Hicks & Gallego
[2024] FedCFamC1F 670
•4 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hicks & Gallego [2024] FedCFamC1F 670
File number(s): NCC 788 of 2022
NCC 3107 of 2022Judgment of: SMITH J Date of judgment: 4 October 2024 Catchwords: FAMILY LAW – CHILDREN – Parenting Orders – Best interest of the child – Where father involved in two sets of proceedings – Where proceedings consolidated and heard together at trial with evidence in one evidence in the other – Where the Secretary, Communities of Justice intervened in one set of proceedings – Where serious allegations of family violence and violence by father have been made by both mothers, another ex-partner, various children and other adults – Where a key incident of serious family violence by the father against a subsequent ex-partner was captured on home CCTV audio-visual footage – Where the multiple prior allegations of family violence are strikingly similar to the assault captured on CCTV – Where father denies or minimises all allegations – Where one mother participated – Where the other mother withdrew and filed a submitting notice and the evidence establishes she has no current parenting capacity - Finding that the father was an unreliable witness - Finding that the father presents a high and unacceptable risk of physical and psychological harm to both children – Orders for the father to have no time and no communication with the children – s 68 B restraints on the father for the protection of the children and their carers and s 68C order – Live with and sole decision making authority to the mother who participated for her child – Sole parental and decision making authority to the Minister for the other child. Legislation: Evidence Act 1995 (Cth) Pts 3.10, 4.1, ss 128, 140
Family Law Act 1975 (Cth) Pts VII, VIII, XI, ss 60B, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65AA, 65D, 65DAAA, 68B, 68C, 69ZT, 69ZV, 100B, 102NA
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases cited: B & B (1993) FLC 92-357
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; [1998] HCA 68
Pointer & Cheadle (No 2) [2023] FedCFamC1F 602
Division: Division 1 First Instance Number of paragraphs: 394 Date of hearing: 2-10 September 2024 Place: Newcastle In NCC 788 of 2022: Counsel for the Applicant: Mr Hegedus Solicitor for the Applicant: Rosemont Partners Pty Ltd The Respondent: Submitting appearance. Did not participate Counsel for the Intervener: Mr Dean Solicitor for the Intervener: Crown Solicitors Office Counsel for the Independent Children's Lawyer: Mr Kelly Solicitor for the Independent Children's Lawyer: Mason Mia & Associates-Solicitors & Advocates In NCC 3107 of 2022: Counsel for the Applicant: Mr Flanigan Solicitor for the Applicant: Grant & Co Solicitors & Attorneys Counsel for the Respondent: Mr Hegedus Solicitor for the Respondent: Rosemont Partners Pty Ltd Counsel for the Independent Children's Lawyer: Mr Graham Solicitor for the Independent Children's Lawyer: Fielden & Associates - Family & Relationship Lawyers ORDERS
NCC 788 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HICKS
Applicant
AND: MS GALLEGO
Respondent
AND: SECRETARY, DEPARTMENT OF COMMUNITIES & JUSTICE
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
4 OCTOBER 2024
BY CONSENT THE COURT ORDERS THAT:
1.All previous parenting orders relating to the child Y (born 2018) be discharged.
Parental responsibility and decision making to the Minister
2.That, subject only to these orders, the Minister for Families and Communities of New South Wales (“the Minister”) shall have parental responsibility for Y, and sole decision making in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting Y, including with whom Y should live and spend time from time to time.
THE COURT FURTHER ORDERS THAT:
Time/Communication with the father
3.Y shall spend no time with Mr Hicks (born 1977) (“the father”).
4.Y shall have no communication with the father.
Restraints and injunctions on the father
5.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father be restrained from:
(a)Contacting or attempting to contact Y by any means, including through a third party;
(b)Approaching or coming within 500 metres of any place where Y might reside from time to time;
(c)Approaching or coming within 500 metres of any place where Y might attend day care or school from time to time;
(d)Contacting or attempting to contact any day care or school or medical or allied health practice where Y might attend from time to time, including through a third party;
(e)Contacting or attempting to contact any person who has care of Y, or who resides in the same residence as Y, including any minor person, by any means including through a third party;
(f)Harassing, staking, intimidating or publicly denigrating any person who has the care of Y, or who resides in the same residence as Y, including any minor person, by any means including through a third party.
6.Pursuant to section 68C the injunction in Order 5 pursuant to section 68B of the Family Law Act 1975 (Cth), is for the personal protection of Y (born 2018).
7.If a Police Officer believes on reasonable grounds that Mr Hicks (born 1977), at which the injunction is directed, has breached the injunction, they may arrest them without warrant.
Time/Communication with the mother
8.Ms Gallego (born 1981) (“the mother”) shall have no right to spend time with, or communicate with, Y. That includes no right to attend on any school, nor to remove Y from any person nor place.
9.In accordance with Order 2 the Minister may determine what, if any, time and what, if any, communication Y may have with the mother, and the circumstances and conditions, if any, under which such time and or communication may occur, at the Minister’s absolute discretion.
10.Further, pursuant to section 68B of the Family Law Act 1975 (Cth), the mother be restrained from:
(a)Consuming any illicit substances or mediation prescribed to her other than in the manner and dosage prescribed during and 24 hours before she spends time with Y;
(b)Physically disciplining Y;
(c)Denigrating the father or his extended family and members of their household (including domestic partner) in the presence or hearing of Y;
(d)Discussing with Y these proceedings or any allegations raised in these proceedings;
(e)Permitting Y to have access to any of the documents filed in these proceedings;
(f)Bringing with her a person to spend time with Y except with the prior approval of an officer of the Department of Communities and Justice.
Provision of Orders to school
11.The Minister may provide a copy of these Orders to the child’s educational providers.
Provision of Orders and Judgment to medical and allied health treaters
12.The Minister may provide a copy of these Orders, and the written Reasons for Judgment, to any of the child’s treating medical or allied health professionals for the purpose of informing them of potential relevant background information relating to Y’s health.
NSW Police – provision of Orders and Judgment
13.A copy of these Orders and the written reasons for Judgment are to be provided to the NSW Police Court Liaison with particular reference to the section headed “NSW Police Liaison”.
Informing the child of these orders
14.A copy of these Orders and the written Reasons for Judgment is to be provided to the Court Children’s Service and to the Court Child Expert.
15.The Secretary and the Independent Children’s Lawyer may liaise with Court Children’s Service and discuss the most appropriate way to explain the effect of these orders to the child in an age-appropriate manner.
16.Thereafter the Independent Children’s Lawyer be discharged.
Costs
17.Any consent terms as to costs may be forwarded to chambers for making in chambers.
18.Any party, including the Independent Children’s Lawyer on behalf of the Legal Aid Commission of New South Wales, who seeks a costs order is to notify the party from whom costs are sought and to notify chambers within 28 days for listing for argument if there is no agreement reached.
NOTATIONS:
A.For the avoidance of doubt the paternal grandmother, Ms C:
i.Has no parental rights in relation to Y;
ii.Has no right to spend time with Y;
iii.Has no right to communicate with Y;
iv.Has no right to attend any school or day care or medical or allied health practice at which Y attends;
v.Has no right to obtain any information from any establishment concerning Y; and
vi.Any time with or communication with Y, if permitted, including attendance at school functions to which grandparents are invited or any other time, will be at the sole discretion of the Minister.
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 the pseudonym Hicks & Gallego has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
ORDERS
NCC 3107 of 2022 BETWEEN: MS TURCHI
Applicant
AND: MR HICKS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
4 OCTOBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders relating to the child X (born 2012) be discharged.
Parental responsibility and decision making to the mother
2.That Ms Turchi (born 1977) (“the mother”) shall have parental responsibility for X, and sole decision making in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the child.
Live with the mother
3.That X is to live with the mother.
Time/Communication with the father
4.X shall spend no time with Mr Hicks (born 1977) (“the father”).
5.X shall have no communication with the father.
Restraints and injunctions on the father
6.Pursuant to section 68B of the Family Law Act 1975 (Cth), Mr Hicks born 1977 the father be restrained from:
(a)Contacting or attempting to contact X by any means, including through a third party;
(b)Approaching or coming within 500 metres of any place where X might reside from time to time;
(c)Approaching or coming within 500 metres of any place where X might attend school from time to time;
(d)Contacting or attempting to contact any school or medical or allied health practice where X might attend from time to time, including through a third party;
(e)Contacting or attempting to contact the mother by any means including through a third party;
(f)Harassing, staking, intimidating, or publicly denigrating the mother in any way, including through a third party;
(g)Contacting or attempting to contact Mr B born 1975 by any means including through a third party;
(h)Harassing, staking, intimidating, or publicly denigrating Mr B, by any means including through a third party;
(i)Harassing, staking, intimidating, or publicly denigrating Mr D (born 2001) by any means including through a third party;
(j)Contacting or attempting to contact any other person, including any minor, who resides at the same residence as X from time to time including through a third party;
(k)Harassing, staking, intimidating, or publicly denigrating the any other person who has the care of X from time to time, or who resides in the same residence as X from time to time, by any means including through a third party.
7.Pursuant to section 68C the injunction in Order 6 pursuant to section 68B of the Family Law Act 1975 (Cth), is for the personal protection of X (born 2012), Ms Turchi (born 1977), and Mr B (born 1975), and any other person living at the same residence as X from time to time.
8.If a Police Officer believes on reasonable grounds that Mr Hicks (born 1977), at which the injunction is directed, has breached the injunction, they may arrest them without warrant.
Provision of Orders to school
9.Ms Turchi may provide a copy of these Orders to the child’s educational providers.
Provision of Orders and Judgment to medical and allied health treaters
10.Ms Turchi may provide a copy of these Orders and the written Reasons for Judgment to any of the child’s treating medical or allied health professionals for the purpose of informing them of potential relevant background information relating to X’s health.
NSW Police – provision of Orders and Judgment
11.A copy of these Orders and the written reasons for Judgment are to be provided to the NSW Police Court Liaison, with particular reference to the section headed “NSW Police Liaison”.
Informing the child of these orders
12.A copy of these Orders and this Judgment is to be provided to the Court Children’s Service and to the Court Child Expert.
13.Within 28 days the mother is to liaise with Court Children’s Service and the Independent Children’s Lawyer to have an appropriate person explain the effect of these orders to X in an age-appropriate manner.
14.Thereafter the Independent Children’s Lawyer be discharged.
Costs
15.Any consent terms as to costs may be forwarded to chambers for making in chambers.
16.Any party, including the Independent Children’s Lawyer on behalf of the Legal Aid Commission of New South Wales, who seeks a costs order is to notify the party from whom costs are sought and to notify chambers within 28 days for listing for argument, if there is no agreement reached.
NOTATIONS:
A.For the avoidance of doubt the paternal grandmother, Ms C:
i.Has no parental rights in relation to X; and
ii.Has no right to spend time with X; and
iii.Has no right to communicate with X; and
iv.Has no right to attend any school or medical or allied health practice at which X attends; and
v.Has no right to obtain any information from any establishment concerning X; and
vi.Any time with or communication with X, including attendance at school functions to which grandparents are invited or any other time, will be at the sole discretion of Ms Turchi.
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 the pseudonym Hicks & Gallego has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
These two proceedings are to determine the parenting orders in the best interests of paternal half-siblings X (born 2012) aged 12 (in proceedings NCC3107/2022 Turchi & Hicks), and Y (born 2018) aged six (in proceedings NCC788/2022 Hicks & Gallego), pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) as in force at the date of trial. The proceedings were consolidated and evidence in one is evidence in the other.
X is the child of Mr Hicks (born 1977) aged 46 and Ms Turchi (born 1977) aged 47 . Mr Hicks and Ms Turchi were in a relationship from about 2008 or 2009 until either October 2016 or June 2017. Ms Turchi alleges long term serious family violence against Mr Hicks. Mr Hicks denies this.
Y is the child of Mr Hicks and Ms Gallego “[…]” (born 1981) aged 43 . Mr Hicks and Ms Gallego were in a relationship from late 2017 until either March 2021 or 13 January 2022. Ms Gallego alleged serious family violence against Mr Hicks. Mr Hicks denies this.
E (born 2023) aged 18 months was, until recently, accepted by Mr Hicks to be his child with Ms F (born 1992) aged 32. E is not the subject of these proceedings. Mr Hicks commenced a relationship with Ms F in about early 2022 and commenced cohabiting with Ms F, and her children, in about early 2023. Their relationship ended in November 2023 when Mr Hicks assaulted Ms F.
Mr Hicks pleaded guilty to assaulting Ms F and not guilty to assaulting her then 13-year-old daughter G. Those criminal proceedings, including sentencing, continue elsewhere. Ms F had filed a supportive affidavit in Mr Hicks’ case. She and her children also participated in the Family Report interviews in support of Mr Hicks. That was prior to the assault. Ms F did not participate in these proceedings. Post separation it appears both Mr Hicks and Ms F put in issue whether Mr Hicks is E’s father.
Mr Hicks, Ms Turchi, the Independent Children’s Lawyer (“ICL”) for X, the ICL for Y, and the Secretary of the New South Wales Department of Communities and Justice on behalf of the Minister for Families and Communities of New South Wales (“the Secretary” and “DCJ” and “the Minister”) as intervener in relation to Y, appeared at trial. Ms Gallego filed a submitting notice on 22 August 2024 and did not participate. It is comfortably established by the evidence that Ms Gallego has limited current parenting capacity.
The main factual issue is whether Mr Hicks is a long-term serious family violence offender who represents an unacceptable risk of harm to X and Y, as submitted by Ms Turchi, the ICL for X, the ICL for Y and the Secretary, but denied by Mr Hicks.
Mr Hicks’ assault on Ms F, and threatening behaviour towards G and verbal abuse of other children in the household, in November 2023 was captured by CCTV audio-visual footage. That footage shows, amongst other behaviours, Mr Hicks grabbing Ms F by the throat and pinning her to a wall while she was holding E, then only months-old. Mr Hicks did this when Ms F intervened to protect G from Mr Hicks. The audio-visual footage provides overwhelming and incontestable evidence of Mr Hicks’ verbal and physical violence on that occasion. The behaviours demonstrated were, as submitted in closing addresses, strikingly similar to the numerous complaints about Mr Hicks’ violent behaviours made by many different people over many years. Mr Hicks was given certificates pursuant to s 128 Evidence Act 1995 (Cth) in relation to his evidence on this event.
In evidence Mr Hicks minimised and sought to deflect responsibility for the events of November 2023 and for other historic matters where he was convicted, and denied other allegations of family violence and violence. I find Mr Hicks to be an unreliable witness whose evidence can be given little if any weight.
The totality of the evidence comfortably establishes to the high requisite standard,[1] noting the gravity of the allegations and consequences of the findings, that Mr Hicks has an extensive and ongoing history of physical and verbal violence and coercion and control against both intimate partners and children living in his household, including his own children, as well as against other people, and of harassment, stalking and revenge driven behaviours against those who complain to police or give evidence about his violent behaviours.
[1] Evidence Act 1995 (Cth), s 140(2).
I find that Mr Hicks presents a high and unacceptable risk of both physical and psychological harm to X and to Y.[2] Neither X nor Y could ever be safe so long as Mr Hicks has any access to them, through any avenue no matter how small or well controlled, by which he could seek to influence or harm them, or to undermine the relationship between the children and their carers. Nor could any person who has the care of either child be safe if Mr Hicks is allowed any avenue of access to them.
[2] See, Isles & Nelissen [2022] FedCFamC1A 97; CDJ v VAJ (1998) 197 CLR 172; M v M (1988) 166 CLR 69.
The grave risks Mr Hicks poses to X and Y, and their carers can only be addressed by no time and no communication orders, with parental responsibility for long term decision making for X to reside with Ms Turchi and for Y, by consent, to reside with the Minister.
Those grave risks also require extensive s 68B injunctions, explicitly supported by s 68C powers of arrest, directed to Mr Hicks for the protection of X, Y, Ms Turchi and her household, and any other carers or households where X and or Y may reside from time to time.
I also find that Mr Hicks has used, and if able to do so will continue to use, his mother Ms C as his agent in committing acts of coercive family violence, in particular by seeking to evict Ms F and her children from Mr Hicks’ home the morning after the assault in November 2023. Consequently, whether Ms C is a willing accomplice or acts through fear, she also poses a risk to both X and Y and to their carers in her capacity as Mr Hicks’ agent.
As no party sought injunctions against Ms C none are made. Had I been asked to I would have made similar injunctions to those imposed on Mr Hicks. Ms C’s time and or communication with X and or Y will be at the discretion of Ms Turchi and the Secretary acting for the Minister. Cautious is urged in the exercise of that discretion.
There were many other factual matters raised during the proceedings, but the level of risk and the need to protect the two children mean those other matters had little relative weight in determining the orders required for the children’s best interests.
There were prior proceedings concerning X (NCC1912/2017). These were resolved by final consent orders on 7 August 2019. There is no contest, and I find, that there has been a significant change in circumstances which warrants a further consideration of final orders for X pursuant to s 65DAAA of the Act.
PROCEDURAL HISTORY
NCC3107/2022 Turchi & Hicks
X’s current proceedings were commenced by Ms Turchi on 13 October 2022. A Child Impact Assessment was ordered and released. An ICL was appointed.
On 31 January 2023 interim orders were made for X to live with Ms Turchi and spend supervised time with Mr Hicks for a minimum of two hours each fortnight. A Family Report was ordered and subsequently released.
Further interim orders were made on 14 September 2023 discharging the prior supervised time arrangements for X to spend unsupervised time with Mr Hicks as agreed between the parties, but failing agreement, from 10.00 am until 4.00 pm each Saturday.
Interim Consent Orders were reached on 27 September 2023 for X to spend time with Mr Hicks as agreed, but failing agreement, each alternate weekend, from after school Friday until before school Monday (or 9.00am). The matter was set down for a three-day final hearing before a Division 2 Judge commencing on 5 February 2024. A s 102NA order was made. Mr Hicks’ unsupervised time with X was suspended pending further order on 24 November 2023, following his arrest in November 2023.
By way of order dated 11 December 2023, Mr Hicks was to spend time with the X four hours each alternate weekend, with such time to be professionally supervised.
Ms Turchi was also prohibited from allowing X to come into contact with his maternal half-sibling through Ms Gallego, H, unless Ms Turchi was personally present at all times. That related to certain allegations regarding H’s behaviours towards X in relation to which risk allegations were raised. I do not consider that issue relevant to the issues before me given the present circumstances and will not refer to those allegations further.
Supervised time then resumed and has continued each alternate Saturday pursuant to orders of 11 December 2023. There is also unsupervised telephone contact between X and the father each Monday and Thursday.
The matter was transferred to Division 1 on 13 December 2023.
NCC788/2022 Hicks & Gallego
Y’s proceedings were commenced on 24 March 2022 by Mr Hicks. Y was living with Ms Gallego.
Consent orders were made on 19 April 2022 for Mr Hicks to spend supervised time with Y on one occasion each fortnight for no less than three hours. An ICL was appointed, and a Child Impact Report requested and subsequently released.
Interim orders were made on 21 October 2022 for Y to live with Ms Gallego and spend time with Mr Hicks on one occasion each fortnight for no less than three hours, supervised by J Contact Service. Further orders were made for Mr Hicks to undergo chain of custody liver function and carbohydrate-deficient transferrin (“CDT”) tests. A Family Report was also ordered and subsequently released.
The proceedings were listed for final hearing for three days before a Division 2 Judge commencing on 7 August 2023. That hearing was then vacated with the matter relisted on an over listed basis, with final hearing to commence on 29 August 2023. On that date the trial was again vacated and relisted for 6 November 2023, due to the mother’s then counsel recollecting that he had previously acted for Mr Hicks in criminal proceedings.
The proceedings were transferred to Division 1 on 25 October 2023.
Proceedings consolidated
By way of order dated 20 December 2023 both matters were consolidated. Evidence in one was ordered to be evidence in the other.
On 23 February 2024, both matters were again set down for final hearing commencing Monday, 2 September 2024 for seven (7) days.
In early May 2024 DCJ removed Y from Ms Gallego’s care.
In mid-May 2024 the Children’s Court of New South Wales made an emergency care and protection order pursuant to s 46 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
In early May 2024 DCJ placed Y in Ms Turchi’s care, along with his maternal half-sister L.
On 22 May 2024 DCJ intervened in the proceedings regarding Y and were granted interim sole parental responsibility for Y.
Interim orders were made by consent on 2 July 2024 for Y to spend time with Mr Hicks once a fortnight for no less than three hours to be arranged and funded by DCJ.
Since 6 July 2024 Y has spent professionally supervised time with Mr Hicks for three hours each fortnight supervised by K Family Services.
TRIAL
At trial Mr Hicks, Ms Turchi, the ICL for X, the ICL for Y, and the Secretary were legally represented including by counsel.
Ms Turchi relied on or read the following:
(1)Trial affidavit filed 10 July 2024;
(2)Affidavit of her partner Mr B filed 2 September 2024;
(3)Case outline and proposed minute of order filed 23 August 2024; and
(4)Mother’s final proposal (MFI 30) at the end of proceedings.
Mr Hicks relied on or read in X’s proceeding, the following:
(1)Trial Affidavit filed 28 August 2024 (trial Affidavit regarding X);
(2)Supplementary affidavit filed 2 September 2024;
(3)Outline of Case filed 29 August 2024;
(4)Amended Response filed 26 September 2023;
(5)Notice of Child Abuse, Family Violence and Risk filed 28 October 2022; and
(6)Further proposed minute for X (MFI 32) at the conclusion of proceedings, but in the alternative only to the application.
Mr Hicks relied on or read in Y’s proceedings, the following:
(1)Trial Affidavit filed 26 August 2024 (trial Affidavit regarding Y);
(2)Outline of Case filed 29 August 2024;
(3)Amended Initiating Application filed 22 August 2023;
(4)Notice of Child Abuse, Family Violence and Risk filed 7 November 2023;
(5)Affidavit of Ms C filed 26 August 2023;
(6)Further minute regarding Y (MFI 23); and
(7)Final proposed minute of order regarding Y (MFI 33) filed at the conclusion of the trial.
Ms F filed two affidavits in support of Mr Hicks’ case on 17 January 2023 and 23 August 2023 (one filed in each set of proceedings). Neither affidavit was read, and Ms F was not called by Mr Hicks.
The Secretary relied on or read:
(1)Affidavits of the DCJ officer with carriage of Y’s file, Ms N, filed 16 July 2024 and 14 August 2024;
(2)Submissions bundle with written submissions and a minute of order;
(3)Child Impact Report of Ms M dated 22 August 2022 (Exhibit S3); and
(4)Final proposed minute of order (MFI 31) provided at the conclusion of the trial.
The ICL for Y relied on or read:
(1)Family Report of Ms O dated 24 July 2023 (Exhibit ICL X3); and
(2)Case Outline filed 1 September 2024
The ICL for X relied on or read:
(1)Child Impact Report of Ms P dated 5 November 2022 (Exhibit ICL Y2);
(2)Family Report of Ms Q dated 24 July 2023 (Exhibit ICL Y3); and
(3)Final proposed minute of order (MFI 29).
The parties tendered a variety of documents during the course of the trial, including audio-visual recordings and photographs. These are referred as required.
Ms Turchi, Mr B, Mr Hicks, Ms C, Ms N, and the child court experts Ms O and Ms Q were required for cross examination and gave oral evidence.
