Jimale and Adnan

[2010] FamCA 1275

FAMILY COURT OF AUSTRALIA

JIMALE & ADNAN [2010] FamCA 1275

FAMILY LAW – CHILDREN – Children to live with their Aunt – Children to to partake in community counselling.

APPLICANT: Ms Jimale

RESPONDENT: Mr Adnan

INDEPENDENT CHILDREN’S LAWYER: Mr Mulvany

FILE NUMBER: MLC 4846 of 2010

DATE DELIVERED: 17 August 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 17 August 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Billeam, Duty Solicitor

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER TJ Mulvany & Co

Orders

IT IS ORDERED:

1. That the applicant aunt, MS JIMALE, have sole parental responsibility for the children W born … 1995 and G born … 1996.

2. That the children live with the applicant aunt.

3. That the respondent uncle, Mr Adnan, spend time with the said children, or either of them, as agreed between the parties.

4. That the applicant aunt do all acts and things necessary to cause and permit the girls to partake in community counselling in the Suburb H area as recommended by the family consultant at Youth Counselling, telephone …, or such other counselling service as she considers appropriate.

5. That the applicant aunt and the independent children’s lawyer be at liberty to publish a copy of the Issues Assessment dated 16 August 2010, these orders and my reasons for decision in any other Court proceedings in Australia in relation to the said children.

6. That additionally the aunt and the children are at liberty to publish a copy of the Issues Assessment dated 16 August 2010, these orders and my reasons for decision to the Department of Immigration and Multicultural Affairs and to the proper officer of any school at which the girls, or either of them, attend as students.

7. That the order requesting the appointment of an independent children’s lawyer in proceedings number MLC4846 of 2010, being this proceedings and in proceedings number MLC3187 of 2010, being the proceedings under the Family Law (Child Abduction Regulations) 1986 be and is hereby discharged.

8. That otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

9. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4846 of 2010

Ms Jimale

Applicant

And

Mr Adnan

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me on the application of the paternal aunt of the children W born in 1995 and G born in 1996, that she have sole parental responsibility for the girls; the girls live with her and that the respondent, who is their stepfather, have such time with the children as may be agreed.  The application was filed on 28 May 2010. 

2. It is the second set of proceedings in this court in relation to the girls.  The first set of proceedings was taken under the Family Law (Child Abduction Convention) Regulations 1986 on 9 April 2010 by the State Central Authority for Victoria at the behest of the girls’ stepfather, Mr Adnan, in which he pledged that the children were being wrongfully retained by the applicant whilst in Australia.  Those proceedings progressed in this court until May 2010, when the court was advised that the Hague Convention application would be discontinued because at an extensive family conference it had been agreed that it was appropriate that the girls stay in Australia for the purpose of residing here permanently.  The girls are double orphans.  They lost their mother in January 2008 and their father in June 2009.  It was after the death of their father that they were brought to Australia on a holiday with their uncle (the applicant’s brother) in the company of their older sister, B.  Subsequently, B, who is now an adult, returned to Europe where she was happier.  B participated in the conciliation process pursuant to which it was agreed that the children remain in Australia.

3. The paternal aunt’s application is supported by an affidavit sworn on 27 May 2010 in which she details the negotiations which led to the agreement that the girls remain in Australia.  I am satisfied on evidence that I have heard this morning that the application has been served on the stepfather by post.  The court has the benefit of a children’s assessment prepared by Mr C, family consultant, dated 16 August 2010 and arising out of meetings between herself and the girls and herself and the applicant aunt on 26 July 2010. 

4. The application is essentially unopposed. 

5. The purpose of the family consultant’s assessment stated to be to ascertain the wishes of the girls in relation to Australia.  However, the other purpose, which is not stated, but which is fulfilled, is to check on their welfare and the adequacy of the care arrangements proposed by the aunt. 

6. Mr C assessed W in the following terms:

   [W] aged almost 15 presented as friendly and engaged young woman wearing a hijab.  She immediately presented positive of views of her life in Australia, commenting she enjoyed the weather and the space.  [W] speaks 3 languages and learnt English when at school in [Europe].  She attends [D School], an [religious] school in [Suburb E] with her sister and cousins.  W said “I like living here and want to stay I can learn more about my religion and visit with my family”.  The Consultant asked [W] about her life in [Europe] and what she remembers, she said “we have lived with our stepdad since about 2004, we went to [Country F] for two months and mum got married”.  When asked about the time she spent with her father [W] said “Dad would visit us every weekend and sometimes he would sleep there as well”.  [W] talks to [Mr Adnan] and her sisters on the internet every weekend.

