Kuzail and Kuzail

[2008] FamCA 648

FAMILY COURT OF AUSTRALIA

KUZAIL & KUZAIL [2008] FamCA 648

FAMILY LAW – PRACTICE AND PROCEDURE – Waiver of service

Family Law Act 1975 (Cth)

APPLICANT: Mr Kuzail

RESPONDENT: Ms Kuzail

FILE NUMBER: MLC 5840 of 2008

DATE DELIVERED: 4 JUNE 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 27 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

Orders

1. That the husband have leave to proceed with his application in the absence of notice to the wife.

2. That paragraph 1 of the orders of Federal Magistrate Walters in proceedings number ZM5068 of 2002 made on 20 May 2002 be discharged.

3. That the reasons for judgment this day be transcribed and be placed upon the court file.

4. That all extant applications be dismissed and removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5840  of 2008

MR KUZAIL

Applicant

And

MS KUZAIL

Respondent

REASONS FOR JUDGMENT

1. On Friday 27 June 2008 in a very busy Duty List, the husband attended with an application not served upon his former wife seeking that he be permitted to leave Australia in circumstances where there was an order precluding him from leaving.  The urgency, according to the husband was twofold.  The first was that he had a plane booking out of Australia on Monday to Turkey.  The second reason was that he is the respondent to a divorce application from his now former wife in Turkey and that is to be heard next week.

2. Normally, neither of those issues would cause a problem.  In this case however it is school holidays and the time of year at which large numbers of Australian people travel to Turkey.  Flights are very difficult to get. The husband produced a travel agent’s paperwork to show that he had been fortunate to get a flight out of Brisbane on Korean Airlines.  In relation to the Turkish court proceedings, the husband produced a document to show that the case had been adjourned on a previous occasion and his understanding was that the Court would not adjourn the matter again.

3. Just exactly why the husband would need to defend the proceedings in the Turkish court escapes me having regard to the matters to which I shall turn and he was not in a position to give me answers as to the consequences of failing to attend.

4. For reason to which I shall now turn, I was satisfied that notwithstanding the wife had not been served with the application, it was appropriate to grant the application and I did so.

5. Before doing so, notwithstanding the proceedings were inter partes, I examined the file to get a feeling for whether or not there were potential other reasons than just between the husband and wife as to why the husband should not be permitted to leave Australia.  I shall deal with those issues below.  I am satisfied that there is no other pending reason that could justify holding him in Australia. 

6. The husband and wife were married in Turkey in 1990.  The husband came to Australia in 1997 and his wife the following year when the husband sponsored the family.  There are two children of the marriage B who is now aged 17 years and N who is 8 years of age.

7. In early 2002, the relationship between the parties came to an end.  The reason for that was that the husband was found by the wife sexually assaulting his then 12 year old daughter.  In the proceedings before me, the husband was clearly coy about talking about the matter and it was noticeable that he avoided the issue when I asked the female interpreter to translate part of the documents in the husband’s possession.  There can be no dispute about that factual situation however because the husband was charged by the police, pleaded guilty and was sentenced to 3½ years imprisonment.  Needless to say, there is no relationship between the husband and the children.  Hence my comment earlier about my wonderment at why he would be going to Turkey to defend proceedings there brought by his wife.

8. It seems that the husband has now served his term of imprisonment and he told me that he was conducting his business in Australia as a tradesman. 

9. In 2002, proceedings were instituted in the Federal Magistrates Court by the wife for parenting orders and a property settlement.

10. The court file notes that on 20 May 2002, Federal Magistrate Walters made the following order:

    Until further order, the husband be and is hereby restrained by injunction from leaving or attempting to leave the Commonwealth of Australia.

11. At that hearing, the husband was represented by counsel.  The court record shows that what I have just quoted was an order of the court and not one to which the parties consented.  However at the back of the order is a document signed by the husband clearly indicating that he was consenting to such an arrangement.

12. I asked the husband why the order had been made.  He told me that it was because he had criminal proceedings pending.  At that time in the case before me, he did not tell me what those criminal proceedings were and it was only when I looked at the file in some detail that the issue became clear. 

