Arlaud & Arlaud
[2025] FedCFamC1F 207
•28 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arlaud & Arlaud [2025] FedCFamC1F 207
File number(s): BRC 2357 of 2025 Judgment of: BRASCH J Date of judgment: 28 March 2025 Catchwords: FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where application is brought by the mother and her partner – Where the mother is diagnosed with a terminal illness – Where the father has not seen the children for some time – Where the children have lived with the mother and her partner for several years -Where the father is provided with opportunities to be heard but does not engage with the proceedings - Where major long term decisions will be needed upon the mother’s passing – Where the Department and Police hold no child protection concerns with respect to the children living with the mother and her partner – Final Orders made Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) Part VII, ss 60B, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(2)(c), 60CC(2)(d), 60CC(2)(f) and 65K
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.02
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 28 March 2025 Place: Brisbane via Microsoft Teams Solicitor for the First and Second Applicants: Noosa & Hinterland Family Lawyers Respondent: Did not participate ORDERS
BRC 2357 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARLAUD
First Applicant
MR YAAXA
Second Applicant
AND: MR ARLAUD
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
Parenting arrangements and decision making
1.X born in 2013 and Y born in 2016 ("the children") live with each of the applicants.
2.Pursuant to s 61D of the Family Law Act 1975 (Cth), parental responsibility be conferred on each of the applicants (to the exclusion of the father), for all major long term decisions related to the children, including:
(a)The children's education (both current and future);
(b)The children's religious and cultural upbringing;
(c)The children's health;
(d)Requesting that Medicare issue a card for each child and claiming Medicare benefits for the children;
(e)Requesting a copy of the children's birth certificates and dealing with the Office of Births, Deaths and Marriages;
(f)Dealing with NDIS and making any applications required; and
(g)Obtaining a Passport and any Visas for each of the children and dealing with the Department of Foreign Affairs and Trade, Passport Office and visa providers.
3.The applicants each have responsibility for all day-to-day decisions with respect to the children.
4.The father and his agents will not remove the children from either of the applicant's care.
5.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), each of the applicants are hereby authorised to execute all documents necessary to obtain an Australian Passport and travel documents for and on behalf of X born in 2013 and Y born in 2016.
Accessing services
6.Pursuant to s 114Q of the Family Law Act 1975 (Cth), the applicants are each granted leave to publish a copy of these orders to all service providers for the children, including but not limited to the children's school, treating medical practitioners, any other doctors, therapists, counsellors, government departments, health insurer, and for securing any financial support for the children.
7.These orders are authority for each of the applicants to schedule and consent to treatment, therapy, schooling, programs, services and the like for the children, and to give and receive such information from service providers as a parent would ordinarily receive.
Slip Rule
8.In the event any wording in this Order constrains or otherwise fetters either of the applicant's ability to deal with service providers for the child, they are at liberty to approach chambers (with an affidavit) via (…@...) under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) setting out the problem and proposing relevant amendment/s to the wording of the Order.
AND THE COURT NOTES:
9.The court is satisfied the father was aware of this hearing and the earlier first return and has twice acknowledged receipt of material in relation to the matter.
10.The court received s 67ZBD material from the Department of Families, Seniors, Disability Services and Child Safety and the Queensland Police Service for the first return in February 2025 and updated information for this hearing. Neither entity raised any concerns with the children living with the applicants.
11.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in "Parenting Orders - obligations, consequences and who can help" and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arlaud & Arlaud has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
This is a very sad application brought by Ms Arlaud, the mother of two children and her partner Mr Yaaxa (“the applicants”).
The children are X, born in 2013, and Y, born in 2016 (“the children”). X and Y have another sibling, B, a little one who is born to the applicants’ relationship.
I said at the start of these reasons that this is a very sad application. In late 2024, Ms Arlaud was diagnosed with a terminal illness. At the time she swore an affidavit on 14 February 2025 for the matter to come into the Critical Incident List, she was receiving palliative care.
It was not expected that Ms Arlaud would survive to this second hearing, but she has, and I do hope that it gives her some comfort to know that final orders will be made for her children.
Background
Ms Arlaud was born in 1980. The second applicant, Mr Yaaxa, was born in 1974. In 2019, Ms Arlaud and the children, X and Y, moved to Mr Yaaxa’s residence. It is described as a farm setting where the children enjoy playing with the chooks and the like. As said, the applicants have another daughter, B.
Whilst the mother's condition is terminal, decisions of a major long-term nature will still need to be made for the children. Thus, the mother has brought this application with Mr Yaaxa, so that they can make decisions for the children now and then he can on the mother’s passing.
The respondent father, Mr Arlaud, and Ms Arlaud cohabited in June 2011 and were married in late 2012. They separated on 1 February 2018. I am told that he has not seen the children since either 2020 or 2023 - both dates are mentioned in an affidavit, but it really does not matter which one, because on either case, it has been some time.
A protection order was made in 2019 lasting five years. It is for the mother’s benefit and Mr Arlaud is the respondent. That protection order was varied in early 2020 to name the children, X and Y.
