HIKAL-AQUITA & AQUITA

[2016] FamCA 1151

FAMILY COURT OF AUSTRALIA

HIKAL-AQUITA & AQUITA [2016] FamCA 1151

FAMILY LAW – CHILDREN – Interim proceedings – where father seeks to take children to Lebanon for holiday – where mother has fears that children will not return – where mother opposes the children travelling – where parties separated under the one roof – where no present parenting orders  - where not appropriate for children to travel – orders made restraining travel and placing children on watch list

APPLICANT: Ms Hikal-Aquita

RESPONDENT: Mr Aquita

FILE NUMBER: PAC 5664 of 2016

DATE DELIVERED: 7 December 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 7 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Friedlander

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

SOLICITOR FOR THE RESPONDENT: Ms Youssef of Integrated Law Group

Pending Further Order, It Is Ordered That

1. By no later than 12.00 noon on 8 December 2016, the father surrender and deliver to the Registrar of the Family Court of Australia at the Parramatta Registry, all Australian and Foreign passports and Identity documents issued by the relevant Lebanese Authorities currently held by the father relating to the children, B born on … 2008 aged 8 years and C born … 2011 aged 5 years (“the children”) and such passports and identity documents be retained by the Registrar and not be returned to the father without the prior written consent of the mother or further order of the Court.

Watch List

1. Until further order each party Ms Hikal-Aquita born … 1969 and Mr Aquita born … 1965, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children B (female) born on … 2008 aged 8 years and C (female) born … 2011 aged 5 years from the Commonwealth of Australia until the Court orders its removal.

2. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period or until the Court orders its removal.

Passports

1. Both parties be restrained from applying for a passport or making any application to alter or renew a current passport in the name of the children.

Further directions

1. The interim applications as to interim parenting and sole use and occupation of the home are adjourned to the Registrar’s Call Over Duty List at 9.30am on 12 January 2017.

2. The father file and serve any Amended Initiating Application together with any further affidavit material sought to be relied upon by him in relation to the interim hearing by no later than Wednesday, 11 January 2017.

3. The mother file and serve any Amended Response to the father’s Amended Initiating Application and any Amended Application in a Case together with any further affidavit material to be relied upon by her by no later than Wednesday, 11 January 2017.

4. The parties are granted leave to issue such subpoena as they consider relevant to the issues for determination before the Court with such subpoena to be returnable by Wednesday, 11 January 2017.

5. The question of both parties’ costs of today are reserved.

Appointment of an Independent Children’s Lawyer

1. By consent and pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children, B (female) born on … 2008 aged 8 years and C (female) born … 2011 aged 5 years and the Legal Aid Commission of New South Wales is requested to provide such representation.

2. The parties are to provide to the Sydney Central Office of the Legal Aid Commission of NSW at 323 Castlereagh Street Sydney NSW 2000, PO Box K847 Sydney NSW 2000 or DX 5 Sydney forthwith copies of all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.

4. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

5. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aquita & Hikal-Aquita has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5664  of 2016

Ms Hikal-Aquita

Applicant

And

Mr Aquita

Respondent

REASONS FOR JUDGMENT

Context  

1. These are interim proceedings between the applicant father and the respondent mother primarily today in relation to the circumstances of the two children of their marriage, B born in 2008 and C born in 2011.  The children are at present eight and five years of age respectively. 

2. The children are the only children of the relationship between the father and mother.

3. The father and mother commenced cohabitation on the date of marriage in 1998.  It is common ground that, notwithstanding a separation under one roof in the matrimonial home, the parties are indeed separated and regard the marriage as at an end.

The father’s case

1. The father’s Initiating Application seeks final and interim parenting orders, final property orders and orders by way of a Child Support Departure.  He seeks in relation to the children, more relevantly for the purposes of the proceedings today, interim parenting orders that in summary provide for him to have sole parental responsibility for the children; for the children to live with him; for the children to spend alternate weekends with the mother, save for school holidays when the children spend equal time with the mother and father. 

2. He also seeks specific orders in relation to Father’s Day, Mother’s Day and other events and occasions significant to the children.  More particularly, in his Application filed on 1 December 2016, he sought an order that he be permitted to take the children outside the Commonwealth of Australia for the period 8 December 2016 until 11 January 2017 for the purposes of a holiday to Lebanon. 

