Abramsson & Abramsson (No 2)
[2025] FedCFamC1A 86
•19 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Abramsson & Abramsson (No 2) [2025] FedCFamC1A 86
Appeal from: Abramsson & Abramsson (No 2) [2024] FedCFamC1F 912 Appeal number: NAA 363 of 2024 File number: BRC 5917 of 2022 Judgment of: MCCLELLAND DCJ, KARI & STRUM JJ Date of judgment: 19 May 2025 Catchwords: FAMILY LAW – APPEAL – Where the parties agreed to orders allowing the appeal and cross appeal on the basis of inadequacy of reasons – Where the Court is required to be satisfied that there has been appellable error before allowing the appeal – Where each party makes significant allegations of family violence – Where the Family Law Act 1975 (Cth) mandates that the Court consider family violence when making parenting orders – Endorsement of the reasons for decision of Pickford & Pickford (2024) FLC 94-230 – Where the primary judge’s reasons are inadequate in regard to consideration, evaluation and the fact-finding exercise as to the allegations of family violence – Where the inadequacy of reasons is a fundamental flaw – Appeal allowed – Costs certificates granted. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 43, 60B, 60CA, 60CC, 60CG Cases cited: Abramsson & Abramsson [2024] FedCFamC1F 658 Abramsson & Abramsson [2024] FedCFamC1A 182
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bhatnagar & Riju [2018] FamCAFC 144
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; [1988] HCA 68
Pickford & Pickford (2024) FLC 94-230; [2024] FedCFamC1A 249
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 49 Date of hearing: 29 April 2025 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Mr Trost Solicitor for the Appellant: Neilson Law Solicitor for the Respondent: Ms Smith of Finnigan Smith Counsel for the Independent Children’s Lawyer: Mr McGregor Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
NAA 363 of 2024
BRC 5917 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ABRAMSSON
Appellant
AND: MR ABRAMSSON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ, KARI & STRUM JJ
DATE OF ORDER:
29 APRIL 2025
ON 29 APRIL 2025, THE COURT ORDERED THAT:
Subpoena Access
1.The parties be granted liberty to inspect and take notes of documents produced to the Court pursuant to subpoenas issued by the Independent Children’s Lawyer for the purpose of this appeal.
2.Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) shall not apply so as to restrict either party from seeking to use the documents referred to in Order 1 in any further parenting proceedings between the parties in either the Federal Circuit and Family Court of Australia (Division 1) or the Federal Circuit and Family Court of Australia (Division 2).
The Appeal
3.The appeal is allowed.
4.The cross appeal is allowed.
5.The Application in an Appeal filed by the Independent Children’s Lawyer on 4 April 2025 is dismissed.
6.The Application in an Appeal filed by the respondent/cross appellant on 17 April 2025 is dismissed.
7.The orders of the Federal Circuit and Family Court of Australia (Division 1) made on 6 December 2024 be set aside on and as from the date upon which further parenting orders are made by the Federal Circuit and Family Court of Australia (Division 1).
8.The matter is remitted to the Federal Circuit and Family Court of Australia (Division 1) for rehearing before a judge other than the primary judge.
Costs of the Appeal
9.The Court grants to the appellant/cross respondent a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant/cross respondent in respect of the costs incurred by them in relation to the appeal.
10.The Court grants to the respondent/cross appellant a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent/cross appellant in respect of the costs incurred by them in relation to the appeal.
11.The Independent Children’s Lawyer is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children's Lawyer in respect of the costs incurred in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abramsson & Abramsson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, KARI & STRUM JJ:
INTRODUCTION
These reasons relate to the allowance, by consent, of an appeal and cross-appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 6 December 2024. The parenting orders were made, and reasons delivered ex tempore, a week after the conclusion of the four-day final hearing of the proceedings.
The proceedings relate to the parties’ two young children: X, who was almost seven at the time of the final hearing; and Y, who was three years of age. The children’s interests were advanced by an Independent Children’s Lawyer (“ICL”).
In substance, the parenting orders provided for the children to live with the father and spend time with the mother each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, together with a sharing of school holidays and special occasions. The orders additionally provided for the father to have sole decision-making responsibility for the children, with an obligation to consult the mother regarding her views.
