FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GATES & CAPPS (No.2) | [2012] FMCAfam 153 |
| FAMILY LAW – Sibling sexual abuse allegations – implications for previously made parenting orders – best interest considerations for children the subject of the proceedings and for child not the subject of proceedings – relevance of criminal proceedings in Children’s Court – criminal capacity of a child, doli incapax & considerations for sibling relationships. |
| Family Law Act 1975, ss.60B(1)(b), 60CA, 60CC(2)(b), 60CC(3)(b) Criminal Code 2002 (ACT), s.26 |
| A v A [1976] VR 298 Aristotle, Nicomachean Ethics; Rhetoric P. Foot, Natural Goodness, (Oxford: Clarendon Press, 2001) |
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- AGLC
- Gates and Capps (No.2) [2012] FMCAfam 153
- Case
- [2012] FMCAfam 153
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the two younger children, [X] and [Y], should be allowed to spend overnight time with their mother without their older sibling, [Z], being present, and under what conditions they could spend daytime with their mother. The court had to balance the best interests of the children with the statutory requirements of the Family Law Act 1975.
The court found that until further order, the children [X] and [Y] should not spend overnight time with their mother when their older sibling [Z] is spending time with her. However, they could spend daytime with their mother, provided that two adults are present whenever [Z] is also present. The court also appointed Ms Burgess as the Independent Children’s Lawyer for the children [X] and [Y], requesting that the necessary arrangements be made promptly. The court further directed that each party must provide the Independent Children’s Lawyer with copies of all relevant documents within seven days of notification. The matter was adjourned to allow for further submissions and consideration of related proceedings in the ACT Children’s Court.
Orders
Orders of the court
1.
Until further Order, the children [X] born [in] 2005 and [Y] born [in] 2007 (‘the children’) are not to spend any overnight time with the Mother while-ever the child [Z] born [in] 1998 (‘[Z]’) spends overnight time with his Mother.
2.
Until further Order, the children spend day time with the Mother as agreed subject to there being two (2) adults present whenever the child [Z] is also present.
3.
Pursuant to Section 68L of the Family Law Act 1975 Ms Burgess of the Legal Aid Office, ACT be re-appointed as the Independent Children’s Lawyer for the children [X] born [in] 2005 and [Y] born [in] 2007. The Legal Aid Office, ACT, is requested to make these arrangements as soon as practicable.
4.
Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
5.
Each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.
6.
The matter be adjourned for further mention to 7th March 2012 at 2:00pm.
THE COURT NOTES THAT:
A. The Court requests a representative for the Director General of the ACT Community Services Directorate attend Court on 7th March 2012 at 2:00pm.
B. Subject to (a) further submissions, and (b) the outcome of proceedings in the ACT Children’s Court on 2nd March 2012, on 7th March 2012 it would be the Court’s intention to allow the children ([X] and [Y]) to spend overnight time with their Mother while their brother [Z] also spent time overnight. Appropriate supervision orders would continue until further order.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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