Stinson and Stinson

[2011] FamCA 979

FAMILY COURT OF AUSTRALIA

STINSON & STINSON [2011] FamCA 979

FAMILY LAW - CHILDREN – interim orders – application by the mother seeking orders for an increase in her time with the children and that such time no longer be supervised – where the father alleges that the mother has physically abused the children – where there are allegations that the father did nothing to prevent such abuse from occurring – where agencies have found allegations of physical abuse substantiated – best interests – where the Court was not satisfied that it was appropriate to increase the mother’s time with the children in circumstances where such time is not supervised – orders that the mother’s time be increased but remain supervised.

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Stinson

RESPONDENT: Mr Stinson

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 635 of 2011

DATE DELIVERED: 13 December 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 13 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Rieniets
SOLICITOR FOR THE APPLICANT:	Denise Rieniets & Assoc

COUNSEL FOR THE RESPONDENT:	Mr Childs
SOLICITOR FOR THE RESPONDENT:	Nicholls Gervasi & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Bowler
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

1. Further consideration of the proceedings be adjourned to 3.15 pm on Tuesday 13 March 2012 before the Honourable Justice Burr.

2. The mother file and serve a Financial Statement on or before 4.00 pm on Friday 13 January 2012.

3. The father file and serve an amended Response and a Financial Statement on or before 4.00 pm on Friday 27 January 2012.

4. The parties attend a Conciliation Conference at this Court to be conducted at 11.00 am on Friday 30 March 2012 before Registrar Thomas.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. The children B (“B”) born … 2002 and C (“C”) born … 2005 spend time with the mother as follows:-

   (a)    from 10.00 am on Saturday until 6.00 pm on Sunday each alternate weekend, as commenced on 19 November 2011;

   (b)    up to and including Wednesday 25 January 2012, from 9.00 am on Tuesday until 5.00 pm on Wednesday each week;

   (c)    from 3.00 pm until 7.00 pm on 25 December 2011;

   (d)    as from and including Tuesday 31 January 2012, from the conclusion of school on Tuesday until the commencement of school on Wednesday each week

   UPON CONDITION that all such time spent by the mother with the said children is to be supervised at all times by either of the mother’s sister Ms D or the mother’s father Mr E.

2. Handovers which are not conducted at the children’s school are to be effected by the mother and either of the mother’s sister Ms D or the mother’s father Mr E collecting the said children from the father’s residence at the commencement of time and the father collecting the said children from the mother’s residence at the conclusion of time.

3. The mother is restrained and an injunction is hereby granted restraining the mother from using any form of physical discipline in relation to the said children and from permitting any other person to do so.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 635  of 2011

Ms Stinson

Applicant

And

Mr Stinson

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. The parties to these proceedings are the parents of two young children B (“B”) born in 2002 and who is hence 9 years of age and C (“C”) born in 2005 and who will therefore shortly be 7 years of age.

2. The dispute comes before the Court as a consequence of some serious allegations which have been made both against the mother and the father.  The serious allegations against the mother are as to physical abuse of the two children and the serious allegations as against the father are that he did nothing to prevent the wife’s abuse of the children even though he was in a position to do so whilst the parties were cohabiting.

3. On 5 September 2011 the parties reached a consensual arrangement recorded in orders made by me which has resulted in the present regime that the mother spends with the children each alternate weekend from 10.00 am on Saturday until 6.00 pm on Sunday.  That arrangement commenced on 19 November 2011, only less than 4 weeks ago.   The mother’s time with the children was to be supervised by her sister Ms D.

4. The matter came before me again on 28 November 2011 and those orders were continued save that the mother’s father Mr E was added as a supervisor of her time as well.

5. The mother’s application before the Court today is two fold in that she seeks some additional time with B and C and she also asks that all of her time spent with the children no longer be supervised.   Her application in that regard is supported by the Independent Children’s Lawyer who favours an additional period each week for the mother to spend time with the children in the order of something like from 9.00 am on the Tuesday until 5.00 pm on the Wednesday.  The Independent Children’s Lawyer no longer submits that supervision of the mother’s time is required.  The application of the mother in that regard, and as supported by the Independent Children’s Lawyer, is opposed by the father. 

6. In circumstances where parties are in dispute in a parenting matter the Court is obliged to have regard to the provisions of Part VII of the Family Law Act 1975 as amended. The section of particular relevance is Section 60CA which requires the Court, when deciding what parenting orders to make, to regard the best interests of the children as the paramount consideration. In doing so the Court is referred to the provisions of Section 60CC which is divided into two primary considerations and a raft of additional considerations. The two primary considerations loom large in their relevance to the determination of these proceedings on an interim basis, as they will likely on a final basis. The first of those considerations for this Court is:-

(a)    the benefit to the children of having a meaningful relationship with both of the children’s parents; 

1. At the present time the children live with their father and see their mother, as I earlier indicated, only every second weekend from 10.00 am on Saturday until 6.00 pm on Sunday.  Thus there is a long period of time during which the children do not see their mother.  The question for me is whether or not the children are able to sustain a meaningful relationship with their mother in the circumstances of the time presently spent by them with her.

