Chong & Kerimowa
[2025] FedCFamC1A 158
•8 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Chong & Kerimowa [2025] FedCFamC1A 158
Appeal from: Kerimowa & Chong [2025] FedCFamC1F 277 Appeal number: NAA 248 of 2025 File number: PAC 2709 of 2023 Judgment of: AUSTIN, BAUMANN & WILLIAMS JJ Date of judgment: 8 September 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders providing for the children to live with the father and spend supervised time with her on four occasions each year after a six-month moratorium period – Where the mother’s lawyers withdrew their representation during the trial – Where the primary judge refused the mother’s application to adjourn the trial – Where the mother’s mischaracterised ground of the denial of procedural fairness fails – Where the mother failed to identify how the decision to refuse the adjournment was incorrect – Where the mother’s contention her legal representation at trial was so incompetent as to cause the trial to be unfair fails – Whether the primary judge fell into legal error by ordering the children’s time with the mother be supervised indefinitely – Where the mother did not advance any fall-back position supposing the children were moved to live with the father – Where the primary judge found the mother posed an unacceptable risk of psychological harm to the children – Where there was no evidentiary premise upon which the primary judge could logically make the supervision period finite – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 65D, 65DAAA, 114UB
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 36, 67
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 101, 105
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 26
Cases cited: Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175; [2009] HCA 27
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Boyle & Zahur and Anor (No 2) (2017) FLC 93-814; [2017] FamCAFC 263
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46
Kaba & Zemin [2024] FedCFamC1A 114
Kerimowa & Chong (No 3) [2025] FedCFamC1F 580
Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200
Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Mawhinney v Australian Securities and Investments Commission and Ors (2022) 294 FCR 375; [2022] FCAFC 159
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47
Surridge & Surridge (2017) FLC 93-757; [2017] FamCAFC 10
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (2020) 282 FCR 95; [2020] FCAFC 226
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 99 Date of hearing: 27 August 2025 Place: Sydney Counsel for the Appellant: Ms Mahony SC Solicitor for the Appellant: GTC Lawyers Counsel for the Respondent: Ms Druitt Solicitor for the Respondent: Adams & Partners Counsel for the Independent Children's Lawyer: Ms Bromberger Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
NAA 248 of 2025
PAC 2709 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CHONG
Appellant
AND: MR KERIMOWA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, BAUMANN & WILLIAMS JJ
DATE OF ORDER:
8 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 4 August 2025 is dismissed.
2.The appeal is dismissed.
3.The appellant shall pay the respondent’s party/party costs of the appeal, fixed in the sum of $15,000.
4.The appellant shall pay the Independent Children’s Lawyer’s party/party costs of the appeal, fixed in the sum of $6,075.
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 Chong & Kerimowa has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, BAUMANN & WILLIAMS JJ:
This appeal, brought by the mother, lies from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 1 May 2025.
It is dismissed with costs for the following reasons.
BACKGROUND
The parties married in 2013 and separated in or about September 2022.
Upon separation, the mother and children vacated the family home. The children were then aged eight (a male) and five years old (a female). The parties amicably arranged for the children to spend time with the father on weekends (at [12]), but such amicability did not last long.
Only a month later, in October 2022, several dramatic developments occurred in quick succession. First, the mother began sending the father messages accusing him of sexual infidelity (at [14]–[16]). Secondly, she informed the police the father had sexually assaulted her numerous times some months beforehand (at [17], [20] and [73]). Thirdly, she alleged the father had sexually assaulted the younger child by touching her vulva and digitally penetrating her (at [2], [21]). Fourthly, she sent the father messages alleging the elder child was afraid of him and that both children were “absolutely terrified” by him (at [18], [21]). The mother then withheld both children from him.
Thereafter, despite not spending any time or communicating with the father, both children made escalating allegations of their physical and sexual abuse by him (at [23]–[24]), some of which were ostensibly quite fantastic – such as the father punching the younger child in the face and stomach, putting the younger child’s head in the toilet, cutting the younger child with a knife, suffocating the elder child, and chasing the elder child with a knife.
In early 2023, the mother’s allegations also escalated in seriousness. She alleged to the State child welfare agency that the father had trafficked the children to a “known paedophile ring” (at [110]–[111]), from which allegation she eventually resiled in cross-examination (at [115]).
The father commenced proceedings in respect of their children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in May 2023.
In August 2023, interim orders were made requiring the children to spend supervised time with the father, but the mother failed to ever comply with those orders (at [30]).
The trial of the proceedings began in March 2025. On the third day of trial, the mother’s lawyers successfully sought leave to withdraw due to an alleged conflict of interest between she and them (at [38]). The trial then continued with the mother self-represented. At the conclusion of the evidence, the primary judge dismissed the mother’s application to re-open and adduce more evidence to try and vindicate her allegation of the father’s interest in child pornography (at [40]–[45]), which allegation she first raised in an affidavit she filed about two months beforehand (at [25]).
