Hallow and Hallow and Anor
[2020] FCCA 2869
•9 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALLOW & HALLOW & ANOR | [2020] FCCA 2869 |
| Catchwords: FAMILY LAW – Parenting – where children have special needs and have been in the care of the maternal grandmother for an extended period – where even the relatively modest proposal of the father for contact and communication with the children is not in their best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS HALLOW |
| First Respondent: | MS B HALLOW |
| Second Respondent: | MR CASSIDY |
| File Number: | WOC 1213 of 2018 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 6 – 8 October 2020 |
| Date of Last Submission: | 8 October 2020 |
| Delivered at: | Wollongong |
| Delivered on: | 9 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Rebehy |
| Solicitors for the Applicant: | MDV Family Lawyers |
| Counsel for the First Respondent: | Mr Alexander |
| Solicitors for the First Respondent: | Acorn Lawyers |
| Solicitors for the Second Respondent: | Holmes Donnelly & Co |
| Counsel for the Second Respondent: | Mr Cairns |
| Counsel for the Independent Children's Lawyer: | Ms Humphreys |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
Further final parenting Orders be made in accordance with the document marked “A” dated this day 9 October 2020 and attached hereto.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
“A”
MINUTE OF ORDER OF THE INDEPENDENT CHILDREN’S LAWYER
THAT ORDERS BE MADE AS FOLLOWS:
That the father shall spend no time and shall not communicate with the children X born in 2009 and Y born in 2011 other than in accordance with the following:-
1.1In the event that the maternal grandmother is made aware that the children or either them have enquired about the identity of the father then:
a) The maternal grandmother may contact the father and request that he send to her a photograph of himself and a picture of his location at a time that she deems to be in the children’s best interests;
b) The father is to provide an appropriate photograph of himself and a picture of his location within 14 days of receiving a request pursuant to Order 1.1 a) to the address including email address nominated by the maternal grandmother;
c) The maternal grandmother may then inform the children of the identity of the father, show the children the photograph of the father and/or show the children the picture of his location at her sole discretion and as she deems appropriate.
1.2In the event that the maternal grandmother deems it to be in the children’s best interests for the children to receive cards and gifts from the father then:
a) The maternal grandmother may inform the father that he may send to her cards and gifts for the benefit of children;
b) The maternal grandmother shall inform the father and keep him informed of a nominated address where he is to send cards and gifts as provided by these orders.
c) The father may then provide appropriate cards and gifts to the address nominated by the maternal grandmother for the benefit of the children for the following special occasions:-
(i)Each of the children’s birthdays;
(ii)Christmas;
(iii)Easter
c) The maternal grandmother may then provide the children the cards and gifts at her sole discretion and as she deems appropriate.
d) That the court note that in assessing what is in the children’s best interests and what is deemed appropriate for the purposes of the orders herein, the maternal grandmother may consult the children’s treating psychologists or other appropriate therapist and be guided by the therapeutic advice.
That the father is not to attend any school in which the children are enrolled.
That the father is not to attend upon any residence in which the children reside.
IT IS NOTED that publication of this judgment under the pseudonym Hallow & Hallow & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1213 of 2018
| MS HALLOW |
Applicant
And
| MS HALLOW |
First Respondent
| MR CASSIDY |
Second Respondent
ORAL REASONS FOR JUDGMENT
These Reasons for Judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Introduction
This case is about 2 children, X who is 11 years old; and Y who is 9 years old. The evidence indicates that X suffers from Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, and Oppositional Defiant Disorder. Y suffers also from Autism Spectrum Disorder, as well as Global Developmental Delay.
The Applicant in this case is the Maternal Grandmother. She is nearly 58, lives at Town B in the Region C area of New South Wales and works part-time.
The Respondent Mother, the mother of the children is 34 years old. She lives in the Region D of New South Wales and is not in employment. The Second Respondent is the Father. He is 42 years old, and lives in what he describes as a remote township in Tasmania, and he is not in employment.
It needs to be acknowledged right up front, that this is a case about vulnerable people. I acknowledge that everyone, all the adults in this case, have had very difficult lives, and, in fact, so have the children. The Mother and Father struggled with a dysfunctional relationship that involved drugs, alcohol, family violence and mental health issues. The Maternal Grandmother has her own difficulties, and has made many sacrifices to care for her grandchildren.
The Mother and Father seem to have done quite a lot to improve their lives, but based on all the evidence, for both of them, there is the risk of relapse into drug and alcohol abuse and, possibly, even mental health for the Father. As the evidence indicates in this case, this risk of relapse is a very real one.
X and Y have been living with the Maternal Grandmother for nearly 3 years now. The Mother was spending time with the children, initially supervised, and then unsupervised. On the second day that the matter was listed before me, I made consent orders as between the Maternal Grandmother and the Mother. These Orders were not opposed by the Father and they basically provide for equal shared parental responsibility between the Mother and Grandmother, except in relation to health and medical, where the Grandmother has sole parental responsibility, that the children live with the Grandmother, and then spend time with the Mother as set out in those Orders.
The Court formed the distinct impression that, certainly the Father, but even the Mother, would have very much preferred their lives to have been different. I sense that the Mother really would have preferred the children to live with her or at least have them half-time. I sense that the Father would have preferred a much closer and more normal relationship with the children.
Based on this Court’s experience, though, this case demonstrates what so many other cases demonstrate, and that is that some events cast a giant shadow that subsists many, many years after the event has ended. Drugs and alcohol, family violence, and mental health issues, are such events. They cast a giant shadow that impacts on relationships and outcomes many, many years later. With that broad background, the Court had to decide what time and under what circumstances the Father communicate with the children.
