HAYLES & DALKEITH

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAYLES & DALKEITH

[2020] FCCA 751

Catchwords:
FAMILY LAW – Parenting – parental responsibility – substantial attendance – overseas travel.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60CA,60CC, 61DA, 64B, 65DAC, 65DAE

Hague Convention on the Civil Aspects of Child Abduction 1980

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Mabo and others v Queensland (No 2) (1992)

Mazorski v Albright [2007] FamCA 520

Tait & Dinsmore [2007] FamCA 1383

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

[2020] HCA 3

Applicant:

MR HAYLES

Respondent:

MS DALKEITH

File Number:

MLC 5502 of 2018

Judgment of:

Judge Small

Hearing date:

14 August 2019

Date of Last Submission:

16 August 2019

Delivered at:

Melbourne

Delivered on:

3 April 2020

REPRESENTATION

Counsel for the Applicant:

Ms Rothschild

Solicitors for the Applicant:

Fogarty Oliver & Rothschild

Counsel for the Respondent:

Mr Howe

Solicitors for the Respondent:

Trapski Family Law

ORDERS

The Court makes the following parenting orders in addition to the Final Orders made by consent and dated 14 August 2019, and those Orders shall remain in full force and effect unless they conflict with any part of these Orders, in which case these Orders shall prevail.
The father shall have sole parental responsibility for the children X born in 2010 and Y born in 2012 (“the children”) in matters of education and choice of the children’s general medical practitioner, and otherwise the parties shall have equal shared parental responsibility for the children.
When the children are spending time with the mother pursuant to the Orders of 14 August 2019, subject to the provisions of paragraph (6) hereof, there shall be no requirement for the maternal grandparents or either of them to be in substantial attendance.
Within 14 days of the date of these Orders, and at each six month interval thereafter for a period of three years, the mother shall undertake a hair follicle drug test for illicit substances (“the testing”) at the expense of the father, and at an approved testing agency nominated by the father, with the testing to cover the full length of her hair, and she shall provide the results of the testing to the father within 48 hours of receipt.
To give effect to order 4 herein, the mother shall maintain her head hair no shorter than it is on the date of these Orders for a period of three years; and her hair is not to be cut, bleached or dyed between the date of this order and the time of collection of hair for the first testing, nor within 2 months prior to any testing date, and she shall forthwith provide a written authority to the approved testing agency for the release of the results of the testing to the father.
If any of the mother’s hair follicle tests show that she has taken any illicit drug or substance in the previous six months, her time with the children pursuant to the Orders of 14 August 2019 shall be spent with the substantial attendance of the maternal grandmother until she provides to the father a hair follicle test that shows that she has been clear of any illicit drugs or substances for the previous six month period.
The mother is hereby restrained by injunction from removing the children or either of them from the Commonwealth of Australia without the express written consent of the father having first been obtained in writing.
Should the mother obtain the written consent of the father to remove the children or either of them from the Commonwealth of Australia, on each occasion she wishes to take the child or children overseas she shall provide to the father 2 months’ notice of the dates of proposed travel, including an itinerary, copies of return air tickets, details of all accommodation where the children will be staying, and contact telephone numbers for the children while they are away.
All extant applications are otherwise dismissed and removed from the pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Hayles & Dalkeith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5502 of 2018

MR HAYLES

Applicant

And

MS DALKEITH

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting matter arising from the breakdown in the de facto relationship between Mr Hayles (“Mr Hayles” or “the father”) and Ms Dalkeith (“Ms Dalkeith” or “the mother”).
There are two children of the relationship, namely X born in 2010 (“X”) and Y born in 2012 (“Y”) (collectively “the children”).
To the parties’ great credit, they were able to agree on Final Parenting Orders in relation to all but three matters on the first day of trial. Those Orders provide for the children to live with the father and spend substantial and significant time with the mother on weekends, in school holidays, and on special occasions each year.
The remaining three issues for determination are:
A. Whether the father should have sole parental responsibility for the children or whether that responsibility should be equally shared with the mother;
B. Whether there should be a requirement for the maternal grandmother and/or her husband to be in substantial attendance when the children spend time with their mother; and
C. Whether the mother ought to be permitted to travel overseas with the children.
Final Hearing commenced on 14 August 2019 and was adjourned part-heard to 16 August 2019, where the matter ran for a second day. The mother and the father were both represented
Witnesses at trial included the father, the mother, and Mr A, the family report writer (“Mr A”).
Following the conclusion of evidence, and having heard submissions from both counsel, I reserved my decision.

