Haberland & Wardlow & Anor (No.2)

[2020] FCCA 3598

FEDERAL CIRCUIT COURT OF AUSTRALIA

HABERLAND & WARDLOW & ANOR (No.2) [2020] FCCA 3598

Catchwords:
FAMILY LAW – Parenting – where the children have been in the care of the paternal grandmother – where the parties agree the children return to live with the mother.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS HABERLAND

First Respondent: MR WARDLOW

Second Respondent: MS D WARDLOW

File Number: DNC 237 of 2020

Judgment of: Judge Young

Hearing date: 22 December 2020

Date of Last Submission: 22 December 2020

Delivered at: Darwin

Delivered on: 22 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Kennedy

Solicitors for the Applicant: North Australian Aboriginal Family Legal Service

First Respondent: No appearance

Counsel for the Second Respondent: Ms Franz

Solicitors for the Second Respondent: Darwin Family Law

BY CONSENT UNTIL FURTHER ORDER:

1. That the children X born in 2012, Y born in 2015 and Z born in 2017 (collectively “the children”) shall live with Ms Haberland, the applicant, from 22 December 2020.

2. That the children shall spend time with Ms D Wardlow, the second respondent, (‘the second respondent”) as follows:

   (a)for the 2021 school holidays at the end of Term 1 for 7 days; and

   (b)for the 2021 school holidays at the end of Term 2 for 14 days.

NOTING:

The second respondent has agreed to these interim orders for the children to live with the mother on an interim basis because the mother agrees that the children will spend substantial time with the second respondent and her family during the school holidays now and into the future. It is understood that Mr Wardlow, the first respondent father, will also spend time with the children when they are spending time with the second respondent.

AND THE COURT FURTHER ORDERS BY CONSENT:

1. That the parties shall attend a mediation with an accredited family dispute resolution practitioner in July - August 2021 to discuss the final living arrangements for the children.

2. That the changeovers for the children shall occur as follows:

   (a)On 18 December 2020 at Town A between 2 pm to 3 pm; and

   (b)On all other occasions as agreed between the parties in writing and failing agreement at Town E on the first day after the school term ceases at 2 pm.

3. That the children shall communicate with the second respondent by phone as agreed between the parties and failing agreement once a week. The mother shall facilitate the children talking to the second respondent by phone.

4. That without admissions as to the need, the mother will ensure that the 2 eldest children X born in 2012 and Y born in 2015 attend school regularly except when they are too unwell or due to cultural reasons.

5. That in the event that a child requires emergency or significant medical treatment or there is a significant event relating to the child/ren’s welfare, the party with the care of the children is to immediately advise the second respondent of the details, including the treatment.

6. That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.

7. That, without admissions as to the need, an injunction shall issue and the parties shall be restrained by injunction from criticising or denigrating the other party or the other party’s family in the presence of or within the hearing of the children.

IT IS NOTED that publication of this judgment under the pseudonym Haberland & Wardlow & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 237 of 2020

MS HABERLAND

Applicant

And

MR WARDLOW

First Respondent

And

MS D WARDLOW

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 three children:  X, who is eight years old; Y, who is five years old; and Z, who is three years old.

3. The children lived with their mother until she went to hospital in late 2019, approximately a year ago.  The paternal grandmother interrupted my reasons to say that the children had lived with her.  I do not believe that is correct and that is not a submission that Ms Franz makes. It seems that the parties lived in an Aboriginal community, Town B, and the children were in the care of the mother, possibly in the same household as the paternal grandmother, but as I understand it, it is not denied that the children lived with the mother and are primarily attached to the mother.  That appears to be the case from the family report.

4. The father has not played any part in these proceedings.  He appears to have a history of family violence and alcohol abuse.  He has apparently relocated to Queensland and has taken no further interest in the proceedings or the children. 

5. It has been some 12 months that the children have been in the care of the paternal grandmother. The mother has wished for the return of the children, as far as I can see, since she returned from hospital towards the beginning of this year, 2020. 

6. There is a family report, which indicates that the children are attached to their mother and the family report recommends that the children be returned to live with their mother at Town C, which is a community some distance away from Town B.

7. I do not doubt that Ms D Wardlow, the paternal grandmother, has played a significant role in the lives of these children but it is not to be suggested, I think, that the children should live with her or that the mother is unfit to care for them.  Clearly, the mother has some health issues, but there is no real submission that her health would preclude her from caring for her children.

8. The parties have reached an agreement which is that the children will return to live with the mother. It is an appropriate agreement, and is one, had an agreement not been reached, likely to have been the order of the Court.

9. Some things remain in dispute.  The paternal grandmother says that the children should telephone her twice a week.  The mother says that once a week should be enough.  I am of the same view.  I think that given that the relationship is not parental, but grandparental, that once a week is sufficient and anything more is likely to be intrusive and inconvenient for the mother, who is the primary carer after all. 

10. Another issue is that the grandmother seeks to be able to obtain directly from any school or day-care centre school reports, school photos or information of the children's education.  In my view, that is a trial issue.  It is not urgent, and I should not have to reach a view about that at this stage.

11. The paternal grandmother also seeks orders that she be permitted to obtain information about the children relating to their health and welfare from any relevant health professionals.  It is also a trial issue, in my view.  Similarly, the paternal grandmother seeks an order that if the mother is unable to care for the children for more than 48 hours, the mother will advise the paternal grandmother and give her the option of caring for the children.  Again, a matter for trial.  So I do not propose to make those orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 28 January 2021