13. In 2003, the Federal Magistrates Court of Australia granted a divorce between the parties.

14. In 2004, the case was transferred to this Court and Dessau J made an order discharging any restriction on the wife from removing the two children from the Commonwealth of Australia.  The husband was represented at that hearing.  The court file notes that throughout that period of time, the Court ordered by gaol order the production of the husband to the Court.  The order of Dessau J is quite specific in requiring the wife to notify the husband if the children are going to be out of the Commonwealth of Australia but there would otherwise appear to be no restriction upon her movement.  In the orders in 2002, the restriction on the movement of the children out of Australia and the restriction on the husband moving out of Australia are consecutive orders.  There can be little doubt therefore having regard to the way in which the order in 2004 was structured that everyone in 2004 was aware of the restriction on the husband leaving Australia.

15. In 2005 there appeared to be significant problems in the finalisation of the property dispute between the parties.  There are a variety of documents indicating that third parties and mortgagees came to the Court to try and resolve something to do with the outstanding orders relating to the home which I gather was only partially built.  I have, as best I can without assistance, examined those matters and found that there has been no activity for a number of years now.  The inference I have drawn is that no creditor would require the husband to remain in Australia and even if they did, I doubt whether I would have the power under the Family Law Act 1975 (Cth) (“the Act”) to restrict him in his movement. Similarly, there has been no activity in relation to the children’s issues. There does not seem to be any reason why I would restrict the husband from leaving Australia in relation to what was originally the purpose behind the 2002 orders. There does not seem to be any issue of child support and even if there was, there has certainly been no activity by the Child Support Agency to preclude the husband from leaving Australia.

16. The husband told me that his complaint was that the wife had taken the children from Australia without telling him effectively in breach of the orders made by consent in 2004 by Dessau J. 

17. It seems clear from what documents I saw that were translated, that the wife is in Turkey applying for a divorce.  The husband’s interpreter told me that the document read that the wife was applying for a divorce because although she had been divorced in Australia, that decree was not recognised by the Turkish authorities.  In the “pleading” that seemed to be part of the document, the wife alleged extreme violence against the husband.

18. Why the husband would need to attend the hearing as I said, I am not sure but it must be the right of a person who is named as a respondent to an application to at least understand what the application is about and to be heard.  Whilst the application is before a Turkish court, I see no reason why the fundamental golden thread of the common law that would be expected in our courts ought not to be applied to the husband. 

19. Essentially, the husband should have been aware of the restrictions on his movement.  He failed to take them into account and booked a flight and went to Melbourne airport only to be refused exit by the Australian Federal Police.  Hence the application.

20. Another fundamental principle of the common law similar to that which I have just mentioned is the right of the wife to know that the application is being made.  The husband had not sought to deal with the matter on an ex parte basis in his written documents and as the matter involved a complex history, I insisted that he endeavour to serve her.  The husband told me that he had been conversing with his former wife’s lawyer in Turkey and I therefore directed that he contact her, obtain a facsimile number, fax the documents to her and have some response obtained as to her client’s views.  The husband’s response to that was that he was concerned that the wife might in fact refuse somehow to cooperate precluding him from leaving Australia as a consequence.

21. As I said at the start of these reasons, Friday was a very busy Duty List day and I saw no reason initially to give this matter any priority.  As 5 o’clock came, the husband endeavoured to serve the documents by fax and both the facilities of the court, Australia Post and a local jeweller were unsuccessful in getting the documents through to the lawyer to whom I have just referred.

22. Whilst the husband was doing that, I had an opportunity to contemplate the matter in some more detail and to look at the background to which I have referred.

23. Although the husband’s affidavits as one would expect from a litigant in person whose language is not naturally English, were appalling brief and not at all helpful, I teased out the background of the matter and he gave evidence confirming that everything he had told me was the truth. 

24. I am satisfied in the circumstances that serving the document on the wife whilst the fundamental right of a litigant would probably make very little difference in this case having regard to the fact that:

    (a)the children do not have any contact with the husband and are out of Australia in any event; and

    (b)there does not appear to be any criminal or civil proceeding which could currently preclude the husband from leaving the country.

25. I am minded to add that I feel confident that if the Australian Federal Police had any reason to restrict the husband’s movement other than the injunction made in 2002, they would be the first to let the Court know.

26. In those circumstances, it seems to me that no injustice is occurring by the wife not being served with the proceedings and accordingly I waive the requirements for that service.

27. There does not seem therefore to be any reason why the 2003 orders should remain any longer.  I therefore discharge the orders.

I certify that the preceding Twenty Seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 July 2008