Carta & Lorenzo
[2024] FedCFamC2F 1179
•27 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carta & Lorenzo [2024] FedCFamC2F 1179
File number(s): NCC 4196 of 2020 Judgment of: JUDGE BETTS Date of judgment: 27 August 2024 Catchwords: FAMILY LAW – Parenting – final hearing – discreet issue – where the Mother seeks an absolute restraint on the child being exposed to firearms – where the Mother has traumatic personal experience involving firearms – where the Father is a keen, responsible gun owner and enjoys hunting – where there is a meaningful relationship between the Father and child without exposure to firearms – whilst there is no unacceptable physical risk to the child being exposed to firearms in Father’s presence and supervision, dismissing the Mother’s application would likely result in the child becoming embroiled in a ‘loyalty conflict’, strain co‑parenting trust and communication and have an adverse impact on the Mother’s long term mental health with flow on adverse effects on her parenting capacity – best interests of child to order restraint on exposure to firearms until 18 years of age. Legislation: Family Law Act 1975 (Cth)
Firearms Act 1996 (NSW)
Cases cited: In the marriage of Kemsley & Kemsley (1984) FLC 91-567
Keane & Keane [2021] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 128 Date of last submission/s: 13 August 2024 Date of hearing: 25 March 2024, 18 April 2024, 1 May 2024, 18 June 2024 & 13 August 2024 Place: Newcastle Counsel for the Applicant: Mr Young Solicitors for the Applicant Mullane & Lindsay Solicitors for the Respondent: N/a – Self-represented Counsel for the Independent Children’s Lawyer: Ms Beckett Solicitors for the Independent Children’s Lawyer: Joplin Lawyers ORDERS
NCC 4196 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CARTA
Applicant
AND: MS LORENZO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
27 AUGUST 2024
THE COURT ORDERS THAT:
1.Until the child X born in 2013 reaches the age of 18 years, the Mother and Father are each restrained from causing or permitting X to be exposed to firearms, being:
(a)A gun or other weapon that propels projectiles by means of gunpowder or other explosive substance;
(b)A spear gun used for the purpose of fishing.
2.The restraint in order 1 does not extend to X’s exposure to: a paintball gun, toy or firearm used for the purpose of carnival games or shows.
3.The proceedings are adjourned to 9.30am on 25 September 2024 for consideration of any costs applications noting that the Independent Children’s Lawyer is obliged to bring a costs application.
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 BETTS
INTRODUCTION
On 30 October 2023 the parties to this proceeding entered into a comprehensive final parenting order in respect of their son X born in 2013. The consent order provided, inter alia, that the parents have equal shared parental responsibility for X and that, from December 2023, X spend equal time with each parent.
The consent order contained this Notation:
A.There is one outstanding issue that needs to be resolved on [a] final basis. That is, the Mother seeks an absolute restraint in relation to the child not being exposed to firearms. The Father indicates through his Counsel that he undertakes not to expose the child to firearms pending the determination of this issue which the Court estimates will take approximately one (1) hour.
The matter has subsequently proceeded to final hearing on this issue. The Mother applies for an injunction in these terms:
That until the child reaches the age of eighteen (18) years, the Mother and Father are each restrained from causing or permitting [X] to be exposed to firearms.
The Father seeks that the Mother’s application simply be dismissed.
The Independent Children’s Lawyer (“ICL”) supports the Father’s position that there be no restraint.
These are the Court’s reasons for judgment on an issue which ultimately has proven to be much more difficult and complex than anticipated, as well as taking significantly longer than one hour to hear and determine.
THE ELEPHANT IN THE ROOM
It is common ground that the Mother has traumatic personal experience involving firearms. To quote from her affidavit of 5 March 2024:
[Quote omitted to comply with Part XIVB of the Family Law Act 1975 (Cth)] [1]
This firearm-related incident profoundly impacted the Mother’s life. She was subsequently diagnosed with post-traumatic stress disorder (“PTSD”) and I accept her unchallenged affidavit evidence[2] that her symptoms included:
regularly reliving the trauma (flashbacks); nightmares reliving the trauma; inability to sleep; hallucinations […]; dissociative feelings as though the world around me was muffled and distant; aversions to certain smells associated with the incident; lack of appetite; and my period ceased and didn’t return until I was 18. My school grades dropped dramatically…
Over the ensuing years, the Mother sought help from various medical and allied health professionals. Now forty-seven, the Mother is a highly functioning member of society, working as a professional. She is both highly articulate and highly intelligent.
Having processed her experiences as best she can, the Mother no longer meets the criteria for a PTSD diagnosis, but still suffers from residual trauma symptoms, including intrusive thoughts and dreams, which have been further triggered in the course of these proceedings.
X has never been told what happened in this incident; both parents have shielded him in this respect.
WHY THE FATHER OPPOSES THE INJUNCTION
This incident may be the ‘elephant in the room’ but it is by no means the whole story of this case.
The Father is a fifty-two year old professional and keen gun owner. He has had a firearms’ licence for most of his adult life. He currently has numerous firearms which he stores in a secure gun safe in an outbuilding on his property in accordance with the applicable NSW legislation. His partner, also a licensed firearm owner, also stores a firearm in the safe. X is aware the gun safe is there and that there are guns in it.
The Father lives on acreage and uses his firearms regularly to shoot pests at the property. He sometimes does target shooting with an air rifle, a sport one of his neighbours engages in. He enjoys hunting trips but only manages a couple of those on average per year as, on his own admission, he is “somewhat time poor.”
The Father accepts that the incident the Mother experienced was a devastating event. But he opposes X being restrained from being exposed to firearms for the rest of his childhood - contending that the Mother’s trauma is not X’s trauma and need not become so.
The Father has very fond memories of being exposed to firearms when he was a child, some of which he has shared with X. He considers one of his firearms to be a family heirloom, it having been handed down to him by his late father. The Father would like X to be able to share in these sorts of experiences with him if X wants to, rather than completely depriving X of any such opportunity. He also raises concerns about just how broadly the injunction might operate and whether it might lead to further disputes and litigation. For instance, would it prohibit X using a target shooting gun at a Carnival stall? Would it prohibit X using a paintball gun at a birthday party?
THE HEARING & MATERIAL RELIED UPON
The matter was originally set down for hearing on 25 March 2024. Mr Young of counsel appeared for the Father, Ms Beckett of counsel appeared for the ICL and the Mother was self‑represented.
The parties relied upon the following documents:
Father
Outline of Submissions filed 20/03/24; Father’s affidavit filed 23/01/24; and Father’s further affidavit filed 18/3/24 (filed with leave).
Mother
Case Outline Document filed 24/03/24; Mother’s affidavit filed 05/03/24; and Mother’s further affidavit filed 24/03/24 (filed with leave).
The Father’s initial affidavit was relatively brief. At that stage he was willing to compromise his position in that he annexed a proposed restraint which would operate until X turned twelve. To avoid difficulty about the scope of the injunction, he proposed that it be limited to a firearm or other weapon “that propels projectiles by means of gunpowder or other explosive substance”. There was a specific carve-out for paintball guns, toy firearms, firearms used for carnival games or shows, or a spear gun.
The Mother’s initial affidavit was voluminous; amongst other things she annexed scholarly articles about the danger of firearms and related public health concerns. Her focus was very much directed at the risk of physical harm to X arising from possible exposure to firearms. That is, her focus was very much directed at an ‘unacceptable risk’ argument.
Given the content of her affidavit, the Father then decided to file a second affidavit in response which, in turn, prompted the Mother to file another affidavit responding to his. Both were given leave to do so.
When the matter came on for hearing, the Father expressly withdrew his compromise proposal and simply sought dismissal of the Mother’s application. To use the colloquial, ‘all bets were off’.
The hearing itself occupied the whole day; it was highly contentious, involving cross-examination of both parents and, in the Mother’s case, spirited oral submissions. Various exhibits were tendered.
In the course of further reviewing the evidence and submissions for the purposes of delivering a judgment, I considered that further submissions were required. The case was more nuanced than a mere consideration of ‘unacceptable risk’ as the Mother primarily advocated. In my view there were other issues ‘hiding in plain sight’ which bore on the question of whether or not to impose the injunction.
To that end, I had the matter re-listed on 18 April 2024 at which time I handed down the following self-explanatory order:
NOTING THAT:
A. the final hearing concluded on 25 March 2024 with judgment reserved; and
B.that in the intervening period the Court has had the opportunity to further review and consider the evidence and submissions presented at the hearing; and
C.in the event the Court does not conclude that [X]’s exposure to firearms per se would place him at unacceptable risk of physical harm as contended by the Mother; but that
D.orders made effectively ‘permitting’ the child to be exposed to firearms as contended by the Father (and supported by the ICL) give rise to other relevant matters going to the child’s best interests which the Court does not consider have been adequately addressed;
E.the Court invites further submissions from each of the parties as to the potential adverse impact that the making of such an order may have on:
(i) the Mother’s emotional capacity to continue to parent the child;
(ii)the Mother’s emotional capacity to continue to co-parent the child with the Father in an equal time arrangement, NOTING THAT successful equal time orders require a high degree of parental cooperation and minimisation of conflict;
(iii)the potential adverse impact on the child’s best interests of being ‘caught up’ in the parental dispute about firearms, including the parents’ divergent views and the child’s potential exposure to the Mother’s fear and/or distress about the child being exposed to firearms;
NOTING the Mother’s own traumatic childhood experience with firearms and her expressed and seemingly genuine fears as to the danger that firearms pose to the child, NOTING that the Father already has a meaningful relationship with the child without the child having been exposed to firearms, and NOTING the decision of the Full Court of the former Family Court of Australia in Keane & Keane [2021] FamCAFC 1, and the cases cited therein;
AND
(iv)any other relevant matter arising from (i) – (iii) above, and particularly from the Father’s perspective any countervailing or other considerations which militate in favour of a finding that it would be in the child’s best interests to make an order effectively ‘permitting’ the child to be exposed to firearms.
IT IS ORDERED THAT:
1. The hearing be re-opened.
2.The Court will hear from the parties as to a timetable for further written submissions and/or oral submissions.
The proceedings were adjourned to 1 May 2024 on which date the Mother advised that she wanted not only to make further submissions but to lead further evidence. Filing directions were made and the proceedings adjourned for further hearing.
The Mother brought her foreshadowed application, supported by a further affidavit filed 22 May 2024. Amongst other things, her further affidavit annexed a psychological report from a Mr F of G Psychology that she had commissioned in the interim. The Father did not oppose the Mother’s application to re-open the evidence, subject to the evidence being relevant and the Mother paying his costs.
