Wallisham and Wallisham (No 2)

[2009] FamCA 1047

FAMILY COURT OF AUSTRALIA

WALLISHAM & WALLISHAM (NO. 2) [2009] FamCA 1047

FAMILY LAW – CHILDREN – Interim orders – Section 91B report – Where mother is not allowing children to attend school –  Where mother has enmeshed relationship with children – Where mother has a long history of substance abuse – Department of Child Safety seeking protection supervision orders – Where the parents agreed to enrol the children in a boarding school – Mother ordered not to have phone contact with children – Mother to have supervised contact only with the children – Children to live with the father – Independent Children's Lawyer to be appointed
Family Law Act 1975 (Cth)
APPLICANT:	Mr Wallisham

RESPONDENT: Ms Wallisham

FILE NUMBER: BRC 8443 of 2009

DATE DELIVERED: 28 OCTOBER 2009

PLACE DELIVERED: BRISBANE

PLACE HEARD: BRISBANE

JUDGMENT OF: BARRY J

HEARING DATE: 28 OCTOBER 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The Applicant Father appearing in person

SOLICITOR FOR THE RESPONDENT: Mr Cooper, Solicitor of Charles Coopers Lawyers appearing for the Respondent Mother

Ms Monardez from the Department of Communities (Child Safety) appeared as a Friend of the Court

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The children, D born … June 1996 and R born … January 2001 live with the Father.

2. The Father have sole responsibility for the long term and short term care, welfare and development of the children.

3. The children attend O School until the end of the 2009 school year and for the whole of the 2010 school year.

4. For the period to the end of school term the Mother is not to spend any time with the children nor have any form of communication with the children including visiting the children’s school, any written communication or telephone communication other than in an emergency and the Mother is not to accept telephone calls from the children, if made.

5. The parties are forthwith to attend at the Gold Coast Contact Centre, or such other Contact Centre as the parties may mutually agree, to attend for interviews to facilitate time the children may spend with their Mother, supervised at such Centre as may be arranged with the Centre.

6. The Mother is to spend supervised time with the children at a Contact Centre as soon as suitable arrangements have been made with such Contact Centre, with the Mother and Father to be equally responsible for any fees payable to the Contact Centre.

IT IS FURTHER ORDERED THAT:

1. The proceedings be adjourned for case management review to 9.30 am on
   4 December 2009 at the Brisbane Registry of the Family Court.

2. The interests, in these proceedings of the children, D born … June 1996 and R born … January 2001, be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

3. The parties attend post-separation parenting classes either individually or jointly to address their conflict and develop a cooperative parenting regime.

4. The Registrar is directed to send a copy of the Reasons for Judgment of the Honourable Justice Barry dated 12 October 2009 and 28 October 2009, the Section 91B Report of the Department of Communities (Child Safety Services) together with the Orders of today’s date to the Legal Aid Office for their consideration.

5. The Registrar is directed to forward to the Principal of the O School a copy of the Reasons for Judgment of the Honourable Justice Barry dated 12 October 2009 and 28 October 2009, the Section 91B Report of the Department of Communities (Child Safety Services), the Orders of today’s date together with a covering letter drawing the attention of the Principal to the restrictions imposed on communication between the children and the Mother.

6. 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.

NOTATION:

Order 8 is subject to hearing submissions from Legal Aid Queensland as to whether it is deemed appropriate that there be further involvement in this ongoing litigation.

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: BRC8443/2009

MR WALLISHAM

Applicant

And

MS WALLISHAM

Respondent

REASONS FOR JUDGMENT

1. On 12 October this year, for reasons given, I adjourned the father’s application seeking orders in relation to the parties’ two children, R and D, to today’s date for the purpose of allowing the preparation of a section 91B report. I have marked that report exhibit 1 for the purpose of today’s proceeding.  I have to say, it makes for depressing reading.  I quote from paragraph 2 on page 2 of that document:

   “On 11 September 2009, further concerns were recorded at the […] Child Safety Service Centre which outlined the following:

   (a)  [The mother] is currently not allowing the children to attend school.

   (b)  [The mother] has been involved in three car accidents over the past two to three weeks.  The children were in the car for each accident.

   (c)  [The mother] has a long history of substance abuse.  She is currently doctor shopping and over medicated on pethidine and OxyContin.

   (d)  [The mother] is never not on medication and it is rare that she does not present as over medicated.

   (e)  There are nine years of court records which outline [the mother’s] prescription misuse and which state [the mother] is unfit to parent.

   (f)  [The father] is currently attempting to enrol the children in a boarding school.  [The mother] is not aware of this.

   (g)  [The father] is not applying for a recovery order.  [The father] is scared of [the mother]. [The father] covers up for [the mother].

   (h)  The school has banned [the mother] from the grounds previously for being aggressive and swearing at school staff.

   (i)  [The mother] has been hospitalised at the […] Hospital this year and last year for this prescription drug use.

