Hajjar and Mehraal

[2012] FamCA 361

FAMILY COURT OF AUSTRALIA

HAJJAR & MEHRAAL [2012] FamCA 361

FAMILY LAW – CHILD ABDUCTION - HAGUE CONVENTION - International Hague Network of Judges – Parenting matter- Unopposed – International Social Service

APPLICANT: Mr Hajjar

RESPONDENT: Ms Mehraal

INDEPENDENT CHILDREN’S LAWYER: Mr M Finn

FILE NUMBER: MLC 10523 of 2009

DATE DELIVERED: 28 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 28 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gurpinar

SOLICITOR FOR THE APPLICANT: Macgregor Solicitors

COUNSEL FOR THE RESPONDENT: Ms Cooke

SOLICITOR FOR THE RESPONDENT: Tolhurst Druce & Emmerson

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Finn

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

McKean Park Solicitors

Orders

IT IS ORDERED THAT:

1.Pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court:-

a)      The father is to attend at Level 5 of this Registry of the Court at a date and time to be notified by the Director of Court Counselling of this Registry of the Court;

b)     The mother attend electronically at a date and time to be notified by the Director of Court Counselling of this Registry of the Court;

c)      The father be responsible for bringing the children F born … August 1997, S born … February 2001 and T born … September 2002 to the Registry at a date and time to be notified by the Director of Court Counselling of this Registry of the Court;

d)     The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant;

e)      A place be reserved in the child-minding section of the Court for the children and it be maintained for them throughout the day of their appointment;

f)      The Family Consultant may appoint further interviews for the parties and the children; and

g)      It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court.

h)     It is requested that the family consultant notify my Associate when the Children and Parent Issues Assessment has been released to the parties.

2.I adjourn this matter to a date to be fixed by my Associate upon receipt of the parenting and issues assessment.

3.The reasons for judgment this day be transcribed and, when settled, copies be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hajjar & Mehraal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10523 of 2009

Mr Hajjar

Applicant

And

Ms Mehraal

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

ex tempore

1. These proceedings concern the children F born in August 1997, S born in February 2001 and T born in September 2002, who are living in Australia with the father.  The mother is living — as best I understand the situation — in London at … C Street.

2. The matter initially came to my attention via a communication through the International Hague Network of Judges, as a concern raised by a judge in England about the mother not having any form of electronic or other communication with the children, who were by then living in Australia. The father had instituted proceedings, by application filed in the Federal Magistrates Court, for parenting orders. Those proceedings, which are not yet finalised, were transferred to my list for management. For reasons which I set out below, it appears that those proceedings will now be unopposed.

3. After the Federal Magistrates Court proceedings were transferred to me there were a series of mentions and small court hearings. An Independent Children’s Lawyer was appointed. The Court’s expert counselling section, Child Dispute Services, assessed the case and the children were interviewed directly. Contact was made with their schools and with the mother. The family consultant recommended that assistance be sought from International Social Service, Melbourne (“ISS”). The family consultant participated in a hearing conducted by video link between this Registry of the Court and London, with this court sitting out of usual court hours.

4. There were some initial hiccups with the engagement of ISS but by approximately August last year the father had commenced to engage with ISS in Flinders Street, in Melbourne. The children had either been to an intake interview, or one was organised.  In any event, the intake procedures, from the perspective of the father’s household, were undertaken and completed.

5. By 7 November 2011 the mother was due to be in contact with ISS in London, which was coordinated by International ISS in Melbourne.

6. On 11 November 2011 the mother’s solicitors in London ceased to act for her, or notified of their intention to do so.  This is most unfortunate, because it was anticipated that the children would — either on, or shortly after that date — be having contact or communication via Skype with the mother.

7. Today the matter is listed by way of case management, to find out whether it is still a matter which needs to remain in my active docket. 

8. Unfortunately, everyone seems to have lost all means of communication with the mother.  Ms Cooke, of counsel, is no longer instructed by the firm of English solicitors, and considers that she holds a pro bono brief for the mother.  She tried twice to contact the solicitors in London, but it was confirmed on 15 February 2012 that they had closed their file in the mother’s matter on 20 November 2011.  They confirmed with Ms Cooke the current postal address of the mother, which was … C Street, London … . 

9. Ms Cooke had, in November 2011, sent correspondence to the mother, enclosing school reports for the children.  On 15 February she sent further correspondence to the mother at the address given by the solicitors. 

10. On 20 March she sent further correspondence to the mother, raising as a significant concern that she was not able to have any contact with the mother, and seeking a means by which she could do so.

11. Ms Cooke has not been contacted by the mother; she has no other means of attempting to contact her client.  Interestingly, none of the correspondence which was sent by prepaid post has been returned to Ms Cooke.

12. Mr Finn is the Independent Children’s Lawyer in the matter.  From his perspective, he says that, as matters stand, the father did eventually do everything that was requested of him, personally, and for the children, to put the children in contact with the mother by Skype.  Mr Finn submits that the communication has been stymied and has not progressed in any real sense because of the mother’s disengagement with it.

13. As far as the father is concerned, Ms Gurpinar appears on his behalf today.  The father seeks to press his application for sole parental responsibility and that the children live with him.  He is open to the Skype communication, but at the moment doesn’t see that it is practicable, given that he has no means of communicating with the mother. 

14. I will not take the issue of Skype communication any further.  I will ensure that a copy of these reasons for decision is sent to Lord Justice Thorpe’s Chambers for forwarding to our colleague in England, who initiated the inquiry on behalf of the mother.

15. In relation to the parenting application, it should be progressed, but Ms Gorpinar concedes that there is no great urgency.  That said, it is not a matter which should be taking up Legal Aid funding or time, so we should deal with it as soon as practicable, and for as reasonable amount of money as possible.

16. I will order a Section 11F Children and Parent Issues Assessment. That can take place at the convenience of child dispute services, so I won’t set a return date for it. It is unlikely that the mother will engage. If Ms Cooke has any means of contacting the mother, or the Independent Children’s Lawyer has any such means — and they obtain an address for her — they should immediately forward it to child dispute services so that the mother can be linked into the assessment process, hopefully by video.

17. If the mother is not contactable, and does not participate in the assessment, I seek from the family consultant that he or she make thorough enquiries of the children with third parties, such as schools or agencies with which they are involved, and documents his or her findings and information received. 

18. When the Children and Parent’s Issues Assessment is to hand, my Associate will set a date for the matter to be dealt with, on a final basis.  In the event that the mother has not participated in the proceedings, at that point the matter may well proceed on an unopposed basis.  In the event that the mother seeks to participate, she should come forward sooner rather than later.

19. Parenting orders are, of course, never final in the sense that, on showing a change of circumstances, any order may be altered if the Court concludes that it is in the best interests of a child to do so.  However, the children are deserving of some degree of finality.

20. If the mother does not seek to be heard or to participate in the proceedings following the release of the Children and Parent’s Issues Assessment, she should expect that the matter will proceed when it next comes before me and final orders may be made without any input by her or on her behalf.

21. That concludes the reasons for judgment. 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 28 March 2012.

Associate: 

Date: