Barry & Letton
[2025] FedCFamC2F 222
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barry & Letton [2025] FedCFamC2F 222
File number(s): SYC 4238 of 2024 Judgment of: JUDGE TAGLIERI Date of judgment: 21 February 2025 Catchwords: FAMILY LAW – review application – interim parenting proceedings – where the father alleges that the mother’s new partner is a risk to the children – assessment of risk in interim parenting proceedings – cautious approach – order restraining the mother from leaving the children alone in the presence of her new partner Legislation: Evidence Act 1995 (Cth) s 138
Family Law Act 1975 (Cth) ss 4AB, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(2A)(a)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), part 14.3, sch 4 cl 2, rr 14.05(2), 14.07
Surveillance Devices Act 2007 (NSW)
Cases cited: Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2022] FedCFamC1A 97
Lavigne & Gavin [2021] FamCA 612
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Bennett Moses, Lyria et al, AI Decision-Making and the Courts: a guide for Judges, Tribunal Members and Court Administrators (2023 Update, December 2023)
Douglas, Heather, National Domestic and Family Violence Bench Book (July 2024)
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 5 February 2025 Place: Hobart Counsel for the Applicant: Mr Stapleton Solicitor for the Applicant: Browns the Family Lawyers Counsel for the Respondent: Mr Todd Solicitor for the Respondent: Ali Lawyers ORDERS
SYC 4238 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BARRY
Applicant
AND: MS LETTON
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Until further order, the Respondent Mother MS LETTON is restrained from leaving the children Y born 2011 and X born 2009 alone in the presence of MR B.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 19 November 2024, a Senior Judicial Registrar dismissed an Application in a Proceeding filed by the father Mr Barry (“the father”) on 4 June 2024. In that Application the father sought an order restraining each party from causing the children Y born 2011 and X born 2009 (collectively “the children”) to spend any time with Mr B, who is the partner of the mother Ms Letton (“the mother”), or to cause or facilitate communication by any means between the children and Mr B. The review application came before me for hearing on 5 February 2025 (“the review hearing”).
By Application for Review dated 25 November 2024, the father now seeks to review the dismissal of his application and seeks an order in terms of the restraint sought in the Application in a Proceeding.
The only issue for determination is whether it is in the children’s best interests to make an order restraining the mother from allowing contact or communication between Mr B and the children.
The father contends on this review hearing that if the Court is not prepared to make the restraining order as sought, it should consider making an order restraining the mother from leaving the children alone in the presence of Mr B.
REVIEW PRINCIPLES
The dismissal of the father’s Application in a Proceeding seeking the restraint order referred to at [1] of these reasons was an exercise of delegated powers[1] and is subject to judicial review.
[1] Section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and in Schedule 4, Clause 2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), by adoption.
Part 14.3 of Chapter 14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides for Applications for Review from the decision of a Judicial Registrar or Senior Judicial Registrar. In this instance, the application was made within the required timeframe of 21 days.[2] The procedure for the review is governed by Rule 14.07 of the Rules and I exercise the same power the Senior Judicial Registrar exercised on the interim hearing. I am to determine the interim parenting proceedings de novo.
[2] Rule 14.05(2) of the Rules.
INTERIM PARENTING PRINCIPLES
Broadly speaking, because the restraint order sought by the father is an interim parenting order pursuant to the Family Law Act 1975 (Cth) (“the Act”), the approach to making parenting orders described in Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4 of the Act is relevant. These principles remain relevant despite the simplified statutory provisions that apply to determining what parenting orders should be made since commencement of the amendments to the Act on 6 May 2024. That is because the ultimate issue remains what orders are in or promote the best interests of a child or children.
The considerations in s 60CC(2) and (2A) of the Act are to be applied to the untested evidence relied upon by the parties to determine what orders should be made that promote safety and welfare of the children. Allegations of family violence, abuse or neglect including historical ones are relevant to what orders should be made.[3]
[3] Section 60CC(2)(a) and s 60CC(2A)(a) of the Act.
Necessarily, because the evidence in dispute is untested, the Court relies on what is not in dispute or unchallenged evidence, and its impressions formed by the nature and detail of the evidence relied upon by each party.[4]
[4] Marvel & Marvel [2010] FamCAFC 101.
Ultimately, whether the restraint order sought by the father ought to be made depends on whether it is in the best interests of the children and promotes their safety and welfare pending final hearing.
EVIDENCE BEFORE THE COURT
In support of the review application, the father relied on the following:
·Application for Review filed 25 November 2024;
·Affidavit of the father filed 29 October 2024, except at [63] and [68] along with the Annexures to which they refer. These were subject to objection by the mother, and I did not receive them for the reasons set out [13] and [14] of these reasons; and
·Case Outline filed 12 December 2024.
