Stenner and Stenner (No 3)

[2016] FamCA 369

FAMILY COURT OF AUSTRALIA

STENNER & STENNER (NO 3) [2016] FamCA 369

FAMILY LAW – CHILDREN – interim orders – where the mother seeks orders in relation to the two children including for a change in living arrangements and a mental health care plan – where the father opposes the orders sought – where it is ordered that one child not attend at the handover of the other child – where the remainder of the orders sought are dismissed – where the question of costs is reserved to the trial judge. 

APPLICANT: Ms Stenner

RESPONDENT: Mr Stenner

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Noarlunga

FILE NUMBER: ADC 4389 of 2014

DATE DELIVERED: 17 May 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Gilbert & Partners

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Andersons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Childs

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Tydeman

Legal Services Commission Noarlunga

Orders

1. Paragraphs 1, 2, 3, 5, 6, 7, and 8 of the mother’s Application in a Case filed on 12 April 2016 are dismissed.

2. Until further order the father ensure that the child F not participate in or take any role at the handover of the child H between the parents.

3. The question of costs of and incidental to this application is adjourned to the trial Judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stenner & Stenner (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4389 of 2014

Ms Stenner

Applicant

And

Mr Stenner

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today the Application in a Case filed by the mother on 12 April 2016 in which she seeks the nine orders set out therein.  That is opposed by the father who seeks the dismissal of the application and costs on an indemnity basis. 

2. My reasons have to be seen in the light of the ongoing litigation between these parties concerning the children and financial matters.  The child that is the subject of this application is the child, H, who was born in 2008 and is therefore aged seven.  There is an older child, F, who is now aged 13.  Orders previously provided for the children to live with the father and spend alternate weekends with the mother.

3. F no longer attends time with the mother.  The Court has before it evidence indicating difficulties in the relationship between F and the mother.  Until the final hearing is heard and all the evidence tested the Court is not in a position to determine the basis upon which there has been a significant breakdown in the relationship between F and his mother. 

4. The previous orders made on an interim basis were made following orders for family reports and various other information.  In particular, I am referred today to the family report that was received in July 2015 when it was ordered by the judge in the Federal Circuit Court.

5. The report of Ms K, the family consultant, is a detailed report.  Of significance for this morning’s hearing is in paragraph 17 Ms K expresses the following:

   It is the writer’s view that the nature of the parties’ post-separation relationship, which is characterised by heightened conflict and distrust and an absence of effective communication, is unlikely to improve whilst the parties remain in bitter dispute about financial and property matters.

6. The evidence on the Court file since the report was prepared in July 2015 clearly indicates that the ongoing difficulty in the parties’ post-separation relationship continues to be heightened conflict and distrust and an absence of effective communication.  What is of considerable concern is the impact upon the children of that ongoing inability of the parents to carry out their duties as parents and to protect their children from emotional and psychological harm.  These will be significant issues to be dealt with if necessary in a final trial. 

7. The issue before me today is whether it is in the best interests of H, by way of interim order, for her living arrangements to change.  The mother bases that upon her concern about the influence of the father on F, upon H’s ongoing relationship with the mother and upon H’s general wellbeing.  There is considerable dispute about the matters raised in the affidavit material by the mother and disputed in the affidavit material of the father. 

8. The father’s affidavit clearly indicates, however, that there remains an ongoing high level of distrust and inability to communicate appropriately and clearly involves some over-involvement of the child, F, in the breakdown of the relationship between the father and the mother and the arrangements that are made in relation to his young sister, H.

9. I accept the concerns of the Independent Children’s Lawyer where it appears that F has been given some form of responsibility in relation to his sister and that such responsibility being placed on a 13-year-old child is not appropriate.  These matters will need to be determined when the matter comes before the Court for final trial if the parties continue to be unable to make a reasonable decision as to what is in the best interests of their own children.  I am not satisfied on the evidence before me that there is sufficient basis upon which to change the arrangements for the child, H, to the extent that the mother seeks that she live with the mother.

10. The material raises concern about the emotional wellbeing of both children but at this time I am not convinced that it is in H’s best interests for there to be a change in arrangements where she lives with the father and her brother F. 

11. The Court therefore dismisses paragraphs 1 and 2 of the mother’s Application in a Case. 

12. The mother also seeks an order that there be a mental health care plan to enable the child to attend at counselling.  Notwithstanding that Dr L was involved in reunification therapy, he has prepared reports at the sole request of the father, which are annexed to the father’s affidavit, which, at this stage, do not support H attending upon such form of counselling.

13. I am also concerned about H’s wellbeing and the interruption such counselling may have on her other day-to-day activities.  Therefore, at this stage I am not convinced that it is in H’s best interests for paragraph 3 order to be made. 

14. As to paragraph 4:

    That the child, F, not attend at handover.

15. The affidavit material filed by the father and the mother indicate that F has been given considerable responsibility in relation to matters which are inappropriate for a 13-year-old child.  In particular this relates to his role in attending to the handovers, which do not take place at school.  I do not consider it to be in H’s best interests, nor in F’s best interests, for F to undertake this role, particularly bearing in mind the difficult relationship which now appears to have continued in relation to F interacting with his mother.

16. I therefore propose to order that, until further order the father ensure that F not participate in or take any role in relation to the handover of the child, H, between the parents. 

17. The father has a responsibility in accordance with the law to ensure that he encourages H to attend and take all steps necessary to ensure that H attends upon the contact time with the mother.  He would be aware, no doubt, from proper legal advice there would be serious consequences if he is unable to carry out that responsibility and duty to ensure that H can continue to have an appropriate relationship with the mother.

18. The order that is sought by the mother in paragraph 6 is that the father undertake a Kids-Are-First course programme.  It was indicated by counsel that the mother would be willing to have this as a shared order that both parties attend a Kids-Are-First programme.  I would recommend that the both of them seriously consider attending a Kids-Are-First course programme but am not going to order the same.  The willing participation of an adult in such a course is a significant factor and simply having the parties attend because they are ordered does not necessarily give them the benefit that they would have if they attend willingly.

19. When the matter comes on for trial it will be an issue for the Court to determine whether their failure to take up the recommendation was for an appropriate reason or whether they have attended and obtained some benefit for the children by attending. 

20. In relation to the random urine alcohol testing and the consumption of alcohol when the children are present, I am not satisfied at this stage that the evidence before the Court justifies the orders being made in relation to the father’s urine alcohol testing or that he be restrained from consuming alcohol while the children are present.

21. At times Courts have made orders by way of injunction which restrain a person from consuming alcohol to excess while the children are present.  The definition of what is “to excess” is, however, a difficulty.  I believe that this would only run the risk of there being further litigation between the parties as to what the definition of excess was.  Based on the information that is currently before the Court, I am not satisfied that those orders are just and equitable or in the children’s best interests at this stage. 

22. As to the question of indemnity costs, the Application in a Case has not been wholly unsuccessful because I have made orders in relation to the child, F.  I would not, at this stage, consider that it would be appropriate to make any order for costs.  I therefore leave the question of the costs to be determined by the trial judge.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 May 2016.

Associate: 

Date:  19 May 2016