Halstead and Lees and Anor
[2018] FCCA 425
•23 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALSTEAD & LEES & ANOR | [2018] FCCA 425 |
| Catchwords: FAMILY LAW – Interim arrangements for parenting of two children aged 4 & 2 – interim application for property settlement – father seeks to spend time with children at rehabilitation centre – father severely injured in altercation with another person at the children’s home – father charged with serious criminal offences – application by paternal grandmother to spend time with the children – family violence – have children been exposed to family violence – nature of interim hearing – matter to be considered on interim property application – presumption of equal shared parental responsibility – best interests. |
| Legislation: Family Law Act 1975, ss.60CC, 90SM, 90SF |
| Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755 |
| Applicant: | MR HALSTEAD |
| First Respondent: | MS LEES |
| Second Respondent: | MS HALSTEAD |
| File Number: | ADC 4768 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 20 February 2018 |
| Date of Last Submission: | 20 February 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 23 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGinn |
| Solicitors for the Applicant: | Howe Jenkin |
| Counsel for the First Respondent: | Ms Dickson |
| Solicitors for the First Respondent: | Tindall Gask Bentley |
| Counsel for the Second Respondent: | Ms Lewis |
| Solicitors for the Second Respondent: | Douglas Hoskins Legal |
| Counsel for the Independent Children's Lawyer: | Mr Stephen |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission |
ORDERS
Until further or other order:
The children of the relationship [X] born (omitted) 2013 and [Y] born (omitted) 2015 (hereinafter referred to as “the children”) live with the mother and she be responsible for making parenting decisions in respect of them.
The children spend time with the paternal grandmother Ms Halstead as follows:
(a)On alternate Sundays, commencing 4 March 2018, between the hours of 10:00am and 5:00pm subject to the following conditions: namely;
(i)The time occur at the home of the maternal great-grandmother at unit (omitted) and be subject to the supervision of the maternal grandmother Ms W.
(ii)In the event that either of the children enquire with any of the adults present during the above visits as to the whereabouts of the father, they are to respond by informing the children that the father is “away working” or words to this effect.
The father’s application to restrain the mother from attending the (omitted) Church in (omitted), with the children, is dismissed.
The parties jointly commission Ms R, at their joint expense, to prepare a family assessment report to be released to the parties and the court on or before 30 June 2018.
The further hearing of the proceedings be fixed for 16 July 2018 at 9:30am.
By way of interim property settlement:
The father is authorised, by this order to sell the Toyota motor vehicle currently in his possession and utilise the funds generated by its sale to finance his legal costs.
The wife is authorised to draw down from the moneys currently standing in her name in the (omitted) long term savings account, a dollar for dollar amount equivalent to the sum generated by the sale of the Toyota motor vehicle referred to in order (5) above to finance her legal costs.
The mother be restrained and injunctions are hereby granted restraining her from:
(a)Transferring, encumbering or otherwise diminishing the assets in her possession save and except:
(i)In the course of ordinary business expenses, or reasonable living expenses including attending to [X]’s needs;
(ii)Other than in respect of the moneys referred to in order (6) above.
(b)Drawing down on the mortgage or any other credit facility secured upon the Property A property.
The father inform the mother’s solicitor within seven days of each and all of the following incidence arising in respect of his (omitted) superannuation including any insurance policy ancillary to that superannuation:
(a)The father applies to the relevant trustee to access any or all of his superannuation on the ground of total and permanent incapacity;
(b)The father applies to be indemnified in respect of any insurance policy relating to his superannuation for total and permanent bodily impairment;
(c)The response of the relevant trustee or insurance officer in respect of such application;
(d)The amount of any funds to be released to the father and the date anticipated for their release.
The further consideration of the application in respect of the costs reserved arising from the aborted hearing of 19 January 2018 is adjourned to the adjourned date.
IT IS NOTED that publication of this judgment under the pseudonym Halstead & Lees & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4768 of 2017
| MR HALSTEAD |
Applicant
And
| MS LEES |
First Respondent
| MS HALSTEAD |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment concern interim parenting arrangements for two children – [X] born (omitted) 2013 and [Y] born (omitted) 2015.
They also relate to property matters, concerning the affairs of their parents – Mr Halstead “the father” and Ms Lees “the mother”. Also involved in the case is the children’s paternal grandmother Ms Halstead “the paternal grandmother”.
The father commenced these proceedings against a background of extraordinary crisis on (omitted) 2017. At the time, he was an inpatient at the (omitted) Hospital as a consequence of suffering a traumatic axe injury to his neck, which had rendered him a quadriplegic. He was unable to breathe without assistance and was paralysed from the neck down.
His injury had been inflicted a few days earlier, on (omitted) 2017, at the premises formerly occupied by the father, mother and two children concerned, which are located at Property A. Another person was involved in the incident with Mr Halstead on (omitted) 2017. He is Mr B.
At the time Mr B was living at the Property A home, which the father had vacated the previous June on his separation from Ms Lees. It is the mother’s position that there was no intimate relationship between her and Mr B and, at the time of the incident he was a lodger in the house who performed some handyman tasks.
During the incident of (omitted) 2017, Mr B suffered gunshot wounds to his abdomen causing him grievous injuries, including a perforated bowel and a shattered left hip. No evidence from Mr B has been provided to me in these proceedings regarding the circumstances in which he asserts he came to receive these injuries, particularly which man was the instigator of the violence arising.
Given the life threatening injuries suffered by both the father and Mr B, police and ambulance officers were called to the Property A home as a matter of urgency by Ms Lees. Ms Lees herself having heard gunshots went to assist. [X] and [Y] were also present during the incident, albeit that they remained within the house. The incident itself occurred within the garage at the Property A property shortly after Mr Halstead had returned the children to their home following a visit with them.
It is Ms Lees’ evidence that following the incident, she herself was covered in blood and was crying hysterically. The children witnessed her in this state and also observed their mother interacting with police officers who wished to take a statement from their mother. On any view, and although it is trite to say so, what occurred on (omitted) 2017 can only be considered to be highly traumatic for all concerned.
The father has now been discharged from the (omitted) Hospital. However, it is clear that he remains far from recovered. He has been transferred to the (omitted) Hospital. I have not been advised when he is likely to be discharged from this facility. Mr Halstead is now able to breathe without assistance. He remains quadriplegic.
