STUBBS & STUBBS

[2010] FamCA 722

FAMILY COURT OF AUSTRALIA

STUBBS & STUBBS [2010] FamCA 722

FAMILY LAW – CHILDREN – where there are allegations of assault by the father – where the parties’ toxic relationship has severe impacts on the children – appropriate to reinstate the previous regime of care that the children spend time with the father

FAMILY LAW – INJUNCTION – orders that the parties are restrained from filing any further documents without seeking leave of the Court

Family Law Act 1975 (Cth) ss 60CC

APPLICANT: Mr Stubbs

RESPONDENT: Ms Stubbs

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 1974 of 2009

DATE DELIVERED: 11 August 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 11 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr McQUADE
SOLICITOR FOR THE APPLICANT:	CALDICOTT & CO

COUNSEL FOR THE RESPONDENT:	MS PARKER
SOLICITOR FOR THE RESPONDENT:	NORMAN WATERHOUSE

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR STEPHEN
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

1. The mother do deliver up the children D (“D”) born … September 2002 and N (“N”) born … April 2007 to the father at 5.00 pm today (11 August 2010) inside the Hungry Jacks restaurant at F, with the children to remain in the care of the father until Tuesday 17 August 2010.

2. Thereafter, until further order and subject to paragraph 3 hereof, the said children shall live with the parties as follows:-

   (a)with the mother, each alternate week from the conclusion of school or day care on Tuesday until the commencement of school or day care on the immediately following Tuesday, commencing on Tuesday 17 August 2010;

   (b)with the father, during the same period each intervening week.

3. The said children live with the father as an extension of the time they would spend with him in late September 2010 to include the entirety of the September / October 2010 school holiday period and concluding on Tuesday 12 October 2010, to the effect that the rotating week and week about arrangement in accordance with paragraph 2 hereof will recommence as and from Tuesday 12 October 2010.

AND BY CONSENT, IT IS ORDERED UNTIL FURTHER ORDER THAT:-

1. All handovers shall occur inside the Hungry Jacks restaurant at F unless otherwise agreed between the parties.

2. Both parties are restrained and an injunction is hereby granted restraining each of them from filing any further applications, affidavits or any other document in these proceedings without first obtaining the leave of the Court.

3. The previously listed directions hearing before the Honourable Justice Burr at 10.30 am on Monday 6 September 2010 is vacated.

4. A Directions hearing be conducted by the Magellan Registrar at 2.30 pm on Wednesday 25 August 2010 in order to advance the matter to a trial listing.

5. All interim applications be otherwise dismissed and removed from the pending list.

IT IS NOTED that publication of this judgment under the pseudonym Stubbs & Stubbs is approved 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

MR STUBBS

Applicant

And

MS STUBBS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today the Application in a Case filed by the father on 6 August 2010 and the Response to that Application in a Case filed by the mother this day.  Today’s hearing is also a continuation of proceedings that have been now before me for a number of months.

2. This continues to be a long running and bitter dispute between the parties which is having a severe detrimental affect upon the two very young children in these proceedings, D who was born in September 2002 and who is currently aged almost 8 years and N born in April 2007 and who is currently aged 3 years.

3. The impact upon the children can be seen from the multitude of materials on the Court file, including the brief summary of Family SA’s involvement with this family in a letter dated 14 July 2010, the various Affidavits and in the Family Report prepared in these proceedings.  It is also a matter which has had to engage the attention not just of myself, but also Federal Magistrate Cole at an earlier date prior to him transferring the proceedings to the Family Court.  His Honour’s reasons, after hearing argument, were delivered on 28 July 2009.  On 22 December 2009 I also delivered detailed reasons in this matter.

4. The difficulty for Federal Magistrate Cole and for me is linked to the very concerning allegations made by each of the parties as against the other, details of which are contained in both Federal Magistrate Cole’s determination and mine.  It is inappropriate and unnecessary to reiterate all of the detail which is contained in those reasons.   Suffice to say that even more problems have been identified by the parties in proceedings subsequent to my determination on 22 December 2009.  All of those allegations are troubling, as is the appalling state of the relationship between the parties. 

5. The impact upon D is particularly alarming and there is significant information before the Court as to the problems he is having at school and generally with his function.  Each blames the other for that.  Neither seems to perceive that the incredible toxicity of their relationship is almost certainly playing a significant part in that.  Presently they appear capable of sacrificing the interests of their children in their own individual quests to pursue the orders that they want in these proceedings.  Only the testing of the evidence in the trial of these proceedings will enable a Judicial Officer to be afforded to them an appropriate opportunity to craft orders which best represent the interests of these two very troubled young children.

6. Having reviewed all of the material which has been again placed before me, and in particular the material with respect to the allegations of the assault by the father upon D which interrupted the previous orders made by the Court, I am now satisfied that it would be appropriate to return to the regime which existed prior to the allegations most recently advanced by the mother.  I make no finding at this time as to whether or not the mother was motivated by malice in making those allegations and in effecting a termination of the father’s time with the children or whether or not she had genuine cause for concern.  I accept that some of the information she may have received about the alleged assault by the father upon D at the commencement of this particular action by her indicated the possibility of a serious assault and was different from the information now available to the Court.    The Court derives as much comfort as it is possible to derive in these bitter proceedings between the parties from the mandatory notification record dated 23 June 2010 and which is annexure marked “HIS 4” to the affidavit of the father filed on 6 August 2010, from which I quote:-

   “Student [D Stubbs] disclosed to ……… on 22/7/2010 that he had recently been ‘naughty’ while with Dad and that his fathers response when he refused to listen was to place his hand on [D’s] chest and push him against the wall.  [D] reported that he had a blood nose after this (after blowing his nose) but then he was really good for the rest of the night.  He also disclosed that he was frustrated because Mum threatens ‘time out’ when he doesn’t listen to her ‘all day and all night’.

   He reported that usually time out was ‘the quicker you go in the quicker you come out’ but when she threatened time out ‘all day and night he was frightened’.

   [D] also indicated that he was unhappy with his teacher at the Centre and intended to ‘get a club against her’.

7. It is not necessary, in my view, for there to be a reconsideration and a rehash of all of the reasons that would arise pursuant to consideration of Section 60CC of the Act. The same concerns as were expressed by Federal Magistrate Cole and by me earlier in these proceedings, continue to be concerns for the Court.

8. In all of the circumstances, I believe it is now appropriate to reinstate the regime of care for the children which has been in place now effectively since the Orders of Federal Magistrate Cole made on 28 July 2009.  In my view, it is also appropriate to endeavour to relieve the children from further exposure to the appalling relationship between their parents by injuncting the parties from filing any further applications, affidavits or any other document in these proceedings without firstly obtaining the leave of the Court.  It is also appropriate now to prepare the matter for trial so that an end to the uncertainty for the parties, and hopefully an end of some of the suffering being experienced by the children, can be effected.

I certify that the preceding eight (8) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  11 August 2010