Mortone and Mortone (No 2)

[2011] FamCA 386

FAMILY COURT OF AUSTRALIA

MORTONE & MORTONE (NO 2) [2011] FamCA 386

FAMILY LAW – CHILDREN - Whether current parenting orders should continue where the children (aged 12 and 16 years) oppose them - Whether child protective services in NSW and QLD should be invited to intervene in proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Mortone

RESPONDENT: Ms Mortone

INDEPENDENT CHILDREN’S LAWYER: Lee Dalton & Associates

FILE NUMBER: SYC 6390 of 2009

DATE DELIVERED: 24 May 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 24 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dalton

Orders

1. That the orders made by me, Justice Le Poer Trench on 21 January 2011 are to continue.

2. The recovery order issued to the Australian Federal Police on 20 May 2011 in relation to H be stayed pending further order. The Registry Manager is to notify the Australian Federal Police of that stay order.

3. Pursuant to Section 91B of the Family Law Act 1975, the Court requests the intervention of the Director-General of the Department of Human Services, Community Services in New South Wales to intervene in proceedings relating to the welfare of the child L born … November 1998.

4. Pursuant to Section 91B of the Family Law Act 1975, the Court requests the intervention of the Director-General of the Department of Communities (Child Safety Services) in Queensland to intervene in proceedings relating to the welfare of the child H born … September 1994.

5. Upon request from either Director-General, the Registry Manager permit inspection of the Court file by a person authorized by that Director-General and copying of any part of it to enable consideration of the request to intervene in the proceedings.

6. The registrar is to provide each Director-General with a copy of the orders and reasons made by me, Justice Le Poer Trench today and the orders and reasons made by me on 21 January 2011. To be included in those documents are details of how the Director Generals might contact the Independent Children's Lawyer.

7. I decline to release the Independent Children's Lawyer, at this time, from continuing to act for the child H.

8. I otherwise note the court awaits an update report from Dr W, psychiatrist which will be provided in September 2011.

IT IS NOTED that publication of this judgment under the pseudonym Mortone & Mortone (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6390 of 2009

Mr Mortone

Applicant

And

Ms Mortone

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an oral application made by the father today for the following orders: 

   a)That the orders made on 21 January 2011 continue;

   b)That the recovery order made in relation to the child, H, on 20 May 2010 be stayed pending further order of the Court; and

   c)That in the event Dr W makes notification to the Department of Human Services in New South Wales in relation to the child, L, and notification to the equivalent Department in Queensland in relation to the child, H, that the Court then invite each of the Director-Generals of those relevant state bodies to intervene in the proceedings. 

2. Those orders are supported by the Independent Children’s Lawyer and Mr Harper who appeared for the wife did not wish to make any submission against those orders.

Background

1. On 21 January 2011 I made orders which provided, at the conclusion of an extraordinary hearing, for the children, H born in September 1994 (“H”) and L born in November 1998 (“L”) to live with Mr and Ms B. Mr and Ms B have no relationship with those children but have been long-standing friends of their parents, Ms Mortone (“the wife”) and Mr Mortone (“the husband”) prior to the parent’s separation. They were well known to the children. Again, in an extraordinary circumstance, orders were made against the mother which prevented her from having any contact with the children.

2. The orders made were interim orders and the matter was otherwise adjourned to 9.00am on 26 September 2011 with an updated report to be prepared by Dr W, the single expert psychiatrist in the case, prior to that time.  In evidence this morning Dr W advised the Court that appointments have been made for the family in August of this year for the preparation of that report. 

3. Since the parents’ separation there has been a lengthy period of time in which the husband had no formal contact with the children. On 21 January 2011, when orders were made, the children were with their mother in Sydney Suburb 1 staying with Mr and Ms G. They are friends of the mother’s and I understand well known to the father. 

4. The orders made on 21 January 2011 were extraordinary. They were made in light of the single expert’s evidence about the state of the mother’s mental health and the adverse impacts on the children of continued exposure to that condition. They were also made in the light of the requirement under section 60CC of the Family Law Act 1975 (Cth) (“the Act”) that children should have the opportunity to have a genuine, bona fide and meaningful relationship with each of their parents. In this case the evidence had been that the children’s relationship with their father was exceedingly poor and their specific wishes were that they have no contact with him at all. H was 16 years of age at the time the orders were made and that is another extraordinary circumstance surrounding the orders made on 21 January 2011.