A significant precursor to these orders was an interlocutory order made on 11 September 2024 (Abramsson & Abramsson [2024] FedCFamC1F 658), itself the subject of an unsuccessful appeal (Abramsson & Abramsson [2024] FedCFamC1A 182), which effected a change to the children’s living arrangement, such that, as and from that day, the children lived with the father with no orders for time-spending between the children and the mother until the making of the parenting orders the subject of this appeal. Prior to those interlocutory parenting orders, the children had lived with the mother, and had not seen the father (despite orders for time-spending with him) since approximately August 2023.
The mother has sought to appeal all of the orders made by the primary judge. The father, by his cross-appeal, challenges all orders, save for the order providing for the children to live with him (Order 2).
The grounds of appeal contended by each of the parties are voluminous, prolix and duplicative (much like the affidavits relied upon at the final hearing). Additionally, in many instances, it is difficult to discern the appellable error contended. However, amongst the numerous grounds, both parents contend error on the basis of inadequate, and/or a failure to give, reasons, albeit for different reasons.
At the commencement of the appeal hearing, the Full Court invited the parties to consider their positions in light of the apparent commonality between them regarding asserted error arising from an inadequacy of reasons. Having done so, the Full Court was ultimately invited to make orders by consent allowing both the appeal and cross-appeal, with the support of the ICL.
Despite agreement between the parties that the appeal ought to be allowed and the proceedings remitted for re-hearing before a judge other than the primary judge, the Court is still required to be satisfied that there has been, in fact, an appellable error before allowing the appeal (Bhatnagar & Riju [2018] FamCAFC 144 at [3]–[7]).
In circumstances where we agree that the appeal ought to be allowed due to the inadequacy of the reasons, and given the voluminous nature of the grounds of appeal and cross-appeal, it is not necessary to traverse the grounds further (Boensch v Pascoe (2019) 268 CLR 593 at [8]).
BACKGROUND
The parents of the children met in 2010, married in 2013 and separated in April 2022, following an episode in which it is agreed that the mother drove a motor vehicle over a cliff opposite the parties’ then home.
At the time of final hearing:
(a)The father was 44 years of age and, whilst qualified to practice as a medical professional, was under suspension until the weeks leading up to the final hearing; and
(b)The mother was 41 years of age, engaged in home duties and awaiting approval/receipt of government benefits.
The child, X, was born in 2018 and the child, Y, was born in 2021.
At the time of separation, the children remained living with the mother. They spent no time with the father whatsoever until early 2023, as a consequence of orders made on 20 December 2022 for him to spend supervised time with them at a contact service centre (Order 2). That time, however, was frustrated in August 2023 and did not resume prior to the orders made 11 September 2024, despite various orders made by the Court to facilitate the time-spending occurring.
When the interim orders were made on 11 September 2024, changing the primary care of the children, it appears uncontroversial that the mother was dysregulated during the Court hearing and she thereafter attended the children’s school; police attended and she was ultimately conveyed to hospital.
A significant feature of the litigation between the parties was mutually made, significant and serious allegations of family violence perpetrated by each of the parties against the other.
In his trial affidavit filed 18 November 2024 at paragraph 6, the father alleged “significant family violence”, in the form of “physical violence, emotional abuse, and coercive control”, which included:
(a)Coercive controlling family violence in the form of:
a. Isolation tactics, including monitoring my phone calls and messages, demanding access to all email accounts, requiring joint email address setup and requiring me to instal autoforwarding rules on my personal email so that she could monitor my emails.
b. Control over my work such as demanding specific patient scheduling and excessive working hours, requiring detailed income reporting, contacting my workplace directly to cause issues and continuously monitor my AHPRA registration status.
c. Financial control, such as demanding all banking passwords (including my professional accounts), making unauthorised transfers of joint funds and professional account funds, controlling investment decisions, applying dividends to her personal account and monitoring all of my financial transactions.
d. Inserting herself into my therapeutic relationships …
e. Telling me she would call the ambulance or police if I didn’t comply with her demands. She followed through with these threats on multiple occasions.
