Appleby and Appleby (No 3)

[2018] FamCA 1117

FAMILY COURT OF AUSTRALIA

APPLEBY & APPLEBY (NO. 3) [2018] FamCA 1117

FAMILY LAW – CHILDREN – Parenting – whom a child should live with

Family Law Act 1975 (Cth)

APPLICANT: Ms Appleby

RESPONDENT:	Mr Appleby
INDEPENDENT CHILDREN’S LAWYER:	Ms L McGregor
FILE NUMBER:	CAC	1103	of		2017

DATE DELIVERED: 19 December 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That the Applicant Mother have sole parental responsibility for the children:

   (a)       X, born … 2008; and

   (b)       Y, born … 2010.

2. That the children live with their Mother.

3. That in the event that either or both of the children express the wish to speak with or spend time with the Father:

   (a)The Mother shall take all reasonable steps to contact the Father;

   (b)The Mother and Father shall communicate in writing to make arrangements for the child/ren to spend time with the Father;

   (c)That the time the children spend with the Father is to be supervised by a professional supervisor, unless otherwise agreed in writing; and

   (d)That the Father shall meet the costs (if any) of the supervision of his time with the children.

4. That, pursuant to s 11(1) of the Australian Passport Act 2005 (Cth), the Court permits X, born … 2008, and Y, born … 2010, to travel internationally (and it is noted that this is an order to which s 11(1) of the Australian Passport Act 2005 (Cth) applies for the Minister to issue a passport for the children without the need for the consent of the Father, Mr Appleby).

5. That pursuant to s 65Y of the Family Law Act 1975 (Cth) the Mother be permitted to take the children out of the Commonwealth of Australia.

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 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).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1103 of 2017

Ms Appleby

Applicant

And

Mr Appleby

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns arrangements for the children of the relationship between the Mother and Father, X, born in 2008 and Y, born in 2010. 

2. The difficult circumstances of this case were set out in general terms in my Reasons for Judgment delivered on 8 November 2018, which deals with the interim arrangements for X and Y.  Since that date on 12 December 2018 the parties again appeared before me.  On that day the Father, by exhibit F1 of that day and by his oral presentation, identified to the Court that he would take no further part in the proceedings. 

3. His asserted reasons for taking no further part are set out in exhibit F1.  He further indicated that he was prepared to consent to the terms of the interim orders made by me on 8 November 2018 as final orders in the case.  While he was present it was indicated to him that different orders might be found to be in the best interests of the children, being orders that did not provide specific times for him to spend time with the children, but rather that he would spend time with them at the children's election.  He made no submissions in relation to this proposition. 

4. At that point, although the Mother was represented, instructions were unable to be taken from her such as to allow the finalisation of the matter and the matter was accordingly adjourned until today. 

5. On the previous occasion it was indicated to Mr Appleby that orders may be made in the terms that I have just indicated, or in the terms of the interim orders, but that in the event that neither of those properly represented the best interests of the children that alternate orders may be made and that steps would be taken to ensure that the Father would be accorded procedural fairness, notwithstanding his identification to the Court that he would take no further steps in the proceedings.

6. Today, by exhibit ICL1 in the proceedings, the Independent Children's Lawyer (the ICL) and the Mother have indicated terms that generally reflect the alternate scheme identified on the last occasion in the Father's presence.  Those terms have been executed by the Mother who is legally represented.  They have not been executed by the ICL but that is not a sign of her failure to agree to those terms but merely, on her indication, is the product of the question of whether or not the Father is on notice of an additional two terms to those previously identified. 

7. Those additional two terms deal with the authorisation to allow the children to obtain passports and to travel overseas, a matter which had previously been agitated but not pressed by the Mother in the context of the interim orders that I have previously made. 

8. The ICL has indicated that these terms, including the international travel component, were forwarded to the Father on Monday by email.  It is now Wednesday and the Father has not appeared in Court today and as far as I am aware has made no communication with the Court. 

9. In my view he is on adequate notice of the additional terms such that if they are a matter that he disagreed with he was in a position to advise the Court of such.  Accordingly, I am of the view that he has been afforded procedural fairness, that it was on the cards that the Court may make orders 4 and 5 as set out in exhibit ICL1.

10. The question arises as to whether or not these orders are in the children's best interest as final orders.  The arrangements set out in ICL1 are superior to those set out in the interim orders.  Those set out in the interim orders included amongst them orders that provided a default position that the Father would be spending time with Y, although it was subsequently conceded by each of the parties that that time was not happening because Y had been resistant to spending any time with her Father and the orders provided that in such a case she would not be required to.  The default arrangements for the Father to spend time with Y are potentially problematic in the long-term, where each occasion that Y is to spend time with her Father may not occur, and on each of those occasions it may be necessary to justify that by demonstrating Y's reluctance on that occasion.  As a long-term, rather than interim prospect, such orders are clumsy at best. 

11. The agreement of the Mother and ICL that these terms are in the children's best interest speaks to the terms being in the children's best interest.  The Father's withdrawal from the proceedings and specific agreement to final orders being made in the terms set out in the interim orders speak to his general acceptance of such orders being the appropriate scheme, even if such a scheme was not his preference. 

12. Although the limited material before the Court at present means that the Court is limited in terms of finding of fact in support of such orders there are some matters which appear to be noncontroversial which support the current proposal as being in the children's best interest.  The matters that are set out in the Reasons for Judgment given on 8 November 2018 identify such matters. 

13. In particular they identify the history of the children being removed from both of the parents by the ACT welfare agency following the finding by the Mother of video footage apparently taken by the children of them making a recording of them engaging in sexual conduct with each other (the pornographic video).  It was also uncontroversial at that stage that the children have been exposed to pornography in the Father's care.  It was further uncontroversial at the time of the interim proceedings that both of the children were resistant to spending any time with Father.  It is also uncontroversial that the Mother functions as the primary carer and has done so for an extended period of time.

14. The scheme of the orders suggested by the Mother and the ICL and not resisted by the Father would mean that she retains the responsibility for the care of the children.  Under those circumstances where the Father will not be spending time with the children, unless there is a change such that the children seek to spend time with him, it is appropriate that the Mother exercise sole parental responsibility as is provided for in the consent terms. 

15. Under the particular circumstances of this case, particularly the pornographic video, the exposure of the children to pornography in the Father's household and the current resistance of the children spending time with their Father there are limited options to try and ensure that the children obtain what benefit they can for a meaningful relationship with him.  Those are adequately supported by the scheme set out by the ICL and the Mother. 

16. The final matter relates to the question of international travel.  As the children will be in the sole care of the Mother, and she will be exercising sole parental responsibility, it is appropriate that she also be at liberty to determine international travel without further consultation with the Father. 

17. Accordingly, I determine that ICL1 does represent the best interests of the children and I make orders in accordance with exhibit ICL1. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 December 2018.

Associate: 

Date:  21 December 2018