STUBBS & STUBBS

[2014] FamCA 144

FAMILY COURT OF AUSTRALIA

STUBBS & STUBBS [2014] FamCA 144

FAMILY LAW – CHILDREN – Final Orders – with whom a child should live - with whom a child should spend time – lengthy proceedings extending over several years – father filed Notice of Discontinuance – best interests of children – mother to have sole parental responsibility – children to live with mother – spend time with father as agreed between parties.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 62B, 65D, 65DA

Allesch v Maunz (2000) 203 CLR 172
Haydon & Bennett and Anor [2012] FamCAFC 89
Sexton & Sexton [2012] FamCAFC 218

APPLICANT: Ms Stubbs

RESPONDENT: Mr Stubbs

INDEPENDENT CHILDREN’S LAWYER: Mr T Stephen

FILE NUMBER: ADC 1974 of 2009

DATE DELIVERED: 13 March 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 7 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lee

SOLICITOR FOR THE APPLICANT: Georgina Parker Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dubarry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That all previous parenting orders be discharged.

2. That the children D, born … 2009, and N, born … 2007, (‘the children’) live with the mother.

3. That the mother shall have sole parental responsibility in respect of decisions concerning the children’s long term care, welfare and development.

4. The father is to spend time with the children as agreed by the parties subject to the following restraints:

   (a)       The father must ensure that during all times the children are with him they do not come into contact with Mr L or Mr R.

   (b)       The father must ensure that during all times the children are with him they not be left alone in the company of Mr Y.

   (c)       The father must not consume illicit drugs, or exceed the specified dosage of any prescribed drugs, when the children are in his care or during the 24 hours immediately before the children are to spend time with him.

   (d)       The father is not to attend the mother’s home or any place of employment other than with the mother’s prior express consent.

5. All communications between the parties concerning the children be by email or SMS text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders. The parties are to give written communication of any change of email address and/or SMS text message service number within 24 hours of any change.

6. The mother is to keep the father advised as to the children’s school and any significant medical issues affecting the children.

7. That order 10 of the orders made 3 August 2009 be discharged and the registry do deliver up the children’s passports to the mother.

8. That the order for the appointment of the Independent Children’s Lawyer be discharged.

9. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitles “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to parenting issues in respect of the children, D born in 2002 and N born in 2007 (“the children”). The eldest child was diagnosed with Asperger’s syndrome in January 2013.

2. The father, now aged 46, and the mother, now aged 42, began cohabitating in 2001. The parties were married in 2003 before separating in May 2009. Their relationship was one coloured with allegations of physical and verbal abuse, often in the presence of the children, and the father’s addiction to both prescription medication and other illicit substances.

3. By way of his Amended Response filed 28 June 2013 the father sought final orders that would see him have sole parental responsibility for the children who would live with him. In respect to time spent with the mother, he proposed the children spend time with their mother as agreed between the parties. The father’s orders also saw a number of restrictions placed on the mother including “restraining the mother from behaving in a manner that is injurious to the children’s emotional health” and undergoing psychiatric assessment and counselling.

4. By way of the her Amended Initiating Application filed 25 July 2013 the mother sought final orders that she have sole parental responsibility and the children shall live with her. The mother did not seek specific orders for time spent with the father other than as such times and upon such conditions as ordered by this Court.

5. Ultimately the matter proceeded without the father being involved in proceedings. There is nothing to suggest why the father did not wish to continue his involvement but as will become apparent, I am satisfied that he was both aware of the proceedings and had every opportunity to be involved.

Court History

1. It would not be controversial to say the proceedings have been protracted. The court file now comprised of some 295 documents extending over 16 folios and of course, at the centre of this maelstrom are two young children who have lived under the shadow of their parents’ dispute for the majority of their short lives.

2. While I do not propose to set out in full the history of these proceedings a comprehensive summary of the matter can be found in the judgment of O’Reilly J delivered on 9 May 2011. What follows is the procedural history pertinent to the mother’s initiating application filed 2 May 2013.

3. Following a trial of some 12 days O’Reilly J made orders providing the mother have sole parental responsibility for the children in relation to their health and education. The children were to live with the mother and spend time with the father every second weekend with one overnight visit in the alternate week.

4. Not six months had passed before the father filed two applications during December 2011 for alleged contraventions, namely the mother had failed to make the children available at the handovers provided for in the orders of O’Reilly J. In response the mother submitted she had only done so to protect the health and safety of the children. She asserted she had a reasonable excuse.