Background

Mr Hayles is 34 years of age, having been born in 1985. He is self-employed as a tradesman.
Ms Dalkeith is 31 years of age, having been born in 1988, and at the time of trial she was working as a customer service officer on a casual basis.
The parties met in a drug rehabilitation centre in Country B in 2009 while both were in their early twenties. They then had what was described in the Family Report as “an intermittent relationship of some 4 years”. X was born in 2010 and Y was born in 2012.
The parties separated in December 2013.
Each of the parties has one other child from a previous relationship. Mr Hayles’ son C, who is almost 14 years old, lives with his mother in Country B and has little or no contact with Mr Hayles, due, Mr Hayles told Mr A, to C’s mother “keeping him out of C’s life”.
Ms Dalkeith’s 16-year-old son D was raised by his maternal grandparents. He still lives with his grandparents, and his mother, at the maternal grandparents’ home in Suburb E. He has no contact with his father, who lives in Country B, because, his mother told Mr A, that is her choice.
In 2015, the father moved to Melbourne with X.
The mother followed with her new partner Mr F (“Mr F”) and Y a few months later.
Later in 2015, there was a serious episode of family violence between mother and Mr F, and, as Mr A states in the Family report, “Ms Dalkeith sought refuge for herself and Y at the home of Mr Hayles”.
A week later, Ms Dalkeith returned to Mr F, leaving Y in Mr Hayles’ care, thus reuniting the sisters.
It was at this point that then three-year-old Y revealed to her father that Mr F had been sexually abusing her on multiple occasions, both in Country B and in Melbourne.
As a result of Mr Hayles’ concerns that Ms Dalkeith might still be in a relationship with Mr F (which Ms Dalkeith denies), she did not see the children between February and May 2016.
In May 2016, there was an altercation between the parties at the father’s home when the mother attempted to take the children’s passports. Both parties blame each other for that altercation, which occurred in the presence of both children, but I note that Mr Hayles obtained a two year Family Violence Intervention Order against Ms Dalkeith in January 2017 as a result of that incident.
Shortly thereafter, in mid-to-late 2016, Ms Dalkeith went back to Country B and entered a nine month residential drug rehabilitation program, from which she graduated in 2017.
It is her evidence that she has been completely free of illicit drugs since April 2017, and there is no evidence before the Court to say otherwise.
Upon her release from the rehabilitation program, Ms Dalkeith discovered that the children’s paternal grandmother had brought them to Country B for a holiday in 2017.
She sought and obtained orders from the Country B District Court which prevented the removal of the children from that country, but which left them in their grandmother’s care while allowing the mother to have supervised contact with them.
Mr Hayles instituted proceedings in Country B under the Hague Convention on the Civil Aspects of Child Abduction 1980 (“the Hague Convention”) seeking the return of the children to Australia.
He was ultimately successful in those proceedings and the children returned to Melbourne, and his care, in March 2018.
Ms Dalkeith returned to Australia alone shortly thereafter, moving in with her parents in Suburb E, and Mr Hayles instituted these proceedings in May 2018.
It is believed that Mr F returned to Country B some time in 2016/2017, and at the time of trial, the parties believed him to be serving a prison sentence in Country B for unrelated offences.
The Department of Health and Human Services (Child Protection) (“the Department”) investigated the sexual abuse allegations, but concluded that, as Mr F was no longer in Australia, those allegations could not be pursued. At that time, the Department were also satisfied that Mr Hayles was appropriately and satisfactorily caring for the children.
As Mr A states, at paragraph 14 of the Family Report:
It can be seen that X and Y have experienced deeply traumatic and dysfunctional childhoods so far; geographically fragmented, and at times separated from each other and from one or other parent.
Mr Hayles has repartnered with Ms G (“Ms G”) and they live together in Suburb H.
The mother has not repartnered since the cessation of her relationship with Mr F, and continues to live with her parents.

Issues and Evidence

It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the demeanour of the parties at trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.

Issue A: Whether the father should have sole parental responsibility for the children or whether that responsibility should be equally shared with the mother

The father seeks an Order that he have sole parental responsibility for the children, while the mother seeks to share that responsibility with him.
An Order about parental responsibility is, unsurprisingly, a “parenting order” under s64B of the Family Law Act 1975 (Cth) (“the Act”).
The law about parenting orders is found in Part VII of the Act, and I will set out the Objects and Principles of Part VII for the benefit of the parties.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)  parents should agree about the future parenting of their children; and
(e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(ii) to develop a positive appreciation of that culture.

