Stone and Stone

[2019] FamCA 860

FAMILY COURT OF AUSTRALIA

STONE & STONE [2019] FamCA 860

FAMILY LAW – PRACTICE AND PROCEDURE – leave granted for the mother to institute further parenting proceedings.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Stone

RESPONDENT: Mr Stone

FILE NUMBER: BRC 1645 of 2011

DATE DELIVERED: 1 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 1 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Salvos Legal Humanitarian

THE RESPONDENT: Self-represented

Orders

1. That the Applicant be granted leave to proceed with the Initiating Application filed 4 September 2019.

2. That the children, B born … 2005 and C born … 2006 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings and further, the Independent Children’s Lawyer be at liberty to issue any subpoena they deem relevant to these proceedings.

3. That the Respondent file and serve within twenty eight (28) days a Response to the Initiating Application (as amended by this Order) supported by Affidavit.

4. That these proceedings be adjourned for Case Management Hearing at 9.30am on 21 January 2020 in the Family Court of Australia at Brisbane.

IT IS NOTED:

A.That the Initiating Application filed by the Applicant on 4 September 2019 was orally amended such that paragraph five (5) of the final orders sought (attachment A) and paragraph six (6) of the interim or procedural orders sought (attachment B) should both read “father” instead of “mother”.

B.That Legal Aid Queensland is invited to appoint the same Independent Children’s Lawyer as was previously engaged with the matter, Ms Tracy-Lynne Geysen.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stone & Stone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1645 of 2011

Ms Stone

Applicant

And

Mr Stone

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. In Reasons for Judgment published by me on 31 October 2018 (see Stone & Stone [2018] FamCA 876), I indicated why, at that stage, the Court dismissed the mother’s application to vary orders made by Forest J on 22 January 2015, applying the principles of Rice & Asplund (1979) FLC 90-725. My earlier Reasons set out the history to some degree of this matter. The Reasons of Forest J delivered 22 January 2015 included, as I mentioned in my earlier Reasons, at paragraph 124 which identified critically the reasons why his Honour, having on an interim basis moved interim residence of the children from the mother to the father, maintained that position and indicated why he was not prepared to make an order for supervised time. Critical to that determination at paragraph 124 was his Honour’s statement that:

   “As a consequence, I have determined not to order any supervised time. I consider that without that insight and demonstrated capacity for change, even with supervision, time with the mother would present these boys with an unacceptable risk of emotional and psychological harm. I also find that there is an unacceptable risk of the mother and/or the maternal grandparents assaulting, abusing, threatening or harassing the father if they are able to come into contact with him through supervised contact visits.”

2. The orders I made on 31 October 2018, when I dismissed the mother’s then application to amending the parenting orders, identified at order 10 that:

   “That the mother be restrained from commencing fresh parenting proceedings without leave of the Court having first been obtained.”

3. I believe Mr Anglin, the solicitor for the mother, has properly understood that to obtain that leave, he needed to at least provide some material to support why leave should be granted.  To the extent that the Initiating Application goes further, almost on a presumption that leave would be granted, is not a matter for criticism of the mother’s lawyers.  I do note, however, that the Initiating Application seeking final and interim orders does have a critical typographical error, as Mr Anglin today acknowledges.  That is – and I am instructed this is the mother’s position – that the children, B, who is now 14 years of age, and C, who will turn 13 on Boxing Day this year, shall continue to live with the father.  As a result, I will give leave to the Applicant mother to amend the Application for final and interim orders to provide that “the children shall live with the father”.

4. This case has, since the Orders of 2015, never moved from what is in the children’s best interests.  I am now told and I accept that it has been seven years since the children have spent any meaningful time with the mother.  The mother, in her Affidavit, indicates attempts by her to send gifts, cards and the like may not have actually caused them to be delivered to the children.  I make no findings about that.  What was critical, however, is that these boys now aged, as I said, of 14 and nearly 13, are four to five years older than they were when his Honour Forest J made the Orders he did on 21 January 2015.

5. When I dealt with the last application under Rice & Asplund (supra), I regarded it as appropriate to obtain a view independently collected of their issues.  The Independent Children’s Lawyer (“ICL”) in that case, who of course has since been discharged, arranged for Ms D, an experienced Social Worker, to interview the children on 30 August 2018.  That report records the children as expressing a wish that they would like to see their mother.  Ms D set out a process by which a reunification of the children with the mother could occur if the Court decided it was in their best interests that that do occur.

