Stubbs & Stubbs (No. 2)

[2013] FamCA 701

FAMILY COURT OF AUSTRALIA

STUBBS & STUBBS (NO. 2) [2013] FamCA 701

FAMILY LAW – CHILDREN – Interim hearing –Allegation of assault on child denied – Husband on bail pending determination of assault charge – Approach of court to suspension of extant orders.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FamCA 1346
Miller & Harrington (2008) FamCAFC 150
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FamCAFC 16

APPLICANT: Ms Stubbs

RESPONDENT: Mr Stubbs

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Steven

FILE NUMBER: ADC 1974 of 2009

DATE DELIVERED: 30 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 30 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Parker

SOLICITOR FOR THE APPLICANT: Georgina Parker Lawyers

COUNSEL FOR THE RESPONDENT: Mr McQuade

SOLICITOR FOR THE RESPONDENT: Helen Mccance

Orders

1. That until further order all time between the father and D born … September 2002 made pursuant to orders of 9 May 2011 is suspended.

2. That the time between the father and the child N born … April 2007 pursuant to the said orders is to resume pursuant to those orders on Friday 31 May 2013.

3. That the application in a case filed 2 May 2013 and the response thereto filed 16 May 2013 are dismissed.

4. That the reasons for judgment this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stubbs & Stubbs (No. 2) 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

1. This discrete parenting dispute is about whether the court should either suspend the father’s time with his two children, D, age 10, and N, age 6, or alternatively, dismiss the interim applications of both parties.  There is a third possibility, which is to suspend D’s time but not N’s.  That is a position not really advocated by either party.  In my view, that is the appropriate order, along with a specific order for the father’s time with N to be resumed this weekend.  These are my reasons. 

2. The elephant in the room in this case is that the father has been charged with assaulting D and he has yet to face trial in the local Magistrates Court.  The dilemma is that he is on bail, pending the final hearing, the condition of which is that he is to have no contact with D.  That accusation of assault (sometimes inappropriately described as a disclosure) arose from a period of time at the end of January 2013 between the father and D.  No contact has since occurred. 

3. It is trite to say that this is a complex case.  Some of the indicia of that are:

   ·    the parties separated four years ago and are still litigating; 

   ·    there is an outstanding and recently reserved judgment of Dawe J, relating to a contravention of orders; 

   ·    there is another adjourned and therefore unresolved contravention application outstanding; 

   ·    D is said to have been diagnosed with Asperger disorder; 

   ·    in March 2011 and April 2011, the parties litigated over 12 days before O’Reilly J, and her Honour’s judgment and orders were on 9 May 2011, just two years ago. 

   ·    The documents before me are numbered 251 to 255, indicating that an enormous amount of litigious energy has occupied not only the parties but their lawyers and the courts; 

   ·    In addition to the volume of material, the parties have had significant involvement with social science professionals and, perhaps unsurprisingly, Families SA; 

4. It is also unsurprising and abundantly clear from the judgment of O’Reilly J that this was not only a dysfunctional family but one afflicted by crime, violence and the evils of the drug culture.  Also, and sadly prophetically for the reasons to which I shall return, O’Reilly J pondered whether this was the last the courts would hear of the parties.  Whoever is the cause of the dilemma – and it probably matters little – these children are caught in an emotional and conflictual warzone, and when this case ultimately comes to trial, the court should look to the experts and see what impact these dysfunctional engagements are having on the cognitive developments of the two children.

5. The mother was the applicant.  She filed her application on 2 May 2013 and relied upon her affidavit filed the same day. 

6. The father is the respondent.  He filed a response on 16 May and relied upon that affidavit that he filed the same day. 

7. Each party was represented by counsel or a solicitor, and the court had the assistance of an Independent Children’s Lawyer. 

