Stenning & Stenning

Case [2021] FamCA 561

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

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AGLC
Stenning & Stenning [2021] FamCA 561
Case
[2021] FamCA 561
Decision Date

CaseChat Overview and Summary

In the matter of *Stenning & Stenning*, Berman J of the Family Court of Australia considered an application by the father, Mr Stenning, seeking to vary interim parenting arrangements for the parties' child, D. The mother, Ms Stenning, opposed the father's application and sought to amend existing orders regarding communication between D and the father. The dispute centred on the extent to which D should spend time with the father, with the mother advocating for arrangements subject to D's wishes, particularly in light of unsuccessful therapeutic interventions.

The court was required to determine whether the father's application for increased time with D should be granted, and whether the existing orders for communication between D and the father should be amended. A key consideration was the best interests of the child, D, in circumstances where D reportedly complained about the father discussing his views of the mother and the family breakdown during their conversations, leading D to record these interactions. The court also had to consider the principles of *res judicata* and issue estoppel, acknowledging that while these do not strictly apply in parenting proceedings, their underlying principles remain relevant, and that any limitations on interlocutory applications must be subservient to the child's best interests.

Berman J reasoned that the father's application for increased time with D lacked sufficient evidence to support a change from the existing orders, which had been comprehensively dealt with by a Senior Registrar. The court found that D's best interests would not be served by ceasing her relationship with her father, nor by altering the orders allowing both parents to attend the children's activities, provided they behaved appropriately. However, the court noted that D's complaints about the father's conduct during conversations indicated a need for the father to better compartmentalise issues arising from the relationship breakdown. The court acknowledged the father's engagement in therapeutic intervention and positive reports regarding his insight into managing his emotions.

Consequently, Berman J dismissed the father's further amended application. The court ordered that paragraph 11(d) of the existing orders be amended to include a provision that the father would not approach D unless invited to do so. The mother's response to the application was also dismissed.

Orders

Orders of the court

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).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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