Walmsely and Presley

[2019] FamCA 540

FAMILY COURT OF AUSTRALIA

WALMSELY & PRESLEY [2019] FamCA 540

FAMILY LAW – CHILDREN – best interests – where the children will remain living with the father and spending time with the mother on an interim basis - where final orders were made in 2016 for the children to live with the mother and spend time with the father – where the mother relapsed into alcohol use – where the mother’s relapse resulted in the children living with the father – where the mother entered rehabilitation and then discharged herself and relapsed – where the mother then entered another rehabilitation centre and successfully completed the program – where the mother continues to engage with services - where the mother has made an application to the court for the children to be returned to her care however conceded on an interim basis that the children should remain living with the father – where the issues in dispute in this current hearing relate to time and communication on an interim basis - where the residence of the children and time with both parents on a final basis is a matter to be determined at a final hearing – where the children have been directly exposed to the their parents conflict and drinking throughout their lives and their education has been greatly disrupted – where the preservation of meaningful relationships takes second place to ensuring safety of the children – where there are real risks present in this case in regard to both parents

Family Law Act 1975 (Cth)

APPLICANT: Ms Walmsely

RESPONDENT: Ms Presley

FILE NUMBER: NCC 495 of 2019

DATE DELIVERED: 24 July 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 24 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Tony Cox Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Brendan Ellis Solicitor

Orders

PENDING FURTHER ORDER

1. That the orders made by consent in this Court on 13 December 2016 (with the exception of Order 1.1) be suspended.

2. That the children spend time and communicate with the mother as follows:

   a)From 7.45 am Sunday (during soccer season) and otherwise from 9.00 am until 5.00 pm on the first, second and fourth Sunday of each calendar month (suspended on Father’s Day, third Sunday to be substituted);

   b)At such other and/or additional times as are agreed between the parties in writing NOTING that writing includes text and email.

3. That the children’s time with the mother occur in the area bounded by the Sydney CBD and the Northern area  of Sydney.

4. The mother may communicate with the children by telephone call or Facetime by the mother calling the father’s mobile telephone as follows:

   a)Twice each week on days and times as agreed between the parents and failing agreement on Wednesday and Friday between 6.00 - 6.30 pm;

   b)On each of the children’s birthdays between 6.00 – 6.30 pm if this day does not fall on a day the mother would be spending time with the child under these orders;

   c)Between 6.00 – 6.30 pm on the mother’s birthday.

5. The father shall ensure that the children are able to communicate with the mother in privacy.

Restraints

1. That the mother is restrained from consuming alcohol:

   6.1At any time when the children are in her care;

   6.2In the twelve hours preceding periods of time when the children are in her care;

   6.3During any period of communication by telephone, Skype and Facetime.

2. That each parent is restrained from denigrating the other party and members of their extended family in the presence or within hearing of the children, and shall remove the children from the presence of any person doing so.

3. Each party will notify the other party as soon as possible if either of the children becomes ill and has to see a doctor or other health professional, or is admitted to hospital and each will provide relevant medical practitioners with all consent necessary for the other party to be present and discuss the child’s medical condition and treatment with that medical practitioner.

4. The parents will keep each other informed of their telephone numbers, residential addresses and email addresses and will notify each other within 24 hours of any change.

5. The mother and father shall comply with all reasonable directions of their relevant treating medical practitioners, psychologists and drug and alcohol counsellors, concerning their treatment for mental health and substance abuse issues.

6. The father shall authorise the children’s health providers, including counsellors, to keep the mother informed of the children’s progress, and to discuss that with the mother, and provide copies of any reports.

7. The father shall authorise the school which the children attend (D School) to keep the mother informed of the progress of the children at school and to provide the mother with all school reports, applications for school photographs and school newsletters (at the mother’s expense if any).

8. Subject to any decision of the principal of the children’s school otherwise, each parent may attend all extra-curricular school and sporting activities involving the children to which parents are invited to attend.

