FAMILY COURT OF AUSTRALIA
| STUBBS & STUBBS (NO 2) | [2011] FamCA 316 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – Conflicted parenting relationship and parenting styles – Family violence – Determination that children’s best interests will be met by living with mother and spending time with father |
| Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 65DAA Evidence Act 1995 (Cth) s 140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Frome & Frome (No 2) [2010] FamCA 1104 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 H & H (2003) FLC 93-168 H v W (1995) FLC 92-598 Hilton v Allen (1940) 63 CLR 691 Johnson & Page (2007) FLC 93-344 Korban & Korban [2009] FamCAFC 143 Lindsay & Baker (2007) FLC 93-347 M & M (1998) 166 CLR 69 Mazorski & Albright [2007] 37 FamLR 518 McCall & Clark (2009) FLC 93-405 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 R & R: Children’s wishes (2000) FLC 93-000 R v R (Children’s wishes) (2002) FLC 93-108 Reifek v McElroy (1965) 112 CLR 517 T v N (2003) FamCA 1129 T & N [2001] FMCAfam 222 |
| JE McIntosh and CM Long, Children Beyond Dispute: A Prospective Study of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution, Attorney-General’s Department, October 2006 JE McIntosh and R Chisholm, Shared Care and Children’s Best Interests In Conflicted Separation, 20 Australian Family Lawyer 1 |
| APPLICANT: | Mr Stubbs |
| RESPONDENT: | Ms Stubbs |
| FILE NUMBER: | ADC | 1974 | of | 2009 |
| DATE DELIVERED: | 9 May 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 15, 16, 17, 18, 22, 23 and 24 March 2011 and 11, 12, 13, 14 and 15 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lewis |
| SOLICITORS FOR THE APPLICANT: | Norman Waterhouse Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr McQuade |
| SOLICITORS FOR THE RESPONDENT: | Caldicott & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Horvat |
| THE INDEPENDENT CHILDREN’S LAWYER: | Mr Stephen Legal Services Commission of SA |
Orders
IT IS ORDERED
Parental responsibility
Subject to orders 3-8, the mother have sole parental responsibility for D born … September 2002 and N born … April 2007 (the children) in relation to their education and health.
The parties have day to day responsibility for the children when with each of them, including in relation to their extra curricular activities and attendance at church.
The parties use their best endeavours to follow any written advice from a nutritionist or dietician engaged by the mother concerning the children’s nutrition and dietary needs.
The mother use her best endeavours to ensure that D continues to have the benefit of attendance with Dr A, consultant psychiatrist, at times and intervals advised by him, or if the mother/father is/are unable to afford his fees, a psychiatrist with or nominated by Child & Adolescent Mental Health Service, at times and intervals advised by that psychiatrist.
The mother must provide to Dr…
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- Stubbs and Stubbs (No 2) [2011] FamCA 316
- Case
- [2011] FamCA 316
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CaseChat Overview and Summary
The court was required to determine the extent of parental responsibility each parent would have concerning the children's education and health, and to establish the day-to-day care arrangements, including living arrangements and time spent with each parent. Further issues included the management of the children's health, including psychiatric care for D, and the financial responsibilities associated with such care. The court also had to consider the communication protocols between the parents regarding the children and implement specific restraints on the father's conduct and associations while the children were in his care.
O'Reilly J made orders that the mother have sole parental responsibility for the children's education and health, while day-to-day responsibility, including extracurricular activities and church attendance, would be shared. The mother was directed to follow nutritionist advice and ensure D continued psychiatric treatment, with shared costs for private psychiatrists. Major medical and school decisions required the mother to consult the father in writing, considering his response before making a final decision. The children were ordered to live with the mother, with specific provisions for time spent with the father on alternate weekends, mid-week, during school holidays, and on special days including birthdays and Christmas. Restraints were placed on the father regarding contact with certain individuals, drug consumption, and attending the mother's home. Both parents were prohibited from physical discipline and denigrating each other to the children. The court also ordered that a family consultant explain the orders to the children before they were informed of the details.
Orders
Orders of the court
IT IS ORDERED
Parental responsibility
1.