The proceedings came back on for further hearing on 18 June 2024 at which time the Court ordered that the evidence be re-opened and that the Mother be permitted to rely upon her affidavit of 22 May 2024 although various paragraphs and annexures were struck out. Neither the Father, nor the ICL, wished to further cross-examine the Mother. In the circumstances, the matter was adjourned to 9.30am on 13 August at which time the parties made closing submissions. Ms Beckett’s submissions were oral; the Mother and Mr Young’s oral submissions were supplemented with written submissions. Judgment was again reserved.
I have had regard to all of the above material in arriving at this decision.
CHRONOLOGY OF EVENTS
Prior to the parents meeting
The Father was born in 1971, the Mother in 1977.
The parents were each exposed to firearms as children and their early childhood experiences could not have been more different.
The Mother was raised in rural Queensland. Prior to the traumatic incident she experienced, she already disliked firearms. As a child, she had witnessed the maternal grandfather shoot and kill numerous animals, from pests to animals which were shot for consumption by the family. As an animal lover, she found it traumatic to see animals being shot. I accept her evidence that she can still clearly recall:
“the screams of [the animals] running for their lives. These were traumatic experiences for me as a child and have carried with me.” [3]
The Father was raised around firearms; hunting and target shooting were a normal part of his upbringing from a young age. He has fond memories of shooting with his father and grandfather and other extended family members.
The Father first obtained his own firearms licence as a young adult. But when it came time to renew it several years later, he instead let it lapse. He found that he was too busy doing other things; shooting had not proven a high priority.
The relationship
By way of overview, the parents commenced an intimate relationship in 1997; they became engaged in 2011; they separated in 2015 when X was around two years old; they briefly reconciled in 2018 though they remained living separately and apart; final separation occurred in mid-2019.
Early on in the parents’ relationship the Mother told the Father what had happened in her childhood and that she did not like guns. She says that during the relationship he concealed his interest in firearms from her and that she can now see that he was at times dishonest with her in that respect. He disagrees, contending that the Mother knew about his interest in firearms and that her staunch opposition to them is an attempt to re-write history.
Both parents were credible witnesses and in my view both of them are right to some extent. I consider that the Father’s interest in guns was, understandably, an awkward topic. In the early days of their relationship, I consider that both parents put the issue into the ‘too hard’ basket. The Mother’s attempts in her affidavit to now question the Father’s past experiences with firearms reflect the fact that it was not a topic they actively discussed. And while there is no doubt that during the relationship the Mother did become aware of the Father’s firearm use, he clearly sheltered her from it to some extent. Once aware, the Mother largely ‘turned a blind eye’, never herself showing any interest in joining him.
In 2007 the parents travelled to Queensland and the Father says he spoke to the maternal uncles about going hunting. The Mother was not party to the discussion. Nothing turns on it.
In 2009, the Father joined a hunting club. In 2009 he successfully applied to the NSW Firearms Registry for a firearms licence, his nominated purpose being “recreational hunting/vermin control”. [4] Sensitive to the Mother’s views, he did not tell the Mother about any of it. Nor did he store his firearms at their home; he kept them at a secure storage facility.
The Mother must however have become aware of the Father’s hunting activities by no later than Christmas 2012. At that time she bought the Father a book regarding “outdoors living”. The back cover refers to hunting adventures, colourfully describing the author as a farm boy who became a hunting guide in the wilderness “armed with a backpack, a rifle and a dream”. The Mother arranged for the author to autograph the book, at which time the author also handwrote the Father the following note:
“[Mr Carta], my friend “down under”. Safe travels and good hunting to you!” [5]
I accept the Mother’s oral evidence that she bought that particular book at the Father’s request, and that book-giving was something of a tradition between them.
At work in 2012, the Mother met a Mr J who owned a rural property. The Father says that the Mother specifically told him that Mr J had invited him to go shooting there. The Mother disagrees; she says that Mr J told her that she and the Father were welcome to come to his property to go “camping or four wheel driving.” I prefer the Father’s evidence and in any event I accept that he did subsequently contact Mr J and go hunting on his property. The Mother knew when he was going there. I also accept the Father’s evidence that in mid-2013, he emailed the Mother to confirm the details of a hunting trip that he was taking with a number of people including Mr K. [6]
Slowly but surely, the Father’s firearm use was becoming ‘normalised’ in the parents’ relationship, though never embraced by the Mother who herself wanted no part in it.
There is one major factual dispute relating to an event which occurred in 2013.
The Father deposes that he came home late from hunting that day, not having had time to return the firearms to the storage facility. So he says he removed the bolts from the rifles, leaving the rifles themselves in the car and only bringing the bolts inside the home. Notably, he says that he did not want to bring the rifles inside “as I did not want to upset [Ms Lorenzo] by having the firearms in the house.” He says that they discussed the situation and that she positively asked him to bring the rifles inside the house as it was safer than leaving them in the car. He says he then brought the rifles inside, returning them to storage the next day. [7]
The Mother deposes that she was changing the sheets when she came across a rifle case poking out from under their bed; that she confronted him about hiding it there and that he said he was going shooting that weekend; she told him to “get it out of the house” and a heated argument then ensued and he took the rifle case away.
I find the truth to be an amalgam of what each party says. The Father found it inconvenient to return the rifles to the storage facility on this occasion and had removed the bolts from the rifles. He hid the rifle case under the bed, which was not inherently dangerous as the bolts had been removed. The Mother found the rifle case, leading to an argument. I do not accept that the Mother asked him to bring the rifles inside the house at any stage. After their argument he took the rifles and bolts away somewhere; they were never brought into the house again.