2. The allegations made by the parties and the question of the interests of the children has resulted in a number of agencies committing a lot of resources to this family.  Those agencies include Child Protection Services (“CPS”) at the Women’s & Children’s Hospital, Families SA and this Court’s Family Consultants.

3. The Family Report dated 17 August 2011 was provided by a very experienced Family Consultant in Dr F.  It would be fair to say that she struggled to formulate any recommendations that should apply in the long term, given the conflicting presentation of the parties and the conflicting material provided by each of them.  However, she did feel confident in expressing a view as to what was appropriate in the short term and that appears in paragraph 96 of her report as follows:-

   However in the short term it is important that the children commence spending time with their mother and receive assistance in an age appropriate and consistent understanding about what is happening in their lives.  The children’s time with their mother is likely to need to be supervised prior to the allegation being tested in court, or at least while the mother is completing the parenting courses.  Her sister or father may be appropriate supervisors but this has not been explored at this stage.  The father expressed that he did not have problems with the children seeing the maternal family so it would appear that he does not have concerns about their ability to look after the children.

   Dr F went on to say:-

   Given there were no concerns during the observation period with the mother and the children it is likely that the children seeing the mother each weekend during the interim period would be appropriate.  ….

   Dr F then spoke of a graduated approach but in the end result promoted a recommendation as follows:- (paragraph 97):-

   … that in the interim period the children spend time with their mother for periods commencing at four hours each weekend for two weekends, increasing to full days for a period of six weeks prior to the introduction of overnight stays with a view to the children seeing their mother on each Saturday and Sunday.

4. It was certainly not the case in Dr F’s recommendations that she promoted anything in the interim beyond each Saturday and Sunday.  However, the present regime for the mother of course is every second Saturday and Sunday and thus the present orders represent on Dr F’s observation approximately only one-half of the time that she is of the view the children should spend with their mother.   Quite clearly she formed that view based on her sense that, for the children to be able to maintain a meaningful relationship with their mother, they needed to spend more time with her.   This is as against a background of the mother spending no time with them at all between about February and September of this year.

5. Thus if the only test was the issue of whether or not it was appropriate to take steps to maintain a meaningful relationship between the mother and the children, all of the matters which I have mentioned support that happening.  However, the second  of the primary considerations for this Court is:-

(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

1. This is a particularly pertinent and relevant issue in this matter as the allegations as against the mother are at the severe end of the scale to the point where Families SA made a finding against the mother that abuse was substantiated.  A summary of the various enquiries and Families SA’s view on the matter is contained in the Magellan Report letter directed to this Court dated 17 June 2011.  That is supported in the finer detail by the report of CPS at the Women’s & Children’s Hospital dated 19 April 2011 and the findings therein as against the mother are damning, as indeed they are as against the father.

2. In the summary and conclusions contained on page 12 of that report, it is stated:-

   [C] is a six year old boy who was referred to the CPS for a forensic assessment following concerns that she [sic] may have been physically abused by his mother, [Ms Stinson].  It was alleged that [Ms Stinson] had pulled [C] to the bathroom by his hair.   It was also alleged that [Ms Stinson] had hit [C’s] sister, [B], on the back.  During the preliminary session, [C] presented with signs of anxiety regarding engaging with the clinician, including being reticent to enter the room with the clinician and struggling to engage in conversation with the clinician when in the presence of [Mr Stinson].  Upon entering the interview room, [C] appeared to relax, however, at the end of the preliminary session when the clinician was meeting with [Mr Stinson], [C] wet his pants, despite three trips to the toilet in the preceding hour.  [C’s] presentation at the CPS was in contrast to [Ms Stinson’s] description of [C] as an outgoing and engaging child.

   Upon forensic interview, [C] disclosed being smacked by his mother on his bottom with a wooden spoon, that this had occurred ‘lots of times’, and that [Ms Stinson] had also pulled his hair and his ears.  He described sustaining red marks on this body from being hit with the wooden spoon.  He described [Ms Stinson] as ‘always’ screaming, and that she would swear when yelling.  [C] consistently described feeling scared of [Ms Stinson], scared when she was at home and that he was scared when he was hit by her.  [C] also disclosed witnessing [Ms Stinson] hitting [B] with a wooden spoon and [Ms Stinson] pulling [B’s] ears.  [C] did not, however, provide information consistent with the allegations in the Families SA intake that he had been dragged for a distance, by the hair, by [Ms Stinson].  It is noted that [C] also made several comments throughout the assessment that he did not have a mother, but he was unable or unwilling to explain his comments further. …

3. In the end result (on page 13) CPS recited a number of factors which supported, in their view, the credibility of C’s disclosure:-

   ·[C’s] disclosure of alleged physical abuse by [Ms Stinson] was spontaneous after discussion of the consequence of his mother being angry

   ·[C] provided some information in a narrative account, in particular he described being chased around the lounge room furniture by [Ms Stinson]

   ·[C] was able to provide contextual details such as where [Ms Stinson] kept the wooden spoon, the kinds of behaviours that would elicit physical punishment, the frequency of hitting etc

   ·[C] used age appropriate language and descriptions when detailing his account of the alleged abuse

   ·[C] provided information regarding his feelings that were congruent with emotions that would be expected of a child experiencing physical abuse.”

