Halstead and Lees & Anor (No 2)
[2019] FamCA 764
•23 October 2019
FAMILY COURT OF AUSTRALIA
| HALSTEAD & LEES AND ANOR (NO. 2) | [2019] FamCA 764 |
| FAMILY LAW – CHILDREN – Family consultants – Where the mother opposes the family consultant conducting an observed interaction between the children and the father and/or the paternal grandmother – Where the family consultant has commenced the assessment and interviewed the mother, maternal grandmother and paternal grandmother – Where the father and paternal grandmother seek observed interaction with the children – Where the father has a significant injury and utilises a wheelchair – Where the children have not seen the father since he was first injured and do not know the extent of his injury – Where the children have been diagnosed on the Autism Spectrum – Where the children are well supported by their separate therapists – Where the court will not place a restriction on the family consultant in respect of the observed interactions FAMILY LAW – CHILDREN – Interim – International travel – Where the mother seeks to take an international trip with the children for up to 14 days – Where the father and the paternal grandmother oppose the travel application – Security sum considered – Orders |
| GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 Harris Scarfe Limited (Receivers & Managers Appointed) (in Liq) & Ors v Ernst & Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 Orora Ltd v Asahi Holdings (Australia) Pty Ltd [2015] VSC 749 Young & Ors (No 11) [2006] SASC 389 |
| APPLICANT: | Mr Halstead |
| 1st RESPONDENT: | Ms Lees |
| 2nd RESPONDENT: | Ms Halstead |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4768 | of | 2017 |
| DATE DELIVERED: | 23 October 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 11 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Ferdinandy |
| SOLICITOR FOR THE APPLICANT: | Angela Ferdinandy |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Pyke QC |
| SOLICITOR FOR THE 1ST RESPONDENT: | Mellor Olsson |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Lewis |
| SOLICITOR FOR THE 2ND RESPONDENT: | Douglas Hoskins Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kent |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
That subject to Ms L, Family Consultant, consulting with Dr F and Ms T, psychologists, as to matters that may be relevant to the presentation of X born … 2013 (“X”) and Y born … 2015 (“Y”), (collectively “the children”), the Family Consultant shall be at liberty to observe the interaction between the children and their father and paternal grandmother.
That the mother by application of mandatory injunction will present the children as may be directed to the Family Consultant or the Director of Court Counselling to facilitate the family assessment and the preparation of a Family Report.
That the Family Consultant be at liberty to conduct the observed interaction upon such terms and conditions as she may consider is necessary to promote the children’s interests.
That the mother be permitted to remove the children to travel outside the Commonwealth of Australia for up to 14 consecutive days in the month of January 2020 for the purpose only of travel to Thailand.
That the travel be subject to the following conditions:-
(a)That the mother provide the father with an itinerary of the proposed travel which shall include details of all airlines, flight numbers, times of departure and arrivals of all flights to be undertaken by the children together with all relevant addresses of all accommodation at which the children will be staying and do so via solicitors not less than seven (7) days prior to the proposed date of travel;
(b)The mother shall confirm in writing by her solicitors that the children have been returned to the Commonwealth of Australia at the conclusion of the period;
(c)That the mother is restrained and an injunction is granted restraining her from removing or instructing her solicitors Mellor Olsson to disburse the sum of FORTY THOUSAND DOLLARS ($40,000) from the Mellor Olsson Trust Account pending the return of the children to the Commonwealth of Australia;
(d)That as and from the return of the children to the Commonwealth of Australia the mother be restrained and an injunction granted restraining her from removing the children from the Commonwealth of Australia.
That the maternal grandmother do accompany the children on all flights from Australia to Thailand at the commencement of the proposed trip and from Thailand to Australia at the conclusion thereof.
That the mother is hereby authorised to be the sole applicant and sole signatory to an application for a renewal of passport for X born … 2013 and do exercise sole parental responsibility in relation to all necessary procedures associated with such application pursuant to the Australian Passports Act 2005 (Cth), the Australian Passports Determination 2015 (Cth) and the requirements of the Commonwealth Department of Foreign Affairs and Trade.
That upon the return of the children the mother shall lodge the passports for the children with the Registry of the Family Court of Australia.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Halstead & Lees has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4768 of 2017
| Mr Halstead |
Applicant
And
| Ms Lees |
First Respondent
And
Ms Halstead
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Further Amended Initiating Application filed 7 June 2019, Mr Halstead (“the father”) seeks orders that he and Ms Lees (“the mother”) have equal shared parental responsibility for X born in 2013 (“X”) and Y born in 2015 (“Y”), (collectively “the children”) and that the children live with the mother from 5.00 pm Sunday until 5.00 pm Friday of each week and with the father from 5.00 pm Friday until 5.00 pm on Sunday of each week. The father’s intention is to reside with Ms Halstead (“the paternal grandmother”).