   (j)  The children appear depressed, disoriented.  They have no friends, speak to nobody, and they have difficulty leaving the room without following [the father] around -

   (k)  The children do not go well at school.  The children are being told to leave school because of [the mother].”

2. In relation to point 2(k), on today’s date the father produces a letter from S School signed by the assistant to the head master, dated 26 October.  It is in the following terms:

   “The staff at [S School] have worked with [R] and [D] over a number of years to support their education, academic development and progress.  At times, this has proven to be very difficult despite numerous meetings, negotiations or arrangements made with both [the mother] and [the father].  Of serious concern has been the boys’ attendance which has been inconsistent, irregular and, at times, unexplained. 

   It has also become apparent to staff that the situation, rather than improving with strategies discussed and agreed, has worsened to the point where the Department of Child Safety was notified by the college on 8 September 2009.  It has become the professional opinion of senior staff at the [School] that in order to establish an opportunity for the boys to be able to access a curriculum on an ongoing and consistent basis, and until the attendance issues have been addressed, enrolment in a day school such as [S School] would be of little value to their academic development.

   Enrolment at a boarding school, where attendance is guaranteed by the pure nature of the environment, was suggested as one alternative.  Considering the boys’ ages, [O] School was mentioned, as it is one of the few schools in the country which would be able to enrol both boys.  The head of the junior school has been advised that both boys have recently been enrolled and are attending [O School].

3. I return to the section 91B report.  There was a meeting between the mother and the father and department staff at the B office of the department.  In paragraph 7 and 8 of that report the following is recorded:

   Paragraph 7:

   “During the meeting, both parents were advised the outcome of the investigation and assessment was substantiated, and both [D] and [R] had been deemed children in need of protection.  It was explained to [the father] and [the mother] that it had assessed that both children had suffered emotional harm as a result of both parents’ actions, as stated herein at paragraph 14.”

4. Paragraph 8:

   “It was explained to the parents that the Department intended on making an application to the Children’s Court for a child protection order allowing the Chief Executive to supervise the children for 12 months.  It was also outlined to the parents that at the next mention of the Family Court matter on 28 October 2009 the service centre would be supporting [the father’s] application for the children to attend boarding school and also recommending that the children reside with [the father] and that [the mother’s] contact with the children is supervised.”

5. Again, I pause there to note that the parents were sensible enough to appreciate the Department’s position and agreed that the children should forthwith go to the O School.  I propose to make an order in due course that the children remain at the O School to the end of this year and attend there, until further order, for the 2010 academic year.  However, I commend the parties for that effort in sending the children off to allow them some time out.  The school term concludes on 25 November, so they will only be there for about a month. 

6. Under the heading Outcome of Investigation and Assessment, paragraph 12 in the report says:

   “A decision has been made to record this matter as substantiated – child in need of protection for [D] and substantiated – child in need of protection for [R].”

7. It refers to the material which was relied on.  Paragraph 14 reiterates significant child protection issues:  addiction to prescription drugs, the car accidents, school absences, the unhealthy and enmeshed relationship between mother and children.  The mother is said to place her emotional needs above those of the boys.  The alienation is not referred to specifically, but I have noted that;  and the fact that the mother’s doctor has expressed concerns about the care of the boys while the mother consumes excessive amounts of medication.  The report speaks for itself. 

8. I am informed by the father, on today’s date, and for present purposes I accept at face value what he has had to say, that so far so good, the children appear to have settled in to O School.  The Department in the meantime has instituted proceedings under the state protection laws.  That application is returnable on 5 November in the Southport Magistrates Court.  I am informed by the Department’s representative, who has appeared in court, Ms Mondarez, that on that date the Department would be seeking what is known as a protection supervision order.

9. This allows the Department to monitor the children’s progress for the duration the order is in force, which I understand will be for 12 months.  The Department is not proposing to physically arrange for the supervision of the children when they are spending time with their mother, but they recommend that at all times any time between mother and children be supervised. 

10. On the previous occasion this matter was before the court I made reference to the material filed by the father, which included a report from Dr W, a children’s psychiatrist; Ms D, a psychologist; Mr N, who is a friend of the father’s who provided a character reference; as I said, most tellingly, Ms M.  I gather she is a medical receptionist or staff member.  I was also provided with a report of Dr G which related to earlier proceedings. 

11. I am satisfied, as a result of the mother’s behaviour over a significant period of time, the children are hopelessly enmeshed, in an emotional sense, with their mother.  A reverse dependency has developed where they, effectively, are parenting her.  She has done her utmost to alienate the children from the father.  The children are at serious risk of developing separation anxiety disorder and other major psychological or psychiatric issues.

12. At the present time, until the mother can demonstrate that the court can have confidence in her, I am not prepared to accept any undertakings from her.  I believe she would not comply with orders not to discuss the litigation with the children, not to denigrate the father, and things of that nature.  The mother has serious medical problems which have been set out in the material, and until those are addressed the court, unfortunately, can place little reliance on her capacity to control her emotions.

