Haman and Holran

[2007] FamCA 1723

FAMILY COURT OF AUSTRALIA

HAMAN & HOLRAN [2007] FamCA 1723

FAMILY LAW – CHILDREN – With whom a child lives – Matter proceeded undefended as the mother had abandoned the child and left the jurisdiction – Orders made for the child to live with the father and for sole parental responsibility to the father

Family Law Act 1975 (Cth) ss 61DA,

APPLICANT: Mr Haman

RESPONDENT: Ms Holran

FILE NUMBER: MLF 518 of 2006

DATE DELIVERED: 17 September 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 17 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mansfield

SOLICITOR FOR THE APPLICANT: Middletons

Orders

In the matter of Haman & Holran, I order as follows:

1. The husband have the sole parental responsibility for making all major and day-to-day decisions with respect to the child … born … February 2006.

2. The said child live with the husband.

3. All questions of the child spending time or communicating with the wife be by agreement between the parties or order of the Court.

4. The relevant officer of the Department of Foreign Affairs and Trade be and is hereby requested to issue a passport for the child … born … February 2006 to the husband for the purpose of 7A(2)(b) of the Passports Act 1938 notwithstanding the wife’s lack of consent thereto.

5. All applications be otherwise dismissed.

6. The husband cause a sealed copy of this order to be served on the wife as soon as practicable by facsimile transmission to her solicitor in Lebanon.

7. Liberty be reserved to the wife to apply to vary or set aside these orders by application to be filed and served within 42 days of service in accordance with paragraph 6 hereof, any such application to be supported by an affidavit explaining the wife’s non involvement in the proceedings this day.

8. The proceedings be otherwise removed from the list of cases awaiting hearing.

9. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 518 of 2006

MR HAMAN

Applicant

And

MS HOLRAN

Respondent

REASONS FOR JUDGMENT

1. These proceedings have been heard on an undefended basis in the Judicial Duty List.  The father has been represented by counsel; there has been no appearance for the mother.

2. On 3 August 2007, a registrar made orders for service of documents giving notice of these proceedings and reserving liberty to apply to the father to proceed on an undefended basis to the mother.  That has been complied with, as sworn to by an affidavit by an employee solicitor of the father's solicitors.

3. I am satisfied on the basis of that affidavit, together with the facts which I shall shortly relate, that it is appropriate and in particular in the subject child's interest to proceed undefended, which I now do.  The affidavits before me are the affidavits to which I have just referred, together with the affidavit of the father sworn and filed on 15 August 2007. 

4. There is also an amended application for final orders filed on the same date, and minutes of proposed orders in similar terms have been produced on behalf of the father by council.  I have read all those documents, they are unchallenged, and they seem to be consistent and, in accordance with the usual practice, I accept the material in those affidavits which persuade me of the following facts. 

5. The father is aged 31 years, the mother is aged 28 years.  The parties married in June 2004 and separated in December 2005.  There is one child of their marriage, …, born in February 2006, presently aged a little over one and a half years.  She is the subject of these proceedings.

6. The parties met in their native Lebanon in June 2003 and commenced a relationship shortly afterwards.  They became engaged in December 2003.  The father travelled to Australia at the end of 2003 and returned to Lebanon in June 2004.  The marriage to which I have already referred was celebrated in Lebanon.  The mother relocated to Australia in October 2004 and was granted entry on a marital spousal visa.  They lived at a property at M.  The father was employed in, what is referred to in the affidavit material as, an "[…] retail outlet", I presume, "[…] retail outlet", which had been owned by him for several years prior to the marriage.

7. The parties began to experience difficulties in their relationship after they had been living in Australia for approximately two months.  Those difficulties did not improve and a separation took place as I have already found.  Prior to that separation the mother was expecting the parties' child.

8. The main issue between the parties appears to have been the mother's wish to travel to Lebanon with the child.  She told the father that after giving birth she wanted to return to Lebanon with the child and remain there for an unspecified period.  The father did not agree with that course but offered to sell his business and travel with the mother and child to Lebanon for an extended family holiday.  In turn the mother did not agree with that proposal.