The mother opposes the father’s orders and seeks that she have sole parental responsibility for the children, that they live with her and spend no time with the father.
By Amended Response filed 10 October 2019 the paternal grandmother seeks orders that she and the father have equal shared parental responsibility for the children, that they live with her and spend time with the father as may be agreed between the father and the paternal grandmother. No orders are sought that the children spend time with the mother.
Whilst there has not been a reply by the mother to the final orders sought by the paternal grandmother, it is not controversial that the mother now opposes the children spending any time with either the father or the paternal grandmother.
On 11 October 2019 orders were made that listed all applications for final orders for hearing on 20 April 2020 as a 15 to 20 day matter.
The current interim parenting orders are those made by Judge Brown on 23 February 2018 which were subsequently suspended on 24 May 2018 consequent upon the mother’s Application filed 9 March 2018 seeking a suspension of the orders.
The trial had originally been listed for hearing to commence on 22 July 2019. That date was subsequently vacated in favour of the trial commencing on 23 September 2019.
I refer to my judgment delivered 23 November 2018 and the extensive reasons setting out the relevant history of the matter in the judgment of Judge Brown bearing the citation Halstead & Lees and Anor (2018) FCCA 425.
The father was charged with a serious crime. However, following a criminal trial in the Supreme Court of South Australia he was acquitted of all charges.
The father’s acquittal enabled the listing of the parties competing parenting applications.
By Application in a Case filed 11 October 2019 the paternal grandmother seeks that the children live with her, or in the alternative, seeks a resumption of time with the children.
Paragraphs 1, 2, 3 and 4 of the paternal grandmother’s application are listed for hearing on 17 December 2019.
In preparation for the trial the Court has ordered that a family consultant prepare a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”). The Director of Court Counselling has nominated Ms L (“the family consultant “).
An issue has arisen as to whether the family consultant should be able to observe the children’s interaction with both the father and the paternal grandmother as part of the proposed assessment.
By his Application in a Case filed 23 September 2019 the father seeks to restrain the mother, her servants or agents from removing the children from the Commonwealth of Australia and to give effect to that order seeks that the children be placed on an Airport Watch List. The application is supported by the paternal grandmother. The mother opposes the application and seeks that she be permitted to remove the children from the Commonwealth of Australia for the purposes of an overseas holiday to Thailand.
Irrespective of the fate of the father’s application to restrain the mother removing the children from the Commonwealth of Australia, he opposes the proposed overseas holiday in any event.
Ms T is a health professional providing therapeutic assistance to Y. Her notes and records have been the subject of subpoena, however the mother objects to inspection of the documents by the father or the paternal grandmother without the documents being the subject of redaction to ensure that any reference to where the children and the mother may now reside or where the children may attend school or pre-school are not disclosed.
The conflict between the parties is such that agreement even in respect of what might be considered a pedestrian consideration of the documents is not easily achieved.
There was no opposition to the redaction. However, I considered that the only way forward was for me to inspect the documents and make appropriate redactions.
By order made on 15 October 2019 leave was granted to the parties’ legal representatives and the Independent Children’s Lawyer (“ICL”) to inspect and copy the redacted documents produced pursuant to the subpoena to Ms Carolyn T.
The historic position as discussed in GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 is that a party providing discovery has a right to cover up irrelevant information as long as it does not destroy or mislead the remaining information.
The ability of a court to inspect documents and assess whether redaction is appropriate was considered in Harris Scarfe Limited (Receivers & Managers Appointed) (in Liq) & Ors v Ernst & Young & Ors (No 11) [2006] SASC 389. In Orora Ltd v Asahi Holdings (Australia) Pty Ltd [2015] VSC 749 the following principles are set out at [32]:-
(e)If there is a dispute about the right of a party to mask or redact part of the discovered document, the Court may inspect the document in its unmasked form in appropriate cases. The Court may then assess whether the redacted parts of the document are irrelevant to the issues in the case and ‘are part which, by their nature, attract a valid basis for exclusion from the inspection processes. In assessing the claim of a party to be entitled to mask up part of a discovered document, it is important to ensure that the redaction of irrelevant parts of the document does not create gaps [affecting] the intelligibility or meaning of the remaining portions of the document which are produced on inspection.’ Gunns Ltd v Marr [2008] VSC 464 at [30].
