Halifax and Halifax (No. 2)

Case [2021] FamCA 477

FAMILY COURT OF AUSTRALIA

Halifax & Halifax (No. 2) [2021] FamCA 477

File number(s): BRC 622 of 2009
Judgment of: KENT J
Date of judgment: 6 July 2021
Catchwords: FAMILY LAW – PARENTING – Whether unacceptable risk of harm – Where the father made threats and statements to an older child of the relationship who is now an adult and gave evidence at trial – Whether the father poses an unacceptable risk to the child if the child’s time with him is unsupervised – Where the father has a lack of insight as to the effect of his threats and statements – Where the father has demonstrated a commitment to the child and to his relationship with the child over an extended period at considerable cost – Where there are constraints upon the child’s relationship with the father by the imposition of supervision – Where a progression to unsupervised time would be consistent with the child’s views – Where in the circumstances unsupervised time would not pose unacceptable risk.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 64B, 65L, 68L

Cases cited:

Betros & Betros [2017] FamCAFC 90

Halifax & Halifax [2020] FamCA 312

Harridge and Anor & Harridge and Anor [2010] FamCA 445

M v M (1988) 166 CLR 69; [1988] HCA 68

N and S and the Separate Representative (1996) FLC
92-655; [1995] FamCA 139

NEAT Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66

B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569

Number of paragraphs: 154
Date of hearing: 28–30 April 2020;
and 9–10 November 2020
Place: Brisbane
Counsel for the Applicant: Ms Chekirova
Solicitor for the Applicant: A P Hodgson & Associates
Counsel for the Respondent: Ms Lyons
Solicitor for the Respondent: Cherry Family Lawyers
Counsel for the Independent Children's Lawyer: Mr Dodd
Solicitor for the Independent Children's Lawyer: Stewart Family Law

ORDERS

BRC 622 of 2009
BETWEEN:

MS HALIFAX

Applicant
AND:

MR HALIFAX

Respondent
AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KENT J

DATE OF ORDER:

6 JULY 2021

THE COURT ORDERS THAT:

1.The following parenting orders shall apply for the child, X born … 2008.

Parental Responsibility

2.Except as otherwise stated, the mother shall have sole parental responsibility for the major long term issues for X.

3.The parents have equal shared parental responsibility concerning any decision for X to undertake any international travel and any decision to obtain any passport or travel document for X for the purpose of X undertaking any international travel.

Exchange of Information

4.The mother and father shall:

(a)keep the other parent informed at all times of their residential address;

(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat X and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about X;

(c)inform the other…

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AGLC
Halifax and Halifax (No. 2) [2021] FamCA 477
Case
[2021] FamCA 477
Decision Date

CaseChat Overview and Summary

In the matter of *Halifax and Halifax (No. 2)*, Kent J of the Family Court of Australia considered parenting orders concerning the child, X. The proceedings involved Ms Halifax (the applicant mother) and Mr Halifax (the respondent father), with an Independent Children's Lawyer also participating. The central dispute revolved around whether the father posed an unacceptable risk of harm to X, particularly in relation to the progression of X's time with him from supervised to unsupervised contact.

The court was required to determine the extent to which the father's past threats and statements, made to an adult child of the relationship who gave evidence, created an unacceptable risk to X. A key issue was the father's insight into the impact of these threats and statements. The court also had to consider the father's demonstrated commitment to X and his relationship with her, weighed against the constraints imposed by ongoing supervision and X's own views on the matter.

Kent J reasoned that while the father's threats and statements to the older child were serious and confronting, and indicated a lack of insight, a progression to unsupervised time with X would not pose an unacceptable risk in the circumstances. The court noted the father's long-standing commitment to X and his relationship with her, and that a move towards unsupervised time would be consistent with X's views. The court also acknowledged the need to protect X from risks similar to those experienced by the older child, but found that X's increasing maturity and the implementation of safeguards would accommodate these risks.

The court made orders for X to live with the mother, with the parents sharing equal parental responsibility for decisions regarding X's international travel and passports. The orders detailed a progression of X's time with the father, commencing with supervised contact at a contact centre and transitioning to unsupervised time, including alternate weekends and periods during school holidays. A Family Consultant was appointed to assist with the progression to unsupervised time, and the mother was at liberty to engage X in counselling. The Independent Children's Lawyer was to be discharged, subject to any appeal.

Orders

Orders of the court

BRC 622 of 2009

BETWEEN:

MS HALIFAX

Applicant

AND:

MR HALIFAX

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KENT J

DATE OF ORDER:

6 JULY 2021

THE COURT ORDERS THAT:

1. The following parenting orders shall apply for the child, X born … 2008.

Parental Responsibility

2. Except as otherwise stated, the mother shall have sole parental responsibility for the major long term issues for X.

3. The parents have equal shared parental responsibility concerning any decision for X to undertake any international travel and any decision to obtain any passport or travel document for X for the purpose of X undertaking any international travel.

