Applegarth and Applegarth

[2009] FamCA 517

FAMILY COURT OF AUSTRALIA

APPLEGARTH & APPLEGARTH [2009] FamCA 517

FAMILY LAW – CHILDREN – Sexual abuse allegations – Magellan list – child’s best interests – unopposed application that father spend no time with child

Family Law Act 1975 (Cth)

APPLICANT: Mr Applegarth

RESPONDENT: Ms Applegarth

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10472 of 2007

DATE DELIVERED: 15 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 15 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms S. McGregor

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms M.E. Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Victoria Legal Aid

Orders

IT IS ORDERED:

1. That the wife have sole parental responsibility for the child of the marriage R born … October 2000.

2. That the said child live with the wife.

3. That there be no order for the husband to spend time with or communicate with the said child.

4. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

5. That all parenting applications be removed from the pending cases list AND THE COURT NOTES that the competing applications for final alteration of property interests have a conciliation conference allocated for 25 June 2009 at 11.00 am when the husband will participate by telephone.

IT IS NOTED that publication of this judgment under the pseudonym Applegarth & Applegarth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10472 of 2007

MR APPLEGARTH

Applicant

And

MS APPLEGARTH

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. These proceedings come before me in the Magellan duty list.  The parties are Mr Applegarth, who is currently detained at Prison, where he is serving a sentence of five years imprisonment, with a non-parole period of three years, in respect of sexual offences.  The mother is Ms Applegarth. The mother and father have one child of their relationship, a daughter R, with whom these proceedings are concerned.  The mother has two children of a previous relationship, being N and B.  It is in respect of N that the father has been found guilty of offences.

2. R, born in October 2000, is eight and a half years old.

3. There have been proceedings between the mother and the father in either the State Magistrates Court of a family violence nature, or in this court, since approximately 2007.  In September 2007, the husband initiated proceedings in the Federal Magistrates Court seeking shared care of R and orders effecting a final alteration of property interests.  That latter application has yet to be finalised, and a conciliation conference is to be convened on 25 June 2009.  The father will participate in the conciliation conference by telephone and a registrar of this court will conduct the conference.

4. The mother's response to the father’s application was filed on 23 November 2007 and, in it, she sought parenting orders; in particular, that she have sole parental responsibility for R, that R live with her, that "there be no order for the husband to spend time with or communicate with the child," and a response, although not in specific terms, to the application for a final alteration of property interests. 

5. The competing parenting applications were accepted into the Magellan List of cases on 10 December 2007.

6. It is in respect of the parenting orders sought in her response that the mother now seeks final judgment on an unopposed basis. 

7. In April of this year, the father withdrew his application for parenting orders.

8. The independent children's lawyer, who was appointed pursuant to a request made in November 2007, supports the orders sought by the mother.   

9. As part of the court's preparation of the matter for trial, a report was obtained by the Department of Human Services on 14 January 2008.  It detailed the Department's investigations from June to November 2007. The report is common to all parties. 

10. To summarise, the Department of Human Services substantiated allegations against the father but closed its file on the basis that it was satisfied that the mother had acted protectively towards R and R was not seeing the father. 

11. In the course of preparing the matter for trial, a psychiatric assessment of the father was completed by Dr S.  The father was interviewed by Dr S on 29 February 2008.  In his report, dated 12 May 2008, Dr S concluded that he would have ‘significant concerns’ about the father’s access to the children.  Based on the materials provided to him and the father’s presentation, his concerns related to physical and emotional abuse rather than sexual abuse.

12. At a procedural hearing on 16 May 2008, the court was advised that the father had been charged with sexual offences in relation to his step-daughter, including one count of rape.

13. A family report was prepared for the court by Ms L, family consultant.  It is dated 3 April 2009.  It is an extensive, well‑reasoned document, on which I place weight.

14. Ms L’s recommendations are:-

    a)that R continue counselling for as long as is deemed necessary,

    b)that there be no face-to-face contact between R and the father,

    c)that R have no direct or indirect communication with the father whilst he is in prison, and

    d)that the father undergo further counselling whilst in prison with respect to his offending behaviours. 

15. The family report was distributed to all parties.

16. On 28 April 2009, I made an order in chambers, by consent, to the effect that the father could withdraw his application and that the mother's parenting application would be considered by me today.  I made a notation, also sought by the parties, requesting that Correction Services Victoria continue providing psychological counselling for the father whilst he is incarcerated, and when appropriate, that he be provided a place in the Sex Offender Program. 

17. The principles which guide the making of parenting orders direct the court to assess the benefits to a child of having a meaningful relationship with each parent and to make orders which ensure that children are protected from abuse, neglect and harm.  In this case, the father does not oppose the orders sought by the mother.  This is a court of private law and the father has chosen to withdraw his application.  I am satisfied that the core principles in the legislation have been addressed by the resolution sought by the mother and supported by the independent children’s lawyer.  It is the best outcome for R in all of the circumstances.

18. On the evidence that I have referred to, I am comfortably satisfied that the orders sought by the mother are in the best interests of R. I will make them accordingly.

19. The parenting proceedings are now concluded.

I certify that the preceding nineteen paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  15 June 2009