Wadburn & Wadburn
[2022] FedCFamC1F 182
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wadburn & Wadburn [2022] FedCFamC1F 182
File number(s): SYC 8745 of 2020 Judgment of: REES J Date of judgment: 23 March 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the children previously lived in the mother’s primary care – Issue as to the mother’s parenting capacity in light of her mental health – Concerns for the children’s psychological wellbeing – Orders for the children to live with the father and spend supervised time with the mother. Division: Division 1 First Instance Number of paragraphs: 49 Date of hearing: 21 March 2022 Place: Sydney Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Robertson Saxton Osborne Solicitor for the Respondent: Coleman Greig Lawyers Independent Children’s Lawyer Brian Samuel & Associates ORDERS
SYC 8745 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WADBURN
Applicant
AND: MS WADBURN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
23 MARCH 2022
THE COURT ORDERS PENDING FURTHER ORDER:
1.That Orders 1 to 6 inclusive of the orders dated 27 October 2021 be discharged.
2.That X born 2008 and Y born 2013 (“the children”) live with the father.
3.That the children shall spend time with the mother as follows:
(a)Each Wednesday after school from 4.00 pm until 7.00 pm.
(b)Each Saturday or Sunday from 10.00 am until 4.00 pm.
4.That the time the children spend with the mother is to be supervised by an adult acceptable to the father and to the Independent Children’s Lawyer.
5.That in the event that no suitable adult is available to supervise, then the time is to be supervised by B Contact Centre or another professional agency or contact centre which is acceptable to both parents and to the Independent Children’s Lawyer and, unless otherwise agreed, the contact shall take place for three hours each week at a time and place suitable to the supervisor.
6.That the cost of such supervision be borne equally by the parents.
7.That the father shall do all things necessary to facilitate the children having reasonable telephone communications with the mother and in the absence of agreement between the parties a minimum of three (3) times each week on days when the children are otherwise in the father’s care.
8.That the mother’s legal representative shall be granted leave to provide and shall provide a copy of the subpoena material produced by D Hospital (which includes the documents of C Hospital) to the Mother’s treating health professionals.
9.That the Independent Children’s Lawyer is authorised to provide a copy of these orders to the schools which the children attend.
10.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wadburn & Wadburn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Mr Wadburn (“the father”) and Ms Wadburn (“the mother”) are the parents of two children, X who was born in 2008 and is now 13 years old and Y who was born in 2013 and is now eight years old (“the children”).
The parents separated in about May 2020.
The mother’s child of an earlier relationship, Mr W lived with the parents from the commencement of their relationship when he was about three years old and, when they separated, chose to live with the father. Mr W is now aged 20 years.
The father has re-partnered but does not live with his partner. She has her own residence and is a health professional.
Until February 2022, the children lived primarily with the mother. Orders were made on 27 October 2021 for them to spend time with the father each Sunday under professional supervision. Between about June and December of 2021, the father did not see the children at all. The father asserts that the mother has frustrated his attempts to spend time with the children.
The mother asserts that the father poses a risk of sexual abuse to X and there have been a number of reports made to the Department of Communities and Justice (“DCJ”) alleging that the father poses a risk to X, although the documents produced by DCJ do not establish by whom those reports were made. The father denies those allegations. The mother does not allege that the father has sexually assaulted X or that X has made any allegations of improper behaviour by the father.
On 8 February 2022, the mother’s renting agent went to her property because she was two months behind in her rent. As a result of what he saw and the way the mother behaved, the agent contacted the police expressing concerns for the mother’s well-being.
Police records note that the agents told them that the mother was “vacant and weird” and that she had left the property with Y in her car. The police tried to contact the mother on her mobile phone without success and went to the mother’s unit at 6.30 pm where they found X home alone. Mr W was contacted and he collected X and took her to the father’s unit. I note that the records produced by Y’s school, to which fuller reference will be made later in these reasons, indicate that Y was not at school on 8 February 2022.
The police began to search for the mother and Y and they found the mother’s abandoned vehicle after midnight. The police helicopter searched the surrounding area without success. They organised a taskforce to search the bushland surrounding the area once it was daylight. A significant search commenced on 9 February 2022.
