Lambden and Lambden

[2020] FCCA 2557

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMBDEN & LAMBDEN [2020] FCCA 2557

Catchwords:
FAMILY LAW – Parenting – application concerning a child who is 1 year old – where the child lives with the father and spends time with the mother pursuant to consent orders – where the father alleges the child is at risk of harm – where the father alleges the mother contravened an order not to upload videos to her adult entertainment social media platforms or liaise with clients while the child is in her care – where the mother denies contravention – where the mother says she previously scheduled the material to upload automatically – further consideration of material is required – not satisfied the mother has done what is alleged – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS LAMBDEN

Respondent: MR LAMBDEN

File Number: DNC 186 of 2020

Judgment of: Judge Young

Hearing date: 21 August 2020

Date of Last Submission: 21 August 2020

Delivered at: Darwin

Delivered on: 21 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Dowd

Solicitors for the Applicant: Ward Keller Lawyers

Counsel for the Respondent: Ms Noble

Solicitors for the Respondent: Withnalls Lawyers

ORDERS

UPON NOTING THAT:

1. The Court notes the mother’s undertaking attached to her affidavit filed 19 August 2020

THE COURT ORDERS:

1. That the application in a case filed by the father on 12 August 2020 be dismissed.

2. That the application for contravention filed by the father on 12 August 2020 be adjourned to 29 January 2021 at 10.30am.

3. That there be no order for costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 186 of 2020

MS LAMBDEN

Applicant

And

MR LAMBDEN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application concerning a child, X, who is not yet two.  The parties entered into consent orders on 31 July 2020 that provided for the child to live with the father and spend time with the mother on a regular basis.  There was an order at number 5:

   That whilst the child is spending time with the mother, the mother shall not record videos for or upload videos to, her adult entertainment social media platforms or liaise with clients.

3. The mother is employed in the adult entertainment industry and she has a social media presence or, at least a digital platform presence which involves, as far as I can ascertain from the material, a mixture of uploading erotic or pornographic videos on the web, which are then accessed by paying customers.  She also seems to have another aspect to the business she operates, which is a “chat” of some description with clients.  Presumably, that is erotic chat and the platform for that is not entirely clear to me, but the mother operates a reasonably sophisticated digital web-based adult entertainment business.  There is no evidence that she actually has any physical contact with clients and that is not alleged.

4. The father brought an urgent application before this court alleging that the mother was in breach of order 5 and the child was at risk of harm as a result of the mother’s breaches.  The father, apparently, has accessed in some way the mother’s digital platform or her digital accounts.  He says that the mother, through inadvertence, failed to change her passwords, to put it simply.  She denies that.  I do not know.  Somehow or other the father has accessed this material.  He says that there is evidence that on the weekend of 2 and 3 August 2020, when the child was spending time with the mother, that at approximately 9 am on each of those mornings some video material, presumably of an erotic or pornographic nature, was uploaded onto the web and then paying customers were able to access it.

5. He also points to evidence that customers or clients have messaged or emailed the mother at different times with a view to engaging in “chat” or perhaps some other online activity.  It is a little unclear.  The mother, in response to that, acknowledges that she has made erotic or pornographic videos but through the exigencies of this business it is best to upload new material daily if customers are to be attracted.  She says that on 2 and 3 August she had made the material, presumably videos, at an earlier point but was able to schedule automatically the uploading of that material.  I was told from the bar table by Ms Dowd that the mother  scheduled that on 30 July the parties were in a Legal Aid conference.

6. I do not know whether that is the case or not.  It seemed to me that that is nothing more than an assertion from the bar table and I am not going to take that into account.  The mother also says, correctly in my view, that there is no evidence that she was actually responding to clients when she received any approaches from them on 2 and 3 August and I think that is also correct.  In an interim hearing of this nature, where there is no cross-examination, where the father as the applicant has not sought any subpoena to internet service providers or the like to establish what is going on I am not satisfied I can draw any real conclusions from this material.

7. It seems to me that it is material that would require proper consideration.  It would require cross-examination at the very minimum and, as I say, probably the consideration of material produced on subpoena from internet service providers or the like.  The mother, in my view, has provided plausible explanations for her activity.  Whether or not her explanation is true is not something that I can determine today but the upshot of it is that I am not satisfied that she has done what is alleged and I am not satisfied that there is an unacceptable risk of harm to this child.  The mother in her affidavit has given an undertaking which is made more or less in terms of the existing order, that she undertakes:

   … not to (a) schedule posts or upload videos on my adult social media platforms at all times the child is spending time with me pursuant to these orders; [or] (b) expose the child to adult or explicit content at all times the child is spending time with me pursuant to these orders.

8. I note that undertaking and I am also told that the father has withheld the child since 4 August 2020, a period of two and a half weeks approximately.  I certainly consider that there should be some make-up time allowed in the circumstances and I would expect that to happen.  If this matter comes to trial and I find that there has not been make-up time I will draw inferences about the parenting capacity of the parent who I may find responsible for that.  I am going to dismiss the application in a case.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 10 September 2020