Stone and Stone

[2013] FamCA 1154

FAMILY COURT OF AUSTRALIA

STONE & STONE [2013] FamCA 1154

FAMILY LAW – PARENTING – Interim – Where the trial is adjourned part-heard – Where the residency of the children has been changed – Where the mother refuses an order for supervised contact – Where no orders are made for the children to spend time with the mother.

Family Law Act 1975 (Cth)

APPLICANT: Mr Stone

RESPONDENT: Ms Stone

INDEPENDENT CHILDREN’S LAWYER: Gary Couper

FILE NUMBER: BRC 1645 of 2011

DATE DELIVERED: 18 April 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Umashev of Counsel

SOLICITOR FOR THE APPLICANT: JMW Legal

FOR THE RESPONDENT: The Respondent in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carmody of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Couper Geysen Family and Animal Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

(1)All previous parenting orders be discharged.

(2)The children, B born … 2005 and C born … 2006, shall live with the father.

(3)Unless otherwise agreed in writing between the father, the mother and the Independent Children's Lawyer, the said children shall not spend time with nor communicate with the mother.

(4)Unless otherwise agreed in writing between the father, the mother and the Independent Children's Lawyer, the said children shall not spend time with nor communicate with the maternal grandparents.

(5)(a)      Each of the father, Mr Stone, and the mother, Ms Stone, their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of B born … 2005 (male) and C born … 2006 (male), from the Commonwealth of Australia.

(b)B born … 2005 (male) and C born … 2006 (male) are hereby restrained from leaving the Commonwealth of Australia.

(6)It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s name(s) on the Watch List for a period of two years.

(7)Upon expiration of the period referred to in Order 6 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List. 

(8)The trial in this matter is adjourned part-heard to 10.00 am on Monday, 21 October 2013, for a further three days of hearing before his Honour Justice Forrest.

(9)The matter shall be listed, on a date and at a time to be fixed, for a compliance check approximately one month prior to the recommencement of the trial.

(10)A transcript of the oral evidence given by Ms D, Prof E and the paternal grandfather, Mr F Stone, be produced and provided to the parties.

IT IS NOTED

If after the expiration of the period set out in Order 6 above any parent seeks that the children’s names remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.

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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1645 of 2011

Mr Stone

Applicant

And

Ms Stone

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1.I have heard all of the expert evidence in this case already, to this point in time, although the case has not finished.  I have read two expert reports of Ms D, a very experienced senior social worker.  I have heard Ms D give oral evidence in court.  I have read the reports of Mr G, an experienced family consultant based in this Court.  I have read the report of Ms H.  I have read the report and considered the very thoughtful oral evidence of Professor E. 

2.Although I have not heard all of the cross-examination of the mother and all of her witnesses, and although I have not heard all of the cross-examination of the father, I have heard sufficient to reach findings sufficient to satisfy me on this interim basis that the best interests of the boys require an immediate transition from the mother’s care to their father’s care.  Anything short at this particular time, having regard to the expert evidence, might seriously jeopardise the prospect of these two boys ever having a meaningful relationship with their father, and I am quite satisfied that that would be for no good reason. 

3.I am not satisfied on all of the evidence I have heard that the father is indeed responsible for all of the things that the mother and her parents allege he has been responsible for in the past.  I do not consider that the children are at an unacceptable risk in respect of their physical and emotional wellbeing being placed in their father’s full time care. 

4.I am satisfied that they are at a seriously unacceptable risk of suffering long term emotional and psychological harm if the transition from their mother’s care to their father’s care that I have put in place by my orders is not effected immediately. 

5.I am also satisfied that in the circumstances of this case the best interests of the boys would not be met by making a parental responsibly order just at this point in time.  It is only an interim order and I am quite satisfied that the presumption in favour of equal shared parental responsibility that arises through the Act is displaced in this case by all of the conflict that has occurred between the parties.  I am quite comfortable in knowing, there being no parenting order put in place by me, that the default position provided for in the Act applies and that parental responsibility still devolves to each of the parents, but singularly and independently of each other.  Therefore, even without making an order in favour of the father, he has sufficient and adequate and appropriate parental responsibility at law to deal with all matters pertaining to the major long term decisions in these boys’ lives between now and when the matter comes back before me. 

6.The reason why I have not made any order that provides for the children to spend time with and communicate with their mother is as follows.  The experts, Ms D and Professor E, made it clear in their opinions that if I accepted the case of the father and rejected the case of the mother and her parents in respect of the arguments about the risk to the children if they were placed in their father’s unsupervised care, that it was a case that required transition of the boys from their mother’s care to their father’s care and for the sake of allowing the boys to settle and come to terms with the change in their circumstances suddenly forced upon them and also to allow the mother to come to terms with that outcome, a period of time during which they did not communicate with their mother or spend any time with their mother was appropriate. 

7.Ms D said at an absolute minimum it should be six weeks, Prof E said it should be three months, four months at the outside.  Both the experts then opined that a re-introduction of the boys to the mother’s company should only however be thereafter effected through supervision at a contact centre and they also both opined that the boys should not even be brought into contact with their grandparents in that regime, even on a supervised basis.  In the end, the Independent Children's Lawyer made submissions that it should only be six weeks.

8.When the mother was asked about this, she ultimately made it clear to the Court that she eschewed any order that provided for the boys to spend contact with her.  She continually said that she was not prepared to take the benefit of an order that they spend time with her on a supervised basis, alleging that was because she considered it would be too traumatic for the boys.  When pressed, she certainly made it clear to me that she did not seek the advantage of an order that provided for her to have supervised time. 

9.I then heard further submissions from the other parties and particularly the Independent Children's Lawyer made the submission that in those circumstances there should not be an order for supervised time and if the mother ultimately changes her mind about that, that could either be something that could be agreed between the parties without the need to come back to court or if eventually there was no such agreement the mother could bring the matter back to court even before it comes back before me.  I consider there was merit in that submission and determined that it is in the best interests of the boys not to put an order in place at this stage with respect to such supervised time given that the mother did not want it.  If she does change her mind, it is better that it is something that is negotiated or sought from the Court rather than being in place as a default order that may result in further conflict and tumult in this matter between the parties.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 April 2013.

Associate: 

Date:  10 November 2014