The Orders that I have made are, in effect, those proposed by the Independent Children’s Lawyer, the Maternal Grandmother, and the Mother and they basically provide that the Father is not to spend time or communicate with the children other than in accordance with the provisions that largely depend on the Maternal Grandmother becoming aware that the children have asked, raised issues about the identity of the Father, or, alternatively, that the Maternal Grandmother decides that it is in the best interests for the children to receive cards and gifts from the Father. That was their proposal, and as I say, that is the order that the Court has ultimately made for the reasons that I will describe.
The Father’s proposal was set out in his minute of order provided to the Court by his Counsel. For all practical purposes, it provided for him to be at liberty to send cards, letters, and gifts, to the Maternal Grandmother’s address, and that the latter, that is the Maternal Grandmother, authorised the children’s school and the children’s treating medical practitioners to provide information to the Father.
The Father initially sought, but then, ultimately, did not press orders that gave him the opportunity to spend time with the children should he ever travel to New South Wales, as well as provided for telephone contact. The Father, through his Counsel, quite properly acknowledged that these last orders, that is the ones that were not pressed, were not supported on the evidence of the Family Consultant and probably had little prospects of success.
The applicable law
The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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.
(2) 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:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(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);
(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 long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The evidence before the Court
In the Applicant’s case, she relied on the following documents:
a)Amended Initiating Application filed 18 September 2020;
b)Affidavit of Ms Hallow filed 18 September 2020;
c)Notice of Risk filed 22 November 2018; and
d)Case outline document received 28 September 2020.
In the First Respondent’s case, she relied on the following documents:
a)Amended Response filed 18 September 2020;
b)Affidavit of Ms B Hallow sworn 17 September 2020 and filed 18 September 2020;
c)Affidavit of Mr E sworn 17 September 2020 and filed 18 September 2020;
d)Notice of Risk filed 3 May 2019; and
e)Case outline document filed 25 September 2020.
In the Second Respondent’s case, he relied on the following documents:
a)Response filed 21 October 2019;
b)Affidavit of Mr Cassidy sworn 30 September 2019 and filed 21 October 2019;
c)Affidavit of Mr Cassidy received 6 October 2020; and
d)Notice of Risk filed 21 October 2019.
The Independent Children’s Lawyer relied on her case outline document received 2 October 2020.
The following material was tendered as evidence during the course of the proceedings:
a)The Family Report prepared by Ms F dated 22 June 2020;
b)Email correspondence between the Family Report writer and the Father;
c)Tender Bundle prepared by the Independent Children’s Lawyer;
d)Material produced pursuant to subpoena on the Department of Education; and
e)Material produced pursuant to subpoena on Region D Local Health District.
The Court has had regard to all of this material.
The evidence
I would like to discuss, firstly, evidence about the children, about X and Y. I have already referred to the conditions that these children suffer from. There is no dispute in this case that X suffers from the matters I referred to, that is ASD, ADHD, and ODD. There does not seem to be any dispute about the impact on X of this and on the Maternal Grandmother who cares for her. There is no dispute because the evidence was not subjected to challenge in cross-examination.
From at least 2017, X started to demonstrate aggressive behaviour at school, so much that she was suspended for a total of 7 days in May 2017. Please recall that X was only 8 at this time. She is reported in the contemporaneous records to be frequently absconding from school. At the time, X was receiving appropriate psychological assistance, as well as medical assistance including paediatric care. She was displaying anxiety. In August 2018, she was suspended from school for 20 days. The school records in 2019 continue the theme of her aggression and her inability to regulate her own behaviour. The latest medical evidence in relation to her is 5 August 2020, and it refers to her phobias, anxieties, and occasional outbursts at school.
In relation to Y, his doctor reported as recently as August 2020 that he was having 2 to 3 meltdowns a day and proving to be more challenging to handle as he grew bigger and was more boisterous.
I do not want to create the wrong impression here. I am not blaming the Father for what these children are experiencing. There were other things going on in their life, including the dysfunction in the Mother’s life. This is not an exercise about attributing blame. It merely demonstrates the vulnerability of these children and the challenges of parenting them. The vulnerability of the children means that what might in other cases be regarded as low impact, perhaps, even innocuous orders, actually assume in this case a much greater risk for X and Y.
There were 3 witnesses who were cross-examined in the case, and I will discuss the evidence of each of them. The Maternal Grandmother gave evidence. Her trial Affidavit was filed on 18 September 2020. I observe that at paragraphs 52 to 97, she gives extensive and unchallenged evidence about the children’s medical conditions and what it is like parenting them. At 214 to 238, we are given another insight into what it is like parenting X and Y. It seems to the Court that the Maternal Grandmother has made enormous sacrifices to care for these children who, by any objective assessment of the totality of the evidence, are doing well in her care despite their vulnerability and the adversities that they have experienced in their lives.
The Maternal Grandmother was required for cross-examination by Counsel for the Father only. She would not accept the contention that the Father was a different person even though she last saw him 10 years ago. She explained that she had heard previous expressions of contrition from the Father and commitments to change all before 2009 and 2010. It would be fair to say that she was sceptical about the Father changing or, indeed, having the capacity to change.
The Maternal Grandmother had read the Family Report, a document that we will study shortly, and was well aware of the Family Consultant’s recommendations as they related to the children and the Father. She explained, however, that in her view, the children have so much to deal with in their lives at the moment, that she could not see the benefit of any contact or communication with their father for now. Even as regards to the provision of information to the Father about education and medical issues, her view was that this was primarily for the Father’s benefit, and not the children. She did not think, for example, that the children were ready for photos of their father, and was concerned about how, for example, X’s anxiety might be triggered as a result of this. Nonetheless, the Maternal Grandmother made it clear that she would comply with any Order of the Court.
The Court accepts the Maternal Grandmother’s evidence. The Court found her to be an impressive witness and, indeed, she has been the solid rock, the anchor that these children have needed in their lives. She does have concerns about the Father. Those concerns are genuine. She has concerns about the Father’s proposal, and her concerns were child-focused.
