Hallett and Malcolm and Anor
[2020] FCCA 835
•15 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALLETT & MALCOLM & ANOR | [2020] FCCA 835 |
| Catchwords: FAMILY LAW – Whether two children should spend time with their paternal grandmother in circumstances where she has little or no relationship with them – where their father, who has a significant history of violence, drug abuse and criminal behaviour, does not see them – where the mother is afraid that the paternal grandmother will bring the father into contact with the children if she has unsupervised time with them – where the father’s family are Aboriginal and the mother’s is not – where the mother suffers from Post-Traumatic Stress Disorder as a result of the father’s violence. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60CA, 60CC, 61DA, 61F, 64B, 65C. |
| Cases cited: Russell & Close (Unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993) Re Andrew (1996) FLC ¶92-692 |
| Applicant: | MS HALLETT |
| First Respondent: | MS MALCOLM |
| Second Respondent: | MR HALLETT |
| File Number: | DGC 1446 of 2018 |
| Judgment of: | Judge Small |
| Hearing dates: | 23- 25 October 2019 and 6 November 2019 |
| Date of Last Submission: | 6 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 15 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Peters |
| Solicitors for the Applicant: | Aboriginal Family Violence Prevention & Legal Service |
| Counsel for the First Respondent: | Mr Gates |
| Solicitors for the First Respondent: | Taylor and Barnes Solicitors |
| Counsel for the Second Respondent: | no appearance |
| Solicitors for the Second Respondent: | None |
| Counsel for the Independent Children's Lawyer: | Mr Easteal |
| Solicitors for the Independent Children's Lawyer: | Taft Lawyers |
ORDERS
All previous parenting orders in relation to the children X born in 2011 and Y born in 2013 (“the children”), are hereby discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The children shall spend no time with the father.
The paternal grandmother shall be permitted to communicate with the children by way of cards, letters and/or gifts to be sent to the children by ordinary prepaid post at Christmas, on their birthdays, and on two other occasions per year, and the mother shall ensure that the children are given such cards, letters and/or gifts, subject to her finding them appropriate, and that the children are aware that their paternal grandmother has sent those cards, letters and/or gifts.
The following orders shall take effect when the novel virus COVID-19 pandemic has passed, and gatherings of groups of people are again permitted.
If she has not already done so, the mother shall contact Ms A (“Ms A”) and ask her to organise for the children a program of introduction to their paternal family through family gatherings, and she shall ensure that the children participate in such paternal family gatherings, and through those family gatherings and by other means to be decided by agreement between the mother and Ms A, the mother shall ensure that the children participate in, and learn their place in, B society and culture to the maximum extent practicable.
The mother shall be at liberty to have the children learn about and develop their B and general Aboriginal identity through any other means she might choose, including but not limited to, by way of their participation in school programs provided by Koori Engagement Support Officers.
In addition to the communication set out in paragraph 5 hereof, the paternal grandmother shall spend time and communicate with the children only in the following circumstances:
a)At family gatherings organised by Ms A subject to the following conditions:
i.the paternal grandmother shall not attend any family gatherings where the children might be present without the express consent of the mother having first been obtained in writing;
ii.before attending any family or cultural event where the children might be present, the paternal grandmother shall undergo drug counselling to address her addiction to marijuana, and shall provide to the mother three clean urine drug screen tests provided over a consecutive three month period prior to such attendance, those urine samples being provided at least 21 days apart; and
iii.if the paternal grandmother should inadvertently find herself at any family or cultural gathering where the children are present, she shall not approach the children without the attendance of Ms A or such other B elder as Ms A might nominate;
b)At such other times and places as the parties might agree in writing.
The mother shall ensure that the children’s school makes available to the paternal grandmother, at the paternal grandmother’s cost if any, all school reports, photographs, and information about all prizes or awards won by the children or either of them.
The parties are hereby restrained by injunction from:
a)criticising, insulting, belittling, or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the children or either of them, and from allowing either of them to remain in the presence or hearing of any third party who is engaging in such conduct;
b)discussing these proceedings or any issue the subject of these proceedings, in the presence or hearing of the children or either of them, save to explain the effect of these parenting Orders to them, and from allowing either of them to remain in the presence or hearing of any third party who is engaging in such conduct; and
c)allowing the children or either of them to access, read or have read to them any portion of the Court’s Reasons for Judgment in this matter.
The Order of Judge Small of 18 September 2018 appointing the Independent Children’s Lawyer is hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Hallett & Malcolm & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 1446 of 2018
| MS HALLETT |
Applicant
And
| MS MALCOLM |
First Respondent
| MR HALLETT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between (“Ms Hallett” or “the paternal grandmother”) and (“Ms Malcolm” or “the mother”) in relation to the children X born in 2011 (“X”) and Y born in 2013 (“Y”) (collectively “the children”).
The children’s father, Mr Hallett (“Mr Hallett” or “the father”), took no part in the proceedings, and has not seen the children since he and Ms Malcolm separated in 2015.
The children live with their mother, brother and step-father in Town C. Ms Hallett lives in Town D with her former partner. It takes approximately two hours to drive the 170km distance between the two residences.
No time currently occurs between the children and the paternal grandmother due to the mother’s fear that the paternal grandmother will allow the children to be in contact with Mr Hallett, who, it is undisputed, has a significant and extensive criminal history for violence and drug-related offences, including multiple periods of imprisonment, and who subjected the mother to very serious family violence both during the relationship and after separation.
The mother also cites an incident in early 2017 where the paternal grandmother attended her home unannounced, resulting in an altercation between her and the paternal grandmother, as having “triggered” the Post-Traumatic Stress Disorder (“PTSD”) from which she suffers as a result of the father’s violence. She cites that incident, and its sequelae, as another reason for not wanting the children to spend time with Ms Hallett.
The paternal grandmother seeks orders that she be permitted to see the children fortnightly, initially at a children’s contact centre, that interim orders only be made at this time, and that the matter return for further final hearing in 12 months, and that she be permitted to send the children letters, cards and gifts. She does not seek orders that she have any form of parental responsibility for the children.
The mother does not want the children to spend any time with the paternal grandmother, and asks the Court to strike out Ms Hallett’s Application. She also seeks an order for sole parental responsibility and that the children live with her and spend no time with the father.
The Independent Children’s Lawyer seeks orders essentially the same as those sought by the mother.
Therefore, the sole issue to be determined in these proceedings is whether there ought to be orders for the children to spend time with the paternal grandmother, and if so, what kind of time and in what circumstances.
Background
Ms Hallett is 52 years old, having been born in 1967. Ms Hallett is a B woman, and her children identify as such. Mr Hallett is her eldest child. Ms Hallett is engaged in home duties.
Ms Malcolm is 27 years old, having been born in 1992. She has been diagnosed with PTSD, major depression and anxiety.
Ms Malcolm works part time as a health care worker. She has repartnered with Mr E (“Mr E”), and they have one child together, F, born in 2018. Her partner was working in the construction industry at the time of trial.
Mr Hallett is 28 years old, having been born in 1991 and has not taken part in these proceedings. There is no dispute between the paternal grandmother and the mother that the father should not spend any time with the children, because his persistent and violent criminal behaviour towards them and their mother puts them at an unacceptable risk.
Ms Malcolm and Mr Hallett commenced a relationship in about 2008 when both were teenagers. They lived together at the paternal grandmother’s home in Town G, and subsequently moved around the Town C area. X was born in 2011 and Y in 2013.
