Vince and Nester

[2008] FamCA 135

FAMILY COURT OF AUSTRALIA

VINCE & NESTER [2008] FamCA 135

FAMILY LAW – CHILDREN – Living with – spending time with

APPLICANT: MS VINCE

FIRST RESPONDENT: MR NESTER

SECOND RESPONDENT: MRS NESTER

INDEPENDENT CHILDREN’S LAWYER: Mr Couper

FILE NUMBER: BRC 3315 of 2007

DATE DELIVERED: 28 February 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 25 & 26 February 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Smith of Smith and Associates, Brisbane

SOLICITOR FOR FIRST RESPONDENT: Mr Sharma of Sharma Lawyers, Brisbane

COUNSEL FOR SECOND RESPONDENT	Mr Barataraj instructed directly
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr G Couper, Solicitor, of  Brisbane

Orders

1. That the child of the relationship, … born … July 2003 (“the Child”), live with the mother.

1. That the Mother be solely responsible for and decide about major long term issues in relation to the Child and it is recommended that the Mother  continue the Child in extra curricular activities.

1. Each parent be responsible for decision about the child’s day to day care, welfare and development while the child is in their care.

1. That the Father spend time with the child at all such times as may be agreed, but failing agreement as follows:-

(a)commencing 26 April 2008 each third weekend from 9.00 am Saturday to 5.00 pm Sunday until 25 July 2008 and thereafter each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday

(b)Commencing in the September/October 2008 school holidays, for the first week of each gazetted school holiday period from 9.00 am on the first Sunday to 9.00 am the following Sunday.

(c)For Christmas as follows:-

(i)In even numbered years from 9.00 am until 1.00 pm 25 December with the Mother to spend time with the Child from 1.00 pm 25 December to 6.00 pm 26 December.

(ii)in odd numbered years from 1.00 pm to 6.00 pm 25 December with the Mother to spend time with the Child from 9.00 am 24 December to 1.00 pm 25 December.

(d)For Easter as follows:-

(i)In even numbered years from 1.00 pm to 6.00 pm Easter Sunday with the Mother to spend time with the child from 9.00 am Easter Saturday to 1.00 pm Easter Sunday.

(ii)In odd numbered years from 9.00 am to 1.00 pm Easter Sunday with the Mother to spend time with the child from 1.00 pm Easter Sunday to 6.00 pm Easter Monday.

(e)That the Father communicate with the child by telephone at all reasonable times but in particular, each Wednesday between 5.00 pm and 6.00 pm with the Father to initiate the call and the Mother to facilitate the call.

(f)For the Child’s birthday:-

(i)Until the Child commences prep or school for a period of 4 hours as agreed between the parties.

(ii)From with the Child commences prep or school:-

(a)If such day falls on a school day, then for a period of 2 hours as agreed between the parties.

(b)If such a day falls on a non-school day, then for a period of 4 hours for each parent as agreed between the parties.

(g)For the Father’s birthday:-

(i)Until the Child commences prep or school, from 9.00 am to 5.00 pm.

(ii)From when the Child commences prep or school:-

(a)If such day falls on a school day, then for a period of 2 hours as agreed between the parties.

(b)If such day falls on a non-school day, then from 9.00 am to 5.00 pm on that day.

(h)For the Mother’s birthday:-

(i)Until the Child commence prep or school and should the child be spending time with the Father, then the Father is to return the Child to the Mother form 9.00 am to 5.00 pm on that day.

(ii)From when the Child commences prep or school:-

(a)If such days falls on a school day and should the Child be spending time with the Father, then the Father is to return the Child to the Mother for 2 hours as agreed between the parties.

(b)If such days falls on a non-school day, then from 9.00 am to 5.00 pm on that day.

1. (a)That a moratorium be placed on the Paternal Grandmother spending time or otherwise communicating with the Child for a period of two (2) months from the date of this Order being made, an that after the 2 months, the Paternal Grandmother be at liberty to see the Child only when in the Father’s care, and for this time to be supervised by the Father.