The Orders that the Court has made places a lot of trust and responsibility in the Maternal Grandmother. The Court is satisfied that her track record of caring for these children has earnt the trust of the Court that she will always act in their best interests and not her own.
The Father gave evidence. The Father made an Affidavit, the truth of which was attested to in evidence-in-chief on 7 October 2020. He confirms that he has not seen the children since at least 2014. He became involved in this case, consistently involved it must be said, since he was served in early 2019. It should be noted that he did not initiate the claim. He was served, and thus, he took the opportunity to seek orders as was his entitlement. A relevant issue, however, is, why didn’t he initiate proceedings himself at an early time, for example, from 2014. He deposes to remaining homeless until mid-2017 when he moved to Tasmania.
The Court accepts that the homelessness and drug and alcohol issues that the Father experienced were barriers to him seeking to know his children, but the Father’s own case is that these were past problems from mid-2017 when he moved to Tasmania. There really isn’t a clear explanation for not doing something once he moved to Tasmania. Ultimately, it does not influence the outcome of this case.
The Father acknowledged in his Affidavit and in cross-examination his past drug use and family violence. In closing submissions, it was contended against the Father that he minimised this and specifically minimised its consequences on the Mother, the Maternal Grandmother, and the children. He acknowledges in his evidence continued use of marijuana and alcohol, though, at a low level, and commits himself to sobriety in future. He explains his proposal has been primarily to achieve reintroduction to the children, but not in person contact. He does want to be involved in the children’s lives, to know what is going on with their education and health, and to be able to send presents and gifts on special days. In his Affidavit, he deposes to wanting time, telephone or Facetime contact too, but this was not pursued at the Hearing quite properly, it should be recorded.
The Father was cross-examined, indeed extensively cross-examined. He came over as very defensive at times and having an overall poor recollection of historical facts. Nonetheless, most of the time I felt he was telling the truth, except in relation to issues relating to family violence, where my impression was that a number of things were going on. Firstly, it is possible he genuinely did not recall how serious the family violence he perpetrated on the Mother and on his own mother, which is the paternal Grandmother was, because he was so intoxicated or under the influence of drugs that he could not recall; that is one hypothesis. The second hypothesis is that he has shut this out of his mind because it was a part of his life that was very traumatic for him to have to revisit; that is a possibility.
The problem for the Father is whether it is either of these possibilities I have referred to, it ultimately does not help the Father’s case. The objective evidence of the family violence that he perpetrated is clear. It was physical violence of the most serious kind. The assault on the Mother in June 2010 was in the presence of X. The assault on his own mother on the next day was just as appalling. There is evidence in the police records and other materials before the Court of earlier and later assaults.
The Father was given ample opportunity to demonstrate that he had gained an insight into his behaviour and its impact on those around him, especially the mother of his children and the children themselves. Regrettably, he did not take those opportunities. Regrettably, he came across as critical of the Mother at times, externalising responsibility of his actions to drug and alcohol abuse and mental health issues, and at times, coming across as very self-focused.
His blaming of the Mother, in particular, was obvious and disturbing. For example, for bringing the Court case in the first place and for the medical conditions that X and Y suffer. He came across, regrettably, as blaming of others for things he did himself and as having, at times, equal measures of self-pity and self-entitlement.
The biggest concern I have about the Father after hearing his evidence was as follows: firstly, that he could not envisage in his mind what it must be like for the children, the Mother and the Maternal Grandmother for him to re-enter the children’s lives; secondly, that he may not be able to regulate what he says in front of the children; thirdly, he may not be able to regulate his actions or words about the children in front of others; and fourthly, he does not understand that family violence, even family violence perpetrated a decade ago, can continue to have a very profound impact on its victims and upon its witnesses.
The third witness in the case was Ms F, the Family Consultant. She prepared a Family Report dated 22 June 2020. This became exhibit ICL1. There are a number of relevant paragraphs that I would like to simply incorporate into these, my Reasons for Judgment, but these will be limited to the specific issues in dispute before the Court.
I incorporate paragraphs 52 - 55 of the Report where the Family Consultant discusses the Maternal Grandmother talking about the children.
[52] Mrs Hallow described both of the children’s disabilities and their medications in detail. She ensures that they take their medications and noted that they have settled and respond well to the medications. Mrs Hallow described X’s personality carefully and warmly in much detail. She said X is articulate and interested in animals, having much knowledge about particular animal species. Mrs Hallow said X has one particular friend and tends to get on better with boys than girls. She said that X was prone to behaving aggressively at school with the threat of suspension but has settled and has fewer meltdowns. She said that X has been relatively settled during 2020, including school closure during covid19 restrictions.
[53] Mrs Hallow said X loves her mother but does not have the same strong connection with her mother that she has with her. She said when X reconnected with her mother, she did not want to see her initially but showed more enthusiasm when Ms B Hallow started spending time together at interesting places. She said X copes reasonably well with spending time with her mother on Fridays. Mrs Hallow said X is aware her biological father but refers to Mr E as her father. She said she is concerned about X meeting Mr Cassidy; she thinks this would not be of benefit to X; she talked about X being frightened as a baby, in the environment wit Ms B Hallow and Mr Cassidy and she hopes X does not have any memory of her early years.
[54] Mrs Hallow described Y in the same warm manner and in detail as she did X. She described how he is non-verbal but communicates well nonverbally, and is very visual. He is sensitive to touch and taste and requires dietary supplements due to his limited diet. She said that, for some years, he was at risk of flight which has settled and is now minimal. She said he will now go to school independently, walking confidently, responds to the school routine and takes cues from her routine, such as her preparing for the day. She said that Y’ special interest is the weather. She said he is less prone to meltdowns than when younger.
