Hearne v Street

1. 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.
2. If the Court had the power to do so, it would restrain the criminal proceedings from being further pursued against the respondent mother.

1. 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.

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).

1. These parenting proceedings were commenced on 26 September 2024 by the applicant father ("the father") against the respondent mother ("the mother") in relation to the child, X, born in 2024, now being approximately 1 year old. The proceedings are ones in respect of which affidavits have been put on by the father in relation to alleged criminal events in respect of which the mother has been charged. The mother has brought an application to this court for the release of the expert report and for the release of the two affidavits by the father, for the purpose of use in the criminal proceedings.
2. Mr Le Nguyen, on behalf of the father, made an oral application for an adjournment. The foundation for the oral application for adjournment appears to be the knowledge of the mother's practitioners of the existence of the criminal proceedings for a substantial period of time. It was also advanced by Mr Le Nguyen that he had difficulty in reading the affidavit of the mother, comprising 13 paragraphs. It was suggested that there was a denial of procedural fairness in respect of the father in circumstances where he only physically received the application, having been filed this morning, when it was sent to him yesterday by the Court. The application is for permission under rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") to use the affidavits of Mr Lincoln and the report, in those criminal proceedings.
3. The criminal proceedings are apparently listed for hearing in June 2025 and there is an obvious urgency in the application. The Court does not accept that there was not ample time to prepare any affidavit material by the father, if it was in any way relevant to the request for permission.
4. The Court was sent communications yesterday in which Mr Le Nguyen foreshadowed making an application for an adjournment, which the court said it would deal with if made today. The Court was also sent contentious email correspondence referring to arguments about the substantive issue of whether or not permission should be given, directing the Court to a completely irrelevant provision, being s 114S of the Family Law Act 1975 (Cth) ("the Act"), and irrelevant considerations in respect of orders made by a registrar, neither of which address the substance of the application being made by the mother, but more importantly, it was contentious correspondence that should not have been sent to the court.
5. The proposition that the father has been denied procedural fairness is without foundation. The father's solicitor has attended the hearing and in the conduct of the hearing it is perfectly apparent that there was ample opportunity for submissions or any evidence, if in anyway relevant to the issue of permission. The highest the argument got on behalf of the father was to indicate effectively that he had no opposition to the affidavits with the caveated proposition, if they could be used under s 114S of the Act, which the court has already identified is misconceived and irrelevant. The Court is not persuaded that an adjournment was warranted in the interest of the administration of justice and nor is an adjournment in the best interests of the child.
6. The Court relies on legal practitioners to assist the Court in identifying the relevant law to apply. It is incumbent on legal practitioners to correctly state the relevant law and to assist the court in relation to the law referrable to any application before it. It is not appropriate, ever, for a legal practitioner to make reference to legal propositions that are unsustainable or completely irrelevant. There is also an obligation under s 95 of the Act that attaches both to parties and solicitors.
7. It is however the case, as Mr Le Nguyen identified, that the father did not wish to agitate opposition to his affidavits being provided in the criminal proceedings.
8. The relevant principles in respect of an application under rule 6.04 of the Rules have been usefully summarised by the learned Schonell J in Zha & Wun (No 10) [2024] FedCFamC1F 850 at [17-19] and [30].
9. On material before the court, it is apparent that there are a number of charges involving alleged assault or alleged assault occasioning bodily harm by the mother. The circumstances relating to those incidents are all addressed in the affidavits in these parenting proceedings by the father, as well as, being addressed in detail by an expert report that was released on 25 February 2025. It is also of significance, in relation to these parenting proceedings, that by consent, interim parentings orders were made on 4 March 2025 that provide for the child, the subject of these proceedings and apparently referred to in two of the charges to live with the mother and for the mother to have at this interim stage, sole decision making authority in respect of long term decisions concerning the child.
10. The by consent orders provide for the spending of some hours with the child by the father for two days a week and the use of a parenting app for communications. There is also a requirement for the father to undertake urine analysis upon written request by the Independent Child Lawyer, as well as, to undergo CDT testing within 48 hours of the making of the orders.
11. The father was born in 1992, and the mother was born in 1998.
12. The parties met in late 2022 and began living together in September 2023, with their child being born on the date identified in 2024, and the parties finally separated in September 2024.
13. The Family Report ("the Report") identifies in [341], as follows:

"[Ms Wyatt] has been charged with seven counts of common assault and two counts of assault occasioning actual bodily harm. [Mr Lincoln]'s account is that he believes these acts occurred due to emotion regulation difficulties, with no intent to harm and bar one incident without causing him to feel any fear. The allegations of family violence made by [Mr Lincoln] did not have an element of coercive control. Likewise, there was a cessation on separation and no escalations which would have added to the risk profile. [Mr Lincoln] was very clear that he has no concerns communicating or coming into contact with [Ms Wyatt] at present or in the future. [Mr Lincoln] was unwilling to provide clear information about his level of concern about [X]'s safety in [Ms Wyatt]'s care".

1. The Report refers to seeking a shaking incident in [342], as follows:

"Ayoung infant is more at risk than an older child if items are being thrown in the home. Although it is noted that there were no allegations of [X] being hit by any items. The alleged "shaking" incident is the incident that poses the most risk to [X]. It is not in dispute that [Mr Lincoln] attempted to seek support for [Ms Wyatt] after this incident by informing family members and taking [Ms Wyatt] to the GP. [Mr Lincoln]'s description of the incident during this assessment appeared much less harmful than the account he provided Police. A review of the GPs notes do not suggest that the GP viewed this incident as a significant risk of harm issue. There did not appear to be a DCJ report made or any safety planning. A referral to a psychologist with a waitlist is not consistent with a risk assessment that suggested that [X] was at any significant risk of harm at that time".

1. The Report refers to an alleged threat of self-harm in [343], as follows:

"[Mr Lincoln] made an allegation that [Ms Wyatt] made threats of harming herself and [X]. However, the narrative provided by [Mr Lincoln] in this regard did not support this alarming allegation. Rather, it appears to be vexatious to be accusing [Ms Wyatt] of thoughts of murder- suicide based on the comment that she made".

1. The Report refers to allegations concerning the mother's coping in [344], as follows:

"However, based on the information obtained during this assessment, [Ms Wyatt]'s difficulties were not atypical for new mothers and do no indicate that she was a disinterested, incapable or dangerous mother. There is also information to suggest that [Ms Wyatt] was having difficulties regulating her emotions and had angry outbursts, which included shouting and swearing and possibly low levels of physical violence which were likely related to her exhaustion, difficulties with emotion regulation, [Mr Lincoln] undermining her with criticism and [Mr Lincoln] being psychologically abusive to her. [Mr Lincoln] confronting [Ms Wyatt] about her alleged behaviour in the video, appears to support his assertion that [Ms Wyatt]'s behaviour did not create fear in him and the incidents were not severe in nature".

1. The Report refers to risk issues in [345], as follows:

"[Ms Wyatt] presents as having felt trapped and under threat whilst she was living with [Mr Lincoln]. There are a number of protective factors that are now in place that reduce the risk of [X] being exposed to future angry or aggressive episodes. [Ms Wyatt] has now left the relationship and the environment of the [C Street] property. [Ms Wyatt] appears to now be living in a calm and supportive environment. She presents as having strong and positive family relationships, particularly with [Ms D] and [Ms E]. [Ms Wyatt] has engaged with services through [F Service] and a private practitioner and is planning to undertake the Circle of Security parenting group. On interview, [Ms G] indicated that [Ms Wyatt] is meaningfully engaged in their counselling sessions and that a goal of therapy is to work on emotion regulation skills (using a DBT framework which is a clinically indicated approach) and therefore the Court can be confident that the likelihood of ang1y outbursts in the future is being managed".

1. The Report further opines on the risk issues in [346], as follows:

[Ms B] evaluates the family violence allegations made by the mother in respect to the father at paragraph 347 of her report. [Ms B] opines "Although not all of [Ms Wyatt]'s interpretations of [Mr Lincoln]'s behaviour may be accurate, this assessment raises concerns that [Mr Lincoln] has been highly critical of [Ms Wyatt]. [Mr Lincoln] was highly critical of [Ms Wyatt] on interview and demonstrated no empathy for her struggles in the post-partum period".

1. The Report relevantly opines in [347], as follows:

"Although not all of [Ms Wyatt]'s interpretations of [Mr Lincoln]'s behaviour may be accurate, this assessment raises concerns that [Mr Lincoln] has been highly critical of [Ms Wyatt]. [Mr Lincoln] was highly critical of [Ms Wyatt] on interview and demonstrated no empathy for her struggles in the post-partum period".

1. The Report further opines on risk issues in [347], as follows:

"However, the allegations that create the most future risk to [X]'s wellbeing are the allegations that [Mr Lincoln] is engaging in systems abuse by making false or exaggerated claims to the Police, DCJ and medical practitioners. [Mr Lincoln]'s time with [X] in the future may need to be restricted if there is an established pattern of making minor and/or vexatious allegations to authorities to intimidate or punish [Ms Wyatt] or interfere with [Ms Wyatt] and [X]'s relationship. Furthermore, [Mr Lincoln] was unable to contain his negativity about [Ms Wyatt] during his interview and it is the concern of the report writer that as [X] grows older [Mr Lincoln] might undermine [X]'s relationship with [Ms Wyatt]. [Mr Lincoln]'s negative comments on interview, about the nature of [X]'s relationship with [Ms Wyatt] support this concern. It was notable in [Ms Wyatt], [Mr H] and [Ms D]'s accounts of the level of fear that [Mr Lincoln]'s behaviour has caused them. There narratives described the ways in which they have tried to increase their sense of safety as a result of the alleged family violence".

1. The Report relevantly said in [375], as follows:

" [Mr Lincoln] did not impress on interviews being open and forthright about his substance use history. [Ms Wyatt] did not focus on [Mr Lincoln]'s substance use history, but she did make significant allegations of regular cannabis use and alcohol use".

1. While the issue in criminal proceedings and public interest in ensuring compliance with the rule of law, they are not matters before this court in respect of the alleged counts. It is obvious that the material that the mother wishes to obtain access to for the purpose of the criminal proceedings may have a significant impact on whether or not, firstly, any such charges should be pursued by the prosecution at all, and secondly, whether or not the alleged offences can be made out against the mother. In particular, there is content in which it is alleged the father agreed that he had no fear of the mother being an essential element in the alleged offences of assault. The material requested by the mother is likely to materially assist the mother in defending the criminal proceedings.
2. The ICL, very sensibly, took a neutral position in relation to the issues raised in respect of the release of the material under rule 6.04 of the Rules.
3. The Court is satisfied that there is in all circumstances good reason shown as to why the Court should grant permission under rule 6.04 of the Rules in respect of the material requested. It was suggested by Mr Le Nguyen that the Court should pair down the content of the family report and only provide an edited version. The family report comprises some 390 paragraphs and such an exercise is a complete waste of time for the Court and practitioners. The Court sees no utility in doing so. Whilst there are issues about the extent to which opinions of the Independent Court Child Expert might be used in criminal proceedings and the Court accepts there are subject matter in the report that is not directly relevant to the alleged criminal issues, it is appropriate to permit the whole of the report to be provided particularly taking into account that the Court is not persuaded that the pursuit of these criminal proceedings against the mother, who had only recently given birth to the child in respect of most of the allegations, is in the best interests of the child.
4. The subject matter of the alleged incidents will all be the subject of appropriate findings if relevant in the parenting proceedings. The pursuit of criminal proceedings in respect of the subject matter that is identified in the allegation of criminal conduct is not of a kind, on its face, that this Court regards as being in the best interest of the child to be pursued. If this Court had power to do so, it would grant an injunction restraining the pursuit of the criminal proceedings.
5. The Court proposes to make notes on the orders it makes facilitating the availability of these orders, the notes and these reasons being provided to the prosecutor in considering whether or not these proceedings should be further pursued, as well as, for any other use the applicant mother sees fit in those criminal proceedings.
6. The Court has considered the requirements of rule 6.04 of the Rules and in particular, the observations of the learned Justice Schonell as to whether it is established that the release from the obligation in Hearne v Street [2008] HCA 36 will contribute to achieving justice in the other proceedings. The Court is satisfied it will do so. Further, the Court is satisfied that it is in the interest of the administration of justice, in light of the special circumstances in this case, to release the material requested by the respondent mother.
7. It is for these reasons the Court makes the above orders.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street.