

AZEM & AZEM [2009] FamCA 624

FAMILY LAW – CONSENT ORDERS

Family Law Act 1975 (Cth)

APPLICANT: Ms Azem

RESPONDENT: Mr Azem

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 1129 of 2007

DATE DELIVERED: 19 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C.P. Arnold

SOLICITOR FOR THE APPLICANT: Robert Halliday & Associates

COUNSEL FOR THE RESPONDENT: Mr A.M. Barbayannis

SOLICITOR FOR THE RESPONDENT: Lewenberg & Lewenberg

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms M.E. Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER McCormack & Co

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That my reasons be transcribed and be placed on the file and made available to the parties.

4. That pursuant to s.65DA(2) and s.62B, 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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1129 of 2009

MS AZEM

Applicant

And

MR AZEM

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me as the first day of the parenting trial,  a dispute concerning three very young and I suspect vulnerable children aged four, eight, and 10.  The proceedings have been protracted and the parties at my suggestion have come up with a possible solution.  There is no guarantee of success in that solution, except if the parties have a dedicated desire to resolve the problem.  The only way this issue will ever be successfully resolved is if the parties step outside of the litigation pathway and work as parents to try and resolve the impasse between the children and in particular the wife.  For that purpose I am proposing to strike out the proceedings and to give the parties a right to reinstate them on the conditions that are set out in the orders. 

2. For the purposes of the record, this case is nothing short of tragic.  Why the parties have got to this stage is not at all clear from the evidence.  What is certain is that when the court originally was asked to intervene, decisions were made on an interim basis after consultation with some social scientists.  Almost immediately after that occurred, the orders broke down and there was a reversal of the parenting roles.  That occurred in February 2008, but even those orders have not worked to the extent that the wife has not seen the eight‑year‑old and 10‑year‑old now for over a year.  There is a dispute about exactly what is happening in relation to the four‑year‑old, but the precise details of that do not matter.

3. I have, as has the Independent Children's Lawyer, today urged the parties to work out a way of resolving the problem because of the fact that the court has so few limited options, but more importantly because the court has intervened twice now and its orders have not been successful. 

4. I quote the prophetic words of the Independent Children's Lawyer's counsel that this is the only way to go.  I could not endorse those words more strongly.  Those words mean what they say.  It requires both parties to have a positive attitude about the resolution of this matter.  If they do not, then all of the other bases upon which the case can come back in for a hearing are almost meaningless.  However, I am hopeful, as is the Independent Children's Lawyer, that the parties will work diligently with a psychologist or suitably qualified person to deal with the problem.  It is going to be a long-term problem:  no-one should see this as a quick fix.  It is because of that, that I have agreed that this is the only management way that the court can deal with it.  That is, to take it out of the list and give the parties a right to come back in the event that they become exasperated and need the court's intervention.

5. For those reasons, I will make the orders in terms of the minutes which I have marked as Exhibit A .  I will direct that those minutes remain on the court file.  I will ask the solicitor for the wife to engross those and email them to my associate within seven days.

I certify that the preceding Five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 July 2009