Heyes and Caplin

[2019] FamCA 767

FAMILY COURT OF AUSTRALIA

HEYES & CAPLIN [2019] FamCA 767

FAMILY LAW – CHILDREN – proceedings adjourned for the Independent Children’s Lawyer to make an application for legal aid to find a sexual risk assessment of the father

Family Law Act 1975 (Cth)
APPLICANT:	Ms Heyes

RESPONDENT: Mr Caplin

FILE NUMBER: BRC 2021 of 2018

DATE DELIVERED: 17 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 17 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Best Wilson Buckley Family Law

THE RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER: Mr N Grainger
Legal Aid Queensland

Orders

1. That the Registry of the Court provide to the father a copy of Section 60CC(2) and (3) of the Family Law Act 1975.

2. That these proceedings be adjourned for Case Management Hearing at 9.30am on 29 November 2019 in the Family Court of Australia at Brisbane.

3. That mother, her legal representative and the father have leave to appear by telephone on 29 November 2019 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

   (a)They shall each telephone [phone] (toll free) by 9.25am on 29 November 2019;

   (b)They shall each then enter the pass code …; and

   (c)Hold the line until the Court is ready to connect and proceed with the matter.

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 Heyes & Caplin 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 2021 of 2018

Ms Heyes

Applicant

And

Mr Caplin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. This matter comes before me today for a Case Management Hearing with a view to seeing whether the matter is ready to be listed for trial.  It has had a difficult history.  The three children, X, now aged 16, Y, now aged 12 and Z, now aged nine, have had no meaningful time with the biological father, Mr Caplin since September 2012, which was just before his incarceration on serious child sex offences against the mother’s niece when the child is alleged to have been between the ages of five and seven years of age.  The father was, it seems, in September 2012, convicted in respect of a number of offences, which I do not need to detail, and sentenced to a term of imprisonment.

2. The records before the Court suggest that in March 2016 the father was granted parole, but allegedly because of a breach of parole conditions, including, it is suggested, contacting the mother’s niece, he was returned to prison on … 2016 and was not again released until November 2017.

3. The father’s parole conditions concluded in September 2019.

4. Whilst the father was in prison, as his Affidavits filed 19 March 2018 and 16 July 2018 make clear, he was the subject of therapy and, subsequent to his release on parole, the subject of further therapeutic intervention.  I have read that material and the father says it should be interpreted as identifying that he is a low risk of any further sexual misconduct involving children.

5. I have explained to the father today that to progress further in this matter I need to consider the family report of Ms B, and, in my view, her strong recommendation at its conclusion.  It seems well-founded by her concerns expressed at paragraphs 299 and 300 of the report that the father should be engaged in a psychological and a risk assessment and that once that report is available, the Court should consider appropriate pathways for the father’s future contact with the children.

6. The father says, in his Response that he filed as an unrepresented litigant on 19 March 2018 and confirmed today, that he would seek to have time with the children at a contact centre on a reasonably regular basis.  As I understand the father’s application, it could be termed to be almost identification contact.  That is, of course, to be seen within the context of the fact that the father, having been in prison since September 2012, has had no physical contact with the children for seven years.

7. Other than the oldest child, it does not seem as if the other two children have really any cognitive recollection of their father, bearing in mind that in 2012 Y was five years of age and Z was two years of age.  The older child, X, has some, according to Ms B, cognitive recollection of her father but has very strongly expressed views that she does not wish to spend any time or have any contact with the father.

8. It seems to me that, bearing in mind she is 16 years of age, the Court would find it difficult in a case like this to not give her wish significant weight.  I should not also ignore the fact that as the older sibling in a sibship of three girls, her views about her father, however shaped in the father’s absence over the last seven years, could have an effect upon the other younger siblings.

9. It is also suggested that all three siblings have displayed some autistic tendencies.  In fact, I think X has already been diagnosed and Z is in a process of being considered for diagnosis at this stage.  Coupled with that difficulty is the fact that the mother, through her solicitor today, Ms Best, expresses a strong view that she would find it difficult to support and facilitate any time that the children spend with the father, even supervised, and that it could have a significant effect on her parenting.  As I explained to the father today, any affect on the mother’s parenting will inevitably have an effect on the children.

10. The father heard my comments today and they would not have been easy for him to hear.  He has, no doubt, during his time in prison, thought about the day he would be released and the hope that he would spend time with his daughters.  I have no doubt that that desire is genuine; that he loves his children, and even though he acknowledges his past misdeeds of a serious character, he wishes to be a part of their lives.  It was explained to the father a child’s right to spend time with a parent is not an absolute right.  It is a right which the legislation sets out as being subject to it being in their best interests.

11. Because the father is unrepresented and has had limited legal advice, I shall direct that a copy of section 60CC(2) and (3) of the Family Law Act 1975 be provided to him so that he understands the process by which the Court is required to determine what is in the children’s best interests.

12. Ms B’s recommendation of a risk assessment, in my view, is appropriate and well-founded.  The alternative, if this matter was to proceed to trial, is that Legal Aid would be required to fund at least one party, the Independent Children’s Lawyer, for what could be a four or five day trial with Counsel whereby the evidence the father relies upon to establish no risk is examined because the Court could hardly accept that without it being tested.  The cost to Legal Aid of such an exercise might be averted if a risk assessment is prepared and the father’s preparedness to consider that within a whole context of matters is enhanced.

13. The way that the father has taken on board, at least patiently, the observations of the Court today might suggest he might be capable, difficult as it is, of understanding the very difficult situation these children are in at this time of their life.  So I propose to allow Mr Grainger the opportunity, with these Reasons, to make an application to Legal Aid for the funding of a risk assessment.  He is pessimistic about the prospects of that.  He may well be realistic, but that is a matter which only time will tell.

14. Similarly, I have indicated to Ms Best on behalf of the mother that before I was contemplating listing this matter for trial it would be of assistance to the Court if there was some evidence from an independent Psychologist about the effect on the mother, if at all, of any orders made by a Court that the father spends time with the children or some of them.

15. I make the directions which appear at the commencement of these Reasons.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 17 October 2019.

Associate: 

Date:  24 October 2019