Stone & Stone
[2023] FedCFamC1F 518
•30 June 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stone & Stone [2023] FedCFamC1F 518
File number(s): BRC 1645 of 2011 Judgment of: BAUMANN J Date of judgment: 30 June 2023 Catchwords: FAMILY LAW – CHILDREN – Best interests decision – Where the children are 16 and 17 at present – Where the mother seeks additional parenting orders be made – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CC, 68B Cases cited: Rice & Asplund (1979) FLC 90-725
Stone & Stone [2018] FamCA 876
Division: Division 1 First Instance Number of paragraphs: 34 Date of last submission/s: 26 October 2022 Date of hearing: 6 September 2022 Place: Brisbane Solicitor for the Applicant: Anglin Lawyers Pty Ltd Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: TLG Law Counsel for the Independent Children's Lawyer: Ms K Carmody ORDERS
BRC 1645 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS STONE
Applicant
AND: MR STONE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
30 JUNE 2023
THE COURT ORDERS:
1.That the mother’s Application for further parenting orders be dismissed.
2.That the Independent Children’s Lawyer be discharged.
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 the pseudonym Stone & Stone has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 22 January 2015; Forrest J made final parenting Orders in respect of two boys, B and C which had the effect of them living with their father and spending no prescribed time with their mother, who had previously been their primary carer. An appeal against the decision was dismissed.
The primary, but not only, reason for the trial Judge making such orders was that based on expert psychiatrist evidence, the mother and her parents presented as an unacceptable risk of long term emotional harm to the boys.
Suffice to say, the mother found the decision and subsequent loss of any physical time with her sons very difficult to accept. The first attempts by the mother to re-litigate the final parenting Orders resulted in my decision made 31 October 2018 when the mother’s Application was dismissed, applying the principles of Rice & Asplund (1979) FLC 90-725, but some small variations to the final parenting Orders sought by the father were made. Relevantly, in those Orders, the Court ordered the mother be restrained form commencing new proceedings without first obtaining leave (see Stone & Stone [2018] FamCA 876).
Some 11 months later, with the assistance of pro-bono lawyers, the mother brought an Application for leave – supported by an affidavit which included evidence from the same expert psychiatrist who gave evidence at the trial before Forrest J – in essence opining that the mother’s mental health challenges had improved; that she had significantly changed her relationship with her parents and that her mental health would greatly improve if she could spend time with the boys.
On 1 November 2019, for Reasons given, the mother was given leave to amend her Application but otherwise to proceed with the new Application, which of course then required the father to be formally served and a new Independent Children’s Lawyer (“ICL”) to be appointed.
The unrepresented father engaged in the process, and despite severe reservations about whether the mother’s emotional stability had improved, he supported as best he could the boys having an opportunity to obtain some therapeutic support from Dr Q about their willingness or interest in reconnecting with their mother after so many years.
Thereafter from early 2020 until mid-2022, the parents and the children were attempting to, I find, engage with the high level therapeutic support (paid for primarily by the mother) to encourage not only initial contact with the mother, but to seek to determine whether it was possible and in the best interests of the children, to begin a journey of increasing contact between the boys and their mother which, in her dreams and visions, ultimately would become unsupervised.
It is not helpful in these Reasons to detail the difficulties encountered in seeking to achieve what the mother hoped would occur.
I acknowledge that the mother’s earnest desire to reconnect with her children only intensified when the mother was diagnosed with an illness and treated with surgery in early 2021, followed by other treatments.
Furthermore, the father’s concerns about the mother’s intention and the pain he still felt about events prior to the trial before Forrest J, continued to impact on how far he was able to support the boys reconnecting with their mother. Initially, he frankly conceded the boys interest in doing so, and provided it was safe and consistent with the children’s wishes, he was prepared to do his best to support them.
It became readily apparent, a fact the mother found difficult and distressing to accept, that by September 2022, the boys only wished to have the opportunity to spend limited supervised time with their mother. At this time, B was 17 years of age and C was approaching his 16th birthday.
On 6 September 2022, the Court made the consent Orders in the following terms:
1.That all previous parenting Orders and parenting plans with respect to the time between the children, [B] born […] 2005 and [C] born […] 2006 (“the children”) and the mother are discharged.
2.That the children spend supervised time with the mother at times as agreed between the parents, and subject to the availability of [T Contact Service], and upon the recommendation of [Dr Q], but failing agreement as follows:
a.For a one (1) hour visit each school holiday period (maximum of four (4) visits per year), with the children to be separated for each visit so that they spend one (1) hour each with the mother.
