APPLEBY & APPLEBY

[2018] FamCA 814

FAMILY COURT OF AUSTRALIA

APPLEBY & APPLEBY [2018] FamCA 814

FAMILY LAW – CHILDREN – Interim Parenting – where Children’s Court orders currently in place due to expire – oral application for sole parental responsibility ultimately not pressed – where order sought that one child spend no time with the father – where need to protect child from harm – where order for supervised time in relation to other child – where father alleges inability to pay for supervision – lack of sufficient evidence to determine who should bear the costs of supervision - appointment of Independent Children’s Lawyer.

Family Law Act 1975 (Cth) s 69ZK

APPLICANT: Ms Appleby

RESPONDENT: Mr Appleby

FILE NUMBER: CAC 1103 of 2017

DATE DELIVERED: 8 October 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. That the proceedings are adjourned for further interim hearing to 8 November 2018 at 2pm for a period of two hours.

2. That in the event that the father seeks to oppose the making of the interim orders sought by the mother, he is to file and serve any response and responding material 14 days before that date. 

3. That in the event that the mother seeks to amend the orders that she seeks on that date, she is to file and serve such amended application 21 days before that date. 

4. That in the event that the mother seeks to rely upon material in reply to matters raised by the father's material, she is to file and serve that material seven days before that date. 

Amended under the slip-rule:

1. That on and from the expiration of the Children’s Court Orders on 1 November 2018:

   (a)That until further order the children, X (X) born … 2008 and Y (Y) born … 2010, live with the mother.

   (b)That until further order X spend no time with the father.

   (c)That until further order Y spend time with the father from 9:30am to 1:30pm each alternate Sunday, such time to be supervised by a professional supervisor from B Group.

   (d)That until further order the father is at liberty to attend Y’s gymnastics lessons, provided he gives the mother notice by 6pm the day prior to the lesson of his intention to attend.

2. That pursuant to s 68L of the Family Law Act 1975 the children be independently represented and it is requested that the Legal Aid Commission ACT arrange such representation.

3. That in considering the appointment of an Independent Children's Lawyer it is requested that the Legal Aid Commission ACT consider appointing Ms Sally Hiles as the Independent Children's Lawyer, given she previously acted as the children's representative in care and protection proceedings. 

4. The father is directed to forthwith file and serve a notice of address for service.

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. The mother, by an initiating application filed on 17 August 2018, seeks a suite of interim orders in the matter.  Only a number of those interim orders are pressed today in the circumstance that the father has filed neither a response, nor any responding material.  The orders sought by the mother today are set out at one through seven of the interim or procedural orders sought.

2. Today the mother indicated that she also seeks an order in the interim for sole parental responsibility for the two children, X and Y.  However, this was an application without notice and it appears it is also not met with any urgency on the basis that the proceedings will be brought back before the Court in November for a more fulsome interim hearing, following the filing of material by the father.  I will return to this matter in a moment.

3. The more general circumstances are that there are currently orders in place made by the Children's Court of the Australian Capital Territory. I am unclear as to the precise scope of those orders but the scope seems to provide for X and Y to live with their mother, with limits on the interaction that they are able to have with their father. Those orders bring into play s 69ZK of the Family Law Act 1975.  The operation of that section means that I am not permitted to make orders in relation to X and Y unless either, firstly, there is the written consent of the Director-General (which there is not in these proceedings) or, secondly, I express the orders to come into effect on the expiration of the Children's Court orders.  Those Children's Court orders are due to expire on 1 November 2018 and if orders are to be made, then they will be made to commence on that expiration. 

4. Of the orders sought by the mother, the father agrees to a number being in place, pending the further interim disposition of the matter.  There are a number that he does not agree with. 

5. He accepts that X and Y will live with the mother until that point. While he accepts that, at present, X does not wish to spend any time with him, he opposes the making of an order that X spend no time with him so as to give X the option to spend time with him if he so chooses. 

6. The father accepts that there should be orders in place for Y to spend time with him, professionally supervised each alternate Sunday from 9:30am until 1:30pm, however, he disputes that there should be an order that he meet the costs of that supervision on the basis that he says he is unable to do so. 

7. As far as I can tell the father accepts that there should be an order, meaning that he is at liberty to attend Y's sporting lessons, provided he gives the mother notice of his intention to attend. 

8. He further accepts that there should be an Independent Children's Lawyer  (“ICL”) appointed in this case and that Ms Hiles who has previously acted as an ICL should be requested. 

