Bronson and Winghem and Anor

[2009] FamCA 648

FAMILY COURT OF AUSTRALIA

BRONSON & WINGHEM AND ANOR [2009] FamCA 648

FAMILY LAW – CHILDREN – Interim orders – With whom the child lives – Father in goal – Child currently living with the Father’s partner –  Mother seeks that the child live with her – Some psychiatric issues with the Mother – Mother currently in a stable environment with support of her mother – Interim order that the child live with the Mother
APPLICANT:	Ms Bronson

FIRST RESPONDENT: Ms Winghem

SECOND RESPONDENT: Mr Winghen

INDEPENDENT CHILDREN’S LAWYER: Ms O’Neill, Solicitor, Legal Aid Queensland

FILE NUMBER: BRC 365 of 2009

DATE DELIVERED: 20 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 20 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Mother appeared in person

SOLICITOR FOR THE FIRST AND

SECOND RESPONDENTS:

Mr Mould, Solicitor appeared as town agent for the First Respondent Stepmother and Second Respondent Father

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER Ms O’Neill, Solicitor of Legal Aid Queensland appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The matter be designated Magellan.

2. A report be produced pursuant to Section 69ZW of the Family Law Act 1975 by the Director-General, Department of Communities (Child Safety).

3. Pursuant to Section 62G of the Family Law Act 1975, an updated Family Report be prepared for the Court by Mr P, Family Consultant, Brisbane Registry, Family Court.

4. For the purposes of preparing the Report, Mr P have leave to read the report of Dr M once it is filed, and any material produced on subpoena once permission to inspect has been granted to the Independent Children’s Lawyer.

5. The parties shall do all things, sign all documents and ensure the child, Q, born … March 2004, attend such appointments as are reasonably necessary for the preparation of the Family Report.

6. Prior to the Family Report being finalised the time between the Mother and child be supervised by Mr P on at least two (2) occasions pursuant to Section 65L of the Family Law Act 1975 and that Mr P give any of the parties or the child such assistance as is reasonably requested by either party in relation to compliance with carrying out of those parenting orders.

7. The child live with the Mother and that the Mother have parental responsibility for decisions concerning the daily care, welfare and development of the child.

8. The child spend time with the First Respondent Stepmother from after school Friday 31 July 2009 to before school Tuesday 4 August 2009 and each alternate weekend thereafter with the child to be collected from and returned to school for the purposes of changeovers, provided the Second Respondent Father Mr Winghem is not present during that time.

9. The Second Respondent Father to notify the Independent Children’s Lawyer in writing at least fourteen (14) days prior to his release from prison.

IT IS ORDERED THAT:

1. The Orders made on 12 February 2007 and 26 September 2007 be discharged.

2. Parties given liberty to apply on forty-eight (48) hours notice.

3. The proceedings be adjourned to the Judicial Duty List at 10.00 am on
           12 October 2009 at the Brisbane Registry of the Family Court.

4. Pursuant to s 62B and s 65DA(2), 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 entitled “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 under the pseudonym Bronson & Winghem and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 365 of 2009

MS BRONSON

Applicant

And

MS WINGHEM

First Respondent

And

MR WINGHEM

Second Respondent

REASONS FOR JUDGMENT

1. I am asked to make orders on an interim basis in relation to the future care of a five year old girl, Q.  The applicant (Ms Bronson) is the child’s natural mother.  The first respondent (Ms Winghem) is the child’s stepmother.  The second respondent (Mr Winghem) is the child’s father.  He is currently serving a term of imprisonment.  He took part in the proceedings by telephone link earlier today but has not been contactable in relation to the afternoon session.  He is not due for release until October this year at the earliest.  Thereafter, he will be on parole for a significant period of time, which involves serious restrictions on one’s movements and one’s freedom to engage in activities. 

2. An Independent Children’s Lawyer has been appointed in this matter, and the court is grateful for the assistance rendered.  The Independent Children’s Lawyer has subpoenaed documents from the Department of Corrective Services, from the Department of Child Safety, obtained various police records, and also obtained a brief report from a teacher at the child’s school

3. The child has an older half-sister, B, who is currently being cared for by the stepmother, as well as a half-brother J, who is the mother’s child.  J turned one on yesterday’s date.

4. A family consultant Mr P has prepared a report dated 1 April.  He has given evidence before me today. 

5. One noteworthy feature of the subpoenaed material to which I was referred included the sentencing remarks of the District Court Judge when sentencing the father earlier this year.  The statement of facts which were handed up to the Judge were agreed facts between the parties.  They make for horrific reading.  I have great concerns as to the wellbeing of a child being in that household.  The stepmother says that there has never been any domestic violence towards her.  I accept that at face value at the present time but note it would be the first relationship the father has been in where there hasn’t been serious domestic violence.  The father seems to be of the attitude, “Well, I’ve never hit [Q], therefore there’s not been any domestic violence.” 

