Wolleman and Wolleman

Case [2018] FCCA 1000

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOLLEMAN & WOLLEMAN [2018] FCCA 1000
Catchwords:
FAMILY LAW – Parenting – children aged 10 & 7 currently living with their father – second round of proceedings – where the mother has a fixed belief that the father poses a risk of sexual harm to the 10 year old and that both children fear their father – where no other person who has contact with the children shares those beliefs – where the 10 year old is refusing to see the mother after the mother withheld both children from the father for two months in 2017 – where it is impossible to make orders which will restore the 10 year old’s relationship with her mother – order made for the 7 year to spend limited supervised time with the mother.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA
Applicant: MR WOLLEMAN
Respondent: MS WOLLEMAN
File Number: NCC 3375 of 2014
Judgment of: Judge Terry
Hearing dates: 7 & 8 March 2018
Date of Last Submission: 8 March 2018
Delivered at: Newcastle
Delivered on: 21 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Gray
Solicitors for the Applicant: Rethink Law Pty Limited
The Respondent: In person
Solicitor Advocate for the Independent Children’s Lawyer: Ms O’Rourke
Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

  1. All previous parenting orders in relation to the children [X] born (omitted) 2007 and [Y] born (omitted) 2011 (“the children”) are discharged.

  2. The children shall live with the father.

  3. The father shall have sole parental responsibility for the children.

  4. The mother shall spend time with [Y] as follows:

    (a)Supervised by Big Brown House (“the supervisor”);

    (b)For 2 hours in March, June, September and December of each year at times determined by the supervisor;

    (c)[A] may accompany the mother on the supervised time;

    (d)There is a risk to [Y] that the mother may talk to [Y] about her fears for the children in the father’s care and a session of supervised time is to be immediately terminated if the mother:

    (i)Denigrates the father or the father’s family or friends; or

    (ii)Raises with [Y] that the father has acted abusively or inappropriately with the children.

    (e)Within 7 days of the date of these orders, the parties are to contact he supervisor (telephone (omitted)) to arrange the supervised time and, thereafter are to comply with the directions of the supervisor;

    (f)The parties are to share equally the costs of the supervisor;

    (g)The father is to provide the supervisor with a copy of these orders.

  5. The mother may communicate with the children by sending letters, cards, photographs and/or gifts to the children for the children’s birthdays, for Christmas and on 2 other occasions in a calendar year at a contact postal address provided by the father.

  6. If the children, or either of them, express a wish to send letters, cards, photographs and/or gifts to the mother, the father is to facilitate the children to do so at a contact postal address provided by the mother.

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AGLC
Wolleman and Wolleman [2018] FCCA 1000
Case
[2018] FCCA 1000
Decision Date

CaseChat Overview and Summary

This case concerned parenting orders for two children, [X] and [Y], born in 2007 and 2011 respectively. The dispute was before Judge Terry. The father sought orders for the children to live with him and for him to have sole parental responsibility. The mother sought supervised time with the children.

The court was required to determine the best interests of the children, specifically considering the benefit of a meaningful relationship with both parents and the need to protect the children from harm, abuse, neglect, or family violence. Key issues included the mother's allegations of family violence against the father, the children's exposure to these allegations, the mother's parenting capacity, and the potential for the children to have a relationship with both parents. The court also had to consider the children's nationality and the mother's desire to take them to her non-Hague Convention country of origin.

The court reasoned that while most children benefit from a relationship with both parents, the orders sought by each party would severely limit this. The court found no evidence of the children being exposed to abuse, neglect, or family violence in the father's care. However, it identified a risk of psychological harm to [X] if she spent unsupervised time with the mother due to the mother's "fixed false belief" about the father's alleged abuse. The court noted the mother's past refusal to engage in supervised time with [Y] and concerns raised by a family consultant in 2015 regarding the mother's parenting style, including being not child-focused, dismissive, and not attuned to her children's needs. The court also considered the mother's actions in withholding the children and her psychologist's letter, which stated the children were in fear of the father, despite the absence of an apprehended domestic violence order.

The court ordered that all previous parenting orders be discharged. The children were to live with the father, who was granted sole parental responsibility. The mother was granted supervised time with [Y] for two hours per year in March, June, September, and December, supervised by a named organisation, with strict conditions to prevent her from denigrating the father or raising allegations of abuse with [Y]. The mother was restrained from approaching or communicating with the children, except for sending letters, cards, photographs, or gifts on specific occasions. The father was to facilitate the children sending similar items to the mother if they wished. The court also made orders regarding the children's communication with their brother [A], the parties' conduct towards each other in the children's presence, and the mother's access to school reports and photographs. Crucially, the mother and the children were restrained from leaving the Commonwealth of Australia, with a request for the Australian Federal Police to place their names on the Watch List for five years.

Orders

Orders of the court

1.

All previous parenting orders in relation to the children [X] born (omitted) 2007 and [Y] born (omitted) 2011 (“the children”) are discharged.

2.

The children shall live with the father.

3.

