Heinz and Western & Anor

[2012] FamCA 743

FAMILY COURT OF AUSTRALIA

HEINZ & WESTERN AND ANOR	[2012] FamCA 743
FAMILY LAW – CHILDREN – With whom the child lives – With whom the child spends time – Where the child has lived with the paternal grandparents for a considerable period – Where both the Mother and Father have drug problems – Where the child was born with a methadone dependency – Where the trial was adjourned due to the fault of the Mother – Where the Mother failed to appear – Inference drawn that the Mother is still suffering from a drug problem – Child to live with the paternal grandparents – Paternal grandparents to have sole parental responsibility – Father to have supervised time with the child – Mother to have telephone contact with the child and such time as agreed between the parties
APPLICANTS:		Ms J Heinz and Ms W Heinz

FIRST RESPONDENT: Ms Western

SECOND RESPONDENT: Ms R Heinz

INDEPENDENT CHILDREN’S LAWYER: Ms Ferguson, Solicitor

FILE NUMBER: CRC 27 of 2011

DATE DELIVERED: 23 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 23 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Priestley of Counsel appearing for the Applicant Paternal Grandparents

SOLICITOR FOR THE APPLICANTS: Coastal Law & Conveyancing

COUNSEL FOR THE FIRST RESPONDENT: No appearance by the First Respondent Mother

COUNSEL FOR THE SECOND 

RESPONDENT:

Mr C of Counsel appearing for the Second Respondent Father

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hammond of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: GJ Legal Solutions

Orders

IT IS ORDERED THAT:

1. The trial dates of 23 August and 24 August 2012 respectively, be vacated.

1. The child, B born … 2006, live with the Applicant Paternal Grandparents.

1. The Applicant Paternal Grandparents have sole parental responsibility for the child in relation to major long term issues relating to the child.

1. The First Respondent Mother spend time with the child as agreed between the parties, but failing agreement, as determined by this Honourable Court.

1. The Applicant Paternal Grandparents shall ensure that when the child is in their care she shall attend extra-curricular activities, such as swimming, horse riding and music.

1. Once the child commences school, the Second Respondent Father shall spend time with the child supervised by the Applicant Paternal Grandparents each alternate weekend to that when the First Respondent Mother is spending time with the child, and that time shall be no more than two (2) hours or as otherwise agreed between the Applicant Paternal Grandparents, and the Applicant Paternal Grandparents undertake not to leave the child unattended or unsupervised with the Second Respondent Father.

1. The First Respondent Mother shall be at liberty to telephone the child each Tuesday and Thursday evening between 7.00 pm and 7.30 pm, unless the First Respondent Mother is spending time with the child, in which case the Applicant Paternal Grandparents shall be at liberty to telephone the child at the same time and days.

1. The Applicant Paternal Grandparents will notify the First Respondent Mother as soon as practicable in relation to any serious illness or accident which the child may have when she is in their care and these Orders shall act as an authority to any treating medical practitioner to discuss the child’s diagnosis, treatment and prognosis with the other party.

1. These Orders act as an authority to any medical practitioner the child attends to allow the medical practitioner to provide any information the Applicant Paternal Grandparents may request in relation to the child.

1. These Orders act as an authority to any school the child may attend to provide any information the Applicant Paternal Grandparents may request in relation to the child from time to time and to forward to either grandparent copies of all reports, newsletters and notifications with details of all functions, parent and teacher nights and other activities to the grandparents at the expense of the grandparent so requesting.

1. None of the parties, as well as the First Respondent Mother shall denigrate any other party involved in this matter within the child’s presence or hearing, and shall remove the child from the presence of any other person so doing.

1. The Applicant Paternal Grandparents and the First Respondent Mother shall keep each other informed of their current residential address and telephone number.

1. The First Respondent Mother pay the costs as assessed of the Applicant

   Paternal Grandparents thrown away on 9 May 2012.

1. The execution of Order (13) hereof, be suspended for a period of twenty-one

   (21) days to enable the First Respondent Mother to apply for the setting aside of

   such Order upon the filing and serving of adequate documentation.

1. Should the First Respondent Mother not apply for relief on the question of costs at the expiration of twenty-one (21) days hereof, the matter is to removed from the pending cases list awaiting finalisation.

1. The Family Report of Ms C dated 3 November 2011, be released to the Children’s Court and any relevant legal representatives, if required.

1. The Independent Children’s Lawyer be discharged.

1. 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 by this Court under the pseudonym Heinz & Western and Anor 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 BRISBANE

FILE NUMBER: CRC 27 of 2011

MS J HEINZ& MS W HEINZ

Applicants

And

MS WESTERN

First Respondent

And

MS R HEINZ

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter which has had a slightly chequered career.

2. It came before me, initially on 9 May 2012, when the first respondent, Ms Western, was represented by Andrew of counsel.  Mr C appeared on behalf of the second respondent Mr R Heinz and Priestley of counsel appeared on behalf of the applicants, who are Ms J Heinz and Ms W Heinz, the grandparents of the subject child, being B, who was born in 2006.

3. This is one of these cases where, unfortunately, both parents, that is, the first and second respondents, have had problems with drugs.

