Hinton & Wolfe
[2025] FedCFamC2F 229
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hinton & Wolfe [2025] FedCFamC2F 229
File number(s): WOC 480 of 2024 Judgment of: JUDGE TAGLIERI Date of judgment: 21 February 2025 Catchwords: FAMILY LAW – review application – interim parenting proceedings – where the father alleges that the mother’s new partner is a risk to the children – assessment of risk in interim parenting proceedings – order restraining the mother from leaving the children alone in the presence of her new partner for more than 3 hours Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC(2), 60CC(2)(a), 60CC(2)(d), 60CC(2A), 60CC(2A)(a)
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) sch 4 cl 2, rr 10.13, 14.07
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254
Cases cited: Goode & Goode [2006] FamCA 1346
Lavigne & Gavin [2021] FamCA 612
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Division: Division 2 Family Law Number of paragraphs: 31 Date of hearing: 6 February 2025 Place: Hobart Counsel for the Applicant: Ms Otrebski Solicitor for the Applicant: Rossi Simicic Lawyers Counsel for the Respondent: Ms Doosey Solicitor for the Respondent: Foye Legal ORDERS
WOC 480 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HINTON
Applicant
AND: MS WOLFE
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Until further order, the Respondent Mother MS WOLFE is restrained from leaving the children X born 2013 and Y born 2015 alone in the presence of MR C for a period of longer than three (3) hours.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
Interim parenting orders were made by a Senior Judicial Registrar in these proceedings on 6 November 2024 (“the interim parenting orders”) concerning two children, X aged 11 years and Y aged nine years (collectively “the children”).
By Application for Review dated 22 November 2024 the Respondent Mother Ms Wolfe (“the Mother”) seeks to discharge Order 19 of the interim parenting orders. The relevant order provided that:
19.The Mother is to ensure that the children not be left alone in the car of [Mr C] for a period longer than thirty (30) minutes.
By virtue of a correction under the slip rule,[1] Order 19 appears as Order 20 in the published and corrected Orders. It is Order 20 which is now the subject of this review. The parties did not raise this with the Court, but it is self-evident that all parties were addressing the same question in submissions made on the review. For the reasons below, the Order which is subject to review is referred to as Order 20.
[1] Rule 10.13 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”).
The Mother adopted an alternate position during the course of the review hearing. Namely, that if the Court was not persuaded to simply discharge Order 20, it ought to make an order that the children may be left alone in the care of Mr C, her partner, for a period longer than thirty minutes.
The parties are agreed that the only issue on the review is whether Order 20 should be discharged or whether some other restraint order should be made in relation to the children being left alone in Mr C’s care.
REVIEW PRINCIPLES
The order subject to the review was an interim parenting order made by a Senior Judicial Registrar pursuant to delegated powers[2] and is subject to judicial review.
[2] Section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and in Schedule 4, Clause 2 of the Rules, by adoption.
Part 14.3 of Chapter 14 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the Rules”) provides for Applications for Review from the decision of a Judicial Registrar or Senior Judicial Registrar. In this instance, the application was made within the required timeframe of 21 days.[3] The procedure for the review is governed by Rule 14.07 and I exercise the same power the Senior Judicial Registrar exercised on the interim hearing. I am to determine the interim issue de novo.
[3] Rule 14.05(2) of the Rules.
Interim parenting principles
The court is required to apply the provisions of Part VII the Family Law Act 1975 (Cth) (“the Act”) and the pathway described in Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4. These principles remain “good law” despite the simplified statutory provisions that apply since amendments which commenced 6 May 2024, to determining what parenting orders should be made. That is because the ultimate issue remains what orders are in or promote the best interests of a child or children.
The considerations in s 60CC(2) and (2A) of the Act as they are to be applied to the untested evidence relied upon by the parties, where arrangements that promote safety are important and allegations of family violence and abuse including historical ones remain relevant to what orders should be made.[4]
[4] Sections 60CC(2)(a) and 60CC(2A)(a) of the Family Law Act 1975 (Cth).
Necessarily, because the evidence in dispute is untested, the Court relies on what is not in dispute or unchallenged evidence, and its impressions formed by the nature and detail of the evidence relied upon by each party.[5]
[5] Marvel & Marvel [2010] FamCAFC 101.
