Riek and Gambar

[2013] FamCA 1102

FAMILY COURT OF AUSTRALIA

RIEK & GAMBAR [2013] FamCA 1102

FAMILY LAW – PRACTICE AND PROCEDURE

APPLICANT: Ms Riek

RESPONDENT: Mr Gambar

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9358 of 2013

DATE DELIVERED: 10 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 10 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sageman

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all extant interim applications be adjourned for hearing in the Senior Registrar’s Duty List at 10.00am on 28 January 2014.

2. That until further order the children B born … 2003, C born … 2005 and D born … 2009 live with the mother.

3. That by 4.00pm on 13 December 2013 the mother do all such acts and things as may be required to serve a sealed copy of these orders upon the respondent by registered post to Mr Gambar, …, Parliament, Country E and by email at …

4. That by 4.00pm on 23 January 2014 the father file and serve:-

   (a)Notice of Address for Service;

   (b)Response to Initiating Application; and

   (c)Any affidavit upon which he seeks to rely with respect to the wife’s interim application.

5. That there be liberty to apply to both parties.

6. That 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.+

IT IS NOTED that publication of this judgment by this Court under the pseudonym Riek & Gambar 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 9358 of 2013

Ms Riek

Applicant

And

Mr Gambar

Respondent

REASONS FOR JUDGMENT

1. I have before me today an Initiating Application, of the mother, Ms Riek, originally filed on 29 October 2013.  That application has been listed before me on two previous occasions, being 15 November 2013 and also 29 November 2013.  On each of those days, I have made orders firstly for the issue of a passport in relation to the parties’ eldest child, B, and further, I have made procedural orders in relation to service of the Initiating Application and supporting affidavit, together with the orders made, on the father.  The father resides in Country E.  The mother is resident in Suburb F in Melbourne with the parties’ three children, B, who’s age 10, C, who is aged eight, and D, who is aged four.

2. The mother is due to give birth to another child from a different relationship, her fourth child being due on or about 20 December.  The father was born in Country E in 1975, and the mother was born in 1985 in Country E.  They married in 2003.  The parties’ eldest child, B, was born in Country G in 2003.  In 2004 the mother migrated to Australia to live with B.  The parties’ second child, C, was born in Australia in of 2005. 

3. In October of 2005 the mother obtained Australian citizenship.  The parties separated in Australia in August of 2008, and in late 2008 the father returned to live in the Country E.  The parties’ youngest child, D, was born in Australia in 2009.  The children continued to live with the mother in Melbourne until February of 2013.  In that month, the mother and the children travelled for a holiday to Country G.  The purpose of that trip, as set out in the mother’s affidavit filed 29 October, was to visit family.  The mother deposes in her affidavit material that upon arrival in Country G, the father seized the children’s passports and the mother’s passport and effectively kidnapped B.

4. Ultimately the mother was able to obtain the return of her own passport and the passports of the two younger children.  However, B remained in Country G and ultimately was enrolled in a boarding school in Country G by the father.  The mother maintained communication with B whilst she was in Country G through telephone.  The mother deposes in her affidavit that B had very limited contact, if any, with the father during the period when she was enrolled in boarding school in Country G.  Following the orders that I made for the issue of a passport for B, the mother has travelled to Country G in November this year.

5. I am informed that on or about 29 November 2013 the mother and B returned to Australia.  The mother and the three children continue to live together in Suburb F.  The mother deposes in her affidavit that she is fearful of the father.  She deposes that he has made threats to kill.  She deposes that she has been subjected to family violence, that during the exchange when he removed B from her care, he clenched his fists and threatened to hit her.  The children were present when that exchange occurred.  What I’m asked to do today is to make an interim order which effectively will confirm the children’s living arrangements, pending a return to court of this matter hopefully at a time when the father can participate in the proceedings.

6. The father has only recently been served with the affidavit material.  I have an affidavit of service from Ms Sageman, which is sworn 7 December 2013.  That affidavit confirms that the father has been served by both registered mail and by email.  The father has acknowledged receipt of service by email dated 9 December 2013.  In that email, he indicates that he is prepared to participate in the proceedings upon his arrival in Australia.  Accordingly, any orders that I make are likely to be for a short period only until such time as the Senior Registrar has the opportunity to consider not only the material filed by the mother but hopefully material filed on behalf of the father.

7. What I propose to do today is to make orders adjourning this matter to the Senior Registrar’s list in late January 2014.  I will further make orders that provide that until further order, the children will live with the mother.  In making that order, I have regard to the considerations set out in section 60CC of the Family Law Act.  I have regard to the fact that there are serious allegations of family violence raised by the mother.  Of course, those allegations are yet to be responded to and are untested.  However, those allegations are serious, and I am mindful of them.

8. I am also mindful of the relationship that the parties have with the children.  I take into account that the children have been in the mother’s primary care since the father’s return to Africa in late 2008.  The mother deposes that she has been the effective sole caregiver to the children for the period between 2008 and 2013 and further that there has been little involvement of the father in the lives of these children since that time.  Again, these are untested allegations, and the father will have an opportunity to respond to these allegations in due course.  However, for the short term, and having regard to the children’s best interests for the period until this matter can be more fulsomely considered by the court, I consider that it is in their best interests that the orders be made as I have foreshadowed. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 10 December 2013.

Associate: 

Date:  10 December 2013