Haddad and El-Haddad & Anor

[2011] FamCA 156

FAMILY COURT OF AUSTRALIA

HADDAD & EL-HADDAD AND ANOR [2011] FamCA 156

FAMILY LAW - INJUNCTIONS - Ex parte and interlocutory - Restrain party from leaving Australia

Family Law Act 1975 (Cth)

APPLICANT: Ms Haddad (mother)

1^ST RESPONDENT: Mr El-Haddad (paternal grandfather)

2^ND RESPONDENT: Mr F (father’s brother)

FILE NUMBER: PAC 5295 of 2010

DATE DELIVERED: 7 February 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Johnston J

HEARING DATE: 7 February 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Nikopoulos of JN Legal, Solicitors

FOR THE 1^ST RESPONDENT: No appearance

FOR THE 2^ND RESPONDENT: No appearance

Orders

IT IS NOTED:

A.That the respondents have not had any opportunity to present any evidence in reply.

B.That the Court considers this matter is one where some urgent action is appropriate and for this reason these orders are made ex parte.

C.That these orders are made on the basis that the mother gives the usual undertaking in relation to damages through her solicitor.

IT IS ORDERED:

1. That these proceedings are adjourned to before Justice Johnston at 10:00 am on 15 February 2011.

2. That a sealed copy of the application, material in support and of these orders be served on the respondents as soon as possible.

3. That until 6:00 pm on 15 February 2011 the mother, Ms Haddad shall have sole parental responsibility for the children M born on … December 2002 and H born on … June 2005 and the children shall live with her.

4. That pending further order Mr F is restrained from leaving Australia and all officers of the Australian Federal Police are requested to assist in the implementation of these orders.

5. That the Australian Federal Police forthwith enter the details of Mr F into the Watch List in operation at all Australian international departure and arrival points and be maintained in such Watch List pending further order.

6. That both parties are given leave to re-list these proceedings on short notice to be re-listed before Justice Johnston if reasonably available.

IN CHAMBERS

1. That the Court requests the Registry Manager to arrange an Arabic interpreter, Lebanese dialect, to assist the mother at 10:00 am on 15 February 2011.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5295 of 2010

Ms Haddad

Applicant

And

Mr El-Haddad

1^st Respondent

And

Mr F

2^nd Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings which relate to the children, M who was born in December 2002, and H who was born in June 2005.  The children are therefore eight years of age and five and a half years of age respectively.

2. The parents of these children are Mr L and Ms Haddad and for convenience I shall refer to them as “the father” and “the mother”.  Sadly the children’s father died a couple of years ago.  So the contest in these proceedings is between the children’s mother, Ms Haddad, the children’s paternal grandfather, Mr El-Haddad, and the children’s uncle, Mr F.

3. The parties were married in Lebanon on 4 March 2000 and they subsequently migrated to Australia.  The mother arrived on 1 August 2000 on a spouse visa.  As I have said, sadly the children’s father died and that was on 26 July 2009. 

4. The father’s brother - that is the children’s uncle, Mr F, informed the mother that the father’s family wanted to have the father buried in Lebanon.  The mother agreed and she went there with the children and the father’s brother, Mr F, for the purpose of attending the funeral.

5. Approximately a month after the funeral, while the mother was still in Lebanon, the children’s uncle asked the mother to give him a power of attorney to enable him to deal with her home in Australia.  The mother said that he was controlling in his manner towards her and he would not let her read the power of attorney.  She signed the power of attorney on 5 August 2009.  She suggested that she only did so under duress.  Then the father’s brother, Mr F, returned to Australia.

6. At the end of August 2009, the children’s paternal grandfather informed the children’s mother that the children would be staying in Lebanon and that she could not take them back to Australia.  The children’s paternal grandfather indicated that he wanted her to live in Beirut so the mother commenced living in Beirut in a home unit that was provided for her by the family.

7. In November 2009, Mr F asked the mother to sign a second power of attorney.  The mother said that she felt that she had no choice about this and that she did so.  She said that Mr F said to her after she did this, “Now we have everything from you.  You can leave and do not come back.”  The mother said that she was asked to leave the unit.  It was made clear to her that the children’s paternal grandfather would not permit the children to leave Lebanon.

8. The mother went to live with her father in South Lebanon.  She said that on 12 November 2009, the paternal grandfather threatened to harm her family if she did not comply with his requirements. 

9. On 3 April 2010, the mother went to the children’s school in Lebanon obviously for the purpose of trying to contact the children.  She had been in the habit of going to the school and making some observations of the children attending school:  One could understand in the circumstances her sense of compulsion in doing so.  But on 3 April 2010, when momentarily she was reunited with her children, the principal at the school asked her to come in to an office at the school and then the principal informed her that the children’s paternal grandfather had custody of the children.  That was the last time the mother saw her children. 

10. She returned to Australia in August 2010 and she has been endeavouring to have something done about this since that time.

11. This is a matter where, in my view, this Court ought to offer the mother some urgent assistance.  It is a matter where, in my view, the Court should make some orders ex parte because it appears to be a very serious situation.  If the respondents to these proceedings are served, the mother is fearful that the matter can only become more complicated and in fact the children’s uncle, Mr F, who is really the only direct connection in this country with the children in Lebanon, might well flee. 

12. I accept that apprehension as being a reasonable one in all the circumstances.  If I was to put in place some injunctions to restrain Mr F leaving Australia for a short period and permit him opportunity to come into the Court in the meantime and seek some other order, I would not regard that as a very real prejudice to him in all of the circumstances.  And not in circumstances where there appears to be a very serious issue before the Court.

13. The mother seeks orders, at least on an interim basis, that she be given the sole parental responsibility for the children and an order that the children live with her.  It seems to me that they would be appropriate orders to put in place, at least for a short period. 

14. The mother also seeks orders to the effect that Mr F be restrained from leaving Australia.  I propose to make such orders to continue for a short period.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 7 February 2011.

Associate:     ___________________

Date:              8 March 2011