Ultimately, what orders are made about the time the children will spend alone in the care of Mr C, will be based on my discretionary assessment of what is in the best interests of the children, prioritising arrangements that promote the safety and welfare of the children. Notably in the assessment required, the capacity of a person who cares for a child, not just the parties’ capacity, is of relevance.[6]
[6] Section 60CC(2)(d) of the Act.
EVIDENCE BEFORE THE COURT
In support of the review application, the Mother relied on:
·The Application for Review filed 22 November 2024;
·Case Outline filed 30 January 2025;
·Affidavit of the Mother filed 8 August 2024, tendered as Exhibit A1;
·Affidavit of Mr C filed 31 October 2024 with the exception of [21] and [22], tendered as Exhibit A2;
·Child Impact Report dated 25 September 2024, tendered as Exhibit A3;
·Correspondence between the parties’ solicitors concerning Mr C’s criminal history, dated 25 January 2023 and 30 January 2023, tendered as Exhibit A4; and
·Mr C’s criminal history, tendered as Exhibit A5.
The Applicant Father Mr Hinton (“the Father”), the respondent to the review, relied on the following:
·Case Outline filed 3 February 2025;
·Initiating Application filed 26 April 2024;
·New South Wales Police subpoena material “COPS Events” for Mr C, tendered as Exhibit R1; and
·Child Impact Report dated 25 September 2024, received as Exhibit A3.
RELEVANT UNCONTESTED FACTS
The evidence before the Court indicates that a number of facts are either agreed or not contentious. Accordingly, I find as follows:
(a)The parties were in a relationship for approximately 10 years, separating in September 2019;
(b)Each party has re partnered. There are no concerns about Ms B, the father’s partner. However, there have been concerns raised by the father in relation to Mr C, the mother’s partner;
(c)The parents each share a household with their respective partners;
(d)The proceedings commenced in the context of the Father seeking to increase time he spends with the children beyond alternate weekends, in circumstances where this has been somewhat resisted;[7]
[7] Affidavit of the Father filed 26 April 2024 at [10]; Child Impact Report at [5].
(e)The children have positive relationships with each parent and reported relatively positively about step siblings;[8]
[8] Child Impact Report at [8] to [13].
(f)Neither child raised issues or concerns about either step-parent when interviewed for the preparation of the Child Impact Report;
(g)Mr C committed a common assault against his former partner’s new partner in late 2019, in respect of which a conditional release order was made requiring good behaviour for 12 months and from which he has now been discharged.[9] An apprehended violence order was made at this time also protecting his former partner’s new partner;
[9] Exhibit A5 on page 2.
(h)Mr C committed assaults on his children between mid-2021 and early 2022, for which he received a conditional release order that he be on good behaviour for two years, from which he was discharged in late 2024;[10]
[10] Exhibit A5 on page 3.
(i)In addition, Mr C has been subject to a provisional apprehended violence order protecting his children made early 2022 which was made into a final apprehended violence order (“AVO”) for a period of two years protecting his two children.[11] This final AVO expired relatively recently in late 2024;
[11] Affidavit of Mr C filed 31 October 2024 at Annexure A.
(j)The COPS Events record from NSW police[12] indicates that Mr C has been a person of interest in relation to the following over several years:
[12] Exhibit A5.
(i)Property offence in 2001;
(ii)Property offence in 2001;
(iii)Property offence in 2001;
(iv)Assault and property offence in 2002;
(v)Offence against the person in 2002;
(vi)Property offence in 2016;
(vii)AVO, assault, and a property offence in late 2019, noting that a child or young person was at risk;
(viii)AVO in early 2022;
(ix)AVO, breach of AVO and assault in early 2022, noting that a child or young person was at risk; and
(x)AVO in late 2022;
(k)Mr C completed the Parenting After Separation and anger management courses in October 2022; and
(l)Mr C has not spent time with his children between early 2022 and the present, except on a supervised basis.[13]
[13] Affidavit of Mr C filed 31 October 2024 at [11] to [12] and [27].
EVALUATION
Each party strongly portrayed their own view in relation to the risk of harm to the children arising from Mr C’s past violence and verbal abuse. However, the objective evidence before the Court is to be preferred and given great weight.
At this juncture, the evidence about the risk posed by Mr C presently is untested. Although I accept that he has completed the Parenting After Separation course and there are positive reports from the supervised contact visit with his children, there is insufficient evidence before the Court for me to be satisfied that he poses no risk to the children who are the subject of these proceedings.
