Amir and Jabbar - [2007] FMCAfam 782

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AMIR & JABBAR

[2007] FMCAfam 782

FAMILY LAW – Parenting orders – the parents of the three children are Somalian Muslims who emigrated from Somalia to New Zealand before the children were born – mother and children relocated to Australia in 2001 – children taken by mother to Somalia in July 2006 and left with maternal grandmother for more than 12 months – father concerned for children’s welfare – father removed children from grandmother and attempted to return with children to New Zealand – recovery order executed in Melbourne when father and children were en route to New Zealand – each party alleges children (all female) are at risk of circumcision in the care of the other – allegations of father’s violence given little weight – presumption of equal shared parental responsibility not rebutted – orders for children to spend equal time with each parent pending further determination – restraining orders made.

Family Law Act 1975, s 61DA

Applicant:

MR AMIR

Respondent:

MS JABBAR

File number:

MLC 8908 of 2007

Judgment of:

Hughes FM

Hearing date:

26 September 2007

Delivered at:

Melbourne

Delivered on:

26 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr Williams

Solicitor for the Applicant:

Yarra Legal

Counsel for the Respondent:

Ms O. Nikou SC

Solicitor for the Respondent:

Nicholes Family Lawyers

ORDERS UNTIL FURTHER ORDER:

That the children [X] born [in] 1997 and [Y] born [in] 1997 and [Z] born [in] 2000 live with each of their parents on a week about basis with handover to occur at the conclusion of school each Friday.
That the children spend time with the parent with whom they are not living from after school until 7.00pm each Wednesday.
That handover of the children shall occur at [omitted] Police Station on any occasion it does not occur at the school.
That each party facilitate any reasonable requests by the children for telephone communication with the other parent.
That each party facilitate the children attending [omitted] Primary School from 8 October 2007.
That each party is free to be involved in the children’s school life and attend any school functions or events to which parents are normally invited.
That the parties take all reasonable steps for the children to attend upon Dr S, Paediatrician or her nominee as soon as practicable.
That each party is restrained from arranging any medical procedures for the children including circumcision, without the consent of the parent in writing.
That each party advise the other of any medical treatment obtained by them for the children as soon as practicable.
That the parties take all reasonable steps to facilitate the preparation of a family report by Mr L as to the nature of the relationship between the children and each parent, with such report to be released as soon as possible. The cost of the report is to be shared equally between the parties and it is requested that Victoria Legal Aid consider the requests by the parties for funding for this report.
That pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children [X] born [in] 1997, [Y] born [in] 1997 and [Z] born [in] 2000 and Victoria Legal Aid is requested to facilitate such appointment urgently.
That upon notification of the identity of the Independent Children’s Lawyer, each party shall forthwith provide to the Independent Children’s Lawyer a copy of all documents filed by them in the proceedings.
That pursuant to section 91B of the Family Law Act the Department of Human Services is invited to intervene in these proceedings.
That the proceedings be adjourned for further interim hearing to 1 November 2007 at 9.30am.
That the matter be listed for a 3 day final hearing commencing 28 April 2008 at 10.00am.
That the extempore reasons for decision be transcribed and a copy provided to each party.
That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 8908 of 2007

MR AMIR

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

In these proceedings I am required to make a determination about the short‑term interim arrangements for the three children, the subject of these proceedings. The children are 10-year-old twins, [Y] and [X], born [in] 1997, and their younger sister, [Z] born [in] 2000. The twins are 10 years old and their sister is seven.
There have been dramatic events in the children's family over the last two months. There will need to be at least the opportunity for a further interim hearing, at which time decisions will be made about whether or not the matter remains in this court or is transferred to the Family Court of Australia. An independent children's lawyer will be appointed who will assist with the making of those decisions on the next occasion.
In the meantime, each parent seeks an order that the children live with them. The father says the children should spend time with their mother every second weekend and once in the alternate week. The mother says the children should spend no time with their father until the matter is further considered. Her alternative position is that the father should have limited supervised time with the children.

