Arbour and Odems and Anor

[2020] FCCA 2599

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARBOUR & ODEMS & ANOR [2020] FCCA 2599

Catchwords:
FAMILY LAW – Parenting – concerning two children aged five and nine – where the father has not appeared or engaged in the Court process – where the children live with the maternal grandmother – orders by consent of all parties apart from the father.

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit Court Rules 2001 (Cth), r.13.04A

Applicant: MS ARBOUR

First Respondent: MS ODEMS

Second Respondent: MR BARRATT

File Number: DNC 413 of 2019

Judgment of: Judge Young

Hearing date: 28 August 2020

Date of Last Submission: 28 August 2020

Delivered at: Darwin

Delivered on: 28 August 2020

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Gray

Solicitors for the First Respondent: Grays Legal NT

The Second Respondent: No appearance

Counsel for the Independent Children’s Lawyer: Ms Srinivas

Solicitors for the Independent Children’s Lawyer: Northern Territory Legal Aid Commission

ORDERS

UPON NOTING:

A.That these orders are by consent of the applicant maternal grandmother and first respondent mother.

B.That the second respondent father did not attend court today or participate in the proceedings.

THE COURT ORDERS:

Parental Responsibility

1. That the Applicant maternal grandmother Ms Arbour (Ms Arbour) have sole parental responsibility for the children X, born in 2012 and Y born in 2015 including for the children’s:

   (a)Health;

   (b)Schooling;

   (c)Obtaining and renewing passports for the children;

   (d)Taking the children on overseas holidays;

   (e)Relocation within Australia; and

   (f)Any other matter relevant to their care, welfare and development.

2. That Ms Arbour be entitled to obtain passports for each of the children without the signature of either parent, to enable the children to travel overseas for holiday and that this Order be sufficient for the purposes of the Australian Passport Act and the Passports Office to issue passports for the children on the request of Ms Arbour as the passport falls due for renewal.

3. That Ms Arbour provide a copy of these orders to Northern Territory Births, Deaths and Marriages office and the Registrar of Births, Deaths and Marriages office permit her to change each of the children’s surnames on their birth certificates without the signature of either of the parents.

Lives with

1. That the children live with Ms Arbour.

Orders for the children to spend time with the mother

1. That the children spend time with the Mother whilst they live in Darwin as agreed with Ms Arbour in writing and in default of agreement during public school terms:

   (a)Each alternate Sunday from 9am-5pm in Darwin; and

   (b)Once per month from Friday afternoon at 3:30pm to 5pm Sunday if the mother is with her partner and he is substantially present during the time, with the mother to collect the children in Darwin at the commencement of time and Ms Arbour or her agent to collect the children from the mother in Town B at the conclusion of time.

2. That during public school holidays as agreed between the parties in writing and in default of agreement:

   (a)Up to one week in Term 2 and Term 4 school holidays provided that the mother is with her partner and he is substantially present during the time; or otherwise

   (b)For a maximum of two consecutive days.

3. The mother is at liberty to attend the children’s birthdays, Mother’s Day, Christmas and Easter celebrations.

4. The grandmother and mother are to utilise the Picture Exchange Communication System when the children are in her care and follow all reasonable direction of either or both of the children’s treating health professionals.

5. The grandmother is to provide the mother with a written explanation of the children’s routines whilst in her care, including morning and night time routines.

6. The grandmother is to notify the mother of any health or education appointments the children are required to attend whilst in the mother’s care and the mother is to do all things necessary to facilitate the children’s attendance at these appointments.

Orders for the children to spend time with the father

1. That the children spend time supervised time with the Father at C Family Services, Darwin if the children reside in Darwin or otherwise at a supervised contact service in the locale the children reside and to give effect to this order the father:

   (a)is to notify Ms Arbour in writing, no less than 14 days in advance of his intention to spend time with the children;

   (b)confirm with the supervised contact service their availability and advise Ms Arbour of the date and time they are available; and

   (c)pay for the service in full.

Telephone communication

1. Ms Arbour is to do all things necessary to facilitate telephone communication between:

   (a)the mother and children; and

   (b)the father and the children,

   at either or both of the children’s request.

2. That the mother facilitate telephone time between the children and Ms Arbour at either or both of the children’s request when they are in the mother’s care.