3. He otherwise seeks interim orders that the mother vacate the former matrimonial home at D Street, Suburb E, and that he have the sole use and exclusive occupation of that property; that she deliver up to the father certain items of jewellery; and that, pending further order, the parties make equal payments in relation to certain property outgoings and other liabilities.

4. The father’s application filed on 1 December 2016 fell outside the available window for the purposes of orders being sought in relation to the forthcoming Christmas school holiday period December 2016/January 2017.  As a consequence, the father’s application was listed for a direction hearing before the Registrar 9.30 am on 12 January 2017.  That direction hearing is a preliminary callover for the purposes of the then following judicial duty list in January. 

The mother’s case

1. The mother sought to file documents being her own Initiating Application, in the Federal Circuit Court of Australia at Sydney on 5 December 2016, only to be advised of the pending proceedings in this Court.  As a consequence, the mother was able to facilitate the filing of her Initiating Application in the Federal Circuit Court as a Response in this Court, together with an Application in a Case and an affidavit by her.       

2. The mother’s Response also seeks orders in relation to the children by way of final parenting orders.  She is seeking orders that she have sole parental responsibility, that the children live with her and that the children spend defined time with the father.  She also seeks otherwise certain injunctive behavioural orders against the father. 

3. Concurrently with filing her Response, as it now is in this Court, she filed an Application in a Case on 7 December 2016 seeking urgent orders addressing her concerns in relation to the children travelling overseas to Lebanon without her consent. 

4. In that Application in a Case, she relevantly seeks orders that by 5 pm on the day of orders, the father surrender up to the Registrar of this Court all Australian and foreign passports and identity documents held by him in relation to the children;  that until further order he, his servants and/or agents, and the mother, her servants and/or agents, be restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia;  and that, as a consequence of the preceding order, the children be placed on the Airport Watch List at all points of departure from the Commonwealth of Australia;  and that both parties otherwise be restrained from applying for a passport or making any application to order or a renew a current passport in the name of the children.

5. Otherwise, the mother seeks orders in relation to sole use and occupation of the home, and no doubt, in due course, will seek final orders in relation to property. 

6. The applications as they presently stand before the Court in terms of interim parenting and sole use and occupation of the matrimonial home will be determined in the interim duty list in January. 

7. The concern is what orders should be made in the interim to preserve the current position, where the parties have, it appears, recently separated and remain in the matrimonial home.  Clearly, it is important that the children’s circumstances, until interim orders are made, are not changed significantly.

8. The mother quite rightly as a consequence of recent developments in the media and otherwise has significant concerns in relation to children travelling to Lebanon by reason of the nonoperation of the relevant Hague Conventions as to international child abduction between Australia and Lebanon.

9. In all of the circumstances, it is not appropriate for the Court today to determine interim parenting orders.  No doubt there will be some other material available to the Court on subpoena as a consequence of other directions to be made today setting the matter up for an interim hearing. 

10. But in all of the circumstances, and having regard to the best interests of the children and to ensure that they remain within the jurisdiction of the Court, it is appropriate that the interim orders sought by the mother in her Application in a Case be made, pending further order.

11. Otherwise, the interim applications as to interim parenting and sole use and occupation of the home are adjourned to the Registrar’s judicial duty list, 9.30 am, 12 January 2017.

12. Accordingly, orders are made in terms of the following orders set out in the mother’s Application in a Case filed on 7 December 2016:

    Order 2, but amended so as to require the father by no later than 12 noon on 8 December 2016 to surrender the subject documents to the Registrar of the Family Court of Australia at Parramatta; Order 4; Order 5 and Order 6.

13. It is further ordered:

    a)that the father file and serve any Amended Initiating Application sought to be relied upon by him together with any further affidavit material sought to be relied upon by him in relation to the interim hearing by no later than Wednesday, 11 January.

    b)that the mother file and serve any Amended Response to the father’s Initiating Application and any Amended Application in a Case together with any further affidavit material to be relied upon by her by no later than Wednesday, 11 January 2017.

    c)Leave is granted to the parties to issue such a subpoena as they consider may be relevant to the issues for interim determination, those subpoenas be returnable by no later than Wednesday, 11 January 2017.

    d)Reserve the question of both parties’ costs of today. 

    e)By consent the usual order for the appointment of an ICL.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 7 December 2016.

Associate: 

Date:  27 January 2017