6. At the time of the orders made by Forest J, his Honour clearly relied upon evidence of Dr E in a report that had been prepared in 2013.  The ICL on the last occasion indicated, and my Reasons referred to this submission, that what was critically absent from the last Application by the mother was any updated independent psychiatric evidence.  No doubt at some cost to the mother, the mother has submitted herself to a re-examination by Dr E and on 7 February 2019 Dr E provided a report which I have read and which is annexed to the mother’s Affidavit in support of the application.

7. In short, Dr E says and opines that the mother’s personality vulnerabilities continue, but in his view, at this stage, on the evidence before him and his examination of the mother, not “such that would contradict interaction with the children…”  Dr E indicated that he would support the reintroduction process suggested by Ms D.  He made a critical observation, however, that there should be no time between the children and maternal grandparents.  He opines that:

   It would be preferable for them (being the children) to have limited supervised contact with their mother rather than have an internalised ‘fantasy mother’”.

8. However, in answer to a question put to him fairly by the mother’s instructing solicitors, (question 12) Dr E did refer to what he felt was the continuation of the mother’s lack of insight, an observation with which the mother does not agree from her most recent Affidavit.  So when one compares the position we were in when I delivered my Reasons last year to now, what I have before me is:

   a)an updated report by an independent Psychiatrist which is more positive about the mother’s current position, but still raises some concerns which would not be sufficient on Dr E’s evidence to move to any form of unsupervised time;

   b)evidence that the mother has reduced her relationship with her parents significantly.  This was a concern to Forest J in view of the history of the matter and the allegation that the mother and her parents were in an enmeshed relationship which was emotionally destructive towards the children.  That was a critical finding of Forest J at the time.  The mother says that she no longer is in that close relationship with her parents, although she does not say, nor do I expect her to say, that they do not support her.  However, she has now moved to live independently of her parents.  She is in a relationship which she says has been ongoing for a few years.  She is working.  She has study obligations and she has recently obtained, on her evidence, some form of grant to undertake some further survey or study.  Accordingly, it may be open to the Court to find, when all the evidence is tested, that the mother today is different than the mother at the time of Forest J’s earlier Reasons;

   c)a matter that overarched some of the mother’s understandable concerns with the last application was a recent diagnosis of what she had been told might have been a terminal cancerous condition.  Although there is not, as one would understand, any absolute removal of that risk to the mother’s future health, her more recent scans and the like have been positive to show no growth or exacerbation of that underlying condition, which has been the subject of earlier medical evidence;

   d)the mother continues to consult with a Psychologist, Dr S, and although I have no recent evidence from him, it was again an observation by Dr E both initially and in the most recent report that the mother required to have ongoing psychiatric support; and

   e)Ms D indicated as a possible therapist to assist in any reunification the services of Dr Q, a person well-known to the Court who practices in this area, difficult though it is, significantly in the Brisbane region.  I have no evidence from Dr Q as to whether she is prepared to take this family in for therapy.  However, the mother has at least had some initial interaction with her.

9. The father was not required to be here today, but he is clearly and has demonstrated a firm commitment to the best interests of the boys.  I understand from earlier engagement with the Court on the last occasion that I dealt with this matter, 12 months ago, the father’s real concern that the children will be unsettled if now they are required to engage with the mother.  He acknowledges, of course, that the children are older, but nonetheless, they are at a critical stage of their development concerning their schooling and other, no doubt, peer relationships and activities.  The Court is not required today to be satisfied that it will make an order that the children spend some form of time with the mother.

10. If the Court was of the view that there was no prospect at all of that occurring, it would be unfair to the mother and, of course, the father and the children to allow the application to proceed further.  That is not my view.  It is not my view for at least the fact that these children, well aware of the mother’s health conditions and notwithstanding the conflict that still permeates between the parties, notwithstanding the fact that there may still be an argument about whether the mother has developed the insight that was seen as a critical failure by Forest J and referred to by Dr E.  It has to be said that there seems to be nothing more that the mother could do than she has done to date to put herself in a position to at least credibly come to the Court to seek to return to some form of relationship with her children.

11. For those reasons, I propose to give the mother leave to proceed with the application filed 4 September 2019, but with, of course, the amendment which I have already indicated, which I will set out in the order.  The father is likely to be unrepresented because of the long history of this matter and the involvement of an ICL during the trial and, in fact, even during the most recent Application before me, I propose to make an order for the appointment of an ICL and invite Legal Aid Queensland to appoint the same ICL as has been involved in this case previously because of their knowledge of the history.  The father will now be required to answer the material that is filed and I direct that the father file and serve within 28 days a Response to the Initiating Application (as amended by the order made today) supported by Affidavit.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 1 November 2019.

Associate: 

Date:  12 December 2019