Ms Hallett spent time with the children by agreement with Ms Malcolm and Mr Hallett prior to the parties’ separation in early 2015, and by agreement with Ms Malcolm after separation, until the incident occurring in early 2017.
Final Hearing commenced on 23 October 2019 and ran for three days before it was adjourned part-heard to 6 November 2019 where the matter ran for a fourth day. The paternal grandmother, the mother and the Independent Children’s Lawyer were all represented by counsel and the father did not appear.
Witnesses at trial included: the paternal grandmother; Ms A - a B elder (“Ms A”); the mother; Ms H – the Koori Engagement Support Officer who has regular contact with the children at school (“Ms H”); Ms J - Ms Malcolm’s clinical psychologist (“Ms J”); the children’s counsellor Ms K (“Ms K”); and Ms L, the Family Report writer (“Ms L”).
The mother also relied on the Affidavit evidence of Dr M – her general medical practitioner (“Dr M”), and Ms N – another Koori Engagement Support Officer who sees the children at their school once a fortnight (“Ms N”), neither of whom was required for cross-examination.
All other witnesses underwent cross-examination.
Following the conclusion of evidence and upon hearing submissions from all parties’ counsel, I reserved my decision.
The Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes, Affidavits filed by the parties and their witnesses, the trial transcript, and the demeanour of the parties at trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
It is also pertinent to state, at this stage of my deliberations, that, as stated to the parties several times during the trial, it is not the task of this Court to decide who is and is not a B elder. That is a matter for the B people alone.
While the children’s Aboriginality and membership of the B people are not in issue in these proceedings, some issues in relation to whether certain Aboriginal witnesses belong to the B people arose at trial.
However, having reviewed that evidence thoroughly in the context of the matters the Court is asked to decide in these proceedings, those particular issues, of who does and does not belong to the B, do not hold more than moderate weight in my deliberations about how the children might keep and develop their identity as Aboriginal people in general, and as B people in particular.
That is because, as will be evident as these Reasons unfold, I have decided the case on the basis of the children’s familial relationships, and there is no doubt that their paternal family are B people.
The paternal grandmother’s evidence
The paternal grandmother’s evidence is found in the two Affidavits she filed in the proceedings, and in her oral evidence given at trial.
She says that she loves the children and that she wants to spend time with them, not only because she is their grandmother, but because contact with her is the only way, or at least the most culturally appropriate way the children will come to know about their B heritage, society and culture. She says that is particularly so in the absence of the children’s father.
It is her evidence, set out in her initial Affidavit sworn and filed on 23 April 2018, that during the parents’ relationship, they and the children would visit her at her home, and that she had “a strong, loving relationship with X (sic)”, who would “be very happy to see me and would come to me and kiss and cuddle me”. She says that there were “approximately two occasions” when she looked after X on her own and that X had been “comfortable and happy in my care”.
After Y’s birth in 2013, Ms Hallett says that she continued to spend time with the children, and that “both X (sic) and Y would cuddle and kiss me and show their attachment to me during these times”.
It is her evidence that after the parties separated on a final basis “in or around 2014”, she and the mother continued to have a “positive relationship”, and that she would “regularly” visit the mother and the children in their Town O home until mid-2015.
Ms Hallett says that in about mid-2015, “the occasions on which the mother allowed me to see the children reduced”, and that there had been only about three occasions when she had seen them between that time and the time of swearing her initial Affidavit.
She deposes that, respecting the mother’s wishes, she never spoke to the children about their father, nor took photographs of them, and that she would not do so were she permitted to see them again.
Ms Hallett describes the incident in early 2017 as follows in paragraph 23 of her Affidavit sworn and filed on 23 April 2018:
23. On 5 January 2017, I went to the mother’s home to visit X and Y and to give them the Christmas presents I had bought for them. The mother opened the door and I explained that I had come to bring the children their presents. I asked if I could see the children and the mother replied by saying something similar to “don’t speak about Mr Hallett”. I replied by saying something similar to “I never speak to the children about Mr Hallett”. I could see the children through the front door with a man next to them. The mother then said to the man “take the children out the back room”. I could hear the children yelling that they wanted to see me. The man took the children and I heard them screaming. I ran to the side of the house. The man came out the back door and said “I’m calling the police”. My partner at the time got out of the car and said “I’m calling the police too”. We left the house. I spoke to the police and told them what happened and the police said they will go and see them.
Ms Hallett deposes that she had bought the children Christmas and birthday presents but had “not had an opportunity to see the children or give them their presents”.
She described herself as having been “actively involved in X and Y’s lives up until 2016, and I developed a close bond with them”.
Ms Hallett further deposes that she is “a B elder, and my mother was a B elder born in Town P Mission”. It is her evidence that it is in the best interests of the children to spend time with her, has she is “currently their only available connection to their Aboriginal family, heritage and culture”.
In her second Affidavit, sworn 30 August and filed 3 September 2019, the paternal grandmother repeats her evidence about her relationship with the children, and the 2017 incident.
She then goes on to acknowledge and accept that her son perpetrated family violence against the mother, and that the children had witnessed that violence.
Further, Ms Hallett acknowledges the trauma suffered by Ms Malcolm as a result of that violence, and that the current proceedings have caused her “further stress”.
She says that her sole motivation in initiating these proceedings was to spend time with her grandchildren, and not to cause Ms Malcolm any further stress or trauma.
She acknowledges that the mother has “sought to keep (the children) safe and provide them with a stable and happy family life”, and deposes that “I am pleased the children are engaged in therapeutic treatment to help them recover from the harm caused by Mr Hallett’s violent behaviours and I hope they are progressing very well with their treatment”.
Ms Hallett denies that she poses any risk to the children’s safety, and expresses disappointment that she was unable to spend time with them during the interviews for the Family Report. She deposes that she would be willing to spend time with the children at a supervised children’s contact centre, and that she would not speak to the children about their father on those occasions.
The paternal grandmother further deposes that she would like to be able to send “letters, cards and gifts to the children from time to time. I would prefer to do this with Ms Malcolm’s agreement”.
In relation to family violence the children witnessed during the relationship and after separation, Ms Hallett deposes as follows:
9. I have contact from time to time with Mr Hallett and this has been very painful and traumatic for me. I do not excuse or condone his violent behaviour. I believe Mr Hallett has to take responsibility for his own actions and for the harm he has caused to others, and I am deeply saddened that he has not done this.
10. I have an understanding of the trauma or damage that family violence causes. I have experienced family violence myself, as a child and as an adult, from partners and from family members. I understand the emotional and psychological devastation caused by family violence.
11. I have been seeing a psychologist, Ms Q, about these and other issues for some time. I am aware of how these experiences have damaged and shaped me, how they may damage and shape Ms Malcolm and the children. But this is not something I can speak openly or clearly about yet, especially in a 30 minute interview with a stranger such as a Family Consultant.
Ms Hallett then goes on to discuss the children’s Aboriginality, expressing her pleasure that the children are attending Koori programs at school, but lamenting that they have not met members of their extended paternal family “such as their aunties, great aunties and cousins”. She also says the children have not been able to participate in family events “such as Christmas, birthdays and NAIDOC events”.
She then expresses her concern that if the children do not have a relationship with her, “they will not be able to experience the important connection with our country or the Aboriginal community”. It is her evidence that “X and Y cannot have a connection with their Aboriginality through activities alone. They need to experience a shared history, shared stories and cultural practices with family”.
