BECHARA & HEJAZI

[2016] FamCA 690

FAMILY COURT OF AUSTRALIA

BECHARA & HEJAZI [2016] FamCA 690

FAMILY LAW – Ex parte parenting orders – father on remand – child in Lebanon – orders required to keep child safe from harm and that she be returned to Australia – issuance of passport without father’s consent – parenting orders with extra territorial effect – Commonwealth personal protection measure under s 111CD(1)(e) – father at liberty to bring urgent application in response or to vary or discharge this holding order.

APPLICANT: Ms Bechara

RESPONDENT: Mr Hejazi

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7517 of 2016

DATE DELIVERED: 10 August 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 10 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Thiru

SOLICITOR FOR THE APPLICANT: Women’s Legal Service

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders – Ex-Parte

IT IS ORDERED THAT

1.The further hearing of the Initiating Application of the wife filed 10 August 2016 be adjourned to 20 September 2016 in the Senior Registrar’s Duty List (“the adjourned date”) for further hearing.

2.The mother’s application for interim orders this day be heard ex-parte and liberty is hereby reserved to the father to apply urgently to have this Order varied or set aside or as he may be advised.

3.Until further order, the mother have sole parental responsibility for the child B born … 2014 (“the child”).

4.Until further order, the child live with the mother.

5.Until further order, the father do all acts and things necessary to facilitate the return of the child to the State of Victoria in the Commonwealth of Australia including, but not limited to, directing and requesting and authorising the paternal family members in Lebanon to deliver the child to the child’s maternal grandparents in Lebanon, being Ms C (the maternal grandmother) and Mr D (the maternal grandfather) who reside at E Town, Lebanon.

6.Following the re-entry of the child into Australia (whenever that may occur) and until further order each of the mother, Ms Bechara born … 1993 and the father, Mr Hejazi born … 1974 their servants and/or agents be and are each hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the said child B, male, born … 2014 from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said child’s name on the Watch List until the Court orders its removal.

7.IT IS DIRECTED that a copy of this order be sent electronically to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

8.The father, Mr Hejazi born … 1974 be and is hereby restrained from leaving the Commonwealth of Australia pending compliance by him with paragraph 5 of this Order AND IT IS ORDERED that the Australian Federal Police place the father’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the father’s name on the Watch List until further order.

9.Pursuant to s67ZD of the Family Law Act 1975 the father is directed to produce all passport(s) he currently uses to travel with to the Registry of the Family Court of Australia (“the Registry”) and such passport(s) shall be held by the Registry until further order.

10.Pursuant to section 7 and 11 of the Passports Act 1938 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the respondent father to enable the children of the relationship B, male, born … 2014 to obtain an Australian Passport to travel out of Australia IT IS ORDERED BY THE COURT that the requirement that the father consent be dispensed with and the mother of the said child be permitted to apply for an Australian Passport to enable the child to leave Australia.

11.Until further order, the mother retain any passport for the child which issues pursuant to paragraph 10 of this Order.

12.Pursuant to s 69ZW of the Family Law Act 1975 IT IS REQUESTED that the Department of Health and Human Services (“DHHS”) provide to the Court the following documents and information:-

a)      Any notifications to the DHHS of suspected abuse of the child to whom the proceedings relate or of suspected family violence affecting the child including but not limited to any intake reports;

b)      Any assessments of the DHHS of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;

c)      Any reports commissioned by the DHHS in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court; and

d)      In the event the DHHS have an ongoing investigation in relation to the child to whom the proceedings relate, any recommendations for the future arrangements of the child taking into account the orders sought by the parties in the proceedings.

13.Until further order, the father’s entitlement to spend face to face time with the child or communicate with the child be and is hereby reserved and any application by the father for parenting orders be listed for hearing not later than the adjourned date.* (Amended 22 August 2016)

14.The wife cause a sealed copy of the following documents to be served on the father as soon as practicable:-

a)      this Order;

b)      the Application Initiating Proceedings filed 10 August 2016;

c)      the wife’s affidavit affirmed on 9 August 2016;and

d)      the Notice of Child Abuse filed 10 August 2016;

NOTING THAT if service is to be effected on the father whilst he is in police custody, particular rules apply to such service.