Background

The parties are both Somalian Muslims. They were married on [date omitted] 1996 and separated in 1997. The mother says the separation occurred in August, the father says November. The parties reconciled for a period in mid to late 1999 before separating again in August 2001.
The parties had emigrated from Somalia to New Zealand and were living in New Zealand when they separated in 1997. In March 2001 the mother and children relocated to Australia. The father moved to Australia at the same time but returned to New Zealand in August 2001. He then travelled to Australia from time to time.
The mother says she actively encouraged the father to spend time with the children following separation, but the father was not particularly motivated to do so. The father says that he kept in contact with the children by telephone and by visiting them in Australia but that many of his attempts to spend time with the children were frustrated by the mother.
In July 2006 the mother took the children to Somalia and planned to leave them with her mother for a period of 12 months, until July 2007. She said she did this for “family and cultural” reasons. She wanted them to meet their maternal grandmother and other relatives and to develop an understanding of their cultural heritage. The mother at that stage had not seen her own mother for more than 16 years. The mother stayed with the children at the home of the maternal grandmother in Somalia for a period of about six weeks. She then travelled to Nairobi where she married her current husband. She returned to Australia in October with her husband and gave birth to her fourth child on [date omitted] 2007.
The mother says in her affidavit filed 9 August 2007 that she had planned to collect the children in July 2007 but did not do so on medical advice following the birth of her child in [omitted] 2007. She has filed further material but has not explained what medical problem prevented her from collecting the children.
It is common ground that in late July or early August 2007 the husband took the children from Somalia and planned to return with them to New Zealand. He was intercepted at the Melbourne Airport and the children removed from his care. They were returned to their mother. A recovery order had been issued on 9 August 2007 following an application by the mother to this Court on that day.
In her supporting affidavit the mother gave evidence about the circumstances in which the children were removed from the maternal grandmother. That evidence gives the impression that it was a highly dramatic scene in which the children were forcibly kidnapped at gunpoint. She says in her affidavit that she was led to believe her mother had been killed, but was later informed that, although a gunshot had been fired at her mother, it had missed. She said her mother had been assaulted and the whereabouts of the children were unknown.
The mother says that the father was aware of her plans for the children to live in Somalia for 12 months. The father disputes this and says that he had no idea the children would be going to Somalia. He says that if he had known he would have taken steps to prevent it as he believes Somalia is a dangerous country, which is why he and the mother left as refugees. The father disputes the mother's motives in leaving the children in Somalia, but that is not a matter to be determined today.
The father says that in early 2007 he heard news reports about increased violence and warfare in the area of Somalia, [omitted], in which the children were living with the maternal grandmother. He says he asked his brother to approach the wife about when the children would be returning. He says he gained the impression that the mother did not intend to bring them back to Australia. His brother offered to collect the children from Somalia but says that the mother refused his offer.
The father says he then set about raising money and making arrangements to collect the children himself. He made contact with the Department of Foreign Affairs and Trade in New Zealand who provided advice about what assistance would be available for him in Somalia and Kenya.
In July 2007 the father travelled to Somalia. Contrary to the impression given by the mother, I am satisfied that he, at least initially, went about dealing with the maternal grandmother in a calm and civilised manner.
The father met with the elders of the community who lived near the grandmother. Although there is dispute about the details, it is common ground that the father met with the grandmother on the first occasion in the presence of at least one of the elders and that they all shared a meal. The father says the children were pleased to see him. He said he was concerned about their state of health as they were living in poor conditions and had lost weight. The father was unable to persuade the maternal grandmother to release the children to him.
The father says he went to the police and then made an application in the State Court of [omitted]. He says he obtained an order of the Court granting him custody of the children. The father tendered in these proceedings a copy of the order with an English translation indicating that the order was made in the [omitted] Regional Court. The mother disputes the validity of the order and of the Court.
The following day the father returned to the home of the maternal grandmother with at least several other men, some of whom were armed. The father says through his counsel today that the armed men were actually police officers. In any event, it appears that no bullets were fired and that the children were taken in a hire car to Nairobi in Kenya where the father obtained assistance from the New Zealand Consul. Arrangements were made for emergency travel documents to be prepared for the children so they could travel with their father to New Zealand.
Notwithstanding that the mother told this Court that she was unable, on medical advice, to travel to Somalia to collect the children until October 2007, on 20 August 2007 she arrived at the home in which the father was staying in Nairobi. The mother says the father attacked her at that time in front of police officers and he was then arrested.
The father denies assaulting the mother. He says the police did arrest him on the strength of allegations made by the mother that he had killed somebody and was threatening to kill her. The father spent the night in custody and was released on bail the following day. The proceedings were ultimately discontinued. The father says this is because it became clear to police that the mother had made false allegations. This is disputed by the mother, and again is a matter which will be tested if necessary at final hearing.
Ultimately, the father was able to obtain the necessary documentation and left Nairobi with the children, arriving in Melbourne on 12 August 2007 en route to New Zealand. This is when the children were removed from him at the Melbourne Airport.
As mentioned earlier, each party seeks orders for the children to live with them primarily until the final hearing or at least until further interim hearing. The mother says that the father is violent; he is fond of chewing a particular plant which has amphetamine-like properties; and that he is committed to having the children circumcised. She says there is a risk that circumcision will occur if the children are left in his care, even in Australia.
