Wong on Family Law

Select topics on Family Law in Australia -- Parenting

Work-in-progress, 22 June 2025 (last updated)

[#] What is a Parenting Order?: 

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

• "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]. 

[!] General Framework

• 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]. 

• See also, re Consent Orders below. 

[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]. 

• Alternate week arrangements ordered, allegation of family violence, see factors 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.  

[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, 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.

• 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.

[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.

[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.

[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] Unacceptable Risks to the Child: 

• 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].

• 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. 

[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 [69,699]: "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."

• ** 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.

• "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 ..."

[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].

> 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]. 

• 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].

• 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.

[I] Consent Orders - 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. 

• "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]. 

• 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]). ... ".

[J] 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. 

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