I do not accept the Mother’s evidence that this is when she first became aware of the Father using firearms and going hunting. Rather, it was the first time she was physically confronted with the firearms themselves, which made her angry and upset. It also flushed the firearms issue ‘into the open’ once and for all.
Some time later that year the Father changed the storage address for two of his firearms. He no longer kept those firearms at the storage facility; they were now stored at the paternal grandparents’ home.
It was around this time that X was born in 2013.
As evidence that the Mother knew and approved of his hunting activities, the Father points to an email she sent him in late 2013 about buying him a portable GPS. Her email suggests that the GPS might be appropriate for him, saying:
“Take it hiking. Take it hunting. Take it on the water.” [8]
The Father also points to a personal budget forecast that he sent to the Mother. The forecast included an annual allowance of $50 for his membership of the hunting club and an annual allowance of $50 for membership of a shooting association. There was also an unspecified allowance for “hunting’ and “hunting equipment”. [9]
The Mother sent the late 2013 email; she saw his budget forecast. Contrary to what the Mother says, she was (or ought to have been) aware of the Father’s hunting activities. Provided she was not personally exposed to the firearms, the Mother essentially acquiesced in the Father’s activities. But equally, the Father overstates how much the Mother genuinely ‘supported’ his hunting activities; the topic remained awkward and at times contentious.
In mid-2014 the Father successfully applied to renew his firearms licence for another five years.
First separation
During the parents’ first separation, X stayed living with the Mother. She made it clear to the Father that she adamantly opposed X being exposed to firearms. When the parents attended mediation in late 2015, they agreed upon a Parenting Plan which, at the Mother’s insistence, specifically recorded that:
18.[Mr Carta] agrees he will not allow [X] to have access to or be exposed to any firearm or spear fishing equipment, including any replica or toy firearm.
X was just about to turn two. The Parenting Plan expressly envisaged a review after twelve months.
Parents resume their relationship
When the parents resumed their relationship in late 2018, firearms remained a contentious issue. I accept the Mother’s evidence that when they reconciled she specifically asked the Father whether he still owned firearms and had a firearms licence. In late 2016, criminals had accessed the gun safe area at the storage facility, and some of the Father’s firearms were among those stolen. [10] The Father told the Mother that all his guns had been stolen and that he was letting his firearms licence lapse. He in fact still owned a number of firearms and likely told the Mother this to avoid argument.
Post-separation
The parents finally separated in mid-2019. At or about that time, in mid-2019, the Father again successfully applied to renew his firearms licence for another five years.
On 13 November 2020 the Father filed his Initiating Application. On 29 January 2021 the Mother filed her Response. The Mother sought, inter alia, a firearms restraint.
THE LAW
These proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Some of those provisions have been recently amended but, as the final hearing commenced prior to the amending Act, the former provisions continue to apply.
Mr Young concedes that both the circumstances and the terms of the Mother’s application are “unusual” and that the Father’s legal representatives were unable to find any comparable case or precedent. [11]
The logical starting point is to identify the source of the Court’s power to impose the proposed restraint.
A parenting order
Mr Young submits [12] that the proposed restraint “presumably” falls within the definition of a ‘parenting order’, defined in s 64B(2)(i) of the Act as an order dealing with
“any aspect of the care, welfare or development of the child”.
I respectfully agree that the restraint constitutes a ‘parenting order’. When making a ‘parenting order’ in relation to a child, s 60CA of the Act requires that the Court must regard the best interests of the child as the paramount consideration. The relevant ‘best interests’ considerations are prescribed in the former s 60CC, subsections (2), (2A) and (3) of which are relevantly in these terms:
Primary considerations
(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 harm from being subjected to, or exposed to, abuse, neglect or family violence.
(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).
Additional considerations
(3) 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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(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;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
An injunction
The Mother’s proposed restraint separately engages the Court’s injunctive power in s 68B of the Act, which is relevantly in these terms:
SECTION 68B INJUNCTIONS
68B(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may grant such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child…
At the hearing, the parties argued the matter by reference to the ‘best interests’ considerations in s 60CC; s 68B(1)(a) was not much emphasised.
I will begin by considering the restraint application through a ‘best interests’ lens. But as s 68B is also engaged, I propose to address the requirements of that section as well.
WEIGHING UP X’S BEST INTERESTS
Rather than weighing up the overlapping s 60CC considerations subsection-by-subsection, which is inherently repetitive and needlessly formulaic, I instead propose to weigh the s 60CC considerations holistically by reference to the arguments as presented.
Before doing so, I want to address one particular matter – the suggestion that dismissing the Mother’s application is ‘neutral’ in its effect on X. That is, the suggestion that X will be free to independently choose to develop an interest or non-interest in firearms. This is simplistic and naïve. I have no doubt that, given her visceral opposition to firearms, the Mother will strongly try to dissuade X from developing any such interest. Likewise, despite sanguine statements that he would not try to push an interest in firearms onto X, [13] I have little doubt that in the absence of a restraint the Father will likely encourage X to explore such an interest – particularly if he believes that the Mother is unfairly influencing X in the other direction. This is the situation that X will find himself in should the Mother’s application be dismissed and no restraint imposed.
Benefits to X of ‘permitting’ exposure to firearms
There are potential benefits to X in having the opportunity to be exposed to firearms with the Father.