15.The wife be in a position on the adjourned date to prove that the application and other documents have been duly served.

16.The father file and serve a Notice of Address as soon as practicable.

17.In the event that the husband is served with the documents provided for herein by not later than 12.00 noon on Tuesday 6 September 2016, the husband file and serve a response and affidavit in response to that evidence of the wife and in support of any orders that he seeks by not later than 12.00 noon on 19 September 2016.

18.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS DIRECTED:

19.That my Associate retrieve the Court file on or before 9 September 2016 and ascertain the progress of the matter, in particular whether the father has been served and whether it appears in the circumstances that either or both parties seek that an independent children’s lawyer be appointed for the child.

20.That my reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

* Pursuant to Regulation 17.02 of the Family Law Rules 2004 this order is amended on the 22 day of August 2016*

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bechara & Hejazi 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 MELBOURNE

FILE NUMBER: MLC 7517 of 2016

Ms Bechara

Applicant

And

Mr Hejazi

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me as an urgent ex parte application in circumstances where the young child, B, born in 2014, is in Lebanon and the mother seeks to prevent the father leaving Australia (after he is released from prison) without him first having do all acts and things to bring the child home. The applicant mother deposes that the child was taken to Lebanon with her consent but on the basis that the child would be brought back within a month. The father, who arranged for the transport of the child to Lebanon, is currently in remand, having being charged with various violence and drug related offences, of which some of the violence offences relate to his treatment of the mother. The mother believes he will depart Australia promptly upon his release from gaol and, thereafter, not facilitate the child’s return to Australia.

2. I am satisfied that the child is an Australian citizen and that the mother is present in Australia (s 69E(1)(b)(c) of the Family Law Act 1975 (Cth) (“the Act”).

3. I have had the benefit of reading the evidence put before the Court by the mother in the form of her quite lengthy affidavit sworn on 9 August 2016. I have not had the benefit of reading the father’s side of the story. It is fundamental to our law that parties are entitled to know the case they face and, of course, to know when proceedings are brought against them for orders which will impact upon them. In this ex parte application, the father has no notice of the mother’s application and he has not been given an opportunity to be present at court to out his case.

4. Given the mother’s evidence however, which, at the moment, is not tested in any full sense, I am sufficiently concerned that orders ought to be made as she seeks.

5. My order should last only for a certain time, and the father will need to be served with the proceedings so that he has a proper opportunity to come before the Court to answer the application and, indeed, to make any application which he wants to make.

6. I will order that the father be served. The special requirements in the Family Law Rules for service of process on persons who are in gaol will need to be observed. The applicant should be in a position to prove service on the adjourned date if called upon to do so.

7. The mother seeks a passport for the child which is reasonable.

8. As to the future conduct of the case, the court will be assisted by the information held by the Department of Health and Human Services being shared. Unless the matter resolves out of court and soon, it is almost certain that the proceedings will require input form an independent children’s lawyer. I will delay that order for the time being but am prepared to make the Order without the need for an appearance by any party.

9. As to the substantive parenting orders, I have only made holding orders at this stage. Nevertheless, they are a product of, and follow my consideration of, the need to protect the child from physical and psychological harm (s 60CC(2)(b) of the Act) as well as the benefit of her being able to maintain a meaningful relationship with both parents. It follows that, until the court can be informed of the father’s side of the story and receive his evidence, I will err on the side of caution and order that the mother have sole parental responsibility and the child reside with her as soon as practicable. Of course, the father will be able to put a case for a change in interim residence — this order in no way precludes him doing so, and/or to spend time and communicate with the child. My consideration of s 60CC(2)(a) leads me to conclude that the child should be brought back into the jurisdiction as soon as possible.

10. The court has power to make orders in relation to the child even though he is outside the country, in particular as contemplated by s 111CD(1)(e) of the Act.

11. Finally, I specifically reserve liberty to the father to make application urgently, even on an ex parte basis if necessary, to vary or set aside this Order or as he may be advised. Any such application can be listed before me. As I said at the beginning of these reasons, it is important to receive his side of the story.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 10 August 2016.

Legal Associate:

Date: 22 August 2016