Hajjar and Mehraal (No 2)

[2012] FamCA 1125

FAMILY COURT OF AUSTRALIA

HAJJAR & MEHRAAL (NO 2) [2012] FamCA 1125

FAMILY LAW – International Hague Network of Judges – communications between Australia and the United Kingdom – ISS (the organisation) – mother ceased to participate in parenting proceedings - final parenting orders made in favour of father

APPLICANT: Mr Hajjar

RESPONDENT: Ms Mehraal

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr M Finn

FILE NUMBER: MLC 10523 of 2009

DATE DELIVERED: 28 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 28 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Macgregor Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER McKean Park

Orders

IT IS ORDERED THAT:

1.The father have sole parental responsibility for the children F born … August 1997, S born … February 2001 and T born … September 2002 (“the children”).

2.The children live with the father.

3.The children spend time and communicate with the mother at such dates and times, under such conditions, and by such means as may be agreed upon between the parties from time to time.

4.Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

5.The passports of the children currently held by the Court be released to the father and any Watch List order affecting the children (or any of them) be and is hereby discharged and IT IS REQUESTED that the Australia Federal Police remove the names of the children F born … August 1997, S born … February 2001 and T born … September 2002 from the Airport Watch List at all points of international arrivals and departures in Australia.

6.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file.

IT IS DIRECTED:

7.That a Registrar of this Registry of the Court send a copy of this Order, my reasons delivered this day and the Parent and Issues Assessment dated 5 October 2012 to the following persons:-

a)      The lawyer to the Head of International Family Justice for England and Wales; and

b)     If possible, to Justice Baker of the High Court, Royal Courts of Justice, London.

IT IS FURTHER ORDERED THAT:

8.The appointment of the independent children’s lawyer be discharged.

9.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 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 Family Law Act 1975 (Cth).

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. This matter comes before me where the mother has not participated in any Court proceedings for 18 months and the father seeks some finality in relation to parenting orders for three children, F, born in August 1997, S, born in February 2001 and T, born in September 2002.

2. I received notice of this family by a communication through the International Hague Network of Judges in July 2011.  I was contacted, in correspondence which is now common to all parties, by the office of Lord Justice Thorpe, the Head of International Family Justice for England and Wales with a request for assistance for the mother to be put in touch with her children who were in Australia.  This was not my first involvement in the case. My earlier involvement includes a decision in State Central Authority & Hajjar [2010] FamCA 648 which related to an application under the 1980 Hague Convention brought at the behest of the mother for the children to be returned to the United Kingdom.

3. When the matter came back to me on 26 July 2011, proceedings were then extant were actually before the Federal Magistrates Court which deals with the majority of trial work in family law.  Subsequently, those proceedings were transferred to this Court, where they have remained and it is those proceedings which I will finalise today.

4. A brief history of the matter is that the mother and the father married in Africa in 1996 and had three daughters.  They separated in England.  There were proceedings involving protective services in England.  The children were placed in the care of the father.  Unbeknownst to the mother and without her consent, the father removed the children from England on 28 May 2006 with the effect that the children have not seen or had contact with their mother, nor she with them, since May 2006.  As best I recollect, the father took the children to various countries and finally came to Australia where the children have resided since 2009 or 2010. 

5. On 3 July 2006 the mother commenced wardship proceedings in the court of competent jurisdiction in England and an order was made by Cryan J, to the effect that the father’s removal of the children from England had been wrongful within the terms of the 1980 Convention. 

6. Between July 2006 and November 2009 the mother had only very limited information as to the children’s whereabouts and could not, in fact, locate them.  She travelled to Africa in 2007 to search for them, without success.  It appears that the children continued to reside in Africa until about August 2009. 

7. The father moved the children to Australia sometime between August and October 2009 in the company of his new wife who has Australian citizenship. Still the children’s whereabouts were unknown to the mother.

8. In October 2009 the mother received a letter from the Australian Child Support Agency in relation to her liability for child support.  She was then able to ascertain that the father and the children were indeed in Australia.  There shortly followed proceedings under the 1980 Convention, seeking the return of the children to England.  That matter came before me for hearing on 27 April 2010 and was ultimately unsuccessful.  I found that the removal had been wrongful but that the children were settled in Australia.  The application for return of the children was dismissed.

9. In my reasons for judgment I recited a fairly careful proposal by the father for what time the children should spend with the mother in the event that they were to remain in Australia.  Unfortunately, nothing came of the proposal and the children have still not seen the mother since the father’s removal of them from the United Kingdom in May 2006.

10. In 2011 the father applied to the Federal Magistrates Court for parenting orders. He seeks sole parental responsibility in relation to the children.  In the meantime, the mother revived proceedings before the courts in England in an effort to achieve some resumption of contact with her children.  The father was represented in the English proceedings by a firm of solicitors located there.

11. On 23 March 2011 there was a hearing in the Federal Magistrates Court in Australia.  The mother did not attend.  An interim residence order was made for the three children to reside with the father and for there to be telephone communication twice weekly between the mother and the children.  The issue of future contact between the children and the mother was adjourned.

12. On 5 May 2011 the mother’s application in the United Kingdom came before Baker J, sitting in the High Court of Justice, who subsequently approached Lord Justice Thorpe’s office with a view to an Australian court being asked to assist in resolving the issues of contact between the mother and the children.  I was then advised by Lord Justice Thorpe’s office that Baker J had even indicated a willingness to communicate directly with the Australian court to identify how best to resolve the issues.  It was hoped that direct communication and cooperation between the English and Australian judges may lead to a resumption of contact.