Ms Hallett deposes that she has two other grandchildren, who are the children of her daughter Ms R. Those grandchildren, one of whom is a boy named S who lives with serious cerebral palsy, and the other of whom is a young girl named T, live in Town U with their parents. It is Ms Hallett’s evidence that, because of the distance between her home and theirs, she sees them approximately “2 weekends every three months”. She then states, at paragraph 17 of her second Affidavit:
17. […] When S (sic) and T spend time with me, we talk about everyday things, I tell them interesting stories about family and culture, we play together at the beach, the park and the markets and we see other family whenever possible. I have a close relationship with those children. Before they moved to Town U, I was S’s regular respite carer which allowed my daughter to rest.
Ms Hallett expresses sadness that X and Y “think I am a bad person”, deposing that “I would love to show them that I care deeply about them and that I am not scary or bad”, and that she worries that “they will associate all B Aboriginals as bad people”.
She then refers to the mother’s Affidavit affirmed 23 August and filed 24 August 2018, saying that she has read that affidavit, and that:
13. I am in great conflict as to how to respond. I dispute many of the allegations in Ms Malcolm’s affidavit but I do not wish to cause Ms Malcolm any more stress by recounting what I believe to be the facts relating to various past incidents. I cannot see how that would be in the children’s best interests.
At trial, Ms Hallett was cross-examined by counsel for the mother and counsel for the Independent Children’s Lawyer.
It was her evidence that she had presented for only one urine drug screen, despite having been ordered to do so upon the request of the Independent Children’s Lawyer, and the Independent Children’s Lawyer having made such requests on more than ten occasions. She denied that she had drunk “a lot of water in an attempt to flush the drugs out of your system” on that one occasion, which produced a screen showing very low levels of creatinine.
She was clear in her oral evidence at trial that she had refused to undergo the drug screens because she thought that the only reason they had been ordered was that the mother had wanted her to provide them. She could not think of another reason for the Court’s order because, she said, she was not seeking a residence order in relation to the children. She said that if the children had been in her care, she would have provided the requested drug screens, but that they would have shown positive results for marijuana and prescription medications.
While she recognised that the father’s abuse of methamphetamines amounted to addiction, she did not see her own marijuana use in the same light.
However, Ms Hallett conceded that she smoked two joints of marijuana every night, “for sleeping and pain”, but denied using the drug during the day. It was her evidence that she had used marijuana throughout these proceedings and when it was suggested that she had “no problem with that”, she replied: “Not really”.
Despite her daily use, it was her evidence that she had “(given it up) before and I will do it again”. She said she had not done so because “no one has asked me to”.
Ms Hallett denied that she had a problem with alcohol, saying that she never drank during the week, but she conceded that she had drunk to excess the weekends, and that the mother had visited her with the children at times when she (the paternal grandmother) was drunk. She acknowledged that she had used alcohol and marijuana together, and that she would have been affected by both at times when the children were present, although she claimed the children would never have seen her actually smoking marijuana or drinking to excess.
Ms Hallett was then taken to the evidence of Ms H, one of the Koori Engagement Support Officers at the children’s school. She acknowledged that Ms H had been born and raised on “B country”, and that she had “participated in community events” with Ms H when they were younger, but she then said that she had always considered Ms H as “an outsider who is not part of the people”.
The paternal grandmother was then taken to Ms H’s evidence about an incident occurring at a petrol service station on 13 September 2019.
Ms Hallett refuted Ms H’s version of that encounter, stating that “when I was putting petrol in the car, I went in to pay for my petrol and she was walking out, and she asked me how I was going and I told her I wasn’t good because of she putting her affidavit in”.
She denied that she had said anything like “How dare you write that!”, or “Cause of you I’m not going to see my grandkids” or “you’re not related to me”, but agreed that she had told Ms H that she would “see you at Court on Thursday”.
Ms Hallett stated that she was not happy with Ms H or Ms N, who she said she did not know, providing Aboriginal cultural programs for the children, because while she was pleased that the children were attending some kind of Aboriginal education, it was her view that “it’s the wrong people teaching them”.
Ms Hallett was then asked whether she was an elder of the B people, and the following exchange took place:
Ms Hallett: Yes.
Counsel for the mother: And there’s not a requirement to be at least 60 years old if you’re an Elder in that community or not?
Ms Hallett: No.
Counsel for the mother: How old do you have to be, or doesn’t it matter?
Ms Hallett: Well, when you don’t have any uncles and aunties left and your mum and dad has gone, you become an Elder.
Counsel for the mother: No matter what the age; is that your position?
Ms Hallett: That’s right.
Her Honour: So you’re saying that if there’s nobody in your family in the generation above you….
Ms Hallett: There isn’t.
Her Honour: No, no, I understand that. But you say that’s when you automatically become an Elder?
Ms Hallett: Yes.
Her Honour: Right. Is there anything in that about other elders accepting you as an elder? Do they have to accept you as one of them before you can actually become an elder of the people?
Ms Hallett: I – I’m just – I just become and elder because there’s no-one above me.
Ms Hallett said that her brothers’ and sisters’ families were the “family” she was referring to when she deposed, in her second Affidavit, that the children needed to “experience a shared history, shared stories and cultural practices with family”.
She disagreed with a statement to the effect that the children are already connected to their Aboriginal culture, but “in a way you don’t agree with”.
When she was asked about the workings of various Aboriginal corporations in the area, she said that she had heard of them, but was unable to say how they operated, only that they would “have to have elders on their boards”.
Ms Hallett was then taken to the issue of the family violence perpetrated on the mother by the father.
She acknowledged that the children had been exposed to that violence, and that the violence was serious. She said she did not condone it and that she understood the “emotional and psychological devastation” caused by family violence. When asked to expand on that answer, Ms Hallett said that the effect on the victims would be “traumatising”, and that it could lead to “mental health, breakdowns, and – lots of things”.
She acknowledged that the mother would have been affected by those conditions as a result of the father’s violence.
However, when she was questioned about the quite violent and abusive messages her other son, Mr V, had left for his partner on her phone, Ms Hallett said: “Yes, but that’s between Mr V and his girlfriend. That’s got nothing to do with me”. In addition, Ms Hallett is quoted by the Child Inclusive Conference Family Consultant, Ms W, as saying that Y would have been too young for the family violence perpetrated by his father upon his mother to have affected him. Those statements do not show anything approaching the insight Ms Hallett claims to have about family violence and its effects.
When challenged about that evidence at trial, Ms Hallett claimed not to have understood “the way (Ms W) spoke to me, so that’s probably why it came out like that”. She said that she did now understand that Y would have been affected by the family violence swirling around him from his birth, and she accepted that he would have been traumatised by those events.
In relation to her current relationship with the father, Ms Hallett stated that since he had been released from prison the last time, in 2019, he had stayed with her for a week, but that he had then “taken off” and she had not seen him since. It was her evidence that she did not believe she was under any legal obligation to report to any authority that her son had left her home.
There were several minor discrepancies between the evidence found in Ms Hallett’s affidavit material and what she said under oath at trial. For instance, she stated that she had travelled to Town O to see the children “a lot more than” three times between 2015 and 2017, but her Affidavit evidence stated that she had only been allowed to see them three times in that period. Ms Hallett’s response to that discrepancy was to say: “I thought it was a lot more, but I can’t remember”.