8. As the Full Court said in Goode & Goode (2006) FamCA 1346 the procedure for making interim parenting orders will continue to be an abridged process as had been said in previous Full Court decisions.  It is important to note that the scope of inquiry is to be “significantly curtailed”.  Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to a separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

9. It is also important to note that the Court must have regard to the best interests of the child as the paramount consideration in deciding what interim parenting orders should be made.  The Full Court laid down a pathway for the conduct of interim proceedings.  I propose to follow that.  There is a preliminary point made by the father’s counsel that I should apply the principles and the rule which has become known as Rice & Asplund.  I do not propose to give that much consideration for two reasons.  First, both parties sought variation of the structure of the extant orders so each would face the similar problem.  More importantly, in SPS & PLS (2008) FamCAFC 16, Warnick J referred to how a court should deal with the problem of a judge being unable to determine this sort of preliminary issue on the papers particularly as to whether there was sufficient change of circumstances. That decision was referred to at length by the Full Court in Miller & Harrington (2008) FamCAFC 150.

10. No hard and fast rule can be applied but there must be evidence that justifies a reconsideration of the orders.  Bearing in mind that any such matter would be determined on the balance of probabilities, the Court needs to be satisfied that it would probably alter the orders on the basis of the evidence to be lead. 

11. In Miller, the Full Court set out in some detail the various considerations.  Their Honours there looked at the question of a summary dismissal, or striking out application as part of the process of the application of the Rice & Asplund test considered at a preliminary stage. Their Honours pointed out that the determination of the application of that sort of rule occurs within proceedings to which the application of Division 12A of Part VII of the Act applies.

12. More specifically, the application of the rule occurs as part of child-related proceedings within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound by the provisions of Division 12A. Included in the mandatory requirements upon a court are the obligations to decide which of the issues in the proceedings require full investigation and which may be disposed of summarily. The terms of s 69ZM of the Act, which set out the principles for conducting child-related proceedings also apply to a hearing in which the rule in Rice & Asplund is applied at a preliminary stage.  Section 69ZN(3) provides:

    The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. 

13. Whilst there is therefore ample legislative scope for the application of the Rice & Asplund principles, the question in every case is whether it should be applied.  In my view, it should not be here. 

14. A further tantalising issue was raised at the commencement of the hearing yesterday, which was said to go to jurisdiction.  It was said that there was no power – as distinct from jurisdiction – to alter bail orders affecting the father.  I accept that as a given.  The father’s position was that if this Court endorsed his entitlement to time with D, by effectively dismissing the mother’s application, he would then make a bail variation application.  The Independent Children’s Lawyer submitted that it was unlikely that a Magistrates Court would permit that application.  I agree but for a different reason.

15. In my view, there is a public policy issue here which this Court should treat seriously.  The mother’s evidence was the police told her the father’s bail condition excluded his time with D.  The father does not deny that.  Notwithstanding some argument about how that fits within Part VII of the Family Law Act 1975 (Cth) (“the Act”), it is a well understood principle that bail conditions are applied for a variety of reasons, one of which is to ensure the accused persons do not come into contact with their accusers. In respect of a relationship of parent and child, the principle must be viewed seriously but also cautiously because of the vulnerability and power balance of the child with the parent. Support for that principle can be found in s 69ZQ(1), 69ZT(1) and 69ZX(3).

16. It is fundamental to the determination of this application to observe that it has been determined on submissions relating to the law and the affidavit material filed.  The contested issues of fact are not matters about which the Court can, or should, make a finding. 

17. To the extent that they are relevant, the mother’s application sought orders that various paragraphs of the orders made on 9 May 2011 be suspended.  She also sought that until further order, the father be restrained and an injunction be granted restraining him, from attending the children’s school or extracurricular activities. 

18. The response by the father initially also sought a variety of orders including a suspension of O’Reilly J’s orders but that until further order both of the children live with him, and he have sole parental responsibility for them.  He also sought an order that until further order, the mother be restrained and an injunction be granted restraining her, from contacting the children or attending the children’s school.  In argument, counsel for the father abandoned the proposed substantive changes to the orders of O’Reilly J. 

