Stockhausen (Donohue Montgomery) v Valda Willis

• Jurisdiction: Jamaica
• Judge: Anderson J. ,ROY K. ANDERSON
• Judgment Date: 16 July 2008
• Judgment citation (vLex): [2008] 7 JJC 1601
• Court: Supreme Court (Jamaica)
• Date: 16 July 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2004/HCV2920

BETWEEN

DONOHUE MONTGOMERY STOCKHAUSEN

CLAIMANT

AND

VALDA WILLIS

DEFENDANT

FAMILY LAW - Custody - Consent Order - Application to amend - Custody and access of unmarried parents of child - Jurisdiction of court to order supervised access only - Children (Guardianship and Custody) Act

1 THIS REPLACEMENT PAGE 1 NOW CONTAINS THE SUMMARY OF POINTS INVOLVED IN THE INSTANT CASE. IT IS BEING ADDED IN THIS WAY TO AVOID HAVING TO RE-PRINT THE ENTIRE 20 PAGE JUDGMENT.

2 Application to amend previous Consent Order with respect to custody and access of unmarried parents of child; whether access is right of the child or the parent; Under existing Order, Child subject to periodic psychological/psychiatric evaluation with reports to be sent to the Court; Paramountcy of interests of child; Evidence of circumstances placing child at risk where access unsupervised. Jurisdiction of court to order supervised access only, where in the interests of the child. Children (Guardianship and Custody) Act section 7 and 18..

Anderson J

3 In this highly unfortunate matter involving a claim for custody of a minor child (to whom I will refer as A) the claimant, father of A, seeks a variation of a Consent Order which I made when the matter first came before me about three and a half (3½) years ago. At that time I signed off on a consent arrived at between the Claimant and the Respondent, the matter of A in terms of an Order which gave custody to the father. The order also gave to the mother, the right to have access to the child between midday Saturday to midday Sunday, on four (4) weekends per month; as well as two weeks in the summer and a week during the Christmas vacation.

4 As part of that Order, at paragraph three (3) I ordered that A was to be subject to "educational and psychological - psychiatric evaluation at the end of each school term for the next two (2) years up to Summer of 2007 and a report sent to the Court on each occasion."

5 The reports have been duly submitted and A's father, based partly upon these reports, as well as on his own observations of the child who is now about to go High School, having been successful in the annual Grade Six Achievement Test (GSAT), seeks a variation of the Order to withdraw the rights of unrestricted access enjoyed by the mother. The application seeks to substitute supervised access, and is supported by two (2) affidavits of the father as well as one (1) by his common law companion, Mrs. Joy Crawford.

6 The grounds being advanced in support of this application are as follows:-

• (A) The Application for variation of the consent order of 11 ^th February 2005 with respect to access of the Respondent to the child is sought pursuant to the court's inherent parens patriae jurisdiction over children and pursuant to section 7(5) of the Children (Guardianship and Custody) Act) which permits and order for custody and access to be varied or discharged by a further order.

• (B) The Application is made under liberty to apply which was granted to either party.

• (C) That, over the three-year period since the order was made in February 2005, the child's access to his mother on the scheduled weekends and periods during the vacation is having a detrimental effect on the child's physical stability, emotionally and spiritual well being and development.

• (D) The Defendant's home environment continues to represent a danger to the child in that the child, who has been now diagnosed with Attention Deficit Hyperactivity Disorder, is still continuously exposed to the smoking of marijuana by his brothers when he visits his mother. The combination of his prescription drugs used to control the disorder and the exposure to second-hand marijuana smoke is most likely psychotropic, results in the child misbehaving when he returns from his mother's home and causes the child to experience pronounced severe mood swings where he presents a danger to himself at home and to his school mates at school which is evidence by the fact that he has been suspended from school a number of times over the past three years for violent conduct and use of a foul language.

• (E) Further, due to the fact that the existing order dated 11 ^th February 2005 provides access to the respondent mother for four weekends per month, the child's spiritual development is being hindered as he is not able to go to Church to receive much needed religious counseling and guidance, as the Respondent does not see to this aspect of his upbringing when is with her on the weekends which coincides with the time when the child would normally go to Church.

• (F) Additionally the child does not take his medication during his access periods with his mother.

• (G) Further, the evidence from the child's school reveals that the child is at a critical juncture in his development, in that he is poised to commence secondary level education in September 2008 having just sat the Grade Six Achievement Examination (GSAT). In preparation for a new educational environment, it is critical to his development and stability that he remain on his medication and avoid situations which will distract him from his regular daily routine which is in danger of being jeopardized due to contact with the mother which results in his experiencing and becoming distracted, moody and unable to settle down for educational instruction.

7 I should point out that although service of the Notice of Hearing as well as the supporting affidavits had been effected on the Respondent, she neither appeared nor was she represented. Nor were any affidavits filed on her behalf. All the evidence before me is therefore the uncontradicted averments in the affidavits of the claimant and Ms. Crawford together with the supporting exhibits.

8 The evidence from the affidavits

9 The evidence available is to be gleaned from the affidavits of the Claimant father and his companion who lives with him. The evidence which I have accepted is that on the occasions when he visits with his mother pursuant to the terms of the previous order, he is generally in the company of two older sons of the Respondent who are much older than A is. Those brothers allegedly are smokers of marijuana. The Claimant avers that on occasions when he has been to the residence of the Respondent, the air is so thick with ganja smoke that it stings the eyes and assaults the nasal senses..

10 It is also averred that through discussions with A on his return from visits to his mother, it is apparent that these older siblings of A also watch pornographic movies in the presence of A. There have also been violent incidents at the Respondent's home involving one brother stabbing the other as well as violent exchanges involving the Respondent.

11 The evidence also reveals that A, who is now about to commence his secondary education, has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and is on medication for this condition. It appears that whenever A is with the Respondent, he does not take his medication, and there is also some concern as to the possible effect of ganja smoke on his medical condition. While he is visiting with his mother, he also does not attend church and so does not benefit from religious instructions. Among the recent developments which have emerged since the order of 2005 is that after visits with his mother, A is often subject to severe mood swings and fits of violent temper which places both himself and his schoolmates at risk. This is confirmed by a letter of April 8, 2008, from the principal of the Holy Childhood School Preparatory and Academy, which A attended before sitting the GSAT...