5. Somewhat contrary to my concerns about the implementation of the orders of 21 January 2011, the history which has emerged since, reveals that the children did transfer into the care of Mr and Ms B and continued to remain in their care until a time approximately two weeks ago.  The evidence which emerged this morning provides the court with the following further facts as to what has happened since 21 January 2011.

6. Approximately a fortnight ago on about Wednesday of that week Mr and Ms B left their home for the purpose of travelling to a family function which was to engage them for about a week.  With the agreement of the father, H and L were placed with persons whom they knew and agreed to stay with.

7. H was placed with Mr and Ms G in Sydney Suburb 1.  Mr B gave evidence that H was very excited about that placement and for a number of reasons, not the least of which was that she was provided with money to spend on a “shopping spree” whilst in Sydney Suburb 1 as a reward for her recent diligence at school and good marks in a school subject. Mr B said that L had also agreed to stay with Ms A in Town 1, NSW. 

8. On about 16 May 2011 L was with Ms A in a store in Town 1, NSW, and there met and spoke to Ms FF, a person known to her and apparently known to the mother. On about 17 May 2011 H had contacted Relationships Australia and the Independent Children’s Lawyer.  I am told that in the conversations that H had with each of those persons she appeared to be well acquainted with the content of an affidavit sworn by the husband on 11 May 2011 and the orders he was seeking.

9. I am further informed that the Independent Children’s Lawyer received emails from both children on 17 May 2011 confirming knowledge of the husband’s application before the court.  The application that is referred to is not the one I am currently considering but an application sent to the Court by the father’s solicitor dated 11 May 2011.  In that document titled “Minute of order sought by the father”, orders were sought as follows:

   a)That the children, H born in September 1994 and L born in January 1998 be separated;

   b)That L live with the father, Mr Mortone at “…” S Street, Town 1, NSW; and

   c)Such further order as this Honourable Court deems appropriate.

10. Those orders were accompanied by an affidavit sworn by the husband on 11 May 2011 in which he set out evidence to support his application.  When that application was received by the court it was allocated a return date for today, 24 May 2011.  However, before that date came to pass there was an urgent application made to me on 20 May 2011 for a recovery order which I will come to and set out shortly.

11. The facts reveal that on or about 19 May 2011 L took herself to Mr and Ms FF’s household and refused to leave.  On 20 May 2011 H, who had been staying with Mr and Ms G was taken to Sydney airport by Ms G to board a flight to Town 11, NSW where she was to attend a meeting with the Independent Children’s Lawyer.  Whilst at the airport she evaded Ms G and said that she was not going to Town 11, NSW. Then to use the husband’s counsel’s term, she “decamped.” It has come to pass that H is now in Town 4, Qld having apparently arrived there by aeroplane. I say apparently because there is evidence that she contacted persons, in particular one Ms C, a resident of Town 4, Qld, saying that she was at the airport and there was no one to meet her.  She subsequently spoke to her father and told him she was at Town 4, Qld airport. 

12. On 20 May 2011 somehow L knew that H was on her way by aeroplane to Town 4, Qld.  She told that information to Mr and Ms B.   On 20 May 2011 the husband made an application for the issue of a recovery order in circumstances where I was told that Mr and Ms FF refused to give up L to Mr and Ms B and that H was last seen at Sydney airport and her whereabouts were unknown.  On 20 May 2011 I issued the recovery order and provided it to the Australian Federal Police.

13. Following the issue of the recovery order Mr and Ms B took the recovery order to the police in their local area who executed the warrant and placed L in their care.  L has remained with Mr and Ms B since that time.  The Australian Federal Police ascertained the whereabouts of H but have told the husband that they will not remove H contrary to her wishes. On 21 May 2011 the husband contacted Ms C, the person H is apparently staying with and requested that she facilitate the return of H to Mr and Ms B.  He was told by Ms C that she was unable to do that.  H sent a text to her father stating that she was not returning.

14. Mr B told me that prior to leaving the local area to travel to the family function he had arranged with the husband and L for her to stay with Ms A.  L appeared happy and contented with that arrangement.  They left their home on Wednesday and on the way home the following Thursday they heard that L was at Mr and Ms FF’s household. Some contact was made between Mr B and Mr and Ms FF, people who he knew, but that did not give rise to the return of L to the house of Mr and Ms B.