The police obtained keys to the mother’s unit from X and at about 9.30 am they entered the mother’s unit to find her and Y in bed. The police noted:
Detectives knocked and announced their office, with no answer from the unit. A recording was commenced and the key was used to gain access to the unit. As Detectives were clearing the unit, they located both missing persons laying [sic] in bed in the main bedroom. Detectives introduced themselves and attempted to engage [the mother] in conversation. [The mother] was conscious, however unresponsive and staring blankly around the room. Police introduced themselves to [Y] and engaged him in conversation. [Y] confirmed his and his mothers details. [The mother] suddenly spoke up saying “Why are you in my home”. Detectives responded to [the mother], stating they were there as they were concerned for her welfare. [The mother] became unresponsive and started staring blankly around the room. Detectives continued to try and speak to [the mother] to no avail. [The mother’s] eyes were rolling around and she was continuously muttering quietly to herself. Detectives spoke to [Y] and tried to convince him to come out of the bedroom into the living room. [Y] began speaking to [the mother], asking her if he should do what the Police said. [The mother] was unresponsive and continued to mutter and stare blankly. [Y] asked “Mum, why won’t you answer me or look at me”. Despite being conscious, [the mother] was unresponsive. After a short period of time, Detectives convinced [Y] to come into the lounge room. [Y] provided the following version: Yesterday afternoon, [the mother] and [Y] went for a drive at an unknown time. They drove around before running out of fuel. They sat in the car for awhile and then got out and knocked on the door of a nearby house. There was no answer so they returned to the car. They sat in the car for a while before they became hungry. They walked to McDonalds at [E Shopping Centre]. [The mother] couldn’t remember where she parked the car, so they walked home around 8 or 9 pm (it was dark outside). When they got home, [Y] asked where his sister was. [The mother] responded “At dad’s”. [Y] asked why, and [the mother] did not reply. [The mother] was sleepy so they went to bed. [Y]’s overall physical state appeared well and his demeanour was good. The unit appeared to be in an unkempt state, with old food left out, piles of rubbish bags in the kitchen and dirty clothes and dishes around. [The mother] did not appear to be in a coherent state and, at that point in time, was not capable of caring for [Y]. An ambulance was contacted and attended a short time later. [The mother] continued to be unresponsive and was subsequently taken to [hospital]…
The police contacted the father who, with X and his partner, collected Y.
The record produced by the ambulance service indicates that officers spoke to X who told them that the mother had been “spaced out and not talking to her” for two to three weeks. The ambulance officer recorded:
…house unkempt, food rotten in fridge, mouldy, rubbish piling up… [On examination patient] non complaint… naked in bed, wouldn’t answer questions but would pull doona back onto herself… Unintelligible at times… no eye contact… hysterically laughing randomly… no insight to condition. Not answering any questions. Police reporting [patient] said “[Mr G] is in control of my body”… at risk of absconding, was trying to remove seatbelts in car.
The mother, in her affidavit sworn 7 March 2022 gives her account of the events of 8 February 2022. She deposed that when she and Y arrived home around 10.00 pm she “assumed X was already in bed…” She did not check.
Both children have lived with the father and Mr W since that time. The father’s partner also spends some time at the unit where the children live.
The father deposed that X told him that the mother had, on occasions, left the unit late at night and returned at three or four o’clock in the morning. X did not know where the mother had gone. I infer that the children were left alone in the unit. The father also deposed that he had been told by the police that neighbours had seen the mother leaving the unit very late at night and returning around two or three o’clock in the morning.
The hospital records indicate that the mother was admitted and diagnosed as suffering from a psychotic illness. She initially refused medications because they interfered with her thoughts. She told staff that she was in a long term relationship with a man, Mr G, who was her carer and her next of kin. Staff contacted this man who said he was an acquaintance whose children attended the same school as X and Y. The mother said that the father was tampering with her food and water at her home and that he had orchestrated her admission to hospital.
Notes produced by the hospital state that, on 10 February 2022, the mother was refusing medication, refusing to speak to the psychiatrist and attempting to leave.
On 18 February 2022, the notes record “more probable than not that [the mother] is psychotic” and “There are enormous potential risks to her children and herself, particularly given she is delusional”.
Nursing notes on 21 February 2022 indicate that the mother:
Still believes that [the father] may have tampered with her water or food at home and this was what accounted for her abnormal behaviour requiring admission to hospital.
When the mother was discharged, on 24 February 2022, the discharge plan which is included in the discharge summary provides:
•Follow up with GP for ongoing support of physical and mental health…
•Follow up with Community Mental Health Team. [The mother] will be referred to the local service on discharge
•Continue risperidone 2 mg nocte
•…
•It has been recommended by the Neurology team… that [the mother] completes an EEG and MRI as outpatient as part of first episode psychosis screening (these investigations were declined by [the mother] during admission)
The mother did not follow up with her GP but rather spoke to a general practitioner who is also a friend. That practitioner referred her to a psychiatrist, Dr F, who, apparently without seeing any of the hospital or ambulance records, determined that there was no evidence to support a diagnosis of psychosis and recommended that she cease taking risperidone.
