Stokerton & Stokerton
[2023] FedCFamC1F 607
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stokerton & Stokerton [2023] FedCFamC1F 607
File number(s): MLC 1922 of 2020 Judgment of: GILL J Date of judgment: 26 July 2023 Catchwords: FAMILY LAW – PARENTING – Where there is alleged physical and emotional abuse by both parents – Where the mother failed to comply with directions to file trial material or appear at trial – Where the proceedings conducted on an undefended basis in respect of the mother – Where the children have been living in the care of an older sibling – Orders made with the consent of the father, the ICL and the older sibling – Orders made for children to live with older sibling – Orders made to give older sibling sole parental responsibility. Legislation: Family Law Act 1975 - ss 60B, 60CA, 60CC and 65DAA Cases cited: Jollie & Dysart [2014] FamCAFC 149 at [45].
Phillips & Hansford(No 2) (2019) 60 Fam LR 160 at [43].
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 17 July 2023 Place: Melbourne Counsel for the Applicant: Mr Crofts Solicitor for the Applicant: Hope Earle Lawyers Solicitor for the First Respondent: Litigant in Person (did not participate) Counsel for the Second Respondent: Mr Dunlop Solicitor for the Second Respondent: AFL Kordos Lawyers Counsel for the Independent Children's Lawyer: Ms McCreedie Solicitor for the Independent Children's Lawyer: KS Family Lawyers ORDERS
MLC 1922 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STOKERTON
Applicant
AND: MS C STOKERTON
First Respondent
MS D STOKERTON
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
GILL J
DATE OF ORDER:
26 July 2023
THE COURT ORDERS THAT:
1.I direct that the parenting proceedings be conducted on an undefended basis in respect of the mother.
2.I direct that the parenting proceedings be split and determined in advance of the property proceedings.
IT IS FURTHER ORDERED:
3.That all previous parenting Orders be discharged.
4.That the Second Respondent Ms D Stokerton have sole parental responsibility for the children, namely:
(a)X, born 2008;
(b)Y, born 2011; and
(c)Z, born 2014.
(together “the children”).
5.That the children live with Ms D Stokerton.
6.That the children spend time with and communicate with the father as agreed between Ms D Stokerton and the father in writing having taken into account the views of each of the children.
7.That the father be at liberty to send one card to Z on the following occasions:
(a)Her birthday;
(b)Easter; and
(c)Christmas.
8.That the children spend no time with the mother.
9.That pursuant to s 68B of the Family LawAct 1975 (Cth) the mother be restrained by injunction from:
(a)Attending the children’s school and extra-curricular activities;
(b)Contacting the children’s school and any extra-curricular service provider;
(c)Attending any residence at which the children reside;
(d)Attending any workplace at which the children work;
(e)Attempting to follow, locate or communicate with the children via social media.
10.That EXCEPT in the circumstances if any child or children are spending time or communicating with the father in accordance with Order 4 hereof, pursuant to s 68B of the Family LawAct 1975 (Cth) the father be restrained by injunction from:
(a)Attending the children’s school and extra-curricular activities;
(b)Contacting the children’s school and any extra-curricular service provider;
(c)Attending any residence at which the children reside;
(d)Attending any workplace at which the children work;
(e)Attempting to follow, locate or communicate with the children via social media.
11.That pursuant to s 11 of the Australian PassportsAct 2005 (Cth):
(a)Ms D Stokerton be entitled to apply for Australian Passports and travel – related documents for each of the children without the requirement for the mother and/or father’s consent and knowledge; and
(b)It is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew, if possible, Australian Passports and travel‑related documents for each of the children upon application of Ms D Stokerton alone.
12.That Ms D Stokerton have leave and be permitted pursuant to s 65Y of the Family Law Act 1975 (Cth) to cause, permit or travel with the children or any of them outside of the Commonwealth of Australia.
13.That Ms D Stokerton be permitted to provide a sealed copy of these Orders to:
(a)The Principal and staff of any school at which the children attend;
(b)Any medical health practitioner or allied health professional treating or involved with any of the children; and
(c)The Department of Foreign Affairs and Trade (Australian Passports Office).
14.That the Independent Children’s Lawyer be and is hereby discharged.
15.That all extant parenting applications concerning the children be and are hereby dismissed.
