Wong on Family Law

Select topics on Family Law in Australia -- Parenting

Work-in-progress, 3 August 2025 (last updated). Do not Cite.

[#] What is a Parenting Order?: 

• SEE, Family Law Act 1975 (Cth) s 64B(2). 

• "[25]  One of the principles underlying the Objects of Pt VII of the Act is that “parents should agree about the future parenting of their children” (s 60B(2)(d)). Section 65DAC(1)(b) of the Act underscores the same by obliging parents who share parental responsibility (whether equally or not) to reach a decision about “major long-term issue[s]” jointly and to consult and make a genuine effort to come to a joint decision about the relevant issue. The s 4 definition of “major long-term issues” includes “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent” (subpara (e)). [26]  Plainly, however, neither s 60B nor s 65DAC of the Act seek to limit the power of the Court to make parenting orders in the event that the desired agreement is not possible. [27]  Relevantly, jurisdiction is conferred on the Federal Circuit Court of Australia in relation to matters arising under Pt VII of the Act (which deals with children) (s 69H(4)). That Court is given powers in the exercise of the jurisdiction so granted. The Court’s powers in respect of the jurisdiction so granted are statutory and, relevantly, found within Pt VII of the Act. The principal relevant power is the power to make parenting orders found in s 65D.10 [28]  Section 64B(1) of the Act defines “parenting order” as an order that deals with any of the matters specified within s 64B(2). Important to the instant issues, a parenting order is defined in s 64B(1)(b) to include an order under Pt VII “discharging, varying, suspending or reviving an order, or part of an order described in paragraph (a)”. Sub-paragraph (a) of that section defines a parenting order as “an order under [Part VII] (including an order until further order) dealing with a matter mentioned in subsection (2)” (emphasis added). [29]  The matters in s 64B(2) include, relevantly, “the person or persons with whom a child is to live”; “the time a child is to spend with another person or other persons”; “the allocation of parental responsibility for a child” and: any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. (Emphasis added) [30]  Section 65D(2) grants specific power to make a parenting order that “discharges, varies, suspends or revives some or all of an earlier parenting order” (emphasis added). [31]  Thus, a judge of the Federal Circuit Court has both jurisdiction and power to make orders, including orders until further order, relating to any aspect of the “duties, powers, responsibilities and authority” which parents have by law in relation to their children (s 61B of the Act).": Cameron & Brook [2018] FamCAFC 175.

• "In this case the applicant seeks parenting orders about the child. Parenting orders routinely made by our Court include orders dealing with the person or persons with whom a child is to live (s 64B(2)(a)), the time a child is to spend with another person or persons (s 64B(2)(b)), the allocation of parental responsibility (s 64B(2)(c)) and the form of consultation required between persons who share parental responsibility (s 64B(2)(d)), the communication that a child is to have with another person or persons (s 64B(2)(e)) and any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child (s 64B(2)(i)). Section 61B of the Act provides that parental responsibility in relation to a child means all the duties, powers, responsibilities which, by law, parents have in relation to children.": Bunyon & Lewis (No 3) [2013] FamCA 888, [75].

> See also, Reisy & Denton [2008] FamCA 403, [22].

• "Order 4(b) is a parenting order within the meaning of s 64B(2) of the Act because the conditions it imposes are tethered to and qualify the time which the child will spend with the father under the subsequent orders (Oberlin & Infeld (2021) FLC 94-017 at [51]–[52] and [59]), which necessary nexus the primary judge explicitly addressed (at [210]–[212]).  ...": Lainhart & Ellinson [2023] FedCFamC1A 200, [26]. 

> "51. Order 19 is unlike Orders 6(b)(iii) and 6(b)(iv), which were the subject of separate complaint under Ground 2. Those sub-orders condition the operation of Order 5, which is undoubtedly a parenting order because it stipulates how and when the children are to spend time with the mother. Orders 5 and 6 are thereby interlinked. By contrast, Order 19 is a self-standing order, untethered from any particular parenting order. It is not itself a parenting order under s 64B(2) of the Act, in which case the only other conceivable source of power for it is s 67ZC of the Act, but the limits of the power reposing in s 67ZC are not entirely unconfined (L v T (1999) FLC 92-875 at [51] and [55]–[60]; Jacks & Samson (2008) FLC 93-387 at [200]–[203], [216], [219]–[222], [224] and [226]). 52. We endorse the serious reservations expressed there by the Full Court as to how self-standing orders directing a party to accept therapeutic treatment are not usually made conformably with s 67ZC of the Act. As the Full Court earlier observed in Jacks & Samson (at [226]), that would take “unique circumstances”, which we are satisfied are not present here. This ground therefore succeeds because Order 19 was made without power. ... 59. Section 64B(2) of the Act enables a parenting order to “deal with” the time a child is to spend with a party and any aspect of a child’s care, welfare or development. Given the primary judge’s unchallenged and therefore undisturbed findings about the mother’s impaired psychological condition and her apparent refusal to acknowledge the extent of her impairment, sub-orders (b)(iii) and (b)(iv) are evidently the manifestation of her Honour’s conclusion concerning the safeguards needed to condition the way in which the children spend time with the mother so as to promote their best interests. The children’s welfare is liable to be compromised if the mother suffers psychological degradation, as would be implied by her future hospitalisation for psychological ill-health or her criminal prosecution. As such, sub-orders (b)(iii) and (b)(iv) were made within power as integral parts of the parenting orders (L v T at [49]–[60]; Jacks & Samson at [200]–[203], [210], [219]–[222], [224], [226]).": Oberlin & Infeld [2021] FamCAFC 66.

• Matters that are dealt with by Child Support Act (parenting order cannot deal with): "198. Concerning the father’s application to discharge his obligation under Order 16 of the 2008 final consent orders, at my request both counsel considered the question of what power I was being asked to exercise. During the course of the trial both counsel agreed that the order sought to be enforced was an “order for the maintenance of a child” which could be discharged pursuant to s 66S of the Family Law Act. For this proposition counsel for the father relied generally on Daniels & Bell [2007] FamCA 152. However, that case does not appear to support that proposition. 199. The definition of a “child maintenance order” has the meaning given by s 64B(5) of the Family Law Act, which provides that to the extent that (if at all) a parenting order deals with the matter mentioned in s 64B(2)(f), the order is a child maintenance order. Section 64B(2)(f) refers to the maintenance of a child. However, the accompanying note to s 64B(2) of the Family Law Act specifies that a parenting order (referring to s 64B(2)(f)) cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) applies. The order sought to be discharged here is not a parenting order.": Jacobova & Stein [2016] FamCA 825. 

• Application for a s 11F report: "11. Here it should be noted that the father’s application for a s 11F conference is clearly a parenting order; see s 64B(2)(i). There are, however, some passages in the High Court’s decision which it is worth paying attention to, and at page 647, Mason CJ and Toohey and McHugh JJ said, relevantly: ...": Noonan & Noonan [2015] FCCA 2803. 

• Payment of Children's Travel Costs: "23. It was accepted before me that the order for the payment of the children’s travel costs was “a parenting order” within the meaning of s 64B(2) of the Act, and that therefore in the making of such an order, the best interests of the subject child must be the paramount consideration (s 60CA of the Act). A determination of the best interests of the child requires the court to consider the matters set out in s 60CC of the Act.": Lorreck & Watts [2013] FamCAFC 66.

> "216. The father has met the transportation of the child from Tasmania to Melbourne over the years. The father has not had the insight to travel to Tasmania himself (this reflects the conflict that exists between the parents which has not been able to be reduced over the years and has been reflected in a number of family court hearings). The father has said he will assist in terms of the time that the child spends with either parent irrespective of the outcome in either Melbourne or Tasmania. I propose to make orders that require the father to meet the cost of the child travelling to live with the father and the mother to meet the cost of the child travelling to live with her.": Sony & Hansell (No 2) [2008] FamCA 810. 

> See also, in the context of child's international air travel where one parent lives overseas, whether Court used words "credit" and "offset" which are terminology under regime of child support liability, whether exercise powers under CSAA or CSRCA - child support: Whipp & Richards [2012] FamCAFC 11, [151]-[211]. 

• SEE also, [H] Orders Courts are Critical of below. 

• Commonwealth personal protection measure - Child Protection Convention: "76. It is clear that a Commonwealth personal protection measure, as referred to in s 111CD(1) of the Act for the implementation of the 1996 Convention includes, a parenting order as defined by s 64B(1) and (2) of the Act.": Bunyon & Lewis (No 3) [2013] FamCA 888. 

• Contribution to costs of one party's (spouse party) visits for spend time arrangements (not a parenting order, but ?obiter): 

> Mother's expenses associated with travelling to spend time with children (not a parenting order): "4. The matter that is before the Court today relates to the mother's application that the father contribute $25 towards her cost of travelling for the purposes of spending time with the two younger children, R and J, who reside with the father.  ... 6. The mother says that she needs the money from the father to enable her to take regular time with the children;  that she cannot afford the cost of petrol which would allow her to spend that regular time with the children and that the father can afford it and should pay it. 7. The father opposes the orders sought saying that the fair thing is that they are already both sharing the cost of transport, as they do the same amount of travelling or almost the same amount of travelling for each period of time spent and that the mother can afford the cost of transport on those occasions. ... 16. The mother asserts that it is an order that relates to the time the child is to spend with another person or other persons;  namely, it deals with the time the children are to spend with the mother. 17. It may well relate to the costs the mother may incur in making arrangements to spend time with the children.  The question may need to be determined as to whether that in itself is an order that deals with the time the children are to spend with the mother. 18. The other question which needs to be considered is whether the proceedings fall within the definition of section 64B(2)(i); namely, whether the order is a matter which deals with any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. 19. It is possible, in the wide wording of subsection 64B(2)(i), for consideration of orders in relation to the cost of transport to come within the wording of “any other aspect of the care” of these children. 20. If the matter is considered to be a parenting order, then the objects of Part VII would apply because if it is a parenting order, then the Court is obliged to consider the best interests of the children as the paramount consideration. ... 46. Based on evidence of the mother I find the mother can afford to pay for her share of the expense of travelling to collect and return the children on the occasions that they spend time with her.  The father is also spending his funds in relation to his costs of transporting the children on the occasions that they spend time with the mother.  ... 48. Another relevant circumstance is that the Child Support Agency has already carried out an assessment in relation to the contributions that the mother and father should make in relation to financial aspects concerning the children.  There is nothing before me in relation to the financial circumstances which make it necessary in the children's best interests to make an order as sought by the mother. 49. The mother should put aside her concerns about the father contributing all of the costs of transport (or contributing a further $25 to the cost of transport) and make arrangements in relation to her business and/or other costs which would permit her to spend the time with the children in accordance with the orders which have been made by consent.  The financial arrangements which have been disclosed in relation to the likely end of some of the costs when the event concludes in the middle of next month and when the costs in relation to her study conclude early in the New Year indicate the mother will have sufficient funds. 50. Taking all of those factors into account it is therefore in the best interests of the children and just in all the circumstances of this case that there be no order made requiring the father to contribute any further moneys towards the cost of transport. 51. I therefore dismiss the mother's application in relation to the contribution towards transport.  ... ": Orwin & Hansonn (No 2) [2009] FamCA 1033. 

> "108. It is not unreasonable to expect the father, within the next four years or so, to start contributing to the cost of his visits. By then, the parties might even have restored sufficient trust to consider enabling the children to visit the father in Australia, but the evidence does not presently support orders regulating the family’s affairs with that level of precision that far into the future. 109. The mother and Independent Children’s Lawyer sought to argue the existence of statutory power for the Court to order the mother to pay the money into an account for the father’s use, it being contended such an order would be a “parenting order” within the meaning of s 64B(2)(i) of the Act.[60] At least in the absence of more thoroughly reasoned argument, I reject those submissions. In proceedings under Part VII of the Act, a stand-alone order purporting to compel one party’s payment of money to another party (other than in the form of child maintenance pursuant to Division 7, which the proposed order certainly did not) does not wear the appearance of an order validly made under ss 64B, 67ZC, 68B, or 114 of the Act. [60] Exhibit ICL11, Order 5. 109. Even if power did exist to make the order in the terms proposed, the evidence did not justify making it. The mother plainly has no financial resources to meet such an order. She is entirely reliant upon the generosity of the maternal grandparents to provide such financial accommodation to the father which, even though it will probably be provided, might not be forthcoming.": Baxter & Baxter [2016] FamCA 572. 

> BUT SEE, also in obiter: "488. Clearly the provisions of s 66BA Family Law Act prohibit the court from making an order for the child maintenance.  Any provision for the support of the child would ordinarily be made pursuant to obligations that arise under the Child Support Legislation. 489. Counsel for the mother submitted that the court’s power to make such an order can be found in s 64B(2)(i) which is in the following terms:  The parenting order may deal with one or more of the following:(i)  any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child. 490. In support of his submission, counsel for the mother relied upon Love & Henderson (1996) FLC 92-653. In that case, Kay J dealt with an application by a father that a mother provide financial support to enable him to have access to the two children of the parties. In the circumstances of that case and at that time, there was no provision under the child support legislation for an application to be made on behalf of the parent, who was anything less than the substantial access parent, for support. 491. In Love & Henderson, Kay J found that the then s 64 Family Law Act provided that the court could make an order it considered proper having regard for the welfare of the child as the paramount consideration (s 64 FLA was the previous successor to s 60CA FLA). 492. His Honour found that where the legislation did not otherwise allow for provision of financial support to an access parent, His Honour could rely upon the general power to make orders which would promote the welfare of a child as the source of the necessary power. 493. Whilst counsel for the mother referred to s 64B(2)(i) as providing the court’s power, the power actually is not in s 64B(2) but rather is in s 65D(1) which is the power given to the court to make parenting orders as it thinks proper. Section 64B(2) sets out what is a parenting order. 494. The solicitor for the mother submitted on 26 May 2010 that the definition in s 64B(2)(i) was not wide enough to encompass the order as sought. 495. I am reticent given the minimal nature of the argument relating to the width of s 64B(2)(i) FLA to determine that issue if I do not need to. 496. In the event I assume there is power to make the orders sought by the mother the question is whether or not on the evidence that I had at the end of the hearing, that evidence was sufficient to support such an application. 497. I have already commented upon the evidence I have about each of the parties’ financial circumstances, and particularly the difficulty I have with the mother’s financial disclosure. I consequently conclude that it would be not a proper exercise of discretion to make the orders sought given the state of the financial information I have available to me.": Collu & Rinaldo (No 2) [2010] FamCA 439. 

> but consider how child support, child maintenance orders and considerations affect the use the general power to make orders; eg, matters that are covered by CSA not be a parenting order: Eg, see Jacobova & Stein [2016] FamCA 825. 

• Order for sole parental responsibility: 

> "33. An order for sole parental responsibility is a parenting order within the meaning of s 64B(2)(c) of the Family Law Act.  A parenting order may be made in favour of a parent or some other person, relevantly here, the maternal aunt, as s 64C provides.": Banks & Patel [2024] FedCFamC1F 64, [33]. 

> "46. An order for the allocation of parental responsibility is a “parenting order” within the meaning of s 64B(2)(c) of the Family Law Act. Section 60CA of the Family Law Act provides that in deciding whether to make a particular parenting order (relevantly here, one for sole parental responsibility as the mother sought or one for equal shared parental responsibility as the father sought), a court (me in this instance) must regard the best interests of the child as the paramount consideration. It will be noticed that s 60CA is expressed in mandatory terms hence the use of the word “must”, thereby removing any discretion.": Gin & Hing (No 8) [2023] FedCFamC1F 954.

• Orders that are not for anyone's personal protection, etc; Orders of injunctive fetter; Orders to hinder a litigant's right to re-contest parenting orders: 

> "104. The Full Court considered the Court’s powers to make orders pursuant to s 64B(2)(g) as sought by the mother in the case of Oberlin & Infield (2021) FLC 94-017. The Court there was asked to consider whether s 64B(2)(g) empowered the Trial Judge to make an order in the following terms:- 20.      Not before 1 September 2022, the mother be permitted to file an application seeking to extend her time with the children or to discharge the requirement [for substantial attendance], upon the filing of an affidavit in support by a psychiatrist addressing the mother’s mental health, treatment she has received and the risk issues referred to in: (a)       [The single expert psychiatrist] report; (b)      [The family consultant’s] family report; and (c)       These reasons for judgment. 105. The Court found that that order, although styled as an injunction, could not have been made pursuant to ss 68B or 114(1) of the Act because it was not made for anyone’s personal protection, to restrain entry upon certain premises, to protect the marital relationship or property. The Court held that such order, if made pursuant to s 64B(2)(g)(ii) of the Act, goes further than that provision enables. At paragraph 34 of the judgment the Full Court noted that the order made positively forbids the mother from bringing any variation application for a period of two years, regardless of her changing needs and circumstances. As such, the Full Court concluded that the order purports to be something other than a “parenting order” within the meaning of s 64B(2)(g) of the Act and “is an injunctive fetter upon the mother’s right to bring further proceedings in respect of the children under Part VII of the Act as and when she sees fit”. 106. At paragraph 37 of Oberlin the Court held:- …Unless the restriction is validly imposed by an injunction (such as one made pursuant to s 102QB(2)(b) of the Act or, more unusually, perhaps pursuant to s 114(3) of the Act), or by an order requiring preliminary steps to be taken before a new application is made (pursuant to s 64B(2)(g) of the Act), no statutory power exists for an order to be made impeding a litigant’s entitlement to commence fresh proceedings under Part VII of the Act. Once any such fresh application is filed, the question of whether it may then be prosecuted depends on the applicant’s ability to demonstrate compliance with the guideline principle in Rice & Asplund. 107. The orders sought in the alternative by the mother seek to restrain the father from bringing any further parenting application within three years of the making of final orders.  Accordingly, the orders sought are in terms similar to those contemplated in the decision of Oberlin.   Having regard to the decision of the Full Court in Oberlin, I am satisfied that the Court does not have the power to make orders pursuant to s 64B(2)(g) of the Act as sought by the mother.": Safford & Kelso [2021] FedCFamC1F 165.

> "Section 64B(2)(g) of the Act defines a parenting order to include one which prescribes the conditions which must be fulfilled before an application is made to change parenting orders. That section provides: (2)      A parenting order may deal with one or more of the following: … (g)          the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of: (i)        a child to whom the order relates; or (ii)       the parties to the proceedings in which the order is made; However, the meaning of s 64B(2)(g) is shaped by the provisions of s 64B(4A) of the Act, which provides: (4A)        Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with: (a)       resolving any dispute about the terms or operation of the order; or (b)       reaching agreement about changes to be made to the order. Section 64B(4A) expressly states it does not limit the meaning of s 64B(2)(g) of the Act, but that does not mean the latter sub-section can be read so broadly as to empower the making of any condition imaginable to hinder a litigant’s right to re-contest parenting orders. There must be some proscription on the width of the sub-section, even if its limitations must be implied (Oberlin & Infeld (2021) FLC 94-017 at [38]–[41]). The exercise of statutory power to make an order either shutting out or restricting a litigant’s right to litigate is serious and must be exercised with due care, as is evident from jurisprudence concerning the analogous exercise of such power under what is now Pt XIB of the Act (Pencious & Searle (2017) FLC 93-085 at [72]–[75]; Marsden & Winch (2013) FLC 93-560 at [126]–[136] and [154]–[158]; Langmeil & Grange [2013] FamCAFC 31 at [23]–[24]; Marriage of Paskandy (2005) 33 Fam LR 509 at [63]). While Orders 20–22 stipulate the steps the mother must take if she wants to apply to vary the original orders regulating the time which the children spend with her, thereby broadly meeting the requirements of s 64B(2)(g) of the Act, the conditions imposed by the orders are not simply confined to the way in which she must first attempt to mediate the potential dispute before embarking on further litigation, in the manner envisaged by s 64B(4A) of the Act. Rather, the orders require her to obtain an independent psychiatric assessment, which the primary judge interpreted to mean a professional opinion which, of itself, would vindicate the variation application brought by the mother. In Oberlin & Infeld at [16]–[44], the Full Court discussed the caution with which a judge should contemplate and craft any order which conditions a litigant’s right to bring fresh proceedings under Pt VII of the Act, so as not to stray beyond express or implied statutory power. Those observations are pertinent here. Whether Orders 20–22 are construed generously to be substantive parenting orders made under s 64B(2)(g) of the Act or more conservatively as being merely procedural orders, it is hardly conceivable they can validly defeat or proscribe the application of established substantive legal principles, such as those promulgated in Rice v Asplund. The orders purport to eliminate the operation of such legal principles in certain circumstances. Section 65D(2) of the Act expressly envisages the need to vary parenting orders but, whenever any litigant applies to vary a parenting order, he or she must first demonstrate a material change in circumstances to warrant the variation application being entertained (Poisat & Poisat (2014) FLC 93-597 at [13]). Such obligations imposed by law cannot be relieved by an order, whether merely procedural or purportedly made in the guise of a substantive parenting order. Orders are made by courts to fulfil the law, not to undermine or circumvent it.": Halloran & Keats [2023] FedCFamC1A 56, [21]-[28]. 

• Dilemma for Courts, in some cases: "[177]  The dilemma for the Court in deciding what parenting order to make is that whatever order is made the children will be exposed to some risk of harm. If both children live with the father there is an increased risk of neglect as the father is likely to struggle to parent two children with special needs. If W remains with the mother, there is an unacceptable risk of sexual and/or physical harm from Mr C. The mother cannot be relied on to protect the children from him.": Tauber & Basler [2020] FamCA 159. 

[#.A] Parenting Proceedings as Seeking the Court's Imprimatur re Orders Sought by Consent or otherwise

• Harris v Caladine (1991) 99 ALR 193, 204-5 (Mason CJ and Deane J); 219, 220 (Dawson J): "It does not follow that, when a consent order is sought in a s 79 application, it is necessary to conduct an inquiry into each of those factors. The court may be satisfied that a provision is proper by reference not only to the material before the court relating to the factors mentioned in s 79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in paras (a) to (f) and have taken them into account before consenting, the provisions “with respect to financial matters” proposed for incorporation in the consent order will be seen to be “proper”. The factor mentioned in para (g) may require independent inquiry by the court, but that question does not arise in this case. Nevertheless, when an application for a consent order in a s 79(1) matter is made there is a discretion to be exercised with reference to the propriety of the provisions with respect to financial matters. The making of a consent order in a s 79(1) matter is not automatic. ...  The Full Court on appeal from Maxwell J held that the review of the deputy registrar's decision was confined to an inquiry whether the parties did in fact consent to the terms of the order and whether the terms agreed upon were in a form appropriate to the type of order sought and were enforceable. ... Even if the consent pursuant to which an order is made under s 79 amounts to a contract between the parties, it is the order itself which is of legal significance. As Lord Diplock observed in de Lasala v de Lasala [1980] AC 546 at 560 , in related circumstances: Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order. And in the case of an application under s 79, even if there is consent amounting to a contract, that is not enough of itself to entitle the parties to an order. The requirements of the section must be satisfied. ...". 

• "[53]  The mother seeks orders about X’s living arrangements and parental responsibility. The question is whether the Court’s imprimatur should be given to those current arrangements.": Sheldon & Meriton [2020] FamCA 231. 

• "Imprimatur" = satisfaction that orders made are in best interest of child: 

> "[88]  Importantly, the Court having given its imprimatur to those proposed parenting arrangements, it can also be said that the Court was actually satisfied that the time spending orders made on 14 August 2024 were ones that ensured the children’s safety and were in their best interests.": Vaughan & Vaughan (No 2) [2025] FedCFamC1F 129. 

> *** "[15]  At this stage I am not satisfied that it would be in the children’s best interests for me to make any particular order that might — with the court’s imprimatur as it were — sanction or support the children spending time with their father. But by the same token I would be loathe at this stage, if it were not absolutely necessary, to make an order expressly saying that they should not see their father. Similarly, in relation to the telephone communication. ... [17]  In my view that is a preferable course in this particular case than to either appear to give the court’s imprimatur as being in the children’s best interests that there should be the possibility of time with the father on the one hand, or to explicitly say that its in the children’s best interests that they should have no relationship with their father.": Barbero v Barbero [2013] FCCA 1486.

> "[16]  In October 2010, having attended a meeting at a Family Relationships Centre the parties entered into a parenting plan. It must be borne in mind the child was then two and a half years old. Their agreement was that she would spend four nights with her mother and three nights with her father each week on a rotating basis. As exchanges between bench and bar table would have indicated, I am concerned about the lack of regard the parties seem to have given to the observations made by the Family Consultant earlier referred to. It is difficult to see how this arrangement had regard to the child’s needs. While it might have suited the parties’ desire for each of them to be as involved in her life as possible and was practically easy to implement, it is unlikely that this is an arrangement that would have received the court’s imprimatur as being in the child’s best interests. But perhaps more will become known about how that arrangement actually came about at the final hearing.": Calvert & Mercer [2012] FamCA 759. 

> "[169]  My reasons and the Family Report will also be provided to DHS. It is important DHS is aware of the court's findings about the risks to C in her mother's care and does not view this court's adjudication of the parenting application as meaning the child is safe. As would be apparent the court had limited options and, once DHS declined the request to intervene, was left with only one place C said was acceptable to her. I point out there is no order that C lives with the mother. Action by DHS in relation to C, for example, to require the mother to accept their supervision or remove her if this is safe, would not bring them into conflict with orders under the Act. At both parties requests the injunction in relation to Mr S will no longer prevent C from residing in the same home with him and the mother. I have found it difficult to give this agreement the court's imprimatur. However, it is apparent neither the parents nor agencies such as Police, DHS, C's counsellors and medical practitioners have taken steps to enforce the order. I infer this is because the mother refuses to separate from Mr S and they have been terribly concerned C may, as she said she will, attempt to kill herself if she is removed. This court cannot place children in the hands of reluctant carers and it is thus inappropriate to continue an order which will not be enforced.": Salt & Houston [2011] FamCA 435. 

• sanction, approval or leave:

> "[6]  As will be explained below, the property has now been sold by the respondent and an amount in the order of $568,000 has been paid to the respondent out of the proceeds of sale of the property. This payment was not made pursuant to any order of the Family Court or pursuant to any form of agreement carrying the imprimatur of the Family Court as a registered binding agreement authorised by that Court. It was therefore a payment made under an informal arrangement between the parties to the relationship. I am satisfied that at the same time, the parties agreed that Ms Katherine Brandenburg should retain fulltime care of the children of the relationship as if a form of parenting order had been made. This appears to be continuing.": Angelou v Brandenburg [2024] SADC 114. 

> "[103]  The mother’s case here is, in my view, irresistibly a quest to have this Court give its imprimatur to her unilateral relocation of the children from Sydney to the City H area of New South Wales. ... [125]  I harbour concerns that should the Court give its imprimatur to the mother’s unilateral relocation and decision-making in respect of these children then the children’s stability and routine might be further disturbed after a full and forensic final trial in this matter.": Bonhomme & Bonhomme [2024] FedCFamC1F 854. 

> "[14]  It is for all of those reasons, and with the view to avoiding the potential for further litigation in the future, that I consider it appropriate to give the court’s imprimatur to the arrangements that the parties have been able to negotiate and agree with the assistance of the Independent Children’s Lawyer.": Vance & Tuffin [2023] FedCFamC1F 892. 

> "[76]  In the current matter, given these various considerations, on the basis of the evidence available to me, it seems incontestable that the de facto relationship, between Mr Hines and Ms Easton, came to an end on 14 May 2020. From this date, it is clear that there was no longer any public recognition that they were de facto spouses and they had ceased to commune together and share the elements of a common life. As such, I am satisfied that Mr Hines needs the court’s imprimatur to proceed with his application for de facto property settlement, the standard application period of two years, provided by section 44(5), began to run from 14 May 2020. Accordingly, Mr Hines is a little over six months out of time.": Hines & Easton [2023] FedCFamC2F 311. 

> "[14]  Further, the father’s email fails to engage with the reality that the mother has the benefit of an order (with his consent and the court’s imprimatur) allowing her to relocate to Country B with the children on 90 days’ notice.": Sameer & Gamil [2024] FedCFamC1F 54. 

> re Consent Orders: "[21]  At the commencement of trial on Monday 5 October 2020 the ICL made submissions as to why these orders, in all the circumstances, were in the best interests of the children. The ICL’s submissions were as follows: ... HIS HONOUR: Yes. Well as I say, I accept that submission in its entirety and it won’t go unrecorded, Ms Agresta, that submission. What I propose to do in this case, unlike what would usually occur in circumstances where the parties have submitted consent parenting orders, is I will deal in the ultimate judgment with these orders. And the judgment of the Court will give expression to the submissions that you have just made and also to the Court’s imprimatur of the sentiments that they contain. So, there will be a record of this going forward.": Imbardelli & Imbardelli [2020] FamCA 876. 

> re Informal Agreements: 

-> "[37]  It is not uncommon for parties to come to Court seeking orders under s 79 of the Act where there have been prior informal agreements between them. It is well established that parties cannot obtain finality in respect of the alteration of property interests unless and until they have the imprimatur of the Court by either a Binding Financial Agreement or a Court Order. The question, therefore, is as to the relevance, if any, of the informal agreement between these parties in 2011.": Badawi & Oakeson [2020] FCCA 1410.

-> "[518]  The trial judge found the mother ought to have known from her lawyer that the private agreement she allegedly struck with the father to divide their property and waive further claims upon one another was not binding without the imprimatur of the Court’s endorsement (at [827]). The trial judge found the mother’s lawyer informed her of that fact, but even if she ought not to have known as much, it did not assist her appeal because it was immaterial. Even if she was blissfully ignorant of it, and was entitled to be so, the trial judge’s comments about the unenforceability of any such agreement were correct. It would not oust the Court’s jurisdiction, it would not necessarily preclude a finding it would be just and equitable to adjust the spouses’ property interests, and it would not preclude property adjustment orders being made.": Duarte and Anor & Morse [2019] FamCAFC 93. 

• "[42]  Counsel for the mother submitted that in those circumstances, the primary judge’s discretion miscarried because he took into account the following irrelevant matters: ... whether the Court should give its “imprimatur” to the mother’s relocation; and ... [47]  We disagree that the use of the term “imprimatur” denotes an intention by the primary judge to punish the mother or to send a signal to other litigants. The focus of the primary judge was on the children’s best interests and the need to avoid a move from the children’s familiar and stable connections on the North Shore of Sydney to commence daycare and school at a place proximate to the mother’s residence when, after a final hearing, the children’s stability may again be interrupted (see [57]). The primary judge appropriately considered (at [56]) the observations of Boland J sitting as a single judge of the Full Court in Morgan & Miles,4 where her Honour at [88] said: … except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.": Bonhomme & Bonhomme [2025] FedCFamC1A 75. 

[#.B] Effect of Order - Antecedent Agreements

• "[48]  It is not open to doubt that once an order is made by the court, even if made with the consent of the parties, the legal effect upon the parties’ rights derives from the order itself and not from any antecedent agreement of the parties leading to the making of that order (Harris & Caladine (1990) FLC 92ndash;130).": Redmond & Redmond [2014] FamCAFC 155.

• "Even if the consent pursuant to which an order is made under s 79 amounts to a contract between the parties, it is the order itself which is of legal significance. As Lord Diplock observed in de Lasala v de Lasala [1980] AC 546 at 560 , in related circumstances: Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order. And in the case of an application under s 79, even if there is consent amounting to a contract, that is not enough of itself to entitle the parties to an order. The requirements of the section must be satisfied": Harris v Caladine (1991) 99 ALR 193, 220 (Dawson J). 

[!] General Framework

• Matters at hearing or trial prior to 6 May 2024 but not concluded by then: "19. Given the hearing first commenced on 11 September 2023 and had not concluded by 6 May 2024, the hearing was to be decided by application of the law as it existed before 6 May 2024. Unfortunately, the primary judge did not determine the matter according to law. The parties are agreed that the primary judge determined the matter by applying the Act as amended by the Amendment Act which changed in a significant and substantial way the provisions of s 60CC of the Act. ... 21. Thereafter commencing at [355], the primary judge addressed various considerations encapsulated by s 60CC of the Act as they now exist as amended by the Amendment Act. It is conceded by all parties that no aspect of her Honour’s determination addressed the primary and secondary considerations in s 60CC of the Act as they previously existed. It is conceded by all parties that they addressed the primary judge on the law as applicable. 22. A failure to consider the applicable statutory considerations is an error of law. ... 24. No such exception arises in the context where the court below proceeds upon an incorrect principle of law. Where such error is established then the appeal must be allowed. Where the appeal must be allowed it is unnecessary to address the other grounds (Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593) and even less desirable to do so where if remitted another judge will need to determine the disputed factual contentions. ...": Navickas & Fried (No 2) [2025] FedCFamC1A 80. 

• Trial after 6 May 2024: "12. As the trial took place after 6 May 2024, the case was required to be, and was, determined in accordance with the provisions of Pt VII of the Act, as amended by the Family Law Amendment Act 2023 (Cth), which amendments commenced operation on that date.": Aslett & Coren [2025] FedCFamC1A 92. 

• "In determining what is in X's best interests, I must consider the six matters specified in section 60CC(2) of the Act. I must also make such orders as I think are proper within the objects of Part VII of the Act.[2] Because of the focus on the future, this requires me to make a discretionary judgment involving significant elements of value judgments, assumptions, necessarily uncertain predictions, and intuition.[3] The objects of Part VII of the Act, set out in section 60B, are to ensure X's safety and to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989. Further, in making findings, section 140 subsection (1) of the Evidence Act 1995 (Cth) provides that: ...the court must find the case of a party proved if it is satisfied that it has been proved on the balance of probabilities. In deciding whether it is so satisfied, subsection (2) proves that, without limitation, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceedings; and (c) the gravity of the matters alleged. I must consider the conduct of the parties, but not with a view to rewarding one's conduct or punishing the other's conduct. In Kelly & Hutchens,[4] in refraining to the extent possible from making adverse findings about the parties, McNab J cited Nygh J in In the Marriage of Chandler[5] at paragraph 1, where it was said: It is a fundamental principle in this court that where it is clear from the evidence that the relationship between the children and each of the parents is going to continue, the court should refrain from making any finding, unless absolutely necessary, which adversely reflects upon the self-esteem or integrity of each of the parties. A parenting order in relation to a child stops being in force if the child turns 18, marries, or enters into a de facto relationship.[6] My focus is on final parenting arrangements that will regulate X's living and care arrangements over the long term.": Wearne & Hammett [2025] FedCFamC2F 342, [15]-[19]. 

• "Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act. The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3). The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a). When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3). The Court has to consider each statutory matter in section 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637 at [49]; Tibb v Sheean [2018] FamCAFC 142; (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations.": Kirsch & Pelzer [2025] FedCFamC2F 283, [130]-[135].

• Formulaic recital of each factor in s 60CC: "Notwithstanding the plain language of the complaint in sub-ground 1(a), the father conceded during the hearing of the appeal that it is not necessary for reasons to record a formulaic recital of each factor contained in s 60CC of the Act (SCVG & KLD (2014) FLC 93-582; Willmore & Menendez [2022] FedCFamC1A 73 at [93] and the cases cited therein). The sub-ground was always misconceived, having no merit.": Quintana & Konigsmann [2025] FedCFamC1A 30, [46]; "The primary judge found that the eldest child would likely suffer “serious psychological harm” if she was not allowed to participate in the exchange program (at [16]). There was no suggestion any other s 60CC was relevant apart from that already raised which is the relationship with the father. However, it appears from what I was told by the father this morning that he has not seen the children since late 2023. It is not necessary for there to be a formulaic recital of each s 60CC factor. It is only necessary to deal with those relevant to the issues (SCVG & KLD (2014) FLC 93-582; Willmore & Menendez [2022] FedCFamC1A 73 at [93]; Quintana & Konigsmann [2025] FedCFamC1A 30 at [46]).": Newsstead & Burns [2025] FedCFamC1A 79, [32]. 

• "Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act. The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3). The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a). When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3). The Court has to consider each statutory matter in s 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637 at [49]; Tibb  v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations. The best interests of the child": Waheed & Shahid (No 2) [2025] FedCFamC2F 214.

• "Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC). Parental responsibility for children is vested in their parents (s 61C(1)), regardless of whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of decisions about such issues (s 61DAA). One person allocated with parental responsibility for a child need not be consulted by another person allocated with parental responsibility in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB). Since amendments were made to the Act, operable as from 6 May 2024, parental responsibility orders no longer have any bearing upon determinations made about with whom a child should live or spend time.": Beltran & Preston [2025] FedCFamC1F 10, [32]-[36]. 

• "As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth). I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[53]  Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[54] [53] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2. [54] Sections 60B and 60CG of the Act. Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remains important because of the need to make parenting orders that promote the safety and welfare of children.[55] [55] Section 60CC(2)(a). I consider that the assessment of risk of harm to a child remains informed by the principles established MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97.": Coulson & Wayfield [2024] FedCFamC2F 979, [58]-[61].

• "Parenting proceedings are governed by Part VII of the Act. In making a parenting order, s 60CA requires that I am to regard the best interests of the children as the paramount consideration. In determining what is in the children’s best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other. The matters to be considered are: (2)          For the purposes of paragraph (1)(a), the court must consider the following matters: (a)          what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i)        the child; and (ii)         each person who has care of the child (whether or not a person has parental responsibility for the child); (b)       any views expressed by the child; (c)          the developmental, psychological, emotional and cultural needs of the child; (d)          the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs; (e)          the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; (f)          anything else that is relevant to the particular circumstances of the child. In considering the matters in s 60CC(2)(a), I must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the children together with any family violence order that applies in relation to the child/ren or a member of the children’s family. Section 60CG of the Act requires me, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with any existing family violence order. Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of the children and the person who has the care of the children. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide a degree of protection from the matters identified in the subsection to the extent necessary, relative to the evidence and risk of harm.": Harley & Cohen [2024] FedCFamC2F 1280, [227]-[230]. 

• "Part VII of the Act provides the jurisdiction and power for the Court to make orders in respect of children. Section 60CA provides that the children’s best interests are to be the paramount consideration for the Court in its determination. The Court determines the children’s best interest by referencing the probative evidence to the factors set out at ss 60CC(1), (2), (2A) and, if relevant, (3). Section 61A and following deals with parental responsibility which is defined at s 61B as being “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” but more colloquially manifests in the long term and important decisions that parents make for children in matters such as education, religion, medical procedure and the like and as opposed to the more mundane day-to-day decisions that parents habitually make for their children. In this matter the father seeks an order for joint decision-making which would oblige the parents to consult with each other in relation to such decisions and to make genuine efforts to come to a joint decision. Where the best interests of the children are the fundamental basis for the Court’s enquiry and determination, the onus and burden of proof in evidentiary matters is not highlighted.  Nevertheless, where a party makes an assertion of fact then that party carries an onus to prove that fact on the balance of probabilities being the standard of proof consistent with the decision of the High Court in Briginshaw v Briginshaw[6] and now enshrined in the Evidence Act 1995 (Cth) at s 140 which provides: (1)          In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2)          Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a)       the nature of the cause of action or defence, and (b)       the nature of the subject-matter of the proceeding, and (c)       the gravity of the matters alleged.": Molenaar & Molenaar [2024] FedCFamC1F 603, [116]-[120]. 

• "These proceedings were heard after 6 May 2024, so the amendments to the Act enacted by the Family Law Amendment Act 2023 (Cth) apply. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC). Parental responsibility for children is vested in their parents (s 61C(1)), regardless of whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s 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). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB). Parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time.": Hasip & Ruwan [2024] FedCFamC1F 638 , [33]-[38]. 

• "The court is compelled to make such parenting orders that are considered proper. [55] When making parenting orders the court is to regard the best interests of the child as the paramount consideration. [56] A child’s best interests are ascertained by a mandatory consideration of six non-hierarchical criteria set out in section 60CC(2) of the Act. [55] Section 65D of the Family Law Act 1975 (Cth) (“the Act”) [56] Section 60CA of the Act. This is confirmed in s 65AA. In contemplating the mandatory considerations the Court must consider any history of family violence, abuse or neglect involving a child or a person caring for a child, together with any family violence order that applies or has ever applied to a child or a member of the child’s family. [57] Unless it is in the child’s best interests to do so, the court must ensure that orders made are consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.[58] [57] S60CC(2A) [58] Section 60CG Unless an order is made to change it, parental responsibility for a child is vested in their parents regardless of their relationship status. [59] When an order is made conferring parenting responsibility for a child to more than one person in relation to “major long term issues” the order may prescribe whether those persons have joint or sole decision making authority in relation to all or only specified issues. [60] “Major long-term issues” is defined to include issues such as the child’s education, religion, culture, health, name and changed living arrangements.[61] [59] Section 61C(2), s61C(3) and s61D [60] Section 61D(3) [61] Section 4(1) The Independent Children’s Lawyer also seeks that I make injunctions for X’s welfare and in that regard my decision will be informed by the provisions of s68B of the Act. In determining what is in X’s best interests the court must consider what arrangements would best promote the safety of X and each person who has care of him. [62] This involves a consideration of any past history of family violence, abuse, neglect or other harm involving the child or their caregivers.[63] The assessment of risk of harm requires the consideration of two elements: whether it is likely that some harmful event will occur, and a consideration of the severity of the impact caused by such harmful event. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[64] The assessment of unacceptable risk is a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities.[65] [62] Section 60CC(2)(a) [63] Hasip & Ruwan [2024] FedCFamC1F 638. [64] M & M [1988] HCA 68. [65] Isles & Nelissen [2022] FedCFamC1A 97. It is not always necessary to make a positive finding that past conduct occurred when assessing the future risks in a matter. I may reach a conclusion of unacceptable risk from an accumulation of factors, none or some only of which are proved to that standard. The concept of “unacceptable risk” falls within the broader issue of determining what is in the child’s best interests and to which the resolution of the existence of an “unacceptable risk” is subservient.[66]  Risks to a child’s safety may be capable of sufficient amelioration by other orders I make.[67] [66] M & M [1988] HCA 68 and B & B [1993] FamCA 143. [67] Keane & Keane [2021] FamCAFC 62 FamLR 190 at [84]": Pembroke & Dewitt (No 2) [2025] FedCFamC2F 191, [146]-[151]. 

• Relocation of children: "Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act. The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3). The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a). When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3). The Court has to consider each statutory matter in section 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations. The Court refers to the discussion of relevant legal principles relating to relocation decisions in Grainger & Grainger (No 3) [2024] FedCFamC1F 470 by Schonell J including the following discussions: 134         A relocation case is to be determined in the same way as any other parenting case, they are not a special category of case: Morgan v Miles (2007) FLC 93-343 at [72]; Sayer v Radcliffe and Another (2012) 48 Fam LR 298 (“Sayer v Radcliff”) at [47]–[48]. 135     The Full Court in Sayer v Radcliffe observed: 48.          A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. 136         However, the Court is not bound by those proposals in determining what is in the child’s best interests: U v U at [80]. … 140         While the best interests of the child is the paramount consideration in the making of a parenting order, it is not the only consideration. Where one of the issues involves the relocation of a child’s residence, the legitimate desires, and the right of a parent to live where they wish is an important consideration. 141         In a relocation case, a parent is not required to establish “compelling reasons” in support of the place of their chosen or proposed residence: AMS v AIF; U v U (2002) 211 CLR 238 (“U v U”). However, where that legitimate desire of a parent to live where they want conflicts with the child’s best interests such that the child’s welfare is adversely affected, then the right of a parent to choose where they want to live must give way to the paramount consideration: U v U at [89]. 142         In Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”), the Full Court explained the applicable law in these terms: 27.          There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent. 28.          While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).": Britz & Zakaria [2025] FedCFamC2F 151, [142]-[148]. 

• ** See how the Court set out consideration of factors in: 

> Herbert & Oliver [2023] FedCFamC2F 838 , [45]-[93]. 

> Mulroney & Mulroney [2023] FedCFamC2F 490. 

• Section 60CC(1)(b) and s 60CC(3) applies only to indigenous children: "37. The children are not indigenous, so s 60CC(1)(b) and s 60CC(3) of the Act do not apply.": Beltran & Preston [2025] FedCFamC1F 102, [37]. 

• 'Parental capacity' refers to 'The capacity of each party to provide for X’s developmental, psychological, emotional, and cultural needs': s 60CC(2)(d) FLA; Wearne & Hammett [2025] FedCFamC2F 342, [37] et seq.

• See also, re Consent Orders below. 

Interim parenting orders

• "[66] ... The rationale for providing assistance to trial judges in dealing with interim applications is set out by the Full Court in Cowling at [18] in the following passage: [18] The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long-term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. In some cases, it may also be necessary to consider child protection issues. ... [68]  In our view some of the comments of the Full Court in [18] are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. [69]  It remains the case that the court must regard the best interests of the child as paramount in deciding what interim parenting order to make. ...": Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422. 

• "[120]  As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).": Marvel & Marvel (No 2) [2010] FCAFC 101. 

• "[9]  There is no challenge to her Honour’s statement of the applicable law, rather, the focus of the appeal is on the application of s 65DAA of the Act and whether her Honour’s reasons were adequate. As with many interim hearings, the proceedings were determined without cross-examination and the primary judge was not in a position to resolve evidentiary controversies. The primary judge applied the principles that emerge from cases such as SS & AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected (see also Salah & Salah(2016) FLC 93-713).": Keats & Keats [2016] FamCAFC 156.

• Findings on interim application and in RELATION to s 60CC(2)(f): "[132]  There is extremely high conflict between the parties is a factor that is relevant to this interim determination. Given so much is in dispute and remains in dispute it is not possible to make findings. [133]  The safety plan following D’s hospitalisation is now in evidence and is worth turning attention to. The triggers identified by her as recorded in the plan are: 1.Triggers •Family court conflict; Developmental trauma from 12 years of ongoing conflict with parents being in family court. Feeling pressured to live at both mother and father’s house. •Mum’s invading privacy:hacked emails, check receipts for Uber saying he bribes her, reads messages, and sends to self. •People questioning honesty: “come back and tell me the truth”, lies to protect myself from conflict to avoid •School refusal;anxiety and panic attacks experienced when feeling pressured to attend [Private School 1] •Friend conflict;feeling betrayed and let down by close friends sharing personal information with family •Relationship conflict;concerns about reputation with misinformation being shared amongst peers. [134]  The developmental trauma from 12 years of ongoing conflict with her parents being in family court and her identification that she feels pressured to live at both mother and father’s home is illuminating. D also records a sense of invasion of privacy, and she identifies this is another one of her trigger points. [135]  The issues of risk arising from the allegations each level at the other is something that can only be resolved once the final hearing occurs and there is a proper testing of the evidence in dispute.":  Porter & Porter (No 3) [2024] FedCFamC1F 633. 

[A] Joint Decision-Making for Major Long Term Issues

• Framework: 

"Counsel for the applicant argued that, having regard to s 61DAA(1), an order for joint parental responsibility would not require the parties to make decisions about major long-term issues for X together, but it would impose upon the respondent an obligation to consult with the applicant in relation to each such decision and make a genuine effort to come to a joint decision. Counsel developed her argument by pointing out that the text of s 61DAA does not expressly impose an obligation on the parties to make any decision jointly. Rather, the obligation is to consult with each person in relation to a relevant decision to make a genuine effort to come to joint decision about it. She argued that this should be contrasted with the precursor to s 61DAA, s 65DAC. By s 65DAC(2) (now repealed), an order by which two or more people shared parental responsibility for making decisions about major long-term issues for a child was to be taken to require the decision to be made jointly by those persons. This subsection is conspicuously absent from s 61DAA and so, counsel argues, it should be presumed that the legislature no longer intended that such decisions must be made jointly. Thus, where there is an order for the parties to have joint responsibility for major long-term decision making for a child, the Act does not impose an obligation for such decisions to be made together by the people invested with joint decision-making capacity. I accept that an order that parties have joint responsibility for decision-making for a child will engage s 61DAA of the Act and will require persons in whom joint decision-making is vested to consult with each other and make a genuine effort to come to a joint decision in relation to decisions covered by the section. However, I consider that such an order will also require such decisions to be made jointly. I do not accept the conclusion that an order for parties to have joint responsibility for major long-term decision-making for a child means that they can make such decisions severally as the applicant contends. When determining the obligations cast upon parties by an order of the court, the starting point is the text of the order. The order proposed here by the applicant – that “the mother and father have joint decision making responsibility” for X – would by the terms of the order impose an obligation on them to make decisions for X (whether they be decisions relating to major long-term issues or otherwise) together. The terms of the order proposed by the applicant would not engage s 61DAA because that section only applies “if a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child” (my emphasis). The order proposed by the applicant does not do that. In any event even if it did, the terms of the order would impose the obligation to make the decision jointly. The phrase joint decision making responsibility proposed by the applicant, in my view, means just that – decision making by two or more people together, not separately. Nothing in the Act would suggest that an order in those terms should be read down or given anything other than its ordinary and natural meaning. The absence of a provision analogous to s 65DAC(2) from the present version of the Act supports this conclusion rather than points against it as the applicant contends. Its absence is unsurprising given the way in which the obligations set out in s 65DAC came to be engaged when that section was in force. It was engaged if there was an order for shared parental responsibility – a phrase that no longer appears in the Act and which carries with it no directive that decision-making should be undertaken jointly. The content of the phrase shared parental responsibility was supplied by s 65DAC, which by s 65DAC(2), required decisions to be made jointly. In the absence of s 61DAA(1), the phrase joint decision-making has a meaning commensurate with the ordinary meaning of the words that make it up. The work done by s 61DAA(1) is to supply further context to that phrase where that subsection is otherwise engaged. The applicant’s desire to be informed about and have input into decisions for X’s welfare is entirely understandable. The evidence demonstrates, however, that joint decision-making for X, whether that be for major long-term decisions or otherwise, is not a realistic possibility. The court should not make orders which are bound to fail. An order for joint decision-making in respect of X is bound to fail. That is not to say, however, that the ends that the applicant hoped to achieve by such an order cannot otherwise be accommodated by orders crafted to that purpose. I decline to make an order for joint decision making in respect of X. It is in X’s best interests for the respondent to have sole parental responsibility for decisions that need to be made about X’s health and education. However, it is necessary, I think, to cast upon the respondent an obligation to inform the applicant about the decisions that she intends to make for him in a timely way so that the applicant has the opportunity to make his views known to the respondent. She will then have the opportunity to take those views into account. There will be orders to that effect.": Cornwall & Cornwall (No 2) [2025] FedCFamC1F 99 , [88]-[85]. 

Realistic possibility of coparenting?

• Alternate week arrangements ordered, allegation of family violence, father behaved badly but police view it did not meet DV threshold, mother exaggerated FV allegations, Family report state low risk of future family violence; parties able to agree on interim orders, etc; see factors and Orders within: Reece & Reece [2025] FedCFamC2F 241. 

• spend-time arrangements ordered, but joint parental responsibility: "Section 60CC(2):  The children have meaningful relationships with both parents, they love them and enjoy spending time with each of them, and the relationships are “significantly beneficial” to each of them (at [34]). ...": Shedden & Coyle [2017] FamCAFC 179. 

• Gilshannon & Giles [2008] FamCAFC 31. 

• alternative week arrangements, child exhibiting sexualised behaviour: Clemmen & Verley [2025] FedCFamC1F 69.

• third week arrangements, parents live geographically distant: Joyce & Antony [2022] FedCFamC1F 588.

• fortnight about arrangements, parents 4.5 hours away from each other: Herbert & Oliver [2023] FedCFamC2F 838.  

• Baptism - exercise of parental responsibility: Midal & Duncan [2025] FedCFamC2F 302.

both parents committed and competent, Relocation to Canberra from Adelaide

• Knight & Redding [2025] FedCFamC2F 670.

[B] Sole Decision-Making for Major Long Term Issues

• Family Violence, alternate week arrangements: "105. Dealing with s 60CC(2)(a) of the Act, the Court is satisfied that the mother having sole decision-making responsibility for all major long-term issues would promote the safety of the child, including preventing the child from being exposed to family violence or controlling behaviour by the father in relation to schooling and other long-term issues. The Court is not satisfied that the father and mother are able to jointly make major long-term decisions and accepts the mother's evidence that the father would be inflexible and would dictate the outcome. ...": Emmet & Bernardo (No 2) [2024] FedCFamC2F 1808.

• Family violence, no trust and poor communication between parents: "[70] The Father agreed that: ...   Shared decision making does not work well as they do not trust each other and communicate poorly. He also agreed that there will always be tension between them, and this is unlikely to improve; ... [225] The presumption of equal shared parental responsibility is rebutted given the findings at [220] of these reasons. In any event, no party seeks an order for equal shared parental responsibility and it is common ground that the parties do not have effective co-parenting capacity for joint decision making. [226] Accordingly, I accept the submissions of the ICL that the Father should have sole parental responsibility, because I am confident given the findings at [190] and [196] of these reasons that he will more likely give consideration to the Mother’s views and may often agree with them. Accordingly, when exercising parental responsibility, he will be required to invite the Mother to contribute her views, without being bound to accept them, before a major or long-term decision is taken. [227] It is not in the child’s best interest to make an order that the Mother have sole parental responsibility as she would probably disregard the Father’s views and may even not invite them, noting the reasons given at [187] and [219] of these reasons. [228] As the presumption of equal shared parental responsibility is rebutted because I have found the Mother has exposed the child to family violence risk,[37] it is not necessary to consider whether the child should spend equal time with each parent. ...": Shelburn & Beazley [2023] FedCFamC2F 1163.

• Family Violence, father psychiatric issues, supervised spend time arrangement, see evaluation [62]-[71] et seq on insight, psychiatric assessment and education therein, and orders therein: Coulson & Wayfield [2024] FedCFamC2F 979.

• Family violence: "[2] In respect to the parenting proceedings, the mother seeks orders that she have sole parental responsibility in relation to major long-term decisions concerning the children and for the children to live with her and spend four (4) nights per fortnight with the father. The primary reason that the mother seeks those orders is that she contends that the parties are unable to effectively co-parent as a result of the high levels of parental conflict between them. The mother further contends that she has been the subject of family violence perpetrated by the father and that, as a result, it would not be appropriate to require the parties to share decision-making responsibilities for the children. ... [4] For reasons which I set out in this decision, I have found that the mother’s allegations are of substance and that finding, together with other considerations, has influenced both the parenting and property orders that I have made. In summary, I have made orders for the children to live with the mother and spend five (5) nights per fortnight with the father. I have also determined that the property of the parties should be adjusted such that the mother receives 55 per cent and the father receives 45 per cent of the overall property distribution. In so doing, I have included an adjustment of 8 per cent as a result of the consequences upon the mother of her being subjected to family violence perpetrated by the father, including direct physical violence as well as coercive and controlling conduct, such as his extensive electronic surveillance of her in her own home.": Giunta & Giunta (No. 3) [2021] FamCA 272.

• Allegation of family violence, child and father mental health issues, spend time arrangements overnight: Dorbis & Dorbis (No 2) [2025] FedCFamC2F 64.

• Each have sole responsibility in respect of each child living with different parent, hostility between parents: "49. Finally, as a notation only, in view of (a) each of the children now live with a different parent, (b) the long-term hostility between the parents, and (c) notwithstanding the agreement for equal shared parental responsibility for both children, in my view, it is more appropriate that the primary parent for each child shall have principal responsibility for major long-term issues regarding that child, subject to consulting in writing with the non-resident parent and properly taking account any views of that parent. Absent any other agreement in writing, the resident parent shall be responsible for all costs (including education) for the child in her or his care.": Masters & Newton [2022] FedCFamC2F 509.

• one day per week arrangement, parties entrenched in significant conflict: Abramsson & Abramsson (No 2) [2024] FedCFamC1F 912.

• Children have not seen mother for years, spend no time with mother, mother psychiatric admission to hospital, mother emotional dysregulation: Erlbaum & Catley [2024] FedCFamC1F 635.

• Orders made for the parties and the child to continue to participate in family therapy and for the Father and child to undertake therapeutic contact: Ismailov & Jones [2025] FedCFamC1F 153.

• Orders provided mother relocates, alternate weekend arrangements: Beltran & Preston [2025] FedCFamC1F 102.

• Parents unable to communicate, abusive father, mother sole decision maker: "233. Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child. For the reasons that follow I am not satisfied that the parties would be able to communicate in a way so as to reach joint decisions concerning X’s care. I am satisfied that, as the resident parent, the mother should have sole decision-making responsibility for major long term issues. ... 237. For the reasons recorded it is not appropriate to require the mother, as the resident parent, to meaningfully negotiate major parenting decisions with the father. I do not accept however that my findings preclude the father from having the opportunity to be heard prior to any major parenting decision being made as sought by the Independent Children’s Lawyer and am satisfied that this opportunity should be afforded.": Pembroke & Dewitt (No 2) [2025] FedCFamC2F 191.

• High conflictual and toxic parenting, both parties lack insight, where the father’s parenting deficits are such that he would not be able to safely support the mother’s proposal for a reduction in time if made – orders made for the mother to hold sole parental responsibility and for the child to live with the parties in an equal time arrangement, child consistent expression for equal time: Callisto & Callisto [2025] FedCFamC2F 373.

• Family Violence towards mother and children, need to protect from father, affect developmental needs of child: "[243]  The evidence establishes that it would not be in the children’s best interests for the father to have sole decision-making responsibility for the children even if the children were to live with him. His family violence toward the mother and children, including serious systems abuse, coupled with that of Ms C, is so extensive, and its consequences so catastrophic for the children, that such an order would cause significant and ongoing emotional and psychological damage and distress to the children. The developmental needs of the child Y will not be advanced in that arrangement, because it nullifies the prospect of halting the father’s negative impact upon the promotion of those needs and continues the propagation of her false beliefs as to sexual abuse. Further, the father’s actions in alienating both children from the mother have involved criminal activity. As have the actions of his partner acting in concert with him, and on her own. [244]  The mother’s approach to decision making for the children has been reliable and appropriate since their respective births, as opined by Mr G, and inclusive of the father to the extent that he permitted that. In her care, the children had a proven ability to have a meaningful relationship with each of their parents. [245]  I have concluded that the mother should have sole parental responsibility and sole decision-making responsibility for the children regardless of where they live, and that she should not be required to consult with the father about any aspect of that decision making. Consultation with the father is only a domination and denigration of the mother by the father, or it is a game played by the father with a cover of politeness hiding a malicious intent. [246]  I find there is a need to protect the children and the mother from family violence and harm as caused to them by the father, and by his partner, as detailed in the factual findings on the evidence which include the unfortunate history and manner of obtaining IVOs, the parties against each other, Ms C against the mother, the father against Mr D, the mother’s partner, and the more recently police intervention orders obtained against the mother and Mr D. I reject, on the findings set out above, the allegations as made by the father, Ms C, and the children for the making of those orders. The mother’s allegations against the father were proven. There have also been the sexual abuse allegations, and the context in which they were made. I have found that Mr D did not perpetrate any form of sexual abuse on the child Y. Rather, such allegations were a false reality as constructed by Ms C and the father and imposed upon the child by them. The facts as found by me establish that which Dr B opined, namely that the father has engaged in a “systems of abuse, deceit, and denigration and exclusion of the mother…which would have a notable effect on the children’s psychological functioning and well-being.” Arrangements which would promote the safety of the children, and the mother, would be for the children to live with the mother and spend no time nor have any communication with the father and be restrained from being in the presence of, or communicating with, the father and Ms C. The Court has extensive powers to make orders which will have the effect of protecting the children in circumstances such as these, and those powers include the injunctive powers as set out in the Act. The children are at an unacceptable risk of harm, unable to be ameliorated in the care of the father and/or in the care of Ms C. As against these findings, is the practical reality of the children having absconded from the mother’s home on numerous occasions post May 2024, itself a risk to their safety, with such action instigated and controlled by the child X. The evidence of Mr G is instructive in that regard. X’s developmental age, his now deeply entrenched views of the mother, and collusion with the father, have resulted in unworkable orders that have not been able to be enforced by the mother, the police or the DFFH, the latter two of whom have returned the children to the father. The only option available to the DFFH would have been the taking of the children into care.": Ribisi & & Frankel [2024] FedCFamC1F 703. 

• "[162]  I am satisfied that there are reasonable grounds to believe that there has been family violence between these parties. The presumption of equal shared parental responsibility therefore does not arise. In any event, I am satisfied that an order for equal shared parental responsibility would be wholly unworkable. There will need to be an order for sole parental responsibility, and it will need to reflect the primary living arrangements for the child.": Walls & Reynolds [2018] FamCA 905. 

• ** (good decision to read): "WHETHER THE PARENTS HAVE THE CAPACITY TO MAKE JOINT DECISIONS IN RELATION TO MAJOR LONG TERM ISSUES FOR THE CHILDREN [49]  As the father points out, he and the mother have been unable to agree on so many matters for so many years that they have been involved in legal proceedings one way or another almost since they separated in 2012. [50]  It seems there are very few examples where the parents have been able to agree about decisions affecting their children. When they have, it seems to have required very long and drawn out communications or court intervention. The children often seem to be the conduit for discussion or negotiation and I accept the mother’s observations that the children appear anxious in those circumstances. [51]  There are important decisions that will need to be made in the future, eg which High School the children attend, and it will not be in the children’s best interests for their parents to be unable to agree about such matters. ... [55]  Each parent acknowledges that an order for equal shared parental responsibility is not in the best interests of the children and each seek an order in their favour for sole parental responsibility. ... [58]  The ICL recommends that the children remain with the mother and that she have sole parental responsibility. I accept that recommendation. [59]  In my view the best interests of the children will be met by remaining in the primary care of the mother and in those circumstances the mother should have sole parental responsibility for major long term issues but she will be required to inform the father of decisions to be made and provide him with an opportunity for input. I do not propose to adopt the time period for notice relating to decisions as recommended by the ICL and adopted by the mother, ie 20 days, because I foresee that such a provision may invite dispute. The order I make will provide for the mother to give the father reasonable notice of any decision she intends to make relating to a major long term parenting issue. I am satisfied that the mother has done and will continue to invite input from the father in relation to such matters but an order for sole parental responsibility will enable decisions to be made in a timely way if the parents do not agree about the decision to be made. ...": Darrett & Darrett [2020] FamCA 236. 

[B-A] Stalemates - joint decision making: 

• "85. It is unlikely the parties will reach consensus on many of the decisions they will need to make for the children’s welfare. While the court child expert’s recommendation for shared parental responsibility is adopted,[69] to overcome the prospect of the need for the Court to decide stalemates, the residential parent will have sole decision-making authority on “major long-term issues”, as that concept is defined in the Act. The parties’ retention of parental responsibility, as conferred by law, will enable them both to consult with the children’s doctors and schools.": Beltran & Preston [2025] FedCFamC1F 102.

[C] Spend time arrangements - factors

• Proximity of parties, equal shared responsibility, feasibility: "11. Because the father had said he would not move from Mount Isa, the only possibility for equal time parenting would arise if the parties both remained in Mount Isa.  In what follows his Honour was clearly of the view that they should do so.  His Honour said[8]: "If [the] parties remain in Mount Isa as the father suggests, then they are in the same locality. They are proximate to each other and there can be the opportunity for equal time which would be, in my assessment, in the best interests of this child." His Honour noted that the Family Consultant had recommended a continuation of the existing arrangements[9]. His Honour said that he too did not consider it would be beneficial to the child if the parents lived "thousands of kilometres apart"; it was in the child's interests that there be equal time spent with each parent[10]. ... 15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable. .... 19. The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child's best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.": MRR v GR [2010] HCA 4. 

• Children's views and desire: "Where these children have happy memories of time with their father and prima facie are desirous of continuing a relationship with him, there may be benefits to the children in continuing a relationship with their father.  There must be, however, some manifest benefit to the children and it is not the job of these Courts simply to make orders for relationships with children with a parent without any such benefit.  The consideration here is a prospective one but one based on current and past evidence.  It is also a qualitative consideration and not simply an exercise in allocating quantities of children’s time. The consideration here is a prospective and qualitative one but also one based on current and past empirical evidence.": Molenaar & Molenaar [2024] FedCFamC1F 603, [140]-[141]. 

• parent's paranoia, conspiracy theories, capacity ro care, parenting experience, personality and behaviour: Molenaar & Molenaar [2024] FedCFamC1F 603, [142]-[164]. 

• Parenting capacity, dispute as to - see discussion within: "67. The mother’s parenting capacity is not superior to the father’s, as she wrongly believes, but she is not incapable.": Beltran & Preston [2025] FedCFamC1F 102.

[C.A] Change of Primary Living Arrangements - Factors

• s 60CC: 

> "[55]  While I am concerned about a range of issues, including the change to the children’s primary living arrangements, the separation of the children from their siblings and the father’s apparent inability to facilitate any relationship between the mother and the children prior to the proceedings coming before the court, those concerns must, as the Act requires come secondary to my consideration of the primary considerations in section 60CC(2).": Lake & Parnell [2020] FCCA 483.

• (interim) Risks whether chronic and underlying or acute and immediate: "[64]  During the course of the two hearings for this application, I commented to the parties that I considered Dr F’s reports to cumulatively pose two alternate scenarios relevant to the assessment of risk, particularly at this interlocutory stage, which I considered to be as follows: (a)Firstly, that the risk posed by the mother be seen as chronic and underlying, with X not at risk of immediate physical or psychological harm; or (b)Secondly, that the risk posed by the mother was more acute and there was an immediate risk of X suffering physical or psychological harm. [65]  The parties, and in particular the ICL agreed with my observations in this regard. The ICL submitted that if the Court considered the risk to be chronic and underlying, then there was no immediate need prior to trial to take protective action and remove X from the primary care of the mother. However, the ICL submitted that if the Court considered the risk to X to be acute and immediate, there was no option for the Court but to alter X’s primary living arrangements such that X live with the father and that there be orders for supervised time spending between X and the mother as promoted by the father. [66]  Understandably a focus during the hearings was the more recent events and allegations made by the mother. From the father’s perspective, the recent allegations made by the mother can only be viewed as the mother embroiling X in her deceptive behaviours. As a result, the father’s counsel submitted that recent events put beyond doubt that the risk posed by the mother was acute and immediate. These are submissions with which I agree for the reasons that follow.": Edhouse & Edhouse (No 4) [2024] FedCFamC1F 647. 