Counsel for the Mother submitted that there was no evidence of a current risk to the children in these proceedings, but that ignores the fact that Mr C has been subject to strict conditions imposed by the New South Wales District Court which have served as a strong deterrent of violence and abuse.
The assault convictions relating to incidents in 2019 and 2021 are indicative of a risk of violence as past conduct can be an indicator or predictor of future conduct. Similarly, the AVOs suggest that Mr C has had some difficulty controlling his emotions.
The Mother and her counsel suggested that the allegations against Mr C were not truthful or have been exaggerated.[14] I do not accept that they are untruthful in light of Mr C’s admissions at [18] to [20] and [25] of his affidavit.
[14] Eg, the Child Impact Report at [19].
It is readily conceivable that the admitted conduct would cause fear in children, and constitute family violence within the meaning of s 4AB of the Act, regardless of intent.
Although there is no evidence of Mr C behaving similarly towards the children in these proceedings since he has been living with them in the same household, that is also not surprising because the unchallenged evidence is that the Mother does most of the parenting and discipling, and I infer that no occasion has arisen for him to do so. The interim parenting order will also have served to protect the children since the order was made.
Mr C’s admissions about conduct towards his former partner’s new partner and his own children lead me to form the strong impression that when under stress or pressure, Mr C has difficulty in managing and controlling his emotions and consequent actions. I am satisfied therefore that there is a basis for the Court to be concerned about his capacity to care for the children without exposing them to verbal abuse or physical discipline.
I accept the submissions by counsel for the Father that the evidence of Mr C conveys a tenor of minimisation of the effects of yelling, verbal abuse or physical discipline which suggests that he has not fully acknowledged the potential harm to children from such conduct.
I reject the submission that there is no basis for an injunctive order because there is no risk at all. Particularly because, if violence or abuse was to be directed to the children, it can reasonably be expected to cause them fear at the very least and, with it, emotional harm.
Although the children were present in early 2021 when the incidents occurred involving Mr C and his own children, it is appears that their observations at the time did not cause them to be particularly fearful of him, probably because they were not directly affected.[15]
[15] Noting the children’s reports to the Court Child Expert.
Nonetheless, the Child Impact Report writer was concerned for the risk to them even without having access to the information that is now before the Court. I place weight on the evidence of convictions for assault and the AVOs which were considered necessary to protect others for a period of two years.
In circumstances where the Mother and Mr C are in a domestic live-in relationship and the children are spending most of their time in their home, the Father’s concerns for the children about Mr C are not unreasonably founded.
However, it is neither practical nor a commensurate response to the concerns of risk of harm described at [20] to [27] to retain the injunctive order in its present terms, as it amounts to an injunction for almost 24 hours a day, seven days a week.
I consider the order made by the Senior Judicial Registrar to be a disproportionate response the chance of either physical or emotional harm at the hands of Mr C because:
(a)The conditional release orders may have served as some deterrent to Mr C repeating similar conduct;
(b)The children will be spending more time with the father in the near future, limiting opportunity for potential harm in the mother’s household;
(c)The mother will act protectively when she is present;
(d)The children are of an age where they are likely to be able to self-protect to a degree; and
(e)I infer that Mr C has gained some but not complete insight into the inappropriateness of his admitted conduct through the parenting courses he has completed.
I consider that there should be orders restraining the Mother from leaving the children in the sole care of Mr C for more than three hours. Although I canvassed with counsel whether this type of restraint ought to be for shorter or longer periods depending on whether the children were at school or on holidays, in hindsight and for clarity, simplicity and avoidance of confusion, a singular time-frame restraint is preferable. A three hour time frame is assessed to be reasonable because it affords sufficient flexibility for care of the children, but mitigates potential harm identified in these reasons.
Such a restraint is proportionate to the risks identified in my reasons and consistent with the requirement for the Court to take a cautious approach to protecting the children from the possibility of physical or emotional harm,[16] due to inappropriate disciplining if Mr C is stressed, displeased or under pressure.
[16] Goode & Goode [2006] FamCA 1346; MRR & GR [2010] HCA 4; Marvel & Marvel [2010] FamCAFC 101 at [120]; Lavigne & Gavin [2021] FamCA 612 at [147].
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 21 February 2025
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