Stenning & Stenning
[2021] FamCA 561
•2 August 2021
FAMILY COURT OF AUSTRALIA
Stenning & Stenning [2021] FamCA 561
File number(s): ADC 5613 of 2020 Judgment of: BERMAN J Date of judgment: 2 August 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time with – Orders – Where orders were made by a Senior Registrar – Where the father sought a review but not in relation to any time spending order – Where there is no proper basis for the Court to further review or rehear the father’s application – Where the principles of res judicata and issue estoppel do not apply in parenting proceedings but the underlying principles do – Where any limits to interlocutory applications must be subservient to the best interests of the child.
FAMILY LAW – CHILDREN – With whom a child spends time with – Best interests of a child – Where the parties are in dispute as to the interim parenting arrangements for one of the children – Where the current orders provide for regular communication with any time spending subject to the child’s wishes – Where the father seeks regular time with the child – Where the mother opposes the application and seeks that any communication be subject to the child’s wishes – Where therapeutic intervention has been unsuccessful – Where the best interests of the child would not be served by any different order.
Cases cited: Malcher & Malcher(No.2) [2012] FamCA 1115
Marsden & Winch (2009) 42 Fam LR 1
Paris King Investments Pty Ltd & 1 ors v Michael Norman Rayhill & 2 ors [2006] NSWSC 578
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Number of paragraphs: 72 Date of hearing: 7 July 2021 Place: Adelaide Counsel for the Applicant: Mr McGinn Solicitor for the Applicant: Clelands Lawyers Adelaide Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Belperio Clark Counsel for the Independent Children's Lawyer: Mr Kent Solicitor for the Independent Children's Lawyer: Legal Services Commission ORDERS
ADC 5613 of 2020 BETWEEN: MR STENNING
Applicant
AND: MS STENNING
Respondent
AND: LEGAL SERVICES COMMISSION
Independent Children’s Lawyer
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
2 AUGUST 2021
THE COURT ORDERS:
1.That the Further Amended Application in a Case filed 6 July 2021 be dismissed.
2.That the Response to an Application in a Case filed 30 June 2021 be dismissed.
3.That paragraph 11(d) of orders made 8 February 2021 be amended by the addition of the following words “provided that the father will not approach D unless invited to do so”.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stenning & Stenning has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Stenning (“the father”) and Ms Stenning (“the mother”) are unable to reach agreement in respect of the interim parenting arrangements for B Stenning born in 2005 (“B”), C Stenning born in 2007 (“C”) and D Stenning born in 2009 (“D”).
The parties commenced their relationship in either April 2000 according to the father’s evidence or in October 1998 on the mother’s evidence.
The parties were married on 6 April 2008 and separated in either March or April of 2020.
At the time of separation B remained at boarding school and spent time with each parent subject to her wishes. C remained living with the father in the former matrimonial home situate near E Town. D remained living with the mother initially at F Town, then a rental property at E Town, eventually moving with the mother to live in Adelaide.
The children spent time with the parents on a regular basis up until September 2020.
C has spent only limited time with the mother since September 2020 whereas D has not seen her father other than as part of an attempt by the parties to reconcile their differences and those of the children in a family therapy process facilitated by Mr G.
Extensive orders were made on 2 July 2021 directed to the financial issues. Paragraphs 4 and 5 of the father’s Further Amended Application in a Case filed 6 July 2021 and paragraphs 2 and 3 of the mother’s Response to an Application in a Case filed 30 June 2021 were listed for hearing before me on 7 July 2021.
BACKGROUND
The interim parenting issues have been the subject of earlier hearings before Senior Registrar Heuer and her Honour Judge Kelly.
The procedural background is relevant to the determination of the current interim proceedings.
A summary of the interim parenting orders sought by the father in his Initiating Application, filed 19 November 2020, are as follows:
(1)That the parties have equal shared parental responsibility for the children.
(2)That B spend time with the mother and father in accordance with her wishes.
(3)That C live with the father and spend time with the mother in accordance with his wishes.
(4)That D live with the mother and spend time with the father each week from 12.00 pm on Sunday until the commencement of school on Monday (or 3.00 pm if a non-school day).
(5)That the mother do facilitate D communicating with the father by telephone, FaceTime or such other video mobile application as the parties may agree each Tuesday and Thursday between the hours of 5.00 pm and 6.00 pm.
In response, the mother sought interim orders summarised as follows:[1]
(1)That the mother facilitate telephone time between the father and D each Sunday at 6.30 pm with D to telephone the father on his mobile telephone number.
(2)That B and C spend time with the parties in accordance with their wishes noting that B and C have mobile phones and use those to communicate with the parties about their care arrangements and handovers.