• ** (interim) Risks whether chronic and underlying or acute and immediate, mother diagnosed with factitious disorder by expert in proceedings: "[4]  The parenting applications that are presently before the Court find their way in an interlocutory Application in a Proceeding filed by the father on 23 August 2023 in which he sought the change of the primary care arrangements for X from those that presently exist. ... [6]  The reason that the father pursues an interlocutory application to change X’s parenting arrangements prior to trial are significant. His position is that the mother presents a risk, and indeed, an unacceptable risk of harm to X, such that the only protective measure that can be put in place to protect X from the risk that the mother presents is that X live with the father and spend supervised time only with the mother.  [7]  The father has articulated the supervised time-spending regime that he proposes as one which would see the time professionally supervised on a Saturday for a period of three hours. The father, in response to questions posed by the bench moments ago, would also be prepared to facilitate midweek supervised time spending between X and the mother. [8]  The mother filed a Response to the father’s Application in a Proceeding on 3 October 2023 opposing the orders sought by the father. Having heard the submissions of each the father and the ICL, however, the mother’s position has changed and she now advances a proposal that would see an increase to the child’s time spending with the father, such that the division of the week be on the basis of X living with the mother for four days and with the father for three days of each week. [9]  The ICL supports a change to the current parenting arrangement. The ICL, at the very minimum, supports an increase to the father’s time-spending with X What that regime looks like, the ICL is not ultimately wedded to and has acknowledged in submissions today that the change could be so far as, for example, X living with the father for five days of each week and the mother for two days each week. The ICL does not, at this stage, support the father’s proposal such that X live with him and spend only supervised time with the mother. [10]  I must say that the ICL’s submissions in that regard were not as forcefully put as opposing that arrangement. What the ICL said is that if the Court comes to the view that the risk to the child is immediate and acute, then the father’s proposal is one that has merit and would not be spoken against by the ICL. [11]  The real issue for the Court, both in the short-term today and when ultimately disposing of this interlocutory application, is an assessment of the risk that the mother poses. Whether that risk is an underlying, chronic, long-term risk or whether it is an acute and immediate risk. The father’s position is the latter. The mother’s position, although not articulated in this way, appears to be the former. I say appears to be the former, because that is the only inference that I can draw from the concession made by the mother today that the father’s time-spending should increase. That concession was made in response to the submissions made by the ICL in how the Court might consider approaching the interlocutory application. ... [23]  In all of those circumstances, and while I will give longer consideration to the appropriate interim parenting arrangement pending trial, it is my considered view that at this juncture, pending the delivery of my reasons in relation to the longer interim arrangements, that there must be a change of care for X Lest it not be clear, my concern at this juncture is that in recent weeks, X has been exposed to psychological harm and I am satisfied that there remains a risk that if unattended, X would continue to be exposed to psychological harm in the mother’s care. [24]  I therefore consider it appropriate and in X’s best interests that, pending the delivery of judgment, X ought live with the father. Can I indicate that it is my intention to bring the matter back next week for delivery of judgment in relation to the father’s Application in a Proceeding filed 23 August 2023 and the mother’s Response filed 3 October 2023. The period of time that I propose to have those arrangements in place are not lengthy, and it is at that juncture where I will give some consideration to the mother’s time spending and/or living arrangements and make orders. I do not consider, today, that I am in a position to come to a final view about the appropriate arrangements moving forward where the mother is concerned as I would like to reflect on the submissions made and the evidence now before the court. [25]  In coming to the decision to change X’s primary living arrangements, I am mindful that last week, the mother, by consent, agreed to X living with the father during an intervening period pending argument in these proceedings, which commenced on Monday. This suggests that the mother does not consider X to be at risk of harm in the father’s care.": Edhouse & Edhouse (No 3) [2024] FedCFamC1F 646.

• Unacceptable risks: "[207]  Changing X and Y’s primary living arrangements will not only remove them from their primary attachment figure but also their half-brother W. Sibling relationships are extremely important and it will be crucial that the children do not lose that relationship. It is of course troubling that there is some evidence the younger children have been targeted by W. The father will need to take all necessary steps to reach out to W and ensure that the children maintain their sibling relationship. I want to stress that while W clearly has some concerning behavioural issues, X and Y are not being removed from the mother’s care because of him. The removal is necessary to protect X and Y from the unacceptable risk of future harm from the mother. [208]  The change in living arrangements will also involve a change of schools for the children but it seems the mother may have been proposing a change of school in any event. The children have experienced significant absences from school including this year but despite this they appear to be performing satisfactorily academically, particularly Y. It may be preferable for the children to see out the school year at their current school, but that will be a matter for the father to determine in consultation with the children, the schools and the children’s therapist. [209]  Despite the risk posed by the mother, the children need both parents in their lives. I can only urge the mother to obtain therapy from a suitably qualified psychologist to help her come to terms with my determination and the reasons for it.": Sangster & Tailor [2021] FedCFamC1F 170. 

• Impact to children: 

> Tauber & Basler [2020] FamCA 159, [169] et seq.

> "[71]  The children have continued to attend at Suburb B State School. J is in Grade 4 and K is in Grade 2. Given that the mother lives at Town D, a change of the children’s primary living arrangements would necessitate a change of school and a cessation of their involvement in the football club in which they have been involved for some time. [72]  A change to the children’s primary living arrangements would also mean they no longer had the opportunity to spend daily time (during the working week) with the Applicant’s mother and her partner - with whom they have a strong and loving attachment and from whom they have obtained stability, certainty and care. A change in their primary living arrangements would also remove the children from the person - the Applicant - who has met their emotional, physical and financial needs for the substantial portion of their lives. [73]  Such a change to the children’s primary living arrangements would obviously provide them with an increased opportunity to spend time with both the mother and T. However, given the Family Report writer’s assessment of the strength of the children’s attachment to the Applicant, such a change would be likely to cause them significant disruption, distress and emotional harm.": Sharp & Underwood [2014] FamCA 301.

> "[127]  Under the heading “Conclusions and Recommendations”, Mr W suggested what might usefully follow, and that largely led to Dr S’s report. Importantly, Mr W, with his usual perceptiveness, framed the future determination of the proceedings in these terms: 87.… since [Y] is now so strongly aligned with her mother, any change in her primary living arrangements would be very emotionally traumatic for her. For this reason, the threshold [the father] will need to satisfy to demonstrate that the benefits of such a change would outweigh the costs, is likely to be very considerable indeed.": Standish & Standish [2012] FamCA 443.

• Weighing exercise: 

> "[69]  The primary judge accepted the evidence of Ms J which included the following: 158.… If the children were to live with the Father, it would mean that they would have to change their primary place of residence which will likely have an impact upon them and take a period of adjustment.It is the writer’s view however that the impact upon the children of the continued allegations (if they are found to be ‘coached’, fabricated or otherwise) and the emotional harm caused by them would far outweigh the impact of a change of their primary living arrangements.": Jasapas & Johns (No. 2) [2020] FamCAFC 203.

> "[156]  The weight of the evidence is against changing the children’s primary living arrangements and placing them with the father. This would have a huge upheaval for all three children. I am not satisfied that the mother is physically and emotionally abusive of X or of the other two children. I am satisfied that X is emotionally disturbed and that his behaviour is incredibly challenging and difficult to manage, particularly when it comes to any attempt to set boundaries upon his behaviour and impose rules and discipline upon him. The situation is exacerbated by the father accepting at face value what X says in effect encouraging X to make complaints about his mother to him and reinforcing to X that he thinks X is unsafe in the mother’s care. The father undermines the mother’s parenting and, whilst it may well be unconscious, it encourages X’s behaviour.": Roache & Dooley [2017] FCCA 1027.

> "[178]  I have concluded that the impact on the children of the implementation of the mother’s proposal would see them removed from the stability and security that which has sustained and supported them through their parents’ acrimony. It would significantly reduce their opportunity to spend time with both of their grandmothers and would dislocate them entirely from all that has formed part of their lives to date. Such consequences may be acceptable and justified if the benefits to the children from such a change were thought to outweigh the imposts associated with such significant change. That is not the case here. Whilst changing the children’s primary living arrangements to living primarily with their mother would afford them the opportunity to spend more time with her and their siblings, it would come at a significant cost and one which is not, in my view, in their best interests.": Ford v Ford [2015] FamCA 164.

> "[41]  However, as stated yesterday, I also do not accept that the advantages to the child of a move to live primarily with the father are significant enough to warrant the likely impact on her functioning - both short and long term - of such a significant change to her primary living arrangements at this time. The mother clearly has been the parent who has undertaken the primary care of the child to date. She has been primarily responsible for making decisions about her education and dealing with medical matters. She has been responsible primarily for the manner in which the child presents at school and to Mr G and this should be seen as a credit to her parenting skills and capacities and as a reflection of the priority she has accorded to meeting the child’s needs.": Aquila & Monte [2014] FamCA 821.

> "[221]  Whilst a change to X’s primary living arrangements will likely be difficult for her and involve a great deal of disruption, I consider the long term benefits of being removed from the overwhelming exposure to the views of her mother and her views about the issues discussed in these Reasons — including that of X allegedly being abused by her father sexually, physically and emotionally — significantly outweigh the short‐term impacts.": Cogger & Druce [2022] FedCFamC1F 405. 

[C.B] Reintroduction to care by parent - unsupervised or supervised - graduated basis - interim

• "The Independent Children’s Lawyer’s Proposal   [18]  The Independent Children’s Lawyer proposes that the children spend unsupervised time with Ms Vitalis for a period of two weeks for three hours each Saturday, then for a period of six weeks for eight hours each Saturday, then for a period of six months each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday and thereafter each alternate weekend from after school on Friday until 5.00 pm on Sunday. The Independent Children’s Lawyer proposes that special occasions be as agreed between the parties in writing and the parties not denigrate each other in the presence of the children. The Court notes this proposal for time is most consistent with the Report’s recommendations.[19]  The Independent Children’s Lawyer further seeks orders in relation to Ms Vitalis continuing to attend upon her counsellor at V Organisation and for both parties to have leave to provide their treating counsellor with a copy of the Report. Recommendations of the Single Joint Expert   [20]  The Report prepared by Ms U (“the Expert”) dated 20 March 2023 provides the following recommendations: the parents have equal shared parental responsibility for the children, the children live with Ms Kazan; the children spend unsupervised time with Ms Vitalis in a graduated regime beginning with one day (day time only) each weekend for eight weekends, then moving to one overnight (on a weekend) per fortnight for six months, then moving to two consecutive overnights (on a weekend) per fortnight for six months, then moving to three consecutive overnights (on a weekend) per fortnight for six months. I will not traverse any further recommendations provided by the Report as final orders will be made by then. ... [39]  The Court will adopt the Independent Children’s Lawyer’s proposal for time but taking into account the interim-interim arrangements that have been in place since 8 June 2023. The children have now had five weeks of unsupervised time with Ms Vitalis each Saturday for a period of three hours. The Court will order that that time be immediately increased to eight hours from this Saturday and that this proceed for a period of four weeks. It is noted that the Independent Children’s Lawyer recommends that the eight hours proceed for a period of six weeks but the Expert recommends daytime only for a total of eight weekends and Ms Vitalis has already done five weekends. Following this, the children will spend time with Ms Vitalis for a period of six months each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday and thereafter each alternate weekend from after school on Friday until 5.00 pm on Sunday.": Vitalis & Kazan (No 4) [2023] FedCFamC1F 579. 

• "[2]  The Independent Children's Lawyer ("the ICL") proposed a graduated regime of unsupervised time with the father for six months, leading to a week-about equal time arrangement. The applicant father largely adopted this proposal. The ICL and the father both sought orders that the parties have equal shared parental responsibility for the children. ... [78]  I find, on the balance of probabilities, that the father did not sexually abuse C for the following reasons: ... [79]  I further find, to the requisite standard, that neither child will be exposed to an unacceptable risk of sexual abuse in the unsupervised care of the father. Such a risk cannot be extrapolated from the two statements made by C, in combination with the father's alleged issues with "boundaries" in interpersonal relationships. [80]  In advancing the argument that the father has issues with "boundaries" in interpersonal relationships, the mother placed considerable emphasis on their own history. For reasons to which I now turn I do not accept that the father was solely or even significantly more responsible than the mother for the evolution of the parties' relationship. ... [108]  Overall my impression was that both parties engaged in unusual behaviour in the course of their relationship. To some extent the mother's youth and the imbalance in the parties' age and maturity may explain some of her actions. My impression, however, was that she exaggerated the father's unusual behaviour and minimised her own for the purposes of these proceedings. ... [112]  In this regard, I am also conscious that the mother allowed the father to care for the children in her home two to three times per week between 2006 and 2008. She participated regularly in family activities with him and the children during this period. The children also spent time with the father outside of the mother's home during these two years. Even after the allegations of sexual abuse arose in January 2009, the mother permitted the children to spend day periods of unsupervised time with the father until November 2009. In my opinion, this history is incongruent with the concerns which the mother now asserts as to the father's personality traits and behaviour patterns. ... [139]  It is somewhat puzzling that the mother allowed unsupervised time to continue for some ten months after C made her statements of possible sexual abuse by her father. She suggested that there were essentially two factors which prompted her to seek supervision of the children's time with their father in November 2009. ... [160]  I remain somewhat concerned about P's ability to cope with a graduated regime of time with the father and a week-about arrangement. I expect, however, that each of the parents would make genuine attempts to implement such an arrangement successfully in the interests of their children. The difficulty is that I simply do not know how such an arrangement would operate in practice. ... [162]  The legislation contains no temporal definition of "substantial and significant time" but does detail requirements for an arrangement to fall within this definition. It is necessary for: * a child to spend with a parent days which fall on weekends and holidays and also at other times. * a parent able to be involved in the child's daily routine and events which are of particular significance to the child * a child is able to be involved in events which are of particular significance to a parent [163]  It seems to me that the bulk of the proposals of the ICL and the father fit within this definition. The challenge is to find a balance between the benefit to the children of a reintroduction of extended, unsupervised time with the father and the fact that his practical proposals to meet their needs are unknown. I observe, however, that I am confident that the father will do his utmost to make appropriate arrangements to care for the children. It may be that the parents are able to regain their previous level of cooperation when they are free of these proceedings. [164]  It seems to me that I could make orders for the children to spend five nights per fortnight and block school holiday periods with the father in confidence that he will put into place appropriate arrangements for their care. I will thus adopt most of the proposals of the ICL and the father, including the suggested orders for time with each of the parents on special occasions. I note that the mother trusted the father to juggle his work commitments with full-time care of the children while she travelled to Asia and New Zealand after their separation.": Mason & Finton [2011] FamCA 583.

• "[14]  The mother says that she fears that should the child spend unsupervised time with the father, the child may be exposed to serious psychological harm. [15]  It is the mother’s case that the father was emotionally abusive towards her during the course of their relationship. There was also the issue of paternity, which has now been resolved. The mother’s allegations of family violence are denied by the father and are yet to be tested. [16]  There is in place already an order restraining the parents from denigrating each other and also restraining the parents from corporal punishment upon the child. [17]  The parties both submit that there is no practical difficulty or expense with the child spending time with the father. [18]  The courses which the father has agreed to undertake are likely to alleviate the risks identified by the mother, in particular the courses will assist the father in reaching a better understanding of the child’s special needs and how to better communicate with the mother. The father has indicated a willingness and ability to participate in the child’s therapies, and the Court accepts that he will do so going forward. [19]  The Court is not satisfied, having regard to the evidence, existing restraints and upon weighing up the likelihood of harm to the child as a result of the matters identified in the mother’s material, that there is an unacceptable risk of harm to the child such that time with the father ought to be supervised. [20]  The Court finds that on an interim basis, it is in the child’s best interest that he commences spending unsupervised time with the father on a graduated basis, but that no overnight time occur before there is further evidence as to how time is progressing and how the child is enjoying his time with the father. [21]  It is the Court’s view that if the child was to spend time with the father in the father’s home (as sought by the father) this would likely provide further routine and consistency for the child as opposed to supervised time with different supervisors and at times at different venues as has been occurring to date. [22]  In respect of parental responsibility, the presumption of equal shared parental responsibility when making a parenting order applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order. The Court does not so consider it in this case, and furthermore, the mother has not satisfied the Court that the presumption should be rebutted on the basis of any of the matters in s 61DA of the Act. [23]  While both parents, as submitted by Counsel for the mother, are learning about autism and how their child is affected as they go, they are also learning about each other. Indeed, it might be of assistance to the parents to learn more about each other and their child by sharing the challenging task of raising a child with special needs and being involved in the decisions regarding his long term care and development. After all, the diagnoses for the child is fairly new and no doubt will take both parents some time to come to terms with and understand. [24]  For all of those reasons, orders as set out at the forefront of these reasons are made.": Jandura & Bangard [2020] FCCA 2171.

• Unacceptable risk v no unacceptable risk - two courses: "Headnotes ....Where the father seeks equal shared parental responsibility — Where the mother seeks sole parental responsibility — Where the mother is diagnosed with post-traumatic stress disorder — Where the mother is fearful of the father and fearful of the children spending time with the father — Where it is found the father has engaged in family violence — Where both parents have mental status issues — Order made that the mother have sole parental responsibility with a duty to consult the father by email — Time spent with father — Where the father seeks unsupervised time on a graduated basis — Where the mother seeks the father have supervised weekly time — Where the Independent Children’s Lawyer’s proposal is that the children spend unsupervised time with the father on a graduated basis — Where it is found there is no unacceptable risk that the father is a physical danger to the mother and children — Whether the mother’s mental health will suffer if unsupervised time is reintroduced — Where it is found the mother is sufficiently resilient to cope with the children having unsupervised time with the father if protective orders are in place — Orders made that are protective of the mother’s vulnerable mental status — Order made that the children spend unsupervised time with the father on a graduated basis with conditions ... ... [9]  The orders sought by the Independent Children’s Lawyer were not known until the commencement of final submissions. The Independent Children’s Lawyer seeks an order for sole parental responsibility in the mother’s favour with a condition that the mother inform the father of her intended decision and to consider any response provided. The Independent Children’s Lawyer proposes that the children live with the mother and made different applications depending on whether or not the court found that an unacceptable risk existed for the children in the unsupervised care of their father. If there is no unacceptable risk, the Independent Children’s Lawyer seeks the introduction of a graduated regime of unsupervised time; initially each Sunday in the presence of the father’s partner; then from the commencement of third term 2015, each alternate Saturday from 5.00 pm to 5.00 pm Sunday and from the commencement of the 2016 school year, each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday. The Independent Children’s Lawyer proposes that the children see their father each alternate Christmas Day from 10.00 am to 5.00 pm and that an order be made so that the children are with their mother on Mother’s Day and with their father on Father’s Day. Changeover is to be at Interrelate contact centre at Suburb X and could alternatively be carried out by the father’s partner. Christmas Day contact is proposed to take place in a public place. In the event that the court found an unacceptable risk existed for the children in unsupervised care, the Independent Children’s Lawyer proposes long term supervised time facilitated by a contact centre or a private supervision service. There is to be no specific order in relation to telephone calls but rather the Independent Children’s Lawyer seeks the mother facilitate telephone calls between the children when requested by the children. The Independent Children’s Lawyer seeks a non-denigration order and a restraint on the father contacting the mother except by way of email in relation to the children. Unsupervised time is to be conditional upon the father attending upon a treating psychiatrist on no less than four occasions and providing evidence to the mother’s solicitors that that has happened. It was also envisaged that family therapy take place. The Independent Children’s Lawyer’s minute of order (Ex 25) nominates the child V’s current treating therapist, Ms W, but as was made clear during discussions during submissions, it would be up to Ms W as to whether or not she took on that assignment and if she chose not to, a mechanism needed to be in place for an alternate therapist to be selected. The Independent Children’s Lawyer seeks costs orders against both parent": Shea v Morgan [2014] FamCA 738.

[D] Risks - Factors

• Mental Health, poor child-parent relationship, child's psychological safety, capacity to meet needs, benefit to child of a relationship with parents, father child foccused approach to making decisions: "I find that the mother’s mental health has improved and that she has proactively managed her mental health. I accept the evidence of the mother and her treater and find that the mother does not pose a risk to Y as a consequence of her mental health. I find that Y’s safety is at risk as a consequence of her poor relationship with the mother. I find, on the basis of the father’s oral evidence, that he has limited capacity to assist Y in overcoming her negative perceptions of the mother and her apprehension around spending time with her. I accept the evidence of the Court Child Expert that Y’s capacity to participate in ongoing therapeutic intervention is exhausted. I accept that to make Y the subject of coercive orders to spend time with the mother will not bring about any repair of the rupture in their relationship. I find that coercive orders for Y to spend time with the mother will have a negative impact on Y’s psychological safety. ... I am satisfied that the father has demonstrated a child-focused approach to making decisions. The children will live with the father and as a consequence, I find that it is appropriate that in the event of an absence of agreement between the parents, the father be entitled to hold sole decision-making responsibility for major long-term issues for the children.": Harley & Cohen [2024] FedCFamC2F 1280, [231]-[233], [267].  

• Prescription cannabis use: Caceres & Barrett (No 2) [2025] FedCFamC2F 130.

• Prescription cannabis, medicinal cannabis use, risks while driving, need expert report: "[41] One of the concerns raised is the medicinal cannabis prescribed to the father. In December 2024 the father asked his GP about medicinal cannabis for chronic back pain. He has provided evidence of his prescription and says that he uses it a couple of times a week. [42] The mother’s counsel raised the issue of the father taking medicinal cannabis and submitted that it is not legal for the father to drive when taking that referring to s.111 of the Road Transport Act 2013 (NSW). Section 111(1) states that whilst there is the presence of prescribed illicit drugs in their system a person must not drive a motor vehicle. In the definitions, prescribed illicit drugs includes “(a) delta-9-tetrahydrocannabinol (also known as THC)”. If the medicinal cannabis the husband takes contains THC it would mean that he would not be able to drive a car whilst the THC is in his system. The use of medicinal cannabis does not appear to be an ideal solution for someone who has been a regular user of cannabis. The father may need to obtain expert evidence on this topic if it remains an issue for trial. [43] There is insufficient evidence to suggest that X is at risk in the father’s care due to his medical condition.": Sevinc & Ikram [2025] FedCFamC2F 961.

[E] "Default" Assumptions about Child's Best Interests (read the relevant decision for the appropriate context)

• "Section 60CC(2)(e)    68. The children should each enjoy close and loving relationships with both parents, as that would be of benefit to them. Neither party disagreed. 69. More needs to be done to promote the youngest child’s relationships with the father and her siblings. If she does not live with the father, then she should at least spend much more time with him.": Beltran & Preston [2025] FedCFamC1F 102.

• "56. The youngest child was too young to express any view.": Beltran & Preston [2025] FedCFamC1F 102.

• Continuation of meaningful relationship: "156. The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship.  The mother, both during the relationship and post separation to date, has been adequately caring for the child.  The Court has discussed, above, the mother’s lack of commitment to the child developing relationship with the father and the reasons therefore. 157. Subject to the Court’s discussions above under the s 60CC safety considerations in relation to the father, prospectively the child may well benefit from developing a relationship with the father.": Waheed & Shahid (No 2) [2025] FedCFamC2F 214.

[E-A] Card and Gifts - Child's Best Interests

• "192. The Family Report writer had recommended, having stated that the child spend no time with the father, that the father be permitted to send cards and gifts at Christmas and on the child’s birthday via a postal address designated by the mother, but that the mother be permitted to review any correspondence and not provide it to the child if she considers it to be inappropriate in any way. In oral evidence, the Family Report writer stated, having made this recommendation in her Family Report, she was not necessarily wedded to the idea of such gifts and cards. She recognised that the mother, unsurprisingly, held a view that the father would use the opportunity to write cards and send gifts in an inappropriate way that was damaging to her. 193. Not without some hesitation, by reason of the likely anxiety the mother will experience in dealing with any cards or gifts the father might send for the child, in the view of the Court, the father should be permitted to send such cards and gifts but only twice each year, at Christmas and on the child’s birthday. The Court recognises that the child’s receipt of such cards and gifts may assist in the child in appreciating that she does have a biological father who loves her, and experiencing some connection with her paternal heritage.": Kirsch & Pelzer [2025] FedCFamC2F 283.

• "[57]  The family report writer said that there are also risks should the child have no contact with the father but be allowed to receive cards and gifts from him during certain occasions. The family report writer noted that there is a risk that the child may wish to seek out the father down the line and may idolise her father. ... [64]  Counsel for the ICL asked the family report writer whether it was appropriate for the father to be granted to send the child gifts and cards on certain occasions in the year. The family report writer acknowledged that the proposal was reasonable as it provides the child with the clarity that she has a father and that he is thinking about her. That being said, it was noted by the family report writer that these occasions should be limited to birthdays and Christmas only. The family report writer also said that the respondent mother would need to facilitate the receival of these gifts or cards for the child and facilitate a response from the child to the applicant father.": Metrellis & Chase [2023] FedCFamC2F 1241.

• "[288]. ... The Court is also of the view that there is sufficient evidence to ground the mother’s requirement that any communication by the father with the child, by sending to him cards and gifts should be in the English language and that the mother have the first opportunity to open and inspect the contents of any letters, cards and gifts provided by the father to the child, noting that the father has sought to communicate with the child, at times, exclusively in the Country J language.": Testa & Fields [2019] FCCA 2569.

• impact on mother: "[58]  The father’s Summary of Argument in respect to Ground 2 includes extracts from the decision of the Full Court in Keane, but does not otherwise connect that authority to a sustainable ground of appeal. During the course of the appeal hearing, by reference to the decision of the Full Court in Blinko & Blinko [2015] FamCAFC 146 , the father contended that the primary judge did not adequately consider steps that could be taken to mitigate the unacceptable risk the father poses, such that the child could spend some time or have some communication with the father, or for the father to send cards and gifts to the child. [59]  The primary judge at [147] expressly stated that he considered the opinion of the Family Report writer that the child spending no time and having no communication with the father had the potential to impact upon the child’s perception of identity in the future. Having noted that potential, however, the primary judge carefully explained why he was of the view that, despite that potential consequence, it was in the best interests of the child to have no time and no communication with the father (at [148]–[151]). No error has been established in respect to the manner in which his Honour exercised his discretion in so determining. The primary judge further explained that orders facilitating the father sending cards and gifts to the child would require the mother to be the conduit for such communication. Indeed, such orders would require the mother to identify her place of residence or, at least, facilitate a means by which the father could locate the mother. In the context where the father had been convicted of trespass for breaking into the mother’s residence in circumstances where her place of residence had remained confidential and not made known to the father, it was reasonably open to the primary judge to conclude that the mother would experience heightened anxiety by an order facilitating the father maintaining contact with the child and, necessarily, the mother (at [148]). Additionally, in that respect, the primary judge noted that the only respite the mother has had from the ongoing coercive and controlling conduct engaged in by the father has been during those times where there has been no communication between the parties in respect to parenting matters. ... [98]  It was entirely open to the primary judge to conclude that, in circumstances where he had not been advised of the mother’s location, the father stalked the mother. [99]  The father’s acknowledgement that he acted inappropriately in regard to this matter, with respect, rings hollow in the context of this ground of appeal. It was reasonably open to the primary judge to find that the conduct of the father in locating, unlawfully entering and remaining in the mother’s home without her consent were, as his Honour found, acts designed to cause fear. Having made that finding, it was well within the proper exercise of discretion for the primary judge to determine that any contact between the mother and the father in the future, including for the purpose of the father providing cards and gifts to the child, would likely cause the mother stress and anxiety such that her parenting capacity would be adversely impacted.": Lim & Zong [2022] FedCFamC1A 146.

• "[333]  For the reasons set out above I find that it is not in the child's best interests for her to spend any significant amount of time with the father. However, the father should be entitled to communicate with the child by way of letters, cards and gifts. Whether the child chooses to read those letters and/or cards or to take the gifts will, bearing in mind the age and maturity of the child, be a matter for her. I have concerns that if such material were forwarded to the child care of the mother, they would not be given to the child. The mother cannot be trusted in that regard. [334]  Accordingly, I will be making orders that the father, and for that matter the aunt, may forward letters, cards and gifts to the child care of her school. In addition, I will be making orders that the school forward to the father copies of all the child's school reports, school photos and that the father be able to speak to the child's teachers (not in the child's presence) as to her progress at school. It may be that as the child becomes older and becomes more aware of her mother's significant influence on her or her mother's mental illness, that she will, of her own volition, wish to contact the father. By the processes I am putting in place, lines of communication will remain open and available to the child. I will also put in place orders such as will entitle the child to have access to these reasons once she attains the age of 18 years. [335]  I find that the mother has alienated the child from the father and has taken every opportunity to do so since at least separation. The mother has sabotaged any effort to enable the continuation of or reform any relationship between the child and the father as a consequence of her own antipathy towards the father. I find the mother is manipulative in the way she deals with the orders and with people and that she has, to all intents and purposes, trained the child to reflect her own hate and antipathy of the father.": Pearce & O'Toole [2007] FamCA 1491. 

• "[38]  The mother submits to the Court that the children should have the opportunity of communicating with their father, and for this reason she submits to the Court that orders for the children to have telephone communication with the father on a regular basis, as well as to receive cards and gifts from the father are orders in the children’s best interest. Such orders will ensure that the children retain a relationship, and know their father. At the same time the orders will ensure that the risk to the children will be minimized.": Aslam & Render [2017] FCCA 3180.

• "[261]  I find that it is appropriate that an order be made, which was proposed by the Mother’s minute of order in Exhibit A1, that the Mother do all things necessary to provide to the Father’s postal address, a photograph of X one month prior to Christmas and a mid-year photograph and to keep the Father advised as to X’s progress at school, though she is not required to identify any school or residential address, and that the Father be permitted to forward cards and gifts to X for Easter, X’s birthday and Christmas each year by forwarding same to a postal address provided by the Mother.": Wolfe & Varni [2022] FedCFamC2F 397.

• "[740]  I have considered whether or not the father should be permitted to have communication with the child by way of letters, cards and gifts. To allow such a situation would in my view permit the father to destabilise and disrupt the mother's household. Whilst it is tragic that as a result of my orders the father will be entirely excluded from the child's life, that is the only conclusion that I am able to reach. Accordingly there will be no such order.": Fennessy & Gregorian (formerly Sanchez) [2007] FamCA 1574.

• "[5]  The maternal grandparents seek that for a period of four months, they spend supervised time with the children on the last Sunday of each calendar month from 1.00 pm to 2.00 pm and that thereafter they spend unsupervised time with the children on the last Sunday of each calendar month from 1.00 pm to 5.00 pm. In addition, the maternal grandparents seek to communicate with the children on the second Sunday of each calendar month via Skype/FaceTime or by telephone and that they be able to forward cards and gifts to the children to celebrate their respective birthdays and other special days in the religious calendar. ... [39]  The parties underwent a Family Assessment conducted by Family Consultant Ms E in October 2021 which resulted in a recommendation that the maternal grandparents spend no time with the children but that they be able to send cards and gifts to the children on certain specified occasions. [40]  It is a reasonable summary of the underlying rationale of the Family Consultant’s recommendations that the exchange of cards and gifts would establish a relationship between the children and their grandparents when ultimately it might be considered in their interests that they spend time with the maternal grandparents. ... Order ...  2. For the purpose of order 1, the maternal grandparents shall cause cards and gifts to be delivered to the address nominated by the mother and father. 3.Ms Blagoslav (“the mother”) and Mr Blagoslav (“the father”) shall do all acts and things necessary to provide cards and gifts delivered or forwarded by the maternal grandparents to the children in a manner that encourages the children to receive same with the positive reinforcement and support of the mother and father.": Stylianos & Blagoslav [2023] FedCFamC1F 1071.

• "[200]  The father and ICL proposed that if the child lived with the father, the mother and the child could communicate by way of letters, cards and gifts, to be forwarded to the father's residence. The mother was sceptical that such items would be handed to the child but I do not share that scepticism. The father would certainly need to be in a position to scrutinize such items and to make a decision as to whether they should be handed on. I am satisfied such an order would be in the child's best interests, as would be an order providing for the child to be encouraged to forward letters, cards and gifts to the mother on appropriate occasions. Such communication may seem tenuous but if the mother and the child were having no direct contact, it could provide the foundation for the re-establishment of a face to face relationship in the future. ... [202]  There is no doubt that the child's best interests would be met by being able to spend time with her mother, and to maintain and develop that relationship. However, I cannot find it to be in her best interests to have unsupervised time. Faced with the mother's intransigent refusal to renew contact with the child at G Centre or accept a professional, commercial supervisor proposed by the independent children's lawyer, I have no alternative but to find that the child should not spend time with her mother or communicate directly with her mother, by telephone or by attending at her school or at extra curricular activities to speak with her. Orders will provide for the mother to send the child letters, cards and gifts and for the child to be encouraged to reciprocate.": Licha & Wunscher [2008] FamCA 147.

• "[138]  Orders providing for the method of communication between the parties are needed to ensure that relevant information is exchanged, and the form of communication constrained to relevant material. Notice should be given as soon as reasonably possible in the case of significant illness, accident or injury, or any significant medical treatment for E. It is also in E’s interest that the mother assist him to send letters cards and gifts if he chooses to do so (although with monthly visits most letters and cards will be able to be delivered by E in person). I am not persuaded to permit the father to provide letters cards or gifts other than during supervised contact visits as this would place a burden on the mother to assess the material and potentially lead to further disputes.": Masters & Pedrosa (No 2) [2024] FedCFamC1F 396.

• "[270]  The ICL’s proposed orders exclude from the mother’s exercise of sole parental responsibility the issue of the child’s name and restrain her from changing it to exclude the father’s name. They also require the mother to ensure that the child uses the father’s surname in common daily usage as her own, to keep the father informed in relation to other significant matters, and permit the father to obtain material in relation to the child’s progress at school. While these orders will not foster the child’s “meaningful“ relationship with the father, they will ensure that the father is not completely excluded from the child’s life. Similarly the ICL’s proposed orders provide that the father be at liberty to forward birthday and Christmas cards and gifts to the child which the mother must provide to her. Significantly, in the event that the child wishes to communicate with, write to, or spend time with the father the ICL’s proposed order require that the mother facilitate such contact or time.": De Silva v Rogers [2015] FamCA 936.

• Failure to send gifts, cards - inference drawn that father lacks insight into what effect gift giving has on child: " [124] The father has not sent the children any cards or gifts for their birthdays, for Christmas or indeed at all, since the children moved with the mother to Region M. X has expressed disappointment that his father purchased items that the children did not receive. The father’s evidence is that he would not send the children presents to their maternal grandmother’s address as she would not pass them on to the children. Such an attitude is indicative of the father’s lack of insight into what his actions mean for the children.": Wells & Wells [2024] FedCFamC2F 1516.

[E-B] Change of Surname - Child's Best Interests

• "201. It is appropriate to deal with the mother’s proposed orders for change of name of the child. This is opposed by the father. The mother seeks to change the child’s name from “X Pelzer” to “X Kirsch”. The Court accepts the mother’s evidence relating to change of name as set out in her Affidavit filed 28 January 2025. Inter alia, the Court accepts the mother’s evidence that the child has been saying that her name was “X Kirsch” for a significant period of time, the child only recognises her last name to be “Kirsch”, and the child is known as “X Kirsch” in her extracurricular schools. The mother’s proposed change of name for the child will also be in the child’s best interest because the child has no relationship with the father and will not spend time with him, whereas the child lives with the mother who has been the child’s primary carer from birth to date, and the mother has sole parental responsibility for the child.": Kirsch & Pelzer [2025] FedCFamC2F 283.

• Sipos & Hidalgo [2024] FedCFamC2F 1814, [259] et seq.

[E-C] Child to spend time with parent against their expressed wishes - Child's Best Interests

• "[77]  The Court recognises that there is a risk to the children in being ‘forced’ to spend time with the father against their expressed wishes, however, the Court does not consider such a risk to be unacceptable. Rather, the risk of losing their relationship with the father in total is the greater risk, and the loss to the children in the future, if this were to occur, has the potential to be enormous and as such is unacceptable.": Weller & Weller [2017] FCCA 1790.

• "[233]  Given the findings of family violence the presumption pursuant to s 62D of the Act does not apply. [234]  In making this determination, I have had regard to the provisions of s 60CC(2)(A) of the Act in that in applying the considerations set out the sub-sections in s 60CC(2). I have given greater weight to the considerations of the need to protect the children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence as against the benefit of having a meaningful relationship with the husband. ... [236]  The husband seeks orders for equal shared parental responsibility and a substantial and significant time arrangement with the children. He wishes to re-establish or resume his relationship with the children. [237]  The middle child wants no time with the husband. I have given significant weight to that view. The younger child likewise does not want a relationship with the husband, although she is at times ambivalent in that regard. [238]  The husband has in the past displayed serious violence to all members of this family. He does not acknowledge that violence and I am concerned that his engagement with Mr N was more of a means to an end rather than an acknowledgement and acceptance of his past violence. ... [251]  As I indicated earlier, I have given the children’s views significant weight. They do not wish to see or have contact with the husband. ... [254]  I accept that the husband had in the past expressed interest in the children’s education and activities, but such involvement exposed the children to his anger, violence and bullying. ... [263]  In summary, I have considered the views expressed by the children in the light of their maturity and understanding. [264]  I have considered the past relationship between the husband and the children, including the children’s relationship with the husband’s broader family. ... [267]  Forcing these children to see the husband could and would likely expose them to family violence and the risk of further physical and psychological harm. Separation from the husband will be and is in the best interest of these children. [268]  The husband provided financially for the children prior to and at some levels after separation. He has otherwise been destructive of their emotional and intellectual needs. [269]  The husband, through his violence, has demonstrated a wanton disregard to his responsibilities as a parent. I have reflected on the violence in this determination. In that respect I have had regard to the family violence orders and the circumstances in which the order was made. [270]  As such I will make orders that the wife have sole parental responsibility and will require that she keep the husband informed of any serious injury or illness afflicting the two younger children and of her contact details. The wife must keep the husband informed of the children’s address and school. [271]  The children will live with the wife. [272]  The husband will be permitted to obtain from the children’s schools copies of school reports, school newsletters, school photographs and other information that is normally provided to parents. The husband may contact the schools to ascertain information as he reasonably requests about the children’s progress.": Foley & Foley [2017] FamCA 1158.

• Jeffries & Marton [2014] FCCA 1730.

• "[81]  Turning firstly to risks, Ms M’s evidence was that, at the moment, the child is not able to emotionally cope with spending time with the father, whether in Australia or elsewhere. Her evidence was that on the worst case scenario, for instance if the child was required to spend six weeks of time with the father over Christmas, she would experience it as being forced to spend time with a stranger who frightens her. She said that that would be emotionally harmful, even if it were to be for one day. She said that if it were to last six weeks, it would cause inconsolable distress to be suffered by the child, would profoundly impact upon her trust of the mother, and very likely lead to significant mental health problems, and even possibly long term personality issues. I accept that evidence. [82]  As to the benefits, Ms M indicated that the Shona culture was an important aspect to the child’s forming identity. However she said that the mother is instilling knowledge of that culture into the child, and that it is not the case that the father presents the only conduit to that experience. That said, Ms M did concede that the father has a large family, and that his family is different from that of the mother, and hence it would be enriching for her to learn about other aspects of her Shona culture from that family. Ms M continued that, if at a future date the relationship between the father and the child could be adequately repaired, it would benefit the child to spend time with him when forming her identity, as it would give her familiarity with her knowledge of her biological origins. Again I accept that evidence. ... [112]  The reality is that unless and until the father can demonstrate some greater child focus in his communication with the child, then it is not in her best interests to perpetuate the anger, resentment, and emotional distress that she experiences when being forced to interact with him against her will. I have little doubt that she indeed sees her father as punitive and critical, and she experiences interacting with him as a power struggle. That cannot be a good experience for a child in relation to her father, and I accept the evidence that the relationship is only going to sour further if the communication is forced to continue. ... [119]  At the conclusion of the trial before me I was asked to make interim orders suspending the communication regime between the child and the father. I made those orders for reasons to be published. The reasons for making those orders are identical to those which I have expressed earlier in these reasons as justifying there being no orders for time and communication between the father absent agreement by the mother.": Corla v Tebello [2016] FamCA 429.

• "[42]  The mother deposes that the child would become teary and tell her that she is unwell on days of supervised visits. She deposes that the child would become angry about being forced to spend time with the father at the contact centre and would tell the mother that she was “scared“ of the father. The mother deposes that the child started experiencing nightmares and wanted to sleep with her, developed eczema around her mouth, and developed an obsession with her hair whereby she did not want “bumps“ in her ponytail. She deposes that she was told by one of the child’s teachers that the child had broken the belongings of other children without explanation. ... [118]  I am satisfied on all the evidence that the mother does not present a risk to the child. I am satisfied that the father does present a risk of harm to the child should she be forced to spend time with him. I accept the evidence of the father’s significant prior criminal history. He has been imprisoned for a variety of offences including robbery, reckless conduct endangering serious injury, driving whilst disqualified, burglary and theft. The father has been convicted and imprisoned for robbery in 2011 for which he was sentenced to an aggregate period of nine months’ imprisonment. He was also convicted for reckless conduct endangering serious injury and convicted in 2011 for failing to comply with sentencing orders such as an intensive correction order. The father was convicted in 1997 on drug charges which included trafficking for which he was sentenced to a total effective term of three years imprisonment with a non-parole period of one year and ten months’ imprisonment. The father has a significant criminal history for both crimes of violence and matters of dishonesty and drug related offending.6 ... [122]  The significant issue when the parents filed their material was whether the child should be required to spend time with the father in circumstances where supervised contact had been unsuccessful and she had communicated her views very clearly to the family consultant and the staff at F. The father has not pursued this. ... [128]  Having regard to all of the evidence but particularly the evidence of the family consultant, I am satisfied that in balancing the primary considerations, the need to protect the child from psychological harm by undermining her relationship with her primary carer, the mother, must outweigh any benefit to the child which might ensue from having to spend time with the father in circumstances where she is implacably opposed. This would not promote a meaningful relationship with either parent. There is a need to protect the child from being exposed to the volatile conduct of the father which has been recorded by the staff at F, Dr E and in the presentation of the father to the family report writer. The evidence which I accept, of the father’s propensity for violence and the evidence of his threatening relationship with the mother and her family is a primary consideration calling for the protection of the child. ... ": Salib v Salib [2015] FamCA 489.

• "[200]  I am not satisfied changing the child's circumstances so that she is forced to spend time with the father is achievable. It is far more likely to engender high level distress for the child and disrupt a life which she enjoys. The child is doing well at school and is engaged in a variety of extra-curricular activities. She sees herself as part of a nuclear family and, in her life with her mother and Mr Lewis as "a normal" girl. Her emotional, educational and other needs are well met. [201]  Orders for the father to spend time with the child are those most likely to result in further litigation. There has been too much litigation in this child's life and the adults and child are weary of it. Although this is not a significant matter, it warrants some weight. [202]  There is considerable overlap between s 60CC(4) and s 60CC(4A) with s 60CC(3). The father pays child support and the child's school fees. The evidence clearly established the mother made major decisions about the child post separation without consulting the father. When she did consult the father, this usually resulted in agreement and he demonstrated an ability to put the child's interests first. Generally, his approach has been to trust the mother's judgment and go along with whatever it is she sought to do.": Bonython & Darley [2010] FamCA 1147. 

[E-D] Overnight spend time - Child's Best Interests

• "[113]  The parties agree that the child should spend significant and substantial time with the father, including alternate weekends and half school holidays. [114]  The father proposes that he spend three afternoons after school with the child and the mother proposes that it be one afternoon a week. Three afternoons per week every fortnight is in the Court’s view, too disruptive for the child, particularly as she grows older and gets more involved in after school activities. One afternoon per week every fortnight is insufficient quality time with the father. [115]  The Court’s view is that it is in the child’s best interest that the father have involvement in getting the child to school, ensuring her homework is done and participating in her usual after school activities. This can realistically only be done if there is time on a school day after school and overnight. That way, the child has the benefit of her father picking her up from school, getting her home to have dinner, helping her with her homework, getting her ready for bed and ensuring she is ready for school the next day23, something which the child would otherwise only get the opportunity of every alternate Sunday. Therefore it is in the child’s best interest for there to be one overnight with the father in the off week.": Arkins & Arkins [2018] FCCA 516.

Jing Zhi Wong

[E-E] Weekly time cf monthly time - Child's Best Interests

• "[50]  The Court finds that it is frequent weekly time which will give the child the opportunity of developing and growing his relationship with his father further. ... [68]  The Court finds that overall the child’s best interests are served by an order for frequent weekly time with the father, rather than monthly time.": Gilbertson & Mill [2017] FCCA 881.

[E-E.1] Overseas Travel - Australian Citizens

• "[181]  The mother seeks a positive order that she be permitted to remove the children from the Commonwealth of Australia for the purposes of travel notwithstanding that the father’s consent has not been first had and obtained. [182]  The father opposes such an outcome and in fact, seeks an injunction preventing the children from travelling outside of Australia without the prior written consent of the other parent. Given the mistrust between the parties, the father’s application is tantamount to a complete prohibition. [183]  Under cross-examination, the father expressed a concern that the children “might not come back” if the children were permitted to leave the Commonwealth of Australia. The father maintained this concern despite his knowledge that the children are not citizens of any other country. When asked whether the children have a “legal right to reside in any other country”, the father said “I’m not sure how it works”. [184]  I refer to the well-known decision of Line & Line (1996) 21 Fam LR 259, which has been followed and applied on many occasions. In that decision, the Full Court set out the type of considerations to be considered when such a parenting order for overseas travel is made. I address those criteria below. [185]  The mother is an Australian Citizen, and the children are also citizens of Australia.169 There is no evidence whether the mother lives in a freehold or mortgaged property or whether she is renting. However, the mother’s children and family all reside in Australia.170 In my view, and despite the conflict between the parties, that is a strong enough motive for the mother to return to Australia with the children if she is ever able to accumulate sufficient funds to enable her to travel with the children. [186]  Notwithstanding these findings, the mother produced no evidence whatsoever with respect to the locations where she would like to travel with the children or when she might do so. For these reasons, I refuse to make an order permitting the mother to obtain passports for the children absent the consent of the father and/or permitting the children to travel outside of the Commonwealth of Australia.": Kontou & Naggia [2024] FedCFamC1F 698.

[E-F] Unacceptable Risks to the Child - s 60CG: 

• "[46]  Section 60CG of the Act imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order. ... [52]  The mother in this case invites me to make a finding that the father presents an unacceptable risk of harm to the children. When considering this question, I am mindful of the Full Court’s decision in Isles & Nelissen (2022) FLC 94-092 (“Isles”), which summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Full Court said that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities. [53]  The Court in Isles also said of the decision in N and S and the Separate Representative (1996) FLC 92-655 as follows: 12.Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm … (citations omitted) [54]  In Isles, the Court (at [35]) went on to quote Tree J in Bant v Clayton (2015) 53 Fam LR 621: 171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations — even accepting they may be imprecisely expressed within parameters — will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract. [55]  The Court agreed with and adopted Austin J’s judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following: 138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight ofpossible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110] , [129]). Risks of harm must be heeded even if they are improbable eventualities. 139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable. [56]  In Hickson & Matthew [2022] FedCFamC1A 161, Deputy Chief Justice McClelland said this of Justice Austin’s analysis at [39]: 39.Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities: (1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A [1998] FamCA 25; (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77. (2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148]. (3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page [2007] FamCA 1235; (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249. (4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.": Kontou & Naggia [2024] FedCFamC1F 698.

> similar considerations to those in s 60CC(2A)(a) factor, below. 

> Johnson & Page [2007] FamCA 1235: What amounts to unacceptable risk was the subject of extensive discussion by the Full Court in Johnson and Page [2007] FamCA 1235 where the Court held (in sum):  1. The best interests of the child will always be the decisive issue; 2. Unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable; 3. Where past abuse is alleged, the court is not required to reach a conclusion as to its existence but if the court does consider its existence then the Briginshaw civil standard of proof applies; 4. A failure to prove past abuse in accordance with the Briginshaw test does not prevent the court from considering the circumstances in determining whether unacceptable risk exists; 5. Focus in these matters should always be on the question as to whether there is an unacceptable risk for the child; 6. The onus of proof to be applied in reaching any conclusion as to unacceptable risk is the ordinary civil standard; and The individual components in reaching that conclusion need not be proven on the balance of probabilities. The Court may reach a conclusion of unacceptable risk based on an accumulation of factors where none or only some of which are established to that standard.

• Evidence of past violence was strong foundation for finding that father posed an unacceptable welfare risk – Considerations relevant to determining child’s best interests are not limited by s 4AB definition of “family violence”: "[31] This ground mischaracterises what the primary judge said in the reasons. At [46], the primary judge identified the mother’s belief that the father seeing the children would be a “continuation of his coercive control of her.” The primary judge found that if the mother’s evidence is accepted “there may be a logical and rational basis for her fears and for the conclusion of coercion or control” (at [47]). The primary judge did not conclude that the mother’s subjective beliefs were sufficient for the definition of “coercive or controlling behaviour” in s 4AB of the Act (see Pickford & Pickford (2024) FLC 94-230); rather, that a conclusion that the father had engaged in “coercive or controlling” may be open to the court on the mother’s evidence of the past events. [32] The father’s argument conflates two different concepts: the first is the statutory definition of “coerces or controls” (s 4AB), and the second is how the experiences of the mother may affect her parenting capacity (Re Andrew (1996) FLC 92-692). The Court determines the suite of parenting orders made in a child’s best interests, which discretionary judgment is necessarily influenced by whether one parent has been the subject of coercive or controlling behaviour by the other and, even if objectively not, how the subjective belief in such behaviour committed by the alleged perpetrator might nonetheless impinge upon the parenting capacity of the alleged victim. The considerations relevant to determining a child’s best interests are not limited or constrained by the statutory definition of family violence in s 4AB. There was no error by the primary judge in this regard.": Hannigan & Hannigan [2025] FedCFamC1A 117.

• "[29]  As earlier identified, the mother’s case is that the father presents an “unacceptable risk of harm”. [30]  As identified by the Full Court in Deiter & Deiter [2011] FamCAFC 82 at [61] (“Deiter”): The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements — the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events… [31]  The question of “unacceptable risk” was comprehensively considered by the Full Court in Isles & Nelissen (2022) FLC 94–092 (“Isles”). There the Full Court said: 83.Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse. 84.In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material. 85.The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93–924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one. 86.We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent. (Emphasis in original) [32]  It is therefore clear that there are two stages involved in assessing risk and understanding whether any assessed risk is unacceptable: (a)Firstly, the fact-finding exercise relating to allegations that have been made; and (b)Secondly, the predictive exercise which involves the assessment of the evidence and circumstances, including but not limited to any findings/lack of findings/inability to make findings. [33]  So far as the fact-finding aspect is concerned, as the High Court identified in M v M (1988) 166 CLR 69 (at 76 –78): But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. … Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. … No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor)). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. (Footnotes omitted)": Galvin & Pacotto [2024] FedCFamC1F 582.

• FRAMEWORK and in relation to family violence: "Section 60CG of the Act requires the Court, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order. Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of a child and the person who has the care of the child. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide a degree of protection from the matters identified in the subsection to the extent necessary relative to the evidence and the risk of harm. The Full Court in Goode and Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts. ... In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed: 50. It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”. ... Family violence is a curse which affects not just the immediate victim, but also children, even if not directly observed by them. Children exposed to family violence may suffer from a range of emotional and psychological responses that impact upon their development into healthy well-functioning adults. As the Full Court observed in Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 at [95] “the consequences of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the children’s welfare.” A perpetrator of family violence provides a poor role model to children as it reflects on every facet of their attitude to the responsibility of parenting. This is a case all about risk. The task of the Court in relation to questions of unacceptable risk is as identified in Isles & Nelissen [2022] FedCFamC1A 97; (2022) 65 Fam LR 288 is to undertake a qualitative analysis of the evidence directed not just to the existence of the risk of harm but also to the magnitude of the possible harm. An assessment of the probabilities is not the measure by which a future risk of harm is determined. A possibility may be sufficient basis upon which to find an unacceptable risk. There is no evidence as to the views of the children (s 60CC(2)(b)). I am satisfied that it is to the benefit of the children to have a relationship with their father (s 60CC(2)(e)) provided it is safe for them and the mother to do so (s 600CC(2)(a)) and does not compromise the mother’s capacity to provide for the children’s developmental, psychological, emotional and cultural needs (s 60CC(2)(d)). I cannot ignore the serious allegations raised by the mother which extend beyond those for which the father has been charged and to which he has responded. The father has had the mother’s evidence since shortly after 23 September 2024 and has elected to place before the Court no contradictor to what she says or contextualisation to her assertions in respect of her allegations beyond those with which he is charged. I am satisfied that there is a proper basis for concluding that there is the possibility of the existence of harm and that the magnitude of that risk of harm is such that the children would be at an unacceptable risk of harm if the father were to spend unsupervised time with them. The parties have framed the matter for determination in a narrow compass, albeit the consequences are significant. The father seeks only supervised time. The question then is whether the children are at an unacceptable risk of harm by spending supervised time with the father. The father says they are not while the mother and ICL say they are. The jurisprudence of this Court makes clear that the genuine fears of a primary carer about the existence of a risk is a consideration in the risk assessment (see Re Andrew [1996] FamCA 43; (1996) FLC 92-692; A & A [2005] FamCA 43). The mother gives evidence of the affect upon her of what she says she has endured. She says she is fearful of the father and afraid for the wellbeing of the children and if they spend time with him. She describes the impact of him seeing the children or communicating with them as a continuation of his coercive control of her. There has been no testing of the mother’s assertions, so I am not in a position to second guess her assertions or reject them outright. If her evidence is accepted, there may be a logical and rational basis for her fears and for the conclusion of coercion or control. I cannot ignore the possibility of risk to the children’s welfare of her parental capacity being adversely affected by the children spending time with the father even on a supervised basis in circumstances where, on the father’s proposals, the mother is the undisputed primary carer and the person with sole parental responsibility. I am conscious of the fact that the children have not spent time with the father since mid-2024, a period of some several months. There is no evidence of how the children are responding to not seeing their father. The mother’s proposal on a final basis is a no time order. There is no expert evidence before the Court nor a proposal by either party to obtain any expert evidence in the short term. While the ICL initially suggested a report be obtained, he seemed to resile from that position during submissions. Each party proposes a stay of the proceedings pending determination of the criminal proceedings so that, on the basis of the father’s submission, the matter is unlikely to be revisited for another 12–18 months. The consequence of the way the parties have chosen to conduct the proceedings means there is no expert evidence as to the risk of harm to the children by a reintroduction of time with their father only to have the possibility of that time then suspended by a final order (as the mother seeks) or incarceration as opposed to the possible risk of harm to them by a continuation of the existing regime of no time. The children have not seen their father for several months and on balance I am satisfied (in combination with the possibility of risk to the mothers parenting capacity) where there is no expert evidence, that there is a lesser risk to their welfare when continuing the status quo as opposed to resuming time only for them to face the possibility of it then stopping again. The father’s proposals for time are that it occur on a professionally supervised basis for approximately seven occasions before moving to supervision by his friend or a person agreed on in writing. I can only presume that the movement from professional supervision to that by a friend is dictated by cost, given his limited financial means. The proposal that the supervisor be one agreed upon is a meaningless order as it simply means that one party can unilaterally veto the other’s nomination. That realistically leaves Mr E as the supervisor. The father’s evidence is that he seeks to move out of Mr E’s home to an independent residence. His evidence does not indicate how supervision could be properly implemented either in his home or that of Mr E when time under his proposal proceeds to overnight weekend time. I am not satisfied that the supervisor proposed by the father ameliorates or mitigates, as counsel for the father submits, the possibility of a risk of harm to these young children. The supervisor’s affidavit does not reveal that he has any knowledge of the charges, or the broad sweep of allegations made by the mother. A mere statement in his affidavit that “I have been listed by choice as an acceptable person for bail in [Mr Hannigan’s] criminal proceedings” (affidavit of Mr E filed 18 November 2024, paragraph 2) is insufficient. There is no evidence that the proposed supervisor is aware of what it is he is to be watching out for or aware of when he is supervising. As the Full Court observed in B and B [1993] FamCA 143; (1993) FLC 92-357 at 79,781: 3. Who should supervise the access? Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists. (See, for example, Beverly James and Claudia Gibson, ``Supervising Visits between Parent and Child'', Family and Conciliation Courts Review, Volume 29 No. 1 January 1991, 73; William F Hodges, Interventions for Children of Divorce: Custody, Access and Psychotherapy (2nd ed) 1991; Wyatt and Powell, Lasting Effects of Child Sexual Abuse (1988); and Patton, Family Sexual Abuse: Front Line Research and Evaluation (1991).) Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children's behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period. For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring. I am not satisfied for the above reasons that supervision mitigates the unacceptable risk. I am satisfied for the above reasons that at present in the absence of expert evidence, the children’s best interests are met by a no time order. In those circumstances, I propose to make an order as sought by the mother. ... : Hannigan & Hannigan [2024] FedCFamC1F 806 [31]-[33], [35], [41]-[54].

• Standard of Proof:

>  "[34]  The burden of proof in civil proceedings such as these, is that found in s 140 of the Evidence Act 1995 (Cth); namely “the balance of probabilities”. That section provides: (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a)the nature of the cause of action or defence; and (b)the nature of the subject matter of the proceeding; and (c)the gravity of the matters alleged.": Galvin & Pacotto [2024] FedCFamC1F 582.

Examples

• Whether the father poses an unacceptable risk of future harm to the children by reason of his alleged history of family violence - Where the family violence perpetrated by the father is at the most serious end of the spectrum and the risk posed to the children and mother is potentially lethal – Where it is found that the father has strangled the mother and one of the children – Where the father poses an unacceptable risk of harm to the children that cannot be ameliorated by supervision nor therapy – Where the father has no insight into the damaging impact of his behaviour and has demonstrated himself to be controlling, overbearing, violent, and passively aggressive: Arap & Arap [2024] FedCFamC1F 601.

• Where the mother sends appalling communications to and posts about the father, his wife, the children’s school and church – Where the mother committed an act of physical violence against a child - Where the children’s exposure to the mother’s emotional dysregulation and lack of pro-social boundaries would cause trauma to the children: Erlbaum & Catley [2024] FedCFamC1F 635.

• Mum's constant state of anxiety itself is not a ground to infer unacceptable risk: "74. Ms Castano submits that she is at risk of being in an ongoing state of anxiety. She expressly disavows that risk as being relevant to the second primary consideration. I cannot infer merely from her concerns about X’s safety that there is an unacceptable risk of harm her parenting capacity will be adversely impacted.[33] I am required to consider whether that parenting capacity will be “discernibly impaired”.[34] 75. I accept Ms G’s opinion that Mr Castano’s late 2022 lapse and its concealment will keep Ms Castano in a state of concern and worry about how X will be parented by Mr Castano, and serves to confirm her fears in relation to his parenting and the risk he poses. Ms G is of the view that if orders are made as sought by Mr Castano and the Independent Children’s Lawyer, Ms Castano’s stress levels will be activated and increased with each changeover. She also opines that Ms Castano’s anxiety has been longstanding for her, and that Ms Castano operates in a climate of worry which reduces opportunity to promote resilience in X. The evidence does not, however, support a conclusion that Ms Castano’s parenting capacity will be discernibly impaired by X spending increasing time with his father.": Castano & Castano [2023] FedCFamC2F 1104.

• cf Castano & Castano: Where the father carried out a retributive attempted suicide at the mother’s place of work – Where the Court finds the father was the perpetrator of significant family violence throughout the relationship and post separation period - Where the court accepts that ongoing time spending between the father and the child will continue to be a PTSD trigger for the mother – Where the mother’s emotional and psychological functioning is significantly compromised –Where the mother’s functioning is impacted by the father having contact with the child – Where the mother’s functioning needs to be protected – Where the father has not taken any meaningful steps to address the significant risks that he presents – Where the father displayed an incapacity for reflection, insight and remorse – Where the risk of harm posed by the father is extreme – Where the protection of the child from harm centres around the mother’s security and safety – No time spending between the father and the child – Injunctions granted for the personal protection of the mother and the child: Batas & Gaire (No 2) [2024] FedCFamC1F 672.

• Particulars of the criminal charges of unlawful stalking, intimidation, harassment alone, father deported from Australia - supervised video call nor appropriate  - see discussion in Trott & Bligh (No 2) [2023] FedCFamC1F 223 at [139]–[140], [216], [231]-[234]: "[139] The ICL’s counsel submitted, on the particulars of the criminal charges alone, I would find the father an unacceptable risk to the child. I agree. Yet there are extra layers to the father’s conduct which, taken as a whole, support that finding. Thus, on the combination of the father’s criminal convictions and the particulars thereto, engaging surveillance on the child (and therefore the mother) (Exhibits 8 and 13), inspecting the child for bruises, and the father’s unbridled views about the mother, the balance squarely remains on protecting the child from harm. Those harms for the child are primarily emotional and psychological harms derived from a combination of: the father taking the child from child care contrary to orders, and therefore taking the child from the child’s residential parent; inspecting the child for bruises and being preoccupied with his lawyer when the child ought have been having beneficial time with the father; and, the relentless undermining of the child’s mother, which saw mother and child moving homes, and the child moving childcare facilities. All of those factors speak to the father’s lack of appropriate boundaries, inability to contain himself when pursuing a point, and his self‑defeating conduct. [140] The father’s dogged pursuit of the mother had no regard, or any real and considered regard to the impact that may have upon her and thus her parenting of the child. Whilst the mother may have done a sterling job in shielding the child from the impacts on her and her views of the father (as is the evidence of [Mr G]), what I say here is directed at the father and his conduct. His conduct cannot be excused by saying the child is doing all right. That speaks more to the mother’s capacities and strengths in the very difficult circumstances created by the father, than to exonerating or ignoring the father’s conduct because the child is seemingly unaffected. I accept that it is inappropriate to order reunification therapy at this point because no determination can be made that, notwithstanding the change of circumstances brought by [B’s] mother’s death, the establishment of a relationship between [B] and the applicant is in [B’s] best interests. The applicant argued that [B] was entitled to a relationship with him as one of his parents. I accept that submission as far as it goes, but as the reasons in support of the earlier orders makes clear, that entitlement is always subject to the necessity to protect a child from an unacceptable risk of harm. It was determined in April, 2023 that even supervised video contact between [B] and the applicant would expose [B] to an unacceptable risk of harm from the applicant. ... [216] Both the mother and ICL submitted that I would find: the father is an unacceptable risk of harm; I could not be satisfied that he could contain himself; and, if the father said something inappropriate on a supervised video call the “Jeannie would be out of the bottle”, to use a phrase said by the mother’s counsel in submissions. I agree. Supervision would be reactive; that is, for example, ending a call after the father said something inappropriate. ... [231] I now turn to whether supervision would mitigate the unacceptable risk posed by the father. As found, I have no confidence that the father would be able to restrain himself or regulate his behaviour if communicating with the child or abide by directions from a supervisor. I have formed that view due to his criminal convictions (and more so, the particulars that were made out on the criminal standard of proof) which reveal words and actions of an anti-social nature directed at the mother and those within her realm. He has also proven himself unable to abide by Family Court and Magistrates Court orders when he took the child from childcare in contravention of the Temporary Protection Order and orders of this court. He considered it appropriate to inspect the child for bruises when on supervision. He has engaged a Private Investigator in the past and could do so again if the child gave him some hint to his whereabouts. Such is his disregard for law and order that he was found guilty of attempting to pervert the course of justice. [232] I am also not prepared to place the child in the invidious position of hiding identifying factors from the father, if the father asked him but the mother or supervisor told him not to answer. [233] The father’s very poor views of the mother remain palpable - they dripped from his 71 pages of submissions and rung true and clear when he was speaking for himself after his second s 102NA lawyers withdrew. I am not satisfied the father would be able to contain himself from sharing his views about the mother with the child. [234] For all the reasons expressed, I am not satisfied that supervised calls will mitigate the unacceptable risk which the father poses to the child. For example, if the father has “wound himself up” (to quote him) and calls the mother a horrible name over the video, the child has heard it and the supervisor will be dealing with a “Jeannie out of the bottle” (to quote the mother’s counsel)."

• Where the child was likely exposed to the mother’s belief that she had been sexually abused - Where the mother’s allegations, beliefs or suspicions are entirely irrational and unreasonable and unlikely to have been genuine: Sander & Lynwood [2024] FedCFamC1F 126.

• Finding of unacceptable risk not made out where there is no positive  finding that the father did sexually abuse the child: Thatcher & Thatcher [2024] FedCFamC1F 324.

• Drug fuelled relationship (parents) - mothers' choice of violent partners - court makes distinction between "unacceptable risk" and "a level of risk" - Injuctions to render risk acceptable: "203. The orders proposed by the maternal grandparents themselves are very liberal and would leave the maternal grandparents with enormous discretion to place the child with the mother for lengthy periods of time. There is much force in the submission made by Mr Guyder that if the court considered that the form of orders proposed by the maternal grandparents was sufficiently protective, then maybe the court should not be considering moving the child out of the mother’s care in the first place. 204. After much consideration and agonising over the evidence before me, I have come to the view that, with appropriate restraints, appropriate safeguards, this child should remain living with the mother, and I intend to so order. With the restraints I propose to include in the orders, I do not consider that the child would be at unacceptable risk, but I make clear that these orders and these reasons will be provided to the Department of Communities and Justice, and that it will be necessary for the mother and for her parents to continue to exercise vigilance, because the greatest risk for the mother is of things ‘falling off the rails quickly’. I do not consider X to be at unacceptable risk, but there is a level of risk, and it is the injunctions I propose to make, and the conditions I propose to order, that render such a risk acceptable. I am not going to be moving this boy out of his mother’s care, at least not at this time.": Keneally & Neaves [2024] FedCFamC2F 438.

• Father has pleaded guilty to sexual offences against Mother when she was a minor - where Court finds Father has additionally subjected Mother to serious family violence - no insight: Samper & Harpe [2023] FedCFamC2F 1646.

• untreated mental health issues, history of illicit drug abuse, failure to comply with treatment: "65. It is the Mother’s evidence that she believes it is not in the best interests of X and Y to spend any time or communicate with the Father as he poses an unacceptable risk to them because of his untreated mental health issues, his history of illicit drug abuse, the question as to whether he is still using illicit substances because of his failure to take his prescribed mental health medication as directed by his treating practitioners and because he does not accept the seriousness of his issues and its impact on herself, X and Y. ... 238. It is the position of the Mother that the Father’s untreated serious mental health issues, his failure to acknowledge the seriousness of his illness and more importantly his failure to engage in the treatment recommended to help him address that illness coupled with serious concerns about his capacity to refrain from the use of illicit substances, mean he poses an unacceptable risk of harm to X and Y in the event that he were to spend time with them. 239. As has been well canvassed in this judgment, Dr Q has diagnosed the Father with mental health conditions. The Father has also been diagnosed with mental health conditions by his former treating psychiatrist Dr S and by the psychologist at J Hospital. When giving his vive voce evidence, Dr Q described the Father as having a serious psychiatric condition and at the highest a severe mental health condition with dishonesty. 240. The recommendation that the Father undertake DBT is long-standing. 241. The evidence before the Court makes it clear that the Father has struggled to accept his diagnosis of a mental health condition and has never accepted that he needs to undertake intensive treatment in order to assist him to better manage that condition. He believes the medication he takes to assist him with his depression and anxiety is sufficient to manage his mental health issues despite the very clear evidence this is not the case. ... 258. Orders will therefore be made that the Mother have sole parental responsibility for X and Y, that they live with her and that there be no time or communication between them and the Father. 259. In her closing on behalf of the Mother, the Mother’s Counsel indicated that the Mother would not oppose an order allowing the Father to send gifts to X and Y for their birthdays and Christmas. Therefore an order will be made permitting the Father to do this, such gifts to be sent to a post office box address established by the Mother for this purpose and on the basis that the Mother can screen any gifts and cards sent by the Father for their suitability before passing them on to X and Y. 260. I am in no doubt that the Father will be very distressed by this decision. I note with some concern the evidence of Dr Q that the Father will need to be closely monitored as he comes to terms with this decision and I trust his family will do so. 261. I would however note that the door is not permanently shut for the Father to have a relationship with his children. If he is able to show that he has accepted the diagnosis of his mental health condition, has fully engaged with the recommended DBT and has evidence from his treater of real change as a result of that engagement, that he is drug free and has been for a very long period of time and that he has developed insight into the impact of his behaviours on himself and others, then there is the possibility he could have a relationship with X and Y.": Watton & Watton [2022] FedCFamC2F 1095.

