Name of case: Nejem & Nejem  FamCA 113
Origin State: Non Specified African State
Destination State: Australia
Court: Family Court of Australia
Status of case: Final
Level of court: First Instance
Judge: Cronin, J
Order: That an expedited best interest of the children hearing be scheduled.
The wife left the unspecified Non Hague Convention African State (NHCAS) on 4 August 2018 with the 2 children of the marriage aged 9 and 6years. Upon leaving the NHCAS the wife advised the husband that the children would not be returning to Africa. The husband followed a few days later and the couple attended counselling. The husband returned to the NHCAS he says for business reasons and the children were enrolled in and commenced school in Australia.
The husband’s solicitor wrote to the wife requesting that the children return to the NHCAS and threatening a court application. No application was made. In September 2018 the husband returned to Australia for 10 days and was involved in the children’s schooling taking them to and from school. In October the wife and children moved out of the wife’s parents home and into their own accommodation. In November the wife filed an application for parenting orders in the Australian court. The husband responded seeking orders that the children be returned to the NHCAS and that matters of their care be resolved in the courts of that state. No applications had been made to the courts of the NHCAS.
The wife is an Australian citizen and the husband is a citizen of the NHCAS. The children were born in Australia and are dual citizens. The couple and the children have visited Australia annually. The couple run their safari tour business through an Australian bank account. They have significant savings in Australia and own a house in Australia having contemplated a 12-month stay in Australia at some time.
Essentially the question before the judge was weather their should be a summary hearing on the question of weather the children should be returned to the NHAS or weather there should be an expedited hearing of a broader nature allowing the testing of the evidence about the children being settled in Australia.
The judge ordered a more comprehensive hearing on the merits and decided that it would not be in the best interests of the children for the matter to proceed on a summary basis. That hearing was expedited.
- Delay on the part of the husband in taking action after the letter sent by his solicitor
- Allowing and participating in the children establishing themselves in Australia (school, sports and separate accommodation). Parra 88 The fact that the children have settled, even on a temporary basis, in Australia and have set down roots is important
- Balancing when the matter might be heard in the NHCAS and Australia given that no proceedings on foot in the NHCAS and that an expedited hearing in May 2019 would be ordered in Australia
- Need to determine the views of the children and their level of maturity
- Need to test the wife’s statement that she will not return to Africa and the implications of her attitude
- Need to test the parties conflicting assertions as to who was principally responsible for the care of the children in the NHCAS
- Para 90 In essence therefore there are a number of issues that need investigation and in respect of controversial issues, the evidence needs to be tested. In my view therefore it is not appropriate or in the best interests of these children that there simply be a summary hearing in which the children are returned to Africa for the issue to be fully canvassed.