Subject to orders 3-8, the mother have sole parental responsibility for D born … September 2002 and N born … April 2007 (the children) in relation to their education and health.
2.
The parties have day to day responsibility for the children when with each of them, including in relation to their extra curricular activities and attendance at church.
3.
The parties use their best endeavours to follow any written advice from a nutritionist or dietician engaged by the mother concerning the children’s nutrition and dietary needs.
4.
The mother use her best endeavours to ensure that D continues to have the benefit of attendance with Dr A, consultant psychiatrist, at times and intervals advised by him, or if the mother/father is/are unable to afford his fees, a psychiatrist with or nominated by Child & Adolescent Mental Health Service, at times and intervals advised by that psychiatrist.
5.
The mother must provide to Dr A, and to any other such psychiatrist:
a. a copy of these orders and reasons for judgment
and to any other such psychiatrist:
b. a copy of Dr A’s report concerning D dated 8 April 2011.
6.
The mother must not take D to any psychiatrist other than as provided in order 4, other than upon written referral by a general practitioner who, prior to or simultaneously with such referral, must be provided by the mother with:
a. a copy of these orders and reasons for judgment
b. a copy of Dr A’s report concerning D dated 8 April 2011.
7.
The parties share equally the costs of D’s attendance upon Dr A or such other psychiatrist other than one employed by Child & Adolescent Mental Health Service.
8.
Prior to any major medical decision concerning either of the children and prior to any decision concerning choice of schools or change of schools for the children the mother must:
a. advise the father in writing the nature of the decision to be made and her view as to what the decision should be
b. seek the father’s response in writing as to whether he agrees or disagrees with her proposed decision and if he disagrees, why
c. consider the father’s response before making the decision
d. advise the father in writing as soon as the decision is made.
Living arrangements
9.
The children live with the mother.
10.
The children spend time with the father:
a. on alternate weekends from after school Friday until 5.00pm Sunday, the first such weekend to coincide with that Friday upon which pursuant to the current week about arrangement the children would have commenced a week with the father
b. in the weeks following the alternate weekends, from after school Wednesday until before school Thursday
c. half of the children’s school holiday periods, being the first half in or commencing in the odd years and the second half in or commencing in the even years
d. on special days as provided below
e. such additional time as the parties may agree.
Special days
11.
If Mother’s Day falls on a weekend when the children are with the father, the children’s time with the father cease at 12.00 noon on that day.
12.
If Father’s Day falls on a weekend the children are with the mother, they spend time with the father from 12.00 noon until 5.00pm on that day.
13.
On the children’s birthdays:
a. if a school day, the children (both) spend time with the father from after school until 6.00pm (unless the birthday is on a day when already the children will commence time with the father from after school on that day)
b. if a weekend day when the children are with the mother they spend time with the father from 12.00 noon until 5.00pm
c. if a weekend day when the children are with the father there not be additional time with the mother (on the basis that in any event the children will return to the mother at 5.00pm on the Sundays of such weekends)
d. if during school holiday periods the children remain with the party with whom they are spending time (on the basis that in any event school holiday periods are to be shared equally on the first half/second half basis) but subject to any arrangements the parties may agree for the children’s birthdays pursuant to order 10e.
14.
On the father’s birthday, if the children are not already spending time with him, the mother use her best endeavours to arrange with the father for the children to spend two hours with the father.
15.
On the mother’s birthday, if the children are not already spending time with her, the father use his best endeavours to arrange with the mother for the children to spend two hours with the mother, unless the mother’s birthday falls during the children’s alternate weekend time with the father (on the basis that in any event the children will return to the mother at 5.00pm on the Sundays of such weekends).
16.
When the children ordinarily will be with the father on Christmas Day, they spend time with the mother from 3.00pm Christmas Eve until 3.00pm on Christmas Day.
17.
When the children ordinarily will be with the mother on Christmas Day, they spend time with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day.
18.
When the children ordinarily will be with the father on Easter Sunday, they spend time with the mother from 2.00pm until 5.00pm on that day unless it should fall during a school holiday period, but if it should fall during the children’s alternate weekend time with the father there be no additional time with the mother (on the basis that in any event the children will return to the mother at 5.00pm on the Sundays of such alternate weekends).