   (b)That the Paternal Grandmother spend time with the Child for the fourth week of the December/January gazetted school holidays, from 9.00 am on the fourth Sunday to 9.00 am on the following Sunday, and otherwise with the consent of the Father during the time the Child is otherwise spending time with the Father.

2. That all handovers occur, unless otherwise agreed, at the front gate of the Mother’s residence at the start of the time and at the front entrance of the Father’s residence at the end of the time save for that referred to in paragraph 5, where changeover at the end of the time shall be at the gate of the Paternal Grandmother’s residence.

1. That the Father is authorised to liaise with the Child’s day care, schools and medical practitioners, including any specialists, about their ongoing educational and health needs and the Father is authorised to receive copies of any document the Mother is entitled to receive including, but not limited to, school reports, parent/teacher interview notifications, school newsletters, school photograph order forms and medical reports.

1. That the Mother keep the Father informed of the details of the medical practitioners for the Child in their care and advise in writing of any change to that information within 7 days of such change.

1. That the Father refrain from placing the Child on any medication unless urgently required without first obtaining the written consent of the Mother.

1. That each parent is authorised to attend any of the Child’s day care, school or extra-curricular activities that a parent is entitled to attend.

1. That each parent keeps the other parent informed of their home address and contact telephone details and advise the other parent in writing of any change to that information within 7 days of such change.

1. That each parent informs the other parent, as soon as reasonably practicable, of any serious illness or hospitalisation of the child.

1. That each parent refrain from denigrating the other parent , their partner or members of the other parent’s family to or in the presence of the Child and will take all reasonable steps to prevent others from doing so in the presence of the Child or remove the Child from the presence of such discussions.

1. That, without admission, neither party use illicit drugs or consume alcohol to excess while the Child is in their respective care or 12 hours beforehand.

1. That the Paternal Grandmother and the Father be restrained and an injunction issue from taking the Child to a medical specialist, unless it is an emergency, without the written consent of the Mother, first had and obtained.

1. That all parties refrain from smoking tobacco in the presence of the Child or bringing the Child into contact with tobacco smoke.

1. That a communication book will travel with the Child to and from the periods of time the Child spends with the Father and only the parents shall make entries in the book.

1. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Vince and Nester is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC3315/2007

MS VINCE

Applicant

And

MR NESTER

Respondent

And

MRS NESTER

Respondent

REASONS FOR JUDGMENT

1. This is a most unfortunate and unhappy application in that it relates generally to three children, two of whom are children who are not subject to this application, but one who is.

2. The applicant, the mother, formed a relationship with the respondent, the father, in or about the year 2000.  As a result of that relationship a child was born, she being born in July 2003. 

3. The mother already had a child from a previous relationship, B, and subsequently has had another child, who is about 10 months old to another gentleman.

4. The facts surrounding the relationship of the applicant and the first respondent, the father, are set out more than adequately as is his want in the family report of Mr M, which was exhibited to an affidavit on 24 May 2006.  It is quite a tragic case.

5. Obviously, up until some time around about 2005/2006 both the father and the mother were riddled with drug addictions, particularly in relation to marijuana.  There may have been some suggestion of amphetamines; there was some concern about the mother's ingesting this type of drug expressed not only by the paternal grandmother, who is the second respondent, but also a member of the Department of Child Safety.

6. After seeing the mother and seeing the evidence before me, I am quite satisfied that she not only was not taking amphetamines, I am satisfied that she was heavily into marijuana, as was the father.  I think the father was much more a user than the mother, and regrettably this appears to have exacerbated his lack of memory.  His memory is not good.  He has great trouble remembering things, and he has rather an erratic personality.

7. Both of them, I am pleased to say, have given it up, and it is a very, very good thing that they have done it.  They must remember that the child comes first.  They do not, and they have to remember that their ingestion of marijuana is not going to help the child's welfare whatsoever, and it is important that the child knows not only her mother but her father as well.  She has that right.  They do not have any rights, parents, they have only duties, and duties are directed towards the child who is now not quite 5.  She deserves and is entitled to have her welfare looked after and being advanced, and it is not going to be advanced by drug-riddled parents.

8. Fortunately that matter now has been overcome, and as I have said, I admire the parents for taking a very strong step towards rehabilitation and they have done it, and I am proud of them for what it is worth.

9. The child came into the possession of the paternal grandmother - that is the mother of the father - in or about the year 2004.  She was put there voluntarily, as I understand, by the mother with the assistance of the Department of Child Safety.  The mother was not capable at that time of adequately looking after her children.  The child B might have been taken away from her at or about that time.

10. The child was put into the care of the paternal grandmother.  Subsequently, in about the year 2005 or late 2004 the mother sought and got a recovery order for the child - towards the end of 2004 - and was placed back in her possession, but once again, she was unable to handle the child; she lost B for a while; B came back into her possession, and the child was placed in the care of the paternal grandmother.

11. The paternal grandmother, I make it quite clear at this stage, is a well-meaning but regrettably misguided paternal grandmother.  She was afeared at that time, and there was much to support her fear, that both parents were incapable of adequately looking after the child.  That was the case, and both parents recognise that and concede that they were a mess.

12. There was a great deal of violence in the relationship between the parents.  There was some suggestion by her to Mr M in that report to which I have herein before referred that he broke her nose on three occasions.  She alleges she was assaulted whilst pregnant with the child, causing her severe injuries.  That is something fortunately in the past.

13. There is no chance now of the parents reconciling.  It appears as though he was involved in a ménage a quattro, perhaps I should say, initially with the mother - and this is not a Court of morals, but I do not think that that is in the best interests of the child that there was that relationship.

14. The paternal grandmother does have a concern that the father and the mother might reconcile.  I am quite satisfied after seeing them that that will not happen.  The mother has had a relationship with a Mr G who is the father of her youngest child, and it appears as though that relationship is continuing, and that there will be little chance of there being a reconciliation between the father and the mother.  That of course, with great respect to the paternal grandmother, gets rid of one of her concerns.  She is concerned that there may be a reconciliation, and she is concerned for the child’s wellbeing because of the violent and dysfunctional relationship between the mother and the father.

15. Since 2005 the well-meaning but misguided paternal grandmother has caused a great deal of concern on the part of the mother, and to a lesser extent on the father.  She has totally taken over.  She has become insofar as the mother’s eyes is concerned, a misguided busybody. 

16. She has stopped the mother having contact, notwithstanding that the contact was ordered.  She decided that she was the person who would decide whether or no - and I use the word contact advisedly - whether or no the mother would have contact.  She unilaterally on two occasions - one in October 06 and one in May 07 - ceased contact between the child and the mother.  This is not to the advantage of the child.  She has frequently said that she is willing and quite happy to hand the child back to the mother so long as the mother can prove that she is able to adequately look after the child. 

17. I am more than satisfied on the evidence before me, having seen the mother, having listened to the evidence, and in particular having listened to the evidence of Ms D who has filed a recent report, that she is more than able to adequately look after the child. 

18. Why do I say that?  Because in particular I refer to the concerns expressed by Ms D and to a lesser extent by Mr M, the paternal grandmother's inability to adequately control the child.  The child, it is suggested, has ADHD. 

19. The mother doubts that, and from the evidence before me as contained in Ms D’s report, and to a lesser extent in the mother’s affidavit, it does appear to me that there may be some doubt that she has it or not.  More of Dr L anon.  Dr L is a paediatrician who has been sought out by the paternal grandmother.

20. She is a difficult child.  The grandmother finds exceptional difficulty in controlling her.  She, in a letter, sets out the various things of which she complains about the child.  She sets out the complaints, the difficulties she has, first of all, in getting the child to bed.  Her endeavours to encourage the child to get to bed and go to sleep is the following:

    If I read you a story will you go to bed?

21. That in itself is not a way of controlling a child who may be exhibiting symptoms of ADHD.  She has difficulty in getting her to put her clothes on.  She has difficulty getting her dressed.  This does not appear to happen when she is in the presence of the father and the mother.  Ms D commented upon that most strongly that the child, when in the possession of the mother and the mother’s partner, listened to and accepted directions, perhaps albeit it not happily.  Also when she was with her father she listened to him and followed his directions; not with the paternal grandmother.  She is manipulating the paternal grandmother left, right and centre. 