(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

It is noted that pursuant to the Objects and Principles set out above, it is the children and not the parents who have “rights”. Parents have “duties and responsibilities”.
Section 61DA(1) of the Act states that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
S.65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility as follows and again, I set out the provisions of that section here for the parties’ benefit:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
65DAE No need to consult on issues that are not major long‑term issues
(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence.
In his submissions at the conclusion of the trial, Mr Howe, for the mother, submitted that any violence between these parties was “historic” and therefore did not attract the provisions of s.61DA(2).
He further submitted that in order for s.61DA(2) to “kick in”, the Court would “need to…make a finding that there had been family violence and a finding as to who had perpetrated it against whom”. That finding, he said, would have to be made “according to the Briginshaw principle[1]", which would require me to be reasonably satisfied that family violence had taken place.
[1] See Briginshaw v Briginshaw (1938) 60 CLR 336 at p 361-362
As I said to counsel at the time, that is not what the Act says. The Act is clear: the presumption does not apply “if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence”.
S.61DA(2) does not require that any family violence be contemporary, nor that any time limit apply to it at all. Further, no actual finding of family violence is required. The Act says only that the presumption does not apply if there are “reasonable grounds to believe” that a parent or someone a parent lives with, has committed family violence.
In this case, both parties make allegations of family violence against each other, and it is clear from both parties’ evidence at trial that there was a physical altercation in front of the children on 27 May 2016, when the mother attempted to take the children’s passports while visiting the children at the father’s home.
That altercation resulted in a Family Violence Intervention Order being made against the mother for a period of two years.
On that evidence alone, I am satisfied that there are “reasonable grounds to believe” that “a parent of the child has engaged in” family violence, although I will return to the issue of family violence in more detail later in these Reasons.
Therefore, the presumption that it is in the children’s best interests that there be an order for equal shared parental responsibility does not apply in this case.
Section 61DA(4) states that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to equally share parental responsibility for that child.
As I have found that the presumption does not apply in this case, I am not required to decide whether it has been rebutted.
Nevertheless, as an order for equal shared parental responsibility is a parenting order, the provisions of s.60CA apply.
S.60CA states:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
S.60CC then sets out 16 separate issues that the court must consider when deciding which orders might be in a child’s best interests, and I will address each of those considerations in turn as they relate to this case.
There are two “primary considerations”.
60CC(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological abuse from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The meaning of the word “meaningful” has been discussed many times in cases heard in this court and in the Family Court of Australia.
In Mazorski v Albright [2007] FamCA 520, Brown J said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
That is, the meaningfulness of a relationship between a child and his/her parents is measured by the quality of the time spent and not by the amount of time.

