WALLISHAM & WALLISHAM

[2009] FamCA 999

FAMILY COURT OF AUSTRALIA

WALLISHAM & WALLISHAM [2009] FamCA 999

FAMILY LAW – CHILDREN – Request for intervention by Department of Communities (Child Safety)

APPLICANT: Mr Wallisham

RESPONDENT: Ms Wallisham

FILE NUMBER: BRC 8443 of 2009

DATE DELIVERED: 12 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 12 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appeared in person

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

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

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned to 9.30 am on 28 October 2009 at the Brisbane Registry of the Family Court.

2. 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 the proceedings, relating to the welfare of the children, D born … June 1996 and R born … January 2001.

3. The Court requests a report to be prepared by the Department of Communities (Child Safety) by 28 October 2009.  The Registry Manager is to permit inspection of the Court file and subpoenaed documentation by a person authorized by the Director-General and copying of any part of it to enable consideration of the request to intervene in the proceedings.

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 today’s date at an interim hearing, the father is seeking orders in the following terms:

   ·That the matter be heard and determined on an urgent basis.

   ·A recovery order for the mother to deliver the children to the father to allow the father to enrol the children at the O School to commence term 4, which commenced on 5 October.

   ·An injunction restraining the mother from preventing or hindering the father carrying out the terms of those orders.

   ·That the mother have no time with the children between 4 October 2009 and 25 November 2009 and no telephone contact with the children during this period.

2. For her part, the mother has, on today’s date, read documentation.  She is yet to file it.  I direct that it be filed in the next 24 hours.  She seeks on an interim basis the children live with her, she have sole parental responsibility, the children spend time with the father at all times as may be ordered by the court, that the father be restrained from removing the children from their present school, namely S School, and a series of other orders about non-denigration.  One could go so far as to say it amounts to rank hypocrisy on her part to be seeking an order in those terms given the evidence before the Court.

3. The father has obtained a good deal of evidence from various professional sources, including a child psychiatrist, a psychologist, and subpoenaed the records from the children’s school.  Dr W attaches his curriculum vitae to an affidavit sworn on 20 September  In that affidavit, paragraph 4, in relation to the 13-year-old boy, D, he says: 

   “I felt that [D] suffered from a separation anxiety disorder and has an enmeshed relationship with his mother.  The history and presentation suggested that he had many difficulties in his attachment to his mother.  He presented in a rather dramatic and histrionic manner and I am concerned he is developing a personality disorder.”

4. I pause there to note that once someone has developed a personality disorder, it is there for life.  It is very difficult to have it treated.

   “He appeared aware of all her problems, having an in-depth knowledge of much of her difficulties, particularly conflicts with the father.  It was also apparent that [D] was alienated and hostile to his father, citing complaints regarding the father’s treatment of his mother and of him.” 

5. He went on to say in paragraph 5:

   “His ability to learn has been severely compromised over a long period of time, despite the considerable input by the school and additional tutoring at home.  In the current situation his learning is unlikely to change.  The younger child, [R], aged 8, although bright, was less involved in the parental conflict and tended to withdraw.  I thought he suffered from an anxious attachment to his mother, and his school non-attendance made a diagnosis of separation anxiety disorder likely.  He has had repeated absences from school, and an alarming number of sick days.  As a result he was performing well below average in his year 2 class.  [R] has already repeated year 1.”

6. Paragraph 7:

   “As a consequence of my discussions with [Ms L] from [S School] and [Ms D], the psychologist, and my own contact with the family, I conclude the following: 

   (a)[The mother] presents as an intelligent, caring, over-protective mother who struggles to cope with her own issues and is likely to use her relationship with her children to provide her emotional needs.  It is apparent that she cannot separate her own emotional needs from the children, and as a result cannot consistently meet their needs;

   (b)[The father] is intelligent and well-intentioned, yet by default he has perpetuated the parental contact and conflict.  He has continued to have supported [the mother] financially to a significant degree, yet this maintains conflict and lack of adequate closure of the relationship, and access has been dependent and influenced on the state of the parental relationship at any given point in time.”

7. Paragraph 8:

   In summary: 

   “(1)[D] has established emotional problems, is academically behind and has an enmeshed relationship with his mother and hostile relationship towards his father;

   (2)although [R] is less affected and withdrawn, he nevertheless is following his brother, and is insecurely attached to his mother and becoming more alienated from the father.  He is doing poorly academically as a result of missing school and secondary to his emotional difficulties;

   (3)[S] School have made a considerable effort to support the children, yet the children are still failing to learn satisfactorily.  The school have, as a result, recommended boarding school, that is, [O] School, which I understand takes boarders from year 1;

   (4)despite intervention from [Ms D] to help with parenting therapy, little progress has been made in parenting issues with the children and the parents are still very hostile to each other, to the detriment of the children.  Further mediation is unlikely to be successful;

   (5)despite an initial improvement in the children’s attendance and school functioning, this has again deteriorated;

   (6)I understand that the situation of [the mother’s] care of the children has been of concern and that there have been two recent notifications to Child Services.  I believe that in the last few weeks she has been involved in three motor vehicle accidents, and this raises some concern for the safety of the children;

   (7)the school can no longer support the children because of their absences from school and what they regard as emotional problems generated from ongoing parental conflict.  I see the children as being at risk because of emotional and educational difficulties.

   9.My recommendations, considering the above, are:

   (i)if the present situation continues it will be profoundly detrimental to the children’s emotional wellbeing and education.  Therefore the present situation cannot continue and new options need to be explored;

   (ii)I agree that attendance at [O] School represents a realistic option for [R] and [D], to provide them with stability, reduce stress related to parental conflict, and also an opportunity to establish friendships and academically succeed.  Boarding school for the children will provide an introduction to a strict structure routine and space from the parental problems and parental conflict.  It would also enable them to participate in normal school and after-school activities and establish friends;

   (iii)it is unclear how the boys will cope with the separation, and this will need to be reviewed.  There is little doubt that they will not want this option and protest in the early stages, but if this course of action is followed through, then it may succeed in providing the stability the children need;

   (iv)I believe the court should recommend the parents have minimal contact at handovers.  It is the cause of most conflicts.”

8. Ms D then prepared her affidavit and said she tried to engage in giving psychological assistance to the children.  She says, paragraph 4:

   “It was evident that [the mother] was unwell, physically in pain and emotionally unstable and struggled to manage her own problems, and hence could not consistently attend to the children’s needs.  [The father’s] repeated attempts to assist [the mother] resulted in a roller coaster ride of support, conflict, withdrawal and the inevitable upset for the children.”

9. Paragraph 5:

   “It was clear that it was not possible for me to help resolve the most basic of problems because counselling was sabotaged by [the mother’s] inconsistent attendance and lack of commitment to treatment.”

10. Paragraph 6:

    “It was readily apparent that on the number of times I observed and spoke to both the children, that they were emotionally damaged, as evidenced by:

    (a)      alienation and negativity to their father;

    (b)an enmeshed, insecure and anxious attachment to their mother and difficulty separating from her;

    (c)a pre-occupation, if not over-involvement in the mother’s problems, be they financial, emotional, physical and especially conflict with their father, [D] primarily;

    (d)apparent lack of friends, lack of participation in activities such as sports, swimming or activities outside the home.”

11. Under the heading of her advice in paragraph 4 she said:

    “The option of boarding school at [O] School, although likely to be initially difficult for the children, represents the only option that:

    (i)       avoids problems regarding handover;

    (ii)takes the pressure off the mother, who may then be better able to cope with her physical problems and also get individual psychiatric help with her own emotional problems without involving the children;

    (iii)enables the children to establish a normal routine, structure, and unencumbered access to education and an opportunity to focus on friends and their education, free of parental conflict and concern about their mother’s problems.”