FINAL PROPOSALS
X
Ms Turchi’s final proposal (MFI 30) was for sole parental responsibility, X to live with her, have no time and no communication with Mr Hicks, and that there be s 68B injunctions for the protection of X and her household with, as noted in oral submissions, explicit reference to s 68C. This varied from her proposal at the commencement of trial that there be ongoing supervised time with the father each alternate Saturday.
Mr Hicks proposed orders in his Amended Response filed 26 September 2023; that there be equal shared parental responsibility, with X to live with Mr Hicks and spend time with Ms Turchi as agreed or each alternate weekend and half school holidays and special occasions, together with a raft of standard orders around change-overs, communication with parents, exchange of information, international travel etcetera. He proposed mutual s 68B injunctions against physical discipline, non-denigration, discussion of proceedings, attendance on the other parent’s house, and restraining or removing X when in the care of the other parent.
In the alternative, if he failed on his primary application, Mr Hicks proposed equal shared parental responsibility, that X live with Ms Turchi, spend six professionally supervised visits with Mr Hicks, and thereafter spend time with Mr Hicks once a fortnight from 10.00 am to 4.00 pm supervised by Ms C, with private communication for 30 minutes twice per week. He sought orders for change overs, permission to attend school events, to obtain school and medical information, and injunctions on both parents similar to those in his primary application.
The ICL for X’s final proposal (MFI 29) supported Ms Turchi’s proposal for sole parental responsibility and that X live with her. However, the ICL for X also sought an order for indefinite supervised, or identity, time for four hours, four times per year, once each quarter, with Mr Hicks to pay for supervision, and for the time to occur with Y, if Mr Hicks is spending supervised time with Y and it is otherwise feasible. The ICL for X also proposed that Mr Hicks should have the right to obtain information from X’s school, and that Ms Turchi be required to keep Mr Hicks informed of serious medical matters or DCJ intervention in respect of other children in her care. The ICL proposed s 68B injunctions on physical discipline or threats, denigration, attendance at Ms Turchi house, publishing negative social media posts or discussing the proceedings. The ICL also proposed that the ICL explain the orders to X.
Y
At the trial’s end the consent position was that the Minister have sole parental authority for decision making for all major long-term issues for Y and that Y should live with a person as determined, from time to time, by the Minister. I find those orders are in Y’s best interests and make them by consent. The major remaining issue was what time, if any, Y should spend with the father and under what circumstances.
Mr Hicks’ final proposal for Y (MFI 33) is that until Y is nine years old he spend time with Mr Hicks as agreed between the father and the Minister, but otherwise for at least three hours once a month, supervised by an external agency. From age nine, failing agreement, Y spend time with Mr Hicks once a fortnight from 10.00 am to 4.00 pm supervised by Ms C. In addition, Mr Hicks would communicate by telephone unsupervised and in private with Y twice a week for 30 minutes.
Mr Hicks proposed that Ms Gallego be restrained from attending on Y’s school or residence without express authorisation of DCJ. Mr Hicks also proposed injunctions for both himself and Ms Gallego related to medication use, physical discipline, non-denigration, discussion of proceedings and similar standard injunctions. Mr Hicks sought a notation that DCJ would retain the authority to place Y to live with a parent.
The Secretary’s proposed orders at the commencement of the trial (MFI 10.2) were for the Secretary to have sole parental responsibility, explicitly including the authority to place Y with, and or determine what time Y spends with, either parent.
At the conclusion of the trial the Secretary’s final proposed minute of order (MFI 31) proposed Y spend no time and have no communication with Mr Hicks, and if necessary that there be s 68B injunctions for the protection of Y and his carers, and accepted the basis for the making of explicit reference to s 68C powers of arrest. The ICL for Y adopted the Secretary’s final proposed minute.
The Secretary and the ICL for Y also jointly proposed that while there would not be a total prohibition on Ms Gallego’s time or communication with Y, Ms Gallego should have no positive right to such time or communication, and that it be subject to the Minister’s exercise of parental responsibility including the imposition of conditions precedent to any time or communication occurring.
Mr Hicks’ proposal for supervised time with Y was said not to be a concession in relation to any issues of risk, but rather as being to ameliorate DCJ’s concerns. I consequently proceed on the basis that there is no implicit concession by Mr Hicks as to risk or the requirement for supervision.
THE FAMILIES
The case is factually complex due to the number of people involved. That includes Ms Turchi and her household, Ms Gallego and her household, Mr Hicks’ subsequent partner Ms F and her household, and other people against who Mr Hicks I find has, as noted elsewhere, committed acts of violence.
Present position
At present X, Y, and L (Y’s maternal half-sister to Ms Gallego) live with Ms Turchi. Ms Turchi lives with her new partner Mr B aged 49 . Ms Turchi and Mr B have known each other since about 2008 and have been in a relationship for just over 3 years, commencing cohabitation in mid-2021. Ms Turchi has been employed at a store and Mr B is a transport worker.
They are temporarily living with Ms Turchi’s adult child, Mr D aged 22, (who may, or may not, also be Mr Hicks’ child) in Mr D’s rental accommodation at Suburb R, having sold Mr B’s house. They will all shortly move to their newly purchased house at Town S. Y, and L, have been placed with Ms Turchi by the Secretary who holds interim parental responsibility. X and Y are high needs children, as is L. Ms Turchi and Mr B are prepared to care for Y and L long term.
Mr Hicks lives at his 8-bedroom home at Town T. He works full time and pays child support. He gives no evidence of having re-partnered.
Ms Turchi and her household
Mr Hicks and Ms Turchi commenced cohabitation in early 1995. They separated many times in the context of family violence but reunited. The relationship finally ended on about 22 June 2017 because of a serious assault by Mr Hicks. Mr D lived with them.
Mr D may or may not be Mr Hicks’ child. Mr Hicks signed X’s birth certificate acknowledging Mr D as an older sibling, with Ms Turchi’s consent. Mr Hicks no longer acknowledges Mr D as his child. Ms Turchi now seems content to accept that position. Nevertheless, Mr Hicks had treated Mr D as his child at the time Mr D alleged Mr Hicks assaulted him, discussed elsewhere.
From June 2017 X lived with Ms Turchi and spent regular time with Mr Hicks. On 1 to 2 May 2019 X moved to live with Mr Hicks in contested circumstances. Final orders were made by consent on 7 August 2019, with X to live with Mr Hicks and spend alternate weekends with Ms Turchi. That was contrary to the recommendation of the then Family Report of Ms U dated 6 February 2019 in the prior proceedings. Although legally represented Ms Turchi says she was overborne.
X moved back to live with Ms Turchi in early 2022 when Ms Gallego and X alleged that Mr Hicks had assaulted X, with Ms Gallego also leaving Mr Hicks on that day.
Ms Gallego and her household
Mr Hicks and Ms Gallego commenced a relationship from late 2017. Ms Gallego and her children commenced living with Mr Hicks in his house in about mid-2019. Ms Gallego has four other living children from prior relationships: A son who is an adult and not relevant to these proceedings; H aged 15, L aged 12 and V aged 11. Mr Hicks and Ms Gallego ceased living together on 13 January 2021 when Ms Gallego left.
Ms Gallego immediately commenced a relationship with Mr W. Mr W had been living with Mr Hicks and Ms Gallego from late 2021. Mr Hicks says Ms Gallego and Mr W had secretly commenced their relationship prior to early 2023 and that this was the reason Ms Gallego fabricated allegations of family violence against him. The Court was informed during the trial that Mr W has now pleaded guilty to charges related to the sexual abuse of H and is incarcerated.
Ms Gallego stated position, prior to submitting in the proceedings and ceasing to participate, was that she ended her relationship with Mr Hicks in about March 2021, following an assault on V by Mr Hicks, discussed elsewhere.
Mr Z is V’s father. Mr Hicks was convicted of an assault on Mr Z in early 2022, discussed elsewhere.
Ms Gallego subsequently commenced a relationship with a Mr AA. Mr AA is, on his own admissions to DCJ, as confirmed by drug testing organised by DCJ, a habitual drug user. Ms Gallego and Mr AA presently live in insecure housing. The reliable evidence from DCJ comfortably establishes that Ms Gallego likely has a current substance abuse problem. It is clear that, at present, Ms Gallego has no effective parental capacity.
DCJ have removed all of Ms Gallego’s children. Y and L live with Ms Turchi and Mr B. H and V are in other DCJ moderated placements.
Ms F and her household
Mr Hicks met Ms F through Ms Gallego. Ms F has five children. G aged 13, BB aged 12, CC aged 9, DD aged 6, and E aged under two.
It was common ground that G has mental health issues stemming from being sexually abused by one of Ms F’s former partners. G has refused treatment and is a highly vulnerable child. CC’s father was said by Mr Hicks to be in gaol for a serious criminal offence.
The relationship ended in November 2023 when Mr Hicks assaulted Ms F and, I find on the civil standard, also assaulted and battered G.
Mr Hicks said he had thought E was his child but gave evidence that “it has now come to my attention that I may not be [E’s] father”.[3] It appears that Ms F now also disputes Mr Hicks’ paternity of E.
[3] Affidavit of Mr Hicks filed 28 August 2024, paragraph 79.
However, at the date at which Mr Hicks held Ms F to the wall by her throat while she held E in her arm Mr Hicks believed E was his child.
THE CHILDREN
X
X has been diagnosed with Autism Spectrum Disorder Level 2, ADHD and Oppositional Defiance Disorder. He is on medication. Dr EE at FF Hospital is his specialist.[4] Ms Turchi and Mr Hicks also told Ms P, in the Child Impact Report interviews at [13], that X had anxiety and depression, and Mr Hicks said he had obsessive compulsive disorder.
[4] Affidavit of Ms Turchi filed 10 July 2024, paragraphs 11 – 13.
Ms Q also said, at [22] of her report, that X presented with common neurodivergent traits.
X's Behaviour Support Plan dated July 2022, referred to in the Child Impact Report at [14], states that:
these diagnoses significantly impact [X’s] ability to identify and regulate his emotions, follow instructions from caregivers, and participate in non-preferred tasks. [X’s] diagnoses also impact his problem-solving skills, meaning he can have difficulty thinking flexibly about triggering situations, remaining persistent, and making decisions. [X] also has trouble relating to others due to his social and communication deficits, which stems from his [Autism] diagnosis. These factors, in addition to his complex trauma background, influence [X’s] relationships and behavioural presentation on a daily basis. [X] engages in challenging behaviours like aggression as a method of communicating his emotions, as he is often unable to self-regulate or use other regulation techniques.
(Emphasis in original)
Ms Turchi and Mr Hicks both told Ms P that this was a fair description of X’s behaviour in general.
Ms Q observed X to be a “loving, caring child” whose only wish is to “have a relationship with both parents and not be placed into the centre of their disputes”.[5]
[5] Exhibit ICL Y3, paragraph 127.
It is not in dispute that X loves Mr Hicks and is attached to him and would like to spend time, and even to live, with him.
Y
Ms O reported that:[6]
8.[Y] is described by his mother as a “lovely, energetic child and very smart for his age”. She reported a diagnosis of [Y] for Attention Deficit Disorder, Autism Level 2, delays in his development including speech, and challenges with emotional regulation.
[6] Exhibit ICL X3, paragraph 8.
She also observed that “[w]hile he appeared to have expressive and receptive language skills, he appeared difficult to understand at times”.[7]
[7] Exhibit ICL X3, paragraph 142.
Ms O said:[8]
144.[Y] has many developmental needs, being diagnosed with ADHD, Symptoms consistent with Autism Level 2, global developmental delay and behavioural and emotional dysregulation. He attends Early Intervention and daycare, and is also seeing a behavioural therapist…
[8] Exhibit ICL X3, paragraph 144.