4. On the first day of the hearing the case was proceeding, when it appears as though, by way of a third party, some person in the back of the Court was endeavouring to give to the first respondent, the mother, certain advice which appears to have been contrary to that given and tendered to her by her experienced counsel, Andrew.

5. As a result of this, Andrew felt that he could not longer proceed with the matter and requested he be given leave to withdraw.  In the old days, of course, it would have been tantamount to returning the brief which he, in effect, did. 

6. And thereafter, as a direct result of that, which is agreed to by all the present parties that the matter was adjourned.  I make it quite clear, the mother has not appeared today and I refer to exhibits 1 and 2.  The present parties have been put to inconvenience. 

7. The applicants, the paternal grandparents, who have had possession of the child for a considerable period, and are going to have possession of the child and sole parental responsibility for the child in future, are not legally aided and they have been put to considerable expense in their coming back to Court some three months later because, as it appears from my own observations, upon the interference of a person who I am unaware as to whether in fact was legally qualified and I do not think so.

RECORDED:   NOT TRANSCRIBED

1. I am mindful of course of the requirements of the Act under section 117 that I have to decide various things.  Two of the most important things as far as I am concerned, is whether the action of the first respondent mother is such that it takes it out of the so-called norm of normal adversarial proceedings.  To me it appears quite clear, on the evidence before me, that had it not been for the interference of this other person, whoever it may be, and her reliance, obviously her reliance upon his advice which was contrary obviously to the advice of her legal representative, this matter would have been resolved at least by the second day.

2. The second respondent is the father of the child.  He, himself, has, drug problems and his attitude has been commented upon by the family consultant.  The mother is a drug addict.  She has, as I understand it, had problems with drugs since she was 14 and the subject child, the child, was born with a methadone dependency.  The mother has been on methadone treatment for some, for five years at least.  She indicates that in her view she does not have a drug problem.

3. Methadone is, on evidence which has been put before me in more cases than I would like to look at, is worse than heroin.  It is more highly addictive and it is necessary and it is very difficult to be able to dispense with the necessity of having it.  It is a highly dangerous drug and it is only becoming clear nowadays how highly dangerous it is, comparatively recently.  However, she is addicted to methadone.  She has not seen fit to appear here today indicating in this letter that she is suffering an illness and receiving treatment.  I would have thought that an inference that I could draw from that quite clearly is that she is suffering from some drug problem.

4. She has not seen fit to appear here today.  Notwithstanding the offer made by the applicants that she have some contact with the child, I do not think it would be in the child’s best interest to see her mother who may or may not affected by drugs, to expect to rely upon her mother to show responsibility which she would not be able to do if affected by drugs and further I think it is unfair and not in the child’s best interests that the attitude of the mother towards the parental grandparents as set out in the affidavits filed the 14^th, should in fact be rammed down the child’s throat.

5. She has no means that I can find of paying any order for costs.  She does not have, on the material before me, any property.  There is evidence that she was living in a car for some time.  However, it has fallen from Priestley of counsel that, in fact, the mother has allegedly suffered some serious injuries as a result of criminal conduct towards her.  Whilst he has no evidence that she has made an application to the Victims Compensation Tribunal, it would appear that there is a probability that she could make such application.  She may receive some moneys, depending of course upon the injuries, it could be somewhat substantial.

6. Consequently, I am able to come to the conclusion, without nothing more, that in all probability she may have the capacity to pay costs.  Because she has not appeared, I was concerned that she should have been given some notice in exhibit 3.  In exhibit 3, the solicitors for the applicants have indicated to her, inter alia, that should she not – should they succeed – that they say:

   Please note that if our clients are successful in obtaining the orders that they seek, we will be seeking a costs against you for the costs thrown away on the two hearings.

7. She has had that notice, but I am hyper-cautious of making orders for costs when they do not appear as a result of some cases in the Full Court and consequently my order will be – costs are sought by the second respondent since he is legally aided and he has a statutory duty to apply for such costs.  In all the circumstances I will, unfortunately, leave those costs for the taxpayers to pay and not the first respondent.  I understand there has been no application made by the independent children’s lawyer who, as I have said, as far as I am concerned, has acted in the highest ethical standards that I could expect in this matter.

ORDERS DELIVERED

1. I note, of course, in the matter of Rosa v Rosa [2009] FamCAFC 81 which was in the High Court some two years ago, or two or three years ago now, it is necessary for me to decide whether, in fact, there has been significant and substantial contact ordered and whether such contact is reasonably practicable.  From what has fallen from me it would appear quite clearly that the mother is perhaps a person who is unable to put the child’s welfare first and as a result thereof I have limited her contact and I consider that, notwithstanding her contact is limited, that in all the circumstances it is significant.

2. Insofar as it being reasonably practicable, we have no idea where the mother is, save we think she is the D Town area and it could be that she is living in a car.  Consequently I am unable to say whether the contact is reasonably practicable.  It is a matter for the mother to show some responsibility to kick the methadone or any other drug that she is on and show the child the child’s right to see a mother who is reasonably normal.  Order accordingly.

RECORDED:   NOT TRANSCRIBED

1. The independent children’s lawyer is discharged.  Should the first respondent not apply for relief on the question of costs, the matter is removed at the expiration of 21 days from the pending cases list.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 23 August 2012.

Associate: 

Date:  23 August 2012