Halstead and Lees & Anor (No 2) - [2019] FamCA 764

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

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Halstead and Lees & Anor (No 2)

Details

AGLC: Halstead and Lees & Anor (No 2) [2019] FamCA 764
Case: [2019] FamCA 764
Decision Date: 23 October 2019

CaseChat Overview and Summary

In *Halstead and Lees & Anor (No 2)*, Berman J of the Family Court of Australia considered two distinct applications concerning the welfare of two children, X and Y. The first dispute involved the mother's opposition to a family consultant conducting an observed interaction between the children and their father and paternal grandmother. The father, who uses a wheelchair following a significant injury, had not seen the children since his injury, and they were unaware of its extent. The children had been diagnosed on the Autism Spectrum and were receiving support from therapists. The second dispute concerned the mother's application to travel internationally with the children for up to 14 days, which was opposed by the father and paternal grandmother.

The court was required to determine whether to place any restrictions on the family consultant regarding the observed interaction between the children and their father and paternal grandmother, given the children's diagnoses and the father's injury. Additionally, the court had to consider the father's and paternal grandmother's opposition to the mother's proposed international travel with the children and whether to grant such permission, and if so, under what conditions, including the provision of security.

Regarding the family assessment, Berman J ruled that the family consultant would be at liberty to observe the interaction between the children and their father and paternal grandmother, subject to consultation with the children's psychologists. The court ordered that the mother must present the children for family assessment and the preparation of a Family Report as directed by the family consultant or Director of Court Counselling. The family consultant was granted liberty to conduct the observed interaction on terms considered necessary to promote the children's interests. In relation to the international travel, the mother was permitted to take the children to Thailand for up to 14 consecutive days in January 2020. This permission was subject to stringent conditions, including the provision of a detailed itinerary and accommodation details to the father seven days prior to travel, confirmation of the children's return, and an injunction restraining the mother from disbursing $40,000 from her solicitors' trust account pending the children's return. The maternal grandmother was ordered to accompany the children on all flights. The mother was also authorised to exercise sole parental responsibility for passport renewal for X and was ordered to lodge the children's passports with the court upon their return.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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