Kesterton and Bass and Ors

[2014] FamCA 397

FAMILY COURT OF AUSTRALIA

KESTERTON & BASS AND ORS [2014] FamCA 397

FAMILY LAW – CHILDREN – Application by the mother seeking clarification about  supervision implications – notation made outlining the scope of supervision – consent orders made between the parties – where the mother’s time with the child is to be supervised by the maternal grandfather

Family Law Act 1975 (Cth)

APPLICANT: Ms Kesterton

FIRST RESPONDENT: Mr Bass 

SECOND RESPONDENT: Mr Kesterton

INTERVENER: Secretary, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Ms Wooi

FILE NUMBER: NCC 368 of 2012

DATE DELIVERED: 20 May 2014
Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 19 and 20 May 2014

REPRESENTATION

SOLICITOR/ADVOCATE FOR THE APPLICANT: Ms O’Rourke

SOLICITOR FOR THE APPLICANT: Legal Aid NSW (Gosford)

FIRST RESPONDENT: No appearance

COUNSEL FOR THE INTERVENER:	Mr Boyd of Counsel
SOLICITOR FOR THE INTERVENER:	Crown Solicitor’s Office
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wooi

Orders

1. The notation to order 7.2 will be as follows. 

   Supervision by the maternal grandfather includes:

   (a)his presence at his home at all times when the mother and B are present;

   (b)his presence with B and the mother whenever they’re away from the home for whatever reason;  and

   (c)the removal of B from the presence of the mother as necessary.

   AND does not include exclusive care by him, such as requiring B to sleep in the same bedroom as the maternal grandfather at night and a requirement that only he, the maternal grandfather, be responsible for assisting the child at the toilet and bathing him.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kesterton & Bass and Ors 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 NEWCASTLE

FILE NUMBER:  NCC 368 of 2012

Ms Kesterton

Applicant

And

Mr Bass

First Respondent

And

Mr Kesterton

Second Respondent

And

Secretary, Department Of Family And Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These have been applications by the mother, Ms Kesterton, now aged 20, and the Intervener, the Secretary Department of Family and Community Services.  The father has not attended for this hearing, but has been keeping in contact with his son through his own mother and the orders provide for that to continue.  Orders have been drawn up and agreed on.  There is one sticking point; the implications of supervision in a particular context.  The proposed orders provide for gradual transition for B, (“the child”) into the care of his mother.

2. For the next 12 months, the Minister, or his delegate, will have sole parental responsibility for the child born in 2011.   After that 12 month period, the mother, presuming relevant compliance, will assume sole parental responsibility for the child but will continue to accept the supervision of the Intervener for a further 12 months; that is, there will be Departmental supervision for the child to age five. 

3. During the first 12 months, the child will continue to live with his maternal grandfather in Town C and spend increasing amounts of time with his mother coming to that home.  That is a reference to notation 26 to the Orders.

4. The mother lives with her maternal grandparents in Town H.  She is restrained from living in her father’s household with the child other than in accordance with graduated orders. 

5. The Intervener requires the maternal grandfather (and the maternal grandfather is willing to do what is required), to supervise that graduating time.  The maternal great-grandparents already fit within the category as respite carers,[1]   who might be an approved nominee of the maternal grandfather, but otherwise it is him who is asked to supervise.

   [1]Notation 27 of Consent Orders made 20/05/2014

6. The transition will be up from one full afternoon and time on Saturdays each week, to Friday afternoons overnight into Saturday as well, after about two months.  There is provision for the maternal grandfather to seek written approval from the Secretary of the Department of Family and Community Services for his supervision to cease during the 12 month period.  Until that time or the expiry of 12 months, the maternal grandfather is directed to supervise the time between his daughter and grandson.  It is this supervision which has caused the parties some concern.

7. The mother is keen to clarify what level of supervision is expected in order to ensure that she does not inadvertently breach these orders.  It is understandable.  After the matter first came to the attention of the Court in February 2012, the mother initially did well; later relapsed as to her mental health and drug use in mid-2013; has recovered and progressed extremely well and is now considering her own health and has  severed unhelpful connections.  She is seeking appropriate professional help, continuing her education and has recently found employment.  She does not want to put in jeopardy the arrangement carefully put in place for her to take full responsibility for raising her son.  She simply wants to be sure of what is expected. 

8. The Orders are careful in their progression.  The ongoing management of the paternal grandfather is crucial to the safe transition.  I do not consider that a change from the word “supervision” to “in the presence of” adequately captures what is intended by all parties; that is, that the maternal grandfather exercise the authority he has from having residence for the child[2] to use the word of counsel for the Independent Children’s Lawyer, “to superintend,” that is, to be an active decision-maker about the child’s activities and the manner and length of time he spends with his mother.

   [2]Order 5 of Consent Orders made 20/05/2014

9. The child has lived with his maternal grandfather since his parents separated.  He was about three months old.  The Secretary of the Department reposes confidence in the maternal grandfather and it has been well placed.  “Supervision” is not a defined term.  It takes its meaning in Court orders from the context of the particular matter.  The Court very often orders supervision to protect children from risk, or at least to reduce unacceptable risk to acceptable levels.

10. The risk in this case is that the mother might again become mentally unwell and will revert to the use of illicit drugs or the misuse of prescription drugs when the child is with her.  Dr K, the chapter 15 expert in this matter, referred in his report that the mother can present well when still moderately unwell.[3] 

    [3]Report of Dr K dated 13 May 2013, par 58

11. Dr L notes in her assessment conducted on 7 January 2014, that the mother has the misfortune of having a strong genetic predisposition for mental illness and cannabis dependence.  She is presently in remission, symptom free, seeing a psychologist and managing the circadian rhythms that are crucial to her ongoing health.

12. It is the risk of relapse that is the risk being managed by the supervision by the maternal grandfather.  However, that measure of supervision needs to be balanced against the need for the mother to increasingly take on the tasks, responsibilities and pleasures of parenthood, with a sensitive stepping back or forward by the maternal grandfather as he observes her doing so. 

13. It seems to me it would be unhelpful to attempt to exhaustively define “supervision” but a notation to order 7.2 as to those elements which must be included and those which need not seem appropriate.

14. Accordingly, I make orders as sought, together with that notation, in accordance with the minute of orders proposed on behalf of the Intervener as described, being orders contained in paragraphs 1 to 25, inclusive, and I note the matters contained in paragraphs 26 to 29, inclusive.

I certify that the preceding ten (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 May 2014.

Associate: 

Date:  13 June 2014