Hijaz and Jessup and Anor

[2012] FamCA 234

FAMILY COURT OF AUSTRALIA

HIJAZ & JESSUP AND ANOR [2012] FamCA 234

FAMILY LAW – CHILDREN – Airport watch list

Family Law Act 1975 (Cth)

APPLICANT: Mr Hijaz

RESPONDENT: Ms Jessup

INTERVENOR: Director-General, Office of Children, Youth and Family Support

INDEPENDENT CHILDREN’S LAWYER: Mr D Ridge, Barker & Barker

FILE NUMBER: CAC 1133 of 2011

DATE DELIVERED: 22 March 2012

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 22 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Milsen-Mahy

SOLICITOR FOR THE APPLICANT: Pappas J Attorney

COUNSEL FOR THE RESPONDENT: Ms  D Isaacson

SOLICITOR FOR THE RESPONDENT:	Consensus Family Lawyers
SOLICITOR FOR THE INTERVENOR	Mr Robinson

Orders

IT IS ORDERED BY CONSENT THAT:

1. I make in accordance with the Consent Orders which I initial, date with today’s date and place on the Court file, being orders 1-11 inclusive of those Consent Orders.

IT IS FURTHER ORDERED THAT:

1. I make orders in accordance with Minutes 12, 13 and 14 in the document which has previously been identified.

IT IS NOTED THAT:

1. In relation to order 13 that if the father should make an application to travel overseas (on the basis that the mother has refused her consent to his so travelling) that the Court would give such expedition to that application as might reasonably be available to it.

IT IS FURTHER ORDERED THAT:

1. I decline to make order 15 in the Consent Orders.

2. Until further order, or until 1 March 2016 (whichever event shall first occur) each of Mr Hijaz and Ms Jessup and their servants and agents are hereby restrained from removing or attempting to remove or causing or forbidding the removal of T Hijaz, born … March 2011, from the Commonwealth of Australia. 

3. It is requested the Australian Federal Police give effect to the proceeding order by placing the name of T Hijaz, born … March 2011, on the Airport Watch List in force at all points of arrival and departure from the Commonwealth of Australia and maintain the child’s name on the watch list until 1 March 2016, or such earlier order as may be made by this Court.

4. Pursuant to s 62B and s 65DA(2), the particulars of 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 to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders

5. I direct that the matter be removed from the pending cases list.

6. All material produced by subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

7. Any material produced by subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

8. I direct that the Independent Children's Lawyer be discharged.

9. I thank the Registrar-General for his involvement in the proceedings. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hijaz & Jessup and Anor 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 CANBERRA

FILE NUMBER: CAC 1133 of 2011

Mr Hijaz

Applicant

And

Ms Jessup

Respondent

REASONS FOR JUDGMENT

1. For reasons which I will publish, if it becomes necessary to do so, I make orders by consent in accordance with the minute, which I initial, date with today’s date and place on the Court file, being orders 1 to 11 inclusive of those minutes of orders. 

2. In relation to the other, matter, [not agreed] there are a number of considerations, bearing in mind that, in these circumstances, my paramount duty is to place the best interests of the child as the foremost consideration.

3. First, I am obliged, as a primary consideration, to take account of the need to protect T from physical or psychological harm or from being subjected to, or exposed to abuse, neglect or family violence.  In the broadest of terms if there were such an order then there is potential for him to be exposed to violence, if he were to travel overseas. 

4. That potential risk, of course, is anywhere.  There are no circumstances in which someone is entirely immune from such danger. However, there is clearly a heightened sense of danger, as the father quite properly acknowledges, in Egypt at the present time.

5. The second matter is that the risk, I suppose, associated with the father’s travel to Egypt, is that if he were to choose, for whatever reason, to remain in Egypt, then there would be a complete disintegration of the other primary consideration.  This is the benefit to T in having a meaningful relationship with both of his parents.  I say that because Egypt, it is agreed, is not a Convention country and, accordingly, T’s retrieval from Egypt could be a very difficult and expensive legal process.

6. The other matters that it seems to me that I should take into account in determining this matter are as follows. 

7. First, T, as a child, is a child of mixed culture and it is important for him, in accordance with the provisions of s 60CC(3)(g) to have the benefit of an exposure to both cultures – both his mother’s and his father’s culture. 

8. The second matter is those who might properly be extended family in his life.  This would involve, at some point, his being able to visit Egypt as indeed his mother did on at least two occasions from my recollection of the evidence before me, prior to T’s birth. 

9. A further matter is providing for the needs of T.  It is important that, as Ms Isaacson has said, T not be separated from someone who has an important role in his life.  His mother fulfils that category.

10. It does, however, depend on the circumstances at the time when the proposed travel occurs.  If, during that time, there has been a considerable improvement and extension of the relationship between T and his mother, a period of two months may be a very long time - or it may be a time which is entirely capable of being coped with by a little person, such as T.  These are factors which really need to be considered on an instance by instance basis, rather than in any blanket way.

11. It seems to me, balancing those particular matters and bearing in mind that most of the other matters are taken into account in the other orders that have been made by consent, that the balance should be struck broadly, in accordance with the orders as they have been presented to me.  That is that there should be a general prohibition on travel by the father until T is five years, subject to the qualification set out in Order 13, which is that the father has the ability to apply to the Court.  I ask that the Court deal with any such application with such expedition as might reasonably be available to it.

12. The rest of the orders appear to me, in the circumstances, to be reasonable and I note that order 15 prohibits the removal of the child for a period of greater than two months at a time.  I do not propose to make that order, given that the requirements of the orders, as they have already been determined, suggests that it would be necessary either for the mother to consent or for the Court to make a determination, in which case the period of time for removal of T from Australia would be the subject of determination or agreement.

13. It follows, then, that I am prepared to make and will make orders in accordance with minutes 12, 13 and 14.  I will add to them the rider that I proposed previously. 

1. I propose, in the circumstances, also to make what I will describe as the usual order, in relation to the Watch List.  It seems to me that the orders without that may well be empty and meaningless and I will make that order and incorporate it into the final document.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks DCJ delivered on 22 March 2012.

Associate: 

Date: