Appleby and Appleby (No 2)

[2018] FamCA 911

FAMILY COURT OF AUSTRALIA

APPLEBY & APPLEBY (NO 2) [2018] FamCA 911

FAMILY LAW – CHILDREN – PARENTING – interim proceedings – where allegations of sexual abuse and family violence – allocation of parental responsibility – where presumption rendered inapplicable during interim proceedings due to circumstances – determination of father’s time on interim basis – consideration of best interests, particularly views of the child – where orders made that allow for resumption of relationship. 

Family Law Act 1975 (Cth) - ss 60CC, 61DA(2) and 65DAC

APPLICANT: Ms Appleby

RESPONDENT: Mr Appleby

INDEPENDENT CHILDREN’S LAWYER: Ms L McGregor

FILE NUMBER: CAC 1103 of 2017

DATE DELIVERED: 9 November 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

Orders

UNTIL FURTHER ORDER, IT IS ORDERED:

1. That the Mother has sole parental responsibility for the children:

   (a)       X, born … 2008; and

   (b)       Y, born … 2010.

2. The Mother shall advise the Father promptly in writing of the need for her to make a decision as to the long term welfare of the children, advising the nature of the issue requiring the decision to be made and of her proposed decision.

3. That the children:

   (a)       X, born … 2008; and

   (b)       Y, born … 2010

   live with the Mother.

4. That in the event that X expresses the wish to spend time with the Father, the Mother shall take all reasonable steps to facilitate X spending time with the Father, such time to be supervised by a professional supervisor.

5. That the Mother take all reasonable steps to facilitate Y spending time with the Father as follows:

   (a)For a period of up to four hours each alternate week at times and days as agreed between the parties, such time to be supervised by a professional supervisor.

6. In the event that Y expresses a sustained opposition to spending time with the Father in accordance with the above Order, the Mother shall notify the Father by text message no later than 30 minutes prior to the scheduled visit, the visit shall not proceed, and the Mother shall encourage the child to communicate with the Father via Facetime.

7. That the Father shall meet the costs (if any) of the supervision of his time with Y or X.

8. That, in relation to Y’s gymnastics lessons:

   (a)The Father shall communicate to the Mother, via text message 24 hours prior to the lesson, his desire to attend the lesson;

   (b)The Mother shall take all steps necessary to encourage Y to agree to the Father attending the lesson;

   (c)The Mother shall advise the Father of Y’s decision 12 hours prior to the lesson; and

   (d)In the event that Y’s agreement is communicated pursuant to order 8.c above, the father is at liberty to attend Y’s gymnastics lesson. 

IT IS NOTED THAT

1. Y’s gymnastics lessons are currently held each Thursday evening from 5.30pm to 6.30pm.

2. That the Mother shall inform the Father via text message in the event the time or day of Y’s gymnastics lesson changes.

3. That the Mother shall inform the Father of any dates that the gymnastics lessons are not held.

IT IS FURTHER ORDERED THAT

1. In the event that Y commences an alternate activity to gymnastics, the Mother will advise the Father and the same provisions as Order 8 shall apply with respect to the ‘new activity’. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Appleby & Appleby (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

DA FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1103 of 2017

Ms Appleby

Applicant

And

Mr Appleby

Respondent

REASONS FOR JUDGMENT

Introduction  

1. The parties commenced living together in January 2005 and married in 2007.  The parties separated in December 2014.  There are two children of the marriage, X, born in 2008, and Y, born in 2010.

2. In March 2016 the children were removed from the parents for a short time pursuant to the child welfare legislation in the ACT. This action stemmed from the discovery of video footage, apparently made by the children, of the children engaging in sexual activity together. Final Care and Protection Orders in relation the children were made on 1 November 2017. These orders expired on 1 November 2018. Shortly before their expiry application was made to this Court, and temporary orders were made to commence on the expiry of the Care orders.

3. The children currently live with the Mother.  Y spent, until recently, four hours per fortnight with the Father, supervised by a B Group worker and paid for by Child and Youth Protection Services (“CYPS”).  The Father has not spent unsupervised time with Y since March 2016. 

4. X does not spend any time with his Father and is currently hostile to spending time with the Father. 

Documents relied upon

1. The Applicant Mother relied upon:

   a)Amended Initiating Application filed 18 October 2018; and

   b)Affidavit of the Mother filed 19 October 2018.

2. The Respondent Father relied upon:

   a)Response to Initiating Application filed 22 October 2018; and

   b)Affidavit of the father filed 22 October 2018.

Orders sought

1. The details of the competing proposals of the parties are set out in the Mother’s Amended Initiating Application and the Father’s Response.  However, by the close of the interim hearing the parties had resolved a large number of the disputed items by consent.  This left only limited matters to be resolved.

2. It was agreed between the parties that the children will live with the Mother.

3. It is agreed that the Father will have supervised time with Y, which may be suspended in the event of resistance by Y.  An impediment to this arrangement is the inability of the Father to pay for the supervised time.  In order to try to facilitate such time the parties agreed to flexibility in the timing of the visits between Y and the Father in the hope that week time contact would be less expensive than weekend contact.

4. The parties agreed to an arrangement by which the Father might spend time with Y at her gymnastics class each week.  The parties’ agreed terms are set out at exhibit M1.

5. It was agreed that, if it could be funded, Dr C would be the Single Expert.  In order to see if this could occur the proceedings in relation to this aspect were adjourned to a later date so that the parties could make appropriate enquiries and, if necessary, formulate terms of reference.

6. The Mother did not press her application for international travel.

7. Where the parties were apart related to the allocation of parental responsibility.  The Mother sought sole parental responsibility be allocated to her.  The Father seeks to have an input into important long-term decisions in the children’s lives.

8. The parties also disagreed as to the appropriate orders in relation to X.  The Mother sought orders that X spend no time with the Father.  The Father sought orders that X spend time with him in accordance with his wishes, on a supervised basis.  The Father acknowledges that at present X does not wish to spend time with him, although he hopes this could change in the future.

Background

1. The important factual matters revolve around circumstances concerning the children being taken into care for a short period by emergency action in March 2016.  This was after parties separated and was caused primarily by the Mother’s discovery of a video on iPad, used by the children, depicting the children engaging in a sexual interaction with each other.  That is, the children had made a pornographic video of themselves.  This is a matter with potential for serious harm to the children.  It potentially undermines their relationship with each other, their understanding of sexuality and their understanding of appropriate sexual boundaries.  It raises questions of how they may have been exposed to sexual behaviour or material.

2. The Mother denies having exposed the children to any sexual act.  She says, in contrast that the Father behaved towards her in a highly sexualised manner, was sexually abusive of her in the presence of the children, frequently used pornography and exposed the children to nude photography of he and his new partner.  Additionally she says that Y, in April or May 2017 disclosed sexual conduct occurring by the Father.

3. The Father denies that he is responsible for the children’s behaviour.  He accepts that he uses pornography, denied sexually abusing the Mother but also accepts that at one point the children were accidentally exposed to pornography while in his care.

4. At present the Father accepts that his time with the children can remain as supervised.  Until recently this was funded by the relevant welfare authority.  The ending of the Care orders has brought this arrangement to an end.  The Father says that he is unable to fund professionally supervised time any longer.  The Mother is in receipt of legal aid and so also apparently lacks capacity.

5. Recently Y has been resistant to spending time with the Father.

6. The Father accepts that X is currently hostile towards him, although he hopes to, at some point appropriate time, re-establish time with X in accordance with X’s wishes.

Parental responsibility

1. There is a generally operative presumption in favour of an order for equal shared parental responsibility being made in parenting proceedings.  That presumption can be rendered inapplicable, displaced or considered inappropriate in interim proceedings.

2. The Mother asserted that the presumption was rendered inapplicable because there are grounds to believe both that the Father has engaged in abuse of the children and/or engaged in family violence.  These matters are predicated upon the Mother’s testimony, which is contested, and are also reliant upon the video of Y and X.  The reasons or causes for the production of that video remain uncertain. 

3. It is at this stage not necessary to determine whether the Mother’s assertions constitute reasonable grounds as provided for by s 61DA(2) of the Family Law Act 1975 (Cth) (‘the Act’) as these important and central areas of uncertainty to each party’s case instead render it inappropriate to apply the presumption in the context of the interim proceedings. That is, the factual matters which are central to the parties’ ultimate case, and which are also central to the interim proceedings, are of such character, importance and uncertainty as to render it inappropriate to apply the presumption.[1]

   [1]Family Law Act 1975 (Cth) s 61DA(3).

4. That leaves open the question as to what, if any, order for parental responsibility is in the best interests of X and Y.

5. The Father wishes to share responsibility for the important decisions regarding X and Y.  However, under the regime that is to be imposed, the Mother will have almost sole care of the children.  She says that forcing her to comply with the obligations contained in s 65DAC, which would flow from an order for equal shared parental responsibility, are inappropriate in the circumstances of this case, which include the circumstance that she alleges that she has been the subject of sexual assault at the hands of the Father.

6. This is a powerful consideration against requiring the parties to cooperate in making such decisions.  However, there is also a dearth of evidence suggestive of the parties being unable to cooperate in making decisions.  It is noteworthy that children are currently involved in therapeutic counselling and that there has been no barrier to this occurring caused by the problems between the parents.

7. It was also noted by the Mother that there is no shortly pending determination to be made about children’s education.  If a long-term issue is to arise she expects it will arise in the realm of any required medical treatment.  Under those circumstances she does not wish to be in the position where she is required to cooperate with the Father and ultimately return to Court to have a decision made.

8. Where the presumption is not applied, where the Mother has the almost sole care of the children and where there are significant allegations made by her against the Father, the requirement for shared decision-making is contrary to the best interests of the children.  While in some respects this could be dealt with by making no order (in which case each parent would retain full parental responsibility and the capacity to make long-term decisions) lack of certainty in this course when dealing with third-parties means that, again, is not in the best interests of the children.

9. Accordingly an order for sole parental responsibility, in the interim, will be made in favour of the Mother.  However, it is also appropriate that the Father be notified of such decisions being made.

The Father’s time with X

1. As noted above the parties are at odds as to the time that X should spend with his Father.  This is a matter to be determined in accordance with X’s best interests, in the context of the uncertainty in fact-finding that accompanies interim proceedings, by consideration of the matters set out at s 60CC.

2. The primary considerations, along with the views of X, are dominant in the determination of this aspect.  Each of the parties’ proposals is reflective of X’s views and sensitive to ensure that they are not trampled upon.  Each of the parties’ proposals provides for the protection of X.  The Father’s proposal leaves scope for the re-establishment of meaningful relationship.

3. The proposal made by the Mother does not cater for changes in X’s attitude which may facilitate the development of meaningful relationship with the Father.  It is noteworthy that, at present, X is attending therapeutic counselling, in the context of the matters which lay behind the taking of the emergency action by the Department.  It is not known whether or not this may result in a softening of X’s attitude towards his Father.  The Independent Children’s Lawyer (‘ICL’) supported there being a mechanism open for the establishment of relationship, provided it relied upon X’s views as to the matter.  The difficulty with making it so reliant is the pressure that may place upon X.  However, the ICL noted that the material did not disclose that X has been placed under any pressure in relation to this matter, thus rendering such an approach appropriate in this circumstances.

4. Accordingly orders will be made providing for supervised time to occur between the Father and X in accordance with X’s wishes (which parallels the orders that have been made in respect of Y).

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 9 November 2018.

Associate: 

Date:  9 November 2018