Hambly and Anor and Clifton

[2015] FCCA 517

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMBLY & ANOR & CLIFTON [2015] FCCA 517

Catchwords:
FAMILY LAW – Parenting – undefended hearing – detailed reasons given in previous hearing – mother not participated in proceedings or seen the child since interim hearing.

First Applicant: MR HAMBLY

Second Applicant: MS BATES

Respondent: MS CLIFTON

File Number: DNC 451 of 2014

Judgment of: Judge Harland

Hearing date: 23 February 2015

Date of Last Submission: 23 February 2015

Delivered at: Darwin

Delivered on: 23 February 2015

REPRESENTATION

Solicitors for the First Applicant: Mr J Barry of Darwin Family Law

Solicitors for the Second Applicant: Mr M Strong of Northern Australian Aboriginal Justice Agency

No appearance by the Respondent

Solicitors for the Independent Children’s Lawyer: Ms M Romeo of Margaret Orwin Barrister & Solicitor

ORDERS

1. That all previous orders are discharged.

2. That the child X born (omitted) 2011 (“the child”) live with the maternal grandmother and the father as agreed between them.

3. That the father have sole parental responsibility for the child.

4. That the father of the child X born (omitted) 2011, be permitted to apply for an Australian passport without first obtaining the consent of the child’s mother.

5. That the father or maternal grandmother may take the child overseas for holidays.

6. That the mother may spend time with the child as agreed between the parties, but in default of an agreement upon the mother giving the maternal grandmother or father at least 28 days’ notice, and after completing a drug test at the father’s cost in accordance with the chain of custody protocol specified in AS/NZ 4308: 2008, and upon that drug test being “clean”, the mother may spend a block period of up to 3 days with the child each calendar month, subject to the following conditions:

   (a)That the mother notifies the maternal grandmother or father where the child will be staying; and

   (b)That the mother makes available the child to receive a telephone call from the maternal grandmother and the father between 6.00 pm and 6.30 pm each Monday, Wednesday, Friday and Sunday; and 

   (c)That exchange is at (omitted); and

   (d)The time spent by the mother does not impact on the child’s schooling.

NOTING:

A.That the mother was aware of the court proceedings that gave rise to these final orders, and filed response material and attended an interim hearing, but then disengaged from court proceedings without explanation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT DARWIN

DNC 451 of 2014

MR HAMBLY

First Applicant

MS BATES

Second Applicant

And

MS CLIFTON

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.

Introduction

1. The background to this matter is set out in my interim decision dated 11 November 2014.  I am not going to repeat the details set out in that judgment, but it should be referred to as part of this one.  The matter is listed today for an undefended hearing so far as the mother is concerned.  The mother was called outside of court, and has not attended.  The applicant father has filed an affidavit by Ms A which sets out, in some detail, numerous attempts made to contact the mother.  Some of that contact has been successful, and I am satisfied that the mother is aware of the court hearing today, and has the documents that are being relied on.  And I am satisfied that it is in X’s best interests to finalise this matter today.

2. The father and maternal grandmother seek orders as set out in the amended initiating application filed by the father on 9 February 2015.  The Independent Children’s Lawyer supports those orders being made.  Those orders provide for the father to have sole parental responsibility for X, and for X to live with the maternal grandmother and father as agreed between them.  Currently, X lives with the maternal grandmother and spends substantial and significant time with the father on a daily basis, and sometimes he spends overnights at the father’s home.

3. The father also seeks to have a passport issued for X without requiring the mother’s consent.  He seeks the ability for himself and the maternal grandmother to take the child overseas on holidays. 

4. The father and maternal grandmother propose an order for the mother to spend time with X as agreed between them, but if there was no agreement the mother is first to complete a drug test which the father will pay for in accordance with the chain of custody protocols that the mother provide the details of where X will be staying, and that the mother spend up to three days with the child each month.

5. These arrangements are subject to the handover taking place at (omitted), and that the spending time arrangements not impact on X’s schooling.  It is certainly justified to seek the provision of a clean drug test, given the history of the matter.  It is also useful to indicate a fairly limited time between the mother and X for no other reason than for the fact that X has suffered a lot of disruption, which has clearly had a negative impact on him.  One of the concerns I had which I referred to in my earlier judgment was the disruption to X’s attachments.

6. It is clear from the affidavits filed by the maternal grandmother and the father that those fears were justified as they both describe behaviours of X in their affidavit that indicates that X is insecure in his attachments, and has suffered because of the disruption to his attachments by spending significant times away from the grandmother’s care and the father’s care.  The type of behaviour that both of them describe, including X wanting to have all his toys with him;  becoming easily upset;  and having tantrums is all consistent with X being traumatised and confused by that disruption.

7. This means it is vitally important for X that he maintains that consistency of routine and patterns of care that he has now shared by his grandmother and father.  It may well be that X could benefit from play therapy offered by Catholic Care and other similar organisations, but, of course, the difficulty is the remoteness where the grandmother and father lives.  There is nothing that would cause me any concern that the grandmother and father will not do everything in their power to ensure that X settles as best he can into the routine with them.

8. For these reasons I will make the orders sought by the father and grandmother.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  6 March 2015