Waverley and Labelle (No. 3)

[2018] FamCA 932

FAMILY COURT OF AUSTRALIA

WAVERLEY & LABELLE (NO. 3) [2018] FamCA 932

FAMILY LAW – CHILDREN – Parenting – where recently made interim orders provided (by consent) for the children to reside with the mother and spend time with the father – where father over-held children.
FAMILY LAW – CASE MANAGEMENT – independent children’s lawyer appropriately referred matter back to Court as soon as possible.
FAMILY LAW – CHILDREN – Parenting – narrative of what occurred at mention.

APPLICANT: Mr Waverley

RESPONDENT: Ms Labelle

INDEPENDENT CHILDREN’S LAWYER: MS M LONERGAN

FILE NUMBER: MLC 1021 of 2017

DATE DELIVERED: 14 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT:

(1)The mother and the father each forthwith provide to the independent children’s lawyer a copy of each and every communication by them or on their behalf made since 12.00 noon on 8 November 2018 concerning the children B born … 2006 (“B”) and C born … 2008 (“C”) or either of them.

(2)To the extent that it is necessary, there be leave to the independent children’s lawyer to cause subpoena to issue for telephone records as discussed.

(3)This matter be listed before me tomorrow, 15 November 2018, if the children are not returned to the mother’s household.

(4)Otherwise this matter remains listed for mention before me on 22 May 2019 at 9.00 am.

AND IT IS NOTED that the child B will be returned to the mother’s household tonight and that henceforth the parenting orders made on 30 October 2018 will be observed.

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 Waverley & Labelle (No. 3) 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 MELBOURNE

FILE NUMBER: MLC 1021 of 2017

Mr Waverley

Applicant

And

Ms Labelle

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR DECISION

1. This matter comes before me for mention at the request of the independent children’s lawyer, Ms Lonergan (“the ICL”).

2. In accordance with the Order made on 30 October 2018 the children were to spend time with the father from the conclusion of school on Friday 9 November 2018 until they were due to be delivered to their respective schools on Monday 12 November 2018.  The children were not returned to the mother after school on Monday 12 November 2018 or since.  They are both at school today.

3. The Order made 30 October 2018 was interim but it is contemplated that the care arrangements provided therein will pertain at least until the further mention of this matter in May 2019. It is clear from the social science evidence that the children will benefit from a respite in proceedings. The Order made was by consent. My reasons on that occasion appear as [2018] FamCA 919.

4. I am informed that the father sees no impediment to the children being returned to the mother after school today.  On that basis, I will not make orders for their return.  However, if arrangements are not made for the children to return, the ICL can notify my associate and the matter will be listed tomorrow.  If this occurs, each party should let the other parties know in writing what orders he/she will seek be made at the mention and any hearing I give the parties.

THE MENTION

1. I set out below a narrative that emerged from the submissions of the father, the mother and the ICL. The parents spoke from the bar table.  No one was cross examined although I did ask some questions to obtain more detail or for clarification.  What each parent relayed is untested.

2. The mother stated that in the last few weeks she has expressed concerns to the independent children’s lawyer, the father, the school, and B’s counsellor at J School, Ms S, about B’s frame of mind.  The mother believed (and still might) that something is happening at school to unsettle B but she was unaware of the details.

3. On Wednesday 7 November 2018 the mother received a phone call from the school’s nurse who said that B was complaining that she had “lost her memory completely”.  The mother said that it was common for B to see the nurse frequently when she was not coping at school. 

4. The mother stated that on Wednesday night (7 November) B was distressed.  The mother asked her neighbour to take B to her house, which occurred and B returned home that night calm. 

5. On Thursday night, 8 November 2018, the mother said B was in a terrible state.  The mother stated she took away B’s mobile telephone because she believed communications to B by phone were causing or contributing to B’s distressed state.  The mother did not intend to exacerbate B’s anxiety and distress by removing the phone but that is what occurred.  B “lost her mind” and proceeded to throw a four hour tantrum during which she woke up C.  The mother recorded a video of some of B’s behaviour. 

6. The mother called her mother and neighbour to seek assistance. She did not call the father.  The mother attempted to remove herself from the situation by going to her room but B came in and continued screaming.  The mother said she attempted to hold B to calm her down.  B calmed down and went to her room.

7. On Friday morning, 9 November 2018, the mother emailed the independent children’s lawyer, the father and the school to alert each of them about B’s tantrum-like behaviour that had occurred on the Thursday night. 

8. The father alleged that on Friday morning B rang him alleging an incident had occurred between her and the mother the night before (Thursday 8 November 2018).  The father stated that B alleged she was physically assaulted by the mother and that B had taken a knife and threatened to cut herself.  He stated that C had told him that he had been pushed into a corner by the mother’s partner, Mr T, when he (C) had attempted to go to the aid of B.

9. The mother denies physically assaulting B, that there was any occasion where B held a knife and threatened to cut herself and, inferentially, that C had been pushed into a corner. 

10. The father stated that B told him that she would not leave school on the Friday until she had seen, in her words, a “child protection lawyer”.  The father stated that after school B spoke to a parent of a child called U who recommended to B that she tell the father to seek legal advice.  The mother alleged that the father did not pick B up from school on the Friday until 6.00pm. 

11. The father stated that on Friday evening he got B to phone a kids’ helpline.  The father stated that B wanted to go to the police to report the mother over the alleged incident but he advised against this and told B he thought it was best if she continued to engage with the school counsellor, Ms S.  B has been seeing Ms S of J School for some months. 