Nevertheless, a few minutes later, she again stated that she had seen the children “more than three times because I’ve been to their birthdays, dropped their birthdays off (sic in transcript) and their Christmas presents off”. She said that she had tried to make contact with the mother but that the mother had not responded to her calls.
She was again taken to the mother’s Affidavit evidence, and she vehemently denied that she had condoned the father’s violence, or that she had tried to persuade the mother to reconcile with him, calling the mother’s evidence in that regard “a lie”. It was her evidence that she had wanted Ms Malcolm to leave Mr Hallett when she was first pregnant with X, although that evidence is nowhere in her Affidavit material.
She was asked about the night when the family had been at a hotel to celebrate a family member’s birthday, after which she had become involved in a physical altercation with the father, which culminated in her bashing his car with a pole while screaming at him in an attempt to prevent him from driving away. The police had been called, and her then partner “tasered” after he had abused police, but Ms Hallett denied that Mr Hallett had been handcuffed, and claimed that the mother was inside the house and could not have seen anything. Again, that example does not reassure me that Ms Hallett actually understands the effects of family violence on children and others who are exposed to it.
Her response to the mother’s allegation that, at some unspecified time between the births of X and Y, there had been a physical fight between her and her sister, which involved them “rolling around and punching each other on the lounge room floor”, was:
Ms Hallett: That’s a lie.
Counsel for the mother: It’s a lie. So she’s a liar, just making that up?
Ms Hallett: Yes. She did, that night.
Counsel for the mother: Yes?
Ms Hallett: That is a lie. I haven’t had a fight with my sister since I was 12 years old.
Counsel for the mother: “...in front of X (sic in transcript) and other children. I had to leave the room to get me and X (sic in transcript) away from the situation”.
Ms Hallett: Does she know which sister I was fighting, because I don’t know.
Counsel for the mother: Maybe because you were drunk, you can’t remember?
Ms Hallett: No. I remember – I pretty much remember everything.
Counsel for the mother: So she wasn’t drunk with a young – pardon?
Ms Hallett: I remember everything. I know I didn’t have a fight with my sister, and I wasn’t drinking that night.
I found that evidence most unsatisfactory, as the date of the incident had not been put to Ms Hallett - indeed the mother had only put that date as “before Y was born” - and yet she said she could remember that she “wasn’t drinking that night”.
Ms Hallett’s evidence about her son’s drug addiction was also somewhat confused, as displayed in the following exchange:
Counsel for the mother: Mr Hallett has a current addiction to ice, does he?
Ms Hallett: Yes. What was that last word you said? To what..?
Counsel for the mother: “Does he”
Ms Hallett: Does he have an addiction to what?
Counsel for the mother: Ice.
Ms Hallett: I don’t know if it’s ice.
Counsel for the mother: Has he ever had a drug addiction to ice?
Ms Hallett: I know he has been on ice. But I don’t know if he has got a drug addiction to it.
Counsel for the mother: Right. So, you mean your understanding is he currently uses ice, but you’re not sure if he is addicted?
Ms Hallett: Well, he is addicted I suppose. But is it ice or is it something else?
It was her evidence that she had tried to protect Ms Malcolm from her son’s violence by calling her parents to collect her on various occasions, but Ms Malcolm “just keeps going back”.
She said she had tried to protect Ms Malcolm because she knew the father “had a drug problem”. However, when it was put to her that he also “had a violence problem”, her response was: “Not really”.
It was her evidence that her son had been violent as a result of taking drugs, and that when he was not taking drugs, he was not violent by nature, although she was forced to concede that the father had been a habitual drug user for most of his late adolescence and adult life.
Ms Hallett was then taken to the incident in early 2017 when she visited the mother’s home unannounced to deliver the children’s Christmas presents.
She agreed that she had not told Ms Malcolm that she would be coming to her home, and that at that time, she had not seen the children for at least a year or so.
It was her evidence that she had tried many times in the previous year to contact Ms Malcolm to ask if she could see the children, but that Ms Malcolm did not respond to her texts and calls. She also said that she had attended at Ms Malcolm’s home on several occasions before that day, but that Ms Malcolm had not been home. Ms Hallett said that when Ms Malcolm did answer her calls, she would say that it was not convenient for Ms Hallett to visit.
She agreed that her former partner had been with her in the car when she arrived, and that she had gone to the door and asked Ms Malcolm if she could see the children to give them Christmas presents from the previous Christmas. She agreed that she had said she would not talk to them about their father, but denied saying that she wanted the children to come to the car, rather than her coming in to give them their presents.
Ms Hallett denied having been aggressive on that day, and the following exchange then took place:
Counsel for the mother: I suggest to you the next thing you started to yell and scream was “I have rights. I have rights”. You told the mother that, didn’t you?
Ms Hallett: I didn’t start to yell and scream.
Counsel for the mother: You said “I have rights”?
Ms Hallett: Ms Malcolm yelled and screamed at me first, saying I wasn’t allowed to see the children.
Counsel for the mother: They said you’re not allowed to see the children.
Ms Hallett: Yes.
Counsel for the mother: And you said “I have rights”?
Ms Hallett: Yes.
Ms Hallett confirmed that she believed that “all grandparents have rights” and the exchange continued:
Counsel for the mother: There comes a point in time where you’re at the house, where the mother does not agree to you seeing the children. Correct?
Ms Hallett: Correct.
Counsel for the mother: That was your chance to leave the presents on the doorstep and go away from the house wasn’t it?
Ms Hallett: They probably wouldn’t have got the presents.
Counsel for the mother: Do you agree that’s something you should have done in the circumstances?
Ms Hallett: Yes. Maybe.
Counsel for the mother: You do?
Ms Hallett: Maybe, maybe not.
Counsel for the mother: Maybe not?
Ms Hallett: I think it’s best the presents that they get comes directly from me.
Counsel for the mother: Yes?
Ms Hallett: So she can’t say they come from her.
Counsel for the mother: Yes. Because you don’t trust her, do you?
Ms Hallett: No.
After a discussion of who Ms Hallett thought the man at the house might have been, it was put to her that the children had not recognised her on that day and that they had not known who she was.
She denied that proposition, saying that the children became upset because they had been “shoved” into the back room. It was at that point, she agreed, that she had “(run) around the back of the house, screaming for them” because, she said, she was concerned for their welfare.
She was adamant at first that the children had called out “Nanny!” to her and that they wanted to see her. She said: “They knew who I was. They knew I was there to drop their presents off”.
When challenged on that evidence, Ms Hallett said that she was “pretty sure they knew who I was, and they knew that I was coming there to drop their presents off because they could see me through the door. They knew that it was me. And then when Ms Malcolm told Mr E to take them up to the back room, that’s when they got upset”.
She was forced to concede that there was nothing in her Affidavit evidence about that day that stated that the children had called out “Nanny!” to her but could not explain that deficiency.
Ms Hallett agreed that Ms Malcolm had then told her to leave, saying that her home was private property and that Ms Hallett was not allowed to be there. She further agreed that she responded: “No it’s not. I can do what I want. I’m allowed to”.
She agreed that that behaviour had not been acceptable.
She agreed that she had then run up the driveway to the side gate to try to get to the back door of the house because that was the direction the children were going. The following exchange then took place:
Counsel for the mother: How do you think that would make the mother feel, you telling her you’re allowed to do what you want, you’re running up the driveway, calling out the children’s name after she says you can’t be there, and then you’re trying to get into the back door.
