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Children – mother suffers PTSD due to father’s violence – order for introduction of children to their paternal Aboriginal family

In Hallett & Malcolm & Anor [2020] FCCA 835 (15 April 2020) Judge Small heard an application by a paternal grandmother to spend time with her 9 and 7-year-old grandchildren X and Y.

The children lived with the mother. The father had a history of violence, drug use and criminal conduct, had not seen the children since 2015 and took no part in the case. The children had not spent any time with the grandmother for three years.

The mother opposed the application due to her fear that the grandmother would bring the children into contact with the father. The paternal family were of Aboriginal heritage from the B region. Before the court were a family report prepared by psychologist Ms L and evidence from Koori support workers and Aboriginal elders Ms H, Ms N and Ms A.

The court said (from [419]):

“I must craft orders that protect X and Y from…harm(…)

[423] The children’s views as expressed to Ms L are quite clear: they do not wish to see or spend time with Ms Hallett.

[424] …[T]he children are still quite young, and Ms L’s evidence is that their views have been negatively influenced by their mother. It is difficult to see how they can have avoided that influence, whether directly, by being told that [the grandmother] and the father are ‘bad people’, or indirectly by being exposed to their mother’s severe PTSD around issues involving their father’s family.

[425] While I accept the children’s views as genuine, I do not place a great amount of weight on them because of their young age, and the…influence of their mother. (…)”

The court continued (from [441]):

“The evidence…does not give…much confidence that the…grandmother is capable of caring for the children. (…)

[456] I am satisfied…that Ms A’s proposal that she work with [the mother] to allow the children to be introduced to paternal family members and taught where they fit into their father’s family and B society at family gatherings and cultural events…will allow them to ‘enjoy’ their Aboriginal culture with other people who share that culture.”

It was ordered accordingly.

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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