The father and the Independent Children’s Lawyer (“the ICL”) both advocated for the reversal of the children’s residence and the father’s conferral with sole parental responsibility for them. They each proposed the children spend only confined time with the mother, being once every three months, and only then after a lengthy moratorium (at [31], [36] and [37]).
The mother’s conduct in advance of the trial evinced her intention to permanently sever the children’s relationships with the father (at [21], [30], [32] and [35]). However, on the first day of trial, she proposed orders for the children’s slow and incremental re-introduction to the father, culminating in alternate weekend visits (at [33]), but importantly always still subject to “the views and recommendations” of the elder child’s psychologist (at [34]).
The mother adhered to that proposal for the remainder of the trial, but there were two problems with it. First, the orders which purported to vest judicial power in a treating psychologist were incompetent (Lainhart & Ellinson (2023) FLC 94-166 at [13]–[33] and [58]–[59]). Secondly, neither the mother nor her lawyers (while they were still engaged) could rationally explain the apparent inconsistency between her proposal and her maintenance of such grave allegations of child abuse against the father (at [35]).
The father was interviewed multiple times by police and other authorities in relation to the allegations of his criminal behaviour. He denied all allegations and has never been charged with any criminal offence (at [28] and [107]). He also gave evidence at the trial denying any impropriety (at [129] and [132]) and the primary judge found him to be a “truthful witness”.
The father’s denials of misconduct were consistent with various other pieces of evidence, such as: at least some of the children’s disclosures of the father’s misconduct were induced by the mother’s leading questions and conduct (at [78], [94], [99], [101], [118] and [140]); the younger child did not independently make any allegation against the father when first interviewed by police (at [85] and [93]); the allegations made by the younger child to police during a second interview several months later were regarded by the police as “fanciful” (at [104]); the single expert also thought the allegations made against the father were implausible and unrealistic (at [136]); physical examinations of the younger child’s body revealed no injury consistent with her alleged vaginal or anal penetration (at [22], [84], [90], [91], [96]-[98] and [107]); the younger child admitted to an officer of the State child welfare agency that she fabricated some of the allegations (at [88]); the mother conceded some of the younger child’s allegations simply could not be true (at [106]); and the State child welfare agency considered the mother’s conduct caused the children psychological harm (at [105]–[106]).
As it transpired, the primary judge found the mother failed to prove, on the balance of probabilities, her allegations that: she was sexually assaulted by the father (at [130] and [136]); the children were sexually or physically abused by the father (at [107] and [136]); the children had been trafficked by him to a paedophile ring (at [116] and [119]); or that the father produced, viewed or disseminated child pornography (at [134]).
The primary judge conversely found the mother had psychologically harmed the children by her conduct, which caused their enmeshment with her (at [109], [118], [138], [141]–[146] and [153]). The mother’s behaviour disturbed the children and caused them to act aberrantly after separation (at [147]–[150]). The primary judge accepted the single expert’s opinion evidence that their best interests were not served by continuing to live with the mother (at [150]–[151]).
Accordingly, orders were made for the children to live with the father and for him to have sole parental responsibility for them. The mother is restrained from either seeing or communicating with the children for six months, after which time they will spend professionally supervised time with her four times each year. Although neither the father nor the ICL sought the children’s indefinite supervision when with the mother, the issue was well ventilated in final submissions and so she could not have been unfairly surprised by that outcome. His Honour was obliged to make orders in the children’s best interests, not just choose between the polarised options posited by the parties (U v U (2002) 211 CLR 238 at 263 and 284–285).
The mother appealed from all orders. The appeal was resisted by the father and the ICL.
APPLICATION IN THE APPEAL
By an Application in an Appeal filed on 4 August 2025, the mother sought leave to adduce further evidence in the appeal in the form of her affidavit filed on 4 August 2025 and the affidavit of her solicitor filed on 6 August 2025.
The mother’s solicitor deposed the further evidence relates to Grounds 1 and 5 in the appeal, in which the mother makes complaints of her denial of procedural fairness and her former lawyers’ incompetence. The application to adduce the further evidence is discussed in conjunction with those grounds.
THE APPEAL
The mother sought leave to appeal in her Amended Notice of Appeal, but it is unnecessary. She has an absolute right to appeal from the child-related judgment.
The four residual grounds of appeal (numbered 1, 3, 4 and 5) are pleaded in the Amended Notice of Appeal filed on 29 July 2025. Ground 2 was abandoned.
Ground 1
This ground alleges the mother was denied procedural fairness by being deprived of the opportunity to obtain new lawyers when her existing lawyers withdrew their representation of her during the trial.