4. At page 14, the clinician makes this observation:-

   On the basis of the information gathered in the CPS assessment, it is the clinician’s opinion that when [C] described [Ms Stinson] smacking his bottom with a wooden spoon, pulling his ears and hair he was describing events that she [sic] had actually witnessed and experienced.

1. Thus, the Court needs to be particularly cautious in increasing the amount of time that the mother spends with the children given the findings as against the mother by CPS.   

2. It is the father’s case that the findings of CPS are not at the extreme end of the physical discipline suffered by the children at the mother’s hands.  It is his case that during the trial of the proceedings he may well be able to establish that the mother’s conduct was indeed more severe than that identified by CPS.   Thus I need to be particularly cognisant of this second primary consideration when making any orders today.

3. This matter should not pass though without observing the significant criticisms of the father that where also made by CPS in the course of their report and I  quote, from page 14:-

   A number of significant concerns have emerged during the course of this assessment.   [Mr Stinson’s] account of having witnessed repeated episodes of serious physical abuse perpetrated by [Ms Stinson], towards the children over the course of three year period, raises concerns that [Mr Stinson] did not act protectively towards his children by remaining in a relationship with [Ms Stinson] and not reporting what he had witnessed at the time of the assaults. …

4. It was effectively the view of CPS that both parents had been abusive towards their children in the sense that the mother was the perpetrator but the father was acquiescent in allowing those assaults to continue.

5. I am satisfied that the children are safe presently in the environment they experience in their father’s care.  Whilst he was at fault in failing to come to the aid of his children when they desperately needed him, there has been no suggestion that he is the perpetrator of physical abuse upon the children.  Thus in his care they are safe from any physical abuse. The question arises as to whether or not the children would be safe in the care of the mother.

6. There have been no present reports by the father that the children have indicated to him that they have been abused by the mother whilst in her care pursuant to the current orders.  However, I note that the mother’s time has been supervised and that thus may be a reason why the mother’s conduct in that regard has not been a subject of criticism. 

7. However, Dr F was clearly of the view that the children were desperately missing their mother and were desperately keen to spend more time with their mother.   It was Dr F’s view that the children would benefit from increased time with their mother but of concern for me is the period of time that supervision might be appropriate.  At paragraph 98 of her report, Dr F says that the mother’s time with the children should be supervised by a family member at least until the mother has completed the series of parenting courses she has enrolled in.  She is not saying that once the parenting courses have been concluded that supervision should end as I note her recommendation is contained by the words “at least”.

8. The Independent Children’s Lawyer has made reference to a number of paragraphs in the Family Report which support the position adopted by the Independent Children’s Lawyer as to the increased period of time that the mother should spend with the children.  That position of the Independent Children’s Lawyer is supported in a number of respects by consideration of the additional considerations which appear in Section 60CC(3) and in particular, I note:-

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

1. Also relevant is:-

(b)the nature of the relationship of the child with:

(i)     each of the child's parents; and

(ii)    other persons (including any grandparent or other relative of the child);

1. In short, I am not satisfied that it is appropriate to increase the period of time that the mother spends with the children as promoted by the Independent Children’s Lawyer or as sought by the mother in circumstances where that time is not supervised.  I note that annexed to the mother’s Affidavit filed on 28 November 2011 are a number of documents indicating the courses that she has undertaken and which, at face value, suggest that she has completed the conditions imposed by Dr F on her having only supervised time.  Annexed to that Affidavit of the mother is a Certificate of Attendance by the mother at an H Centre course entitled “Talk so your kids will listen and listen so they will talk”, a I Centre course over 5 weeks entitled “Focus on Kids”and a letter from G Centre Inc dated 17 November 2011 detailing a 12 week parenting course which I assume the mother is still undertaking at that Centre given that she commenced in September 2011.  It must though be nearing its completion.  She was also presented with some relevant reading materials.

2. Thus I am satisfied that the mother has undertaken a number of relevant and appropriate courses that will better equip her to care for her children in circumstances where her patience will not be tested and she will not respond as she did in the past.   I note though that the I Centre course did not include assessments in behavioural and attitudinal change. 

3. Thus, erring on the side of caution as indeed the father has urged me to do and which I deem to be my responsibility, it is my intention to increase the mother’s time with the children as recommended by the Independent Children’s Lawyer but that supervision continue for a period of time yet with the view ultimately for that supervision to be lifted in the event that the children respond well to the additional time spent with the mother and it proves to be in their best interests to do so.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr delivered on 13 December 2011.

Associate: 

Date:  13 December 2011