Firearm use is a much-loved hobby for the Father. Although the Father and X already have a meaningful relationship, the opportunity for he and X to go hunting and/or otherwise use firearms together would potentially add another valuable aspect to their relationship, ie. it would potentially make their relationship even more meaningful.
Firearm use is also a lawful activity, albeit highly regulated. The Father contends that it is not in X’s best interests to close off to X the sorts of opportunities to use firearms that the Father has himself enjoyed.
Imposing a restraint on a lawful activity is inherently somewhat ‘unnatural’. Absent a restraint, X will be ‘theoretically free’ to either pursue, or not pursue, an interest in firearms in his own right: see paragraph [68] of these Reasons to which I will return later.
Any restraint carries with it the risk of future litigation in the form of contravention proceedings; the Mother said she would bring contravention proceedings if necessary and I accept that to be so. The potential breadth of the Mother’s proposed restraint is also problematic as it may capture activities that are otherwise entirely harmless. The Father enjoys spear fishing – would showing X his spearfishing gun breach the injunction? The Father’s neighbours, who the Father visits from time to time, also have firearms, as do some of his friends’ parents who have discussed with the Father their mutual interest in firearms and hunting. The Father deposes [14] that it is “not possible for me to completely prevent [X] from having any exposure to firearms in the longer term” and that a restraint “will almost certainly lead to further dispute between [Ms Lorenzo] and I, which I wish to avoid if at all possible.”
Moreover, the Father owns multiple firearms, including some high-calibre weapons. He has no intention of storing them other than at his home, nor is he required to. So whether or not the restraint is imposed, there will still be firearms at the Father’s home where X will be spending half of his time.
Disadvantages to X of permitting exposure to firearms
Physical dangers?
Section 60CC(2)(b) of the Act refers to protecting children from physical harm. But as this case does not involve ‘abuse, neglect or family violence’ that subsection is not directly engaged. However, questions concerning the general physical safety of X are clearly relevant considerations and can arise pursuant to the ‘catch-all’ provision of s 60CC(3)(m).
The Mother focused much of her evidence and submissions on the argument that firearms are inherently dangerous and that the potential dangers associated with their accidental or deliberate misuse are catastrophic. For that reasons it is convenient to deal with physical risks first.
The Mother’s unwavering position is that, as firearms pose a potential risk of catastrophic injury or death, she wants to “ensure [X] is protected to the greatest possible extent”. To that end she has provided the Court with numerous scholarly articles addressing the link between firearms, injuries and death. Though there are limits to the weight that can be placed upon those articles, many of the observations therein are no more than common sense, or are otherwise unsurprising. For instance - that increased access to firearms is associated with increased rates of firearm deaths; that household firearms kill more people than illegal firearms; that firearm homicides are mostly determined by firearm availability and ownership, not mental illness. [15]
It is obvious that by their very design, firearms carry with them inherent physical dangers. Reasonable people can come to diametrically opposed views about firearms. To many people, firearms are a useful (and in some cases necessary) item in their day-to-day life. To others, they are abhorrent weapons of destruction.
It is helpful to begin by considering the applicable State legislation. In New South Wales, the Firearms Act 1996 (NSW) provides that a child aged twelve or older may apply for, and be issued with, a “Minor’s Firearms Training Permit”. Before applying, the child must have the consent of a parent or guardian and must have completed a firearms safety training course in accordance with the relevant regulations. Once issued, the permit allows the child to possess and use certain prescribed firearms under the supervision of a licenced firearms holder which in this case would include the Father. [16]
But while State law allows X to be exposed to firearms, that is not a complete answer to this case so much as a starting point. X’s individual circumstances are the determinant.
The Mother questions the Father’s attitude to firearm safety given the 2013 incident involving the rifle case. But this was a ‘one-off’ event; the Father has an appropriate gun safe at his property which he did not have back then. He is appropriately licenced and I am satisfied that he takes his responsibilities as a firearm owner seriously.
The Mother says that firearms pose heightened physical risks to X as a result of him having slower cognitive processing ability and being somewhat impulsive. The Father disagrees.
It is true that X is a sensitive boy who has experienced some emotional and behavioural difficulties since his parents finally separated. In mid-2020, he was referred to his school psychologist Ms H as a result of attentional and behavioural difficulties in the classroom – including some reactive, impulsive and fidgety behaviours in class and some social difficulties.[17]
Following further investigations Ms H noted in January 2021 that X had elevated scores for hyperactivity / impulsivity; learning problems / executive functioning; defiance / aggression; and an elevated score for ADHD, primarily hyperactive-impulsive presentation. [18] Further review in October 2022 confirmed that while X is a kind, honest and sensitive student, he continued to have difficulties with sustained focus, that he could be inattentive, at times impulsive (leading to social issues) and that he struggled to organise himself and complete written tasks. His teacher in particular thought that he was quite anxious, inattentive and hyperactive. Notably his parents reported no real issues at home; X’s difficulties manifested in the school setting. [19]
Between November 2021 and August 2023, X participated in eleven psychological sessions with a clinical psychologist, Ms N to help him cope with his disturbed emotions.
Mr E, Consultant Psychologist, assessed X’s intelligence and whether he had ADHD. In his report of 28 July 2023 [20] he advised that:
·on the Wechsler Intelligence Scale for Children, X has somewhat slower processing speed than average. But across all domains of functioning he performs at a high level overall;
·X does not have ADHD but would benefit from specific learning supports as recommended by Ms H.