19.
When the children ordinarily will be with the mother on Easter Sunday, they spend time with the father from 2.00pm until 5.00pm on that day (whether it should fall during the children’s school holiday periods or on a weekend not during school holiday periods).
Changeover
20.
All changeovers occur inside Location 1 at Suburb F, unless pursuant to these orders time with either parent is to commence after school or conclude before school in relation to which changeovers be at the children’s school/s.
Children’s telephone communication
21.
If, when the children are spending time with either the mother or the father, the children should request telephone communication with the other party, the party to whom the request is made is to facilitate that, for 10-15 minutes duration per telephone call, with permitted frequency of the calls to be decided by the parent facilitating the call.
Restraints
22.
The father must ensure that during all times the children are with him neither he nor they come into contact with Mr L or Mr R.
23.
The father must ensure that during all times the children are with him they not be left alone in the company of Mr Y.
24.
The father must not consume illicit drugs, nor consume any quantity of prescribed drugs exceeding the prescription, when the children are with him or during the 24 hours immediately before the children are to spend time with him.
25.
The father must not attend at the mother’s home or any place of employment of the mother other than with her prior express agreement, or to communicate any emergency concerning the children or either of them.
26.
The mother must not consume illicit drugs, nor consume any quantity of prescribed drugs exceeding the prescription, when the children are with her or during the 24 hours immediately before the children are to spend time with her.
27.
The mother must not attend at the father’s home or any place of employment of the father other than with his prior express agreement, or to communicate any emergency concerning the children or either of them.
28.
The father must not take the children to any medical practitioner, psychologist, therapist or health practitioner, other than, in the case of any sudden illness or accident concerning the children while they are with him, such to be on immediate notice to the mother.
29.
The parties must not physically discipline the children, nor threaten physical discipline to the children, nor speak to the children of threatened but avoidance of physical discipline to them.
30.
The parties must not denigrate each other or any member of the other’s family to or in the presence or hearing of the children.
Attendance at children’s school/s
31.
The parties each may attend the children’s school/s on all occasions usually attended by parents, but must use their best endeavours not to come into conflict with each other on such occasions and must obey all directions by the school/s principal/s or other person/s in charge.
Information
32.
The parties must notify each other as soon as practicable of any serious accident, or serious medical condition or injury concerning the children.
33.
The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend and authorise such to provide to the other at his/her expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.
34.
The parties must authorise the children’s school/s to provide each party at his/her expense upon any written request by him/her to the school/s copies of school reports concerning the children, school photographs and circular or other written information concerning school activities usually provided to parents of children at the particular school, provided that this order is sufficient authorisation to do so.
Parties’ communication concerning the children
35.
All written communications between the parties concerning the children be by email or text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.
36.
To facilitate such written communication, the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change.
Family consultant to explain orders to children
37.
The parties, with the assistance of the independent children’s lawyer, must ensure that the children attend upon Mr P, family consultant, or other family consultant as arranged by the Senior Family Consultant SA/NT, within 2 days of the making of these orders to enable the family consultant to explain to the children their living arrangements pursuant to these orders, that the Court has decided that these orders are in the children’s best interests, and that in consequence D, in particular, should not feel any guilt about there not being an order for equal time and, fundamentally, that the children will be able to have a meaningful relationship with both of their parents although they will be living primarily with the mother.
Children not to be told of these orders pending interview with family consultant
38.
The parties and the independent children’s lawyer must not tell the children about the making of or content of these orders pending interview with the family consultant pursuant to order 37.
All other orders discharged
39.
All other orders concerning the children are discharged.
All other applications dismissed
40.
All other applications concerning the children are dismissed.
Independent children’s lawyer
41.
The independent children’s lawyer is to assist with performance of order 37, and immediately is to provide a copy of these orders and reasons for judgment to Families SA, and be discharged, otherwise, one calendar month from today.
NOTATIONS:
1.
Families SA has had considerable past involvement in relation to the children.
2.
These orders are final orders, with effect that the Court will not be involved in the matter of the children’s safety unless any new proceedings should be commenced.
3.
Accordingly, Families SA respectfully is requested periodically to inquire into and monitor the children’s living conditions and safety.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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