15. As stated earlier, the recovery order was executed by police on Friday 20 May 2011 and L has been with Mr and Ms B since that time.  She was sick or becoming sick at the time.  On Saturday 21 May 2011 she appeared quite angry and appeared to have the flu.  By night time on Sunday 22 May 2011 she had recovered, to some degree, her health and disposition and was now presenting as a happy person again.  On Monday 23 May 2011 she went to school and whilst at school received a telephone call from H through the school office. I am informed that although “a bit teary” she has gone to school again today.

16. In relation to H, Mr B said he arranged with the husband for H to stay with Ms and Mr G in Sydney Suburb 1 and because she had been so diligent with her homework she had been given some money to go shopping.  In the telephone call last Thursday, when Mr B heard about L, he also heard that H was not returning. Since that time H has rung the house of Mr and Ms B and spoken to K, Mr B’s daughter and said she was waiting for a flight to Town 4, Qld.  She rang again at 11.00 pm to say that she had arrived safely in Town 4, Qld. 

17. Dr W gave evidence today by telephone. He had read the affidavit sworn by the husband on 11 May 2011 and the minute of order sought by the husband. Dr W had been given information about a call made by H to the Relationships Australia helpline.  Dr W said that the children’s knowledge of the husband’s application to separate them indicates that they have had some form of contact with their mother either directly or indirectly. Given the call made by H to Relationships Australia it appears that unbeknown to Mr and Ms B, H had a telephone available to her. He said the emails which the children have sent to the court and to the Independent Children’s Lawyer suggest the probability of direct communication between the wife and H, and to a lesser degree with L. 

18. Dr W said the children reflect a high degree of familiarity with the husband’s affidavit sworn on 11 May 2011, court processes, with what has happened in the past and who to communicate with in these circumstances.  It suggests the wife has, with the assistance of others, been able to orchestrate what has been happening.  Dr W stated that he understands the wife has a large network of supporters and they understand from her that an injustice has been perpetrated on both her and the children. 

19. So far as the future is concerned, Dr W thought that L should stay with Mr and Ms B and continue to explore her relationship with her father as has been happening since 21 January 2011.  If it was necessary for L to live with her father it would involve a change of school, however, given that it would be a change of school to one that was familiar to her Dr W did not think this would be such a hurdle for L.  He said that at Mr and Ms B’s house L seems able to put aside her feelings as she has been influenced by her mother and relate appropriately with Mr and Ms B and her father.  He says that L is less embedded in the mother’s thinking.

20. Dr W said that provided that L was quarantined from the mother and the mother’s supporters there are real prospects of her being able to improve her relationship with her father.  He recommended that the Department of Community Services be asked to intervene in the proceedings in order to oversee the security that the children require from their mother and her associates in order to allow the children to be able to develop a relationship with their father.  In relation to H, he said that she is more susceptible than L to being drawn into the wife’s beliefs. 

21. At the moment H appears to be in Town 4 in Queensland under the protection of somebody not known to the Court and potentially a child at risk requiring assistance and supervision of the Department of Communities (Child Safety Services) in Queensland. Dr W explained that if the wife has been continuing to influence the children and orchestrate what has happened it would not indicate that there was a worsening of her mental health.  There appears to be little that would flow from it in any event. Dr W said that it was unlikely that the mental health authorities would commit the wife against her will and if they did it would only be for a short period of time.

22. Although the wife was a party and present at the hearing of the recovery order on 20 May 2011 and today she has declined to give any evidence or any information to the Court in this hearing conducted today.  I have not been provided with any reason for that. 

23. Exhibits “X6” and “X7” are copies of emails L and H have sent to the Court for my attention.  I did not read those emails before I provided copies of same to the parties and sought their permission to do so.  I did, however, cause them to be provided to the Independent Children’s Lawyer so that she would have an opportunity to read them before being asked for input into whether they should be brought to my attention. 

24. Exhibit “X6” consists of two emails sent to the court by L on 23 May 2011. The first email from L is a pleading email which she addresses to me and commences by saying:  “I am writing this letter in desperation”.  She says that on 19 May 2011 she ran away from Mr and Ms B.  She said that the reason she is there is because I have ordered her to be there because her mother apparently has mental issues which is a very big misjudgement. She has used the school email to write to me.  She complains about the way in which Mr and Ms B treat her.  She says “I do believe the decision the court made to separate [H] and me from my mother was wrong”.  She said “You may think that my mother has mental issues but she doesn’t.  I can promise you on my life that she doesn’t.” 