5. On 15 December 2011 the mother filed an Initiating Application seeking to discharge the orders of O’Reilly J to the extent they provided for the children to spend time with the father and for her to consult with the father in respect of the children’s education. Dawe J dismissed the mother’s application on 26 November 2012 with no orders made.

6. On 18 January 2013 the parties attended a Family Law Conference during which the mother agreed to the father’s resumption of time with the children provided it no longer included mid-week visits and instead the children would spend time with the father from Thursday afternoon until the commencement of school on Monday morning.

7. The mother did not comply with the arrangements and the father filed a further application for contravention on 6 February 2013.

8. The father was charged with aggravated assault in February 2013 following an altercation in which it was alleged the father struck and verbally abused D. D has not spent time with his father since the incident.

9. On 2 May 2013 the mother filed a further Initiating Application seeking orders as previously outlined in her application of 12 December 2011.

10. The contravention applications came before Dawe J for a two day hearing on 9 May 2013. In the judgment delivered on 11 June 2013, Dawe J declined to make any orders until the resolution of criminal proceedings against the father.

11. On 16 May 2013 the father filed a Response seeking the children live with the father who shall have sole parental responsibility. No order for time spent with the mother was proposed other than at such times and conditions as deemed appropriate by the Court.

12. On 30 May 2013 Cronin J suspended the orders of O’Reilly J to the extent they provided for D to spend any time with the father. The father’s bail conditions provided he was not to come into contact with D. Notwithstanding the suspension of D’s time, Cronin J ordered the resumption of time between the father and N.

13. On 28 June 2013 the father filed an Amended Response seeking sole parental responsibility for the children who would spend time with the mother as agreed between the parties.

14. On 3 July 2013 Cronin J listed the matter, and the accompanying contravention applications filed by the father, for final hearing on 26 August 2013. The preparation of a Family Report was also ordered.

15. The mother filed an Amended Initiating Application on 25 July 2013 seeking sole parental responsibility for the children who would live with her. The mother sought no orders for time spent with the father save and except time as ordered by the Court.

16. The charges against the father arising out of the altercation with D in January 2013 were withdrawn on 23 August 2013.

17. The matter came before me on 26 August 2013 when I made orders vacating the trial listing and adjourned the final hearing to 9 September 2013 for four days.

18. A Family Report was prepared by Ms M on 30 August 2013. I will consider the report and the recommendations of Ms M in greater detail later in these reasons.

19. The father failed to appear at the final hearing on 9 September 2013.

20. On 10 September 2013 I made orders suspending all time between the father and N. The father’s applications for contravention were dismissed and the trial listing for the week commencing 9 September 2013 was vacated. Notwithstanding medical certificates were provided to the Court I ordered the father to provide a detailed explanation, by way of an affidavit, as to what medical illness had prevented him from attending the final hearing.

21. The father filed a handwritten affidavit on 26 September 2013 addressing his non-attendance. The father stated he “became despondent and incorrectly medicated [himself]” after reading the recommendations contained in the Family Report. The father has been admitted to hospital and remained there for some weeks.

22. The matter was next before me on 4 October 2013 for further consideration. All parties were present although the father was unrepresented. The father would remain unrepresented for the remainder of the proceedings.

23. The father filed an Application in a Case on 23 October 2013 seeking to reinstate the orders made by O’Reilly J of 9 May 2011. In her Response filed 10 December 2013 the mother again raised concerns regarding the father’s capacity to parent, N’s declining behaviour and his alleged abuse of prescription medications. The application was adjourned for a hearing on 18 December 2013.

24. On 6 December 2013 the father failed to attend a hearing before Registrar Paxton. By way of a telephone message, received after the hearing, the father advised the Court he no longer wished to have any further involvement in proceedings. Registrar Paxton ordered the father to file a Notice of Discontinuance by 6 January 2014 or comply with trial directions. The father filed the notice on 16 December 2013 discontinuing both his Response to the mother’s Initiating Application and his Application in a Case filed 23 October 2013.

25. Accordingly the matter came before me on 7 February 2014 for a final hearing.

Documents Relied Upon

1. The mother relies upon the following documents:

   ·The mother’s Amended Initiating Application filed 25 July 2013.