The father says that he is adamantly opposed to female circumcision and that it is the mother who is in favour of it. He says that the children told him that they were in fact circumcised in the care of their maternal grandmother during their time in Somalia. He says that he took them to a doctor in Nairobi who confirmed this was so.
Both parties agree that there should be a restraining order in relation to circumcision of the children if it has not already occurred and that the children ought to be seen by a female paediatrician for the purpose of assessment of this and other issues.
There are many issues in contention in these proceedings. It is not possible for me to make an assessment of where the truth lies on the hastily‑prepared material before me and without the benefit of cross‑examination.
I do not put much weight on the mother's complaints about the father's violence as she has said at several points in her affidavit material that she actively persuaded the father to spend more time with the children after she moved with them to Australia. Almost all of her allegations about violence relate to periods when the children were very young and prior to her encouragement of the father spending time with the children. I do not believe that the mother would actively encourage the father to spend time with the children if she thought he was a danger to them. Similarly, her allegations about the father chewing the plant with properties similar to amphetamines occurred at the time they lived together more than 10 years ago.
The mother alleges that at the time the father took the children from the grandmother the youngest child was assaulted by the father. This is disputed by the father. The children have been with the mother now since 12 August 2007 and it appears that no further allegations of violence have been made about the six‑week period in which the children lived with their father in Nairobi. It is reasonable to expect that, if the father was as violent as the mother suggests, the children are likely to have made complaint about his behaviour during that period.
The parties agree that an independent children's lawyer needs to be appointed. They also agree there needs to be an urgent report which addresses the nature of the relationship between the children and each parent, and I will make those orders. The parties will have another opportunity to address the Court in relation to interim arrangements once the independent children's lawyer is appointed and the report is available. The Department of Human Services may also wish to be involved. It seems that the children have been interviewed by an officer of the Department since their return to Australia.
In the meantime, I must decide where the children should live and what time they should spend with the other parent until the matter comes before the court. In making that determination I am guided by the objects and principles of Part VII of the Family Law Act which deals with children’s matters.
The objects of Part VII are to ensure that the best interests of the children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children; and
b)protecting children from physical or psychological harm;
c)ensuring children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The principles underlying the object are that:
a)children have the right to know and be cared for by both parents, regardless of whether their parents are married, separated or have never married or never lived together; and
b)children have a right to spend time on a regular basis with and communicate on a regular basis with both of their parents and other people significant to their care, welfare and development; and
c)parents jointly share duties and responsibilities concerning their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture, including the right to enjoy their culture with other people who share that culture.
In any proceedings involving children, the best interests of the children are the paramount consideration.
Section 61DA of the Family Law Act requires a court to apply a presumption that it is in the best interests of children for the children's parents to have equal shared responsibility. That presumption does not apply in certain circumstances and may be rebutted. I am not satisfied in this case that it does not apply or that it has been rebutted.
If a parenting order provides for equal shared parental responsibility, the court must consider whether it is in the best interests of the children and reasonably practicable for the children to spend equal time with each parent. If it is, the court must consider making such an order.
In this case I am not persuaded that there is any evidence which would warrant me preventing the children spending significant time with both parents, especially in the relatively short period before the matter returns to this court for further interim hearing. I am satisfied on the basis of the evidence and on the submissions I have heard that the best interests of the children will be served by them maintaining a proper relationship with both of their parents pending further determination. This will also provide reassurance to the children that both of their parents are actively involved in their lives. The children are no doubt somewhat confused by the events of the last few months, having their father suddenly appear in Somalia at the home of their maternal grandmother; and then, when they were expecting to travel to New Zealand with him, suddenly being whisked away from him and not seeing him again between 12 August and 26 September.
Accordingly, the orders I propose to make are that until further order the children live with each of their parents on a week‑about basis, with hand‑over to occur each Friday. I do not have a particular time in mind, so the parties can address me about that and, if they need to obtain instructions, I will allow that. I will also order that the children spend time with the parent with whom they are not living from after school until 7 pm on one day in the alternate week; probably Wednesday, unless there is a preference for a different day.
Unless I am persuaded otherwise, I do not propose to make an order about telephone contact. It seems to me that each of the children should be able to speak with their other parent by telephone at any reasonable time. Both parties should be free to be fully involved in the children's school life. I will make the orders about the paediatrician, the family report and the appointment of an independent children's lawyer.

I will make restraining orders about any unilateral medical procedures for the children, including circumcision, and require that each party advise the other about any medical treatment obtained by them for the children. I will make a note that the issue of whether or not the matter ought to be transferred to the Family Court Magellan list needs to be decided on the next occasion.
It is probably too early this time, and perhaps I should consider it on the next occasion, but I did want to raise the possibility of some mediation. I know there has been a lot of unhappiness between these parties. I do not necessarily envisage mediation in the one room, but I want the parties to at least start thinking about how they might begin a conversation about future arrangements for the children.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Hughes FM

Associate:

Date: 3 October 2007