Advertence to the chronology of events shows the proposition should be rejected.
Neither party called other witnesses in their respective cases. The father was cross-examined on the first and second days of the trial. The mother’s cross-examination began on the afternoon of the second day of trial and, on the morning of the third day of trial, due to an asserted conflict of interest, her lawyers successfully sought leave to withdraw. Such leave to withdraw was eventually granted, but conditionally upon the trial continuing, the lawyers remaining in the trial until the completion of the mother’s cross-examination, and the lawyers’ provision to the mother of transcript and notes of the evidence given over the first two days of trial (at [38]).
Once the mother’s oral evidence was completed by cross-examination on the afternoon of the fourth day of trial, her lawyers withdrew as permitted. The primary judge then entertained and dismissed an adjournment application made by the mother, which the father and the ICL both opposed, and for which ex tempore reasons were delivered by his Honour (Kerimowa & Chong (No 3) [2025] FedCFamC1F 580).
The trial therefore continued the next day. The single expert was the only other witness in the trial and the ICL assisted the mother by cross-examining the single expert (at [39]). The evidence closed on the fifth day of trial.
The gravamen of the complaint of procedural unfairness is that the primary judge’s denial of the adjournment application deprived the mother of the chance to either engage a new lawyer or to have sufficient time within which to prepare herself for the cross-examination of the single expert witness on the fifth day. The submission was put this way:
19.… The report of the [single expert] and the recommendations being pressed by [the single expert] required a fair opportunity for the [mother] to either engage a new legal representative or be given time to frame a cross examination of [the single expert]. Neither could not be achieved overnight. That circumstances presented a procedural unfairness that could not be cured …
(Mother’s Summary of Argument filed 28 July 2025)
However, the doctrine of procedural fairness is concerned with ensuring fairness to all parties, not just to one of them. The father and the ICL were also entitled to procedural fairness. Moreover, the doctrine is concerned only with the fairness of the process, not the fairness of the outcome (Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [82]; SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]).
While this ground is characterised as a complaint of procedural unfairness, it must really be construed as an assertion that the decision to refuse the adjournment was incorrect, as no litigant can be unfairly prejudiced by a correctly made procedural decision. The consequences of a procedural decision made by a judge about, for example, an adjournment of the trial or the admissibility of evidence might be contrary to the interests of one litigant but cannot be unfairly prejudicial if the decision was correct. All interlocutory decisions entail disappointment for one litigant. Unless the mother can demonstrate the decision to refuse the adjournment was beset by some error and, additionally, it had some adverse bearing upon the final judgment from which the appeal is brought, her mis-characterised complaint of the denial of procedural fairness must fail. She did not identify any such appealable error. The decision is not vitiated simply because it went against her.
The mother was able to make such submissions as she wished in support of the adjournment application. The prospect of her being impelled to personally deal with the evidence of the single expert the next day was the foreseen consequence of refusing her adjournment application and was therefore considered by the primary judge as but one factor influencing the discretionary decision. Other relevant considerations militated against the adjournment application, like the desirability of finishing the trial in a timely way, the likely unavailability of Court time for many more months to accommodate the remainder of an adjourned trial, the desirability of resolving the stressful conditions under which the children were then living as soon as possible, and the statutory imperative to finalise the litigation quickly, inexpensively and efficiently (Kerimowa & Chong (No 3) at [16]–[17]). Although not expressly mentioned by the primary judge, there was also the unlikelihood of the mother being able to meet the costs of the father and the ICL thrown away by an adjournment.
In this appeal brought from the final orders, the mother was not estopped by s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) from challenging the probity of the anterior decision to refuse her adjournment application. In any appeal, an appellant may challenge an interlocutory decision which allegedly vitiates the appealed judgment (s 36(5) of the FCFCA Act; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 and 494–497). Section 26(2)(b)(ii) of the FCFCA Act only prohibits appeals from being brought directly from the interlocutory decision, as the Federal Court of Australia has observed in relation to a counterpart statutory provision (Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (2020) 282 FCR 95 at [25]).
It will be noticed the mother was not denied the opportunity to cross-examine the single expert the day after the dismissal of her adjournment application. She was given the chance and took it, having had the previous evening to prepare. Though a lawyer might have acquitted the task of cross-examination more ably than her is not to the point. The mother prepared a list of the questions she had for the single expert, which was marked as an exhibit (Ex W2), and she also asked some unscripted questions. Being a self-represented litigant, she was helped by the primary judge and the ICL, as was proper (Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [234]–[235] and [251]–[253]).
