Nimeiri and Babika (No 2)

[2012] FamCA 899

FAMILY COURT OF AUSTRALIA

NIMEIRI & BABIKA (NO 2) [2012] FamCA 899

FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – Orders suspending the father’s time and communication with the children –injunctive orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Nimeiri

RESPONDENT: Mr Babika

INDEPENDENT CHILDREN’S LAWYER: Lehmann Featherstone

FILE NUMBER: CSC 545 of 2010

DATE DELIVERED: 15 October 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 15 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S Sinclair

SOLICITOR FOR THE APPLICANT: Bottoms English Lawyers

COUNSEL FOR THE RESPONDENT: Mr K Cuthbertson

SOLICITOR FOR THE RESPONDENT: Cuthbertson & Co

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Lehmann

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Lehmann Featherstone

Orders

UNTIL FURTHER ORDER

1.All orders be suspended enabling the father, Mr Babika to spend time or communicate with the children B born … November 2000, C born … April 2005 and D born … November 2010 (“the children”).

2.Pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth), the father, Mr Babika is prohibited from:-

a.harassing molesting or stalking the mother and/or the children;

b.causing or threatening to cause bodily harm to the mother and/or the children;

c.entering or remaining on any premises at which the mother and/or children live or reside;

d.entering or approaching any place where the mother works or is employed; and

e.entering or approaching any school which the children attend.

3.Pursuant to s 65DA(2) and s 62B, the particulars of 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 these particulars are included in these orders.

4.These proceedings be adjourned for interim hearing before me at 10.00am (eastern standard time), 11.00am (eastern summer time) on Tuesday 23 October 2012 by videolink from Hobart to Cairns.

5.Leave be given for the mother to attend on 23 October 2012 by telephone.

IT IS DIRECTED

6.A copy of the reasons for these orders be taken out and placed on the court file.

7.A copy of the Notice of Child Abuse, Family Violence or Risk of Family Violence and the mother’s affidavit be forwarded by the mother’s solicitors to the Department of Child Safety within two (2) working days of today’s date.

IT IS NOTED

8.The interim order made by Federal Magistrate Willis on 21 February 2011 providing that the children live with the mother remains in force and effect.

IT IS CERTIFIED

9.Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nimeiri & Babika (No. 2) 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 HOBART

FILE NUMBER: CSC 545 of 2010

Ms Nimeiri

Applicant

And

Mr Babika

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1.This is an interim application which was listed before me last Friday afternoon at about 6.00 pm Eastern Summer Time and about 5.00 pm Eastern Standard Time. 

2.It was raised by way of an oral application by the mother to the Court expressing serious allegations of violence and threats by the father to her, to the children and to other members of the community.  I was assured at that time that the mother was in a safe place, the children were in a safe place and that applications had been made to police and state authorities in respect to this matter. 

3.I made directions that the material be provided to the Department of Child Safety.  I also directed that the mother file an application and an affidavit in sworn form today and had the matter listed before me today so that the father would know what the allegations were and would be in a position to respond to them, and so that the Independent Children’s Lawyer, who had been involved in the matter, could also make submissions. 

4.These proceedings have had somewhat of a history in that they were commenced in the Federal Magistrates Court in 2010 and a family report was obtained from a Mr P in October 2011.  Mr P, in his report, raised serious issues of sexual assault by the father on the mother and violence by the father on the mother and on the children. 

5.The proceedings were transferred to the Family Court by Willis FM on 5 December 2011.  For some reason for which I have not as yet been able to discern, the matter was placed before a registrar and not brought to the notice of a judge until last Friday. 

6.The mother now asserts in her affidavit a number of serious matters, and I caution myself and note that these matters are assertions of fact which have not in any way been tested, but they are, to say the least, troubling.

7.The father was born in a country in East Africa in 1972.  The mother was born in a neighbouring country in 1982.  The mother, in 1994, was in a refugee camp and her parents and siblings died, apart from one brother, in 1997.  In 1998, the mother, then 16, met the father who was 26 and asserted that she was being abused by a man in the refugee camp and commenced a relationship with the father.  The mother asserts that this relationship was peppered with instances of sexual abuse and violence.  There are three children of the relationship namely: B, aged 11; C, aged seven; and D, now aged 23 months. 

8.In 2005, the parties were sent to Australia by the United Nations and commenced living in E Town.  During this year, the mother says that the father’s violence to her has escalated.  She says that the father has come to her home angry and with friends and has refused to leave.  She says that the father has intimidated her at the Children’s Contact Centre and also members of the staff at the Children’s Contact Centre.  She said, in May 2012, the father came to the house and was very angry because money had been deducted from his bank account in relation to arrears of child support. 

9.The mother says in her affidavit that the father has threatened to kill her, kill the children, and has talked to her about honour killings and warned her not to have relationships with others.  There is evidence from the mother that the father has threatened her lawyer and made a series of intimidating threats.  The mother has reported this matter to the police but no action has followed at this stage, as the mother is concerned, she says, that when the father finds out that she has complained, the police will not be able to protect her.  She says that she has gone to refuges in E Town but the father has found those places. 

10.I do not know what the father’s response to this will be, and he is entitled to have a response.  His solicitor has informed me from the bar table that his client has not seen the children at the present time.  Of course, that is not evidence, and I intend to adjourn the proceedings until Tuesday of next week to enable the father to provide affidavit materials and to enable the Independent Children’s Lawyer to go through the documents on subpoena and provide a bundle of documents to me, to counsel for the mother and the solicitor for the mother and solicitor for the father. 

11.It would seem to me that not seeing the children for one week, having regard to the material provided and the untested evidence of Mr P, it is not likely to cause significant harm to the children.  Leaving the children in the care of the father, particularly the unsupervised care of the father, in these circumstances, could expose them to risk.  There is some evidence that the children do not wish to see the father, but of course that evidence remains untested. 

12.It seems not in issue that the mother is the primary carer of the children, and that the father has had little or no contact with the younger child at least.  There is significant evidence of violence, abuse and controlling behaviour over a long period of time. 

13.Having regard to those allegations and the availability in this Court of the matter being heard on an interim basis very soon, I intend to make orders suspending the time the father has with the children, restraining him from approaching the mother or the children in the meantime, and I will also give leave for the mother to attend court on the next occasion by telephone provided that counsel is able to attend court, and I direct that a copy of these reasons be taken off and placed in the court file. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 October 2012.

Associate:     

Date:              15 October 2012