IT IS NOTED THAT:
A.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders
B.Any party may apply in respect of costs of the parenting proceedings within 28 days of today’s date with any response to be made within a further 14 days with such application be dealt with on the papers subject to there being an application that the matter be dealt with as an in court resolution.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
INTRODUCTION
The parents in the proceedings are the applicant father, Mr Stokerton, aged 55, and the respondent mother, Ms C Stokerton, aged 52. The second respondent, Ms D Stokerton, aged 21, is one of the eight children of the parents.
The parents married in 1994 and separated in September 2018.
The children of the marriage of the parents are:
(1)Ms B, 1996, presently aged 26;
(2)Ms E, 1999, presently aged 24;
(3)Ms D Stokerton, 2001, presently aged 21;
(4)Ms F, 2003 presently aged 19;
(5)Ms G, 2005, presently aged 18;
collectively: “the older siblings”
(6)X, born 2008, presently aged 15;
(7)Y, born 2011, presently aged 12; and
(8)Z, born 2014, presently aged 9.
The proceedings concern the parenting arrangements for the only children of the relationship who have not yet turned eighteen, X, Y and Z (“the children”). Since November 2021, and currently pursuant to interim orders, they live under the care of Ms D Stokerton at an address that has not been disclosed to the parents. None of the children are spending time with the parents, nor have they spent any significant time with the parents since November 2021.
This arrangement comes against a backdrop of interventions by the State welfare agency, allegations of abuse of the children and the now adult children by both the mother and father, the father being convicted of criminal charges related to sexual offending, and a resistance on the part of the parents to the children engaging in mainstream schooling.
The proceedings occur in a context where the Independent Children's Lawyer (“the ICL”), the father and Ms D Stokerton were in agreement as to the appropriate parenting orders, agreeing that Ms D Stokerton should hold sole parental responsibility for the children, that the children should live with her, and that they should only spend time with the parents in accordance with their wishes and subject to Ms D Stokerton’s agreement.
They further occur in a context where the mother failed to file material for, or appear at the trial of the parenting proceedings, arriving after final orders had been pronounced.
THE LISTING OF THE MATTER FOR TRIAL
As noted above, the proceedings occur in a context of the mother’s failure to comply with directions to file trial material.
On 2 June 2022 Justice Williams made trial direction listing the proceedings for trial to commence on 6 February 2023. Filing directions were given. The mother appeared on that occasion.
Further orders and directions were given by a senior judicial registrar. The mother appeared on that occasion.
On 15 December 2022 Justice Williams vacated the trial date of 6 February 2023 and listed the proceedings for trial to commence on 17 July 2023. An order was made applying s 102NA of the Family Law Act 1975 (“the Act”) to cross-examination in the proceedings. The orders provided for an updated report from Dr H and the previous directions to prepare the matter for trial were confirmed.
The father and Ms D Stokerton filed trial affidavits either in, or largely in compliance with directions. They were given leave to file further material on the making of further procedural directions on 10 July 2023. The mother did not appear on that occasion.
At that stage the father, Ms D Stokerton and the ICL flagged the potential splitting of the proceedings to allow the parenting aspects to be dealt with separately and prior to the property dispute between the parents. This issue was deferred until the commencement of the trial.
The mother filed no material in preparation of the matter for trial, failing to file either affidavit material or an amended response as required by the orders of June 2022. The mother has filed no material in the proceedings since April 2022.
The parenting proceedings were ultimately heard and disposed of prior to hearing the property proceedings. They were determined on an undefended basis with respect to the mother. After final orders had been pronounced in the terms set out above, with reasons reserved, the mother attended the trial. Accordingly she did not participate in the trial of the parenting proceedings. Although she then sought to be heard in relation to the parenting proceedings and their adjournment, such was at a point after final orders had been made. It may be noted that the mother advanced no explanation for her failure to attend court, and no cogent explanation for her failure to prepare for the proceedings.
MATERIAL RELIED UPON
The following material was before the court:
(1)The father’s affidavit of 14 June 2023;
(2)Ms D Stokerton’s affidavit of 26 June 2023;
(3)The reports of Dr H of 6 September 2022 and 10 July 2023;
(4)The report of Dr J of 23 July 2023;
(5)Exhibit CL 1, being annexure DS1 - correspondence in relation to the Children’s Court proceedings authored by Ms D Stokerton and her sisters;
(6)Exhibit CL 2 being annexure DS2, an email from X of 30 October 2021;
(7)Exhibit CL 3 being a s 69ZW report of 14 December 2021;
(8)Exhibit ICL 1 being a s 69ZW report of 24 March 2021.