Nor should it be overlooked that, when the mother’s lawyers were granted conditional leave to withdraw, the mother consented to the single expert still giving evidence on the fifth day. Her counsel had this exchange with the primary judge:
HIS HONOUR: … Thank you. So does that mean that the report writer – your client consents to the report writer coming on Friday?
[Counsel for the mother]: Yes, your Honour. Right.
HIS HONOUR: And she will either obtain alternate legal representation, or she will ask questions herself.
[Counsel for the mother]: Yes, your Honour …
(Transcript 12 March 2025, p.158 lines 26–36)
True enough, that concession was made on the third day, when the mother anticipated she would have the whole of the fourth day to prepare for the cross-examination of the single expert on the fifth day, but she still had the evening of the fourth day to prepare and on the fifth day she evidently was prepared to proceed with the cross-examination.
Decisions on mid-trial adjournments are pre-eminently procedural decisions requiring speedy disposition. The avoidance of undue delay and the efficient use of public resources are considerations which may transcend the individual interests of a party, particularly in litigation concerning children (Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175 at [25]–[26], [91]–[103], [111]–[113] and [148]–[149]; Bloch v Bloch (1981) 180 CLR 390; Sali v SPC Ltd (1993) 116 ALR 625 at 628-629 and 636). The refusal of the adjournment entailed no error and, although the mother may have found it difficult acting for herself of the fifth day, that does not manifest procedural unfairness.
Though the mother did not assert her deprivation of procedural fairness during the remainder of the trial process, it is as well to affirm she was not so deprived.
At the close of the evidence on 14 March 2025, the trial was adjourned for a week until 21 March 2025 for final submissions (at [39]). That was to enable the mother time to consider the transcript which was being provided to her by her former lawyers. On 20 March 2025, the day before resumption of the trial, the mother sought and was granted an adjournment for another week until 27 March 2025 (at [39]–[40]).
By 26 March 2025, the mother had secured alternate legal representation because, late that evening, the solicitor now acting for her in the appeal filed an application on her behalf seeking to re-open the evidence, which application was dismissed by the primary judge the next day (at [40]–[41]). The mother appeared for herself on 27 March 2025 and told the primary judge the new lawyer she had engaged would only henceforth appear for her if the application to re-open was granted. Upon the dismissal of the application to re-open the evidence, final submissions were taken to conclude the trial and judgment was then reserved.
On 24 April 2025, the mother made another application to re-open the evidence, though this time without legal representation, which the primary judge promptly entertained on 29 April 2025. The application was then dismissed concurrently with the delivery of final judgment two days later (at [42]–[45]).
Consequently, the mother was only without legal representation for the cross-examination of the single expert, but the ICL assisted her to complete that task. The evidence closed on 14 March 2025 and final submissions were not made until 27 March 2025, by which time the mother had consulted new lawyers. Why the new lawyers did not actually appear for her at the hearing on 27 March 2025 was never explained.
The further evidence upon which the mother wishes to rely in the appeal changes nothing with respect to that analysis. This ground fails.
Ground 5
This ground alleges the mother’s representation by lawyers at the trial was so incompetent as to cause the trial to be unfair.
The submission made in support of the ground was in these terms:
54.The conduct of Counsel appearing for the [mother] on Days 2, 3 and 4 of the hearing, were of such character that the Court would be satisfied incompetence of counsel resulted in an unfairness for the [mother] not of her own making.
(Mother’s Summary of Argument filed 28 July 2025)
The mother accepts that, to succeed with this ground she must demonstrate, not merely allege, her legal representation was so inadequate as to cause a miscarriage of justice (TKWJ v The Queen (2002) 212 CLR 124; Kaba & Zemin [2024] FedCFamC1A 114 at [25]).
The mother contended that four aspects of her incompetent representation, either individually or collectively, establish her complaint. The instances of alleged incompetence were:
(a)her counsel conferring with her whilst she was still under cross-examination;
(b)her lawyers seeking to withdraw their representation during the trial without proper foundation;
(c)her counsel not taking appropriate objections to questions asked of her during cross-examination; and
(d)her counsel not re-examining her.
The mother conducted the trial on the premise that the children were at risk of sexual abuse by the father, but the primary judge was alert to two problems with her case: first, the contention was logically irreconcilable with her application for orders requiring the children to spend time with him; and secondly, she impermissibly proposed that a treating psychologist should make the final decision about the children spending time with him. The mother benefitted from his Honour pointing out such deficiencies because she could then adjust her case accordingly.
Given the incongruence between the orders proposed and the evidence adduced by the mother, at the conclusion of the second day of trial and while she was still under cross-examination, her counsel asked for permission to confer overnight, at least inferentially, to clarify whether she instructed either the maintenance or the amendment of her proposal. The father’s counsel consented. This exchange occurred between them at the end of the second day:
[Counsel for the mother]: Yes, your Honour, and I just wanted to confirm. Your Honour earlier – your Honour indicated I would have leave to conference my client. I think at the time, with respect - - -
[Counsel for the father]: Yes, of course.