22. Children of that age are particularly clever at manipulating people who allow themselves to be manipulated. The paternal grandmother has sought assistance from numerous agencies, psychologists, paediatricians, Department of Children's Services; it just goes on and on and on.  Ms D comments most strongly upon the attitude of the child which she feels may have been engendered by the continued adult investigations.  I refer to her report; see par 54 where Ms D said:

    Hence I was aware that [the child] was used to being interviewed and questioned by a plethora -

    and I emphasise the word plethora -

    of adults.  It was thus no surprise to me that [the child] displayed very adept avoidant technique behaviours such as singing out aloud, making lots of noise to block out questions that she did not want to answer.

23. The paternal grandmother is well-meaning, but misguided.  She has endeavoured to do her very best.  Physically, she has done a remarkably good job, and I commend her for that.  She has done everything she possibly could for this child.  Regrettably, she has become totally enmeshed with the child. 

24. She does not give the child sufficient boundaries, and in other words she is - perhaps I could say, and there is no evidence of this - but my opinion gives me the impression she is spoiling her rotten, and she is just building up a monster which, as she gets older, would be virtually impossible to control. 

25. She needs discipline.  It appears she gets it from the mother.  It appears to a lesser extent - and I am surprised about this - but it is there she gets it from her father.  She gets it from the mother’s partner. 

26. The father's personality is a little difficult.  He has had an exceptionally bad temper; he concedes that.  He is a walking time bomb, but he has had support - he has had at least one or two anger management courses.  He says he has had great assistance from them.  The mother concedes that he has improved over the last six months, but even in the witness-box he gives me the impression that he was pretty close to exploding on occasions.  He must stop that, if only for the benefit of the child.

27. Another concern is expressed by the grandmother, and this does worry me.  The child at this stage is avoidant of discipline in relation to crossing roads, of taking people's hands where she may be in danger.  That is one of the big concerns of the grandmother, and unfortunately I have seen in Mr M’s report that the father has on occasions, in Mr M’s view, shown a lack of responsibility in relation to the care of the children.  He refers to two occasions; one when he was asleep on a couch, and secondly, when he went outside for a cigarette.

28. That is not in the interests of the child. I was somewhat worried about whether in fact I should allow the child to spend time with the father unsupervised.  Very worried.  Particularly as I understand his house is on a main road and that whilst it may have a fence it has no gate. 

29. As I am going to allow him to have unsupervised spending time with - as our politician friends have said - I am going to make it conditional upon the fence becoming secure, and her not being able to escape from it.   He tells me from the Bar table, that the house is meshed, and that it would be difficult for the child to get out.  They can get out.  They can get through places rats cannot.  They are very quick to move, and so the responsibility is his.  I am taking perhaps a risk, a gamble on him.  I think that gamble is worth it because the child loves her father and she needs her father, and that is a matter which he has to think about.

30. My other concern is quite clear of course; that the child should return to the mother.  I have made that if not patently obvious - I will make it obvious now.

31. The next matter is whether or no the paternal grandmother should continue to have some form of spending time with the child.  Ms D is of the opinion that there should be a moratorium, a break to enable the child's discipline to perhaps be resurrected to enable the child not to be able to manipulate the grandmother; to stop - and the grandmother is guilty of this – the grandmother continually ringing the mother and interfering with the general contact that the mother has with the child, with the grandmother taking the child to a plethora of adults as Ms D observed, of having her being subject to vaginal swabs, going to SCAN teams and things of this nature on little or no evidence.  Ms D of course is of the opinion that it was baseless, and there may be much in what she says.

1. I think that there has to be a moratorium from the paternal grandmother.  I do not believe that she should have any contact with the child for at least a period of two months.

2. Subsequent to that, I am satisfied that the father will give me an undertaking that he would not allow his mother to come to his residence when he has contact with the child - and I use that word advisedly again - save for one period in three contact periods.  Mr Sharma, will you investigate that with your client?