In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
In this case, it is clear that both children have a meaningful relationship with both parents as described by Brown J, and as described in the first part of the passage above from the judgment of Cronin J in Tait & Dinsmore.
There are some cracks in the history of the parties’ ability to “lead by example” with their children, both in the areas of drug use and family violence, and those issues cannot help but have had an effect on the meaningfulness of the children’s relationships with both parents.
The history of this matter also raises questions of the children’s need to be protected from harm from their parent’s drug use, whether that is historical or not, and from being exposed to family violence.
It is to both parties’ credit that they both gave evidence at trial that their communication had improved over time to the stage of civility when discussing parenting matters for the children.
Communication is the key to parental relationships, and if the parties have been able to keep any animosity towards each other out of their parental communications, that will go a long way towards allowing the children to feel safe and secure after an early childhood in which they must have felt neither.
Nevertheless, s.60CC(2A) states that when the court is balancing the issues of the benefit to a child of a meaningful relationship with both parents against the need to keep a child safe from harm, the Court must give greater weight to the latter.
I must therefore craft Orders which allow the children to develop and expand their relationships with both parents, while at the same time ensuring, first and foremost, that they are kept safe and secure from harm.
S.60CC(3) of the Act then sets out a further 14 “Additional Considerations” for the Court to take into account when deciding which Orders are in a child’s best interests.
Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
When asked during Family Report interviews about her wishes if she were able to have three, X, who was eight years and eight months old at the time of interview, stated that her first wish was to have a puppy, the second was that her parents were back together again, and her third was that she would never die. She told Mr A that she felt sad that her parents were not together, and that she wanted to see her mother more than she was seeing her at that time.
Y, who was seven years and two months old at the time of interview, told Mr A that her first wish was “that my Mum and Dad get back together” and that “it would be very nice to see more of mum”.
I note that the final Parenting Orders signed by the parties on 14 August 2019 provide for significantly more time between the children and their mother than they were spending at the time of the Family Report interviews.
It would be highly unusual for children of this age to have any views about who should have parental responsibility for them, but I note that both children wished, as many children do, that her parents were together again, which carries an assumption that they would be sharing those major decisions.
(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
Both parents report close and loving relationships with each child, despite the disruptive nature of the children’s early years.
Mr A describes both children as being “completely relaxed and familiar with their father, as he was with them. It was evident that X and Y have an attachment to their father, and that he in turn has a close bond with them”.
While he describes the mother being “more passive in her interactions with the girls than Mr Hayles had been”, both children had greeted her with a hug, and both were observed to “deliberately delay their departure for two or three minutes by repeatedly hugging their mother in turns before they left the playroom”.
The court has no concerns about the current nature of the relationship between each of the children and each of their parents.
I note that the children live with their maternal grandparents when they are spending time with their mother, and all accounts describe a close and loving bond with them, as well as with other members of the maternal family.
There is also some evidence that the children feel safe and secure in their paternal grandmother’s care.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
Mr A describes the children’s early years as follows:
113. These two children, X, 8, and Y, 7, have had extremely traumatic and dislocated childhoods so far, as the children of two long-standing drug addicted parents, though, at this stage, both parents claim to no longer use illicit drugs.
114. At different times the girls’ childhoods have been split between Country B and Australia, and, they themselves, separated from each other, or from one or other parent. As such it has been for both girls about the most destructive kind of childhood a child could be subjected to.
The parents separated when these children were very young – X was three and Y 18 months old at the time.
The father appears to have made perhaps the most momentous decision of the children’s lives, that to move from Country B to Australia in 2015, although there is no evidence that the mother had any serious concerns about that decision, and I note that she and Y and Mr F followed the father and X soon thereafter.
It is difficult to ascertain from the evidence how the children came to be separated and to be living with each parent separately, in the lead up to the move to Melbourne.
Since both children came into his care as a result of Y revealing that Mr F had been sexually abusing her, Mr Hayles has made most of the major decisions about the children. It is he who has decided where they go to school and which doctor they attend, and it was he who sent the children to Country B with their paternal grandmother for a holiday in 2017, that decision having quite dire consequences for both children.
Since he returned to Melbourne with the children in March 2018, he has made all major decisions for the children, and has cared for them full time.
I note that some of those decisions have been protective decisions in relation to their mother’s relationship with Mr F.
Ms Dalkeith appears to have entirely abdicated her responsibility for caring for the children, and making decisions about their lives, after they went to live with their father when she returned to Mr F in 2016, knowing the allegations of sexual abuse against him.
She has not properly explained her reasons for trying to take their passports in May 2016, but I can make no assumptions about her intentions for their country of residence at that time.
However, she returned to Country B to complete drug rehabilitation in late 2016, and she then sought to have the children placed in her care in the Country B courts when she discovered that they were in that country in 2017.
She has been attempting to have the children spend more and more time with her ever since the commencement of these proceedings.
That she seeks an Order for equal shared parental responsibility indicates that she wishes to be an integral part of the children’s lives and to be involved in making decisions about their care, welfare and development.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Child support has been an issue between these parents for some time.
In his final Affidavit sworn and filed on 13 August 2019, Mr Hayles deposes, at paragraph 5:
I haven’t had that much financial support from Ms Dalkeith, she has always tried her best to pay as little as possible and I only get child support from her when she does her tax return or when it is ordered from her wage from child support (sic).
In his Outline of Case Document filed 16 August 2019, the father states:
The Mother not regularly (sic) paid child support to the Father and only one 1 occasion (sic) has provided him with extra funds for Xs glasses.
It was his evidence under cross-examination at trial that Ms Dalkeith paid “a small amount of child support”, and that she had attempted to reduce the amount to “$15 a month per child”. He then said that “we only received money when she did her tax return. She doesn’t pay child support consistently or on time”.
Under re-examination by his own counsel, Mr Hayles again denied that the child support paid by Ms Dalkeith was “substantial”, saying: “We (I assume that he was referring to himself and Ms G) don’t get money every week. We – we got some money when she did her tax return but usually it’s a fight to get any money off her, to be honest.”
Upon further questioning from the bench, the father conceded that the mother had paid child support other than through her tax return “a couple of other times, but it’s very rare”.
The mother’s evidence at trial on this issue was that her child support “comes straight out of, like, from my employer to child support”, and that “they take it before I see it”.