Following the incident of (omitted), the focus of the assistance provided by the authorities was on getting the two injured men to the medical assistance which they urgently required as soon as possible. As a consequence, neither Mr Halstead nor Mr B was formally arrested at the time.
The Police, however regarded the garage as a serious crime scene and, as a consequence, began to investigate what had occurred there in an attempt to determine how the two individuals had come to be so seriously injured and who of them precipitated the violence arising between them.
It is now public information that Mr Halstead has been charged with the attempted murder of Mr B and some related firearm charges. Due to his circumstances, he has been charged on summons. As a consequence, he has not, as yet, been arrested and therefore is not subject to bail. In these circumstances, the Police have not outlined details of their case against Mr Halstead to any magistrate charged with his committal for trial.
I have been recently informed that Mr Halstead has been summonsed to appear before the Adelaide Magistrates Court, on 22 February 2018. What arrangements, if any, have been made for this appearance, are unknown to me. I would however anticipate that the prosecution would submit some form of precis of its evidence against Mr Halstead, including its strengths and any weaknesses, to the presiding Magistrate. In addition, it is not beyond the bounds of possibility that, notwithstanding his injuries, Mr Halstead may either be bailed, with or without conditions or remanded in custody, given the gravity of the charge against him.
Ms Lees has been disinclined to take the children to visit their father, either in the (omitted) Hospital or more recently at the (omitted) Centre. It is her position that both children are traumatised by what has occurred and in these circumstances, it would not be emotionally helpful for them to see their father in a debilitated state.
In addition, she asserts that it is potentially fraught with extreme difficulty for anyone, including herself, to explain to the children the events which have brought their father to his current position. Essentially, from her point of view, it is an emotional can of worms, which cannot be rushed because the risks of causing the children emotional harm, if it is mishandled, are just too great.
It is the father’s case that he has a close and loving relationship with both [X] and [Y] and played an integral role in their care, both before and after his separation from Ms Lees. In these circumstances, he asserts that the children will be missing him and worried for his safety. In these circumstances, he asserts that the children will benefit from being able to interact with him at the (omitted) Rehabilitation Centre and further that some anodyne explanation can be provided to them as to how he came to be injured and hospitalised.
It is the paternal grandmother’s case that prior to the incident involving her son and Mr B, she also enjoyed a close and loving relationship with [X] and [Y]. It is her case that she frequently visited the children in their home, including when they and their parents were living interstate in Canberra.
In these circumstances, she seeks orders from the court, independent of the father, which would allow her to spend regular time with the children, including overnight time in due course, so that [X] and [Y] may maintain some sense of connection to their paternal family, regardless of the outcome of other proceedings involving Mr Halstead.
Mr Halstead, Ms Lees and Ms Halstead Senior are not the only parties to these proceedings. Given the extraordinary circumstances arising in the case, at an early stage it was ordered that both children be represented independently in these proceedings. The children’s representative is Mr Stephen “the ICL”, an experienced family lawyer, who is currently employed by the Legal Services Commission of South Australia.
Pursuant to section 68LA(2) of the Family Law Act 1975, Mr Stephen is required to form an independent view based on the evidence available to him, of what is likely to be in [X] and [Y]’s best interests and then advocate that view to the court. In addition, it is part of Mr Stephen’s statutory responsibility to analyse any report or document relevant to the children and provide his opinion of such report or document to the court.
At this juncture, given the paucity of evidence regarding the incident of (omitted), Mr Stephen does not advocate the children spending any time whatsoever with their father at this stage. In his submission, the evidence currently available supports a position that it is more likely than not that [X] and [Y] have been exposed to a serious incidence of family violence and therefore it is warranted for the court to proceed in a cautious and protective fashion in regards to their care at this interim or provisional stage.
Initially, it was extremely difficult for the father to provide instructions to his legal advisors. He was unable to speak or execute documents. In addition, for obvious reasons, he was anxious to protect his position vis-a-vis the serious criminal charges which he faced. Accordingly, although he was anxious to proceed expeditiously with the matter, he faced some significant logistical difficulties.
In addition, given both their complexity and controversy, notwithstanding the fact that the proceedings have been on foot for only a few months, they have already generated a significant number of documents, some of which are lengthy and include multiple annexures. This too has added to delay. Ms Halstead Senior has been involved in the proceedings since 8 December 2017 and has also been anxious to pursue arrangements to spend time with [X] and [Y].
Due to the late submission of documents on the father’s part, an earlier interim hearing regarding Mr Halstead’s application to spend time with the children had to be deferred from 19 January 2018 to 20 February 2018. However, on the former date, the mother and paternal grandmother were able to agree on some arrangements for Ms Halstead to spend time with them.
The basis of this agreement was that the children would spend two occasions each occurring on a Saturday, three weeks apart, between 10:00am and 12:00pm noon, with the time to occur at the home of the children’s maternal great grandmother, a unit in (omitted), subject to the supervision of the maternal grandmother, Ms W. It was a condition of this time that in the event that either [X] or [Y] inquired as to the whereabouts of their father, all adults were to respond by saying that he was away working.
From Mr Stephen’s perspective, this time has gone as well as might have been expected. The mother does not necessarily agree asserting that [X], in particular, has exhibited signs of emotional deregulation following it. Ms Halstead is anxious to extend her time with the children and eliminate the requirement for supervision.
Ms Lees is open to the current regime continuing, including the involvement of her mother. Ms Halstead’s preference is for the children to spend each Sunday between 10:00am and 3:00pm with her. Apart from supervision, she would agree to any condition sought by Ms Lees, particularly that she not feed [X] any sugar or white flour.
The matter is further complicated by the fact that [X] is a child with special needs. He has been diagnosed with autism and sensory processing disorder. It is anticipated that, once he turns five, he will also be diagnosed with ADHD. He has learning delays and experiences difficulty with toilet training, literacy, numeracy and self-moderation. As a consequence, he cannot be left unsupervised. He is a poor sleeper, frequently waking. Given his special needs, he is a child who is particularly attached to routine.
