Halstead and Lees & Anor (No 4)

[2019] FamCA 999

FAMILY COURT OF AUSTRALIA

HALSTEAD & LEES AND ANOR (NO. 4) [2019] FamCA 999

FAMILY LAW – CHILDREN – With whom a child spends time – Where the family consultant reports favourably on observed time between the father, the paternal grandmother and the children – Where prior to the observed time the father had not seen the children for two years – Where further observed and reportable time is proposed – Orders.

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Where the father argues that a finding made in error was a pivotal issue in making the overall determination and the matter should be reconsidered – Where the finding was made in error – Where the finding was not the pivotal factor in making the decision – No change to orders.

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: 20 December 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 17 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lindsay

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 Roberts

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That paragraphs 2, 3 and 4 of the Application in a Case filed by the father on 13 December 2019 be dismissed and the balance of the application be listed for hearing at 9.00 am on 12 March 2020.

2. That the father and the paternal grandmother spend time with X born … 2013 and Y born … 2015 (collectively “the children”) at the Family Court of Australia Adelaide Registry Childcare pursuant to s 65L of the Family Law Act 1975 (Cth) to be supervised by a Family Consultant on 30 and 31 December 2019 and 20 and 21 January 2020 subject to the following conditions:-

   (a)       That the visits be for a period of time not exceeding two (2) hours; and

   (b)       That the time spent visits shall be reportable.

3. That Order 5 of Orders made 23 October 2019 be conditional upon the maternal grandmother accompanying the children on all flights from Australia to Asia at the commencement of the proposed overseas travel and from Asia to Australia at the conclusion thereof.

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 and Anor 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

Respondent

And

Ms Halstead
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Halstead (“the father”), Ms Lees (“the mother”) and Ms Halstead (“the paternal grandmother”) each seek parenting orders for X born in 2013 and Y born in 2015 (collectively “the children”).

2. All applications for final orders have been listed for hearing to commence on 20 April 2020 as a 15 to 20 day matter.

3. The relevant history is able to be considered by reference to my judgments bearing [2018] FamCA 970 delivered 23 November 2018 and [2019] FamCA 764 delivered 23 October 2019 and the extensive reasons in the judgment of Judge Brown bearing the citation Halstead & Lees and Anor (2018) FCCA 425.

4. By Application in a Case filed 11 October 2019 the paternal grandmother seeks an order that she and the father have equal shared parental responsibility for the children, that the children live with her or in the alternative that the children spend gradually increasing time with her leading to five consecutive overnight periods from the conclusion of school (or 3.00 pm Friday) until the conclusion of school (or 3.00 pm the following Wednesday and each alternate week thereafter).

5. The paternal grandmother’s application was listed for interim hearing on 17 December 2019.

6. The paternal grandmother and the father sought that any family assessment to be undertaken should include observed interaction between the children and each of the parties.

7. By her Amended Case Application filed 10 October 2019 the mother did not oppose a family assessment being undertaken but considered that the question of observed interaction should only be determined after evidence from the children’s treating health professionals was able to be considered.

8. By Application in a Case filed 23 September 2019 the father sought that the children be placed on the Airport Watch List and the mother be restrained from removing the children from the Commonwealth of Australia. The application was supported by the paternal grandmother.

9. For her part, by Response filed 10 October 2019 the mother sought permission to remove the children from the Commonwealth of Australia for the purposes of an overseas holiday to Asia. The father opposed the mother’s application fearing that she may not return the children to the jurisdiction.

10. On 23 October 2019 I ordered as follows:-

    (1)That subject to Ms L, Family Consultant, consulting with Dr F and Dr T, psychologists, as to matters that may be relevant to the presentation of [X] and [Y], (collectively “the children”), the Family Consultant shall be at liberty to observe the interaction between the children and their father and paternal grandmother.

    (2)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.

    (3)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.

11. I also ordered that the mother be permitted to remove the children to travel out of the Commonwealth of Australia for up to 14 consecutive days in the month of January 2020 for the purposes only of travel to Asia.

12. The mother’s proposed travel for the children was subject to a range of conditions including a security sum of $40,000 to be retained in her solicitor’s trust account and by separate order that the maternal grandmother do accompany the children on all flights from Australia to Asia at the commencement of the proposed trip and from Asia to Australia at the conclusion thereof.

13. The orders also provided a mechanism for the mother to obtain a renewal of a passport for X.

14. By urgent application filed 13 December 2019 the father seeks that paragraph 4 of the orders made 23 October 2019 permitting the mother to remove the children for travel outside the Commonwealth of Australia be set aside.