(3)That the father be restrained and an injunction be granted restraining him from attending at or within 50 metres of:
(a)D’s school or any location which D is participating in extracurricular activities;
(b)The mother’s place of residence; and
(c)The mother’s workplace.
[1] See Response to Initiating Application filed 10 December 2020.
The parties are agreed that the parenting arrangements for B and C will be in accordance with their wishes.
As matters currently stand, whilst B currently spends time with the father she is likely to be more closely aligned to her mother whereas whilst C is a boarder at H School and is therefore physically distant from the father, it is likely that he is more closely aligned with the father. C spends regular time with the father whereas he spends little or no time with the mother.
Accordingly, the primary focus of the interim proceedings has been focused upon the extent to which, if any, D should spend time with the father.
On 14 December 2020, Senior Registrar Heuer made orders pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) requiring South Australian Police (“SAPOL”) and the Department for Child Protection (“DCP”) to provide the Court documents relating to any report or notification of child abuse allegations or allegations of family violence involving either of the parties and the three children.
The Senior Registrar also ordered the parties to attend an appointment with a family consultant pursuant to s 11F of the Act.
On 8 February 2021, with the benefit of the s 11F Child Inclusive Memorandum, the documents relied upon by each of the parties produced pursuant to s 69ZW and the extensive affidavit material relied upon by each of the parties, the Senior Registrar made orders until further order summarised as follows:
(1)That the parties and the children participate in family therapy.
(2)That the parties jointly instruct (at their equal expense) the family therapist to provide a written report as to the progress of the therapy and any recommendations arising from the therapy with such report to be released no later than 30 June 2021.
(3)That B spend time with each of the parties subject to her wishes.
(4)That C spend time with each of the parties subject to his wishes.
(5)That the parties do all things necessary to facilitate B’s ongoing attendance at the J School.
(6)That the parties do all things necessary to facilitate C’s attendance at H School as a boarder and to give effect to the order the father shall deliver C to H School on 13 February 2021.
(7)That D live with the mother.
(8)That the mother facilitate D spending time with the father, subject to her wishes.
(9)That the mother facilitate D communicating with the father each Tuesday and Thursday by telephone, FaceTime or such other video mobile application as the parties may agree between the hours of 5.00 pm and 6.00 pm with the mother to facilitate D telephoning the father on his mobile phone.
(10)That the parties do all acts and things necessary to facilitate D’s attendance at the K School in 2021.
(11)That the parties be at liberty to attend all school and extracurricular functions, activities and events which parents are normally invited to participate in or attend including but not limited to sports day, sporting events, concerts, school plays, quiz nights, fundraisers, class room visits, parent teacher interviews, excursions and camp and to extend to extracurricular activities regardless of the organising parent.
Senior Registrar Heuer’s orders provided for any application for review or stay to be filed by 10 February 2021 and that the application would be listed forthwith for consideration of the stay.
The Senior Registrar contemplated that the interim financial applications would be adjourned before a Judge, to be heard not before mid-late May 2021.
The father filed an Application for Review on 10 February 2021 seeking to review paragraphs 6 and 10 of the orders made by the Senior Registrar. Paragraph 6 concerned C’s continued attendance at H School as a boarder in circumstances where the father sought that C return to the L School and paragraph 10 of the orders provided for D to attend K School wherein the father sought that the mother return D to reside within 70 kilometres of the L School and that thereafter D be re-enrolled.
Neither party sought to review paragraph 8 of the orders which provided for D to spend time with the father subject to her wishes, paragraph 9 which required the mother to facilitate D communicating with the father each Tuesday and Thursday by telephone, FaceTime or such other video mobile application that the parties may agree and paragraph 11(d) which permitted both parties to attend all school and extracurricular functions, activities and events to which parents are normally invited to attend and or participate in.
THE THERAPEUTIC INTERVENTION
The therapeutic intervention was unsuccessful. The parties and the children were engaged in therapy from March to May 2021. The parties were charged $37,721.
The report of Mr G appears as an annexure to the affidavit of Ashley Kent, the Independent Children’s Lawyer (“ICL”), filed 2 July 2021.
Counsel for each of the parties agreed that little weight could attach to the opinions of Mr G but that it was open to the Court to consider any aspect of the report to which the Court may consider is likely to be factually correct and relevant.
Each of the parties would seek to place a different gloss on the report. For his part, the father identified a number of occasions when he and D were together during the therapeutic process where it appeared that D was comfortable and settled in the father’s presence.
The mother sought to highlight that the therapist’s concerns were at a level such that he considered he should make two notifications to the DCP arising out of alleged disclosures made by B.
The ICL has been comprehensive in obtaining a report from DCP dated 29 June 2021 which confirmed that there had been child protection notifications in respect of concerns arising from the conduct of each of the parties. The most recent notifications were received by DCP in May 2021 consequent upon the acknowledged report by Mr G.