Ms Lees is a self-employed (occupation omitted). Previously she has been a (occupation omitted). However, at the present time, her major source of financial support is social security payments. Mr Halstead was previously employed as a (occupation omitted). He holds modest superannuation, with (omitted) Fund in an amount of approximately $10,500.00. However, he may be entitled to claim compensation for total and permanent bodily incapacity arising from an insurance policy associated with his superannuation. The circumstances surrounding this possible claim are also controversial.
Otherwise, the parties’ major assets consist of the Property A property, which is jointly owned and valued at approximately $570,000.00. It is subject to a mortgage of approximately $360,000.00. In addition, during their relationship the parties owned a property at (omitted), which was destroyed by fire in (omitted) 2013. It was subject to insurance. It was later sold, as was another property. As a consequence, a sum of approximately $140,000.00 is held in a bank account standing in the mother’s name.
Apart from this cash sum, the parties own motor vehicles and other items of personal property. At this stage, there has been no formal valuation of the mother’s (business omitted) enterprise. In any event, this is not an item of property which can be expeditiously sold.
In the context of these proceedings, the most significant of these is a Toyota motor vehicle which was previously in the father’s possession, but is currently held by his mother. In net terms, the parties’ pool of assets is currently estimated by each of them to be worth significantly less than $500,000.00.
Mr Halstead has been advised by his criminal solicitors that the anticipated costs of his defence are in the vicinity of $50,000.00. In addition, he has been advised by his family law solicitor that he has incurred costs of approximately $10,000.00 to date and is likely to incur further costs of between $10,000.00 and $20,000.00 in the near future. If the matter proceeds to trial, the costs are likely to be even more significant.
In these circumstances, Mr Halstead seeks that he receives the sum of $70,000.00 from the monies held by the mother in her savings account, which he proposes to utilise for his legal expenses. At a later stage, he also seeks de facto spousal maintenance in an amount of $200.00 per week. However, he is not pursing this aspect of his claim, whilst he remains at the (omitted) Centre.
So far as the children are concerned, he would seek to spend time with them for a period of eight weeks, on each Saturday and Sunday from 12.00 pm to 2:00pm. After this introductory period, he would seek that the time be extended from 12.00 pm to 5:00pm.
It is Mr Halstead’s evidence that children regularly visit inpatients at the (omitted) Centre and it provides an appropriate environment for parents to interact with their children, including those parents who are, like him, are significantly disabled.
Upon his discharge from the centre he would want to spend time with the children, each week, from 10:00am on Saturday until 10:00am the following Sunday. In the short term, whilst he is an inpatient at (omitted), he would agree that his time would take place in the presence of his mother.
This is not an end to the controversies between the parties. Given the complexity of this matter, it is an indispensable requirement that there be an independent and expert assessment of the children’s psychological needs conducted, particularly in respect of the nature of their relationship with the individuals concerned in this case. Although the parties agree that such a report is needed, they are unable to agree who should prepare it and when.
From the mother’s perspective, given that she does not anticipate the children spending any time with their father whatsoever, in the short to medium term, she does not see any particular urgency in regards to the provision of the report, particularly as she has arranged for the children to receive independent counselling.
In these circumstances she proposes Ms R as the court appointed expert. Ms R also has particular expertise in children with autism, which from Ms Lees’ perspective is particularly important given [X]’s special needs. Ms Halstead can prepare a report in June/July of 2018.
From the father’s perspective, a greater degree of expedition is required given he has not interacted with the children for a significant period of time. In these circumstances, he proposes Dr I, an experienced psychologist and family assessment report writer. Dr I could interview the children and parties concerned in March of this year.
Since the incident of (omitted), Ms Lees has been attending a church at (omitted) called (omitted), with the children. It is her evidence that the church community there provides her with emotional support and solace which she is in grave need of since the trauma occasioned to her by the incident of (omitted) arose.
The father objects to the children attending at this church and seeks an injunction to prevent it. As I understand matters, he has no particular religious affiliations and is an atheist. I have not been provided with any information about the church concerned, other than that it is a (omitted) one.
The mother concedes that the father is likely to have significant calls on his finances because of his situation, particularly in respect of the defrayal of legal expenses. She is also concerned that she may not be kept informed of the progress of the husband’s insurance claim, particularly as apparently confidential advice provided to the father by a financial advisor has come into the hands of her solicitor, which includes apparent advice as to how Mr Halstead might quarantine any sums so received by him from either family law proceedings or a claim for damages, presumably and possibly to be instituted against him by Mr B.
In this context, on 11 December, 2017, soon after the father instituted these proceedings, orders were made that authorised each party to utilise $10,000.00 from the moneys held in Ms Lees’ account, on account of legal fees. In addition, the father agreed that he wold notify the mother’s solicitors if he pursued his claim with (omitted) Super. Finally, the mother was restrained from drawing down on any mortgage secured against the Property A property, or otherwise utilising funds available, other than in the course of ordinary business and living expenses.
At this stage, the mother is open to Mr Halstead selling the Toyota motor vehicle and utilising whatever funds are released from its sale for his legal expenses on condition that she be able to withdraw an equal amount from the relevant account to accommodate her legal expenses.
Legal Principles
It is now necessary for me, as best I can, to outline the legal principles which I must apply to this difficult case. The legal principles are complicated and I will try and encapsulate them under six basic headings, as follows:
Firstly, how the court determines the best interests of a child. Secondly, the nature of an interim hearing. Thirdly, how the court assesses risk in the context of an interim hearing. Fourthly, principles to do with family violence. Fifthly, the allocation of parental responsibility for children. Sixthly, issues to do with interim property applications occurring prior to a final determination.
a)Best interests
At the outset it is to be noted that although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding to whether to make any particular parenting orders in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account in deciding how a child’s best interests are to be served are set out specifically in list form in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations which are as follows:
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.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Although the court is directed to consider many factors in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice for the child affected in every case.[1]
[1] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[2] As such the various factors in section 60CC are inclusive but not exclusive of one another.[3]
[2] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[3] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Other specific criteria relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
b)The nature of an interim hearing
Interim hearings very often arise against a background of serious family crisis and controversy. Obviously this is the situation in the present matter. Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.