Having noted that all of the children in Ms Gallego’s household had similar diagnoses, Ms O said that “[g]iven the history available to this assessment, it also seems possible that the children’s behaviours could be a result of complex developmental trauma”.[9]
[9] Exhibit ICL X3, paragraph 144.
Ms O continued that “[i]n relation to [Y] specifically, any more trauma that he is exposed to, can compound the harm he has experienced. There are competing needs for [Y], and the priority is to protect him from future harm.” [10]
[10] Exhibit ICL X3, paragraph 144.
Ms Turchi administers Y’s medicines. She also currently facilitates his attendance with Dr GG, a specialist at FF Hospital.
Y is at Kindergarten at HH School and attends a Community childcare every weekday morning and afternoon. He has a NDIS plan of about $22,000 over the next 12 months.[11]
[11] Affidavit of Ms N filed 14 August 2024, paragraph 17.
Given Ms O’s opinion about the possible involvement of trauma, authority should be granted to the Secretary to release these Reasons for Judgment to any medical practitioner who treats Y. For similar reasons Ms Turchi should also have that authority in relation to X.
It is not in dispute that Y loves Mr Hicks and is attached to him.
NOVEMBER 2023 ASSAULT ON MS F
It is convenient to start with the most recent acts of family violence by Mr Hicks, particularly given that the events in question were captured on audio-visual CCTV footage, that Mr Hicks has pleaded guilty to assault on Ms F and to resist arrest and is charged with assault on G. There can be no doubt about Mr Hicks’ behaviours demonstrated in the footage.
Charges
In November 2023 Mr Hicks was arrested and charged with multiple offences relating to domestic violence towards Ms F, and in relation to G.[12]
[12] Exhibit ICl Y8.
As the proceedings were not concluded at the time of trial, Mr Hicks was given s 128 Certificates in respect of his oral evidence touching on the events of November 2023.
Mr Hicks’ trial affidavit
Mr Hicks affidavit evidence of the events was as follows: [13]
86.[In] November 2023, I was charged with, [multiple offences relating to domestic violence towards Ms F and G]. I entered pleas of not guilty to all charges and the matter was set down for a disputed facts/defended hearing [in mid-]2024. The matter was part heard and has been adjourned until [late]2024.
87.On [a] morning [in] November 2023, despite being grounded for [...] and various other misbehaviours, [G] left the home. At approximately 7-7:30pm, [G] asked to be picked up from the train station. When I collected [G], I observed [G's] pupils to be dilated and was acting unlike herself, and I reasonably believed that she was under the influence of drugs, namely cannabis. After dinner, and when [G] had settled down, I raised with [Ms F] that [G] appeared to have been under the influence of cannabis when I picked her up and attempted to invite a discussion about managing these behaviours in circumstances that [G] is only 13 years of age. [Ms F] did not really engage in the conversation and [G] started to get agitated and the tone of the conversation got heightened and [G] and I were both speaking loudly at each other and over each other. The situation escalated verbally between [Ms F, G] and I, and sometime after police were called and attended my property where I was charged and arrested.
88.At no time was [X] involved in or present during this incident. I recall [X] being somewhat confused when he came downstairs, and the police were at the front door.
89.I regret that I allowed the situation to become as heated as it was and that I behaved the way I did. I recognise that I overreacted on this occasion and my role and behaviour contributed to [G] and [Ms F] feeling unsafe in their home. I do not seek to excuse my behaviour, but I maintain that my main priority was [X], and the other children in the home and ongoing exposure to the behaviours displayed by [G].
90.[G] no longer resides with [Ms F] as [Ms F] sent [G] to live with her father in Sydney shortly after [Ms F] moved out of my home [in] November 2023.
[13] Affidavit of Mr Hicks filed 28 August 2024, paragraphs 86 – 90.
As discussed elsewhere, Mr Hicks had in fact pleaded guilty to the counts relating to Ms F and other charges prior to swearing that affidavit.
He also said: [14]
93.I was previously engaged with [Mr JJ] of [KK Counselling Service] and have engaged in anger management and general counselling. [In] November 2023, I attended my General Practitioner and completed a mental health plan with a referral to [ LL Psychology] and I attended my first appointment [in] December 2023 and have been continuing with regular appointments to address triggers for my over-reaction to the situation which occurred [in] November 2023.
94. [In] October 2022, I completed a Parents not Partners course through [WW Family Services]. I have further previously completed Triple P Parenting Program [in late] 2017 and Making Choices Program [in mid-]2018.
95.[In] October 2023, I registered myself with [MM Family Services] to engage in the 'Tuning into Teens' and ' 123 Magic". I have also since completed the Talking with Kids program. [In] October 2023, I took steps to enrol myself in an Autism Parenting Program through [NN Family Services]. Following several difficult changeovers with [X] in September 2023, I recognised that my ability to support [X] during difficult situations and at times that he becomes heightened that I needed to develop more suitable ways/strategies to speak with him so as to identify the reasons behind his behaviour and deescalate the situation and further to learn techniques to support [X] in his day to day life. Annexed and marked "B" is a copy of the certificates for the relevant courses.
(Emphasis in original)
[14] Affidavit of Mr Hicks filed 28 August 2024, paragraphs 93 – 95.
This evidence, in the context of the alleged pleas of not guilty and the then absence of the CCTV footage, was clearly intended to convey ongoing efforts at controlling his so described “over-reaction” to difficult situations.
CCTV and DVEC evidence
Mr Hicks’ house had CCTV video and audio recording equipment which captured certain elements of the events of November 2023. Mr Hicks’ evidence was that the CCTV cameras were installed by Ms F to monitor G.
A selection of those CCTV videos were provided by Ms F to police for use in Mr Hicks’ prosecution. Mr Hicks had been asked to produce those CCTV videos by an ICL before trial but had not done so. On the first day of the trial a subpoena was issued to obtain the 26 CCTV videos (Exhibit S1) and the Domestic Violence Evidence in Chief (DVEC) audio-visual recordings taken of Ms F (Exhibit ICL X4) and G (Exhibit ICL X5) on the evening in November 2023, including the police transcripts of those DVECs.
Mr Hicks objected to the admission of any of this evidence on the basis that Ms F and G were not available for cross examination. I admitted these over objections, indicating I would give short reasons in this judgment.
The 26 CCTV videos were relevant to the issue of Mr Hicks’ propensity for family violence. There was no dispute at to authenticity. They were admissible under Part VII Division 12A of the Act, see in particular s 69ZT. Further, in relation to G, prima facie as a child she would not be allowed to give evidence unless a specific order was made (s 100B) which would not have been appropriate, and her recorded evidence was admissible even if the hearsay rules had been ordered to apply as it was relevant to the welfare of another child or children (s 69ZV). Mr Hicks was aware of and consented to the device’s installation in his house and no issue of illicit recording arose. The probative value of these recordings outweighed any prejudice.
As required, the evidence having been admitted by reason of Division 12A, I take into account in the assessment of weight that Ms F and G were not available for cross examination. Mr Hicks gave evidence that Ms F had been selective in her provision of clips to police. I proceed on the basis that this is the case, and that the clips provide a small selection only of the events of the evening. In assessing these clips, despite my findings that Mr Hicks is an unreliable witness, I therefore proceed on the assumption that his allegations in relation to both Ms F and G’s behaviours in the days leading up to these events, which I detail in considering his oral evidence, are as he alleged. That assumption is not a finding in relation to either Ms F or G.
Ms F's DVEC
Ms F said that Mr Hicks was drinking. She said Mr Hicks said that he did not want to see X anymore and X “can go get fucked” and was not coming around. She said she was walking on eggshells. She said Mr Hicks called G a liar, a gronk, a dog and a mutt and BB a gronk. She said Mr Hicks was yelling at BB who was crying and who was told to go to his room, that G stormed upstairs and that when G came back down the stairs “he went to get up to go run at her” so she grabbed him by the pants while holding E, and he turned around and pushed her against the wall. She said “I've have been beaten by him from him before, so I don't. I didn't want to get hurt with. The baby in my arms…” and so she told G to go upstairs and lock her door. Then Mr Hicks ran up the stairs and she heard CC screaming and then she heard Mr Hicks punching or kicking his way in.
Ms F said that Mr Hicks pushed her against the wall but did not recall how his hands were placed. She said that he threatened to “flog” her.
She said of Mr Hicks “I'm scared because I know that he's gonna try and make my life a living hell.” She said his behaviour was “violence or narcissistic type” and that she was afraid of being “stalk and intimidate. He might smash up my, my car and whatever house I'm in, cause I haven't gotten house.”
When asked if she was scared Mr Hicks might hurt her stuff she said, “it's inevitable with this like he's like next level.”
Ms F’s evidence was consistent with the CCTV footage. If anything, it underplayed events, by not stating that Mr Hicks had his hand around her throat. As the evidence of Mr Hicks’ vindictiveness and harassment considered elsewhere shows, she was right to be afraid.
Ms F had told Ms O in the Family Report interviews, at [56], that she had had previous relationships characterised by serious family violence, but in relation to Mr Hicks “there are no red flags. If there was, I wouldn’t be with him”.[15]
[15] Exhibit ICL X3, paragraph 56.
I do not consider this evidence relevantly undermines Ms F’s credibility in the DVEC about family violence occurring prior to November 2023, given the CCTV footage and the other evidence of Mr Hicks’ propensity for family violence. New partners who are themselves the current victims of family violence not infrequently give evidence in this jurisdiction denying the existence of family violence in their relationship. That evidence is lead both to suggest that the prior partner is fabricating and that there is no current risk. The reasons new partners do this are complex, but fear of reprisals and the presence of a new child binding the person to the abusive partner are common reasons.
G's DVEC
G started by saying Mr Hicks “had a few drinks”. They had a disagreement, and he called her a liar and a mutt. She said she yelled at him and “stormed upstairs”. When she came downstairs, she said he “started again”. She said he told X “I don’t want you anymore. You’ve cost me too much money” which made X a bit upset and so she comforted X. She said Mr Hicks called her a liar, a mutt, a gronk and a dog repeatedly. She said he had called her all those names before. She said she threw her burger and stormed off upstairs to her room. She said she comforted X, CC who was crying, and DD. She said she went to get E but could not as Mr Hicks “tried chasing me” and “had mum against the wall.” She said, candidly, that she could not remember how Mr Hicks’ hands were placed but was sure Ms F was holding E. She told Mr Hicks not to harm Ms F and he said to her “you really wanna go?”.
She said Mr Hicks came up the stairs and she ran into CC’s room and locked the door and held herself against the door. She said Mr Hicks “kicked the door open”. She said the door was off its hinges, Mr Hicks pushed her to the floor, picked up the door and threw it at her. She said when he kicked the door down it was on its hinges then he ripped it off. She said she stood in front of DD, who had the door half laying on her legs, then CC ran out.
G said Mr Hicks “grabbed me by my shirt” and ripped her shirt. The rip to her shirt is clear on the video.
G said she went downstairs, and Ms F was out on the street. She went back up to check on BB and persuaded BB to come out. She said X was in his room with his door closed during most of these events.
G said she was not scared but mad.
G also spoke about a previous occasion when Mr Hicks was abusing Ms F “because he was drunk” and “his mum”, Ms C, “tried waking him up and then he went off his head”. She described seeing Ms F on a bed kicking Mr Hicks while he was punching her and Mr Hicks told them to “get out”.
G said she had fears Mr Hicks might do this again.
G’s evidence in the DVEC was consistent with what is shown on the CCTV footage, to the extent the CCTV covers events. Her evidence concerning the door being kicked open then taken off its hinges and thrown is consistent both with the explosive sounds heard on the CCTV clip, and with the pictures of the damaged door in the police photos (Exhibit ICL X9). Her ripped shirt is consistent with her statement that Mr Hicks grabbed her and ripped her shirt when throwing her to the floor.