• Where findings are made that the father’s mental health presents an unacceptable risk of harm to the child’s safety – Where the Court cannot be satisfied that the father is drug-free: Butler & Wanzel [2024] FedCFamC2F 1207.

• Stimulant use disorder in sustained remission - circumstance dependent: "Ms Castano effectively submits that X’s risk of exposure to abuse or neglect derives from Mr Castano being drug affected at or around the time X is in his care. She submits that if Mr Castano is “drug affected, there is a clear risk to [X] in terms of being in his father’s care, particularly unsupervised”. I accept that were Mr Castano to be drug affected whilst caring for X, he would expose him to a risk, at least of neglect. I am accordingly called to evaluate the risk of Mr Castano being drug affected when caring for X. There is no evidence of Mr Castano having been drug affected at any time the children have been in his care since 2019. No such suggestion was made to Mr Castano. As Ms Castano concedes, I cannot be satisfied that Mr Castano has been drug affected whilst caring for the children since that time. I also do not have any enduring suspicion that Mr Castano has been drug affected while the children have been in his care, which could be taken into account as part of the matrix of evidence on which a finding of unacceptable risk can be premised.[22] Ms Castano submits that I cannot know when Mr Castano has been drug affected over the past three to four years. However, as I have observed, risks of harm are postulated from known, rather than unknown facts. Ms Castano also submits that “it’s going to be a real stretch on the evidence (...) to suggest that because there is no evidence he has been drug affected around the children, that therefore there is no risk in terms of his drug taking behaviour”. With respect, that submission misstates the relevant legal enquiry. There is a difference between the risk of some occurrence and an unacceptably high risk of the same occurrence, with the former being tolerable whilst the latter is not.[23] Ms Castano concedes that there is no evidence capable of linking a time when Mr Castano has been drug affected with a particular incident of risk in the relevant sense. As Ms G opines, there is an absence of evidence of direct risk. Ms Castano nevertheless submits that the risk to X is that, “this is a man who cannot control his drug taking behaviour”. I reject the submission. Ms O’s unchallenged opinion in relation to Mr Castano’s late 2022 lapse, is that Mr Castano, “demonstrated that he had applied some element of satisfactory reasoning to his decision to use [illicit drugs] on this date, in that [X] was overseas and consequently safe from the potential outcomes of his [illicit drugs] use in that moment and the near future”.[24] I accept that Mr Castano, even during his lapse, was able to ensure that X was kept safe. What is significant, is the absence of any identified harm in the relevant sense from Mr Castano’s singular lapse of illicit drugs use in late 2022, or occasional other ingestion of cannabis in 2019, 2020 and 2021. I accept Ms G’s opinion that there is no suggestion of any such direct harm. I am not satisfied that the known facts and present circumstances support a conclusion that there is an unacceptable risk of Mr Castano being drug affected whilst caring for X. Ameliorating Factors Even had I found there to have been an unacceptable risk of Mr Castano’s drug use exposing X to harm in the relevant sense, a question would then arise as to whether any preconditions could sufficiently ameliorate that risk.[25] Mr Castano’s uses of illicit substances were in breach of final consent Orders made 16 December 2019. He also breached those Orders by failing to advise Ms Castano of those uses. As the Independent Children’s Lawyer urges, I condemn his lack of disclosure. Decisions have been made both by Ms Castano and the Court on the basis of false representations made by Mr Castano about his illicit drug use, the central issue in these proceedings. I accept Ms Castano’s submission that there is a high likelihood that Mr Castano will conceal future lapses. It is common ground that Mr Castano will undertake quarterly hair follicle tests for the next four years. Ms Castano proposes that he continue to do so until X is 18 years old. In circumstances where Mr Castano lapsed into illicit drugs use after four years of abstinence, and thereafter concealed his use for several months, I am satisfied that it is in X’s best interests for such testing to be undertaken until he is an adult. However, I prefer the form of order proposed by the Independent Children’s Lawyer and Mr Castano in the absence of any evidence or submission supporting the additional conditions sought by Ms Castano. Ms Castano proposes that Mr Castano also be required to undertake a urine drug screen within 24 hours of receiving a request from her on no more than one occasion every two months. I also consider that proposal to be in X’s best interests given Mr Castano’s concealment of his drug use contrary to Court Orders. It will mean that Ms Castano can immediately cause to have investigated any concerns she has that Mr Castano has relapsed and suspend X’s time with him if necessary. Whilst there is certainly some risk Mr Castano will again seek to disguise any urine screens, his previous attempts were ultimately detected, reducing the likelihood that any future anomalies will remain undetected. What would certainly result in an unacceptable risk of relevant harm to X, is a relapse by Mr Castano into regular drug abuse. However, such a relapse would be relatively immediately detected by either a positive urine screen, or a failure to undertake such a screen. In the more medium term, it would be detected by the hair follicle test. The consequence of any of those outcomes would be an immediate suspension of time on all parties’ proposals. Importantly, they do not rely on Mr Castano disclosing any relapse. I am satisfied that the drug testing and treatment regime proposed will sufficiently ameliorate any unacceptable risk of X being exposed, or subjected to, abuse, neglect or family violence. In late 2022, Ms G opined that the presence of X’s older siblings at Mr Castano’s home provided a significant degree of oversight. Ms Castano submits that such oversight is now unavailable. Certainly the older children are spending less time with Mr Castano than previously, however, they are still seeing him regularly. They are aware of his illicit drugs lapse in late 2022. Were Mr Castano to relapse into regular drug abuse, it is most unlikely he would be able to successfully conceal it from them. I am not satisfied that the reduction in the older children’s time with their father substantially increases the risk of Mr Castano being drug affected around X undetected. Mr Castano’s illicit substance consumption has occurred despite his significant drug and alcohol rehabilitation. The evidence suggests he will remain at risk of relapse. He has extensively engaged with professional supports in relation to his drug abuse. Whilst he has not always been candid with those supports in relation to his usage, he has demonstrated a commitment to his attendances upon them and has been strongly compliant with his treatment and management plan. He proposes to be bound by Orders that he continue to do so, affording him further supports to reduce the risk of relapse.": Castano & Castano [2023] FedCFamC2F 1104, [39]-[54]. 

• Child of extramarital affair - where biological father wishes to inform child of parentage - father found to have engaged in family violence against mother - risk: Malek & Kambar [2024] FedCFamC2F 1519.

• Coercive and controlling family violence, see: Waugh & Rozon (No 2) [2024] FedCFamC1F 518.

• Allegations of emotional manipulation of children and ‘pathogenic parenting’ by Mother – where Mother found not to pose an unacceptable risk to children: Nalder & Cato & Nalder [2024] FedCFamC2F 721

• Unacceptable risk – where the Father conducted himself throughout the proceedings in a manner which was abusive, threatening and intimidating towards the Mother, the Mother’s legal representatives, the Independent Children’s Lawyer and the Court – where the Father subjected the Mother to coercive and controlling violence – where the Father refused to comply with an order for a psychiatric assessment – where the Father poses an unacceptable risk to the children – no time or communication ordered between Father and children: Nalder & Cato & Nalder [2024] FedCFamC2F 721.

• Sexual offences against children (not against offenders own children) - no insight or mea culpa - consent order refused: Staker & Temay [2013] FMCAFam 190. 

• Allegations of family violence proven on the balance of probabilities - Magistrate refused to make the consent orders sought: Gorman & Huffman [2016] FamCAFC 174, [62]. 

• How dealt with in submissions, evidence: "107. It must be noted that there is no allegation at all that the father has ever sexually assaulted or interfered with [X] or [Y].  I observed the father over many days in court, including two lengthy periods of examination-in-chief and cross-examination in the witness box.  He ultimately presented to me as a man in transition.  He has not fully confronted his outrageous past behaviour.  It is my opinion that he must undertake and complete, in a thorough, full and detailed way a process of education, information and remedial courses and treatment to ensure that he is absolutely not a risk in any circumstance to any children.  There was no utterance of mea culpa that in my view is so important in this type of case.  Where the offender has a history of sexual abuse against a child or children there must be an ownership and acknowledgement of fault and responsibility for his grave and anti-social behaviour.  This was missing.": Staker & Temay [2013] FMCAFam 190. 

• Do courses ameliorate risks or improve parenting?: Depends on circumstances: "This ground alleges the primary judge “erred in law” by failing to give “proper consideration” to the mother’s completion of two parenting programs in December 2023 and March 2024. In support of the complaint, the mother submitted this: 28. The primary judge has completely overlooked [the mother’s] completion of the Caregivers Program [(December 2023)] and the Tuning into Kids Program (March 2024), both of which were completed prior to final orders being made in favour of the [father]. These programs are directly relevant to the [mother’s] parenting capacity, insight, and commitment to the child’s wellbeing, core considerations under section 60CC(3)(c) of [the Act], which requires the court to assess each parent’s ability to provide for the child’s emotional and developmental needs. By overlooking this updated and favourable evidence, the court failed to properly evaluate the [mother’s] present parenting fitness and her proactive efforts to strengthen the parent-child relationship. (As per the original) It is true the mother’s completion of those courses is not mentioned in the reasons for judgment, but it is a mistake to then assume the evidence was overlooked or minimised, as the reasons for judgment cannot possibly mention every piece of evidence (DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 at [33] and [131]; Fox v Percy (2003) 214 CLR 118 at 132; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at 463-464). Judges can rightfully expect parties to emphasise the evidence upon which they materially rely in final submissions, unless it would be so obvious that such express emphasis is unnecessary (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 at [120]–[121]). The mother’s completion of those courses was not so obviously an important consideration that it could escape express emphasis, but it was not mentioned by the mother’s counsel in final submissions. The mother’s submissions impermissibly assume her completion of the two parenting courses would have necessarily impelled a finding that her parenting capacity was consequently satisfactory, but that assumption cannot be made. Despite having completed those courses before the trial commenced, the primary judge found the child was still “parentified” and was still subject to undue influence by the mother against the father (at [273] and [312]), so the courses had not helped the mother correct that flaw in her parenting capacity. Other factors were overwhelming. Her parenting capacity was impaired (at [140]–[229] and [226]–[229] and [268]–[288]) and, comparatively, the father’s parenting capacity was superior (at [297]). This ground fails.": Boerio & Nelson [2025] FedCFamC1A 99, [30]-[35]. 
  
  

Jing Zhi Wong

[E-G] s 60CC Considerations - Child's Best Interests

Appeal

• Failure to consider s 60CC is an error of law: "It is not the task of this court to ignore error simply because it is not entreated by the appellant in a Notice of Appeal or Summary of Argument (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531). Items 12 and 25(1) of Schedule 1 of the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”) commenced on 6 May 2024. By Item 25(2), s 61CA of the Act as inserted commenced on 6 May 2024. Item 12 of the Amendment Act states in relation to s 60CC of the Act as follows: 12 Application provision The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings: (a) proceedings instituted on or after the day this item commences; (b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences. Given the hearing first commenced on 11 September 2023 and had not concluded by 6 May 2024, the hearing was to be decided by application of the law as it existed before 6 May 2024. Unfortunately, the primary judge did not determine the matter according to law. The parties are agreed that the primary judge determined the matter by applying the Act as amended by the Amendment Act which changed in a significant and substantial way the provisions of s 60CC of the Act. In that respect, the primary judge recorded in her reasons for judgment as follows: In determining the parenting issues, I have in accordance with Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637, considered all the relevant sections of Part VII Family Law Act 1975, including the considerations in section 60CC, although within these reasons each section or subsection may not have been specifically addressed or discussed or identified. Thereafter commencing at [355], the primary judge addressed various considerations encapsulated by s 60CC of the Act as they now exist as amended by the Amendment Act. It is conceded by all parties that no aspect of her Honour’s determination addressed the primary and secondary considerations in s 60CC of the Act as they previously existed. It is conceded by all parties that they addressed the primary judge on the law as applicable. A failure to consider the applicable statutory considerations is an error of law. As their Honours observed in Lane & Nichols [2016] FamCAFC 234; (2016) FLC 93-750: Whilst it must be acknowledged that it will be a rare or exceptional case where an error of law established on appeal, comprising misapprehension of evidence on the part of a judge at first instance, does not lead axiomatically to an appeal from the decision being allowed there are, albeit limited, exceptions. No such exception arises in the context where the court below proceeds upon an incorrect principle of law. Where such error is established then the appeal must be allowed. Where the appeal must be allowed it is unnecessary to address the other grounds (Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593) and even less desirable to do so where if remitted another judge will need to determine the disputed factual contentions. In her amended Notice of Appeal, the appellant seeks a remitter and for the orders to be set aside. Each of the respondent and the ICL submitted that the Court could and should re-exercise discretion. The appellant’s counsel in support of remitter submitted that the appellant wished to adduce further evidence as to the current arrangements for the children, how time had proceeded, the father’s compliance with orders and the impact on the children of the current arrangements. In Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 the High Court observed as follows: If on an appeal by way of rehearing from a discretionary judgment an appellate court is minded to exercise the discretion in question by reference to circumstances as they exist at the time of the appeal, it is necessary that the parties be given an opportunity to adduce evidence as to those circumstances...": Navickas & Fried (No 2) [2025] FedCFamC1A 80, [17]-[26]. 

• Failure to give reasons: "[39] In the present case, the failure of the primary judge to give any reasons renders it impossible to ascertain the reasoning upon which his Honour’s decision was based and, accordingly, this Court, on appeal therefrom, is denied the opportunity to detect error and, further, the appellant is denied the knowledge of why his case was rejected. ... [41] However, contrary to the authorities cited in that paragraph, the primary judge failed to mention any fact or argument relied upon by the appellant, nor did his Honour detail any factors found to be relevant or irrelevant or make any explicit findings on any disputed pieces of evidence. [42] Further, insofar as it is submitted, on behalf of the respondent, at paragraph 44 of her Summary of Argument, that “[r]egrettably His Honour did not provide fulsome ex tempore reasons for Judgement”, that is an understatement in extremis; effectively, his Honour did not provide any reasons for judgment. [43] Similarly, the Independent Children’s Lawyer’s Summary of Argument is alive to the primary judge’s failure to give reasons (see paragraphs 14, 28–35). Insofar as it is submitted at paragraph 28 that “[i]t may appear the Judge conducted a trial ‘on the papers’”, that is not to the point. Even in the case of the determination of a dispute “on the papers”, a judge is not relieved of the obligation to provide reasons for his or her decision. ... [45] Given the primary judge’s manifest failure to give reasons, albeit not a ground of appeal, one is left to wonder why the respondent and the Independent Children’s Lawyer, being legally represented and alive thereto, did not file Submitting Notices, the appeal being irresistible, irrespective of the pleaded grounds of appeal or the proposed amended grounds of appeal which, in relation to apprehended bias and denial of procedural fairness, are not without considerable merit. Although the primary judge’s failure to give reasons was addressed only parenthetically in their summaries of argument, it not being a ground, or proposed ground, of appeal, it was only when this issue was squarely put to counsel, at the hearing of the appeal, that they conceded that the appeal must be allowed. [46] His Honour’s failure to give any, let alone any adequate, reasons is an appellable error of law which, of itself, is sufficient to require the Orders to be set aside. See Bennett and Bennett at 78,266, citing Palmer v Clarke (1989) 19 NSWLR 158. [47] Accordingly, it is unnecessary and, indeed, nigh impossible in the absence of any reasons of the primary judge, to consider some of the appellant’s other grounds of appeal, or his Application in an Appeal for leave to file an amended Notice of Appeal. Indeed, the primary judge’s fundamental failure to give reasons is so manifestly, and necessarily, dispositive of the appeal, that regard to the desirability of judicial economy renders it unnecessary to consider those other grounds of appeal. See Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [7]–[8]. That is so, even though the appellant’s grounds (or proposed amended grounds) of appeal asserting a denial of procedural fairness and apprehended bias would ordinarily be dealt with first. [48] The appeal will be allowed and the matter remitted to a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge. Given the absence of any reasons whatsoever, I consider it to be unsafe to permit any of the Orders to stand, notwithstanding that the appellant, who is self-represented, only appeals against several thereof. If there are matters that can be agreed between the parties hereafter, orders can be made in that court. However, after discussions with counsel, I will order that the Orders only be set aside on and as from the date upon which any further parenting orders, including on an interim basis, are made by the Federal Circuit and Family Court of Australia (Division 2).": Rashid & Olaran [2025] FedCFamC1A 119.

Framework

• "[34]  Part VII of the Act deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in making a parenting order. Section 60CC(2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in a child’s best interest. It is not an exhaustive list.1 [35]  In considering what orders would promote the safety of the child, the authorities of M v M (1988) 166 CLR 69; [1988] HCA 68 and Isles & Nelissen (2022) FLC 94-042 are relevant to any assessment of risk to the child. In a matter where there are allegations of risk such as in this instance, the analysis requires consideration of past conduct to assess whether there is a risk to the child, and the magnitude of that risk. The assessment of risk is an “evidence-based conclusion” (Isles & Nelissen (2022) FLC 94-042 at [85]). The court must then consider whether that risk is capable of being mitigated by imposing restraints or conditions. [36]  I will have regard to relevant matters set out under s 60CC of the Act as they arise in these reasons. [37]  The parties are in dispute about decision-making authority for the children. In determining whether to make an order under s 61D(3) of the Act, the court must consider the best interests of the children and apply the matters set out in s 60CC. That issue will be dealt with in these reasons.": Ubina & Szwed [2025] FedCFamC1F 195. 

> Issues: "[38]  The issues in this matter are: (a)Did the father sexually abuse his niece in 1999/2000? (b)Is there a risk to X being exposed to sexual abuse or inappropriate sexual conduct by the father? (c)If the answer to (b) is yes, what orders may ameliorate the risk for X? (d)Was there family violence in the parties’ relationship? (e)If the answer to (d) is yes, what orders may ameliorate the risk for X? (f)Should the parents jointly hold parental responsibility and decision-making authority, or should the mother hold it solely?"

• "[68]  Part VII of the Act deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in making a parenting order. Section 60CC(2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in a child’s best interest. It is not an exhaustive list.1 [69]  In considering what orders would promote the safety of the children, the authorities of M v M (1988) 166 CLR 69; [1988] HCA 68 and Isles & Nelissen (2022) FLC 94-042 are relevant to the assessment of risk to children. The analysis requires consideration of past conduct of the parties to assess whether there is a risk to the children in the care of either of their parents, and the magnitude of that risk. The assessment of risk is an “evidence-based conclusion”: Isles & Nelissen (2022) FLC 94-042 at [85]. The court must then consider whether that risk is capable of being mitigated by imposing restraints or conditions. [70]  I will have regard to relevant matters set out under s 60CC of the Act as they arise in these reasons.": McKowan & McKowan [2025] FedCFamC1F 105. 

• 60CC(2)(a) is to be of most prominence in legal reasoning in s 60CC considerations: "[98]  As recently identified by the Full Court in Fiedler & Vitale [2025] FedCFamC1A 7: 54.… whilst we agree with the submission that no one consideration prescribed by s 60CC(2) is determinative of a child’s best interests, it is difficult to fathom a circumstance in which s 60CC(2)(a) would not be given prominence in the line of reasoning, if the Court was of the view that a child was not safe and/or where the child was at risk of some form of harm...": Vaughan & Vaughan (No 2) [2025] FedCFamC1F 129.

• "[107]  The first enquiry was whether there was objectively an unacceptable risk of harm to the children, and if there was, for the Court to take steps proportionate to the degree of risk (Bielen & Kozma (2022) FLC 94-123 at [51] citing Helbig & Rowe [2016] FamCAFC 117 and A v A (1998) FLC 92-800). The consideration of s 60CC(2) factors is undertaken through this prism.": Steen & Crespo [2025] FedCFamC1A 90.

• "[44]  It is a significant matter for any judge to make an order that a child spend no time with their parents and the Court will only do so in exceptional circumstances.": Dalton & Nikolaou [2025] FedCFamC1F 151. 

• "[12]  Having identified the competing proposals, the real issue is a tension between the two primary considerations, namely, section 60CC(2)(a), which requires the Court to consider the benefits of the child of having a meaningful relationship with each of the parents, and section 60CC(2)(b), which, as a result of section 60CC(2)(c), must be given greater weight, namely to protect the child from harm and exposure to harm. It is not currently in dispute that Z will continue to live with the mother.": Dains & Dains [2020] FamCA 851.

• "Justice" is not the main consideration: " [331] ... 40. The father appears to fail to understand Full Court authority at several points. The mother has not run a case on justice; she has run a case on the best interests of the children placing particular emphasis on the risk of abuse and exposure to family violence posed by the father and taking into account s 60CC(2A), which is notably unaddressed by the father. Whilst the father appears to try to obscure the plain risk he poses under oblique phrases such as ‘some of his conduct may have been questionable’, the evidence paints a far darker and more disturbing picture of the children’s reality posed by the father’s behaviour. The refusal of the father’s submissions to engage plainly with the evidence, particularly the expert’s evidence, points towards the father’s blinkered failure to properly take responsibility for his actions and accept appropriate feedback and criticism.": Farrington & Belkis (No 3) [2024] FedCFamC2F 660. 

• Child focussed jurisprudence: 

> "[69]  By virtue of subsections 60CC(2)(b), (c), (e) and (f) of the Act, the Court must have regard to: (a)The views expressed by the child; (b)The developmental, psychological, emotional and cultural needs of the child; (c)The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and (d)Anything else that is relevant to the particular circumstance of the child.   The weight to be given to any views expressed by a child is as the Court considers appropriate in the circumstances. As held in R v R (2000): There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so.": Liepina & Arterberry [2024] FedCFamC2F 1397. 

> pre-2024 jurisprudence: "[253]  Each child’s best interests are to be determined by reference to s 60CC of the Act. Section 60CC(2) provides that the primary considerations are “(a) the benefit to the child of having a meaningful relationship with each parent; and “(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.” Greater weight is to be given to child protection.": Mitchell & Boyle (No 2) [2022] FedCFamC1F 798. 

• Crystal ball: "[168] ...  It may be that sometime in the future the parenting arrangements may have to change. This is not necessarily surprising in any case when children are subject to court orders from a very young age. I consider that the court in this matter does not have such a crystal ball to make orders for a child who is not yet four years of age to endure for a further 14 years. What the court can do is look at the prevailing circumstances and evidence at the time and, in accordance with the legal principles and authorities, exercise its discretion as best it can to make orders in X’s best interests. As observed by the Full Court in Grella & Jamieson [2017] FamCAFC 21 at [18]: A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.": Gulcan & Petroni [2024] FedCFamC2F 1314.

• "[16]  I turn to the s 60CC factors, acknowledging the objects of Part VII of the Act; s 60B of the Act. [17]  One of the factors is arrangements promoting the children’s safety; s 60CC(2)(a) and another is whether both Ms Arlaud and Mr Yaaxa are able to provide for the needs of these children; s 60CC(2)(c) and (d). Importantly, one of those needs will be grief counselling for the children when their mother passes.": Arlaud & Arlaud [2025] FedCFamC1F 207. 

• RELATIONSHIP BETWEEN FACTORS - s 60CC(2)(a), (2)(d), (2(e); s 60CC(2)(b) and (2)(c): 

> "[22]  As described in the Explanatory Memorandum,2 the various considerations are designed to be non-hierarchical, non-exhaustive, able to allow different weight to be applied as appropriate to the individual child and, whilst guiding a court, permit flexible adaptation to each child’s specific circumstances. [23]  By their nature the considerations overlap and are entwined with each other. For example, issues of safety referred to at s 60CC(2)(a) can impact upon the capacity of a parent to provide for a child’s psychological needs (s 60CC(2)(d)), and in turn impact upon the benefits of having a relationship with that parent (s 60CC(2)(e)). Similarly, the views expressed by a child at s 60CC(2)(b) can be indicative of the emotional needs of the child (s 60CC(2)(c)). [24]  The considerations may point in different directions. It is the synthesis of all of the applicable considerations that will determine the outcome.": Kranz & Padmini [2025] FedCFamC1F 45. 

> Approach of the ICL: "[21]  As described in the Explanatory Memorandum, 2 the various considerations are designed to be non-hierarchical, non-exhaustive, able to allow different weight to be applied as appropriate to the individual child, and whilst guiding a court, permit flexible adaptation to each child’s specific circumstances. [22]  By their nature they overlap and are entwined with each other.[23]  For example, issues of safety referred to at s 60CC(2)(a) can impact upon the capacity of a parent to provide for a child’s psychological needs (s 60CC(2)(d)), and in turn impact upon the benefits of having a relationship with that parent (s 60CC(2)(e)). Similarly, the views expressed by a child at s 60CC(2)(b) can be indicative of the emotional needs of the child (s 60CC(2)(c). [24]  The considerations may point in different directions. It is the synthesis of all of the applicable considerations that will determine the outcome. [25]  In this case, following the parties and ICL forming a joint position that the children should live primarily with the father, much of the case was focussed upon the first consideration at s 60CC(2)(a), relating to the children’s safety in the care of the mother, and then its interplay with the benefits of relationship (s 60CC(2)(e)) with the mother. This also drew into consideration s 60CC(2)(b) and (c) as they relate to the needs of each of the children and the capacity of the parents to meet them.": Oyama & Oyama [2024] FedCFamC1F 738. 

• In interim parenting matters - untested evidence: "[8]  The considerations in s 60CC(2) and (2A) of the Act are to be applied to the untested evidence relied upon by the parties to determine what orders should be made that promote safety and welfare of the children. Allegations of family violence, abuse or neglect including historical ones are relevant to what orders should be made.3 [9]  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.4 [10]  Ultimately, whether the restraint order sought by the father ought to be made depends on whether it is in the best interests of the children and promotes their safety and welfare pending final hearing.": Barry & Letton [2025] FedCFamC2F 222.

Post 6 May 2024 Jurisprudence - Part VII FLA - Judge Taglieri

• "[20] As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth). I have had regard to the amended provisions that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive considerations in ss 60B, 60CA, 60CC and the discretionary evaluation of the same. I am not bound to follow the statutory construct of equal shared parental responsibility that existed previously, and family violence remains an important consideration in the evaluation of what parenting orders should be made in a child’s best interests.[10] [10] Sections 60B and 60CG of the Act.": Wayfield & Gadsby [2024] FedCFamC2F 725. 

• Father's dysregulated, aggressive behaviours: "[58] As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth). [59] I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[53]  Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[54] [53] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2. [54] Sections 60B and 60CG of the Act. [60] Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remains important because of the need to make parenting orders that promote the safety and welfare of children.[55] [55] Section 60CC(2)(a). [61] I consider that the assessment of risk of harm to a child remains informed by the principles established MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97. .... [66] It is clear that the father does not appreciate the nature and extent of risk of alcohol abuse and until he does so, the children will remain exposed to risk of neglect and aggressive or dysregulated behaviour associated with alcohol abuse. ... [69] Before the father can spend unsupervised time with the children for lengthy periods, he needs to demonstrate that he has: (a)          Developed improved insight into the harmful effects of family violence; (b)          Been fully psychiatrically assessed to determine if there is a mental health disorder (whether alcohol abuse or some other disorder, symptoms or traits) that require treatment to mitigate potential harm to the children; and (c)          Engaged in alcohol misuse education and further reduced his alcohol use. ...": Coulson & Wayfield [2024] FedCFamC2F 979.

• "[16] As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth). [17] I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child's best interests according to the non-exhaustive considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[5]  Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[6] [5] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2. [6] Sections 60B and 60CG of the Act. [18] Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remains important because of the need to make parenting orders that promote the safety and welfare of children.[7] [7] Section 60CC(2)(a) of the Act. [19] I consider that the assessment of risk of harm to a child remains informed by the principles established in MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97. ...": Garven & McFarlane [2024] FedCFamC2F 1008. 

• "[16] In addressing the issues outlined above and determining what parenting orders are in the best interests of the children, the principles of law are well established.  As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Act. [17] I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive, non-hierarchical considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[8]  Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[9] [8] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2; and Aldridge & Keaton (2009) 235 FLR 450. [9] Sections 60B and 60CG of the Act. [18] Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remain important because of the need to make parenting orders that promote the safety and welfare of children.[10] [10] Section 60CC(2)(a). [19] I consider that the assessment of risk of harm to a child remains informed by the principles established in MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97. ... [35] Frankly, the parties engaged in one upmanship, were childish, and lacked insight. ... [45]At the eleventh hour, there appears to be evidence of improvement in the co-parenting dynamic. Based on agreements reached about the father’s time at Christmas 2024 and the improved communication between the parties evidenced in the AppClose messaging.[22] I find that there has been some improvement in the parents’ ability to cooperate and agree, but I wonder if this recent improvement arose because of the pending resumption of the final hearing. [22] Exhibit ICL 9. ... [47] The mother believed erroneously that the relationship was not relevant to the parenting proceedings, which shows ignorance of factors relevant to determining the child’s parenting arrangements. Alternatively, she deliberately sought to conceal the seriousness of the relationship because she thought it would be adverse to her case. Either way, it demonstrates an extreme example of the mother continuing to exclude the father from information relevant to the child’s welfare and relevant to what the Court is to decide. ...": Ward & Downs [2025] FedCFamC2F 154.   

> See also, in the same decision: Father's anxiety and depressive conditions (no finding on FV), equal parenting time ordered, progression to equal time: "[69] A progression of the child’s time with the father to equal time within the next couple of years will most likely be of benefit. This will enable him to better experience the mutual strength of his relationship with both parties and allow exposure to different experiences and opportunities which each parent is likely to offer, including enjoying relationships with extended family. It will promote, a well-rounded upbringing, enabling him to develop his independence and flourish in the future, consistent with the tenor of the CCE’s opinion. [70] There is no material risk of harm posed to the child due to mental health concerns, warranting slower increase in the child’s time with the father.  I am satisfied that when the child is in the care of the father and his partner, he will likely be protected from the father’s anxiety or depressive symptoms should they manifest. In any event, the Court will make a protective order for the father to engage in psychological treatment which will likely mitigate possible harm. [71] Finally, there is no evidence that the child has experienced any harm due to the father being “sad”, which was the highest point of the mother’s case. It is also important in my view that children gain age-appropriate awareness of depressive and anxiety symptoms and can recognise those and empathise. [72] I consider that the father’s proposal to defer consolidation of the child’s time with him to a single block until 2032, fails to recognise the benefit of minimising opportunity for conflict by way of fewer changeovers. [73] The mother’s proposal to fix the child’s time with the father to a maximum of five nights, in my view, is not child-focussed or supported by any factors relating to risk of harm to the child. Instead, I consider the mother is motivated to remain the primary carer because of her own insecurities or because of her historical role as primary carer.[29] ...".

• "[21] In addressing the issues outlined above and determining what parenting orders are in the best interests of the children, the principles of law are well established.  As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth). [22] I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive, non-hierarchical considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[7]  Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[8] [7] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2; and Aldridge & Keaton (2009) 235 FLR 450. [8] Sections 60B and 60CG of the Act. [23] Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remains important because of the need to make parenting orders that promote the safety and welfare of children.[9] [9] Section 60CC(2)(a). [24] I consider that the assessment of risk of harm to a child remains informed by the principles established MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97. ...": Friseal & Friseal [2025] FedCFamC2F 75.

• Garrido & Garrido [2024] FedCFamC2F 634 -- consent orders statutory framework.

Evidence-based, prospective assessment of unacceptable risk - Isles & Nelissen

• "[63] Consequently, the consideration of an unacceptable risk is an evidence-based one but, at the same time, a prospective one.  This is not a two–step or default approach but one requiring separate and independent consideration.  As the Full Court in Napier v Hepburn[6] at [84] observed: ...  [64]The consideration of risk is an evidence-based predictive and prospective exercise within the wider issue of the child's best interests and a consideration of what might mitigate the risk and often asking the question 'what turns an unacceptable risk into an acceptable risk? ... [65] The evidentiary fact-finding exercise is conducted to the standard of on the balance of probabilities pursuant to s 140 of the Evidence Act whereas the predictive consideration of unacceptable risk, not being limited to findings of past fact, looks more to “possibilities” There are some divergent superior court viewpoints notably by their Honours in Fitzwater & Fitzwater[8] and conveniently discussed by McEvoy J in Keane & Keane:[9] ... [66] I respectfully agree with the comments and analysis of both McEvoy J and Austin J as to the distinctions in the intellectual processes where the consideration of “unacceptable risk” is more nuanced than a straight forward finding of fact, being a past event, on the balance of probabilities where to give some empirical context, one can envisage a circumstance where there is a finding of past fact of sexual abuse but (almost perversely) there being no unacceptable risk into the future. ...": Isles & Nelissen [2021] FedCFamC1F 295.

• "[83] Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse. [84] In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material. [85] The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one. [86] We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent. ...": Isles & Nelissen [2022] FedCFamC1A 97.

• Query, whether advocacy has to place evaluative emphasis (evaluative judgment) on the parties’ evidence and be couched in terms of all relevant considerations in sections 60B, 60CA and 60CC, and case law on the discretionary evaluation of those considerations, to the desirability of orders sought. -- evaluative judgment cf discretionary evaluation.

• Predictive and prospective: "Isles and Nelissen [2022] FedCFamC1A 97   Standard of proof for unacceptable risk of harm — child alleged sexual abuse by father — father charged but later withdrawn due to lack of specific evidence — primary judge found that he could not make a finding that father sexually assaulted child, but held an unacceptable risk exists which could only be mitigated through supervised time (Isles and Nelissen [2021] FedCFamC1F 295) — test for making findings of sexual abuse distinguished from findings of unacceptable risk of harm — standard of proof as to whether abuse has occurred in the past is determined on the balance of probabilities — s 140 Evidence Act 1995 (Cth) — an unacceptable risk of harm does not require civil standard of proof on the balance of probabilities — unacceptable risk of harm requires a predictive or prospective exercise not limited to findings of past fact, but also possibilities — M v M FC 88/063 (1988) 166 CLR 69 followed — three relevant factors to consider when assessing unacceptable risk of harm: whether there are facts that indicate risk, either present or future; magnitude of risk; and tools or circumstances that can adequately mitigate that risk — appeal dismissed.": 'Important cases — Unacceptable risk' in Children's Court of NSW Resource Handbook (Jud Comm NSW, Webpage) <https://www.judcom.nsw.gov.au/publications/benchbks/children/cpm_important_cases_unacceptable_risk.html>. 

• See also, 

> Craig Nicol and Keleigh Robinson, 'Children – assessment of unacceptable risk…' (Proctor, 2 September 2022) <https://www.qlsproctor.com.au/2022/09/children-assessment-of-unacceptable-risk/>. 

> "Isles is a stroll through the history of unacceptable risk cases in our Court. If you ever have an unacceptable risk case, this is the place you need to start. It is almost a one stop shop for preparing and running unacceptable risk cases. It traverses and summarises the case law throughout the history of the court and it makes it very clear what is the “right way” and the “wrong way” to deal with an unacceptable risk case and how the court should approach it. ...": Sarah Louis Damon and Eliza G Tiernan, 'Risky Business: Isles & Nelissen – parenting cases involving allegations of unacceptable risk' (Vic Bar, 24 March 2024) <https://www.vicbar.com.au/Web/Web/Contents/Associations/Family/Digest/Risky-Business-Isles-Nelissen-parenting-cases-involving-allegations-of-unacceptable-risk.aspx>, archived at <https://archive.is/NuXR7>. 

> Pearce Decle, 'Unacceptable risk cases and the intersection of family and criminal law' (Paper, 2 August 2023) <https://www.legalaid.nsw.gov.au/content/dam/legalaidnsw/documents/pdf/for-lawyers/resources-and-tools/criminal-law/criminal-law-conference-papers/2023/unacceptable-risk-cases-and-the-intersection-of-family-law-and-criminal-law.pdf>, archived at <https://web.archive.org/web/20250415041323/https://www.legalaid.nsw.gov.au/content/dam/legalaidnsw/documents/pdf/for-lawyers/resources-and-tools/criminal-law/criminal-law-conference-papers/2023/unacceptable-risk-cases-and-the-intersection-of-family-law-and-criminal-law.pdf>. 

Is s 60CC relevant to parties?

• "[78]  I am satisfied that Mr Liepina and Mr B Liepina each meet the description of a person concerned with the welfare of X as per section 60CC of the Act.": Liepina & Arterberry [2024] FedCFamC2F 1397. 

(2)(a): what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:(i)  the child; and  (ii)  each person who has care of the child (whether or not a person has parental responsibility for the child)

• "[13]  The new s 60CC factors put a very square focus on the child and the child’s safety, and what arrangements would promote the child’s safety. Subsection 1(a) says I must consider the matters set out in subsection 2. They include what arrangements would promote the safety of the children from being exposed to, for example, family violence, abuse, neglect, or other harm.[14]  I am satisfied that the children being with the maternal aunt is a safe arrangement for them and I refer to the two department reports in that regard.": Aram & Ingeborg [2024] FedCFamC1F 412. 

• "[67]  Section 60CC(2)(a) requires me to consider, among other things, the arrangements that promote the safety of the children. I have made orders in this case which in my view advance the best interests of the children having regard to the matters set out in s 60CC(2). The orders I have made which promote the safety of the children are underpinned by a collection of factual matters bearing upon the mother’s psychological state. Those matters are relevant because they bear upon the predictive exercise, 28 an assessment of risk, that any consideration of safety necessarily involves. Several findings of fact may now be pronounced by me relevant to the orders I make which promote the safety of the children. ... [68]  In my view, the evidence discloses that the children are at risk from the mother’s behaviour unless the mother faithfully participates in ongoing regular treatment for stress management. [69]  It was put on behalf of the father that the mother has not demonstrated the change required to adequately ameliorate the risk to the children posed by her behaviour. Counsel for the father submitted that no evidence was before the court to support a finding that as a result of treatment for her vulnerabilities the mother in point of fact will overcome her vulnerabilities. He also submitted that the mother was unable to recognise that her behaviour towards the children was a reason for the children’s current presentation. Relying on Dr F’s evidence on point, counsel for the father argued that the mother may not possess the capacity to identify when stressors occur with the consequence that the mother’s ability to manage her own internal unrest is thereby compromised. ... [71]  The real issue is whether the mother is capable of managing her vulnerabilities in such manner that she does not present an unacceptable risk to the children compromising the children’s safety. ... [74]  The above proposal is practical and sensible, it quarantines risk, it promotes the safety of the children and it will go some way to providing a form of improvement in the children’s current presentation of emotional dysregulation in one child and stimming in the other. [75]  If the mother is unwilling or unable to undertake such ongoing therapy for stress management, a very considerable risk exists, and one imperilling the children’s safety, that the mother’s vulnerability to stressors will subsequently emerge which, if overwhelming, will lead to the exhibition of behaviour by the mother as was evident in the epoch following the birth of the parties’ child in 2021.This must be guarded against.": Shinohara & Shinohara (No 2) [2025] FedCFamC1F 122.

> This factor appears to go to assessing risks and vulnerabilities of parents to child and to others.  

• "[23]  The word ‘safety’ is not defined in the Act. It is defined in the Oxford English Dictionary as ‘the state of being protected from or guarded against hurt or injury; freedom from danger.’ [24]  In Oyama & Oyama,3 Gill J held that ‘safety’ in this context is a term that is wide in nature, and bounded only by its object, being to keep children, and those who care for them, from harm, and that it should not be taken to have a fixed content or standard. The paragraph requires the Court to consider the risk of harm that accompanies the relationship, in whatever form it may take and does not contemplate consideration of the benefits of a relationship where such is not safe. [25]  In Denton & Denton (No 3),4 Altobelli J expressed the view that ‘safety’ is a state in which hazards or conditions leading to physical, psychological, or material harm are controlled in order to preserve the health and wellbeing of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child the most optimal protection from harm. [26]  In Melounis & Melounis (No 4),5 Altobelli J held that to promote safety, for the purposes of s 60CC(2)(a), means ‘to advance the interests of, and move to a stronger or more prominent position, the safety (ie to be free from hurt, damage, harm or danger) of children and those who care for them’ and that the statutory requirement to promote safety involves advancing a positive outcome, which would necessarily include protection from harm but would not be limited to this. [27]  I respectfully adopt these definitions in determining the arrangements that would promote X’s safety. [28]  In considering this factor, it is necessary for the Court to consider any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child).6 [29]  There are a number of issues pertaining to X’s safety which feature in the evidence of each of the parties. The Father asserted that the Mother posed an unacceptable risk of harm to X Each of the issued raised by the parties with respect to X’s safety is discussed below. [30]  It is well established that a court will not make an order for a child to live with, or spend time with, a parent if it would expose the child to an unacceptable risk.7 Although the test initially related to allegations of risk of harm from sexual abuse, it has subsequently been extended to cases involving allegations of children being at risk of physical or emotional harm for other reasons.8 In Vasser & Taylor-Black,9 the Full Court of the Family Court of Australia (as that court was then known) referred to the decision of the High Court of Australia in M & M,10 in which the test was laid out, as ‘having become the “touchstone” setting out the relevant principles to be applied in cases of asserted unacceptable risk of any kind.’ In addition to assessing past events, the Court must separately assess future risk. This is a predictive or prospective exercise.11 [31]  In N & S & The Separate Representative,12 Fogarty J said: Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard. [32]  The assessment of whether there is an unacceptable risk requires determination on the evidence whether there is a risk, the magnitude of that risk and the potential consequences of the harm that might befall the child or children concerned.13 This involves giving consideration to the extent to which any risk found to exist may be ameliorated by protective measures such as supervision.14 If an unacceptable risk is found, the Court must take steps which are proportionate to the degree of the risk.15 [33]  In Harridge & Harridge, 16 Murphy J referred to N & S & The Separate Representative (supra), and adopted the following list of inquiries with respect to risk assessment and analysis: (1)What harmful outcome is potentially present in this situation? (2)What is the probability of this outcome coming about? (3)What risks are probable in this situation in the short, medium and long term? (4)What are the factors that could increase or decrease the risk that is probable? (5)What measures are available whose deployment could mitigate the risks that are probable?": Luga & Hayes [2025] FedCFamC2F 6. 

> includes a consideration of any unacceptable risks.

> "[132]  Having come to these conclusions, it is apparent that in undertaking the evaluative exercise discussed in Isles, I do not accept the mother’s contention that the father presents an unacceptable risk of harm.": Galvin & Pacotto [2024] FedCFamC1F 582.

• "[46]  In my view an assessment of “safety” as required under s 60CC(2)(a) requires a similar analysis of risk of harm as established by the previous iteration of s 60CC of the Act and also as established in case law. The arrangements must promote the safety of the child but also the safety of each person who has care of the child. [47]  Per Isles & Nelissen (2022) FLC 94-092, in assessing risk the Full Court enumerated the necessity to consider to all of the circumstances, including historical conduct, in determining whether or not there is sufficient evidence to make a finding of fact on the balance of probabilities in relation to the allegations made, in order to determine whether there is a possibility of harm arising in the future. [48]  In the decision of Eastley & Eastley [2022] FedCFamC1A 101; FLC 94-094, the Full Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion as set out at [33]: …the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127 –130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]). [49]  Parliament has removed the requirement to have the need to protect the child from harm as the primary consideration above all other factors. What has changed is that the Court is now required to assess safety as one of many factors to be required to be considered under s 60CC(2). [50]  To make orders that are in the best interests of the children and promote the safety of the child and each person who has care of the child, the court must undertake an assessment of the safety of the children and each person who has care of the child, in the circumstances particular to each case.": Josse & Vipen (No 4) [2024] FedCFamC1F 890.

• ** Instances of alleged Family Violence, required rigour of findings and analyses: "First, it must be noted that there is a requirement, when exercising jurisdiction under the Family Law Act 1975 (Cth) (“the Act”), to “ensure protection from family violence” (s 43(1)(ca)). To that end, the newly inserted objects to Part VII of the Act concerning “Children”, (which came into force on 6 May 2024) succinctly are (s 60B): (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. (Emphasis added) Whilst the Court remains obliged (as it was previously) to make parenting orders which have the children’s best interests as the paramount consideration (s 60CA of the Act), the factors which the Court must consider in determining what is in a child’s best interest, have been significantly reduced (s 60CC of the Act). Family violence, however, remains a factor which the Court must consider, albeit that it is now expressed as a consideration in conjunction with the arrangements that would promote the safety of the child and each of the persons who has care of the child (s 60CC(2)(a)). The significance of the need to consider family violence, as part of the safety considerations relevant to the child and the parents, is reinforced in the newly inserted s 60CC(2A) and the untouched s 60CG(1) which relevantly provide: 60CC How a court determines what is in a child’s best interests ... (2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of: (a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and (b) any family violence order that applies or has applied to the child or a member of the child’s family. ... 60CG Court to consider risk of family violence (1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order: (a) is consistent with any family violence order; and (b) does not expose a person to an unacceptable risk of family violence. In Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230 (“Pickford”), the Full Court grappled with the definition of family violence found in s 4AB of the Act. Whilst some uncertainty exists as a result of the three separate judgments (which is not a matter for the present proceedings), we agree with the comments of McClelland DCJ at [10] that: ... family violence is relevant not only to the assessment of future risk, but it is also very much a best interests consideration that may influence the making of an order for a child to spend a particular amount of time with a parent... We also agree with the comments of Austin and Williams JJ: However, in litigation under Pt VII of the Act, untested allegations of family violence are not proven facts. No court can prophetically know whether such allegations made by one party against another are true or false and, if false, whether the falsehood is deliberate or inadvertent. Disputed allegations of family violence must be subjected to the same forensic rigour as any other contested factual issue (Edinger & Duy [2023] FedCFamC1A 194; (2023) 68 Fam LR 55). The party alleging the fact bears the burden of proving it (Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444 at [36]) and the standard of the burden is the balance of probabilities (s 140 of the Evidence Act 1995 (Cth)). The same point was recently made by the Full Court, though perhaps in less robust terms (Leventis & Leventis [2024] FedCFamC1A 141; (2024) FLC 94-204 at [13]–[19]). It is also important to acknowledge how the purpose of litigation under Pt VII of the Act is to determine orders which will most ably serve children’s best interests (s 60CA and s 65AA). Keeping children and their carers safe into the future is the ideal, which objective should not be subverted by allowing the litigation to be used as the medium by which to make definitive factual findings resolving disputed allegations of historical family violence between conflicted, vengeful or anguished parents, nor to make punitive orders against the parties who may be found to have perpetrated family violence. In concurring with those comments, we acknowledge that a trial judge is not required to make findings in relation to each and every allegation that is made (M v M (1988) 166 CLR 69 at 76–78; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Rafferty & Spencer [2016] FamCAFC 97; (2016) FLC 93-710 at [30]). We are cognisant of, and in no way minimise, the principles, set out in s 43(1)(ca), to which a court exercising jurisdiction under the Act must have regard; the objects of Part VII, set out in s 60B(a); the matters which the court must consider in s 60CC(2)(a) and (2A); and the directive to the court in s 60CG(1)(b). However, having had regard to, and considered, those prescribed matters, we are of the opinion that whether there is a need for a trial judge then to proceed to make findings about family violence will turn on the facts of each case. This, necessarily, must be informed by a consideration of the circumstances of the case, including the orders advanced by each of the parties. To that end, where parties are each promoting time-spending between a child and both of the parents, without any protective orders aimed at ameliorating risk, it may not be necessary for findings regarding family violence allegations to be made. Conversely, where one or both parties contend that the other parent poses an unacceptable risk of harm, then it is likely, by reason thereof, that findings (where possible) will be required to be made regarding allegations of family violence, because those findings (if capable of being made) will not only inform the assessment of risk (per Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 at [50]–[51]), but they will also serve to assist in determining what orders would best keep the children safe from harm, including what, if any, protective orders could ameliorate risk. In this regard, we therefore concur with the comments of Austin and Williams JJ in Pickford (at [87]–[91]). The approach to the fact-finding exercise was the subject of helpful guidance in Pickford in the joint judgment of Aldridge and Carew JJ, with whom McClelland DCJ agreed (at [36]–[39]), in the following terms: 48. ... a forensic examination of all relevant evidence to: (a) identify the behaviour about which complaint is made; (b) identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator; (c) identify the impact of the behaviour on the alleged victim (mere assertion by the alleged victim that they feel coerced or controlled is insufficient); (d) make all relevant factual findings; and (e) explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found. As earlier identified, in these proceedings each of the parties made significant and serious allegations of family violence. When addressing the family violence allegations in the reasons, the primary judge recorded: Each parent asserts against the other that they have been the victim of family violence including physical violence perpetrated by one to the other. Additionally, each allege emotional abuse, and the mother strongly asserts that she has been the subject of controlling and coercive behaviour by the father including financial abuse. In this case, neither parent takes any responsibility themselves for any real level of abuse towards the other person. ... Sadly, this is not a “no risk” case. Both parties raise concerns about the other parent. When turning to the fact-finding exercise, the primary judge considered that he was unable to make findings in relation to: (a) Whether the father’s alleged abusive episode in early 2021 (at [52]), or any other alleged violent behaviour (at [56]), occurred; and (b) The events which resulted in the Temporary Protection Order obtained by the father in 2024 (at [58]–[59]). The reasons also record two further findings regarding the parties’ allegations of family violence: I find these parties had, during their relationship, abused each other orally and probably at least in the presence of or with the awareness of [X]. [Y] was only 12 months old when the parties finally separated and as a result, he was likely not as aware of the intense conflict. ... ... (a) I am satisfied that the relationship between the mother and father was volatile and shaped at times by family violence perpetrated by each party against the other. The evidence does not permit a finding to be made that there was only one victim as each parent asserts... These findings, however, are untethered from any identification of the allegations made by either of the parties, or any discussion or analysis of the alleged behaviours which might ground these findings. As a result, there is an inability to discern which of the allegations the trial judge considered were made out, so as to ground the ultimate finding at [102(a)]. Given the seriousness of the parties’ competing family violence allegations, which included threats to kill, suicidal behaviour on the part of the mother, attempted abuse by each parent, surveillance and stalking on the part of the father, together with the more subtle forms of coercive and controlling behaviour alleged by each of the parties, this inadequacy in the reasons is a fundamental flaw. Whilst it may well be that there was a proper basis for the primary judge to conclude that each parent had perpetrated family violence, without specific findings about any of the myriad of allegations made, it is impossible to comprehend how the orders ultimately made by the primary judge met the legislative imperative of ensuring protection from family violence (s 43(1)(ca)) and/or that the orders that were made kept the children and/or the parents “safe” (s 60CC(2)(a)). It is for all of these reasons that we consider that the reasons of the primary judge are inadequate.": Abramsson & Abramsson (No 2) [2025] FedCFamC1A 86, [27]-[43]. 

• RELATION to s 60CC(2)(e): 

> "[31]  The consideration of safety required by s 60CC(2)(a) and its corollary, risk of harm, demands no departure from the long standing approach set out by the High Court in M v M (1988) 166 CLR 69 (“M v M”), and recently expressed by the Full Court in Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”) and Eastley & Eastley (2022) FLC 94-094. [32]  As identified in Isles & Nelissen at [50], quoting Austin J in Fitzwater v Fitzwater (2019) 60 Fam LR 212 at [138], the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm”. The consideration involves the contemplation of both the potential harm, and the arrangements for the care of the child that are protective from such, as was required by M v M, (s 60CC(2)(a)). [33]  A further reference to “safety” is made at s 60CC(2)(e). By that provision the court is required to consider the potential benefits for a child to be derived from having a relationship with a parent or other person of significance to the child “where it is safe to do so”. In the context of a set of considerations that are designed for the weighing of different factors to determine best interests, “safe” should not be taken to have a fixed content or standard. This is consistent with its use in another statutory context where the High Court observed that “safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence”.3 [34]  Section 60CC(2)(e) requires the court to consider the risk of harm that accompanies the relationship, in whatever form it may take. The section does not contemplate consideration of the benefits of a relationship where such is not safe. It is consistent with longstanding case law that a child should not be exposed to an unacceptable risk of harm.": Kranz & Padmini [2025] FedCFamC1F 45. 

> "[26]  26 The reference to “safety” at s 60CC(2)(a) is to a term that is wide in nature, and bounded only by its object – to keep children, and those who care for them, from harm. [27]  Although cogent examples of sources of harm are identified in the provision, that is, being subjected or exposed to family violence, abuse or neglect, these are not voiced in a manner to limit the scope of the term “safety”. They are voiced inclusively rather than exclusively, and sit in the company of the phrase “or other harm”. [28]  The consideration of safety and its corollary, risk of harm, demands no departure from the long standing approach set out by the High Court in M v M (1988) 166 CLR 69 (“ M v M ”), and recently expressed by the Full Court in Isles & Nelissen (2022) FLC 94-092 (“ Isles & Nelissen ”) and Eastley & Eastley (2022) FLC 94-094 . [29]  As identified in Isles & Nelissen at [50], quoting Austin J in Fitzwater v Fitzwater (2019) 60 FamLR 212 at [138] the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm”. The consideration involves the contemplation of both the potential harm, and the arrangements for the care of the child that are protective from such, as was required by M v M , s 60CC(2)(a). [30]  A further reference to “safety” is made at s 60CC(2)(e). By that provision the court is required to consider the potential benefits for a child to be derived from having a relationship with a parent or other person of significance to the child “where it is safe to do so”. In the context of a set of considerations that are designed for the weighing of different factors to determine best interests, “safe” should not be taken to have a fixed content or standard. This is consistent with its use in another statutory context where the High Court observed that “safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence”. 3 [31]  The paragraph requires the court to consider the risk of harm that accompanies the relationship, in whatever form it may take. The paragraph does not contemplate consideration of the benefits of a relationship where such is not safe. The provision is consistent with longstanding case law that a child should not be exposed to an unacceptable risk of harm. [32]  These considerations are prominent in this case where, although the parties are agreed that the children will live primarily with the father, and that they will have an ongoing relationship with the mother, the mother’s mental health is a circumstance that bears upon both benefit and safety. [33]  In its simplest form, the main issue is as to risk of harm posed to the children by the potential of the mother relapsing into poor mental health, in particular psychosis, including as to the potential effects of being exposed to such. Against that the issue is the sufficiency of different arrangements to render time with the mother as safe, while permitting the reaping of benefits to the children of the relationship with the mother. The extent, nature and availability of those benefits are also matters of contest between the parties.": Oyama & Oyama [2024] FedCFamC1F 738. 

• Consideration of value and suitability of supervision (including long-term supervision), to develop a relationship with the father and the paternal family in a safe way: "[133]  Illustrative of the suitability of supervision is that it has been protective of X to date, and it has enabled X to develop a relationship with the father and the paternal family in a safe way. Whilst I accept that the success of this arrangement might suggest that it would be safe to move away from supervised time spending, for the reasons that I have discussed throughout these reasons, I do not consider that X would be safe and protected from harm and/or the risk of harm if there was to be unsupervised time spending. [134]  I am conscious that X is young, and that the imposition of a long-term supervision arrangement brings with it a number of challenges and difficulties, including but not limited to, supervision being an artificial environment, the possibility of X at some point questioning the need for supervision and the potential that this might undermine the time spending by making X, amongst other things, question her own safety and/or undermine X’s relationship with the mother whom she might come to challenge and resent over the need for supervision. [135]  I am equally conscious however, that the potential impact of the artificial nature of supervision has itself been reduced by the current arrangements, which sees professional supervision occurring in the home of the paternal grandparents, which allows X to immerse herself within that home surrounded by extended family members, in particular her cousins from whom she derives much enjoyment. [136]  In addition, I am satisfied that the success of the supervised time spending arrangements to date has been enhanced by the mother’s ability to support that time spending (by inference because she considers it to be protective). The mother is to be commended in this regard given the immovable views she has about the father as a result of her experiences of family violence and her warranted concerns about the father’s alcohol and illicit drug use. [137]  I acknowledge that the imposition of an order for long-term supervision is an arrangement that the Court adopts in rare circumstances (see B and B (1993) FLC 92–357). I am equally conscious however that where the evidence before the Court supports the making of such an order, it is open to the Court to do so (see for example Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 cited with approval in Bielen & Kozma (2022) FLC 94–123). [138]  For all of the reasons that I have identified, I consider that the circumstances of this case are ones which warrant ongoing professional supervision; particularly as the paternal grandmother has been the only person put forward as a non-professional supervisor by the father and I do not consider her to be appropriate to supervise the father’s time.": Galvin & Pacotto [2024] FedCFamC1F 582.

• Genuine fears of primary carer: "[45]  The jurisprudence of this Court makes clear that the genuine fears of a primary carer about the existence of a risk is a consideration in the risk assessment (see Re Andrew (1996) FLC 92-692; A & A [2005] FamCA 43). The mother gives evidence of the affect upon her of what she says she has endured. She says she is fearful of the father and afraid for the wellbeing of the children and if they spend time with him. She describes the impact of him seeing the children or communicating with them as a continuation of his coercive control of her.": Hannigan & Hannigan [2024] FedCFamC1F 806. 

• Coercion and control - financially - jewish family Gett - controlling behaviour - religiosity: Briedis & Saar [2025] FedCFamC1F 91, [102]-[147]. [128]: "[128]  People in Australia are free to “follow their own religious practices and beliefs subject only to the operation of civil and criminal laws” (Ferro at [452]). Accordingly, what I find about the husband’s threatened Gett refusal is said within the prism of the law I must apply — the Family Law Act and any relevant laws of our Commonwealth. What I say is no comment at all about a faith from “time immemorial” (Gwiazda & Ber (unreported, Family Court of Australia, Emery J, 23 February 1983) cited in Ferro at [449]) to which these parties adhere."

• Coercive control, best interests considerations, social science: " [74] I have found that the mother has been subjected to family violence in the form of coercive and controlling behaviour, with actual acts of physical violence. Without dismissing the veracity of the mother’s allegations of sexual assault, it has been unnecessary for me to determine whether the sexual assault as set out in her affidavit filed 25 November 2024 occurred. [75] In Khatri & Khatri [2024] FedCFamC1A 152; (2024) FLC 94-207 at [86], the Full Court, by reference to Re H-N (Children) (Allegations of Domestic Abuse) [2021] EWCA Civ 448; [2022] 1 WLR 2681 (“Re H-N”) at [31], highlighted the harm caused to children by domestic abuse, particularly abuse involving an element of coercive control: ... the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour: Is directed against, or witnessed by, the child; Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child; Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child; Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men. [76] While that passage refers to exposure to abusive conduct during the parents’ intact relationship, logic compels the conclusion that the consequences of such exposure are long lasting. This was recognised in Re H-N where the UK Court of Appeal stated at [52]: Professionals would now, rightly, regard as “old fashioned” the approach [of previous Family Violence legislation] where protective measures were only triggered in the event of “violence” or “actual bodily harm”. In like manner, the approach of regarding coercive or controlling incidents that occurred between the adults when they were together in a close relationship as being “in the past”, and therefore of little or no relevance in terms of establishing a risk of future harm, should, we believe, also be considered to be “old fashioned” and no longer acceptable. The fact that there may in the future be no longer any risk of assault, because an injunction has been granted, or that the opportunity for inter-marital or inter-partnership rape may no longer arise, does not mean that a pattern of coercive or controlling behaviour of that nature, adopted by one partner towards another, where this is proved, will not manifest itself in some other, albeit more subtle, manner so as to cause further harm or otherwise suborn the independence of the victim in the future and impact upon the welfare of the children of the family. [77] In this case, the father’s failure to acknowledge the impact of his coercive and controlling behaviour and to take steps to address it, increases the likelihood that his conduct will impact the mother and the children in the future: Re W (Children) [2012] EWCA Civ 528 at [15]. [78] I find that in circumstances where the father has failed to acknowledge and address his past coercive and controlling conduct, that there is an unacceptable risk that he will continue to engage in that conduct in the future and, for the reasons which I have explained, I am satisfied that exposure to such conduct would be harmful to the children and the mother as the carer. [79] Having concluded that the children would be exposed to such conduct, should orders be made for them to spend time with their father, the question becomes whether steps can be taken to mitigate against that risk. Counsel for the ICL appropriately referred the Court to authorities which have determined that, while each case necessarily needs to be considered in the context of its particular facts and circumstances, caution should be taken before creating a parenting regime underpinned by protracted or indefinite supervision: Slater v Light [2013] FamCAFC 4; (2013) 48 Fam LR 573. [80]Moreover, while appropriate professional supervision may mitigate against the extent to which the father engages in abusive conduct, or in conduct that belittles the mother in front of the children, it would not remove the risk to the children of the father becoming involved in their lives and then departing as he has done in the past. [81] In balancing the desirability of the children maintaining a relationship with their father as against questions of risk, the scale has been tipped against making orders for the children to spend time with the father by an additional consideration. That consideration is that the making of such orders are essentially academic in circumstances where the father is living in Country B and despite insistence that he return to Australia to participate in these proceedings in person, he has failed to do so. Accordingly, the question as to whether such orders should be made is essentially to engage in a futility, at least unless and until the father has a change of attitude, such that he wishes to return to become part of the children’s lives on an ongoing and indefinite basis. [82] The ICL seeks that there be no order as to time or communication as distinct from a positive order for no time. In that context, the ICL was not challenged on her advice to the Court that she had the benefit of meeting the children in the week prior to the hearing, and that, during the discussion, the children expressed some curiosity about the father and seemed open to the idea of seeing or hearing from him again. [83] To her credit, the mother gave unchallenged evidence that she would not prevent the children from contacting the father in the future if they expressed a wish to do so, and she would not stand in the way of them receiving emails from him on their school email addresses. [84] Relevantly for the purpose of considering s 60CC(2)(a) and, specifically, the potential impact on the mother as the children’s carer, I accept the mother’s evidence that her emotional well-being would be adversely impacted by orders providing for the father to contact the children in her home which would necessarily be the case if orders were to be made for the children to have video conferencing time with the father. [85] Moreover, I respectfully agree with the submission by the ICL that the potential danger of making an order for the children to spend time and/or communicate with the father is that the father will not consistently avail himself of that opportunity. Consequently, the father may cause distress to the children if he disengages with the children, as he has done in the past, disappointing the children who may have had expectations of the commencement of an ongoing relationship with the father. [86] I have also considered the possibility of risk being mitigated by the father attending a behavioural change program. Based on the father’s failure to comply with past recommendations and orders from this Court to that effect, I have no confidence that he would do so in the future. I also have no confidence that the father would be open to changing his pattern of behaviour given he has failed to acknowledge his past coercive and controlling conduct. Moreover, the Court must make orders on the basis of the parent’s presentation, not wishful thinking based on the speculative possibility that they may change in the future: Kellerman & Kellerman [2024] FedCFamC1A 126 at [52]. [87]For all of the reasons that I have articulated, I am satisfied that it is not appropriate for the Court to make orders that the children either spend time or communicate with the father. However, I accept the merit of the argument presented by the ICL that, given the desire of the two older children in particular to maintain contact with their father, together with the mother’s preparedness to permit that to occur in the future, that the door should not be closed on that possibility. I therefore will make orders as proposed by the ICL.": Lishman & Ester (No 3) [2025] FedCFamC2F 542.

• Father perpetrator of FV, ADVO, mother fearful: "The father is a perpetrator of family violence. In 2021, an ADVO was issued for the protection of the mother against the father. It was made on a final basis for a duration of two years, and is now expired. The mother remains fearful of the father. After observing the father in the witness box and hearing his evidence, the mother indicated that she would not facilitate time between the children and the father if they expressed a wish to see him, as she is concerned about the risks to them if time was to occur. Neither parent trusts the other. The distance, both in kilometres and travel time, between the parties’ residences is a factor which provides a level of safety for the children and the mother. The Court accepts the submissions by the ICL that the father has taken no steps to address the deficits in his parenting as identified by the Family Report writer, that he has taken no action to develop insight into the parenting issues, and no steps to improve his attitude towards the mother. The father has failed to do any parenting, anger management, or men’s behaviour courses. The Court accepts the submissions that all these matters could expose the children to risk if they spend time with the father on an extended basis. At its lowest, the risk would be the father saying inappropriate things to the children about the mother. At its highest, there is a risk to the children being exposed to some act of domestic violence in his care. The risk of harm to the children encompasses the father’s unforgiving attitude to the mother, and the lengths he is willing to go to prove his point. For example, he purchased the transcript of the criminal proceedings and had an intention of showing the transcript to the children to show that he was not at fault. While he conceded in cross-examination that he would no longer do so, the fact of him obtaining the transcript, including for that purpose, shows his thinking and priorities. To show the transcript to the children would not only have been clearly distressing and inappropriate, but it would have put the children in a very difficult situation.": Wells & Wells [2024] FedCFamC2F 1516, [103]-[110]. 

• Illicit substance use - supervised time: "[18]  This is perhaps the most relevant consideration that the Court must have when making any orders to ensure the safety of X and Y. [19]  The truth of the matter is because of the Mother’s issues with illicit substances, her mental health and, unfortunately, criminal behaviours, I cannot be satisfied that it is safe for her to spend time with X and Y, which is sad because I am in no doubt she loves her children and they love her. [20]  Despite the opportunities afforded by this Court and despite everyone’s best efforts to help her to do so, she has been unable to satisfy the Court that X and Y would be safe in her care without orders for supervision. [21]  In his proposed orders, the Father provides an avenue for the Mother to spend time with X and Y. If the Father can be satisfied that X and Y would be safe having supervised time with the Mother, I am satisfied he would ensure they do so.": Duclos & Duclos [2024] FedCFamC2F 1899.

• Where no family violence factors: "[112]  When considering those matters in section 60CC(2)(a), I am required to consider the matters set out in section 60CC(2A) as follows: (a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and (b)any family violence order that applies or has applied to the child or a member of the child’s family. [113]  Happily for X, these considerations do not apply to his family. Neither party alleged a history of family violence, abuse or neglect involving X or a person caring for him. I refer to the mother’s actions taken in response to X’s red bottom in early 2024 and note it was not submitted the mother made any allegation that X had been sexually abused. There have not been any family violence orders relating to X or the parties. The father’s counsel submitted the conflict between the parties is not so high in this case as to expose X to a risk of harm and I agree with that submission. [114]  The father did raise in his trial affidavit, concern about “the possible instability of [Country B]”, deposing he has read several articles outlining tensions in the region. However, he did not adduce any expert evidence on this issue or point to any Australian government travel advice warning against travel to Country B. The mother gave evidence she keeps a close eye on the political situation in Country B, is very aware of the situation and that is why she asked the father for X’s Australian passport. She explained having X’s Australian passport is very important to her, so that if she senses there is an issue, she can leave Country B with X and get back to Australia. This evidence is consistent with the mother pressing the father to provide her with X’s Australian passport before her intended return to Country B with X and I accept it. I am not persuaded X will be unsafe living in Country B with the mother.": Werner & Manz [2024] FedCFamC2F 1079. 