The father shall have sole parental responsibility for the children.

4.

The mother shall spend time with [Y] as follows:

(a) Supervised by Big Brown House (“the supervisor”);

(b) For 2 hours in March, June, September and December of each year at times determined by the supervisor;

(c) [A] may accompany the mother on the supervised time;

(d) There is a risk to [Y] that the mother may talk to [Y] about her fears for the children in the father’s care and a session of supervised time is to be immediately terminated if the mother:

(i) Denigrates the father or the father’s family or friends; or

(ii) Raises with [Y] that the father has acted abusively or inappropriately with the children.

(e) Within 7 days of the date of these orders, the parties are to contact he supervisor (telephone (omitted)) to arrange the supervised time and, thereafter are to comply with the directions of the supervisor;

(f) The parties are to share equally the costs of the supervisor;

(g) The father is to provide the supervisor with a copy of these orders.

5.

The mother may communicate with the children by sending letters, cards, photographs and/or gifts to the children for the children’s birthdays, for Christmas and on 2 other occasions in a calendar year at a contact postal address provided by the father.

6.

If the children, or either of them, express a wish to send letters, cards, photographs and/or gifts to the mother, the father is to facilitate the children to do so at a contact postal address provided by the mother.

7.

The mother is restrained from approaching or communicating with the children.

8.

The father is to use his best endeavours to arrange for the children to spend time and communicate on a regular basis with their brother [A].

9.

When the children, or either of them, are in the parties’ presence or hearing, the parties are restrained from denigrating the other party or the other party’s family or friends.

10.

The father is to authorise and direct the children’s school(s) to send copies of the children’s school reports and school photographs to the mother (at the mother’s cost) at a contact postal address provided by the mother.

11.

If the children or either of them have a medical issue which involves them being admitted to hospital, the father is to promptly notify the mother at a contact email address provided by the mother about the medical issue.

12.

The parties are to keep each other informed of their current contact postal address and contact email address and the father is to keep the mother informed of his current mobile telephone number.

13.

In the event that the mother elects to seek psychiatric therapy, she is granted leave to provide her psychiatrist with copies of these orders, the Reasons for Judgment, the Family Report of Regulation 7 Family Consultant Ms S dated 13 November 2015 and the Limited Issues Family Report of Family Consultant Ms K dated 5 September 2017.

14.

MS WOLLEMAN and her servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of [X] born (omitted) 2007 and [Y] born (omitted) 2011 from the Commonwealth of Australia.

15.

[X] and [Y] be and are hereby restrained from leaving the Commonwealth of Australia.

16.

It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said child or children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s names on the Watch List for a period of five years.

17.

Upon expiration of the period referred to in Order 15 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.