(Father’s affidavit filed 18 November 2024, paragraph 20) (As per the original)
(b)Physical violence and threats of violence including:
a. In 2019 [the mother] strangled me for the first time. It was when [X] was a baby, and I have a recording of this. [X] can be heard screaming in the recording and witnessed this.
b. In February 2021 [the mother] hit me repeatedly and she [abused] me for the second time. She threatened to kill me. This was reported to [the] police.
c. In … April 2022 [the mother abused] me for the third time. [The children] were present and witnessed this. This was reported to [the police].
d. [X] has witnessed [the mother] physically assault me, being pushed out of the house. [In] December 2020 [the mother] pushed me and bit me. I have a photo of the bite mark …
e. [X] was recruited by or encouraged by [the mother] to assault me.
f. There were countless threats of violence against me including threats to kill me and [abuse] me.
(Father’s affidavit filed 18 November 2024, paragraph 21) (As per the original)
(c)Ongoing coercion and control by the mother in the post-separation period (Father’s affidavit filed 18 November 2024, paragraph 23), including through her conduct in the proceedings; the making of false allegations against him; threats and intimidation tactics; interference with his work by contacting his employer, AHPRA and journalists; forging of his signature on documents; abusive emails; and the unilateral accessing of matrimonial assets and funds.
(d)A serious incident of family violence in April 2022 (Father’s affidavit filed 18 November 2024, paragraphs 61–71) which led to separation, in which the father asserted certain actions by the mother, witnessed by the children, including:
(i)The mother’s attempt to abuse him;
(ii)The mother telling him that “this is not going to end until you’re dead” (Father’s affidavit filed 18 November 2024, paragraph 67);
(iii)The mother pushing or kicking the child, X, out of the way;
(iv)The mother leaving the family home and “impulsively” driving over the cliff “opposite our house, in my car” (Father’s affidavit filed 18 November 2024, 61).
In her trial affidavit filed 7 November 2024, the mother similarly made a range of serious allegations of family violence, which included:
(a)Coercive and controlling behaviour from the earliest stages of the parties’ relationship, including:
(i)Screening her for vulnerabilities that would make a person “more vulnerable, malleable, and tolerant of mistreatment” (Mother’s affidavit filed 7 November 2024, paragraph 43);
(ii)Verbal taunts, including accusing the mother of being “crazy” like some of his previous girlfriends (Mother’s affidavit filed 7 November 2024, paragraph 45);
(iii)Feigned mutual interests;
(iv)Targeting of the mother’s insecurities about her body and appearance to provoke a reaction (Mother’s affidavit filed 7 November 2024, paragraphs 49 and 81);
(v)Making the mother feel intellectually and socially “inferior” (Mother’s affidavit filed 7 November 2024, paragraph 50);
(vi)Mocking the mother’s diet (Mother’s affidavit filed 7 November 2024, paragraph 51);
(vii)Persistent messaging and telephone calls (Mother’s affidavit filed 7 November 2024, paragraph 54);
(viii)Stalking behaviour (Mother’s affidavit filed 7 November 2024, paragraph 57);
(ix)Threats to expose sexually compromising images and videos of the mother (Mother’s affidavit filed 7 November 2024, paragraph 58);
(x)Accessing the mother’s medical records without her permission (Mother’s affidavit filed 7 November 2024, paragraph 58);
(xi)“Bombarding” the mother with flattery (Mother’s affidavit filed 7 November 2024, paragraph 71);
(xii)The father’s infidelity and denials of the same (Mother’s affidavit filed 7 November 2024, paragraphs 74–75); and
(xiii)Controlling the way the mother looked and dressed (Mother’s affidavit filed 7 November 2024, paragraph 80).
(b)Financial control (Mother’s affidavit filed 7 November 2024, paragraphs 145 and 182).
(c)Repeated references (albeit unparticularised) to “violence” and/or “domestic violence” perpetrated by the father against her (for example, Mother’s affidavit filed 7 November 2024, paragraphs 134, 144, 147, 155, 176, 181, 289 and 327).