Injunctions and restraints

1. That pursuant to s.68B(1) of the Family Law Act 1975 Mr Barratt born in 1991, the father shall be restrained and injuncted from:

   (a)Causing or threatening to cause bodily harm or verbally abusing;

   (b)Entering or remaining in a place of residence, hospital, employment or education except in accordance with order 11 of these orders;

   (c)Stalking, harassing or communicating directly or indirectly with the following people including by phone:

   (i)Ms Arbour born in 1966, Ms D born in 1976, Ms Odems born in 1991, X, born in 2012 and Y born in 2015

   AND IT IS NOTED this order is for the personal protection of Ms Arbour born in 1966, Ms D born in 1976, Ms Odems born in 1991, X, born in 2012 and Y born in 2015 and a breach of these orders or any of them attracts the power of arrest without warrant pursuant to s 68C of the Family Law Act 1975.

2. That each party is restrained by injunction and injunction issue restraining each from:

   (a)Speaking badly about any of the parties or their family members in the presence or hearing of the children;

   (b)Encouraging third parties to do so and ensuring that if a third party does so that they take all steps necessary to remove the children from the third party’s hearing or presence; and

   (c)Using physical discipline against the children.

Information exchange

1. That the grandmother advise the parents within 72 hours of any change to her contact phone number and email address.

2. That these orders shall, without more, act as authority to the children’s school to consult with each party (at the requesting parent’s expense) information about the children’s educational progress, school related activities, copies of the school reports, photographs, photograph order forms, certificates, and awards obtained by the children and other school communications ordinarily provided.

3. Upon provision of these Orders to all treating medical practitioners and allied health providers of the children, the practitioners or providers are hereby authorised and empowered by this Order to provide all medical history, information, reports, diagnosis and any other relevant information about the children's welfare, development and progress at the request and cost of the party requesting same.

NOTATION:

C.The father did not attend the last court event on 10 August, did not participate in the family report interviews in person or by phone and did not take up the offer for his appointment to be rescheduled and did not participate in the family dispute resolution process resulting in a s60I certificate being issued by NTLAC on 18 August 2020.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 413 of 2019

MS ARBOUR

Applicant

And

MS ODEMS

First Respondent

MR BARRATT

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning two children:  X, who is nine and Y, who is five.  The parents separated some time ago for reasons which are not entirely clear but would appear relate to, certainly on the part of the father, some questions about his mental health.  The children have been living with the maternal grandmother for about 18 months and today the maternal grandmother, the respondent mother and Ms Srinivas as the independent children’s lawyer have agreed on orders that, in summary, provide for the children to continue to live with Ms Arbour the maternal grandmother and spend time with the mother. 

3. The father is a party to the proceeding, but he has not engaged at all with the Court processes.  The correspondence attached to the affidavit of Ms Srinivas filed on 27 August 2020 between her and Mr Barratt, the father, would suggest to me that the father has some significant mental health problems at least.  There may be other issues as well, I do not know, but I would infer from the tender of that correspondence that the father was incapable of engaging realistically with these proceedings with a view to an outcome that was in the best interests of these two children. 

4. An order was made on 10 August 2020 that the father file any responding material by yesterday, and if he had not done so, then the matter may proceed as a non-defended hearing as against him today.  I am satisfied that Ms Srinivas has complied with the order 5 of that date to notify the father of the fact that the matter was in Court today and final orders may be made.  I am satisfied that notice of today’s Court date was given to him and he has declined to participate.  I am satisfied that the orders agreed between two of the parties and the ICL, that is all the parties and the ICL who have participated, are appropriate. 

5. I was not specifically addressed in relation to Federal Circuit Court Rule 13.04A.  However, having regard to the notices of risk filed by the maternal grandmother and the respondent mother which essentially relate to Mr Barratt, and the children being exposed to family violence, and indeed, an allegation that one of the children was treated very roughly in the way that might be seen as amounting to an assault, the orders provide for the father to have supervised time, should he wish to come to Darwin.  That is of some significance, because X at least has expressed a wish to see her father, or at least spend time with the father in a supervised environment.  So there is a provision for that should Mr Barratt take the necessary steps to do that.  Whether he does or not, I am likely to doubt it, certainly at this stage. 

6. I am satisfied that the orders are in the best interests of the children so I will make those orders.  I commend the parties for being able to resolve that and wish them well.  .

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 15 September 2020