Raji and Hassam

[2008] FamCA 4

FAMILY COURT OF AUSTRALIA

RAJI & HASSAM [2008] FamCA 4

FAMILY LAW – CHILDREN – Departure from Australia – Watch list order – Order without notice that children’s names be placed on the Airport Watch List until further order – The wife holds dual Australian and Egyptian passports as do the three children of the marriage – Commentary on power to order injunction restraining wife from taking the children out of the Commonwealth of Australia.

Family Law Act 1975 (Cth) (as amended)

APPLICANT: Mr RAJI

RESPONDENT: Ms HASSAM

FILE NUMBER: MLC 66 of 2008

DATE DELIVERED: 4 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 4 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the husband’s Application filed 4 January 2008 be deemed urgent and all times abridged for hearing this day.

2. That until further order the wife be restrained from removing the children … (female) born on … September 2000, … (female) born on … April 2002, and … (male) born on .. February 2006 from the Commonwealth of Australia.

3. That the Australian Federal Police place the names of the said children on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until further order of the Court.

4. That the husband do forthwith cause to be served upon the wife a sealed copy of the Initiating Application and Affidavit in support thereof filed on 4 January 2008 together with a sealed copy of the Orders made this day.

5. That the said Application be otherwise adjourned for hearing in the Judicial Duty List at 10.00 am on 14 January 2008.

6. That the ex tempore Judgment delivered this day be transcribed and placed on the Court file.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be known as Raji & Hassam.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 66  of 2008

Mr RAJI

Applicant

And

Ms HASSAM

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List and is an application brought by the husband and filed this day.  It is brought on as a matter of urgency.  The husband seeks an order that the wife be restrained from removing the three children of their union from the Commonwealth of Australia and that the children’s names be placed on the Airport Watch List and their passports surrendered by the wife to the court.  The Application is supported by an affidavit affirmed by the husband this day.  In addition, I have obtained further evidence from him seeking clarification of a number of issues raised in his affidavit. 

2. A short background is as follows.  The husband was born in Egypt in January 1969.  He is 39 years of age and came to Australia in 1981.  The wife was also born in Egypt in February 1972.  She is 36 years of age.  They married in Egypt and emigrated to Australia in 1998.  There are three children of their union, an older daughter who was born in September 2000, a younger daughter who was born in April 2002 and a son who was born in February 2006.

3. The parties separated following an incident on 1 January 2008.  That incident however only came to light in the giving of the husband's evidence before me and as I understand it, the wife obtained ex parte an Intervention Order against him on that day.  The husband was served with the order and vacated the former matrimonial home W. 

4. The terms of the interim Intervention Order include an order prohibiting the husband from assaulting, threatening or intimidating the wife and, significantly, from being within 200 metres of the property at W.  He did vacate the property as I said, and has not since returned although expresses a genuine fear that the wife and the children may not even be there at this time.  The Intervention Order is returnable at the Dandenong Magistrates Court on 10 January 2008 and the husband has caused to be filed a Notice of Intention to Defend those proceedings.  He has engaged lawyers to assist him.  The husband made it clear to me in the course of his evidence this afternoon that the incident, as deposed to by the wife, is untrue. 

5. The husband is a teacher by occupation at M School where he has worked for the past two years.  He has achieved a high tertiary standard in Australia, having obtained a bachelors degree and is registered with the Victorian Institute of Teaching. 

6. The wife also has ability to earn income, and formerly in Egypt was an administrative worker.  She has qualifications obtained in Egypt.  The wife worked with a company when in Egypt, and the husband has given evidence that the owner's sister of that company lives in Perth and has contact with the wife.  He is concerned therefore if the wife returned to Egypt it would not be difficult for her to obtain employment.  That would be an incentive available to her.

7. The parties own their home at W which is estimated by the husband to be valued at approximately $250,000.  There is a mortgage of about $200,000.  Each of the parties own a motor vehicle. 

