Ebraim and Ebreim

[2008] FamCA 1174

FAMILY COURT OF AUSTRALIA

EBRAIM & EBREIM [2008] FamCA 1174

FAMILY LAW – INJUNCTIONS – Airport watch list

Family Law Act 1975 (Cth)

APPLICANT: Ms Ebraim

RESPONDENT: Mr Ebreim

FILE NUMBER: MLC 11718 of 2008

DATE DELIVERED: 31 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

Orders

1. That the mother have leave to proceed in the absence of the father and on an undefended basis.

2. That until further order each party, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children (K born … April 1997 (male) and S born … December 2002 (female)) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders their removal.

3. That these orders and my reasons for judgment be served as soon as practicable upon the father personally.

4. That the father have liberty to apply within 14 days of being so served with the orders.

5. That my reasons for judgment be transcribed and be made available to the wife.

6. That the application filed on 30 December 2008 be otherwise dismissed.

7. That all proceedings be removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 11718 of 2008

MS EBRAIM

Applicant

And

MR EBREIM

Respondent

REASONS FOR JUDGMENT

1. This is an application that was filed yesterday, 30 December 2008.  The application by the wife sought airport watch orders precluding three children from leaving the country.  The registrar refused to deal with the matter, putting it before me on an unserved basis and directed that the application be served as soon as practicable.

2. This morning I have had the husband called outside of the court and there has been no appearance.  The wife has handed to the court an affidavit of service by an Mr R, whom she tells me is her cousin, which says that at 7.30 pm last night, 30 December, at the F library, Mr R served the husband personally.  He says in the affidavit that he knows the husband but there is no further information, including nothing about the response of the husband.

3. This morning the wife has given evidence before me, indicating that she arranged for her cousin to serve the husband personally.  Before the documents were delivered to the husband, the wife spoke in Arabic to the husband by telephone, warning him that the documents were to be so delivered. 

4. There are two important things about the service in this case.  The first is that it occurred at the F library. The wife says in evidence today that that occurred by arrangement and it makes sense because to a very large degree, the evidence is deficient as to where the husband is currently living.  The second issue is that the husband told the wife that he had spoken to the police, who gave him advice not to sign for anything.  That seems consistent with the lack of evidence of any signature confirming receipt of the document.

5. I am satisfied that the husband has received the documents and that he has had an opportunity to attend here at court today and for reasons best known to himself, has chosen not to do so.  On that basis, I propose to proceed with the application in the absence of the husband and I do propose to give him leave to seek to set aside the orders in the event that the affidavit of service is somehow or other incorrect.

6. Turning then to the substantive application, the evidence is far from satisfactory but the wife says that had she known what she had to do, she would have provided a lot more historical information.  In this case, according to the documents, the wife and the husband were married in 1995.  The document says that they separated in July 2000 but her evidence today is that that is not entirely correct because there was a final separation in 2008.  All of that leaves me a little uncomfortable but because of the orders I propose to make, those problems may be overcome.

7. Having married in 1995, it is also said in the application that the parties commenced to live together in June 1991.  The first child of the relationship is T, who was born in August 1992.  The second child is K, who was born in April 1997.  The third child is S, who was born in December 2002. 

8. It seems that although the marriage occurred in Australia, the parties have spent a significant period of time of late in Lebanon.  Certainly they have lived there since 1997 and the separation seems to have occurred there.  The wife's evidence today was that she went to Lebanon to keep the children close to their father and they were trying to sort out their relationship but it has not worked.  She says that in June of 2008 she brought the children to Australia.  The husband remained in Lebanon.  I am not at all clear on the understanding of the husband at that time but needless to say he came to Australia about eight or nine days ago and has been seeing not only the children but also the wife.

9. The wife's affidavit says that the husband has made death threats.  There is no evidence in the affidavit about exactly what that meant.  However, she has told me today that he said to her at her house that she would die if she did not return to live with him.  She thought this was Wednesday or Thursday of last week.  That was at the time also when she told him she wanted to end the relationship and wanted a divorce. Her affidavit then says that he made threats to take the children away.  Her evidence in relation to that was that he said he would not be leaving the country without the children. 

10. In this case, there are passports for each child.  They are Australian passports.  Each passport is in the care of the wife.  To a very large degree, she says that her concern is that the husband may return to Lebanon and obtain Lebanese passports for the children and then he could snatch them away.

11. The problem is compounded, however, by the fact that T, who is now 16 years of age, is actually living with his father somewhere in a hotel or motel at the moment.  T has been convinced by his father that he wants to remain with his father and presumably return to Lebanon.  The relationship between T and the wife seems to have deteriorated substantially to the extent that the wife has told me that she would agree with what he wants to do if it is clear that that is the case. 

12. The problem at the moment is that T is identifying himself with his father.  I have indicated to the wife that if I was to make a passport watch order, then the children could not leave the country for any purpose.  Her application sought an order that the children not leave the country without her consent.  I have indicated that it is not appropriate for a court to make that sort of order because it places the Australian Federal Police in a position where they have to determine whether or not the order has been altered or whether in fact the consent is a genuine one.  In those circumstances, I have indicated I would not make the order.

13. I have also pointed out that if I make the order, then not only will T not be able to leave Australia but neither would the other children.  That order would not only apply in respect of returning to Lebanon with their father but also in the future with her, including for such things as holidays to a country other than Lebanon. 

14. It seems clear that the wife acknowledges T has the power to make his own mind up about what he wants to do and that is inconsistent with what he had previously said.  He apparently told his mother that he did not want her to allow the passports to be handed over, but he has somehow or other changed his mind.  In her affidavit the wife uses the word "brainwashed". 

15. I am not at all clear about what the husband's position is but it seems sensible to accept what the wife has now put to me, namely that T should be removed from the application.  It is a different situation with K and S who are both very young.

16. The evidence before me is that there is a threat and that the children may possibly be placed on Lebanese passports in the future, having regard to the fact that they have lived a significant period of time in Lebanon, and their father seems to reside permanently now in Lebanon.  I have no evidence about the nature of the relationship between those two children and their father.  I have got evidence, however, that the wife intends not to leave Australia and all of her extended family is otherwise here.  It seems to me that with the evidence, albeit vague, there is sufficient basis for me to be concerned about the husband unilaterally acting, notwithstanding the wife has the possession of the two passports.  In those circumstances, I will make airport watch orders in relation to K and S, but I will also give the husband an opportunity to be heard on the subject of these orders, providing he makes an application within the next 14 days to discharge the orders.

17. I also propose that these orders and my reasons in due course be served upon the husband.  It seems from the evidence that arrangements can be made for him to collect documents from a neutral party, I see no reason why he should not fully understand not only the orders but the reasons why I am making these orders.  If I am doing him an injustice by making the comments about the threat to the children, then he will have an opportunity to present himself to a court and be heard.  He has had that opportunity, on the basis that I have accepted that he has been served, but it was late last night and that may not have been sufficient time for him to gather not only his thoughts but to get some advice.  In those circumstances, it is appropriate to make the orders.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  8 January 2009