In her affidavit, the mother stated:
I have been in contact with the Community Mental Health Team and informed them of my current treatment plan and progress.
She does not give evidence of what she told the Mental Health Team or what their response was.
She has not continued the medication.
She has not had the EEG or MRI.
Before me, the father seeks orders that the children remain in his care and have time with the mother on Sundays, professionally supervised. He also proposes telephone contact between the children and the mother.
The mother proposes that the children be returned to her care.
The parties have agreed that a child and family psychiatrist will be appointed as single expert to prepare a report which should be available by late August 2022. Thus the issue to be determined is what arrangements should be made for the children’s parenting between this time and the receipt of the report.
The primary consideration here is the need to protect the children from physical and psychological harm caused by their having been subjected or exposed to abuse, neglect or family violence. At the least, these children have been subjected to abuse by neglect.
Although the mother’s psychiatrist does not agree that the mother suffered a psychotic episode, her reports have not been the subject of cross-examination and there are aspects of the conclusions, particularly that the mother’s behaviour was a result of an adverse reaction to medication administered after her admission to hospital, which, prima facie, seem inconsistent with the evidence. Specifically, an adverse reaction to a drug administered in hospital does not explain the mother’s behaviours in the period leading up to the administration of the drug.
The evidence does not establish whether it is possible that the mother might again suffer an episode such as that which came to a head on 8 February 2022, particularly now that she has ceased taking the medication prescribed for her in hospital. It is therefore necessary for protective measures to be put in place to ensure the safety of the children.
The children’s views have been canvassed by interview with officers of DCJ.
X was interviewed on 22 February 2022. She said her mother was in hospital but she was not sure why and she was worried. X told DCJ she was happy to be with her father although she complained that he did not allow as much screen time as her mother did. X said there was nothing she didn’t like about Mr W or her father’s partner and she nominated her father, his partner and Mr W as people she could talk to.
Y too, was worried about his mother but said he had no worries about living with his father. Y said that when dad is angry he puts the games away but, when asked, Y clearly said his father does not hit him. Y nominated his sister as the person he could talk to.
The children were not asked if they wanted to return to live with their mother but I accept that they are not concerned about staying with their father at the present time.
The nature of the children’s relationships with each parent will no doubt be addressed by the single expert and the evidence is not sufficient to make any useful assessment here. However, I note that the children, when interviewed by DCJ, spoke positively about both parents, Mr W and the father’s partner.
It is clear that the transition to the care of their father is a major change for the children who had only been seeing him under professional supervision for a short time. However, the circumstances were such that the mother was incapable of caring for them and remained so for a period of at least two weeks when she was involuntarily detained in hospital. I am not convinced by the untested evidence of the mother’s psychiatrist that she did not have a psychotic episode and the mother will have to satisfy the Court in due course that there is no or little risk of such an episode, however characterised, happening again. The risks to the children as a result of the episode in February 2022, as described by the police, the ambulance officers and the hospital are unacceptable.
There is some evidence that Y, who has been diagnosed with an autism spectrum disorder, is doing well in his father’s care. Y’s speech therapist, in a report dated March 2022, noted that since the middle of February 2022 Y had attended three appointments with his father and one with his father’s partner. She observed that they had observed each session, discussed therapy goals and completed all homework tasks. The speech therapist stated:
[Y] has willingly come to each of these therapy sessions with [the father and his partner], remained engaged throughout the appointment and completed all planned activities. He has also demonstrated increased motivation to participate in therapy activities and a decreased reliance on tangible reinforcement. [Y] has also initiated completion of written work at sentence level and completed decodable readers, which he has previously been reluctant to do.
Y’s school attendance has been a concern while he has been in the mother’s care although the effect of the pandemic on that attendance must give rise to caution. In her affidavit, however, the mother deposes to allowing Y to stay at home on occasions when his behaviour is difficult. It is of concern that the school records, for example, that between 4 March 2021 and 17 June 2021, Y was late for school on 19 occasions because of traffic or “running late”. Of more concern, having regard to the events of 8 February 2022, is that Y was late for school on 28 January 2022 and was not at school between 1 February 2022 and 9 February 2022 (with the exception of 7 February 2022 where he did attend but was late) with the absence recorded as “Unjustified”.
On 4 March 2022, Y’s teacher sent an email to the father stating:
Thank you for working with [Y] to complete some of the work sent home, this was very helpful.
