Ihab and Aarif (No. 2)

[2008] FamCA 865

FAMILY COURT OF AUSTRALIA

IHAB & AARIF (NO. 2) [2008] FamCA 865

FAMILY LAW – CHILDREN – Request for Department of Human Services to intervene

APPLICANT: Mr Ihab

RESPONDENT:	Ms Aarif
INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12863 of 2007

DATE DELIVERED: 17 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Badenoch

SOLICITOR FOR THE APPLICANT: Richmond & Bennison

COUNSEL FOR THE RESPONDENT: Mr Bradshaw

SOLICITOR FOR THE RESPONDENT: Tolhurst Druce & Emerson

INDEPENDENT CHILDREN'S LAWYER COUNSEL Mr Finn

INDEPENDENT CHILDREN'S LAWYER SOLICITOR Marshalls & Dent

Orders

IT IS ORDERED:

1. That all outstanding applications be adjourned to 24 October 2008 at 9.30am.

IT IS REQUESTED

1. That pursuant to section 91B of the Family Law Act 1975 the Secretary of the Department of Human Services Victoria intervene in these proceedings.

IT IS FURTHER ORDERED

1. That my reasons for judgment this day be transcribed and expedited and a copy of those reasons be made available to the relevant officer of the Department of Human Services with a copy of this order.

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: MLC 12863 of 2007

MR IHAB

Applicant

And

MS AARIF

Respondent

REASONS FOR JUDGMENT

1. This is a matter involving two young, and I might say very vulnerable children, aged three and seven years.  The parties are culturally of Syrian background.  The proceedings in this court were issued on 27 November 2007 and involve a dispute between the parties over the parenting of those two children. 

2. It would not be unreasonable to say at this stage that the dispute has essentially revolved around two things.  The first is the question of what time the father should spend with those children.  The second is the more important question, which is the wife's application to relocate herself and the two children to Syria.  The matter has progressed through the court system and there have been significant involvement by professionals, including Dr A, Ms B of the family consultants' section of this court, and also Mr R.

3. The matter has progressed to the stage that I was to hear the final trial in only a few weeks' time.  I had a number of mentions of the matter so I am familiar with its background.  The wife has been represented before me on one, if not two, occasions by senior counsel.  This morning at a mention of the matter, it was made very clear by Mr Bradshaw on behalf of the wife that he now has instructions that his client is going to go to Syria with or without the children, and in this case, immediately without them. 

4. That leaves the children in an invidious position, having regard to their vulnerability and age.  In normal circumstances, one would have then turned to the father of the children and asked the question of whether he would take over the responsibilities.  However, in this case, I have some concerns, not only because the professional background suggests that that is not necessarily a good idea for these children, but more importantly, the independent children's lawyer does not support that. 

5. That leaves me with a dilemma in that although the mother may file a notice of discontinuance, and therefore not participate in the proceedings any longer, it does not necessarily follow that I would make an order that the father have the children.  There is also the question of the paternal grandparents' role in the proceedings and at the moment I have no evidence as to what relationship they had with the children to the extent that they could be the full‑time carers.  There was a question raised and discussed earlier this morning about the prospect of making an order that the wife be precluded from leaving Australia. 

6. There is already an order in existence precluding the children leaving the Commonwealth of Australia, and leaving aside any question of the jurisdictional power to make that order, I have some concerns as to its point, and I am comforted by the fact that this is not just a whim by the mother of these children, having regard to the fact that she has been advised very competently by a number of people. 

7. In the circumstances, it seems to me that as these children are vulnerable and I do not have sufficient evidence at this stage to be comfortable about making any order in favour of the father.  The only solution I can think of is that I should invite the Department of Human Services to intervene in the proceedings and to participate.  It may very well be that they decide not to intervene in the proceedings but to take their own proceedings under State legislation by filing an application for protection of the children in the Children's Court.  If they take that course of action so be it. 

8. But in the meantime, I am very concerned that the independent children's lawyer is troubled about what is happening, and to that extent, what I am proposing to do is to make an order that the matter be brought back before me on 24 October at 9.30 am in the morning on the assumption that that is prior to the wife leaving Australia.  Secondly, I will invite the department to intervene in the proceedings and for them to have a copy of these reasons for judgment.  Thirdly, I will make an order that my reasons this day be transcribed and be expedited. 

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 October 2008