Background

Background to the litigation

I must consider the children’s maturity, sex and background. The children are (nationality omitted) as well as Australian. That is a very important thing for them and the mother would like to take the children to (country omitted) to see her family. She wants to take them back to her village which is not on the main island where the tourists go. The father does not trust the mother to bring the children back. (country omitted) is not a Hague Convention country. It will be highly regrettable for the children if they are not able to visit (country omitted) with their mother who is (nationality omitted). It will be a loss for them if they cannot do that. Even if at some point in the future the father decides to take them there it won’t be the same as if they went there with someone who shares their culture, but that is simply one matter that I am going to have to weigh in the mix in deciding what I am going to do with the matter. I must have regard to the attitude of each party to the children and the responsibilities of parenthood. The mother showed an extremely poor attitude in withholding the children in April 2017 and in not agreeing to see [Y] supervised in June but I have already covered those issues in other sections of the judgment. I must consider the issue of family violence. The Court takes allegations of family violence extremely seriously. Anyone who has ever read any of my judgments or seen me sitting in Court determining matters would have no hesitation in accepting that and I have to consider the mother’s allegations and decide what I am going to do with them. The mother alleged that when [X] was eight months old the father hit her across the face with his hand resulting in bruising to her face and neck. She alleged that the father picked [A] up by the throat and carried him down the hallway and then into his bedroom and threw him in the bed. Both of these incidents were said to have taken place in (country omitted). The mother alleged that there was an occasion when the father pushed her onto the lounge, pushed her hands behind her back, knelt on her neck and put his hands around her neck and held her tightly and she alleged that the father released her after she bit his thumb. She alleged that in June 2014 when the parties were living in (omitted), there was an occasion when the father attempted to hit her and she ran off. She said the father caught up with her and pinned her to the ground and put both hands around her neck. She said that police were called. However, she said Mr G came along and told the police he had been there and nothing had happened and [A] also said nothing had happened. She said that Mr G lied to the police and [A] was too afraid to say anything. What the mother failed to mention in her affidavit was that in June 2014, the police applied for an ADVO for the protection of the father, [X], [Y] and [A] from the mother after the father alleged the mother became angry with him and picked up a computer cord and swung it causing small bruises on his arm and threw clothes and items around the room.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I must consider the extent to which each party has taken or failed to take the opportunity to spend time with the children, to make decisions about them or to communicate with them. The mother could have spent supervised time with [Y] from June 2017 if she had been willing to do so but she was not and by the time she finally changed her mind the father was not willing to agree to it. The fact that the mother rejected that opportunity is relevant to the issue of her parenting capacity and her capacity to provide for the children’s emotional needs. I must consider the likely effect of any change in the children’s circumstances. That is a big issue in the case and I will consider it further in my conclusion of the judgment. I must consider the practical difficulty and expense of the children spending time with a parent or communicating with a parent. That is not a relevant issue at present because both parties are living in (omitted). I must consider the capacity of each parent to provide for the needs of the children, including their emotional and educational needs. I am going to deal with the mother’s capacity first because she makes allegations about the father and I will have to make some findings about those before I deal with the father’s capacity. Ms S set out her concerns about the mother’s parenting capacity in her 2015 report. They are referred to in paragraph 102, 103, 104, 106, 107, 108, 111 and 115 and also in 117 and 118 and they are summarised in paragraph 124 as follows: Unfortunately, throughout the observation Ms Wolleman was not child-focused. She was dismissive, and she ignored verbal and behavioural clues from the children. She was loud, intrusive and overall not attuned to her children’s needs. It was concerning that she seemed distant from [X], and there was a notable difference in her attention and engagement with [Y] while for the most part ignoring [X]. Of particular concern was [X] seeming to shut down after repeated unsuccessful attempts to engage and participate with the mother. These were issues for the family consultant in 2015 and they no doubt partly informed her recommendation that the children should live with the father. One of the problems in respect of the mother’s capacity to provide for the children’s needs is that the mother’s views about the children are at odds with the children’s reality, and she conveys to others that the children are in fear of the father and they accept that as the children’s reality. After the mother withheld the children in April 2017, she consulted a psychologist, Mr W, and on 28 May 2017 he wrote a letter for the mother headed “To whom it may concern” which included the following:This is to confirm that I have seen Mrs. Wolleman on six occasions now beginning on 15th April 2017, and most recently on 28th May 2017. She reported that she and her children are in fear of her estranged husband Mr Wolleman because of his physical and emotional abuse. She also reported that he has been stalking her, and that she is in the process of obtaining an AVO against him to prevent any further contact with her or the children.The AVO is not currently in place, and the children are in fear that if they attend school, their father could turn up there and collect them. There are no court orders in place to prevent this from happening. Mr Wolleman has twice refused to attend mediation, and the matter will proceed to court for orders to be made, on a date to be advised.In order to ensure the safety of the children, I have advised Mrs. Wolleman not to send the children to school until they can be assured that their father will not come there. I suggested that Mrs. Wolleman contact the school to arrange for work to be sent home until they return to school. She has now collected this material, and has begun work on it at home with the children.[8][8] Annexure “A” to the mother’s affidavit filed on 6 June 2017.

Ratio Decidendi

Legal Principle Established

I now have to return to the primary considerations which are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence. Most children – in fact I would probably go so far as to say all children – benefit if they can have a relationship with both parents rather than just one and the orders sought by both parents in this case would severely limit the children’s relationship with the other parent. The father does not want the children to see the mother at all at the moment. The mother wants the father to see the children only supervised at a contact centre. It is seriously open to question whether any order I make would result in [X] being able to have a meaningful relationship with her mother. The mother has a fixed false belief about [X] being at risk of harm. [X] has been exposed to so much since the parties separated: the Mr R incident, being taken to the doctor and then being withheld, that she has become completely resistant to spending any time with the mother. I doubt that any order I make can retrieve that situation. [Y] potentially could have his relationship with the mother restored, potentially could have although I cannot be sure how good the relationship would be. There are some issues with the mother’s parenting style but there is a potential for [Y] to have his relationship with his mother restored if an order were made which facilitated her spending some time with him. I must have regard to the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There is no evidence that the children are exposed to any of those things in the father’s care. There is a risk of [X] being subjected to psychological harm if she spends unsupervised time with the mother. Abuse is defined in the Family Law Act to include causing the child to suffer serious psychological harm, including but not limited to when the harm is caused by the child being subjected to or exposed to family violence. The harm [X] is being subjected or exposed to is exposure to the mother’s fixed false belief that she is at risk of sexual harm from the father. That has the potential to cause her psychological harm and may already have done so and [X] would be at risk of abuse if she spent unsupervised time with the mother. There is no risk otherwise of the children being subjected to or exposed to abuse, neglect or family violence as those terms are defined at present in the mother’s home. She has ended her relationship with Mr R. The father raised a concern about some Facebook entries by a man he felt the mother might have been seeing recently. I cannot make any findings about what that is all about because it was not explored at trial. It did raise a concern in my mind when I read it however because Mr R was apparently spurred on to assault the father, not that I am suggesting the mother asked Mr R to assault the father but a seed was planted in Mr R’s head and he then acted out. However I cannot make any findings about any risk this other man might pose because the issue was not explored at trial.