THE COURT NOTES THAT

(A)The mother through Order 10 of her proposed Minute of Order (dated 19 July 2019) expressed her intention to “continue her treatment and sessions with psychologist Dr E, her general practitioner Dr G and the “M Group” Aftercare Program until advised in writing that such treatment or counselling is no longer necessary and is to remain sober hereafter”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walmsley & Presley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A (b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC495 of 2019

Ms Walmsely

Applicant

And

Ms Presley

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an interim application filed on 25 February 2019 by Ms Walmesly, the father of the parties’ two children, aged 11 and a half and almost nine years. The subject children have been living with him since late December 2018, a period of about seven months. The father also filed a Notice of Abuse raising allegations of harm to the children arising from the consequences of the mother’s dependence on alcohol.

2. The father proposed interim orders discharging current final orders, which were made on 13 December 2016 and which I will refer to as “the 2016 orders”. In his interim application, the father proposed that the children live with him, that he have sole parental responsibility, that time for the children with the mother be suspended while the mother was in residential rehabilitation, there be a restraint on removal of the children from the father and restraints on showing Court documents and denigration.

3. The Response, filed by the mother on 27 June 2019, proposed that pending further order, the children continue to live with her and that she have sole parental responsibility for them. Significantly, the mother proposed that the children spend time and communicate with the father supervised at a contact centre for two hours each week. A Notice of Risk was filed raising complaints by the children of allegations of rough, physical conduct by the father with them and of a rough, loud exchange between the parents at a changeover.

4. On 19 July 2019 when the matter came before me in the Duty List, the parties attempted to resolve the issues in dispute. To the credit of the mother, she conceded that on an interim basis, the children should remain living with the father at his home in Suburb N and attending their new school in Suburb F. In respect of other issues, a Minute of Order was put forward by each party with proposals for time and communication and specific issues. They will be marked as Exhibits 8 and 9 in this application.

5. Matters involving provision of information and restraints on denigration were generally agreed. Time and communication was what was primarily in issue.

Brief History of Relevant Events

1. The parties separated in mid-2016, after their marriage of about 16 years ended. That relationship was characterised by family violence, mostly perpetrated by the father on the mother, and abuse of alcohol by both parties, more so by the mother.

2. In November 2016, interim orders were made by the Court after months of dispute.

3. On 13 December 2016, the 2016 orders were made. They were detailed orders, with protective measures for the children, representing protection from the vulnerabilities of both parents. The children were to live with the mother.

4. Following those orders, the mother relapsed into alcohol abuse. There were further applications to this Court.

5. On 24 April 2017, all outstanding applications were dismissed.

6. In December 2017, the father filed a Contravention Application, and in the following March, the mother was found to have contravened the orders. Reasons were given. Additional time for the father with the children was ordered.

7. In 2018, after about nine uneventful months of the 2016 orders being operative, the parties were divorced.

The Law

1. The Family Law Act 1975 (Cth) compels a Judge to consider what is in the best interests of children on an interim basis. The preservation of meaningful relationships takes second place to ensuring safety of children; and there is risk in this case.

2. Tendered into evidence were documents from police records, from the rehabilitation centre, named H Centre, and a letter from the mother’s general practitioner. I take that material into account as indicated.

3. Exhibit 1 was a police record. On 4 January 2019, the mother came to the father’s home to collect the children after a Christmas holiday period of time for them with the father. The father refused to allow the mother to take the children, having judged that the mother was heavily intoxicated. The parties argued. The paternal grandfather intervened, told the parties to separate and wait for police.

4. Police arrived promptly and observed the mother to be “unsteady on her feet, emotionally erratic and had a strong smell of intoxicating liquor emanating from her”. Police concluded that the mother was not in a fit state to care for the children. The mother had arrived with a friend, who had driven her. But the mother must have been unable to assess the extent of her own inebriation, to press for the children being able to return with her. To his credit, the father expressed his willingness for the mother to come back on the next day, Saturday, or Sunday, provided she did not attend intoxicated. Apparently, the mother did not return to collect the children.

