Heijman & D’Onofrio

Case [2024] FedCFamC1F 551

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Heijman & D’Onofrio [2024] FedCFamC1F 551

File number(s): BRC 15969 of 2022
Judgment of: JARRETT J
Date of judgment: 21 August 2024
Catchwords: FAMILY LAW – PARENTING – Consideration of s 60CC(2)(a) – History of family violence perpetrated by respondent – Where safety of child and applicant suggests an order for no time – Where child may benefit from a relationship with respondent – Balancing countervailing considerations – Child to spend no time with respondent
Legislation:

Family Law Act 1975 (Cth) ss 60CC(2), 60CG, 117, 117(2A)

Family Law Act Amendment Act 2021 (Cth))

Cases cited:

Bant & Clayton (Costs) (2016) 56 Fam LR 31

Beach & Semmler (1979) FLC 90

Chapman & Palmer (1978) 4 Fam LR 462

Isles v Nelissen [2022] FedCFamC1A 97

Slater & Light (2013) 48 Fam LR 573
Division: Division 1 First Instance
Number of paragraphs: 164
Date of hearing: 22 - 25 July 2024
Place: Brisbane
Counsel for the Applicant: Ms Pendergast
Solicitor for the Applicant: Barton Family Lawyers
Counsel for the Respondent: Mr Garlick
Solicitor for the Respondent: Pat Law & Associates Pty Ltd
Counsel for the Independent Children’s Lawyer: Mr North
Solicitor for the Independent Children’s Lawyer: Parry Coates Family Law

ORDERS

BRC 15969 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS HEIJMAN

Applicant
AND:

MR D’ONOFRIO

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

21 AUGUST 2024

THE COURT ORDERS THAT:

1.All previous parenting orders relating to X, born 2020 are discharged.

2.The applicant have sole authority to make decisions in relation to day to day issues and major long-term issues for X.

3.Where the applicant makes decisions in relation to a major long-term issue impacting the child, she will inform the respondent of the decision made within forty-eight (48) hours of making that decision, and for that purpose, the respondent is to ensure the applicant is aware of a current WhatsApp number he uses or accesses on a regular basis.

4.X shall live with the applicant.

5.The applicant is permitted to remove the child from the Commonwealth of Australia to New Zealand and will advise the respondent with sixty (60) days of having done so.

6.Unless otherwise agreed between the parties in writing, X shall spend no time with the respondent.

7.Within seven (7) days of the date of these orders the respondent shall provide to the applicant’s solicitors a postal address or post office box at which he can receive mail from X.

8.Within fourteen (14) days of her return to New Zealand, the applicant shall organise a postal address or post office box at which she can receive mail for X (cards, letters, photographs or gifts) and instruct her solicitors to provide that address to the respondent.

9.For the purposes of orders 7 and 8 herein, either party is entitled to nominate a postal box or the home of a trusted third party as the address at which they can receive…

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AGLC
Heijman & D’Onofrio [2024] FedCFamC1F 551
Case
[2024] FedCFamC1F 551
Decision Date

CaseChat Overview and Summary

In the matter of Heijman & D’Onofrio, the Federal Circuit and Family Court of Australia (Division 1) addressed a parenting dispute between Ms Heijman and Mr D’Onofrio concerning their child, X. The primary legal issue before the court was determining the appropriate parenting arrangements that would best promote X's safety and well-being, particularly in light of the history of family violence perpetrated by Mr D’Onofrio against Ms Heijman. The court was required to balance the potential benefits of X maintaining a relationship with his father against the risks associated with such contact.

The court found that the evidence substantiated the allegations of family violence by Mr D’Onofrio against Ms Heijman, leading to a determination that he posed a risk of physical and psychological harm to both Ms Heijman and X. Despite the absence of direct evidence of harm to X, the court considered the overall context of the respondent’s conduct and his lack of insight or responsibility for his actions. The court concluded that supervised contact between X and Mr D’Onofrio carried a risk of emotional harm, which could not be entirely mitigated by supervision. The court ultimately decided that it was in X’s best interest for him to have no contact with Mr D’Onofrio, except for limited, pre-arranged correspondence on significant occasions such as birthdays, Christmas, and Easter.

The court's reasoning was grounded in the statutory directive of section 60CC(2)(a) of the Family Law Act 1975 (Cth), which requires the court to consider arrangements promoting the safety of the child and any person with care of the child. The court rejected the suggestion that the new statutory wording offered more discretion than the previous version, finding that both provisions required an assessment of the risk and its mitigation. The court's decision was heavily influenced by the history of violence and lack of insight demonstrated by Mr D’Onofrio.