On the evidence I am satisfied that X is an intelligent boy who functions at a high level, albeit that he processes things somewhat slowly. His issues manifest at school rather than at home. I do not consider that X’s cognitive makeup meaningfully adds to his potential risk profile associated with potential exposure to firearms.
The Father does not consider there is any risk to X in being exposed to firearms in the Father’s presence and under his supervision once he is twelve years of age or older. His evidence is that if X expresses an interest in firearms then the Father will teach him firearm safety. He would never allow X to be exposed to firearms in an unsafe manner and would never allow X to use a firearm unless X held the appropriate licence. [21] I accept that this is the Father’s genuine view and that, insofar as the Father could protect X from physical risks, he would. Ultimately I do not consider that X’s potential exposure to firearms in the Father’s care places him at unacceptable risk of harm. There will always be physical risks, but those risks are not unacceptable.
Emotional dangers to [X]
X is presently in Year 5 at B School. He has no particular interest in firearms at this stage. Like other friends his age, X does sometimes like to play with toy guns although it is noteworthy that the Mother does not permit even toy guns in her home; she has thrown away toy guns he has brought home with him (including a Nerf gun), encouraging him to play with something else instead.
To date, the parents have successfully shielded X from their dispute about firearms. It is not something he has had to deal with. A restraint can maintain that ‘status quo’ by effectively prohibiting firearms from X’s life.
If no restraint is imposed, X is regrettably going to find himself in the middle of a ‘tug-of-war’ between his parents on the firearms issue. X lives in an equal time arrangement which, to be successful, requires good parental cooperation and trust. The potential introduction of firearms into X’s life will likely strain that cooperation and trust to breaking point.
A sensitive child, X has already shown himself to be particularly vulnerable to loyalty conflicts as observed by Dr D in her report of 12 October 2023. [22]
That loyalty conflict would likely be exacerbated and highly emotionally charged as a result of the Mother’s past traumatic firearm experiences. I accept the Mother’s latest affidavit evidence that should X be exposed to firearms, she fears being re-traumatised and her PTSD symptoms and anxiety exacerbated. [23] In order to address the potential adverse impacts on her of an order permitting X to be exposed to firearms, and to assist the Mother to safeguard her emotional capacity to parent X, she has in fact made contact with various different organisations, and an expert in trauma and recovery.
The Father and the ICL elected not to further cross-examine the Mother on her latest affidavit. This is understandable given that her affidavit specifically deposed that:
13.If an order is made preventing [X] from being exposed to firearms, I am confident my current distress and symptoms will resolve and any future distress or adverse psychological impact on me will be avoided.
14.Regardless of the potential adverse impacts on me, should an Order be made allowing [X] to be exposed to firearms, I would respect the decision of the Court and would seek any professional assistance if required in order to appropriately manage any psychological distress that I may experience as a result. I would not allow this distress in any way to impact my ability and emotional capacity to parent [X].
…
17.Despite my exposure to significant childhood trauma […] I have proven strength, immense resilience and am a high-functioning, intelligent individual with high-level emotional intelligence, mental health literacy and ability to overcome adversity, and positively contribute to society. I am naturally an extremely compassionate, empathetic and kind individual. I am dedicated to improving the lives of others who may also have living or lived experience of trauma. I have integrated my trauma into my life, not avoided or isolated it, it is my experience, part of my story but it does not define or control me. Lived experience of a trauma does not equate to not doing well in life or not being able to successfully parent a child. I hold that my lived experience of trauma and resilience has made me a stronger person and parent.
The Mother was effectively contending that her parenting capacity would not be adversely affected if the Court dismissed her application. Her evidence is that she has sought, and will always seek, any assistance that she requires to support her to be the best parent she can be for X; she does not shy away from seeking help where needed. [24]
I accept the Mother’s genuineness in this respect, but in my view serious risks remain. In this respect her latest affidavit annexes an expert report she has obtained from Mr F, Psychologist of G Psychology. [25] The report, dated 20 May 2024, is independent in that Mr F is not the Mother’s treating psychologist; its stated purpose was to help the Court understand how X’s exposure to firearms may re-ignite the Mother’s trauma, distress her, and impact the quality of the mother/son relationship; and the report was written for the benefit of the Court, not the Mother, the expert having abided by the Expert Witness Code of Conduct provided for in the NSW Uniform Civil Procedure Rules.
According to Mr F, the Mother was tense and teary when re-telling her trauma. At times her speech was rapid and tangential and her eye contact poor. She was able to recount horrific details of the incident:
[Quote omitted to comply with Part XIVB of the Family Law Act 1975 (Cth)]
The Mother talked about her subsequent shock, sadness, anger, anxieties and at times feelings of detachment or dissociation. She reported that certain smells triggered overwhelming anxiety, causing her to vomit.
The Mother said her functioning was good prior to these proceedings and that needing to re‑live her trauma was upsetting, her preference being to avoid the topic altogether. I accept this to be true.
When administered the Personality Assessment Inventory (‘PAI’), the Mother responded appropriately, her results showing that she potentially had difficulties in the following areas, meriting further inquiry:
·irrational fears;
·physical signs of depression; impact of traumatic events; and
·compulsiveness or rigidity.
According to Mr F, the Mother had generally positive and stable self-evaluation allowing her to be resilient and adaptive “in the face of most stressors”. She also had an extensive social support system which is a favourable prognostic sign for future adjustment.