Ms Hallett: I never got near the back door.
Counsel for the mother: That was your intent.
Ms Hallett: No.
Counsel for the mother: No. It wasn’t your intent? You just said it was.
Ms Hallett: I just wanted to make sure the children were okay, because I knew they were upset and I didn’t know the person they were with. The strange man that was in the house.
She was nevertheless forced to concede that even if she hadn’t known exactly who Mr E was, it had been clear that he was there with the mother’s consent, and she said that by the time she left the property, she knew that Mr E was Ms Malcolm’s partner.
Ms Hallett stated that although she had called the police, and she had heard Mr E say that he too was calling the police, she had left before they arrived. She denied that that was because she was aware that she “had done the wrong thing”.
Ms Hallett denied that her behaviour on that day and been abusive, or that it had constituted family violence, but she conceded that it would have “traumatised the mother”. She later said that she did not agree that she had presented to the mother on other occasions as “intimidating, frightening and aggressive”.
She said that she understood that the proceedings themselves had caused further stress to Ms Malcolm, but when asked if she had read Ms J’s report about the effects on the mother, she said: “Yes. But it’s about the children, isn’t it?”
She said that her only purpose in bringing the proceedings was to “heal what (the children) have been through”.
It was her evidence that she would like to communicate with Ms Malcolm, but that Ms Malcolm was not prepared to communicate with her. She did not accept the suggestion that the mother did not trust her, and stated that while she trusted the mother to look after the children appropriately, she did not trust her to allow contact between the children and her without court orders. She said that there was no reason why the children should not spend time with her, and she agreed that her belief was that Ms Malcolm was keeping the children away from her out of spite.
Ms Hallett gave evidence that she would not oppose the children being taught about their Aboriginality by Ms H and Ms N if she were not able to spend time with them, but reiterated that it was the children’s “great grand aunties and uncles” and B elders who should be teaching them about their society and heritage.
She did not accept the proposal that she be able only to send the children card, letters and gifts until they were old enough to decide for themselves whether they wished to spend time with her.
Despite all the evidence about the father’s violence, and the evidence of the mother and her therapist, Ms J, about the effect of that violence on her emotional and mental health, Ms Hallett’s evidence was that she believed that Ms Malcolm had only begun to reduce her time with the children because she had begun a relationship with Mr E, and that the mother was attempting to obliterate the father’s family from the children’s lives. She stated that: “It wasn’t me. It wasn’t me that did it to the children. It was my son. And she knows that.”
She repeated that view - that her relationship with the mother and the children had deteriorated only when Ms Malcolm began her relationship with Mr E - under re-examination by her counsel.
Ms Hallett then underwent cross-examination by Counsel for the Independent Children’s Lawyer.
When asked about her comments to Ms L that she was confused about the “resulting tensions” from the incident when she went to Ms Malcolm’s home, Ms Hallett said that she was no longer confused and that Ms Malcolm’s reason for feeling tense was: “Because me being there, probably”.
However, it was her evidence that she had visited Ms Malcolm without calling or texting first on occasions “when we were talking”, and that Ms Malcolm had lied to her about not being home on some occasions after 2015. She said that a friend of hers who lives “up the road” from Ms Malcolm had told her that Ms Malcolm was at home on occasions when she had told Ms Hallett that she and the children were out. However, upon further cross-examination, Ms Hallett said that that had only happened on one occasion.
Ms Hallett said she was unaware of Mr Hallett using her phone to send intimidating messages to the mother after separation, and indeed, she denied that he had ever used her phone as he had his own.
She said she did not recall a particular incident described in documents provided under subpoena by Victoria Police that had occurred on 3 May 2015, when messages described as “aggressive and threatening in nature” were sent from her phone to the mother. I note that the police report of that incident states that:
The nature of the messages suggests that whilst the messages appear to be coming from the respondent mother’s phone (referring to Ms Hallett), it is possible that it was, in fact, the respondent (Mr Hallett) sending those messages, and he may be trying to establish contact with the mother (Ms Malcolm).
Ms Hallett then agreed that if the police report was correct, and the messages were sent from her phone, they must have come from her and not from the father. She did not appear to understand the import of that concession.
Counsel for the Independent Children’s Lawyer took the paternal grandmother to Ms J’s reports, where Ms J states that: “…court ordered access agreement is likely to further retrigger the mother’s PTSD and reduce her ability to protect and parent her children. It will create further trauma within the home, disrupt attachment and create distrust between the mother and the children, due to their reliance on her to keep them safe”.
He also referred her to the report of Ms K, the children’s counsellor, who stated that: “The children have a negative association with their grandmother and report no positive attachment or desire to continue access with this relative”.
Ms Hallett’s evidence initially was that if the Court accepted the evidence of Ms J and Ms K, she would still seek orders that the children spend time with her at a supervised children’s contact centre.
However, upon clarification from the bench, Ms Hallett said that she would not want me to make orders for her to see the children if I were to find that the children would be traumatised further by being forced to spend time with her.
She agreed with counsel that a major reason for her bringing these proceedings was to ensure that the children “remained connected to their Aboriginal culture”, and that only children’s grandmothers were appropriate people to teach them that culture.
She said that that role was “to teach them their culture”, to “take them places” and “they walk on country and walk with us”. She agreed that the role also included activities and introducing the children to their elders, and that connection to culture cannot be established “just by talking in a room”.
Ms Hallett further agreed that in the absence of a grandmother, “responsibilities would generally be carried out by (the) grandmother’s sister or an aunt within the kinship system”. However, she qualified that statement by saying that while she was alive, she was the appropriate person to teach the children.
Ms Hallett said that her son, the children’s father, did not know about his Aboriginal culture other than being involved in some programs in prison. She said that he had not involved himself with her family at all when he was living in the community.
In re-examination by her own counsel, the following exchange took place:
Counsel for the paternal grandmother: is there any time in a child’s life when they’re taken away from a family?
Ms Hallett: Yes.
Counsel for the paternal grandmother: Is that known as men’s business or women’s business?
Ms Hallett: Yes, I think so.
Counsel for the paternal grandmother: You know much about that?
Ms Hallett: No.
And later:
Counsel: What’s the difference between you exposing your - or introducing your grandchildren to that, as opposed to another Elder who is not immediate family. Is there any difference?
Ms Hallett: I don’t know the answer to that question.
And further:
Counsel: So if the grandmother wasn’t here, who would take her place?
Ms Hallett: My sister or brother. Or an Elder in the community. I’m - yes, I’m not sure how it goes, but yes.
Overall, I found Ms Hallett to be a fairly malleable witness. There were times when her answers to the same questions changed when the questions were asked by different people, and other times when her evidence was quite confused.
However, I did not get the impression that she was trying to muddy the waters or give false evidence at all. She is not a particularly sophisticated woman in European terms, and her life history as an Aboriginal Australian has clearly left her with a wish to please those whom she sees as being in authority.
Her persistent marijuana use could also explain some of the confusion and contradictions in her evidence.
She impressed as a woman who loves her grandchildren, and who is prepared to see them in a supervised contact centre at first so that they get to know her in a safe environment.
She is not particularly connected to her own B community, which means she would need help to provide the experiences that form the basis of an Aboriginal child’s education about culture and country.
Ms A’s evidence
Ms A, who is Ms Hallett’s first cousin, filed an Affidavit in support of Ms Hallett’s application, and she gave evidence at trial.