In its final orders, the court granted Ms Heijman sole authority to make decisions regarding X's day-to-day and long-term issues, permitted her to relocate with X to New Zealand, and prohibited Mr D’Onofrio from contacting either Ms Heijman or X except as specified. The court also outlined provisions for limited, supervised communication on special occasions and mandated the registration of the orders in New Zealand. The court ordered Mr D’Onofrio to pay Ms Heijman’s costs associated with a subpoena and objection.

Orders

Orders of the court

BRC 15969 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS HEIJMAN

Applicant

AND:

MR D’ONOFRIO

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

21 AUGUST 2024

THE COURT ORDERS THAT:

1. All previous parenting orders relating to X, born 2020 are discharged.

2. The applicant have sole authority to make decisions in relation to day to day issues and major long-term issues for X.

3. Where the applicant makes decisions in relation to a major long-term issue impacting the child, she will inform the respondent of the decision made within forty-eight (48) hours of making that decision, and for that purpose, the respondent is to ensure the applicant is aware of a current WhatsApp number he uses or accesses on a regular basis.

4. X shall live with the applicant.

5. The applicant is permitted to remove the child from the Commonwealth of Australia to New Zealand and will advise the respondent with sixty (60) days of having done so.

6. Unless otherwise agreed between the parties in writing, X shall spend no time with the respondent.

7. Within seven (7) days of the date of these orders the respondent shall provide to the applicant’s solicitors a postal address or post office box at which he can receive mail from X.

8. Within fourteen (14) days of her return to New Zealand, the applicant shall organise a postal address or post office box at which she can receive mail for X (cards, letters, photographs or gifts) and instruct her solicitors to provide that address to the respondent.

9. For the purposes of orders 7 and 8 herein, either party is entitled to nominate a postal box or the home of a trusted third party as the address at which they can receive mail.

10. For the purpose of order 8 herein, the respondent is permitted to send to X cards, letters, photographs or gifts on the following occasions, ensuring he posts the same to the applicant no less than twenty-one (21)-days prior to the event:

(a) Christmas each year;

(b) Easter each year; and

(c) X’s birthday each year.

11. The applicant will review all such mail prior to giving it to X and, if she determines that it is not appropriate, she is entitled not to give it to him.

12. The applicant is at liberty to send to the respondent updates in relation to X’s education and milestones and photographs of him from time to time.

13. Both parties will, within seven (7) days of any change, inform the other by WhatsApp if their nominated mailing address changes.

14. The respondent and the applicant shall keep the other informed at all times of their WhatsApp contact details.

15. The applicant will inform the respondent within forty-eight (48) hours of any serious medical condition or significant health issue or illness suffered by X.

16. The applicant is prohibited, and an injunction hereby issues restraining the applicant from changing X’s name and will ensure he is known and registered with organisations as X.

17. The respondent is prohibited, and an injunction hereby issues restraining the respondent from:

(a) seeking, or directing another person to seek any information relating to the applicant or X’s location;

(b) contacting the applicant (unless otherwise agreed between the parents in writing); or

(c) contacting X other than as provided in these orders.

18. By this order, the applicant is authorised to sign all necessary documents as and when required to ensure X has a current Australian Passport, with the costs of the same borne by her.

19. Pursuant to s 11 (l)(a) of the Australian Passport Act 2005 (Cth) and these orders, the parents’ consent to the child X born 2020 travelling outside the Commonwealth of Australia and having a current Australian passport.

20. Upon moving to New Zealand, the applicant shall take all steps necessary to register these orders in a court of competent jurisdiction in New Zealand.