The need for such expedition dictates that the hearing concerned should be truncated. As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
Given the nature of the hearing, the various factual issues in dispute between the parties cannot be resolved in the context of these interim proceedings. In addition, at the interim hearing stage it is rarely the case that there has been sufficient time for any independent and expert evidence to be prepared evaluating the case from the perspective of any children concerned, particularly in the context of the nature of their relationship with each of their parents and what is their preferred outcome in the case, if any and what factors are influencing such views.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[4]
[4] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
In this particular case, the inherent evidentiary difficulties relating to an interim hearing are compounded by the fact that Mr Halstead is subject to a serious criminal charge and, as a consequence, has a right to maintain his silence in respect of that charge.
In addition, as previously indicated, I do not have any access to the police prosecution file relating to the incident of (omitted), including access to any statement made either by Mr B or the mother herself. In fact, Ms Lees has deposed that she has been advised by police to be cautious in what she publically discloses about the incident.
In Re K[5] the Full Court referred to a number of authorities where the intersection of civil and criminal proceedings occurred. In my view, the salient factors can be summarised as follows:
·the court’s task is one of the balancing of justice between the parties;
·as such, each case must be judged on its own merits;
·a parties protection against self-incrimination in criminal proceedings does not give such a person, as a matter of right, the same protection in contemporaneous civil proceedings;
·however, the court should consider whether there is any real, as opposed to a merely notional danger of injustice arising in the criminal proceedings, if it embarks on an adjudication of a civil proceeding, including one relating to children.
[5] Re K (1994) FLC 92-461 at 80,763-4
In the main, these observations were taken to apply to final proceedings, rather than interim ones. In this context, the Full Court noted that it had no doubt that a court has power to make interim orders, in respect of a child or children, in cases where a party to family law proceedings is also subject to criminal proceedings.
In addition, it was noted that proceedings relating to the welfare of children, in a court such as this one, are not strictly proceedings inter partes, as they have an inquisitorial aspect which is centred on the best interests of the child concerned. Such a child is not strictly a party to the actual proceedings before the court by for obvious reasons that individual’s interests are central to any deliberation of the court.
In these circumstances, I am satisfied that I am authorised to deal with the parties’ competing interim applications. In this context, I note that the father has a right to avoid incriminating himself in respect of the criminal charges against him and necessarily the evidence currently proffered by him is complete.
However, given my obligation to determine what the best outcome is for [X] and [Y], notwithstanding the incomplete nature of the evidence, I am still required to determine the interim applications, whilst noting that any determination made at this stage will not determine the final position in the case.
c) Assessment of Risk
Cases involving serious allegations of child abuse, neglect or exposure to family violence pose particular difficulties for the court, at the interim hearing stage, given the limitations implicit in such hearings. However, notwithstanding the evidentiary difficulties arising at the interim stage, the court must still nonetheless make a decision and put in place the orders which it considers will best regulate the situation, so far as any child is concerned, according to the relevant principles contained in the Family Law Act 1975 (Cth).
In this context, it is clear that the court is required to consider child protection issues in its decision making processes, and should not defer its responsibility in this regard because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues.
In Deiter & Deiter[6] the Full Court said as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
[6] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[7] the Full Court indicated, in the context of discussing the obligations of the court whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
“Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
[7] See SS v AH [2010] FamCAFC 13 at [100]
In Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [8]
[8] Slater & Light [2013] FamCAFC 4 at [37]
In this case, it is the father’s position that no risk, certainly not an unacceptable one, can befall either [X] or [Y], if they interact with him in the open environment of the (omitted) Centre, in the presence of his mother. Given his extreme level of incapacity, he is not in a position to physically hurt the children.
In addition, given his love for the children concerned, he asserts that he is unlikely to say or do anything, which will cause them emotional upset. Essentially, he asserts that in objective terms, the children will be perfectly safe if they spend time with him and it will be emotionally beneficial for them to interact with him.
On the other hand, it is the mother’s position that the risks arising for the children as a consequence of spending time with their father at this stage are more subtle and nuanced ones. It is her case that she has ample reason to believe that Mr Halstead was in the garage with a loaded firearm, on (omitted), with intent to inflict serious grievous harm upon her, if not kill her. In these circumstances, she is fearful of the father and remains traumatised as a consequence of his behaviour.
It is her position that, due to the actions of Mr Halstead, she has become the children’s undisputed primary provider of care. In these circumstances, it is incumbent upon the court to put in place a regime which will support her mental equilibrium in order to ensure that she is in the best possible position to discharge her parenting obligations towards the children to the maximum extent of her capability.
Essentially, the mother contends that, if she is anxious and fearful about the children interacting with their father, no matter how objectively safe they may be, this will undermine her central role in ensuring the welfare of both [X] and [Y] and this, of itself, cannot be calculated to be in the best interests of the children.
In addition, Ms Lees is fearful that the children may be re-traumatised, either inadvertently or otherwise, if they interact with their father and questions are asked about how he came to be injured and by whom and where. At this stage, it is her position that it is highly uncertain whether or not these very difficult issues for all concerned can be safely neutralised, if at all. In these circumstances, it is her position that it is currently unduly risky, so far as the emotional regulation of the children is concerned, for them to spend any time whatsoever with their father.
d) Family violence
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
On (omitted) there was an incident of extreme violence at the home of [X] and [Y], during which two individuals known to the children were grievously injured. One of those individuals was the children’s father; the other a friend of their family. In addition, their mother was caught up in the sequellae of this incident, when she gave assistance to both men and called for assistance. I accept her evidence that the incident caused her to be fearful.
If Ms Lees’ assertion that she believes Mr Halstead was intent on doing her harm is ultimately accepted by the court, it is difficult to think of an act which is more calculated to be an act of coercion and control in the family law context, than one spouse confronting the other with a loaded firearm or attempting to do so.
In all these circumstances, although I am not in a position to make any concluded finding of fact, given the extent of the evidence currently available to me, I am of the view that I should approach the case on the basis that there was a serious incident of family violence at the Property A property on (omitted) last. It is now necessary for me to consider the implications of that episode of family violence from the perspective of each of the children concerned.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
In this case, Ms Lees has asserted as follows:
·the children heard the emergency services sirens;
·they observed their mother’s clothing being covered with blood;
·the children observed the police at their home and saw them speaking with their mother;
·when the maternal grandmother escorted the children from the Property A home on (omitted), whilst the mother was at the police station, the children inadvertently walked in front of the open roller door of the garage and were exposed to the forensic police officers working there;
·the mother asserts that there was a significant amount of blood in the garage, including on the grounds, walls and ceiling and on the driveway, where there were a number of towels soaked in blood, which the children are likely to have seen.
