Appleby and Appleby

[2016] FamCA 36

FAMILY COURT OF AUSTRALIA

APPLEBY & APPLEBY [2016] FamCA 36

FAMILY LAW – CHILDREN – Interim parenting – Parental responsibility – With whom the children spend time – Best interests of the children –Allegations of family violence – Where the father and children have a strained relationship – Previous recent orders made for family therapy – Application for children to spend time with the father prior to family therapy inconsistent with the best interest of the children – Not satisfied that sole parental responsibility and no time with the father is in the children’s best interests.

Family Law Act 1975 (Cth)ss 60CC, 61C, 61DA, 65DAC

Appleby & Appleby [2015] FamCA 138
Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Appleby

RESPONDENT: Mr Appleby

INDEPENDENT CHILDREN’S LAWYER: Ms Ryan as agent for Ms Hafey

FILE NUMBER: PAC 5724 of 2014

DATE DELIVERED: 22 January 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 22 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mahony

SOLICITOR FOR THE APPLICANT: Mahony Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Reeve

SOLICITOR FOR THE RESPONDENT: Marsdens Law Group

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders

1. The father’s Application in a Case filed 2 April 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Appleby & Appleby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5724  of 2014

Ms Appleby

Applicant

And

Mr Appleby

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the two children of the parties, C, who is 11 years old, and D, who is eight years old.

2. The parties commenced living together in 2002, and married in 2008. The parties separated in October 2014 and these proceedings were commenced soon after in November 2014.

3. This application relates to interim parenting orders, in particular, the father’s application to spend time with the children. In his Application in a Case the father seeks an order that the children spend time with him each Sunday for three hours with a supervision service.

4. In her Response to an Application in a Case, the mother relevantly seeks an order that the father spend no time and have no communication with the children. She also seeks an order that she have sole parental responsibility for the children.

Background

1. The parties met in 2001, and commenced living together in early 2002.

2. The parties’ two children, C and D, were born in 2004 and 2007 respectively.

3. The mother was the primary carer of the children throughout the relationship, while the father undertook employment outside of the home and travelled for work extensively.

4. The father has for many years used cannabis on a regular basis.

5. The parents separated on 27 October 2014 following an incident where the police attended the family home and arrested the father. The father was charged with assaulting the mother. A provisional Apprehended Domestic Violence Order (ADVO) was made for the protection of the mother and the children which restrained the father from coming within 100m of the home, or approaching the mother or children by any means whatsoever. An interim ADVO in identical terms was made at a Local Court on 30 October 2014.

6. The father has not spent any time with the children since this time of separation.

7. On 27 November 2014, the mother commenced parenting and property proceedings in this Court.

8. The mother and children travelled to Brisbane in the last week of November 2014. On 10 February 2015, the mother amended her Initiating Application to seek interim orders permitting her to relocate to Brisbane. This application was considered in my Reasons of Judgment[1] delivered on 17 February 2015 and orders were made requiring the mother to return to Sydney with the children and the mother’s application for sole parental responsibility was dismissed. I was not of the view at that time that I had sufficient information to consider the father’s application to spend time with the children. Orders were made for the parents to participate in the Child Responsive Program and the father’s application was adjourned until after the preparation of the Children’s and Parents Issues Assessment.  Orders were also made for the father to undergo urinalysis testing with respect to his cannabis use.

   [1]Appleby & Appleby [2015] FamCA 138.

9. On 2 April 2015, the father filed the Application in a Case to spend time with the children, the application currently before the Court.

10. On 5 May 2015, the parents attended the intake and assessment meetings with the family consultant, and the Child and Parents Issues Assessment was completed on 10 June 2015.

11. On 8 October 2015, the father was acquitted of the criminal charges. On that date, a final ADVO for the protection of the mother and the children was made for 12 months. The ADVO restrained the father from approaching or contacting the mother or children except through his legal representatives, though the father contends that the magistrate did not intend that it include the children.

12. On 19 October 2015, the matter was listed before me for the first day of the Less Adversarial Trial. Orders were made by consent for family therapy, including requiring the parents to contact the family therapist within seven days for an initial appointment, and for the family therapist to be entitled to determine whether the children are included in the family therapy following consultation with the children’s treating counsellor Ms E. The father’s application with respect to time with the children was then adjourned for interim hearing on 22 December 2015. Significantly, it was also noted that the urinalysis testing with respect to the father, as directed by the ICL, now indicated that the father had tested negative for all substances.