3.That in the event the children express a wish to the father to spend extra supervised visits with the mother at [T Contact Service] during the long summer school holidays, then the father shall facilitate this and contact [T Contact Service] to make the arrangements.
4.That the father arrange for the children to continue to attend upon [Dr Q] after the children’s visits with the mother as deemed necessary by [Dr Q].
5.That the mother meet the costs of all sessions with [T Contact Service] and the children’s attendances upon [Dr Q].
6.That in respect of the mother’s application to include her proposed orders 6 to 16 found at Annexure [MS03] of her affidavit filed 2 September 2022, the father shall within twenty eight (28) days file and serve an affidavit in response to the mother’s proposed orders 6 to 16.
7.That within twenty-one (21) days of receipt of the father’s affidavit in response, the Independent Children’s Lawyer file and serve any written submissions in reply.
8.That within fourteen (14) days of receipt of the father’s affidavit in response, the mother file and serve a short affidavit strictly in reply if required.
9.That unless otherwise ordered, the remaining issues in dispute may be dealt with in chambers on the papers.
I accept that Orders 6 to 9 are a little unusual, but that process was agreed upon because of the mother’s late proposal for additional orders, and the need to grant the father and the ICL a chance to be heard on the ancillary orders. This process also meant further costs were minimised.
It is fair to observe that the mother’s further proposed orders must be considered in the context of the arrangements consented to by all the parties, for the children to spend a maximum of four one hour supervised visits each with the mother. Although the Orders provided for time to occur at T Contact Service and “upon the recommendation of [Dr Q]”, when it became apparent after a supervised visit in September 2022 that went well for B but where C refused to engage, that future visits may be problematic, T Contact Service withdrew their services in September 2022.
The mother then immediately filed an Application in a Proceeding, and a Judicial Registrar on 31 October 2022 made the following Orders varying the final Order made 6 September 2022, with extensive notations:
1.The orders made 6 September 2022 are varied by deleting the words “[T Contact Service]” where they occur at Orders 2, 3 and 5 and replacing them with the words "the contact centre".
2.The Application in a Proceeding filed by the mother on 26 September 2022 is otherwise dismissed.
THE COURT NOTES THAT:
A.The father advised that he continues to make and rely upon the submissions made by him in his affidavit filed 5 October 2022, filed pursuant to Order 6 of the orders made 6 September 2022, in which he opposes several of the additional orders proposed by the mother.
B.The father advises he withdraws his agreement to any of those additional orders sought by the mother and withdraws those paragraphs of his affidavit that suggest he consents to any of those proposed orders.
C.The parties advise [T Contact Service] have withdrawn their service to the family. As a result the final orders have been amended to reflect that the parties will seek an alternate contact centre.
D.The parties will liaise as to the appointment of a further contact centre in order to facilitate the children's time with the mother occurring in accordance with the timeframe outlined in the final orders.
E.The parties intend to ensure a further contact centre is in place in time for the children's next scheduled visit which is to occur during the Christmas school holidays.
ISSUES TO BE DETERMINED ON THE PAPERS
The mother continues to press for the Court to make the following orders:
6.That the father shall give the [T Contact Service] seven days’ notice if the children are unable to attend the visit with their mother.
7.That if the father fails to have the children spend time with the mother without a reasonable excuse, the father shall pay the cancellation fee imposed by [T Contact Service].
8That the mother be allowed to attend upon the children[‘s] medical practitioner for the purpose of providing the mother’s medical history to the medical practitioner.
9.That within seven days of the making of this order, the father shall provide the mother with the contact details of the children’s medical practitioner.
10.That the father shall not discuss any adult issues with the children.
11.That the mother is a liberty to give presents to the children.
12.That upon approval from [T Contact Service], the mother is at liberty to provide the children with a photograph of the mother.
13.That the children are at liberty to take photographs of themselves with the mother while at [T Contact Service].
14.That if the mother’s health deteriorates and the mother’s financial position makes it difficult for the mother to pay for the visits to [T Contact Service], then the parents shall make alternate arrangements for the children to continue to spend time with the mother.
15.That within seven days of the making of this order, the father shall arrange with the mother’s solicitor to return the mother’s personal diaries, and all gifts and presents not given to the children.
16.That when the children spend time with their mother at [T Contact Service], the father shall depart the immediate premises and return no sooner than five minutes before the supervised time ends.