It is conceded by each of the parties that there is no current or anticipated investigation either by DCP or SAPOL.
Notwithstanding the concerns of Mr G, there is no application seeking to restrain or limit the extent of the father’s interaction with either B or C. The mother concedes that both children continue a relationship with the father and it is anticipated that they will spend time with him during school holidays.
It is argued on behalf of the mother that the father has not demonstrated any material change in the circumstances which would justify the Court’s further consideration of the interim parenting arrangements.
Simply put, the parties have had the advantage of a comprehensive hearing before the Senior Registrar and a further opportunity for review before Judge Kelly and as such, there is no proper basis for the Court to further review or rehear the father’s application that D spend time with the father other than subject to her wishes.
The father’s counsel valiantly argued that what was intended by the Senior Registrar in making the order that the mother would facilitate D spending time with the father subject to her wishes was made in the expectation that D would want to see her father. The material change is therefore that because D has not seen the father other than as part of the therapeutic process, that constitutes a proper basis for the Court to further consider the father’s application.
The mother’s counsel emphasises that in the period leading up to 8 February 2021, the father had no reasonable expectation that D would elect to spend time with him. D had not seen the father for a number of months notwithstanding that there was an opportunity to do so.
The Senior Registrar had the assistance of the Child Inclusive Conference Memorandum dated 15 January 2021. The family consultant was impressed at D’s presentation as a “cheerful and friendly young person who was articulate when describing her experiences. She presented as wiser than her stated age”.[2]
[2] Child Inclusive Conference Memorandum dated 15 January 2021, paragraph 48.
D relayed several incidents regarding her father’s behaviour which she reported as having terrified her.
D was upset that the father would ring her and question her about her mother.
The following appears in the report:
52.D said on Father’s Day, her mother encouraged her to see her father, but it ended in disaster from her perspective. D said her father kept saying to her when they were on the couch “Do you think I’m an animal, do you think I’m a monster, you are staying I’m making you.” D said no to her father whilst slowly backing away because she thought he would hit her, but then was able to make a run for it. D said her father then chased her to the car whilst she was screaming for help and for her mother to lock the doors.
(Original emphasis)
The family consultant considered that “D’s affect was congruent with her narrative when recalling the above incidents”[3] and D’s wish that she not see the father was recorded.
[3] Ibid, paragraph 55.
It is apparent that the family consultant was concerned at some aspects of the father’s presentation. She considered that the children may be at “high risk of significant emotional, psychological, relational and physical harm”[4] and summarised the position as follows:
69.Therefore, given the serious nature of the allegations regarding [the father’s] vulnerable but seemingly dangerous mental health impacts on his parenting and his children, and that [the father’s] alcohol use led to a car crash and/or may have been a suicide attempt, the court and the children may likely benefit from interim arrangements for the children, whilst the risks of the potential lethality of himself and/or the children when in [the father’s] care, are further assessed.
[4] Ibid, paragraph 68.
It is difficult to find any support for the proposition of the father that in making the order that D would spend time with the father in accordance with her wishes, there was a basis to assume that D would willingly do so.
I do not consider that the therapeutic process undertaken by the parties provides the father with any assistance.
Whilst there is much to question as to the mechanics of the therapeutic process and in particular whether the Senior Registrar should have elevated the process designed to reconcile the parties differences to that of a family assessment, it certainly could not be said that the report did more than provide some further corroboration of the concerns expressed by the family consultant in the memorandum.
THE FURTHER APPLICATIONS OF THE PARTIES
The mother argues that the father’s Further Amended Application in a Case is a further attempt to have a differently constituted Court reconsider the earlier determination of the Senior Registrar and her Honour Judge Kelly.
Whilst the principle of res judicata and issue estoppel do not apply in the consideration of parenting proceedings, the underlying principle namely, that a party should not use a court’s procedure to bring applications that seek similar relief in a manner that brings into question the administration of justice applies.
In Malcher & Malcher(No.2) [2012] FamCA 1115 at [15], Ryan J stated that the Family Court is “not a court of unrelenting interlocutory applications.”
Brereton J in Paris King Investments Pty Ltd & 1 ors v Michael Norman Rayhill & 2 ors [2006] NSWSC 578 provided a consideration of appropriateness of proceedings that were similar in the relief sought:
14.In my opinion, as outlined in Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2005] NSWSC 1225, [16] – [17], acknowledging that it is impossible to stay a principle capable of universal application, nonetheless the general rule is that interlocutory relief is not to be reconsidered if all that is involved is a review on the same facts as prevailed when it was originally granted or declined or on facts which ought then reasonably have been in contemplation, but that if new facts have emerged which may affect the arguability of the case for final relief or the balance of convenience, then the grant of interlocutory relief may be reconsidered. If it were not so, it would be open to a defendant to make repeated applications for variation of an interlocutory injunction, requiring consideration of the matter de novo, for no stronger reason than dissatisfaction with the previous decision…
The consideration of the mischief arising from successive interim applications seeking to reconsider an earlier decision that is unsatisfactory to a party underpins the rationale of the decision of the Full Court in Rice & Asplund (1979) FLC 90-725 which highlights the detriment caused to the parties and a child of endless litigation which should not be embarked upon unless there is a material change in the circumstances that would justify a further consideration of parenting issues.