9. Following the separation, the parties had three lengthy discussions with regard to their relationship and the impending birth. They attempted to resolve matters, both between themselves and with the assistance of friends, but failed to do so.

10. Ultimately, the matters not having resolved, on 18 January 2006 the mother threatened the father by saying, "You will never see the child."  She sought that the father sign a passport application for the child after her birth which he refused to do.  He was particularly concerned that Lebanon, to which the mother proposed returning, is not a party to the Hague Convention and he was fearful that he would be denied his relationship with the child.  On 31 January 2006, the mother consented to an order that she provide her passport to this court pending further order. 

11. Following the child's birth, the parties reconciled for a short period of time.  They were assisted by their respective families, including the mother's parents who were visiting Australia from Lebanon.  However, they were unable to resolve, what is referred to in the affidavit as their "martial", I presume "marital", problems on a long-term basis, and once again the marriage broke down irretrievably.

12. The mother again sought to return to Lebanon to which the father refused to consent.  The mother filed an application on Form 2 on 5 April 2006 for the release of her passport.  The father consented to the mother collecting her passport on the basis that the child would not travel with her to Lebanon.  Following that release the mother and child stayed with a friend for approximately two weeks, but in or about late April 2006 the father received a telephone call from the mother.  The mother asked him to collect the child and look after her.  The mother refused to tell the father what her plans were, and the child has remained in the father's care since that date, that is a period of a little less than 18 months.

13. The mother left Australia on 2 May 2006.  Since she left there has only been one direct contact between the mother and the father, [?] at which time a discussion took place between them which did not relate to the child's care.  The mother has not attempted to contact the father, either by telephone or email, since their conversation on 6 May 2006, and she has not had any contact whatsoever with the child.

14. The parties received an interim order, for the child to live with the father and the mother to have equal shared parental responsibility, from the court on the father's application on 21 July 2006 to which the mother filed no document in response.  There is a whole issue between the parties as to the question of the role of the Lebanese courts.  The parties would both appear to have engaged solicitors in Lebanon, and that is a matter which can follow the usual course in a court of competent jurisdiction in Lebanon.

15. On 20 March 2007, the Federal Magistrates Court granted a decree of dissolution of marriage to the parties under Australian law.  The father does not know the mother's whereabouts and in those circumstances she would appear to be completely out of contact and to have abandoned the child. 

16. In considering these applications I am bound by the provisions of Part VII of the Family Law Act 1975 (Cth). In the first place I must regard the best interests of the child as the paramount consideration. I must have regard to the various objects and principles of s 60B and, in particular in this case, the right of a child to know and be brought up by both parents, and the duty and responsibility of both parents to be involved in the child's upbringing.

17. The mother has clearly not shown any interest in the upbringing of the child and in those circumstances I find that her parenting is very seriously lacking indeed.

18. I am then required to consider the presumption of equal shared parental responsibility.  Again by virtue of the fact that the mother has abandoned the child, it is clearly not in the interests of the child that that take place.

19. Accordingly, I find that it is appropriate and in the interests of the child that the presumption be rebutted. I am then not required to consider the question of equal shared time or substantial and significant time, and I refer to the primary and additional factors in my consideration of the best interests of the child.

20. The child is not old enough to express any wishes.  The father is the sole parent for this child and has the status quo of looking after the child for almost the entirety of the child's existence.  The mother has abandoned the child, shows no interest whatsoever in her and, in the circumstances, it is appropriate that final orders be made in favour of the father as sought in the application.

21. Those orders will be for sole parental responsibility, for the child to live with the father, and any order for the child to spend time or communicate with the mother to be by agreement of the parties or of the court.

22. The only matter which has concerned me is the father's application for a passport for the child.  In the circumstances of his having been very strongly opposed to the mother having a passport it seemed to me to be something of a double standard that I should allow the father to have a passport without the mother having the opportunity to have a say in that.

23. However, on second thought, by virtue of the mother having abandoned the child and shown no interest whatsoever in the child's upbringing it may be reasonably inferred on the balance of probabilities that the mother would not seek to have a say in that issue.

24. Accordingly, there will also be an order for the granting of a passport, notwithstanding the fact that the mother has not consented.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  25 November 2008