The mother relied on the following:
·Amended Response to Initiating Application filed 29 October 2024;
·Affidavit of the mother filed 29 October 2024;
·Affidavit of Mr B filed 1 July 2024;
·Affidavit of “Ms D” filed 26 June 2024;
·Notice of Risk filed 2 July 2024;
·Affidavit of Mr E filed 12 November 2024 attaching his Child Impact Report dated 6 October 2024 at Annexure B, to [88] of which the mother referred in respect of her objection specific paragraphs of the father’s affidavit; and
·Case Outline filed 13 November 2024.
The father sought to tender the audio recordings of phone conversations which he had with two women who had knowledge of and dealings with Mr B in the past. His counsel also sought to rely on transcripts of the phone recordings, which were admittedly prepared using Artificial Intelligence (“AI”) software.
The tender of the recordings and the transcripts were opposed. After hearing submissions about the admissibility of the documents, I declined to receive them. I gave oral reasons for this, which in summary were that:
(a)The AI transcripts had not been verified to be accurate, although counsel asserted from the bar table that they were accurate to the extent relied upon. However, it is commonly known that AI tools have tendency to hallucinate or be inaccurate or incomplete in the outputs they produce;[5]
(b)The transcripts had only been provided to the mother’s solicitors the night before the review hearing; and
(c)Because the audio recordings were admitted to have been made without consent, they were likely illegally obtained contrary to the provisions of the Surveillance Devices Act 2007 (NSW), and I could not be satisfied that the recordings would have probative weight,[6] due to the manner in which the information was obtained from what were effectively surreptitious conversations initiated by the father.
[5] Lyria Bennett Moses et al, AI Decision-Making and the Courts: a guide for Judges, Tribunal Members and Court Administrators (2023 Update, December 2023).
[6] Section 138 of the Evidence Act 1995(Cth) and discretion to receive improperly or illegally obtained evidence.
Uncontested evidence and facts
The parties finally separated in 2020. They have two female children, X who is currently 15 years old and Y who is currently 12 years old.
The children have spent equal time between the parents during school term and school holidays pursuant to a parenting plan and the parties have mostly effectively co-parented the children, but the parties communication exchanges suggest that the parents have not always been in agreement about some issues such as school absences and screen time.[7]
[7] Affidavit of the mother filed 29 October 2024 at Annexures D and E.
The mother informed the father on 3 January 2024 that she was seeing someone in a romantic relationship, but did not immediately identify that person as Mr B. On 8 January 2024, she identified Mr B to be the person she was seeing.[8]
[8] Affidavit of the mother filed 29 October 2024 at [13] to [16].
Relevant opposing evidence
The evidence of the father was to the effect that the children were at risk of harm in the presence of Mr B. In summary he stated in his affidavit that:
(a)He first met Mr B in the early 2000s and they were known to each other through church activities for over 10 years. Mr B exhibited troubling behaviour, including making derogatory comments about and inappropriately having relationships with young women and teenagers. He observed behaviours, including mostly speaking to young women or teenagers, driving them off alone and not spending comparable time with males;[9]
(b)Mr B would make inappropriate jokes which were sexualised and disrespectful to women;[10]
(c)The mother told him that she had expressed to Mr B that he had a reputation about being with a lot of girls and he had replied that the reputation was not deserved. The mother had also made statements about Mr B’s behaviour, such as pursuing her persistently, while chipping away at her confidence and saying things to convince her that she did not have other options, pushing for physical contact she did not want and trapping her in his hotel room;[11]
(d)The father had spoken to two women in early 2024, Ms C and Ms D, both of whom had expressed concern about Mr B’s behaviour. These conversations were those referred to at [13] and [14] of these reasons;
(e)Ms C had told the father that Mr B had persistently pursued her for a relationship, including involvement in a business idea when she had made it clear that she did not want one, and that Ms C had been told similar stories by other women who had also been told when he ended a relationship with them, that God had told him he had to do so.[12] Ms C was unwilling to provide an affidavit for fear of repercussions, but had sent two texts, including one stating that she agreed that Mr B was a threat to the father’s family;[13] and
(f)Ms D told the father that when she was around 14 to 17 years old, Mr B, who was a few years older, had been manipulative and sexually inappropriate.[14] He later forced himself on her and kissed her.[15] He was degrading of her and did not respect her.[16] Ms D refused to make a statement when requested by the father’s solicitor, but has made an affidavit in the proceedings upon which the mother relies.
[9] Affidavit of the father filed 29 October 2024 at [37] to [42].
[10] Affidavit of the father filed 29 October 2024 at [43].
[11] Affidavit of the father filed 29 October 2024 at [54] and [55].
[12] Affidavit of the father filed 29 October 2024 at [59].
[13] Affidavit of the father filed 29 October 2024 at [60] to [62].
[14] Affidavit of the father filed 29 October 2024 at [69].