Notice to the father
I am well satisfied the respondent father has had notice of these proceedings, this hearing and an earlier hearing. Indeed, in an affidavit that was recently filed (where I required proof from the applicants’ lawyers as to how they brought the matter to his attention) he responded to documents being served upon him on 3 March 2025 at 1.55pm, “Fantastic guys, thank you”, acknowledging receipt of material. Later the same day, he sent an email back to the lawyers along the lines of “thanks for the help. I'll sign and read the documents and send them back to you”, but he did not.
The respondent was also aware of the initial hearing before me in the Critical Incident List on 26 February 2025. We waited for some time for him to attend, but he did not.
Accordingly, I am satisfied he has had the opportunity to be heard in these proceedings, but has chosen not to. That is a matter for him.
Best interests
The application is located within Part VII of the Family Law Act1975 (Cth) (“the Act”) and it contains provisions which require the best interests of the children to be paramount.
Part VII also includes s 65K, which I included in the notations in my first February 2025 order for the respondent father's benefit. The net effect of that provision is that where one parent dies, the surviving parent cannot demand the children come into that surviving parent's care. If you stop and think about it, that makes perfect sense because this is a best interests decision.
I also have the benefit of Exhibits 1 and 2 from the February 2025 hearing, which are reports from the Department of Families, Seniors, Disability Services and Child Safety (“Child Safety”) and from the Queensland Police Service. They had no child protection concerns with respect to X and Y living with Ms Arlaud and Mr Yaaxa. However, there is a history with respect to Mr Arlaud.
As is my custom in the Critical Incident List, I asked for updates through the co-located offices from both Child Safety and the Police, as to whether anything had come to their attention since they first provided s 67ZBD material. Both entities reported they have no updates. So that means Mr Yaaxa, Ms Arlaud and the children have not come to the attention of the police in any negative way, nor to the attention of Child Safety. Often, there is no natural contradictor in Critical Incident List matters, so that s 67ZBD material provides some comfort.
I turn to the s 60CC factors, acknowledging the objects of Part VII of the Act; s 60B of the Act.
One of the factors is arrangements promoting the children's safety; s 60CC(2)(a) and another is whether both Ms Arlaud and Mr Yaaxa are able to provide for the needs of these children; s 60CC(2)(c) and (d). Importantly, one of those needs will be grief counselling for the children when their mother passes.
The orders I will make mean that Mr Yaaxa will be able to make whatever long-term decisions he needs to make, to support X, Y, and no doubt B as well, through their imminent loss. It is also important that Mr Yaaxa have the authority to deal with the children's schools and education providers, as well as medical and health providers, going forward. That will include picking a high school for the girls.
Undoubtedly, the children will get some comfort from their sibling B and I imagine that the three of them will travel as a pack to school and then to high school.
This is not really a views/wishes matter, s 60CC(2)(b), as is often the case in more traditional parenting proceedings. I have no reason to doubt that X and Y are happy living with their mother (although sad she will soon pass) and with Mr Yaaxa. X and Y need continuity of care and support when their mother passes.
I will also make an order that was sought by the applicants, that essentially the respondent father is restrained by positive order that he not remove the children from either of the applicant's care. The evidence that he might do so is admittedly scant, but it is important for Ms Arlaud that she have peace of mind that orders have been made which will keep the children as safe as possible with her and Mr Yaaxa, and, ultimately Mr Yaaxa when he has sole care of the children.
To that end, there was an episode either in 2020 or 2023 (again two dates are given) where the father unexpectedly attended upon a daycare; I can well understand that episode gives the mother some concern that he might do so again on her passing.
I am also conscious of the fact that the father is not a lawyer and might think that on the mother's passing, he can take the children because he is the other parent. But that is not what s 65K says, and that is thus another reason why I make the order restraining the father from doing so.
The final, relevant s 60CC matter is s 60CC(2)(f) - ‘anything else’. The purpose of the Critical Incident List is to get adults and ultimately the children in and out of the court system as expeditiously as the children’s best interests will allow. When the matter was first before me in February 2025, Ms Arlaud wanted final orders on that day. I declined to do so because the father is a necessary party under r 3.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and he needed the opportunity to participate. But, for whatever reason he has chosen not to do so.
Hence, I consider it in the children's best interests (and for the mother to know) that final orders are made today.
I will make an order that Ms Arlaud and Mr Yaaxa can deal with the Department of Foreign Affairs, visa providers and the like. If there is the opportunity for, say, a school trip down the track or a holiday to New Zealand, then that will be a wonderful thing for X and Y to enjoy. I also do not think it is appropriate to require the father's signature on any such application - he has not participated in these proceedings, and it would be awful for the children if a holiday were deferred or delayed for his failure to sign any documents. I will therefore make the usual s 11 Australian Passports Act 2005 (Cth) order.
Finally, I will make an order under the slip rule to the effect that if any of the wording in the order constrains either of the applicant’s ability to secure services for the children or say, get a birth certificate, or a Medicare card, or the like, then, rather than filing an Initiating Application, they can approach chambers by email with an affidavit setting out the problem and proposing a form of words that will appease whoever the service provider might be.
For those reasons, I make the orders that I discussed with the applicants’ legal representative at the start of these proceedings.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 1 April 2025
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