Ihab and Aarif (No. 3)

[2008] FamCA 1147

FAMILY COURT OF AUSTRALIA

IHAB & AARIF (NO. 3) [2008] FamCA 1147

FAMILY LAW – CHILDREN – With whom a child lives – Mother relocating overseas

Family Law Act 1975 (Cth)

Re N [2001] FamCA 628

APPLICANT: Mr Ihab

RESPONDENT: Ms Aarif

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12863 of 2007

DATE DELIVERED: 24 October 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Badenoch

SOLICITOR FOR THE APPLICANT: Richmond & Bennison

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Finn,
Marshalls & Dent

Orders

1. That all previous Orders be discharged, save for paragraph 4 of the Orders of 28 November 2007 with respect to restraining the children of the marriage N born … July 2001 and L born … April 2005 from leaving Australia and that they remain on the Airport Watch list.

2. That the children of the marriage live with the Wife until her departure from Australia on 2 November 2008.

3. That during the time the children live with the Wife, they spend time with the Husband as follows:

   (a)from the conclusion of these proceedings today by collecting the children from the childcare facility at this court until 5:00 pm on Sunday 26 October 2008;

   (b)from 6:00 pm on Wednesday 29 October 2008 until 8:30 am on Thursday 30 October 2008;

   (c)from 10:00 am on Sunday 2 November 2008;

   (d)and at such further and other times as may be requested by Ms H of Centacare for the purposes of counselling;

3A.That for the purposes of the time spent at set out in paragraph 3 hereof, changeover occur at the C Police Station, save for on Thursday 30 October 2008, which will occur at N’s school.

1. That the children live with the Husband from 2 November 2008, and he will be solely responsible for their day-to-day care, welfare and development.

2. That the Husband have the sole parental responsibility for the children.

3. That both parties do all such acts and things and sign all documents necessary to engage in counselling with Ms H of Centacare prior to the Wife's departure, including but not limited to attending counselling for and/or with the children with respect to the Wife's departure.

4. That the Wife spend time and communicate with the children as follows:

   (a)     by letters;

   (b)     by telephone;

   (c)     by email;

   (d)by Skype or such other electronic means available to her from time to time;

   (e)face to face with the children as agreed between the parties in the event of her           return to Australia for a visit;

   (f)at such further and other times as the parties may agree.

   and the Husband do all such things to facilitate the Wife spending such time with the children.

5. That all extant applications be dismissed, and the trial date on 12 November 2008 be vacated.

6. That the appointment of the ICL be discharged.

7. Certify for solicitor acting as Counsel.

AND THE COURT NOTES

That even though the ICL has not consented to these Minutes, he accepts that this is the only practical means of resolving the dispute, having regard to the fact that the Wife will be abandoning the children on 2 November 2008.

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 most unusual matter in which I gave some reasons on 17 October about inviting the Department of Human Services to intervene in the proceedings.  The basis behind that order was that the mother of the children, who are aged three and seven years, had indicated to me that she was returning to live in Syria on a permanent basis in circumstances where there had been a limited contact relationship between the father and the two children, and there was no other major carer available.  To make matters more complex, the Independent Children's Lawyer was the one who was most troubled about what was happening and had indicated a desire to make an application to preclude the mother from actually leaving Australia.  That application did not proceed.

2. I adjourned the matter to today to ascertain exactly what was happening.  The application today must be seen in the face of a contested hearing, which was to be listed in a few weeks time.  That application was by the mother to take the two children to live permanently in Syria.  It has always been the position that the father was opposed to that application.  Mr Bradshaw was the solicitor for the wife and he told me that he had had his services terminated, but he had given advice to the wife.  To ensure that she attended the court, a subpoena was issued to her and she attended at the hearing to which I have earlier referred and has returned today.