Consistent with the process directed, the Court has received and considered the following submissions:
(a)Submissions of the father contained in his affidavit filed 5 October 2022. Since those “submissions” were filed, by the time the father was required to engage in the mother’s Application to vary the final Orders to allow visits at a contact centre, it appears, from Notation B to the Orders made by the Judicial Registrar, that he now “withdraws his agreement to any of those additional orders”;
(b)In written submissions filed 26 October 2022, the ICL, Ms Geysen, indicated her position on each order; and
(c)The mother’s submissions are contained by way of response at least to the father’s submissions, in the affidavit filed 17 October 2022.
Whilst it was agreed that the mother’s Application for additional orders be dealt with on the papers, they are all broadly parenting orders which requires the Court to apply the principle that the best interests of the children are the paramount consideration.
Considering the final Orders made it is extremely relevant to consider at least s 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) and among the additional considerations, the desire to make orders least likely to lead to further proceedings. Noting that B will be 18 years of age in 2023, in reality the Orders made will only apply to C, born 2006. His demonstrated reluctance to spend time with the mother in September 2022, a fact asserted by the mother in her affidavit filed 26 September 2022 (particularly at paragraphs 11 and 15), is a reflection of his wishes which must be taken into account.
DISCUSSION
The ICL, and now the father, oppose all the additional orders sought by the mother. The Order made for limited time, essentially subject to the children’s wishes and any advice from Dr Q, was a compromise reached to conclude the litigation.
The further “submissions” highlight that a complete lack of trust between the parties still exists and, if anything, having potentially laid dormant since the final Orders made by Forrest J in 2015, were reignited by the recent Applications.
The father has since at least 2015 been the parent with sole parental responsibility and has therefore made whatever decisions are necessary.
I am firmly of the view that some of the orders the mother seeks have the potential to and could undermine the authority of the father – which in this case, where there is no evidence that the father’s decision-making has been flawed, would be contrary to the children’s best interests.
With the withdrawal of services by T Contact Service, I agree with the ICL’s submissions that any arrangements for any contact centre attendances are best left to that organisation. Sadly, it seems that C was demonstrating a reluctance to have further visits – but frankly after the history in this matter that was always a possibility.
I will not make proposed orders 6, 7, 12, 13, 14 and 16, leaving it to the contact centre.
I agree with the father’s opposition, for the reasons he articulates, to making orders 8 and 9. At this stage of the children’s development, introducing the mother to their medical care treatment is more likely to create problems which have not been an issue at least since 2015. Certainly it could lead to further proceedings.
These children may well have adopted their father’s narrative about the history of their care, and why they did not see their mother for so many years. Making an order as proposed at order 10, in those terms, makes no sense. I suspect that rather than “adult” issues, the mother seeks to restrain the father from discussing issues relating to the Court proceedings and the parental conflict. She says that it is her belief that the father has shown C Court documents. The father makes no admission in that regard.
From the mother’s perspective, the only reason that C is showing reluctance to spend time with her is because of what the father says to him. She needs to more carefully read the report of Dr Q to understand it is not that simple. At nearly 16 years of age, it is in my view too late to try and moderate the parents’ behaviour as if it could change. Order 10 will not be made as a result.
I do not propose to make Order 11. When the mother has recently seen B she gave him a present. The father asserts that the gift included a covert message about how he can contact her. I do not propose to make Order 11.
The father gives evidence that he has “no belongings of the mother’s, and all of the mother’s gifts have been given to the children as soon as they were received, or after all contact details have been removed”. I have no reason to not accept this evidence. As a result, proposed order 15 serves no purpose.
Finally, at paragraph 16 of his affidavit, the father seeks orders pursuant to s 68B of the Act restraining the mother from trying to contact the children outside of the Contact Centre or approach the father. No such orders were made in 2015, and no evidentiary foundation for such orders has been established – save for fears the father holds about the mother’s possible future conduct. The significance of the permanent change to living arrangements arising from the 2015 Orders of Forrest J could not be underestimated – both for the children and both parents.
However, it was always going to be the case that one day the children would be adults with all the freedoms to make their own choices of the relationship they want with their parents and other extended family. B reaches that position this year.
C turns 18 in 2024. The mother would be well advised to not engage in further litigation but to wait now for the children to reach their adulthood – and hope perhaps that their memories of their mother from their early childhood are such that they see value in having an adult relationship with her. This is the quandary every parent ultimately faces. Only time will tell.
The Orders I make, to finalise these proceedings, is that the mother’s Application for further parenting orders is dismissed. The ICL is discharged.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 30 June 2023
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