12. The father called the mother on Friday evening.  The mother alleged that the phone call was very short and involved the father stating he was going to report her to the Department of Health and Human Services (DHHS).

13. The father did not contact the mother again until Sunday morning where he sent an email to the mother and the ICL detailing the allegations of abuse against the mother and that the children were too afraid to return to the mother.  The father stated that he did not call her sooner because he wanted to see if B calmed down and changed her version of events.

14. On the morning of Monday 12 November 2018, the father took B to school.  He spoke to Ms V at J School telling her that B had alleged “child abuse” and requested that she organise an appointment for B with Ms S, the school counsellor.  The father then left the school to take C to school via public transport.  C was late to school on this day and the mother received notification of C’s absence from his school whereupon she notified the independent children’s lawyer. 

15. The independent children’s lawyer spoke with the head of middle school at J School, Mr W, who stated that B had been very distressed at school on Monday and it had taken a number of staff members to calm her down.

16. The father and mother spoke on the phone on Monday and the mother told the father she had organised for B to have an urgent appointment with psychologist Mr X at 5.30pm on the same day.  This is a psychologist that B had not seen previously.  The mother accepted the referral to Mr X from her own psychologist.  The mother picked B up from school on Monday afternoon and took her to the appointment.  B called the father during this appointment from Mr X’s phone and stated that she wished to stay with him for the evening.  After the appointment the mother dropped B at the father house in accordance with the child’s wishes.

17. On Tuesday morning, 13 November 2018, the father emailed the independent children’s lawyer, the mother and the school stating that B was not going to be in attendance at school.  He stated that he allowed her to have the day off as she was tired and distressed.  C went to school.

18. On Tuesday morning, the mother emailed my chambers and the independent children’s lawyer stating that the children had been over-held by the father. The father takes issue with the term “over-held” because he said that it was what the children wanted and they were refusing to return to the mother.  By virtue of the father not complying with the Order for the children to reside with the mother, I consider that he over held the children.  The father is responsible for returning the children.

19. The mother stated that she called DHHS on Tuesday and was told that the father had made a notification based on what B and C has reported to him.  The mother explained the incident and was told by a DHHS worker that DHHS did not plan to take any further action.  The mother requested DHHS to speak to Ms S (counsellor from J School).

20. The mother disputes the father’s statement that B was in a distressed state on Friday evening and over the weekend.  The mother has access to the B’s text messages as B had not signed off on the mother’s IPad allowing the mother to see B’s messages.  The mother said that the father took B to a friend’s house on Friday evening.  The mother said the messages show that on Saturday, B was arranging to have friends over to the father’s apartment.  On Monday evening B sent a text message to the father at 9.30pm stating she was going to bed, leading the mother to conclude that the father was not home to take care of the children at that time.

21. The mother alleged that the father has told B’s school and other parents that the mother is a child abuser and subject to a DHHS investigation.  The mother is concerned about the rumours being spread about her as her employer’s children attend the same school as B.  Furthermore the mother said this is a repeat of the harassment she received from the father by vexatious use of legal proceedings in Singapore.

22. The father denies that he has reported anything negative about the mother to staff at B’s school.  However, that does not sit comfortably with his communication to the school about “child abuse”. (see paragraph 18 above).

23. The ICL suggested that family consultant, Ms L, interview B to ascertain her state of mind.  Ms L has recently completed a comprehensive family report in this matter.  Unfortunately Ms L is not available.

24. I stood the matter down to provide the ICL with an opportunity to try to contact Ms S who is the counsellor at J School and a responsible officer of DHHS.  Both attempts were to no avail.  J School requires a written request for information.

25. The ICL was also not able to contact the psychologist, X.

26. The mother informed the court that she has made a further appointment for B to see X on Monday, 19 November 2018 at which point a decision will be made about whether B continues to see Mr X or will consult another practitioner.  Apparently B has reservations about a male psychologist.

27. The mother said that B had contacted her this morning and informed the mother of her “new mobile telephone number”.  Both parents deny having any involvement with B’s acquisition of a further mobile telephone.  I have granted leave to the independent children’s lawyer, to the extent that leave may be necessary, to cause subpoenas to issue to produce documents to telephone service providers for accounts operated by B, the mother and the father.  I have requested the service contract (if any) in relation to B’s new telephone service.  I have also requested a location reading for all phone services since the middle of last week.

28. The father’s version of events is based (in his words) on what the children have told him.  The mother’s version is from her personal knowledge and observations.

29. The father informed the court that he saw no impediment to B and C returning to the mother at the conclusion of the current school day.  On this basis, the mother and ICL were content for there not to be any orders.  If satisfactory arrangements cannot be obtained for the immediate return of the children to the mother’s care, the ICL may again have this matter listed before me tomorrow.

30. Finally, the mother informed me that she is seeing a psychologist and she has requested a referral to a psychiatrist for treatment for herself.

CONCLUSION

1. It was entirely appropriate for the ICL to refer the proceedings back into court before me as quickly as possible following the children not being returned to the mother.  The interests of the children have been well represented.  There were no applications filed or made orally so there is nothing for me to determine.  For case management purposes, the matter returns to Court on 22 May 2019.  However, it can be listed earlier by arrangement with my Associate in the event that there is non-compliance with the Orders or other cause for concern.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 15 November 2018.

Associate: 

Date:  19 November 2018