(Transcript 11 March 2025, p.147 lines 43–47)
The request and the consent were unexceptional, because r 26 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) provides as follows:
26.1A solicitor must not confer with any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination, unless –
26.1.1the cross-examiner has consented beforehand to the solicitor doing so, or
26.1.2 the solicitor –
(i)believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference,
(ii)has, if possible, informed the cross-examiner beforehand of the solicitor’s intention to do so, and
(iii)otherwise does inform the cross-examiner as soon as possible of the solicitor having done so.
The proposed conference between the mother and her lawyers at some point between the second and third days of trial fell within the ambit of r 26.1.1.
Upon the resumption of the trial on the third day, the mother’s counsel applied for permission for both he and his instructing solicitor to withdraw their representation of the mother due to a conflict of interest. The lawyers were not at liberty to breach the legal professional privilege enjoyed by the mother in their discussions, which she did not relinquish at that point, so counsel could say little other than that it was an “ethical issue”.
In support of this ground, the mother wanted to adduce as further evidence in the appeal her affidavit filed on 4 August 2025, for which purpose she now waives legal professional privilege (but only in part) and gives evidence of conversations she had with her lawyers during the trial on the third morning of 12 March 2025 (Mother’s affidavit at [5]) and then again on the fourth morning of 13 March 2025 (Mother’s affidavit at [9]). The evidence supposedly demonstrates the lawyers had no proper basis to seek their withdrawal.
The mother deposed the first conference held with her lawyers on 12 March 2025 had nothing at all to do with the clarification of her parenting proposal and was entirely confined to them telling her she would “lose all custody” and they believed she had lost faith in them as her representatives. The mother deposed the second conversation, which occurred the next day, was limited to her counsel’s refusal to speak with her to elaborate the reasons for their application to withdraw the day before. If the evidence is admitted and accepted in the appeal, it would tend to prove there was no ethical conflict between the mother and the lawyers and hence no proper basis for the lawyers’ withdrawal.
It is very difficult, if not impossible, to reconcile the mother’s new evidence with what the lawyers told the primary judge in Court that day. Only she and they know the content of their discussions. Either what the lawyers told his Honour, or what the mother now says in her affidavit, must be unreliable.
If what the mother now says is accurate, then she must have realised her counsel gave the primary judge a false account of their private conversation during the trial, yet she did not try and remonstrate to correct the record by then waiving her privilege and giving a true version of the conversations. Had she spoken up, offering her contradictory account and demanding the dismissal of their withdrawal application for lack of merit, his Honour would have been obliged to deliberate the application on a voir dire. Her lawyers, then freed from the constraints of legal professional privilege, could have chosen to either contradict her and pursue their withdrawal application or alternatively concede and abandon the withdrawal application. At least the factual dispute between them would have been capable of resolution by concession or cross-examination.
The mother’s current lawyers now allege her former lawyers withdrew “without proper foundation” and their conduct was so “egregious” as to be “incompet[ent]”, which contentions rely exclusively upon acceptance of the mother’s affidavit. However, her recollection of those conversations in March 2025 was five months old when she prepared her affidavit, was not apparently refreshed by contemporaneous notes, is selective about the parts of the conversation over which she retains and waives legal professional privilege, and is punctuated by this curiosity: she remembers the lawyers using obsolete language – “custody” – which terminology was repealed from the Act many years ago and seems inherently unlikely to have been used by the lawyers.
The mother’s characterisation of her former lawyers’ request for leave to withdraw as being improper should be approached with some caution, as disappointed litigants have a natural inclination to blame lawyers for their predicament (D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 at [37]–[39]).
By trying to adduce her new evidence in the appeal, the mother must expect it will be accepted as being truthful and accurate without having to withstand being tested or contradicted by her former lawyers, who are neither parties to nor witnesses in the appeal. But no court is compelled to accept the uncontradicted evidence of a witness (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [60] and [71]; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587–588), particularly when the evidence is self-serving, deliberately selective and unthreatened by challenge. It is the sort of evidence described this way by the Full Court of the Federal Court in similar circumstances (Mawhinney v Australian Securities and Investments Commission and Ors (2022) 294 FCR 375 at [133]):
The further evidence on which [the appellant] seeks to rely in the appeal includes the kind of self-serving reconstruction with the benefit of hindsight with which judges are familiar …
The mother could have given the same evidence to the primary judge, but the father is now unable to challenge it other than by calling her former lawyers as rebuttal witnesses and so it invites further factual controversy in the appeal which a Full Court bench of three members is ill suited to determine (Surridge & Surridge (2017) FLC 93-757 at [89]; Boyle & Zahur and Anor (No 2) (2017) FLC 93-814 at [115]). Those circumstances collectively militate against reception of the further evidence (CDJ v VAJ (1998) 197 CLR 172 at [55], [114], [116] and [186.9]) and so the application to do so is dismissed.
