ELHAGE & ALFARSI
[2017] FamCA 650
•25 August 2017
FAMILY COURT OF AUSTRALIA
| ELHAGE & ALFARSI | [2017] FamCA 650 |
| FAMILY LAW – CHILDREN – Where application for discharge of Watch List order restraining father from leaving Australia – Where order in place for father to procure return of children to Australia from Iraq – Where no evidence that father has taken any steps to comply with such order – Where some doubt as to the mother’s circumstances – Where not appropriate to discharge order – Application dismissed. |
| Family Law Act 1975 (Cth) s 68 |
| Alfarsi & Elhage [2016] FamCa 428 |
| APPLICANT: | Mr Elhage |
| RESPONDENT: | Ms Alfarsi |
| FILE NUMBER: | PAC | 6203 | of | 2014 |
| DATE DELIVERED: | 25 August 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 11 August 2017 |
REPRESENTATION
| APPLICANT – SELF-REPRESENTED LITIGANT: | Mr Elhage |
| SOLICITOR FOR THE RESPONDENT: | Ms Hazim of Thurlows Family Lawyers |
Orders
That the father’s application filed 30 January 2017 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Elhage & Alfarsi 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 PARRAMATTA |
FILE NUMBER: PAC 6203 of 2014
| Mr Elhage |
Applicant
And
| Ms Alfarsi |
Respondent
REASONS FOR JUDGMENT
This is yet another interim application in these long running parenting proceedings.
A history of the proceedings is set out in Alfarsi & Elhage [2016] FamCa 428 as follows:
A History: The Federal Circuit Court Proceedings
5.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 have sole parental responsibility for the children;
b)That the children live with the mother; and
c)That the mother and father be restrained from removing the children from the Commonwealth of Australia and the children be placed on the airport family law watch list.
6.In the same application the wife sought urgent interim orders that:
a)The father be restrained from leaving Australia;
b)That the father sign all necessary documents so as to allow Australian passports to be issued for the children;
c)That the father forthwith facilitate the children’s return to Australia and that he be responsible for any costs in relation to the children’s passports, costs of the children’s flights to Australia and the cost of the flight of any person required to accompany the children to Australia;
d)That the children live with the mother; and
e)That upon the return of the children the father and mother be restrained from removing the children from the Commonwealth of Australia and the children be placed on the airport family law watch list.
7.On 23 December 2014 orders were made on an ex-parte urgent basis in summary as follows:
a)That the father be restrained from leaving the Commonwealth of Australia;
b)That the mother and father be restrained from removing the children from the Commonwealth of Australia;
c)That the children be restrained from leaving the Commonwealth of Australia and that their names be placed upon the airport watch list for a period of two years;
d)That the father do all things necessary to make arrangements for the children to be returned to the Commonwealth of Australia;
e)That the mother forthwith cause personal service to be effected on the father of her Initiating Application, her affidavit in support of interim orders and a copy of the orders made today;
f)That the father file and serve a Response and any relevant affidavit material by 9 January 2015.
8.The mother’s application was then listed before the Federal Circuit Court of Australia on 9 January 2015, and on that date there was no appearance by or on behalf of the father. The matter was adjourned for further directions to 3 February 2015.
9.On 3 February 2015 the father appeared in person. The court ordered that the mother file and serve within 21 days more fulsome affidavit evidence in support of the orders sought by her and that the father file and serve a response and any relevant affidavit evidence within 42 days. The matter was adjourned to 8 April 2015.
10.On 8 April 2015 both parties were represented and orders were made extending the time for the father to file his response and affidavit material to 30 April 2015. Interim orders were to continue. The matter was adjourned to 12 May 2015.
11.On 8 May 2015 the mother filed an application that the father be dealt with for contempt by reason of his failure to return the children to Australia as required by orders made on 23 December 2014. That application was later dismissed on 11 November 2015.
12.On 9 May 2015 the father belatedly filed a response to the mother’s application. In that response the father in summary sought orders as follows:
a)That the father have sole parental responsibility for the children;
b)That the children live with the father;
c)That the children live with the father in Canberra in the Australian Capital Territory or such other city in Australia as is agreed between the parties, that the children spend time with the mother as defined including alternate weekends, overnight in the off week and half of the school holidays; and
d)Various other specific issues orders not relevant for the present purposes.
13.On 12 May 2015 all applications were adjourned for further directions to 6 August 2015 with that date later being vacated and the matter being relisted before the court for directions on 8 October 2015.
14.On 8 October 2015, both parties on that day being represented, the court relevantly ordered:
a)Each of the applicant and respondent consents to [Ms O], the maternal grandmother of the children, having responsibility to collect the said children as soon as is possible and thereafter return those children as soon as possible to the Commonwealth of Australia; and
b)Any responsibility for costs arising from such order including the costs of any airfares are reserved for further determination.