The rule is to limit or at least provide limited support for ongoing litigation.
In Marsden & Winch (2009) 42 Fam LR 1, the Full Court considered with approval the discussion by Warnick J in SPS & PLS (2008) FLC 93-363 in the following paragraphs:
[44]As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation”. In addition, as Nygh J said in In the Marriage of McEnearney (1980) FLC 90-866 at 75,499:
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm that would be inflicting not only upon each other but especially upon the child.
[45] Warnick J opined in SPS (above) that (at [58]):
[58]Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
I am mindful that however desirable that it may be to limit the level of interlocutory applications, those considerations must be subservient to what is in the child’s or children’s best interests.
I have carefully considered the recently filed affidavit material relied on by each of the parties.
Other than the failed family therapy, there has been little or no change to the circumstances of the parties other than if anything, they are less able to resolve their differences.
There is no support for the contention that D is in the thrall of her mother and is not able to exercise her own separate judgement in terms of her spending time with the father.
I am left in little doubt that for their own reasons, each of the parties are genuine in the stance that they take.
The mother considers that there is good reason why D does not want to see the father at this stage. Similarly the father has good reason for seeking that D spend some time with him.
I do not ignore that the level of dysfunction as is evident between the parties is less important than the unfortunate circumstance of D and C not being able to spend time together.
There is little advantage to each of the children by them remaining apart. To the extent that the father would seek to restore a sibling relationship between C and D, his application may have some merit. Such a consideration is not the complete answer. D was considered by the family consultant to have a level of maturity beyond her years.
Moreover, the family consultant considered that D’s reluctance to spend time with the father had some proper basis in terms of the father’s overt and at times frightening behaviour.
It appears that D may not yet consider that the father is able to compartmentalise issues relating to the breakdown of his relationship with the mother and the need to quarantine the children from the dispute.
CONCLUSION
I do not consider that there is any evidence which would support the orders that the father seeks in paragraph 4 of his Further Amended Application in a Case. It is a matter that has been dealt with comprehensively by the unchallenged orders of the Senior Registrar.
In the absence of any evidence that would establish that the interests of D would be served by a different interim order being made, I propose to dismiss the father’s application.
For her part, the mother seeks to discharge the order that requires her to facilitate D communicating with the father each Tuesday and Thursday. The mother seeks that the order be amended such that D be at liberty to communicate with the father by telephone at any reasonable time in accordance with her wishes.
The difficulty appears to be that D complains of the father not being able to speak to her without bringing to the conversation his views of the mother and what has happened to the family.
The father does not accept that the statements attributed to him are accurate and in any event are taken out of context.
An unfortunate practice has developed wherein D has started recording her conversations with the father. The dynamics of that conduct are distressing and unlikely to assist in the reconciliation of the family.
The father has engaged in his own ongoing therapeutic intervention. He has done so having regard to the recommendations of the family consultant and D’s therapist Ms M.
The report of Mr N, annexed to his affidavit filed 5 July 2021, is positive as to the father gaining insight in the management of his anxiety, worry and tension. Mr N considered that the father recognised the need to maintain a healthy relationship with his children and that he was able to work through the emotions he experienced arising from the breakdown of his relationship with the mother.
Given that the mother seeks to allow D to determine the extent to which she would wish to speak to the father, it is not unreasonable for there to be some understanding as to whether the orders sought by the mother would in reality mean a total cessation of D’s relationship with the father.
I do not consider that the circumstances that impact upon D are such that at this stage it could be in the child’s best interests to have no relationship whatsoever with her father and by necessary implication further separate her from the desirability of maintaining a relationship with her brother.
Similarly, I do not consider that there is any basis to alter the orders made by the Senior Registrar that both parties be entitled to attend upon the curricular and extracurricular activities of the children. That does not mean that they are able to behave badly, embarrass a child or children or partake in an incident that causes distress and anxiety.
I do not propose to interfere with the thrust of the orders made by the Senior Registrar but in order to provide some confidence to D that her father’s attendance will not result in a distressing incident, I propose that subject to D’s wishes, the father is restrained from approaching her unless invited to do so.
I make orders as appear at the commencement of these reasons.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 2 August 2021
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