Stubbs and Stubbs

[2012] FamCA 93

FAMILY COURT OF AUSTRALIA

STUBBS & STUBBS [2012] FamCA 93

FAMILY LAW - CHILDREN – interim orders – application by the mother seeking suspension of the father’s time with the children – where the matter has a long and difficult history – where the trial of the matter took place not long ago and judgment was delivered – best interests – where it was not appropriate for the Court to interfere with final orders without further enquiries being made – orders made by consent suspending the father’s time with the children – further orders for the appointment of an Independent Children’s Lawyer.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Stubbs

RESPONDENT: Mr Stubbs

FILE NUMBER: ADC 1974 of 2009

DATE DELIVERED: 2 February 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 2 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Parker

SOLICITOR FOR THE APPLICANT: Georgina Parker Lawyers

COUNSEL FOR THE RESPONDENT: Mrs Lindsay

SOLICITOR FOR THE RESPONDENT: Helen McCance

Orders

1. Further consideration of the proceedings be listed for mention / directions and short argument before the Duty Judge (the Honourable Justice Dawe) at 9.15 am on Friday 20 April 2012.

2. Pursuant to Section 68L of the Family Law Act 1975 as amended the children D born … September 2002 and Z born … April 2007 be separately represented and that such representation be arranged by the Legal Services Commission of South Australia UPON NOTING the request of the Court that Mr Terry Stephen be reappointed in that role given his lengthy and comprehensive involvement on the previous occasion that proceedings were before the Court, and that within seven [7] days of the date hereof each party do forward to the Legal Services Commission copies of all materials filed by them from and including 13 December 2011.

3. The Independent Children’s Lawyer, in consultation with the parties, make all such enquiries and investigations as are necessary to provide a full and comprehensive understanding to the parties and to the Court of the recommended approach by Hospital 3 for the advancement of D’s best interests and for the involvement of both parents at all relevant opportunities.

AND BY CONSENT, IT IS ORDERED DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. The father’s time with the children as specified in paragraphs 10 through to 19 inclusive of the Orders made by the Honourable Justice O’Reilly on 9 May 2011 be suspended.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stubbs & Stubbs 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 ADELAIDE

FILE NUMBER: ADC 1974  of 2009

Ms Stubbs

Applicant

And

Mr Stubbs

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today an Initiating Application filed by the mother in these proceedings on 15 December 2011 in which she seeks a number of final orders but more significantly for today’s proceedings, a number of interim orders.  Effectively she is seeking to suspend the father’s time spent with the two children D born in September 2002 and Z born in April 2007.  The father filed a Response to that application on 31 January 2012 in which he opposed the orders being sought by the mother.

2. These proceedings have a long and tragic history in this Court having been commenced in May 2009 and thus are approaching their third birthday in this jurisdiction.  The file now comes in four boxes which is indicative of the incredibly toxic disputation which has taken place between the parents of these two very young children.  It would be fair to say that over that period of years, the parties have had enormous difficulty in achieving anything in the nature of cooperative parenting.  It would be no surprise to anybody that the victims of that toxic relationship between the parents have been the children themselves, but in particular D. 

3. Whilst the parties are seeking various orders from the Court now it must be understood that that is as against a background of there having been a very lengthy trial of the proceedings in which all of the evidence was tested before Justice O’Reilly over some 12 hearing days and which resulted in a very lengthy and detailed reserved decision being delivered by her Honour on 9 May 2011.  Thus, less than 9 months since the delivery of that Judgment, the parties are intent upon litigating it again.

4. I indicated to Counsel during the various discussions between bar and bench that it appears to be a particularly tragic consequence for the children and I enquired of the parties through their Counsel whether or not there was a practical and cooperative approach which could be adopted seeing as thus far litigation has produced very few, if any, beneficial results or consequences for the children or indeed for the parties themselves.

5. Counsel for the father has indicated that at an appropriate time it is likely that a Rice and Asplund argument will be raised given that the father alleges that the matters raised now in these freshly instituted proceedings are matters which were canvassed at great length and at great cost over the past three years and in particular, during the trial of the proceedings before Justice O’Reilly.

6. The allegations made by each of the parties are concerning and provide the Court with a difficult task, particularly in discerning where the truth might lie in disputed factual situations which arise on the documents.  Whilst it is trite to say that such allegations can only be tested in a trial of the proceedings and the intensive examination of the parties and their supporting witnesses, from my perspective such a pathway is not necessarily likely to be beneficial to the children.  It would seem that every endeavour to avoid another trial would be the best result that can be achieved for the children provided that their interests can be served in other ways.

7. One of the materials filed was an affidavit of the mother’s solicitor filed on 31 January 2012 to which was annexed a summary of a meeting conducted at Hospital  3 which resulted in the annexed report dated 27 January 2012. 

8. From my memory of the matter and I confess to not having a complete grasp of all of the detail of the issues that were raised over a period of three years, the report does raise some new considerations for the parties and for the Court in that the diagnosis advanced by this Assessment Committee is now to the effect that as well as all of his other problems, a diagnosis of Asperger’s Syndrome has been applied to D.

9. This is not a matter which should continue any further without an Independent Children’s Lawyer being appointed for the children and I certainly intend to make that order today. 

10. An application made by the father today was for an injunction to restrain the mother from continuing to take D to Mr BC, a psychologist at V Psychologists.  Counsel for the father acknowledged that in so doing the mother was not in breach of Justice O’Reilly’s orders of 9 May 2011 in that the only prohibition that applied to the mother in terms of those medical areas was as to not taking D to any other psychiatrist.  I also note from those orders that her Honour afforded sole parental responsibility to the mother in relation to the children’s education and health.

11. Annexure “NS4” to the mother’s affidavit filed on 15 December 2011 is a letter dated 12 December 2011 from Mr BC.  The letter does not make it absolutely clear as to whether or not D is seeing Mr BC as a result of a formal referral by Dr A, or as a result of a simple recommendation by him to involve Mr BC or whether or not it was undertaken solely at the instigation of the mother.

12. In any event whilst the Independent Children’s Lawyer is undertaking his enquiries and positioning himself to be able to make proper recommendations to the Court, it is in my view inappropriate for me to interfere with the final orders made by Justice O’Reilly after such a lengthy trial period and in particular with those orders that were made giving the mother sole parental responsibility and in circumstances where there is no prohibition upon her following any advice she may have received or in any event acting independently in relation to the children’s health.   I therefore decline to make that injunction although of course that application can be reinvigorated on the adjourned date when further information has been provided by Hospital 3 and from the Independent Children’s Lawyer.

13. In my view, it is not necessary for me to make findings on all of the considerations raised in Section 60CC of the Act given the father’s concession today that he is so concerned too about D’s wellbeing that he is voluntarily relinquishing his time with D whilst the Independent Children’s Lawyer is appointed and whilst arrangements are made to try and effect a form of family conferencing which will enable him, the mother and the various advisers understand the full raft of problems that present themselves for D and to try and advance the best possible solutions for him.

I certify that the preceding thirteen (13) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 2 February 2012.

Associate: 

Date: