BILSON & SARSGAARD

[2020] FamCA 320

FAMILY COURT OF AUSTRALIA

BILSON & SARSGAARD [2020] FamCA 320

FAMILY LAW – CHILDREN – where final parenting orders were made in 2018 for the three children to spend supervised time with the father indefinitely – where the parents have, subsequent to the final orders, by agreement made arrangements for two of the children to spend unsupervised time with the father – where the father now seeks final orders for all three children to live with the parents in a shared care arrangement – where, on the current evidence, the principles of Rice & Asplund have been overcome as a threshold issue in relation to two of the children only.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Bilson

RESPONDENT: Ms Sarsgaard

FILE NUMBER: BRC 11169 of 2011

DATE DELIVERED: 27 March 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 27 March 2020

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

1. That the Initiating Application be allowed to proceed at this stage with respect to the parenting arrangements concerning the boys, C born … 2008 and F born … 2008.

2. That the mother and father shall provide to the Independent Children’s Lawyer such information as they have to their knowledge in relation to the conduct of the father with a young female around the time of delivery of the final judgment in this matter.

3. That the Independent Children’s Lawyer have leave to relist the matter including if she seeks an order of the Court that a Child Inclusive Conference occur.

4. That neither parent shall record the conversations of any of the children, C born … 2008, F born … 2008 and E born … 2009 (“the children”), with a parent by telephone or otherwise.

5. That these proceedings be adjourned for Case Management Hearing at 9.30am on 6 May 2020 in the Family Court of Australia at Brisbane.

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 Bilson & Sarsgaard 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 BRISBANE

FILE NUMBER: BRC 11169 of 2011

Mr Bilson

Applicant

And

Ms Sarsgaard

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. On 2 May 2018, Hogan J, in Reasons for Judgment comprising 500 paragraphs, provided reasons for Orders made at that time in relation to the three children of the parties, namely F born … 2008, C also born … 2008, and E born … 2009.  The effect of the Orders for the reasons given by Hogan J were that the children would live with the mother; the mother would have sole parental responsibility save for arrangements that make it significantly more difficult for the children to spend time with their father or that was in relation to the children’s name and that the children would spend time with their father that was supervised each alternate weekend on either Saturday or Sunday for two hours.  Further, facilitative orders were made, including in order 10 that the children communicate with the father by telephone between 6.30pm and 7.15pm each Monday and Wednesday, Her Honour turned her mind to a number of critical issues in her Judgment, but for the purposes of today’s hearing, about whether an Application filed by the father in the Federal Circuit Court of Australia on 12 April 2019 should be permitted to continue.  Her Honour identified, in my view, the following critical issues:

   a)That E “would be at an unacceptable risk of suffering sexual abuse if her time with her father were unsupervised” at [341];

   b)That “whilst there is no suggestion in this case that the boys are at any risk of suffering sexual abuse if their time with their father was unsupervised, for reasons discussed later, I consider that spending unsupervised time with their father would place their ongoing relationship with E at significant and an unacceptable risk” at [342]; and

   c)Paragraph 499 referred to the recommendations of a sexual abuse assessor, Mr B, who recommended that before unsupervised time for E is contemplated, he would like to see at least:

   i)the father having a stable relationship;

   ii)the father having participated in some offender acknowledged therapy; and

   iii)that E had done some further work in terms of understanding protective behaviours.

2. It is important by way of overview to acknowledge that the three children have, it seems, all been diagnosed with a form of autism spectrum disorder.  Additionally, two of the children – maybe all three – have other challenges of ADHD or ADA.  The children have been receiving counselling, the mother says, as a result of funding provided by the National Disability Scheme, and the parties’ evidence, which I referred to earlier in today’s hearing, particularly for the mother, identifies the way she has been, as a primary carer under the Orders, seeking to support the children’s ongoing development.  It is clear that the management of the children, particularly F at one stage, is an ongoing and difficult exercise, and the mother acknowledges it herself.

3. Hogan J identified, as was appropriate, the line of authority that needs to be considered when making a long-term supervisory order.  It is not generally seen as optimal.  Her Honour took that into consideration in making the orders she did, and although she did not, when making the orders, provide any form of condition to proceed further, or sunset clauses, as is commonly called, it is clear, in my view, that the Reasons of her Honour, which again I acknowledge were not the subject of any appeal, was within the context of at least:

   a)an assessment made by a family report writer, Ms J, as set out in a report filed 23 October 2014 that relied upon assessments and observations made of the family and the children in September 2014.  At that time, the twins were six years of age, and E was five years of age;

   b)the trial took place over six days, it seems, between June 2015 and September 2015, however Reasons for Judgment were not delivered until 2 May 2018 – there is nothing in the Reasons to suggest that the parties had sought to re-open the proceedings to give further evidence to the Court; and

   c)it seems that not long after the Orders made by Hogan J were pronounced, the parties, as they were permitted to do under the Orders, while setting out the time the children would spend with the father, indicated at order 7 that “the children will spend time communicate with the father at all times as may be agreed between the parties in writing and failing the agreement” put into place some arrangements which I will refer to again shortly.

4. This matter was listed for the purpose of considering whether the principles of Rice & Asplund (1979) FLC 90-725 and subsequent authorities that require there to be a material and substantial change of circumstances before Court, in the best interests of the children, would revisit earlier orders made by a Court, has been overcome as a threshold issue.