12. The most powerful affidavit I find is the affidavit of Ms M who is a secretary.  She does not have the same professional qualifications as the other witnesses, but she has recorded phone conversations and they reveal a truly toxic, poisonous, dysfunctional atmosphere in the mother’s home where the mother arranges for the children to phone their father, abusing him, with the mother standing behind them encouraging them to do so; the mother putting pressure on the children to ask for more money for her, and then openly abusing the father in the background whilst the children are on the phone.  What an appalling environment for a parent to create for her children.  I refer to paragraph 3, of a phone call on 2 September:

    “You’re mean.  You’re evil.  You know, you know how hard mama tries.  You know the jigga machine, you just took that off mama, and you know you barged in, you came in, you know.”

13. Note, the mother speaking in the background:

    “With one purpose, was to get the jigga machine.”

14. The mother shouting in the background:

    “It’s really unfortunate you’ve done that.  Mum’s turning the phone off.  She doesn’t want to speak to you again.”

15. The mother speaking in the background:

    “Yeah, mama hates you and I actually do too, so, you know.”

16. The mother shouting in the background:

    “Don’t you ever tell me about fucking cunt.  You’re just so horrible so you need to know you’ve ruined everything and now your dirty work.  Goodbye arsehole.”

17. What can I say?  The father says that the mother has had about 40 admissions to hospital over a period of medical treatment as an adult and three suicide attempts back around 2002.  The father has serious concerns about the mother’s driving.  She has had three accidents in recent times, in the space of two months.  Somebody has made a notification to the Department of Communities about this. 

18. Another concern the father has, a very genuine concern, is the extraordinarily high level of absenteeism the children have from school.  What I read from the reports is that the level of absenteeism reflects the mother’s dependency on the children.  She cannot bear to have the children leave her, ergo, they cannot go out and play with friends, they cannot engage in team sports, they cannot attend school on a regular basis because her needs are for her to have them in attendance.  It is a deep-rooted psychological or psychiatric disorder.  One can feel the greatest sympathy for the mother’s problems but the law requires me to focus on what is in the best interests of these young boys.

19. The mother has a past history of dependency on prescription medication.  It appears she has a high level of physical pain and the greatest single problem, and the cause of much of the difficulties for the children, is the enmeshment with their mother, produced largely as a result of her histrionic personality disorder. 

20. I would request the father to subpoena police records about the motor vehicle accidents involving the mother which have occurred in recent months.  The police should have traffic records.  The father, I have indicated, should arrange for somebody from S School either to provide a letter or a report, or be prepared to give oral evidence as to what the school’s recommendations are, but I have recommendations from a psychiatrist and a psychologist that the children should be taken from their present environment and put in a safe environment.

21. I have had regard to the material of today’s date.  Dr G back in about 2006, I believe, noted of the mother:

    “Her history indicates significant rejection by her father and substance abuse.”

22. Well, here we have it all being played out again.  The parties did not produce girls, they produced boys, but just as she was rejected by her father, there is a projection onto these children that they have to reject their father.  Dr G says:

    “She has a long history of very significant psychiatric disability.  It’s difficult to reach a firm diagnosis on the basis of one interview, but it is my belief that she fills the diagnostic criteria for a diagnosis of histrionic personality disorder.”

23. She then goes on to make remarks about the children, observations about the children that should have had alarm bells ringing at that stage, but in a large measure, for whatever reason, I cannot quite put my finger on the pulse here, but the father has acquiesced in the mother’s overwhelming demands financially.  She is very controlling.  She demands this.  She holds everybody to ransom.  You cannot see your children unless you do this.  So if she is actively engaged in turning the children against the father it is possible the damage has been done.  Certainly in the case of D there is a real risk that that is the case.  If not, if it can be remedied, it is going to take a long period of therapy, I would have thought.

24. But for the fact that the Department of Communities sent a representative to court today, I would have been very much minded to simply make the order as per the father’s application, take the children out of S School and send them up to O School, on the simple philosophy, it cannot be any worse.

25. Now, I am mindful of the fact that the Department has had two notifications and they are doing an urgent investigation, but even with the best will in the world it is going to take about a fortnight, I am informed. I request a section 91B report to be available for the adjourned date of 28 October and I request if the author of the report could be made available at that time, for possible evidence.

26. I will make an order, as I have indicated, giving the report writer full access to the Family Court file and subpoenaed records.

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

Associate: 

Date:  12 October 2009