• General parenting faults not rise to level of risk concerned in this factor: "[122]  The father raises concerns about the mother’s capacity to care for X, and has raised some concerns about her capacity to ensure his safety, for example by not wearing an appropriate seat belt or being too close to a road unsupervised, and also about the mother being able to properly feed and clothe X Such concerns while raised in the father’s evidence, do not rise to a level of findings by this Court in respect of X being physically unsafe in the mother’s care.": Weber & Trung [2024] FedCFamC2F 1467.

(2)(b) any views expressed by the child

• Traditional parenting proceedings: "[20]  This is not really a views/wishes matter, s 60CC(2)(b), as is often the case in more traditional parenting proceedings. I have no reason to doubt that X and Y are happy living with their mother (although sad she will soon pass) and with Mr Yaaxa. X and Y need continuity of care and support when their mother passes.": Arlaud & Arlaud [2025] FedCFamC1F 207. 

• Goes to views expressed by the child re parent's competing proposals: "[150]  X clearly loves his mother and father and wider family members but was and is too young to understand and express a view about the competing proposals of the parties.": Briedis & Saar [2025] FedCFamC1F 91. 

• Parent incarcerated, non-stable household, preference expressed to live with Aunt - family report: Dalton & Nikolaou [2025] FedCFamC1F 151, [37] et seq. 

• "[102]  The views of the children are but one consideration of a number to be taken into account in the overall assessment of their best interests, and their importance may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34] –[35]).": Selwood & Selwood (No 2) [2024] FedCFamC1F 700. 

Influence by siblings, parent

• "[108]  The position with Z is less clear because he is younger. Dr DD alluded to the possibility that Z’s views were influenced by his older brothers. It is hard to know the extent to which this is the case. However, I observe that Z’s views about the limitations of the father’s accommodation, which I described earlier, seem understandable. I give Z’s views some weight.": Selwood & Selwood (No 2) [2024] FedCFamC1F 700. 

• "[44]  It is well known children are prone to be influenced, either intentionally or inadvertently, by the adults with whom they live (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[41]; RCB v Forrest (2012) 247 CLR 304 at [52]). Most likely, that has occurred in this case. It may be the respondent’s adverse feelings about the applicant have been impressed upon the child entirely inadvertently, but that makes no difference. If the situation was unintentional then the respondent may have lacked the perspicacity to understand the dynamic and been powerless to stop it. The danger for the child which results from his perpetual immersion in such a dynamic is his alignment with the respondent, consequent involvement in the conflict, and disturbance of his healthy emotional development.29 It could even ultimately lead to the rupture of the child’s relationship with the respondent due to his eventual resentment at feeling as though he has been unfairly influenced by her to reject the applicant.": Garrod & Harbig (No 2) [2024] FedCFamC1F 756.

Very young children < 4

• "[76]  Section 60CC(2)(b) requires me to consider any views expressed by the children. [77]  The children are very young. They do not have the maturity to express views that are sufficiently well reasoned and considered as to warrant my taking those views into account in the parenting orders to be made. That said, at least one of the expert medical witnesses referred to the children’s wishes to have more interaction with the mother. Understandable as that emotion may be at a basal level, the structure of the integers of s 60CC(2) is such that the views of the children do not predominate in any consideration of the formulation of orders that represent the best interests of the children.": Shinohara & Shinohara (No 2) [2025] FedCFamC1F 122.

• "[148]  X, who was aged 4 at the time of the Family Report interviews, was not interviewed by Ms D. Shortly prior to the trial, the ICL met with X and gave him the opportunity to express a view. The Court was informed that he did not wish to do so. The evidence of both parties was that X had told each of them that he wished to live with the Mother. However, I place no weight on this evidence as X was very young when he was acknowledged by the Father to have said this, and out of respect for X’s express desire not to provide a view.": Luga & Hayes [2025] FedCFamC2F 6. 

• "[107]  X is of such an age and stage of development that any views he may hold carry little, if any, weight to my determination. Neither parent suggests otherwise.": Gulcan & Petroni [2024] FedCFamC2F 1314.

• Need to balance expressed views with need for stability: "[125]  Ms B was of the view that it was important to balance X’s wishes with his needs of stability, along with the capacity of each parent to provide this. The expert said that X values both his parents, and his views demonstrate an age-appropriate understanding of fairness. Ms B also opined that X may feel a sense of responsibility towards the feelings of others as he is aware that especially his mother and Z are missing him when he is with the other parent.": Weber & Trung [2024] FedCFamC2F 1467.

5 year old, consistent presentation to ICL and family report writer (psychiatrist)

• Galvin & Pacotto [2024] FedCFamC1F 582, [139]-[148].

5 year old, developmental issues

• "[112]  X is 5 years old, has significant developmental challenges and is nonverbal. [113]  I am satisfied that there are no views expressed by X, or able to be expressed by X, that would assist this process.": Liepina & Arterberry [2024] FedCFamC2F 1397. 

7 and 9 years old

• "[27]  The children are still only nine and seven years. Their views are given no weight. ...": Bajek & Bajek (No 2) [2024] FedCFamC1F 526.

• "[30]  X has expressed a preference to continue in the current arrangement and very much wants a relationship with both of her parents.": Lyon & Seger [2025] FedCFamC2F 256 -- 9 year old. 

8 year old

• "[82]  The child is 8 years of age and this impacts the weight of her views as well as the possibility of the child masking her feelings and limiting her self-report which was raised by the Family Report writer.75 Nonetheless, the child has been consistent that she wishes to spend time with both parents. This was carefully considered by the Family Report writer who stated that the child spoke of each of the parties’ homes with a sense of belonging.76 [83]  During cross-examination, the Family Report writer drew the Court’s attention to the child’s comments after spending time with the father during the observation: 126Following the second observation session, [the child] appeared flat and tired. The writer asked [the child] whether that was how [her parents] usually were. [The child] said it was, that [the father] was “Always rushing, never really chill. My mum is quite a lot chill.” With her arms laden with gifts, money and sweets, she said with humour, “It’s a lot to take in — and that’s only half an hour! Imagine how tired I am after seven!” (Emphasis added) [84]  The Family Report writer gave evidence that she found this comment by the child to be a powerful insight into the child’s views about spending time with the father.": Pamplin & Galang [2025] FedCFamC1F 89. 

12 year old child

• "[117]  The record of Z’s recent expressed wishes, that have been maintained, is something that, given her age and the history of this matter, I give some weight to.": Josse & Vipen (No 4) [2024] FedCFamC1F 890.

• "[81]  The child is 12 and his views are important. I note that despite the family consultant reporting at [111] a slight lack of maturity, those observations were well over two years ago. I now attach weight to X’s view as observed by the supervisor in March 2024 and as recently reported to the ICL.": Massimo & Lain [2024] FedCFamC1F 891. 

14 year old

• "[81]  The child’s age is relevant in determining the amount of weight to be attributed to their views. In this case, D is 14 years and nine months of age. She has clearly expressed her views and continues to do so. During the periods of her increasing school refusal and her experiences of panic attacks and anxiety, she has steadfastly maintained her views about where she currently wants to live. She expressed them with clarity to the previous ICL, she has expressed them again to the current ICL, she has told her psychologist, and she wrote and signed a letter setting out her views which she asked the ICL to provide to the Court. I give her views significant weight for following reasons.": Porter & Porter (No 3) [2024] FedCFamC1F 633. 

16 year old

• "[53]  The eldest child presents as mature, responsible and high achieving.28 He enjoys close and positive relationships with both parties,29 but would prefer to remain living with the father.30 Given his age and maturity, his views carry substantial, if not dispositive, weight.": Beltran & Preston [2025] FedCFamC1F 102.

see also, Children forced to spend time with parent against wishes. 

Children with cognitive disability

• little weight: "[165]  On interview by the Family Consultant in February 2023, the children denied that they could recall their father or describe him. The children each said “don’t know” when asked about how they may feel if they were to see their father.159 The Family Consultant noted that the children had difficulty in naming or identifying emotions regardless of the topic and the children gave limited details in response to questions.160 [166]  In relation to the younger child, I am also cognisant of the Medical and Psychology Clinic Report prepared in April and May 2022, which identifies that he has significant speech clarity and language difficulties.161 Although I did not have a similar report in relation to the elder child, it was the mother’s uncontested evidence that each child suffers from the same disabilities (save for the elder child’s mental health disorder). I therefore agree with the view of the Family Consultant that the children’s views should not hold any significant weight.162": Kontou & Naggia [2024] FedCFamC1F 698.

(2)(c) the developmental, psychological, emotional and cultural needs of the child

• Ordinary child of their age: "[78]  There is nothing in the evidence of the parties that would give rise to the Court needing to make Orders or specifically take into account X’s developmental, psychological, emotional and cultural needs. In other words, X’s developmental, psychological, emotional and cultural needs are unremarkable and no different to those of the ordinary child of her age.": Calvet & Johns [2025] FedCFamC2F 128.

• mother-and-child bond and attachment maintained through difficult time of no time and supervised time, in circumstances she had been primary carer prior: "[31]  I am satisfied that it is in X’s best interests to live, or spend greater time with, her mother than with her father in the circumstances where she was raised and cared for, predominantly, by her mother from when she was born until she was five, and then there has been a serious interruption in that time spent. However, it appears that the mother-and-child bond has not been interrupted and, by the love and affection between Ms Lyon and X, the mother-and-child attachment has been maintained throughout the difficult time of no time and supervised time.": Lyon & Seger [2025] FedCFamC2F 256. 

• "[78]  Section 60CC(2)(c) requires the court to consider the development, psychological, emotional and cultural needs of the children. The children are young and in the short duration of their lives they have already endured an unacceptable amount of developmental, psychological and emotional turmoil. The older child stims and the younger is emotionally dysregulated. Their needs are acute. 29 They need parental input from both parents. The precise way in which that bears upon parental responsibility and the time to be spent by each parent with the children is canvassed in the passages below.":  Shinohara & Shinohara (No 2) [2025] FedCFamC1F 122.

• Capacity and ability of parent to care for children with diagnosed condition, and with varying levels of needs: "[103]  In relation to the developmental, psychological, emotional and cultural needs of the children (s 60CC(2)(c)): (a)As earlier indicated, these children have disparate and varying levels of needs. (b)Whilst W, X and Z have diagnosed conditions, it is apparent from the Child Impact Report that all of the children in their own different ways appear to have significant emotional and psychological needs arising from that which they have witnessed and experienced, including but not limited to witnessing an array of family violence as and between their parents, as and between the mother and her former partner, and having been on the receiving end of it themselves. ...": Vaughan & Vaughan (No 2) [2025] FedCFamC1F 129.

• Comorbidities, children exhibit highly dysregulated behaviours marked by boundary and limit-testing behaviour - ability and capacity for parents to provide children with the care needed: "[168]  I find that the children exhibit highly dysregulated behaviours marked by boundary and limit-testing behaviour.163 They each demonstrate significant difficulties with social communication and present with restricted and repetitive behaviours. I also find having regard to the mother’s unchallenged evidence on the topic and the medical evidence before me that the children present with significant co-morbid issues, which impact on their daily functioning. There is no evidence that the children’s complex needs are abating or that they will do so with the effluxion of time. [169]  I also find that in order for the children to develop to the best of their ability, it is vital they each have ongoing access to the therapies afforded to them by their mother and the National Disability Insurance Scheme. The mother is the best person to ensure that the children receive the assistance required by them. It was clear from the mother’s oral evidence that the children every day of the working week have consultations with physiotherapists, occupational therapists, speech therapists and counsellors. The children also attend sport, which the mother says is to assist the children with their medical condition and low muscle tone. [170]  I find that the children ought to be free to receive the therapies afforded to them absent the circumstances of parental conflict in which they were placed during the relationship. The mother is in the best position to continue to provide the children with routine, stability and to otherwise facilitate their attendance on their treating medical practitioners and health professionals. For the reasons discussed above, I have no confidence that the father is able to provide the children with any of these benefits.": Kontou & Naggia [2024] FedCFamC1F 698.

• Risk of being harmed psychologically by parent with risk factor or vulnerabilities: "[85]  On any view, X is of a very young age, and as such, as identified by Dr F, she is vulnerable and susceptible to psychological harm, particularly if embroiled in the mother’s deceptive behaviour (s 60CC(2)(c)).": Edhouse & Edhouse (No 4) [2024] FedCFamC1F 647.

• parental conflict - Given mother has primary care and sound parental capacity - mother to have sole parental responsibility: "[42]  The sad reality is that the parents cannot agree on much. To invite them to formally have to confer on decisions about X would just expose X to more parental conflict, which is inevitable given that X will have to transition to secondary education and the parents’ history suggests that unless I make one person responsible, the parties will not be able to agree, raising the prospect of conflict and future litigation, neither of which would meet X’s needs.28 [43]  Given her primary care of X and her parental capacity being sound, I am satisfied that the mother is best placed to exercise parental responsibility for her daughter.": Harrell & Lowe [2024] FedCFamC2F 1182.

(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs

• ** "[113]  As to s 60CC(2)(d), the capacity of either parent was determined through the lens of the assessment as to unacceptable risk and its mitigation. Nevertheless, the particular has no merit. The primary judge made findings as to the father’s capacity at [7(a)], [7(g)] (accepting the opinions of the Family Report writer), [10], [15], [19], [20], [22], [31], [46] (again, accepting the opinions of the Family Report writer), [47], [49], [50], [65], [76], [88], and [90]. The primary judge’s findings as to the mother’s capacity are at [18], [20], [55], [56], [68], [71]–[74], [85], and [87]. The particular fails.": Steen & Crespo [2025] FedCFamC1A 90.

• "[79]  Section 60CC(2)(d) requires me to consider the capacity of each person who has or who is proposed to have parental responsibility for the children’s developmental, psychological, emotional and cultural needs. The children’s father has demonstrated that capacity. I do not accept the mother’s characterisation of events when she asserted in submissions that the father orchestrated grave family violence upon the children by obtaining an IVO against the mother. The father acted protectively in doing that. The fact that the mother took the view that such a measure was unnecessary fails to address the trauma that the mother’s behaviour was occasioning the children.": Shinohara & Shinohara (No 2) [2025] FedCFamC1F 122.

• "[13]  The Court has also taken into account the emotional and cultural needs of the child. The young age means the child is still in need of both parents for her development, emotional and physical advancement and needs.": Kapoor & Kapoor [2024] FedCFamC2F 605.

• Whether parent(s) have capacity to properly care for the child's needs: Dalton & Nikolaou [2025] FedCFamC1F 151, [40]. 

• "[144]  The explanatory memorandum to the Amendment Act explains in respect of section 60CC(2)(d):22 Consideration of ‘capacity’ is intended to allow broad judicial discretion to consider a range of matters to assess the ability of each person who has, or is proposed to have, parental responsibility, to provide for the individual needs of each child. This may require an examination of the history of care of the child and the nature of the relationship with each person (as provided for in previous paragraph 60CC(3)(b) and 60CC(3)(c)). An examination of the attitude to the child and to the responsibilities of parenthood, demonstrated by each person (as provided for in previous paragraph 60CC(3)(i)) may also assist the court to make a conclusion on a carer’s capacity to provide for the child’s particular developmental, psychological, developmental, and cultural needs.": Werner & Manz [2024] FedCFamC2F 1079.

• RELATION to s 60CC(2)(a): 

> Consideration of insight and parenting capacity, but not neglect that would engage 60CC(2)(a): "[47]  In cross-examination, the father said he additionally held concerns about the mother changing her principal place of residence from Sydney to City E in late 2022 and forcing the children, but mostly the youngest child, to then repeatedly endure road trips over the long distance between her homes in those cities. While that is a concern which does reflect upon the mother’s insight and parenting capacity, thereby engaging s 60CC(2)(d) of the Act, it has nothing to do with the mother’s alleged “neglect” of the children, such as to engage s 60CC(2)(a) of the Act.": Beltran & Preston [2025] FedCFamC1F 102.

> "[48]  Thirdly, the evidence of the children’s exposure to family violence since the parents have separated implicates only the mother, indicating her propensity to form serial romantic relationships with men who are violent, coercive or controlling,16 which she admitted in cross-examination. The court child expert said such conduct reflected unfavourably upon the mother’s insight and protective capacity and Mr E said it showed poor judgment on her part.17 The father relied on such evidence, but not so as to verify any risk of harm posed by her to the children to engage s 60CC(2)(a) — only as an aspect of her inferior parenting capacity to be more properly considered under s 60CC(2)(d) of the Act. Nor did the father raise the mother’s neglect of the children as an issue for consideration under s 60CC(2)(a) — only under s 60CC(2)(d) of the Act.": Hasip & Ruwan [2024] FedCFamC1F 638. 

> as was the approach of the Court in Walter & Stiller [2024] FedCFamC1F 575, [71]-[114]. 

• RELATION to s 60CC(2)(e) - effect on child: "[27]  I was referred to the Full Court case of Morgan & Miles [2007] FamCA 1230 (Morgan & Miles) and relevant passages include the following: ... Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.": Lacona & Lacona [2021] FedCFamC2F 200. 

• RELATION to s 60CC(2)(c): 

> "[30]  Section 60CC(2)(c) and (d) go hand in hand. The applicants depose to her education needs, being to be enrolled at school. And X is to have further medical assessments. They already have X engaged in age-appropriate grief counselling and clearly understand X’s various needs having lived with her since birth.": Re Engberg [2024] FedCFamC1F 871.

> "[193]  The Independent Children’s Lawyer, in her Case Outline, addresses the s 60CC(2)(c) and (d) together. She points to the concerns raised with respect to the mother’s mental health and capacity for sound judgement and, accordingly, her ability to care for the children in a safe and secure environment. She submits, and I agree, that the evidence indicates that the mother has a mental health condition and that the deterioration in her general functional capacity over the past few years has been very significant, including in the level of her persecutory beliefs. She emphasises the risk identified by the Family Report writer with respect to the children spending time with the mother, particularly if the mother refuses to engage in mental health supports.": Hoyt & Hoyt (No 4) [2024] FedCFamC1F 581.

> "[110]  This consideration is intertwined with s 60CC(2)(c) just above and what I said there applies with equal force here.": Carey & Prescott (No 2) [2024] FedCFamC1F 512.

> "[96]  Subsection (2)(c) and (d) go hand-in-hand together: the developmental, psychological, emotional and cultural needs of the children and the capacity of each person to provide for those needs.": Regna & Eline (No 2) [2024] FedCFamC1F 566.

• RELATION to s 60CC(2)(f): 

> "[56]  Section 60CC(2)(d) of the Act directs the court to consider the capacity of persons who have or it is proposed may have parental responsibility. If read narrowly, the section might preclude consideration of the capacity of persons who will spend time or communicate with a child but do not have parental responsibility (or are not proposed to have parental responsibility). In any event, s 60CC(2)(f) enjoins me to consider all relevant circumstances and so I propose to consider the capacity of each of X’s parents.": Bosch & Annema (No 3) [2024] FedCFamC1F 357. 

> "[67]  The capacity of a parent to ensure the safety of a child, is further a consideration under subsection 60CC(2)(d) of the Act, requiring consideration of the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs. [68]  If read narrowly, the section might preclude consideration of the capacity of persons who will spend time or communicate with a child but do not have parental responsibility (or are not proposed to have parental responsibility). In any event, s 60CC(2)(f) of the Act enjoins me to consider all relevant circumstances and this includes, in my view, the capacity of all such persons.": Liepina & Arterberry [2024] FedCFamC2F 1397. 

• Includes a consideration of parents' ability to meet needs, as well as prioritize children's needs and insight thereto (in relation to coparenting): "[104]  In relation to the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs (s 60CC(2)(d)): (a)It is of some concern that the mother facilitated the child W attending the appointments with the Court Child Expert without his iPad, and that this lack of respect for his needs has extended into W’s time spending with the father; with the mother repeatedly failing to provide the iPad to W during his supervised time spending with the father (per the notes from the Suburb R CCS W did not have it on at least the visits on each 27 April 2024 and 22 June 2024, and possibly not on 13 April 2024). During the hearing the ICL also made submissions that the Suburb R CCS raised a concern that W had not attended with his iPad for 10 of the 12 visits, although not expressly stated in the reports. (b)It is apparent from the reports from the father’s supervised time spending, that at least in that environment, the father appears to be able to meet the children’s basic needs, including appropriate supervision of them, provision of food, generally managing the children’s behaviour and engaging with the children in what appears to be age-appropriate play and conversation. (c)It is of some concern that the father appears willing to engage in dialogue with the children about the mother; albeit that on occasions it appears to be in response to the children raising issues with the father they appeared to be aware of from the mother (for example at the visit on 8 June 2024, X raised with the father the mother’s “claim” that the father “owed her money and needed to repay it”). (d)Of most concern however is that various orders for the children to receive support have been frustrated by the father, as identified by Judge Dickson in her reasons on 27 March 2023 (at [96]–[110]). During the hearing and in response to these criticisms, the father attempted to justify his communication to Dr CC by describing him as an “alpha male” whom he had clashed with. The father’s inability to prioritise the children’s needs, and his lack of insight in this regard is of concern to the Court.": Vaughan & Vaughan (No 2) [2025] FedCFamC1F 129.

• Includes consideration of who has capacity for parental responsibility, and who should have parental responsibility: 

> "[40]  In terms of s 60CC(2)(d) of the Act, being the capacity of each person who has or is proposed to have parental responsibility for the child, for reasons I have set out, the paternal aunt has demonstrated that capacity. I note and respectfully agree with the submission of counsel that the paternal aunt has not been, at any stage, an agitator for disrupting the child’s life with the mother, but rather has joined the proceedings in circumstances where the evidence was such that unfortunately, as a result of life challenges, neither the mother, nor the father had the capacity to properly care for the child’s needs.[41]  For reasons which I have set out, the paternal aunt has clearly and admirably demonstrated her capacity to provide a caring, loving and supportive environment for the child. Regrettably and without judgement, the Court notes that as a result of their life circumstances, and the challenges they have confronted, the child’s parents have suffered the intergenerational effect of family violence and dislocated family lives which has adversely impacted their parental capacity.": Dalton & Nikolaou [2025] FedCFamC1F 151. 

> "[172]  I agree with the observations of Justice Harper in Heron & Heron [2024] FedCFamC1F 465 at [149] to the effect that s 60C(2)(d) of the Act includes a person “who has or is proposed to have parental responsibility”. I agree that this expression may embrace not just the person to whom parental responsibility is allocated by Court order, but also a person who has the limited parental responsibilities which may exist when a child spends any time with a parent, including privately supervised time. In this regard, I take account of my finding that the father lacks parenting capacity and lacks insight into the consequences of his behaviour. Certainly, the father has not addressed his addiction to illicit substances, nor has he obtained any assistance with respect to his mental health despite being urged to do so.": Kontou & Naggia [2024] FedCFamC1F 698.               Jing Zhi Wong       

> "[213]  I agree with the observations of Justice Harper in Heron & Heron [2024] FedCFamC1F 465 to the effect that s 60CC(2)(d) a person ‘who has or is proposed to have parental responsibility’. I agree that this expression may embrace not just the person to whom parental responsibility is allocated by Court order, but also a person who has the limited parental responsibilities which may exist when a child spends any time with a parent. In this regard, I take account of the likelihood that the father may lack capacity, because he lacks insight into his own behaviour and has sought to deny or minimise it. Certainly, the father has not yet successfully addressed those criteria referred to by the Single Expert. Particularly, the father had not yet: (a)developed insight into his problems; (b)demonstrated adequate boundary-setting; (c)demonstrated that he is able to manage the sibling dynamic; and (d)developed an ability to shield the children from parental conflict.258 [214]  The father’s inability to control the elder child’s behaviour at the family therapist’s office in September 2024 and the nature of his interaction with the children during the interview process by the Single Expert in November 2023 causes me to agree with the finding of the Single Expert that the father is unable at this juncture to provide the children with “emotional containment”. I also agree with the expert’s view that the children’s behaviour towards him may be evidence of “an attachment disturbance to the degree that the children need to act in a frenetic, needy, or regressed manner” in order to command his attention.259 [215]  Whist I accept that the children “appear to have problematic attachments to both parents”,260 I accept the Single Expert’s conclusion that absent parental conflict, the mother is showing some insight and “self-reported improvement” with respect to her ability to meet the children’s emotional needs.261": Mikula & Tripp [2024] FedCFamC1F 710. 

Note: effect or applicability of s 61DA in consideration of parental responsibility

> "[180]  The Act at s 61DA provides a presumption of it being in a child’s best interests for the parents to exercise equal shared parental responsibility for that child. “Parental responsibility’ is normally understood as the obligations that parents discharge in making important and long-term decisions for their children in matters such as religion, education and medical procedures as opposed to the more mundane decisions habitually made for children on a day-to-day basis. [181]  The presumption of equal shared parental responsibility does not apply, however, if the Court is satisfied that a parent of the child (or a person who lives with the parent of the child) has engaged in abuse of the child or another child, who at the time, was a member of the parent’s family or engaged in family violence. Alternatively, the presumption can be rebutted on evidence satisfying the Court that an order for equal shared parental responsibility would not be in the best interests of the child. [182]  Not surprisingly, in the matter now before me the mother seeks an order for sole parental responsibility arguing that the presumption does not apply by reason of the father’s family violence perpetrated on both herself and X during the relationship. She seeks to be relieved from even keeping the father advised of the decisions that she makes in respect of X To the contrary, the father initially asked for an order that the parents have equal shared parental responsibility limited to matters relating to “medical, health and religion for the child”, but that the mother otherwise exercise sole parental responsibility. He now concedes parental responsibility to the mother but with prior notification to him.": Knopf & Knopf [2024] FedCFamC1F 359. 

• perpetration of family violence - risk factor: "[153]  There are no concerns raised that the mother is unable to provide for X’s developmental, psychological, emotional and cultural needs. [154]  Indeed, from the evidence, I am satisfied that the mother is highly driven to ensure that X’s needs are met in every way.[155]  The same however cannot be said for the father, for the reasons discussed herein, in particular as a result of the family violence perpetrated by the father, which I have earlier identified remains a risk factor.[156]  It is the existence of family violence that mitigates against the mother having anything other than sole parental responsibility for X. I do not consider it appropriate or reasonable in all of the circumstances for the mother to have to engage with the father in relation to any parenting decisions for X, as any such engagement would present as an opportunity for the father to manipulate, coerce, control and inflict harm upon the mother.": Galvin & Pacotto [2024] FedCFamC1F 582.

• Perpetration of controlling behavior: "[179]  The father rhetorically asked in submissions what was the “nexus” between the mother’s “anxiety, stress and sadness” and her capacity to parent. Respectfully, if a parent is anxious, stressed and sad, then they cannot be the best parent they can for a child. Or, to use the CCE’s phrase, they are “not in the moment”. That question also misses a formative step — the impact of the father’s coercive and/or controlling threats directed at the mother, the negative impact of those upon her emotional wellbeing and therefore the flow on to her capacity to parent. Further, if the mother is anxious, stressed and sad when living with her parents and having their ready physical support and emotional presence, it does not bode well for the mother and therefore X if she is in Australia dealing with the father and her acknowledged supports are a hemisphere away.": Briedis & Saar [2025] FedCFamC1F 91.

• Extravagant parenting: "[94]  The father’s extravagant behaviour in relation to the child, despite being well meaning, is indicative of him not understanding how to address the child’s needs. The father’s evidence before the Court indicates that he is oblivious as to how his actions impact the child, and this was highlighted by Mr BB, the school principal, who stated that the father would attend interviews with the school and reward the child in response to any minor positive comment notwithstanding the significant concerns raised by the school.85": Pamplin & Galang [2025] FedCFamC1F 89. 

• Child living with grandparents - no engagement by mother: "[133]  Since the children have come to live with the grandparents, but particularly after orders were made in December 2022 for them to have sole parental responsibility, the grandparents have been responsible for making all of the decisions relating to the children. They have ensured that the children receive appropriate therapies and support, and that they receive appropriate medical attention. [134]  The mother has not engaged with the children’s long-term care at all during this period of time.": Bostock & Bostock [2024] FedCFamC2F 1503.

• Child's strong attachment to both parents must be balanced with very significant safety concerns: "[87]  At this stage I accept Dr F’s views (which are supported by the ICL) that X has a strong attachment with each of her parents. This is a factor that has weighed heavily in the Court’s assessment of the present application. It is not lost on the Court that X has been meeting her developmental milestones, and that she appears to be progressing well. It is also not lost on the Court that the changes proposed by the father are significant, and would result in a substantial change to X’s living arrangements and her primary attachment to the mother. These factors however must be balanced against the very significant safety concerns that have emerged over the prolonged period of these proceedings as discussed throughout these reasons (s 60CC(2)(e)).": Edhouse & Edhouse (No 4) [2024] FedCFamC1F 647.

• Use of friends?: "[143]  A particular focus of In the Marriage of M & J Bieganski was on the question of the undesirability of friends or family supervising children during access periods where abuse has been found to have occurred or there is an unacceptable risk of abuse occurring. In this case, there is no evidence of the impact on Mr Vogel’s state of mind or capacity to provide for X’s needs if X is ordered to spend supervised time at a contact centre with Ms Arcas, or indeed time to progress to unsupervised and overnight time in due course. However, I take into account the strength of Mr Vogel’s objections to that occurring, the reasons for those objections, and I accept that it will cause Mr Vogel an additional stress that would not otherwise be there.": Vogel & Arcas [2024] FedCFamC2F 1681.

• Risk factors from parent and family that may cause harm to child: eg, "[121]  The mother contended that the recordings of the telephone calls from F Correctional Centre between Z and the father demonstrate that Z is being emotionally blackmailed to speak to the father and pressured to visit him. I am not satisfied that the evidence supports that Z feels pressured or blackmailed to speak to her father. Z has reported that she loves both her parents, there is no doubt she does. The evidence, however, supports that she feels compelled to lie to authorities at times due to her worry about her father or paternal grandmother getting into trouble. She was told to, or decided to, take on a false identity in order to circumvent the restrictions on visiting the father in jail on more than one occasion. As discussed above, Z has been exposed to inappropriate adult conversations. She was told by the father that he might suicide and the pressure of such conversations must be a cause of trauma for any person let alone a child. The father said insulting, belittling and highly critical things about Z’s mother to Z as the cause for him not being in a good mood. [122]  Dr D expressed her opinion as to the detrimental impact on Z arising from the content of the calls. I accept her evidence in this regard. It was submitted, and I accept that the cumulative effect of the conduct evident in the calls is likely to be psychologically and emotionally detrimental to Z as opined by Dr D. I note the evidence has not yet been tested but accept that it shows a lack of insight on behalf of the father and paternal grandmother as to the impact of their conduct on Z and is likely damaging to Z.": Josse & Vipen (No 4) [2024] FedCFamC1F 890.

• Stress to mother who cannot function if children spend time with father: "[132]  There is risk to the children should their mother become significantly stressed. The Family Report writer indicated that relapse into drug use is often connected to stressors, so that the person turns to substance abuse to cope. 31 [133]  There is a risk that should the children spend significant time with their father, the mother may become so stressed she is unable to cope with parenting four children, some of whom have special needs. Her youngest child is one year old. The children are at ages where they are dependent on their carer to meet their needs. They require the mother to be able to parent as well as she can. She cannot do that if she is significantly stressed by them being in their father’s care": Zemanova & Hoefler [2024] FedCFamC1F 675.

• the mother’s financial capacity to return to Australia with the children (s 60CC(2)(d)): Bajek & Bajek (No 2) [2024] FedCFamC1F 526, [19]. 

• Child autism - mental health of parents - insight: Morvand & Sleeman [2024] FedCFamC1F 894, [65]-[79] et seq. 

• Father's juggling of work and care: "[61]  The father has the parenting capacity to meet all the children’s needs. The mother was impelled to a concession of that ilk during cross-examination, despite her expression of doubts to the court child expert during their earlier consultation. The father’s parenting performance with the two eldest children has been exemplary. [62]  The only concern about the father is his capacity to take on the additional primary care of the youngest child, with all her attendant needs, while holding down regular employment. That was the court child expert’s only concern about his capacity.47 The father plans to take the first year off work to help the youngest child settle in his residential care, which he explained in cross-examination he can arrange through the structured use of parental leave and accrued long-service leave. He said he could negotiate with his flexible employer a phased re-introduction to full-time employment thereafter, but that plan is only formative at best.": Beltran & Preston [2025] FedCFamC1F 102.

• * mother unchallenged primary carer, has anxiety re facilitation of time with father, but finding that she has capacity to provide: "[145]  The mother is the unchallenged primary carer of the children. Save for the mother’s anxiety with respect to the facilitation of time between the children and their father, I consider that the mother has the capacity to provide for the needs of the children, including their emotional and intellectual needs. The father by his proposal for final orders,114 consents to orders that the children live with the mother. [146]  Relevant to the mother’s capacity to parent the children is whether such capacity might be compromised by the making of an order for the children to spend unsupervised time with the father. The Court Child Expert under cross-examination expressed a view that the mother would find it difficult to facilitate time given her belief that the father has sexually abused the elder child. Having said this, and on interview in August 2023, the mother recognised that she “may be compelled to present the children for time with [the father]” and she undertook a course to assist her “in understanding what she may be to do”.115 For these reasons, as well as the slow nature of increases in time spending between the children and their father, I find that the mother will be able to cope with a resumption of unsupervised time between the children and their father.": Maldonado & Maldonado (No 2) [2024] FedCFamC1F 885. 

• Inappropriate gift-giving at contact centre: "[76]  Mr Pointer gives evidence that the first supervision provider, TT Family Centre, terminated their services because of Ms Cheadle’s behaviour in relation to gift-giving in breach of the 2023 orders, which was described by TT Family Centre as placing X “in situations that are high conflict”. Even after a change of supervision service, Ms Cheadle continued to engage inappropriately in relation to gifts at changeover, as the supervision report for Sunday 25 February 2024, which is annexure MP-05 to Mr Pointer’s affidavit, shows. Such behaviour is further evidence of the continuing risk to X in the unsupervised care of Ms Cheadle. These matters also go to Ms Cheadle’s parenting capacity- which is a relevant matter pursuant to s 60CC(2)(d).": Cheadle & Pointer [2025] FedCFamC1F 27. 

• Inferences to be drawn for continuing care: "[74]  I am cognisant that in the long post separation period the mother has been largely solely responsible for the children’s needs. Implicit in the father’s position that the mother should at least continue to have care of the children for one half of the time moving forward, is an acknowledgement on his part that the mother is capable of and indeed that she has been meeting the children’s needs in every way (s 60CC(2)(d)).": Szalai & Szalai (No 3) [2024] FedCFamC1F 838. 

• Inferences to be drawn from agreement about parenting carer: "[24]  Because Y suffers from ADHD, the Court must consider her developmental, psychological and emotional needs under s 60CC(2)(c) of the Act. The maternal grandmother and the mother both raise an issue about the father’s capacity to provide for Y’s developmental, psychological and emotional and cultural needs (s 60CC(2)(d) of the Act). Given that the father agreed that Y should live with the maternal grandmother, who would have sole parental responsibility, it must logically follow that he does not have such concerns about the maternal grandmother. The Court identifies the importance recognised in s 60CC(2)(e) of the Act, of Y having the benefit of a relationship with her father, if it is safe to do so. As observed, however, there is no present relationship.": Sansone & Chancellor [2025] FedCFamC1F 59. 

• Father's unwillingness to participate in supervised regime: "[77]  During the hearing the father made submissions effectively challenging the independence of the report writer, the matters recorded in the Family Report and the recommendations made. Of particular concern was the father’s repeated submission that he wished to cross-examine the children about their views and the information contained in the Family Report and as recently conveyed to the ICL. This submission was of great concern to the Court. It indicated a lack of child focus on the father’s part, the prioritisation of the father’s needs ahead of the children’s, and an inability on the father’s part to remove the children from conflict. Importantly, it indicates that the father has no insight into the children’s needs (particularly their emotional needs) and vulnerabilities. These matters are of some significant concern to the Court (s 60CC(2)(d)). [78]  In the same vein, the cessation of the father’s supervised time spending, in part at least because the father appears unwilling to spend time in a supervised regime, again speaks to an inability on the father’s part to place the children’s needs ahead of his own (s 60CC(2)(d)).": Szalai & Szalai (No 3) [2024] FedCFamC1F 838. 

• Family violence - fathers lack of insight - father faiure to complete behavioural change course - inability to comprehend effect of his behaviour on children and the mother - IMPAIRED CAPACITY TO provide for children's developmental, psychological, emotional and cultural needs: "[143]  With respect to the father, I have already made a finding that the mother was subjected to family violence and that the children were exposed to such violence. When discussing the impact of the violence on the children, the Single Expert said as follows in her written evidence: The children were impacted by virtue of being exposed to their father’s chronic antipathy towards their mother, someone they love dearly, and not being able to understand this or know how to make it stop. This would have caused them to feel confused, uncertain and anxious.146 [144]  Against this background, it was alarming to me that when the allegations of family violence were put to the father by the mother’s counsel and when asked whether he had any explanation for why the mother might have been attending on domestic violence counsellors in 2019, the father simply said that the mother “had difficulties with people throughout her life and I became the blame for a lot of things”. Such an assertion is not supported by the evidence. [145]  On interview by the Single Expert, the father denied that he had verbally denigrated the mother or abused her saying instead that it was the mother “who did these things to herself; that she was the one who put herself down”.147 The father’s failure to acknowledge any abuse of the mother whatsoever was also alarming to me. [146]  The father’s inability to accept or comprehend the effect of his behaviour on the children and the mother is also highlighted by his failure by the time of trial to participate in a men’s behaviour change course. By her report published on 11 July 2023, the Single Expert expressed a view that before any time between the children and the father could progress to longer day time periods, the father ought to undertake and successfully complete a men’s behaviour change course.148 By his affidavit filed on 24 June 2024, the father said that he had “attended an intake interview for a men’s behaviour change program and I was advised that I do not need to complete the program, as it is not suitable for me”.149 There was no suggestion on the father’s written or oral evidence that he made any effort to advise the relevant organisation of the allegations being made against him. I accordingly find that the father has failed to acknowledge his behaviour, the effect of his behaviour on the mother and children or the steps, which he might take to persuade the mother and the Court that it is safe for the children to spend extended and unsupervised periods of time with him. [147]  The father’s lack of insight is also demonstrated by his conduct in relation to the proceedings, which occurred at the Local Court in mid-2023 (supra). Those proceedings related to the Apprehended Domestic Violence Order, which identified the father as the defendant. I have explained above the circumstances giving rise to the dismissal of that order in early 2024. During the hearing in mid-2023, the presiding magistrate asked the father’s counsel to consider whether the application for a final Apprehended Domestic Violence Order might be resolved on a without admission basis “or something along those lines”.150 The mother’s counsel responded to the presiding magistrate as follows: …We’re very concerned about her health, her mental health, not her physical health, her mental health, moving forward, based on what’s happening and having to give evidence is quite troubling to her, your Honour, so look, I agree. I think we need to perhaps have some discussions, if we can.151 [148]  On my reading of the transcript, it was apparent to all participants in the proceedings that the mother was significantly impacted in a negative way by the need to give evidence. Despite this, and when the presiding magistrate made a decision to adjourn the hearing to early 2024, the father’s counsel made an application for costs (albeit from the prosecution).152 It is my view that the making of such an application simply highlights the unreasonably critical manner in which the father views the mother whilst at the same time, ignoring recommendations, which are made by the Single Expert. My opinion coincides with the conclusion reached by the Single Expert that she did “not feel confident that the father currently has any insight into the impact of his past behaviours on either the mother or the children”. The Single Expert also said: Nascent insight and/or the willingness to recognise that you may have caused some harm, is a necessary precursor to engaging in counselling and courses in relation to behaviour change and…[the father] did not demonstrate this.153 [149]  My finding about the father’s lack of insight is also fortified by the father’s decision to include in his affidavit filed 24 June 2024 under the heading “My concerns about… [the mother’s] mental health” 20 paragraphs in which the father makes many and varied allegations with respect to his perception of the mother’s mental health difficulties. It is staggering that the father would set these allegations out in detail given his complete failure to acknowledge the perpetration of family violence by him or seek any treatment in relation to the same. [150]  For these reasons, and as a consequence of the father’s behaviour and his lack of insight in relation to the same, I find that the father has an impaired capacity to provide for the children’s developmental, psychological, emotional and cultural needs.": Fujioka & Fujioka [2024] FedCFamC1F 695.

• Judicial notice of security situations in foreign countries re capacity of parent to ensure safety: Petran & Petran [2024] FedCFamC2F 996, [59] et seq. 

• Non-payment of child support - internal processes of CSA bungle: "[119]  I do not propose to canvass any child support assessment issues as I consider that the non-payment of any child support by the father to the mother since October 2023 is not because of any reluctance on his part but rather is due to the internal processes of the Child Support Agency in relation to fixing the quantum of the assessment.": Gulcan & Petroni [2024] FedCFamC2F 1314.

• Financial capacity to carry out proposed orders - compliance of which though out and planned - track record of complying with orders: "[151]  The mother has the financial capacity to fund her initial proposal and the variations made thereto. She has calculated the annual costs of her spend time proposals and investigated how to defray the cost by booking in advance. She has a track record of complying with court orders and the evidence supports that she acknowledges and accepts that X’s relationship with the father should be maintained and fostered. [152]  I am of the view that the mother has a proven facilitative positive attitude to the relationship between X and the father and she will continue to be facilitative. The Court is not required to take a leap of faith in that regard if orders are made providing for X to live in Sydney.": Gulcan & Petroni [2024] FedCFamC2F 1314.

• Parental conflict with primary care giver: 

> "[127]  In relation to s 60CC(2)(d) of the Act, the Court is satisfied the mother has capacity to properly parent the daughters without input from the father, and to provide for their developmental, psychological, emotional, and cultural needs. The Court is firmly of the view that the father currently lacks parental capacity to properly meet the children’s developmental, psychological and emotional needs, due to his obsession with denigrating the mother, and his determination to disparage her. That denigration of the mother, if the children were exposed to the same, would cause greater harm to the children than the loss of a meaningful relationship with the father.": Ghani & Nassif (No 2) [2024] FedCFamC2F 1135.

> "[41]  Although the evidence is so far untested, it is sufficiently probative at this stage to demonstrate two forms of salient risk: first, by spending time with the father, even if only under supervision, the children are at risk of being exposed to the “family violence dynamics” which exist between the father and the mother (s 60CC(2)(a)(i)); and secondly, any orders which would require, or even permit, the mother’s proximity to the father while they exchange the children at a professional contact centre are liable to expose her to the same “family violence dynamics” (s 60CC(2)(a)(ii) and s 60CG(1)(b)). Fashioning orders to keep the parties well apart when they exchange the children at a contact centre could not entirely eradicate the mother’s vexation. [42]  The evidence currently suggests the mother could well be deeply emotionally disturbed by orders requiring the children to spend time with the father. That inference arises from the combination of the mother’s evidence and the corroborative opinion evidence given by the single expert. The inference is not foreclosed by the mother having been able to cope with a solitary chance meeting with the father at the shopping centre in 2023 or by her telling the single expert she would comply with any Court decision.39 The mother’s capacity to provide for the children’s needs is liable to degrade if she is required to ensure they regularly spend supervised time with him against her earnest wishes (s 60CC(2)(d)), which would be disadvantageous for them. [43]  It has long been recognised that, even if a non-residential parent does not pose an unacceptable risk of harm to the children, the genuine fears of the residential parent about the existence of such risk may so impinge upon that parent’s capacity and cause such disturbance in the residential household that interaction between the children and the non-residential parent should be curtailed in any event. The need to accommodate the children’s best interests overrides any sense of injustice between the parties (Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544 –546; A & A (1998) 22 Fam LR 756 at 768 –769; Hepburn & Noble (2010) FLC 93-348 at [43] and [49] –[64]). [44]  While it is far from ideal to temporarily perpetuate the father’s elimination from the children’s lives, two other considerations soften that detriment to the children. First, the single expert said the children have adapted well to their separation from the father.40 Secondly, there is no guarantee orders will eventually be made after a final trial to restore the children’s interaction with the father. It would likely be upsetting to the children if they are re-introduced to the father on an interim basis, only for the father to again be eliminated from their lives. It would be less disturbing for them to be deprived of interaction with the father in the interim with the prospect that their relationships with him will later be restored on a permanent basis. There is nothing to suggest the mother is or has been damaging the children’s relationships with the father, either deliberately or inadvertently.": Bustillo & Bustillo [2024] FedCFamC1F 556. 

• Supervised time inflicted on mother - unreasonably and unduly punished: "[32]  I must take into account the capacity of each person who is proposed to have parental responsibility to provide for the child’s development, psychological, emotional and cultural needs. In this regard, I place significant weight on Ms Lyon’s proposal, notwithstanding the events that have been inflicted upon her, to propose that the child spends substantial and significant time, in the ordinary sense of those words, with her father. I also take into account the very long period of time when I am satisfied it was unreasonable and unduly punishing of Ms Lyon for there to be no time, and then a very long regime of supervised time before Ms Lyon was able to obtain the assistance of the court process. [33]  That Ms Lyon needed to undertake such efforts to be able to obtain a proper relationship and time with X and in the circumstance where there is no evidence whatsoever of Mr Seger promoting unsupervised and regular time with X for such a period between October 2021 and late 2022, in my view, demonstrates that Ms Lyon has a significantly greater capacity to provide for the child’s psychological and emotional needs of having a strong relationship with both parents. That matter contends very strongly for the orders that Ms Lyon seeks.": Lyon & Seger [2025] FedCFamC2F 256. 

• Gradual re-introduction: "[51]  The applicant well understood the child’s re-introduction to her would need to be gradual to be successful.38 She had the sagacity to realise she should not push the child too hard and fast when he declined to meet with her in the company of the family consultant.39 She seems equipped to understand and cater to the child’s emotional needs when they spend time together.": Garrod & Harbig (No 2) [2024] FedCFamC1F 756.

• ** Different pareting styles, but finding that each were capable [36], equal time: "[34]  The orders I am being asked to make by consent seek the involvement of a parenting coordinator. The role of a parenting coordinator seems to me to be designed to keep parents who have the capacity to be focused and directed to their children’s best interests, on track. Some parents, sadly, either by way of their own upbringing, by unfortunate events in their life either as an adolescent or as a young parent, have deficiencies in their capacity to parent. [35]  I do not regard this case for these parents as identifying any such significant deficiencies. That means that if they keep their eye on the ball, which is the best interests of these children, there is every opportunity that the adjustments, which are necessary in each household no doubt, to ensure these children move to and from school, from one parent’s home to the other parent’s home, can be within a range of normality. [36]  There will be differences because these are different parents who parent differently. However, they are capable, it seems to me on all the evidence, including the assessment by Ms P, of parenting in a fairly consistent manner. Communication is the key. [37]  Parenting apps are merely a facilitator of communication to hopefully communicate in a very basic way, respectfully, with insight into the needs of their children and showing that they respect the other parent’s important role in the life of their children. A parenting app does not cure that, it just makes it easy for parents. No-one suggested parenting is easy. Being a good parent is hard. These parents will be tested in this new regime. [38]  I am encouraged by all the submissions I have heard, to have the hope that they can achieve that level of cooperative and respectful communication that can ensure these children can move easily between one household to another; and from school into home. [39]  The order for equal time will ultimately, I think, fairly allow the mother, importantly, as she wishes, to continue to encourage the children’s identification as Aboriginal children to be maintained and explored. It may not get the same treatment in the father’s home as he is not Aboriginal. That is to be expected to some degree, but there is nothing in the material I read that suggests to me that he does not respect the Aboriginality of these children and understands how important it is to them and their identity. ... [41]  These orders are a testament to both parents saying to this Court that whilst they may still have some concerns about the other parent, their concerns about that other parent are outweighed by the benefit to these children of having both of these parents sharing equally in the life of these children. Any ongoing denigration of a parent post today — I cannot do much about what has happened in the past, would be a clear indication, it seems to me, that the parties before me today have not entered into these orders with complete and honest and genuine commitment. Unless that is exercised daily, often by saying things that you might not absolutely believe, but you know you should say, but more importantly not saying something that you feel that you should not say, if you cannot learn those lessons, then Y and X could well be consigned to ongoing management of parental conflict which will be the most debilitating issue for them to deal with. [42]  Parental conflict is created by parents. Parental conflict is stopped by parents. These parents, by these orders which I will make because I do believe they are in the best interests of Y and X, are based on the parents actually changing the way they have acted to date and demonstrating to their children how important it is to these children that they have a loving mother and father in their life who are both available and who want the best for them.": Luxton & Rodley (No 3) [2024] FedCFamC1F 452.

(2)(e) Benefit to children having a relationships with both parents, and other people, when it is safe to do so

• similar considerations to s 60CC(2)(c).

• Inference to be drawn from parties agreement on this factor: 

> "[106]  It is agreed between the parties that the children benefit from having a meaningful relationship with each of them. The Family Report writer set out extensively in her Report, and which has been set out above, the positive interactions between the children and the parties. Both these parents have real strengths with varied interests. They are well educated and have an opportunity to nurture talented children if they choose to focus on that.": Kelly & Hutchens [2024] FedCFamC1F 662.

> Where not in dispute: "[160]  It is not in dispute X has a close relationship with each of his parents and will benefit from being able to have a relationship with each of them and members of his extended family. There is no suggestion it is not safe for him to maintain those relationships.": Werner & Manz [2024] FedCFamC2F 1079.

• "[80]  Section 60CC(2)(e) requires me to consider the benefit to the children of being able to have a relationship with each child’s parents and other people who are significant to the child when it is safe to do so. The words “when it is safe to do so” are critical to the construction of this subsection. Whatever benefit may inure in the benefit to the children in being able to have a relationship with the child’s parents is subject to the phrase “when it is safe to do so”. In other words, only when it is safe for the child to have a relationship with a parent is the court required to consider the benefit to the child of being able to (inferentially, have) a relationship with the child’s parents. [81]  Here, similar but not identical issues fall for consideration under s 60CC(2)(e) as are pertinent to the matters relevant to s 60CC(2)(a). In the subsection s 60CC(2)(a) the noun “safety” is used whereas in s 60CC(2)(e) the adjectival word “safe” is used in the phrase “it is safe”. Each invokes a consideration of the concept of being safe, that is, shielded, guarded or protected from harm or danger. The words “safety” and “safe” are not defined terms.": Shinohara & Shinohara (No 2) [2025] FedCFamC1F 122. -- distinction from s 60CC(2)(a). 

• Shuttling between cities Melbourne - Sydney - former s 60CC(2)(a) jurisprudence is still applicable: "[154]  The Explanatory Memorandum to the Family Law Amendment Act 2024 (Cth) provides in relation to section 60CC(2)(e): This consideration recognises the importance of parental relationships, and relationships with other people who are significant to the child (such as grandparents or members of a broader kinship group) to a child’s wellbeing. Where appropriate and safe, parenting orders that ensure children benefit from a close and nurturing relationship with their parents should be made. No one particular arrangement will work for all children or all families, whose needs are diverse and will change over time. However, where safe and appropriate, most children benefit from spending time with their parents not only at the weekends and in school holidays, but also during the school week, and will also benefit from allowing each parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child.34 ... [159]  In Rochford & Fitzhugh [2019] FamCAFC 218 (Rochford), the Full Court discounted the view that the only way a “meaningful” relationship can be maintained is if parents live in geographical proximity. The Full Court observed a long-distance relationship can nevertheless be a meaningful one and “whilst not optimal for the purpose of maintaining a meaningful relationship, might in light of the practicalities, nonetheless be adequate for that purpose”.36 [160]  Whilst the Full Court in Rochford was referring to the section 60CC consideration prior to the 2024 amendments to the Act of the benefit to the child of a “meaningful” relationship, there is nothing to suggest that the 2024 amendments require the court to make orders to ensure that there is an optimal “close and nurturing” relationship. I consider that the Full Court’s observation in Rochford in relation to a “meaningful” relationship is equally applicable to a “close and nurturing” relationship.": Gulcan & Petroni [2024] FedCFamC2F 1314.

• Only biological parent: "[53]  There is obvious benefit to the child being able to restore his relationship with the applicant, who is the only biological parent in his life. [54]  There is also obvious benefit in the child meeting and forging a relationship with his half-sister and in recovering his relationships with similar-aged maternal cousins, maternal grandparents and other extended members of the maternal family.": Garrod & Harbig (No 2) [2024] FedCFamC1F 756.

• Factor goes to love, cherishing, maintenance of familial bonds, how active parents can be in care: "[153]  It is evident that both of X’s parents love and cherish him and that he loves both of them. It is crucial that X is able to maintain his loving relationships with both of his parents and he will derive significant benefit from so doing. On either party’s proposal, X will spend substantial time in the care and household of each of his parents and each will be actively involved in raising and caring for him. [154]  In the Mother’s household, X has his half-sister, B. B spends approximately half her time living with the Mother and half with her father. This is an important relationship for X.": Luga & Hayes [2025] FedCFamC2F 6. 

• Risk factors from parent going to no benefit to child to have contact: "[125] ... The inability of the father to regulate his emotions and prioritise Z’s needs, supports the need for supervision, failing which he and the paternal grandmother will likely continue in an unfiltered and insensitive way to expose Z to inappropriate and damaging comments. This needs to cease.": Josse & Vipen (No 4) [2024] FedCFamC1F 890.

• Supervision by grandparents while in care of father - in-home supervision regime working well: Galvin & Pacotto [2024] FedCFamC1F 582, [157]-[159]. 

• Finding of past drug use: "[97]  In relation to the issue of the benefit to the child of having a relationship with the father, the family consultant observed at [100]: 100.The single report of the professional supervisor provides some support for [X] having a formed and warm relationship with his father. If the Court were to find that [X] had been neglected in his father’s care, that would not necessarily mean he does not love his father or that there was no warmth or affection. It is well known that children who have been neglected or even abused can still love the parent who has abused. [98]  The mother and ICL propose that there is time as agreed and that the time be supervised. They also proposed that the time be subject to the father provide a clear recent urinalysis. [99]  The evidence supports a finding on the balance of probabilities that the father has engaged in illicit drug use in the past. I am satisfied that it is appropriate for the father to provide recent urinalysis tests before spending time if the parties reach agreement as to time being spent.": Massimo & Lain [2024] FedCFamC1F 891.

• Extended family - no existing relationship: "[115]  While it may be beneficial for X to know the extended paternal family, who are also his extended maternal family, there is no evidence of any established relationships with such relatives. The mother certainly does not appear to have been supported by them, despite the fact that she has very limited extended family in Australia.": Rahaim & Sadri [2024] FedCFamC2F 1502.

• Bad influence - pornography use - risk to daughters: "[128]  In relation to s60CC(2)(e) of the Act, the children have not expressed a wish to have a relationship with the father, and whist, ordinarily, there would be a benefit, the circumstances of the present case are such where it is apparent that any benefit is outweighed by the emotional and physical harm that would be done to the daughters, if a relationship with the father were permitted to continue. The Court has also taken into account the father’s own evidence in relation to his use of pornography, and the admission he made that he would not let a child spend time with a parent who was addicted to pornography. The pornography addiction of the father is a further real and significant risk of significant emotional and psychological harm, if the children were to spend time with the father. The Court does not accept the father’s evidence that he is not addicted to pornography. The Court accepts the mother’s evidence, both in relation to the conduct and behaviour of the father throughout the marriage, which constitutes family violence, and in relation to his pornography addiction.": Ghani & Nassif (No 2) [2024] FedCFamC2F 1135. 

• "[62]  ... the risks to the children posed by the father must be given greater weight than the benefit they accrue from a meaningful relationship.": Emmett & Boon [2023] FedCFamC1F 620.

• * unsupervised time, avoid child having prejudicial views towards the father being only "safe" when supervised: "[149]  For the reasons set out above, I have concluded that it is in the children’s interests to spend unsupervised time with their father. The making of such an order will also avoid the risk that the elder child may only regard the father as “safe” in the context of supervision and that her relationship with the father is necessary circumscribed by the boundaries of supervised contact.116 I agree with the opinion expressed by the Court Child Expert that in circumstances where I have found that the father does not represent an unacceptable risk of harm to the children, it is necessary for their relationship with the father to be normalised without delay. I am satisfied in progressing in this manner when neither party by his/her affidavit material or their oral evidence sought to argue that supervised time between the children has been anything other than successful.": 

• deceased mother, father in jail, application by aunt: "[19]  Subsection 2(e) does not, sadly, apply [to the parents]. It is about the benefit of a child being able to have a relationship with the child’s parent; tragically, the mother is no longer available to the children and the father is in gaol. But, it [the subsection] goes on to other people who are significant to them. I am comforted to read that the maternal aunt and the maternal family will envelop these children in the love, support and nurture they need.": Aram & Ingeborg [2024] FedCFamC1F 412. 

> See also, Stafford & Perry [2025] FedCFamC1F 29. 

• Default assumptions about benefits: 

> "[17]  These following provisional findings were made in respect of the children’s best interests in the anterior judgment: ... 62.Assuming the father does not pose any threat to the children’s safety, their emotional needs are best met by their enjoyment of healthy relationships with him (s 60CC(2)(c) and s 60CC(2)(e)). Ordinarily, children benefit from the development of good relationships with both their parents (U v U (2002) 211 CLR 238 at 285–286).": Bajek & Bajek (No 2) [2024] FedCFamC1F 526.

> "[42]  There is no evidence as to the views of the children (s 60CC(2)(b)). I am satisfied that it is to the benefit of the children to have a relationship with their father (s 60CC(2)(e)) provided it is safe for them and the mother to do so (s 600CC(2)(a)) and does not compromise the mother’s capacity to provide for the children’s developmental, psychological, emotional and cultural needs (s 60CC(2)(d)).": Hannigan & Hannigan [2024] FedCFamC1F 806.

> "[67]  There is no doubt, and it is not contested that there is a real benefit in the child having a meaningful relationship with both parents. [68]  The Child Court Expert, Mr M gave significant evidence during cross examination by the ICL in respect of the strength of the child’s relationship with the Father as follows: ICL: And you obviously observed a very strong bond between the Father and [X]? [Mr M]: Yes, and probably one of the strongest bonds I’ve seen for a boy who hasn’t seen his Father for eight months. It overwhelmed me, your Honour, if I could say that. I mean, that’s probably why I, sort of, went straight to alternate weekend again. I thought, well, [X] has been denied this relationship with his Father, partly by his Father’s own refusal to accept alternate weekend during the daytime, which I thought he should have just maximised the time he could spend with [X]. Instead, he sort of held his ground that no, he wanted overnight, and [X] was denied a relationship with him for eight months ICL: And that would have had quite an effect on [X], wouldn’t it, that length of time not having any time with his Father? [Mr M]: Yes, yes, and I would have expected him to be a little hesitant seeing his Father again, and you know, just sort of work his way in. But he rushed to him straight away, and it’s like they picked up a conversation as though they had just seen each other the week before. I was just really impressed by that bond. (Transcript 22 August 2024, page 232 lines 7-22)": Geiger & Geiger [2025] FedCFamC1F 34.

> "[128] The Court accepts that the mother has made reasonable attempts to facilitate and encourage the children’s relationship with the father through FaceTime calls. The children have continued to express a reluctance to speaking with their father. [129] The evidence does not support a finding that the father has the insight and capacity to have a meaningful relationship with the children. [130] There is limited evidence in respect of the children benefiting from having a relationship with the father, but any such benefit comes at a risk to the children.": Wells & Wells [2024] FedCFamC2F 1516.

former (2)(a) jurisprudence

• See also, 'meaningful' relationship (former (2)(a) factor), although outdated jurisprudence: 

> "[21] ... The objects use the words “meaningful involvement”. ... [24]  The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further. [25]  The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”. [26]  What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.": Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520. 

> 'meaningful' does not require there be an optimal or perfect relationship: "68. Brown J’s judgment in Mazorski contains, in my view, a well researched and thorough exposition of the amendments, with reference to the Explanatory Memorandum, and the legislation itself.  Her Honour’s discussion is helpful and her conclusions about s 60CC(2)(a) are cogent. 69. At paragraph 24 of her Honour’s reasons she sets out the dictionary definitions of “meaningful”, and then explains her conclusions on the effect of the term “meaningful relationship”.   I respectfully agree with her Honour’s conclusions at paragraph 26 where she says: What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant. 70. In Godfrey & Sanders (2007) 208 FLR 287 Kay J said, in the context of discussing a relocation proposal which involved the father spending less regular periods of time with his child than he was at the date of hearing, “even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.” 71. The question then raised in this appeal is - Did his Honour appropriately consider, give reasons and craft orders to enable these children to have a relationship with their father, which was, even if not optimal, important, significant and valuable to them, or were orders which would have fostered such a relationship, inappropriate because of risk of physical or emotional harm to them?": Moose & Moose [2008] FamCAFC 108. 

-> aff'd, Mattina & Falconi [2024] FedCFamC2F 931, [172]. 

• Consideration of this factor is prospective (former (2)(a) jurisprudence): "[117]  Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a "prospective" one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child. [118]  It appears to us that there are three possible interpretations of s 60CC(2)(a): (a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made ("the present relationship approach"); (b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents ("the presumption approach"); and (c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents ("the prospective approach"). [119]  We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial. [120]  We reject the interpretation in subpara (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language. [121]  In coming to our conclusions we accept as appropriate the interpretation of "meaningful relationship" set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C. [122]  In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.": McCall & Clark [2009] FamCAFC 92. 

(2)(f) anything else that is relevant to the particular circumstances of the child.

• "[84]  Section 60CC(2)(f) is a catch-all provision requiring the court (as a mandatory obligation) to consider anything else that is relevant to the particular circumstances of the child. That seemingly contradictory stipulation commanding the court to consider something it considers relevant (but not specifying what that matter may be) appears to call for the court to search widely so as to address any issue that arises in the specific circumstances of an individual child. Here, that includes the elimination (as near as possible) of emotional dysregulation in the younger child and the elimination of stressors that give rise to self-soothing behaviour in the older child.": Shinohara & Shinohara (No 2) [2025] FedCFamC1F 122.

• "[172]  The explanatory memorandum to the Amendment Act explains in respect of section 60CC(2)(f):27 This factor is a necessary safeguard to account for the myriad of circumstances that arise in family law proceedings. It is not intended or expected that the court would take into account trivial or inconsequential matters in determining whether there is ‘anything else’ that is relevant to the particular circumstances of the child in making a decision of what is in the best interests of the child. [173]  I will now turn to a number of matters relevant to my determination which are not specifically identified in sub-sections 60CC(2)(a) to (e), albeit they may be partly encompassed within or overlap with those considerations.": Werner & Manz [2024] FedCFamC2F 1079.

> in this case: mother's freedom to live wherever, wishes to live in Country B with child, impact on the happiness of the mother, personality profile, risk of retaining child overseas, relocation, legal safeguards.

• ?catch-all for considerations that were previously called primary and additional considerations: "[30]  This is the first judgment I have given in some form that adopts the new pathway. I do not expect this to be a treatise of the new legislation. One will only observe in time how long it takes for judicial officers and practitioners to adopt in s 60CC(2)(f) everything that was previously in either the primary or additional considerations. Be that as it may, I will shortly deal with these factors.": Luxton & Rodley (No 3) [2024] FedCFamC1F 452. 

Examples

• family violence - conflict: "[40]  I am desirous of making order that will avoid the possibility of further conflict. I am satisfied that the orders I propose to make to the extent possible achieve that outcome.": Whitehall & Hauser [2024] FedCFamC1F 849.

• Conflict, mistrust, poor coparenting relationship - Father’s fixed views and position as an authority on the Mother - Fathers' insight: Luga & Hayes [2025] FedCFamC2F 6, [155] et seq. 

• Ongoing criminal proceedings, where litigation of 60CC(2) factors can impede on accused father's right to silence - accused of serious offence against mother - death of mother: Stafford & Perry [2025] FedCFamC1F 29 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F/2025/29.html>. 

• Non-permanent housing (eg, not homeless or living in a car), but not unacceptable risk: "[54]  Whilst raised as a concern but not something that was rising to the level of unacceptable risk, the Father did raise the question of the Mother not having permanent housing. The Mother’s evidence and submissions confirmed that she does live in rental accommodation in Region D. The Father is concerned the Mother was going to relocate unilaterally with the child to Victoria, and the Mother’s evidence and submissions made on her behalf by Mr Casey today have been that the Mother does not intend to relocate outside of Region D but that she will need to find rental accommodation. [55]  An Order was made by consent that the Mother is going to inform the Father of the area in which she is going to move to. It was confirmed that, in the past two years, the Father has not had the exact address of the Mother but has known the area in which she has lived, and I am satisfied that, moving forwards, the Mother notifying the Father of the area where she lives is an appropriate one. [56]  Again, the Mother’s concern about the Father’s mental health is, in my view, satisfied by the letter from the Father’s GP. The concern the Mother had over the Father’s use of drugs has been answered in respect of the urine drug test and noting also that the Mother has, for the past two years, been confident leaving the child for significant periods of time overnight with her Father. [57]  Again, this does not rise to the level of an unacceptable risk and certainly was not submitted to me that it was an unacceptable risk, but it is a matter that I have taken into account in the making of these orders.": Higgins & Best [2024] FedCFamC2F 995.

• Exposing children to parental conflict: Cizik & Jandova [2024] FedCFamC1F 796, [303] et seq.               Jing Zhi Wong

• workaholic parent - no insight: "[35]  The father posited his case on the basis that his work roster was of pre-eminent importance, such that the entire family was bound to observe it, but that is not so. The maintenance of his employment is an important consideration, but the paramount consideration is the children’s best interests. Their best interests are not served by enduring the uncertainty of spending time with the father whenever it unpredictably suits him for them to do so. [36]  As it transpired during submissions, the father can ensure he has two weekends per month during which he will be free of work commitments. The children can spend time with him on those weekends in regular cycles, achieving the dual objectives of giving the children reliable routine and not impinging upon the father’s work commitments. [37]  The father can also take two weeks of leave from employment each year during school holidays when he will be available to care for the children.": Danchev & Murgia [2025] FedCFamC1F 190. 

• father absent for 6 years - no insight into effect on child - emotional safety of child: "[116]  The father has not demonstrated any insight into the effect on X of his limited relationship with the father, he has demonstrated no accountability for the loss of that relationship, and he has demonstrated no assurance that X will be emotionally safe in his care. [117]  Despite proceedings being on foot for over eighteen months, the matters raised in the Child Impact Report and the Family Report, the father has not demonstrated that he has taken any steps to address the matters which were raised in those two reports.": Rahaim & Sadri [2024] FedCFamC2F 1502.

• Failure to comply with procedural orders - recalcitrate: "[138]  The father is the applicant in these proceedings. He has time and time again failed to comply with procedural orders made for the purpose of progressing these proceedings. Ultimately, and notwithstanding that he is the applicant, the final hearing occurred on an undefended basis against him. [139]  The Court notes that the father’s continuation of the proceedings, in the face of X’s clear views and level of maturity, and his recalcitrance in terms of procedural orders might be indicative of the father putting his own needs above those of the child.": Rochester & Aubrey [2024] FedCFamC2F 1501.