21. The respondent pay the applicant’s costs of and incidental to the subpoena filed on 24 June 2024 and associated objection fixed in the sum of $653.60.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Whether or not a contact supervisor would be able to prevent such inappropriate conversations taking place was a matter which might have been, but was not, raised with Ms T. In any event, whilst I take note of Ms V’s evidence, I also heed the submissions of the independent children’s lawyer that a contact centre supervisor may not know enough particulars about the matter to understand the purport of what is being said and prevent such conversations. Given that I cannot be entirely satisfied that a contact centre supervisor would be able to prevent those discussions, some risk of emotional harm to X does remain if he spends supervised time with the respondent. FACTUAL CONCLUSIONS I am satisfied on the balance of probabilities that, by and large, the allegations made by the applicant against the respondent concerning his conduct towards her throughout their relationship are true. I have set out my specific findings above. That behaviour tends to indicate that the respondent presented a risk of physical harm to the applicant. He assaulted her more than once and on one occasion she was in fear of her life. He also presented a risk of psychological harm to her such that her experiences led her to develop post-traumatic stress disorder. There is no direct evidence of the respondent perpetrating harm, physical or otherwise, upon X although he was present during some for the applicant’s experiences (albeit very young). The respondent displayed no insight into his behaviour. Save for “popping” the tyres on the applicant’s newly purchased bicycle, he admits to very little else. He displayed no real insight into the effects of his conduct upon the applicant or X. He took no responsibility for his actions. Until his counsel’s final submissions, he argued for orders that were plainly not in X’s best interests. CONSIDERATION Contextualised for the present case, s 60CC(2)(a) directs the court’s attention to the arrangements that would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of X, and any person who has care of X. Relevantly in this case, that includes the applicant and the applicant’s father (who, on the applicant’s case, will assist her in caring for X if she is permitted to relocate with X to New Zealand). However, no evidence was led about what risk might be posed to the applicant’s father. Counsel for the independent children’s lawyer made submissions on the present form of s 60CC(2)(a) and how it differed from the previous iteration of s 60CC(2)(b) of the Act. In particular, counsel for the independent children’s lawyer submitted that the new provision requiring consideration of “what arrangements would promote the safety…” was broader and more forward-thinking than the old provision that required recognition of “the need to protect the child from harm”. I disagree. The old s 60CC(2)(b) was the subject of a long line of authority (perhaps the latest of which is Isles v Nelissen [2022] FedCFamC1A 97). In summary, a consideration of the need to protect the child from harm involved an assessment of risk posed to the child of harm, an assessment of the likelihood of that harm, and an assessment of any orders that might be made to ameliorate the risk of harm. If the risk was unacceptable and could not be ameliorated by appropriate orders, then a child would not spend time with the parent or person the source of the risk.

Ratio Decidendi

Legal Principle Established

The respondent displayed no insight into his behaviour. Save for “popping” the tyres on the applicant’s newly purchased bicycle, he admits to very little else. He displayed no real insight into the effects of his conduct upon the applicant or X. He took no responsibility for his actions. Until his counsel’s final submissions, he argued for orders that were plainly not in X’s best interests. CONSIDERATION Contextualised for the present case, s 60CC(2)(a) directs the court’s attention to the arrangements that would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of X, and any person who has care of X. Relevantly in this case, that includes the applicant and the applicant’s father (who, on the applicant’s case, will assist her in caring for X if she is permitted to relocate with X to New Zealand). However, no evidence was led about what risk might be posed to the applicant’s father. Counsel for the independent children’s lawyer made submissions on the present form of s 60CC(2)(a) and how it differed from the previous iteration of s 60CC(2)(b) of the Act. In particular, counsel for the independent children’s lawyer submitted that the new provision requiring consideration of “what arrangements would promote the safety…” was broader and more forward-thinking than the old provision that required recognition of “the need to protect the child from harm”. I disagree. The old s 60CC(2)(b) was the subject of a long line of authority (perhaps the latest of which is Isles v Nelissen [2022] FedCFamC1A 97). In summary, a consideration of the need to protect the child from harm involved an assessment of risk posed to the child of harm, an assessment of the likelihood of that harm, and an assessment of any orders that might be made to ameliorate the risk of harm. If the risk was unacceptable and could not be ameliorated by appropriate orders, then a child would not spend time with the parent or person the source of the risk. The new s 60CC(2)(a) talks instead of arrangements that promote safety. Safety is not defined in the Act. The Macquarie Dictionary defines safety as: (1)the state of being safe; freedom from injury or danger;(2)the quality of insuring against hurt, injury, danger, or risk. The concept of safety cannot be understood except in the context of a nominated risk posed, its gravity, likelihood, and anything which might ameliorate it. In that sense, the process set out in the jurisprudence is still relevant to the new provision. If anything, the current text of s 60CC(2)(a) provides more discretion when it comes to formulating orders. That is because whilst “the need to protect the child from harm” is quite prescriptive, a consideration of “what arrangements would promote the safety…” might be considered to be broader. There may be many different orders which all promote safety to different degrees, and there is discretion to consider which of those arrangements might be most appropriate. That discretion is, of course, informed by the characteristics of the risk.