5. Exhibit 2 was a police record. On 24 January 2019, the mother contacted her sister and stated “that she was in a bad state and was going to drink herself to death”. That was the statement repeated by the mother’s sister to police. Police attended the home of the mother. They observed that the mother smelt strongly of alcohol. There was one empty whiskey bottle and one half-empty whiskey bottle on the table.

6. The mother denied making comments of self-harm to her sister. She did say to police that she felt overwhelmed and wanted to go to rehabilitation. Police spoke to a friend of the mothers who was present in the home and who was assessed to have been drinking also. He advised police that the mother had made mention of wanting to kill herself a number of times that night. The mother was taken to Suburb J Hospital.

7. Exhibit 3 are records, in January 2019, of the withdrawal unit in Suburb K, which reflected the mother’s report of drinking two bottles of wine and smoking 60 cigarettes per day at that time. The mother was recorded as suffering from depression, fell when drunk and was taken to Suburb J for reasons of mental health.

8. Exhibit 4 was a police record. On 29 January 2019 the mother rang 000, intoxicated asking to go to H Centre. Police advised she would need to be sober for admission.

9. Exhibit 5 was from the H Centre records. On 1 February 2019, the mother was admitted to H Centre. The mother reported that her drinking had been steady at two bottles of wine per day since December 2018. There is some evidence, yet to be explored, that drinking levels went higher than that.

10. On 17 March 2019, the mother left H Centre for reasons set out in paragraphs 42(c) of her affidavit. By her own assessment, there was “no therapy” at H Centre, just strict rules. The mother concedes that she relapsed over the following two weeks, when she left H Centre.[1]  The mother then admitted herself to L Hospital for detox, in approximately early April 2019.

    [1] Affidavit of the mother filed 27/06/2019 par 42(e)

11. Exhibit 6 is a police record. On 19 April 2019, the maternal aunt contacted police and advised that she could no longer look after her sister in her home due to her ongoing alcohol problem. She also told police “things had been going missing”. She wanted her sister to move on out of her home. On that occasion, the mother was affected by alcohol and indicated that she wanted to stay with her sister, “due to not having anywhere to live.”  This was clearly a low point for the mother who then left her sister’s home.

12. On 1 May 2019, the mother commenced rehabilitation as an outpatient through an organisation called M Company. There was a three-month waiting list for the residential program. The day program consisted of three days attendance per week over nine weeks. Annexed to the affidavit of the mother is a certificate dated 26 June 2019 stating that the mother has “Successfully completed the M Company program.”  There is also a letter dated 31 May 2019 outlining the nature of the nine-week program funded by the Department of Health and Aging and New South Wales Health.

13. The evidence of the mother is that she has taken up the offer of a follow-up with M Company of one day attendance per week. The mother speaks very positively of the help the program has provided and continues to provide to her. It is a promising sign.

14. On 27 June 2019, the mother filed her Response in these proceedings. It is apparent that as soon as the mother had completed the program, she applied for the return of the children to her care. Whilst that may be understandable in the context of the children having previously lived with her, what is less clear is why the mother proposed that the children have only supervised time with the father for two hours per week at a contact centre.  This proposal was put forward both on an interim and final basis. It will be a matter for exploration at trial.

15. The children have been exposed directly to their parents’ conflict and drinking throughout their lives, and their education has been regularly disrupted. At a time where the mother relapsed into drinking at dangerous levels, for months, at least, between January and April 2019, the father was able to provide a safer place for them.

16. On an interim basis, the evidence suggests that the parents are competing with each other and blaming each other for the suffering of the children, instead of focusing on their own contribution. If that is found to be the case at trial, it would represent a limit on the capacity of each parent to meet the needs of the children.

17. There are other matters raised in these proceedings which are clearly matters for trial. The mother asserts that the father has not fully complied with orders in regards to his own drinking and mental health. The father, too, has had a history of heavy drinking.

18. Y is almost nine years old now, and the age restriction in the 2016 orders has passed. She has she has lived exclusively with the father since late December 2018 without incident, as has her brother. Nevertheless, the issue of the father’s sobriety and conduct will almost certainly be an issue for trial.

19. Another issue is denigration. The 2016 orders included a restraint. There are allegations in the mother’s affidavit of breaches of that order by the father. If the father is found to have insulted the maternal grandmother to the children in the terms set out in paragraph 26(f) of the mother’s affidavit, that is, to cause them personal emotional distress and also to model disrespect for their grandparents.

20. If the father has been, to quote X, “saying mean things about the mother,” that would be even more hurtful for a child.[2]  Comments about what the mother should do, “calm down”, and flippant remarks about the men the mother may have had as partners, if said, can only hurt the children and leave them powerless to defend their mother, upset even if they do not respond to their father’s statements. An exploration of those allegations is likely to take place at trial.

    [2] Affidavit of the mother filed 27/6/2019 par 26(b)

21. There is no current evidence from treating therapeutic practitioners for the mother other than her general practitioner, namely, her psychologist and psychiatrist. Again, a matter for exploration when the matter is finally determined.

22. There are two reports by a psychologist who has been providing treatment for the children. The father was apparently not a participant in this therapy. Whether that was intentional or a decision by the father or deliberate exclusion by the mother or the psychologist, I simply do not know. There is no reference to the impact on the children of the mother’s alcohol abuse at that time. Both reports were prepared in early 2017. To the extent that it is considered relevant, that therapeutic work will be an issue for exploration at trial. There is a conclusion by the psychologist that the children have Post-Traumatic Stress Disorder as a result of exposure to domestic violence.

23. There is also a letter from the mother’s general practitioner covering the period from February 2018 to 2 July 2019. The letter is somewhat unhelpful, given that there is material repeated that could only have been provided by the mother regarding the care and proper attention of the children and her own relapses into drinking being associated with the children spending time with their father. There is no mention in the letter of the mother’s admission to H Centre, her relapses or current treatment.

Conclusion

1. The orders, therefore, taking all those matters into account are effectively those sought by the father. Neither party in their Minute of Order proposed a change to equal shared parental responsibility. However, it is not possible, at this time, if it ever has been, for the parties to share parental responsibility. All of the 2016 orders, but one which was a discharge of prior orders, have been suspended and an order for the children to live with the father has already been made.

2. Accordingly, the position reverts to each party having parental responsibility for the children until there is a final determination.

3. Day to day care of the children will clearly be exercised by the father. The orders provide for time with the mother three Sundays per calendar month and at other times by agreement. It will be a significant matter of judgment for the father to allow more time for the children if he considers that it is safe and appropriate to do so.

4. Orders have again been made for information exchange, attendance at school by both parents, subject to a direction by the principal otherwise.

5. The time provided for in the orders is likely to be upsetting and saddening for the children. It may be that they would prefer to return to live with their mother, given that that is what they are used to.

6. An order has been made for the appointment of an Independent Children’s Lawyer to inquire into those matters. The practical difficulty is that the father lives in the Suburb F area and the mother in the Town P area. Given the history of relapse by the mother, as set out in these reasons and the history prior to this application, I accept the submission on behalf of the father that a cautious approach must be taken to their safety. Overnight time could put the children at risk of their mother having impaired judgment and being emotionally and physically unavailable to them.

1. The mother, if her evidence is accepted, is doing well now and has not relapsed in the last couple of months. However, it would not be a cautious approach to place the children back with their mother only to have them disrupted again in their home and their school if optimism is not well-founded. There was no proposal by the mother that any other person would be present during overnight time or holiday time.

2. Accordingly, orders are made in accordance with the orders sought by the father.

I certify that the preceding forty-three (43) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 24 July 2019.

Associate: 

Date:  24 July 2019