• availability of grandparent ability to supervise: "[82]  As referred to earlier, it was agreed by the parties that the paternal grandmother, if available, will supervise the father’s time with the children. She was present in Court and gave both a written undertaking and orally confirmed to me her willingness to take on the role of supervision and understood its obligations and responsibilities. I accept her evidence. I accept that she is a supportive mother and grandmother, and I accept that she will act in the best interests of her grandchildren. [83]  No issue was taken in reply to the submission that the paternal grandmother, in her own affidavit, had given evidence that she was a significant support to her son and was willing to travel to Australia to support the relationship if necessary. [84]  The requirement for supervision, provided the father is compliant with the agreed testing both CDT and for illicit substances, will cease after the 15-month period. For the father to spend time as supervised by his mother until that occurs has additional benefits, including for the children to spend time and develop their relationship with the extended paternal family and that supervision can occur in an environment that is less artificial and costly than a supervision centre. The fact that there is the availability of the paternal grandmother to supervise such time is a positive, whichever order is made.": Morvand & Sleeman [2024] FedCFamC1F 894. 

> BUT QUERY, if they know of the causes for risk factor in the first place, risk of 'behind closed doors' condonation: "[166]  The mother’s concerns, as expressed to the Single Expert, turned out to be somewhat of a premonition. The evidence of each of the paternal uncle and the paternal grandmother demonstrated that each of them do not understand the full extent of the allegations made by the mother against the father. Further, insofar as they expressed any understanding of the allegations, neither the paternal uncle nor the paternal grandmother considered there to be any merit to the same. Under cross-examination by the mother’s counsel, the paternal uncle gave the following evidence: Mother’s counsel: What do you understand the allegations [against the father] to be? Paternal uncle: False. Mother’s counsel: Yes, but what do you understand them to be? Paternal uncle: Violent or something and bad with the children. Mother’s counsel: Any more specifics? Paternal uncle: No. [167]  The paternal grandmother’s evidence was similar. She gave oral evidence to the effect that she could not conceive of a situation where the children might be at risk in the care of the father. She further said that she could not accept that the situation “behind closed doors” might have been different. [168]  It was also incredibly unhelpful in my view that the paternal uncle and the paternal grandmother sought to comment on the mother’s mental health and/or criticise her parenting of the children in their affidavit material. Under the heading “My observations of … [the mother] as a parent”, the paternal uncle considered it appropriate to provide his assessment of the mother’s mental health.159 The affidavit of the paternal grandmother was also replete with criticism of the mother, the mother’s mental health and the mother’s parenting capacity.[169]  In circumstances where I have formed a view it is necessary to make orders, which do not undermine the mother’s parenting capacity, I will not make orders, which place the paternal uncle or the paternal aunt into the role of a supervisor.": Fujioka & Fujioka [2024] FedCFamC1F 695.

• Stability - care: 

> "[37]  The catch-all provision of s 60CC(2)(f) is that the Court must consider: “Anything else that is relevant to the particular circumstances of the child.” [38]  In my view, this is a significant factor. In August 2023, for reasons delivered, the Court sought to put in place arrangements that would correct what the Court found to be, contrary to the children’s best interests, the failure by the mother to support the children having a relationship with the father and the children’s embracing of that reluctance, if you like, in the way that they treated the father and engaged with him. It was a matter of great concern to the Court, and one earlier identified that the children were not at school. [39]  By January 2024, with, if not the consent, at least little opposition from the mother, who acknowledged her difficulty in having the children attend school, the change of residence occurred and the adjustment to living in the father’s home — a different home, where his parenting style is different — was given some time to settle down by reason of supervised time arrangements. The matter came back in April 2024, and the Court was confident enough, for the reasons articulated, that whilst the children would maintain their stability living in the father’s care, the mother should have time with the children on an unsupervised basis, and that was proceeding. [40]  The relevance is stability. I am concerned that on the trajectory which is now being developed, these children who had gained stability in the father’s care, in my view, will now lose that stability. However, there is a risk, in my view, particularly with Y at her age, that whatever allegation she is making against the father might be repeated to other authorities if the child is returned to the father’s care. I appreciate that is a broad speculation. In saying that, I do not in any way say that I make a finding that the mother has, opportunistically or otherwise, persuaded the children to make allegations in the last month or so that do not appear to have been made to anyone ever before, with the serious context that the police apparently believe they deserve. ... [48]  Let it be clear, the reasons why I am making this order in these terms is I believe the stability of these children, which is significant to their care, development, and welfare, should not be disrupted on the current evidence of mere allegations without any context or particulars for the three boys, but must, both to safeguard the father and to consider the nature of the allegations that might be true in some way raised against the father by Y, is why I have left Y in the mother’s care.": Tilmund & Tilmund (No 3) [2024] FedCFamC1F 673.

> Interim basis: "[76]  Another significant matter that arises pursuant to section 60CC(2)(f) is stability. These children have been through an awful lot since separation. In the leadup to separation, they have witnessed the parents engaged in high level conflict, at times seemingly violent. The mother has re-partnered since separation with a fellow by the name of Mr Q, about whom I know practically nothing, and he does not even get a mention in her material. The mother is going to be moving out of the property at K Street that she has been living in, so that will be yet another change of address for the children. [77]  If the mother has her way, then I have no idea, frankly, where either X, who does not want to leave his current school, or Y, will end up going to school. I simply do not know. Nor does the mother. What she is effectively seeking is a carte blanche order to be able to live where she wants to live within the City O area, and the children will simply have to fit in with that. [78]  The mother has a job in the City O CBD. There has always been quite a significant amount of travel required for the children to attend school. For a start, they go to three different schools. The distance between X’s school at Suburb G and Y’s school at Suburb E also involves some driving time. The fact of the matter is that a certain amount of driving time isbaked into the existing schooling arrangements. [79]  I am mindful of the decision in Re G: Children’s Schooling (2000) FLC 93-025 and of the mother’s right to freedom of movement and to live where she wishes, particularly if she is only moving to somewhere else in the City O area. But equally, I am not confident in giving the mother carte blanche when it comes to parental responsibility, particularly noting the complete uncertainty as to where she will in fact be living if she has her way, and noting some of her own behaviours to which I have referred, particularly, for example, the text messaging between herself and Z. [80]  The Court cannot be asked on an interim basis to uproot these children — X particularly against his wishes, who has clearly had a difficult time at school as it is — and simply place them wherever the mother deems fit. I will not make such an order on an interim basis. I consider that it would be tantamount to making a final order on very limited evidence, because the fact of the matter is that the change for the children’s schooling will be very significant if the mother has her way. I consider a much more appropriate child-focused and best interests outcome to be that the mother chooses to live somewhere where she will be able to continue to facilitate the children’s attendances at their current schools. This will involve a degree of sacrifice for her. Good parenting is sacrifice. It should not be the children who make the sacrifice. It should be the parents. ... [85]  Likewise, the mother’s proposal that the father simply spend an alternate Saturday pays lip service to the needs of the child to have a relationship with the father, and to the fact that her older brother Z spends half the time with the father. It also pays lip service to any risk factors that exist in the mother’s home.": Garnand & Garnand [2024] FedCFamC2F 971. 

• Step-siblings, where established relationship: "[143]  Each of the parents has something different to offer X, in the mother’s home it is likely more one-to-one time, and in the father’s home, it is the benefit of a busy household with half-siblings.": Weber & Trung [2024] FedCFamC2F 1467.

• Child's financial needs: "[156]  Financial needs are not listed in s 60CC(2)(c) and (d) but meeting a child’s needs often costs money — for example, the supports for X’s developmental needs through his neurodiversity. Financial needs, if excluded from (c) and (d) could nevertheless be considered under s 60CC(2)(f) which is a catch-all, anything-else-relevant subsection.": Briedis & Saar [2025] FedCFamC1F 91. 

• Coercive orders sought: "[180]  The submissions of the ICL have carefully addressed the problems inherent in many of the orders proposed by the second and third respondents. The Court accepts those submissions, in particular that some of the orders sought were of a coercive nature, for example, by requiring the mother to respond to any text messages by either one or both of the respondents in a timely manner, in circumstances where they were seeking orders for time once per month, for the child to live with the mother, and for parental responsibility to be made in favour of the mother. [181]  The evidence has not established any acceptance by the second and/or third respondent of any emotional consequences that have impacted X, or may yet impact X, as a result of the father’s behaviour. [182]  It is for [each of?] the respondents to prove their case. They have a positive obligation to put before the Court evidence which would establish the relevant matters on the balance of probabilities. The orders they seek are not a given or the starting point; it is not for the mother to prove that the orders which they move the Court to make are not in X’s best interests. It is for them to prove that such orders are in X’s best interests. They have not done so.": Duvall & Duvall [2024] FedCFamC2F 1395.

• consideration of history of conflict, prevention or minimization of future parental conflict: 

> "[113]  In relation to s 60CC(2)(f) of the Act, the Court has taken into account the history of conflict between the parties where there have been competing recovery applications and family violence in the presence of the child, both at the time of the incident in giving rise to the ADVO and at the time of the dispute in relation to overseas travel and make-up time. The Court is satisfied that the orders proposed by the mother and ICL are most likely to prevent any future dispute in relation to the child and are in the best interests of the child.": Emmet & Bernardo (No 2) [2024] FedCFamC2F 1808. 

• relocation: 

> Internationally to Australia: "[39]  The mother resists being forced to re-establish the children’s residence in Australia. Her desire to remain with the children in Country B must only yield if the children’s best interests demand that they live with her in Australia instead. Parents enjoy the entitlement to as much residential freedom as is compatible with their obligations pertaining to their children (U v U (2002) 211 CLR 238 at 262; AMS v AIF (1999) 199 CLR 160 at 223–224 and 231–232; Sampson v Hartnett (No.10) (2007) FLC 93-350). [40]  But the children’s best interests do not demand their return to live in Australia. They can recover their relationships with the father if they communicate with him regularly and, subject to him travelling to Country B, they are able to see him regularly. The paternal family apparently live in Country B in relative proximity to the maternal family, so the father is able to stay with his own family if he wishes to travel to Country B periodically for visits with the children. The cost of airfares is the only real expense for the father, but he sold the former family home in Australia and kept the net proceeds of sale so he has the capital to cover that expenditure.": Bajek & Bajek (No 2) [2024] FedCFamC1F 526.

> between Australian cities: "[179]  The mother holds a deep desire to relocate. If the court does not accede to the mother’s proposal, her aspiration and hope to advance her career and be with her family will be lost. It is highly likely that the mother will harbour some bitterness towards the father if she is unable to relocate with X She will most likely be unhappy. As much as she will attempt to conceal those feelings, they may nevertheless inevitably be transmitted to X in a way likely to affect his best interests. This more probably than not will have an impact on the positive co-parenting relationship the parents have attained. The mother can foresee a more positive life for herself and X if they are able to move. [180]  The mother will be confined to living in a place in which she does not wish with far less support from her family than if she lived in Sydney. She will be required to find alternate employment with such employment being able to provide her with a commensurate level of income to continue primarily financially providing for X, given the disparity in the parents’ income. [181]  The mother has been resilient to date. There have been no adverse impacts on her level of parenting capacity. She should not be penalised for showing such fortitude. [182]  The authorities are clear that the mother’s right to choose where she lives and works should only be interfered with if X’s best interests are so adversely affected so as to justify that interference and then the interference is legitimate only to the extent that is necessary to avoid such adverse effects.42 [183]  Having regard to my assessment of all of the section 60CC considerations and the proposal of the mother, I am satisfied that X living with the mother in Sydney does not so adversely affect his best interests so as to mitigate against a relocation which provides the mother with the ability to exercise her freedom of movement and live and work where she chooses.": Gulcan & Petroni [2024] FedCFamC2F 1314.

(2A)(a) Family Violence - any history of family violence, abuse or neglect involving the child or a person caring for the child

• Fundamentally as assessment of risk that family violence involving the child has to the child - involves a two prong assessment of 1) prediction of likelihood of occurence of harmful events, 2) severoty of the impact of those events: 

> ** "[80]  In addition, and when considering arrangements that would promote the safety of the child and each person who has the care of the child (whether or not that person has parental responsibility for the child), the Court must consider the following matters (s 60CC(2A)): (a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and (b)any family violence order that applies or has applied to the child or a member of the child’s family. [81]  The assessment of risk underpins the Court’s assessment of the child’s safety, and to that end in Deiter & Deiter [2011] FamCAFC 82 at [61] (“Deiter”), the Full Court of the Family Court (as it then was) identified: The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements — the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events…": Vaughan & Vaughan (No 2) [2025] FedCFamC1F 129.

> aff'd Edhouse & Edhouse (No 4) [2024] FedCFamC1F 647, [59]. 

• SEE ALSO s 60CG jurisprudence above [E-F]. 

• RELATION to s 60CC(2)(a), (2)(b): "[177]  The matter now before me, and not unusually, rests to a large degree on a weighing and balancing of the evidence in respect of the two “primary considerations” at s 60CC(2) although a number of the additional considerations remain relevant and there is mandatory consideration of all subsections. The Primary considerations are: (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. [178]  In broad terms, the father’s case argues towards subsection 2(a) of a meaningful relationship whereas the mother highlights the protective provisions at subsection 2(b). [179]  Later amendments to the Act at s 60CC(2A) direct that the Court is to place “greater weight” on the protective considerations at subsection 2(b) over those of 2(a).": Knopf & Knopf [2024] FedCFamC1F 359

• "[68]  In any event, the Independent Children’s Lawyer, and the Father, both submit that this is a case where there is the need to protect the children from the risk of physical or psychological harm, and thus, pursuant to s 60CC(2A), a meaningful relationship must be subsumed to risk issues. The risk concerns raised focus on the Mother’s inability to prioritise the children’s needs, over her own.": Peck & Peck [2016] FCCA 2561.

• "[85]  Section 60CC(2A) is the subset of specific considerations relevant to s 60CC(2A) and in particular the reference in s 60CC (2A)(a) to “family violence”. Section 60CC(2A) requires the court to consider any history of family violence, abuse or neglect involving the child, or here, the children. The mother’s own father was abusive towards the mother, according to the mother. However s 60CC(2A) is not concerned with abuse of the mother. That section is concerned with any history of family violence, abuse or neglect involving the child. The relevant history of family violence, abuse or neglect must involve— (a)the child; or (b)a person caring for the child.": Shinohara & Shinohara (No 2) [2025] FedCFamC1F 122.

• Risks to child - Parent's insight as a factor: "140. The Court should state that the father also exhibited other adverse conduct towards the mother which contributed to her feeling scared and/or anxious in relation to the father. Such adverse conduct towards the mother included: threats of eviction, questioning the mother about her interactions with people especially men, regular expression of anger towards the mother, exposure to the father’s unpredictable and erratic mood and behaviour, unreasonable accusations of infidelity, informing the mother of his suicidal ideation, unreasonable prolonged verbal monologues by the father in which the mother was berated and lectured, verbal abuse, and denigration. 141. The father’s significant denials of his family violence and other adverse conduct perpetrated against the mother indicate, inter alia, that he lacks insight into the harmful effects of such conduct upon the mother. The father had exhibited an inability to take responsibility for his past adverse behaviour towards the mother when interviewed by the Family Report writer (the Court refers to paragraphs 54, 55 and 58 of the Family Report). 142. The father lacks capacity to understand and provide for the needs of the child, including her emotional needs. He has shown a willingness to put his needs ahead of the child and others. For example, in these proceedings, the father caused an affidavit from his son Mr H to be filed and served, thus potentially exposing his son to cross-examination. Mr H suffers mental health impairment and is a very vulnerable young man. A further example was the father’s proposal, stated during his oral evidence, that after three months of supervised time, not only would he have a round table meeting with the mother and her partner to discuss the issue of his future time with the child, but the child, a six-year-old, would also be present to state her views. This last example also highlights the father’s lack of insight into the adverse effects of his past family violence and other adverse behaviour against the mother.": Kirsch & Pelzer [2025] FedCFamC2F 283.

• "[445]  Issues and assessment of “risk” (not necessarily relating to any physical or sexual abuse, but very often relating to psychological and emotional risk) may be relevant to a parent’s general parenting capacity.266 It is clearly a fundamental issue here. The Father’s conduct, over a significant period of time, warrants very careful consideration regarding the coercive and controlling risks, including their psychological and emotional impacts primarily, but not only, to the Mother, and in turn, for the children in her primary care. I recall and remind myself of the protective, statutory considerations set out in s 60CC(2)(b) and (2A), which require a Court to protect children from, among other things, psychological harm. As noted on multiple occasions in the course of these reasons, in my view, the Mother has endured constant belittling action and harassment by the Father towards her, which has been designed to control her in almost every respect. The Father’s conduct has been a calculated campaign to psychologically (and in almost all other ways) undermine her parenting, and her dignity as the children’s Mother. Other than the Court’s interim Orders in August 2023 that provided the Mother with sole parental responsibility and for the children to live with her and spend no time with the Father, she and the children have had no respite from the Father’s onslaught, including the use of the Court and its processes to harass her constantly. Subject to what follows, the Court’s protective responsibilities towards the children and their Mother must take precedence over all else. The Father’s reign of harassment and demeaning control of the Mother must now come to an end.": Farrington & Belkis (No 3) [2024] FedCFamC2F 660. 

(2A)(b) any family violence order that applies or has applied to the child or a member of the child's family.

• "[79]  Given the existence of the current DVO and its terms, and the earlier DVO made in 2015, there is a need to protect the mother from future harm and make orders that promote her safety (s 60CC(2)(a), s 60CC(2A)). I am satisfied that the orders proposed by the mother would certainly promote her safety, as they ensure that there is no prospect of the parties coming into contact with each other, but importantly there are strict limitations on the parties’ ability and need to communicate with one another. ... [81]  It is apparent from the Family Report (at [113]), by virtue of the existence of a “no-contact” DVO and the circumstances that led to the making of the DVO in early 2024, that the mother would find it difficult to liaise with the father if they were each to retain parental responsibility for the children (s 61C). I accordingly, consider that it is appropriate that the mother have sole parental responsibility and sole decision making for the children. As an adjunct to this, I consider it appropriate that the orders the mother seeks in relation to the children’s passports, international travel, Country C citizenship and change of name are ones about which she should have sole decision making, and in addition that the orders that she proposes in this regard are in the children’s best interest.": Szalai & Szalai (No 3) [2024] FedCFamC1F 838. 

(3) the right to enjoy ATSI culture

both parents Aboriginal

• "[133]  Since Z is Aboriginal, the court must also consider the matters set out in s 60CC(3). In determining what orders are in the child’s best interests, I must consider these matters. [134]  I am mindful of Z’s cultural heritage and note both her parents are Aboriginal. [135]  I am satisfied that Z will continue to experience her culture whether she is with her maternal or paternal family, as each identify as Aboriginal. Each party will have an opportunity to present evidence relevant to this consideration for the final hearing of this matter commencing on 16 June 2025. [136]  The importance of Z maintaining her right to enjoy her Aboriginal culture and her family from both the paternal and maternal side cannot be overstated. This is a crucial matter for Z and for her development as an Aboriginal woman. I respectfully adopt the comments of the Full Court in the matter of In the Marriage of B & R (1995) 19 Fam LR 594 in respect of the significance of Z’s cultural background. This will be a matter at final hearing where the undoubted relevance and importance to be attached to her Aboriginal heritage can be the subject of specific evidence to ensure the appropriate weight is given to this consideration in my finally determining the orders that are in Z’s best interest. [137]  The outcome in this case will ultimately depend upon the relationship of that evidence with all of the other evidence, tested against the final determinant, namely what is overall in the best interests of Z.": Josse & Vipen (No 4) [2024] FedCFamC1F 890.

> "119. The child is of aboriginal descent. There is no evidence as to the extent, if any, the mother would wish the child to enjoy his aboriginal culture and the father’s evidence is that this was never a factor in the mother’s presentation and parenting. To his credit the father says that he would wish the child to be proud of his aboriginal heritage and in that regard I accept what he says. The Full Court in the marriage of B & R (1995) FLC 92-636 at 82-396 said:- It is not just that aboriginal children should be encouraged to learn about their culture, and to take pride in it in the manner in which other children might be so encouraged.  What this issue directs our minds to is the particular problems and difficulties confronted throughout Australia history, and at the present time, by aboriginal Australians in mainstream Australian society.  The history of aboriginal Australians is a unique one, as is their current position in Australian life. 120. The Full Court in Donnell & Dovey [2010] FamCAFC 15 said:- [321]        We consider that an Australian Court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and non-indigenous people relating to the concept of family.  This is not to say that the practices and beliefs of indigenous people are uniform, since it is well known that they are not.  However, it cannot ever be safely assumed that research findings based on studies of European/White Australian children apply with equal force to indigenous children, even those who may have been raise in an urban setting. [322]        In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic understanding of indigenous culture, at least to the extent this can be found in what the Full Court in B & R (supra) called “readily accessible public information”. It should not be expected that parties must approach the Court on the basis that the presiding judicial officer comes to the case with a “blank canvas”. 121. An obvious difficulty is that notwithstanding that the father would wish the child to be proud of his indigenous and non-indigenous heritage, there is nothing from the father as to how this would be promoted.  It may be that in the absence of any viable alternative, there is nothing reasonable that the father can do, but it seems to me that in a case where the father seeks the sole parental responsibility for the child these are matters which need to be the subject of careful consideration by him": Corelli & Gunther [2015] FamCA 81. 

> "780. Mr Ralph expressed the view that the child’s cultural needs were unlikely to be adequately met whilst he continued to live with the Farleys. He referred to the decision of the Full Court of the Family Court in the decision In the Marriage of B & R[33], where four themes emerged from a review of the literature: a)           A child whose ancestry is wholly or partly indigenous is treated by white society as “black”, resulting in connotations of an inferior social position; b)           The removal of an Aboriginal child to a white environment is likely to have a devastating effect, if it is coupled with long-term upbringing in that environment, especially if it results in exclusion from contact with the child’s family and culture; c)           Aboriginal children are better able to cope with racial discrimination from within the Aboriginal community, because that community actively reinforces identity, self-esteem and appropriate responses; and d)           Aboriginal children often suffer acutely from an identity crisis in adolescence, especially if brought up in ignorance of their aboriginality or in circumstances which deny or belittle their aboriginality.   [33] (1995) 19 Fam LR 594": Bartlett & Anor *& Farley [2009] FMCAFam 1237. 

Mother or father, and child identify as aboriginal

• "[93]  The mother and children identify as Aboriginal, though the mother seemingly does little to inculcate the children with indigenous traditions.69 The father enthusiastically supports the children’s association with indigenous culture.70": Hasip & Ruwan [2024] FedCFamC1F 638. 

• "[10]  There is one child of the parties, X who is 8 years old. The mother is an Aboriginal woman, and X is an Aboriginal child sharing her mother’s heritage.[11]  The mother spent time in state care as a child. Her family was disconnected from their culture. She continues to explore her Aboriginal heritage as an adult. She wants to travel on country with X, and connect her to elders and the stories of her people so that X can experience her culture in a real and tangible way. Prior to X living with her father, the mother and X have engaged in these experiences. The mother has provided X with written words and phrases in language, which the father has assisted X display in her bedroom. ... [119]  The mother’s evidence is that it is important for her to be able to access country, so that she and X can live their culture rather than just visit it. There will be days of significance that arise from time to time such as for Sorry Business when someone in the community dies. [120]  There have been other events important to her family, such as a relative marching as an Aboriginal member of the military on Anzac Day in 2024. The father did not permit her to take X to the service. The orders at that time provided for supervised time. The father did not consider whether he could deliver X to the mother at the march to allow X to experience this important event. I accept this was a missed opportunity for X. [121]  The father presents as generally supportive of X being able to experience her culture. When he and the mother were together she did not talk to him about her Aboriginal culture and people. Understandably, he did not have much information about it. Since X has been in his care it is concerning that he has made no effort to inform himself. Despite previous orders of 22 March 2024 for him to ensure that X attends aboriginal cultural events within her community and school he has not done that. He has not taken any steps to meet with the indigenous liaison officer at X’s school. [122]  The area around City D is not X’s country. Nonetheless it is important for her to be connected to other Aboriginal people living within her community. Her father could have assisted with that by involving her through the school. He has not done so. Doing this does not answer X’s need for connection to kin, culture, country and language. The only person able to give X access to those things is her mother. [123]  I accept that X needs to spend time with her mother that permits travel to country, experience of her culture there, and involvement with the community. Those things will assist X grow to be a proud young Aboriginal woman with an understanding of her background.": Walter & Stiller [2024] FedCFamC1F 575.

• Reversal of care – “Very proud aboriginal” father subject of “smear campaign” by maternal grandparents – Non-indigenous maternal grandmother’s dismissive and disrespectful approach to indigenous culture and practices risked children losing their indigenous identity: "Subsection 60CC(3) requires the Court to consider the children’s right to enjoy their Aboriginal or Torres Strait Islander culture as defined in subsection 60CC(3)(a) by having the support, opportunity and encouragement necessary: (i)          to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and (ii)         to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (iii)        to develop a positive appreciation of that culture; and (b)          the likely impact any proposed parenting order under this Part will have on that right. These children are Indigenous by virtue of their father being Aboriginal. The maternal grandparents propose that the children live with them primarily and spend very minimal time (up to two hours) with the father which is supervised until he has completed a range of courses and therapies recommended by the ICL as set out in Order 9. All of the times set out in the maternal grandparents Amended Initiating Application (Orders 4 to 7) are all subject to the father undertaking and addressing his mental health issues and anger management and further therapy set out in Order 8. Essentially, nothing other than up to two hours will occur until there is some satisfaction (presumably by the ICL, though this is not known) regarding completion of the courses and therapies. The frequency of the two hours is dependent upon the mileage that the father lives from the maternal grandparents ranging from once a month (more than 40km) or each alternate weekend (less than 40km). The grandparents have also stipulated orders up to the age of five and over the age of five, as seen in Orders 4 to 7. The Orders sought by the maternal grandparents in relation to all of the relevant holiday time are set out at Order 12, however these would be subject to the threshold issues referred to in Order 8. I have taken account of the proposals of the maternal grandparents including the maternal grandmother’s explanation as to how they would ensure that the children are exposed to their aboriginal culture. The maternal grandmother believes that this would involve simply ensuring the children get taken to cultural events and that it is just a matter of someone telling the maternal grandmother what they are to do and she and or the maternal grandfather (neither of whom are indigenous) will do it, or take them to the relevant event. There was a distinct refusal by each of the maternal grandparents to genuinely acknowledge that the father is well situated as a very proud aboriginal man, well versed in his culture and aboriginal community, to impart his knowledge and his own culture to the twins. In the past, the maternal grandmother has refused to accept the father’s explanation of his own cultural practices. This occurred in relation to the father explaining to the maternal grandmother the importance to him and his community of the first haircut of a child. Having heard this, the maternal grandmother, being very sceptical that the father was telling the truth, then decided to speak with an unknown indigenous woman (“healing woman” as explained by the maternal grandmother) about what the father had told her of the importance of the first haircut. The maternal grandmother said, quite dismissively, she was told by the woman she approached, that they had not heard of this tradition. The paternal grandmother believed what she had been told and this is what she told the father. It is quite clear that the maternal grandmother does not accept or respect the father’s culture as practised by him. The maternal grandmother also gave a strong impression that she expects that simply by taking the children to what she regards as cultural events, the children will know and learn their indigenous cultural heritage. The grandmother is very rigid in her thinking and it was obvious that she expects that the children’s cultural heritage will consist of  formal events, perhaps akin to a church service or formal event, that she and the children can simply “attend”. It is clear to me that whatever the father told the paternal grandmother about his wish to have the children engage in their cultural heritage and practices, that the paternal grandmother would only take the children (or permit the father to take them) if she agreed that they going to what she defines as a cultural event. The paternal grandmother’s superficial understanding of the importance of the children growing up in an environment where they have to navigate two worlds, the indigenous and non-indigenous, and find their own identity and cultural heritage as they grow up, is a profound disadvantage to the proposal of the maternal grandparents to have the children live with them. The subtle exposure to and immersion in their indigenous culture growing up living with their father and spending time with other aboriginal people, including their paternal grandmother and extended family and living as an aboriginal in that setting and having the chance to understand and engage in a broad range of cultural activities (cooking, language, story telling, hearing about their relatives and ancestors) will be of significant benefit to the twins as they grow up. Living with their father, the twins will have the chance to be part of the indigenous community within the father’s family circle but also the broader indigenous community through engaging in sporting, artistic, musical, or other indigenous cultural activities and pursuits. Undoubtedly this will help the children develop a positive self-esteem and identity. Neither the paternal grandmother nor grandfather showed an understanding of the importance of this aspect of the children’s lives nor did they understand or respect the father’s deep connection with the land, with his heritage and cultural practices.  The maternal grandmother and maternal father had no insight into the benefit to the children and to their future sense of identity going forward in gaining this experience and knowledge about aboriginal life from their father and paternal grandmother and other members of their indigenous community.   The maternal grandparents’ lack of understanding and lack of respect for the father’s indigenous heritage places the father in an impossible position in terms of his attempts to coparent with the maternal grandparents. Apart from the fact that the maternal grandparents are not of indigenous descent, I find the position of the maternal grandmother that she will take the children to their cultural events if someone tells her what they are, is a shallow and dismissive approach to the concept of providing opportunities for the children to develop a deep understanding of their own cultural history and practices. I am also satisfied her behaviour of querying and effectively challenging the cultural practices of the father, seemingly oblivious to how disrespectful this is to the father and his family reveals a complete lack of awareness by the grandmother in her intended approach into the future in allegedly accommodating the children’s cultural needs. The father’s proposal wherein the children live with him provides the children with the opportunity to be guided and immersed in their culture through the teachings and lifestyle of the father and his aboriginal family including the paternal grandmother and the children’s half-brother D and extended family. Having had his cultural practices challenged by the maternal grandmother, the father seemed somewhat taken aback when he was asked under cross-examination by Counsel for the maternal grandparents, what the maternal grandparents could do to remedy the perception of the father and his family and community that they had stolen the children if the Court ordered that the children live with the maternal grandparents. The following awkward exchange took place, but as difficult as it was for the father, he is seen to still be trying to oblige. MR SELFRIDGE: Right. Then if all your family believe the children have been stolen, as you put it, can you suggest anything in terms of how the [Moyles] might approach that in terms of mending any barriers that they have to mend between themselves and your family at large? Is there anything in your head, as to your mind, that you can make by way of a suggestion as to how you would remedy that situation?---What does that mean? Right. What you have told us, in evidence, is that you consider your children to have been stolen by the [Moyles]?---Yes, sir. And that you have discussed that with your family – your extended family at least?---Yes. Right. If the children remained in the care of the [Moyles], then that is going to be a real difficulty, isn’t it, in terms of how the [Moyles] might interact with your family? Or vice versa, for that matter?---Yes, sir. Right. Is there anything in your mind that you could suggest to the court, in terms of how we might be able to assist in addressing that issue? Or it would be real difficult, wouldn’t it?---Absolutely. It was even before they were stolen. The disrespect happened within my culture. So to me, it – it – we – it didn’t even start when they got stolen. It got started when they were asking other people from my same tribe about questions that they shouldn’t be asking, because it’s in the respect of my mother, due to women’s business, which is a very sacred ground to us. So there are certain questions I can’t answer on behalf of women, because it is not – it is against my lore, l-o-r-e, in my culture Sure?---But I am happy to answer them. But it is very disrespectful. Okay. But see, my question to you was, rather than is there anything else that could add to that disrespect, I was asking you is there anything that you could think of to – in terms of how to address it, or to better – from the [Moyles]’ perspective – that was actually my question?---I – I – if you are saying to amend with my family, I – I can’t speak on behalf of my family. That is their beliefs. [123] [123] Transcript of proceedings (9 September 2024) p457. Given that in the past, the maternal grandparents did not accept the father’s advice about his cultural practices the nature of this questioning asking for his advice about how to repair the maternal grandparents’ reputation with his family, exemplified the deeply divided positions of the parties in relation to cultural matters. The father has explained his history and growing awareness of his aboriginal culture and heritage on and off throughout the days he was giving his testimony. The father explained the cultural events he participates in such as aboriginal cultural carnivals, cultural groups and events for land rights and mentoring young aboriginal youth. The father went on to explain that if the children were to live with him, he would live out their links to culture and country through language, connecting to land, traditional dances, singing cultural songs, going for walks in the middle of the scrub and teach them certain things like markings and traditional symbols and when their proper ceremony comes his mother will take over.[124] [124] Transcript of proceedings (10 September 2024) p507-508. There had been other incidents in the past that caused the father to have concerns about the maternal grandparent’s failure to respect his indigenous culture. The father shared his concerns about being excluded from attending Ms B’s funeral and that this has caused him significant grief. The father provides an example of the grandparent’s inability to allow for closure:[125] FATHER: I was not allowed – not welcome to pay my respects at their daughter’s funeral, which is very hard for an Aboriginal person. I was not allowed to attend. I was told if I did attend, I would be removed. So, – and for a person of Aboriginality to not pay respects spiritually, I will never actually have closure, and it will be hard for me to process my grief of their daughter, who I shared biological kids with. So I believe more motive is they’re trying to take my babies as a way of grief, as a way of hurting me. [125] Transcript of proceedings (9 August 2024) p219. The father has explained that in relation to any “reconciling” between the maternal grandparents and his family, their disrespect goes back a long time. I accept this. The father is very proud of his indigenous history and of his engagement with that history which he explained in detail in his evidence. I accept his explanations and narrative about his growing sense of indigenous identity as he grew up and that he has fully embraced and become proud of his history. In terms of sharing his knowledge with his children, the father has already started teaching the twins over the last twelve months, some simple words of their tribal language when he spends time with them either in person or on the video calls. The children have the chance to learn and be immersed in their culture through both passive and active learning when they are in the care of the father and paternal grandmother and extended indigenous family. I consider that this is a significant advantage for the children in the father’s proposal for their future living arrangements. I consider that the proposal of the maternal grandparents wherein the child live primarily with them, brings with it the significant risk of the children ultimately losing their relationship with their father in the future. The loss of their relationship with their father would be tragic for the children going forward and it would deprive the children of growing up knowing and being cared for by their biological father who I consider has much to offer the twins. It would also mean a loss of their opportunity to enjoy a relationship with a parent who lives and breathes his and therefore the children’s indigenous culture. The father is very proud of his aboriginal culture. He is a custodian of that culture who is very capable and willing to share his beliefs, indigenous language and practices, stories and history with his own children. I am satisfied that the father has the capacity to ensure that the children grow up being proud of their own cultural heritage. I consider the prospect of the children losing their indigenous identity will cause profound difficulties for them as they grow up and move into their teenage years. I do not have any confidence that whilst living with and being under the primary influence of the maternal grandparents, that the children would have the opportunities to immerse and absorb their indigenous culture. Given my observations of the maternal grandmother’s rigid and insensitive views that she can teach the children whatever they need to know about their indigenous culture, or take them to cultural events (of her choosing) it seems likely that the children will lose their opportunity to genuinely engage and enjoy their own indigenous culture. In the long term I am concerned that, if the children live with the maternal grandparents, or spend too much time under their influence, that there is a distinct possibility that the children will grow up adopting the maternal grandmother’s attitudes instead of growing up learning to be proud of their indigenous heritage. I am satisfied that in the long term, this lack of any deep knowledge and love of their own cultural heritage, would be most detrimental as they mature and develop an understanding of their own identity. Overall, considering all of the evidence and the provisions of the Family Law Act 1975 (Cth), I am deeply concerned that in the event the children lived with, or spent substantial time with, the maternal grandparents they would fail to connect with, and maintain their connection with, members of their family and with their community, culture, country and language. On the other hand I am satisfied that the orders proposed by the father will ensure that the children will flourish in terms of their exposure, enjoyment and immersion within their aboriginal community and culture. This is a significant issue in terms of the Court deciding the best interests of these young children and their future living arrangements.": Moyle & Houston [2025] FedCFamC2F 426, [287]-[305].

Relevance of recently discovered ATSI heritage

• "[62]  The Court is unable to find that Y has a right to enjoy an Aboriginal culture. This is an issue that was raised by the Independent Children’s Lawyer, and none of the parties of course, until it was raised. [63]  The Court accepts the submissions of counsel for the maternal grandmother, the substance of which are that the mere assertion of Aboriginality by the father, which is contested by the maternal grandmother, and in respect of which the mother makes no comment, does not form the basis of treating her as an Aboriginal child. The Court does not accept the submission of the Independent Children’s Lawyer’s advocate that the mere reference to Y as an Aboriginal child in the Department of Communities and Justice records likewise establishes the fact of Aboriginality. It is significant to the Court that the father made a concession that his Indigenous background is not a part of his life or the lives of his other children. Thus, not even he asserted the relevance of this issue.": Sansone & Chancellor [2025] FedCFamC1F 59.

Right to exposure to culture subject to best interest considerations

• "[135]  X’s mother identifies as a first nations Australian. She identifies as being of the K People and the L People. [136]  I have already referred to X’s developmental issues. [137]  At paragraph 57 of the family report, the court child expert says that: It is unlikely [X] identifies as Indigenous, given her developmental delays, lack of exposure and having been raised within a non-indigenous environment, neither is it clear whether it will be of significance to her as she matures. The priority for [X], in the context of the parenting dispute, is maintaining stability along with provision of intensive intervention actively supported by the adults in her life. At this stage of [X]’s development, her cultural identity is likely to be difficult for her to make meaning of. [138]  The report writer continues at paragraph 59 to say that: It is likely that the absence of [X]’s opportunity to celebrate her culture of origin is of little understanding or concern to her, in the context of her significant developmental delay and limited cognitive function. The concept of culture may not be realised by her should her cognitive function remain limited. It is likely the biggest impact surrounding the absence of indigenous culture in [X]’s life will be felt by [Ms Arterberry], [X]’s biological extended maternal and paternal family, and potentially [X]’s siblings. [X] could benefit from participating in cultural celebration, including family or community events, with the support of the adults in her life, including her mother and siblings, in the event she does spend time with her mother, as she matures. The [Liepina] family acknowledged [Ms Arterberry] as identifying as Indigenous, however did not indicate their willingness or desire to support [X] in her culture of origin. The limited capacity for [X] to safely participate in external activities with her flight risk, is likely to limit opportunities of community celebrations. The [Liepina] family will likely benefit from engaging with a community support service to potentially facilitate [X]’s introduction to culture.[139]  Clearly the Orders that I am going to make have the effect of limiting X’s exposure to her Aboriginal culture. Potentially to nothing. I recognise the significance of that; however, I prioritise X’s needs as already identified above.": Liepina & Arterberry [2024] FedCFamC2F 1397. 

Jing Zhi Wong

[E-G-A] Issues to be determined, examples: 

• DV - father incarcerated, lack of insight: "[89]  The issues in this matter are: (a)Should there be orders for communication between the father and the children? (b)Should there be orders permitting the father to send the children letters, cards and gifts? (c)Should there be orders for the father to spend time with the children, or attend school or sporting events, subject to the children’s wishes? (d)Are the parents able to exercise joint parental responsibility and decision-making? (e)Whether the mother should be permitted to change the surnames of the children; and (f)Whether there should be any restraint on the children travelling overseas with the mother.": McKowan & McKowan [2025] FedCFamC1F 105. 

• DV, mother formerly incarcerated, both repartnered: "[47]  The issues in this matter are: •X’s views about spending time with, and communicating with, the mother. •What arrangements will promote the safety of X. •Whether orders for time, communication and family therapy with the mother are in X’s best interests •Whether it is appropriate to make an order under s 102QAC of the Act.": Sheffield & Almond [2024] FedCFamC1F 785. 

• both parties engaged in FV; allegations of controlling behaviours, sexual abuse; supervised time?: "[12]  In order to determine the dispute between the parties, I must determine certain issues. The principal issues, which fall for determination by me can be summarised as follows: (a)Does the father pose an unacceptable risk of harm to the children? (b)If the answer to the first question is in the affirmative, is it in the children’s best interests for the Court to make an order to the effect that the children spend no time with the father or is it in their interests to spend supervised time with the father? (c)If the answer to the first question is in the negative, how might the children’s time with the father be progressed in a manner, which is consistent with their best interests? ...": Maldonado & Maldonado (No 2) [2024] FedCFamC1F 885. 

• Allegation of sexual abuse: "[38]  The issues in this matter are: (a)Did the father sexually abuse his niece in 1999/2000? (b)Is there a risk to X being exposed to sexual abuse or inappropriate sexual conduct by the father? (c)If the answer to (b) is yes, what orders may ameliorate the risk for X? (d)Was there family violence in the parties’ relationship? (e)If the answer to (d) is yes, what orders may ameliorate the risk for X? (f)Should the parents jointly hold parental responsibility and decision-making authority, or should the mother hold it solely?": Ubina & Szwed [2025] FedCFamC1F 195.

• FV allegations: "[36]  The issues in this matter are: •Whether or not there was family violence during the parties’ relationship. •What orders for time would best promote the children’s safety, including whether time is each week or in a fortnightly block. •Should the parents jointly hold parental responsibility and decision making authority, or the mother hold it solely. •Whether a parenting co-ordinator should be engaged to assist the parties with decision making. •What platforms should the parties use for communication.": Kesselman & Brimble [2025] FedCFamC1F 1. 

• DVO, past convictions, child development challenges: "[58]  The issues in this matter are: •What risks, if any, exist for the children? •Can any risks for the children be ameliorated, and what arrangements would promote their safety? •What time should the father spend with the children and what, if any, conditions would promote their safety? •What time should the maternal grandfather spend with the children? •What orders will promote the children’s connection to their culture?": Zemanova & Hoefler [2024] FedCFamC1F 675. 

• ** Allegation of poor parenting skills, alleged father’s propensity for outbursts of anger and violence of the physical, emotional, and coercive/controlling types, application for no time with father: "[6]  The primary issues in this matter are: (1)Whether X should enjoy any productive and meaningful relationship with the father; (2)Issues of family violence feature highly here but where certain admissions have been made by the father then the issue becomes whether or not the father presents as an unacceptable risk into the future of spending time with X; (3)The mother raises an issue as to whether there will be an impact on her capacity to parent X, as his delegated primary parent, should X enjoy other than “identity contact” with the father where the mother says she herself suffers from post-traumatic stress disorder, anxiety and depression; and (4)There are issues of credit in respect of the evidence of each of the parties.": Knopf & Knopf [2024] FedCFamC1F 359. 

• International relocations: "[45]  The issues in this matter are: •The children’s views with respect to their living arrangements, including any views about whether they reside in Australia or the United Kingdom. •What support is available to each of the parties in Australia and the United Kingdom. •The respective capacity of the parents to meet the emotional and psychological needs of the children. •The practical implications of each parent’s proposal.": Pressner & Lennart [2024] FedCFamC1F 861. 

[E-H] Child Abuse, Neglect, sentenced by State Courts

• See, Vogel & Arcas [2024] FedCFamC2F 1681.

[F] Reconsideration of Final Parenting Orders - s 65DAAA

• Framework: "On 19 December 2024, the appellate court in Radecki & Radecki [2024] FedCFamC1A 246 (“Radecki”) considered the construction, purpose and application of s 65DAAA of the Act, which commenced on 6 May 2024. Section 65DAAA provides: (1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless: (a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and (b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered. (2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following: (a) the reasons for the final parenting order and the material on which it was based; (b) whether there is any material available that was not available to the court that made the final parenting order; (c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way); (d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order. (3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order. (4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court. In Radecki, after discussing the origins of s 65DAAA and identifying that it was intended to codify the common law rule in Rice and Asplund [1978] FamCAFC 128; (1978) 6 Fam LR 570 (“Rice and Asplund”), the justices of the appeal court made statements to clarify what they described as a controversy that had arisen about the meaning and operation of the provision.[11] The appeal court unanimously stated: We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of “consider” should not be a literal one. The word “consider” in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2). We also explicitly reject the proposition, articulated in Melounis [Melounis & Melounis (No 4) [2024] FedCFamC1F 778] at [183]–[190], that in and of itself the amended legislation may be considered a change of circumstances. In my view, the guidance and principles drawn from the appellate decision in Radecki are in summary as follows: (i) There is unlikely to be a material difference between the common law rule in Rice and Asplund, including various amplifications of the rule since such as in Defrey & Radnor [2021] FamCAFC 67 and other authorities discussed at [44] of that judgment and following; (ii) The practical application of the rule in Rice and Asplund about the required two staged process is equally applicable to s 65DAAA of the Act, meaning the Court should first make findings of fact as to what changes there have been in circumstances since the final parenting orders were made and, second, assess whether or not the applicant has established that these changes are sufficient to provoke a new inquiry. To put it in another way, whether the applicant has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests; and (iii) Only where the Court is satisfied that there are facts capable of constituting significant change in circumstances which warrant revisiting the final parenting orders, will the applicant have persuaded the Court that reconsideration of the final orders is permissible.": Gounelle & Crozier (No 3) [2025] FedCFamC2F 282, [24]-[27]. 

• "It is important to note the words “some changed circumstance which will justify”. It is true that subsequent Full Courts have referred to the need for “substantial change” (Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191; D and Y [1995] FamCA 146; (1995) FLC 92-581) or “significant change” (Bolitho and Cohen [2005] FamCA 458; (2005) FLC 93-224). Later courts have referred to “sufficient change” (Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383; Marsden v Winch (2009) 42 Fam LR 1; Carriel & Lendrum [2015] FamCAFC 43; (2015) FLC 93-640). The precise choice of adjective (some, substantial, significant, sufficient) is immaterial and apt to lead to error where semantic choices control the outcome. Such a search also focuses only on one aspect of the test. The question is whether the change in circumstances is enough to justify a new hearing. The adjectives simply serve to highlight the nature of the change to ensure that new litigation does not arise from trivial or nominal change. As Warnick J said in SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363, “The essential question however is as to the sufficiency of new events to provoke a new enquiry” (at [84]). In substance that is no different to what was said by Evatt CJ. Properly analysed, therefore, although adjectives have changed, the principle has not. This principle has been fundamental since at least 1979. Its heart is the best interests of the children, who are not well served by continuous litigation over them. It follows that any reversal of this principle by the legislature, so that a change in circumstance is no longer a prerequisite to reconsidering final orders, must be clear. On the contrary, properly understood the section simply puts the principle into the legislation.": Lehtinen & Lehtinen [2025] FedCFamC1A 69, [21]-[28].

• "It is well established that the discretion in parenting cases is so wide that two different judges could reasonably make opposite orders on the same facts. If there was no limit to reconsidering final orders, litigants with deep pockets or relentless intent could choose to roll the dice again for no reason other than that a different judge might come to a different result. That could not be in the best interests of the children. However, it must be accepted that the primary judge wrongly construed s 65DAAA in light of the decision in Radecki. Whilst the further evidence is, at least in part, controversial, that is of less significance on a threshold application to reopen final orders where it is to be taken at its highest. Doing so, it demonstrates that since the orders of the primary judge were made, events have occurred such as the birth of the parties’ other children, fire damage to a house, lost rental income and increased difficulty in complying with the orders. If the appeal had been competent, I would have allowed the further evidence on a re-exercise of the discretion to find at the date of the hearing of the appeal, which is the relevant date, that there was some (sufficient, substantial, significant) evidence of change to justify a reconsideration of the orders as to the child’s school. However, the appeal will be dismissed as it is not competent. Accordingly, the Application in an Appeal to adduce further evidence does not require consideration and will also be dismissed.": Lehtinen & Lehtinen [2025] FedCFamC1A 69, [31]-[34]. 

• Radecki & Radecki [2024] FedCFamC1A 246.

• Change of school, change of residence, relocation, addition burden to father, sufficient change of circumstances: "The Mother relied upon paragraph 83 of the decision of SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 (‘SPS & PLS’) which observed as follows: 83. Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes. It was the Mother’s case that her relocation to a suburb so distant from the children’s school contemplated by the consent orders necessitated a change of the children’s school because of the burden on her and the children of the additional travel, and the additional travel in the context of a further baby in her care with another on the way. But, she said, the relocation and the need to change the children’s school was not a sufficient change of circumstances that would justify re-opening proceedings – this was, she said, merely a minor change as contemplated by the orthodox Rice v Asplund authorities, and hence the Father should not be permitted to agitate residence arrangements as he sought. The Mother’s case meant that with the existing living and spend time orders, a change of school would mean less travel for the children overall, notwithstanding that this placed additional travel time and burden of that travel on the Father, not her. The Mother says the change of school and the imposition of the additional burden of the travel on the Father was not a sufficient change in circumstances that would satisfy the threshold test contained in section 65DAAA and/or Rice & Asplund. The Mother’s case was that school would be simply changed, and that was it. I did not accept that submission. The significant changes in circumstance since the making of final orders included the following: Each of the parties had issued proceedings that sought a change to the existing orders; and One of the parents has re-located a significant distance from the children’s previously agreed school; and That necessitated a significant burden of almost daily travel upon the Mother and the children; and Since the orders were made, the Mother had given birth to another child (now a baby) and there is another on the way. Very soon the Mother’s household will consist of the children of the orders and two other children. This will have a significant impact on the practicality and ease of travel over the longer distance involved with the school imposed by the Mother and will significantly impact upon her and her children; and The impact of the change of residence of the Mother was such that she asserted it was necessary to change the children’s school to a school opposed by the Father and the Father asserted that the impact of the change of residence of the Mother was such that it was necessary to change the children’s living arrangements so that they could remain in attendance at their existing school. Hence, I was satisfied that there was a sufficient change in circumstances that justified the final orders being reconsidered. I did not accept the Mother’s submissions that the change in school and change in impact upon the travel of the Father was immaterial and/or the type of “small” change contemplated by paragraph 83 of SPS & PLS recited above.": Henrik & Henrik [2025] FedCFamC2F 278, [55]-[60]. 

• Impact of travel costs, travel time and expense, change of work, financial difficulties, lack of employment flexibility: Flaherty & Downs (No 2) [2022] FedCFamC2F 373, [51]-[64].

[G] Testamentary Guardian - Effect of Appointment of Testamentary Guardian, and interaction with s 61C Family Law Act 1975 (Cth): 

• ss 61C, 61D, 61E Succession Act 1981 (Qld): "61C Appointment of guardian by will (1)A parent or guardian of a child may, by will, appoint a person as a guardian of the child. (2)The appointment is of no effect if the appointor is not a parent or guardian of the child immediately before the appointor’s death. 61D When the appointment takes effect (1)This section provides for when an appointment by will of a person as a guardian of a child takes effect. (2)If the appointor is not survived by a parent of the child, the appointment takes effect on the appointor’s death. (3)If the appointor is survived by 1 or more parents of the child, the appointment takes effect as follows— (a)if the will shows that the appointor intended the appointment to take effect on the appointor’s death, the appointment takes effect on the appointor’s death; (b)otherwise, the appointment takes effect on the death of the last surviving parent. 61E Effect of appointment (1)A testamentary guardian of a child has all the powers, rights and responsibilities, for making decisions about the long-term care, welfare and development of the child, that are ordinarily vested in a guardian. Examples of matters concerned with a child’s long term care, welfare and development— the child’s education and religious upbringing (2)The appointment of a person as testamentary guardian of a child gives the person daily care authority for the child if and only if— (a)the child has no surviving parent; and (b)no-one else has daily care authority for the child (however described) under a decision or order of a federal court or a court of a State. (3)In this section— daily care authority, for a child, means— (a)the right to have the child’s daily care; and (b)the right and responsibility to make decisions about the child’s daily care. 61F Testamentary guardian to act jointly with other guardians (1)This section applies to a testamentary guardian of a child if the child has 1 or more other guardians.(2)The testamentary guardian must discharge his or her rights and responsibilities, and exercise his or her powers, as testamentary guardian of the child jointly with the other guardian or guardians."

?Uncertainty as to whether provision for appointment of testamentary guardian in circumstances where surviving parent exists, is inconsistent with s 61C(1) of the Family Law Act 1975 (Cth).

• LexisNexis, Wills Probate & Administration Vic [69,684]: "State and territory legislation gives the power to appoint a testamentary guardian, and to some extent defines the position of testamentary guardians after the will or deed comes into operation. The operation of state and territory legislation has been affected by the Family Law Act 1975 (Cth)."

• LexisNexis, Wills Probate & Administration Vic [69,699]: "Part VII of the Family Law Act 1975 does not expressly deal with the relationship between that Part and the state and territory legislation under which a testamentary guardian may be appointed. So far as there is any inconsistency, s 109 of the Constitution provides that, to the extent of the inconsistency, the Commonwealth legislation will prevail. However, Pt VII does not seem to be intended to abrogate the state and territory legislation. Part VII defines ‘guardian’ by s 60D(1): “guardian in relation to a child, includes a person who has been granted (whether alone or jointly with another person or persons) guardianship of the child under the law of the Commonwealth or of a State or Territory.” ‘Guardian’ is used in ss 69Z(2) and 69ZA(1) which refer to the consent of a guardian to medical procedures upon a child for parentage testing. The definition and use of the term in Pt VII suggest that the power to appoint a testamentary guardian under state or territory law continues. In Victoria, any appointment of a testamentary guardian by a parent who predeceases the other parent would be ineffective because parental responsibility would, under s 61C(1) of the Family Law Act 1975, vest in the surviving parent. Any matter arising concerning testamentary guardianship would be within the jurisdiction of the Family Court which would decide the matter having regard to the best interests of the child. Any appointment of a testamentary guardian would be subject to any existing or future order of the Family Court including, so far as relevant, a registered parenting plan. The operation of the state and territory law is limited."

• LexisNexis, Wills Probate & Administration Vic [69,702]: "The state and territory legislation cited above empowers people to appoint testamentary guardians. The Commonwealth has not legislated to remove from the states the power to legislate with respect to the appointment of a testamentary guardian, nor does the Commonwealth legislation deal with the power to appoint a testamentary guardian. On the assumption that Pt VII of the Family Law Act 1975 (Cth) is not intended to override those powers (see [69,699]), it follows that in all jurisdictions, the power to appoint a testamentary guardian is governed by the local state or territory legislation. Once appointed, however, it seems that the position, rights and duties of the testamentary guardian are governed by the Family Law Act to the same extent that the Family Law Act governs guardianship in general in the particular jurisdiction. The appointment of a testamentary guardian by the first dying parent will, subject to any relevant order of the Family Court, be ineffective because the surviving parent will have parental responsibility for the child under s 61C(1) of the Family Law Act 1975."

• LexisNexis, Halsbury's Laws of Australia [205-1950]: "The appointment of a testamentary guardian is governed by State or Territory law. Either parent may, by deed or will, appoint any person to be guardian of their child after their death. ... (ACT) Testamentary Guardianship Act 1984 s 8 (NT) Guardianship of Infants Act 1972 s 16(1), 16(2) (NSW) s 14(1) (QLD) Succession Act 1981 ss 61C, 61D (SA) Guardianship of Infants Act 1940 s 13(1), 13(2) (TAS) Guardianship and Custody of Infants Act 1934 ss 4, 6(1) (VIC) Marriage Act 1958 s 135(3), 135(4) (WA) Family Court Act 1997 s 71(3); (WA) Wills Act 1970 s 6(c) (a person may appoint a guardian of any infant child of the person). See, for example, Re Tyson; Thompson v Clifton (1909) 9 SR (NSW) 217 ; 26 WN (NSW) 44 per Simpson CJ in Eq, SC(NSW).".

• "1. X was born in 2017. He is just five years old, turning, obviously, six next year. X’s mother, Ms B, passed away tragically in early 2022. X’s father, Mr C, passed away in mid-2022. I am told, and have no reason to doubt, that, under the mother’s testamentary will, the applicants were appointed as the child’s testamentary guardians. I am told, and again have no reason to doubt, that the father consented to the arrangement that X live between the maternal aunt and maternal grandparents’ home. ...": Dodson [2022] FedCFamC1F 1043. 

• ** "50. Submissions were made by the stepfather that there is “no legal question” that the applicant stepfather is a parent. Such submission was apparently grounded on the stepfather being married to X’s mother and having lived in X’s household since she was two years of age. Reference was made during the course of the interim hearing as to the mother appointing the stepfather the testamentary guardian of X until X turns twenty-one years of age. It is thus submitted that I should adopt, when determining what is in X’s best interests, the mandatory consideration that it is in X’s best interests to have a meaningful relationship with both her stepfather and father. I reject this submission. The testamentary disposition of the mother is not binding in Australia. The stepfather is not a parent for the purposes of the Family Law Act 1975 (Cth).[6] [6] Aldridge & Keaton [2009] FamCAFC 229.": Walsworth & Ahern [2024] FedCFamC2F 441.

• In relation to Queensland: "37. By s 61E(1), a testamentary guardian of a child has all the powers, rights and responsibilities, of making decisions about the long-term care, welfare and development of the child, that are ordinarily vested in a guardian. From the meaning derived from sub-sections (2) and (3) of s 61E, those powers, rights and responsibilities are separate, and apart, from daily care authority for the child. But really important questions then arise here about the effect of potential inconsistency between them and s 61C of the Family Law Act 1975 (Cth), even though Queensland has expressly excluded these provisions from the general referral of powers in this area to the Commonwealth: see s 7(2) of the 2000 Amending Act (No. 55/2000). 38. While no detailed argument was presented to me about the effect of s 61E (particularly where “parenting orders” appear to have been made in the Family Court) – without making any decision on the validity or accuracy of the accompanying submissions, and other documents, to the document that delivered the relevant affidavit – it is arguable that, in order to satisfy the interests of justice, at least systemically, this executor, considering the nature of this Will, should be legally capable of referring concerns dealing with the long-term care, welfare and development of the relevant children by informing the relevant Trustee of such information before a final decision is made as to whom the “trust” monies should be paid on the childrens’ behalf.": Schmidt-Weichert & Anor v White [2015] QDC 14.

• cf Deane J in Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15: "5.  The tension between the law's recognition of the gradual transition from the disability of infancy to the full capacity of adulthood and such extreme judicial statements of the extent of the rights of a father with respect to his legitimate children who have not reached the age of full adulthood must be resolved in this country by the rejection of the extreme view that parental authority persists unabated until a child attains full adulthood. For one thing, the basis of that extreme view was not merely that the father enjoyed the right of legal guardianship. It was a perception of "the natural rights of a father" which were "greater ... than those which a testamentary guardian, or any other guardian, can have"(205) per Brett M.R., ibid., at p 327. That perception could not survive, without significant qualification, either the law's recognition, under the impetus of legislative developments, that the position of the father in relation to a child was "not superior to that of the mother"(206) Storie v. Storie (1945) 80 CLR 597, at p 608 or the law's increasing insistence that, while it is commonly convenient and accurate to speak of parental "authority" and parental "powers", the relationship between parents and a child is, from the parents' point of view, more appropriately expressed in terms of duty(207) See, e.g., J v. Lieschke (1987) 162 CLR 447, at pp 458, 463 ...".

• Robert Monahan, 'Testamentary Guardianship of Children' (2019) 21(5&6) REP 46. -- abstract: "At the outset this article considers the ability of a parent to appoint a testamentary guardian for a child and the potential problems that may arise given the interaction of state and Commonwealth law and the impact of the United Nations Convention on the Rights of the Child 1989."

• "[79] The best commentary I have found on the subject is Working Paper number 91 of the UK Law Commission on Family Law, Review of Child Law: Guardianship, published in 1985 by the Law Commission, then under the chairmanship of Ralph Gibson J. The position at common law as it appears from that report appears to be that although a guardian of a child’s estate appointed pursuant to an instrument, such as a testamentary guardian appointed by will or by order of the court, has control of the child’s property that can be applied for the child’s benefit, the guardianship of a parent by nature (a status applicable only to a father in the 19th century), or by nurture, has rights only in relation to the person of the child and not in relation to the child’s property. That is to say, at common law the parental right was not co-extensive with the power of a testamentary guardian or a guardian appointed by the court to the child’s estate. The Law Commission said (at para 2.23) that guardianship of the child’s estate is akin to trusteeship, with the important difference that the child’s property is not vested in the guardian and that: A guardian of the estate has, subject to the rights and powers of statutory owners, personal representatives and trustees for sale, the right to recover rents and profits from the minor’s land and to manage his personal estate for the duration of their guardianship, ie he can control the income due to the infant and any of the personal profit to which the infant is legally as well as beneficially entitled, and must account to the minor for the profits and income of the estate received by [the guardian].": Dark v Dark [2016] NSWSC 1223, [79].

Criteria: Best interest of the child

• ** Case appears to ameliorate the uncertainty: "19. Ms B was testate, at the time of her death. She owned the house in which she, Ms Halliday and the children were living in at the time of her death. In her will, she named Ms Halliday as the children’s testamentary guardian pursuant to the provisions of the Guardianship of Infants Act 1940 (SA).  Clearly this legislation long predates the Family Law Act and was passed in a vastly different social context.  ... 88. I acknowledge the sensitivity of Ms Halliday’s position. I also acknowledge the important fact that the late Ms B appointed her the children’s testamentary guardian and, in such circumstances, it is only natural that Ms Halliday will feel that she has let her mother down or betrayed her dying wishes if she does not continue the struggle to maintain some form of parental authority with Mr Gelber. 89. It is these potent emotions which inform Ms Halliday’s  heartfelt desire, expressed in her oral evidence to me that she “wants to be seen as a parent” for X and Y.  In the circumstances, I can understand why she would feel this way.  However, in my view, I must approach the case from the perspective of the children’s best interests and what is workable and feasible in regards to relevant decision-making in regards to the children. ... 93. The Federal Circuit Court is invested with the judicial power of the Commonwealth of Australia pursuant to Chapter 3 of The Constitution. In lay and general terms, it exercises judicial power for laws made by the Federal Government of which the Family Law Act 1975 (Cth) (“the Act”) is one such piece of legislation. 94. As such, the Federal Circuit Court has no jurisdiction to apply legislation made by any state parliament.  If a state law is inconsistent with a law of the Commonwealth, the Commonwealth law will prevail. 95. Part VII of the Act deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA] 96. Pursuant to section 61C(1) each of a child’s parents, of a child under 18, has parental responsibility for the child concerned. Pursuant to section 61B, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. 97. Clearly, given his status as a biological parent of X and Y, Mr Gelber has and retains these duties and powers in respect of the children, whereas Ms Halliday does not and has never held them formally. ... 100. Accordingly, it is parents who have duties in respect of their children rather than other relatives specifically under the Act. However the legislation does recognise the obligation of parents to fulfil their duties and meet their obligations towards their children and by necessary implication individuals other than parents can be authorised to fulfil such duties in the event of parental failure. 101. The Act also recognises the right of children to maintain relations with relatives who are significant to them and to share the cultural orientation of their relatives. Accordingly, Ms Halliday’s relationship with the children is capable of being recognised under the Act. She has standing to apply for a parenting order in respect of X and Y. 102. A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions [section 64B(2)]. 103. Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. Accordingly, the applicants have legislative authority to seek the orders, which they do. 104. In addition, as a consequence of the provisions of section 65D, the court is empowered to make whatever parenting order it considers “proper”. Pursuant to section 64B parental responsibility can be allocated to two or more persons. Accordingly aspects of propriety attach to the allocation of parental responsible. 105. As such, the court must consider what is fit, suitable or right for the particular family concerned. Parental responsibility is a difficult concept to fit into a definitive box or category, as is apparent from the loose end definition provided by section 61C. In my view, the meaning of the concept must be derived from the surrounding provisions of the Act, particularly the overall aims and objectives provided by it in regards to the care and parenting of children. 106. These emphasise the importance of individuals, involved in the care of children, living up to their responsibilities, in respect of children in their orbit, so that each such child achieves their full potential.  In determining how parental responsibility is to be conferred in this case, I must remain focussed on the best means by which X and Y can have a happy remainder of their childhood and do the best they can at school and in all their other endeavours in life, with the aim of ensuring they are well adjusted and productive adults. 107. Clearly this provision, when considered in the light of the objects and principles underlying Part VII, contained in section 60B, is supportive of the concept of parents (and other relevant individuals) sharing parental responsibility and meeting their joint responsibilities concerning the care, welfare and development of the relevant children. 108. As Cronin J has observed in Bartel & Schmucker (No 3)[7] adequacy and propriety of parenting are very subjective and must be affected by the parents’ physical, emotional and financial capacities and circumstances of the family concerned.  In this context, Cronin J said as follows: “An element of the subjective assessment is to try and work out ways that ensure that parents, subject to their capabilities, fulfil all of their duties and responsibilities and that they jointly share those parenting tasks and agree about how their children should be raised so that the children ultimately do benefit from the guidance and role modelling of their parents.” [7]  Bartel & Schmucker (No 3) [2012] FamCA 1094 at [13] 109. Accordingly, the ultimate consideration in this case cannot centre on the personal feelings of either Mr Gelber or Ms Halliday.  The case must be determined by what is best for X and Y.  In my view, this will be influenced by what will work or be effective in the particular circumstances of the case concerned.  This is particularly so given the ethos that parental responsibly is a thing to be shared and jointly discharged. 110. Parental authority arises, at common law, with the incidence of becoming a parent. The Act recognises this conferral can be modified, if it is proper to do so, subject to the overall best interests of the child to do so and can in appropriate cases be conferred on individuals who are not a child’s parents.  111. In Bartel & Schmucker (No 3) Cronin J said as follows regarding the nature of parental responsibility: “Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [8] [8] Ibid at [18] 112. As Cronin J observes, this concept of parental authority being shared between those on whom it is conferred arises from the directions given in the Act as to how various categories of decision are to be actually made by those holding positions of authority in respect of children. The legislation recognises that there are basically two categories of decision which have to be made in respect of children. 113. An order which provides for shared parental responsibility requires the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC]. 114. Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent. 115. Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them.  This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made. 116. Accordingly, Ms Halliday will be able to make quotidian decisions regarding X and Y, when they are in her care, which will be frequent, given the terms of the agreement between the parties in respect of time spending arrangements. 117. In this case, I accept that Ms Halliday is a person who is concerned with the care, welfare or development of X and Y.  I further accept that Ms Halliday’s concern, in this regard, arises through her status as the children’s oldest adult half sibling; her love for the children; the fact that she provided for their care for a significant period following their mother’s death; and because of the provisions of the late Ms B’s will. 118. It would seem to be the case that pursuant to her will Ms B appointed Ms Halliday as the testamentary guardian of X and Y. Section 13 of the Guardian of Infants Act 1940 (SA) provides as follows: (1) The father of an infant may by deed or will appoint any person to be guardian of the infant after his death. (2) The mother of an infant may by deed or will appoint any person to be guardian of the infant after her death. (3) Any guardian so appointed shall act jointly with the mother or father, as the case may be, of the infant so long as the mother or father remains alive unless the mother or father objects to his so acting. (4) If the mother or father so objects, or if the guardian so appointed as aforesaid considers that the mother or father is unfit to have the custody of the infant, the guardian may apply to the court, and the court may either refuse to make any order (in which case the mother or father shall remain sole guardian) or make an order that the guardian so appointed shall act jointly with the mother or father, or that he shall be sole guardian of the infant, and in the latter case may make such order regarding the custody of the infant and the right of access thereto of its mother or father as, having regard to the welfare of the infant, the court may think fit, and may further order that the mother or father shall pay to the guardian towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the mother or father, the court may consider reasonable. The powers conferred on the court by this subsection, in cases where the appointed guardian is to be the sole guardian of an infant to the exclusion of its mother or father, may be exercised at any time and shall include power to vary or discharge any order previously made in virtue of those powers. (5) Where guardians are appointed by both parents, the guardians so appointed shall after the death of the surviving parent act jointly. (6) If under the preceding section a guardian has been appointed by the court to act jointly with a surviving parent, he shall continue to act as guardian after the death of the surviving parent; but if the surviving parent has appointed a guardian, the guardian appointed by the court shall act jointly with the guardian appointed by the surviving parent.” 119. Section 65K of the Family Law Act deals with what occurs when there is a parenting order in existence, which deals with whom a child is to live and that person dies.  In this case, at the time of Ms B’s death, there was a parenting order which dealt with whom X and Y were to live, namely their late mother.  The consent order of May 2017 did not provide for what was to happen in the event of Ms B’s death.  The order was not subsequently changed. 120. Pursuant to section 65K(2) a surviving parent cannot require the children to live with him or her. Section 65K(3) specifically provides that a surviving parent and any other person may apply for a parenting order subject to the provisions of section 65C, namely any person with a level of concern in issues to do with the welfare of the child concerned. 121. Section 65K and the related provisions of Part VII, being Federal legislation, supplant the provisions of the Guardianship of Infants Act. Ms B was not able to bequeath any form of parental responsibility, for X and Y, to Ms Halliday, pursuant to the provisions of her will.  The issue falls to be adjudicated pursuant to the provisions of the Family Law Act. 122. Accordingly, Ms Halliday has status to bring her application for conferral of some form of parental responsibility upon her notwithstanding the fact that she is not a parent of either child.  Whether this should occur depends on whether, firstly, in all the circumstances of the case it would be proper to do so, in the sense that there is a state of affairs fit or amenable to do so; and secondly, it is  an outcome calculated to be in the children’s best interest. 123. Whether it is proper to confer some form of parental responsibility, on two individuals, must turn on how easily the individuals can share that responsibility and, if necessary compromise their views and reach a position based on consensus, particularly in respect of an issue of major long term importance to the child concerned. 124. Issues to do with the children’s best interests are to be determined by reference to the criteria listed in section 60CC of the Act. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. ... 134. I also accept that Ms Halliday loves X and Y and, because of the death of Ms B, has a special role in the children’s lives, which was recognised by Ms B’s will.  However, whilst being sensitive to Ms B’s views, I must approach the issues arising in this case from a consideration of the legal considerations delineated in the Family Law Act. ...": Gelber & Halliday [2020] FCCA 1860 <https://jade.io/article/757737>. 