(d)Episodes of physical violence, including:
(i)In late 2017, when the mother alleged the father “grabbed me by the arm and threw me across the room” (Mother’s affidavit filed 7 November 2024, paragraph 164);
(ii)When the child, X, was an “infant”, the mother alleged the parties had argued whilst driving in the car and the father had “abruptly opened the rear passenger door and grabbed [X] out of her baby capsule” (Mother’s affidavit filed 7 November 2024, paragraph 177);
(iii)The father tensely placing his hands around the mother’s neck in 2021 whilst she was breastfeeding the child, Y (Mother’s affidavit filed 7 November 2024, paragraphs 221– 222);
(iv)Yanking the mother’s hair, pulling her head back causing her to spin around (Mother’s affidavit filed 7 November 2024, paragraph 223); and
(v)In December 2021, two separate episodes of the father placing his foot on the mother’s skull (Mother’s affidavit filed 7 November 2024, paragraphs 225–226).
(e)Ongoing coercive and controlling behaviour throughout the relationship, including:
(i)The making of false allegations of medical conditions and/or diagnoses (Mother’s affidavit filed 7 November 2024, paragraphs 210–216); and
(ii)Threats to kill (Mother’s affidavit filed 7 November 2024, paragraph 229).
(f)The father’s use of recording and surveillance devices with respect to her (Mother’s affidavit filed 7 November 2024, paragraph 292, 304–307, 310, 338, 385, 459–463 and 592–609).
(g)Episodes of family violence perpetrated by the father disclosed by the mother to the father’s psychologist which included coercive and controlling behaviour, threats to kill, physical violence and aggression, and verbal abuse (Mother’s affidavit filed 7 November 2024, paragraph 334).
In addition to the mutual allegations of family violence made by each of the parties, it is apparent that, in the post-separation period, there have been a number of temporary family violence protection orders made, protecting the parties from each other, together with an alleged breach by the father of an order protecting the mother from him.
THE REASONS OF THE PRIMARY JUDGE
The reasons of the primary judge record that these proceedings were “somewhat complex” (at [84]). We agree that the factual matrix presented in these proceedings squarely places these proceedings amongst the more complex of parenting cases, particularly by reason of the serious nature of the competing allegations of family violence, and the concomitant risks contended by each of the parents.
As a consequence of the parties’ competing allegations of family violence, when the trial commenced:
(a)The mother maintained that the father presented an unacceptable risk of harm to the children (Mother’s Case Outline filed 18 November 2024, p.9, paragraph 3) and principally pursued orders for sole parental responsibility for children, that they live with her and that there be no time spent between the children and the father; and
(b)The father proposed (at proposed Orders 2–4) that he have sole parental responsibility, that the children live with him, and he otherwise reserved his position as to any time to be spent between the children and the mother pending the expert evidence during the final hearing (Father’s Case Outline filed 19 November 2024, p.1–2).
The reasons of the primary judge record that:
(a)The father promoted orders for no time-spending between the children and the mother, with his counsel conceding in final submissions that “some limited supervised time between the mother and the children was probably appropriate” (at [16]);
(b)The mother proposed that the children live with her and that they spend unsupervised time with the father each alternate Sunday from noon until 6.00 pm (at [19]), with the primary judge recording that his “strong impression” was that the mother preferred a “no time order” (at [20]); and
(c)The ICL promoted orders for the children to remain living with the father and spend unsupervised time with the mother (at [21], Exhibit 28 at first instance).
We observe that the primary judge delivered ex tempore reasons and made orders proximate to the conclusion of the final hearing. It is, however, difficult to discern from the reasons the perceived need to finalise the proceedings as swiftly as the primary judge did. Whilst admirable that the parties had the benefit of orders and reasons proximate to the final hearing, given the complexity of these proceedings, and for the reasons discussed, we consider that the preparation of reasons should not have given way to expediency, as appears to have been the case.
To that end, we consider that the reasons provided by the primary judge are inadequate, particularly in regard to the consideration, evaluation and fact-finding exercise mandated in parenting proceedings, when considering the parties’ competing allegations of family violence.
As observed in Bennett and Bennett (1991) FLC 92-191 at 78,266, adopting the test set out in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:–
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
Moreover, in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the NSW Court of Appeal said:
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
We now turn to why it is that we consider the reasons to be inadequate, insofar as the consideration of family violence in these proceedings is concerned.
First, it must be noted that there is a requirement, when exercising jurisdiction under the Family Law Act 1975 (Cth) (“the Act”), to “ensure protection from family violence” (s 43(1)(ca)).