13. The interim hearing for the father’s application was heard on 22 December. On that date it became clear that the father had only very recently engaged with the family therapist, and there had been no joint therapy sessions between the father and the children. The father did not address the reasons for this in his affidavit. I made orders restraining the mother from engaging the children in further counselling with Ms E and to ensure that the children are provided with additional support as recommended by the family therapist.

The contested facts

1. In addition to the uncontested facts there are also a number of significant matters in dispute between the parties relevant to the best interests of the children.

2. Firstly the mother says that she was subjected to family violence throughout the relationship, in the form of physical violence, verbal abuse and controlling behaviour, which was witnessed by the children. The mother further alleges that the father was at times physically abusive towards D. The father denies the allegations and says that he “never physically hit [the mother] or my children”. The mother outlines in her affidavit four specific incidents in which she alleges that the father was violent (including the October 2014 incident) each of which are denied by the father. She also makes a general allegation that the relationship was characterised by violent and controlling behaviour and serious denigration and verbal abuse perpetrated by the father, which he denies.

3. The mother also raises issues concerning the father’s drug and alcohol use and parenting capacity but these issues did not feature significantly in the interim application, given the nature of the orders sought by the father.

4. A further dispute between the parties relevant to the children’s best interests and this application relates to the father’s relationship with the children. It is the father’s case that as he has not communicated with or spend time with the children for a lengthy period of time, the children’s relationship with him has been and continues to be damaged. He describes himself as “desperate” to reconnect to his children. The father suggests that the children are being alienated against him.

5. In addition to the uncontested facts, in accordance with the decision of SS & AH[2], the Court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [2] [2010] FamCAFC 13.

6. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George and George[3], a decision of the Full Court citing Deiter & Deiter[4]).

   [3] [2013] FamCAFC 182.

   [4] [2011] FamCAFC 82.

7. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

8. If it were proved that the father was the perpetrator of serious family violence as alleged by the mother or that he has physically abused D it is likely that these would be significant factors with respect to a risk of harm for the children. It is also likely that the children would find it distressing to spend time with their father if he were found to be such a perpetrator.

9. In relation to the mother’s general allegations that the father was violent throughout the relationship I make the following observations. Although it is by no means determinative, I note that the mother did not complain about the father’s alleged violence throughout the relationship until the final incident in October 2014, even though some of the allegations are very serious. For example, in October 2013 the mother alleges that the father punched her in the left ear when she had the children in her lap. She also alleges that the father assaulted her when she was pregnant with D causing her to hit a bench and experience bleeding and that on another occasion he hit her in the stomach with a fishing rod.

10. The acquittal of the father on the criminal charges of assault is also not determinative, in particular as the magistrate was still satisfied on the balance of probabilities that it was appropriate to make an ADVO for the protection of the mother against the father.

11. The Memorandum prepared by the family consultant from the Children and Parents Issues Assessment also provides some assistance. It is to be noted that the mother told the family consultant that she was happy for the children to spend time with the father if they wished to do so (albeit that she was of the view that they do not wish to) which would tend to suggest that the mother does not have concerns about the risk of harm posed by the father to the children. In their interviews both of the children  provided descriptions to the family consultant of their father being violent, with some of the violence reported to have directly witnessed and some being reported to them. In particular, they both provided a narrative about the incident that occurred in October 2014, though D only spoke about having observed the incident. C appeared to the family consultant to have knowledge of the conditions of the ADVO.

12. At this stage I cannot make any positive findings with respect to incident that occurred in October 2014 or the other allegations of family violence. However, I can also equally not find that the events did not occur and accordingly some risk to the children on this basis remains.

The law

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[5].

   [5] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways , including:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

3. The principles underlying these objects include:

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

4. In Dieter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. This matter is still in its relatively early stages and to some extent was unable to be progressed due to the criminal charges faced by the father. The situation may be anticipated to become clearer once the children have been reintroduced to the father in the course of the family therapy if the family therapist is of the view that that is in their best interests at this stage. Unless agreement can be reached which currently looks unlikely the matter may be unresolved for many months. Unless there is a significant change in circumstances such that the interim arrangement may be revisited, the interim orders to be made as a result of this application may govern the parenting arrangement for that period of time.

5. Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute, identifying the agreed or uncontested relevant facts, and giving some consideration to the matters in dispute, the first issue to ordinarily be considered is that of parental responsibility.

Parental responsibility

1. In this matter, in his Application in the Case, the father does not seek any order with respect to parental responsibility. The mother seeks an order that she be allocated sole parental responsibility for the children.

2. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child.  In Goode & Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC.  The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly.  On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.

