Appleton & Appleton

[2021] FamCA 399

FAMILY COURT OF AUSTRALIA

Appleton & Appleton [2021] FamCA 399

File number(s):	NCC 255 of 2021
Judgment of:	CLEARY J
Date of judgment:	10 June 2021
Catchwords:	FAMILY LAW – CHILDREN – Competing interim applications in respect of the parties’ two children, girls aged 17 and 12 – Where parenting orders were made by consent in 2013 for the children to spend time with the father on alternate weekends and every Wednesday – Where it is alleged the father inappropriately touched the elder child whilst he was asleep – Where the parties have been assisted by the process and recommendations of the Children and Parents Issues Assessment – Where the Court is obliged to balance competing risk and take a cautious path for the younger child in having her anxiety heightened or reduced by spending time with her father against the benefit of maintaining a loving relationship –Where the younger child will benefit from seeing her father for short periods of time in a safe and natural setting – Where no orders are made specific to the elder child.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	40
Date of hearing:	8 June 2021
Place:	Newcastle
Counsel for the Applicant:	Ms Ticehurst
Solicitor for the Applicant:	Baker Love Lawyers
Counsel for the Respondent:	Mr Duane
Solicitor for the Respondent:	Gillard Family Lawyers

ORDERS

NCC 255 of 2021

BETWEEN:

MS APPLETON

Applicant

AND:

MR APPLETON

Respondent

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	10 JUNE 2021

THE COURT ORDERS THAT:

1.BY CONSENT I  make orders in accordance with a document titled “Proposed Minute of Order – Respondent Father” being paragraphs 1 to 7 and 10 inclusive:

1.That the mother and father are restrained from discussing with the children X born … 2004 and Y born … 2008 referred to collectively as “the children”, and, will do all acts and things necessary to remove the children from in any location which any third party is discussing, any application and/or response filed by the mother and father in these proceedings.

2.That the mother will do all acts and sign all documents necessary to:

(a) Omitted intentionally;

(b) Encourage X to access therapy.

3.That the mother do all acts and sign all documents necessary to cause Y to obtain an assessment via her GP regarding her allergy.

4.That the mother and father do all acts and sign all documents necessary to authorise Ms B to discuss with Y, X’s description of touching, and the parties will provide to Ms B the document annexed hereto and marked with the letter “A” being the set of facts to be disclosed to Y for the purpose of this order.

5.Leave is granted for a copy of the Children and Parents Issues Assessment Report dated 13 May 2021 to be provided to Ms B by the mother and/or father.

6.Leave is granted to the mother to forthwith issue a subpoena to obtain:

(a)Department of Communities & Justice records for the children;

(b)NSW Police records for the children;

(c)Psychological records for X;

(d)Psychological records for Y.

7.Leave is granted to the father to forthwith issue a subpoena to obtain:

(a)Y’s primary school records;

(b)Y’s high school records;

(c)Y’s GP records;

(d)X’s GP records.

8.Omitted intentionally.

9.Omitted intentionally.

10.That a Family Report be prepared by Dr C (sic) at the conclusion of 2021.

IT IS FURTHER ORDERED THAT

2.That Y spend time with the father as agreed and failing agreement as follows:

2.1Each alternate Sunday for one hour between 11.00 am and midday in the presence of either or both of the paternal grandparents with the mother to deliver Y to the home of the paternal grandparents no later than 10.30 am and to collect her nor earlier than 12.30 pm from the same place.

3.That the father may communicate with Y by text but is restrained from raising the topic of the time which Y (and her sister X) spend with the father.

4.Time for Y pursuant to Order 1 shall commence after:

4.1The paternal grandparents have each provided an Undertaking not to raise the topic of time to be spent with the father;

4.2The parties have complied with Order 4 above and Ms B has discussed with Y Annexure A to these orders.

5.Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the children and to facilitate such appointment the parties do forward all relevant documents to Legal Aid NSW within the next 7 days.