Given the criticisms of dishonesty and ineptitude now being made about the mother’s former counsel, it is readily conceivable how his withdrawal from the trial might have been justified under the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), which relevantly provide:
101 Briefs which must be refused or must be returned
A barrister must refuse to accept or retain a brief or instructions to appear before a court if:
…
(d)the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case,
…
(f)the barrister has reasonable grounds to believe that the barrister’s own personal or professional conduct may be attacked in the case …
…
105 Briefs which may be refused or returned
A barrister may refuse or return a brief to appear before a court:
…
(g)if the barrister’s advice as to the preparation or conduct of the case, not including its compromise, has been rejected or ignored by the instructing solicitor or the client, as the case may be …
Even if it be assumed the mother’s former lawyers had no proper basis to withdraw, as she now asserts in the appeal, the zenith of her grievance is that she was left without legal representation, though the only consequence was she then had to personally cross-examine the single expert witness the next day, with which task she was assisted by the ICL in any event. By the time of final submissions, the mother had engaged her current lawyers.
The mother’s lack of legal representation for part of the trial was a misfortune (Gallo v Dawson (1990) 93 ALR 479 at 481), but the lack of representation does not necessarily render a civil trial unfair (Dietrich v The Queen (1992) 177 CLR 292). The criteria for determining what amounts to injustice in a civil case necessarily differs from those appropriate to answering the same question in a criminal context and, importantly, an imperfect trial is not the same thing as an unfair trial (Jago v District Court (NSW) (1989) 168 CLR 23 at 26 and 49).
The alleged unjustified withdrawal by mother’s lawyers cannot be easily equated with their incompetent forensic performance while still engaged. It is an even greater stretch to equate their withdrawal with a miscarriage of justice, which is the true test for appellate intervention (TKWJ v The Queen at [25], [31], [63], [79] and [97]; Mawhinney v Australian Securities and Investments Commission and Ors at [118]). The test is not fulfilled merely by showing her lawyers withdrew in breach of professional conduct rules, which alleged default may be addressed by her complaint to professional bodies.
While the mother does criticise her former counsel for deciding not to take “appropriate objections” to questions asked of her during the remainder of her cross-examination, there are three problems with her criticism.
First, it is contrary to her counsel’s assurance to the Court that he would take objections for the remainder of her cross-examination, which assurance he gave only after confirming the mother wished him to do so. Counsel said this:
[Counsel for the mother]: Your Honour, I have instructions that I’m able to remain in the matter for the purposes of cross-examination and for taking objections on a legal basis as may arise …
…
[Counsel for the mother]: Your Honour, I will remain in the matter until the cross-examination finishes.
(Transcript 12 March 2025, p.157 lines 23–25, p.159 lines 1–2)
Secondly, the mother must now be presuming her counsel then acted, deliberately or recklessly, contrary to the assurance he gave to the Court. There is no premise for this presumption aside from the mother’s suspicion. That is particularly so when the primary judge commented to the mother about the soundness of her counsel’s dedication to task. His Honour said:
HIS HONOUR: So from my perspective, [counsel for the mother] was doing what was appropriate, namely engage with the bench. I don’t have a precise note of whether he objected to any questions, but certainly when I asked him questions he responded …
…
HIS HONOUR: Well, we had this conversation yesterday. The conversation that we had and the course that you consented to at that juncture was that [counsel for the mother] could sit there and make relevant objections, and from what I have observed, he has conducted his job appropriately in the sense that he has engaged with me when I have asked him questions …
…
HIS HONOUR: … I’m recording for the transcript that there is nothing that [counsel for the mother] has done in terms of the conduct of your cross-examination which would cause you to terminate his services now.
(Transcript 13 March 2025, p.285 lines 4–7; p.286 lines 5–9; p.288 lines 17–19)
The mother immediately responded saying she did not terminate her lawyers’ retainer, but only minutes beforehand she told the primary judge she wished to do so. This exchange appears in the transcript:
HIS HONOUR: No. All right. Madam, is it the case that you wish to terminate the services of [counsel for the mother] and his solicitor even for the limited purposes of objecting to evidence?
[The mother]: Yes, please, your Honour …
(Transcript 13 March 2025, p.284 lines 3–7)
Thirdly, the mother does not identify a single question she was asked in cross-examination which should have properly drawn an objection from her former counsel but did not. If she was not asked any objectionable question, there was no need for an objection.
