Tuesday, 18 November 2008

Family Court case: I'm going whether you like it or not

In the recent Family Court case of Ihab and Aarif (No2), the wife proposed that she and the children move to Syria. The husband opposed the move. The matter was listed for trial. There was a mention before the court. The court was told by the wife's lawyer that she was going, now, with or without the children.

Justice Cronin noted:

That leaves the children in an invidious position, having regard to their vulnerability and age. In normal circumstances, one would have then turned to the father of the children and asked the question of whether he would take over the responsibilities. However, in this case, I have some concerns, not only because the professional background suggests that that is not necessarily a good idea for these children, but more importantly, the independent children's lawyer does not support that.
That leaves me with a dilemma in that although the mother may file a notice of discontinuance, and therefore not participate in the proceedings any longer, it does not necessarily follow that I would make an order that the father have the children. There is also the question of the paternal grandparents' role in the proceedings and at the moment I have no evidence as to what relationship they had with the children to the extent that they could be the full-time carers. There was a question raised and discussed earlier this morning about the prospect of making an order that the wife be precluded from leaving Australia.
There is already an order in existence precluding the children leaving the Commonwealth of Australia, and leaving aside any question of the jurisdictional power to make that order, I have some concerns as to its point, and I am comforted by the fact that this is not just a whim by the mother of these children, having regard to the fact that she has been advised very competently by a number of people.

What then to do?

His Honour took the practical step of involving the statutory authority for protecting children, in this case the Victorian Department of Human Services. His Honour:
  1. order that his reasons and the transcript be prepared quickly
  2. then supplied to the Department
  3. that the Department have leave to intervene, noting: "It may very well be that they decide not to intervene in the proceedings but to take their own proceedings under State legislation by filing an application for protection of the children in the Children's Court. If they take that course of action so be it."
  4. maintained control over the file, adjourning it for a short time back before him.

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