Exchange of Information

4. The mother and father shall:

(a) keep the other parent informed at all times of their residential address;

(b) keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat X and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about X;

(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by X and authorise any treating medical practitioner to release X’s medical information to the other parent.

Living Arrangements for X

5. X shall live with the mother.

6. Pending the commencement of X spending unsupervised time with the father as provided for in Order 7, X continue to spend time with the father at the M Contact Centre, Suburb N (“the contact centre”) in accordance with the orders made on 24 October 2019 provided that:

(a) the parents do all acts and things reasonably required to facilitate with the contact centre provision for the supervised time occurring in a single block period of three (3) hours per fortnight on a Saturday or a Sunday, in lieu of the times provided in the 24 October 2019 orders; and

(b) the father continue to be responsible for all costs associated with X spending time with him at the contact centre.

7. Commencing Friday, 8 October 2021 X spend time with the father:

(a) each alternate weekend from after school Friday until before school Monday to continue fortnightly;

(b) this Order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.

8. Commencing in the school holiday period commencing in December 2021, X shall live with her parents for school holiday periods as follows:

(a) being the first half of the Autumn, Winter, Spring and Summer school holidays in even numbered years with the father and in odd numbered years with the mother; and

(b) the second half of the Autumn, Winter, Spring and Summer school holidays in odd numbered years with the father and in even numbered years with the mother;

(c) for the purpose of these Orders, the school holiday time shall commence:

(i) when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;

(ii) when a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when contact shall end at 5.00pm on the day before the school term recommences;

(iii) school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 5.00pm on the day before X returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.

9. Notwithstanding any previous Orders, X shall spend time with her parents on special occasions as follows:

(a) for Christmas Day:

(i) from 5.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years with the father and in odd numbered years with the mother; and

(ii) from 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years with the father and in even numbered years with the mother.

(b) on X’s birthday (with the parent she is not living with on the day):

(i) if a school day, from after school until 6.00pm;

(ii) if a non-school day, from 1.00pm until 6.00pm;

with that parent to be responsible to collect and return the child.

(c) with the father on the Father’s Day weekend and in the event that is a non-contact weekend, the father shall forgo the following weekend of contact;

(d) with the mother on the Mother’s Day weekend and in the event that is a non-contact weekend, the mother shall forgo the following weekend of contact.

Collection and Delivery

10. Except as otherwise ordered, the changeover point for the transition for X between the households shall be the school of X and if changeover is to occur out of school time then at the residence of the parents and for that purpose:

(a) the parents may collect X in person or by their nominee provided that the nominee is an adult who is known to X and the other parent;

(b) each parent shall be punctual in attending the changeover and if there is to be a delay shall advise the other parent by text message;

(c) unless otherwise agreed neither parent shall approach the other and shall remain near their cars so as to enable X to move readily between the vehicles.

11. Each parent shall deliver and return X’s clothing, school supplies and belongings and X’s clothing shall be returned in a clean condition.

Section 65L Orders

12. Pursuant to s 65L of the Family Law Act 1975 (Cth) a Family Consultant be appointed by the Director of Child Dispute Services to assist the mother and X in complying with these orders and in particular as regards the progression to X commencing to spend unsupervised time with the father from October 2021.

13. The mother shall comply with all reasonable requests of the appointed Family Consultant including as to any arrangements to be made for X to attend upon the Family Consultant as requested by the Family Consultant.

14. The appointed Family Consultant shall be permitted access to a copy of these reasons for judgment and any material contained on the Court file including available transcripts of evidence for the purpose of providing such assistance.

Counselling

15. The mother shall be at liberty, in the exercise of her parental responsibility, to engage X in counselling assistance or support from a qualified provider both prior to and subsequent to October 2021, and for that purpose the mother be at liberty, pursuant to s 121 of the Family Law Act 1975 (Cth), to provide a copy of these reasons for judgment and orders to any professional provider of counselling support to X.

Discharge of Independent Children’s Lawyer

16. Subject to any appeal, in which event this order shall not take effect, the Independent Children’s Lawyer be discharged.

THE COURT NOTES THAT:

A. Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

As to parental responsibility,[6] whilst the father had earlier maintained the position that there ought be an order for equal shared parental responsibility, by the stage of final submissions at the trial, the father by his counsel acknowledged that equal shared parental responsibility would not be “practicable or workable”.[7] The father proposed an order for the mother to have sole parental responsibility save in respect of X’s schooling, her name and overseas travel.[8][6] Within the meaning of s 60B of the Act.[7] Transcript 10 November 2020, p.78 lines 17–18.[8] Transcript 10 November 2020, p.78 lines 1–4.RELEVANT FACTUAL BACKGROUND As already noted, the parents finally separated and divorced more than a decade ago. Likewise, more than a decade has passed since the parents’ engaged in the trial resulting in the parenting orders made in the then Federal Magistrates Court on 5 July 2010, as earlier referred to. Only the youngest child is now the subject of these proceedings. These basic facts, together with the central issue of whether or not X would be exposed to risk by spending unsupervised time with the father, renders it unnecessary to traverse in complete detail the full and lengthy history of disputation between the parents, either prior to or subsequent to their final separation in about 2008. For example, the father has historically agitated a range of complaints about the mother’s mental health, her physical abuse of the children and in particular Mr F, and her misuse of alcohol. At least some of the historical subpoenaed records of the Queensland Police Service and of the Department of Child Safety contained within documents in a tender bundle compiled by the ICL give some credence to at least some of the historical allegations advanced by the father against the mother. For example, there is historically clear evidence of property damage caused by the mother to the father’s property and clear evidence of historical drink driving offences by the mother. That noted, the mother relied upon affidavit and oral evidence from each of her general medical practitioner (Dr J); her mental health social worker (Ms K) and her consultant psychiatrist (Dr L) to establish, as I accept to be the case, that the mother engages appropriately with mental health professionals as needed. For her part, the mother has historically advanced a range of serious allegations concerning the father’s conduct towards her, including in the period prior to their final separation in 2008, such conduct including coercive and controlling behaviours and abusive behaviours. In my judgment, the resolution of many of these historical allegations by one parent against the other or resolution of numerous disputed issues of historical fact is unnecessary to the determination of current parenting orders which meet X’s best interests. A summary of centrally important facts providing the relevant context of the current parenting issues concerning X is all that is necessary.

Evidence

Evidence Before The Court

In summary, for reasons already stated, and for the reasons which follow:(a)I am satisfied that X would benefit, and continue to benefit, from having a meaningful relationship with both of her parents. In my judgment that is best achieved by X continuing to live primarily with the mother but, subject to risk issues being addressed, having expanded opportunities for time with the father;(b)There is a need to protect X from risks of the kind experienced by Ms B via the threats and statements she received from the father. Orders allowing for X’s further maturity and for safeguards to be put in place accommodate the relevant risk;(c)A progression of X’s time with the father to expand to timeframes similar to those ordered on 5 July 2010, and which has been X’s experience prior to 2018, would be consistent with X’s views or at least more consistent than supervised time;(d)There has been family violence in this case as discussed;(e)A reversion, in effect, to a parenting regime similar to that which operated following the 5 July 2010 orders would not herald a profound effect or change for X given her familiarity with it previously, albeit that it would be a significant change to the present regime. The mother ought have sufficient opportunity to enlist professional support for X and for herself before unsupervised time re-commences.EVIDENCE OF RISK Ms B details in her affidavit[12] the series of threats or statements made by the father to her during 2018. Ms B was 17 years of age at the time. On any reasonable view, the statements and threats are of a gravely serious kind and are confronting to read. They were no doubt confronting for Ms B to receive directly from the father.[12] Affidavit of Ms B filed on 26 February 2020. The most relevant parts of Ms B’s affidavit bear repeating as follows:[13][13] Affidavit of Ms B filed on 26 February 2020.5. In around August 2018, I was talking to my father after he was not able to contact [X] as per the court order. He said that he was very close to ending it all by driving through my mother’s house.6. A couple of weeks later, I was again talking to my father about his frustrations with not being able to contact [X]. He said words to the effect of “there's only so much one person can handle”.7. He then said that either he would, could, will or might (I cannot recall the exact wording) “shoot her in the head”, referring to my mother.8. My father owned firearms and had them at the property at the time.9. I told him that these comments were not okay or acceptable, and to consider how they would make me feel. He said that he did not care.…16. About a week or two later, we again had a discussion about his frustrations about [X] not being able to contact him. The week prior, I had to facilitate a phone call between [X] and him, as my mother was at work. I have told both my parents that I do not want to be involved with facilitating their time with [X]. I therefore initiated this conversation with my father and said that I was disappointed to be put in the middle.17. He said, words to the effect, “it’s lucky you answered the phone as I was this close to doing something about it. I would have shot you all to end it” and further, “if I can't have [X], no one can”.18. He then started talking about [S Group] and how [many] fathers a week have killed themselves or their families due to the stressors of the court proceedings. He said, words to the effect, “I don't want to be one of those fathers but the situation makes it so hard for me to cope”.19. He then mentioned that he had been gun shopping recently.20. He asked whether I wanted to know how close he has been to acting out, and I said “sure”.21. He said, words to the effect, that “I had a plan to kill the first judge who made the parenting orders. I knew the judge's schedule but he died the week before I was going to do it”.22. He also said, words to the effect, “I also planned to drive a concrete truck through the court building with a bomb”. He listed the specific chemicals and ingredients he would use to make a bomb. I don't not recall the ingredients he listed exactly. He then said, words to the effect, “I couldn't do it because of the concrete road blockers out the front of the Family Court. They are filled with titanium”.(As per the original)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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