In response to being administered the Post-traumatic Stress Disorder Checklist, the Mother met the criterion for symptoms of ‘intrusion’, but not for ‘avoidance coping’, ‘negative alterations in cognition and mood’ or ‘hyperarousal’. Overall she scored 25 points on the relevant criteria scales, falling short of the 38 points necessary for a current diagnosis of PTSD.
Overall, Mr F concluded that the Mother suffered from sub-threshold or residual symptoms of post-traumatic stress, but that her functioning (including parenting) appeared to be well-intact. He considered that the Mother knowing that X would be exposed to firearms would no doubt be a considerable source of stress for her and that it is possible that X being exposed to firearms would exacerbate the Mother’s residual trauma symptoms.
Mr F suspected that rather than fixating on X’s exposure to firearms (ie. repeatedly asking X about his exposure to firearms and whether his father is being safe with firearms), the Mother will avoid talking with X about all matters relating to firearms. For instance, she would not want to look at photos of X with his father on hunting trips as this might trigger anxious distress.
Mr F did not believe that X being exposed to firearms will re-trigger the Mother’s PTSD, although X being exposed to firearms will likely worsen her existing residual post-traumatic stress symptoms, albeit at a level which is unlikely to cause her to re-develop PTSD.
Mr F was also concerned that the Mother may develop separation anxiety in response to X being exposed to firearms – causing her to feel markedly anxious and distressed when X is at the Father’s house. Her separation anxiety might negatively impact her functioning with respect to hobbies, socialising, and work. Mr F suspected that once X returned to the Mother’s care, her separation anxiety will resolve, and her functioning (including her ability to care for X) will improve considerably.
Mr F believed that the Mother would still be able to continue parenting X and that the biggest impact of X being exposed to firearms will be on the Mother’s psychological wellbeing and functioning which will worsen in X’s absence, but improve when he returns to her.
Under the heading “Recommendations”, Mr F considered that the Mother was still dealing with sub-threshold or residual symptoms of post-traumatic stress. He recommended that if she wanted to treat her trauma-based symptoms, namely her intrusive dreams, and avoidance of external trauma-related stimuli which trigger distress, she should obtain a GP referral to access up to ten Medicare-rebated sessions with a psychologist. He noted that there are also psychiatric medications available, though a doctor was better equipped to advise in this respect and the Mother was resistant to taking medication in any event. He said that if the Court granted an order for exposure to firearms, then the Mother’s GP / psychologist should monitor her for separation anxiety disorder, in which case cognitive behavioural therapy (‘CBT’) would be indicated.
I accept the Mother’s unchallenged affidavit evidence that having to re-live these traumatic experiences in the course of these proceedings has again triggered some of her PTSD symptoms, including:
flashbacks re-living the experience (intrusive thoughts); recurrent nightmares regarding [the incident] and scenarios including firearms; remembering certain smells […] and location where [the incident occurred]. I have also experienced symptoms of anxiety. Prior to this I did not regularly think about [the incident] or present with these symptoms.
and that reading contemporaneous newspaper articles about the incident annexed to the Father’s affidavit:
including graphic details of [the incident] were particularly upsetting and triggering, which I had an immediate adverse physical response to including wanting to vomit…[26]
Ultimately, I accept the evidence and opinions set out in Mr F’s report. The serious concerns he raises cannot be cast to one side simply because his focus was on X’s positive exposure to firearms rather than the making or non-making of the restraint sought by the Mother; in practical terms this is a distinction without a difference. [27] Both parents will be exposing X to their own viewpoint and a discussion about the incident will likely come much earlier.
In Keane & Keane [2021] FamCAFC 1, the Full Court of the Family Court reviewed the line of authorities concerning the adverse impact on the primary parent of making an order that the other parent spend time with a child. As I read the decision, it is not necessary to show that the discernible impairment on the part of a parent needs to rise to the level of ‘unacceptable risk’ to the child before it can be weighed up and acted upon by the Court. The critical question is whether the making of the order in question would discernibly impair the primary parent’s parenting capacity so as to erode the potential benefit that would otherwise flow to the child from making the order.
As an aside, I would also draw a distinction between the facts of this case, and the facts common to the line of authorities discussed in Keane & Keane (supra). In those cases, the Court was weighing up the potential loss of a parent/child relationship. The adverse impact on the primary parent’s parenting capacity had to be sufficiently significant as to warrant such loss. But regardless of the outcome of this case, both parents will continue to have a meaningful relationship with X. There are a great many other activities the Father and X can engage in which give meaning to their relationship – just as they have to date.
Overall, I am satisfied on the evidence that dismissing the Mother’s application would:
(a)place X in an emotionally-charged loyalty conflict from which he has to date been successfully shielded;
(b)likely strain co-parenting trust and communication to breaking point;
(c)either have, or be likely to have, a discernible adverse impact on the Mother’s long‑term mental health with flow-on adverse effects on her parenting capacity.
Further to these matters, I also consider that dismissing the Mother’s application would result in substantial conflict being injected into the equal time co-parenting arrangements, placing them (and X) under increased stress and in turn risking their breakdown and consequent further litigation. There are many potential ‘fronts’ for conflict once trust and cooperation are undermined. In my assessment there is a greater risk of litigation in not making a restraint than in making one – particularly if the restraint is carefully drafted.
BEST INTERESTS CONCLUSION
As the moving party, the Mother carries the onus of establishing that the restraint should be imposed. Overall, she has persuaded me that in the circumstances of this case, it would be in X’s best interests to impose a restraint. But it will not be in the form she seeks. I will return to the form of the order shortly.