At the conclusion of the mother’s cross-examination, her former counsel said he was unable to conduct re-examination, which is undoubtedly correct if it be accepted the lawyers’ duties conflicted with the mother’s instructions. Counsel could defend her from objectionable questions but not advance her case on an unethical basis.
Assuming for the moment there were questions which could have been posed to the mother in re-examination, she did not identify any evidence she could properly then have given which might feasibly have led to a different outcome. The mother’s current counsel suggested the issue of the unsatisfactory nature of her parenting proposal could have been ventilated in re-examination, but the submission is rejected. The deficiencies of her proposal having been pointed out and explored during cross-examination, when the mother had the fair chance to explain her reasons for the proposal, there was no evident residual confusion in her evidence which could be legitimately broached in re-examination.
This ground fails.
Ground 3
This ground contends that, by making the order requiring the children to be indefinitely supervised when spending time with the mother, the primary judge fell into legal error by failing to give proper effect to ss 60B(a), 60B(b) and 60CA of the Act (Grounds 3a, 3b and 3c) and by failing to give adequate reasons for the order (Ground 3d).
The relevant statutory provisions upon which the mother relies provide as follows:
60B Object of Part
The objects of this Part are:
(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.
…
60CA Child’s best interests paramount consideration in making a parenting order
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.
Obviously enough, s 60B is aspirational and sets the tone for the exercise of the wide judicial discretion under Pt VII of the Act, however it does no more work than to “provide context, indicate the legislative purpose of [Pt VII] and operate as an aid to construction of the Act” (Maldera & Orbel (2014) FLC 93-602 at [74]). It does not displace the prescriptive provisions of Pt VII of the Act.
Comparatively, s 60CA prescriptively requires use of the paramountcy principle to determine causes of action under Pt VII of the Act, though the question of what suite of orders will promote the child’s “best interests” demands an answer which, first, is a value judgment formed by the consideration of the numerous factors prescribed by s 60CC of the Act, and secondly, leaves room for reasonable differences of opinion (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [32]; CDJ v VAJ at [152]–[154], [184]–[186.3] and [200]).
The suite of orders embodying the judgment flowing from an exercise of wide discretion under Pt VII of the Act is strongly presumed to be correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627) and is not shown to be incorrect merely because the appellate court might have devised a different suite of orders (Gronow v Gronow (1979) 144 CLR 513 at 519–520).
Paying little apparent heed to such binding authority, the mother submits in the appeal, either expressly or by implication, there was no room for reasonable differences of opinion in this instance about the nature of the children’s future interaction with her. Her submissions have the distinct flavour of contending that, when s 60B and s 60CA of the Act were applied to the evidence, the order for the indefinite professional supervision of the time which the children spend with her was not open and some other outcome was imperative. She submitted this:
31.The effect of the order fails to take into account the inevitable maturation of each child and their capacity to engage in decisions regarding contact with their mother as well as being able to promote self-protective behaviours. The silence on the issue in the judgment of [the primary judge], coupled with the orders, infers an assumption each child of the relationship will remain in a stagnate state of development and maturity and will not be in a position to make either a choice about contact and / or have sufficient self-protective behaviours to protect against the risk of harm the Court has found the [mother] presents at any time during their minority.
…
34.Consistent with Raby, what was required of [the primary judge], to which he did not attend, was to engage in a process that evaluated the natural development of the child, and the self-protectiveness that comes with such maturity, as well as the diminishing powers the [father] will have over the children as they mature including prior to attaining 18 years of age. [The primary judge] failed to properly engage in considering the long-term interests of the children.
…
45.In making the “spend time with” orders, [the primary judge] failed to give proper effect to best interest principles of [the Act] as he failed to consider the ongoing maturation of each child and whether a permanent supervised contact regime met the paramount best interest of the children and their rights to maintain personal relations and direct contact with the [mother] on a regular basis outside of the immediate and short-term. Such an approach engaged error in the Court below.
(Mother’s Summary of Argument filed 28 July 2025)
The mother’s underlying grievance is that, because the professional supervision order applies for the remainder of the children’s minority, the harshness of such a permanent regime should have been moderated by the orders in some way. Significantly though, she omits to articulate the way in which such moderation could or should have been achieved, which is unsurprising when she ran an “all or nothing” case at trial. She staunchly adhered to her proposal for the children to remain living with her and did not advance any fall-back position about the circumstances under which the children could spend time with her if they were instead moved to live with the father (at [33]).
The mother’s contentions are rejected for three reasons.
First, the appealed orders reflected the expert evidence.
The single expert said the mother’s boundaries with the children are “poor and enmeshed and she conflates their needs with her own”, that she “subtly reinforced and encouraged [them] to make disclosures [against the father]”, and that the children’s behaviour was largely the function of their “disturbed relationship” with her (at [142], [143] and [149]). The single expert therefore recommended the children instead live with the father (at [150]).
