Hicks & Gallego

Case [2024] FedCFamC1F 670

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hicks & Gallego [2024] FedCFamC1F 670  

File number(s): NCC 788 of 2022
NCC 3107 of 2022
Judgment 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 &…

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Details
AGLC
Hicks & Gallego [2024] FedCFamC1F 670
Case
[2024] FedCFamC1F 670
Decision Date

CaseChat Overview and Summary

In the matter of Mr Hicks and Ms Gallego, the Federal Circuit and Family Court of Australia was tasked with making parenting orders concerning two children, X and Y. The primary legal issue was determining the best interests of the children, considering the allegations of family violence and the risk posed by the father, Mr Hicks. The court had to decide whether Mr Hicks should have any parental responsibility, time, or communication with the children, and if so, under what conditions.

The court found Mr Hicks to be an unreliable witness and determined that he posed a high and unacceptable risk of physical and psychological harm to both children. The evidence included CCTV footage of a violent incident involving Mr Hicks and his ex-partner, which corroborated multiple allegations of family violence. The court concluded that any involvement of Mr Hicks in the children's lives would significantly endanger their safety and well-being. Therefore, the court made orders prohibiting Mr Hicks from having any time or communication with the children, and imposed restraints on him to prevent any contact or harassment.

The court also found that the mother, Ms Gallego, had no current parenting capacity due to her withdrawal from the proceedings. Consequently, the Minister for Families and Communities of New South Wales was granted sole parental responsibility and decision-making authority for child Y. The court made specific orders to ensure the safety and protection of the children, including restrictions on the mother's activities and interactions with the children, and provisions for communication and information sharing with relevant authorities and professionals.

The final orders included discharging all previous parenting orders concerning child Y, granting the Minister sole parental responsibility and decision-making authority, prohibiting Mr Hicks from having any time or communication with Y, imposing restraints on Mr Hicks to prevent contact or harassment, and restricting Ms Gallego's rights to spend time with, communicate with, or have any involvement in Y's life, subject to the Minister's discretion. The court also made provisions for the dissemination of the orders and reasons to relevant parties, including educational and healthcare providers, the police, and the children's services.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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