7. Of G, the family consultant says the following:

   [G] aged nearly 14 presented as quieter than her sister and seemed nervous sometimes giggling.  She did not know why she was at the Court today but after an explanation was provided she appeared more settled.  [G] expressed enthusiasm about school and was especially enthusiastic about the social component of school.  [G] said “I like living with my aunt, it is different living with boys but I get on with them”.  At home [G] said “we have turns (a roster) for doing things in the house”.  G does not want to return to [Europe] although she said “I do miss my family and friends the most”, she commented she likes going to visit family here and enjoys all the social activities.  Like her sister [G] speaks with her stepfather and sisters every weekend.

8. The family consultant describes the applicant’s understanding of her role in relation to the children as follows:

   [Ms Jimale] is [W] and [G’s] paternal aunt.  The girls have been living with her for almost a year.  [Ms Jimale] believes as the paternal family it is her and other family members’ responsibility to take care of [W] and [G] since the death of their father in 2009.  [Ms Jimale] said “it is important for them to communicate with their sisters and stepfather in Europe and this happens every week on a Saturday”.  In regard to the girls’ going to [Europe] for holidays she agreed this would occur in the future whey they are settled and the Court matter has been resolved.  [Ms Jimale] also said that her brother had a significant parenting role in [W] and [G’s] lives when they lived in [Europe].  [Ms Jimale] said she has known the girls most of their life and before they came to Australia and would often speak to them on the phone.  All family members contribute toward maintaining [W] and [G] financially but also they are supportive and have warmly welcomed them into their lives in Australia.

9. The family consultant summarises her interview and findings as follows:

   [Mr Jimale], the paternal uncle joined the family for feedback and discussions of possible future directions.  He indicated he did not have any issues save for wanting a resolution.  The consultant discussed with the family the option of counselling for [W] and [G], although [Mr Jimale] indicated earlier in the meeting the family acts as counsellors to each other.  It is the consultant’s assessment it may be important for [W] and [G] to have the option of an independent counsellor to discuss any current concerns and issues that may present in the future.

   [W] and [G] are two girls in middle adolescence, a time of changes at many levels.  They have experienced the death of both parents within a year of each other, they have travelled and taken up residence in another country with family members they had not spent time with and started a new school all in the space of a year.  Both girls indicated to the Consultant they like living both with their aunt and in Australia and would like this to continue.  They communicate weekly with their stepfather and four sisters who live in [Europe], via a range of electronic communications and there are plans for them to have holidays there in the future.

10. Finally, the family consultant finds that the following future directions are indicated:

    i.[W] and [G] are to remain living with their paternal aunt, [Ms Jimale] in Australia.

    ii.[W] and [G] are to be linked with a community counselling service in the Suburb H area, for example, Youth counselling PH: … at … [Suburb H], Youth counselling Services PH: … or Youth Services PH: ...  These services provide a range of culturally sensitive immediate and long term services for young people in [Suburb H].

    iii.[W] and [G] to continue to communicate regularly with [Mr Adnan] and their sisters in [Europe].

    iv.[Ms Jimale] to ensure that [W] and [G] are to have holidays in [Europe] with their stepfather and sisters.

11. The child assessment is not a full family welfare report, as is commonly prepared in proceedings where there is disagreement between parents and evidence is required to be tested.  The court has recently had before it an application by the children’s stepfather, which has been discontinued.  I am satisfied that he has notice of this application now before the court.  I accept the family consultant’s assessment and place weight on it.

12. I am satisfied that there are appropriate arrangements for the children. 

13. I also heard from the aunt that she plans that the children will, in due course, go back to Europe for a holiday.

14. Initially, I understood her evidence to be that they would go this Christmas.  She clarified the position to say that they could not go this Christmas in 2010/11 because they don’t have residency documents, which would necessarily enable them to return to Australia, and she is looking to travel the Christmas period in 2011/12.  She says that she and her brother, who I note is also in court, should be in a position to pay the expenses.  The applicant, through Ms Billeam, the legal aid duty lawyer, has indicated that she will progress the community counselling recommended by Mr C.  In all of the circumstances, I am satisfied that the orders sought are in the girls’ best interests and I will make them. 

15. Mr Mulvany has been appointed independent children’s lawyer.  He informs the court and I accept that he has been in contact with the children’s school, D School, where they are in years 7 and 8, respectively, and I note that Mr Mulvany supports the orders sought by the wife.  That concludes the reasons for judgment. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:

Date:  5 May 2011