5. Ms Fox, who was, I note, the Independent Children’s Lawyer in the trial before Hogan J, and who was subsequently re-appointed after the father’s Application was filed in April 2019, initially provided written submissions in which she says that in her view, the threshold had not been reached.  However, in exchanges today with Ms Fox, she conceded that certainly in respect of the boys, the change of circumstances has both been material and significant.  The father, of course, wishes to revisit all of the parenting arrangements.  At this stage I am not prepared, for the reason which I will set out, to advance any change to parenting arrangements for E, although the Court will revisit that position when further information is available.

6. The mother, as early as the Response she filed in these proceedings, and who, like the father, is unrepresented, on 9 July 2019 effectively asks that the application be dismissed, although, to be fair to her, her Response, again prepared by herself as an unrepresented litigant, while seeking essentially that it be dismissed, had other alternatives set out in her response in the following terms:

   “…

   2.That the court grant leave for the matter to be reheard not before E’s 13th birthday so the children can express for themselves their wishes in regards to custody and access.

   3.That failing the first two orders sought, the mother retain full decision making for all children and the father be allowed unsupervised access to the boys only for one weekend per month with supervision to continue for E.”

7. The father’s position in his initial Application was that essentially the orders be revisited and that supervision be removed in respect of all children such that over a period of time the parties, it seems on his Application, share the care of all three children.

8. In my view, the significant material change of circumstances that have occurred in this case that warrant, with some reluctance and to some degree, because of the history of the litigation, the length of time and the highly emotional presentation even by telephone of both the mother and father reflected in their Affidavits, at least, are:

   a)the parties did, after the Orders made by Hogan J, reach some agreement that as from about 15 June 2018, F and C would spend unsupervised time with the father on weekends and for holidays.  I do not set out the full extent of that period other than I accept that by on or about 19 December 2018, the mother indicated she did not want to “renew” the agreement the parties had reached;

   b)the father says that at times post the orders of Hogan J, the mother was struggling to cope with the care of the children, particularly F, and even, on 16 September 2018, suggested to the father that he have “100% custody” of F; and

   c)Although it appears that F and C did spend substantial unsupervised time with the father for a period, F no longer does so.  The reasons why that is the case might need to be explored.

9. What, however, is apparent from the unchallenged evidence today is that C continues to spend with the father on at least a monthly basis a full unsupervised weekend in the father’s care from Friday to Monday before school.  I sought to explain to the mother, who I understand is fearful of regurgitating old issues and some new issues, some of which include, for example, the alleged conduct of her partner Mr RR; a very vague allegation that the mother says has been raised about some inappropriate conduct by the father towards a female child in a church environment and just ongoing disputes the parties have about the quality of parenting the other parent offers to the children that she would like to put, in effect, the genie back in the bottle.  I raised with her the concerns that to do so would be effectively, at least so far as C is concerned at this stage, to significantly reduce the time he has been spending with the father back to a supervised environment of two hours every fortnight at the home of the father.  Without further evidence, I am not prepared to do that to C.  I am also a little uncertain as to all the circumstances which have apparently now caused F from spending unsupervised time with the father, to choose not to spend any time.

10. The father’s material at least identifies from his perspective that not only does he not accept the finding made by Hogan J but that in any event, it should no longer impede him having unsupervised time with his daughter.  He refers of course to the fact that he holds a blue card.  He refers to a course he has undertaken, but on the face of the certificate I have read, that could in no way be equivalent to an “offender therapy” course.  One of the usual requirements for any “offender” to undertake therapy is acknowledgment of their wrongdoing.  Of course notwithstanding the Reasons for Judgment of Hogan J, who heard all of the evidence at trial, the father disputes and does not accept that he did anything wrong in respect of E.  As a result, it may be difficult for him to undertake really any offender therapy.

11. I propose to allow the application of the father to proceed in respect of C and F, but at this stage, I require further evidence in respect of the alleged misconduct of the father with another child since the Orders were made or around that time before I can feel satisfied on the evidence currently before me that E, who has only had supervised time with the father, should move to an unsupervised regime, or that further consideration be given to doing so.

12. In so doing, and having already identified that Hogan J identified as the reason really why, having found no unacceptable risk of the father towards the boys, supervision was imposed in respect of the father’s time with the boys, was her concern about the effect on the relationship between the boys and E.  However, in my view, the mother, quite fairly, and I suspect honestly, identified that is not an issue.  Now, at paragraph 40 of the Affidavit she relies upon filed 9 July 2019, the mother says:

    “40.While the mother accepts that the Court may have difficulty understanding why she chose to extend a trial period of unsupervised access of the boys with their father, she states that she did so because despite the father’s claims to the contrary she wanted the boys to be able to continue to have a loving relationship with their father and the mother acknowledges that at the start of the arrangement, both boys enjoyed the opportunity to spend time with both parents.  Further, the mother states that E was not upset by the boys being able to spend time with their father as she had stated to the mother that she herself did not want to spend unsupervised time with her father but was happy for the boys to do so as it allowed the mother and E to enjoy some girl time.”

13. Accepting for the moment what the mother swears to be true is true about what E said to her, that would reflect an attitude or expression of a child more mature than the five year old child who Ms J observed in September 2014, and that is only to be expected.

14. Therefore the decision of the Court is that the application of the father can proceed at this stage in relation to parenting orders for the children F and E.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 27 March 2020.

Associate: 

Date:  7 May 2020