WALLISHAM & WALLISHAM

[2010] FamCA 496

FAMILY COURT OF AUSTRALIA

WALLISHAM & WALLISHAM [2010] FamCA 496

FAMILY LAW – CHILDREN – Application in a Case by the mother – Where the children are enmeshed in their relationship with the mother – Rice v Asplund principle – No significant change in circumstance – Registrar appointed to execute the children’s passport application forms in lieu of the mother – Application dismissed

APPLICANT: Mr Wallisham

RESPONDENT: Mr Wallisham

INDEPENDENT CHILDREN’S LAWYER: Ms Toni Bell, Solicitor

FILE NUMBER: BRC 8443 of 2009

DATE DELIVERED: 3 June 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 3 June 2010

REPRESENTATION:

SOLICITOR FOR THE APPLICANT: The Applicant Father appearing in person

SOLICITOR 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 THAT:

1. The proceedings be adjourned for case management review to 9.30 am on
   3 December 2010 at the Brisbane Registry of the Family Court.

2. The Mother’s Application in Form 2 filed 25 May 2010 is dismissed.

3. A Registrar of the Family Court of Australia is appointed to execute the passport application forms for the children, D born … June 1996 and R born … January 2001, in lieu of the Mother.

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. I’ll give brief reasons for dismissing the mother’s application.  No one doubts the mother’s love for the two boys.  No one doubts that the boys love their mother, and that’s evident from the Contact Centre’s notes.  The difficulty which was evident is that for a variety of reasons, there was an enmeshment of the boys in their relationship with their mother.  There are indications that taking the boys away from the conflict of their parents, they have significantly improved.  There’s been a recent deterioration in D’s conduct seemingly, one can surmise, attributable to the fact that he has been having much more frequent telephone communication with his mother.

2. The main reason why I would dismiss the application on today’s date is the principle enunciated in the longstanding case of Rice & Asplund, which, in effect, says Court orders are to remain in force unless there has been a significant change in circumstance.  The orders were made relatively recently.  Clearly the principle prevents what’s known as the revolving door, where a litigant is unsuccessful, leaves the Court, and immediately comes back in and seeks to reopen and re-litigate.  The Court would have endless litigation if, after a matter of a few months, even on interim orders, a party wanted to totally reverse the situation.

3. In any event, leaving aside even if I could be satisfied there had been a significant change of circumstance, I have regard to the letter from the Department of Communities of 2 June 2010 sent to the Independent Children’s Lawyer, saying that they do intend to revoke the current child protection orders to supervise D and R, provided there is no change to the Family Court orders.  I can see why they are expressing that view.  I do not wish to see a Department’s involvement.  I intend no criticism at all of the Department, but it’s better to get the situation where the matter is only in the jurisdiction of this Court and involves a dispute just between these parties and doesn’t involve the Department. 

4. The Independent Children’s Lawyer has suggested a further report.  It’s going to get to the stage shortly where these children will react to the number of times they’re being assessed, particularly with D at aged 14.  I realise D has just turned 14 but the child is at high school.  When he reaches 15 he is likely to make up his own mind and court orders are largely token.

5. So in the circumstances, I will adjourn the matter, as requested by the Independent Children’s Lawyer, and I don’t need to make an order for the preparation of a family report.  I’d simply note that a family report is going to be commissioned from Dr F.  3 December the matter is adjourned to 9.30 am.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  3 June 2010