[Y] has come to school confidently today. He has worked hard this morning on writing a persuasive speech. I was very proud of his efforts…
The records produced by X’s school also note concern about attendance. Between 9 February 2021 and 24 June 2021, X was absent from school for 15 days and late on a further five occasions. The reported reason for absence or lateness was usually that X was unwell with stomach ache or headache. The records relating to the period from July 2021 to the end of October 2021, the period when X was learning from home due to the pandemic are concerning in relation to X’s attendance and engagement. A number of teachers record that they emailed or left messages for the mother. The record reveals:
·On 6 August 2021, the record states “Left message for mum to contact me with concerns about her ongoing attendance”.
·On 11 August 2021, the records note:
Emailed parent weekly attendance record and message of concern about low attendance and the student’s lack of engagement with remote learning and maintaining positive routines.
·On 12 August 2021, the Visual Arts teacher noted “Not completing work and replying to messages”.
·On 18 August 2021, the Languages teacher noted “has missed 4/5 lessons and has not submitted any work since week 2”.
·On 19 August 2021, the English teacher noted “Submitted nothing to little work”.
·On 1 September 2021, the Technology teacher noted, “absent in several sessions and no sign of engagement in many lessons”.
·On 3 September 2021, the Science teacher reported, “…completes roll call questions but does not present herself in Zoom lessons. Attempt on assignments have been absent”. The English teacher noted that an assignment had not been submitted for assessment. The English teacher called the mother on 7 September 2021 and noted that the mother, “was responsive and will remind X to submit her English assignment”.
·On 7 September 2021, the Technology teacher reported “Non attendance and incomplete work”.
·On 8 September 2021, the notes record that a staff member, “Left a voicemail and sent an email to mum detailing the information about an organised Wellbeing check-in for X”.
·On 16 September 2021, the English teacher recorded:
Has yet to submit a complete Year 7 Speak out assessment task despite reminders on zoom and google classroom… Parental contact has been made and parents are aware.
·On 15 October 2021, the Science teacher wrote:
Student has been absent for all lessons (total of 6 lessons) since the beginning of Term 4. Student has also provided any evidence of attempting any course work [sic].
·On 18 October 2021, the History teacher wrote:
Poor attendance and a limited amount of work submitted. The large majority of tasks have not been submitted during the remote learning period.
I have not set out all of the concerns expressed by X’s teachers but it is clear that there was continuing concern about her attendance and engagement and that the school attempted to contact the mother. The records of X’s online school attendance raises a concern about whether she was receiving any supervision from her mother.
The mother is adamant that the episode on 8 and 9 February 2022 was confined to those days and was a result of financial and litigation related stress. I do not accept that to be so. X referred to changes in her mother’s behaviour over a period of two to three weeks. The state of the mother’s unit, as evidenced by photographs taken at the time, and as described by the police, was not achieved by two days of neglect. The hospital notes state:
…Psychiatry team were very involved in her care and gained collateral from her sister, ex-partner and her friend. There were no previous psychiatric diagnoses though there were some suspicious behavioural changes in the preceding 6 months prior to this presentation…
The evidence, at this time, does not establish that the children are safe in the care of the mother.
The father has experienced difficulties with stress and anxiety and has sought psychological help. Documents tendered by the Independent Children’s Lawyer (“ICL”) suggest that the father was unable to work from mid August 2021 until late October 2021, I infer because of his stress and anxiety. The documents tendered by the ICL include Mental Health Treatment Plans dated 5 August 2020 and 18 August 2021. However, nothing in those documents suggests that the father is not capable of caring for the children.
The mother raises concerns about the children’s accommodation with the father in a two bedroomed unit with the father and Mr W. The father concedes that the accommodation is not adequate but I do not consider that the standard of accommodation, in these circumstances, is of more importance than the children’s psychological safety.
The ICL proposed orders which provided for the children to remain in the care of the father and have supervised time with the mother on Wednesday after school and on Saturday or Sunday. I consider those orders to be appropriate.
The ICL also adopted orders proposed by the mother to the effect that she be required to attend on her mental health professionals and for reports to be provided as to her attendance. I do not intend to make those orders. Those representing the mother will be in no doubt that if she is to convince a court that the children should live with her or that they have unsupervised contact with her, it will be necessary for her to present evidence that she has both genuinely sought psychiatric assessment and that she has been compliant with the recommendations of health professionals. Whether the mother understands and appreciates the seriousness of the events leading up to 8 February 2022 and the effects of those events on the children has yet to be established.
The orders will provide for the mother’s time with the children to be supervised. If she is unable to nominate a person acceptable to the father and the ICL, then the supervision will be by B Contact Centre or another acceptable professional agency. In that event, the parents will each pay half of the costs of supervision.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 23 March 2022
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