8. The husband deposed that the older daughter was born with a cardiac condition which required surgery at the Royal Children's Hospital when she was young.  He said that the children understand Arabic, however, they prefer to speak English both in and out of the home.  The husband made it clear both in his affidavit and in his evidence before me that the children “love” Australia, their school, have established friendships and enjoy all the benefits that the Australian community can offer to children of their age.

9. The husband deposed that on a number of occasions the wife has in the past informed him that she feels "discriminated against" because of wearing the Hijab.  He said that almost every time “she visits one of her friends” she returns to the former matrimonial home in an upset condition, complaining that the "worst people from Egypt" have come to live in Australia and that she does not “want to know anyone”.

10. Furthermore, the husband said that on many occasions the wife has requested that he look for work overseas.  In his evidence before me, he also made it clear that the wife has asked him to look for work in Arabic and Islamic countries.  The wife has dual citizenship (Australian and Egyptian) as have the three children.  Both the daughters were born in Egypt and arrived in Australia when they were some three months old.  The Son was born in Australia. 

11. Significantly, the husband said that the wife has no relatives in Australia.  All her family reside in Egypt.  The husband expressed a fear that the wife might relocate overseas by reason of her unhappiness at living in Australia, not by reason of what the country can or cannot offer, but because she feels alone without family.  Given that the parties have now separated and that the wife has the ability to relocate overseas with the use of her current passport, the husband fears that she may indeed do so in a clandestine manner.

12. The husband made it clear that the children have always expressed “happiness” at the things they did together as a family and particularised such activities as going to the movies, picnicking together, fishing, swimming and enjoying backyard and home activities.  The children attend language school functions, and as a family, he attends report days and end of school celebrations.  He assists in taking the children on medical attendances.  The husband claims that he can do all that is required to care for the children and fears that if they leave Australia they may “be lost” to him.  It is not to be forgotten of course that Egypt is not a signatory to the Hague Convention. 

13. The husband has made it clear that although the wife retains the government family tax benefits, he continues to pay all accounts in respect of the former matrimonial home together with all school and associated expenses, including holidays.  The children have an attractive house in which to live and have safe and secure accommodation available to them.  He fears that if removed overseas the children “would lose” their school friends and find it hard to adjust to another language, such as Arabic.  He fears that he would be “erased” from their life.

14. Pursuant to section 61C of the Family Law Act 1975 (as amended), incorporating amendments consolidated to 1 July 2006, each parent of a child who is not 18 years has parental responsibility for the child. In note 1 to section 61C(1) of the Act where it is noted:

    “This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court.”

15. Thus it is that the husband and the wife each have parental responsibility for the three children of their union.  The husband at this stage seeks injunctive relief and that and that alone.  Section 68B(1) of the Act provides that:

    “If proceedings were instituted in the court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child ...”

16. That provision creates power to grant injunctions and make orders in relation to children, which is a wide power, providing to me a discretion to be exercised when it is appropriate to do so for the welfare of a child.  Pursuant to subsection (1), I can make orders or grant injunctions on an application in a wide range of matters.  The power is discretionary and it appears to me, in the circumstances that have been portrayed both in the affidavit of the husband and in his oral evidence in the witness box, that there is a risk that the children may be removed from the Commonwealth of Australia to a country which is not a signatory to the Hague Convention.  Until such time as this court can be satisfied that such will not be the case, it is appropriate, in my view and in the exercise of the wide discretion available to me, to grant the injunctive relief sought by the husband.

17. The husband and the wife have now embarked upon a course of litigation in the Dandenong Magistrates Court involving an incident that is said to have occurred on 1 January 2008.  It is sharply contested by the husband.  I propose to grant the injunction and place the names of the children on the Airport Watch List and order that the wife forthwith deliver to the Registrar of this court, Melbourne Registry, the children's passports. 

18. I will make those orders until further order and adjourn the proceedings to the week after next.  In the meantime the husband shall cause to be served upon the wife sealed copies of his Application, his affidavit in support and a sealed copy of the orders made this day.  She can then obtain legal advice and the matter may be re-ventilated before another judge at the time to whence I adjourn this matter.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  10 January 2008