SIGNIFICANT HISTORY
During the relationship the children were raised in the context of the family’s involvement in a religious group. As a consequence of the manner of the parents’ involvement, the children were homeschooled and isolated, and were also subjected to severe, unreasonable and oppressive discipline that was abusive in nature, both emotionally and physically. Ms D Stokerton likens it to being involved in a cult.
Ms D Stokerton recounts a history of physical and emotional abuse from both parents. Under explanation as discipline each of the parents struck the children with a cane or rod. In particular Ms D Stokerton describes X being struck to the head with a cane on multiple occasions, and Ms F across the body on multiple occasions. Ms D Stokerton describes prolonged beatings and haranguing.
In 2014 a report was made to Child Protection regarding the father’s “confession about some offending.”[1] In 2015 the father was convicted and jailed for a period of several months, having been found guilty of multiple counts of indecent acts. These indecent acts occurred while the father was employed as a carer for the victims.
[1] Affidavit of the father filed 14 June 202, paragraph 11.
The Department of Health and Human Services (“DHHS”) commenced a protection application regarding the children, and the children remained in the care of the mother.
The father was released in 2016 and returned to the family home.
In September 2018 the parents finally separated.
In December 2018 the children were removed from the former matrimonial home by DHHS and commenced living with Mr and Ms K. Mr and Ms K had been heavily involved in the homeschooling of the children in the past, and offered the children a place in their home. It may be observed that the children’s wellbeing was enhanced following their move into the care of Mr and Ms K. This occurred in a context of alleged abuse of the children by the mother including, but not limited to physical abuse. The children continued to spend time with the father.
The father commenced proceedings in the family law jurisdiction on 20 February 2020.
In July 2020 the children returned to the care of the father, although Mr and Ms K remained heavily involved in, and relied upon by the father for the care and education of the children.
Ms D Stokerton recounts that through 2020 the children complained to her about both neglect at the hands of the father, and abuse at the hands of Mr and Ms K’s children.
In 2020 Ms D Stokerton, Ms B and Ms E wrote to the Children’s Court regarding the risks posed by the mother to the children. Ms D Stokerton explains that this letter was directed to the prospect that the children may be placed with the mother. She did not deal with the father’s shortcomings. The letter described ongoing, persistent emotional abuse, and the cultivation of an environment that isolated the children from outside contacts, leaving them particularly vulnerable to abuse. She described that:
The level of anxiety and terror at home became so intense that I was an emotional wreck, could no longer eat or sleep, and despaired of any way of ending the trauma other than suicide.
In 2020 the Children’s Court proceedings were resolved by agreement.
Ms D Stokerton made a complaint to the welfare authority in 2021, and observed the children’s descriptions of their treatment to be worsening.
On 28 September 2021 the senior judicial registrar made orders for the father to have sole parental responsibility, for the children to live with the father, for Z to spend supervised time with the mother for two hours each week, and that the children be enrolled in mainstream school. The children were not so enrolled by the father.
Ms D Stokerton made a further complaint to the welfare authority in 2021.
Ms D Stokerton described during 2021 that she observed the father failing to clothe or feed the children properly whilst in his care. When she raised such with him, she described that he became angry. The children also complained that in the care of Mr and Ms K they were subject to abuse from Mr and Ms K’s children. Despite their complaints to the father, the father continued to send them to spend substantial time with the Mr and Ms K, who remained involved in their education.
In late 2021 an incident occurred at the home of the father. Ms D Stokerton attended the home where the children were then living. On her attendance it was apparent that the children were in significant distress and conflict with the father. The father, increasing the distress of the children, sought to exclude Ms D Stokerton from the home. Ms D Stokerton threatened to call the police and was then allowed in. The children shortly after left to live with Ms D Stokerton and have remained there since.
Following entering into Ms D Stokerton’s care the children commenced attending mainstream schools.
On 17 November 2021 Justice Riethmuller made orders joining Ms D Stokerton as a party to the proceedings.
Although Z had some supervised contact with the mother whilst in the care of Ms D Stokerton, Ms D Stokerton describes that Z repeatedly asked for it to stop.