15.On 12 November 2015 the court ordered:
a)The mother file and serve by 22 December 2015 an affidavit setting out steps taken to register the orders of 23 December 2014 with the Iraqi Consulate in Sydney;
b)An affidavit from the lawyer she has retained in [City Q], Iraq setting out steps taken to obtain registration of those orders and/ or orders of a properly constituted court in City Q together with certified translated copies of any orders issued by a properly constituted court in Iraq; and
c)An affidavit setting out steps to enforce any such Iraqi order;
d)The father shall on or before 22 January 2016 file and serve an affidavit from any paternal relative in Iraq attesting to the care that they had provided for the subject children and whether or not they have been contacted or been served documents from a properly constituted Iraqi court or government institution relevant to the children.
16.The proceedings were adjourned for interim hearing to 1 February 2016 to determine whether or not orders made on 23 December 2014 will be discharged as sought by the father or as to whether or not those orders will be retained and further orders made. The clear that it is appropriate that the father remain in Australia until such time as there can be a hearing, including a testing of evidence, on all relevant issues. It is also necessary that the father be on hand within this jurisdiction to facilitate the return of the children to the jurisdiction.
17.On 1 February 2016 Judge Dunkley delivered reasons for judgment as to costs arising from the dismissal of the mother’s contempt application. The application for costs by the father was dismissed.
18.The interim parenting issues were not determined on that day but proceedings were transferred to this Court with Judge Dunkley giving reasons for the transfer (Alfarsi & Elhage No. 2 [2016] FCCA 200 (unreported)) that included a useful summary of background facts:
2.On the ex parte application of the mother filed on 23 December 2014 the following ex parte orders were made:
That the father, [Mr Elhage] is hereby restrained from leaving the Commonwealth of Australia.
Each of the father and the mother are restrained from attempting to remove, or causing or permitting to be removed, [A] and [Z] from the Commonwealth of Australia.
The Australian Federal Police give effect to those orders by placing the father’s name and the children’s name on the watch list.
That the father is directed to forthwith do all things, give all consents and make all arrangements for the children [A] and [Z] to be returned to the Commonwealth of Australia.
3.At the time of the making of those orders it was submitted on the mother’s behalf that the children were resident within the Commonwealth of Australia at a location unknown to her in the care of the father.
4.In fact, the children had left the Commonwealth of Australia in the care of the father on or about 29 September 2014 and travelled to Iraq where the children have remained since.
5.There is an issue between the parties as to whether or not the children have left the Commonwealth of Australia and changed their place of habitual residence. This is relevant because there was made on behalf of the father, today, a challenge to the jurisdiction of the court. The father having always previously submitted to the court’s jurisdiction.
6.It is the mother’s case that she believes Australian passports for the children, who are Australian citizens, were obtained by fraud. She says she signed no documents to enable Australian passports to be issued for the children.
7.It is the father’s case that with the mother’s knowledge and consent he removed the children at her request to Iraq so as to ensure their personal safety given incidents that were happening in the household of the mother.
8.A s.112AP application was filed by the mother and determined by me and, for reasons previously delivered last year, dismissed because the mother could not prove that the father was in flagrant disregard of the orders made on 23 December 2014 notwithstanding that the children remained in Iraq.
9.The mother has travelled to Iraq on or about 2 October 2015 in an attempt to recover the children. She was unsuccessful in that attempt. At the time that she went to Iraq she believed that the children were in the care of the paternal grandmother. On arriving in Iraq with the assistance of persons in Iraq she determined that the children were not in the care at the time of her arrival, of the paternal grandmother.
10.It is the father’s case that the mother’s uncle now has the care of the children in Iraq.
11.The father first became aware of the orders make (sic) on 23 December 2014 when he was served with them on 3 February 2015, although he had some knowledge that the orders were in place because he had attempted to leave the Commonwealth of Australia in January 2015 and had been prevented at the airport from doing so.
12.The father remains unable by the orders made on 23 December 2014 to leave the Commonwealth of Australia. He says that he wants to do so, so as to collect the children and return with them to the Commonwealth of Australia.
13.It is the mother’s case that if the restrictions on the father’s travel are lifted he will remain in Iraq and not return. She suggests that he has sold property in Australia, and she suggests that those proceeds have been transferred to a place unknown to her.
14.The case was listed today for interim hearing essentially to determine whether the travel restrictions as and against the father made on 23 December 2014 should be discharged or retained.
15.Such is the conflicting evidence and such is the importance of this case as to the welfare of the children that the findings that are necessary to be made to determine that issue cannot be made at interim hearing.
16.There will need to be a hearing in which the parties’ evidence is tested by cross-examination, and in which witnesses can give evidence and be cross-examined, and at which documents can be subpoenaed and produced and examined. At an interim hearing such would be the irresolvable conflicted evidence justice could not be done in determining the important issues.
17.Further today, the jurisdiction of the Court has been raised.
18.What we know is that the children are currently in Iraq. We know that Iraq is not a Convention country. The children are not present in Australia and have not been since September 2014.
19.The issue of whether their habitual residence has ceased to be in Australia by virtue of the agreement that is alleged to have been reached between the father and the mother on his case, or whether or not they were removed from their residence in Australia by act of the father alone remains unresolved but is an issue that requires determination.