She was an impressive witness - clear and concise in her answers, and displaying a genuine, detailed and very personal experience of her B culture.
She is an elder of that community, and, on her unchallenged evidence, is recognised as such both inside and outside that community.
While her evidence in relation to Ms H’s being part of the B community was rather scathing, she gave clear evidence about how she (Ms A) could help Ms Hallett in ensuring that the children are taught the appropriate stories, rituals and cultural activities that they need to be considered knowledgeable about their culture.
It was her evidence that Ms Hallett is not recognised as an elder of the B people, although she might well be an elder in her own family.
She stated that her mother, too, had been a B elder, saying:
An example of that would be my mother, who lived to be a good age. But also because she took a lot of interest in and was well respected in the community. And so the protocol for that really is around your level of commitment to ensuring that B protocols and lore are kept in place and that level of respect is there as well.
She gave very knowledgeable evidence about the history of the B people, who she defined in her Affidavit affirmed 9 October and filed 11 October 2019, as being those who could trace their ancestors to “the Apical Ancestors, Kitty and Larry Johnson, born circa 1847”.
As I have previously stated, it is not the task of this Court to decide whether Ms Hallett is or is not B elder, but I accept that Ms A (and therefore Ms Hallett, who is her first cousin) is descended from the Apical Ancestors, and is therefore of the B people.
Ms A was critical of Ms H, stating that because her family came from the Z Mission in the Region AA, she was not of the B people, despite having been born and raised on B land.
It was her evidence that the term “B”, which is often used to describe Aboriginal people in the Town C area, is not a term she supports, and that the word “B” simply means “other black man” in the B language.
She deposes that only B elders have the authority to speak on B land and to pass on B culture, and therefore, because she is not B, Ms H cannot teach “B lore, customs or culture” to the children.
In addition, Ms A states that Ms H is not a familial relative of Ms Hallett, either in European or Aboriginal kinship terms, and that the children call her “Aunty” only as “a term of respect that Aboriginal children are taught to use when addressing older Aboriginal persons”.
In relation to the grandmother’s role in children’s upbringing in B culture, Ms A deposes as follows, at paragraphs 14 to 19 of her Affidavit:
14. In B custom and lore, kinship obligations are very specific. Grandmothers have responsibilities to know and pass on knowledge of family geneaology (sic), kinship structures, connectedness to other family and clan groups to grandchildren. This is intricate and complex. It is not limited to tracing one’s immediate family back to one person. It involves knowing all the family branches that derived from a common, or “apical” ancestor, and knowing how each of those family branches is connected to one’s own branch and self. This is what gives B children their identity; the knowledge of who their family is, where they are from, and how their family is related to other families. This is how B children know their place in the world. Through geneaology (sic), Grandmothers teach kinship.
15. B custom and lore, Grandmothers instruct children in their roles and responsibilities within their kinship group or system. This involves teaching children their place within the family and kinship structure. It involves introducing children to key people within the family and kinship group, and instructing them as to how to behave towards various people such as Elders, aunts, uncles and cousins within the family and kinship structure. Through kinship, Grandmothers also teach about country.
16. Grandmothers also have responsibility for teaching children about country. This is usually done by taking children to places and explaining the family and ancestral connection to the place and telling stories about the place. Some of these stories relate to ancestors, kin, or other persons or events of the past. Some are spiritual stories, some are stories told to children to ensure they stay close, out of danger. Grandmothers also teach children about totems, clans and how they operate, clan boundaries, significant and sacred sites, birds and animals, bush food and medicines. This teaching is done by storytelling, visiting and showing.
17. Grandmothers have the responsibility for teaching and guiding children when they are young and for teaching “women’s business” to girls as they get older.
18. Men, grandfathers, fathers and uncles, have responsibilities too. They are responsible for discipline and for teaching boys “men’s business”, usually commencing around the time a boy reaches puberty. This is when boys learn custom and lore as it relates to them and includes: country, hunting, fishing, gathering, dance, music, ceremony, songlines.
19. This knowledge must be passed on physically and orally. It cannot be done in writing. It requires taking children to special places on country, showing, pointing, walking the ground and telling stories.
At trial, Ms A confirmed that her knowledge of B culture came both from practical experience and academic research.
She said that she is the “chair of the family violence in inner Town C”, and that she is involved with an organisation called “B Nations”, which provides specialist educational programs for B children across the Town C region.
She also confirmed that one can “be an elder of your family without being an elder of the tribe”.
Further, while Ms A was confirming that it was Ms Hallett’s role to teach the father about B ways, the following exchange took place:
Counsel for the mother: When Mr Hallett was a young person, that was an opportunity to teach him the ways of the B for at least - from Ms Hallet’s perspective?
Ms A: Yes.
Counsel for the mother: She says she didn’t do that and he doesn’t know anything about it effectively.
Ms A: And that would be true.
Counsel for the mother: And Ms Hallett is not strong in culture is she?
Ms A: I would say no. Not as strong as her older sister or not as strong as we are.
Counsel for the mother: And as a respected elder, […] two children from B background could come to someone like you and you could put them on (sic in transcript) - would you be prepared to do that?
Ms A: Absolutely. Without a doubt. […]
Counsel for the mother:[…] you would be able to liaise directly with Ms Hallett if you need any more detail about her particular family circumstances if you don’t already know it. You would have that ability?
Ms A: Yes. Absolutely.
Counsel for the mother: So it wouldn’t be remote, it would be very specific to their bloodline and wider clan?
Ms A: Exactly.
Later, Ms A was asked whether Ms Hallett, while being the appropriate person to fulfil the role of teaching her grandchildren, might not have “the ability to pass on that information. Is that fair?” She replied: “That’s a fair […] question and a fair statement”.
It was Ms A’s further evidence that it is vital that the children come to know their extended paternal family, as: “if they’re not associating with the extended families then they are shut out of a process, it’s as simple as that”. She said that if the children were taught about their extended family, the community would know them as “Mr Hallett and Ms Malcolm’s children” and “Ms Hallett’s grandchildren”, which would place them in their B community.
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms A stated:
I think the important thing about this stuff is that in order for kids to understand the reasons behind how we were brought up and how we survived is around the grinding stones, […] the mythical stories of the creation and to take them to the sites that still exist in Town C and to have that conversation with them.
She said that that is what her mother and grandfather did for her so that she could connect with families all over the greater Town C area, and that it was important that X and Y have that opportunity. She said it was also important for Y to know his elders so they can teach him men’s business, which, of course, is not something Ms Hallett can teach him.
It was her evidence that “all of the Aboriginal families in Town C are connected through bloodline” and that when the community gathered for cultural purposes, “those who don’t know how to do a smoking ceremony, what has to be said in it and so on and how you explain it, they watch and learn by seeing”.
When asked whether she would be willing to engage with Ms Malcolm in this context, Ms A said that while she did not know Ms Malcolm:
When we go to work with people, we work with them to build a relationship of trust and to ensure that those kids are being handed down the responsibility of respect and that - that means that, for example, most of the younger children would call us great aunts because […] that’s how we moved up the tree, but they get to understand the hierarchy of the - that social connection of who we are.
She was clear that she was prepared to work with Ms Malcolm to ensure that X and Y grow up knowing their heritage and what that means for them today. She said further that the children’s B education and involvement needs to be approached “in a way that can’t be stressful on Ms Malcolm and it can’t be - and it has to be something that we as elders would love to try and encourage. It’s as simple as that. I mean, we have to build the bridges”.
