Orkins & Olden

[2022] FedCFamC1F 1082

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Orkins & Olden [2022] FedCFamC1F 1082

File number(s):	TVC 1558 of 2018
Judgment of:	BAUMANN J
Date of judgment:	6 December 2022
Catchwords:	FAMILY LAW- PARENTING – Where the father consistently fails to appear for time with the children –No appearance by the father before the Court – Best interests of the children – Alleviating procedural stress for the mother
Division:	Division 1 First Instance
Number of paragraphs:	11
Date of last submission/s:	6 December 2022
Date of hearing:	6 December 2022
Place:	Townsville
Solicitor for the Applicant:	Ms Kerfoot, MK Family Law
Solicitor for the Respondent	Litigant in person (did not participate)
Solicitor for the Independent Children's Lawyer:	Ms Falcomer, Keir Steele Waldon Lawyers

ORDERS

TVC 1558 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ORKINS Applicant
AND:	MR OLDEN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	BAUMANN J
DATE OF ORDER:	6 DECEMBER 2022

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the mother have sole parental responsibility in relation to the children, X born 2015, Y born 2017 and Z born 2019 (“the children”), including but not limited to:

(a)The children’s education (both current and future), including but not limited to the choice of school and curriculum.

(b)The children’s religious and cultural upbringing;

(c)The children’s health;

(d)The children’s names;

(e)Extra-curricular activities; and

(f)Changes to the children’s living arrangements.

Living arrangements

2.That the children live with the mother.

3.That subject to the father’s indication in writing to the mother, not less than fourteen (14) days prior to a proposed visit, that unless otherwise agreed between the parents in writing, the children shall spend supervised time with the father each alternate weekend for two (2) hours at B Family Services and/or the C Service with Relationships Australia, or as can be otherwise be reasonably facilitated by the relevant contact service.

4.That until the C Service can facilitate the children’s time with the father, the children are to spend time with the father as can be facilitated by B Family Services.

5.That the father shall follow all reasonable directions and recommendations of the supervised contact service during the Children’s supervised time with him pursuant to these Orders.

6.That the father pay the costs of the children’s supervised time with the father.

7.That in the event the supervised time is required to be cancelled for any reason, the parents must rebook a makeup visit to occur within fourteen (14) days of the originally scheduled visit unless otherwise agreed in writing.

8.That if the basis for cancelling the supervised time is due to illness of the children or the mother, then the mother is to forthwith provide to the father a medical certificate.

9.That noting the father’s failure to consistently spend time with the children, if the father fails to give the mother notice of his desire to spend time with the children over the following three (3) months or on less than three (3) occasions, the order for supervised time be discharged and in lieu Orders 3 to 8 will be replaced with the following:

(a)The children spend supervised time with the father as agreed to by the mother.

Special occasions

10.That during periods of supervised time between the children and the father at the C Service or B Family Services, the children shall spend time with the father on the following special occasions as can be arranged and facilitated by the service:

(a)On Father’s Day or on the closest day to Father’s Day;

(b)On the children’s birthday or on closest day to each of the children’s birthdays; and

(c)On the closest Sunday to Christmas.

Telephone communication

11.That the children communicate with the father at all times as may be agreed between the parents but failing agreement as follows:

(a)By telephone call on Wednesdays and Fridays between 5.00pm and 6.00pm, with the mother to initiate the call to the father;

(b)That should the children miss a telephone call with the father, then the mother shall use her best endeavours to ensure the children return the telephone call within twenty four (24) hours;

(c)The children be at liberty to communicate with the mother by telephone when they are in the care of the father, and the father will not unreasonably refuse the children’s wish to telephone the mother; and

(d)The children’s telephone calls to the other parent are to take place privately and neither parent is to record the conversation or ask the children questions pertaining to the other parent.

Injunctions

12.That each parent is restrained from:

(a)Being under the influence of any illicit drug while the children are in their care or allowing the children to be in the care of or presence of a person or persons under the influence of illicit drugs;

(b)Having a blood alcohol concentration above the legal driving limit whilst the children are in their respective care.

General

13.That the father be at liberty to attend the children’s schooling events and extra-curricular activities that parents are ordinarily permitted to attend.