Mr Halstead is not in a position to rebut this evidence. In these circumstances, I accept that both children have been exposed to family violence within the terms envisaged by the applicable legislation. In this context, it is the mother’s position that both children, but particularly [X], have been psychologically affected by the incident.
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all walks of Australian society and represents a great threat to the wellbeing of children.
Family violence can place children at actual physical risk of being hurt. It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened. For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children.
Underpinning the mother’s case is the implied assumption that, if Mr Halstead was intent on doing her serious harm or killing her, he has indicated a callous disregard for the emotional welfare of both [X] and [Y] by the extreme malice he has allegedly attempt to inflict on their mother.
For obvious reasons, for the children to lose their mother in such circumstances could only have catastrophic emotional consequences for them. In addition, a person who could contemplate inflicting such violence on a person closely connected with the children cannot be regarded as a person capable of promoting their emotional integrity.
e) Parental responsibility
The legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
In this particular case, I am satisfied that there are reasonable grounds to lead me to believe that the children have been exposed to family violence. Accordingly, in my view, the presumption of equal shared parental responsibility is rebutted at this stage of the proceedings. In these circumstances, on an interim basis, I propose that the mother should be granted sole parental responsibility for [X] and [Y].
f) Interim property proceedings
Mr Halstead and Ms Lees are not married to one another. Accordingly, the division of their property is governed by the provisions of Part VIIIAB of the Family Law Act. The relevant authorities make it clear that the same legal provisions are applicable to the making of an interim or partial order as to a final such order. The major provisions relating to de facto property division are contained in section 90SM(1); 90SM(3); 90SM(4); and 90SF(3).
The operation of these provisions is dependent upon the existence of a de facto relationship, between the parties concerned, which in turn is subject to satisfaction of criteria related to temporal factors and geographical considerations. In this case, neither the father nor the mother asserts anything other than that a de facto relationship existed between the parties.
Pursuant to section 90SM(1) the court is authorised to make such order as it considers appropriate in order to alter the interests of the parties to a de facto relationship in relevant property.
Pursuant to section 90SM(3) the court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing.
Section 90SM(4) provides the mechanics of how a court is to make an order altering de facto property interests. In general terms, it provides a multi-step process.
Firstly, it is necessary for the court to identify the extent of the property to which any order made pursuant to section 90SM will apply. Very often this is difficult to do at an early stage in property proceedings, as items of property have not been formally valued and there is very often a dispute as to what items should be considered de facto property and what should be excluded.
Secondly, the court must ascertain the varying contributions, which each party has made towards the assets so identified. Contributions fall into two broad categories:
·The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
·The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[9]
[9] See Family Law Act s79(4)(c)
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 90SF(3) of the Family Law Act 1975. Pursuant to section 90SF(3)(r), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
Section 90SS of the Act provides the court with what are described as general powers. In particular section 90SS(1)(h) empowers the court to make an order pending the disposal of proceedings. However, it is clear that the same principles, set out above, apply both at the interim and the final hearing stage.
In general terms, bearing in mind the limited nature of an interim hearing, the court is required to follow the process outlined above, in respect of both final and interim de facto property proceedings. Accordingly, it is necessary for the court to consider whether it is just and equitable to make any such order and whatever order is made must be referrable to the considerations set out in section 90SM(4).
Accordingly, the court must make some assessment of the parties’ various contributions to the pool of assets in question and importantly must have regards to any applicable factor arising under section 90SF(3). Necessarily, any interim order must be referrable to the final order made in the case concerned, as both depend on the exercise of the same power.
Given these circumstances, the Full Court of the Family Court has pointed out that as there can be only one exercise of the power under section 90 SM of the Act, it is usually preferable that there be only one final hearing of section 90 SM proceedings, rather than a succession of subsidiary provisional hearings.[10]
[10] See Strahan v Strahan (2010) 42 Fam LR 203 at 230 [114]
In Strahan apropos the making of an interim property order, the Full Court rejected any notion that it was necessary for an applicant to establish compelling circumstances to justify the making of such an order. Rather, the court’s deliberations, which need not be particularly extensive, required a determination of whether it was appropriate to make such an order, within the over-arching consideration of whether it was in the interests of justice between the parties concerned for it to occur.
In reaching this conclusion, the Full Court noted the idiosyncratic nature of litigation, under the Family Law Act, when compared with other civil litigation. In the former, there was often a marked imbalance in the power of the parties concerned and artificialities in how property available to be divided was legally controlled in the period leading up to final hearing.
Examples of where it may be appropriate to use the power to make an interim property order include where both the parties agree to the disposal of some assets pending trial; urgent situations to avoid injustice being wreaked upon one party if the power was not exercised; and where one party requires funds to assist in the defrayal of legal costs arising from the litigation involved.[11]
[11] See Strahan (ibid) at [133]
The discretion to make an interim property order must be closely considered, bearing in mind the different nature of an interim, as opposed to a final hearing, which nonetheless involves the exercise of the same power. In particular, the court must ensure that any interim outcome is a just and equitable one and be careful to ensure that any such interim order does not prevent a similar equitable outcome at the final hearing stage.
Considerations of this type led the Full Court in Strahan to say as follows:
“We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party. [12]
[12] See Strahan (ibid) at [139]
Other relevant evidence
It is Ms Lees’ evidence that she has suffered PTSD since the incident of (omitted) 2017. Her symptoms include nightmares and flashbacks. She has been referred to a psychologist, Dr W and anticipates a further referral to a psychiatrist by her general medical practitioner. She has been prescribed anti-depressant medication by her doctor.
It is the mother’s case that, during the parties’ relationship, she was subject to controlling and verbally abusive behaviour from Mr Halstead. She also alleges that he had issues to do with the excessive consumption of alcohol and the abuse of prescription medication, particularly after the parties’ separation. These matters are denied by the father, who makes his own serious criticisms of the mother.