[55] Mrs Hallow discussed how she would prepare the children for their family report interview to maximise the likelihood that they would be able to participate and to reduce their anxiety. She provided the writer with invaluable detail about the children to ensure the success of the interview and that it be a positive experience for the children. Ms B Hallow also negotiated the use of her older daughter’s iPhone to enable a video conference with the children.
At paragraph 64, there is the Mother’s account of the Father’s family violence.
[64] Ms B Hallow does not wish to have a coparenting relationship with Mr Cassidy and thinks the children should not have contact with him. In her affidavit material Ms B Hallow recalled that, on 15 June 2010, Mr Cassidy was educated and smashed items, yelled and called her names. She said he choked her to the point that it was difficult to breathe. She said that he then picked up a metal baseball bat and, in an attempt, to hit her on the head, he hit her arm and head and smashed the TV with the bat. X was present. Apparently, Mr Cassidy’s mother arrived to the incident and removed her and X to her home, then reported the incident to the police. Ms B Hallow said that she sustained injuries of marks, bumps and bruises on her arm and head. An AVO was then issued against Mr Cassidy protecting Ms B Hallow. A copy of the provisional order dated 15 June 2010 is included in Ms B Hallow’s affidavit material.
At paragraphs 79 - 90, there is what the Father told the Family Consultant. Specifically, paragraph 84 I found disturbing as it supports the observation the Court has already made and the finding, indeed, it makes about the Father minimising the family violence.
[79] Mr Cassidy, born in 1978 aged 41 Years and 6 months, presented as cooperative and he required reassurance that he be recognised as an important party in the proceedings as father to X and Y. During the course of email communication when arranging the family report appointment Mr Cassidy apologised for some harsh email content to the writer. He emphasised the importance to him of his role and that the children should know that he loves them has their interests as a priority. He expressed concern that they may come to think of him as having forgotten them, which he said, is far from the case.
[80] Mr Cassidy grew up in City G. His father died when he was six years old and he has a young brother and younger maternal step siblings. Mr Cassidy said that his childhood was impacted by having lost his father. He said he was a rebellious young adolescent who truanted from school and came to the attention of the police, but for minor transgressions. He said he maintains contact with his mother and brother but no other family members. Mr Cassidy said that his side of the family do not have contact with X and Y.
[81] Mr Cassidy stated that he relocated to Tasmania in 2018, initially to Town H, and he has lived in Town J for the past twelve months. He said that Tasmania is the only location in Australia where he can afford to live. He said he expects to remain resident in Tasmania and does not expect to travel interstate. Mr Cassidy stated that one of the limiting factors for him having a personal relationship with the children is the remoteness of where he lives and the expense of interstate travel.
[82] Mr Cassidy said he is mentally healthy and managing the restrictions of covid19 well, noting that his lifestyle has not changed significantly. He stated that he prefers to live alone and has grown to be content in his own company. Mr Cassidy said that, as a consequence of the separation, he was been diagnosed with depression. He said he became deeply despairing and made a suicide attempt, and prescribed a number of psychotropic medications, including Lyrica and Avanza. Mr Cassidy said that he no longer requires these but is now prescribed Endep for back pain. He said he maintains good mental health by eating well, exercising regularly, and maintaining minimal and healthy social connections. Mr Cassidy noted that he has cut off some friendships due to them being toxic.
[83] Mr Cassidy said that he met Ms B Hallow in City G. He reported their relationship to have lasted four years including some breaks. He attributes the breakdown to Ms B Hallow prioritising use of marijuana over their relationship, saying she smoked marijuana heavily daily, and also ice occasionally. Mr Cassidy said he too used marijuana and, in combination with alcohol, attempted to escape the troubles of the relationship. He said Ms B Hallow was uncommunicative and difficult to connect. He described feeling frustrated in the relationship, trying to connect with Ms B Hallow by being verbally abusive to elicit a response and that Ms B Hallow was physically abusive towards him, for example by hitting and punching him.
[84] Mr Cassidy denied having perpetrated family violence against Ms B Hallow, acknowledging having used a baseball bat to smash the television screen. He said he did not remember ever threatening to kill her. Mr Cassidy reported that he prefers not to revisit the events in the relationship with Ms B Hallow. He said the allegations of family violence, and the subsequent AVO, do not reflect the true and nuanced dynamics of the relationship, noting that he and Ms B Hallow continued their relationship after the commencement of the AVO. Mr Cassidy said he could not recall details of misdemeanours or if he had a criminal history. He said that he thinks he may have been involved in some assaults, noting that he recently applied for a Tasmanian Working With Vulnerable People check which was not approved.
[85] Mr Cassidy described his involvement with the children as significant. He said that, prior to the separation, he did most of the care for X. He said that Ms B Hallow was incapacitated by the effects of marijuana and that he ran the household, prepared meals, changed nappies, and fed and supervised X. However, he acknowledged not caring for Y and connecting with him only, during rendezvous with Ms B Hallow.
[86] Mr Cassidy stated that he feels marginalised by Ms B Hallow and the maternal side of the family, excluding him from future relationships with X and Y. He said that, after the separation, once Ms B Hallow commenced living with her parents, they tried to prevent Ms B Hallow from seeing him, relying on the AVO issued against him. Mr Cassidy said that he understands their having been protective of her. Nevertheless, he said that the time has come for the children to learn about him. He said he had also hoped to encourage his family members to connect with X and Y but that they rejected him and these attempts. Mr Cassidy said that he has recently reconnected with his mother.
[87] Mr Cassidy thinks that the context of arguments in the relationship with Ms B Hallow and the family violence allegations needs close consideration. He feels he is cast in a negative light due to the allegations. He said he has been frustrated in his attempts to connect with the children, noting that he was not aware of the Child Dispute Conference interviews or involved in the making of Consent Orders. Mr Cassidy said he has always made himself available for Court appearances or interviews. However, he said he recognises that logistics are a “massive” factor in him ever connecting with the children.