She said that as she was working on a casual basis, she had become concerned over the 2018-2019 summer period that she was not paying enough child support and might be in arrears, so she had contacted the (then) Department of Human Services (Child Support) (“the Child Support Agency”) to ensure that she was paying the correct amount.
It was her evidence that the case manager she had spoken to had informed her that she thought Ms Dalkeith might be paying too much child support, and encouraged her to apply for a reassessment of her liability. She had done so, she said, and had been advised that she did not have to pay further monies until the outcome of that reassessment was known. She said that she then paid nothing from about January to April or May 2019.
She then stated:
So ironically, it ended up that no, I was paying the right amount, and that I ended up in arrears. So I have been paying off my arrears $100 a week and there was a lump sum that went out of my tax to Mr Hayles.
Despite Mr Hayles’ beliefs, I did not get the impression that Ms Dalkeith was attempting to avoid her child support obligations and responsibilities.
Mr Hayles, of course, “maintains” X and Y on a day-to-day basis in every way, and I note that Mr A describes their presentation as “well-dressed” and that they “appeared well cared for” in the Family Report.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no suggestion that the children will be separated from either parent, or from other family members, as a result of my decision in these proceedings, as their time with their mother is governed by the Orders made by consent on 14 August 2019.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
While Mr Hayles and Ms G live in Suburb H, and Ms Dalkeith in Suburb E, a distance of about 30 kilometres, or a little over half an hour’s drive, that distance does not appear to have posed any difficulty for the parties in ensuring that the children spend significant time with both parents.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
This is one of the major issues in these proceedings.
While there is no doubt that both parents are able to meet the children’s material needs, there is some concern about the capacity of both when it comes to the children’s emotional needs.
The father has no trust that the mother will not again expose the children to possible abuse, and the history of this matter gives him just cause for such concerns.
Ms Dalkeith was living with Mr F when Mr F apparently sexually abused Y over a period that included their time in Country B and their life after moving to Melbourne.
It was Ms Dalkeith’s evidence at trial that she did not know about the abuse until Mr Hayles told her. She could not explain how she had been unaware of the abuse, but was adamant that that was so, and there is no evidence to the contrary. Even the father conceded at trial that she probably did not know that her partner was sexually abusing her three-year-old daughter.
However, the father says, quite understandably in my view, that that situation raises questions of how alert Ms Dalkeith is to her children’s needs.
Her counsel submitted at trial that child abusers can be very deceitful and clever in hiding abuse of children, and that the mother should not be blamed for the abuse.
That is all true, but the fact that Y was apparently sexually abused by Mr F over a significant period of time while in the care of her mother, does raise questions about the mother’s capacity to “tune in” to the children’s more subtle emotional needs, as it is almost inconceivable that Y was showing no signs or symptoms of distress during that period.
Mr Hayles presents as a concrete thinker. He looks at a situation, makes up his mind as to its nature and validity, and then finds it very difficult to swerve from that view, no matter the evidence of a contrary view that is placed before him.
There were several examples of that trait on display at trial, in particular in relation to the question of parental responsibility for the children’s education, when Mr Hayles, even after several explanations, could not seem to distinguish between an end decision (the choice of school for the children) and the process by which such a decision might be made (discussion and consultation between parents). He was fixated on his belief that Ms Dalkeith would “stuff them around”, and that she would want the children to attend a school closer to where she lives, that belief not changing in the face of Ms Dalkeith conceding that he might have sole parental responsibility for the children’s education.
He is absolutely certain that Mr F sexually abused Y and that Ms Dalkeith carries some responsibility for that situation, even if she was unaware of it, because the children were in her care, and therefore she ought to have known about it.
He did, however, demonstrate a capacity to respond to and account for the children’s emotional needs when he withdrew his consent for Y to be further interviewed by the Department because he did not want to “re-traumatise her”. He also organised counselling for Y in relation to the abuse.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
These parties met in their early twenties when they were both addicted to methamphetamines, perhaps the most socially and personally destructive of all drugs of addiction.
It is to both parties’ enormous credit that they have each been able to overcome that addiction, and Mr Hayles’ evidence, that he just realised he could not continue with that lifestyle once the children came into his care, indicates a level of maturity that is laudable.
Also an indicator of his maturity is his decision to seek counselling for himself after he discovered the sexual abuse, when he was angry with Ms Dalkeith about the situation.
It was his evidence at trial that his counselling had enabled him to “come to a place now where I’m not angry about it anymore”, but that “it’s still a very hurtful situation for me”.
I note that Mr A was impressed with Mr Hayles’ maturity, writing, at paragraph 64 of the Family Report:
It must be said the writer got a good impression of Mr Hayles in interview. Despite his long drug taking history, he impressed as an intelligent and sensitive man. He recalled the sexual abuse of Y had shocked him out of his former life style: so that, when the care of both children fell to him, he realised he had no option but to step-up; something which he seems to be doing very well.
Mr Hayles did not raise the issue of Ms Dalkeith’s current drug use at trial, saying that he believed that she was now “clean from drugs”.
He was, however, reluctant to believe that she had concluded her relationship with Mr F after the sexual abuse allegations came to light, and despite he himself having made some very bad decisions in his life, he was most reluctant to give the mother credit for having made changes in her life for the better. He might not remain angry with her, but he still blames her for the poor choices she has made in life.
The evidence before the Court is that Ms Dalkeith, too, appears to have overcome her drug addiction, although at the time of trial Mr Hayles still held fears that she might relapse, more than two years after she last used illicit drugs.
Her concession at trial that the children would continue to reside with their father indicates a child-focussed and mature approach to the children’s needs at this time.
I note that the proposal that Ms Dalkeith might undergo six-monthly hair follicle tests for illicit drugs for the next two years was put to both parties at trial, and both agreed to such an Order being made, as Mr Hayles indicated that such testing would relieve some of his anxieties in relation to Ms Dalkeith. That Ms Dalkeith agreed to such an onerous regime of testing into the future indicates a maturity developed over many difficult years.
She, too, had sought counselling independently of these proceedings, which is likely to have been particularly confronting for her, which indicates a level of maturity that is commendable.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
The mother’s evidence is that she is descended from the J Aboriginal people, in that her seven-generations great-grandmother on her father’s side was a member of that tribe.
However, beyond simply stating that fact, both in Affidavit material and to Mr A, Ms Dalkeith provides no information whatsoever that she identifies as Aboriginal, or that she is recognised as such by the Aboriginal community, those three issues being those upon which a person’s Aboriginality is decided under Australian law: see Mabo and others v Queensland (No 2) (1992); and Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3.
Moreover, at no time during these proceedings has Ms Dalkeith claimed that her children are Aboriginal children.