She was also clear that she was prepared to assist Ms Hallett in gaining further knowledge about B ways to strengthen her connection to her people, and to other B elders, including her own older sister.
It was her further evidence that she understood that the children’s father could not be part of that process because of his violence, and she said it is important for the children to have connection with B people who are not violent, so that they could build a positive relationship with their extended family, and a more positive view about themselves as B children.
In relation to drug use in the community, Ms A said that most of the B community events were non-smoking and alcohol free, but that if she became aware that someone was drinking to excess or using illicit drugs, she would make it clear to them that they would not be welcome at community gatherings.
However, when Ms Hallett’s admitted marijuana use was put to her, Ms A stated that she was not particularly concerned about that, other than for the obvious legal reasons, because it had been her experience that marijuana can keep people calm, and that people who use it can maintain the capacity to look after their children.
I found Ms A to be a forthright and impressive witness. She was called on behalf of Ms Hallett, but was not shy about Ms Hallett’s lack of connection to her wider family and thus to B culture and community.
I was particularly encouraged by her openness to working with Ms Malcolm to ensure that the children’s family and B identity are instilled and maintained.
The mother’s evidence
Ms Malcolm relied on three Affidavits filed in these proceedings: one affirmed on 30 August and filed on 2 September 2019 (“her Trial Affidavit”); one affirmed and filed on 17 October 2019 (“her first October Affidavit”); and one affirmed and filed on 18 October 2019 (“her second October Affidavit”).
In her Trial Affidavit, the mother sets out the history of her relationship with the father and alludes to multiple episodes of serious family violence perpetrated by him.
As Mr Hallett has chosen not to take part in these proceedings, and because there is no dispute among the remaining parties that he was the perpetrator of serious physical, emotional and verbal abuse against Ms Malcolm, I do not intend to describe that evidence in great detail, other than to say I accept it completely. I intend only to mention Mr Hallett when the evidence is relevant to the decision I must make.
It is Ms Malcolm’s evidence that the Department of Health and Human Services (Child Protection) officers told her at separation that if she allowed the children’s father to have any contact with them, the Department would issue care and protection proceedings against her.
Ms Malcolm says she has now repartnered with Mr E and they have one child, F, who is now two years old.
She deposes that the father has not seen the children since the parties separated in 2014, and that the children have no relationship with the paternal grandmother, saying “I do not believe the children would know Ms Hallett if they saw her”.
Ms Malcolm says that “both children participate in an Aboriginal Education Plan at primary school known as “Cultural understanding and safety training””, and that she is therefore “already facilitating the children’s knowledge of their Aboriginality and culture”.
It is her evidence that even during her relationship with the children’s father, Ms Hallett “never spent any regular time with the children”. She says that when she and the father, and later the children, visited Ms Hallett, she “would be drinking and smoking cannabis in the shed” and that she “never spent time with X or played games with her”.
Ms Malcolm deposes that Ms Hallett has only ever looked after X on her own on one occasion, and then only for half an hour, when Ms Malcolm was preparing to leave the hospital after giving birth to Y. It is her evidence that when the father and she went to collect X, Ms Hallett was not home, having left X with her other children while she “had gone off drinking”.
However, the children are still quite young, and Ms L’s evidence is that their views have been negatively influenced by their mother. It is difficult to see how they can have avoided that influence, whether directly, by being told that Ms Hallett and the father are “bad people”, or indirectly by being exposed to their mother’s severe PTSD around issues involving their father’s family.
While I accept the children’s views as genuine, I do not place a great amount of weight on them because of their young age, and the inescapable but certainly understandable influence of their mother.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The mother is said to have a warm, close and loving relationship with the children, which is to be expected given that they have lived with her, and seen her as their primary carer, for their whole lives.
She has also played the role of protector for her children, especially since she terminated her relationship with their violent and drug-addicted father. Indeed, her whole case in these proceedings has been predicated on the need to protect the children from their father and their grandmother.
The children have not seen Ms Hallett since that day in early 2017 when she came to their home and an altercation occurred that resulted in the mother ceasing all contact. Ms Malcolm and Ms K say that the children have no relationship with her at all.
Ms L’s evidence is more nuanced, in that it is her opinion that the children do have a relationship with their paternal grandmother, but one which is fractured and negative in nature.
I find that while there has been no contact of any kind between the children and Ms Hallett for some years, her status as their grandmother and their knowledge of her existence, even if only as one of the “bad people”, means that there is a remnant of a relationship, albeit strained and severely damaged, between the children and their paternal grandmother.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major longterm issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
As this sub-section does not refer to grandparents or other “persons”, it is not a relevant consideration in the proceedings for the reasons set out in paragraph 426 above.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
For the same reasons, this consideration too, is not relevant to these proceedings.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children have been separated from their grandmother for almost three years now, and from their father for five years.
The evidence of Ms K and Ms J is that a change in that situation would cause the children severe emotional distress, and I take that consideration as a most important one.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
For the same reasons as set out in paragraph 426 above, this is not a relevant consideration in this case.
I do note, however, that Ms Hallett and Ms Malcolm live approximately 170 kilometres and two hours’ drive apart, which would no doubt cause some practical difficulties if I were to order regular supervised time.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no evidence to suggest that the children’s mother does not provide for the children’s material needs: they are well housed, fed, clothed and educated.
However, the Court does have some concerns about Ms Malcolm’s ability to provide for the children’s emotional needs.
Her PTSD has, by very definition, interfered with her ability to be fully emotionally present for the children, but to her enormous credit, she has put the children first in engaging them with a trauma counsellor, and in addressing her own therapeutic needs.
I am confident, based on the evidence of the mother herself, and that of Ms J, that she will continue to seek therapeutic assistance for both her own trauma, and that of the children when necessary.
The evidence before the Court does not give me as much confidence that the paternal grandmother is capable of caring for the children.
By her own admission, she smokes two joints of marijuana nightly, and while it is likely that there would be no immediate short term effect on her capacity, in that she would have recovered by morning enough to undertake her daily routine, the long term effect of that drug use is likely to impact her ability to be sensitive to the children’s emotional needs.
She has shown impaired insight into the effect of her behaviour on the children, especially in relation to the 2017 incident, and only when pressed did she concede that, if I found that the children would be damaged by being reintroduced to her by Court order, then she would not press her claim.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The children are said to be meeting all their developmental milestones, and the Court has no concerns that there are any issues in relation to their lifestyle. They live in a well-appointed home with their mother, stepfather, brother and, at times, their step-siblings. They have contact with their maternal family and their extended step-family.
Ms Malcolm has shown herself to be a mature young woman, who has ensured that the children have all possible opportunities to develop into citizens who can contribute to their society.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is, of course, one of the major issues in this case.
The Act makes reference to Aboriginal children in several places.
In s.4, the Act defines and “Aboriginal child” as meaning “a child who is descended of the Aboriginal people of Australia”. The children in this case are therefore Aboriginal children as their father is Aboriginal, although their mother is not.
S.61F states that, applying Part VII of the Act to the circumstances of an Aboriginal child, “the court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture”.
