Hackshaw & Gadley
[2025] FedCFamC1F 90
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hackshaw & Gadley [2025] FedCFamC1F 90
File number(s): ADC 2390 of 2022 Judgment of: BERMAN J Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – INJUNCTIONS – Where the matter was listed for final hearing in relation to parenting matters – Where the parties reached agreement and Consent Orders were made – Where the applicant pressed an order of injunction – Where the respondent opposed the same –Where evidence was heard in respect of the discrete issue – Consideration of the evidence – Consideration of the legal principles – No evidence to support an injunction being made – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 68B, 114. Cases cited: Bennett v Bennett (2001) FLC 93-088
F & F (1989) FLC 92-031
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365
Monticelli v McTiernan (1995) FLC 92-617
Oates & Crest (2008) FLC 93-365
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 10-11 February 2025 Place: Adelaide Counsel for the Applicant: Mr Hay Solicitor for the Applicant: Gibson & Associates Family Law Counsel for the Respondent: Ms Cocks Solicitor for the Respondent: Eastern Legal ORDERS
ADC 2390 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HACKSHAW
Applicant
AND: MR GADLEY
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
20 FEBRUARY 2025
*Pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), this Order is amended on 25 February 2025.
THE COURT ORDERS THAT:
1.Paragraphs 12 and 13 of the
Theorders of 17 February 2022 are discharged.2.All extant applications are dismissed.
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
BERMAN J
INTRODUCTION
Ms Hackshaw (“the applicant”) and Mr Gadley (“the respondent”) have been engaged in long running litigation in respect of the future parenting arrangements for X born in 2010 and Y born in 2013 collectively (“the children”).
X resides with the respondent and spends no time with the applicant. To the extent there has been some level of communication between X and the applicant, it can best be described as fleeting and distressing.
Y lives with the applicant and save for a relatively short period during the course of the current litigation, now spends no time with the respondent.
The only aspect that to some extent ameliorates the more egregious conduct of the parties towards each other and the resultant breakdown in their family relationship is that X and Y communicate independently via social media.
The initial proceedings commenced on 14 January 2019 (ADC108/2019) and concluded with Consent Orders being made on 17 February 2022 (“the 2022 final Consent Orders”) which provided for the parties to have equal shared parental responsibility for the children with their care essentially being shared in that the children were to live with the applicant for nine consecutive nights per fortnight and with the respondent for the balance.
The 2022 final Consent Orders also provided for the children to spend equal time with the parties during school holidays and other special occasions.
It is not controversial that the parenting arrangements, and the 2022 final Consent Orders, became problematic in their implementation such that by May 2022 the parties were in high conflict as to where the children should live and on 3 June 2022, the respondent filed an Initiating Application (ADC2390/2022)
By order made 23 August 2022, the 2022 final Consent Orders were suspended during the period of the adjournment and orders were made for Y to live with the applicant and spend time with the respondent each week from the conclusion of school Monday until the commencement of school on Wednesday whereas X was to live with the respondent and spend time with the applicant each Sunday between 11.00 am and 3.30 pm.
Further orders were made for the parties and the children to engage in therapy and counselling in hope that their differences could be resolved. It is an unfortunate observation that despite the best endeavours of the Court, the result was that X refused to spend time and communicate with the applicant and Y was similarly resistant to spending time and communicating with the respondent.
The current proceedings began by Initiating Application filed on 3 June 2022. The matter was listed for final hearing to commence on 10 February 2025 whereupon the applicant relied on her Amended Initiating Application filed 5 December 2024 and the respondent sought orders in accordance with his Further Amended Response to Initiating Application filed 14 December 2024.
As an indication of the intensity of the conflict, it is noted that the applicant’s Cost Notice filed 13 February 2025 sets out that her costs incurred were in the sum of $108,561 with the balance of the proceedings and final hearing to be funded pursuant to a s 102NA order made on 24 September 2024. The respondent’s Cost Notice filed 6 February 2025 estimates his costs to the conclusion of a 5-day trial to be between $214,931 and $225,381.
It is a relevant observation that the preparation for the trial resulted in each of the parties filing voluminous trial affidavit material in excess of one hundred pages with tender books that exceed one thousand pages. In an attempt to comply with trial management orders, hundreds of pages of objections to affidavit material were to be relied upon.
As matters transpired, on the first day of trial the parties were able to reach substantial agreement as to parental responsibility and the future time spending arrangements for the children.
Whilst it is not known with certainty, it is likely that the observations contained in the Child Impact Report dated 5 December 2024 was at least in part persuasive on the parties requiring that there be a focus on the unfortunate reality arising from the determination of each of the children not to spend time with the other party.
As such, the parties presented the Court with a Consent Order on 10 February 2025 that provided for X to live with the respondent and only spend time with the applicant in accordance with his wishes and similarly, Y is to live with the applicant and only spend time with the respondent in accordance with his wishes.
The evidence readily supports a finding that a reconciliation between the parties and the children is unlikely with the tragic consequence being no likelihood of a relationship existing between the applicant with the respondent.
The Consent Order made on 10 February 2025 did not resolve all outstanding issues. Whilst comprehensive of the arrangements affecting the children, the applicant seeks a continuation of paragraphs 12 and 13 of the 2022 Consent Orders in the following terms:
12.That without admission for the need for the same, the husband be restrained and an injunction granted restraining him from approaching within 50 metres of the residential premises of the wife SAVE AND EXCEPT for the purpose of delivering or collecting the children or either of them at the commencement or conclusion of his time with them and/or for the purposes of the children collecting or delivering their belongings.
13.That by consent the husband be restrained and an injunction is hereby granted restraining him from operating his business in any premises in which the wife operates her business as and from 17 May 2022.
The respondent’s position is to oppose the continuation of paragraphs 12 and 13 of the 2022 Consent Orders but in the alternative, he was prepared to consent to an order in terms of paragraph 12 providing that the applicant was also restrained. The applicant rejected the respondent’s proposal.
At the commencement of the proceedings, the applicant indicated the paragraphs of her trial affidavit that she relied upon to support orders sought. Those paragraphs, subject to a determination of objections, were read into evidence. Similarly, the respondent also identified the paragraphs in his trial affidavit which, subject to objections, were read into evidence. It is apparent that the evidence relied upon by the respondent was relevant to his continued opposition to the orders sought by the applicant but provided no assistance in terms of the alternative position adopted by the respondent namely, that on a without admission basis each of the parties would be restrained from approaching within 50 metres of the residential premises of the other unless it was necessary to give effect to the parenting arrangements.
The proceedings are of narrow compass with the issue for determination being whether circumstances exist that would support the imposition of injunctive relief.
LEGAL PRINCIPLES
At the commencement of the final hearing there was some uncertainty as to whether the applicant was seeking orders pursuant to s 68B or s 114(1) of the Act.
Whilst there is considerable overlap between the sections (including s 90SS) s 68B gives the Court power to issue an injunction in relation to a child whereas s 114 and s 90SS extends to other circumstances.
Section 68B is in the following terms:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make 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; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
The applicant seeks that the respondent be restrained from approaching within 50 metres of her residential premises save as may be necessary to give effect to the parenting orders.
An initial observation is that the section is drafted widely such there is broad application. The scope of application is not however unlimited and there must be a clear nexus to matters relating to parental responsibilities. (see Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365).
In Monticelli v McTiernan (1995) FLC 92-617 (“Monticelli”) the Full Court considered the overlap between subsections 68B(1) and (2) of the Act and at 82,175 said as follows:
The power to grant an injunction under sub-section (1) is the power to grant “such injunction as it considers appropriate for the welfare of the child …”, whereas in sub-section (2) the power is to grant the injunction in “any case in which it appears to the court to be just or convenient to do so”. Hence the suggestion that the principles to be applied in a case of this sort depend upon whether the proceedings are under sub-sections (1) or (2). Where the proceedings relate to the welfare of a child we doubt the utility of such fine distinctions. Further, if the inherent power of the court is to be relied upon, clearly those distinctions would play no part.
Regard is had that the application of s 68B(1) is tempered by the following words “…the court may make such order or grant such injunction as it considers appropriate for the welfare of the child.”
I am of the view that before s 68B can be applied, there must be a consideration as to whether the order sought will benefit the child. I accept that such consideration may well be nuanced in that the benefit to a child may not be immediately apparent and the subject of specific reference in the order but nonetheless a nexus can be established. An example would be an order restraining a party from attending at premises where a child may reside.
Since the decision in Monticelli, the Full Court in Bennett v Bennett (2001) FLC 93-088 reconsidered the extent to which the best interests of the child and the paramountcy principle was applicable. Given the substantial amendments to the Act effected by the Family Law Reform Act 1975, whilst the impact on a child is still likely to be a powerful factor, references to “best interest of the child” and “the paramountcy principle” are not found in Division 9 of Part 7 of the Act.
Section 114 of the Act provides as follows:
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
Section 114(1) gives the Court a very wide power to grant injunctions. Unlike the reference to a child in s 68B(1), the application of s 114(1) is limited only by the definition of matrimonial cause.
In F & F (1989) FLC 92-031 Lindenmayer J said at p 77,436:
I am of the opinion that so long as the Court is satisfied that the proceedings before it have their genesis in circumstances arising out of the marital relationship, the section constitutes a separate and independent grant of jurisdiction and power to the Court, and that it does not merely provide the machinery for enforcing rights, the existence of which must be found elsewhere in the statute, or in the common law. In short, this subsection gives the Court a whole new area of jurisdiction and power to make such order as it considers proper for regulating the conduct of the parties to a marriage in any circumstances which can fairly be said to arise out of the marital relationship.
It is apparent that the catalyst for the respondent seeking a continuation of orders 12 and 13 arises in respect of matters of personal protection with no identifiable nexus to the children and the parenting orders subject of agreement. The uncontroversial history of the background to the subject orders has its foundation in the mistrust and animosity between the parties.
Whilst it is tangentially conceivable that an order seeking to restrain the respondent from approaching in close proximity to the applicant’s home may well be for her personal protection but also to limit the potential for conflict that might be observed by the children, the same could not be said for the order sought seeking to restrain the respondent from operating his business in any premises in which the applicant operates her business.
Even adopting the most generous approach, the evidence relied upon by the applicant provides no opportunity to allow for the application of s 68B of the Act. To the extent that it makes a difference, if the applicant is to be successful in seeking a continuation of orders 12 and 13 the remedy lies with a consideration of s 114(1) of the Act.
In Oates & Crest (2008) FLC 93-365 the Appeal concerned an order that the wife not come within 100 metres of premises where it was found that the husband did not reside. The Full Court considered that in those circumstances the test of “personal protection” was not satisfied and as such the order was not validly made.
Personal protection and non-molestation are referrable to physical interference. That does not prevent s 114(1) being applied to circumstances where a party seeks to be protected not just from physical threat, abuse or mental harm but also includes the undue interference by one party with another.
The consideration of whether to impose an injunction as sought by the applicant must be considered on the evidence.
The 2022 final Consent Order acknowledged that the restraint to the respondent of approaching within 50 metres of the residential premises of the applicant was without admission.
It is an important consideration that an order for injunction to apply in respect of a party should not be made without good reason. The need for a party to have in place an appropriate level of protection must be tempered by the adverse impact that could result in terms of the loss of freedom if an order of injunction is made without good cause.
SHOULD THE RESPONDENT BE RESTRAINED?
The evidence identified by the applicant did not involve the protection or welfare of the children.
Paragraph 135 of the applicant’s trial affidavit was identified as evidence in support of the threatening, controlling or coercive conduct of the respondent in support of a continuation of paragraph 12 of the orders sought. The matters highlighted by the applicant were set out in an email to him dated 2020. Whilst it is immediately apparent that anything said or written by the applicant to the respondent is self-serving, her recitation of the behaviours that she seeks that the respondent stop are without detail and particularity.
At paragraph 201 of the applicant’s trial affidavit, she contends that “the [respondent] repeatedly made it known to me that he had been monitoring me and made his surveillance of me known to the children”. The applicant then sets out purported behaviour of the respondent in 2018 that she considers is consistent with him following her and in particular when she would undertake outdoor exercise.
Subparagraph 202(b) to (f) of the applicant’s trial affidavit were struck out but leave was given to adduce further evidence. The opportunity was not taken up.
It is further alleged by the applicant that in 2020, her attention was drawn to advertising showing the respondent’s face which had been attached to a post facing the applicant’s place of employment. The applicant asserts that at the time the respondent was attempting to promote himself by the extensive use of advertising, it is her view that he went out of his way to place advertising in places which would have less public traffic but more likely to be observed by her.
In terms of more recent conduct complained of, the applicant refers to a couple of occasions in 2022 where the parties were both in the vicinity of the children’s school. The allegation is that the respondent deliberately attended the school in order to maximise any opportunity to confront her.
The respondent was cross-examined and denied the allegations made by the applicant.
There is no evidence which could support a finding that if there was behaviour conducted by the respondent (which he denies) leading up to the without admission 2022 final Consent Order, the applicant has not presented any evidence that egregious conduct has continued.
Moreover, there is no evidence that the respondent has attended or attempted to attend at the applicant’s home. The order sought by the applicant is not that the respondent is restrained from approaching her but rather from approaching within 50 metres of her residential premises.
I am not satisfied that the concerns of the applicant are at a level where a finding could be made on the balance of probabilities that establishes conduct by the respondent that requires restraint.
The applicant also seeks a continuation of the order that would restrain the respondent from operating his business in any premises in which the applicant operates her business. It was apparent that there may have been a misunderstanding on the part of the applicant that the proposed order sought was to restrain the respondent from coming within the vicinity of the applicant’s place of employment. The current order is quite specific in that it does not restrain the respondent from doing anything other than setting up a business in any premises in which the applicant operates her business.
Whilst there were aspects of the respondent’s evidence concerning his view that the applicant’s business would not be in operation and therefore he would not be required to move his business operation, the issue was overwhelmed by the uncontroversial evidence of the respondent that to provide certainty, he had purchased a business premises and had no intention of attempting to set up a business operation in proximity to that of the applicant.
As discussed, whilst I am readily able to recognise and accept that deep animosity and mistrust exists between the parties which is unlikely to ever be resolved, in the absence of appropriate evidence to support the making of orders of injunction and restraint, such an order is unnecessary.
It was for the parties to reach whatever agreement or consent position in respect of injunctions that they considered was appropriate. They have not done so. I do not consider that a fallback position is to impose, without proper reason, a mutual injunction restraining the parties from unnecessarily coming into contact with each other even if made on “a without admission basis”.
As such, the final 2022 Consent Orders will be discharged and all extant applications dismissed.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 20 February 2025
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