Stone and Stone and Anor

[2014] FamCA 1193

FAMILY COURT OF AUSTRALIA

STONE & STONE AND ANOR [2014] FamCA 1193

FAMILY LAW – CHILDREN – Interim – Where final judgment in the substantive proceedings is pending – where orders are made that the mother and maternal grandparents be restrained by injunction from coming within 1,000 metres of the children or father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Stone

RESPONDENT: Ms Stone

INTERVENER: Ms S Stone

INDEPENDENT CHILDREN’S LAWYER: Gary Couper

FILE NUMBER: BRC 1645 of 2011

DATE DELIVERED: 10 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 December 2014

REPRESENTATION

FOR THE APPLICANT: The Applicant in Person

FOR THE RESPONDENT: The Respondent in Person

FOR THE INTERVENER: The Intervener in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor of Counsel

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

Orders

1. That the maternal grandparents and the mother are restrained and an injunction hereby issues restraining them from approaching within 1,000 metres of any school and/or any activity attended by the children, B born … 2005 and C born … 2006  (“the children”).

2. That the maternal grandparents and the mother are restrained and an injunction hereby issues restraining them from entering upon or remaining in any premises where the father and/or the children reside from time to time, where they may be staying from time to time or where the father works from time to time.

3. That the maternal grandparents and the mother are restrained and an injunction hereby issues restraining them from following, approaching and going within 1,000 metres of the father and/or children.

4. That the father shall be at liberty to provide to the principal of the school at which the children attend, a sealed copy of the orders made by the Court this day.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stone & Stone and Anor 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

And

Ms S Stone

Intervener

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. On 18 April 2013, after I heard evidence for a couple of days in a trial between Mr Stone and Ms Stone, the parents of two boys, B and C who are now aged 9 and almost 8 years of age, and the Independent Children's Lawyer, Mr Couper, I made orders on an interim basis pending the finalisation of the trial that was part-heard at the time.  Relevantly for today’s application, the orders provided that the two boys live with their father from that time on. 

2. Prior to those orders, I had made what can only be described as the most extraordinary orders that I have made since I have been on the bench. Hopefully, I will never have to make such orders again. They were ex parte orders made in Chambers without notice to any of the parties so that the boys could be secured by the Federal Police and brought to the Court without any of the parties knowing it was going to happen.

3. I then determined it was appropriate for the boys to go to live with their father from that moment on.  That was what the interim orders of 18 April 2013 provided for.

4. I also ordered in paragraph 3 of those orders that unless it was agreed between the father, the mother and the Independent Children's Lawyer, the children not spend any time with or communicate with their mother.  I also ordered in paragraph 4 that unless it was agreed between the father, the mother and the Independent Children's Lawyer that the children not spend any time with or communicate with their maternal grandparents.

5. The trial proceeded to conclusion over a number of other days in late October 2013.  At the end of that trial, those orders that I just referred to remained in force and I made no other orders, whilst indicating to the parties that I reserved my judgment in respect of all outstanding matters.  I note also that at some point during the trial, by reference to my memory only, I believe that the maternal grandmother was given leave to intervene in the proceedings.  In any event, when I reserved my judgment, not only was I left with the view that I was left to determine parenting arrangements not only as between the father and the mother but also that I was to determine an application by the maternal grandmother for orders that the two boys spend time with and/or communicate with her. 

6. Regrettably, and not uniquely, I have been reserved in this matter ever since. Unfortunately, that is now over a year.  I will say more about that when I deliver my reasons for judgment when they are finally delivered, but principally I attribute that delay to the pressures of the busy list that this court deals with on a day-to-day, week-to-week and month-to-month basis hearing and determining matters, perhaps not quite as difficult or as complicated as this, but very close in complexity.  As I indicated to the parties at the beginning of today’s hearing, I am very close to being able to deliver judgment in this matter and at this point in time, absent further unforeseen circumstances, I am seriously hopeful of being able to deliver my judgment on a final basis before the end of January 2015.

7. On 13 November 2014, the father, with whom these two boys have been living since my order of April 2013, filed an Application in a Case that has been listed for hearing today.  He supports that Application in a Case with two affidavits of evidence, one filed 13 November 2014 and one filed 9 December 2014.  The mother said she was not served with those documents, but I am satisfied that the maternal grandmother was and that there has been communication between the maternal grandmother and the mother such that the mother, I am satisfied, would have been aware of the nature of the application that the father brings and indeed I am satisfied that she was aware of the nature of the assertions made in his affidavit by the father as against her and the maternal grandparents. 