The paternal grandmother says that only she, as the children’s bloodline grandmother, can pass on culture and knowledge of B ways to the children. She indicated a knowledge of some B traditions – for instance she knew that the totem of the B is a bird – but it was Ms A’s evidence that Ms Hallett is not particularly strong in, or knowledgeable about the actual traditions and culture of the B, and that view was borne out in Ms Hallett’s lack of understanding about particular matters when they were put to her.
It was also Ms As’ evidence (and I note again that Ms A was Ms Hallett’s witness), that while it is certainly a tradition of the B that grandparents are the people who pass on the knowledge and traditions of their people to grandchildren, in Ms Hallett’s absence, other family members, and particularly her siblings, would be able to fulfil that role.
This is not a case where the non-Aboriginal parent is attempting to expunge all traces of her children’s Aboriginal heritage and traditions.
As in many cases of this kind, the mother has so far done her best to ensure that the children are aware of their rich B heritage and culture, and her willingness to work with Ms A to ensure that the children are introduced to paternal family members other than the father and paternal grandmother, was, I found, genuine. In fact, I am satisfied that that willingness is an active desire on Ms Malcolm’s part.
Ms A was a very impressive witness, and I am satisfied that, while it is perhaps not the optimal case to have the children taught by family members other than their grandmother, the program she proposed will certainly foster and expand the children’s right to “enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture)”.
As put in submissions by counsel for the Independent Children’s Lawyer, the law does not require that the children be immersed in their Aboriginal culture, but that they are able to “enjoy” it with other people who share that culture.
I am satisfied on the evidence before me, that Ms A’s proposal, that she work with Ms Malcolm to allow the children to be introduced to paternal family members, and taught where they fit into their father’s family and B society at family gatherings and cultural events, together with the mother’s continued willingness to have them in regular contact with Ms H and Ms N, will allow them to “enjoy” their Aboriginal culture with other people who share that culture.
Also being guardedly optimistic that there may come a time in the future when Ms Malcolm, after a long time in therapy, might be prepared to have the children see their grandmother as part of a larger B gathering, whether public or private, I will include in my Orders a provision for the grandmother to see the children under those circumstances, provided that she takes the steps recommended by Ms L to address her marijuana addiction.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
For the same reasons set out in paragraph 426 above, this sub-section does not apply to Ms Hallett.
While there is no dispute that the children will continue to live with Ms Malcolm, I simply note with approval Ms Malcolm’s focus on the children’s wellbeing in her answers to questions under cross-examination at trial.
(j) any family violence involving the child or a member of the child’s family;
There is no doubt, nor is there any dispute among the active parties to the proceedings, that the father subjected the mother and the children to an appalling regime of assaults, verbal abuse, and emotionally abusive behaviour throughout the relationship between him and Ms Malcolm.
There is also evidence, essentially confirmed by the paternal grandmother, that she behaved in an abusive way towards the father during the parents’ relationship, and towards the mother when she visited the mother’s home in early 2017. Ms Hallett does not intuitively see her behaviour as abusive, but when pressed, she conceded that it was unacceptable, although even then she attempted to deflect the responsibility for her behaviour onto the mother.
Violence is never acceptable, save in the strictest sense of self defence, and Ms Hallett must understand that violence of any kind committed in the presence or hearing of the children is an act of child abuse under the Act. Ms A was very clear that the B are not violent people, and if Ms Hallett wishes to be a true B grandmother to these or her other grandchildren, she must acknowledge that, and live that knowledge.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Reference was made several times at trial to an Intervention Order against the father which named both the mother and the children as Affected Family members.
I have gleaned from the evidence that that Intervention Order was granted after the incident on 6 April 2015 when the father “trashed” the mother’s home and assaulted her while the children were on the premises.
However, no copy of that Order has been made available to the Court, and I am unaware of the circumstances under which it was made, its conditions or its expiry date, if any.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It was Ms L’s view that no Final Orders could be made in this case until the children had been spending time with Ms Hallett for some time at a supervised children’s contact centre.
On the basis of the evidence of the mother, Ms J and Ms K, I must disagree.
These children have been through much trauma in their short lives, and the mother’s uncontroverted evidence is that her PTSD has been re-triggered by these proceedings, and especially by the delay in finalising them. Ms J supports that view, and both she and Ms K are of the view that the proceedings should end for the sake of the emotional and mental health of the mother and the children. Indeed, Ms J’s evidence was that sustained therapeutic progress with Ms Malcolm will not be possible while the proceedings remain on foot.
I will leave open the possibility that Ms Hallett might spend time with the children in group settings in the future, but only with the written consent of the mother having first been obtained.
Otherwise, I intend that these be Final Orders.
(m) any other fact or circumstance that the court thinks is relevant.
The mother’s mental health is a major consideration in my deliberations, not least because she is the undisputed primary carer of the children.
As submitted by counsel for the mother and counsel for the Independent Children’s Lawyer at trial, there is an abundance of case law[1] to state that where a resident parent’s genuinely held fear of the non-resident parent (and here, of the grandmother as well) is such that that fear is likely to have a detrimental effect on the children’s wellbeing and development if orders are made for the children to spend time with the feared person, it is reasonable for the Court to order that no time be spent with that person.
[1] For example Russell & Close (unreported 1993) ; Re Andrew (1996) FLC ¶92-692; H & R [2006] FamCA 878; Starkey (No. 2) [2013] FamCA 977.
Those circumstances certainly apply to this case and I accept the evidence of the mother and Ms J in that regard.
I also acknowledge that I have written this judgment at a time when gatherings of more than two people in outside spaces are forbidden as part of Australia’s response to the COVID-19 pandemic. I will therefore make allowance for some Orders to come into effect once those restrictions are lifted.
Decision
When I take all of the above evidence and legal principles into account, I find that it is in the children’s best interests in this case not to spend time with their paternal grandmother at this time, even at a supervised children’s contact centre.
I will make orders which allow for her to spend time with them at public community gatherings or family gatherings in the future, but only on the conditions that she has the mother’s written consent for her attendance at those gatherings, that she proves that she has overcome her marijuana addiction, and that she does not allow the children to come into contact with their father.
Other matters
In addition to the issues discussed above, the mother’s application includes orders for sole parental responsibility and that the children live with her and spend no time with the father.
I note that those, too, are parenting orders under the Act.
Section 61DA(1) of the Act states that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence.
As I have found, the father engaged in serious and damaging family violence throughout his relationship with the children’s mother. That finding is made by default, as the father took no part in the proceedings, and the other parties agreed as to the facts.
There is therefore enough evidence for me to be satisfied that the presumption does not apply, and, for all the reasons set out in paragraphs 425 to 475 hereof, I find that it is the children’s best interests for the mother to have sole parental responsibility for them. In doing so, I note that that has been the position, in effect, since April 2015.
I also find that it is in the children’s best interests for them to live with their mother and spend no time nor communicate with their father.
I will make all those Orders on an unopposed basis.
Conclusion
This is a particularly sad case.
The father’s violence and drug addiction have ensured not only that he does not spend time with his children, but that his mother, too, is not permitted to spend time with them save in specific circumstances which might never come to pass.
I have attempted to draft Orders which ensure the children’s safety, as I am required by law to do, while at the same time allowing for them to be educated in and to learn and practise the ways of their people to the maximum extent possible, so that they can grow up as proud B adults who can pass that knowledge and culture on to their own children and grandchildren in years to come.
I certify that the preceding four hundred and eighty-seven (487) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 15 April 2020
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Natural Justice
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Procedural Fairness
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Remedies
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Standing
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Consent
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