   ·Trial Affidavit of the mother filed 25 July 2013.

2. Documents relied upon by the Independent Children’s Lawyer (“the ICL”):

   ·Family Report dated 30 August 2013.

Evidence of Father

1. The father filed a Notice of Discontinuance on 16 December 2013.

2. Notwithstanding the father plays no part in the proceedings whether by way of his physical presence or in terms of any affidavit material that the Court is able to consider, nonetheless I do not consider that this matter is dealt with appropriately by in effect dismissing the father’s application summarily and making orders in default. It is not simply resolved by finding that the apparent failure to prosecute the action by the father entitles me to make a parenting order as a result. I am obliged to provide adequate and proper reasons so that a legislative pathway can be followed and that it is apparent how I have exercised and discharged the need to give proper consideration to section 60CC of the Family Law Act 1975 (Cth) (‘the Act’).

3. I have given consideration to a range of cases that have regard to the fundamental principle of natural justice and the provision of an opportunity to a litigant to attend: see Allesch v Maunz (2000) 203 CLR 172, Sexton & Sexton [2012] FamCAFC 218 and Haydon & Bennett and Anor [2012] FamCAFC 89.

Evidence of Mother

1. The mother attended proceedings and in support of orders sought she filed a trial affidavit on 25 July 2013. Notwithstanding that the father was not present, counsel for the mother considered it appropriate that the mother be sworn in and present her evidence with formality.

2. Of particular focus during the mother’s evidence were the conflicting wishes of the children. The mother gave evidence that while D does not seek any time with the father, N repeatedly expresses a desire to see him.

3. During the course of the mother’s evidence she described how N had begun to establish a relationship with her father during the period leading up to August 2013 and how the child now “idolised” her father. Clearly, N wants to spend time with her father. The mother offered this evidence unreservedly and it does her credit.

4. However, the mother also expressed concern over N’s “disruptive and destructive” behaviour following her return from time spent with the father. The cause of N’s behavioural difficulties is ambiguous. The mother acknowledged the issue and sought guidance from a psychologist who N continues to see regularly.

5. D is also seeing a psychologist but for a different purpose, namely to assist him to “come to terms with living without the pressure of having to see [the] father”. The mother detailed how D has refused to speak with his father, most recently on Christmas Day 2013, and still has a “lot of anxiety” when it comes to his father. Despite this the mother was receptive to the possibility of D spending time with his father provided it was at D’s behest.

6. The mother’s evidence revealed a considered plan for the reintroduction of the father into the children’s lives. Evident in the mother’s proposed plan is a willingness to communicate with the father, albeit on strict conditions, and an intention not to sever the relationship between the father and the children but to promote it within a safe environment and with the children’s best interests as her paramount concern.

7. Counsel for the ICL also briefly questioned the mother with regard to the child N’s school attendance record but did not seek to explore other topics.

8. Initially counsel for the ICL shared my reservations about the parties’ ability to communicate effectively given the level of animosity previously present in their relationship but having heard the evidence of the mother, and being given the opportunity to cross examine her, counsel for the ICL praised the “considerable strength of character and insight into the children’s emotional needs” shown by the mother.

9. While obviously the enquiry of the mother was not searching, nonetheless her demeanour and general presentation gave me significant confidence to make orders in the form of those sought.

10. I note the oral evidence of the mother revealed a different position to that depicted in the mother’s trial affidavit. This is not to suggest that the evidence was inconsistent but rather that the mother’s oral evidence enabled the court to better understand the justifications behind the orders sought by the mother. I raise this to emphasise why the process, particularly when undefended, requires formal evidence.

Report of Family Consultant

1. The Family Report dated 30 August 2013 was prepared by family consultant Ms M. It is the fourth such report prepared since the first proceedings were initiated in 2009 and provides a summary of the background and the relevant issues as they are likely to affect the children. During the preparation of her report Ms M conducted interviews with the children, mother, father, paternal grandmother, maternal grandparents, father’s adult daughter, Ms K, and the father’s former partner, Ms O.

2. Obviously, the report was prepared prior to the father’s admission to hospital in September 2013 and is therefore unable to consider the issues raised by that event. It is also worth noting as a consequence of the father’s bail conditions in place at the time, and pursuant to the orders of Cronin J, the writer did not have the benefit of any observed interaction between D and the father. That is not a criticism. I consider it to be entirely proper that the child was not required to come into contact with the father given the events of January 2013.