RECORDED   :   NOT TRANSCRIBED

1. That is after a period of two months.  If it is necessary for me to indicate I do not believe this is a case where the legislative presumption should apply, I do not believe that this is a case where there should be joint parental responsibility, or even joint living with.  I say that because I do not believe it is in the best interests of the child for those matters which I have already explained.  I do not believe at this stage that the father will advance the child’s welfare - I have doubts about his ability to positively care for the child by watching her.  He might go off and smoke. 

2. I must talk about Dr L.  Dr L wrote a letter to me via my Associate.  First of all, I might suggest that that is totally inappropriate.  It should have gone to the independent children's lawyer, or even to the Registrar of this Court, not to a Judge.  I have made that clear to him. 

3. In it he expresses strong belief that the child should not be returned to the mother because of suspected, he said, ADHD, which even the grandmother now does not give tablets for the child, she perhaps not accepting that the child is ADHD, but he is also particularly keen upon the fact that the child is an asthmatic, and that there is heavy smoking in the mother's household which consists, according to the only evidence before me, of seven or eight to the mother a day, and 15 to the mother’s partner which take place outside the house in which the mother and her partner live. 

4. He was not of course informed that in fact the father, who has been living almost continuously at the paternal grandmother's residence, also smokes, and one would have thought that, tit for tat, what is good for the goose is good for the gander, and one would have thought that he would have commented upon that as well as being detrimental and deleterious to the welfare of the child. 

5. I must say that Dr L, after reading the family report and listening to some of the evidence whilst sitting at the back of the Court at my invitation, perhaps was not quite as strong as suggesting that would be a grave injustice to return the child to the mother.  I do not believe it is.

6. Many subsections of s 60CC have concerned me; I sincerely hope that I have touched upon them, and if this matter goes to another place that that other place will be able to interpret my reasons as showing that I have taken into consideration and emphasised the matters which I consider are concerning.  Particularly I am of the opinion, as Ms D is, that if in fact the child remained with the paternal grandmother there would probably be a total breakdown not only between the mother and the child, but also between the father.  The father, as the grandmother has said, is 34 years of age, it is about time he was allowed to grow up, and I do feel as though that, with great respect to the well-meaning but misguided grandmother, she is not allowing him to do that.  He has got to start taking responsibility for himself and particularly for the child.

7. I have had the opportunity of having put before me draft orders as suggested by all of the parties.  The child is involved in dancing and swimming, particularly I think on Mondays.  It has been suggested by the then counsel for the paternal grandmother - who as I said, has not had the courtesy to appear and ask me to withdraw - that an order should be made forcing the mother to continue the child at those extra-curricular activities.

8. The mother lives at least one half an hour from the child's school, and I feel that since I am of the persuasion that there should be sole parental responsibility, that is a question for her.  I recommend most strongly that she continue the child’s involvement with swimming, which I do not think is going to go much longer, and also dance; it appears as though she enjoys it.

9. I also touch upon the fact that there are two other children, they are half-siblings of the child, one older, one younger, and I think it is advisable for her future welfare that her time with those children be maximised.  As I have said before, the child will live with the mother.

10. So far as these orders are concerned, I have to hand the independent children's lawyer's draft which I am adopting, save for a couple of small amendments insofar as (2) is concerned I have inserted there and recommend extra-curricular activities events be continued.

11. Insofar as 4.1 is concerned, I say commencing 26 April 2008 each third weekend from 9 am Saturday to 5 pm Sunday until 25 July 2008, and thereafter each alternate weekend.  You keep an eye on her.

12. I also insert in par (5), (5)(a) which will be section - par 7 of the applicant mother's - are you getting this, Mr Couper - you are getting it all right - that will be inserted, and then the existing (5) will become (5)(b).

ORDER DELIVERED

1. One thing I had overlooked.  It has been suggested there should be a follow-up family report concerning the welfare of the child.  I am very much in favour of that.  I understand on instructions Ms McDiarmid, who was then counsel, submits the independent children's lawyer should be excused and so that there is some finality in this matter. 

RECORDED   :   NOT TRANSCRIBED

ORDER DELIVERED

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date: