FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lincoln & Wyatt [2025] FedCFamC2F 710
File number(s): SYC 7595 of 2024 Judgment of: JUDGE STREET Date of judgment: 28 May 2025 Catchwords: FAMILY LAW – Procedure – leave granted to the applicant to use documents filed in these proceedings for criminal proceedings. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Zha & Wun (No 10) [2024] FedCFamC1F 850
Division: Division 2 Family Law Number of paragraphs: 28 Date of hearing: 28 May 2025 Place: Sydney Solicitor for the Applicant: Ms H Cook of Helen Cook Solicitors Solicitor for the Respondent: Mr T Le Nguyen of Tan Le Nguyen Solicitor for the Independent Children's Lawyer: Mr B Samuel of Brian Samuel & Associates ORDERS
SYC 7595 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WYATT
Applicant
AND: MR LINCOLN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
28 MAY 2025
THE COURT ORDERS THAT:
1.The Oral application for an adjournment is refused.
2.The respondent mother is permitted to use and or provide pursuant to 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) a copy of the affidavit of Mr Lincoln filed 26 September 2024 and the affidavit of Mr Lincoln filed 6 November 2024 for the purpose of the criminal proceedings [case redacted] in the Local Court of NSW and any superior Court to which the proceedings may be referred, including use by the respondent mother’s counsel and any practitioner appearing on behalf of the respondent mother in respect of the said criminal proceedings
3.The respondent mother is permitted to use and or provide a copy of the expert report of Ms B dated 25 February 2025 for the purpose of the criminal proceedings [case redacted] in the Local Court of NSW and any superior Court to which the proceedings may be referred, including use by the respondent mother’s counsel and any practitioner appearing on behalf of the respondent mother in respect of the said criminal proceedings
4.The respondent mother is permitted to use and or provide a copy of these orders, notes and or reasons for judgment for the purpose of the criminal proceedings [case redacted] in the Local Court of NSW and any superior Court to which the proceedings may be referred, including use by the respondent mother’s counsel and any practitioner appearing on behalf of the respondent mother in respect of the said criminal proceedings.
5.No order as to costs of this application.
THE COURT NOTES THAT:
A.The incidents giving rise to the counts of common assault and assault occasioning actual bodily harm in the proceedings [case redacted] are already the subject of proposed evidence in these parenting proceedings including an independent children’s report dated 25 February 2025 of 390 paragraphs, and this Court is firmly of the view it is not in the…
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- [2025] FedCFamC2F 710
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CaseChat Overview and Summary
The court found that the incidents that were the subject of the criminal proceedings were already part of the evidence in the family law proceedings, and an independent children's report had been prepared. The court held that it was not in the best interests of the child, who was living with Ms Wyatt, for the criminal proceedings to continue, as they could be addressed within the family law proceedings. The court noted that it did not have the authority to restrain the criminal proceedings but encouraged the prosecution to consider these factors in deciding whether to proceed. The court granted Ms Wyatt leave to use the specified documents in the criminal proceedings.
The court ordered that Ms Wyatt could use and provide copies of Mr Lincoln's affidavits, an expert report, and the court's orders and reasons for judgment in the criminal proceedings. The court refused the application for an adjournment and made no order as to the costs of the application. The court also noted that if it had the power, it would restrain the criminal proceedings from being pursued against Ms Wyatt.
Orders
Orders of the court
SYC 7595 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS WYATT
Applicant
AND:
MR LINCOLN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
28 MAY 2025
THE COURT ORDERS THAT:
1. The Oral application for an adjournment is refused.
2. The respondent mother is permitted to use and or provide pursuant to 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) a copy of the affidavit of Mr Lincoln filed 26 September 2024 and the affidavit of Mr Lincoln filed 6 November 2024 for the purpose of the criminal proceedings [case redacted] in the Local Court of NSW and any superior Court to which the proceedings may be referred, including use by the respondent mother’s counsel and any practitioner appearing on behalf of the respondent mother in respect of the said criminal proceedings
3. The respondent mother is permitted to use and or provide a copy of the expert report of Ms B dated 25 February 2025 for the purpose of the criminal proceedings [case redacted] in the Local Court of NSW and any superior Court to which the proceedings may be referred, including use by the respondent mother’s counsel and any practitioner appearing on behalf of the respondent mother in respect of the said criminal proceedings
4. The respondent mother is permitted to use and or provide a copy of these orders, notes and or reasons for judgment for the purpose of the criminal proceedings [case redacted] in the Local Court of NSW and any superior Court to which the proceedings may be referred, including use by the respondent mother’s counsel and any practitioner appearing on behalf of the respondent mother in respect of the said criminal proceedings.
5. No order as to costs of this application.
THE COURT NOTES THAT:
A. The incidents giving rise to the counts of common assault and assault occasioning actual bodily harm in the proceedings [case redacted] are already the subject of proposed evidence in these parenting proceedings including an independent children’s report dated 25 February 2025 of 390 paragraphs, and this Court is firmly of the view it is not in the best interest of the child aged 1 year and 2 months, who is living with the respondent mother, pursuant to interim parenting orders made by consent on 4 March 2025, for these criminal proceedings to be pursued, but rather the alleged incidents may be taken into account in advancing further parenting orders to be made in the best interest of the child.
B. If the Court had the power to do so, it would restrain the criminal proceedings from being further pursued against the respondent mother.
C. The Court invites the prosecution to take into account these orders, notes and or reasons for judgment in respect of whether the criminal proceedings should be further prosecuted against the respondent mother.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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