3. Ms M did however observe the interactions between the father, paternal grandmother and N during which the child maintained a desire to spend time with the father, a desire Ms M considers to be “driven no doubt by her age appropriate need to please and be loved by him”.

4. During his interview the father’s “primary focus seemed solely on apportioning blame to the mother for the unresolved litigation…rather than examining his parenting or the nature of his relationship with all of his five children”, leading the writer to make the following conclusions:

   65. Reference has been made in previous family reports about the inadequate or limited parenting skills exhibited by the father in contrast to the mother’s better knowledge, insight and understanding of the children’s needs which is consistent with information obtained for this assessment where the same qualitative differences were observed in interactions between the children and their mother and [N] and her father. Indeed, when [N] was observed with her father on this occasion, [N] became visibly uncomfortable when her father questioned her (inappropriately in the writer’s view) about parenting arrangements, at which point [N] seemed to react to his tone in an anxious fashion and adopted a protective strategy which involved distracting him with a page torn out of her book, a strategy that appeared well rehearsed as though she has become accustomed to appeasing her father in order to avert his anger or displeasure.

5. Ms M had the opportunity to speak to and assess the presentation of the mother during both the interview and observed interactions with the children during which “no anomalies were noted and both adults and children alike seemed to interact with a familiarity, ease and respect that is consistent with secure attachments”.

6. The recommendations of Ms M would see the children live with the mother who have sole parental responsibility while the father’s time with the children be supervised and limited to special occasions. Moreover, the writer advised the father be restrained from attending the children’s school and place of residence and that any handovers take place with the assistance of an intermediary to prevent any direct contact between the parties.

Statutory Framework

1. Part VII of the Family Law Act 1975 (“the Act”) sets out the legislative pathway in terms of the manner in which the Court needs to consider when making parenting orders.

1. The best interests of the children are required to be met and section 60B(1) provides the relevant considerations to satisfy the objects of section 60B.

2. Pursuant to section 60CA the Court must have regard to the best interests of the child. That consideration is to be considered as paramount.

3. I am obliged to consider section 60CC of the Act and in particular the primary consideration (section 60CC(2)) and the additional consideration (section 60CC(3)). The Court is also obliged to consider the manner in which each of the parents have either fulfilled or failed to fulfil their responsibilities as a parent pursuant to section 60CC(4).

4. Section 65D provides:

   In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

   …

5. Section 65D(1) is subject to section 61DA of the Act. This section requires the Court to apply a presumption that is in the interests of the child that there be equal shared parental responsibility, unless there is abuse or family violence as referred to in section 65D(2) and/or the presumption is rebutted by evidence that suggests equal shared parental responsibility would not in the circumstances be in the interests of the child.

6. The evidence in this case, while not going so far as to enable me to make a positive finding that the father physically abused D as alleged, in the circumstances of the uncontested evidence of the mother, and by reference to the matters raised by the Family Consultant and supported by the ICL, enable me to find that it would not be in the best interests of the children to have shared parental responsibility.

7. Accordingly, the presumption in section 61DA is rebutted and it is not intended that any parenting order will provide for the parents to have equal shared parental responsibility.

8. I must still apply the relevant provisions of section 60CC of the Act.

9. The mother has had the primary care of the children and demonstrated the capacity to care for the children’s emotional and physical needs, including the unique demands of the eldest child D. The mother has sought the assistance of experts to address N’s behavioural difficulties and to minimise the impact of these proceedings on both children. There appears to be a close and loving relationship between the mother and the children.

10. The mother has shown an intention to facilitate a meaningful relationship between the children and their father provided it is done so in a safe and age appropriate manner. Similarly, her actions in recent months indicate a willingness to foster the children’s relationship with the father’s children from a previous relationship and other members of his extended family. This is no small undertaking given the often tense relationship between the mother and the parental grandmother.

11. There are no issues in respect of the practical difficulties in the expense of a child spending time with and communicating with the father. Although communication between the parties conducted entirely via text messages and emails could hardly be described as ideal the mother’s evidence suggests it is adequate.

12. I am satisfied that an order for time with the father as agreed between the parties is entirely appropriate and in the best interests of the children.

13. Accordingly I make orders as set out at the commencement of these reasons.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 March 2014.

Associate: 

Date:  13 March 2014