20.The determination of these facts has a dual purpose. It relates to the jurisdiction issue the father has belatedly raised. It also intersects with the capacity to enforce orders in Iraq.
21.The complexities in the case dictate that this case should be determined in the Family Court, and the proceedings are transferred to the Family Court of Australia to be heard on a date to be advised.
The Family Court of Australia
19.The proceedings were first listed before the Court on 15 March 2016. The preliminary question as to the Court’s jurisdiction in relation to the children was raised. The discrete issue was adjourned for hearing to 18 May 2016 and was heard on that day with judgment reserved. As best as can be understood the father’s challenge to jurisdiction firstly contends that the children are habitually resident in Iraq and secondly that it is Iraq and not Australia that has jurisdiction to make parenting orders. The father’s contention appears to ignore the premise in s 69E that, regardless of the habitual residence of the children (which is very much a live issue in this case), proceedings can be instituted here based on the presence of either parent in Australia and their Australian citizenship.
On 2 June 2016 the father’s application for dismissal for want of jurisdiction was dismissed.
The mother on 12 December 2016 made application for the extension of the watch list order restraining the father from leaving Australia. The watch list order was extended for a further two years (until 23 December 2018). Reasons for judgment included:
6.The father appears today through his solicitor, Mr Mando, who says that the father opposes the orders sought by the mother and seeks a dismissal of her application, yet he has filed no Response nor any affidavit in support of that dismissal.
7.Section s 68B of the Family Law Act 1975 provides that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child.
8.In all of the circumstances, it is patently clear that it is appropriate in the circumstances where the subject children remain overseas contrary to Court orders and the father steadfastly appears to be incapable or refusing to make arrangements for their return to Australia to extend orders seeking to facilitate the children’s return.
The present application
The father did not appeal that order (or any other orders previously made in the proceedings) but on 30 January 2017 filed a further Application in a Case seeking to have the watch list order lifted so as to allow him, should he wish, to leave Australia.
His affidavit in support asserts that the mother “went overseas and she got married and there not coming back to Australia” (sic).
The father’s application is supported by affidavits of both maternal grandparents (from whom it is common ground the mother is estranged). The maternal grandfather attests as to being “aware” that the mother has travelled to Iraq to marry and she is residing in Iraq with her new husband. He also attests to being “aware” that she intends to live in Iraq. There is no source of their knowledge identified.
The maternal grandmother asserts that she was told by the mother that she intends to live in Iraq with her new husband. The maternal grandparents then sought to have the mother’s legal aid grant cancelled without reference to the mother’s solicitor.
Department of Immigration records reveal that the mother left Australia on 19 September 2016 and returned on 14 October 2016. She again departed Australia on 14 November 2016 and has not returned.
The mother’s Response
The mother’s solicitor ultimately filed a Response to the father’s application on 9 August 2017. It was supported by the solicitor’s affidavit. The solicitor was informed by the mother that she was travelling to Iraq on 14 November 2016. The solicitor deposed to the mother being clearly distressed at the children’s circumstances and travelling to Iraq for the purpose of obtaining the return of the children.
Ten days later the maternal grandmother contacted the solicitor’s office advising that the mother had travelled to Iraq to resettle, had remarried and was not returning.
The solicitor later received information that led her to believe that the mother was being held against her will in Iraq. The solicitor holds grave fears for the mother. She has reported the mother’s circumstances to the Australian Federal Police and the Attorney Generals Department.
The solicitor has had no contact with the mother since November 2016.
The father’s contentions
In his submissions the father informed the Court that the children were indeed in southern Iraq residing with the paternal grandmother in her house in City Q. He further informed the Court that his mother owns her home and it is she and the children who reside there.
He further asserted that his mother could not accompany the children to Australia as “she was not Australian”.
When pressed as to why she could not come on a visitor’s visa he then asserted that his mother was in such ill health she could not travel. There is no evidence supporting that contention. Yet it appears she is able to care for two young children now aged eight and six.
The father has made no effort to procure the return of the children as ordered. It appears he is in possession of the children’s passports that were issued to the mother. How he came to be in possession of those documents must be concerning.
The father promotes no reason why he wishes the watch list order to be revoked other than it would facilitate him returning the children to Australia. He proffers no security for the safe return of the children should he be permitted to depart. He retained some $200,000.00 from the sale of the parties’ home. Those funds or part thereof were not offered as security.
His application overall must be regarded with great circumspection and suspicion. He proffers no reason why an agent appointed by him could not accompany the children back to Australia.
There are concerns as to the mother’s whereabouts presumably in Iraq and the circumstances of her remaining there.
Section 68B of the Family Law Act 1975 (Cth) provides that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child.
In all of the circumstances, it is patently clear that it is appropriate in circumstances where the subject children remain overseas contrary to Court orders and the father steadfastly appears to be incapable of or refusing to make arrangements for their return to Australia to continue the watch list order.
Should he return the children to Australia and should the mother not be present in Australia he may make further application.
The father’s application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 August 2017
Associate:
Date: 25 August 2017