The fact that G did not try and guess Mr Hicks’ hand position on Ms F, which was to Mr Hicks’ advantage given he had Ms F by the neck, suggests she was not exaggerating to harm Mr Hicks.
G’s evidence in the DVEC is consistent with the CCTV footage, the police photographs and the physical circumstances shown on the DVEC videos. I find it is substantially true. In that context and noting not only the CCTV footage but the other evidence, I find that G’s history of prior family violence is also probably true.
In reaching that conclusion I also take into account the statements of G and her siblings about Mr Hicks to Ms O, especially at [129] of her report, noting that at that time G had been brought in by Ms F to support Mr Hicks.
G, BB, CC and DD did not make any negative comments or disclosures about Mr Hicks. However, Ms O reported that:[16]
129.… [G] initially engaged in conversation, especially about her interest with drawing, however as the interview progressed she became quiet, responded to questions with one word answers, and lay on the floor under [BB’s] chair.
[16] Exhibit ICL X3, paragraph 129.
In oral evidence Ms O said she recorded G’s unusual behaviour as she was concerned by it. Given the evidence before the court, G laying on the floor wrapped around the chair as described by Ms O in oral evidence was consistent with G suffering stress by being required to say positive things about Mr Hicks while knowing the truth was as later reflected in the CCTV footage.
In context of all of the evidence I consider G’s behaviours in this Family Report interview to be consistent with her DVEC evidence of ongoing family violence, and a response to being required to say positive things about a family violence perpetrator who she was living with, and of who she was right to be afraid if she made any disclosures.
I do not consider her attendance on Ms O to support Mr Hicks’ case and failure to make any disclosures at that time reduces the reliability of G’s statements in her DVEC about family violence existing prior to November 2023.
Mr Hicks’ oral evidence in chief of guilty pleas
At the commencement of his oral evidence Mr Hicks gave additional evidence in chief. He said that there was an “error” in paragraph [86] of his affidavit 28 August 2024 where he said:[17]
86.…I entered pleas of not guilty to all charges and the matter was set down for a disputed facts/defended hearing [in mid-]2024. The matter was part heard and has been adjourned until [late] 2024.
[17] Affidavit of Mr Hicks filed 28 August 2024, paragraph 86.
In fact, he had entered pleas of guilty to the two counts concerning Ms F and the count of resist police before the affidavit was sworn. It was the two counts concerning G that were continuing the day after the trial in these proceedings concluded. Mr Hicks attributed this “error” to the affidavit being prepared over time, and confusion with his solicitor, over the change of pleas from the original not guilty pleas to all counts.
Mr Hicks’ legal representatives were clearly not aware of this fact at the commencement of the trial. I find this to be an intentional lie in the affidavit. I find that Mr Hicks intentionally gave false evidence in his affidavit for the purpose of concealing the truth of his guilty pleas and admissions of culpability from this Court in circumstances where the CCTV clips had not yet become available.
I find, taking into account all of Mr Hicks’ oral evidence, that these pleas were not indicative of any contrition but were prompted by the presence of overwhelming audio-visual evidence.
CCTV videos
The 26 CCTV videos were given chronological numbers in MFI 18. They start with 1 at 19:08.03 hours and proceed sequentially to 24, noting that there are numbers 3A and 3B, but no number 3, and numbers 17A and 17B, but no number 17. 3A and 3B overlap in time, as do 17A and 17B. While all clips are relevant, not all need be referred to.
At one point in video 11 Mr Hicks says to Ms F words to the effect “I’ve told [X] this is the last fortnight he’s coming here; I’ve given up altogether.” Mr Hicks was asked what effect he thought that might have on X. He said he had not thought about it. When asked again about how X would have felt Mr Hicks first said X did not react, which may be true, and then that he did not know how X would have felt. Only when pressed on whether he really did not know how his own son would feel when told this, Mr Hicks conceded X may have been negatively affected. At another point he defended saying this to X on the basis that X had done something wrong and said this was part of his direct and open communication with X and a part of their good relationship.
Mr Hicks conceded that he said words to the effect of “fuck off you’ve cost me $80,000”. He denied it was said to X. He said he was speaking to BB. He said he had spent that money on assisting Ms F in her application to have her two elder children in her care and additional costs associated with that. It was put to Mr Hicks that he was speaking to X. Mr Hicks maintained he was speaking to BB, aged 11 at the time, but agreed X was within earshot and conceded he should not have said it.
Throughout the footage Mr Hicks tells one or more of the children to “get fucked”, and it is clear that Ms F and the various children tread carefully around Mr Hicks, as Ms F described it, walking on eggshells. Mr Hicks can be heard calling BB “rat son” (video 5 and 6) and BB asks him to stop. Mr Hicks tells BB to tell X to “get fucked” and walks around telling various people “you can all get fucked” and saying “fuckin dogs” (video 7) and tells one of the children to “get fucked you cunt”. This was before Mr Hicks became physically violent.
Mr Hicks and G have an argument. Mr Hicks was aware of G’s history. He conceded in oral evidence she was a child who was likely to “go off if stirred”. He agreed he called her a “liar”, a “gronk” and a “dog”. He did not concede calling her a “mutt”, but the audio makes it clear he did.
In video 12 Mr Hicks stands, aggressively questioning and gesticulating towards G and yelling at her and calling her a liar, which she may well have been. Ms F asks Mr Hicks to stop yelling at G. G becomes distressed and storms off upstairs as Mr Hicks calls to her “do you want to have a go cunt”. Mr Hicks complains to Ms F that G has lied to him and that Ms F has not held her to account.
In video 13 Mr Hicks calls the children liars, G a “fuckin gronk” and a “mutt” and shouts at Ms F as he becomes increasingly agitated, and G storms off. In video 14 Mr Hicks grows increasingly loud and aggressive, shouting and yelling, asking why other children can’t live with their “fuckwit father”, and coming up and down off the sofa in apparent agitation. In video 15 he calls BB retarded.
In video 16 Mr Hicks and Ms F are together are in the living room. Ms F is holding E in her left arm. G is upstairs out of view. Mr Hicks goes to the base of the stairs and aggressively says “come down here tough guy”. Mr Hicks then starts to ascend the stairs, again saying “come down here tough guy”, clearly shouting at G. Ms F grabs his pant waist band and pulls him towards her to stop him approaching G. Mr Hicks stumbles backwards, a little, down the stairs. He quickly spins and grabs Ms F by the throat with his right hand. He pins her to the wall by the throat, his left hand beside her head as he leans down into her face and asks “why did you grab me then?”. Ms F is holding E throughout.
Mr Hicks’s evidence when shown this video in court, a video which he had previously viewed and which had already been shown in his criminal trial, was instructive as to the scope of his willingness to lie on oath. When shown the video in court, on a large and not particularly distinct screen, and first asked about this video he said:[18]
[COUNSEL FOR ICL Y]: But now is the issue I want to ask you about. You then spun around to you left and grabbed [Ms F] by the neck whilst she was--- -
[FATHER]: the shoulders. There’s not a choking charge. It’s by the shoulders and that come out at court.
[18] Transcript 5 September 2024, p.49 lines 12 – 14.
Seen only on the large indistinct screen, in court, that might have been arguable.
However, Mr Hicks was then shown the video on a small clear screen:[19]
[19] Transcript 5 September 2024, p.51 line 36 to p.52 line 20.
[COUNSEL FOR ICL Y]: …That’s it there. That’s your hand. That’s you there?---
[FATHER]: Mmm.
[COUNSEL FOR ICL Y]: And that’s [Ms F]?---
[FATHER]: Mmm.
[COUNSEL FOR ICL Y]:And that’s your hand?---
[FATHER]: Mmm.
[COUNSEL FOR ICL Y]: And do you agree that your hand is around her throat?---
[FATHER]: It’s on her shoulders and in close proximity to her throat so, yes, I – like I said, I wasn’t – you know, I wasn’t 100 per cent certain.
[HIS HONOUR]: Well, no?---
[FATHER]: So, yes, there you go.
[HIS HONOUR]: They’re two different things. One is around her throat. One is around her shoulders in close proximity. They are quite distinct things. It’s being suggested to you that the video shows your hand around her throat; what do you say to that, sir?---
[FATHER]: Well, the way – the way the video appears, that – that would be correct, if that’s - - -
[HIS HONOUR]: Yes.
[COUNSEL FOR ICL Y]: Thank you, your Honour.
[HIS HONOUR]: Yes. Thank you.
[COUNSEL FOR ICL Y]: When I asked you about that before lunch, you said that your hands were around [Ms F’s] shoulders, didn’t you?---
[FATHER]: I believe that’s so, and you also believed that there was other things that were said prior to me storming up the stairs as well. So, look, we were both wrong. I’m sorry.
[COUNSEL FOR ICL Y]: And what you then do is you then put your face straight to [Ms F] – your face goes up close to her face, and you say to her, “What did you do that for”, didn’t you?---
[FATHER]: Yes.
The video, on a small screen, clearly shows Mr Hicks’ hand firmly placed around Ms F’s throat, with his thumb on one side and his fingers on the other with sufficient pressure, as he pressed her throat to the wall, to force her chin up.
I find that Mr Hicks lied about the placement of his hands in his first answer on the basis that the video screen in court was indistinct, so that the placement of his hand might be open to doubt, giving him an opportunity to try and deceive the court. When shown the distinct video evidence on a small screen he still tried to dissemble, before finally admitting the truth of what was clearly shown.
The suggestion Mr Hicks appeared to make, that he wasn’t 100% certain and may have been misled by the poor video shown in court, can have no weight given Mr Hicks was present and was the person who put his hand around Ms F’s throat. He knew exactly what he had done.
Similarly, the submission made for Mr Hicks, presumably on instructions, that he held Ms F’s “neck” not her “throat”, because referring to “throat” incorrectly suggests chocking, was inconsistent with the footage. Mr Hicks has his fingers and thumb spread, so the meat of his hand presses her throat, forcing her chin up.
Returning to the footage in video 16, Mr Hicks lets Ms F go and pivots to the stairs where G’s shadow can be seen as she stands at the top. G yells at Mr Hicks not to touch Ms F and pointing out that she is holding a baby, to which Mr Hicks agreed in evidence he replied “what are you going to do about it cunt?”
Ms F tries to hold Mr Hicks’s arm to again restrain him. He tells Ms F they are going out or “I’ll flog you”. Over the loud cries of children from upstairs Mr Hicks yells at G “come down here cunt” gesturing aggressively with his arm.
In video 17A two explosive sounds can be heard followed by a child’s screams and CC running down the stairs crying followed by Mr Hicks.
That is consistent with G’s, and the police’s photographic, evidence of Mr Hicks kicking the door off the hinges of the room G and CC were hiding in. Ms F, holding E, shepherds CC outside while making a call, presumably to police.
“Leave all youse now” says Mr Hicks… “that’s it, you’re done, you’re done, leave”, as he follows them out the front door, then returns walking agitated around the living room.
In video 18 Mr Hicks tells someone, presumably the children still in the house, that they are to leave because “you don’t live here any more” and “you’re done, you’re all done”.
In video 20 X sits on the couch watching and listening to Mr Hicks while he stands at the front door speaking with police, who stand outside. Mr Hicks also speaks with some unidentified person on the phone. The police officer says to Mr Hicks, amongst other things, “you’re a violent man”. Mr Hicks replies “really I’m a violent man? That’s an assertion.” Then X says words to the effect of “that’s my opinion”, and Mr Hicks says “[X], [X]” implying X should be quiet.
When police tell him he is being arrested for assault on Ms F, Mr Hicks calmly asks police “how was she assaulted?”. When they tell him he’s under arrested he says, “I’m under arrest but you can’t tell me how it happens?”. When police enter from the rear of the house and attempt arrest, he says to police “I’m complying” while all the time physically resisting arrest. He repeats “I’m not resisting, I’m not resisting” as he resists.
