Ihab and Aarif

[2008] FamCA 443

FAMILY COURT OF AUSTRALIA

IHAB & AARIF [2008] FamCA 443

FAMILY LAW – PRACTICE AND PROCEDURE – Priority hearing – application granted

Family Law Act 1975 (Cth)

APPLICANT: MR IHAB

RESPONDENT: MS AARIF (formerly IHAB)

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12863 of 2007

DATE DELIVERED: 24 JUNE 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: RICHMOND & BENNISON

SOLICITOR FOR THE RESPONDENT: TOLHURST DRUCE & EMMERSON

Orders

1. That all extant applications be listed at 10.00am on 17 July 2008 before me as the first day of the less adversarial trial of the parties.

2. That the parties personally attend that day.

3. That one hour be allocated for the hearing.

4. That the parties do all things necessary in the meantime to endeavour to have the family report referred to in the previous order of the Senior Registrar at least commenced prior to 17 July 2008.

5. That each party complete the questionnaire relating to parenting matters for less adversarial trials and file that document no later than 15 July 2008 and serve upon all other parties a copy of that questionnaire.

6. That in so far as interpreters are required by any party, arrangements be made forthwith for the attendance of an interpreter. 

7. Subject to any orders to the contrary, affidavit material only be filed after 17 July 2008.

8. General liberty to apply on short notice to my Associate in relation to these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC12863 of 2007

MR IHAB

Applicant

And

MS AARIF

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application for an expedited final hearing of proceedings.  Pursuant to orders, it has been dealt with in chambers on the papers filed specifically relating to the application.

2. The substantive proceeding is about parenting orders specifically in relation to the wife’s desire to relocate to Syria.

3. The two children of the relationship are N who was born in July 2001 and L who was born in April 2005.

4. The proceedings began with an application by the husband filed on 27 November 2007 seeking to spend time with the two children and orders precluding the wife leaving Australia.

5. The respondent wife filed material on 7 December 2007 in which she sought that the children live with her and that the husband undergo psychiatric testing. 

6. On 28 November 2007, the Senior Registrar ordered the appointment of an Independent Children’s Lawyer and ordered that all parties be restrained from removing the children from Australia.

7. On 12 December 2007 the Senior Registrar determined that the husband’s time with the children be limited to one hour per week at a McDonald’s Restaurant.  The orders provided that he was to be alone although the wife’s nominee could be present.  There were further orders for drug screening and a psychiatric assessment.  When the matter came back before the Court on 26 March 2008, it was clearly not ready to proceed because the report had not been released.  The case was then adjourned.

8. On 18 April 2008, the parties attended a conciliation conference and final orders relating to property were made.

9. The matter next appeared before the Senior Registrar on 5 June 2008 at which time, the husband’s supervised time with the children was extended to two hours per week but otherwise the orders largely remained as they had been.  The parties apparently agreed upon the appointment of a family report writer from the private profession.

   In the orders made on 5 June 2008, provision was made for the parties to make an application for a priority hearing.

10. As a consequence, an application by the wife has been made to expedite the hearing.

11. As a result of the application, the wife filed written submissions on 13 June 2008.  This was one day late but no-one has taken the point. 

12. The husband responded by appropriate email on 19 June 2008.

13. At the time of writing these reasons for judgment, nothing has been submitted on behalf of the Independent Children’s Lawyer. 

14. It is important to note that as result of the orders to which I have earlier referred, both parties attended upon Dr A.  On 1 May 2008, Dr A made reference to the various psychiatric states of the parties and comprehensively dealt with the background.  He said:

    (The wife) denies that she is planning to leave Australia…she points out that both of her sisters have married men who were either born in Australia or have lived here for almost 40 years.

15. On 5 June 2008, the wife filed an amended response seeking final orders.  Amongst those orders, she sought:

    That the wife be at liberty to permanently remove the children from the Commonwealth of Australia.

    …

    That the question of the Husband’s time spent with the children be reserved.

16. The background of the parties is relatively simple.  They were married in Syria in June 2000.  They have lived together in Australia since April 2002.  The husband is an Australian national.  Up until moving to Australia, the wife had always resided in Syria.

17. The wife was 15 years of age when she married the husband.  She has never been in paid employment and has no job training.

18. There are significant arguments about drug abuse and violence.

19. The applicant wife seeking the expedited hearing says that as a result of her isolation, she did not form friendship groups in Melbourne and has little available emotional support other than that provided by her family.  She has received “literally” no maintenance or child support from the husband.

20. The wife says that she has no assets in Australia nor any source of income other than social security payments.  By virtue of her limited English language skills, her lack of job qualifications and the responsibility for the children, she has no present employment capacity. 

21. She says that as a result of having been divorced pursuant to Islamic law, she must remain within the care and protection of a male member of her immediate family.

22. The wife says that there is no male member of her immediate family available in Australia and as a result of living alone with the children, she is failing to meet the dictates of her religion.  According to the wife, this is a source of great anxiety and distress.  She therefore wants to return to Syria.

23. The wife points to the fact that in Syria, she has the premises of her parents in which to live.  Her parents will financially and emotionally support her and the children.

24. The essence of the application according to the wife is that this is a compelling case for a priority hearing.

25. In contradistinction to the wife’s application for priority, the husband says he opposes it being given priority.

26. The husband says that he does not “admit” that the wife is a devout Muslim or that she lives her life according to the dictates of Islamic law.

27. The husband does not “admit” the wife’s social isolation nor that she does not have social or friendship groups within Melbourne beyond her immediate family.

28. The husband points to the fact that the wife has previously denied in open correspondence and affidavit material that her family members intended moving from Australia. 

29. The husband also points to the fact that in his view, the parents’ residence in Syria is not appropriate to accommodate the children.  He says that the wife will shortly have housing in Australia provided by government authorities.

30. The husband says that he has lived in Australia for the majority of his life and has integrated into Australian society and that it was the parties’ desire for the children to live in and be brought up in the Australian society. 

31. Finally, the husband says that the wife has substantial financial support available to her through her family in Australia and as such, there is no urgency in the matter generally.

32. This is a case that needs some expedition. 

33. The property proceedings appear to have resulted in little financial gain for the wife.  The husband is currently unemployed and therefore unable to provide support. 

34. There is a significant dispute about the wife’s social isolation and about her obligations according to Islamic law.  Those are factual matters that need to be determined by a court in due course.

35. The court should only elevate a case above others if there are special reasons.  Special reasons means exactly what it says namely, something unusual or out of the ordinary.

36. Wherever possible, the Court has always endeavoured to give international relocation priority having regard to the fact that the parties’ lives are very much on hold.  That situation is significantly worse where for financial and cultural reasons, one party alleges disadvantage.  All of those matters can be canvassed at trial.

37. Here, a family report has already been ordered.

38. It is the policy of the Court to deal with parenting cases using Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). That is known as the less adversarial trial process. In this case, I propose to conduct the first day of the trial on 17 July 2007 for one hour at 10.00am. The parties in the meantime are required to complete a questionnaire so that notwithstanding significant amounts of energy have already been spent on submissions and affidavit material, the parties themselves can endeavour to isolate the issues about which formal evidence of a trial can be determined.

39. Subject to any view to the contrary that I may determine on 17 July, I propose to have the matter listed for final hearing in October or November of this year and probably before an interstate judge if I am unable to continue the second day of the less adversarial trial faster than I can provide a comprehensive hearing before an interstate judge.

40. Accordingly I propose to make orders.

I certify that the preceding Forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 June 2008