Olmer and Aranda

[2020] FCCA 2556

FEDERAL CIRCUIT COURT OF AUSTRALIA

OLMER & ARANDA [2020] FCCA 2556

Catchwords:
FAMILY LAW – Parenting – matter concerning two children who are aged 8 and 13 – where pursuant to previous consent orders the children spend equal time with each parent – where the father is now in prison – where the father has not appeared today – where the father may not have had access to a telephone to appear today – previous consent orders for the children to spend time with the father be suspended until further order – further evidence required. 

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS OLMER

Respondent: MR ARANDA

File Number: ADC 3211 of 2020

Judgment of: Judge Young

Hearing date: 24 August 2020

Date of Last Submission: 24 August 2020

Delivered at: Darwin

Delivered on: 24 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Tiligi

Solicitors for the Applicant: Calderwood Atkinson

The Respondent: No appearance

ORDERS

UPON NOTING:

A.That the father did not appear today by telephone and the reason for his failure to appear is not clear but it is noted that he is presently incarcerated at B Prison, South Australia.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the children X born in 2007 and Y born in 2011 live with the mother.

2. That the orders made on 19 May 2015 for the children to spend time with the father be suspended.

3. That pursuant to section 69ZW of the Family Law Act 1975 the Department for Child Protection provide the Court with the following documents or information:

   (a)copies of any notifications regarding abuse allegations arising or relating to the children X born in 2007 and Y born in 2011;

   (b)any assessments or investigations into such abuse allegations;

   (c)the outcome or findings of any such assessments and investigations; and

   (d)copies of any reports received by Department for Child Protection in the course of investigating any such notifications.3

4. That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department for Child Protection without the Courts leave.

5. That the parties be at liberty to inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) be at liberty to inspect and photocopy the document produced by the Department for Child Protection in response to the Notice of Risk filed in these proceedings NOTING THAT this information is confidential and cannot be disclosed to any other person or entity without an Order of this Court and NOTING penalties may apply pursuant to s.121 of the Family Law Act 1975 if the report is printed or published other than as directed in these proceedings.

6. That pending further Order, the parties’ legal representatives are restrained from providing a copy of the document to any other person.

7. That the matter be adjourned to 30 November 2020 at 9.30am (NT time) for further consideration.

8. That the applicant arrange for a copy of the order made today to be served on the respondent by an Authorised Officer at the B Prison or any other institution where the father may be incarcerated as soon as reasonably practicable.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 3211 of 2020

MS OLMER

Applicant

And

MR ARANDA

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 who are 13 and 8. There are orders made in May 2015 by consent that the children would live with the father and the mother on a week about basis.  The father is presently in B Prison in South Australia and he was served with this application, or at least the authorised officer at the prison was served with the application, on 6 August 2020.  The father has not appeared today.  Due to the present COVID-19 pandemic, matters have been conducted by telephone.  I don’t know whether the father has access to a telephone at the moment and I don’t know why he has not appeared.  I’m concerned that, notwithstanding the fact that he has been served, he does not seem to have access to a telephone to participate, so I am very reluctant to make any orders other than those absolutely necessary at this stage.

3. The mother says that the father has been charged with drug offences and in particular she says that the father is the man identified in some South Australian police material saying that in mid 2020, the police searched a house and found more than 600 grams of methamphetamine, $20,000 in cash, a pistol and other weapons.  Whether or not that is the father, or not, I have no idea.  Regardless of whether it is the father or not, the father has not been convicted of any offence at this stage, so I assume he is in prison because he has been remanded in custody pending trial, which would indicate that any offence that he has been charged with is likely to be a serious one. 

4. I see no necessity for making an order about sole parental responsibility at this stage but I consider that it may be appropriate to make an order suspending the orders of May 2015 that the children spend time with their father.  The mother expresses a fear that if the father is to be released from prison he will abduct the children and abscond.  Whether or not there is a proper basis for that is not apparent nor set out in the affidavit material, it appears to be simply recounting a fear.  In my view, that in itself is not a proper basis for making the kind of order sought.  However, the father is currently unable to have the children spend time with him other than at the prison and I notice there is correspondence where he asks the mother to take the children to the prison to visit him.  Other than that, there is no prospect of the children spending the time with him. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 10 September 2020