X is present for the arrest, which occurs across video clips 20 to 24. Mr Hicks then shouts in what sounds like feigned pain as he verbally denies resisting arrest while all the time actively resisting arrest, requiring police to hold him down.
As with his plea of guilty to the assault on Ms F, the video clips would have made any attempt to deny his guilt of resisting arrest impossible.
Mr Hicks’ oral evidence
Mr Hicks was taken to paragraph [87] of his trial affidavit in relation to X and confirmed he had not sought to make any change to it. He said it summarised events. When asked if it sought to substantially reduce his involvement he said, “to a certain extent”. Mr Hicks accepted there was no indication he held Ms F against the wall while she held E in her arms, or of the verbal abuse, nor of the damage to the door, which Mr Hicks referred to as “the door that I removed”.
Mr Hicks denied that paragraphs [87]-[89] of his trial affidavit relating to X was trying to shift blame to G. He accepted that his conclusion that “his main priority was [X] and the other children” could be seen as trying to reduce the impact of his behaviours, saying that was his “perspective” and maintaining in oral evidence that his main priority was X. How any of Mr Hicks’ actions that night prioritised or aided X’s safety or wellbeing in any way was not articulated by Mr Hicks. When pressed on whether paragraph [89] sought to reduce his responsibility he again said, “to a certain extent” and then, seeking to deflect from the issues, referred to the fact that Ms F had “allowed all of this to transpire”.
I find that Mr Hicks’ affidavit evidence relating to November 2023 was designed to conceal the true nature and extent of his behaviours that night.
Despite saying in his trial affidavit relating to X, and repeatedly saying in oral evidence, that he admitted had had done wrong and was not seeking to excuse his behaviours of that night, Mr Hicks’ oral evidence on the topic was almost entirely directed to trying to provide justifications for his behaviours and to shifting blame to Ms F and G.
When asked if he in fact took full responsibility, Mr Hicks said that he told X he had “overreacted”. Overreacted was the same word he also used in paragraphs [89] and [93] of his trial affidavit relating to X to describe, and minimise, his behaviours that night. Assuming, for the sake of argument only, that Mr Hicks genuinely considered his behaviours that night was a mere “overreaction”, then his lack of insight into what constitutes acceptable and legal behaviours is established.
Mr Hicks attempted to deflect and to avoid answering questions. Mr Hicks’s opportunistic attempt to deny the CCTV showed him grabbing Ms F by the throat was one example. Calmly referring to the door he had kicked open to get to G as the “door that I removed” was another.
Mr Hicks repeatedly denied blaming G and Ms F for the events of that night, while doing precisely that throughout his evidence. Mr Hicks repeatedly said that Ms F did not provide all of the CCTV video and chose to supply police with only the parts that would make him “look like the bad guy”. Mr Hicks said that if all of the CCTV video of the evening and preceding days were available it would put the parts shown in a different light.
He said that in the period leading up to November 2023 Ms F stopped encouraging G to take her medications, that G had been cautioned by NSW Police for various offences and anti-social behaviours, and that he raised these matters with Ms F, but that on the day before G had started chastising him and spat in his face, after which Ms F grounded G. He also said that Ms F was operating an OnlyFans account and offering sexual services from his house, which he had just learned about the week before. Mr Hicks said that both Ms F and G denied that any of this happened, but that if the CCTV footage from the prior days was available it would show this and “tell another story altogether”.
Mr Hicks is a large and physically imposing man. Ms Q recorded, at [69]:[20]
69.[Mr Hicks] stated that his overall size and deep booming voice may seem intimidating and that he can be loud and assertive but that this is not to instil fear in anyone. [Mr Hicks] stated that he cannot control another person’s perception of him.
[20] Exhibit ICL Y3, paragraph 69.
The videos show that G’s head, at 13, barely reached his shoulders. She was a tiny fraction of his size, strength and mass.
When asked how additional CCTV footage proving these assertions would impact the assessment of his conduct, as a large shirtless six foot tall man saying to a 13 year-old-girl a fraction of his size with mental health problems “come down here tough guy” and “what are you going to do about it cunt”, he said it was because G had threatened to stab him and had threatened to have her boyfriend gutter stomp him and said he was “infuriated” by these “credible threats”.
The suggestion that Mr Hicks considered G, or some absent boyfriend, a credible threat is fanciful.
When specifically asked whether he thought that background made his behaviours more acceptable he said “no”, but then went on to justify his behaviours by suggesting that his behaviours were because he knew that X was upstairs. He did not clarify how X being upstairs made his behaviours justifiable. He also denied that X was impacted by most of what occurred because X was in his room with his headphones on and so would not have heard the events he did not witness. I reject that. The boom of the door breaking would likely have been heard as would the girls’ screams.
When asked whether Ms F’s grabbing him by the shorts as he went up the stairs towards G was protective of G, Mr Hicks said “to a certain extent”, but then went on to justify his behaviours by reference to G’s threats.
When it was put to Mr Hicks that even if everything he said was true it could not justify his behaviours, he did not answer but instead sought to divert attention by saying there was another active police investigation into an alleged stabbing of Mr Hicks by Ms F with a screwdriver in mid-2022.
No matter G’s behaviours, to suggest that defiance by a troubled 13-year-old who Mr Hicks says and knew was a victim of sexual assault with mental health issues, in any way justified Mr Hicks’ behaviours towards Ms F and G on the CCTV footage, shows the extent of Mr Hicks’ belief in his right to subject others to his violent behaviours.
Mr Hicks said he went upstairs and told G to come downstairs while banging on the door. He agreed he used sufficient force for it to come off its hinges. That is consistent with the loud bangs heard in the CCTV video. He said that CC ran out of the room, which is consistent with CC coming running and crying down the stairs in the video. He denied picking up the door and throwing it at G. He said he could not have because the bottom hinge was still holding the door. Mr Hicks said the video and the photo he was shown (part of Exhibit ICL X9) of the door on its side completely removed from the hinges was a result of him later going upstairs and removing the bottom hinge and leaning it against the wall and that the police, or someone, had then brought it out and laid it on the landing where it is seen in the video and some photographic evidence.
The police photographs in Exhibit ICL X9 show the door first lying flat on the floor in the bedroom. I am satisfied that photographic evidence is consistent with G’s version of events, and that Mr Hicks has lied about the door not coming off its hinges to minimise the event by trying to create a circumstance in which it was not possible for him to have thrown the door at G.
Mr Hicks has denied assaulting G. I am satisfied on the relevant standard that he grabbed her shirt, that he threw a door at her, and that despite her saying she was mad not scared it is likely she was highly scared, taking into account the CCTV footage, the fact that she tried to hide in CC’s room until Mr Hicks kicked the door off, and that on my viewing of the CCTV footage a reasonable adult male in her circumstance would have been fearful and for good cause. I find on the civil standard that Mr Hicks assaulted and battered G, regardless of the outcome of any criminal proceeding.
Mr Hicks denied he had been drinking that night. When asked whether his behaviour that night was therefore not affected by alcohol, he deflected by stating that everything had been building up in the days leading up to that date. Mr Hicks appears to be well affected by alcohol in the videos, but to the extent he says he was not it does not in any way assist his case.
Mr Hicks denied touching G. I reject that evidence and find that he grabbed G, tearing her shirt as she demonstrated in the DVEC.
Mr Hicks accepted that his anger management course “went right out the window”. Mr Hicks’ evidence at [93]-[95] of his trial affidavit relating to X, which referred to seeking help “to address triggers for my over-reaction” on this occasion gives no comfort that Mr Hicks recognises the gravity of his behaviours nor their consequences for those around him. I find that Mr Hicks’ conduct in attending courses and seeking counselling and evidence of accepting responsibility is merely performative and designed to assist his case and will not affect his likely future behaviours. Accordingly, I give no weight to Mr Hicks’ further engagement with LL Psychology given his inability to accept responsibility for his behaviours.
HISTORY OF FAMILY AND OTHER VIOLENCE
Ms Turchi gave evidence that Mr Hicks was verbally and physically abusive in their relationship. Mr Hicks denied this.
November 1994
There was an event in November 1994, when Mr Hicks was 17. Mr Hicks said he was having an altercation with his brother. His brother had an iron bar, and he had a cricket bat, consistent with police records. He said his mother put herself in the middle of it and got cut. This is relevant both to Ms C’s knowledge of Mr Hicks’ history and to the long-term nature of Mr Hicks’ violence.
September 1998 – Assault on Ms Turchi
In oral evidence Ms C said that she was ready, willing and able to act in a supervisory capacity and would prioritise the children’s interests and act appropriately and independently of Mr Hicks and would confront him if need be. She said that X was suspicious of outside supervisors.
When asked whether Mr Hicks had told her about the incident in November 2023, she said he had told her he “acted inappropriately”. She was shown the CCTV footage. She said she considered it disgraceful and inappropriate behaviour. She accepted that what was in the video was similar to Ms Gallego’s prior allegations, which she had told Ms O she did not believe.
In oral evidence Ms C was asked about the circumstances in which she turned up at Mr Hicks’ house in November 2023. She agreed that she had filed an affidavit on 22 August 2022 in which she said she had a good relationship with Ms F and that Ms F was “a wonderful parent”. She agreed that she occasionally stayed on the lounge in the house.
She said she first heard about the events of a date in November 2023 that night or in the early hours of the following morning when Mr Hicks called and told her. She said she called Ms F, at about midnight, to ask what had happened and Ms F handed the phone to a policeman. She did not call back the next day. She said she went to the house at 7.00 am or 8.00 am the next day and “I told her I was moving in and she said, no you’re not, she didn’t want to move out of the house, and so I haven’t spoken to her since.” When asked why she had cause to tell Ms F she was moving in, Ms C said she did not know really what had happened and she had always planned to move in so “I just thought I’d move in” and “I heard she was moving out, I’d heard that [Mr Hicks] had told her to move out.”
Ms C said she had spoken with Mr Hicks who told her that he had called Ms F’s mother the night before and told Ms F’s mother that he’d asked Ms F and her children to leave and that they’d be moving into her home, and she said that Mr Hicks told her she should move into the house. She said that when she told Ms F she was moving into the house “I didn’t mean that day”.
It was put to Ms C that she was “effectively a puppet for your son”. Ms C did not agree. She did not accept that her actions that morning were her acting as “a stalking horse” for Mr Hicks.
It was clear from this passage of evidence that Ms C attended the residence the morning after the assaults and told Ms F she was moving in with the intention to cause Ms F to move out and live with Ms F’s mother, who Mr Hicks had spoken to, and that she was acting as Mr Hicks’ agent to expel Ms F and her children, including E who Ms C believed to be her grandchild, the day after these assaults.
Ms Turchi said of Ms C that while she had an amicable relationship, and did not think there would be issues with a hand over, that she had seen Mr Hicks be very volatile towards his mother, and berate and swear at her numerous times and that she had no confidence that if Ms C saw an incident between Mr Hicks and either child that Ms C would bring that incident to the authorities or anyone’s attention.
In oral evidence Ms O said that Ms C sough to shift all blame to Ms Gallego, was defensive of Mr Hicks and aligned with his position. In that context and given the proposal that Ms C would act as a supervisor or provide a protective factor, Ms O was asked about Ms C’s capacity to act protectively toward X should something untoward occur, including in relation to both physical contact and Mr Hicks making derogatory comments. Ms O indicated that given Ms C’s position in the interview she had concerns about this. Those concerns are consistent with the issues raised by the authorities about relative supervising.[50]
[50] See, B & B (1993) FLC 92-357.
In closing oral submissions for Mr Hicks, it was conceded that Ms C has been in Mr Hicks’ “camp”, but submitted that the court could draw limited conclusions from her attendance the following morning and her telling Ms F she was moving in. It was submitted that this could have been in effect a protective mechanism with Ms C moving in to help keep an eye on things and that, given it was an 8-bedroom house, it was not necessarily to require Ms F to move out.