I have not, therefore, considered this issue in my deliberations as to what Orders are in X and Y’s best interests.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Historically, it could be said that the parties’ drug use indicated a very poor attitude to their children and to their responsibilities as parents, but since the commencement of these proceedings at least, that is not a current concern.
Mr Hayles is extremely critical of Ms Dalkeith’s decision to institute proceedings for the children to live with her while they were on holiday in Country B with their paternal grandmother in 2017. Those proceedings led to a protracted period of litigation in Country B, and ultimately, to these proceedings.
Those proceedings certainly indicate that Ms Dalkeith was perhaps more concerned with her own needs than those of the children at that time, as the children had been living with their father for about 18 months when he allowed them to travel to Country B with his mother.
Her actions at that time, when she had just completed her drug rehabilitation program, might be seen to indicate an attitude to her parental responsibilities as one that sees the children as a prize to be won in order to meet her own needs.
In her defence, Ms Dalkeith says the father had misled her, and had allowed her to think the children were on holiday in Perth with their grandmother, but even if that were so, I cannot escape the conclusion that her actions were precipitous and without full realisation of the implications for her daughters.
Since the children came into his care, Mr Hayles has displayed a very responsible and protective attitude to the children’s welfare, although his complete mistrust of their mother is of some concern.
He stated at trial that his application for an Order for sole parental responsibility for the children arose from the fact that “I just can’t trust Ms Dalkeith’s judgment. I just don’t think that she has made the right decisions when protecting the children, and I’m their father and I would like to be the one to make the decisions on that”.
However, apart from the fact that Y was abused while in her mother’s care, the father found it difficult, when asked, to point to any “bad decisions she has made with regard to the welfare of the children”, stating only that Ms Dalkeith smoked cigarettes and that she had said “she had to get her eyebrows waxed” as a reason for not being able to see the children in 2016.
As previously stated, the mother’s concessions that the children would continue to live with their father, and that he would have sole parental responsibility for them in matters of education, display a current child focus that is to her credit.
(j)any family violence involving the child or a member of the child’s family;
Mr A states as follows in relation to this issue:
29. Although the narratives are somewhat contradictory there were historical allegations of family violence during this four-year intermittent relationship.
He records Ms Dalkeith as raising “allegations against Mr Hayles of family violence, verbal and psychological abuse”, but that Mr Hayles had denied that he had ever “raised my hand or voice to her”. Mr Hayles told Mr A that he had had to intervene at times to keep the children safe from their mother’s abuse.
In her Affidavit affirmed and filed on 12 August 2019, the mother deposes as follows:
56. There has been family violence by the father against me. By way of example, when the father was using ice in 2012, there was an incident whilst I was heavily pregnant with Y. The father returned home around 3.00am and was clearly high. He was disorientated and quoting paragraphs out of the Bible in an aggressive manner. A few days earlier he had “gone missing” which he would regularly do for a few days. I would never know when he was coming home. On that particular night, the father wanted to take our television to sell it to get more methamphetamine. When I tried to stop him, he pushed me on my upper body and I fell down a flight of stairs. This was extremely distressing as I was heavily pregnant at the time. I was very scared. I set off the alarm in my care to defuse the situation and the father left quickly thereafter. I telephoned the police and reported the incident.
57. The father alleged that I gave him a black eye. That is simply not true. It was the father who attacked me, not the other way around. The father often had black eyes as he enjoyed kickboxing and would spar with his friend K in the garage.
58. There have been many further incidences of family violence by the father that had been physical, emotional, psychological, he has encouraged me to use drugs when I was most vulnerable, he has used the children to control and coerce me, amongst other things.
In his affidavit sworn and filed on 13 August 2019, the father deposes that the mother’s affidavits “only set out to tarnish my name and the hard work I have done to keep my daughters safe from her own bad decisions, rather than the concern and safety of our daughters which she has unremittingly neglected. I have made mistakes in my youth and regretfully had made some bad decisions myself, but have faced the consequences for every mistake and have learnt to put my children first to have become a devoted father”.
At trial, under cross-examination by counsel for the father, Ms Dalkeith was critical of the father, stating that she found his behaviour “overbearing”, and controlling in relation to when she could see and communicate with the children after it was discovered that Y had been sexually abused by Mr F in early 2016.
She said that it was “Mr Hayles’ orders”, rather than a Parenting Plan the parties had signed which dictated her time with the children, and that the children “were available to me on Mr Hayles’ clock”.
At trial, each party gave their evidence about the incident in late May 2016 which resulted in the father applying for an Intervention Order against the mother.
The father’s evidence is essentially that he heard Y calling out to him that her mother was “trying to take the passports” and that she had “said it like she was scared”. He had “run upstairs” to find the mother attempting to “stuff the passports down her pants”. He continued:
I thought, well, she’s just trying to steal the girls back to Country B. So I took the passports off – I grabbed them out of her hand and she attacked me and punched me in the eye in front of the girls, and that’s why the intervention order came.
It was Mr Hayles’ evidence that that incident had occurred just before the mother was due to have her first unsupervised weekend with the children.
Not unsurprisingly, Ms Dalkeith’s version of that incident is somewhat different.
Her evidence, in response to questions from counsel for the father, was as follows:
I say that I wrote Mr Hayles a letter stating that I would leave the girls in his temporary care while I got myself help and support for my current situation and […] I was coming out of a bad relationship and I had relapsed on methamphetamine. And I had no job and I had just been evicted from my rental property […] because I wasn’t paying my rent. I had lost my job. […] So I had given him the girls’ passports with that letter for the purpose of getting the family tax benefit while he was looking after the children. So I had actually purchased those passports in the beginning and I held onto all the important documents regarding the girls. So I had given him the passports and I had seen the passports in his room and I had – I just thought, okay, well, he has used them so I didn’t think anything of it. I just thought I would take them back now. And then he saw me do that and he came and – he came pretty much charging at me, yelling and stuff, saying, you know, I’m stealing from him. And he pushed me down and when he was coming towards me, that’s when I put them at the back of my pants. He pushed me onto the bunk beds in front of the girls. Actually, Y didn’t go downstairs. We were all upstairs: me and the girls. So he had pushed me onto the bed and put his hands down my pants and got the passports out.
The mother conceded that she had not sought an Intervention Order against the father after the May 2016 incident, or at any other time.
Under further questioning, she admitted that she had obtained an Intervention Order against Mr F in relation to family violence committed by him, and that therefore she had known about the process involved in obtaining such an order at the time of the May 2016 incident.
Ms Dalkeith concedes that she was taking methamphetamine at the time of the May 2016 incident, and it is therefore highly likely that her behaviour was erratic and uncontained on that occasion.
Nevertheless, her description of Mr Hayles pushing her onto the bunk beds on that occasion, while attempting to retrieve the children’s passports from her pants, has the ring of truth about it, and I find it more probable than not that her version of the events that occurred when Mr Hayles came upstairs in response to Y’s call on that night is the more correct. I note that that finding does not find her blameless for the altercation that occurred on that occasion.
I therefore find that there was family violence between the parties on that occasion, and that that family violence occurred in the presence of the children.
The parties should note that pursuant to s.4 of the Act, exposing children to family violence is an act of child abuse in its own right.
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
As a result of the May 2016 incident, Mr Hayles applied for an Intervention Order against Ms Dalkeith, naming him, and each of the children, as Affected Family Members.
He deposes that he obtained an interim order, which had the usual exceptions for written agreements between the parties, and that a two year final order was made in the absence of the mother on 20 January 2017.
It is the mother’s evidence that she returned to Country B in December 2016 to seek treatment for her drug addiction and that she attended a residential drug rehabilitation program for the next nine months or so. That is why she was not at court when the final Intervention Order was made on 20 January 2017.
There is no evidence before the court that any breaches of that Order have been reported to Victoria Police, and it expired on 19 January 2019.
(l)whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child;
These children have had a start to their lives that no-one would wish for them. As Mr A said in the family Report, “it is long overdue these children’s lives to, as far as possible, be normalised”.
They have known chaos and trauma, but since March 2018, they have lived with their father, and more recently, his partner, and appear to be happily settled at school.
In those circumstances, it is vital that the children have a safe and secure life, and the parties have ensured that by their signing of final consent Orders on 14 August 2019.
These Orders, too, are intended to be final Orders so that the children and the parents can move forward with certainty, and without the shadow of court proceedings hanging over them.
(m)any other fact or circumstance that the court thinks is relevant.
I take into account under this subsection the fact that in his Family Report, Mr A recommended that the father have sole parental responsibility for the children, and he also recommended that the time the children spend with their mother continue to be spent with the maternal grandmother being in substantial attendance.
However, under cross-examination by counsel for the mother at trial, he conceded that those recommendations had both been made on the basis of the mother’s history of drug addiction.
When advised that all the mother’s drug screens had returned negative results for illicit drugs, Mr A changed his mind on both issues, saying that at the time of his interviews with the family, he had been “unclear” about the mother’s situation.
He said that, in those circumstances, parental responsibility “could be shared”, and that any concerns he had would be ameliorated by the mother providing regular hair follicle tests to show her continued abstinence. He was similarly satisfied that, subject to that process, there was no reason for the mother’s time with the children to be supervised or spent with the maternal grandmother in substantial attendance.