15. The balance of the application is to be listed for hearing on a date to be fixed.

16. Even though the father did not challenge the order made on 23 October 2019 until his application filed 13 December 2019, because the mother at short notice had been able to file a response and affidavit in support, I determined that I would hear the father’s application at the same time as the application of the paternal grandmother seeking that the children spend time with her and the father.

17. The gravamen of the father’s opposition to the mother’s proposed overseas travel with the children is that he “has genuine and credible concerns that the mother will not return to the jurisdiction of the Commonwealth of Australia”.[1]

    [1]Affidavit of the father’s solicitor filed 13 December 2019 at [9].

18. In particular, reference is made to [87] of my judgment delivered 23 October 2019:-

    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.

19. The father considers that the mother’s application for the children to travel overseas was a ruse to enable the mother to obtain a passport.

20. I accept that there was error in my finding that the mother had travelled with the children overseas and that they were safely returned to Australia. The planned trip to the United States of America (“USA”) was abandoned due to Y’s ill-health.

21. It is argued that the erroneous finding of the children being returned to Australia was the pivotal issue in persuading the Court to make the order permitting the mother to remove the children from the Commonwealth of Australia.

22. It was also a contention that the publication of the family report dated 13 December 2019 should now be considered as a material change in the circumstances given the recommendation of Ms L (“the family consultant”) that there should be further sessions scheduled for the children to spend time with the father and the paternal grandmother pursuant to s 65L of the Family Law Act 1975 (Cth).

23. I do not consider that the erroneous finding that the children had travelled to the USA with their mother and then had been returned to the jurisdiction was pivotal to the subsequent determination permitting the mother to travel with the children to Asia in January 2020. It was but one of the several factors considered.

24. The order allowing the mother’s travel was made on 23 October 2019 and accompanied by detailed reasons. There was no appeal against the orders made nor could it be said that the father’s application was filed in a timely manner given the clear indication by the mother of the dates of proposed travel.

25. The mother has booked flights for herself, the maternal grandmother and the children at a cost of approximately $7,000. The father’s solicitors were advised of the detail of the flights on 14 November 2019.

26. Accommodation was booked in the sum of $2,864 and this was also the subject of correspondence on 25 November 2019.

27. The mother received a signed acknowledgment by the father’s solicitor on 4 December 2019.[2]

    [2] Exhibit “8”.

28. There is no suggestion that the mother has not complied with the conditions set out in order 5 made 23 October 2019.

29. The father does not give any undertaking as to damages in respect of his application seeking to restrain the children’s departure.

30. The maternal grandmother confirms in her Affidavit filed 17 December 2019 that she intends to travel with the mother and the children.

31. She is aware of the orders that affect the children’s proposed travel arrangements and was present in court on 11 October 2019 when aspects of the travel and her preparedness to accompany the mother and the children was discussed.

32. Her evidence that she will accompany the children to and from Australia departing 1 January 2020 and returning on 15 January 2020 is unequivocal.

33. The decision to allow the children to travel to Asia with the mother and the maternal grandmother must involve a consideration of relevant factors pursuant to s 60CC(2) and (3).

34. I do not consider that there has been any significant change in the circumstances affecting the children or the parties that would require my previous order to be reconsidered. The maternal grandmother’s affidavit confirms that she will travel with the mother and the children. By reference to Exhibit “9” the flights for the maternal grandmother, the mother and the children are booked and paid on the same reservation number. I propose that subject to a modest variation that would make the current order allowing the mother to remove the children from the Commonwealth of Australia conditional upon the maternal grandmother accompanying the children from Australia to Asia and their return the order will not be changed.

The family report

1. Following the orders made 23 October 2019 the Family Consultant conducted further interviews with the parties and on 6 December 2019 observed interaction between the children and the mother, maternal grandmother, the father and paternal grandmother.

2. The Family Consultant gave considerable consideration to the documents on the Court file including subpoenaed information from Dr T, psychologist, an Autism Assessment Report for Y and a Speech Pathology Report and Intake Research Assessment Report for X dated 3 and 19 September 2019 respectively.

3. Following the observed interactions, the family consultant recommended:-

   That consideration be given to the children having further visits of up to two hours with their father and paternal grandmother at the Registry Childcare, supervised by a Family Consultant (reportable and pursuant to section 65L) with Family Consultant availability on 30/12/19 or 31/12/2019, with another visit (pursuant to s 65L) being scheduled after the mother returns from Asia with the children in January 2020.

4. On further inquiry with Court Dispute Services a family consultant is available to conduct s 65L reportable visits on 30 and 31 December 2019 and 20 and 21 January 2020.