The difficulty with Mr Hicks’ submission, and to some extent the submission for the ICL for X, is that Ms C’s stated blindness to Mr Hicks’ long term violent and controlling behaviours in her affidavit and in her statements to Ms O is inconsistent with the extent of contact she and Mr Hicks both state she has had with Mr Hicks over the years and her willingness to seek to evict Ms F the day after the assault.
I accept Ms Turchi’s oral evidence that Mr Hicks would berate and swear at Ms C over Ms C’s oral evidence that she does not accept Mr Hicks swearing.
Given all the evidence about Ms C’s involvement in Mr Hicks’s life, including attendances at various court proceedings, I do not believe that Ms C genuinely did not know how violent and emotionally unregulated Mr Hicks was. I do not accept that Ms C, effectively, did not know who her son Mr Hicks really was until she saw the CCTV footage in court.
I accept the submission for Ms Turchi, noting the gravity of the finding, that following the incident in November 2023 Ms C attended Mr Hicks’ residence and advised Ms F she was moving in to effectively evict Ms F. I find that Mr Hicks’ actions in this regard were a form of coercive control and family violence flowing from his assault on Ms F. I find Ms C knowingly acted as Mr Hicks’ agent in this act of coercive family violence.
I find Ms C’s attempts to deflect in evidence, by suggesting that she was always going to move in, and this just happened to be the day she turned up and advised Ms F of that fact, or that she understood that Ms F was moving out because Mr Hicks had arranged it with Ms F’s mother, to be disingenuous.
Whether Ms C was acting as Mr Hicks’ agent through fear, or loyalty to her child, her conduct in turning up to effectively evict Ms F and her children early in the morning of a date in November 2023, knowing that he had been arrested for her assault the night before, shows that she is willing to be Mr Hicks’ agent in coercive family violence.
In the same way, Ms C’s affidavit evidence, and her statements to Ms O, which denied Mr Hicks’ violence and sought to blame Ms Gallego were, I find, intentionally designed to present the court will a false and misleading picture of Mr Hicks.
In the context of my findings concerning Mr Hicks and the extreme and persistent extent he is likely to go to punish and hurt those who have thwarted him, Ms C as his agent represents almost as serious a risk to X and Y, and to their carers, as Mr Hicks does.
Had I been asked to make s 68B injunctions directed to Ms C for the protection of X, Y, Ms Turchi, Mr B and members of their household, and any other household in which Y may live from time to time, I would have.
X - COURT CHILD EXPERT MS O
Court Child Expert Ms O interviewed Mr Hicks, Ms Gallego, Mr W, Ms F, Ms C, Y and Ms Gallego’s children H, L and V in person on 13 July 2023 and produced the Family Report dated 24 July 2023.
At that time Y lived with Ms Gallego, Mr W and his half siblings H, L and V, while Mr Hicks lived with Ms F, G, BB, CC, DD and E.
Ms O relevantly stated that:[51]
154.If the Court determines there is any truth to the allegations of physical abuse of the children by [Mr Hicks], [Y] would be at great risk, due to his age and specific developmental needs, including as he grows older when his behaviour may become more challenging for his parents to manage. It is difficult to see any mitigating factors that could be present that would protect [Y] in this scenario, other than ongoing supervision.
[51] Exhibit ICL X3, paragraph 154.
In the Family Report and in oral evidence Ms O discussed supervision. However, having seen the footage of November 2023 and being asked to assume the history of family violence as I find it, Ms O’s opinion was that if that history and footage represented Mr Hicks’s likely future behaviours, which I find they do, then the appropriate order would be for no time and no communication.
X - COURT CHILD EXPERT MS Q
Ms Q prepared a Family Report dated 11 August 2023 (Exhibit ICL Y3), in respect of X based on in person interviews on 1 August 2023 with Ms Turchi, Mr B, Mr Hicks, Ms F and X, with observations.
Ms Q noted, at [128] that X seemed to have been influenced by Mr Hicks in concluding that it was Ms Turchi who was preventing his relationship with Mr Hicks. She also noted at [130] that Mr Hicks presented well, and it was Ms F’s forthrightness that provided her a glimpse of what was occurring in terms of denigration of Ms Turchi. Ms Q’s opinion, at [134], was that X should live with Ms Turchi. Having interviewed the parties and noted Mr Hicks’ manipulative undermining of Ms Turchi to X even in her presence, Ms Q stated:[52]
135.The Report Writer realises that [Mr Hicks] is likely to continue to subtly attempt to disrupt [X’s] placement with [Ms Turchi], however ongoing supervision is not practical, and if [X] was prevented from spending time with [Mr Hicks], this would likely cause [X] more distress. The Report Writer is unsure how to address these opposing dynamics but believes that [X] should spend time with [Mr Hicks].
[52] Exhibit ICL Y3, paragraph 135.
Ms Q was shown the CCTV footage and DVECs prior to giving oral evidence.
Ms Q considered that, in the context of all of the evidence, X’s view that he wanted to live with Mr Hicks could not carry much weight. In this context she did not think that unsupervised time was appropriate as X would be unlikely to report any issues and she held concerns with long term supervision.
On the assumption that the court found that Mr Hicks’ behaviours across time, from 1998 to the present, were of the type demonstrated on the CCTV footage, Ms Q recommended that there be no time or communication, even though this will cause X significant distress.
MS GALLEGO'S PARENTAL CAPACITY
The evidence establishes to my comfortable satisfaction that Ms Gallego has limited, if any, current parental capacity. She is unable, or unwilling, to prioritise Y’s basic needs over her own. For example, Ms Gallego missed visits with Y despite these being relatively limited, then sought to reduce her time with Y to monthly visits because she had moved to Sydney with Mr AA and it was inconvenient to travel to City UU, with no apparent consideration for the negative impacts of this on Y.
Clearly related to, and perhaps causative of this current parental incapacity, I find it is likely that Ms Gallego has ongoing substance abuse issues, noting paragraph [55] of Ms N’s second affidavit and the table at pages 99-101 of that affidavit, setting out the attempts to obtain samples from Ms Gallego for testing, and the clear evidence of ongoing substance abuse issues of her partner Mr AA.
In this context I accept the submission of the ICL for Y, supported as I understand it by the Secretary, that Ms Gallego has shown a reckless indifference to Y’s welfare. I also accept the submission that there is an important distinction between Mr Hicks and Ms Gallego, which is that the evidence does not rise to the level of malice, nor the intentional infliction of family violence on Y or other children by Ms Gallego.
It is that distinction, together with the possibility that Ms Gallego may at some stage rehabilitate her life, which means that the ICL and Secretary support orders effectively terminating Ms Gallego parental rights but leaving it open to the Secretary to facilitate Ms Gallego’s involvement with Y if, and when, it is safe for that to occur.
It would obviously be in Y’s best interests if Ms Gallego can have an involvement in Y’s life, and she may be an avenue for him to maintain a connection with culture, but ultimately that is a matter for Ms Gallego and whether she can prioritise Y’s needs over her own.
The appropriate orders for Ms Gallego are in line with those proposed by the Secretary and supported by the ICL for Y.
As Mr Hicks submitted, these orders together with the orders I propose to make barring his involvement with the children creates the real risk that Y will eventually lose contact with both parents, but the Secretary and ICL, through Ms N and counsel, emphasised the issue of Y’s safety and I agree that must be the priority.
MS TURCHI'S PARENTAL CAPACITY
Mr Hicks alleged that during their relationship Ms Turchi was short tempered and would often shout and swear at X, and use physical discipline, grabbing him, dragging him and hitting him causing X to run to Mr Hicks “for protection.”[53] Mr Hicks also referred to involvement of DCJ in 2020 after Ms Gallego reported to DCJ that X had disclosed observing people having sex while in Ms Turchi’s care and in November 2021 after Ms Gallego reported to DCJ that X disclosed being dressed in girls’ clothing in Ms Turchi’s care.[54] He alleged, as I understand it , that Ms Turchi improperly relied upon a document he had signed prior to her amending it and signing it and providing it to the Child Support Agency as an issue going to credit.[55] He also said that Y had told him that X was denigrating him having heard Ms Turchi and Ms Gallego both denigrate him.[56] He also made general complaints that he had not been kept informed of X’s educational nor medical developments, treaters, NDIS plan etcetera and that Ms Turchi was recording his phone conversations with X.[57]
[53] Affidavit of Mr Hicks filed 28 August 2024, paragraph 19.
[54] Affidavit of Mr Hicks filed 28 August 2024, paragraphs 23-24.
[55] Affidavit of Mr Hicks filed 28 August 2024, paragraph 30.
[56] Affidavit of Mr Hicks filed 28 August 2024, paragraphs 34.
[57] Affidavit of Mr Hicks filed 28 August 2024, paragraphs 35-36, 73.
I do not accept Mr Hicks’ evidence on these issues where it is not corroborated.
I am satisfied that Ms Turchi was an honest witness. Her hesitations in the witness box were consistent, in my view, with fear and apprehension in the context of her evidence of her, on my findings well founded, ongoing fear of Mr Hicks.
Ms Turchi said she is fearful of Mr Hicks. Noting my findings I find Ms Turchi’s fear to be both genuine and well founded.
There is no evidence which causes me to have any current concern for X or Y in Ms Turchi’s care. DCJ’s recent investigation into Ms Turchi’s household for the purpose of placement of Y and L supports that view.
The major demonstrated weakness in Ms Turchi’s parental capacity has been the inability to withstand Mr Hicks’s behaviours in a way that protected X. That is not intended as a criticism of Ms Turchi’s conduct, which must be viewed in the context of a domestic violence victim faced with a “next-level” family violence offender who understands and manipulates the police and legal systems to facilitate his harassment in plausibly deniable ways which will, generally, not be provable in a criminal court.
This finding is relevant to my finding that allowing Mr Hicks any point of entry at all into X’s life, or Y’s life, will create a significant risk, if not likelihood, that Mr Hicks will again harass and seek to overbear Ms Turchi to obtain what he wants contrary to X’s best interests, as he did when he overbore Ms Turchi in May of 2019 and obtained consent court orders contrary to the recommendation of the then Family Report.
DECISION
The parties seek parenting orders (s 64B), which the Court has power to make (s 65D(1)) within the context of the objects of Part VII (s 60B) and the requirement that each child’s best interests is the paramount consideration (s 60CA and s 65AA) having regard to the mandatory criteria (s 60CC). The objects of Pt VII of the Act are to (a) to ensure that the best interests of children are met, including by ensuring their safety; and (b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989 (s 60B).
The parents have parental responsibility (s 61C), being all duties, powers, responsibilities and authority conferred by law upon parents (s 61B), unless and until an order is made changing that position.
An order allocating parental responsibility for a child in relation to “major long-term issues” may be made to one or more people and may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). “Major long-term issues” includes matters such education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). This does not require consultation about minor decisions which fall outside the concept of “major long-term issues” (s 61DAB).
The first general consideration in s 60CC(2) is what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of X and Y, and of each person who has care of X or Y, whether or not a person with parental responsibility for them, which here includes Ms Turchi and her household and any person who the Secretary may decide Y should live with in future, which may include Ms Gallego and her household.
For the reasons set out elsewhere I find that Mr Hicks poses a grave risk of physical and psychological harm to X, to Y, to Ms Turchi and her household and to any other person who has the care of either X or Y. I find that neither X nor Y, nor any person who has care of either of them, can be safe while Mr Hicks plays any role in or has any access to their lives, directly or indirectly.
X’s and Y’s safety, as well as that of Ms Turchi, weigh strongly against Mr Hicks having any time or communication with either of them, nor any ability to engage with, influence or access either X, Y or any person responsible for their care including their households, their schools, medical or other service providers.