3. Under s 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. The presumption does not apply:

   ·if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s  61DA(2)) or

   ·When the Court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)).

5. At this interim stage, in my view, it would not be appropriate in the circumstances to apply the presumption under s 61DA(1) of the Act as so many critical facts relating to the children’s best interests are unknown or in dispute (s 61DA(3)).

6. As the presumption of equal shared parental responsibility is not being applied in these circumstances, the statutory consequences do not follow and the Court must make such order as is in the best interests of the children as a result of consideration of the matters set out in s 60CC.

Section 60CC considerations – What order is in the best interests of the children?

1. Under this section, in determining what is in a child’s best interests, the Court is to consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

Meaningful Relationship

1. In relation to the first of these primary considerations (relating to the child having a meaningful relationship with both parents), the authorities make it clear that this section does not assume that there is a benefit to the child having a meaningful relationship with each parent but requires the court to assess whether the child will receive the benefit of having a meaningful relationship with each parent. A finding that there is no benefit to a child of having a meaningful relationship with a parent is obviously a very significant matter which must involve a full consideration of the evidence. The Court is not in a position on an interim basis with so many matters of significance in dispute to make such a finding.

2. Although the meaning of meaningful relationship is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[6]  If the Court were to make the order sought by the mother that the father spend no time and have no communication with the children. It would mean that the children would have no relationship with him for so long as that interim order was in force. Having regard to the likely period of time in which this matter remains unresolved and having regard to the age of the children there is a real risk that the children’s relationship with their father will be further damaged in these circumstances.

   [6] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

The need to protect the children from harm

1. The mother’s proposal that the Court order that the father spend no time with or communicate with the children is to large extent based upon the primary consideration of the need to protect the children from psychological harm from being exposed to family violence and in the case of D, being subjected to abuse. In particular, as the parties’ final separation arose from the incident in October 2014, which led to the father’s arrest, the mother relies upon a risk of harm that relates to the father’s conduct in this incident.

1. For the reasons previously given I am unable determine the veracity of each of the parents’ accounts concerning this incident but given that the magistrate who heard the criminal matter was satisfied on the balance of probabilities that it was appropriate to make an ADVO for the protection of the mother some concerns in this regard do arise.

2. However, as the mother informed the family consultant that she supported the children spending time with the father if they wished to do so and subsequently agreed to family therapy for the purposes of reintroducing the children to their father, in my view the risk of harm that may arise is not sufficient of itself to conclude that the children should not spend any time with their father at this stage, particularly if that time is supervised as proposed by the father.

Additional considerations

1. I will now refer to the relevant additional considerations set out in s 60CC(3) which are relevant to these proceedings.

Views expressed by the children and any factors underlying their views

1. According to the Child Responsive Program Memorandum each of the children indicated a preference not to spend time with their father and stated they would be scared if they were to see him. Both also indicated less fear if the time with the father were supervised but still indicated that they would feel uncomfortable about it. One of the children (unidentified) told the family consultant that they did not want to entertain the idea of seeing their father, unless he was able to acknowledge that he had behaved poorly and apologise.

2. Given the age of the children and the fact that they have been in the sole care of their mother for over 12 months in forming their views and rely to some extent on incidents reported to them, I do not attach much weight to their views.

3. I do however attach weight to their expressions of discomfort about seeing their father even on a supervised basis.

The nature of the relationship of the children with each of their parents, and other significant persons

1. The family consultant expressed the opinion that the children’s current relationship with the father is strained. Both parents seem to agree that this is the case, although their respective beliefs concerning the reason for the state of this relationship significantly differ.

2. The family consultant recommended that as the children presented as having genuine apprehension about re-establishing their relationship with the father, (regardless of the cause of the apprehension) it is likely to be in the children’s best interests for this to be addressed. Given that she was of the view that it was possible that the children may become estranged from the father in the future. She recommended family counselling to repair the children’s relationship with the father. For these reasons, orders were made in October 2015 by consent for that family therapy to begin and for the parents to take immediate steps to facilitate that therapy occurring. In my view it is of particular significance to this application that the father gives no explanation for failing to take the necessary steps for that family therapy to begin.  His application that time with the children begin immediately also appears inconsistent with his earlier recognition that family therapy is in the children’s best interests and is a necessary step in the process of rebuilding the relationship

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the children

1. Initially following the parties’ separation and the father’s arrest the father was prohibited from approaching the mother and children by an ADVO. Shortly after, the mother commenced proceedings in this Court and unilaterally made a decision to move to Brisbane with the children. In his response to the mother’s Initiating Application the father sought orders that the children spend time with him. At that stage I was not of the view that I had sufficient information to consider the father’s application, particularly prior to the parties being assessed by a family consultant. The father subsequently filed this Application in a Case on 2 April 2015, but it was not determined until the father’s criminal charges had been heard.