6. The mother has the support of her mother, who lives about 10 minutes’ drive away from her residence, has attended at court today with her daughter, and is very supportive and is well able to assist her daughter in the parenting role.  Her mother says she is now in a stable relationship, a non-violent relationship, and she asks that Q be placed in her care.

7. Actually, the matter is all a little bit upside down so far as the orders are concerned, because the mother’s application was filed in March this year, shortly after the father was sentenced to a term of imprisonment.  She seeks equal time, and with both parties to be responsible for the long-term welfare and care of the child. 

8. The father filed a response document in which he sought that he have the sole parental responsibility, and the child predominantly live with himself and the stepmother.  This was filed in April this year when it would be very difficult for the child to live with both of them as the father was already in prison.  He sought an order the mother have weekend time from 5.00 pm Friday until 5.00 pm Sunday.  By paragraph 6 of his response document, he proposes that the time that Q spends with her mother be supervised by the maternal grandmother. 

9. The Independent Children’s Lawyer has today handed up draft orders, the effect of which is that the child predominantly live with her mother, so she becomes the primary carer, and the child have four nights a fortnight in the stepmother’s household.  There is no prohibition on the father having time with his daughter when he is released, but the Independent Children’s Lawyer asks for an order that the father notify the Independent Children’s Lawyer in writing at least 14 days prior to his release from prison.

10. At the present time the father supports the outcome that the children remain in the stepmother’s primary care for the time being.  The mother, as I understand the material, now supports the position adopted by the Independent Children’s Lawyer that, instead of being an equal split, it would be a 10:4 split in her favour. 

11. There seems to have been, certainly up until now, a good relationship between the stepmother and the mother.  That has been commented on by Mr P, and that is all to the good.  Young Q needs all the cooperation and communication between the adults in her life that is achievable.  Mr P was of the view they could have settled this outside a court arena, but that didn’t happen.  He opines that the stepmother is beholden to the paternal grandmother, who is strongly aligned with her son and quite hostile to the mother.  He gave evidence of witnessing a little vignette that occurred in the waiting area where the child wanted to rush to see her mother but was held back by the paternal grandmother.

12. The legal representative for the stepmother and the father has argued that since the orders were made in 2007 by Judicial Registrar Forbes, the child has been primarily in the care of the father and, rather than the court making an order now when all the evidence is not in, it is better to allow the situation to stabilise, and await a report from Dr M. 

13. There is reference to a diagnosis of borderline personality disorder, and a possible diagnosis of bipolar condition or post-traumatic stress disorder.  I note that those various diagnoses surfaced from a social worker and a psychologist.  Mr C is the social worker.  I have a high regard for Mr C’s reports and his operations as a social worker, but I have some doubts as to the validity of the diagnosis, in view of the traumatic life that the mother has had up until now.  The mother says she has had dealings with drugs over the years of a fairly high order, and she has also been the victim of serious physical violence. Dr M is able to see the mother for an appointment on tomorrow’s date, and I am sure she will be in communication with the Independent Children’s Lawyer in the event there is anything untoward. 

14. Whilst I appreciate the orders made in 2007 by Judicial Registrar Forbes, they were made prior to the knowledge of the father’s criminal behaviour surfacing.  They were purporting to be interim orders and, since then, it would appear that the mother has entered into a stable relationship.  She has the support of her mother, who has impressed me no end in her demeanour in the court, and she has now her young son, J, and there has been no adverse report from the department, or any other source, in relation to her parenting at the present time.

15. I am concerned at the lack of court dates available; that if a decision is deferred now, it can’t come back on until a date well into October.  The father is due for release at about that time.  Whilst I accept the child is not at risk in the stepmother’s care, it is a contest between the mother and the stepmother, and the law certainly places a presumption in favour of the mother in situations such as this. 

16. So, for the reasons given, I adopt the submissions made by the Independent Children’s Lawyer. I will make orders in terms of her draft. I will delete paragraphs 2 and 3 of that draft, and request a report pursuant to section 69ZW. Paragraph 5 of the orders will be that pursuant to section 62G, an updated report be prepared for the court by Ms P. I won’t give him a deadline in this matter. Paragraph 6, 7 and 8 can stand, 9, 10, 11 and paragraph 12. I will delete from paragraph 13 onwards, in that I will review this matter. I will adjourn it until 12 October 2009. I will also give liberty to apply so the parties can come back on before me in the event of urgent developments, for example, an adverse report of the mother from Dr M, or early release of the father.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  20 July 2009