6.That each of the parties do all such things as may be necessary to facilitate the children’s attendance on the Independent Children’s Lawyer on such dates and times and places as required by the Independent Children’s Lawyer.

7.A copy of these orders shall be provided by the Independent Children’s Lawyer to Ms B.

8.Pursuant to s 62G(2) of the Family Law Act  1975 the parties, the father’s partner, the children, and the paternal grandparents and any other relative at the discretion of the Family Consultant, shall attend upon Dr C, Family Consultant of the Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report NOTING it is anticipated the interviews will take place on Monday 29 November 2021.

9.This matter is adjourned to 9.30 am on Tuesday 1 February 2022 following the release of the Family Report.

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

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 17.02 Family Law Rules 2004 (Cth).

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

ORAL REASONS FOR JUDGMENT

CLEARY J

1. These are competing applications in respect of the parties’ two children, X aged 17 and Y almost 13.

2. The parties are in their early forties, they were in a relationship and married for about 13 years until their separation in 2012.

3. The mother describes a relationship characterised by the father drinking to excess, regularly absent from the family and inclined to anger if challenged. The mother alleges, and the father denies, four physical assaults on her by the father during the marriage.

4. The father describes a relationship characterised by his having an active role in caring for the children, with arguments between the parties where each said hurtful things to each other at times. The father responded to the reference to drinking with “I do not drink to excess”.

5. On 15 November 2013 parenting orders were made by consent. Relevant orders provide for the children to spend time with the father on alternate weekends and every Wednesday.

6. The mother describes the children often reporting the father to be cranky, in a bad mood or angry during the time spent with him.

7. The mother asserts that as the children became more independent they became reluctant to go to spend time with the father.

8. On the contrary, the father asserts that from about 2015 time between himself and the two children increased and was always enjoyable.

9. What is agreed is that in the first half of 2020 the children very often did not go or did but spent less time than usual.

10. In mid-2020 through holidays and the father working away, the father did not see the children for about six weeks, time thereafter did not resume.

11. By September 2020 there was conflict with the father and the paternal family upset and wondering about the absence of the children.

12. The father applied a degree of pressure on both girls:[1]

    [33.]The girls came over on the afternoon of Thursday 3 September 2020. I said to them: “What’s going on girls? What have I done wrong? I love you both so much, I don’t understand why you don’t want to come home as much. Now Grandma and Aunty D are getting yelled at, what have they done wrong?”

    [34.]The girls are upset. They both said: “I don’t know.” I said: “You’re breaking my heart, I do everything for you both, I’m not just here for presents and parties with friends, I don’t understand what I’ve done”.

    [35.]The girls both became teary. I said to Y: “OK…so you have anxiety and you just want to stay at mums.” I then said to X: “Shouldn’t stop you from coming over.”

    [1] Affidavit of the father filed 23/02/2021, pars 33-35.

13. The father has asked the children why they were no longer coming and why members of the extended family were “getting yelled at, what had they done wrong?”

14. The children became increasingly upset.

15. The incident which caused time to fall away is this.

16. On 13 March 2020 both girls were in their father’s care. It is an agreed fact that they were in or on the father’s bed with him in order to watch a movie:[2]

    Whilst the children were in Mr Appleton’s bed, Mr Appleton sexually touched X. I say this because during our conversation in or around July 2020, X said to me words to the effect of:

    X:Y and I were in Dad’s bed. We had been watching a movie and I fell asleep. I woke up to Dad feeling up my leg, he rolled over and started kissing me on the neck. Dad almost touched my private parts. When I realised, I freaked out and pretended to fall out of the bed. I went to the toilet and then got back into the bed.

    [2] Affidavit of the mother filed 1/04/2021, par 28.

17. This is what the older child described to the mother and the father acknowledges that there was an occasion when the children were watching a movie with him in those circumstances.