14.That if any of the children become seriously ill, are hospitalised, or are involved in an accident, then the parent that has that child in their care is to contact the other parent as soon as practicable and is to inform the other parent of the name and address of any medical practitioner and treating facility.

15.That the parents communicate in writing including by text, communication app or email except in case of emergency or for issues of a time sensitive nature, then the parents will communicate by way of telephone call.

16.That the mother do all acts and things and facilitate the child X to attend on a speech pathologist and as her expressive language improves and in consultation with her speech pathologist do all acts and things to facilitate age focused counselling sessions with a child psychologist to assist her to understand her confusing emotions about her parent/child relationship.

17.That these Orders be sufficient authority for the child X’s appointment to see a child psychologist and speech pathologist as confirmation of both parents consent for her to attend such appointments.

18.That each parent notify the other parent of any change of email address or telephone number (including mobile telephone) within seven (7) days of any such change occurring.

19.That each parent be restrained, and an injunction issued restraining each parent from denigrating the other parent, their partner and their family to or in the presence of the children and both parents use their best endeavours to ensure that no other person denigrates the mother or the father or their respective partners and families to or in the presence of the children.

20.That neither parent discuss these proceedings with the children.

21.That these Orders are an authority for the sharing of information relevant to the children or the provision of documents from any relevant service or organisation in relation to the following matters, at the requesting parents expense including but not limited to:

(a)all school reports, school photographs and all other communications/ newsletters from the children’s school;

(b)all medical and care providers involved with the children in regard to health, welfare and progress of the children; and

(c)all clubs or associations concerned with the social development and sporting activities of the children.

Alternative dispute resolution

22.That in the event of any dispute as to the interpretation, implementation or enforcement of these Orders (including any claim by a party that it should be varied) the parents shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parents and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the parent raising the dispute shall nominate three (3) FDR practitioners, one of whom shall be chosen by the other parent within fourteen (14) days.

23.That should the father seek to vary these interim Orders, he shall file and serve by no later than 4.00pm on 6 February 2023, an Application in a Proceedings and supporting affidavit explaining his failure to appear before the Court today and exercise rights and privileges.

24.That in the event the father does not file an Application and supporting affidavit in accordance with Order 23 above, these interim parenting Orders will be made final and the Independent Children’s Lawyer will be discharged.

25.That the Final Hearing listed in the week of 13 February 2023 be vacated.

IT IS NOTED:

A.That pursuant to s.65DA(2) of the Family Law Act 1975 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 the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Orkins & Olden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

BAUMANN J

1. The applicant mother, Ms Orkins, now aged 31 years, and the respondent father, Mr Olden, now aged 33 years, were in a relationship that produced three children, X, now aged seven; Y, now aged five; and Z, who is now aged three. The parents separated in July 2018. As the evidence before the court, including the family report of Dr D dated 18 May 2020; a day care report in respect of X from Ms E of 11 May 2020, and two child inclusive memorandums by family consultant Ms F of 9 August 2019 and 17 September 2019, reveal since the mother commenced proceedings on 12 December 2018, there have been significant events and management by judges all directed to providing the children an opportunity to spend time with the father if it was safe to do so.

2. There has never been any question that the children ought to live with their mother who has been their primary carer all their life, and certainly since separation.  She has managed to care for those children under great stresses, both financial and emotional, including the conduct of the father, which has resulted in family violence orders being made in her favour; the most recent and final order having been made that expires in early 2025. After some period in the Federal Circuit Court where management was being undertaken, on 10 November 2020, Judge Riethmuller, as he then was, transferred the matter to the Family Court of Australia, as that court was then known.

3. Management by registrars of the court included directions to file further material. I accept that the father has often failed to comply with many directions made. The matter first came before me sitting in City G on or about 2 December 2021. At that time, I made it clear to the unrepresented father that if he wished to maintain or further develop a relationship with his children, not only should he comply with orders of the court as to drug testing but, more importantly, he had to turn up for supervised visits. The father has appeared on occasions since then, usually in his work clothes; my impression is he is a softly spoken and gentle man who does not quite understand the system, wants a relationship with his children, but seems, as the evidence has demonstrated consistently, to have failed to organise himself so that he actually turns up for visits. 