[88] Mr Cassidy expressed concern, as recorded in his Notice of Risk filed 21 October 2019, about X being exposed to poor living conditions and drug use if they are in the care of Ms B Hallow and Mr E, and Mr Hallow’s drug use if in his care. He said he has had no information about the children for a number of years. His recollections of them are from 2011 when X was a toddler and Y was an infant. He said that Y appeared to him to be not developing along normal lines but X seemed to be developing well. Mr Cassidy queried whether X’s diagnosis of autism should be withdrawn or reviewed.
[89] When asked to consider ways of achieving his objective to be involved with X and Y, Mr Cassidy was positive about receiving information about their health and education, such as medical assessments and school reports. He said that he has not given gifts or cards to the children since the early stages of the separation but would wish to do so. He suggested using FaceTime in the future to talk to the children. Because of estranged relationships with Mrs Hallow and Ms B Hallow and the remotes of his location, Mr Cassidy was unsure about the logistics of sending and receiving information or gifts or connecting in person or through FaceTime. He appeared cognisant of the barriers to him connecting with the children.
[90] Mr Cassidy thinks that X and Y should live primarily with Mrs Hallow. He said that, from what he knows of Ms B Hallow, she does not have the will power to stop using marijuana to sufficiently care for the children. He thinks she is an individual who lacks motivation to change her behaviour from revolving around substances. Mr Cassidy stated that the children should live with the maternal grandparents. He stated that Mrs Hallow has had the necessary responsibility and competence to intervene on the children’s behalf. He said he is grateful for her willingness to look after them.
Paragraphs 96 - 105, where the Family Consultant discusses the children, this is actually very important evidence in this case.
[96] X, born in 2009 aged 10 years and seven months, was described by Mrs Hallow and Ms B Hallow as talkative, friendly and particularly interested in animals. They said that her happy-go-lucky personality is evident when she is relaxed. She attends mainstream school in Year 5 K School in a support class.
[97] X has diagnoses of autism, ADHD and ODD for which she takes the medications Risperidone, Ritalin and Lovan. Mrs Hallow reported that, prior to the last six months, X was prone to meltdowns and her behaviour was difficult to manage. When X started living with her in 2016, she was attending school for two hours a day because her needs could not be adequately met across the long school day. Mrs Hallow said that X’s behaviour and her demeanour in general has vastly improved from 2017 with the effect of the medications, good routine, and with the assistance of the school. Mrs Hallow said that X now very rarely has meltdowns. Mrs Hallow said that X is vulnerable to anxiety and sometimes experiences anxiety related eating problems. She said these problems have largely settled.
[98] During the interview X presented as a well-cared for, happy, energetic child. The interview was conducted via FaceTime from Mrs Hallow’s family room. X directed her conversation to the screen and sometimes left the screen to find an item of interest such as one of her soft toys to display on the screen. She also walked to Y’s room to show his toy trucks and to another room to show the pets, a cockatiel “L” and two dogs. X took a very active approach to the interview. She demonstrated her craft skills and performed some animal sounds. Her communication was concrete, mostly around demonstrating and talking about her interests.
[99] X spoke positively about her class teacher and the assistant teacher, both being “nice”. She said that she has “lots of friends at school” and enjoys spending time with them in the “aboriginal garden” where they sit on logs and the girl circle at recess and lunchtime. X also said that she likes being at home. She said her favourite activity is to play with her many stuffed animals and throughout the interview she introduced a number of them one at a time. She said she sometimes helps her grandmother cook and gave the example that over the weekend they will make a birthday cake for Y. X seem particularly excited about Y’s birthday celebration and spoke in a whispered tone about the cake as if it were a surprise.
[100] When discussing her favourite things, X spoke about animals and showed some of her favourite toys, such as her mechanical dragon toy. She said that she enjoys visiting her mother because they sometimes sees a cat there. Otherwise, X said that she loves going to the beach and Parks. She said that her favourite colour is “cyan”, and when asked, she explained that this is an “aquary colour”.
[101] During the interview X was seen to be supportive of Y, facilitating some of his communication and correcting his answers as she saw necessary, such as that he is turning nine years of age on his upcoming birthday rather than seven as Y said. She also explained some of Y’s behaviour, for instance when he left the screen, she noted that he had gone to the toilet. She spoke to him in a caring and authoritative tone. She was most careful to try not to let him hear her talking about the birthday cake.
[102] Y, born in 2011 aged 8 years and 11 months, was described by Mrs Hallow and Ms B Hallow as an active child with a particular interest in trucks, “a character”, and focussed on the weather. He attends M School.
[103] Y has a diagnosis of autism, being particularly sensitive to touch and taste, and limited verbal communication. He also has a developmental delay. Y takes medication prescribed in 2017, Risperidone. Y tends to accept only a limited range of foods and therefore takes dietary supplements. Y was reportedly considered a “flight risk”, that he might run away from school. Mrs Hallow reported that, over the last two years, he has settled well into school and is now no longer anxious about attending school and is content to enter the school independently and spent time playing after being dropped off before the school bell rings.
[104] Y was interviewed with X over FaceTime. He had some difficulty putting his face to the camera/screen. He was sometimes seen in the background while X was talking, jumping and flapping. Y was initially present together with X during the interview and popped in and out as seemed to suit him. He seemed relatively relaxed about his brief participation in the interview and it is hoped, and appeared to be, that the interview was not a source of stress for him.
[105] Y spoken single words on topics of interest to him. He said his favourite things, he said his favourite colour is purple, he likes watching TV, and using the iPad which he demonstrated, and agreed with X that he likes chips. Y happily accompanied X to his room to show his toy trucks. He acknowledged his birthday being on the weekend. Y appeared happy.
Paragraphs 109 - 115, where the Family Consultant summarises the subpoenaed material that she examined.