The parties began to live together in mid-2012. The mother was born in 1980, whilst the father was born in 1987. They have never been married. As previously indicated, they finally separated on 30 June 2017. Putting aside the agreement about these matters, the parties are in vigorous disputes about their respective level of involvement in caring for the children prior to their separation.
It is the mother’s case that she was the children’s principle provider of care, whilst the father asserts that he also cared for the children, particularly given Ms Lees’ onerous professional obligations. It is also the father’s evidence that the mother asked him to move back into the home in early October because she was not coping with the care of the children without his assistance. There is some electronic correspondence to support this assertion.
Given the nature of interim proceedings, it is not possible to resolve many, if not most, of these significant factual disputes. In any event, in my view, it is not necessary for them to be resolved definitively given that Mr Halstead is not in a position to change the current care arrangements for [X] and [Y], given his circumstances. Ms Lees, at this stage, must be the undisputed provider of care for the children.
Ms Lees holds two (qualifications omitted). She has previously held an (occupation omitted) position at (employer omitted). More recently, she has been self-employed as an (occupation omitted). However, she has not been able to work since the incident of (omitted) 2017. It is her case she continues to suffer from emotional trauma which precludes her returning to work. She has the assistance of an au pair to assist her with the care of the children and her household.
As a consequence of her incapacity for work, she receives a single parent pension carer allowance and family tax benefit, which amounts of $33,000.00 per annum. It is also her case that she has a significant pre-existing back condition. It is Ms Lees’ case that her necessary recurrent expenses are significant and greatly exceed her current level of income.
These expenses include her own medical and psychological treatment; child care expenses; occupational and speech therapist for [X]; and psychological support for the children. [X] is entitled to some financial support from the NDIS. However, it is Ms Lees’ position that his expenses are far greater than any amount provided.
As part of [X]’s treatment, Ms Lees arranged for him to consult Dr S, a psychologist. Dr S has consulted with [X] since August 2017 and has also been involved with him since the incident of (omitted). Since that date, he has had a limited level of involvement with [Y].
In general terms, Ms Lees’ solicitor has asked Dr S to comment on the children, particularly whether it is appropriate for them to interact with their father, and if so, what safeguards should be put in place.
Dr S describes [X] as non-compliant, withdrawn and emotionally dysregulated. [Y] is described as being generally quiet and compliant and wanting to remain in close proximity to her mother. In general terms, Dr S considered that it was possible for the children to interact directly with their father, notwithstanding the extraordinary circumstances prevailing.
In the context of interacting with their father, Dr S considered that the children required appropriate information about what had occurred to their father and the opportunity to digest this information. He conceded that there was a very real possibility that the children could become distressed on seeing their father.
Ms Lees has considerable reservations about these recommendation, although she concedes that the present arrangement of itself presents significant difficulties – the chief one being, what are the children to be told; by whom; and when. It being conceded by her that it is not generally advisable for children to be misled for any protracted period of time. However, the fact remains that the present factual situation arising in this case is one with which children of tender years and so limited intellectual development are likely to struggle.
The major difficulty, so far as the children were concerned from Dr S’s position, was that their father had abruptly disappeared from their lives without any obvious reason being provided. In Dr S’s view, this of itself had the potential to negatively impact upon them, particularly in the absence of an explanation for this absence.
Dr S has not examined either Mr Halstead nor Ms Halstead. He however noted the seriousness of the charges concerning Mr Halstead and accepted that this incident of itself raised significant doubts about the father’s ability to consider the proper safety and psychological well-being of the children. In all these circumstances, Dr S was not in a position to recommend definitively whether the children should or should not spend time with their father or paternal grandmother.
Dr S wrote as follows:
“… without a thorough psychological assessment of Mr Halstead and Ms Halstead, I cannot comment on the presence or absence of specific risks to the children. There is the risk that forcing Ms Lees to send her children to spend time with Mr Halstead and Ms Halstead, against her will, will cause her considerable psychological distress, and potentially impede her ability to care for the children as a consequence. The children require Ms Lees, as their primary attachment figure, to be a strong, secure, emotional base, and potentially re-traumatising her may jeopardise her capacity to fulfil this role.”
Significantly, Dr S also opined as follows:
“It is my opinion that the children require safety and stability. They need their mother, their primary attachment figure, to be in the best possible frame of mind so that she is able to meet their practical and emotional needs. [X] in particular has very complex needs. It is my understanding that the alleged incident (caused significant and lasting distress to Ms Lees. I am concerned that if she is forced to send the children to Mr Halstead or his mother, Ms Halstead, against her will that this will be traumatising for her and may impact on her mental health and psychological well-being. There is also reportedly a history of Mr Halstead and Ms Halstead not agreeing/complying with Ms Lees strategies for managing [X]; and the suggestion that they do not “agree” with his diagnosis of Autism Spectrum Disorder. It is my understanding that this is also a source of great distress for Ms Lees, as she has previously indicated to me that she worried about how [X] was managed when in the care of his father and Ms Halstead given that they did not recognise that [X] has special needs.”
The mother places significant emphasis on this aspect of Dr S’s recommendations. In the submission of her counsel, Ms Dickson, there are significant risks arising from the possible compromise of Ms Lees’ psychological health if the children spend time with their father to a degree with which she is unable to emotionally withstand. I agree, in my view, this is a very significant factor which militates against both the father and paternal grandmother’s respective applications.
In B & B[13] the Full Court said as follows:
“…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”
[13] B & B (1993) FLC 92-357 at 79,780
Given Dr S’s formulation of the difficulties arising in this case, I agree that it provides a very great dilemma. On the one hand, the children must be aware that their father has abruptly disappeared from their lives and it is inevitable that they will be curious about this and ask questions about it. I also acknowledge that there must be limits as to how long these questions can be deflected or otherwise neutralised by the adults around them. However, in my view, the answer to the dilemma is likely to be a therapeutic rather than a legal one.
For obvious reasons, there is likely to be a significant level of mistrust between the mother and other members of the paternal family, particularly Ms Halstead. Ms Lees refutes the assertion that she and the paternal grandmother were previously close and that she (Ms Lees) relied on Ms Halstead regularly for assistance in caring for the children, particularly [X]. Rather, it is the mother’s case that she had a workable relationship with the paternal grandmother, but the two were never particularly close.
In any event, once again in my view, it is largely irrelevant what was the state of the relationship between the two women in the past. The incident of (omitted) has done grievous harm to whatever previous good will existed between the two.
In these circumstances, in my view, it behoves the court to take a cautious approach in respect of supporting the relationship between the children and their paternal grandmother, given the difficult emotional topography arising, notwithstanding that, in purely objective terms, no culpability can attach to Ms Halstead for the behaviour of her son.
In this context, the mother asserts that Ms Halstead has indicated that she does not accept her son is a violent person and therefore she doubts he has committed any serious offence, notwithstanding the charges against him. Ms Halstead has obtained a report from a forensic psychiatrist, Dr B, which answers criticisms of the mother that she has issues surrounding her mental health. Dr B reports that Ms Halstead has indicated to him as follows:
“[Ms Halstead] cannot believe that her son would perpetrate such a violent action. She is concerned that, by their self-defence claim, Ms Lees and Mr B are not being truthful about the events that occurred.”
Once again, at this stage, I am unable to resolve this significant evidentiary issue which will almost certainly be at the centre of subsequent criminal proceedings involving Mr Halstead. However, in my view, the statement supports the mother concern that there is now a very significant gulf of mistrust between her and the paternal grandmother and Ms Halstead herself is strongly aligned with her son in an emotional sense.
In addition, Ms Lees asserts that, in the period immediately post-separation, she was concerned that Ms Halstead failed to demonstrate any impartiality in respect of the issues arising between her and the father. In these circumstances, she remains concerned at the possibility that Ms Halstead may either consciously or unconsciously push some form of agenda to the children in respect of their father, unless there is some degree of oversight imposed.
In her affidavit material, Ms Halstead deposes that she is currently in receipt of income protection payments arising from her suffering some form of injury related to her employment. However, she refutes any suggestion that she is currently in receipt of any type of medication, particularly of a sedative nature, which will impact on her capacity to interact appropriately with the children.
Ms Halstead apparently has an interest in (hobbies omitted). She spends regular time at a (omitted) and does (hobbies omitted). It is her wish to be able to spend time with the children at the (omitted), which they have attended in the past and enjoyed.
It is also Ms Halstead’s evidence that she has an understanding of care issues arising by reason of [X]’s special needs. In his opinion, Dr B noted that, for understandable reasons, Ms Halstead was likely to take on a highly protective role in respect of her son, which would include an inclination to advocate on his behalf. However, notwithstanding these issues, Dr B saw no reason that Ms Halstead would not be able to provide “safe and effective care for her grandchildren”.
The father denies that he was ever physically or verbally abusive towards the mother during the parties’ relationship. He is also critical of Ms Lees, asserting that she was deleteriously dependent on pain medication as a consequence of her back injury. It is his position that any controlling behaviour during the parties’ relationship emanated from the mother rather than from him.
Since the (omitted) incident, the mother has obtained an interim intervention order against the father which includes the children. The father is contesting this order as in his view it is completely unwarranted not least because of his diagnosis of quadriplegia.
It is the father’s evidence that, on 12 January 2018, he received a death threat, which originated with a female associate of the mother. He alleges that the police regarded the threat as a credible one and provided him with protection at the (omitted) Rehabilitation Centre. Ms Lees conceded that the person involved with this alleged threat was a friend of hers who stayed with her to provide emotional support until 7 January 2018. It is her position that she had nothing to do with the alleged threat and has suspended her relationship with the person concerned.
Recently, Ms Halstead, Ms Lees and Ms W have filed affidavits detailing their respective views on how the time between the children and their paternal grandmother progressed on 27 January and 17 February 2018. In Ms Halstead’s view, the necessary interchanges between her and Ms W were brief but polite. She asserts that both [X] and [Y] were comfortable in her care and no difficult issues arose in respect of questions raised in respect of the absence of the father. Ms Halstead further deposes that [X] indicated that he loved his nanna and [Y] snuggled her head comfortably into Ms Halstead’s lap.
Ms W agrees that Ms Halstead was attentive to the children … and engaging in her play with them. She also confirms that she is willing to continue to supervise the children’s time with their paternal grandmother, which she would envisage taking place at her mother’s home, which has a rear yard in which the children could play.
Ms Lees has some concerns that Ms Halstead breached the trust conferred in her and raised issues about the children’s father with them during the visit of 17 February 2018. In particular, she asserts that [X] said to her “daddy wants to see [X], daddy loves me, daddy misses me.”
When the mother responded to this comment by indicating that the children’s father was away working she reports [X] became distraught and argumentative. In these circumstances, Ms Lees is of the view that Ms Halstead must have told [X] something other than that his father was away working and this has the potential to cause difficulties in due course.
In addition, it is Ms Lees’ evidence that [Y] is withdrawn and [X] has been behaving in a disturbing way since the visits. She is concerned that one of [X]’s recent melt downs may be related to the visit with Ms Halstead. More particularly, she points to the fact that [X] has started urinating and defecating in unusual places. Although she is far connecting this behaviour to Ms Halstead directly, from her perspective, these factors are indicative of a need to proceed cautiously in the matter.
Conclusions
I have endeavoured, as best I can, to summarise the contents of approximately 27 documents, which have been filed since these proceedings were commenced. For obvious and understandable reasons, the state of emergency surrounding this particular family have precipitated an extreme emotional response from all concerned. In all the circumstances, this is a family subject to a significant degree of emotional trauma.
Two factors need to be emphasised above others. Firstly, the situation in relation to the police charges against Mr Halstead is complex, fluid and, at least so far as this court is concerned, largely inchoate. Secondly, the parties do not have a significant level of asset backing, yet the demand on their financial resources, as a consequence of both their necessary living expenses and the costs of the various forms of litigation in which they are involved, is likely to be very significant indeed, in the short to medium term.
In my view, the significant allegations of family violence currently levelled against Mr Halstead, when coupled with the fact that the children concerned have undoubtedly been exposed, at the very least, to the physical consequences of the incident of (omitted) renders it contrary to their best interests to spend any time whatsoever with their father at this stage.