13. Following the communication, the Federal Magistrates Court proceedings were transferred to this Court and listed before me on 13 July 2011. Mr Finn was appointed as independent children’s lawyer pursuant to an order made by me on 1 July 2011.  His role is to form an independent view based on available evidence of what is in the best interests of the girls and then act in these proceedings in what he believes those best interests to be.  Mr Finn is not a legal representative retained by the girls and he is not bound by any instructions from them.  The role of an independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the girls are fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence, significant matters for the purpose of properly drawing those matters to the Court’s attention.  The independent children’s lawyer is also under a specific duty to take steps to minimise, for each of the children, the trauma associated with the proceedings and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.

14. The hearing on 13 July 2011 was convened outside normal court hours between this Registry in Melbourne and the Royal Courts of Justice in London, at which the mother and father were present.  Ms McGregor appeared for the father.  Ms Cooke, solicitor, appeared pro bono for the mother and Mr Eidelson of counsel, appeared for the independent children’s lawyer, who was Mr Finn. There was an interpreter.

15. As best I recollect, an early step in the proceedings was to ascertain which school the children attended and to obtain some photographs of the children which might be sent to the mother.  The independent children’s lawyer, in conjunction with the family consultants (psychologists and social workers) employed by this Court, did so prior to 13 July 2011. 

16. At the hearing on 13 July 2011 the Court had the benefit of receiving evidence from a senior family consultant, Ms B, to the effect that she had been in contact with International Social Service (ISS) who were prepared to facilitate time between, or communication between the mother and the children but sought that each parent attend an intake interview.

17. My impression of the mother, at the hearing on 13 July 2011, was that she laboured under a deep but erroneous suspicion that ISS here equated to protective services in the United Kingdom.  That is, that in engaging with ISS in England she might be leaving herself open to some form of prosecution from protective services which, as best I recollect, had been extensively involved with the family post-separation in London.  I said what I could to allay her concerns but as matters have turned out I’m not satisfied that I was, in fact, successful.  ISS is, of course, an international organisation which provides support and legal assistance to families who live across borders including families experiencing international parental child abduction. ISS Australia is the independent Australian arm of the ISS international network and is an independent, not-for-profit, non-governmental organisation without any religious or political affiliation.

18. Subsequently, the father cooperated with the intake procedure for ISS in Melbourne and attempts were made to get into contact again with the mother.  Those attempts at contacting the mother were completely unsuccessful and even those who acted for her could not obtain any instructions from her. 

19. At a hearing on 28 March 2012 I was advised that the father and children had completed the intake procedure at ISS in Melbourne some months ago but the mother had failed to engage with the equivalent ISS office in London and her solicitors in London could not get instructions and then ceased to act.  I was informed that on 7 November 2011 ISS attempted to contact the mother.  On 11 November 2011 her solicitors ceased to act on her behalf.

20. Any correspondence sent to the mother was not returned.  To date, the mother has, for all intents and purposes, vanished and is not accessible to this Court or to ISS. It is in this context that the father seeks final orders. 

21. This is a Court of private law where one party does not seek to prosecute an application before it or a response.  It is not up to the Court to prosecute it on their behalf.  In this case I have fairly extensive knowledge of the children, at least since 2010, and quite some knowledge about their living circumstances. 

22. I am satisfied that it is in the best interests of the children to formalise their living arrangements with the father and that he be in a position to exercise sole parental responsibility in relation to them.  This is largely because the mother has not been involved in either the proceedings or the parenting of the children.

23. Likewise, the order that the children live with the father should become a final order.  In saying this, I stress that parenting proceedings are never final, in as much as proceedings can be re-opened and orders and arrangements changed in order to meet the then circumstances of the children.  That is the case here.  In the event that the mother does wish to come forward and seeks orders from the Court, then she will be able to make that application.

24. Mr Finn, the independent children’s lawyer, further advises me that even absent any proceedings being instituted in a court exercising family law jurisdiction in Australia or in the United Kingdom, ISS have informed him that they would assist the mother to re-establish some communication with the children.  That is, if the mother comes forward and contacts an ISS office, then they will do what they can to facilitate and mediate some arrangement whereby the mother can communicate, if not, see the children and that is without any need for Court proceedings.

25. In spite of having some knowledge of the children’s circumstances prior to being prepared to finalise these proceedings, I did order that a parent and children’s issues assessment be made by the family consultants employed by the Court.  That was done and is dated 5 October 2012 and has been released to the parties (although probably not read by the mother).  It’s an informative document. I have regard to it. It indicates that F is expressing a keen desire to communicate with her mother and the other children are prepared to communicate with the mother. 

26. I accept the evidence in the parent and children’s issues assessment and give weight to it in determining to grant the orders sought by the father. 

27. It is appropriate to report on the outcome of these proceedings to Lord Justice Thorpe’s office and, if possible, to Baker J himself.  The documents that should be sent to the United Kingdom are a sealed copy of this order, these reasons and the parent and children’s issues assessment dated 5 October 2012.

28. Finally, I acknowledge the invaluable assistance of ISS in matters such as this. ISS steps into the breach when no others have the structure or wherewithal to provide a necessary service internationally.  ISS deals with practitioners and parents but it works for the benefit of children in difficult cases such as this case.

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

Associate: 

Date:  25 January 2013