Hutching & Noyer
[2023] FedCFamC2F 788
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hutching & Noyer [2023] FedCFamC2F 788
File number(s): HBC 394 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 23 June 2023 Catchwords: FAMILY LAW – parenting – discrete issues hearing – where final parenting orders made by consent except for the discrete issue of whether the child is permitted to accompany the father during hunting and shooting activities – where child has diagnosis of ADHD and is medicated – order that the child is permitted to participate in shooting activities once she attains the age of 12 years holds a minor’s firearms permit – order that the child is permitted to participate in hunting activities once she attains the age of 14 years holds a minor’s firearms permit Legislation: Firearms Act 1996 (Tas) s 68) Division: Division 2 Family Law Number of paragraphs: 31 Date of hearing: 14 and 15 June 2023 Place: Hobart Counsel for the Applicant: Mr Foster, Murdoch Clarke Counsel for the Respondent: Ms Ryan Solicitor for the Respondent: Jacobs Family Law ORDERS
HBC 394 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HUTCHING
Applicant
AND: MS NOYER
Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
23 JUNE 2023
THE COURT ORDERS THAT:
1.Neither parent shall allow the child X born in 2017 (“X”) to use chainsaws or machetes, pocket/flick knives and hunting knives.
2.The parents are restrained from enabling X to participate in shooting or be present during such shooting until X:
(i)attains the age of 12 years; and
(ii)obtains and holds a valid minor’s firearms permit;
(iii)is supervised as required by the Firearms Act 1996 (Tas);
3.The parents are restrained from enabling X to participate in hunting activities with a gun or in the presence of persons with guns until X:
(i)attains the age of 14 years;
(ii)Obtains and holds a valid minor’s firearms permit;
(iii)is supervised as required by the Firearms Act 1996 (Tas); and
4.The parents must ensure that when and if X participates in activities pursuant to Orders 2 and 3 of these Orders, she is to only participate with persons who hold a valid firearms license and, if not using a gun, X will not be left unsupervised at any time.
THE COURT NOTES THAT:
A.These final Orders are in addition to the final parenting orders made on 14 June 2023.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Hutching & Noyer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge Taglieri
These are parenting proceedings concerning a child, X, born in 2017 (“the child”). The child is now aged 6 years of age.
The child’s parents reached agreement about the vast majority of the parenting orders the Court should made, and I made final orders by consent on 14 June 2023 subject to conducting a limited hearing about the parties’ disagreement concerning what restraints or injunctions should be made by the Court about the child being exposed to the Father’s hunting and shooting activities. I will refer to this collectively as “the gun-related activities.” There was also an issue about the child being exposed to Knife use. It had less attention during the hearing.
In brief, the Father asked the Court to make restraint or injunctive orders which imposed positive obligations on him about the child not touching guns and supervision of the child when he and others engaged in gun-related activities, but permitted her to be present.[1] In contrast, the Mother sought restraints and injunctions that prevented the Father from allowing the child to be present at all when the Father undertakes such activities until she is 14 years of age.[2]
[1] Exhibit A-2, being minute of order sought by the Father.
[2] Minute of orders sought by mother, Amended Case Outline of the Mother filed 9 June 2023 at page 3.
EVIDENCE OF THE PARTIES
The Father’s affidavit filed 31 May 2023 was read in evidence, and he was cross-examined. Ms B, the Father’s partner, had also made an affidavit, and it was taken as read. Ms B was cross-examined briefly.
The Mother relied on her affidavit filed 7 June 2023, the Child Impact Report dated 6 July 2022,[3] and a section 67ZW report from Tasmania Police dated 20 June 2022.[4] She also tendered the Father’s record of prior convictions[5] and a copy of the Tasmanian Code of Practice for shooting deer.[6]
[3] Exhibit R-1.
[4] Exhibit R-2.
[5] Exhibit R-4.
[6] Exhibit R-3.
The child’s paediatrician, Dr C, had made an affidavit which was filed on 9 May 2023, and this was read in evidence unopposed. Mr C gave further, very detailed and helpful evidence during the hearing about the nature and effect of the child’s Attention Deficit Hyperactivity Disorder (“ADHD”).
Of critical importance, in my view, is the opinion of Mr C that, even when treated and medicated, ADHD remains a disorder and has some symptoms such that treatment was not a cure. The effect of this evidence is that ADHD renders the child more vulnerable to a range of activities carrying various degrees of risk of either physical or emotional harm. Accordingly, I find that she is at greater than the typical risks of harm than a child of her developmental age.
However, also accepting Mr C’s views, the risks of physical or emotional harm to which she is likely to be exposed can be ameliorated with optimal treatment and exposure to activities in a controlled setting or environment.
I have read and considered the parties’ case outlines, and based on the unchallenged evidence that was before the Court, I find as follows:
·The child has ADHD, being a neurodevelopmental disorder characterised by hyperactivity, impulsivity and difficulty paying attention;
·The disorder involves a range of symptoms including impulse control, inattention and distractibility which impact on academic performance, relationships and daily functioning. In children, the disorder can have a significant impact on safety and situational awareness;
·The child is being treated with medication, but the ideal dosage is not yet finalised, and further review is required to fully understand how she metabolises the medication;
·The child is currently not having psychological management, but this is recommended in conjunction with medication;
·Since commencing medication, the child has shown considerable improvement in symptoms of the disorder;
·Six-monthly management for life is recommended as medication dosages usually require adjustment as the child grows, and other adjustments may be required as a range of issues impact on how the medication is metabolised and, consequently, how effective it is;
·The Father has a meaningful relationship with the child and she currently spends four nights per fortnight with him, his partner and his partner’s children; and
·There is no specific concern held by the mother about the Father’s capacity to provide day-to-day care and supervision to an acceptably safe standard in an ordinary household context, but the orders made by consent require both parties to ensure that medication is taken as required for ADHD.
·The Father has demonstrated some ability to be child-focused, as is recognised by reducing his time from five nights to four nights a fortnight once the child commenced school. He engages positively with the child in a range of age-appropriate activities within his household.[7]
[7] Child Impact Report at [14] and [15].
Turning to the Father’s evidence about the more contentious issues, the Father made extensive open concessions about the extent to which he has allowed his older child to use knives and guns from age 6 or 7 years. In the case of gun use, this was contrary to the provisions of s 68 of the Firearms Act 1996 (Tas). Further, the Father’s evidence about his prior criminal convictions, ranging from speeding, mobile phone use, seatbelt offences, to non-compliance with helmet use and hunting and fishing infringements, demonstrates a clear trend of unacceptable permissiveness or, alternatively, thoughtlessness or carelessness to:
(a)the potential danger and physical harm from certain activities; and
(b)disregard to laws which, in my view, exist for valid policy reasons to protect humans from physical and emotional harm; protect fisheries; or promote humane animal practices.
I have no doubt that the father genuinely cares for the child and, in everyday life, has capacity, in routine, controlled daily activities, to make appropriate judgments and take appropriate actions for the child’s safety, including her emotional and physical wellbeing. However, the totality of his evidence demonstrates a relaxed, if not flippant and careless, attitude to risks associated with equipment, machinery or tools which have capacity to cause extreme injury, for example, chainsaws and vehicles.
Collectively, the Father’s evidence leads me to the conclusion that he is likely to be unacceptably permissive, not vigilant and unsatisfactorily attuned to risks of harm associated with dangerous activities, including gun-related activities. This finding accords with the Court Child Expert’s views of the Father’s approach to parenting and that he places too much weight on the child’s preferences and views given her age.[8] It reflects his permissive approach.
[8] Child Impact Report at [17] and [18].
The volume and nature of the Father’s offending and his admission that his instances of breach were possibly far more lead me to find that the chance or frequency of inattention or permissiveness in situations of heightened danger is not unlikely. Further, the seriousness of the harm to a child in such a situation, due to his inattention, permissiveness or thoughtlessness is quite large because of the physical injury guns are capable of inflicting.
There was no specific evidence put before the Court about the nature or potential for psychological harm to a child from gun use in the hunting or target shooting context. However, in view of Mr C’s evidence about the nature and rate of neurological development of a child’s brain, it is logical and obvious to find, and I do find, that children are less emotionally equipped to deal with accidents, injury and suffering of injured persons or animals than adults. Accordingly, they are at greater risk of emotional harm if exposed to this. Further, I can infer from the ages specified in the Firearms Act 1996 (Tas), for eligibility for a minor’s permit, that there is likely to be scientific or policy reasons for prohibiting unsupervised use of guns by children until they are 12 years of age and have a permit.
EVALUATION
I now turn to evaluate the competing closing submissions of the parties. I broadly accept the submissions made by Counsel for the Mother and, accordingly, have concluded that the restraints and orders sought by the Father are not adequate or in the child’s best interest. However, because shooting occurs in a more controlled environment and a minor’s permit can be obtained from age 12 years,[9] the restraints sought by the Mother are not fully accepted or necessary.
[9] Section 70(2) of the Firearms Act 1996 (Tas).
The Father admits that there is a need to protect the child from risk of harm resulting from improper use of firearms.[10] He says the protective orders he proposes protects the child sufficiently. I reject this contention due to the findings I have made earlier about the Father’s approach to risky activities capable of causing harm.
[10] Father’s case outline at [15].
I disagree with the Father’s submission that there is insufficient evidence to conclude that the child’s situational awareness is compromised to the extent that she will be unsafe during his hunting activities. The supervision proposed by the Father, to be undertaken by an adult, imposes the responsibility on a third party, most likely his partner. I was not convinced by her evidence that she will be able to adequately protect and control the child when other children are likely to also be present. I acknowledge that she is an early childhood educator but it is very different to supervise children in a controlled child care setting as distinct from protecting them from potential for harm in bushland when hunting is being carried out by one or more persons using guns.