To that end, the newly inserted objects to Part VII of the Act concerning “Children”, (which came into force on 6 May 2024) succinctly are (s 60B):
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
(Emphasis added)
Whilst the Court remains obliged (as it was previously) to make parenting orders which have the children’s best interests as the paramount consideration (s 60CA of the Act), the factors which the Court must consider in determining what is in a child’s best interest, have been significantly reduced (s 60CC of the Act). Family violence, however, remains a factor which the Court must consider, albeit that it is now expressed as a consideration in conjunction with the arrangements that would promote the safety of the child and each of the persons who has care of the child (s 60CC(2)(a)).
The significance of the need to consider family violence, as part of the safety considerations relevant to the child and the parents, is reinforced in the newly inserted s 60CC(2A) and the untouched s 60CG(1) which relevantly provide:
60CC How a court determines what is in a child’s best interests
…
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
…
60CG Court to consider risk of family violence
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
In Pickford & Pickford (2024) FLC 94-230 (“Pickford”), the Full Court grappled with the definition of family violence found in s 4AB of the Act. Whilst some uncertainty exists as a result of the three separate judgments (which is not a matter for the present proceedings), we agree with the comments of McClelland DCJ at [10] that:
… family violence is relevant not only to the assessment of future risk, but it is also very much a best interests consideration that may influence the making of an order for a child to spend a particular amount of time with a parent…
We also agree with the comments of Austin and Williams JJ:
79.However, in litigation under Pt VII of the Act, untested allegations of family violence are not proven facts. No court can prophetically know whether such allegations made by one party against another are true or false and, if false, whether the falsehood is deliberate or inadvertent. Disputed allegations of family violence must be subjected to the same forensic rigour as any other contested factual issue (Edinger & Duy (2023) 68 Fam LR 55). The party alleging the fact bears the burden of proving it (Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444 at [36]) and the standard of the burden is the balance of probabilities (s 140 of the Evidence Act 1995 (Cth)). The same point was recently made by the Full Court, though perhaps in less robust terms (Leventis & Leventis (2024) FLC 94-204 at [13]–[19]).
80.It is also important to acknowledge how the purpose of litigation under Pt VII of the Act is to determine orders which will most ably serve children’s best interests (s 60CA and s 65AA). Keeping children and their carers safe into the future is the ideal, which objective should not be subverted by allowing the litigation to be used as the medium by which to make definitive factual findings resolving disputed allegations of historical family violence between conflicted, vengeful or anguished parents, nor to make punitive orders against the parties who may be found to have perpetrated family violence.
In concurring with those comments, we acknowledge that a trial judge is not required to make findings in relation to each and every allegation that is made (M v M (1988) 166 CLR 69 at 76–78; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Rafferty & Spencer (2016) FLC 93-710 at [30]).
We are cognisant of, and in no way minimise, the principles, set out in s 43(1)(ca), to which a court exercising jurisdiction under the Act must have regard; the objects of Part VII, set out in s 60B(a); the matters which the court must consider in s 60CC(2)(a) and (2A); and the directive to the court in s 60CG(1)(b). However, having had regard to, and considered, those prescribed matters, we are of the opinion that whether there is a need for a trial judge then to proceed to make findings about family violence will turn on the facts of each case. This, necessarily, must be informed by a consideration of the circumstances of the case, including the orders advanced by each of the parties. To that end, where parties are each promoting time-spending between a child and both of the parents, without any protective orders aimed at ameliorating risk, it may not be necessary for findings regarding family violence allegations to be made. Conversely, where one or both parties contend that the other parent poses an unacceptable risk of harm, then it is likely, by reason thereof, that findings (where possible) will be required to be made regarding allegations of family violence, because those findings (if capable of being made) will not only inform the assessment of risk (per Isles & Nelissen (2022) FLC 94-092 at [50]–[51]), but they will also serve to assist in determining what orders would best keep the children safe from harm, including what, if any, protective orders could ameliorate risk. In this regard, we therefore concur with the comments of Austin and Williams JJ in Pickford (at [87]–[91]).
The approach to the fact-finding exercise was the subject of helpful guidance in Pickford in the joint judgment of Aldridge and Carew JJ, with whom McClelland DCJ agreed (at [36]–[39]), in the following terms:
48. … a forensic examination of all relevant evidence to:
(a)identify the behaviour about which complaint is made;
(b)identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator;
(c)identify the impact of the behaviour on the alleged victim (mere assertion by the alleged victim that they feel coerced or controlled is insufficient);
(d)make all relevant factual findings; and
(e)explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.