I accept that, due to his incapacity, Mr Halstead cannot represent a physical threat to the children. However, the psychological complexities surrounding the matter when coupled with [X]’s special needs, dictate that the court should take a cautious approach in the matter.
In my view, the next step in this regard is for the commission of an expert family report. In my view, the person best placed to provide this report is Ms R, given her expertise in autism. In addition, given that I am not disposed to make any orders in respect of the father spending time with the children, there is no special urgency in regards to the provision of this report.
In my view, it would be extraordinary if Ms Lees was not suffering some significant degree of trauma following her exposure to the events of (omitted) 2017. In these circumstances, I can understand why she would seek support from a religious congregation.
In this context, I agree with Dr S’s opinion that the recovery of Ms Lees from her trauma is the most significant consideration at this stage in respect of [X] and [Y]’s well-being. In these circumstances, I decline to make the injunction as sought by Mr Halstead.
The circumstances surrounding Ms Halstead interacting with [X] and [Y] are also significantly complicated. I accept that she loves both children concerned and, as a consequence, has much to offer them. The children seem to have a degree of connection to the farm, which Ms Halstead regularly attends and to enjoy activities undertaken there.
However, as Dr B observes, Ms Halstead is likely to remain emotionally aligned with her son and, as a consequence, liable to think that there can be no justification for any interruption in his relationship with the children. Her view does not accord with that of the court. This is a factor which militates in favour of the court taking a cautious approach in respect of her on-going involvement with [X] and [Y].
In my view, this difficult emotional construct renders it necessary for the court to approach the issue of the paternal grandmother’s time with the children very carefully indeed. In these circumstances, I am not minded to release the requirement for supervision. In my view, it remains imperative that there be some form of supervision of the paternal grandmother’s time with the children to prevent any possibility of them being unnecessarily involved in the complex and controversial issues relating to the relationship between their parents, particularly the possibility that one adult will tell them one thing and another adult something different.
In these circumstances, I propose to make orders that will see Ms Halstead spending alternate Sundays commencing from 4 March 2018, between the hours of 10:00am and 5:00pm, subject to the existing conditions provided by the orders of 19 January 2018. In my view, such a regime represents a balance between the complexity of the issues in this matter and the benefits arising for the children of maintaining some sense of connection to their paternal family.
I concede, however, that this compromise is not without its challenges, particularly in respect of how the issue of where the children’s father is (and how he came to be there) is to be broached with them if this issue comes up which appears more than likely. However, for the reasons outlined above, I am of the view that it is appropriate for the court to await Ms Halstead’s report before it grapples further with it.
In respect of the application for interim property settlement I am bound to apply the provisions contained in Part VIIIAB of the Family Law Act. Above all, notwithstanding that the order is to be made on an interim basis and is not calculated to deal with all of the parties’ property, I must still be satisfied that it is both appropriate and just and equitable to make an order for settlement of de facto property.
In my view, the unusual circumstances prevailing in this case throw up issues relating to both such considerations. At this stage, I question whether it is both proper and fair to make a property order in favour of a person who is potentially facing conviction for a serious crime of violence involving his former de facto partner.
Although I concede that it is a very early stage of proceedings, if convicted of an offence of attempted murder, it is likely Mr Halstead will receive a significant custodial sentence, notwithstanding his very significant injuries. In these circumstances, his immediate physical needs will be met by the South Australian Government, which will be responsible for maintaining his incarceration.
In addition, although its exact extent is unknown to me at this stage, it seems more probable than not that the parties’ pool of assets will be a modest one. Ms Lees is clearly an intelligent and well qualified person. However, the fact remains, at this stage, she is not in receipt of any income. It is highly unlikely that she will receive any financial assistance from Mr Halstead for the indefinite future. In these circumstances, the sole responsibility for supporting both [X] and [Y] will fall upon her.
The cost of supporting the children, particularly [X], given his special needs, will be significant indeed. [X] needs to access a wide range of medical and allied health professionals and receive very many services, which are not likely to be fully met by the NDIS. In thumbnail terms these factors have the potential to greatly favour Ms Lees, notwithstanding any issues regarding contributions made at the outset of the parties’ relationship which remain controversial.
In my view, these factors, when coupled with the modest extent of the parties’ property pool, dictate that the court should take an extremely cautious approach to any preliminary division of the parties’ marital assets.
In this context, I am particularly concerned that the funding of the father’s criminal defence has the potential to exhaust the parties’ pool of assets to a very significant degree. Ultimately this may not be fair so far as Ms Lees is concerned. In addition, in my view, powerful arguments arise as to whether such an outcome would be appropriate given the mother was possibly the object of the father’s alleged criminal conduct.
The power to make an interim property award must be exercised within the overarching considerations of what is in the interests of justice. Given the small extent of the property pool, I do not consider that it would be in the interests of justice in the unusual circumstances of this case, to make an award in Mr Halstead’s favour of around half of the parties’ liquid assets.
At this stage, I propose making an order which would allow Mr Halstead to sell the Toyota motor vehicle and utilise the proceeds for his costs. As a corollary of this order, I will authorise Ms Lees to be able to draw down against the moneys held in her account for her legal expenses dollar for dollar.
In her submissions to the court, Ms Dickson, counsel for Ms Lees has complained on behalf of her client that the frequent mentions of the matter and the requirement for her client to respond to several interim applications has significantly depleted Ms Lees’ stores of both emotional resilience and financial backing.
In these circumstances, Ms Dickson submits that it is appropriate that the proceedings be adjourned for a reasonable period of time, certainly until after the family assessment report from Ms R is to hand. I agree.
Finally, Ms Lees seeks an award of costs in her favour, in respect of the aborted interim hearing, which was scheduled for hearing on 19 January 2018. The hearing did not proceed because Mr Halstead filed his affidavit material only that day. Given the complex and controversial nature of the proceedings, in my view, it was not appropriate for any of the parties concerned, particularly Ms Lees, to feel that they were being ambushed and had not had an appropriate period of time to consider evidence.
The adjournment of the proceedings was due to no omission on Ms Lees’ part. Mr McGinn, counsel for the father complains that he has not had an opportunity to seek his client’s instructions in respect of the matter. In these circumstances, I will adjourn the issue of the reserved costs of 19 January 2018 to the next hearing date.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 23 February 2018
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