THE INJUNCTION POWER IN SECTION 68B
In my view, the Mother’s proposed restraint constitutes both an injunction for the “personal protection” of X within s 68B(1)(a) of the Act, and an injunction for the “personal protection” of the Mother within s 68B(1)(b)(i) of the Act. “Personal protection” are words of wide import. In In the marriage of Kemsley & Kemsley (1984) FLC 91-567, the Full Court of the Family Court held that the phrase not only refers to physical safety but also to mental or emotional wellbeing. In the forty years that have since elapsed, public awareness around mental health has only increased.
There is force in the Mother’s submission that: [28]
While I would respect the decision of the Court if an Order is made allowing [X] to be exposed to firearms, and I would seek any treatment necessary to ensure my parenting capacity is not impacted, it is my submission that it would be unreasonable for me to have to endure this and any potential mental anguish, time and expense if it can be completely avoided by an Order not permitting [X] to be exposed to firearms. I’ve had more than my fair share of trauma. It is my submission that your Honour take a precautionary approach and not make an Order allowing [X] to be exposed to firearms and also prevent any further psychological suffering for me.
The Father submits that: [29]
Whatever…the extent of the aversion that the Mother now says she currently feels about firearms, there is no rational reason for imposing an extraordinary exclusion from them that relates to [X], nor reason (let alone evidence) suggesting it will somehow be in [X]’s best interests to have such exclusion imposed.
He separately contends that a restraint would be a ‘special order’; [30] describing such an order as ‘extraordinary’. [31]
I do not consider the Court’s proposed restraint to be ‘extraordinary’ or ‘special’. X has had no ‘exposure’ to firearms in his life; in his individual circumstances it is better to keep it that way, at least while he is a child. Restraint from exposure to firearms is time-limited; it is not as though X is forever shut out from such an interest. As an adult, X can make his own decisions.
Moreover, I would observe that many, if not most, restraining orders made by this Court restrain a parent from doing something that would otherwise be lawful. There is no need to restrain what is already unlawful.
It is of course a slippery slope for a Court to restrain lawful activity merely because one or other parent has a strong personal aversion to it. But the Mother’s aversion in this case goes far beyond that; it reflects a lived, traumatic experience. In that sense this is a most unusual case.
It is true that a restraint may result in X having to ‘miss out’ on firearm-related activities with the Father, family members, friends and neighbours. But it is a weighing-up exercise; there are no perfect solutions.
Overall, I consider a restraint to be “appropriate” within the context of s 68B of the Act.
CONCLUSION & ORDERS
For these Reasons, I intend to impose a restraint that utilises the Father’s proposed wording and in that sense hopefully helps to avoid further conflict and litigation. I do not consider the restraint to be unworkable; the Father keeps his firearms secure and he can let family, friends or neighbours know that X cannot be exposed to their firearms.
Out of an abundance of caution, I will specifically include spear guns in the restraint.
I consider the restraint to be sufficiently clear and self-explanatory. It is not intended to stop X from having fun at carnivals and to the extent that such activities potentially ‘inculcate’ in X’s mind a positive view of firearms, the Mother is going to have to bear that. The line has to be drawn somewhere; this is the ‘appropriate’ best interests line.
I will hear the parties as to costs.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 27 August 2024
[1] Endnote omitted to comply with Part XIVB of the Family Law Act 1975 (Cth).
[2] Mother’s affidavit filed 22/05/24, paragraph 6
[3] Mother’s affidavit filed 05/03/24, paragraphs 20 - 22
[4] Exhibit 5
[5] Father’s affidavit filed 18/03/24, annexure “C”
[6] Father’s affidavit filed 18/03/24, paragraph 15 and annexure “F”
[7] Father’s affidavit filed 24/01/24, paragraph 37
[8] Father’s affidavit filed 18/03/24, annexure “G”
[9] Father’s affidavit filed 18/03/24, annexure “H”
[10] Exhibit 2. See also Mother’s affidavit filed 05/03/24, paragraph 38
[11] Father’s Outline of Submissions, paragraph 1
[12] Ibid., paragraph 19
[13] Father’s affidavit filed 18/03/24, paragraph 21
[14] Father’s affidavit filed 24/01/24, paragraphs 41 & 44
[15] I particularly note from these articles that: a 2017 report by Australian Institute of H
[16] See ss 32 & 53 of the Firearms Act (1996)(NSW) which for convenience were marked as exhibit 1
[17] See Ms H’s report of 25/06/20 (exhibit 3)
[18] See Ms H’s report of 18/01/21 (exhibit 3)
[19] See Ms H’s report of 26/10/22 (exhibit 3)
[20] Mother’s affidavit filed 05/03/24, annexure “MSL-5”
[21] Father’s affidavit filed 24/01/24, paragraphs 42 & 43
[22] Exhibit 4
[23] Ibid., paragraph 12
[24] Ibid., paragraphs 22 & 23
[25] Ibid., annexure “MSL-4”
[26] Ibid., paragraphs 9 & 10
[27] I refer back to paragraph [68] of these Reasons
[28] Mother’s Additional Outline of submissions, page 6, first bullet point
[29] Father’s Outline of Submissions filed 20/03/24, paragraph 13
[30] Ibid., paragraph 45
[31] Father’s Additional Outline of Submissions, paragraph 15
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