8. Essentially, in very brief summary, the father’s evidence is that the maternal grandparents and the mother have in some way learned of and determined the State school that the two boys have been attending this year.  It was clear, and there can be no doubt, that at the end of the trial last year there was absolutely no intent on the father’s part, a position supported by the Independent Children's Lawyer at the time, for information in respect of the school/s that the boys attend to be made available to the mother and the maternal grandparents.  Indeed, although I made no order in respect of it, my position at the time was supportive of the view that the place of residence of the boys and the school that they attend should not be matters of fact made known to the mother and the maternal grandparents, at least pending delivery by me of my final judgment. 

9. The evidence that the father has put before me, and concessions made by the grandmother from the bar table today, and documents tendered into evidence produced under subpoena by the Education Department from the school that the boys attend, persuade me undoubtedly that the grandparents and the mother have actually in some way, whether it be by subterfuge or accident, learned of the school that these boys attend and have, indeed insofar as the maternal grandmother is concerned, attended at that school on more than one occasion in recent months and I am satisfied on the material that is put before me from Education Department documents that she has done so without the consent of the father and importantly, without the approval of the school. 

10. Indeed the evidence satisfies me that the maternal grandmother’s unwanted attendance at the school has created not just stress and problems for the two boys but also distress, concern and problems for the principal and staff of the school, importantly not just in respect to their duty of care to the boys the subject of these proceedings but also to the other children who attend at the school.

11. The evidence of the father, albeit hearsay, is that the mother was also seen at the school.  The evidence that the Independent Children's Lawyer, through his counsel, tendered into evidence today from the school shows that the administration of the school was convinced that the mother had also attended at the school, particularly on 9 September this year, in company with her mother, the maternal grandmother. 

12. For her part the mother completely denies the assertion. For her part the mother continues to assert that she has severed the relations with her parents.  There has been no cross-examination today as there is normally no cross-examination on this sort of application. The mother has not deposed under oath to any of those denials or assertions. Suffice to say, having had this matter before me now for a couple of years and having had the parties appear before me in my court many times, but more importantly, having seen them all in a trial that lasted for several days over two distinct periods of time last year, I am quite prepared to say that I have doubts about the honesty of the mother’s assertions that she did not attend at the school. 

13. I note that the grandmother quickly sought to tender into evidence a document that she asserted would categorically prove that they were not at the school that day and I note that when I saw what that document was, that in no way do I accept that it categorically proves that she and the mother were not at the school on that day. 

14. In all the circumstances, I am not persuaded that the maternal grandmother’s attendance at the school was motivated only by best interests concerns for these boys.  In the circumstances, I am prepared to make orders restraining her and indeed her husband from approaching the school or any activity that is attended by the children and the residence that they might live at or the father might live at with them and any place that he works.  I am going to make an order that she and her husband are prohibited from following, approaching or going within 1,000 metres of the children.

15. In respect of the mother, she steadfastly asserted a denial that she had been to the school and maintained opposition to the application on the basis of some sort of notion that she might inadvertently breach it.  In that regard, I simply suggest that the mother take legal advice about questions of consciously breaching orders as opposed to inadvertently breaching them, and as to what the respective consequences in those circumstances might be.  I put to her during the course of discussion between bench and bar, that if she has not attended at the school and if she has no intention of attending at the school like she says she does not in the future, then there would be no harm in her consenting without admission to an order that actually formally prevents her from doing so.  Notwithstanding that she maintained opposition to the order. 

16. In the circumstances, pending the delivery of my final judgment in the substantive parenting dispute between these parties, I am persuaded that it is in the best interests of the boys, in the emergence of the new evidence put before the court by the father about the mother’s and the maternal grandparents’ endeavours to locate and see and communicate with and spend time with these boys, that they all ought to be restrained from doing that and I will.

17. Finally, I simply add that the orders I proposed making were indeed supported by the Independent Children's Lawyer through counsel that he briefed to appear here today. 

18. Accordingly, for all of those reasons, I make the following orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 10 December 2014.

Associate:

Date:  14 January 2015