Idris and Kadar

[2008] FamCA 1236

FAMILY COURT OF AUSTRALIA

IDRIS & KADAR [2008] FamCA 1236

FAMILY LAW – CHILDREN - Application for a passport

Family Law Act 1975 (Cth)

Scott v Scott (1991) FLC 92-241
Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Ms Idris

RESPONDENT: Mr Kadar

FILE NUMBER: MLC 8088 of 2008

DATE DELIVERED: 30 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 30 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Swart

SOLICITOR FOR THE APPLICANT: Hogg & Reid

COUNSEL FOR THE RESPONDENT: Ms  Buchanan

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

1. All applications be dismissed and removed from the list of active cases.

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 Idris & Kadar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8088 of 2008

MS IDRIS

Applicant

And

MR KADAR

Respondent

REASONS FOR JUDGMENT

1. The parties married according to the rites of Islam in August 1994.  The  wife was born in Egypt in January 1958 and the husband was born in the Middle East in May 1953.  The wife came to Australia in 1988 and is a naturalised Australian citizen.  The husband came to Australia in 1988 and is also a naturalised Australian citizen.  The wife had been previously married in Egypt.  She has three adult children by that marriage, one born in November 1974 and twins born in September 1989. 

2. There is one child of the relationship of the parties, a son, who is 10 years of age.  The parties have been separated for some time and the child has lived in the care of each of the parties on an alternate day-by-day basis.  He attends a college where he is in year 4 and is progressing satisfactorily. 

3. On 4 September 2008, an Application for Final Orders was filed on behalf of the mother, seeking that the father "do all such things and sign all documents required to enable the child of the relationship to obtain a passport".  Of greatest important for present purposes is the second order "that the said child be permitted to travel to Egypt with the mother to visit relatives in late November 2008 for a period of approximately six weeks". 

4. The mother has filed two affidavits in these proceedings, one on 4 September and the other on 18 September.  Those applications came before Watts J on 22 September 2008.  There is an affidavit of attempted service on the father but there is no proof of service on him.  However, the matter being undefended, his Honour granted the relief essentially sought on behalf of the mother, imposing certain conditions with respect to information to be provided to the father prior to any travel. 

5. His Honour required that certain documents be forwarded to the father on behalf of the mother by registered post, which I assume was done, and as a result, a response was filed on behalf of the father.  That document was filed on 29 September 2008 and sought a discharge of the orders of 22 September to which I have referred, a Watch List order in respect of the child and that the matter be treated as urgent.  An affidavit was filed on behalf of the father contemporaneously with that application. 

6. At the beginning of the day, the mother was represented by counsel and the father was represented by his solicitor.  I gave the father, through the solicitor, leave to brief counsel and adjourned the matter until 2.15 today, having pointed out the ratio of the High Court of Australia in TaylorvTaylor (1979) 143 CLR 1 with regard to rehearings in respect of matters in which a respondent is not present. At 2.15, both parties were represented by counsel and, in my view very sensibly and correctly, counsel for the mother conceded that I should proceed to rehear the matter immediately. That is what I have done this afternoon.

7. There is no need to go into the detail of the affidavits.  At the outset of this hearing, counsel, in my view correctly, agreed that there were essentially two issues on which I should decide this matter.  The first of those was the question of what, if any, risk existed, in the event that the child was allowed to go with the mother to Egypt, of his not being returned; and the second was the question of the potential effect on the child of any separation from either parent, given the extensive time which, unusually and to the credit of the parties, he spends with each of them.

8. During discussion with counsel, I expressed the view that the decision might be seen as being arbitrary in terms of what was in the best interests of the child, which is agreed to be the appropriate law which I must apply in my consideration of these applications.  I expressed a concern that I did not have any information about the child's view of this matter, as to whether he would be upset by a separation from either parent, given the time he spends with each of them, and whether there might be any concern on his part in travelling overseas with his mother.

9. I adjourned to consider that and other issues, and on my return to court I advised the mother's counsel that on further reflection, my real concern was the risk of the child not being returned to Australia.  I referred to a decision of the Full Court, in which I was a member of the court, in Scott v Scott (1991) FLC 92-241, which was an example, on those facts, of a child having been taken to Egypt by one parent and not being allowed to leave Egypt, possibly as a result of an order of an Egyptian court.

10. To her credit, counsel for the mother conceded that she was unable to provide me with any information with regard to the attitude of the Egyptian legal system to that issue.  I note that Egypt is not a member of the Hague Convention on International Child Abduction.  As part of her proposal, the mother submitted through counsel and by affidavit that she would advance a car which she owned by way of security.  However, it appears that car is, at best, of minimal value and would not even pay for the father to go to Egypt to prosecute his case before the courts of that country in the event that the child were not returned. 

11. The mother's connection with Australia is severalfold.  First, she is an Australian citizen; second, she obtains Centrelink payments in Australia; and thirdly, she has three adult children by a previous marriage to whom I have referred.  In normal circumstances, it may be that the court might consider that a sufficient basis on which to be sufficiently confident of a return, but particularly in light of this court's experience with at least one other like matter, in the absence of evidence with regard to the approach of the Egyptian legal system to this matter, I have determined that the risk of non-return is too great.

12. In making that finding, I am very conscious of the fact that in some cases the security which might be advanced is significantly greater than what is offered here.  I want to emphasise that it is not the security which is my difficulty here, and it is not even so much the question of whether the mother herself will return; it is the possibility that the mother might return without the child which is of greatest concern, and in the absence of evidence to that end, I have decided that the risk is too great.

13. It is a regrettable decision particularly because the mother wants to go to Egypt to visit a sick older sister who has had a stroke.  I could also see that there are circumstances in which the child having the opportunity to meet his extended family and see the area of his mother's cultural and physical background is of advantage.  So it is not that this matter is absent any positive factors.  It is the question of the risk of non-return which has concerned me, and accordingly the application will be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  17 April 2009