[109] New South Wales police. An entry noted 15 June 2010 records the incident which instigated the AVO. It records Mr Cassidy screaming at Ms B Hallow and placing his hands around her neck, Ms B Hallow struggling to breathe. She evidently dropped to the floor and banged on the floor in mercy. He then knelt on her leg and upper torso. Ms B Hallow was holding X. Mr Cassidy then grabbed a baseball bat and started destroying the property. He left then returned using the bat to assault Ms B Hallow, swinging it at her legs repeatedly. The next day on 16 June 2010, Ms B Hallow returned to collect items and Mr Cassidy threw an object at her car and hit her to the right side of her face with a closed fist. Ms B Hallow reacted by punching him across the chest. He then punched her again resulting in pain and her nose bleeding profusely.
[110] An entry noted at 5 September 2013 records Mr Cassidy being conveyed to N Hospital under the Mental Health Act following disclosures of suicidal intent.
[111] An entry from 8 March 2001 records Mr Cassidy having punched a victim in the face and shoulder resulting in a charge of assault and given conditional bail.
[112] Department of education. A copy of a letter from the school principal outlining behavioural concerns about X and pending suspension. An entry of 2018 records the risk X’s own behaviour poses to her well-being; that she has a propensity for reckless erratic behaviour when she feels trapped severely anxious or victimised at school. Assessment report by Dr O, developmental Paediatrician dated 17 August 2018, says that X meets the diagnostic threshold for autism, level 2, including anxiety as part of pervasive developmental disorder.
[113] Family and Community services. Entries commence at 2010. Risk factors noted include: allegations about multiple events of Mr Cassidy perpetrating family violence on Ms B Hallow; Mr Cassidy having serious mental health issues displaying signs of schizophrenia, paranoia, persecution, agitation.
[114] Mission Australia. Indicates involvement coordinating to assist Y, including speech pathology and occupational therapies.
[115] NSW Police. Long entries record incidences around AVOs and Mr Cassidy having history of charges.
Paragraphs 116 - 126, being the Family Consultant’s evaluation and, specifically, in the present context, paragraphs 116, 117, 119, 123, and 124.
[116] X and Y impressed as unique children who are well cared for by Mrs Hallow and loved by their family members. Their special needs indicate that they will most likely require family support and professional care throughout the lifespans. X and Y will benefit greatly from positive involvement from their carers in a coordinated manner which is not stressful for them. They will benefit from the input of a team of professionals, and by regularly attending school and therapy assessments and treatments. Given each child’s propensity to “meltdowns” and X’s behavioural difficulties and anxiety, they will benefit from calm responsive parenting to settle them and help them learn over time increased emotional self-regulation. This, in conjunction with communication and a consistent approach by their respective schools will aid in their development.
[117] Children, particularly infants, are sensitive to the impacts of family violence, the mental health and emotional and physical availability of their parents, and any disruption to their care arrangements. X and Y experienced alleged family violence, the impact of this on Ms B Hallow, parents who acknowledge having used substances, parental separation with the consequence that their relationship with Mr Cassidy was severed, alternate care by Mrs Hallow, change in households, parental emotional and financial stress. Witnessing family violence along with other challenges place children at risk of impact on cognitive, social and emotional development. The unsettled behaviour as described by Ms B Hallow, and reported by X’s school, may reflect the presence of early adverse conditions, amplified by each child’s diagnosis of autism and their other conditions. X and Y will benefit from living, as a priority, in a stable, predictable homelife and attending school regularly. The improvement in their behaviour, particularly X’s, if correct as reported by Mrs Hallow, that she has settled and meltdowns have become rare, may reflect that there is a context of stability and coordination that the children are now responding to.
[118] Mrs Hallow impressed as a hard-working grandparent who has placed the children’s need of a safe predictable home environment as her priority. To do so she has cut back on her work hours and transported the children to school and appointments, and long distances to initially support Ms B Hallow and latterly to facilitate her relationship with the children The children’s emotional wellbeing and developmental progress appears to have benefitted from the stability of Mrs Hallow’s home environment and her responsiveness to them. This was demonstrated by the preparation for X and Y to participate in the family report interviews and informal observations, along with the depth of knowledge about their personalities, interests and coping mechanisms provided to the writer in conducting the interviews.
[119] By seemingly catering for their special needs, prioritising solid routines and support for their education programmes, Mrs Hallow appears to have provided the children with security in the home and a conduit to outside relationships and organisations. Children with autism are often predisposed to anxiety and other cooccurring conditions, such as are X and Y. The care provided by a single, available carer such as provided by Mrs Hallow is a protective factor to inordinate levels of stress and overwhelm. It is suggested that Mrs Hallow be supported in her role caring primarily for the children and that parenting arrangements be designed to support her relationship with the children; that the children live with her.
[120] Mrs Hallow evidently has the support of Mr Hallow. However, from interviews and affidavit material, Mrs Hallow is clearly the primary care role with the acceptance of Mr Hallow. Mr Hallow’s role in maintaining the family connection with Ms B Hallow is of benefit to the children. By maintaining an element of social glue and positivity in his communications with Ms B Hallow, Mr Hallow’s role may assist to further reduce the overall level of acrimony in the family, particularly with regard transporting the children.
[121] Ms B Hallow impressed as loving the children and wanting the best for them. She expressed grievance about how the children came into Mrs Hallow’s care and how she misses them. The children’s care with Mrs Hallow represents a painful loss for Ms B Hallow and it is suggested that maintaining her relationship with the children will also have the indirect benefit for the children of Ms B Hallow’s improved mental health. However, Ms B Hallow along with Mr E seemed to gloss over any personal responsibility that may have contributed to the children living with Mrs Hallow. Ms B Hallow’s diagnosis of ADHD, ODD and past lengthy use of substances places her at risk of difficulties regulating her emotions and focusing on task. The permanency of whether or not Ms B Hallow has made the lifestyle changes she described is not clear. However, if she is able to abstain from using substances, this is a significant achievement, and will be of benefit to her relationship with X and Y. It is suggested that Ms B Hallow access and receive ongoing support to continue to do so.