• cf Monckton & Viola [2010] FamCA 737.

• * cf "[58] The court is of the view that: ... b) Order (j) as sought by the father is arguably beyond jurisdiction and more in the nature of a testamentary/guardian appointment in that the father seeks to prescribe by order in this court what would happen in the hypothetical event of his own death and the death of his wife, Ms K, not a party to these proceedings, including the allocation of the father’s role to Ms K in the event of his death and in the case of her death to Mr M similarly, not a party to these proceedings. In the event there was jurisdiction, the court would not exercise it as there is insufficient evidence to determine whether such orders if they could be made, would be in the best interests of the children at the relevant time. c) Order (k) as sought by the father has similar problems to that raised in (b) above namely that while it is likely that if the mother was to die the children would otherwise live with the father, that potentially could be the subject to application made by any other person concerned with the care, welfare and development of the children at the time. That, however, is not something that the court would entertain in circumstances where the mother is a party and otherwise alive and well.": Stevenson & Shepherd [2015] FCCA 1306. 

• re adoption: "[20] Agnes is not old enough to consent to her adoption, but she has an age-appropriate understanding of what an adoption order would mean for her relationship with Deborah. She calls Deborah “mummy [Deb]” and sees the other children in the home as her “brother” and “sister”. She has stated: “I love my family and my home”. It is clear she has a strong attachment to Deborah and Deborah’s family. [21] Agnes’s physical, emotional, and educational needs are being well met by Deborah.5 Deborah has consistently demonstrated her capacity to care for Agnes’s health, developmental, and behavioural needs, and has supported Agnes in navigating her diagnoses of Reactive Attachment Disorder and Oppositional Defiant Disorder. Deborah is committed to encouraging Agnes to maintain her connections with her family and cultural identity, and considers this to be emotionally beneficial to Agnes.6 [22] Deborah is an experienced and devoted parent to Agnes.7 She parents Agnes in a manner which is child focused and nurturing, and it is clear she is deeply committed to Agnes’s needs. I understand that Deborah has identified Ruth as a testamentary guardian in the event that Deborah is unable to care for Agnes.8 Thus, Deborah is well suited as a parent to Agnes. [23] I am comfortably satisfied that an order for adoption would be in Agnes’s best interests.": The Adoption of Agnes (a pseudonym) [2024] NSWSC 934.

• re adoption, testamentary guardian: "[12] In the present case, the Court is satisfied by the additional evidence that suitable, legal arrangements will be put into place upon the making of an adoption order to ensure that Natalie will be adequately cared for if something were to happen to Veronica. In making the adoption order, the Court will direct that an affidavit be filed not more than six weeks after the date of the adoption order to prove that those arrangements have been made by attaching Veronica’s new will. [13] By reference to her affidavit set out in [6] above, it appears that those advising Veronica have taken the view that she will not be able to appoint a testamentary guardian for Natalie until after an adoption order has been made. The Court makes no criticism of that. I assume that view has been taken because s 14(1) of the Guardianship of Infants Act 1916 (NSW) (the Guardianship Act) provides that “[t]he parent (including a mother or father) of a minor may by deed or will appoint any person to be guardian of the minor after his or her death”. It is only upon the making of an adoption order that Veronica will be regarded in law as the parent of Natalie (see s 95(2)(c) of the Adoption Act). [14] Given that a will does not take effect until the death of the testator, there may be much to be said for the proposition that an appointment of a testamentary guardian will be effective provided that the testator is the legal parent of the child at the date of the testator’s death, even if he or she was not the legal parent at the date of the will. Alternatively, an appointment expressed to be conditional upon an adoption order being made could be argued to be effective. However, an essentially uncontested application such as the present is not an appropriate vehicle to determine these issues and the conservative position taken by Veronica’s advisers is entirely appropriate. [15] Insofar as the Court requires evidence about testamentary and related arrangements for the child in an adoption application by a single person such as the present, in my respectful opinion it should generally include: (1) An undertaking to the Court by the proposed adoptive parent that, within one month of the adoption order being made, she or he will appoint a testamentary guardian or guardians, and that such an appointment will be kept current while the child is less than 18 years old. (Evidence of a current appointment of a testamentary guardian or guardians would be required in the place of such an undertaking if the issue referred to in [13] and [14] above is resolved by a decision of the Court or an amendment to the Guardianship Act.) (2) An affidavit from the proposed testamentary guardian or guardians consenting to their appointment as such and providing evidence as to their age, health, financial and other circumstances relevant to establishing their suitability, including (if this is intended) their willingness to care for the child should the proposed adoptive parent become temporarily or permanently seriously incapacitated. (3) If this has not already been dealt with by an affidavit of the kind referred to in the preceding sub-paragraph, an affidavit from a person or persons who are willing to care for the child if the proposed adoptive parent becomes temporarily or permanently seriously incapacitated, confirming that they are prepared to do so and providing evidence as to their age, health, financial and other circumstances relevant to establishing their suitability.": In the adoption of Natalie [2021] NSWSC 254.

[H] Orders Courts are Critical of: 

• "Rather, the orders are beset by two other defects: first, their operation is tantamount to the divestiture of judicial power and the unlawful conferral of such power upon a third party to determine the proper future parenting arrangements for the child; and secondly, the orders are aspirational and unenforceable, not prescriptive and enforceable. Courts exercising jurisdiction under the Act must decide justiciable disputes, by conventional adversarial procedure, between imperfect litigants on the available evidence according to law by making prescriptive and enforceable orders within statutory power to quell the controversy. That is the unique and essential function of judicial power (Rizeq v Western Australia (2017) 262 CLR 1 at [52]; Fencott v Muller (1983) 152 CLR 570 at 608; Harrington v Lowe (1996) 190 CLR 311 at 325). The judicial function cannot be delegated to others, apart from to registrars in limited circumstances, and only then subject to the right of de novo judicial review (Harris v Caladine (1991) 172 CLR 84 at 95, 120–122, 145, 150–151, 160 and 163–164). Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences  ... In this instance, the primary judge did not confine his role to simply deciding the case on its merits by reference to the evidence which the parties elected to adduce. His Honour tried, but failed, to formulate orders which would remedy the deficiencies in the evidence about the child’s future safety in the father’s care and dictate via the use of an intermediary how the child would be prospectively protected from the risk of harm, undoubtedly hoping that would prove beneficial for the child and the parties. However, orders of this type have been identified and criticised by the Full Court in the past (Re David (1997) FLC 92-776 at 84,575–84,576; Rader & Rader & Ors (No 2) [2019] FamCAFC 227 at [53]). ...  Moreover, Order 4(b) is not prescriptive because it neither commands the father to do something nor restrains him from doing anything. It is merely an invitation for the father to participate in further therapy, incentivised by his then greater involvement in the child’s life. But if litigants are genuinely motivated to improve their parenting capacity, they will do so without the need for any order to regulate their decision. On the other hand, if they do not genuinely desire any such improvement, any order intended to cajole such an outcome is likely to be unsuccessful at best and disregarded at worst. ... Even if the father accepts the invitation within Order 4(b) and fulfils all of the conditions it imposes, there is still no way for him to enforce the ensuing orders enabling the child to spend more expansive unsupervised time with him. If the mother refuses to comply with the extended orders then, in determining any contravention application brought against her by the father, the Court could not conceivably reject her defence of “reasonable excuse” for the breach because she is denied any way of verifying the reliability of the psychologist’s opinion that the father no longer poses any risk of harm to the child. The orders unreasonably compel the mother to accept and act upon the subjective opinion of an unknown therapist chosen by the father.  If, as the primary judge found on the available evidence, the father currently poses a risk of harm to the child which could only be satisfactorily attenuated by professional supervision, then his Honour ought have made orders to that effect and no more. While orders for long-term or indefinite supervision are generally discouraged as being undesirable (Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Moose & Moose (2008) FLC 93-375 at [119]; B and B (1993) FLC 92-357 at 79,780), such orders have never been prohibited when the only unpalatable alternative is the complete elimination of a parent from a child’s life (Champness & Hanson at [216]; Re C and J (1996) FLC 92-697 at 83,341–83,342 and 83,351–83,352). Every case must be decided on its own facts (Bielen & Kozma (2022) FLC 94-123 at [67]). If the evidence was insufficiently probative to permit his Honour to confidently make definitive orders regulating the child’s future arrangements beyond the point of supervision, the problem was not solved by making additional orders designed to procure or manufacture the necessary expert evidence to help an unknown psychologist then make the decision about the child’s longer-term future.": Lainhart & Ellinson (2023) FLC 94-166, [29], [31, [34]-[37]. 

> DISTINGUISHING from Lainhart: "I am mindful of the decision of the Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200 wherein Austin J, delivering the leading judgment of the Court which with Aldridge J and McClelland DCJ agreed, observed that: 34.          …[I]f litigants are genuinely motivated to improve their parenting capacity, they will do so without the need for any order to regulate their decision.  On the other hand, if they do not genuinely desire any such improvement, any order intended to cajole such an outcome is likely to be unsuccessful at best and disregarded at worst. 29.          Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act.  Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences. That particular case involved an appeal from a decision of a trial judge who found that the father should only have supervised time with a child pending undertaking some cognitive behavioural therapy from a psychologist, upon the completion of which the father’s time would graduate to unsupervised time.  The Full Court set that decision aside, finding it was an unreasonable and inappropriate divestiture of judicial power to a psychologist. And in the course of Austin J’s reasons his Honour was critical of the decision to confer such power upon a third party, as well as noting that the orders were aspirational and unenforceable. I will not set out in detail what his Honour said, but I am certainly mindful of that decision here.  On one view, why should I order the father to undertake a ‘Parenting After Separation’ course?  He may learn nothing from it.  If his attitude to the course is the same as what I saw in the witness box, then he likely will learn nothing from it. However, he is an intelligent man.  He tells me he will do the course if the Court orders him to do so.  The course is clear in terms of what it teaches.  It is not a situation of uncertainty as was the case in Lainhart & Ellinson where it was not clear exactly what the purpose of the cognitive behavioural therapy was. I could tether the father’s overnight time to the requirement that he undertake a ‘Parenting after Separation’ course; this would be a legitimate parenting order within the meaning of section 64B(2) of the Act. The question is, really, whether I should do so – whether it would be an appropriate exercise of discretion.  What if, for example, the father learns nothing from the course?  What if he obdurately refuses to take anything on board?  These are all real possibilities in this case. But what is the alternative?  If I were to make an order that the father’s time remain stuck at eight (8) hour periods ad infinitum, this is not what the mother wants, nor do I consider that it would be in the best interests of X who will not always be an eight (8) year old boy. Like his older half-sister Ms F, X will grow up and learn to see all the adults in his life from his own perspective.  He will not always be a young boy, and he is someone whose long-term future needs to be balanced carefully. If I order that the father’s overnight time commence upon the father undertaking a PAS Course and with the expiry of the period of time referred to and recommended by the Family Report writer, I create the additional safeguard that the boy will have had the opportunity to grow a bit older and to develop that improved cognition and that greater understanding of the world and, perhaps, hopefully, to have reduced some of his anxiety. It is a matter of balancing up two possibilities.  Either I stop the father’s time at daytime visits, which no-one wants me to do, or I increase his time to include overnights when X is older, conditioned on him doing a PAS Course from which he may learn precisely zero, but he may learn something.  He may learn something significant; I simply do not know. I regard the PAS Course as a necessary precondition to at least give the father the opportunity to improve some of the jagged edges in his co-parenting and his parenting.  But knowing that it is a somewhat imprecise exercise that will not be re-visited by this Court I do not consider it an improper divestiture of judicial authority to the provider of a PAS Course because I do not consider the child will be at unacceptable risk in spending overnight time with the father. I do consider that the father’s time on an overnight basis will need to be inherently limited by reason of the attitudes and behaviours that I have seen on display from him as referred to in these reasons.  That is to say, time can graduate to overnight when the child is ten (10).  I believe that the child will cope, and I am satisfied that he will.  I hope – and I express it as a hope only – that the father will learn something from the PAS Course, but he will at least be required to do it and to be given the opportunity to improve his own parenting and his own attitudes for X’s sake. If the father attends the course and provides a certificate of completion, then he can have overnight time.  If the parenting arrangements go awry down the track because he continues to adopt an ‘all or nothing’, or a ‘black and white’ or a ‘you are with me or against me’ approach, the father will have only himself to blame. But I do not consider that it would be appropriate to deprive X of the opportunity and the benefit of a relationship with his father that is meaningful on the basis that the father may not complete the PAS adequately (in terms of learning). In short, it is the lesser evil to make the order the mother proposes than to simply fix the father’s time with X rigidly at daytime only.": Renna & Grenville [2023] FedCFamC2F 1638, [204]-[219], *[209].

-> cf whether such courses do ameliorate risk or improve parental capacity, turns on facts: Boerio & Nelson [2025] FedCFamC1A 99, [30]-[35]. 

> APPLICATION of Lainhart: "The Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200 at [29] held: Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences. In this matter, I am not satisfied that the father has demonstrated any capacity to undertake and implement therapeutic intervention in relation to his drug use. I find that the proposal of the ICL and the father is aspirational in its prediction of the father’s recovery from drug use and association. Throughout this hearing, the father failed to show any insight into the impact that his longstanding association with and use of drugs has had on his family. This included directly exposing X to his drug use. The father demonstrated no insight as to possible risks that he exposed the children to in dealing drugs from the former matrimonial home. When directly asked about his drug use and the impact it had on his family, he was clear that, in his mind, the only person disadvantaged was himself. I had the impression that he meant that he was disadvantaged because he had been caught in perpetrating falsehoods. This is in circumstances where the father was strident in his denials that his drug use had impacted on his decision-making and his parenting capacity. I do not find that it is appropriate that I make orders for the father to undergo drug testing or counselling given the findings made in relation to unacceptable risk. That is for the father to undertake if he forms the view that he has a problematic use of drugs and alcohol and/or he accepts my findings on family violence.": Clayton & Clayton (No 3) [2024] FedCFamC2F 994  [431]-[434]. 

> APPLICATION of Lainhart - therapy and testing for rehabilitation: "Ms G recommended in the second family report that both parties undertake psychological therapy. Ideally, they would follow this recommendation for the benefit of the children. However, neither party sought an order that the children’s time spent with the other be conditional upon them attending counselling. I referred earlier in my reasons to the mother’s attitude towards attending recommended counselling. I note in event, the Full Court’s observations in Lainhart & Ellinson[29] that: Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences. [29] (2023) FLC 94-166 at [29]. The orders I make are made on the basis of how each party presented at the time of the final hearing and not predicated on there being any change in their attitudes or parenting capacity. I expect the mother will find it difficult to accept the orders I make given her strong negative feelings about the father and her belief that there is no benefit to the children of spending time with him. The father will likely be disappointed that my orders do not provide for the children to spend more extensive time with him. Regardless of how they might feel about the orders I make, the parties are required to follow the orders. The expert evidence is clear that it is in the children’s best interests for them to support the children spending time with the father and for the children to be safeguarded against the parties’ negative feelings towards one another. The parties’ obligations arising from the orders, the consequences for non-compliance and services that can assist them to understand their parental responsibilities and adjust to and follow the court orders are set out in the information sheet which will be annexed to the final orders. I encourage them to each seek professional support from a psychologist or counsellor to support them to adjust to these orders including to support them to support the children to adjust to the orders. I will make an order authorising the parties to provide a copy of the final orders, my reasons and the second family report to any psychologist or counsellor they may each attend upon for this purpose.": Murati & Roca [2024] FedCFamC2F 1672, [230]-[233]. 

> APPLICATION of Lainhart - therapy and testing for rehabilitation: "The ICL seeks interim orders and that is supported by the Respondent.  The ICL orders as recited earlier seek orders that would direct the Respondent to undertake therapy and testing that would assist him rehabilitate.  Although the orders sought by the ICL do not go as far as those criticised by the Full Court and ruled as without power in the decision of Lainhart, observations in that case are apposite to this. 28          Courts exercising jurisdiction under the Act must decide justiciable disputes, by conventional adversarial procedure, between imperfect litigants on the available evidence according to law by making prescriptive and enforceable orders within statutory power to quell the controversy. That is the unique and essential function of judicial power (Rizeq v Western Australia (2017) 262 CLR 1 at [52]; Fencott v Muller (1983) 152 CLR 570 at 608; Harrington v Lowe (1996) 190 CLR 311 at 325). The judicial function cannot be delegated to others, apart from to registrars in limited circumstances, and only then subject to the right of de novo judicial review (Harris v Caladine (1991) 172 CLR 84 at 95, 120–122, 145, 150–151, 160 and 163–164). 29          Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences. The orders sought by the ICL border on being aspirational directions about how a litigant– in this case, the Respondent, should improve his parenting capacity in the hope of enhancing the children’s experience with him. I am bound by the observations of the Full Court. It was not argued before me that the ICLs orders were beyond power or that they were “untethered” or that they could not be authorised by reference to section 13C of the Act recited earlier, but in substance those orders are really a desperate plea by the ICL about what the Respondent could do to assist his children’s lives by assisting his own life. There is a conditional element to the orders sought by the ICL and the Respondent.  I am not satisfied that there should be further interim orders made on the state of the evidence at this point, hence I am left with the burden and responsibility of making final orders.": Payne & East (No 2) [2024] FedCFamC2F 377, [301]-[303]. 

• Orders that cause party to forfeit usual confidentiality in medical treatment: "21. The orders therefore require the father to forfeit the usual confidentiality which attends his medical treatment. The orders also create a professional conflict for the psychologist, who is simultaneously appointed by the orders as a treating therapist, owing a therapeutic duty of fidelity to the father, and an expert witness, owing a forensic duty of impartiality to the mother. If further proceedings eventuate, will the therapist then be a compellable witness as the single expert or as the father’s adversarial expert? If the former, why is that so when the mother has been given no say in the choice of psychologist. If the latter, fairness dictates that she then be able to engage her own adversarial expert, leaving open the prospect of further litigation degenerating into a tussle between experts, which eventuality Pt 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) strives to avoid.": Lainhart & Ellinson [2023] FedCFamC1A 200, [21].

• "Secondly, to the extent that the psychologist is required to confirm that the father no longer requires psychological therapy, that must be a conclusion that the therapy has been such that the father no longer poses an unacceptable risk of harm to the children. It is to be recalled that the purpose of Order 13 is to cause the father to change his behaviour in order to ameliorate the risk of harm. Therefore, successful completion must be the same as no longer posing a risk of harm. So understood, that order to that extent is a devolution of the Court’s power to the psychologist, who is in effect making a finding, by necessary implication, as to the acceptability of the risk of harm posed to the children by the father. That is an improper divestiture of judicial power as explained in Lainhart at [26] and following.": Miyajima & Mikkelsen [2024] FedCFamC2F 720, [20].

> See also, Bretz & Jankowska [2024] FedCFamC1F 579, [323]-[324]. 

• cf Lainhart and Miyajima: "10. Until [Y] turns six years of age, the mother must continue to engage in psychological treatment with a clinical psychologist regularly (no less than once each fortnight) with expertise in the area of trauma and trauma response for trauma focused cognitive behaviour therapy to treat – (a) [personality disorders/ poor mental health]; (b) trauma and trauma-response, and the impact of stress on the mother; and (c) any other matters deemed appropriate by the mother’s treating clinical psychologist with any such psychologist treating the mother to be provided by the independent children’s lawyer (and by the mother for any subsequent psychologist treating the mother) as soon as practicable after these orders with a copy of the family report by Dr [F], the psychiatric report of [Ms G], a copy of these orders and reasons for judgment in this matter. 11. Until [Y] turns six years of age – (a) the mother must provide the father with a written report from her treating clinical psychologist about her attendance, treatment and progress every six months, at the mother’s expense; (b) such report must be provided by the mother’s treating psychologist directly to the father’s nominated email no less than 14 days before the children’s time with the mother is due to increase pursuant to paragraphs 5 and 7 of these orders; (c) the children’s time with the mother pursuant to paragraphs 5 and 7 of these orders will not commence until the report is provided to the father by the mother’s treating psychologist; and (d) the children’s time with the mother pursuant to paragraphs 5 and 7 of these orders will proceed subject to the mother’s compliance with paragraphs 10 and 11 of these orders. (As per the original) ... [68] The mother submitted that the construction of the orders under challenge are tantamount to the divestiture of judicial power as identified by the Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200 (“Lainhart”). That complaint is not accepted. [69] Giving context to the orders: (a) As recorded earlier in these reasons, findings were made as to the mitigation of the risk to the children’s safety having a nexus to the mother’s mental health treatment to date and prospectively (at [67(i)] and [68]). (b) The orders reflect the recommendations of Ms G that the mother should engage in the specified ordered treatment for 12 to 18 months (Transcript 14 November 2024, p.376 line 1–47 and p.378 line 1–47). (c) In oral submissions, the mother embraced her continued attendance on Dr M and obtaining psychological treatment on the terms opined by Ms G as a pre-requisite to her time spent with the children progressing (Transcript 28 February 2025, p.26 line 33 to p.27 line 13). On one view, as this was the position of the mother during the hearing, she is bound by her case at trial and cannot raise such an issue on appeal (Metwally v University of Wollongong (1985) 60 ALR 68). (d) The primary judge raised with the parties and the ICL during oral submissions as to whether interim orders should be made to enable the mother to progress her treatment (at [45]) prior to final orders being made. The reasons record each of the parties and the ICL urging the making of final orders “that have the effect of concluding this litigation even though a period of 18 months must play out before it can be known whether improvement has been achieved in the mother’s condition based on the intense therapy these orders orchestrate” (at [115]). Each are bound by the parameters of the issues they set at trial. The primary judge identified the necessity of the parties to engage with the provisions of s 65DAAA of the Act in the event of future issues arising from the mother’s treatment or absence thereof. [70] Orders 10 and 11 are fundamentally different to the treatment order successfully challenged in Lainhart because the orders made in this case: (a) Define the frequency, period and object of the mother’s engagement with the clinical psychologist; (b) Do not require the treating clinical psychologist to opine as to whether the treatment of the mother should cease or continue (contrast to Miyajima & Mikkelson [2024] FedCFamC1A 208); (c) Do not require the mother’s treating clinical psychologist to make decisions such that there is an abdication of judicial responsibility to the treater; (d) Are framed to impose conditions on the increase of the mother’s time spent with the children for a finite period; and (e) Do no more than require the treating clinical psychologist to confirm in reports that treatment has been provided. [71] The purpose of the facts and terms of the orders do not provide for a further forensic diagnosis of the mother. They scaffold the parenting orders with the assistance the ch 7 experts opined was necessary for relapse prevention and seek to address the core issues regarding the mother’s mental health presentation and her vulnerabilities as they impact on the children. The orders are plain, prescriptive and enforceable. If the mother elects not to comply with the orders, her time spent with the children will not increase. [72] Ground 6 fails.": Shinohara & Shinohara [2025] FedCFamC1A 126. <https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2025/126.html>. 

• Unspecified regime of therapy, to buttress parenting capacity: "140. Each party seeks impermissible stand-alone orders for the other to engage in psychological therapy.[56] Ms Lamar submits that that an order to that effect could be tethered to the parenting orders. So much may be accepted.[57] Mr Lamar submits that if the Court is minded to make such an order, it should be mutual. He indicates his preparedness to consent to such an order for himself. Neither party reduced their proposal to writing. I decline to make the orders alluded to by the parties orally. If parents are genuinely motivated to improve their parenting capacity, I am satisfied that they will do so absent an order to regulate their decision to do so.[58] I am not satisfied that X living with her mother should be conditional upon an unspecified regime of her compliance with therapeutic treatment. Neither am I satisfied that X’s time with her father should be conditional upon him “engaging with” and following directions of his general practitioner or psychiatrist.[59]": Lamar & Lamar [2024] FedCFamC2F 339, [140].

• Unconditional therapeutic counselling: "[143]  The notation records the parties' respective undertakings to participate, together if deemed appropriate by the appointed therapist, in therapeutic counselling in an attempt to overcome their conflict. The father proposed an order to that effect,73 and the mother agreed, but counsel could not identify the legislative power for the court to make such an unconditional order. The order proposed by the parties is not an injunctive order under ss 68B or 114 of the Act, nor a child welfare order under s 67ZC of the Act (see Marriage of L & T (1999) 25 Fam LR 590 at 603–606), and it is difficult to conceive it as a parenting order under s 64B of the Act.": Chamberlain & Sievers [2010] FamCA 794.

• Delegation to parenting coordinator: "[217]  Whilst the definition is a helpful starting point, it is important to realise its limitations. Its genesis is clearly North American where family law jurisprudence allows for aspects of judicial power to be delegated to a non-judicial officer. As Parker and Wilson acknowledge in their article, the High Court’s decision in Harris v Caladine (1991) 172 CLR 84 means that it is very unlikely that judicial decision-making power could be validly delegated to a parenting coordinator. No order could be made under the Act which delegates judicial decision-making power to a parenting coordinator, and no contract between the parties to the orders made under the Act and a parenting coordinator could possibly enlarge that. For all practical purposes in Australia, as a matter of law, the role of the parenting coordinator is to make recommendations, and not make decisions. As will be discussed below, this Court does not believe that s 13D of the Act enlarges the role of the parenting coordinator so that a consequence of failure to comply with the recommendation can be reported to the Court. [218]  The Court accepts that in certain circumstances, and notwithstanding the legal limitations identified above, parties could agree to be bound by recommendations made by the parenting coordinator as a matter of contract, but their only enforceable right would be to enforce the contract. The Court doubts that it would have jurisdiction in relation to that contractual dispute as it would not be a matrimonial cause for the purposes of s 4(1) of the Act. ...": Dyne & Dyne (No 3) [2023] FedCFamC1F 1094.

• Longstanding substance abuse and mental health problems - inadequacy of proposal in consent orders: "[214]  In the circumstances of this case where there have been longstanding substance abuse and mental health problems and lack of acknowledgement of same on the part of the father, the Court cannot possibly assume the father’s substance abuse and mental health issues will have resolved at the expiration of six months, so that the father no longer poses a risk to X, such as to warrant no supervision. It is impossible to predict how the father’s personal and health circumstances may evolve in the future or whether, even if he did attend upon a mental health professional, the father would meaningfully engage with the therapist, noting Dr F’s evidence that an aspect of meaningful therapy and treatment is around meaningful engagement and not just about attending.38 When the father has wilfully and blatantly thus far failed to engage with recommended mental health treatment, specifically an addiction specialist psychologist, for the Court to make self-executing orders progressing to unsupervised time between the father and X would be an abrogation of responsibility to ensure X’s safety. Neither can a court make orders delegating judicial decision-making responsibility at a future time based on a future expert report. Per Austin J at [31] of Lainhart & Ellinson, orders of this type have been identified and criticised by the Full Court in the past (Re David (1997) FLC 92-776 at 84,575–84,576; Rader & Rader (No 2) [2019] FamCAFC 227 at [53]). The judicial function cannot be delegated to others, apart from registrars in limited circumstances, and only then subject to the right of de novo judicial review (Harris v Caladine (1991) 172 CLR 84 at 95, 120–122, 145, 150–151, 160 and 163–164). ... [218]  The father did not adduce any evidence of current relapse prevention strategies for either use of illicit drugs or misuse of prescription drugs. All that was proposed was the father’s future engagement with a psychologist specialising in addictions, which, as referred to above, he had been referred to by Dr E in April 2024 and had failed to engage as recommended. There were no particulars about the identity, qualifications, or availability of a suggested psychologist. The father has had ample time between the referral and the date of trial, to avail himself of specialist psychological treatment to address the underlying cause of his problems, and to suggest he does so now is too little too late. I have no confidence he would engage in a meaningful manner with any such psychologist, nor do I have any fulsome evidence about how that would ultimately assist both his substance abuse and mental health. In any event, the Court is required to assess litigants as they are at the time of the trial and not what they aspire to achieve; Lainhart & Ellinson (2023) FLC 94-166. [219]  For the above reasons, I find the unacceptable risk of harm to X cannot be ameliorated by safeguards, which include professional supervision of time, an illicit drug testing regime and proposed future plans for the father to adhere to a mental health treatment regime or meaningfully engage with an addiction specialist psychologist. Therefore, the only available option is to make orders largely in accordance with those sought by the mother, which are in X’s best interests for the reasons referred to above.": Armonas & Armonas [2025] FedCFamC1F 220.

• Imposition of long term supervision arrangement - Issues: "[216]  The imposition of a long-term supervision arrangement is generally not appropriate as a long-term measure; see B and B (1993) FLC 92-357. Supervision is an artificial environment and there is an obvious possibility of X at some future time questioning the requirement for supervision, the potential for her to question her own safety, and to challenge or resent her mother about the necessity for supervision, thus detrimentally affect her relationship with her mother, her primary carer. For all the identified reasons, I do not consider the circumstances of this case warrant ongoing and long-term professional supervision and I so find. ...": Armonas & Armonas [2025] FedCFamC1F 220.

• No provisions or strategies for drug relapse: Armonas & Armonas [2025] FedCFamC1F 220, [218]. 

• "[32]  The father sought to remedy that problem by proposing orders be made compelling him to pay $10,000 to the mother, to help her obtain “short term accommodation”, and to give her a car. However, there are numerous impediments to such orders being made. [33]  First, orders of that ilk are not “Commonwealth personal protection measures” within the meaning of Pt XIIIAA, Div 4 of the Act so there is no source of power to make them. The father submitted that orders imposing such financial obligations, being linked conditionally to traditional parenting orders, then enables their characterisation as parenting orders also, but the submission is rejected. That would be stretching the definition of “Commonwealth personal protection measure” way too far. Nor could the orders proposed by the father be made in the guise of property adjustment or spousal maintenance orders because there is no financial cause on foot between the parties in this Australian litigation. [34]  Secondly, even if there is some source of power to make those orders, they would be no more than a stop-gap measure because the father clearly envisages any financial assistance he gives the mother is only short-term, after which time she would have to rely upon her own financial resources. But she has none, which the father concedes.": Bajek & Bajek (No 2) [2024] FedCFamC1F 526.

• Delegation to family expert whether time spending is to occur: "51. In most cases when the court makes an order for the preparation of a family assessment, it is commonplace that the child is spending time with both parents and/or the parents agree that the child should have a relationship with each parent. Thus, the court is not being asked to specifically consider the time spending that occurs during the observed interactions between each of the parents and the child, as both parents and the court accept that such time spending is necessary for the preparation of the family report and that it is in the child’s best interests that such time spending occur. 52. However, in the circumstances of this case where there has been no time spending between the father and X since mid-2018, there are allegations of sexual abuse, and there is a dispute between the parents about whether there is to be any relationship between the father and the child whatsoever, arguably, the question of whether such time spending is to occur in the context of a Family Report, is in fact a parenting order within the meaning of s 64B(2)(b) of the Act. 53. Taking those matters into account, the delegation of whether such time spending occur to a Court Child Expert / Family Consultant, regardless of their qualifications, is not appropriate. 54. Such a conclusion therefore mandates that in determining the dispute between these parents, as to whether or not there be observed interactions between X and the father during the Family Report, both the principles contained in Division 12A, together with the best interest factors set out in s 60CC apply.": Lewin & Selwyn [2022] FedCFamC1F 1021.

• Stand-alone orders for counselling - Where appellant was ordered to engage with professional mental health treaters – Where such an order was not explicitly tethered to any parenting orders – Where the appellant's concessions at trial and the overall evidence about her mental health establish the "unique circumstances" to support jurisdiction to make such an order – Where it is concluded this order is ultimately unenforceable - “Stand alone” order for mother to undertake counselling was within power but was functionally unenforceable and set aside: Zyma & Begum (No 2) [2025] FedCFamC1A 109.

• Family therapy - parenting capacity: "[8]  Ironically, perhaps, in light of the long history of conflict and litigation, each of the mother and father contend (in differing ways) that this court should, in effect, not give up hope. Rather, they seek to have the court place faith (or at least hope) in the continuation of a process (or processes) of what might conveniently be called “family therapy“ that seeks to focus on assisting the child, and perhaps additional or parallel counselling or therapy that seeks to assist them with their “adult issues“ as they were called in the trial. [9]  The father contends that the process/processes just described will lead, effectively by agreement, to a resumption of orders made by Jordan J on 16 October 2009 that, in broad terms, provided for him to have alternate weekend time with the child, and time during school holidays. If, however, the faith or hope given to the therapeutic processes provided for is not productive of that, and conflict continues to flourish with consequent effects on the child, the father will, in effect, accept that what the ICL now contends for should then occur. In that respect, he contends for a “sunset clause“ in respect of the therapeutic interventions of 12 months. [10]  The mother, too, implores the court not to, as it were, give up hope. She, too, seeks to have the court place hope (or faith) in a process similar to that just referred to. She, however, has a different end point. She contends that consequent upon the therapeutic process (to which she does not attach a time frame) orders should be made for what can conveniently be described as graduated time, commencing with supervised time and graduating to unsupervised time for a half day each alternate Sunday for six months, and thereafter, each alternate Sunday for the whole day (as well as, in each case, some provision for time on special days). [11]  A central question — indeed, the central question — in these proceedings, is whether the child’s best interests point to faith or hope triumphing over, if not expectation, then the pessimism generated by past events. That central issue of whether any of the mooted orders best meet the child’s best interests aside, the orders posited by each of the father and mother have other difficulties. For example, the mother contends that the unsupervised time just referred to should commence when “the child’s counsellor makes a positive recommendation that the child commence spending unsupervised time“. [12]  Leaving aside questions of interpretation and enforceability, that order, in terms, seems to me to contemplate impermissibly the abdication of judicial function to someone other than a judge (see, for example, Harris v Caladine (1991) 172 CLR 84 at 122, per Dawson J). If that difficulty can somehow be overcome, how might orders be framed that are both clear and enforceable?": Baxland & Vincent [2014] FamCA 330.

• Orders that seek arrangements in the event a parent dies, etc (but note above in Testamentary Guardians re non-efficacy of appointing a TG in Will vis-a-vis Family Law): "[58] The court is of the view that: ... b) Order (j) as sought by the father is arguably beyond jurisdiction and more in the nature of a testamentary/guardian appointment in that the father seeks to prescribe by order in this court what would happen in the hypothetical event of his own death and the death of his wife, Ms K, not a party to these proceedings, including the allocation of the father’s role to Ms K in the event of his death and in the case of her death to Mr M similarly, not a party to these proceedings. In the event there was jurisdiction, the court would not exercise it as there is insufficient evidence to determine whether such orders if they could be made, would be in the best interests of the children at the relevant time. c) Order (k) as sought by the father has similar problems to that raised in (b) above namely that while it is likely that if the mother was to die the children would otherwise live with the father, that potentially could be the subject to application made by any other person concerned with the care, welfare and development of the children at the time. That, however, is not something that the court would entertain in circumstances where the mother is a party and otherwise alive and well.": Stevenson & Shepherd [2015] FCCA 1306. 

• Injunctions: "[211]  An injunction is not, by definition, a “parenting order”.183 The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.184 Whilst counsel did not address me on the issue, the only power afforded to me to make the injunctive orders sought by the parties is pursuant to s 68B of the Act. Section 68B is not subject to the paramountcy principle — the words of the section lack any express reference thereto. This issue has been addressed in many authorities and, as summarised in Attwood & Attwood [2022] FedCFamC1F 6, has to some extent been reconciled: 31.… Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so. 32.The Full Court in Bennett v Bennett (2001) FLC 93-088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v R (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93-074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children. 33.Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether … the injunction is appropriate for the welfare of the child, and is otherwise just or convenient.185 [212]  Having regard to Attwood and Bennett, I will consider the injunctive relief sought by giving consideration to the best interests of the children.": Kontou & Naggia [2024] FedCFamC1F 698.

[H-A] Orders that require the co-operation of foreign authorities - aspirational request to foreign authorities

• "29. Put bluntly, it is overwhelmingly clear and transparent that the best interests of X are to resume living, and being educated, in the Commonwealth of Australia, as was his parents’ intention in formal court orders on a number of occasions, including the orders of 14 November 2022 and the orders of 5 September 2024 and the orders of 7 January 2025. I also note that this Court, whilst having personal authority and jurisdiction over the Father, does not have any authority in regard to any authority in Country C. 30. To the extent that these orders and reasons are relied upon by the Mother in Country C in an attempt to have X returned to Australia, I make it clear that these orders outside of Australia are a request to the authorities of Country C and of the relevant state of Country C, whichever that be. Hence, it is respectfully requested that the child welfare authorities, police, and courts of Country C lend their assistance if and when any of them can assist these orders consistent with the law of Country C and assist with the enforcement of this recovery order and with the reunification of the child X pursuant to the orders made in this Court on 14 November 2022 and 7 January 2025 (noting both of those orders were made by consent). 31. As discussed with counsel for the Mother, it is appropriate that all of these orders be brought to the attention of the Father. Further, the liberty to apply is intended to expressly permit him to apply in regard to the two orders that are made effectively ex parte of which he has not had notice of, that being the order or orders relating to the D Street, Suburb E property and the order restraining the Father from leaving Australia. I also point out that it appears that the Father is under a misconception in regard to the effect of the orders as they exist. There is no provision in these orders or any other orders for the Father to be arrested upon his return to Australia, and I wish to make that clear in these reasons. 32. Hence, I also want to make it clear that the purpose of these orders is to facilitate the early and urgent return of X to the country where he was born, and of where he is a citizen, and where he was being educated and to where he was not returned, as had been agreed and ordered on 7 January 2025. It is my request that the authorities in Country C take serious account of those unfortunate circumstances and/or the unfortunate circumstances where X has not been returned to Australia in accordance with the parents’ agreement and court orders and no explanation thereof has been received from the Father.": Baltu & Godoy [2025] FedCFamC2F 323.

[I] Consent Orders Proceedings - issues

• Best interests of the child / welfare - prior contravention of orders - but noting that court may, not must have regard to s 60CC(2), (3) (See especially Garrido for cases after 6 May 2024): 

> Family Law Act 1975 (Cth) s 60CC(4): " (4)  If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3)."

> "I observe that s 60CC(5) of the Act provides: “If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3)”. Thus, in considering whether to make a consent order the court is not required to have regard to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). In the revised explanatory memorandum dated 27 March 2006 to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 it was said at paragraph 77: New subsection 60CC(5) provides that if the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may have regard to all or any of the matters set out in subsections (2) and (3). These subsections contain the primary and additional considerations that a court considers in determining a child’s best interests. This allows the court to take these considerations into account and is consistent with the Government’s policy of encouraging people to take responsibility for resolving disputes themselves, in a non-adversarial manner. The provision is essentially the same as the existing subsection 68F(3). However, s 60CA of the Act provides: “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.  In other words, although in considering whether to make an order with the consent of all parties to proceedings, the court is not required to have regard to all or any of the primary and additional considerations, the court must have regard to the legislative requirement of the best interests of a child.  In LexisNexis Butterworths, Australian Family Law, vol 1 (at Service 215) [s60CC.210] it is said: One of the clear implications of the principle that the child’s best interests are the paramount consideration, and one of the main practical ways in which the proceedings can be distinguished from adversary proceedings, is that the court is not limited to making orders as sought by one or other party.  The court may make different orders if it is persuaded that those orders will better serve the children’s best interests.  Where the court is minded to make orders not sought by either party, procedural fairness will require that the parties have an opportunity to address the court on whether such orders should be made.  Both points emerge clearly from U v U (2002) 29 Fam LR 74; FLC 93-112 (HC), and had previously been established by the Full Court: see In the Marriage of Guthrie (1995) 19 Fam LR 781; (1995) FLC 92-647; In the Marriage of Thorsby (1997) 22 Fam LR 785. Similarly, there are circumstances in which a trial judge should refuse to proceed with a hearing if the evidence is manifestly inadequate to enable a proper decision to be made, and where it is possible for that evidence to be obtained.  The judge in such circumstances has the right, and possibly the duty, either to require the parties to call additional evidence, or to call the evidence if it is available: see Re Evelyn (1998) 23 Fam LR 53 at 65; FLC 92-807 at 85,103. In my view, these observations apply whether the order is made by consent or in adjudicated proceedings.": Reid & Lynch [2010] FamCAFC 184,  [212]-[213]. 

> * "Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters to be considered when determining what parenting order is in the best interests of a child, in the particular circumstances of each case. However, s 60CC(5) provides that if the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection 60CC(2) or (3). Section 60CG nevertheless imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.": Spillett & Chambers [2023] FedCFamC1F 243, [10]-[11].

> *** cases after 6 May 2024:  "Sections 60B, 60CA, 60CC of the Act as amended provide the means by which the Court is to be satisfied that a parenting order is in the best interests of a child, but the provisions are not exhaustive and operate in the context of Division 12A. In my view, these provisions are intended to have application even when parties come to an agreement during the proceedings and invite the Court to make orders by consent. If it were otherwise, the welfare and safety of children would be at risk contrary to the objects of Part VII of the Act, including the Convention on the Rights of the Child that is now emphasised by the amendments. To illustrate that this is so, an extreme example is useful.  For example, if the parties invited the Court to make orders that a child live with a person convicted of sexual abuse of a child, the Court should not be bound to make the orders if it forms the view that the order is not in best interests of the child. The statutory scheme of the Act makes it plain, in my view, that for as long as there are pending proceedings before the Court, the Court's function and duty when making parenting orders is governed by the overriding objects of Part VII of the Act and the best interests of the child. This is the case even when a proceeding is to be concluded summarily by the making of final orders by consent. It is correct to observe that s 60CC(4) of the Act provides: If the Court is considering whether to make an order with the consent of all of the parties to the proceedings the Court may, but is not required, to have regard to all or any of the matters set out in subsections (2) and (3). But the word “may” in this context does not involve discretion to abandon the best interests of a child in consent order applications.  Rather, “may” is enabling and requires the Court to apply the same considerations as set out in subsections (2) and (3) when considering whether to make orders, but always applying its discretionary consideration to those provisions. In conclusion, in this instance with some reservation, I have been persuaded to make the orders in the consent minute because, I emphasise, at this time I largely accept the submissions of the ICL and am sufficiently satisfied that the orders sought are in the best interests of the children, including Y, at this juncture.  I also suspect very strongly that if I do not make the orders then the father may discontinue, leaving the state of affairs to be exceptionally unsatisfactory.": Garrido & Garrido [2024] FedCFamC2F 634, [21]-[26]. 

> "As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth). I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[53]  Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[54] [53] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2. [54] Sections 60B and 60CG of the Act. Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remains important because of the need to make parenting orders that promote the safety and welfare of children.[55] [55] Section 60CC(2)(a). I consider that the assessment of risk of harm to a child remains informed by the principles established MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97.": Coulson & Wayfield [2024] FedCFamC2F 979, [58]-[61].

> ** relatively short judgment: "These are parenting proceedings concerning the child, J, born in June 2005, in relation to which the parents have been able to reach an agreement with the Independent Children’s Lawyer, reflected in Orders that have been initialled by them and the Independent Children’s Lawyer and handed to me. Section 60CC(5) of the Family Law Act 1975 (Cth) (“the Act”) provides that if the Court is considering whether to make an Order with the consent of all the parties to the proceedings, the Court may, but is not required to, have regard to all or any of the matters set out in subsections (2) and (3) of s 60CC of the Act. I do not propose to make any findings with respect to the s 60CC matters, and my comments which follow do not purport to be such findings. I simply record, for the purpose generally, but also having regard to Rule 10.15A of the Family Law Rules 2004 (Cth), that this was a case that was the subject of a significant degree of expert evidence. That includes the Children and Parent Issues Assessment carried out by Ms Z, a Family Consultant, on 29 July 2010; an affidavit of Dr M, psychologist, filed 21 December 2010; and the Family Reports of Ms Z, Family Consultant, dated 15 July 2011 and 23 February 2012 respectively. My attention was also directed by the Independent Children’s Lawyer to what appears from subpoenaed documents obtained from Relationships Australia, and in particular, observations made as per an observational report provided on 6 March 2012. It is clear enough that J presents as an intelligent and well-behaved six year-old, and in that respect is a credit to both of her parents. Having regard to the evidence I have briefly referred to, I am satisfied that the Orders that the parties have been able to agree upon should be made in J’s best interests, and I now make Orders in terms of the Orders as reflected in the Minutes of Consent initialled by the parties and by the Independent Children’s Lawyer and now initialled by me and placed with the file.": Mawson & Mawson [2012] FamCA 172.  

> Supervision orders placed by Court - consent orders: "5. The central issue in the parenting proceedings and the event that instigated the separation of the parties are the allegations J made that the Father had sexually abused her.  The Father, on his affidavit material and in other settings, has always vehemently denied the allegations. ... 9. Given that neither of the parents have given evidence in terms of being cross-examined before me nor, for example, has the treating psychologist of J, namely, Ms G, nor other witnesses that would have been called had the trial proceeded, it is not possible for the Court to reach any firm conclusions or findings of fact concerning either that central issue nor, indeed, other issues in the proceedings. 10. Section 60CC(5) of Part VII of the Act provides that if the Court is considering whether to make an order with the consent of all the parties to the proceedings the Court may, but is not required to, have regard to all or any of the matters set out in subsections (2) and (3) of that section. 11. Subsection (2) of that section is a reference to the primary considerations the Court must have to regard to in determining what is in a child’s best interests.  Those are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.  Subsection (2A) requires that in applying those primary considerations the Court is to give greater weight to the need of protection referred to. 12. Cases such as this bring into sharp focus the competing considerations of the benefit to the child of having a meaningful relationship with both parents, and the need to protect referred to.  Because the subject allegations essentially go untested in terms of a trial contested to its conclusion, it is not open to the Court to make findings one way or the other concerning the central allegations I have referred to. 13. On the one hand, matters such as annexure B to the Mother’s affidavit filed 25 October 2012 which purports to be a journal or a series of entries made by J, is to say the least troubling if it is factually correct. 14. The consent orders that have been reached by the parties are neither consented to nor opposed by the Independent Children's Lawyer.  I was informed this morning that the Independent Children's Lawyer has a certain view about the allegations in terms of their veracity, namely, that she more readily dismisses them based on the exhibit that has been tendered this morning compiled from the police records. ... 18. One potentially troubling feature, so far as the orders are concerned, is that they allow for a progression of Y’s time with the Father given Y’s current age, progressing within a period of about nine months to being on an overnight basis, albeit supervised by Ms C.  I sought from the Mother’s Counsel an explanation as to any reconciliation between the Mother’s apparently firmly held view that something untoward happened as between the Father and J, and orders formulated in these terms concerning Y.  In the end it seemed that fundamental to the Mother’s consideration and in circumstances where it seems the proposed orders are largely consistent with the proposal she made at the outset or earlier today, is the evidence of Dr M, a psychologist, who undertook a sexual abuse risk assessment of the Father.  ... 21. I say all this conscious that it is the Father’s case that he maintains that there is nothing in the allegations, that is, whilst he has no idea why J would mount the allegations that she has, he is vehement in his denials of them and his position is that the allegations are false. ... 24. I would observe at this point, again in circumstances where it is clear that not all the evidence has been tested before me, that on the evidence, such as it is, it could not be concluded that the Mother’s fears concerning J could be classified as irrational or baseless, and the converse, of course, is that the Father’s denials of the allegations remain extant. 25. It is in these circumstances that the proposed orders are put before the Court which, as I have noted, contemplate a graduation of time between Y moving from supervision at B Contact Centre to supervision by Ms C. 26. I raised with the parties that consistent with authorities such as Champness & Hanson,[3] Moose & Moose [4] and Slater & Light[5] there needs to be, in this case, what can be conveniently described as a “sunset clause” so far as supervision orders are concerned. The parties thus expressed their consent to an order that the Father be at liberty, on and from Y attaining the age of 13 years, to make application to the Court concerning the provision for supervision.  That would obviate the Father having to otherwise show changed circumstances in bringing further proceedings.[6] ... 27. The essential basis upon which the Independent Children's Lawyer neither consented to nor opposed the orders is that she would seek or propose orders in somewhat different terms and in somewhat different timeframes.  However, the Independent Children's Lawyer does not oppose the orders on the basis that these are the orders that the parents of Y have been able to negotiate and reach and, absent any opposition in a substantial way by the Independent Children's Lawyer, I am satisfied on the matters I have briefly outlined that the orders meet Y’s best interests and ought be made. 28. On that basis and for these reasons, I make the orders signed by both the parents now initialled by me and placed with the file and confirm the additional order I have referred to with respect to the sunset clause matter.": Thistle & Thistle (No 2) [2014] FamCA 67. 

> See also, Austin & Austin [2024] FedCFamC1F 664, [11] et seq.

> *** "22.  However, the issue that I have to consider at the moment is whether I ought to make the consent orders now presented for the Court’s approval. ... 24. When the Court comes to make parenting orders under the Family Law Act, it must do so in accordance with Part VII of the Act. That requires the Court to apply the paramountcy principle set out in s.60CA of the Act. How a Court works out what is in a child’s best interests is determined by s.60CC and the matters set out therein. Section 60CC(5) provides that if the Court is considering whether to make an order with the consent of all of the parties to the proceedings, the Court may, but is not required to, have regard to all or any of the matters set out in ss.60CC(2) or (3). 25. Thus, if the orders were not to be made by consent, the Court is required to have consideration or give regard to those matters set out in sections 60CC(2) and (3). But in the case of consent orders, the Court may, not must, have regard to them. 26. Notwithstanding the provisions of s.60CC(5), it must be the case that the making of these orders, consent or otherwise, is nonetheless an exercise of the Court’s jurisdiction to make parenting orders. Only those orders which the Court considers on the evidence before it are in the best interests of the child should be made. 27. There is no evidence before me which would suggest that these orders are in [X]’s best interests.  The mother has filed no evidence which sets out his current arrangements, or the matters that are in place for his welfare.  The very fact that the Court came to the conclusion based upon objective evidence before it in May, 2012 that [X]’s best interests demand that he live with Mr Hogan suggests that there is a requirement upon Ms Thomas – and Mr Hogan to the extent that he joins in the application for the making of the consent orders – to place before the Court some evidence which suggests that the orders are in [X]’s best interests.  28. But there is none. I cannot be satisfied that the orders I am asked to make are in [X]’s best interests. The Independent Children’s Lawyer does not support them. I refuse to make them. 29. There is another reason to refuse to make the orders. Ms Thomas is in contravention of the orders made on 23 May, 2012. She concedes as much, and her noncompliance with those orders is wilful. 30. In Garning & the Department of Communities, Child Safety and Disability Services [2012] FamCA 354, Forrest J of the Family Court of Australia discussed the earlier decisions of the Full Court of the Family Court of Australia in Fahmi [1995] FLC 92-637 and Malpass & Mayson [2000] FamCA 1253. His Honour concluded that he should not consider the application then before him as a matter of discretion because the applicant was in contravention of earlier orders made by the Court. 31. Whether a Court hears a party who is in contravention of earlier orders is a discretionary matter.  There is no absolute rule that such a person has no right to prosecute an application before the Court or be heard in any proceedings before the Court. 32. In this present case Ms Thomas’ contravention is longstanding, wilful and there is absolutely no attempt by her to place any evidence before the Court as to [X]’s current circumstances or welfare.  In those circumstances, it seems to me that the Court should be slow to lend its assistance to a party who so clearly has treated the orders made by the Court and the Court itself, with such contempt.  The relevant discretion ought to be exercised against determining any application, even an oral application for the making of consent orders as presently stands before the Court. 33. In my view, the Court ought not make the consent orders that have been presented.  In summary, I come to that conclusion for these reasons: a)           the material before the Court is insufficient to satisfy the Court that the making of the orders is in [X]’s best interests; and b)           as a matter of discretion, I would nonetheless refuse to hear Ms Thomas further on the application, given that she is presently in wilful contravention of the orders made on 23 May, 2012, and there is no evidence from her about the current circumstances of the child. 34. I refuse to make the consent orders presented by the parties.": Thomas & Hogan [2013] FCCA 1108. 

Harris v Caladine jurisprudence

• Consent Orders are Judicial Determination - MUST be in children's best interests: "[50]  I am guided by the High Court of Australia in Harris v Caladine (1991) 172 CLR 84 , where Brennan J, as he then was, observed that orders by consent are not a formality but: Consent orders finally disposing of the issues between parties to proceedings in a court have always been regarded as a judicial determination. Despite these observations being made in the context of property proceedings, I infer that final orders by consent in parenting matters are similarly a judicial determination and must be in the best interest of the child/ren.": Diggs & Meyers [2023] FedCFamC1F 497.

> See also [#.A] Parenting Proceedings as Seeking the Court's Imprimatur re Orders Sought above. 

• *** Where consent orders tendered have little curial effect - Where history of past orders gives no comfort that these proposals will be any different — Where it is found these proposals do not satisfy a best interests’ test: "[56]  Section 60CC(5) of the Act provides that a court may, but is not required to, consider the relevant factors that determine best interests principles in s 60CC, arising out of circumstances where the parties have reached agreement about orders. [57]  In Harris v Caladine (1991) FLC 92–217 Brennan J remarked at 78,473: The very purpose of procuring the making of orders by consent is to ensure that the terms agreed are susceptible as a curial order. [58]  His Honour also remarked that consent orders made by a judge were an exercise of the judicial power of the Commonwealth. Consent orders dispose of the issues between the parties and have always been regarded as a judicial determination of those issues notwithstanding the consent of the parties. [59]  Harris v Caladine was a case relating to property but the observations of the court remain relevant in a parenting case. In respect of the property proceedings, Brennan J referred to the fact that the court should only make the orders if they were just and equitable. I draw from that, the observation that in respect of a parenting matter, the court should only make the order if it is satisfied that it is in the best interests of the children. Brennan J observed that the court in a property case was obliged to consider the matters set out in s 79(4) but the difference with a parenting case is that the court is not obliged to consider all of the matters that determine best interest principles but may do so. The whole purpose of a parenting order on a final basis is to ensure that as far as practicable, children are removed from ongoing litigation and can settle into a routine. It is readily acknowledged that children change and so must their living circumstances but it must also be seen that a court making final orders should anticipate that the parties will not be back regardless of the ages of the children on the basis that the determination should set the parameters for change in the future rather than having the matter relitigated as has clearly occurred here. [60]  It was Brennan J in Harris who referred to the parties contracting with each other about what each of them would do: each party had then wanted that contract embodied in a court order. His Honour referred to the fact that the court would only interfere with such an order on the same grounds as it would have done so with any other contract. In circumstances where s 60CC(5) permits the court to consider the best interests principle, in my view, it should do so where there is evidence that is at odds with the proposed order. The court should then examine the factors to see whether there is a realistic possibility that the children will benefit. If not satisfied, the order proposed should not be made because it could not be seen to be proper if the proposals are inconsistent with ss 60B, 60CA and 60CC (see below) notwithstanding the contractual nature of the parties’ agreement. That must be so where the history of the matter also shows the parties have little regard for the law, no respect for each other and where there is the real prospect of an ongoing dispute. Ongoing disputes may be inevitable but orders are put in place to dictate what is best for children. The tenor of s 60CC is to end litigation. [61]  Normally the court would look at the question of parental responsibility, parental capacity, the views of the children and the impact on the children of being separated from a parent. When the evidence is so fresh, as it is here, and where determinations could not be made because of the allegations and counter-allegations without testing the evidence on the balance of probabilities, a cautious approach is necessary but it ought not be simply accepted that orders should be made by consent with such fresh (and serious) allegations and an appalling litigation history where previous approaches to orders have been given scant regard. [62]  For example, where each of the parties denies using drugs but insists that the other is still doing so, how does the court determine the responsibility of a parent? [63]  The power of the court to make a parenting order comes from s 65D of the Family Law Act 1975 (Cth) (“the Act”). The court there is mandated to only make a parenting order if it is proper to do so. The types of parenting order are found in s 64B of the Act. In deciding what is in the best interests of a child (s 60CA), and hence also what is proper, the court must be guided by the factors set out in s 60CC. But the aspirations of the parliament are set out in s 60B of the Act and those objections and principles must be kept in mind when endeavouring to work out what is best for children and in terms of an order, what is proper. ... [65]  If I accept that the facts are indicative of the lives these children have led, and not accepting that any “epiphany” has occurred, how could the court be satisfied that those objects and principles could be achieved? The objects and principles are aspirations but I could not make any findings here and do not have to because the parties contracted with each other to avoid the matter proceeding to trial. The difficulty for the parties however is that I am not satisfied that what they have proposed is in the best interests of any of these children. The only conclusion I could draw from what they have proposed is that they are this time going to go to some form of therapeutic counselling to resolve their problems and those of the children to achieve some of the objects and principles in s 60B of the Act. However, the court has been told that before. [66]  I have emphasised the word “proper” in s 65D(1) of the Act and that word was considered by the Full Court in VR v RR [2002] FamCA 320; (2002) FLC 93–099 at 88,940 when the court observed that the overall framework of the legislation could be seen to provide that both parents have parental responsibility for their children but that the court may take away an aspect of that responsibility if it was proper to do so. Significantly, the Full Court went on to say that the word “proper” connoted a very wide area of discretion and that interference with the care of a child in the way that a parent considered was appropriate: Should be made only where the court is of the view that the welfare of the child will be clearly advanced by that order being made. [67]  In my view, there is no evidence that the proposed orders would have promoted the welfare of these three children at all. [68]  In Bondelmonte v Bondemonte (2017) FLC 93–763 the High Court observed that a parenting order involved the exercise of judicial discretion which in turn involved an overall assessment of a number of considerations either statutorily prescribed or considered by the court to be relevant. The assessment of those considerations in s 60CC to which I have referred was said by the High Court to involve judgments: In respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of a child. [69]  In U and U (2002) FLC 93–112 the High Court confirmed that the court is not, on any view, bound by the proposals of the parties. That is a reference to a contested parenting dispute but in my view, it applies equally to one in which the parties have “contracted” with each other or “consented” to those orders being made. Having said all of that, Kirby J in U and U approved of the statement made by Sachs LJ in Poel [1970] 1 WLR 1469 that once custody was working well, the court should not likely interfere with “such reasonable way of life as is selected by that parent to whom custody has been rightly given”. In my view, the emphasis on a reasonable way of life is difficult when one observes the background and context in which these children have lived, and currently live, giving little confidence because of the history, that things will change. [70]  As Hayne J observed in U and U: [176]It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Part VII of the Act. [71]  His Honour was there dealing with an international relocation case and parental movement but his Honour ended with the following statement: It is the interests of the child which are paramount, not the interests or needs of the parents let alone the interests of one of them. [72]  Looking at all of the background material in this case has not been easy. The evidence put before the court has not been tested. It is timely to remember that it was the parties who asked the court to read into evidence the material prior to the commencement of the trial that they intended to rely upon. Counsel for the Independent Children’s Lawyer relied upon the report of the family consultant. It was not suggested by any party that the family consultant was in error. [73]  The determination of best interests is reflected in ss 60CA and 60CC of the Act. With the caution that findings cannot be made here because the evidence has not been tested, it is difficult to assess what is in the best interests of these three children. That said, each parent would accuse the other of not meeting any such best interests test. [74]  The primary considerations are that there is a benefit to all of the children in having a meaningful relationship with both of their parents. I consider I have said sufficient to make clear that at present, and without significant change, that is not possible. Another primary consideration is the need to protect the children from physical or psychological harm in being subjected to, or exposed to, abuse, neglect or family violence. There is no evidence about how the mother is dealing with the allegations of B. There is no indication of how the father is dealing with the fears of C. There is every indication of a need to keep the parties apart from one another as they have suggested themselves by the proposal about a handover. How is the “epiphany” working there? Where is the indication that the cudgels have been put down? How would counselling and therapy work here without an indication that co-operation will follow towards getting the previous impossible tasks commenced? How will the mother get B involved if she is now employed? What will happen to C’s relationship with the mother if he continues not to be encouraged to sort out those demons? [75]  The views of the children are clear but what prospect is there of any time occurring with the other parent if the children have a choice? Have they been empowered already and how are the parents intending to undo those difficulties? The court is not told. [76]  The nature of the relationships of the children with their parents is now well documented. The sibling relationships remain unclear. How are those problems identified by the family consultant to be addressed? Is C at risk with B bearing in mind his apparent unhappiness with his sibling. [77]  The court is required to consider the extent to which each parent has participated in making decisions about major long-term issues as well as arranging time. The evidence about the latter is full of accusations and the former is relatively silent. Where is the evidence about the mother attending the appointments for C? [78]  Of the three children, the only one who showed she was conflicted about being with both parents was D. What happens to D when she is with her mother? The observations of the family consultant about the parting of mother and daughter were illuminating. The child was fine but the mother not. The simple explanation about the tyre is a classic “out of the mouths of the babe” moment. How much is this child missing her mother and what is the effect of separation? [79]  There are practical difficulties in all of these children spending time with and communicating with the other parent. There are geographical difficulties as both have to travel some distance. Each has limited resources. The mother did not want the father to know the precise details of her whereabouts yet that is the residence to which D will be going. Over-holding has occurred in the past; will it occur again if the mother considers that what she is told does not satisfy her? [80]  As can be seen, there are many unanswered questions. The “epiphany” is not so obvious. Based on the unanswered (and possible unanswerable) questions, I could not make a finding about whether the proposals were good for these children. [81]  There are serious questions about the capacity of the parents to provide for the emotional and intellectual needs of the children. School records indicate a better performance of late but is that likely to continue? [82]  The allegations about drugs (indeed admissions) and abuse give rise to questions about what attitude to these children and to the responsibilities of parenthood is demonstrated by each of the parents. It is timely to remember that this is not the first time orders have contemplated counselling. It is time for the parents to prove what they say can be a reality. [83]  Family violence has many facets and I refer again to the handover issues to indicate that there are unresolved problems. There is a history of reliance upon intervention orders; that is, the parents need the intervention of the State and the assistance of police to resolve their issues in a civilised way. The State has put enormous resources into this family and Federal court system has done so as well. As all counsel indicated that they were funded by Legal Aid, the parties have also had that benefit. Past evidence indicates that the prospects of change are limited but why should the court “rubber stamp” orders? Should not the parties “contract” with one another if they have had an “epiphany”? [84]  One consideration in s 60CC is whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. That appears to have been the case twice before yet the orders soon broke down. The nature of the evidence presented here would confirm that the last lot of orders were not seriously intended to keep not just the parents out of court or to remove the children from the litigious environment that their parents seem to relish. [85]  Thus, I could not find that the sorts of concepts that these parties were talking about in their proposed consent orders would enable me to make a finding that the orders were in the best interests of the children. [86]  Section 63C of the Act provides that the parties can enter into a private arrangement in the form of a parenting plan in the same contractual sense to which I have earlier referred. This is the best test of whether the parents are really serious about the “epiphany” to which counsel referred. If they contract with one another to fulfil those tasks with an eye on s 60B, and either is dissatisfied with the other, there would be a genuine basis to bring an application before the court for parenting orders but one would imagine their proposals then would be nothing like what is now being proposed because of a “breach of contract”. [87]  For all those reasons, I consider that the court should not make consent orders in this case simply because the parties have reached an agreement.": Chifley & Rollins [2017] FamCA 1088. 

• "Under the heading “Issues in dispute” it was noted: There are no issues in dispute between the parents The parties reported an intention to file final parenting consent orders for the child. The Family Consultant noted that: There is history of family violence, which may require further assessment by the Court if the matter does not settle The matter was mentioned before the Court on 21 June 2018 at which time the Applicant appeared by telephone, a legal practitioner appeared for the Respondent and Ms Elve appeared on her own behalf as the Independent Child’s Lawyer. Written consent orders were tendered to the Court on behalf of the parties but her honour Judge Henderson refused to make those consent orders. Her Honour noted that: The parents provided orders to the Court that the Independent Children’s Lawyer is of the view are not in the best interests of the child. The Court agrees with the Independent Children’s Lawyer and refuses to exercise its discretion to make the orders. The parents are not prevented from parenting the child as they deem appropriate.": Gilman & Meredith [2019] FCCA 1890, [13]-[16]. 

• Property: "[39]  In the more recent Full Court decision of Redman & Redman (2013) FamCAFC 183 (Redman & Redman), Bryant CJ, Finn and Watts JJ affirm the principles articulated in Harris & Caladine emphasising at paragraph 36 that  The court is not relieved from its obligation to consider whether the making of the order is just and equitable under s 79(2) simply because the order is said to be by consent. In particular, both Brennan and Dawson JJ [in Harris & Caladine] remark upon advice being available to the parties as one of the matters to which regard would be had in considering whether to make orders by consent. [40]  Although as the High Court stated in Harris & Caladine, the requirement that the Court be satisfied that it is just and equitable to make orders may not require quite the same degree of consideration when the Court is being asked to make consent orders, the Court did qualify that statement on the basis of the Court, or as in this case, the Registrar being adequately informed and the parties being at arms length and properly represented. That is not the position in this case. Although the parties agreed that they could have obtained advice and chose not to do so, the fact of the matter is that they had not had the benefit of legal advice and the Registrar was aware that was the case. I am also not satisfied that the Registrar was adequately informed.": Re Pearson [2018] FamCA 295.