19. The father also sought that the Court order the mother to attend for a psychiatric examination.  That part of the application was not raised in submission nor could it be, having regard to the paucity of the evidence which was simply reliant upon the mother’s belief.  I could not make such an order here, even if there was the power to do so based on that sort of evidence.

20. In May 2011, after a long defended hearing, O’Reilly J made the following findings: 

    ·    the children were attached to their father; 

    ·    the father had hurt D, see paragraphs 119, 125, 131, 135, 136 and 143; 

    ·    the father had a violent temper, paragraph 161; 

    ·    there should not be supervised time between the father and the children, paragraph 165; 

    ·    there was no violence established towards N, paragraph 169; 

    ·    there was no unacceptable risk, paragraph 174. 

21. Having made those findings, however, her Honour said this:

    The father should clearly understand, however, that although it is part of my duty to consider whether it is preferable to make the order least likely to lead to other proceedings, if [D] should make any further disclosures of violence to him by the father, it is likely not only that there would be immediate new proceedings by the mother and an immediate interim order for suspension of time or for only supervised time, but that such ultimately could lead to a final order in any new proceedings that the children spend no time with him or only supervised time. 

    In my assessment, doing the best I can, that point presently is not reached and, hopefully in the future, will not be.  If it is, I would predict that the Court would be swift to act in a timely way in new proceedings to limit the father’s time with the children to supervised time only or, indeed, potentially no time at all. 

    With that prophetic or perhaps portentous warning, I turn to the relevant facts.

22. The mother said that on Saturday, 8 December 2012, the children spent time with the father on an unsupervised basis.  Each of the children subsequently told her that their father’s home scared them and they could not sleep in the beds that the father had set up for them.  The father noted that no such comment had been made to him.  On 9 January 2013, D telephoned the mother during a period of time with the father and asked to be taken home.  The mother went out to the father’s home and collected the children at approximately 9.30 pm.  N was asleep.  She asked the father to wake N up so that she could return to the mother’s home with D and the father agreed.  The father made no reference to that by way of a dispute in his affidavit.  On 10 January this year, D stated “dad’s getting worse”.  D told the mother that the father and his mother had had an argument in front of D and N.  D said that the father shoved his key into his right collar bone and he showed the mother a red mark on his right collar bone.  The father denied any of those events occurred, including the argument in front of D and N.

23. On 17 January 2013, the children were in the care of the father.  The mother received a telephone call from N wanting to come home and she went at 3.30 in the morning to collect the children.  Although the father disagreed about the conversation with the mother, he did not really deny that the children actually went home that particular morning. 

24. On 18 January, the father and the mother attended before the Legal Services Commission in Adelaide for a conference with solicitors and an agreement was reached to amend the orders of O’Reilly J, excluding the time between the father and the children during the weekdays.  The father agreed that this occurred.  I must therefore conclude that there was something about the orders of O’Reilly J that were not working, but equally, I must find that the mother found it acceptable for the continuation of the significant part of the weekend time between the father and the children because she would not have otherwise agreed to that situation. 

25. On 24 January, D told the mother that his father had hurt him but he did not want her to report him.  D told the mother that on the previous evening, the father had hit him in the back of his head, and he demonstrated the movement of his father’s hand in that process.  Somewhat obtusely, the father denied that any of these events occurred at all.  The mother’s response in her evidence was that she comforted D and went downstairs to see N.  She did not indicate in her affidavit what reaction, if any, N had. 

26. On Thursday 24 January the mother said that D told her, “I don’t care, mum, I want you to report it,” and she concluded that that referred to the assault.  On the following day she took D to see a doctor.  The doctor told her in D’s presence that the problems that the child was experiencing, including soiling, were anxiety-related symptoms.  During the afternoon of that day D told her that he wanted to report the father to the police, as a consequence of which, she took D to Police Station 1.