A further factor to be considered is any views expressed by either child.
Y clearly loves and is attached to Mr Hicks but is too young for any weight to be attached to his views, particularly in the context of the safety concerns.
There is no doubt that X strongly wants to spend time with, and maintain a relationship with Mr Hicks, and possibly even to live primarily with him. Given his age weight must be placed on those views.
Taking into account X’s views, the ICL for X proposed indefinite supervision to ameliorate some of the loss X will feel from the proposals for no-time and no-communication.
Ms Turchi submitted that although X wants to spend time with Mr Hicks there is no utility in the ICL’s proposal for X to spend 4 hours of supervised time with Mr Hicks 4 times a year. It was submitted X knows who Mr Hicks is and has a firm view of him as a violent man who X loves anyway. It was submitted that there was no benefit to X, and instead was a risk to him, in maintaining the connection and allowing Mr Hicks an avenue into X’s life. If the Court does order indefinite supervision, it was submitted that Ms C would not be an acceptable person to supervise.
Indefinite supervision is an option available to the Court, with or without a review mechanism.[58]
[58] See, Pointer & Cheadle (No 2) [2023] FedCFamC1F 602 at [268]-[271].
Taking into account X’s neurodiversity, the expert evidence about the impact of that on his capacity to self-protect from Mr Hicks prior to age 18, and given the fact that X already has a strong view of Mr Hicks, and says Mr Hicks hits him but that he does not care, and given my findings on the risk Mr Hicks poses to X’s psychological and physical safety, this is a case where X’s views are not in X’s best interests and cannot be acted on.
Both X and Y have particular developmental, psychological, emotional and cultural needs as a consequence of their high needs as set out elsewhere. I find that Ms Turchi has the capacity to provide for X’s 's developmental, psychological, emotional and cultural needs, as does the Secretary for Y’s, and that Mr Hicks has no effective capacity to provide for any of those needs.
Both X and Y would benefit from being able to have a relationship with Mr Hicks, but only if it were safe to do so, which it is not.
I have set out elsewhere the history of family violence and family violence orders relevant to these proceedings.
Section 60CC(3) provides a standalone best interest factor requiring the court to consider the right of Aboriginal or Torres Strait Islander children to enjoy their culture by having the support, opportunity and encouragement necessary to connect with, and maintain their connection with members of their family and with their community, culture, country and language; and to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and to develop a positive appreciation of that culture. I am also required to consider the likely impact any proposed parenting order under this Part will have on that right.
In relation to Y, Mr Hicks told Ms O that:[59]
11.[Y] is reportedly Aboriginal, with his nation and community of belonging being […]. [Mr Hicks] claimed he does not identify as Aboriginal and does not want to claim this for [Y]. [Ms Gallego] reported she identifies as Aboriginal, however she has been unable to find her family or secure a certificate of Aboriginality. [Ms Gallego] reported her support of [Y's] Aboriginal status, and supports his Aboriginal cultural heritage through his love of music, boomerangs and activities at daycare. [Ms Gallego] said she is […], and that while she remains interested in her religion, the customs are difficult to follow.
[59] Exhibit ICL X3, paragraph 11.
Ms O commented that:[60]
155. [Y] is Aboriginal, with his nation and community of belonging being […]. While his father does not identify as Aboriginal, he also does not recognise [Y’s] mother’s Aboriginality, and there would seem to be a real risk of [Y] not being supported by his father to maintain his cultural identity and heritage. This could potentially have a significant negative impact on [Y’s] self-esteem and confidence. As a developing young […] man, it is essential he experiences positive male role models, who support his connection to culture, country, language and customs. [Ms Gallego] has identified as Aboriginal, and articulated her support of the children maintaining their Aboriginal culture, which is a benefit to [Y].
[60] Exhibit ICL X3, paragraph 155.
In relation to X, Ms Q recorded that:[61]
11. [Mr Hicks] stated that he discovered in the last 5 – 6 years that he has Aboriginal heritage, being […]. [Mr Hicks] stated that there is a death certificate for his great grandfather but no birth certificate. Although [Mr Hicks] is Aboriginal, he does not identify but thought it best to tick the box on the Court documents as he did not want to be seen as being untruthful.
12. [Ms Turchi] stated that she is aware that [Mr Hicks] has Aboriginal connections but that he has never identified and it is not on the children’s birth certificates.
[61] Exhibit ICL X3, paragraphs 11-12
In oral evidence, Mr Hicks referred to his Aboriginal heritage and its importance to the children. In cross examination for the Secretary, Mr Hicks avoided answering the question of whether he had changed his opinion about not identifying, and not wanting to claim indigenous heritage for Y, noting his statement to Ms O. Mr Hicks did not deny his comments but said there was uncertainty, not disinterest. When repeatedly pressed on why he had said that he did not want to claim this heritage for Y he said “I don’t know”, before later suggesting it was lack of certainty that led to this statement.
I find that Mr Hicks’ statements to Ms O likely represented his true opinion. I find his subsequent evidence about interest in indigenous heritage was given solely for forensic reasons to promote his case. Given that, I am not persuaded that it is likely that Mr Hicks would take active steps to promote either X’s or Y’s connection with their indigenous heritage if involved in their lives.
Ms C gave evidence that she learned about her potential indigenous heritage when she was a child, 65 years ago, when it was something to be ashamed of. She said that it has not been confirmed, as there is no birth certificate for her mother’s father, and there is no land council or indigenous group which currently recognises her family as indigenous. However, enquiries continue.
Given the orders I consider necessary to protect X and Y’s safety from Mr Hicks, and Ms Gallego’s lack of parenting capacity, there is a significant risk that both X and Y will be deprived of the major familial avenues available to them to enjoy their rights to Aboriginal culture, and to Y to enjoy his right to his religious heritage.
The Secretary and both ICL’s emphasised that this is an important mandatory consideration. However, the Secretary also submitted the nature and extent of Mr Hicks’ family violence behaviours means that the risks to X and Y posed by Mr Hicks outweigh the benefit to them of seeking to maintain connection to culture through Mr Hicks.
I accept that the Secretary and Ms Turchi will seek to ameliorate this issue though connection through Ms Gallego, where safe, cultural plans and such other action to connect X and Y with members of their cultural groups as is possible. X has attended Aboriginal culture classes through school, although there was some interruption to his attendance, and I accept Ms Turchi’s evidence that she will promote X’s, and Y’s, cultural connection as will the Secretary.
NSW POLICE LIAISON
The evidence overwhelmingly establishes that Mr Hicks is a violent, cunning and manipulate man who will likely seek to harass and punish his former partners, their partners and anyone associated with the result of these proceedings.
His propensity of choking and strangulation means that he poses a risk of lethality.
Protection of Ms F
During the course of evidence Mr Hicks said that he was aware generally where Ms F currently lives. He said this was because police officers had inadvertently disclosed it to him when questioning him about whether he was harassing her home, in the context of the criminal proceedings and ADVO proceedings for the protection of Ms F and her household. That evidence was given subject to a certificate pursuant to s 128 of the Evidence Act 1995 (Cth).
Whether Mr Hicks has that information through police inadvertence, or some other means, given Mr Hicks is aware where Ms F lives this information should be brought to the attention of NSW Police and Ms F if she still lives there.
Harassment of parties, witnesses and others associated with proceedings
Mr Hicks has a proven propensity to harass, even many years later, people who speak to police or give evidence against him, or who he perceives as having stood against him.
He is a cunning man who well understands the concepts of subterfuge and plausible deniability, and the limited resources available to police to investigate ongoing but difficult to prove threats and harassment.
In this context, if any complaint is made to NSW Police by any former partner or person associated with these proceedings of such harassment or threats, including anonymous threats or harassment through Ms C or other third parties, resources should be allocated to investigating the alleged harassment given the risk of escalation to lethality.
Ms C as Mr Hicks’ agent
As noted elsewhere, I find that Mr Hicks’ mother Ms C has acted as Mr Hicks’ agent in harassing people in relation to legal proceedings, including turning up early the morning after Mr Hicks was arrested for assaulting Ms F to effectively seek to evict Ms F and her children from the residence.
It is likely that Mr Hicks will again use Ms C as his agent in any campaign of harassment or to circumvent these orders.
Any actions which would, if conducted by Mr Hicks, be a breach of these orders undertaken by Ms C without the written invitation of the Minister or Ms Turchi, should be investigated as a likely breach of the orders by Mr Hicks and Ms C as his accomplice.
Weapons
A number of unconnected witnesses have reported Mr Hicks has access to weapons.
While there is insufficient evidence to make a positive finding, the consistency of references across unrelated households and Mr Hicks’ violent history cause me to consider that there is a real possibly that Mr Hicks has had, and may have, access to weapons.
ORDERS
X
I make orders discharging all extant parenting orders. I allocate sole parental responsibility for long term decision making to Ms Turchi, and order X to live with Ms Turchi. I make orders that X spend no time and have no communication with Mr Hicks, supported by orders pursuant to s 68B and noting s 68C for the protection of X, Ms Turchi, Mr B and any other person living with them given Mr Hicks’ propensity for violence and subterfuge and the risks that may place any person living with X at.
I will not make any orders as proposed by the ICL for X permitting Mr Hicks access to school or other records, or requiring Ms Turchi to keep him informed of any matters, as such orders are likely to facilitate Mr Hicks’ capacity to disrupt or subvert these orders and place X and Ms Turchi and her household at risk and reduce their safety.
I do not consider it necessary to impose any injunctions on Ms Turchi where I have no reason to believe that she will physically chastise X, discuss the proceedings or denigrate Mr Hicks to him or otherwise act contrary to X’s best interests.
Ms Turchi may provide a copy of the Orders to any school, medical or allied health professionals or other persons responsible for X’s care from time to time so that they are aware that Mr Hicks is to be given no access to X nor to any information concerning X nor Ms Turchi or her household.
Ms Turchi may provide a copy of these Reasons for Decision to any treating medical or allied health practitioner who may be assisted by understanding X’s family and trauma history.
Ms Turchi is to liaise with the ICL for X to facilitate the ICL for X explaining these orders in a child appropriate manner, whereafter the ICL for X be discharged.
The ICL for X is required to, and does, seek costs from Mr Hicks. If the ICL for X and Mr Hicks agree terms they may send them to chambers for making by consent. If there is no agreement the ICL for X is to contact chambers to relist the matter for short submissions on the issue of costs within 28 days.
A copy of these Orders and Reasons for Judgment be provided to the NSW Police Liaison with particular reference to concerns that Mr Hicks is aware of Ms F’s residence, and for the future protection of Ms Turchi, Ms Gallego, there households and any other person associated with these proceedings.
Y
By consent, all current parenting orders be discharged, and the Minister have sole parental authority for decision making for all major long-term issues for Y including whom Y should live with from time to time.
I make orders that Y spend no time and have no communication with Mr Hicks, supported by orders pursuant to s 68B and noting s 68C. I note this restraint on the Minister’s exercise of parental responsibility is made with the Minister’s consent. I make the restraints in relation to Ms Gallego proposed by the Secretary.
The Minister may provide a copy of the Orders to any school, medical or allied health professionals or other persons responsible for Y’s care from time to time so that they are aware that Mr Hicks is to be given no access to Y nor any carer.
The Minister may provide a copy of these Reasons for Decision to any treating medical or allied health practitioner who may be assisted by understanding Y’s family and trauma history.
The ICL for Y is required to, and does, seek costs from Mr Hicks. If the ICL for Y and Mr Hicks agree terms they may send them to chambers for making by consent. If there is no agreement the ICL for Y is to contact chambers to relist the matter for short submissions on the issue of costs within 28 days.
A copy of these Orders and Reasons for Judgment be provided to the NSW Police Liaison.
I certify that the preceding three hundred and ninety-four (394) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 4 October 2024
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