Content of Orders not proper exercise of jurisdiction conferred OR contrary to statutory framework of the FLA

• Query whether consent orders can be used to ameliorate a type of difficulty identified in Lainhart & Ellinson (2023) FLC 94-166, arising from the following passage: 

> "Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences  ... In this instance, the primary judge did not confine his role to simply deciding the case on its merits by reference to the evidence which the parties elected to adduce. His Honour tried, but failed, to formulate orders which would remedy the deficiencies in the evidence about the child’s future safety in the father’s care and dictate via the use of an intermediary how the child would be prospectively protected from the risk of harm, undoubtedly hoping that would prove beneficial for the child and the parties. However, orders of this type have been identified and criticised by the Full Court in the past (Re David (1997) FLC 92-776 at 84,575–84,576; Rader & Rader & Ors (No 2) [2019] FamCAFC 227 at [53]). ... ".

• Consent orders - contrary to requirements of the FLA: "[65]  I reject the applicant’s submission that the parties’ final consent order should be construed as absolving him of the duty to maintain his children, particularly where the tribunal has determined his liability to do so and he has discontinued his appeal from that decision. [66]  In general, the approach to the construction of a consent order is the same as that which is taken to the construction of a contract of compromise.2 The orders of a court should be construed as two honest persons would construe their agreement.3 The rights and obligations contained in their agreement are enforceable as an order of the court: Harris v Caladine .4 As those principles are applied to the present case, I consider there is nothing in the parties’ final consent orders which operate to limit or confine the obligation of either party to maintain their children, including in relation to school fees. I agree in the respondent’s submission that there is no ambiguity in the parties’ final orders.": Acora & Sadlows [2020] FCCA 1580.

• "[144]  In the absence of further authority, or at least informed argument on the point, I am not prepared to make an order in the terms sought. The parties cannot consensually confer power on the court to make an order that the court lacks power to make (see Harris v Caladine (1991) 172 CLR 84 at 133). In those circumstances the parties jointly requested the court to record the notation about their commitment to counselling, which I am content to do.": Chamberlain & Sievers [2010] FamCA 794.

Parenting Plan

• *** If the COURT DECLINES to make consent order, do parenting plan without the court's imprimatur; otherwise, ICL and Child Protection, DHS, should be consulted as to ensuring orders are in best interests: 

> "[10]  It is with all of that information in mind that the parties have conducted negotiations to resolve and finalise the parenting arrangements for both children. In essence, the arrangements are such that Y will continue to live with the father, and he shall spend alternate weekend time with the mother. The child X will continue to live with the mother, and, subject to any agreement between the mother and X’s father, the second respondent, X will spend time with the second respondent. Importantly, from my perspective, the children, who are siblings, will spend time together on alternate weekends and on special occasions when the child Y is spending time with the mother. I am conscious that both children are craving the opportunity to spend meaningful time with each other. So much so is obvious by those matters raised in the child impact report of 27 January 2023. [11]  This matter has had a difficult trajectory, given the competing risk factors that I have identified, and the difficulties that the mother in particular faces and has faced. Whatever the case may be, it strikes me that the current arrangements are the best that can be made of the current circumstances for these children. While I do have reservations about the appropriateness of the mother’s living arrangements, I hope that in due course, those arrangements will become more permanent and secure and, frankly, more humane than they presently are. [12]  However, doing the best that I can and understanding that the children’s needs are respectively being met by the present arrangements as they have been for some time, I am satisfied, as I say with some reservations, that the orders that the court is now being asked to make are ones that are in the children’s best interests. [13]  I make it clear, however, that I continue to have concerns, but in the absence of any other alternatives, the court is faced with some significant difficulty. While I am conscious that I could decline to make the orders and the parents could enter into a parenting plan, it is my view that it is more appropriate for orders to be made by this court, in all of the circumstances of these proceedings, and particularly given the long history of the matter. [14]  It is for all of those reasons, and with the view to avoiding the potential for further litigation in the future, that I consider it appropriate to give the court’s imprimatur to the arrangements that the parties have been able to negotiate and agree with the assistance of the Independent Children’s Lawyer. [15]  I am additionally comforted by the fact that both Department for Child Protection and the Independent Children’s Lawyer, while the latter having the same reservations as the court, do not propose to stand in the way of the agreement which the parties have reached.[16]  I am also comforted by the fact that the parties have been able to reach an agreement. In my view, that bodes well for the future.": Vance & Tuffin [2023] FedCFamC1F 892. 

> "[26]  The mother says that those minutes of consent should be made orders by consent, thereby bringing an end to the respective applications. [27]  As the High Court made clear in Harris & Caladine, the process of making consent orders involves the exercise of judicial (or, in many cases, quasi-judicial) discretion and is a judicial exercise that signifies the determination of what is in the children's best interests. [28]  I refuse to make the orders by consent. [29]  The reasons for failing to do so will be plainly obvious from the reasons for judgment made in the trial and the subsequent reasons delivered ex tempore on 19 May 2010. In short, I do not consider that the "agreement" embodies orders which are in the best interests of these two children. [30]  It is plain that the parents can agree on such arrangements as they consider appropriate in respect of the children. As Mr Grant points out, correctly, in my view, because the document is in writing, is signed and dated by the parties, and deals with the matters referred to in s 63C(2) of the Act, the document signed by the parties can constitute a parenting plan. [31]  Accordingly, it can govern the rights as between the parties for so long as they continue to agree to implement the parenting plan. [32]  It is quite another thing, however, for the court to give its imprimatur to orders which it does not consider to be in the best interests of the children.[33]  It is for those reasons that I refuse to make orders in the terms of the document entitled "Minutes of Consent" signed and dated by each of the parties. [34]  I should also point out that, if I was to make those orders by consent, it may be that, should the need arise for litigation in this court to occur in the future one or both parties may need to overcome a "Rice & Asplund" problem in respect of the orders which would be made by consent. [35]  It seems to me inappropriate that either party, and in particular the father, should confront that, as it were, hurdle in circumstances where he sought to make an application in the future pertaining to the best interests of these two children. [36]  For all of those reasons, I refuse to make the Minutes of Consent as orders by consent.": Fitzroy & Fitzroy (No 3) [2010] FamCA 867. 

> "[89] As a consequence, apart from the administrative necessity to establish the end of a marriage to avoid bigamy prosecution upon a subsequent marriage, separated spouses need not invoke the court’s jurisdiction to resolve any issues arising between them post the end of their marriage.20 They are free to make whatever arrangements they please in respect of the parenting of their children and the disposition of their property. Indeed, some aspects of the relevant legislative provisions encourage them to do so.21": Khoury & Khoury [2023] FedCFamC2F 1087.

Extent of Inquiry - Less Demanding than an Initiating / Adversarial Proceeding

• MUCH LESS DEMANDING -- Where compliance with the requirements of s 79 of the Family Law Act 1975 (Cth) in the making of consent orders is much less demanding provided that the court is adequately informed, where the parties are at arm’s length, and are properly represented: "[33] The Full Court in Maxwell v Miltiadis [2015] FamCAFC 40; (2015) FLC 93-644 (“Maxwell”) observed what was said by the High Court in Harris & Caladine, concluding: Whilst it is a correct statement of law that the making of a consent order relating to settlement of property cannot simply “rubber stamp” the parties’ agreement and that the process is “no mere formality” (Brennan J in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 102), the nature or extent of the inquiry required of a judicial officer making a consent order is an entirely different matter. Therefore as stated by his Honour Dawson J in Harris v Caladine (above) at 124: ... The fact that an order is sought by consent does not relieve a court, or a registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section had been met: see Jenkins v Livesey [1984] UKHL 3; [1985] AC 424 at 437-444. To similar effect, Mason CJ and Deane J said that “comparatively little” was required of a judicial officer. In similar vein, Brennan J (at [103]), emphasised that while the making of a s 79 consent order “is not automatic”: The court may be satisfied that a provision is proper by reference not only to the material before the court relating to the factors mentioned in s 79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in pars (a) to (f) and have taken them into account before consenting, the provisions “with respect to financial matters” proposed for incorporation into the consent order will be seen to be “proper” ... ... [35] The transcript is a ready answer to: (a) The first sub-complaint, as to any failure of the primary judge to give proper consideration to s 79 of the Act when making the property orders. The complaint cannot be sustained on the face of both parties being legally represented at the time of the making of the orders, both being present in court when the orders were made and the primary judge implicitly recording satisfaction with the appropriateness of the orders after receiving the invitation to make them; and (b) The second sub-complaint, that focused on the percentage adjustment submitted on behalf of the respondent from the appellant’s perspective being inaccurate; the failure of the respondent’s submissions to identify the respondent’s superannuation and the drawing on the City D mortgage; and any taxation impost that may be generated on the execution of the orders. The variables at play between the parties as to their existing property interests were subsumed by and merged into their agreement to enter into the consent orders (Rollings & Rollings [2009] FamCAFC 87 at [54]). The circumstances in Maxwell are apposite to those in this case, where the Full Court recorded: Here, the legal practitioners for each of the parties confirmed to her Honour that the orders as submitted were sought by each of the parties and the parties were each in court so as to hear those respective statements made on their respective behalf and it is not suggested that there was any demur from those statements. There was cogent evidence before the primary judge that each of the parties were adequately informed as identified by the High Court in Harris & Caladine. The parties' agreement and the subsequent consent orders were borne from a process of negotiation between legal practitioners. As the Full Court said in Maxwell. ...In the absence of evidence or cogent inference to the contrary, the parties should be taken to have consented "... by reference to the advice respectively ..." available to them and the legal practitioners, as officers of the court, should be presumed to have rendered appropriate advice to their respective client. The sub-complaint ignores the well-established principles identified by the High Court in Harris & Caladine (at [12]–[14]). Additionally, the appellant had every opportunity by way of counsel to identify any challenge to the submissions made by the respondent and failed to do so. The appellant is bound by his conduct before the primary judge and cannot now complain that an error was made (Metwally v University of Wollongong (1985) 60 ALR 68). ...": Couldrey & Sedgwick [2025] FedCFamC1A 125.

• ** MUCH LESS Demanding - consent orders - extent of inquiry by court is CIRCUMSCRIBED: "[58]  Where a consent order is made between parties who are represented, the extent of the inquiry is circumscribed (see Harris v Caladine (1991) 172 CLR 84 (per Mason CJ and Deane J at 90 and Dawson J at 113). [59]  The primary judge was entitled to conclude that it was appropriate to make the consent orders. [60]  There appears to be no merit in Grounds 2 and 3.": Bethke & Bethke [2019] FamCAFC 106. 

> Harris v Caladine, ALR 204-5 (Mason CJ and Deane J); 219, 220 (Dawson J): "It does not follow that, when a consent order is sought in a s 79 application, it is necessary to conduct an inquiry into each of those factors. The court may be satisfied that a provision is proper by reference not only to the material before the court relating to the factors mentioned in s 79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in paras (a) to (f) and have taken them into account before consenting, the provisions “with respect to financial matters” proposed for incorporation in the consent order will be seen to be “proper”. The factor mentioned in para (g) may require independent inquiry by the court, but that question does not arise in this case. Nevertheless, when an application for a consent order in a s 79(1) matter is made there is a discretion to be exercised with reference to the propriety of the provisions with respect to financial matters. The making of a consent order in a s 79(1) matter is not automatic. ...  The Full Court on appeal from Maxwell J held that the review of the deputy registrar's decision was confined to an inquiry whether the parties did in fact consent to the terms of the order and whether the terms agreed upon were in a form appropriate to the type of order sought and were enforceable. ... Even if the consent pursuant to which an order is made under s 79 amounts to a contract between the parties, it is the order itself which is of legal significance. As Lord Diplock observed in de Lasala v de Lasala [1980] AC 546 at 560 , in related circumstances: Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order. And in the case of an application under s 79, even if there is consent amounting to a contract, that is not enough of itself to entitle the parties to an order. The requirements of the section must be satisfied. ...".

> cf, approach in Initiating Applications resulting in final orders by consent: Landring & Landring [2025] FedCFamC2F 147 -- ICL, CIR and Family Report. 

> Sakhagi & Brawn [2017] FamCA 188.

Challenging Consent Orders

• Challenging consent orders on appeal - duress - self rep: "[13]  With respect to property orders made by consent the Full Court of this Court in Maxwell & Miltiadis (2015) FLC 93-644 (Maxwell & Miltiadis) observed, with reference to the decision of the High Court in Harris v Caladine (1991) 172 CLR 84 (Harris v Caladine ) as follows: 12.Whilst it is a correct statement of law that the making of a consent order relating to settlement of property cannot simply “rubber stamp” the parties’ agreement and that the process is “no mere formality” (Brennan J in Harris v Caladine (1991) 172 CLR 84 , 102), the nature or extent of the inquiry required of a judicial officer making a consent order is an entirely different matter. 13.Therefore as stated by his Honour Dawson J in Harris v Caladine (above) at 124: &hellip; The fact that an order is sought by consent does not relieve a court, or a registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section had been met: see Jenkins v Livesey [1985] AC 424 at 437 –444 . 14.To similar effect, Mason CJ and Deane J said that “comparatively little” was required of a judicial officer. In similar vein, Brennan J (at [103]), emphasised that while the making of a s 79 consent order “is not automatic”: The court may be satisfied that a provision is proper by reference not only to the material before the court relating to the factors mentioned in s 79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in pars (a) to (f) and have taken them into account before consenting, the provisions “with respect to financial matters” proposed for incorporation into the consent order will be seen to be “proper”&hellip; ... [21]  By reference to the principles already discussed as to the limited scope for challenging orders made by consent, it can be seen that much of what the father advances in his Summary of Argument filed on 11 February 2020 is directed to illegitimate challenges to the correctness of the consent orders. By way of example, the father contends that the primary judge failed to give proper consideration to s 79 of the Act when making the property orders. In light of the authorities referred to, in particular the statements of principle in Harris v Caladine , such a complaint cannot be advanced in the face of both parties being legally represented at the time of making the consent orders; both being present in Court when the orders were made; and the fact that the primary judge recorded at the time her satisfaction as to the appropriateness of the orders and invited submissions if any party had any issue to raise with respect to the orders, in the context of the primary judge having presided over the trial to that point. ... [37]  The father’s submissions on “duress” are solely contained in his Summary of Argument. He did not elaborate on those in oral submissions before me. It is useful to set out, in their entirety, the relevant paragraphs of the father’s Summary of Argument: 55.In Callis and Callis [2019] FamCa 750 . Paragraph 40. Of course, “&hellip; there may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice”. It has been said that “ordinarily, a failure to comply with that duty will amount to a miscarriage of justice”. 56.[The father’s barrister] was not advocating for the father but colluding under the guidance of [the mother’s] more senior barrister &hellip; [The father’s barrister] put the father under extreme duress stating that [the primary judge] took a personal dislike to the father, was extremely critical of the father and showed extreme bias against the father. 57.So much so that [the father’s barrister] screamed at the father that the Judge hates you &hellip; You are a terrible witness. If you let the Judge make a decision on the Children’s Orders she will remove the children from you, and you will never see them again. The children were used as a weapon against the father and the father was put under duress by his own barrister all because of the hate that [the primary judge] showed against him. The hatred that [the primary judge] showed against the father was chilling. And thus [the primary judge] rubber stamped Orders that should never have been made at all. The Orders are exactly what the other party asked for. [38]  For clarification, the father’s recitation of what he describes as paragraph 40 of Callis & Callis [2019] FamCA 750 (Callis) above should properly be a reference to Pearce & Pearce [2016] FamCAFC 14 (Pearce) at [34]–[35] given [40] in Callisis, in turn, a quote of those paragraphs from Pearce. In any event, though it is well settled that merely consenting to an order does not establish justice and equity,6 it is likewise well settled that “[a]greement to a consent order which may not adequately reflect a party’s entitlements under sec. 79 does not, of itself, show that there has been a miscarriage of justice”.7 [39]  It was incumbent on the father, then, to establish before this Court that the relevant property Orders were “so far outside the ambit of what is just and equitable” that the primary judge ought to have either refused to make the orders or concluded that such consent must be the product of duress. The father advanced no arguments before me, either oral or written, which could be said to establish such a contention. As outlined earlier in these reasons, the relevant orders provide for a property division of 58/42 in the mother’s favour. Against the background, in summary, of the mother having been the primary carer for the parties’ children which, in turn, enabled the father to further his career and establish his superior income earning capacity, it cannot be said that such a division falls outside a reasonable range of legitimate outcomes. The mother was to remain the primary carer of two young children for the foreseeable future. ... ": Melville & Melville (No. 3) [2020] FamCAFC 231.

• Review of consent orders, scarce judicial resources: "[13]  It is indisputably the case that a consent order made in an exercise of delegated judicial power can be reviewed.2 However, a Review Application can be as unmeritorious as any other application and the mere fact that an exercise of power can be reviewed does not mean that it should. In the circumstances of this case, it is contrary to the overarching purpose, inappropriate, and insightless for the Father to have consented to an order only to seek to disturb it on review shortly thereafter. ... [28]  The next relevant factor is whether any party to the proceedings is in receipt of assistance by way of legal aid.12 In this case, the Mother is in receipt of legal aid funding, meaning that limited public funds have been expended on engaging in this review after a consent order had been made, which should have been the end of the matter.": Landring & Landring [2025] FedCFamC2F 147.

History of Family Violence - Consent Orders

• **** History of family violence, Protection Order in place, Where an assessment of risk must be made rather than the parties’ feelings about risk – Where there is insufficient information to determine the orders are in the best interest of the children – Where the application is dismissed (very short judgment): "[1] I dismiss the application for consent orders, and in doing so I do give these short reasons. In summary, it is very difficult for the Court to determine on the basis of the limited information provided that these orders are in the best interests of the children. The subject children under consideration are young and, in my view, quite vulnerable because it would appear that both of the parents, even on their own cases, have had some challenges in raising them. [2] The Court is not simply a rubber stamp. It appears that the parties may not have current concerns such as those the mother raises about the father’s violence in the past. It is submitted on the father’s behalf that these matters are historic. [3] On the basis of evidence in relation to the harms associated with the perpetration of family violence, I don’t accept that because a last act of violence was said to have occurred a couple of years ago means that all issues in relation to violence have been overcome and are not matters of significance, especially in the circumstances where the parties have had very little to do with one another over the period. [4] One only needs to look at the number of references to family violence in the Family Law Act to appreciate the weight that is given to that particular issue and harm associated with exposure to violence to draw the conclusion that is something that the Court must consider very closely. [5] I am concerned that the sworn affidavit of the mother deposes to there having been two protection orders in Queensland applied for and made against the father for her protection. The first one was for, she says, about two years, and she deposes that while that order was current, that the father assaulted her and breached the order and was charged and convicted of the breach. [6] She then deposes to there being a further order made for a period of five years, which in my experience is a very lengthy protection order, and certainly would not have been lightly made. Notwithstanding that it makes allowance for family law orders, I cannot, in my view, properly assess the issue of risk posed by the father on the basis of his violent conduct in the past without having much more information about that. [7] There are also issues on the face of the evidence that raise concerns about the risk posed for family violence towards the children or abuse towards the children. In particular, the mother deposes to the father hitting the older of the children in the face and that it left it a mark. The incident was such that a mandatory reporter, rather than the mother, made a report to DOCs about the matter. [8] The other sorts of issues in relation to possible harm posed by the paternal grandmother and stepfather are raised fair and square in the mother’s affidavit. These are also matters about which there would need to be an assessment of risk as opposed to the parties’ feelings about risk, before such orders could be made. [9] There are also other issues relating to the practicalities of the orders, considering the age of the children. In all of the circumstances I am not satisfied on the information available to me that these orders are in the best interests of the children, primarily because I am unable to make an assessment of the potential risk posed in the parenting arrangement that is proposed. For these reasons the application is dismissed.": Jackson & Whiteman [2021] FamCA 280.

• * Post requisition - An application for consent orders was filed and considered by a registrar of the Court. The registrar was not satisfied that the orders on their face were necessarily in the best interests of the children and requisitioned further information from the parties: "[1]  In proceedings SYC 763 of 2021, the parties entered into proposed consent orders regarding the children subject of the proceedings. [2]  An application for consent orders was filed and considered by a registrar of the Court. The registrar was not satisfied that the orders on their face were necessarily in the best interests of the children and requisitioned further information from the parties. [3]  The proposed consent orders provide for the Applicant Mother (‘the mother”) to have sole parental responsibility for the children to live with the mother and for the Respondent Father (“the father”) to spend time with the children by agreement between the parties.[3]  The proposed consent orders provide for the Applicant Mother (‘the mother”) to have sole parental responsibility for the children to live with the mother and for the Respondent Father (“the father”) to spend time with the children by agreement between the parties. [4]  The proposed orders include a notation that the children are very young, being X, born in 2018, and Y, born in 2019, and that the parties may revisit parenting arrangements when the children are older, and after the expiration of an existing ADVO which was made against the father in the Suburb B Local Court in November 2020. In accordance with a requisition by the registrar, the mother filed a further affidavit and sought an affidavit from the father. [5]  The mother’s evidence, which is brief, discloses that the father suffers from a gambling problem, which played a part in the grant of the ADVO, ordered against the father. According to the mother’s evidence, the father has refused to get assistance for his gambling addiction, that he is about to lose his employment and may move back to a house that he owns in C Town. [6]  The mother has also given evidence that she supervised the father’s time with the children with a family member and has tried to persuade the father to go to professional counsellors and psychologists about his gambling problem, but he has refused to do so and exhibited significant anger towards her. ... [10]  The matter came before me on 24 May 2021 after the mother filed an Application in Case seeking review of the registrar’s decision. [11]  I’m satisfied that the Court should do what it can to assist the parties to resolve their parenting dispute as quickly and cleanly as possible in the best interests of the children. [12]  The proposed final consent orders, in effect, place the children in the full time care of the mother and give her a discretion about agreeing to what time they may or may not spend with the father. On the basis of the evidence which I have been taken to, this strikes me as an appropriate outcome in the circumstances of this case. [13]  The difficulty that faces the Court on 24 May 2021 is that the mother, by reason apparently of her level of distress brought about by the requisitions from the registrar, failed to notify the father of the listing on 24 May 2021. Consequently, the Court cannot be satisfied that the father has had an opportunity to appear and make any submissions that he may wish to make in relation to the proposed final consent orders. I note, however, that his own evidence suggests that he agrees to the proposed orders, and that he proposes to cooperate with the mother to work out what is best for the children. [14]  The evidence satisfies me, also, that there is probably little point in compelling the parties to go to much time, cost or effort to focus on additional parenting orders at this stage in the children’s lives, bearing in mind how young they are, and that the consent manifested in the proposed orders is for the mother to be their full time carer with the protection of an ADVO. [15]  In those circumstances, I’m prepared to make the consent orders subject to a period of stay together with some additional orders providing for the manner in which the parties are to engage in a mediation process in the event any dispute about the implementation of the orders or for their variation.": Gaylor & Vogel [2021] FamCA 476. -- counselling or FDRP.

• ** "[16]  Significantly in this matter, on 2 July 2013, which was about two and a half years after the parties had separated, an application for consent orders was made by them to the court, with the intention that orders would be made to finalise parenting arrangements for X and Y. [17]  The parties were required to file in a quite detailed form in order to satisfy a registrar of the court that the orders being sought are appropriate and designed to be in the best interests of the children concerned. The form requires that the parties to the proposed orders state that what each has asserted in the application is true and that each has receive some independent legal advice about the implications of the orders sought. [18]  When the parties in this particular matter applied for consent orders, in respect of X and Y, in mid-2013, neither of them raised issues regarding family violence or abuse or neglect of the children concerned. From the father’s perspective this is significant. Firstly because there were no such concerns in the first place and secondly the orders had been agreed only after there had been a lengthy process of negotiation, with each party being legally represented through that process. [19]  The orders agreed upon saw the children spending regular and extensive periods with their father, which will be extended when the children are of school age. The time for extension is apparently imminent. [20]  In her application, the mother asserted that during the parties’ relationship, she was the victim of serious domestic violence at the father’s hand. She set out these various incidents of violence in her recent affidavit. These incidents pre-date the making of the consent orders and, as I say, are not attested to in the application for consent orders. ... [47]  Of course, I am duty-bound to take allegations of family violence, abuse and neglect seriously. Because of that, I elected to hear from Mr Hughes myself and make some sort of assessment of what sort of a person he is. [48]  True it is that people can present convincingly in the witness box and behave appallingly outside of it, but the witness box is the only tool I have to assess what sort of person Mr Hughes is. [49]  The fact remains that there is no objective evidence to support the mother’s allegations. She was not there, when she asserts X was kicked by his father. She says X was hysterical afterwards, and because of that, she did what a concerned parent should do, which, by necessary implication, is make a complaint to the police. [50]  The police have not as yet assigned the matter to an officer. It is now approaching a month since the incident occurred. The father’s solicitor has spoken to the police concerned and has been apparently told by them that Mr Hughes need not be greatly concerned about the matter. [51]  In all the circumstances, I do not think that it would represent an unacceptable risk for these children if the regime, which was inaugurated with the agreement of each of the parties in July 2013, is resumed. [52]  I am not persuaded that there is a danger that a police investigation will be derailed by taking such a course. In my view, it is likely to be in the best interests of the children that their relationship with their father is normalised sooner rather than later. [53]  So for those reasons, what I propose doing is dismissing the interim applications, but I will adjourn the final application at this stage, I think, for about six weeks so that the parties can consider their positions in the meantime and, I suppose, the police can do whatever the police wish to do. So on that basis, I will adjourn the matter, say, to 30 March 2015 at 9.30 in the morning. [54]  For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.": Hughes v Hughes [2015] FCCA 614.

• ** See list of orders made - staged graduated spend time: Kruse & Boysen [2025] FedCFamC2F 523. 

• Variation of orders - Rice v Asplund: "[25]  The orders made in 2019 are very detailed. They encompass how the parties are to parent the child into the future (eg. Paragraphs 6–14 including references to schooling, non-denigration and restraints). They expressly contemplate that a party may relocate their residence. [26]  It is notable that each party was legally represented at the time the final orders were made by consent. Registrar Weidman had requisitioned the parties in respect of the Application for Consent Orders and additional detail was provided to him which satisfied him that he ought to make the final orders in the best interests of the child. [27]  The variation of the final orders according to paragraph 1c. of the mother’s application is said to be required to afford necessary protection of the mother at handover, but there already are orders that afford that protection, in particular 6, 11 and 16. If the father fails to comply with these, the mother could bring a contravention application, and that is procedurally the appropriate manner of ‘remedy’. [28]  In relation to the variation of paragraph 8 of the final orders, it was contended that this was required to enable discussions about reaching an agreement about an alternate school for the child due to dissatisfaction with the high school, whether it was jointly held or no longer in the child’s best interests to attend there. [29]  When the Court raised the fact that the order for equal shared parental responsibility and paragraph 8 of the final orders, contemplated that the parties may change the child’s education/school arrangements and a process for addressing this already (paragraph 23 of the final orders), the mother’s counsel agreed. [30]  The variation sought to order 5 of the final orders by the mother, seeks amendment to the changeover location and was first raised in her affidavit of March 2021. In it, she states that it is more convenient to her to have changeover at Suburb C Police Station and it would make her feel safer. [31]  Nowhere in the mother’s affidavit material is there evidence of when the change in residential address took place. However the mother states that in April 2020 there were “problems with the orders”.4 This date coincides with the second alleged contravention, referenced in the father’s contravention application as referenced at [2] of these reasons. [32]  It is notable that the mother’s variation application was only made after the contravention proceedings. It is demonstrated by the evidence in the mother’s affidavits that she only raised the issue of amendment to orders relating to changeover in response to the father’s contravention proceedings. This strongly suggests that inconvenience due to the location of the mother’s new home rather than the welfare and interests of the child. If it were otherwise, the application for variation would have been expected earlier rather than after the application concerning the alleged contraventions, in which the mother conceded two breaches of the final orders without reasonable cause. [33]  Although the mother now claims that there are changed circumstances in the child’s schooling and difficulty at handovers at the high school, the evidence of that is very limited. More importantly, the relied upon change in circumstances are factors already foreshadowed by the final orders given the extensive history of difficulties in co-parenting between the parties as reflected in the nature of the past interim orders and final orders in 2015, past parenting plans and the final orders. [34]  Because the facts and circumstances now sought to be relied upon by the mother to revisit the final orders are all matters contemplated and foreseen when the final orders were negotiated, agreed and then made, in my view they do not satisfy the type of material or significant change capable of meeting the threshold level required to properly allow this Court to exercise discretion and revisit the final orders. [35]  I was concerned that the admission by the mother’s solicitor about shortcomings in affidavit material may unfairly prejudice the mother in the determination of the threshold issue. However, no adjournment was sought on behalf of the mother to adduce additional evidence for the purposes of the threshold Rice & Asplund hearing. [36]  Regardless of shortcomings in the level of detail in the mother’s affidavit material, having regard to the full history and course of the past proceedings and the timing of the present proceedings, I am satisfied that even if the mother were to adduce more detailed evidence about the claimed changed circumstances, it would not alter my conclusion at [35]. Evidence that may be capable of being adduced about the changes relied upon, do not alter the fact that the claimed change in circumstance are not in fact changed. Rather, they were always contemplated circumstances and provided for in the final orders. [37]  In short, changes in circumstances that are expected and foreshadowed when final orders are made and in terms that provide for that change, are not of the quality or nature of change in circumstances, which invoke the discretion to revisit final orders. This reasoning in my view accords with the principles that have been well established for some time and are usefully referred to by Jarrett J in discussing Rice & Asplund in SPS & PLS [2008] FamCACF 16 at [81] , with whom I respectfully agree. [38]  The mother has failed to provide evidence of change in circumstances rising to the level of material or significant changes relevant to the best interests of the child. The mother’s application for final orders filed on 12 March 2021 should be dismissed at this threshold stage.5 [39]  It follows from [37] and [38] of these reasons, that I am satisfied that the mother’s application for final orders has no reasonable prospect of success and so is dismissed.": Perowe & Eddelson [2021] FCCA 1683.

• Application for consent orders — Father's whereabouts unknown — Mother suffering mental illness and undergoing drug counselling — Proceeded by oral application in absence of father — Child to live with mother as provided and with maternal aunt at all other times — Child to spend time with father as agreed: "[2]  I need to refer to the recent history of the matter. It came to this court on an application for consent orders filed on 15 December 2006, that application being filed by the mother of the child, the subject of the proceedings. There are two respondents named, namely, the father and the maternal aunt. ... [11]  Today I have invited counsel for the mother and the maternal aunt to consider making an oral application seeking orders in the same terms as the consent order, but obviously not by consent and make submissions to me as to why I should hear such an application and make the orders, and that has now been done. What should have happened of course is following upon the requisition, the mother should have filed the appropriate application seeking orders not by consent, and that would have then proceeded in the usual way. That was not done but, as I say, in my view it can be remedied by the oral application that is now before me. [12]  I am prepared to proceed in the absence of the father. Every attempt has been made to serve him with the documents. I am also comforted by the fact that the father has not chosen to take any role in this child's life at least since the last orders were made. In any event, with any parenting order, although it is a final order that I will be making, the father always has the opportunity and the ability to make a fresh application to this court if he wants to take a role in this child's life in the future. I think that would at least give him something to work with if he does come back on the scene. [13]  Even though I am prepared to proceed in the way that I have indicated, I still need to consider the relevant sections of the Family Law Act. Firstly, there is s 60B which sets out the objects of Part VII of the Act and the principles underlying that Part. Next and importantly, there is s 60CA which provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. And then there is s 60CC which sets out how a court determines what is in a child's best interests and, particularly, sets out the considerations that the court has to have regard to in determining what is in the child's best interests. [14]  Given the history of this matter and the evidence that is currently before me, I am satisfied that the orders sought are in the best interests of this child. [15]  I propose to make the orders sought, apart from para 1 which is the order in relation to service. I do not need to make that order any more. [16]  Next, because I am making a parenting order, I need to consider s 61DA of the Act which provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. That presumption though does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. I note neither of those apply and so prima facie, the presumption applies. However, the presumption can be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. [17]  I note that in the order of 27 May 2004, there was no order made in relation to long-term parental responsibility but there was an order that the maternal aunt be solely responsible for the decisions concerning the child's day-to-day care, welfare and development. The effect of there being no order made about long-term responsibility is that s 61C of the Act continued to apply. That section provides that each of the parents of the child who is not 18 has parental responsibility for the child. Thus the effect of the order of 27 May 2004 was that the mother and the father continue to have parental responsibility for C. [18]  Interestingly, there was no order providing for the maternal aunt to have any long-term parental responsibility for the child and no order is sought today about that either. Thus the effect of the order that I proposed to made today is that s 61C will continue to apply and the parents of the child will have parental responsibility for that child and the maternal aunt will not have any long-term parental responsibilities. In other words no change to the situation that has applied since the order of 27 May 2004. [19]  I consider that that is in the best interests of this child, and thus the presumption is rebutted. The father has chosen not to be involved in the life of his child and in any event he consented to the order of 27 May 2004 and which I am not changing in this regard. [20]  The only other matter I need to refer to is the orders that are sought today do not include any order in relation to the father. I have weighed up whether there should be an order made in much the same terms as the existing order, namely, providing that the father is able to spend time with the child as may be agreed between him and not only the maternal aunt this time but also the mother. In the circumstances I consider that it is the interests of this child to make such an order. That would at least allow the father to have a basis to work from if he does decide to come back into the life of his child. But of course, it will be subject to agreement of the other parties and the father will have the ability to make any application for any further order that he might seek, depending on the circumstances that exist at the time. [21]  Both counsel at the bar table have indicated they have no difficulty with such an order being made and so I propose to make that order as well.": Kramer & Walsh [2007] FamCA 650.

• Duvall & Duvall [2024] FedCFamC2F 1395 -- see evidence assessed therein.

[I.A] Requisitions & Registrar Notifications - Consent Orders

• "[5]  The practice in the Family court, upon the filing of such application, is that a Registrar will deal with the application exercising delegated powers (Harris v Caladine (1991) 172 CLR 84). If the Registrar is not satisfied that it is possible to make orders that are just and equitable, the Registrar can, if thought appropriate, requisition the parties for further information or, alternatively, dismiss the application.": Redman & Redman [2013] FamCAFC 183. 

Reasons for Requisition

• ** 'Rejected Consent Orders by the Family Court' (Kate Austin Family Law, Webpage) <https://www.kateaustinlaw.com.au/rejected-consent-orders/>, archived at <https://archive.is/5oGar>. 

• 'Application for Consent Orders - Registrar Notification / Requisition' (Robinson + McGuiness Family Law, 6 July 2022) <https://www.rmfamilylaw.com.au/blog-edit/2022/7/6/application-for-consent-orders-registrar-notification-requisition>, archived at <https://archive.is/ozOU4>. 

• No particulars of entitlements to be distributed - unable to assess taxation consequences and fairness of the arrangements: Pearson & Coli [2018] FamCA 295, [34]-[35]. 

• Suppression of evidence: "[62]  The question of suppression of evidence was discussed by Young J in Official Trustee in Bankruptcy v Bryan, A J and the Estate of Christine Ann Gatenby (dec’d) (2006) FLC 93-258 where His Honour said at para 106: Suppression of evidence is the wilful concealment of matter where there is the duty of one or both parties to disclose the information to the Court. This duty of accurate and proper disclosure applies both in contested proceedings and in consent orders. A party must not knowingly create a false impression or allow the Court, even on the making of consent property orders, to draw a false inference: In the Marriage of Kokl (1981) FLC 91-087. A party must not deliberately conceal evidence which should be before the Court although there is no obligation to put evidence to advance the interest of the other party. (Original emphasis) [63]  In that case Young J observed in relation to suppression of evidence the process to adopt ought to be: 100(i)was there suppression of evidence?; 100(ii)if so, did such suppression of evidence bring about a miscarriage of justice within the meaning of s 79A of the Act; 100(iii)Are there other s 79A(1) grounds, such as wilful concealment amounting to fraud, that would create a miscarriage of justice?; 100(iv)… [64]  The threshold step must, of course be to establish whether there was a suppression of evidence. ...": Waldon and Kipley-Waldon (No 2) [2014] FamCA 329.

• Full and frank disclosure: "[83]  Their Honours quoting from the decision in Livesy v Jenkin8: …once it is accepted that this principle of full and frank disclosure exists, it is obvious that it must apply not only to contested proceedings heard with full evidence adduced before the court, but also to exchanges of information between parties and their solicitors leading to the making of consent orders without further inquiry by the court. If that were not so, it would be impossible for a court to have any assurance that the requirements of [the relevant section of the English Act] were complied with before it made such consent orders. [84]  Otherwise as their Honours opined consistent with the decision of Morrison & Morrison9: …the failure of the husband in Waterman and Waterman to disclose the true position robbed the wife of the opportunity of her informed consent and the non — disclosure was of such magnitude that it amounted to a miscarriage of justice… [85]  These principles apply not just to financial matters but also to parenting applications and the obligation is to make a full and frank disclosure of all relevant material as is apparent from the quotation of Justice Dawson in Harris v Caladine10: It is implicit in these passages that the consent to an order must be informed consent the consent to the order is itself part of the judicial process on which the court places reliance. If that consent is based upon misleading or inadequate information then there may be in our opinion a miscarriage of justice either by reason of the suppression of evidence or by reason of any other circumstance. [86]  It is clear on the evidence that there has been a significant miscarriage of justice by reason of the suppression of evidence by the wife and a failure to disclose all relevant information to the husband in relation to her intention to work and live in City S and remove the child to the country.": Lamsaard & Ebrahim [2019] FamCA 934. 

• Parenting: "... It also seems greater scrutiny is being brought to bear in assessing applications for consent orders. That view is borne out by a general observation made by a registrar that there has been an increase in the requisition rate for consent orders because the annexure is not attached or the orders sought do not provide adequate protection in light of the disclosed risk. Although, as the foregoing comment suggests, this has resource implications, the potential for consent orders to ‘slip through the cracks’, without sufficient attention being paid to the way orders are framed in matters in which family violence has been raised as an issue, has long been of concern.146 It is therefore gratifying, and of no small importance, that the family violence reforms are focusing attention on consent orders, particularly given the emphasis in Australia on parties resolving their own disputes. ...": Steven Strickland and Kristen Murray, 'A judicial perspective on the Australian family violence reforms 12 months on' (2014) 28 AJFL 47. 

• "[5]  In the circumstances of this case, I cannot be satisfied that the adjustment set out in the proposed consent orders is just and equitable. In that respect, I have had regard to the rationale of the settlement as set out in paragraph 18 of the husband’s Affidavit filed 17 August 2020 as follows: ...": Lano & Lano [2020] FamCA 783.

• Property: 

> not just and equitable, 80/20 split: "[17]  That application for consent orders filed on 21 April 2017 gave rise to a requisition from Registrar K. Sudholz dated 18 May 2017 and notification of the consent orders being made for the following reasons:— •The Registrar was not satisfied that the outcome is just and equitable in circumstances where the parties have said that the contributions were equal (see items 68 to70 of the application for consent orders) and where there are no section 75(2) factors (see 71 of the application for consent orders). Accordingly, a statement of agreed facts signed by both parties must be provided addressing the basis for the adjustment of assets (inclusive of superannuation) of 80 per cent to the wife and 20 per cent to the husband. This includes a summary of the parenting arrangements for the children of the marriage including what is intended after the wife’s proposed return to [Country K]. •Item 72 is not clear what the other property is in the amount of $364,231.20. It appears to correlate to a liability owing by the husband in item 73 however there is no provision in the proposed minute of consent order for this amount to be paid to the wife. An explanation of this matter is required together with the additional $6,000. [18]  The husband and the wife were advised by Registrar Sudholz that the proposed orders were being returned pending a satisfactory response to this advice and if no response was received by 19 June 2017 the application for consent orders will be dismissed. The correspondence was addressed to the husband’s solicitors who were L Lawyers and to the wife in person at N Street, Suburb N.": B Pty Ltd Pty Ltd & Ors & Majid & Naima [2018] FamCA 612.

> Roussos v Vasco [2014] FamCA 1053, [131]. 

> Bard & Arthur [2009] FamCA 818. 

Remedial

• Response to Registrar, Stat Dec, 80/20 split: B Pty Ltd Pty Ltd & Ors & Majid & Naima [2018] FamCA 612, [19]-[26]. 

• Invitation to make oral application and make submissions, upon requisition: "[11]  Today I have invited counsel for the mother and the maternal aunt to consider making an oral application seeking orders in the same terms as the consent order, but obviously not by consent and make submissions to me as to why I should hear such an application and make the orders, and that has now been done. What should have happened of course is following upon the requisition, the mother should have filed the appropriate application seeking orders not by consent, and that would have then proceeded in the usual way. That was not done but, as I say, in my view it can be remedied by the oral application that is now before me.": Kramer & Walsh [2007] FamCA 650. 

• Affidavit: "[25]  A Registrar from this Court wrote to the parties on 22 August 2018 requisitioning the proposed application for Consent Orders given the parties had brought the application out of time. The Registrar carefully explained to the parties that they were out of time and that if they wished to proceed they would need to seek leave to proceed out of time and that each party would be required to file an affidavit and explain that hardship would be caused to a party if leave were not granted.1 The Registrar gave the parties a time limit of two months to have the affidavits filed, after which time the application would be dismissed without further notice. [26]  The requisition was not answered by the parties and as such no Orders were made by the Court. ...": Reiner & Aldridge [2024] FedCFamC2F 1306.

• Affidavit: "[10]  On 2 December 2013, the First Respondent wife filed an Application for consent Orders in this Court proposing consent orders be made effecting an adjustment of the parties’ matrimonial property consequent upon the breakdown of their marriage. [11]  On 17 December 2013, a Registrar of this Court sent a letter (“the requisition”) to the Second Respondent husband’s then solicitors and the First Respondent wife’s then solicitors requesting further information concerning the proposed division of property. [12]  On 28 December 2013, the Second Respondent husband filed an Affidavit in response to the requisition from the Registrar. ... [34]  In order to understand the parties’ respective contentions as to the appropriate date, it is first necessary to have regard to relevant parts of the Summary of Argument document entitled “Points of Claim”, filed by the Applicant Trustee in Bankruptcy on 14 April 2020. That document sets out the basis upon which Applicant Trustee in Bankruptcy contends that the consent Orders made by the Court on 5 February 2014 should be varied. Paragraphs 49 to 60 of those points of claim provide: ... 55.On 17 December 2013, the Registrar of the Family Court sent a letter (Requisition) to Mr Headley’s then solicitors and Ms Clarke’s then solicitors requisitioning further information, to be deposed to by Mr Headley in an affidavit, concerning the fairness of the proposed division of property. 56.On 28 December 2013, Mr Headley filed in the Consent Orders Proceedings, in response to the Requisition, an affidavit (Headley Affidavit) in which he deposed that: (a)he had received legal advice that his proposed share of property (ie, 25%) “was less than a party would usually be expected to obtain” given the length of the marriage; and (b)he was nevertheless content to receive that proposed share because: i.his “priority” was to provide financial stability and security to his wife and children; ii.as the children’s primary carer, Ms Clarke would need to balance the provision of that care with her employment obligations; and iii.he had the “better opportunity of working and growing my business” and was better able to “build wealth again”. ...": Linton & Clarke [2020] FamCA 497.

• Affidavit, and agreed facts: "[1]  This matter concerns an Application for a review of a Registrar’s decision dated 30 July 2020 in which an Application for consent orders filed on 9 April 2020 was dismissed. The reason for that dismissal was that responses to requisitions issued by the Court on 20 April 2020 had not been provided. In this matter, Mr Lano (“the husband”) has legal representation but Ms Lano (“the wife”) does not. [2]  Having regard to the Affidavits of each of the parties and the solicitor for the husband, which have been filed in respect to the review Application, I am satisfied that, as a result of difficulties in communication, the requisition issued by the Court on 20 April 2020 was not received by the parties or the husband’s legal advisor. [3]  Nonetheless, the information sought in the requisition is still relevant to the Court’s exercise of discretion as to whether or not the Application for consent orders filed on 9 April 2020 should be granted and orders made in accordance with that Application. The requisition dated 20 April 2020 sought the following information: a.An Affidavit from the Applicant setting out sufficient facts relating to the division of property to assist the Court to find that the proposed orders are just and equitable in the circumstances. Regard should be had to the requirements of the Family Law Act. b.Written confirmation from the Respondent confirming her agreement with the matter set out in the above affidavit. [4]  The Affidavit of the wife filed 17 August 2020 satisfies me that the wife is in agreement with the proposed orders and that she wants the orders to be made in those terms. The wife states that she has not obtained, but does not seek to obtain, legal advice and, even if the consent orders are not made, she does not propose to commence litigation to further advance a claim for a different adjustment of the parties’ matrimonial property — other than that set out in the proposed consent orders. Despite the wife’s agreement with the proposed consent orders, pursuant to s 79(2) of the Family Law Act 1975 (Cth) (“the Act”), the Parliament has directed the Court that, before it approves an adjustment of property between parties to a marriage, it needs to be satisfied that the adjustment is just and equitable. [5]  In the circumstances of this case, I cannot be satisfied that the adjustment set out in the proposed consent orders is just and equitable. In that respect, I have had regard to the rationale of the settlement as set out in paragraph 18 of the husband’s Affidavit filed 17 August 2020 as follows: I say that the agreement reached between Ms Lano and myself was based upon the following: i.In the interests of the care and welfare of [the parties’] children; ii.[The parties’] desire to maintain sense of normality in our childrens lives; iii.[The parties’] desire to avoid disruption in [the children’s] lives; iv.[The wife’s] intentionn to relocate to Town C without the children; iv.The childrens request to remain in their matrimonial home; v.The childrens request to remain at their current schools; vi.[The wife’s] desire that [the husband] be full time carer for the children.": Lano & Lano [2020] FamCA 783.

• Property, Affidavit, successful: " ... [3]  In support of their application for Consent Orders the parties provided material to the Court by way of the Application for Consent Orders form. The material disclosed in the Application for Consent Orders form was such as to raise a question as to whether or not the orders sought to be made by the parties would be just and equitable and it was entirely appropriate for the application to be requisitioned. As part of the requisition process the parties have provided to the Court an affidavit executed by each of them in identical terms setting out their assertion jointly made as to the property pool and the effect of the orders. [4]  It may be observed that the orders that they seek to make will involve the respondent receiving a greater part of the current assets and the applicant, who has a greater superannuation entitlement, receiving a greater portion of that. It may also be observed that their affidavit material is not consistent with the application for consent orders. They have each also orally addressed me today. Accepting the assertions that are made in the affidavit material over the Application for Consent Orders the division sought by each of the parties is for a 60 / 40 per cent split in the applicant’s favour. [5]  Two factors are said to justify that disparity, or rather three factors are put together to justify that disparity. One, is it can be derived from the Application for Consent Orders that the applicant had a significant sum of superannuation to his credit prior to what has been a long marriage between the parties. That indicates some degree of contribution on his part, which is greater than that of the respondent. Although it may also be accepted that the significance of that contribution may well have waned over the long period of relationship between the two of them. [6]  The second matter put forward relates to the respondent having time off work to care for their child. This is not a matter which attracts as being a reason for a disparity in the orders. Whether somebody is working or somebody is working within the home for the care of a child, there is no reason to conclude that the contributions made in the care of a child are in some way inferior to the contributions made in deriving income for the family. That is not a disparity that I accept as justifying a difference in the orders. [7]  However, there is a third matter that is put. Although there is not great detail exposed about that matter, it has been the subject of submissions made by the respondent before me and accepted as true by the applicant before me. Although I do not have the precise details about the circumstances of the relationship what is alluded to is that the respondent has struggled with a mental health issue at some point in the relationship. She places great value on the support that she was given during that period of time by the applicant and concedes that as a result of her circumstances at that time she was unable to make certain contributions to the home that is, she accepts that those peculiar circumstances, which do not always attach to a party suffering from a mental illness, but in this case demonstrated a differential in the contributions made by the parties justify the adjustment in this instance, which is not an equal adjustment. [8]  As to the future circumstances of the parties the applicant is slightly older than the respondent and it may be assumed that the respondent will have a slightly longer working life ahead of her. At present, the applicant earns a little more than the respondent, although their common position is that her prospects of receiving higher remuneration in the future are better than those of the applicant due to her personal qualities. [9]  It should also be noted that there is no starting point that there will be an adjustment of property interests. The steps taken by the parties seemingly reflect each of them retaining their own property interest from the end of the relationship. The most significant current asset that they divided between themselves was the family home and they have already split that on what is an almost 50 / 50 basis. In essence, the parties are not seeking to depart from their ownership of the various items that they currently hold. On the basis that they have put forward of the particular circumstances of their relationship I accept that the consent orders that they seek to be made are just and equitable under the circumstances. [10]  I make orders in accordance with the terms of Consent Orders filed in the Court executed by the applicant and the respondent, initialled by me and with today’s date placed upon them.": Wibley & Wibley [2018] FamCA 565.

• Affidavit, child departure orders, successful: "[1]  This is a matter that was brought to my attention in chambers by a registrar. [2]  The parties filed an application for consent orders on 3 June 2009 but it was subject to a requisition by the registrar because it sought child support departure orders. [3]  As a result of the requisition, the parties disclosed the assessment which is now attached to the affidavit of the solicitor for the applicant. [4]  The original minutes have also been amended to include an order under s 112 of the Child Support (Assessment) Act 1989 (Cth) giving leave to bring the application for a period in respect of a time in excess of 18 months prior to 3 June 2009. [5]  There is also no indication in the material of the parties that either of them is the recipient of an income-tested pension, and for that reason, the provisions of s 118(4) of the child support legislation apply. [6]  I am satisfied in the circumstances that notwithstanding my concern as to the nature of the orders sought for departure from the administrative assessment, the parties understand exactly what they are doing and they have a private agreement which would enable them not to have to require the attention of the Agency. [7]  I have also read the relevant information of a financial nature provided with the application for consent orders and am satisfied in the circumstances that the property orders are just and equitable as between the parties. Accordingly I propose to make the orders sought.": Oldman & Cantino [2009] FamCA 596; BC200950502.

• List matter for mention: Pearson & Coli [2018] FamCA 295, [45]. 

• Continue the matter in adversarial proceedings: "HEADNOTES ... (iii) The primary judge’s reasons explain quite satisfactorily why the proceeding for property settlement under Pt VIII of the Act, commenced by W filing the application for consent orders, was capable of being prosecuted in an adversarial form once W withdrew her consent to orders being made in the form originally proposed and the executor was substituted for H: at [40]. ... [40]  As for Ground 5, we consider the primary judge’s reasons, extracted above, explain quite satisfactorily why the proceeding for property settlement under Pt VIII of the Act, commenced by the wife filing the application for consent orders, was capable of being prosecuted in an adversarial form once she withdrew her consent to orders being made in the form originally proposed and the executor was substituted for the deceased. In any event, the primary judge only had to apply the law correctly; not give reasons why the settled law is correct. Judges need only give reasons to explain the orders they make. Ground 5 fails also. ...": Hullet & Benton [2022] FedCFamC1A 13. 

• Relist for open court: "[1]  This is an application in the duty list which was commenced by Mr and Mrs Timothy filing an application for consent orders on 2 April 2008. For reasons which are not entirely clear to me and, in fact, do not matter, a registrar declined to make the orders and sent a requisition. The parties then requested that the matter be adjourned to open court for consideration as to when the orders should be made. [2]  The background of the matter is relatively simple. The husband is aged 46 years. He is a manager whose income is about $100,000 per annum. The wife is also aged 46 years. She earns substantially less than that working as a part-time receptionist, and is otherwise occupied in home duties. Both parties live in K. They were in a relationship of 23 years. They have not yet divorced. There are two children aged 17 years and 14 and a half years of age respectively, both of whom live with the wife, and the husband pays child support which is noted on the minute that the parties have signed. The minute is slightly different from the reality, but in fact it does not matter, because the husband is paying about $3000 per month. [3]  Each party has a motor vehicle. The facts indicate that there is not much that is unusual about their background. If the case was to be determined as a defended hearing, the first step in the four-step process would be to determine the pool. In this case there is common ground that, leaving aside chattels, the pool is about $590,000 and there is some superannuation. The parties have agreed to a division of the cash in the bank, which is about $500,000 as to 60 per cent to the wife and 40 per cent to the husband. In addition to the cash, there is some superannuation. The husband's significant superannuation is a pension which is in two funds, and when he gets to 65 years of age he will get something like $35,000 per annum. I note that he is currently 46 years of age, so he has a long way to go. The wife has a fund in the United Kingdom which was initially funded by her father. At 60 years of age she will get about $6000 per annum. She also — at 46 years of age — has a long way to go. [4]  It seems to me that the superannuation in this case, if the matter had proceeded as a trial, would in reality have only been dealt with as a s 75(2) factor. The pool, therefore, that I am dealing with is, in reality, the cash that the parties have agreed to divide up. I am told that there is no significant argument in relation to contribution, and it is probably hard to see that there could be with a pool that size and a 23-year relationship. The parties have obviously taken into account the matters set out in s 75(2) of the Family Law Act 1975 (Cth), having regard to the age of the children, the superannuation, and the fact that there is a disparity of their earning capacity. [5]  The fourth step in the four-step process is for the court to ultimately decide that the division in the order is just and equitable. It is not the percentage that must be just inequitable, but the underlying value. This case has avoided the tortuous path of litigation and saved the parties a substantial amount of money. There is a strong ring of commercial reality about it, and in the circumstances I do not find anything unusual about the outcome that the parties have reached agreement upon. In the circumstances, I say that the outcome for these parties is just and equitable. [6]  In the matter of Timothy, I will make final orders in the terms of minutes, which I will mark as Ex A. I will remove the minute from the formal application for consent orders and I will mark that as the Ex A. I will direct that that remain on the court file. [7]  As a matter of formality I will make orders also that all outstanding proceedings between the parties are otherwise dismissed. All proceedings are removed from the list of cases awaiting a hearing.": Timothy & Timothy [2008] FamCA 661.

• Dismiss: "[15]  Whilst the parties originally filed an Application for Consent Orders in relation to parenting issues for the child on about 21 March 2012, deficiencies or defects in the terms of those proposed orders led to a requisitioning by a Registrar of this Court. The request and requisition was, seemingly, not answered by either party, with the consequence that, on 28 June 2012, a Registrar dismissed the Application.": Sullivan v Little [2015] FamCA 71.

• Discontinuance, and file Initiating Application: Sullivan v Little [2015] FamCA 71.

• Dismissal, then review - rehearing de novo: "[14]  Following the dismissal of the Application for Consent Orders by the Registrar, the husband filed an application on 28 March 2012 to review the decision of the Registrar (Harris v Caladine and r 18.10 of the Rules). Such review operates as a hearing de novo. On 27 April 2012, the application for review of the Registrar’s decision came before Deputy Chief Justice Faulks. The transcript indicates that both the husband and wife appeared. The hearing was of short compass. His Honour asked why the husband was asking that the order be made and the following conversation ensued: ...": Redmab & Redman [2013] FamCAFC 183.

• Final orders sought by consent, but court made Interim orders, then program final hearing for final orders: "[50]  I am guided by the High Court of Australia in Harris v Caladine (1991) 172 CLR 84 , where Brennan J, as he then was, observed that orders by consent are not a formality but: Consent orders finally disposing of the issues between parties to proceedings in a court have always been regarded as a judicial determination Despite these observations being made in the context of property proceedings, I infer that final orders by consent in parenting matters are similarly a judicial determination and must be in the best interest of the child/ren. CONCLUSIONS [51]  Taking into account all of the above, I am not satisfied that I am currently able to make the orders sought on final basis in terms of the minute of orders put to me, and anticipated to be made by consent. At the commencement of the hearing on the 9 June 2023, I flagged with the Counsel a further option whereby I might consider making interim orders in respect of X Ultimately in their final submissions, no Counsel was vigorously opposed to such a course, although it does, of course, bring with it its own ramifications, such as the parties and the child remaining in this system and under the scrutiny of the Court and others, but where that, on balance, might ultimately be a positive rather than a negative. [52]  As set out above, I have considered making orders on a final basis in terms of the proposed minutes. I cannot do so, as I cannot be satisfied that such would be in the best interests of X with so many unknowns remaining. For instance, it was canvassed during the helpful evidence of Dr H, that a psycho‐sexual assessment of the father might be of assistance, where oddly such has not been previously prepared. Similarly, some psychiatric or psychological assistance for X given her behaviour, her relationship difficulties, and a proposed move to Tasmania would be of assistance. To put it bluntly, the father does not as yet, present as a parenting option per se which I can find to necessarily be in X’s best interests. As set out above, he is an unproven parent who will be asked to deal with a child exhibiting severe behavioural and emotional difficulties. The further unknown of X’s ability to assimilate into living with her father in Tasmania is also an unknown. Consequently, I have determined that X’s best interests are served by me making interim orders. Those orders would allow continued scrutiny of this family by the Court and by the ICL, and obviously with some direct attention now from the Department for Education, Children and Young People in Tasmania, where I put on the record that the Court would be greatly assisted by an assessment from that Department, who have the experience and facilities to provide such assistance to the Court that might not be otherwise available. [53]  Needless to say, the Court also maintains an interest in, and concern for, the maintenance of X’s relationship with her mother, in circumstances the experts’ evidence is dubious as to the father’s willingness and ability to maintain that relationship.": Diggs & Meyers [2023] FedCFamC1F 497.

• Consent to injunctions by notations - final orders by consent - consistency with recommendations from independent experts: "[2]  Fortunately for T, the parties have, with the assistance of their legal practitioners and the Independent Children's Lawyer, been able to agree upon the arrangements for the child's co-parenting. These arrangements are designed to not only set out in specific terms the time which the child will spend with each of them, but, importantly, to also seek to address the issue identified as central to T's best interests by three independent experts, whose reports are before the court in evidence. [3]  The parties have attempted to deal with what will, hopefully, be a significant diminution in the nature and degree of the conflict between them in a number of different ways in the orders, including their consent to injunctions in respect of each of them about various aspects of their behaviour. [4]  The orders contain what might be described as a somewhat unusual provision preventing the father from issuing further parenting proceedings pursuant to the Family Law Act without prior leave of the court. That is an order which, I should emphasise, is made pursuant to the injunctive power contained in Part VII of the Act, as distinct from s 118. [5]  The orders contain a paragraph of notations to the orders which provides that each of the parties intend to undertake separate personal counselling or therapy of a confidential nature designed to help them address matters relevant to each of them respectively, with the joint aim that any such therapeutic intervention will assist them to ameliorate the conflict between them in T's best interests. [6]  That orders injunctions, together with other orders, that can be seen to have a similar purpose, are, in my view, in T's best interests in this case because of the central place of what is very long-standing conflict between these parties. ... [11]  The High Court made it clear that s 65DAA is a source of power. So too, a source of power can be seen in s 65D. The decision of the High Court in MRR v GR makes it important, in my view, for courts to make clear, and for orders made by the court to make clear, whether the presumption of equal shared parental responsibility applies, or is it rebutted in a particular case. If the presumption is not rebutted and applies (or if that order is otherwise made), then the decision of the High Court is authority for the proposition that the source of power for the court lies, not in s 65D, but in s 65DAA. That, in turn has ramifications for the process to the applied. That is so even on a consent O (see eg Harris v Caladine (1991) 172 CLR 84). [12]  Here that issue was raised in the context of consent orders sought to be made late in the day after a long and difficult process of negotiation in this case. ... [37]  The proposed orders make no provision for parental responsibility, save in the manner in which I have just described. The notation to the order specifically provides that the parties intend, save in a specified way, that each of them is to have parental responsibility with respect to T within the meaning of the Family Law Act. It seems to me that the manner in which the parties have attempted to achieve that in their minutes of consent, by reference to the difficult circumstances arising from the parental conflict, is appropriate and in T's best interests. [38]  I am satisfied, the presumption has been rebutted by reference to T's best interests. Therefore, the requirement to deal with legislatively mandated periods of time in a legislatively mandated manner is removed. [39]  Nevertheless, it seems to me beholden upon the court charged with the responsibility for determining whether orders are in the best interests of a child to, nevertheless, consider whether the periods of time provided for in the minutes of consent are in the child's best interests. [40]  I have alluded to the difficult circumstances in this case and to the fact that the parties have been in conflict in one form or another in respect of their child for virtually the whole of her life. In those circumstances, in particular, it seems to me that the orders, in terms of the quantities of time that they provide for, are in T's best interests, and the orders represent a reasonable and appropriate means of attempting to deal with a serious and ongoing issue between the parties, namely, their conflict. [41]  For those reasons, then, I make orders in terms of the minutes of consent signed by the parties and initialled by me.": Wattel & Evans [2010] FamCA 411.

Criteria - Curial Assessment of Application for Consent Orders

• State of knowledge of proceedings are good, OP has given matter careful and mature reflection, final orders by consent: "[2]  The proceedings commenced initially in this Court by way of Initiating Application in February of 2011 and, of more recent date, by Initiating Application filed 27 August 2014. The focus of the parties has been in respect of the ongoing parenting arrangements in respect of the child. ... [7]  Because there will then be a delay between today and the making, or the resolution of the final remaining issue, namely, the dispute as to the child’s surname, the orders that the parties have agreed to should be made. I have before me a minute of order, and that following further discussions today, that document has been supplemented by a single page, which provides further orders to be added into paragraph 16 of the draft minute. Upon making those orders, those documents together will comprise Exhibit 1 in the proceedings. [8]  Notwithstanding that it is a consent order, it is, I think, clear that it is not a matter for me to simply accede to the agreement of the parties. That is, a consent order and the making of orders by consent should not be a mere formality. [9]  There is a process, but importantly, the obligation of the Court is to make orders that are in all the circumstances in the best interests of the child or children, and that then requires that I bring some consideration to bear in respect of the orders, what the orders are likely to achieve and, to the best that I can, notwithstanding that it is a consent order, to glean whether, in the circumstances of this case, if those orders are made, the child will benefit. [10]  Having said that it is not a matter of a rubber stamp, Dawson J in Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84 said at 124: The fact that an order is sought by consent does not relieve a court, or a Registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a Registrar is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met. In this case, that can easily be said in respect of the mother and certainly in respect of the ICL, but cannot necessarily be so easily said in respect of the father, who appears as self-represented litigant. [11]  Again, though, opportunities have been given to the father to reflect upon the orders, and the matter was stood down today specifically to enable the father to avail himself, if he wished, of assistance and advice from the duty solicitor within the registry of this Court. I am also aware, from the father and the evidence that he gave, that whilst this document may be the first time he saw it today, nonetheless the matters contained in the document have been the subject of consideration by him for now some little time. [12]  The father indicated in evidence and in submissions that he had consented to a resolution to the majority of the parenting issues, but he had resiled from that firm position because of certain events that had occurred over the last few days or weeks. The matter, however, came back on track, with the matter being stood down today and further agreement being reached in terms of the amendments that I have indicated, which form paragraph 16(d), (e) and (f) of Exhibit 1. [13]  Having come to that subsequent agreement, the father has made it clear to the Court that he understands the orders, that he understands that if the orders are made, it represents the complete resolution to the proceedings in respect of the parenting arrangements the child, and he asks me, over and above the fact that the documents bear his consent and those of the mother, to make orders in terms of the minutes of order, understanding that it resolves the matters. [14]  I have had the advantage of seeing the father in Court across the morning. I have had the advantage of hearing the father in his submissions and of seeing him cross-examine the mother in the proceedings and I am satisfied that his state of knowledge in respect of the proceedings is good and that he has given the matter careful and mature reflection. It is for those reasons, that I make the orders as requested.": Sakhagi & Brawn [2017] FamCA 188.

• Informed consent: "[63]  The applicant relies on the decisions referred to by the Full Court in Barker as follows: ... 111After citing from Dawson J in Harris v Caladine(1991) FLC 92-217 at 78,845-78,846 the Full Court said: It is implicit in these passages that the consent to an order must be informed consent. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice either by reason of the “suppression of evidence“ or by reason of “any other circumstance“.": Milford v Milford [2015] FCCA 344.

[I.B] Consent Orders - Appeal Against?

• "[40] This Court said in Robinson and Willis,[11] that the authorities illuminated the following relevant principles: 1.           The fact that an order is made by consent does not make that order of any different nature from an order made otherwise … The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties. 2.           Amongst other conclusions which follow from that is that such an order may, subject to important qualification, be the subject of appeal in the same way as any other order. The important qualification is that as a consent order is made as a consequence of the consent of the parties to the court making that order, and not an adjudication by the court, the order may not be challenged by an appeal which is directed to the correctness of that order, that is, it cannot be appealed against on the merits. However, other grounds of appeal remain available as for example, fraud, mistake, fresh evidence, absence of jurisdiction … (Italics in original; underlining added). [11] (1982) FLC 91-215, at 77,161 per Fogarty J. [41] Reference was made in that case to the decision of the English Court of Appeal in Thwaite v Thwaite,[12] where the Court of Appeal said that: Similarly, as orders of the court, [consent orders] must be subject to the provisions which apply to appeals from orders made at first instance, though with one important exception. Where the court of first instance has not adjudicated on the evidence, its decision cannot be challenged on the ground that the court has reached a wrong conclusion on the evidence before it. Final orders of all kinds, however, can be challenged on appeal and may be set aside on other grounds. [12] [1981] 2 All ER 789, at 794. [42] Here, the parties were entitled to have the trial proceed to its conclusion and have his Honour “adjudicate it on the facts” including the competing serious assertions made by both parties and the single experts. However, they did not. By their respective applications to have his Honour make the orders they had each agreed to, each party was asking his Honour not to adjudicate upon the issues. Further, each party was, by their respective application, asserting that the orders proposed to be made were in the best interest of the children. [43] As a consequence, the “important qualification” on the right to appeal consent orders referred to by Fogarty J in Robinson & Willis (above), disposes of all but the first of the grounds of appeal relied upon by the mother.    (c)      “Undue Duress and Influence” – Ground 1   [44] The mother makes a clear assertion that she was coerced, hectored or badgered into agreeing to the consent orders by his Honour. In her words, the trial judge “put a gun to her head” to have her agree to the orders. That allegation is serious, involving as it does an allegation of the failure of judicial responsibility. With that in mind, we required the mother to refer us to those parts of the transcript which were said by her to provide the foundation for that assertion. We made it clear to the mother that if she asserted that the words of the transcript did not reveal a tone or intonation upon which she relied, she should specify any such passage and we would together refer to the audio recording of the proceedings. The mother did not refer us to any such passage. ... [62] Each assumes errors pertaining to an adjudication of issues which, as a result of the application for the making of consent orders by both parties, the court was never asked to adjudicate. Indeed, as we have said, the parties’ application is in essence an application that the court not adjudicate those issues. The principles referred to in Robinson and Willis (above), pertain. The consequence is that none of the grounds 2 through 10 have any foundation.": Darley & Darley [2016] FamCAFC 10.

Setting aside Consent Orders

• See especially, Harris v Caladine (1991) 99 ALR 193 (HCA).