On 9 February 2022 the senior judicial registrar made interim orders that Ms D Stokeron have sole parental responsibility for the children Ms G (who is now eighteen years old), X, Y and Z and that the children live with her. No orders were made for the children to spend time with either of their parents, and so although prior to that Z was having supervised time with the mother no contact has occurred between Z and the mother since February 2022.
Ms D Stokerton describes that the children have expressed to her adamantly that they do not want to have contact with the parents. She has observed Y and Z to hide in the car when passing through the town where the father and Mr and Ms K live, leading her to generally avoid driving through there.
Ms D Stokerton, Ms E and Ms B have committed to supporting the children. They are attending mainstream schools.
THE FAMILY REPORT
Two family reports were prepared by Dr H. It is the second of those that deals with the current circumstances of the children and is relevant to the resolution of the parenting case.
The evaluation noted that there “were innumerable allegations about the conduct of the parents, namely that they had been stern, overbearing, draconian and physically abusive.”
Ms F, Ms E, Ms G and Ms D Stokerton described an oppressive, emotionally and physically abusive household when with the parents. They described being isolated, and that the younger children were being isolated from the older children. The older children received, whilst the children were living with the father, increasing reports by email of ongoing difficulties and mistreatment, culminating in the children leaving the home to live with Ms D Stokerton. Ms D Stokerton described that the children, in the time leading up to this change, were subject to abuse in Mr and Ms K’s household (the father repeatedly returning them to that household), were isolated, and were not fed adequately by the father.
In contrast Ms G described living with her sister as being emancipated.
The assessment of the father built on the previous report. Dr H noted that concerns about the father’s “domineering, strict, uncompromising methods” and the need to transition the children into mainstream schooling were previously identified, but the father had squandered the opportunity to effect change. The father had, rather, approached the issues in a patriarchal manner, attempting to exercise control over the children and to exclude the older siblings. Dr H considered that the father had continued to employ a “dictatorial parenting style” and failed to “recognise the children’s maturity, growing independence and individual needs.” Life with the father was identified as oppressive for the children.
In addition, Dr H identified issues in relation to the father’s mental health, including suffering a mental health episode in 2022 that required hospitalisation. He appeared “low, hopeless and morose” at the assessment and appeared to be having “a major depressive episode.”
Dr H assessed the observation session of the children with the father as “uncomfortable and stressful for the children, with a discernible lack of warmth, trust or goodwill.”
Noting the father’s convictions for sex offending, Dr H also noted a report prepared earlier in the proceedings by Dr J that suggested that the father was at low risk of offending against his children.
The assessment of the mother by Dr H is particularly troubling. Having interviewed the mother and observed her attempt to interact with the children during the observation, he described her as being “wholly lacking in insight.” He considered that the mother presented as “disturbed” and “utterly devoid of emotional attunement.” He noted that the children did not reciprocate the mother’s approaches to them.
He observed (from the descriptions given) that the mother had “maltreated these children terribly” and that she showed “little understanding of their needs, personalities and individuality.” The mother was unable to connect with the children during the assessment, her attempt being bizarre and awkward. The impression he had was of the discomfort of the children. He considered that “there is a sound clinical argument that it would be psychologically deleterious for the children to come into contact with her.”
X, aged fifteen, described an “oppressive, patriarchal environment” when living with the father, describing control on the part of the father and a cutting off from his siblings. He described his parents as having been controlling, domineering, punitive and insensitive. He was positive about living in his sister’s care.
Y, aged eleven also described thriving living with Ms D Stokerton, and loving school. He expressed no desire to return to live with the father or the mother.
Z, aged nine, wanted to remain living with Ms D Stokerton, and did not miss the parents.
Dr H assessed that Y, X, Z and Ms G, who is now eighteen, are flourishing in the care of Ms D Stokerton, who has demonstrated herself to be a “considered and competent care figure” and a “mature, circumspect and devoted elder sister.” He further considered that the children wish to remain with Ms D Stokerton, and that their views as to this aspect are considered. He recommended that significant weight be placed upon these views, in the context of the children's adverse experiences with their parents, and their description of a “cult-like existence” that appeared to be consistent with the presentation of the parents.
In particular the expert recommended that the children remain at mainstream school, which he assessed as already having been “enormously healthy for their psychological development and socialisation.”
