Jimale and Adnan

[2012] FamCA 282

FAMILY COURT OF AUSTRALIA

JIMALE & ADNAN [2012] FamCA 282

FAMILY LAW – CHILDREN - Ex-parte application to remove children from the watch list – application granted.

APPLICANT: Ms Jimale

RESPONDENT: Mr Adnan

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr T Mulvany

FILE NUMBER: MLC 4846 of 2010

DATE DELIVERED: 24 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 24 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Leaver (Duty solicitor)

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

TJ Mulvany & Co

Orders

1. IT IS REQUESTED that the Australia Federal Police remove the names of the children W JIMALE born … October 1995 and G JIMALE born … November 1996 from the Airport Watch List at all points of international arrivals and departures in Australia.

2. For the avoidance of doubt, paragraphs 1 and 3 of the Order made on 9 April 2010 in proceedings MLC3187/2010 between Ms Jimale  and the State Central Authority be and are hereby discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jimale & Adnan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 484 of 2010

Ms Jimale

Applicant

And

Mr Adnan

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me fairly late in the day in circumstances where the two subject children, W JIMALE born in October 1995 and G JIMALE born in November 1996 sought to board a plane for Denmark last night and were stopped because of a watch list order made in April 2010 in proceedings which were then extant between the State Central Authority and Ms Jimale.

2. The application is now brought on an urgent basis seeking ex parte relief permitting the girls to travel tonight on a much discounted penalty – with some discounted penalty – monetary penalty subject to seat availability.  The girls seek to travel to see their sister who is ill and who resides in Denmark.

3. I finalised the Hague abduction proceedings in May 2010 in matter number MLC3187 of 2010 and there delivered brief reasons which bear case neutral citation [2010] FamCA 1277. The abduction convention proceedings had been brought at the behest of the girls’ stepfather Mr Adnan and resolved after an international telephone conciliation between various relatives of the girls. The girls’ parents have both passed away.

4. In the parenting proceedings which were then in file number 4846 of 2010, I made final orders on 17 August 2010 and delivered reasons for judgment on that day which appear in case neutral citation [2010] FamCA 1275. I record that the proceedings were essentially unopposed and the upshot was that the applicant aunt has sole parental responsibility for the girls, that they live with her and that the stepfather have only such time as may be agreed.

5. I have read the affidavit of the applicant sworn 24 April 2012.  I have heard from Mr Leaver, duty solicitor, that his instructions are that there are no facts or matters which the applicant has concealed.  Mr Mulvany has obliged the court by reading the affidavit and the reasons for judgment in the previous Hague matter and says that he knows of no reason why the relief sought by the applicant ought not be granted. 

6. It is a fundamental entitlement in proceedings that any persons affected by the orders have notice of them.  In this case, however, I am satisfied that there is no person who ought to have notice of the proceedings who does not have notice of the proceedings.  The aunt is the sole carer of the girls and she would as the person with the sole parental responsibility role be able to take the girls out of Australia.  It appears to me that the earlier watch list order was not discharged by way of oversight rather than as any safeguard.

7. I therefore propose to make orders which will permit the girls to travel.  The orders which I pronounce will be somewhat more simple than those sought in the application.

8. Finally, I wish to express my appreciation to Mr Leaver, duty solicitor from Victoria Legal Aid, for putting this application together very quickly and professionally and that he appears in court outside usual court hours.  Likewise, Mr Mulvany, as independent children’s lawyer, received notice of these proceedings only a matter of minutes ago and has reviewed the material and participated to the extent that he is able.  In all of the circumstances, these two girls, whilst they travel for reasons which may be upsetting to them, have been the beneficiaries of the most professional and appreciated conduct by Mr Leaver and Mr Mulvany.  I wish them well.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 24 April 2012.

Associate: 

Date:  2 May 2012