• "[59] Whilst it is ultimately a matter for determination on the facts in each particular matter, where consent orders have been obtained from the Court on the basis of false information for the purpose of defeating creditors, in most circumstances, this will be sufficient to justify an order varying or setting aside the order under s 79A of the Act. ... [77] The point of the Application for Consent Orders asking for information about the parties’ creditors is not just to assist the Court to determine whether the proposed consent orders are just and equitable between the parties but also to see whether creditors should be afforded the opportunity to be heard on the proposed consent orders before they are made. .... [81] It must be recalled that an applicant for property settlement consent orders must establish that the order is proper and satisfies s 79(2) of the Act. The obligation on parties to give accurate and full disclosure is of single importance in maintaining the integrity of the judicial process. Where the integrity of the judicial process is trammelled by giving false evidence which affects the rights of third parties, the Court must intervene. [82] Further, s 79A(1)(a) of the Act itself imposes no such consideration. It requires a finding that there has been the relevant fraud, duress, suppression of evidence, giving of false evidence or any other relevant circumstance; and that in circumstances there was a miscarriage of justice which finally justifies varying or setting aside the order (Suiker and Suiker (1993) FLC 92-436). [83] The final step may involve a comparison between the orders that were made and those that were likely to be made, absent any relevant default, but that is not the only means by which a Court could be satisfied that it was just to vary or set aside the orders. A denial of procedural fairness of the kind just discussed is, in our view, sufficient to be able to justify such a course without such comparison, because the failure to disclose and notify the creditor is a circumstance leading to a miscarriage of justice which, of itself, justifies the setting aside of the orders. [84] This is not to say that every failure to disclose and notify a creditor, in any sum whatsoever, must lead to the setting aside of consent orders. Not every denial of procedural fairness leads to a new trial (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). ... [89] These cases fall short of establishing the proposition put to us by the wife. Rather, they point to consideration on a case by case basis of whether the non-disclosure was of such magnitude so as to justify the varying or setting aside of an order. Such a proposition is unremarkable.": Cantrell & North [2020] FamCAFC 175.

[I.C] Final Orders by Consent

• Consistent with family report recommendations: "[1]  A central and complex issue in the property and spousal maintenance proceedings (which were to be heard over 10 days of trial commencing today) was whether the husband was possessed of an interest in the C Trust constituting property amenable to an order under s 79 of the Family Law Act 1975(Cth)(“the Act“). That essential difference is a very substantial one in monetary terms in terms of the pool or the balance sheet handed up as Exhibit 1. [2]  Plainly, the consent orders that the parties have been able to negotiate represent a significant compromise by both the husband and wife on their respective positions and I acknowledge that each of the parties are well represented by experienced solicitors and counsel including senior counsel in reaching this compromise. [3]  I am satisfied that the property orders, which are also predicated upon a binding financial agreement and a child support agreement being entered into, are appropriate orders within the meaning of s 79 of the Act and it is just and equitable to make those orders and I make those orders. [4]  With respect to the parenting orders, I have read the reports of Mr GG, the family consultant and single expert who has provided reports. Plainly enough, the orders that have been negotiated and agreed by the parents are consistent with recommendations contained in the single expert report as to the children’s best interests. The parties are to be congratulated on being able to negotiate agreed terms of parenting orders rather than having the Court impose upon them parenting orders determined by the Court. [5]  For these reasons, I make the orders that have been initialled by each of the parties and their lawyers, now initialled by me and placed with the file.": Mendicino & Mendicino & Ors (No 7) [2015] FamCA 575.

[J] Parenting Plan

• Part VII, Div 4, Family Law Act 1975 (Cth) -- ss 63A-63H.  

> Note, relation with BCSA. For BCSA, see Spousal/Maintenance in Wong on Family Law. 

• PP can be made at any time: "[75]  At all times, the parties have the potential to enter into a parenting plan within the meaning of s 63C of the Act. Section 63B shows the legislature’s intent in encouraging parents to take that approach. It reads: Parents encouraged to reach agreement  The parents of a child are encouraged: (a)to agree about matters concerning the child; and (b)to take responsibility for their parenting arrangements and for resolving parental conflict; and (c)to use the legal system as a last resort rather than a first resort; and (d)to minimise the possibility of present and future conflict by using or reaching an agreement; and (e)in reaching their agreement, to regard the best interests of the child as the paramount consideration. [76]  Thus, if the parents go through this process and then do not reach agreement, the end result will be a court determination.": Ungar & Stillman [2018] FamCA 180. 

> cf   Vance & Tuffin [2023] FedCFamC1F 892, [10]. 

• What is a PP: "[48]  There is no Marriage Certificate of Queensland as contended for by the applicant. Certificates of a marriage must be prepared as directed by ss 50(1)(a) and 50(1)(b) of the Marriage Act 1961 (Cth) where an authorised marriage celebrant solemnises a marriage. One of the official certificates prepared as directed by s 50(1)(b) of the Act must be sent to the appropriate registering authority of a State or Territory ascertained in accordance with the regulations: s 50(4)(a)(i) of the Marriage Act. The state registration body might issue an extract of the information contained a register of marriages, certified by the Registrar of Births, Deaths and Marriages to be a correct extract. None of these documents, however, meets the description of a care arrangement for the purposes of s 3 of the Family Assistance Act. It is not a written agreement between the parties, but rather a certificate of the solemnisation of their marriage. Nor does it relate to the care of a child. It is not an order. Nor is it a parenting plan for the purposes of s 63C of the Family Law Act. The definition of parenting plan in the Family Law Act is incorporated by reason of the definition of that term in s 3 of the Family Assistance Act. [49]  The second document to which the applicant refers is not a written agreement, parenting plan or an order for the purposes of the definition of care arrangement in the Family Assistance Act. To the extent that such a document was before the Tribunal, the Tribunal was correct not to treat it as a care agreement. The applicant argues that the CCB/CCR payments needed to be claimed using a form that was signed by both parties. He argues that the payment had been granted to him since 15 March, 2016 and it was granted to him on the basis that he was either the primary carer for Alex or there was a written agreement between the parties nominating one of them is the person who could make a claim for family tax benefit. However, that form (and to the extent there was more than one of them those forms) predated the parties’ separation. It is uncontroversial that the care arrangements for Alex changed upon separation such that he lived full-time in the second respondent’s care and spent no time in the physical care of the applicant. Whatever the case might have been before the parties separated, their separation introduced a new factual substratum which necessarily affected any arrangements, including arrangements for family tax benefit, that had gone before. There is nothing to suggest that any agreement that might be constituted by the signing of the relevant forms was intended by either party to govern their arrangements and the arrangements for the payment fringe tax benefit upon the separation. But in my view, the signing of such forms does not constitute a written agreement for the purposes of the definition of care arrangement in any event. [50]  The incidence of parental responsibility of children is dealt with in s 61C of the Family Law Act which provides that each of the parents of a child who is not 18 has parental responsibility for the child. Section 61B of the Act defines the phrase parental responsibility in relation to a child as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Further, as the applicant points out, the Child Support (Assessment) Act 1989 (Cth) in s 4(1) provides that the principal object of that Act is to ensure the children receive a proper level of financial support from their parents. [51]  However reference to these sections does not assist the applicant’s argument. Neither of those legislative provisions are a written agreement between Alex’s parents. Nor do they constitute a parenting plan as that term is defined in the Family Law Act. They are simply not an order of the type described in the definition of care arrangement for the purposes of the Family Assistance Act.": He v Secretary, Department of Social Services [2021] FCCA 2035.

• ?PP has effect of varying or revoking an order of a Court? (this is very questionable, anti-thesis to best interests) DO NOT FOLLOW - error perhaps borne out of vague court notices: 

> "[262]  Division 4 Pt VII of the Act allows parents from time to time to enter into a parenting plan which may have the effect of varying or revoking an order of a court. If at some future point in time the father formed the view that it was in the child’s best interest to have face to face time with her mother, then the parents could enter into a written arrangement to vary the orders that I have made. It was not suggested by the father or the Independent Children’s Lawyer in this case that I would make an order that the parenting orders may only be varied by a subsequent order of the court. The orders could be varied by a parenting plan.": Hammond and Hammond (No 2) [2014] FamCA 577. 

> "[955]  Division 4 Part VII of the Act allows parents from time to time to enter into a parenting plan which may have the effect of varying or revoking an order of a court. If at some future point in time the father formed the view, consistent with the child’s views, that it was in the child’s best interest to have face to face time with his mother or communication with his mother, then the parents could enter into a written arrangement to vary the orders that I have made. It was not suggested by the father or the Independent Children’s Lawyer in this case that I would make an order that the parenting orders may only be varied by a subsequent order of the court. The orders could be varied by a parenting plan.": Tyler and Sullivan [2014] FamCA 178. 

> *** "[6] The original order signed by the Registrar is on the court file. Unsurprisingly enough, it has that very document attached to it. The document reads as follows, under a bold heading, which says “Your Legal Obligations”, it reads: You must do everything a parenting order says. This includes taking all reasonable steps to follow the order. There are agencies in the community that can help you and your family adjust to and comply with the order (see details above). The order remains in force until a new parenting order or parenting plan changes it in some way. Even if the needs or circumstances of you, your children, or the other party change the court order applies until it is formally changed by a court or in some circumstances you enter into a parenting plan with the other party. [7] Unsurprisingly, it then reads: Sometimes people talk to each other about changing arrangements set out in the parenting order. These talks do not change the order." [8] Those obligations are part of the order.": Krinos & Krinos [2013] FamCA 88. 

• No pre-action steps required for parenting plan, not a court process: "[164]  To the extent that the father may have sought to spend time with and communicate with the children from separation until early 2017, I am satisfied that the communication between the parents was poor at the time. It appears uncontroversial that by the latter half of 2016, the parents were communicating only through their lawyers. A parenting plan may be created after parties engage in mediation, but there is no legal requirement that parties engage in mediation to enter into a parenting plan. Mediation and pre-action procedures are required where parties seek court orders. There is nothing to preclude parents from engaging in negotiations through solicitors to make informal written agreements about parenting arrangements, and it appears a missed opportunity that it did not occur here.": Karlsson & Karlsson [2022] FedCFamC2F 1604. 

• Only parents can enter into agreement, despite grandparent having involvement in the plan: 

> "[58]  Significant changes relating to grandparents and parenting orders were introduced into the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). As seen, s 65C(ba) provides that a grandparent of a child may apply for a parenting order in relation to a child. There is then specific reference to "grandparents" in ss 60B, 60CC(3)(b)(ii), 60CC(3)(d)(ii) and 60CC(3)(f)(ii) of the Act. Also according to s 63C(2A) a parenting plan can refer to a grandparent however, a parenting plan requires the involvement and signature of the parents according to s 63C(1)(b)(ba). This means that a grandparent requires the cooperation of the parent to make a parenting plan.": Ni & Zang [2008] FamCA 1100. 

> "[29]  Significant changes relating to grandparents and parenting orders were introduced into the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). As seen, s 65C(ba) provides that a grandparent of a child may apply for a parenting order in relation to a child. There is then specific reference to "grandparents" in ss 60B, 60CC(3)(b)(ii), 60CC(3)(d)(ii) and 60CC(3)(f)(ii) of the Act. Also according to s 63C(2A) a parenting plan can refer to a grandparent however, a parenting plan requires the involvement and signature of the parents according to s 63C(1)(b)(ba). This means that a grandparent requires the cooperation of the parent to make a parenting plan.": Samson & Jacks [2008] FamCA 176. 

> "[23]  The document which the maternal grandfather prepared was signed by both parties and dated 2 September 2008. It provided for [X] to live with the mother in Darwin until he completed Grade 7. It provided that the mother was then to return to Queensland with [X] and that [X] was thereafter to live in a week about arrangement with the parents. It provided that if the mother chose not to return to Brisbane, [X] would live with the father in Queensland while he completed his secondary education. [24]  The document was on its face a parenting plan as defined in s 63C (1) of the Family Law Act.": Dewey and Metcalf [2009] FMCAFam 670. 

> "[30]  Division 4 of Part VII deals with parenting plans. This statutory scheme is again focussed on parents and children. For example, parents are encouraged to reach agreement (s 63B) and only parents can enter into a parenting plan (s 63C(ii)), though the plan may deal with the child’s interaction with other persons including grandparents. Thus, for example, the parents may enter into a parenting plan that deals with a child living with another person (s 63C(2)(a)), spending time with another person (s 63C(2)(b)), allocating parental responsibility to another person (s 63C(2)(c)), and communicating with another person (s 63C(2)(e)). Indeed s 63C(2A) expressly contemplates that the other person is a grandparent. [31]  Division 4 of Part VII therefore contemplates that parents may confer on grandparents by way of a parenting plan rights and responsibilities in relation to a child, but a grandparent cannot be a party to a parenting plan. Again Division 4 sends out mixed signals about the role of grandparents under Part VII of the Act. They clearly can be the beneficiaries of rights and responsibilities relating to children, but those rights and responsibilities are conferred on them by parents who enter into parenting plans.": Connor and Bourke and Anor [2008] FMCAFam 69. 

• Formalities?: 

> "[80]  That then raises the question of whether the parties should be precluded from being able to vary these orders by parenting plan. Of course a parenting plan need be nothing more than a signed agreement (s 63C of the Act)": Cornwall & Cornwall [2022] FedCFamC1F 389. 

> If not signed by both parties, then not a PP: "[37] The parties attended a Family Dispute Resolution mediation on 8 November 2017 at the S Family Relationship Centre. A document was prepared as a result of that mediation and entitled “Parenting Agreement”, a copy of which is annexure ‘A’ to the father’s affidavit. However, the document never became a parenting agreement within the meaning of that term in the Act as it was not signed by either party.[2] As the document is not a parenting agreement and is patently the product of Family Dispute Resolution between the parties, having been conducted by persons described on the document as “family dispute resolution practitioners”, I cannot take notice of anything in that document past the title page as they are not admissible in evidence.": Langer and Franke [2020] FCCA 1852.  

-> NOTE: draft parenting plan circulated between the parties are not admissible as evidence in Family Court Proceedings: "[27]  The consequence of taking those provisions as a whole is that a document that is only a concluded agreement reached during or at the end of family dispute resolution process, where there is an inescapable inference that the document repeats the substance of what was said, or part of the substance of what was said is not admissible in Family Court proceedings. [28]  Where such a document has the additional steps such as being in writing, being signed by the parties and being dated and so complying with s 63C, that document would be admissible. The Father’s submissions were very much concerned with what was seen to be the unfairness or inconsistency between the parties being encouraged by provisions in the Act to reach agreement and then being restricted about evidence as to that agreement. I acknowledge the point and substance of those submissions. My conclusion is that the very different schemes of s 10J of the Act with s 131 the Evidence Act means that on occasions, not necessarily every occasion but certainly on occasions such as this one, the parties could, hypothetically, reach agreement during or at the end of this section of the dispute resolution process and then one or both parties, at different times, both rely upon and recant that agreement and that would not make the contents of the document admissible, unless s 63C was complied with and hence it was parenting plan. [29]  The circumstance that not being able to refer to the document may mean that the Court may be misled does not assist getting over or around the clear provisions of s 10J of the Act. If there was only without prejudice negotiations. [29]  The circumstance that not being able to refer to the document may mean that the Court may be misled does not assist getting over or around the clear provisions of s 10J of the Act. If there was only without prejudice negotiations or mediation privilege to be taken into account then in that circumstance s 131(2)(g) of the Evidence Act would apply.": Solomon & Todoro [2021] FedCFamC2F 694. 

> **** a document (though not expressed so) can constitute PP: "[30]  It is plain that the parents can agree on such arrangements as they consider appropriate in respect of the children. As Mr Grant points out, correctly, in my view, because the document is in writing, is signed and dated by the parties, and deals with the matters referred to in s 63C(2) of the Act, the document signed by the parties can constitute a parenting plan. [31]  Accordingly, it can govern the rights as between the parties for so long as they continue to agree to implement the parenting plan.": Fitzroy & Fitzroy (No 3) [2010] FamCA 867. 

> ?Proposed Orders (presumbaly signed by both parties) itself constitute a Parenting Plan: see argument advanced: "[30]  The appellant submitted in relation to the first ground of appeal in summary, as follows: ... A consent order which allowed for the payment of child care fees in a particular way did not oust either parent from making an application for child support. Additionally, it was not open to either parent to make an application for child support seeking an assessment that specifically required the child care fees to be paid. •In short, the provision for the payment of child care fees in the 12 July 2016 FCC Orders and Proposed Orders did not equate to the costs of the child under the CS Act and did not preclude an application for child support being made under the CS Act, thus s 66E of the Family Law Act 1975 (Cth) (Family Law Act) does not apply. •The reasoning in Selwood v Selwood [2014] FamCA 531 , which ruled that orders of the court requiring the husband to pay for half of the medical, travel and accommodation costs of the child were notultra vires,was directly applicable to the case before the Court. •Even if the Court were to find that the 12 July 2016 FCC Orders and Prospective Orders wereultra vires, they would have contractual force. •Although proceedings in the Family Court relating to a child’s welfare are “not strictly proceedings inter partes”, this is a reflection of the paramountcy of the child’s best interests and does not preclude consent orders from being enforceable as a contract. •The Proposed Orders constituted a parenting plan as they fulfilled the requirements of a parenting plan under s 63C(1) of the Family Law Act. The appellant submitted that on this basis the Proposed Orders, even if they were considered to be invalid as Orders of the Court, were still valid and enforceable as a parenting plan and binding contract. ... [33]  In relation to the first ground of appeal, the respondent submitted, in summary: ... •The proposed consent orders of 21 October 2016 were not made by the Federal Circuit Court. •A “parenting plan” could not operate as an enforceable contract between the parties to the extent that it dealt with child maintenance orders.": He v Secretary, Department of Education, Skills and Employment [2024] FCA 819. 

> ** Mutual undertakings as Parenting Plan - affirmed: "[15]  The parties did not convert their Mutual Undertakings into family court orders whether by 30 April 2019 or at all. The father deposed that the arrangements embodied in the Mutual Undertakings constituted a parenting plan; however, no further submissions were made on this issue or their legal effect. [16]  The father contested the mother’s evidence that the child had spent time in accordance with the Mutual Undertakings and asserted that there had been no substantial departures from the arrangements embodied in that signed agreement. In particular, the father complained: (1) the child had not been dropped off on no less than nine occasions in the period February — December 2020; (2) the child had repeatedly been denied access to his father by way of mobile phone; (3) the mother had returned the child’s mobile phone; (4) the mother restricted the child’s access to the father’s email address so that he could neither send nor receive emails to that address; (5) the mother further restricted the child in taking to his father’s residence anything other than the clothes he was wearing. ... [103]  At present there is no order for equal shared parental responsibility. Given the conflictual nature of the matter, it is inappropriate for this issue to be determined at this juncture. In making those observations, I do not overlook the parties Mutual Undertakings. While no submissions were made as to the particular status of that document, I accept that it is in writing, made between, and signed by, the parents of the child and is dated: Act, s 63C.": Belfort & Sedita [2021] FCCA 558. 

• Court not making Parenting Orders identical to Parenting Plan is not appealable error - not an error at all - orders should be altered as a slip: Vanzin and Vanzin [2014] FamCAFC 245.

[K] Independent Children's Lawyer

• Section 68L, 69LA, Family Law Act 1975 (Cth). 

• "22. I am also satisfied that because there are allegations of abuse of X, and that Y and Z being exposed to that alleged abuse would also be abuse. In those circumstances and because of my concern about the welfare of these children generally, I am satisfied that an independent children’s lawyer should be appointed to represent the children. I would also request that Legal Aid Victoria, if practical, appoint the same independent children’s lawyer that has been involved in this matter previously rather than start with a new one.": Terrill & Deighton (No 3) [2024] FedCFamC2F 1148.

• "[32]  In light of the serious conflict between the parties, I am satisfied an Independent Children’s Lawyer should be appointed.": Beach & Watson [2021] FedCFamC1F 64. 

• "[34]  I think an Independent Children’s Lawyer should be appointed, in particular because of the complex history of the matter between the parties and their own limitations in terms of capacity to properly investigate the matters. The matter will return on 7 February 2020 at 2.15pm for Interim Defended Hearing, before Judge Stewart in Dandenong.": Van & Chong [2019] FCCA 3825.

• "[6]  The applicant has a longstanding history of mental illness, for which he has received treatment for over the years. I understand that prior to the criminal charges he was facing in August of this year, he did not have a criminal history. What sadly appears to have happened is that things have spiralled out of control for the applicant. With the breakdown of his relationship with the mother, it appears that he took up with some other person and that relationship then broke down and there were the events which led to the criminal charges which were dealt with in the Magistrates Court in August. ... [20]  Given that I must act protectively, I will not accede to the proposal put by the applicant. The parties agree that it is appropriate to appoint an Independent Children’s Lawyer, and based on the above, I agree that one should be appointed.": Lensen v Lensen [2019] FCCA 3831.

• No apparent intractable conflict: "[7]  The facts alleged in the affidavits, at least in respect of the child B, may well come within the guidelines set out in the decision of the Full court of the Family court in Re K (1994) 17 Fam LR 537; FLC 92–461. Whilst there does not appear to be an intractable conflict between the parents as such, although the second respondent has not had yet had the opportunity to express his views so far as the child S is concerned, there does appear to be a difference of opinion of some magnitude between the mother and the first respondent. [8]  There have also been allegations of abuse and, from the affidavit material, it would seem that some of these allegations are ongoing. That being the case, I would think that the question of whether these children should be legally represented is a matter that should be looked at early in the proceedings rather than later on. I note the concession by Ms Clifford, who appears for the applicant. It seems to me that the application for separate representation is well grounded. One of the purposes of separate representation is for children to have an independent voice in the proceedings if they are of an age where they can express a view. I am satisfied that this comes within the Re K guidelines and I am also satisfied that having these children separately represented can help the court to arrive at a resolution of what is clearly a very difficult matter. I propose to make such an order. [9]  My view is that the question of whether or not a court expert should be appointed pursuant to r 15.09 is a matter that should be left until the second respondent has had the opportunity to put on his response and affidavit. It should also abide the actual appointment of a child representative, who can play some active part in these proceedings.": F v T [2003] FMCAFam 201. 

Re K (1994)

• "[24]  In relation specifically to the appointment of an Independent Children's Lawyer, the Full court in Re K (1994) FLC 92-461, at p 80,773 said that: In relation to appointments of separate representatives we consider that the broad general rule is that the court will make such appointments when it considers that the child's interests require independent representation. That repeats what s 68L(2) of the Act says. However, the Full court went on and set out criteria for where an Independent Children's Lawyer should normally be appointed. Those criteria are as follows: i)Cases involving allegations of child abuse, whether physical, sexual or psychological; ii)Cases where there is an apparently intractable conflict between the parents; iii)Cases where the child is apparently alienated from one or both parents; iv)where there are real issues of cultural or religious difference effecting the child; v)where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child's welfare; vi)where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare; vii)where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the child; viii)Any case in which, on the material filed by the parents, neither seems a suitable custodian. ix)Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent. x)Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child. xi)Cases where it is proposed to split siblings. xii)Custody cases where none of the parties are legally represented. xiii)Applications in the court's welfare jurisdiction relating in particular to the medical treatment of a child where the child's interests are not adequately represented by one of the parties."": Strahan & Strahan (No 4) [2007] FamCA 1555. 

• *** "[36] ... I think that an Independent Children’s Lawyer should be appointed. This is a troubling matter in which, quite plainly, the Re K (1994) FLC 92-461 guidelines are met ...": Arcadis & Arcadis [2021] FCCA 1935. 

> *** "In relation to appointments of separate representatives we consider that the broad general rule is that the court will make such appointments when it considers that the child's interests require independent representation. Subject to that broad general rule we suggest the following guidelines. Appointments should normally be made where:

(i) Cases involve allegations of child abuse, whether physical, sexual or psychological   In such cases we consider that the separate representative has an independent investigative role and that the child in any event should have an independent person looking after his or her interests. The separate representative can in such cases also fulfil the function of arranging for the collation of expert evidence and presenting that evidence to the court. (ii) Cases where there is an apparently intractable conflict between the parents   In this regard we lay stress upon the words ``intractable conflict'’. There is a dispute of course in all contested custody cases and there is usually a degree of conflict, but we have in mind that category of cases where there is a high level of long standing conflict between the parents. In such cases the child is very much a pawn in the dispute and is often used as such by either or both parents. In these circumstances we think it important that the child have the support and assistance of an independent person and that the court similarly have the assistance of such a person to present the child's point of view. (iii) Cases where the child is apparently alienated from one or both parents If the child is alienated from both parents, the need for such representation is obvious. Where the child is alienated from one of them, this may or may not be for good cause and may have been largely brought about or contributed to by the conduct of the parent from whom the child is not alienated. In most cases it seems to us to be highly desirable for the child to have access to a person independent of the conflict who will have his or her interests at heart and who will be capable of assisting the child and putting both the child's view and submissions as to the child's best interests to the court: see Law Council of Australia (1989) ``Law Council Submission on Role of Separate Representatives'’ Vol 4 No 4 Australian Family Lawyer, 15. In this regard we also see the separate representative as having an investigative role which may be of great assistance to the court. Further, the separate representative may well, in this and the previous category of cases, perform the role of an ``honest broker'’ as between the child and or the parents. (iv) Where there are real issues of cultural or religious difference affecting the child    Such cases are an increasing feature in our community and the child is often very much torn between the contesting parties. Again we think that the child is likely to benefit from the services of an independent separate representative, as may the court which may well be assisted by the independent investigative role of the separate representative and by evidence from an impartial source as to the nature of the cultural differences involved. (v) Where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child's welfare    Disputes of this kind typically raise claims that a homosexual parent and/or their new partner is unfit by virtue of that factor alone. It is clear, however, following cases such as In the Marriage of N (1977) 2 Fam LN 31 ; [1977] FLC 90-208 ; In the Marriage of Spry (1977) 3 Fam LR 11,330 ; [1977] FLC 90-271 ; In the Marriage of Cartwright (1977) 3 Fam LN 55 ; [1977] FLC 90-302 ; In the Marriage of L and L [1983] FLC 91-353 , and most recently In the Marriage of Doyle (1992) 15 Fam LR 274 ; [1992] FLC 92-286 that the nature of a party's sexual relationships is relevant to the court's proceedings only to the extent that it affects parenting abilities or the welfare of a child in a particular case: see Otlowski, M (1992) ``Doyle and Doyle; Family Court Awards Custody to Homosexual Father'’ Vol 11 No 2 University of Tasmania Law Review, 261. The particular kind of acrimony which arises in such cases, considered together with the court's obligation to make a decision from the viewpoint of a child's best interests, may warrant the appointment of a separate representative. This is so that the impact, if there is any, of a party or partner's sexual preference can be properly and dispassionately assessed for its relevance to the court's inquiry into the best interests of the child. (vi) Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare   Such conduct would include cases where there is a background of serious family violence. In using that term we make it clear that it extends beyond actual physical violence to circumstances where there is a history of serious threats or psychological and emotional abuse of one or other of the parents or some other person having significant contact with the child. It is obvious that if one party is in serious fear of the other the child may need separate representation to protect his or her position where the parent in fear may be overborne by the other. (vii) Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children      (viii) Any case in which, on the material filed by the parents, neither seems a suitable custodian   The need for the appointment of a separate representative in the above two categories of cases is self evident for all or most of the reasons stated in relation to previous categories. (ix) Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent        In these cases, we are particularly mindful of the important ``honest broker role'’ which can be played by a separate representative, especially if she or he is appointed early enough in the proceedings by a registrar during a directions hearing (pursuant to the delegation to order separate representation contained in O 36a r 2(ja)).          (x) Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child         In the case of the permanent removal of the child from the jurisdiction, as in this case, we accept the argument of counsel for the Commonwealth that the step has such drastic implications for the welfare of the child that a separate representative should normally be appointed. The result of an order may well be to permanently deprive the child of the opportunity of living in this country and of the culture in which he or she is being brought up, at least until he or she is adult, and may also create such a gulf between the child and his or her natural parent as to make it unlikely that the parent/child relationship will be resumed. Similar, albeit not as acute, consequences may follow if the removal is to a part of Australia which is physically remote from the child's usual place of residence and the circumstances of the parties make it unlikely that there will be worthwhile access. In either case we think it desirable that the child should have access to independent representation and that the court may well benefit from the independent appraisal which a separate representative can bring to such a case.        (xi) Cases where it is proposed to separate siblings        As the Full Court pointed out in In the Marriage of Bennett, supra, at Fam LR 413 ; FLC 78,266 , such a step is most serious from the point of view of the respective children. That was a case where the trial judge had made an order which had the effect of separating siblings and a separate representative was in fact appointed by the trial judge but only at the conclusion of the hearing for the purpose of explaining the decision to the children. Although the decision on the appeal did not turn on the issue of the appointment of a separate representative, the Full Court was critical of the appointment having been made at that late stage. In our view, in such cases, a separate representative should be appointed at an early stage of the proceedings. (xii) Custody cases where none of the parties are legally represented    This can occur through the choice of the parties, or the non-availability of legal aid. In such circumstances we consider it imperative that the child's interests be protected as soon as is practicable after this situation becomes apparent.  (xiii) Applications in the court's welfare jurisdiction relating in particular to the medical treatment of children where the child's interests are not adequately represented by one of the parties     In Re Jane (1988) 12 Fam LR 662 ; [1989] FLC 92-007 and Re Marion (1990) 14 Fam LR 427 ; [1991] FLC 92-193 [see also Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 ; 15 Fam LR 392 ; [1992] FLC 92-293 ] the Public Advocate of Victoria and the Secretary of the Northern Territory Department of Health and Community Services respectively adopted the dual role of protecting the public interest and the interests of the child. In those cases it was accordingly thought to be unnecessary to appoint a separate representative. In both of these cases the child was unable, due to intellectual disability, to express a point of view, and the child's interests were actively pursued by the public officer concerned. However, in any case where the child is capable of expressing a view, or where there is no party in a position akin to the public officials involved, we think it desirable that a separate representative be appointed. In the recent case of Re Michael (3 December 1993, Family Court at Melbourne, not reported) Treyvaud J took the view, with which we agree, that a separate representative should be appointed despite the involvement of the Public Advocate in circumstances where the child in question was capable of expressing a view and the Public Advocate was the applicant for orders dispensing with the need for parental consent to perform a surgical operation on the child in question and substituting himself as the person who could give a valid consent. The above categories of cases are not intended to be exhaustive and there will be other situations where the appointment of a separate representative is necessary. For example, where one of the parties is not a natural parent such a course may in some cases be considered desirable or necessary. As we have said, these guidelines are not intended to inhibit the discretion of judges, judicial registrars or registrars but to give them some assistance in the exercise of it.": Re K (1994) 17 Fam LR 537, 555-558; (1994) FLC 92-461. 

Specific Factual Issues

• Parenting capabilities, drug use, lives issues to be tested and determined: 

> "[58] I am also concerned at the serious allegations of drug use and family violence concerning Mr Oakley. These concerns have been of such moment that they have involved the police in the past, but, as I have already said, these issues have not been teased out in any great detail at this stage. [59] In this context I am concerned at the lack of impartial evidence about the parenting capabilities of both Mr Oakley and Ms Taber.  I am also concerned at the lack of certainty and the high level of ambivalence about what precisely occurred on 8 February 2009.  However, I think it basically unlikely that the mother would have agreed to an open-ended arrangement for [X] to go and live with her paternal grandparents. ... [103] I am going to make an order that the children be independently represented.  I think this case meets a number of the criteria set out by the Full Court in the case of Re K [(1994) FLC 92-461. ... [107] I am also going to adjourn the matter for about six weeks, so that the independent children's lawyer can be engaged at an early stage.  I think that will also be the time when consideration should be given to the engagement of some sort of formal assessment process in respect of these two children, which needs, I think, to be done sooner rather than later.  I also suspect that the independent children's lawyer may wish to subpoena documents, but that of course is a matter for the independent children's lawyer when appointed.": Haight & Taber [2009] FMCAFam 576.

> "[28] In this case, however, there is evidence of the Father’s criminal convictions for offences of violence. There has also been an apprehended violence order issued. [29] Family violence is clearly a relevant issue and has been discussed in a number of judgments, including In the Marriage of Patsalou[4], to which Mr Crawford referred, and In the Marriage of JG and BG[5]. The Court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. [30] Habitual drug use is also a matter of concern. It is the Mother’s view that the Father is “addicted to marijuana” and would smoke marijuana 4 or 5 times a day. The Mother deposes: The effect of use of this drug on [Mr Lamb] is that he was not responsive or would not react to any communication or activities that were occurring around him.[6] ... [31] Whilst it is important that the children have a meaningful relationship with their father, the concern about their safety from harm is such that supervision of the Father’s time with them is still indicated. The evidence is, of course, untested, but the Court needs to adopt a conservative approach until the evidence can be tested. [32] Clearly, this is a case where the Court should consider that the children’s interests should be independently represented by a lawyer under the provisions of s.68L of the Act. The circumstances come within the guidelines set out in Re K[7].": Lamb & Vernon [2010] FMCAFam 1372.

> "[71] The Court must consider the benefit to [X] of having a meaningful relationship with both of his parents. Provided that they abstain from the use of illicit substances, which has on their own evidence been a battle for both of them, there is likely to be a benefit in having a meaningful relationship with each of them. However, that relationship must not be marked by abuse or abrupt changes in the child’s arrangements, which would clearly be destabilising for him. [72] The need to protect the child from physical or psychological harm is clearly related to the parents’ substance abuse issues. Until these matters are under control, the child will be at risk. [73] To my mind, there is merit in the Family Consultant’s recommendation and the father’s application for the interests of this child to be independently represented by a lawyer under the provisions of s.68L of the Act. There is a high level of longstanding conflict between the parents, exacerbated by their history of illicit drug use. The mother makes claims of family violence, which the father denies. There is no issue that the mother has been diagnosed with mental illness, currently described by Dr F as “adjustment disorder with anxious mood”,[16] but it appears that the mother is undergoing appropriate treatment in this regard. ... [74] However, the issues in this case fall clearly within the guidelines for separate representation of the child set out by the Full Court of the Family Court in Re K[17]. An order will be made that the child’s interests will be independently represented, and Legal aid NSW will be asked to assist in providing a suitably qualified Independent Children’s Lawyer for [X].": Mallery & Cavendish [2012] FMCAFam 1434.

> "[44] I am aware of the allegations by the Mother of the Father’s drug use, which, quite clearly from her affidavit, has occurred in the past. There is no up-to-date evidence there, but it would certainly be the Court’s view that it should act with caution. The Court is of the view that use of illicit drugs and time with children do not go well together. I am aware of the fact that there is a considerable conflict between the parties. It would not be to the benefit of this child for that conflict to be in evidence in her presence or hearing. Indeed, it would be harmful and unsettling to her, and I propose to make injunctive orders in that respect.": Garra-Marsh & Garra-Marsh [2012] FMCAFam 277.

No ICL appointed - where drug issues are no longer live - no live issues of FV

• "[39] Next, her Honour found the father admitted prior illicit drug use and accepted his evidence this was no longer an issue [80]. Reference was made to his having been convicted of assaulting a partner of the mother’s, but the paucity of evidence about the detail of the assault and this issue not having been explored in cross-examination, meant that the assault and conviction would be afforded no weight [81]. ... [89] It is important to understand there was no Independent Children’s Lawyer (“ICL”) appointed to represent the child’s interests and ensure his views were fully before the court (ss 68(L), 68LA(5)(b), P and P (1995) FLC 92-615). In our view, notwithstanding that the issues in the case did not come within the guidelines for the appointment of an ICL set out in Re K (1994) FLC 92-461, as the Full Court in Re K explained, the guidelines are not exhaustive. Clearly, there were a number of factors which cumulatively indicated the appointment of an ICL was appropriate. Namely the child’s age, a well settled living arrangement may be disrupted, he was separated from siblings and the concerning matters referred to in the s 11F memorandum. In deciding whether or not the appointment of an ICL is warranted, the court will take into account the availability of a family report. As was explained in Re K, the need for an ICL will normally be greater if the court does not have the advantage of a family or expert’s report (and vice versa).": Maldera & Orbel [2014] FamCAFC 135.

• ICL appointed in respect of other factors: "[57] The mother alleges the risks that are posed by the father to the children in his care are: (a)          His mental health vulnerabilities; and (b)          His consumption of alcohol to excess and illicit drugs use. [58] The father denies these allegations in the sense that they are categorised as risks. The Expert considered both of these and found the objective evidence lacking. I too find the objective evidence lacking. I do not consider that the children are at risk of harm in the care of the father. ...": Mertz & Mertz (No 2) [2024] FedCFamC2F 53.

Procedural

• Discharge an ICL: "12.  An incident of the power to appoint an ICL is the power to discharge an ICL (see: Horner & Horner [2018] FamCA 487; Lim & Zong [2021] FamCAFC 165 at [17]), thus there is power to discharge the ICL. 13. In Lloyd & Lloyd and Child Representative (2000) FLC 93-045, Holden CJ listed circumstances likely to form a basis for discharging an ICL, saying (at [11]): (i)           if there is evidence that the separate representative had, in any way, acted contrary to the children's interests; (ii)          if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;  (iii)         if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or (iv)          if to continue to act would involve a breach of a fiduciary duty or a conflict of interest. 14. On the material available, it could not be said that the ICL was acting contrary to the children’s best interests by pressing for a hearing. The fact that the ICL is not supportive of the father’s application for a change of residence is unsurprising given the age of the eldest child and the strong views of the children. 15. Whilst it is ultimately for the Court to determine the children’s best interests, the proposal by the ICL is reasonably open on the material currently before the Court.": Holinski & Holinski [2025] FedCFamC1F 143.   

• Conclusion of litigation, no power to appoint ICL to monitor implementation of Orders: "However, the primary judge then made orders which inconsistently served to perpetuate the litigation. His Honour engaged an ICL for a further 12 months and granted leave to the ICL to relist the proceedings at will. These two orders were made: 32.          Pursuant to s 68L(2) of the Family Law Act 1975, [the children] be independently represented for a period of 12 months AND IT IS REQUESTED that the Legal Aid Commission of NSW arrange such independent representation and: (a)          Forthwith upon appointment by the Legal Aid Commission of NSW, the [ICL] file a notice of address for service; (b)          Within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the [ICL] copies of these orders and these reasons for judgment dated 26 July 2024; and (c)          The [ICL] meet with the children to explain these orders; and (d)          For a period of 12 months, the [ICL] monitor and assist with the implementation of these orders in a child focused way. 33.          Leave is granted to the [ICL] to apply to relist the proceedings on seven days’ notice regarding the interpretation, implementation and/or enforcement of the parenting orders, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall: (a)          Forthwith notify all other parties of the intention to make the request and the reason for same; (b)          Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and (c)          Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders. (Emphasis added) The orders were accompanied by this notation: A.           An [ICL] has been appointed for the following reasons: a.        To meet with the children and explain these orders to them; b.           To assist with the implementation of these orders in a child focused way; and c.           To monitor the implementation of these orders. (Emphasis added) Orders 32(d) and 33 are ultra vires and Notations A(b) and A(c) are meaningless. The only explanation given for them within the reasons for judgment was confined to this: 206.        As the [ICL] was discharged by consent on 12 April 2024, and given the level of continued conflict between the parties, an order will be made appointing a new [ICL] for a period of 12 months, to explain these orders to the children, and to monitor and assist with the implementation of these orders in a child-focused way. The cause of action between the parties under Pt VII of the Act was finally determined by Orders 1–31 so, aside from having the ICL explain the orders to the children, there was no legal premise for Orders 32(d) and 33 engaging the ICL for another 12 months. The ICL was originally appointed to represent the children’s interests within the proceedings. His Honour was not empowered by s 68L(2) of the Act to appoint an ICL to acquit some longitudinal assignment beyond the confines of the concluded litigation. ICLs cannot be used like family consultants to help implement parenting orders by resort to s 65L of the Act. Even if there was power to validly appoint an ICL for the intended purpose, there are additional impediments. First, Order 33 is incompetent because there is no longer any subsisting cause of action for the ICL to relist if dissatisfied with the way in which the parenting orders are working. If a dispute later arises between the parties about the “interpretation, implementation and/or enforcement” of the orders then, absent any scope for deployment of the slip rule under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), a fresh cause of action would need to be instituted by filing either a parenting application under Pt VII, Div 6 of the Act or a contravention application under Pt VII, Div 13A of the Act. Secondly, the terms of Order 32(d) are entirely aspirational and hence unenforceable. The purpose of the order was to compel the ICL to monitor the parties’ performance of the orders for 12 months and to assist them to implement the orders in a “child focused way”, whatever that may mean because the interpretation of the task is entirely subjective. In any event, how would the ICL monitor the implementation of the orders? Would the ICL personally attend every changeover for the next year to supervise, or make regular appointments to observe the children with the parties even if the parties object, or periodically interview the parties to monitor their satisfaction with the orders? If the ICL concluded one party was not acting in a “child focused way”, should the ICL then chide the party, offer unsolicited advice about how the party could do better, or do something else instead? If the ICL does nothing in the face of parental conduct deemed not to be “child focused”, is the ICL then liable to be prosecuted for contempt of the Court order? If so, why should the ICL be burdened with the responsibility for solving the foreseen continuing parental conflict? If not, what point is then served by the order? Finally, how could the ICL possibly be funded by the State legal aid agency to acquit such tasks? By making Orders 32(d) and 33, his Honour did not confine his role to simply deciding the cause on its merits by reference to the evidence the parties elected to adduce. By appointing the ICL as some form of intermediary, his Honour tried to formulate orders to remedy the future conflict foreseen between the parties, but that was doing more than the judicial function required or permitted (Lainhart & Ellinson (2023) FLC 94-166 at [29]–[31]). ... Orders 32(d) and 33, which appoint the ICL to monitor the implementation of the parenting orders over the next 12 months should be set aside forthwith.": Pickford & Pickford [2024] FedCFamC1A 249, [140]-[147], [149].

Concession - Error of Law

• "[13] During the course of the appeal, the focus of the appellant’s case departed from the enumerated grounds and the Summary of Argument to address the primary judge’s engagement with the provisions of s 60CC of the Act as currently enacted, contending that the primary judge erred in law by so doing. [14] The ICL conceded in submissions, notwithstanding the stance in their Summary of Argument, that there had been an error of law and that the appeal must be allowed.": Navickas & Fried (No 2) [2025] FedCFamC1A 80.

ICL Appointment - Challenge Parties' Evidence

• Disclosure about criminal proceedings, privilege against self-incrimination: "[81]This issue has recently been revisited by the Full Court in Langley & Tarelli and Anor (No. 2) [2020] FamCAFC 126 (hereafter referred to as “Langley”).  The Full Court’s discussion about concurrent parenting and criminal proceedings commences from paragraph 29 of the Judgment.  The issue for the Court was whether a trial Judge had prioritised the Father’s “right to silence (privilege against self-incrimination)” over the welfare of the Child in question, and in so doing had miscarried her discretion. [82]  At paragraphs 31 and 32 of the Judgment, the Full Court states: [31] As the Full Court said in Re K at 80,765, where there is a genuine contest between the parties in relation to the welfare of the child, it is generally inappropriate for the Court to make no orders and adjourn the proceedings. And, further: … The exercise by a party of his or her right of silence or privilege against self-incrimination in civil proceedings is a matter of decision by that party. Its exercise should not ordinarily determine whether the proceedings in this Court should continue. It would not usually be to the welfare of the child for disputed proceedings about guardianship, custody or access to be delayed for a significant period of time because that person chooses to exercise that right or privilege. (Emphasis added) [32] I agree, and in my opinion, the statement of principle emerging from that paragraph could not be clearer.  Any other approach would have the effect that the welfare of children involved in family law proceedings would be held hostage to criminal justice processes and may have the effect of discouraging victims of crime, including family violence, from taking their complaints to police. [83] The reference to an earlier Full Court decision in Re K refers to Re K (1994) FLC 92-461; [1994] FamCA 21. ... [85] Thus, the Court observes, the Father could have, if he had really wanted to, provided a much more fulsome disclosure of his perspective of what are clearly critical events in this case, by, consistent with the Full Court’s decision in Field & Kingston (2018) FLC 93-850; [2018] FamCAFC 145, seeking a direction or order that he file an Affidavit to which the provisions of section 128 of the Evidence Act would apply.": Dalfrey & Saltman [2020] FCCA 1733.

[K.A] Legal Aid - ICL's Costs 

• Contribution to ICL's costs:

> 'What is an Independent Childen's Lawyer' (Michael Lynch, 7 February 2022) <https://www.michaellynchfamilylawyers.com.au/independent-childrens-lawyer-defined/>. 

> "Parties are entitled to seek a reconsideration of the contribution amount by completing and returning a financial statement to VLA to assess whether the contribution should remain, be reduced, or be waived. The assessment is based on VLA’s means test. If parties neglect or fail to meet the ICL’s costs, ICLs are required to consider making a cost application against parties if they think it is appropriate in the circumstances. Such circumstances include where a party’s assets and income are so significant that it would be an inappropriate burden on the public purse to fund an ICL, or where a party’s conduct has resulted in significant additional funding being expended on the ICL file. ICLs must also consider what impact a cost order might have on the children.": Monica Blizzard, 'The role of an Independent Children’s Lawyer' (KHQ, 25 November 2019) <https://khq.com.au/blog/independent-childrens-lawyer/>. 

• Income and Assets Thresholds - Means Test: 

> LAQ Grants Policy Manual: <https://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Grants-Policy-Manual>. 

> Weekly Income, see 'The Means Test' (Legal Aid Queensland, Webpage) <https://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Grants-Policy-Manual/The-Means-Test>; *** See also, 'Table 1' (LAQ, Webpage) <https://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Grants-Policy-Manual/Table-1-initial-contributions-table>, archived at <https://archive.is/J6cVX> -- contribution free threshold and maximum threshold (deferred contribution). 

> Assets Test. 

• Costs of ICL: 

> s 114UC, Family Law Act 1975 (Cth). 

>  Rule 3.11, Federal Circuit and Family Court (Family Law) Rules 2021 (Cth). 

> NSW: $3,630 per party up to but not including defended hearing: 'Independent Children's Lawyer resources and tools' (Legal Aid NSW, Webpage) <https://www.legalaid.nsw.gov.au/for-lawyers/resources-and-tools/family-law-resources-and-tools/family-law-resources-independent-childrens-lawyer>, archived at <https://archive.md/4VFGJ>. 

> QLD: 

-> 'Family Law Fees - ICL Files' (LAQ, 1 August 2024) <https://www.legalaid.qld.gov.au/files/assets/public/v/3/work-instructions/grants/family-law-fee-overview-icl.pdf>, archived at <https://web.archive.org/web/20250724105033/https://www.legalaid.qld.gov.au/files/assets/public/v/3/work-instructions/grants/family-law-fee-overview-icl.pdf>. 

-> 'Scale of fees – family law: Independent Children’s Lawyer matters' (LAQ, June 2025) pp 5-7 <https://www.legalaid.qld.gov.au/files/assets/public/v/9/about-us/scale-of-fees/scale-of-fees-family-law.pdf>, archived at <https://web.archive.org/web/20250724105216/https://www.legalaid.qld.gov.au/files/assets/public/v/9/about-us/scale-of-fees/scale-of-fees-family-law.pdf>.  

[K.B] Resources for Parents - ICL's Role and Kids

• Best for Kids Interactive, Under 10: <https://www.bestforkids.org.au/img/interactive/under_10/>. 

• Best for Kids Interactive, Over 10: <https://www.bestforkids.org.au/img/interactive/over_10/>. 

• 'When Families Separate' (Best for Kids, Webpage) <https://www.bestforkids.org.au/for-kids/when-families-separate.html>, archived at <https://archive.is/gAwn3>. 

[L] Family Report Interview - Court Children's Service

What is

• Section 62G, Family Law Act 1975 (Cth) -- reports by family consultants. 

• 'Reports prepared by Court Children’s Service' (FCFCOA) <https://www.fcfcoa.gov.au/fl/pubs/court-childrens-service>: "... The Family Report is a comprehensive report which offers a detailed analysis and evaluation of 60CC factors, issues in dispute, and proposals before the Court. It involves an assessment and analysis of risk factors, family relationships, children’s functioning and wellbeing within the family context, and children’s needs, views and wishes. It provides recommendations, where possible, to support Final Hearings. The Family Report process generally includes interviews with parties (and other adults as relevant) and with children, as well as parent/ child observations where appropriate. A review of relevant file and subpoena material is also undertaken. The Family Report cannot provide a clinical assessment or diagnosis of any mental health or related issues. It is best suited to matters where a comprehensive assessment of the children’s and family’s circumstances, including considerations regarding risk, relationship and developmental factors is necessary to support final decision-making. A CCS Family Report is undertaken by a Court Child Expert or a Panel Family Consultant. ...".

Scope, Interviews, etc

• 'Family Reports FAQs' (FCFCOA) <https://www.fcfcoa.gov.au/fl/pubs/family-reports>: "... Generally, the family consultant will gather information about: the issues in dispute past and present parenting arrangements the parenting capacity of each party your children’s relationships with significant people your children’s wishes and views, and any risks to the children. The family consultant may request your permission to contact teachers, doctors or other relevant professionals for more information about your children. The Court may also direct that the family consultant have access to material which has been subpoenaed. ...".

• Fiona Caulley, 'What Is A Family Report? What To Know and How to Prepare' (Phillips Family Law, 8 July 2024) <https://www.phillipsfamilylaw.com.au/what-is-a-family-report/>, archived at <https://archive.is/s6M71>. 

• Kana Homatopoulos, 'What is a Family Report for Federal Circuit and Family Court Proceedings?' (Carew Counsel, 27 January 2025) <https://www.carewcounsel.com.au/blogs/what-is-a-family-report-and-what-role-does-it-play>, archived at <https://archive.md/LQVRp>. 

• 'Family Report – What to Expect' (Forge Legal, Webpage) <https://www.forgelegal.com.au/family-report-what-to-expect/>, archived at <https://archive.md/t5Vcw>.   

• 'Preparing for your family report interviews' (Landers & Rogers, September 2023) <https://www.landers.com.au/legal-insights-news/preparing-for-your-family-report-interviews>, archived at <https://archive.md/9cVvy>. 

• 'How to Prepare for the Family Report Interviews?' (Robinson + McGuinness Family Law, 27 November 2024) <https://www.rmfamilylaw.com.au/blog-edit/2024/11/27/how-to-prepare-for-the-family-report-interviews>, archived at <https://archive.md/1zNTf>. 

• *** 'How to Prepare for a Family Report Interview' (RedHill Legal, 2021) <https://redhilllegal.com.au/wp-content/uploads/2021/06/Factsheet-HOW-TO-PREPARE-FOR-A-FAMILY-REPORT-INTERVIEW.pdf>, archived at <https://web.archive.org/web/20250313170245/https://redhilllegal.com.au/wp-content/uploads/2021/06/Factsheet-HOW-TO-PREPARE-FOR-A-FAMILY-REPORT-INTERVIEW.pdf> -- see within, recommended reading. 

• ** From a family report writer, process, preparation, etc: 'The Process' (Sean Moriarty, Webpage) <https://seanmoriarty.com.au/the-process/>, archived at <https://archive.md/vx1B6>.  

> ** Sean Moriarty, 'The Family Report Process (including Obligations and Responsibilities)' (Paper) <https://seanmoriarty.com.au/wp-content/uploads/2021/07/FamilyRepExplanatoryInformation.pdf>, archived at <https://web.archive.org/web/20230327111620/https://seanmoriarty.com.au/wp-content/uploads/2021/07/FamilyRepExplanatoryInformation.pdf>. 

Preparation of Report - Scope

• See Orders from the Court. 

• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 8.11: "... Note:  A family consultant's report may be a child impact report, a specific issues report or a family report."

• May include, report or opinion on, eg:

> The matters set out in ss 60CC, 61D(3), 61DAA of the Family Law Act 1975.

> Any views expressed by the child.

> The impact upon the child and upon his relationship with the father if the Court made orders as sought by the mother.

> The impact upon the child and upon his with the mother if the Court made orders as sought by the father.

> Any current mental health conditions of the parties.

> A diagnosis and prognosis to include proposed treatment to address the diagnosis and prospects of recovery or reoccurrence.

> An assessment of parental capacity, including the ability to care for and protect the child.

> The ability of each party to facilitate a relationship with the other parent.

> Any other factors relevant to the best interests of the child.

Evidence, Weight to be Drawn from Family Report

• See [W] in main page of Wong on Family Law. 

[M] Misc

• Coulson & Wayfield [2024] FedCFamC2F 979, [58]: "As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth).". 

• "104. The ICL sought an injunction restraining the parents from exposing the children to any form of family violence as defined in s 4AB of the Act.[74] The order is not made as it would be a recipe for further litigation and angst. Applied literally, the mother would be in breach of the injunction if she failed to prevent the children from seeing her being assaulted by another violent partner, which surely could not be an intended consequence of the injunction. Without intending to be facile, the parents should not be expected to carry an annotated copy of the Act with them constantly checking whether the behaviour to which the children are exposed is capable of falling within the extremely broad definition of family violence. The parents hardly need to be told the children’s exposure to violent conduct is liable to be harmful. Conversely, if they do need to be told, an injunction of this sort will probably neither be educative nor effective.": Hasip & Ruwan [2024] FedCFamC1F 638.

• Extent of restraints up to what is necessary: "78. The parents did not agree entirely on the following additional issues, which I resolve as follows: ... (3)  The restraints on what could be said to or asked of X as sought by Mr Jones and the ICL go beyond what is necessary for X’s protection. It is important that X can have normal conversations with each parent about what she has done while spending time with the other, and it is likely the parents will need to have conversations with X about some the issues raised in these proceedings at least in the process of family therapy. I have made only those restraints which both parties sought and am satisfied on the evidence that they are appropriate.": Ismailov & Jones [2025] FedCFamC1F 153. 

• Abortions - character evidence - abortion records: Madison Griffiths, 'How abortion is weaponised in family court' (The Saturday Paper, 14 June 2025) <https://www.thesaturdaypaper.com.au/news/health/2025/06/14/how-abortion-weaponised-family-court>, archived at <https://archive.is/Fr2tx>. 

• "[1]  Family law proceedings, involving the care of young and vulnerable children, very often have the potential to precipitate extreme emotions in the parties to such proceedings. For obvious reasons, such strong emotions do not always assist individuals to make calm and objective decisions regarding the approach to be adopted in their litigation and the appropriateness of the applications which are ultimately made. [2]  The parties to proceedings under the Family Law Act 1975 (Cth) (‘the Act’) are not usually experienced litigators and do not have deep pockets. In such circumstances and in deference to the inherent emotional quotient in the vast majority of family law cases, the general rule, in family law proceedings, is that the parties bear their own legal costs in them, pursuant to the provisions of section 117 of the Act. [3]  However, this rule is subject to variation by the Court, if the overall circumstances of the case warrant that one party pay or contribute towards the costs of the other party concerned, and the Court considers that it is just to make such an order.1 ... [41]  As a corollary to these duties, the court is provided with certain powers pursuant to the provisions of section 69ZR. At any time in child related proceedings, it may: a)make a finding of fact; b)determine a matter arising out of proceedings; c)make an order in relation to an issue arising out of proceedings.12 [42]  These various principles and duties have been collectively described as procedures designed to make proceedings relating to children ‘less adversarial’. In enunciating them, the legislature recognised that unduly protracted litigation is usually not helpful to any child, who is the subject of such litigation. It also certainly does not encourage those who are involved in caring for the child to have a cooperative or collaborative approach towards the child’s parenting. [43]  Litigation regarding the parenting of children is usually expensive, both financially and emotionally. At the conclusion of proceedings, the parties concerned are likely to remain in some form of contact with each other throughout the remainder of their lives, as they will be connected by the shared relationship to their children and quite possibly, with the effluxion of time to their grandchildren. [44]  This renders family law litigation distinct to other forms of litigation, such as an action about a contract or a tort. In the former case, the parties must patch up their relationship, if they can, at the end of the proceedings and attempt to co -parent their children in a constructive and amicable manner. In the latter case, the parties may choose to never see each another again, and so the quality of any future relationship between them is irrelevant. [45]  The principles outlined in Division 12A of the Act recognise that it is in a child’s best interests for those involved in their care to avoid, as far as possible, the deleterious consequences of litigation. Court proceedings are rarely a constructive process, and is often focussed on finding fault and emphasising the failings of the other party, and does little to foster a constructive parenting relationships. [46]  The principles as outlined in section 69ZN of the Act appear to have the following objects, and provide that Courts are directed to: •discourage unnecessary litigation; •closely manage the litigation which cannot be avoided, for example: cases that involve an unreasonable risk of harm to the child or matters involving family violence; •focus the minds of the parties concerned on the potential harm, which can occur to children through litigation as a result of parental conflict; and •invite the parties to consider the fiscal implications, both private and public, in the conduct of such litigation. [47]  This list is not intended to be an exhaustive one. At the same time, and as mentioned above, the Court is cautioned against overlooking the need to conduct proceedings in a way that will ensure that children are protected from harm arising from neglect, abuse or family violence.13 [48]  The principles seem to be directed to allow the Court to fetter, to some degree, the freedom provided through a traditional adversarial system, which enables parties to investigate every issue that may possibly be of some interest to them, particularly if this untrammelled freedom has implications for the best interests of any child concerned. [49]  The rationale is that proceedings relating to children, concern the interests of a person who is not strictly a party to them — this being the child or children concerned. Consequently, these proceedings can be likened to an inquiry, and as such are not entirely adversarial.": Naylor & Naylor (No 2) [2021] FCCA 1572.

Jing Zhi Wong

[N] Court Process

• 'Family Law Practice Direction: Parenting proceedings' (FCFCOA, Webpage) <https://www.fcfcoa.gov.au/fl/pd/fam-parenting>. 

• * 'Central Practice Direction: Family Law Case Management' (FCFCOA, Webpage) <https://www.fcfcoa.gov.au/fl/pd/fam-cpd>, archived at <http://archive.is/RWW1b> -- ver 10 June 2025 -- see standard trial directions within. 

• Adjournment, principles: 

> "[42]  These are parenting proceedings. The court must have regard to the principles in child related proceedings, and the best interests of the children. Section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides: (1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), is to facilitate the just resolution of disputes: (a)according to law; and (b)as quickly, inexpensively and efficiently as possible. [43]   Section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) provides, relevantly: Principles for conducting child-related proceeding Application of the principles (1)The court must give effect to the principles in this section: (a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and (b)in making other decisions about the conduct of child-related proceedings. Failure to do so does not invalidate the proceedings or any order made in them. (2)Regard is to be had to the principles in interpreting this Division. Principle 1 (3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. Principle 2 (4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings. Principle 3 (5)The third principle is that the proceedings are to be conducted in a way that will safeguard: (a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and (b)the parties to the proceedings against family violence. Principle 4 (6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties. Principle 5 (7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible. [44]  In Hearne & Hearne [2015] FamCAFC 178, in considering an application for an adjournment, the Full Court held at [56]: … on an application to adjourn proceedings a court is required to take into account not only the individual circumstances of the parties, but the effect on the court as a publicly funded resource, the effect on other litigants, the court’s case management principles, and “the need to maintain public confidence in the judicial system” (AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, per French CJ, at [5]). [45]  In Mertens & Mertens [2016] FamCAFC 136, Kent J summarised the factors to be taken into account in an application for an adjournment. These include the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by an order for costs, and the impact upon other litigants before the court were an adjournment granted. [46]  The application is be considered in the context of the orders sought by the father. Those orders are that the children spend time with and communicate with the father in accordance with their wishes, that he be entitled to send letters, gifts and cards, that he be entitled to attend school events, that there be an order for equal shared parental responsibility and decision-making, and that the mother keep the father informed about medical issues. There is no order sought for specific time or communication between the father and children. [47]  It is common ground that the earliest release date of the father is late 2028, and an ADVO prohibits the father from approaching the mother or children until 2034. [48]  The issues before the court for determination are narrow. The proposed witnesses last had an opportunity to make observations of the children and father more than four years ago. The children were at that time aged six and four; they are now ten and eight years. The father’s orders are for time in accordance with the children’s current views of their father, and any desire they have now to see him or communicate with him. There is a report available where the children have been able to express a view, and the Single Expert has been able to consider the broader context of the views expressed by the children, and their maturity in expressing those views. An ICL has been appointed, who is required as part of their role to ensure any views expressed by the children are fully put before the court. [49]  The matter has been before the court for more than four years. An adjournment would result in an undue delay to the proceedings. The mother and the children are entitled to finality. The father did not comply with the orders of Justice Brasch made on 7 December 2023. He did not file a Minute of Orders, nor did he advise on the outcome of his appeal by 28 March 2024, as directed. He was legally represented at the time of the orders and the filing date. There was no explanation proffered of why that did not occur. [50]  There is no proof of evidence of any of the proposed witnesses. No submissions were made as to how their evidence may be relevant to a determination of the issues currently before the court. [51]  The solicitors for the father took steps promptly after the s 102NA order was made. I accept that the father being in custody hampers the ability of those appearing for him to prepare the matter. I stood the matter down in excess of two hours to allow counsel for the father to confer with his client and take instructions. The father filed his affidavit on 5 November 2024, outside the directions for filing. No objection was taken to that affidavit. [52]  The father will not be released from custody until, at best, late 2028. During any adjourned period, the father will remain in custody with the attendant difficulties of obtaining instructions. I am not confident the situation would be different at an adjourned date. [53]  An adjournment needs to be considered against the ability of the court as a publicly funded resource to provide timely resolution to other litigants awaiting trial dates, where time has been allocated to the hearing of this matter. This matter has already taken up considerable court resources. Allocated hearing dates are a resource that are squandered if the matter is adjourned on the first day of the hearing. The hearing would be delayed by months if not heard within the days already allocated, given matters otherwise listed for hearing. [54]  Taking all those matters into account, the application for an adjournment was refused.": McKowan & McKowan [2025] FedCFamC1F 105. 

[O] Subpoenas

• Health records: 

> Treating doctors, hospital service, clinics. 

> Services Australia, Medicare information, prescriptions and medications: Medicare Benefits Scheme (MBS) summaries; Pharmaceutical Benefits Scheme (PBS) summaries; medical service provider reports, employment records for current or former employees; Notices of Past Benefits (NoPB): 'Request information using subpoenas and other court orders' (Services Australia) <https://www.servicesaustralia.gov.au/request-information-using-subpoenas-and-other-court-orders?context=22>. 

-> Darley & Darley (No 2) [2020] FamCAFC 193. 

-> "It is well settled by the authority that a subpoena must be issued for a genuine forensic purpose and must identify what appear to be relevant documents. In Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 Wigney J observed the following at [22] ...": Darley & Darley [2020] FamCAFC 4. 

-> "[44]  Documents produced under subpoena by the Pharmaceutical Benefits Scheme set out the dates on which the mother was prescribed medication and the dates on which she filled the prescriptions. Since February 2020 she has been prescribed a wide range of medication including Gabapentin and desvenlafaxine from a number of prescribing practitioners.": Rivers & Rivers [2020] FCCA 2052. 

-> "[76]  The case was then adjourned for an interim hearing scheduled for 19 November 2019. Subpoena were issued to Mr M and to the Department for Human Services, which is the Commonwealth instrumentality administering the pharmaceutical benefits scheme. Ms Yeatman sought the production of all prescriptions issued and filled on behalf of Mr Parfrey.": Parfrey & Yeatman [2019] FCCA 3713.

• Children's records: schools, education providers, health records (as above). 

• Compensation payments: Services Australia, Notices of Past Benefits, etc. 

• QPS: Commission of Police -- 'Subpoenas and Court Documents' <https://www.police.qld.gov.au/rights-information/subpoenas-and-court-documents>. 

> 'Subpoena for the production of documents to the Queensland Police Service' (DA Family Lawyers, Webpage) <https://dafamilylawyers.com.au/subpoena-production-documents-police/>: "If you are considering issuing a subpoena for the production of documents directed to the Queensland Police Service, you may find the following information helpful to include in the schedule to the subpoena: 1.     Any audio tapes and/or videotapes; 2.    Police referrals to any hospitals (including suspected child abuse or neglect teams – SCAN), specialists including but not limited to social workers, psychologists, psychiatrists, therapists, counsellors, educational specialists and the reports, records and assessments obtained and/or provided; 3.    Criminal histories, CRISP System crime reports, QP9 court briefs; 4.    Diary notes, police notes and signed copies of official police notebooks; 5.     All statements and documents including but not limited to signed statements by the accused, the complainant, the informant, professional or other witnesses, police witnesses; 6.    Drawings; 7.    Photographs; 8.    Bench charge sheets, running sheets, activity logs, current sheets; 9.    Domestic Violence Applications, Protection Orders; 10.   Any information management systems, IMS sheets; and 11.   All traffic history including but not limited to all driving under the influence and traffic charges."

• Ex-partners / current partners (but consider credibility). 

Note

• Issuance of subpoenas may enliven the inference that parties have little prospect of being able to reach any consensual and managed outcome - decision making: " ... [87]  As is apparent from this summary of the proceedings thus far it is clear that each party has committed significant resources to advancing his/her respective cases. As a consequence, multiple affidavits have been filed; subpoena issued; and, in effect, no stone left unturned, in the search for supportive evidence. [88]  As a consequence of these endeavours, it is axiomatic that the positions of the parties are polarised in the extreme and the prospect of them being able to reach any consensual and managed outcome, in the case must be regarded as extremely remote. This case, in my view, represents one of the more extreme examples of adversarial litigation. For obvious reasons, it is not likely to be conducive to the parties sharing parental responsibility for their children.": Parfrey & Yeatman [2019] FCCA 3713.

[P] Parent's New Partners - Re-partnered - Effect on Proceedings

•  concealing a relationship: "[47] The mother believed erroneously that the relationship was not relevant to the parenting proceedings, which shows ignorance of factors relevant to determining the child’s parenting arrangements. Alternatively, she deliberately sought to conceal the seriousness of the relationship because she thought it would be adverse to her case. Either way, it demonstrates an extreme example of the mother continuing to exclude the father from information relevant to the child’s welfare and relevant to what the Court is to decide. ...": Ward & Downs [2025] FedCFamC2F 154.   

[Q] Affidavits

• See [B] in main page, Wong on Family Law. 

[R] Recovery of Children - International Abductions

Enforcement of Orders - Recovery

• Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. Query whether that convention remains in force between that overseas country and Australia, whether incorporated into the FLA  via Family Law (Child Protection Convention) Regulations 2003 or subsequent regulations.

> Art 23, 26(2).

• Nicoli & Jeryn [2022] FedCFamC1F 42, [71] et seq -- Russia

[R.A] Recovery of Children - Within Australia

• Recovery Order: sections 67U, 67Q, Family Law Act 1975 (Cth). 

• Location Order: section 67N, Family Law Act 1975 (Cth): 

> directed to Centrelink, for example with s 67P leave to disclose.

[S] Information Sharing Material

• s 67ZBD: production of particulars of information sharing material to the Court;

• s 67ZBE: production of information sharing materials to the Court.

© Jing Zhi Wong, 2023-2025