2. Although the history of the father’s applications indicates that he has been keen to spend time with the children, as noted above, it is of concern that he did not pursue the family therapy appointments in a timely fashion or consistently appreciate that family therapy was an appropriate step to be taken prior to recommencing his time with the children.

Likely effect of any change in the child’s circumstances, including the likely effect of separation from either parent, or other child, or other person with whom the child has lived

1. The proposals of each of the parents will not bring about a change in the children’s living arrangements. The father proposes that the children continue to live with the mother and spend time with him for a few hours per week. In my view it is not likely that there will be a significant effect upon either of the children as a result of the separation from their mother, though their discomfort and apprehension at this prospect of spending time with their father is a matter of significance.

Practical difficulty and expense of a child spending time with and communicating with a parent

1. There is no practical difficulty associated with the father’s application that the children spend time with him, supervised by a professional supervision service. He proposes that he will bear the expense associated with the supervision service.

Capacity of each parent and other persons to provide for the children’s needs, including emotional and intellectual needs

1. The mother raises significant concerns about the father’s parenting capacity in her affidavit and interview with the family consultant. The issues associated with the father’s cannabis use appear to have been appropriately addressed by him.

2. Given the limited nature of the father’s application that the children spend time with him for a few hours each week in a supervised setting, the mother’s concerns about his parenting are not particularly weighty in this application.

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. Each of the parents makes allegations against the other about irresponsible conduct with respect to parenting, such as drug and alcohol use, which will undoubtedly be explored at a final hearing. It is to the father’s credit that he recognised that his level of cannabis use was a matter of concern and took steps to satisfactorily address it.

2. The mother also alleges that the father has a negative attitude towards D in particular, which is denied by the father.

3. It appeared to the family consultant that the children had been exposed to information about the parental conflict and stressed the significance of the parents refraining from involving the children in their dispute.

4. The issue of the inconsistency between the father consenting to family therapy and pursuing this application prior to their having been any sessions involving the children and his failure to explain his tardiness in taking steps for the family therapy to commence has already been referred to.

Family violence

1. Family violence is a matter of significance in these proceedings. An alleged incident of family violence ultimately lead to the parents’ separation and has been a key factor in the children not spending any time with their father to date.

2. For the reasons given, although I am not able to make any positive findings in relation to the mother’s allegations of family violence against herself and D and the exposure of the children to it, I have some concerns about the father’s conduct and the risk that this raises with respect to the children as a result of a final ADVO having been made against the father for the protection of the mother. However, for the reasons given this factor alone would not in my view, be sufficient to support the mother’s order that the children spend no time with or communicate with their father.

Conclusion

1. In my view, although the father’s application for time with his children has been on foot since April 2015, it is premature. The parties do not seem to dispute that the children’s relationship with their father was strained when they were interviewed by the family consultant in May 2015 and it appears likely that it has deteriorated since then. The children have the perception, whether it is correct or not, that the father has perpetrated violence against the mother and against D. They expressed fears and apprehension in relation to spending time with their father, which seemed to the family consultant to be genuine.

2. The family consultant recommended a therapeutic reintroduction of the children to their father and as the parties consented to such orders being made, it appears that they both recognised that it would be in the best interests of the children for this to occur. The father’s application that his time with the children commence prior to family therapy sessions involving the children appears inconsistent with this recognition. Likewise, the mother’s position that it is not in the best interests of the children to have any time with their father appears inconsistent with this position.

3. Since separation, the only input that the father has in the children’s lives and the only support for the relationship is that the continues to hold parental responsibility for them. I am not of the view that it is in the best interests of the children to deny them any relationship with their father or the father having any role in their lives, which would be the effect of the orders sought by the mother. This is especially so at a stage in the proceedings where I have not made a finding that it would not be of benefit for the children to have a meaningful relationship with their father.

4. As stated the father’s application is in my view, premature. The agreement that the children participate in family therapy was appropriate and well considered and consistent with the family consultant’s opinion. In my view, time with the father prior to this therapeutic reintroduction may place the children’s well-being and the relationship with their father in jeopardy. Having regard to the considerations referred to above, I am not of the view that it is in the children’s best interests for the orders sought by the father to be made and accordingly, I dismiss his application.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 22 January 2016.

Legal Associate: 

Date:  22 January 2016