25. L then sets out further complaints about her interaction with the Mr and Ms B.  Then she says, “They have so much contact with dad”. In relation to her father she says:

    Now dad wants full custody of me and I’m ready to commit suicide soon if all this keeps on going.  My dad has had a history of violent behaviour and I feel extremely scared around him but I truly hide it.  I remember my dad getting out knives and telling mum to kill him in front of [H] and I.  I remember my dad bashing mum up.  I remember dad chasing [H] and I on the motor bike.  I remember waking up in the night and dad being at the end of my bed.  I am scared of my father and I hope that one day you and everyone else can accept that for my feeling and support me on them.

26. The content of that email suggests the urgent requirement of the Department of Human Services, Community services in New South Wales to intervene in these proceedings and accordingly I made an order this morning requesting that they consider doing so. 

27. Exhibit “X7” is an email from H to the court dated 21 May 2011. It is addressed to me and again it is an entreaty that her wishes be heard.  She begins:

    You have probably heard what has happened.  [L] and I have both refused to go back to [Mr and Ms B].  The last four months we have spent with [Mr and Ms B] have honestly been the most miserable and traumatising part of my life.  I can’t even express it in my words the depth of wickedness, manipulation and deceit that both [L] and I have had to live with.  As a result of this my seizures have increased.  Right from the beginning it has been all my dad’s plan.  [Mr and Ms B] have been running together like a pack of dogs.  This is the very reason [Mr and Ms B] were appointed as our guardians.  Their first step has been successful, separating us from our beautiful mother and this is their next step, separating [L] and I.  The more they can separate and isolate us the more vulnerable and affected we become.

28. H states, “Yes, I flew to [Town 4, Qld] last night to stay with my aunty, uncle and cousins as they were the only people I could think of in my desperation to get out of the hell I was trapped in.”  She says that her aunty Ms C has told her she has to return but she says she is not doing that.  She further states:

    What you probably need to understand about my father is that everything he blames mum for he actually is/does himself.  Here is an example:  mum has been blamed for isolating and alienating dad from [L] and I and now that he has sole parent custody we have never felt more locked up, isolated and held hostage from not only mum but our own friends and family.  We have found out that my great aunt has been sending us letters but we have not received a single one of them.

    She concludes with a desperate plea that I help her and her sister.

29. The content of that email suggests the urgent need for the Department of Communities (Child Safety Services) in Queensland to intervene in proceedings and have contact with H and supervise her.  As I said at the beginning of these reasons, this case is an extraordinary one for the reasons that I have stated.  It is perhaps unfortunate that Mr and Ms B had to go away and leave the girls with other people. However, Mr and Ms B have put themselves out to a very large degree by caring for the children as they have since 21 January 2011 and nobody could blame them for wanting to have some time on their own. 

30. It is very difficult for the court to see where this case can go. At the moment the only viable option appears to be that L remains with Mr and Ms B.  The Australian Federal Police will not recover H from Town 4, Qld against her wishes because of her age. In the circumstances there is a degree of understandability about that and the Court would not want H to be manhandled as part of that process. However, what it leaves is a 16 year old girl, apparently able to travel from one end of this country to the other, by a means not yet made available to the Court, without the control of either of her parents. She is also a child who suffers from seizures which can arrive upon her unexpectedly and unpredictably and has been accepted by the Court, at this stage, to have been inculcated with negative views of her father by her mother. Those views have been found by a psychiatrist to be delusional and as a consequence both children greatly fear their father, a person who the Court has not found to be in any way warranting of that fear.

1. The Act requires that children have the opportunity to have a meaningful relationship with each of their parents.  The evidence before this Court indicates the children have been denied having a meaningful relationship with their father because of the wife’s delusional ideas about him and the folie a deux which she established between herself and the children so that they were drawn in and inculcated with those same views.  It may prove, at the end of the day, that these children are not able to have a relationship with their father and fall to be raised by their mother in a state of delusion about the husband and potentially states of delusion about other people and other circumstances all of which leave these children to be brought up in an abusive environment. This environment does not allow them to develop free thought, that is, thought free of inappropriate and delusional ideas held by their mother and shared freely with them.

2. At this stage, there is no evidence before the Court that the wife has done anything to address the findings of the Court about her mental health. The wife has also declined to give any information to the Court, when given that opportunity today.  For those reasons I make the orders as set out by me herein.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 24 May 2011.

Associate:  

Date:  30 May 2011