5. The paternal grandmother is prepared to accept the recommendations of the family consultant for s 65L visits.

6. The family consultant considered that it was premature at this stage to determine the next stage but considered that a possible option was for the children to visit their father at his care facility supervised by “a reportable therapist”. By separate inquiry, the paternal grandmother can arrange for Ms Q to undertake supervision of the father’s time.

7. The family consultant correctly identified the primary issue in the proceedings as to whether the children should be supported to resume a relationship with the father and the paternal grandmother.

8. A further question arises as to how such a reunification process may occur.

9. The children have had no contact with their father for two years, he presents with substantial disabilities, the children have separate diagnosis of Autism and the mother asserts she suffers from PTSD and is emotionally vulnerable.

10. It is also a dominant feature in the proceedings that each of the parties consider that the other has acted with murderous intent.

11. The father presented as “an articulate man who seemed consumed with fear for the children’s safety in the mother’s care”.[3] He viewed the mother as “a violent psychopath” and far from there being any truth in the mother’s case that the father intended to exact grievous bodily harm or possibly kill Mr B, the mother’s friend, he considers that Mr B attacked him without provocation or warning and that the mother then shot Mr B.[4]

    [3] Family Report 13 December 2019 at [44]

    [4] Ibid.

12. The father’s view of the mother was consistent with that of the paternal grandmother.

13. The observations of the children with the father “revealed a resilience in the children and an openness and acceptance of their father (and grandmother) that contrasts markedly with the reports from the mother as to the children’s expressed fear of him…”.[5] The family consultant considered the observed interaction to be of a “highly positive nature” and “the more remarkable however, in circumstances wherein the children have only had a single narrative to explain the 2-year absence of their father in their lives…”.[6]

    [5] Family Report 13 December 2019 at [107].

    [6] Ibid.

14. The mother reported that the absence of emotional dysregulation or distress in the children could be attributed to “masking behaviour”.[7]

    [7] Family Report 13 December 2019 at [108].

15. The family consultant did not agree and considered that any dysregulation may well have its genesis in the mother’s own dysregulated state consistent with her underlying PTSD.

16. The family consultant considered that the observed interaction between the children, their father and paternal grandmother was favourable and that there should be “ongoing momentum of further planned visits”.[8]

    [8] Family Report 13 December 2019 at [113].

17. The family consultant reported that the mother considered that before any further visits between the children, the father and paternal grandmother were scheduled Dr F and Dr T should be involved in the process. Their involvement was considered by the mother to be critical in circumstances where they know and understand the children’s Autism and how it affects their presentation and the mother’s ability to manage their behaviour if dysregulated.

18. The family consultant considered the mother’s concerns as [106]:-

    However, whilst the writer shares the mother’s view that the children’s psychologists are instrumental in supporting the children with respect to their autism, the writer does not share the mother’s belief that further contact between the children and their father should not take place until the children have each met with their respective psychologist The writer instead, considers the primary role for the two psychologists will be to meet with all the parties separately to develop a common, protective and shared narrative or ‘social story’ about the incident, which will allow the reunification process between the children and their father (and grandmother) to be more natural and fluid and without the “secrets” that X referred to during his time with his father.

19. The mother maintained that the father had a murderous intent towards her. Nonetheless, the family consultant considered that once there is a “common narrative or shared ‘social story’ about the incident, consideration could be given to the children visiting their father (and paternal grandmother) where the father is currently living…”.[9]

    [9] Family Report 13 December 2019 at 114].

20. The mother was open to the involvement of Dr F and Dr T to guide the process of reunification. It seems incongruous that the parties should consider some form of compromise given the appalling history of violence that infects the matter and their apparent genuine belief that the other either intended or intends to perpetrate grievous bodily harm or murder.

21. I am unlikely to determine those issues on an interim basis but it is apparent that each of the parties intend to adduce evidence that I should find that one or the other is the perpetrator of the events of 29 October 2017.

Conclusion

1. I propose to fall in with the recommendations of the family consultant.

2. Supervised time pursuant to s 65L is an opportunity for the children to pursue their reintroduction to their father and the paternal grandmother in circumstances where it is both safe and reportable.

3. As discussed in my earlier judgment a cautious approach should be adopted where the evidence has not yet been tested.

4. There is always a tension between the need to promote a meaningful relationship between a child and a parent or party tempered by the requirement that it should occur only if it is safe to do so.

5. The Court has the assistance of a highly competent family consultant. The Family Report is a detailed and well-considered document. It enables the Court to have some confidence that an order requiring the parties to facilitate the children spending time with the father (and the paternal grandmother) on four occasions in the presence of a family consultant is in their best interests.

6. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 December 2019.

Associate:

Date: 20 December 2019