I agree that the father’s family traditions, extending from hunting to preparation of animals for meals and cooking the meat are of some importance and weight to the evaluation of what is in the child’s best interests.[11] The paddock to plate notion that his counsel have made submissions about in closing has been considered. However, there is no reason why the child could not be involved in preparation of the animal and cooking it after the hunting has ended. I give little weight to the submission at paragraph 19 of the father’s case outline because the children’s interests necessarily vary and change as they develop, as is evident from the evidence given by the father about his older child and his preference for participation in sports.
[11] Father’s case outline at [18] and submissions by Counsel for the Father.
I reject the submissions at [20] to [23] of the Father’s case outline for the following reasons. First, because of my finding about the Father’s permissiveness, thoughtlessness and carelessness to safety. Second, the distinction made between regulatory offences and safety is not valid as the regulatory offences exist for policy reasons to manage safety. Further, when concentrating on hunting, it is unlikely that the father can pay adequate attention to safety of the child. Further, the fact that there have not been any injuries in the past to the Father as a child or to the child herself when around guns is not, in my view, a reliable predictor of the chance or magnitude of risk to the child if she participates in gun-related activities because there have been restraints about this in parenting plans since the child was aged three years of age.
In short, I do not accept the submission that the Court can be satisfied that the Father or his partner will, at all relevant times, take steps necessary to ensure the child’s safety during gun‑related activities.[12]
[12] Father’s case outline at [28].
I have considered the submissions at [31] of the Father’s case outline about the difficulty in demonstrating a change of circumstance to justify a future application on this issue. I reject the submission. S.60CC(3)(l) of the Act is merely one consideration of many that the Court must take into account when assessing the child’s best interests. Further, prioritisation needs to be given to protecting the child from harm. Self-evidently, based on the expert views of Mr C, the neurodevelopment of the child, whereby, aged 12 to 14 years, capacity exists to make some risk assessments and evaluate dangers against benefits, that is, the pros and cons of dangerous activities. This would, in my view, constitute the type of evidence that may justify the bringing of an application in the future, if necessary, but, as I say, it is only one of many considerations.
Finally, considerable weight was placed, in the Father’s case, on the importance of the child’s wishes to participate in hunting and shooting and the importance of the child’s emotional wellbeing and self-esteem to ensure that she is not portrayed as impaired or excluded. In this regard, the Father’s case place too much weight on these considerations.
First, because the child does not need to be completely excluded. By this, I mean that she will be able to some activities on the father’s family’s property and will also be able to engage in preparation of hunted animals for food.
Second, the child’s young age and the condition with which she lives means, in my view, that her views have less weight in the balancing of relevant considerations.
Third, the parents should, and are able to, communicate in a child-focussed manner, as explained by Mr C. By doing so, it is likely that the child will not perceive that she is being excluded or punished when not participating in hunting or shooting at the age of six.
In respect of the third reason above, the father should adjust his messaging to the child and his partner acknowledged she would communicate the reasons why the child was not accompanying the father in gun-related activity in a positive way. There is no reason why the child could not experience outdoor and bush-related activities away from where the hunting is occurring, noting the evidence about size of the Father’s family property in Tasmania.
The Father may need some assistance in developing the appropriate messaging to the child and I encourage him to seek out that assistance, if necessary, from a consultant psychologist.
CONCLUSION
For all the reasons I have given, there will be some restraint orders made, but the terms of those restraints will recognise the differential risk that I have assessed exists between gun use in a more controlled environment, such as shooting, as opposed to less controlled use of guns in a hunting situation.
By way of further explanation, it might be envisaged that, after the child obtains a minor’s firearms permit, she might be in the company of persons who are engaging in activities with guns but not herself engaging in that activity. The purpose of the last injunction order is to ensure that because of the symptoms of her ADHD, there is extra vigilance so that she is not in the line of danger.
Turning to my brief reasons for making the injunctive order regarding chainsaws, machetes, pocket knives and hunting knives. The evidence of the Father about his attitude to risks and my findings convey a level of carelessness or thoughtlessness that is not appropriate for the level of danger that a six year old child will be exposed to when using such items. It is for those reasons, collectively, with the tenure of reasons I have given about dangerous activities more broadly, that I have made the restraint order in the terms I have, concerning chainsaws, machetes, pocket or flick knives and hunting knives.
Noting that the Father is not present to have the benefit of hearing these oral reasons delivered and because I consider it would have assisted him greatly to have understood the Court’s reasoning, I will direct my Associate to order a transcript of the oral reasons I have given. The reasons will be settled and the judgment published.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Taglieri. Associate:
Dated: 30 June 2023
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