Hallett and Malcolm and Anor - [2020] FCCA 835

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
H & R [2006] FamCA 878
Starkey & Starkey (No. 2) [2013] FamCA 977

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hallett and Malcolm and Anor

Details

AGLC: Hallett and Malcolm and Anor [2020] FCCA 835
Case: [2020] FCCA 835
Decision Date: 15 April 2020

CaseChat Overview and Summary

This case concerned parenting orders for two children, X and Y, born in 2011 and 2013 respectively. The paternal grandmother sought orders for the children to spend time with her, asserting her desire to maintain a relationship and facilitate the children's connection to their Aboriginal heritage. The mother opposed unsupervised time, citing the father's history of violence, drug abuse, and criminal behaviour, and her fear that the paternal grandmother would facilitate contact with the father. The mother also suffers from Post-Traumatic Stress Disorder stemming from the father's violence. The proceedings were before Judge Small in the Family Court of Australia.

The central legal issues before the court were whether the paternal grandmother should be permitted to spend time with the children, and if so, under what conditions, given the significant risks associated with the father and the limited existing relationship between the grandmother and the children. The court was required to balance the grandmother's desire to connect the children with their Aboriginal culture and family against the mother's concerns for the children's safety and well-being, particularly in light of the father's history and the mother's trauma.

Judge Small discharged all previous parenting orders and made new orders. The mother was granted sole parental responsibility, and the children were to live with her. The father was to spend no time with the children. The paternal grandmother was permitted to communicate with the children through cards and letters on specific occasions, subject to the mother's approval of their appropriateness. Further orders, to take effect after the COVID-19 pandemic, outlined a structured approach for the children to learn about their Aboriginal identity and culture, involving contact with a Ms A and participation in family gatherings. However, the paternal grandmother's attendance at such gatherings was conditional on her obtaining the mother's written consent, undergoing drug counselling, and providing clean drug tests. She was also prohibited from approaching the children at gatherings without the supervision of Ms A or another elder. The court also made orders regarding the sharing of school reports and imposed injunctions restraining the parties from denigrating each other or discussing the proceedings in the children's presence.

Orders

Orders of the court

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.

10.

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.

11.

The Order of Judge Small of 18 September 2018 appointing the Independent Children’s Lawyer is hereby discharged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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