27. Just exactly how that impacted upon D will no doubt be something very carefully examined at the trial.  According to the mother, the police told her that D should attend Police Station 2 on the following Saturday for an interview.  I pause here to observe there was a delay that had already occurred between the incident and the time of the discussion and then to when D spoke to the police.  According to the mother, N was not present at any of this.  D was then interviewed some days later by a man by the name of Mr CC.  The mother said that she was not present in the interview, but as a consequence of the interview, for whatever reason, the father was arrested and charged with aggravated assault on D.

28. That is the evidence upon which the mother relies in relation to the question of violence.  Importantly she adds that a worker from Autism SA has been working with D.  She undertook some tests with D and provided the mother with copies.  These tests indicated, according to the mother, that D considers the behaviour of his father as having a detrimental effect on his capacity to manage his emotions.  The mother then said that as a result of the father’s behaviour towards D, which she said occurred in the presence of N, N was at risk in the care of the father on an unsupervised basis.  That is hard to follow on the evidence.

29. All of this is disputed by the father.  His version is that his criminal defence solicitors told him that the expectation will be that D will be called upon to give evidence, and that this will quite clearly cause him considerable anxiety and stress.  One must think about that, having regard to the fact that the child is already suffering problems according to the doctor.  The father says that the mother is malicious in her intent to prevent him from spending time with the children, and that she would actively seek support from whatever quarter is available to her to do so. 

30. Finally, the mother in her affidavit said that on … April she spoke to the father and suggested that N spend time with him, supervised by a friend.  The father rejected that.  I am not at all clear what it would be that would supposedly be required to be supervised in respect of N. 

31. Thus there are no findings I can make here which would enable me to discern exactly what happened between the father and D in January.  There is certainly no evidence about N or the impact upon her of what occurred.  However, the evidence that supports the conclusion that time between the father and D should be suspended is the following: 

    ·    first there is a bail order;

    ·    second there is evidence outside of the violence issue which might enable me to say that the current relationship between D and the father is not working;

    ·    there is evidence of the autism worker indicating concern about the continued relationship between the father and D. 

32. It is those matters that justifies a suspension of the extant order, but only in relation to D. 

33. The mother’s reference to N does not amount to any more than a conclusion without factual basis. 

34. O’Reilly J set out the law extensively in her reasons for judgment, and I adopt her Honour’s approach, with respect.  The salient issues here are: 

    ·    first a Court should only make an order which is proper;

    ·    secondly, in determining what, if any, order should be made;

    ·    the best interests of the child are the paramount consideration;

    ·    thirdly, the objects and principles of Part VII set out the clear guidance to the Court that it should be very cautious about what it focuses on.

35. It is not just the protection of the children, but their rights to have a relationship with both parents that must be considered here. 

36. I am not in a position to make findings in respect of any of the matters that are set out in s 60CC in this case.  Notwithstanding that, I have read the matters that O’Reilly J set out in her Honour’s reasons, and I acknowledge that only two years has gone by.  It would appear however that on any view with the history that I have set out, the orders are not working.

1. The family violence issues in this case, having been mentioned and certainly denied by the father, remain to be tested.  The standards in this Court and in the Magistrates Court are entirely different, but I would not be so presumptuous as to say that the police have not diligently approached their task knowing that their burden of proof is much higher than it is in this Court.  Similarly, I would not be able to find here that there is foundation for the father’s assertion that this is just part of the mother’s malicious approach to denying him contact.  I am cognisant of O’Reilly Js findings relating to s 60CC which her Honour set out in paragraphs 194 onwards but there does not seem to me to be any real reason nor is there any ability for the Court here to make any specific findings about those same issues in this case.

2. For the reasons mentioned, I find it is not proper to make an order that D spend time at the moment with his father nor is it in his best interests.  That finding justifies a suspension of the order relating to D.

3. I do not find the same can be said of N.

4. Orders will be made accordingly and the interim applications are otherwise dismissed.

I certify that the preceding Forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 May 2013.

Associate: 

Date:  21 June 2013