Nassar and Nassar

[2007] FamCA 1641

FAMILY COURT OF AUSTRALIA

NASSAR & NASSAR [2007] FamCA 1641

FAMILY LAW – CHILDREN – With whom a child lives – Orders made – Airport watch list

Family Law Act 1975 (Cth)

Applicant: Ms Nassar

Respondent: Mr Nassar

File Number: MLC 5593 of 2007

Date Delivered: 23 May 2007

Place Delivered: Melbourne

Judgment of: Carter J

Hearing Date: 23 May 2007

Representation

Counsel for the Applicant: Ms S C Dowler

Solicitor for the Applicant: Rigoli & Associates

the Respondent: No appearance

Orders

1. That leave be granted to the wife to proceed with her Application in so far as it concerns children’s issues without notice to the husband.

2. That the children B born on … October 1995 (female), R born on … July 1998 (male), Q born on … March 1997 (female) and S born on … June 2002 (female) live with the Wife.

3. That until further order, the wife have sole responsibility for the said children.

4. That the husband spend time with and communicate with the children as the parties agree from time to time otherwise as this Honourable Court determines fit.

5. That until further order each party the husband Mr Nassar born … June 1962 and the wife Ms Nassar born … October 1971 their servants and/or agent be and are each hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the said children B born on … October 1995 (female), R born on … July 1998 (male), Q born on … March 1997 (female)  and S born on … June 2002 (female) from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said child’s name on the Watch List until the Court orders its removal.

6. That as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne, and IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

7. That a copy of the order be faxed immediately to the Australian Federal Police State Headquarters and Airport.

8. That as soon as practicable, the solicitors for the wife serve the husband with a copy of the following:

   (i)the wife’s Form 1 and Form 2 Applications filed 18 May 2007;

   (ii)the wife’s Affidavit filed 18 May 2007;  and

   (iii)this order.

9. That the wife’s Form 1 and Form 2 Applications be otherwise adjourned to the Judicial Duty List at 10:00am on 14 June 2007.

10. That there be liberty to apply at short notice.

11. That the preparation of this order be expedited forthwith.

12. That my Reasons for Judgment be transcribed and thereafter be placed on the Court file with a copy to be provided to each party or their respective solicitors.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5593 of 2007

MS NASSAR  

Applicant

and

MR NASSAR  

Respondent

REASONS FOR JUDGMENT

1. On 18 May 2007 the wife, as I will call her, caused to be filed an Application for Final Orders and an Application in a Case.  So far as the Application in a Case is concerned, a direction was made that the Application be served and leave was granted for it to be listed.  The date fixed on my copy at least of the Application specified that it was to be heard on 18 May 2007, however there is also a notation on both Applications that the Court hearing date was 23 May 2007 and that is the day upon which I am hearing the matter.  The proceedings have not been able to be served upon the husband.

2. Separation in this matter took place relatively recently; that is to say, the final separation, noting that there have been some earlier separations.  Prior to separation the parties were living in New South Wales at C.  The wife left those premises on 24 March 2007 and came to Melbourne where she has been staying with her sister.  She has filed an affidavit in support of her Application which deals with the various parts of that application which are the subject of orders sought by her.  I am concerned today only with that part of her Application which concerns the welfare of the children of the marriage.

3. In her affidavit, the wife has deposed to the arrival by the husband in Melbourne “a couple of weeks ago” and his alleged and very concerning behaviour as detailed in her material.  The behaviour was such that the wife says that she collapsed and was taken by ambulance to hospital.  She is concerned about the safety of the children.  The husband, according to her material, has exhibited over the marriage a regrettable lack of self-control, anger and physical violence.  That is not restricted to the wife given that the wife has also deposed to physical violence committed upon the children.  She has given details of some such events in her material.

4. Her concern is also aroused by threats, which she says the husband has made in the past, that he would take the children with him to Lebanon if she did not stay with him in the marriage.  She believes that he has become aware of the school which the children attend and is concerned that he might abduct the children and fulfil the threats which he has made.  She has the children's passports with her but this, whilst being of some reassurance to her, is not a complete solution as she sees it given that she does not know whether or not he can apply for new passports in Lebanon without her consent.

5. Attempts have been made to serve the husband.  I have been told from the Bar table and have seen an email from the process server who has been engaged to do so.  That email is dated 22 May 2007.  The information conveyed in it is as follows:

   “Agent is still trying.  Property is up for sale and no person was there at the time of attendance.”

   The property in question is the former matrimonial home at C.

6. Given the matters raised in the wife's material as to the welfare of these children and given that this is not a situation where no attempts have been made to serve the husband - quite the reverse - I am satisfied that for the children's sake the orders made for their protection should be in fact made.  The husband's position will be protected in the sense that he will be given liberty to apply at short notice.

7. I prefer to allow a realistic time for the period of adjournment rather than have the matter come back basically too soon, so I will adjourn the matter for roughly three weeks.  Hopefully that will enable service to be effected upon the husband.  As I said, his position is protected in the sense that he will be granted liberty to apply at short notice in the intervening period of time.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:                 

Date: 21 June 2007