Decision: Issue A

The father’s fears, as expressed at trial, were essentially that the mother would interfere and “stuff things up” if he had to make decisions with her about the children’s long term care, welfare and development.
He was particularly concerned that she would attempt to change the children’s school to one closer to where she lives. His fears were not assuaged by the mother’s offer to concede parental responsibility for the children’s education, and he was almost fixated on those fears. He has absolutely no trust in the mother’s judgement or insight, or, indeed, her abstinence from drugs in the longer term.
Providing for him to have to deal with her in relation to the children’s schooling, or which doctor they attend, might provide fertile ground for previous disputes to grow. That cannot be in the children’s best interests.
In those circumstances, I will allocate sole parental responsibility for the children’s education and the choice of a general medical practitioner to the father, but leave all other matters as the responsibility of both parents.

Issue B: Whether there should be a requirement for the maternal grandmother and/or her husband to be in substantial attendance when the children spend time with their mother

This issue arises from the father’s almost total lack of confidence that the mother has the insight and judgment to ensure that the children are not exposed to people who might harm them.
An Order that a party’s time with a child be spent in the substantial attendance of another person is also a parenting order, and I therefore take into account all the matters set out in paragraphs 52 to 165 of these Reasons in relation to this issue.

Decision: Issue B

While I understand the father’s concerns about the safety of the parties’ children, especially in circumstances where it is highly likely that the mother’s ex-partner sexually abused then one-to-three-year-old Y while she was in her mother’s care, that occurred when the mother was using drugs. Circumstances are now different, and I do not consider the current risk to the children in their mother’s care to be an unacceptable risk.
That would change if the mother were to relapse into illicit drug use, and to ameliorate that risk, I will make an Order that the mother’s time with the children not be in the substantial attendance of the maternal grandparents unless the mother returns a positive drug screen. I will make an accompanying Order that the mother undergo six-monthly hair follicle tests for illicit substances for the next three years. While that is an onerous burden for the mother, I find it necessary for the Court to be satisfied that the children will be safe in her care in the longer term. If any of those tests returns a positive result, the children’s time with their mother will be enjoyed with the substantial attendance of their grandmother until the mother again provides a clean hair follicle test that shows she has not used drugs for the preceding six months.

Issue C: Whether the mother ought to be permitted to travel overseas with the children

This issue arises for the most part as a result of the mother obtaining Orders from the District Court in Country B in 2017 which prompted the father to issue Hague Convention proceedings to have the children returned to him.
That experience was very traumatic for him and destroyed any remaining trust he might have had in the mother.
He is concerned that if she were permitted to take the children overseas she might remain there with them, necessitating further Hague Convention proceedings.
Given that both parties were born in Country B and both have family members there, that is not an unreasonable concern.
However, I note that on 14 August 2019, on the first day of trial, Ms Dalkeith signed consent orders that allowed the father to take the children to the Country L for three weeks over the 2019-2020 long summer holidays.
It is possible that, in time, Mr Hayles might reciprocate that trust if Ms Dalkeith remains abstinent from illicit drugs, and shows Mr Hayles that she is no longer the woman he knew when she was so addicted.

Decision: Issue C

I will therefore make an order that Ms Dalkeith be restrained by injunction from removing the children from Australia without the express consent of the father first having been obtained in writing.
That will allow for the circumstance, in the future, when the father might gain some trust in the mother, so that it might be possible for the children to travel overseas with her.
However, at this stage in the family’s life, I do not think it would be in these children’s best interests to risk further proceedings on this issue. Again, that situation might provide yet another ground for contention between the parties and is to be avoided.

Conclusion

I cannot emphasise enough the need for X and Y to live what remains of their childhood and their adolescence in safety and security, both physical and emotional.
They, and their parents, have lived through experiences that have left them traumatised and scarred, and it is now up to the parents to consolidate the gains they have so obviously made to ensure the safety and security of their children.

I certify that the preceding one hundred and eighty five (185) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 14 April 2020

[2020] FCCA 751

3 April 2020

Key Legal Topics

Areas of Law

Family Law

Contract Law

Legal Concepts

Consent

Injunction

Remedies

Offer and Acceptance