4. The transcript of appearances before me on 2 December 2021, 17 February 2022, 30 March 2022, 19 May 2022, and on the last occasion, 24 August 2022, reveal how I have been imploring the father to actually stand up to his responsibilities. I note in the case management of this matter on 9 May 2022 a full day family dispute resolution conference before a Registrar was to take place. Yet again, despite resource of the court being applied to this case, the father did not appear at the actual conference for part two (2) but did participate for part of the conference known as part one (1). A liaison officer could not reach the father today either, I am told.

5. As the court became increasingly frustrated by the father’s failure to take advantage of any opportunities that he spend time with the children as ordered consistently now for well over 12 months at either B Family Services and/or C Service, on 19 May 2022, I ordered that the Independent Children’s Lawyer, Ms Falcomer, who has been consistent in this matter for some time now, at least since October 2019, to prepare a minute of orders that she felt were appropriate in the best interests of the children on a both an interim or final basis. The record will show that the father has failed to appear today as he was ordered to do. He has failed to comply with directions of the court, more importantly, he has failed to turn up for visits. I am told from the bar table that he fails to pay child support.

6. As I have indicated on more than one occasion, my endeavour has been for this gentleman to stand up to his responsibilities as a father to the children and to spend time with them. Even though on 24 August 2022 the matter was set down for final hearing in the February 2023 sittings of the court, I have formed the view that the father’s failure to spend time with his children and to appear before the court again today are reflective of his inability to engage in the process effectively. Ms Orkins is a very competent, loving and caring parent whose very significant difficulties have been meeting the needs of her children. Those needs include their emotional needs, which are exacerbated by the failure of the father to turn up for visits or to commit to a steady course of regular interaction with his children.

7. The mother has, in my view on all the evidence, never failed to make it clear that she wants her three children to have a relationship with their father provided it is safe. Sadly, in the Family Law system where a parent does not see the benefit to his children as this father does of regular time, there is little the mother can do. In the circumstances, I indicated today when the father did not again appear that my intention was to make final orders with as little prescription as possible so as not to expose the mother to potential actions for contravention or the like, but in the hope that the father at some stage will actually show the level of responsibility a parent of three young children needs to demonstrate if they can ever hope to have a relationship with those children going forward.

8. Even though the father would have seen orders previously filed and served upon him by the hardworking Independent Children’s Lawyer, Ms Falcomer, that would have shown time to move in a progressive form from supervised to unsupervised time, the father’s failure to even attend to visits which are available on the current orders gives me no confidence that he will ever be able to, on the current evidence, commit to the twelve (12) visits that were proposed of supervised time before contemplating unsupervised time.  The exchange today with Ms Falcomer as the Independent Children’s Lawyer and Ms Kerfoot for the mother make it clear that although the court would like the father to have a relationship with his children, the ball is very much in his court. This mother can do no more.

9. Accordingly, for these reasons, it is in the best interests of these children – including to relieve the mother of the ongoing stresses, commitments and obligations arising from being engaged in litigation where the other party simply cannot get their house in order sufficiently to even turn up and not be distracted as a single parent of three young children from trying compliantly to support the progression ordered by the court – to make the orders which appear at the commencement of these reasons which I have discussed with the parties today. It does not progress to unsupervised time. If the father does not give notice to the mother of at least a monthly visit, then, frankly, he will need to commence proceedings.

10. I am satisfied that the mother will always do her best to support her children, including having a relationship with the father, but it can never be just a one-way journey.  Conscious of the fact that the father has not appeared today, the orders which I make today will be orders on an interim basis subject to the father having the right within sixty (60) days from today to make application to seek to be heard in these orders. 

11. If he does not make an application to be heard on these orders supported by affidavit explaining his failure to attend to the court and, more importantly, to exercise the rights and privileges of a parent that were granted to him for the benefit of the children to see their father, then the orders I am making today will become final orders and the Independent Children’s Lawyer will then on that date be discharged. I will direct that a copy of these reasons delivered ex tempore be published and be provided to the parties, including the father.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:

Dated:       8 March 2023