13. I propose to order that there be no phone contact between the children and their mother whilst the mother is at O School other than in an emergency.  As I have indicated during the course of submissions, I cannot prevent school authorities from facilitating calls between the children and their mother.  My order can only be directed at the mother.  The mother is not to accept calls from the children, if made.  The phone records will readily indicate compliance or otherwise.  I would hope that the school authorities would accept the letter and spirit of this order.  It is not an order that I make lightly.  It is not done in any way to punish the mother.  It is done to spare the children from the mother’s behaviour in involving them in this litigation, in enmeshing them in her emotional problems, in alienating them from their father.

14. The mother is not to visit the children’s school or have any form of communication with them, except in compliance with these orders.  In other words, the mother is not to write to them, email them, have any communication whatsoever.  It is only for a period of one month. 

15. I propose, on an interim basis, to order that the children are to live with the father.  He is to have sole parental responsibility for their short-term and long term care.  The mother is to have no phone communication, even after the conclusion of school term, so, if the children are phoning her, she is not to engage in phone conversations.

16. In the meantime, the parties are forthwith to attend at the Gold Coast Contact Centre, or such other contact centre as the parties may mutually agree, to attend for interviews to facilitate time the children may spend with their mother, supervised at such centre as may be arranged with the centre.  In other words, if the centre can facilitate time each week, so be it.  I do not propose to stipulate whether it be Saturday, Sunday or whatever.  It will be school holidays;  it can be mid-week if the centre is open.

17. I will adjourn this matter to before myself at 9.30 on 4 December this year.  That is a Friday.  At that time, I would expect the father to file material from his brother that the brother is available and willing to care for the children whilst the father is working.  I would expect material from relatives in New Zealand to say that they are willing to have the children stay with them for certain periods of time, so that I can make orders for passport release, giving the father permission to take the children out of the country.

18. The next one is the tricky part.  The legal representative for the mother has proposed the maternal grandmother or a friend of the mother’s, Mr T, as appropriate supervisors.  I have not had the opportunity to assess those individuals.  It is the first I have heard of it. At first blush, I would have thought each was singularly inappropriate to be a supervisor as they would be naturally aligned with the mother’s cause and be reluctant to report any transgression of orders where the mother is not to talk about proceedings with the children, where the mother is not to denigrate the father, where the mother is not to enmesh the children, etcetera.

19. But the mother and father, prior to 4 December, are to confer on the suitability of any other supervisor who the parties may mutually deem to be appropriate to supervise the mother’s time outside the contact centre.  I would have thought that the father’s brother, again, was not a suitable person.  He becomes enmeshed in the dispute and his ability to care for the children is comprised.  Surely there is somebody around who is a mutual friend who is reliable.  I can appreciate the limitations of contact centres.  I do not want to be seen to be critical of contact centres in any way, shape or form, but they are limited.  It can be a relatively artificial environment. 

20. If a reliable supervisor could be found - it could be from a service organisation such as the Salvation Army, it could be a mutual friend - the parties could agree that, for example, on Saturdays from 9.00 am until 5.00 pm the children can spend time with their mother, but it is all to be supervised, and the requirements of the supervision will be explained by the Independent Children’s Lawyer that I propose to appoint.

21. The father sought an amendment to his interim orders for a recovery order to issue within 24 hours of the mother holding over.  I do not propose to make that order.  The mother’s time will be supervised at all times.  She will not have the opportunity to not return the children.  She will not have the children in her care.  The only way the mother could possibly have the children is if she abducts them.  I caution the mother that the courts treat abduction situations very, very seriously.

22. There has been a recommendation in the section 91B report for the mother to attend a rehabilitation course.  That is a matter for the mother.  It is not my function to tell people how to live their lives.  If the mother has a drug problem, I would have thought she should do all in her power to address the problem.  If she elects not to, there is nothing I can do.  However, she should read the recommendations.

23. I will follow the recommendation that the parents attend post-separation parenting classes either individually or jointly - preferably jointly, I expect - to address their conflict and develop a cooperative parenting regime.  That is paragraph 26 of the 91B report.  Given the fact that the parties have been at loggerheads for about close to a decade, I view a recommendation in those terms as overly optimistic. 

RECORDED  :  NOT TRANSCRIBED

1. I will order the appointment of an Independent Children’s Lawyer subject to hearing submission from Legal Aid Queensland as to whether they deem it appropriate that they be involved in this ongoing litigation.  They may say that they have exceeded the funding cap for this matter and they are not prepared to act.  The court would be assisted, particularly where the father is not legally represented.

2. I direct the Registrar to send a copy of my reasons of 12 October, my reasons of today and the 91B report, together with the orders of today’s date to the Legal Aid Office for their consideration.

3. I direct the Registrar to forward to the Principal of O School a copy of my reasons of 12 October, a copy of these reasons and a copy of the section 91B report, with a covering letter drawing the attention of the Principal to the restrictions I have imposed on communications between the boys and their mother.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  28 October 2009