[15] Affidavit of the father filed 29 October 2024 at [69(iii)].
[16] Affidavit of the father filed 29 October 2024 at [69(i)v].
The mother’s evidence was as follows:
(a)She has known Mr B since the early 2000s and had a brief relationship with him in 2014 after she had initially separated from the father. Since late 2023, she has resumed a romantic relationship with Mr B;[17]
[17] Affidavit of the mother filed 29 October 2024 at [9] to [10].
(b)Mr B does not live with the mother and has his own home in City F;[18]
(c)Mr B and the father are old friends;[19]
(d)The mother first told the father that she would not be introducing the children to the person with whom she had formed a relationship, but then decided that she would;
(e)Mr B has spent time with her and the children on four occasions, twice in mid‑January 2024, and earlier on 21 September 2024 and 1 October 2024.[20] He has not spent time alone with the children and she has limited their time with Mr B to avoid the father being upset or angry towards the children;
(f)Mr B does not have a criminal history or AVO, and she denies he has acted in a predatory or manipulative way towards her;
(g)She and Mr B share at least 20 mutual friends, including families who have children, and none have indicated that Mr B could pose a risk to the children;[21]
(h)She does not have concerns about Mr B and potential risk to herself or the children. The children have not expressed any concerns about her spending time with Mr B;
(i)The children have told her that the father has stated that Mr B is unsafe, but they do not feel that is so;[22]
(j)She denies telling the father that Mr B was predatory or manipulating. She is of the opinion that he is kind caring and loving partner to her;[23] and
(k)She is concerned that the father has commenced the proceedings out of spite or to cause financial hardship to her.[24]
[18] Affidavit of the mother filed 29 October 2024 at [11].
[19] Affidavit of the mother filed 29 October 2024 at [12].
[20] Affidavit of the mother filed 29 October 2024 at [17] to [18].
[21] Affidavit of the mother filed 29 October 2024 at [20].
[22] Affidavit of the mother filed 29 October 2024 at [21].
[23] Affidavit of the mother filed 29 October 2024 at [22].
[24] Affidavit of the mother filed 29 October 2024 at [23].
There is evidence before the Court from Mr B. He denies the allegations made by the father, particularly that he poses any form of risk to the safety of the children.[25] He rebuts the hearsay evidence given by the father concerning Ms C and Ms D. The tenor of his evidence is that he was always age appropriate and respectful in his relationships with them.[26] He states that in the case of Ms C, it was a platonic relationship and that they were in a business together with others.[27] He admits a non-platonic relationship with Ms D, but states that it was when they were both youths, that their activities were consensual, and that they remained friends after the relationship ended.[28]
[25] Affidavit of Mr B filed 2 July 2024 at [3].
[26] Affidavit of Mr B filed 2 July 2024 at [8].
[27] Affidavit of Mr B filed 2 July 2024 at [25].
[28] Affidavit of Mr B filed 2 July 2024 at [29].
EVALUATION AND DETERMINATION
The text messages exchanged between the parties is the most contemporaneous and probative evidence of when the father became aware of the mother’s non-platonic relationship with Mr B. The content of the text messages demonstrates three clear facts, and I find accordingly as follows:
(a)The mother informed the father of being in a new relationship on 3 January 2024 without identifying whom she had started seeing;
(b)The mother told the father that the children would not be meeting her new partner any time soon and that she would let him know if a meeting was to occur; and
(c)The father had immediate concerns about the safety of the children based on no information being shared to him about that person.
What logically follows from the above findings is that I reject the mother’s case that the father has commenced the proceedings out of spite or to cause financial hardship.
I consider the father initially and reasonably had some concerns about the safety of the children in the presence of an unknown adult male who was seeing the mother and about whom he was told nothing. He later reasonably commenced the proceedings because the mother has acted contrary to her representation about not introducing a new partner to the children immediately, once the father became aware of who the person was due to his experience of Mr B.
Ms C has not been prepared to give an affidavit in the father’s case, but there are many reasons why that may be so, including reluctance to be involved in court proceedings, having to expose herself to cross-examination and concern that allegations such as those made against Mr B are demonstrated by subtle and not necessarily overt conduct,[29] meaning that she may not be believed. This is suggested by the remarks made by Ms C to the father and referred to at [61] and [62] of the father’s affidavit which the mother has not disputed.
[29] Heather Douglas, National Domestic and Family Violence Bench Book (July 2024) (“National Domestic Violence Benchbook”) at Part 3.
Ms D has given an affidavit in the mother’s case, but it is brief and generally denies claims made in the father’s affidavit. It only specifically addresses coercion and non-consensual sexual acts. What is telling, in my view, is that Ms D does not deny having the conversation referred to at [66] and [69] of the father’s affidavit and does not deny the particularised statements referring to verbal denigration, manipulation or degrading conduct. Nor does she respond to the specific allegation that Mr B “forced himself on her and kissed her”.