18. X said nothing to either of her parents contemporaneously about what happened.

19. In July 2020 X told her mother in the words as set out in the mother’s affidavit at paragraph 28. She did not want to speak to police or tell anyone else about it. She said she hoped to forget about it. The mother promised to keep the information between herself and X. The mother then ceased making the children available for the following two months without explanation. The mother clearly felt torn between her promise to X and the obvious conflict looming with the father.

20. It must be the case that X knew why the children had stopped seeing their father but Y did not. For an anxious child, as Y is, her imaginings about the reason were likely to have made her considerably more anxious.

21. On 3 September 2020 the children went to spend time with the father after a long period of months. The father confronted the children about their prolonged absence and demanded an explanation.

22. X with considerable courage told her father what was worrying her, that is, what had happened six months prior. The father described himself as shocked and overwhelmed by what X told him, but he did not doubt that she was telling him the truth.

23. Y was left inside the house while the father and X went to the shed in the backyard to talk about the incident. Y was apparently not given any explanation for their absence or what had been discussed.

24. On 4 September 2020 the father told the mother what X had said to him. Towards the end of the conversation the parents said this, “Should we communicate between ourselves more rather than through X?” [3]  This must have represented a breakthrough for the children that the parents had talked and intended to talk to each other rather than using X as a conduit.

    [3] Affidavit of the father filed 23/02/2021, par 54.

25. After those events time with the father took place.

26. The children and parties took part in the Children and Parents Issues Assessment on 15 May 2021. It is apparent that the parties have been assisted by that process and recommendations within the assessment.

27. Both parties produced a Minute of Order for the application before me.

28. By 8 June 2021 when the matter was in Court there was consent to Orders 1 to 7 and Order 10 arising from discussions between the parties.

29. The family consultant had expressed her view in mid-May 2021 that no orders be made regarding the father’s time with the children “at present”.

30. The mother took that position on an interim basis.

31. The father proposed four hours of time on alternate Sundays supervised by his parents.

32. The obligation of the Court is to balance competing risk and to take a cautious path.  Y having her anxiety heightened or reduced by spending time with her father against the benefit of maintaining what is conceded to have been a loving relationship between the father and the children.

33. I accept that Y should first be helped to understand what it is what happened between her father and X and to have any questions about it answered by Ms B.

34. The parents have agreed on how that should happen and what should be told. That process should release Y to talk to any member of her family, or not, about the incident. That should be her choice entirely.

35. After the explanation, Y will, in my view, benefit from seeing her father for short periods of time in a safe and natural setting. Her grandparents should be present and the orders to be made provide for her to have a little bit of time, before and after the time with the father with her grandparents.

36. As much as possible, the orders provide for something similar to a regular family visit. Four hours in a public place would quickly become an artificial experience for a young girl in Year 7 and she may become resistant. One outcome of these orders could be a gradual transition to more time in due course by agreement between the parents.

37. Y, it seems to me, has a lot to deal with. Medically, she needs to understand how to predict and manage her own body’s allergic responses so as to reduce her anxiety about whether other people’s food is safe for her to eat. Emotionally, she needs to understand what happened to her sister X and be reassured that X is alright and that she will be too.

38. It is very important that the father and the paternal grandparents and other family members do not put any pressure about time on Y. She is coping with her mother’s worries about her safety and wellbeing as well as her own.

39. For those reasons orders are made first of all by consent between the parties and the balance determined by the Court. I have otherwise adjourned the proceedings to 1 February 2022 to enable the parties to consider whatever the recommendations of the Family Report are to see if they can find a way forward. If not there would have to be a trial.

40. There are no orders specific to X in the orders determined by the Court. She in 17 years old and in Year 12. She had the maturity and courage to tell her father what happened in March 2020. She should be free to communicate with her father, grandparents and paternal family as she wishes and to accompany or not her sister Y on any periods of time provided for in these orders.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the oral Reasons for Judgment of the Honourable Justice Cleary.

Associate:  

Dated:       10 June 2021