As earlier identified, in these proceedings each of the parties made significant and serious allegations of family violence.
When addressing the family violence allegations in the reasons, the primary judge recorded:
46.Each parent asserts against the other that they have been the victim of family violence including physical violence perpetrated by one to the other. Additionally, each allege emotional abuse, and the mother strongly asserts that she has been the subject of controlling and coercive behaviour by the father including financial abuse. In this case, neither parent takes any responsibility themselves for any real level of abuse towards the other person.
…
100.Sadly, this is not a “no risk” case. Both parties raise concerns about the other parent.
When turning to the fact-finding exercise, the primary judge considered that he was unable to make findings in relation to:
(a)Whether the father’s alleged abusive episode in early 2021 (at [52]), or any other alleged violent behaviour (at [56]), occurred; and
(b)The events which resulted in the Temporary Protection Order obtained by the father in 2024 (at [58]–[59]).
The reasons also record two further findings regarding the parties’ allegations of family violence:
55.I find these parties had, during their relationship, abused each other orally and probably at least in the presence of or with the awareness of [X]. [Y] was only 12 months old when the parties finally separated and as a result, he was likely not as aware of the intense conflict.
…
102.…
(a)I am satisfied that the relationship between the mother and father was volatile and shaped at times by family violence perpetrated by each party against the other. The evidence does not permit a finding to be made that there was only one victim as each parent asserts…
These findings, however, are untethered from any identification of the allegations made by either of the parties, or any discussion or analysis of the alleged behaviours which might ground these findings. As a result, there is an inability to discern which of the allegations the trial judge considered were made out, so as to ground the ultimate finding at [102(a)].
Given the seriousness of the parties’ competing family violence allegations, which included threats to kill, suicidal behaviour on the part of the mother, attempted abuse by each parent, surveillance and stalking on the part of the father, together with the more subtle forms of coercive and controlling behaviour alleged by each of the parties, this inadequacy in the reasons is a fundamental flaw.
Whilst it may well be that there was a proper basis for the primary judge to conclude that each parent had perpetrated family violence, without specific findings about any of the myriad of allegations made, it is impossible to comprehend how the orders ultimately made by the primary judge met the legislative imperative of ensuring protection from family violence (s 43(1)(ca)) and/or that the orders that were made kept the children and/or the parents “safe” (s 60CC(2)(a)).
It is for all of these reasons that we consider that the reasons of the primary judge are inadequate.
ADDITIONAL ORDERS MADE
Two applications were filed in the appeal as follows:
(a)An application filed by the ICL on 4 April 2025; and
(b)An application by the cross-appellant on 17 April 2025.
In circumstances where the appeal is allowed, there is no need to determine these applications, and they have been dismissed.
However, the application filed by the ICL sought:
(a)Leave to issue a subpoena to each of the Department of Child Safety, Seniors and Disability Services and the Department of Education; and
(b)Leave to adduce further evidence in the appeal, being the documents produced pursuant to such subpoena.
On 8 April 2025, orders were made in the appeal granting leave to the ICL to issue the requested subpoenas, with the balance of the application adjourned to the hearing of the appeal. The documents produced were the subject of orders for inspection by the ICL and each of the legal representatives only made on 24 April 2025.
Orders 1 and 2 have been made in circumstances where the Court was informed, in the shadow of the extant appeal, that:
(a)The mother retained the children in her care on 24 March 2025, contrary to the orders of the primary judge;
(b)An application for a recovery order has been made by the father, with the same inexplicably and unhelpfully given a different file number to the original proceedings and listed for hearing before a Senior Judicial Registrar in the Federal Circuit and Family Court of Australia (Division 2) the day following the hearing of the appeal; and
(c)The parents are now each self-represented, and the ICL has not, at this stage, been appointed in the new proceedings that have been commenced by the father.
COSTS
Each of the parties and the ICL sought Costs Certificates. Given our views expressed in these reasons, we consider that, in all the circumstances it is appropriate to make such orders.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Kari & Strum. Associate:
Dated: 19 May 2025
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