The brief nature of Ms D’s affidavit and the lack of specific responses to the above matters leaves me with the impression that there may be some veracity in the statements made in the father’s affidavit about what Ms D told him.
In a similar way, the mother’s evidence merely denies predatory or manipulative behaviour by Mr B in a generalised way. She does not address the specific allegations about what the father says she told him and referred to at [54] to [56] of the father’s affidavit. The particulars, if true, are capable of amounting to coercion or control within the meaning of s 4AB of the Act.
The fundamental issue in the interim is whether Mr B may pose a risk of harm, the nature of which requires the Court to be cautious and make orders as a protective measure for the children pending the final hearing.[30]
[30] Marvel & Marvel [2010] FamCAFC 101 at [120]; Lavigne & Gavin [2021] FamCA 612 at [147].
The totality of the father’s evidence, in my view, does raise a level of concern about Mr B acting inappropriately with women, particularly by behaviour that commonly is referred to as grooming or gaslighting. I give weight to the father’s reports of what the mother, Ms C and Ms D told him because it is particularised and not denied with specificity.
There is no evidence, direct or otherwise, capable of supporting an inference that Mr B may be a risk of non-consensual sexual intercourse with young women or girls. However, there is some hearsay evidence which is not specifically denied of Mr B being sexually inappropriate with women.[31] While I acknowledge that the allegations referred to by the father concerning Ms C and Ms D are very dated, the alleged reports by the mother to the father are not so dated. Further, the degree of consistency in the reports said to have been given by all three women gives the impression that Mr B may be capable of grooming, manipulation, or controlling conduct.
[31] At [18(c)] and [18(f)] of these reasons.
This impression represents a potential degree of risk of emotional harm, the extent of which presently cannot be accurately assessed. The potential for emotional harm arises because of the commonly known effects of grooming, verbal denigration, gaslighting and manipulation.[32]
[32] National Domestic Violence Benchbook at Part 3.2.
While I give weight to Mr B’s denials, it must be observed that he would hardly admit to the conduct alleged against him and the ultimate concern of the father that he is emotionally unsafe for the children is not fanciful or unreasonable.
As the children spend half their time not in the mother’s care and Mr B lives in City F, an order that the mother not leave the children alone in the care of Mr B is not unreasonable as a protective measure in the interim, further it assures the safety and welfare of the children.
Such an order will not interfere with the mother’s ability to pursue her relationship with Mr B and if at final hearing there is a finding of no risk posed by Mr B after the evidence is tested, then no final restraint order will be made.
I am not persuaded by the submissions of counsel for the mother that there is simply no evidence at all of risk of harm associated with Mr B being in the children’s presence. Further, I do not accept that the father has set out to confirm a bias against Mr B. The father already had concerns about the safety of the children should the mother have a partner in abstract. Due to his past experiences of Mr B, he sought to clarify if the concerns were valid. If Ms D and Ms C made the statements which the father claims they made, they operated to reasonably confirm the father’s concerns.
An interim hearing is not the proper time to test the veracity of the statements attributed to Ms C, Ms D and the mother. This should be done at final hearing, when the audio recordings or transcripts of the conversations may be admitted into evidence, Ms D may be cross-examined on the contents of her affidavit, and Ms C may be subpoenaed to give evidence.
Further, I do not accept the submission that there is no basis for a restraining order because there has been no police investigation or because the Department of Communities and Justice have not taken any intervention. The assessment of risk to children that applies to invoke State based child protection laws is considerably different to the assessment of what is in the best interests of children pursuant to the Act. Further, experience demonstrates that police and Department of Communities and Justice are less likely to take action when there are pending proceedings in this court. These proceedings are the most appropriate forum to assess the nature of the conduct alleged against Mr B, as it is typically known to be subtle and not readily apparent and needs to be considered in the broader context.[33] At an interim hearing such an evaluation in not appropriate or possible and instead the Court should make orders that are protective of the children.
[33] National Domestic Violence Benchbook at Part 3.2.
It is also necessary to address the submissions of counsel for the mother relating to Isles & Nelissen [2022] FedCFamC1A 97. Nothing which the Full Court said stands for the proposition that protective restraint orders should only be made at an interim stage if the Court can be satisfied of unacceptable risk on the balance of probabilities. Given the nature of the allegations against the Mr B, it is premature to accept the submission that there is no basis whatsoever for a restraint similar to that sought by the father as an interim order.
In all the circumstances and for the foregoing reasons, I consider the alternative restraint sought by the father should be made in the interim. There will be an order that the mother not leave the children alone in the presence of Mr B until further order.
Such an order affords protection to the children against subtle and difficult to detect conduct which is capable of causing emotional harm if it occurs, yet does not in any way curtail the mother from pursuing her relationship with Mr B.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 21 February 2025
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