Dr H recommended that the children remain in the care of Ms D Stokerton, and that Ms D Stokerton hold responsibility for decision making for the children.
This left a difficult issue as to whether there should be provision for the children to spend time with each parent. He considered that, in relation to the mother, there were factors pulling in different directions. He identified a potential benefit for the children in the longer term to have opportunity to engage with their parents. Against this he considered that the mother would be unlikely to contain herself and so the benefit may be outweighed by the psychological and emotional cost.
On balance he considered that the children should be able to elect to reach out to their parents and to spend time with the father, and suggested that Y and Z be compelled to spend time with the father.
PRINCIPLES
The focus and the paramount consideration in determining what order should be made for the children is, pursuant to s 60CA of the Act, the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles give a legislative background for the examination of the considerations contained at s 60CC of the Act in determining best interests. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be thought that in any individual case the objects and principles may point in different directions and find different emphasis, depending on the circumstances of the particular child. It might also be observed that the objects and principles contain a degree of circularity, themselves being conditioned on the notion of the best interests of the child. Of particular relevance here is that the first of the Objects, that pertains to a maximal meaningful involvement with parents, is conditioned by the qualifier that such only be as consistent with a child’s best interests. It is not an objective to be pursued at the cost of the best interests of a child.
Against this background, in determining a child’s best interests, the Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings,”[2] and are “relevant to the particular circumstances of the child.”[3]
[2] Phillips & Hansford(No 2) (2019) 60 Fam LR 160 at [43].
[3] Jollie & Dysart [2014] FamCAFC 149 at [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes and, by virtue of s 60CC(3)(m) may include any “fact or circumstance” relevant to the wellbeing of a child. It is the synthesis of the considerations that determines best interest.
The considerations have themselves been divided into primary and additional considerations.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence.
The primary considerations are to be considered as a part of the whole suite of considerations contained at s 60CC. Often there is overlap, between the considerations, and often many of the additional considerations are effectively subsumed into the primary considerations. For example, s 60CC(3)(f)’s reference to the capacity to provide for the needs of the child necessarily forms a part of the consideration of the benefits of meaningful relationship at s 60CC(2)(a).
DISCUSSION
The oppressive, abusive nature of the parenting of the mother and father is inconsistent with the best interests of the children. Whether construed as deficient parenting capacity, or risk of abuse or neglect, the manner of parenting engaged in by the mother and father leaves no room for the children to either live with a parent, or to spend significant time with a parent. Those same deficits point conclusively against either parent exercising parental responsibility for any of the children.
In contrast, Ms D Stokerton has displayed both a commitment to, and capacity for promoting the best interests of the children, and in exercising parental responsibility. For example, her enrolment of the children in mainstream school has been demonstrably to their benefit, and they appear to be thriving in her care. She has demonstrated capacity to exercise parental responsibility in a manner that accords with the children’s best interests.
Further, the children living with Ms D Stokerton corresponds with their views as to their living arrangements, views that appear to be well founded.
The orders agreed to by Ms D Stokerton, the ICL and the father, in the absence of participation by the mother, appropriately provide that Ms D Stokerton will exercise sole parental responsibility and that the children will live with her.
The proposed orders do not provide for the children to spend time with the mother, and restrain her from coming into contact with them. Such an arrangement is also in the children’s best interests. The background of abuse and poor parenting, particularly when coupled with the lack of insight, attunement, and inability on the part of the mother to contain herself, mean that there is no prospect for the children to spend time with her in an emotionally safe manner.
The proposed orders only permit the children to come into contact with the father both in accord with their views and if agreed to by Ms D Stokerton. This is appropriate, leaving the door open for possible contact with the father should such be beneficial to the children. Given the response of the children to even travelling through the town that the father lives in, the restrictions and the injunctive protections are appropriate to give the children an adequate sense of security and shielding from the father.
This regime provides the best arrangement for the children’s wellbeing, given the risk of harm, and deficient parenting capacity to which they are exposed when in the care of the parents. Such a result accords with the views of the children which, in the context of their background should be accorded significant weight.
Conclusion
The orders proposed by Ms D Stokerton, the ICL and the father are appropriately adapted to the children’s best interests, and have been made with the consent of those participating parties, where the proceedings were not defended by the mother.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 26 July 2023
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