Wallisham and Wallisham (No 2)

[2010] FamCA 1126

FAMILY COURT OF AUSTRALIA

WALLISHAM & WALLISHAM (NO. 2) [2010] FamCA 1126

FAMILY LAW – CHILDREN – Interim proceeding – Where the mother has filed an Application in a Case – Whether the Rice v Asplund principle should be applied – Consideration of expert reports and recommendations – Interim orders made

APPLICANT: Mr Wallisham

RESPONDENT: Ms Wallisham

FILE NUMBER: BRC 8443 of 2009

DATE DELIVERED: 3 December

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 3 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appearing in person

COUNSEL FOR THE RESPONDENT: The Respondent Mother appearing in person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Bell, Solicitor of Legal Aid Queensland appearing as the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Mother spend supervised time with the child, D born … June 1996, at such times and in such circumstances as he may wish.

2. The Mother spend supervised time with the child, R born … January 2001, no less than once a month for a period of two (2) hours at the N Contact Centre or the O Contact Centre, with the Mother and Father to be equally responsible for any fees payable to the Contact Centre.

3. In the event the Mother’s time with the child R is to take place at the N Contact Centre the Father is to give the Mother seven (7) days notice in writing.

4. The Mother is to have no communication with the children unless initiated by them.

5. The Father provide to the Mother on at least a quarterly basis, a summary of the children’s academic and social development and significant activities.

IT IS ORDERED THAT:

1. The proceedings be adjourned for review before a Registrar on a date to be fixed.

2. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8443 of 2009

MR WALLISHAM

Applicant

And

MS WALLISHAM

Respondent

REASONS FOR JUDGMENT

1. On 3 June 2010 I made an order dismissing the mother’s application, which she had filed on 25 May 2010.  That application sought orders that the supervised contact cease; the children live with the mother; the children be schooled on the Gold Coast and that the mother have sole parental responsibility for the children.  It proposed that the father spend time with the children as mutually agreed between both parties but failing mutual agreement, that the children spend every second weekend with the father and one night during the week for two hours and for half holidays.

2. The mother has filed a further application on 25 November 2010.  In that application the orders she seeks are far more modest in that she seeks that supervised contact cease; the children live with the father and the children be schooled on the Gold Coast and not be placed in any boarding school and the children spend one day each weekend with the mother from 9.00 am until

   
   

   5.00 pm; the mother have sole parental responsibility for that period of time when the children are with her and she seeks two phone calls a week, and the ability to communicate by email, text message or phone calls with the children.

3. The operative order in this matter would appear to be the order of 4 December 2009 when I made an order the mother is to have no time with the children until the commencement of the school year.  Various restraints were placed on the mother contacting the father.  From the commencement of the 2010 school year, the mother’s time with the children was to be limited to time spent at the contact centre pursuant to agreement between the parties or by order of this Honourable Court or such other times as the Principal of the O School or the father may approve in writing.

4. I note that paragraph 1 provided that the mother’s time was to be spent at a contact centre, as agreed between the parties.  There have been a number of developments since those orders of December last year and since this matter was last before the Court.  There has been a report filed by Dr V, a psychiatrist in private practice.  I have noted the contents of that report, in particular, Dr V’s concerns about the mother’s substance abuse.  There was a further report from Mr C, a very experienced social worker.  His recommendations are to be found at paragraph 111 of his report where he recommends that the father have sole parental responsibility, that the children live with the father, that the mother enjoy visits with D by agreement between the parents and with R, no less, than once a month for a period of two hours at a contact centre.  It says:

   [Mr Wallisham] provide to Mr [Wallisham] –

   I assume that is Ms Wallisham –

   at least quarterly, a summary of the children’s academic and social development and significant activities.

   RECORDED  :  NOT TRANSCRIBED

5. I have read the mother’s affidavit filed on 25 November 2010 in support of the orders that she seeks on today’s date.  She addresses the issue of the alienation of the older child, D.  At this point in time, I do not intend to apportion blame for how that situation has arisen.  I do note the explanation given by the father in his material which would be an adequate explanation of how D has arrived at his present wishes.  I also note there is an affidavit of the maternal grandmother filed in support of the mother’s case.

6. The Independent Children’s Lawyer has pointed out that the principle of Rice & Asplund is applicable here in the sense that the Court should only vary its orders in circumstances where the Court is satisfied there has been a material change of circumstance.  There are certain changes foreshadowed.  The father proposes that D no longer attend school in O but attend a boarding school as a weekly boarder and would stay with the father on weekends.  It is proposed by the father and supported by the Independent Children’s Lawyer that at age fourteen and a half, D is old enough to be given the discretion as to whether he wishes to communicate with his mother and, if so, the circumstance of such visits.

7. I have heard the mother’s submissions about this; I propose to accede to the application that, D’s time with the mother will be at such times and in such circumstances as he may request.  D may communicate with his mother in such manner as he may wish.  I will continue the restraint that the mother is not to have any communication or contact with D unless initiated by him.  In fact, that is in relation to both children because of phone calls directly to R’s boarding school.  The proposal is for R to remain at O School so the mother’s time with R is to be either at the N Contact Centre during the Christmas period, then when the child resumes school it is to be at the O Contact Centre.  So there will be orders in those terms, together with that order as recommended by Mr C about the father giving a report periodically to the mother.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 3 December 2010.

Associate: 

Date:  3 December 2010