Jabr and Issa

[2014] FamCA 789

FAMILY COURT OF AUSTRALIA

JABR & ISSA [2014] FamCA 789

FAMILY LAW – JURISDICTION – where parenting proceedings continuing in Malaysia – where father had sought parenting orders in this Court – further consideration of the matter by the Malaysian courts – neither party now seeks to prosecute the action and orders made dismissing the father’s application and mother’s response.

Family Law Act 1975 (Cth)

APPLICANT: Mr Jabr

RESPONDENT: Ms Issa

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 1940 of 2014

DATE DELIVERED: 5 September 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 5 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITOR FOR THE APPLICANT: Howe Jenkin

COUNSEL FOR THE RESPONDENT: Ms M Pyke QC

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse

Orders

1. That the order of 5 June 2014 be discharged.

2. Save as to the wife’s application for costs, the Initiating Application filed 2 June 2014 and the Response filed 26 June 2014 do stand dismissed.

3. That the wife do file and serve submissions as to costs on or before 4 pm on 14 November 2014.

4. That the husband file and serve a response to those submissions on or before 4 pm on 5 December 2014.

5. The wife’s application for costs is reserved.

6. The name of the child L born … 2009 be removed from the Airport Watch List.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: No. ADC 1940 of 2014

Mr Jabr

Applicant

And

Ms Issa

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me today following orders that I made on 26 June 2014.  The proceedings relate to the arrangements in respect of the child L (“the child”) born in 2009.   The issues are complex and they are perhaps best encapsulated by consideration of the final orders sought by the father in his Initiating Application filed 2 June 2014 namely, that the said child return to Penang and the mother’s opposition to those orders sought in her Response filed 26 June 2014.

2. The affidavit material has been extensive over the relatively short time that proceedings have been before the Court.  The argument today, if it had proceeded, was as to the status of the proceedings in respect of the jurisdiction argument including issues relating to the relevant test of inappropriate forum, but if parenting issue then the consideration to be given to those sections of the Family Law Act 1975 (Cth) that regulate parenting arrangements but, in particular, that any order that I make has to be on the basis that the interests of the child is paramount.

3. There would have also been some interesting consideration of the status or, at least, of the understanding behind the order that had been made in Malaysia called an Hadhanah Order made on 19 December 2011. As matters have transpired, it is fair to say that the advent of the further consideration of the Appeal Court in Penang delivered 5 August 2014 may have been the catalyst for the father to reconsider the position that he had hitherto adopted. 

4. Both counsel agree on their respective instructions that the proper way forward is for the order made on 5 June 2014 to be discharged, for the respective applications of the parties, being the initiating application and the response, to be dismissed, save and except for the wife’s application for costs, which is to be heard and dealt with by me but upon the written submissions of counsel.

5. Ms Pyke seeks that I give somewhat more extended time than possibly is required in respect of this matter but there’s no opposition and I don’t have a difficulty about making that accommodation nor, indeed, do I have any problem about accommodating a somewhat extended time to the counsel’s father for his response to that application.

6. The intention of counsel, and neither speaking against it, is that I will be asked to hear and determine the question of costs and, if I am so inclined to order costs in favour of the mother, that I will set the quantum of those costs rather than require the parties to submit the matter for taxation.

7. As a result of the order of 5 June 2014, it appears that that order has been forwarded to the Australian Federal Police and that an airport watch list order has been registered in respect of the said child.  There is clear agreement that if a watch list order is in place, then that can be removed.  To ensure that it happens, I propose to give some regard in chambers to the form and format of that order.

8. I make orders as appear at the commencement of these reasons.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 September 2014.

Associate: 

Date:  19 September 2014