The onus to establish an appropriate basis for redaction usually rests with the party resisting production of the whole of the document.
In this case the documents have been produced under subpoena. There is agreement that at this stage the gravamen of the documents produced is not to determine the whereabouts of the mother or the children but rather, to gain an understanding of the nature of the therapeutic intervention in which Y has engaged.
Accordingly, I have undertaken the redaction process and am satisfied that the portions of the documents the subject of redaction are not relevant for the current purpose for which the documents were sought. There is nothing which would create a conflict of interest.
Should there be observed interaction?
The following applications are relevant to the issue of whether as part of the family assessment to be undertaken by the family consultant there should be observed interaction between the children and their father and paternal grandmother:-
·Application in a Case filed by the mother on 19 July 2019;
·Response filed by the paternal grandmother on 15 August 2019;
·Response filed by the father on 19 August 2019; and
·Amended Application filed by the mother on 10 October 2019.
Each of the applications are supported by affidavits.
The family consultant has commenced the assessment. She has interviewed the mother and the paternal grandmother, but is yet to interview the father. She has also observed the children with the mother and the maternal grandmother.
During her interaction with the mother, the family consultant foreshadowed that she may well observe the children with the paternal grandmother. The mother was concerned that the mechanics of the observed interaction may well have a detrimental impact upon the children and also adversely impact the mother’s health in terms of how she manages the process.
The paternal grandmother has not spent time with the children since February 2018.
X was four years old when he last saw the paternal grandmother and was even younger in respect of the father. Y was only two years of age.
Both children have received a diagnosis of Autism. Dr F has been actively engaged with X’s ongoing therapy and of relatively recent date Ms T has provided therapeutic assistance to Y.
The mother’s position as set out in her Affidavit filed 19 July 2019 did not support observed interaction but she was prepared to consider that it might be a possible step once the criminal proceedings had concluded (assuming then that the father would be convicted) and that in any event the family consultant confer with the children’s therapists before any observation of the children with either the paternal grandmother or the father should take place.
It is not controversial that the issues likely to impact upon the children are complex. They have not seen their father and paternal grandmother for a considerable period of time. They may well be strangers to Y and a distant memory to X. The children’s capacity to understand what has befallen their family may well be affected by their Autism.
The children know nothing of the extensive disabilities suffered by their father. If there should be interaction with the father, they will observe him as wheelchair-bound.
In the mother’s Affidavit filed 10 October 2019 she maintains her objections to the children being observed in the presence of the father and the paternal grandmother and contends that before observed interaction should happen there should be a trial to better assess issues that may be relevant but not immediately apparent in terms of their impact on the children.
In terms of the father’s acquittal, the mother summarises her position as follows:-
11.The father has been acquitted of the charges against him. However I still have very high levels of fear and anxiety regarding the father and his mother and about the adverse impact either or both could have on the children. This is based on my experiences of domestic violence perpetrated by the father during the relationship, by the intimidating behaviour of the paternal grandmother in relation to these Court hearings and by the father’s case in the criminal proceedings as put to me through his defence counsel, Ms …, in the Supreme Court.
The mother considers that Dr F and Ms T should be consulted as to any reintroduction of the children to the father and the paternal grandmother and what support mechanisms may be put in place in order to manage any distress that may be occasioned to the children.
The paternal grandmother considers that prior to her time with the children being suspended, there was no evidence that the children were distressed or upset in her presence and she refers to statements attributed to the maternal grandmother that the paternal grandmother was attentive to the children and that their time with her had gone well.
She considers it important that the family consultant conduct the observed interaction and in particular because the notes from Dr F indicate that X has a memory of the paternal grandmother.
The father also draws support from the notes of Dr F highlighting the father’s concern that the children are aware that he has been involved in an accident, but obviously knows little more of the father’s circumstances.
The mother’s counsel tendered a report from Mr S, Occupational Therapist on 17 July 2019.[1]
[1] Exhibit “5”.
Mr S has been involved with the children from about July 2018. He confirms that X is on the Autism Spectrum as is now Y.
The risk to X in particular is that he presents with an “inability to cope with change”. Mr S observed that the occupational therapy sessions were sometimes marred by X’s stress and anxiety which resulted in “episodes of meltdowns, dictation of play, difficulty with transitioning and reduced social skills”.
Mr S considers that X has shown improvement over time and once familiar with what is to happen and a consistency of routine, the child appears to be less stressed and more ready to interact.
Ms T has undertaken an assessment of Y and has found that she meets the criteria for a diagnosis of Autism Spectrum Disorder.
Her report dated 18 July 2018 is Exhibit “6” in the proceedings.
She has considered the potential impact on Y of seeing her father in the following terms:-
It would be expected that seeing her father will bring back memories from the last time she saw her father, a traumatic event for Y, and as such it is likely to trigger some degree of behavioural and/or emotional response following the visit. To assist Y to cope, it would be helpful if she could have an explanation which outlined the purpose of the visit and have information about what seeing her father will mean for her in the long-term (e.g. will it be a one off visit, if she will see him again, when and how often, what role will he play in her life from now on). Due to the nature of the on-going court case, it may be that there are many questions that cannot be answered for some time yet, and as such, a visit now, is likely to come with a high degree of anxiety and uncertainty for Y. Children with ASD are more likely to experience anxiety and emotional dysregulation, and change, or lack of preparation prior to change, is a common trigger for such emotional dysregulation.
In summary, Ms T considers that a supervised interaction with the father and the paternal grandmother would bring a high risk for Y in terms of her emotional wellbeing and adjustment.
What is not considered by Ms T is whether Y could be appropriately supported in the short term and she does not provide insight as to how the matter might be progressed. Irrespective of the orders that are ultimately made, it is likely that the Court will need to be assisted as to whether the children should be informed of their father’s predicament and if so, when and how should that process be undertaken.
The family consultant holds a Bachelor of Social Administration and a Bachelor of Arts majoring in Social Sciences.
She commenced her employment history in 1978 as a Probation and Parole Officer and then as a Social Worker from 1985 to 1993 following her appointment as a Senior Social Worker. She undertook Relationship Counselling from 1993 to 1995 and then was a Mediator until 2002 when she was appointed as a Family Consultant with the Family Court of Australia at Adelaide Registry. She has remained employed as a Family Consultant since that date.
The family consultant presents to the Court as a highly experienced Family Consultant. None of the parties considered that the family consultant lacked the expertise consequent upon her long history to be able to conduct the family assessment pursuant to the order.
The family consultant considers that the assistance her assessment and report is likely to provide to the Court would be enhanced by observed interaction.
She has had the advantage of input from the mother and the maternal and paternal grandmothers. She has observed the children.
The process of a Family Report is often fraught with emotion, trauma and uncertainty. It is likely to be a challenging undertaking for parties and the potential for children to become anxious and distressed being involved in an unusual process is manifest.
A decision as to whether a child should or should not be the subject of observed interaction is a determination that must be made by considering the best interests of the children.
It is likely that X would have some memory of his father and paternal grandmother, whereas Y would have no memory.
It is a moot point as to whether the children or either of them will become distressed by the assessment process, in particular their introduction to their father and the paternal grandmother.
The very nature of the family assessment relies upon the skill and judgment of the family consultant. She has many years of experience in undertaking family assessment. There would have been many occasions when the family consultant would have brought her own professional consideration to bear in determining whether it was or was not appropriate for the assessment to involve observed interaction. It is not uncommon for family consultants to consider that a child is too distressed or that there are other attendant emotional or psychological risks to a child of requiring observed interaction.
It is a normal and usual part of the assessment process and is likely to provide considerable assistance to the opinion of the single expert and matters relevant to the interim parenting arrangements.
The children are well supported by their separate therapists.
I consider that I should not place any restriction on the ability of the family consultant to conduct the assessment in proper discharge of her professional obligations. It will be a matter for the family consultant to determine whether X and/or Y should undergo observed interaction with the father and the paternal grandmother.
I have confidence in the professional assessment and judgment of the family consultant that if there were demonstrable signs of distress or anxiety then the observed interaction component of the assessment would not be undertaken. Were that to occur, that observation may in and of itself be a relevant and potentially important consideration.
It does however seem reasonable that before the family consultant undertakes any observed interaction she should consult with Ms T and Dr F to seek their input as to the manner in which the observed interaction should proceed, the better way to deal with the children in order to minimise any distress or anxiety and to be cognisant of any early warning signs indicating that the children or either of them may experience a dysregulated state.
I do not propose to restrain the family consultant from undertaking observed interaction but rather, I will make orders that will enable the family consultant to conduct the family assessment as she considers is necessary and appropriate, but reserving to her the ability to exercise her discretion and not pursue observed interaction if she considers that the interests of the children would dictate that it should not occur.
The mother’s proposed overseas travel
The father seeks to restrain the mother from removing the children from the Commonwealth of Australia. He seeks that the children be placed on an Airport Watch List. The paternal grandmother supports the father’s application.
The mother argues that the children are not at risk of being removed from the Commonwealth of Australia on any permanent basis other than that she be permitted to take the children on a holiday to Thailand for 14 days in January 2020.
The father and the paternal grandmother oppose the mother’s application.
Issue of overseas travel has been the subject of an earlier decision on 23 November 2018 to permit the mother to remove the children from the Commonwealth of Australia for the purposes of holiday travel to the United States of America. The mother’s proposal was opposed by the father and the paternal grandmother.
Thailand has been a contracting party under the 1980 Hague Convention on the Civil Aspects of International Child Abduction having acceded to the Convention in 2002.
The father relies upon his Affidavit filed 21 September 2019 which was prepared during the mother’s cross examination in the father’s criminal proceedings.
The contention of the father is that on 4 September 2019 his counsel put part of the father’s defence case to the mother which he considers implicates the mother in a criminal conspiracy with Ms V such that Ms V would suffocate the father at his rehabilitation centre.
The mother denies the allegations and there is no evidence beyond the father’s observation of matters allegedly put to the mother.
He is also concerned that the mother speaks another language fluently and could use the application to travel with the children to Thailand as a ruse to relocate them to South America.
The father considers that there is a real risk that the mother will use the children’s passports to flee from Australia.
His position is summarised in the following paragraph from his Affidavit filed 20 September 2019:-
13.I further have grave concerns about the welfare of the children, firstly because the mother has allowed a person with a significant mental illness to occupy the same house as the children, and secondly because I believe the children are in the care of a person who has conspired to kill their father.
The mother’s counsel raised some objection to the father’s affidavit in that it does not comprise evidence but rather, assertion, suggestion, opinion and argument. The contents, if untrue, may well be considered as scandalous or offensive.
Ultimately, I did not strike out the affidavit but there is merit in the submission that the admissibility of its contents is suspect.
The mother denies that there was any criminal conspiracy with Ms V. She states that she gave a statement to the police on 3 August 2019 in which she denied any involvement in any attempt to harm the father. At the conclusion of the Supreme Court proceedings she met with the prosecution team at the offices of the Director of Public Prosecution and as a result is confident that there are no criminal charges against her being either investigated or considered.
The mother’s counsel did not propose a security sum but in submissions on behalf of the mother it was revealed that a sum up to about $40,000 would be available as security. Those funds are currently held in the mother’s solicitors’ account.
The mother provides appropriate detail as to itinerary, accommodation and her ability to be contacted in case of an emergency.
There is jurisprudence that assists the Court in determining whether an order should be made allowing children to travel overseas.
As I did in my earlier determination delivered 23 November 2018, I bring to account the relevant principles in Kuebler & Kuebler (1978) FLC 90-434 and Line & Line (1997) FLC 92-729.
It is always a matter of balance as to whether the risk of flight is outweighed by the advantage that might inure to the children.
I have considered the information provided by the mother’s treating psychologist and am satisfied that the proposed holiday with members of her family would assist her in her emotional and psychological stability.
It is always difficult to discount the potential for a flight risk. I am entitled to bring to account that the mother complied with the earlier order allowing her to remove the children from the Commonwealth of Australia and even though the criminal proceedings have now concluded, with the father being acquitted of all charges, I do not accept that there is now greater impetus for the mother to remove the children from the jurisdiction.
The mother is able to provide a level of security and in fixing the appropriate amount I take into account the following matters as outlined by the Full Court in Line (supra) at 83,846-47:-
(a)That the sum must be sufficient to “realistically entice the person removing the children to return” and to enable the party remaining in Australia to take whatever action as may be necessary to have the children returned;
(b)The extent to which the risk of the mother not returning the children can be ascertained;
(c)The financial circumstances of the parties; and
(d)Whether the country of travel is a signatory to the Hague Convention.
In the circumstances of this case, I propose to impose a security in the amount of $40,000 to be held by the mother’s solicitors pending the children being returned to the jurisdiction.
The mother seeks that the parties do all things necessary to enable a passport to be issued for X. I propose to make that order. However, upon the mother’s return and until the proceedings have concluded I will restrain the mother from removing the children from the Commonwealth of Australia subject to further order of the Court.
Conclusion
I make orders as appear at the commencement of these reasons.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 October 2019.
Associate:
Date: 23 October 2019
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