[122] Ms B Hallow’s proposal that the children live in an equal time arrangement with her and Mrs Hallow, is very unlikely to meet the children’s requirements. Such an arrangement would not take account of the children’s need of continuity and stability and would deprive X particularly of the everyday one-on-one relationship with Mrs Hallow that seems to be particularly protective. There is also not present the flexible and cooperative coparenting relationship that is required of an equal time arrangement. Given the children’s emotional and practical needs, it is suggested that an equal time arrangement would not suit them.
[123]Mr Cassidy impressed as taking the opportunity to clearly express the importance to him of being involved in the children’s lives. He has chosen to live in Tasmania for economic reasons and he indicated that the isolation from social contact has been beneficial to his ongoing mental health. His main concern is that he be recognised as the children’s father, be involved in their lives, at least to the extent that is logistically possible, and receive information about them. He seemed realistic about the limitations to his proposals imposed by the far distance he lives from the children. Having allegedly perpetrated family violence on Ms B Hallow and the reported impact on her and likely impact on the children, suggest that, taking into account the children’s disabilities, this family does not have the emotional resources to coparent with Mr Cassidy or to manage X and Y spending time with Mr Cassidy. It is not foreseeable that Mrs Hallow or Ms B Hallow would, or feel able to, facilitate his having direct contact with the children.
[124] The task of middle childhood is the development of sense of self. Part of sense of self comprises where one fits in their family. X and Y may, at some stage, come to understand Mr Cassidy as their biological father. It is suggested that Mr Cassidy be availed of information about them relating to their development health and education through such documents as school reports and medical assessments. In this way, Mr Cassidy will learn about X and Y, and they may benefit from the fact that he cares about them and has knowledge and interest in them.
[125] X and Y have a relationship with their mother. This has been maintained over time, despite the acrimony between Mrs Hallow and Ms B Hallow. Mrs Hallow appears to recognise the importance of the children having a positive relationship with their mother. On the information of this assessment, she appears to have taken many practical steps over the years to support her daughter and the children and their relationships, both prior to the children living with her and under the present arrangements.
[126] With regard the issue of whether the children spend overnight time with Ms B Hallow, from the information on this assessment it is unclear whether there would be any benefit to the children by doing so. X and Y have now settled into a living arrangement with Mrs Hallow who they rely on to manage their weekly routine and engage with school and the outside world. Ms B Hallow too was able to interpret their needs from an understanding of their internal world and special characteristics. The children will benefit from the maintenance of a solid relationship with their mother that preserves the relationship with Mrs Hallow as their primary carer. This is most likely best achieved by living with with Mrs Hallow and spending ongoing daytime with Ms B Hallow. Regular day time spent with Ms B Hallow that is child focussed and manageable for Ms B Hallow will generate confidence and a pattern of care that will generate the potential for the children possibly spending overnight time when they are older. The present arrangement appears to be both allowing the children of the opportunity of relationship with Ms B Hallow while maintaining the security in the relationship with Mrs Hallow and the stability of living in one home.
Finally, paragraphs 127 - 129 where the Family Consultant makes recommendations.
[127] It is recommended that X and Y live with Mrs Hallow.
[128] It is recommended that X and Y spend time with Ms B Hallow during one or more afternoons in the school week as their routine allows and one day on the weekend.
[129] It is recommended that Ms B Hallow accesses psychological support to manage emotionally and facilitate the arrangements.
The important thing to bear in mind about all of this evidence is that it is consistent with the other evidence before the Court, particularly what I have described loosely as the third party sources found in the Tender Bundles and the subpoenaed documents.
The Family Consultant was cross-examined. The key focus of the cross-examination was the Family Consultant’s recommendations at paragraph 124 where she suggested that the Father be availed of information relating to the development, health, and education of the children through provision of documents such as school records and medical assessments. She explained that the rationale of this was that the Father would learn about the children and they may benefit from the fact that he cares about them because he has asked for this information.
In cross-examination, it came out that the Family Consultant had already given advice to the parties, all the parties, in a private conference on day 1 of the Hearing. She confirmed her opinions at paragraph 124, and also suggested that a photo of the Father be provided to the children. The Family Consultant later clarified that the photo was meant to go or could go into a scrapbook or album rather than, for example, on a bedside table. The Family Consultant explained the significance of all of the above as assisting the children to understand who their father is and, therefore, an aid to their own assessment of their identity and self.
Significantly, the Family Consultant then explained that as important as the children’s sense of identity was for them, what was even more important was that they not be destabilised or stressed by any order of the Court. When Counsel explained that the Maternal Grandmother had given evidence about the discomfort she would feel about things like photographs, the Family Consultant indicated that it was important to consider the Maternal Grandmother’s capacity to facilitate communication of any sort between the Father and the children.
The Maternal Grandmother, the Family Consultant explained, was critically important as the children’s channel of communication with the outside world. If that channel was interfered with for any reason, the children would be disadvantaged. Again, the Family Consultant emphasised that benefit to the children of any order must be balanced against disadvantage. Anything that would be the source of stress for the children must be avoided as a priority, she said. She was, however, open to communication with the Father being child-led, obviously, at the appropriate developmental stage when that might be possible for them.
On the question of cards and gifts, especially if moderated by the Maternal Grandmother. The Family Consultant explained that this creates a longer term connection between the Father and the children.
Counsel for the Independent Children’s Lawyer put to the Family Consultant that the Father in cross-examination had indicated that if he did receive information about the children’s education or health, he might seek legal or medical advice which, ultimately, it was submitted, could then place stress on the Maternal Grandmother. No objection was taken to this question. It was later suggested in submissions that the Father did not give this evidence, but as no objection was taken to the question, it was asked and answered. The Family Consultant explained that any response from the Father should be avoided. He should just be receiving the information.