9. The most contentious matters then were as follows. 

10. Firstly, the question as to whether or not there should be an order in respect of parental responsibility.  As noted there was no interim application made by the mother until she orally sought to make one today.  Her interim application would be opposed if she was permitted to press it.  However, on the father giving his agreement in Court to X and Y continuing to attend for counselling at the CARHU where they have until now been obtaining counselling services, the mother conceded that there was no pressing need for an order to be made for sole parental responsibility, as it did not appear that there would be decisions required to be made that could only be made by the exercising of such parental responsibility pending the further interim hearing of the matter. 

11. While there is, in general terms, a presumption in favour of an order of equal shared parental responsibility that is operative in these proceedings, the Court is empowered to decline to apply that presumption in interim proceedings where the circumstances justify it in doing so.  The particular subject matter of these proceedings, that involve evidence that X and Y have engaged in sexual activities together which have been video recorded by X using an iPad, and the question of who might be responsible for that behaviour having been engaged in, and the limited material that is currently available for the Court under the circumstances that the father has not filed material, mean that it is not appropriate to apply that presumption in these proceedings and I decline to do so. 

12. That will leave the matter where the parties each bear their parental responsibility without that parental responsibility having been affected by the making of Court orders to alter it. 

13. The next most contentious issue was whether there should be an order made that X spend no time with his father.  That falls to a consideration of two factual matters that are alleged. 

14. The first is that X expresses a strong view that he would not spend time with his father.  That, in the mother's material, has been expressed in the most extreme terms, including terms which encompass X expressing a wish to do physical harm to his father.  X is only 10 years old at this point.  The father, however, accepts that X does hold the view that he does not want to spend time with his father. To the extent of that concession it is an accepted fact that that is X's position. 

15. Coupled with that, there is a question of risk for X spending time with the father.  The father indicates that he will not impose himself upon X in terms of spending time, but wishes to leave the door open pending the further interim hearing of these matters for X to spend time with him if X so chooses.  The risk which is said to arise is a sexualised risk to be inferred from the iPad recording of sexual contact between X and Y.  A question arises as to what evidence is available to support an inference that the sexualised conduct between X and Y should be found to be connected to conduct or risk flowing on the part of the father.  Four factors were pointed to.

16. The first is that it is the mother's position that she has not engaged in any conduct which could have led to X and Y engaging in the sexual acts depicted on the video recording. 

17. The second is that the father is said by the mother to have a strong interest in pornography, such evidence supported by a report prepared by Dr C in the Children's Court proceedings which identifies that interest on the part of the father. 

18. The third is that the mother gives evidence as to the father's pushing of sexual boundaries, as is also recorded in Dr C's report.

19. The fourth is that Y has reported to her that is, to the mother, that she has seen the father and his partner engaging in sexual activity in front of her.  At this stage I do not know to what extent those matters will be contradicted by the father when he files his material. He has not filed material to date.

20. Those various matters are sufficient to identify that the father may be the source of the reason for X and Y having engaged in sexual contact with each other as recorded on the iPad.  If they are, the iPad shows the serious consequences of exposure to that risk. 

21. While an inability on the part of the father to spend any time with X means that X will be deprived of any benefits of meaningful relationship with the father, being one of the two primary considerations, it is the second primary consideration which bears weight in these interim proceedings and that is the need to protect X from harm from exposure to abuse.

22. That is sufficient, pending the further hearing of these interim matters, to support the making of the orders sought by the mother that X spend no time with the father, in particular in the circumstances where X has expressed a strong view, which appears to be accepted by the father, that he does not want to spend time with his father. 

23. That leaves one other contested matter and that is the basis upon which the supervised time will be funded.  To date, the supervised time has been funded by the Director-General during the currency of the Children's Court orders.  The Director-General, as far as I can understand, intends to play no further role between these parties on the expiration of the Children's Court orders and it may be anticipated that at that point the Director-General will cease to pay for that supervised time.  Those orders are due to expire on 1 November 2018. 

24. I will list this matter to come back before me on 8 November 2018.  It is unclear to me whether the hiatus between those two dates will mean that the father misses out on time with Y if no orders are made providing specifically for how that time is to be funded, however, in the absence of any cogent evidence as to either party's capacity or incapacity to pay for those orders I am unable to make an order that the father pay or that the mother pay for that time. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 October 2018.

Associate: 

Date:  8 October 2018