3. Today she is unrepresented and does not speak English, but has been assisted by her brother-in-law, who was provided me with an enormous amount of assistance.  His business acumen has obviously given rise to his ability to translate very quickly and I am satisfied that he has properly translated all of the matters that I wanted translated to the wife. 

4. What I am now asked to do is to make final orders.  I have discussed with the wife the fact that in making final orders, she would be in the difficult position if she returned to Australia to seek that the children reside with her because she would have to show that there has been a significant change of circumstances.  I have warned her that, if she changed her mind in a month's time, she may have some significant legal problems.  I have also explained to her that does not preclude her from establishing a relationship with the children and in fact coming back to Australia and seeing them.

5. The proposed orders, which have been agreed between the parties, set out a regime in two parts.  The first part relates to the period until the wife leaves Australia and the second is the more permanent arrangement beyond that time.  In respect of the latter, the mother is to spend time and communicate with the children by a variety of methods and they seem sensible in the circumstances.  In between now and when the wife leaves Australia, the parties are to obtain assistance from the Centrecare organisation, and particular a person whom Ms B, who was our family consultant, told me about this morning.

6. These orders are being made in the face of a mother who says that she is not being threatened or bribed in any way to agree to them.  She knows what she is doing and she wants me to say that these orders are in the best interest of the children.  I am hamstrung by the fact that the Independent Children's Lawyer has done everything he can to put before the court any material that might assist me; I do not have the benefit of the Department of Human Services here, so I have concluded that they are not concerned about the welfare of the children.

7. It is important to also understand that, at the request of the Independent Children's Lawyer, I had the benefit this morning of hearing from Ms B, who had prepared a significant report in the case and would have given evidence in the relocation hearing.  She has said that, on the basis of the children have not been told by their mother that she is leaving Australia, it is not in their best interest for that situation to continue.  She urges counselling and she says that particularly N, having regard to his age, would not understand the permanence of what his mother is doing.

8. The mother heard all of the evidence and understands clearly what she is doing.  Whilst I am obliged under Part VII of the Family Law Act 1975 (Cth) (“the Act”) to make orders that are in the best interests of the children, I am still conscious of the fact that I am dealing with private law and I do not have the capacity under the Act to ultimately make decisions outside of what the parties are ultimately proposing if that means handing the children to some other organisation or other person, about whom I know nothing.

9. Mr Finn has made it very clear that he does not sign the minutes or endorse them.  There is a notation to the orders that says that although he has not consented to the orders, he accepts that they are the only practical means of resolving the dispute.  By that, I understand him to be saying that he does not have an alternative solution as to who will care for the children in the best possible way.  There is a decision of the former Chief Justice, Nicholson CJ, called Re N [2001] FamCA 628 in which his Honour was left with same dilemma, in which the Independent Children's Lawyer refused to sign the minutes.

10. His Honour said that ultimately an Independent Children's Lawyer steps out of the case, leaving the parties to their own devices anyway.  So to some extent, if I refuse to make the orders, then there is realistically nothing that the court can do if the state welfare authorities have shown no interest in these children.  It seems to me that in those circumstances, it is best if I leave the children to the parties themselves and their extended family to sort out a way of caring for them and bringing them up.  If that is the best that we can do, I have to say that I don't have an alternative solution and, in those circumstances, it must be seen that the orders are in the best interests of the children.  In the circumstances therefore I will make those orders.

11. In the matter of Ihab and Aarif, I will make orders in terms of the minutes, which I will mark exhibit A.  I will note that they are orders by consent, save for the consent of the Independent Children's Lawyer.  I will direct that the solicitor for the husband engross the minute and email that to my associate within seven days and I will finally order that there will be a transcript taken of all evidence and my reasons for judgment this day and that that transcript be placed on the file and be made available to the parties.  It is noted that the orders dismiss all outstanding applications and vacate the trial date, and also discharge the Independent Children's Lawyer.  I will also order that all proceedings be removed from the listed cases awaiting hearing.

I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  7 November 2008