It was later suggested by Counsel for the Father that he would indeed accept an order restraining him from responding to any information provided. This was clearly responsive to the implied criticism of his evidence, that is the Father’s evidence, in cross-examination. The problem was that the metaphorical horse had already bolted. The Father’s evidence in cross-examination did raise the spectre that even sharing of information about the children would not necessarily be benign and could potentially add stress to the Maternal Grandmother and thus to the children indirectly.
The Court does have concern about the Father’s lack of insight into these matters. His lengthy criminal history, albeit 10 years old, does manifest a capacity for antisocial behaviour, so having orders in place does not necessarily guarantee that there will not be an issue.
The Court has even greater concern about what it will describe as the Father’s reactive communication style. The evidence for this is his email exchange with the Family Consultant as she was trying to arrange the Family Report interviews, to the extent that the Family Consultant was suggesting that the Father was not engaging in the proceedings. The Family Consultant was plainly mistaken. The Father had engaged from when he had been served, but, that is not the issue here. The focus is on how the Father reacted to this mistake.
The fact is as the emails manifest, he grossly overreacted. He threatened legal action. He was aggressive in his tone. He allowed his sense of grievance to cloud his judgment. After all, he was talking to the person who would write the Family Report in his case, one would expect him to have a greater sense of self-control. The Court accepts that he later apologised, but, again, that is not the point here. This incident gives just an insight into the risks of opening up a line of communication between the children and their father using the Maternal Grandmother as a conduit. He could overreact to the slightest misunderstanding.
It is sobering to see from that email exchange that even a very experienced Family Consultant, sought advice from her superiors about the Father’s aggressive tone. What would it be like for someone like the Maternal Grandmother, one wonders.
The Family Consultant accepted that whilst X had some sense of who was her father, Y did not. She accepted that both children, because of their conditions, were very sensitive to changes and routine. The Family Consultant accepted that if relationships could be described in terms of a hierarchy, for the children the Maternal Grandmother was right at the top, followed by the Mother, followed, perhaps, by the Mother’s partner. The Father was poignantly absent from that hierarchy.
The Court finds that during the Family Consultant’s oral evidence, she changed the views that she expressed at paragraph 124 about the Father being availed of information in relation to the children, to the extent that if this was going to create a risk of stress on the children and the Maternal Grandmother, then preventing that stress was a priority over the provision of information. The Court accepts the Family Consultant’s evidence in this regard.
These children are extremely vulnerable because of their conditions. The Maternal Grandmother’s parenting is vulnerable. The Father’s capacity to regulate his emotions is questionable.
Decision
The Court now proceeds to consider the primary and additional considerations that are referred to in s.60CC of the Act. Meaningful relationship is challenging on the facts of this case. It is common ground that X knows of her father, but Y does not. There is no meaningful relationship between the Father and the children. The relevant authorities require the Court to consider meaningful relationship in a prospective sense, but even that is framed by the competing proposals that have been identified earlier in these Reasons. None of the proposals before the Court suggest that in the foreseeable future, the children will spend time with the Father. The real issue is whether, and if so, how, to keep the metaphorical door open for a future relationship. The Independent Children’s Lawyer, the Mother, and the Maternal Grandmother’s proposal is premised on the children instituting this in their own time. The Father wishes to institute limited communication immediately.
In reality, the proposals before the Court offer meaningful relationship in a prospective sense, but in a very threadbare manner. It is quite possible for example that the children will seek out their father in their own time quite apart from any order that this Court makes. Ultimately, therefore, meaningful relationship is not a determinative consideration.
The Court must consider risk of harm. Again, the parameters of risk are defined by the competing proposals. The Independent Children’s Lawyer’s proposal offers less risk as it is least intrusive to the children’s stability. The Father’s proposal offers on the evidence before the Court the greatest risk of destabilising the children’s lives. The Court is comfortably satisfied from the totality of the evidence that this is indeed the case.
The Court must take into account the nature of the children’s relationships under s.60CC(3) of the Act. Firstly, s.60CC(3)(b) of the Act, the nature of the children’s relationship, there is no doubt that the children do not presently have a relationship with the Father. In s.60CC(3)(c) of the Act, the Court must take into account the extent to which each of the children’s parents has taken or failed to take opportunity, like to participate in decision making, spend time, or communicate. As I foreshadowed, there was a period of relative stability in the Father’s life in Tasmania, where he could have initiated proceedings, but did not do so. When he was joined, though, he diligently participated. This is not a consideration that decides this case.
An important consideration, though, is s.60CC(3)(d) of the Act that talks about the likely effect of change in the children’s lives. The stability in the children’s lives that is depicted in the Maternal Grandmother’s evidence is, in reality, quite tenuous and probably fragile. The Maternal Grandmother has her hands full. The children have their hands full just living life on a daily basis. To change this, even the relatively minor change that is arguably presented in the Father’s proposal, could disrupt this tenuous, fragile balance that seems to exist in the family’s life. It would be unwise in this Court’s view to take the risk of destabilising the children by making the orders that the Father seeks.
There are a number of other considerations, none of which are ultimately determinative. There has been family violence. There have been family violence orders. As between the parents, there are probably issues about their responsibilities as parents and their attitudes, but, ultimately, they are not determinative.
This is a difficult case. In many respects, what the Father is asking for is not a lot compared to other cases, but in this case, such are the vulnerabilities experienced by X and Y that the Court feels that it must act very protectively of them, particularly in terms of the nurturing relationship that they have with their maternal grandmother. Ultimately, that explains why the Court prefers the orders advanced by the Independent Children’s Lawyer rather than the Father’s proposal or any other alternative.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 29 October 2020
Key Legal Topics
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Family Law
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Jurisdiction
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Natural Justice
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Procedural Fairness
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