As for the children’s future interaction with the mother, single expert recommended in the family report that there be a moratorium on any contact with the mother for six months and that “consideration be given” to the children’s re-introduction to her after the moratorium (Family Report at [97]). The children’s eventual re-introduction to the mother was not a recommendation.
In cross-examination, the single expert ruminated how it might be best for the children never to be re-introduced to the mother but, even if they were, it may need to be under supervised conditions and only on an infrequent basis. The single expert gave this evidence in cross-examination:
[Counsel for the father]: … Is it realistic that the court would be able to confidently make an order for a reintroduction of time between the children and the mother, after that time period?
[The single expert]: I accept full well that that recommendation is idealised - - -
…
[Counsel for the father]: Yes. And in terms of the information that his Honour has before him, I’m suggesting that perhaps serious consideration might need to be given to there being no order for reintroduction?
[The single expert]: Yes.
[Counsel for the father]: And if there is, it may need to be supervised time only?
[The single expert]: Agreed.
[Counsel for the father]: If there were to be an order for supervised time only, is this the type of case where that supervised time would be in the form of identity contact, four or six times a year, or would it be frequent, fortnightly, weekly?
[The single expert]: I think that the greater frequency that that contact occurs, the more pressure it will place on the children, the more difficulties it will create for them and for their mother. So if the Court was minded to make long term orders that the children were to remain in the care of their father with him having primary responsibility, I would suggest for identity purposes – as in four times a year, six times a year …
(Transcript 14 March 2025, p.323 lines 4–7; lines 15–28) (Emphasis added)
Assuming the children would be eventually re-introduced to the mother, on the quite separate question of whether professional supervision could ever be dispensed with, the single expert said not until the mother had demonstrated her fulfilment of certain conditions, which included her gleaning insight into her maladaptive behaviour by submission to psychological treatment, acknowledging her behaviour had contributed to the children’s presentation, and accepting the father’s alleged abuse of the children was untrue (at [165(d)] and [166]).
Secondly, the parties and the ICL realised the desirability of finalising the litigation and they all petitioned the Court for final orders to determine the cause of action under Pt VII of the Act, not for interim orders to keep the litigation alive and allow for some future review (Transcript dated 13 March 2025, p.303 line 46; 14 March 2025, p.189 lines 43–45; 27 March 2025 p.358 line 23). But that meant the primary judge had to finalise the litigation on the available evidence and there was no evidence from which his Honour could reasonably predict when the mother would, or even might, satisfactorily develop the type of insight and acceptance which the single expert opined were necessary pre-conditions to the relaxation of the requirement for professional supervision. Any prediction would have been pure speculation. That was especially so when, after the evidence was closed, the mother made two unsuccessful applications to re-open the evidence to try and vindicate her allegations of misconduct against the father.
Similarly, building some form of self-executing mechanism into the final orders to dispense with supervision at some indeterminate point in the future would have been arbitrary. The primary judge soundly avoided falling into error by trying to conjure orders which did not match the evidence (Lainhart & Ellinson at [36]–[49]). The mother, like the father and the ICL, wanted final orders so her complaint about the orders affording “no prospect of review” is misconceived.
Thirdly, these grounds wrongly assume the orders made by the primary judge are immutable. They are not. Parenting orders never can be because of the infinite vicissitudes of life. The mother is able to bring fresh proceedings to re-open the issue and vary the orders at some point in the future (s 65D(2)), subject to her adducing evidence of a material change in circumstances which is enough to justify their revision (s 65DAAA).
With respect to the attendant complaint about the inadequacy of reasons, the primary judge discussed the question of whether the children could spend time with the mother in the future without them suffering psychological harm. Since neither the father nor the ICL countenanced the mother’s permanent elimination from the children’s lives (at [163]), his Honour turned to consider the way in which they could safely spend time with her in the future. His Honour found the unacceptable risk of psychological harm posed by the mother to the children could be satisfactorily attenuated by professional supervision (at [167], [172], [176] and [187]), which would enable the children to maintain their relationships with her (at [186]).
The primary judge expressly noted how long-term supervision is often regarded as impracticable, saying this:
171.In circumstances where the father and the Independent Children’s Lawyer promote an order for the children to spend supervised time with the mother on an ad infinitum basis, I am mindful of the cautions espoused in Slater & Light (2013) 48 Fam LR 573. Particularly, I am mindful of the following principles developed by the Full Court:
(a)While the protection of the child from harm may be secured by the requirement of supervision, the court should not ignore the effect of spending time with a parent in such an environment may itself have an effect on the child’s well-being;
(b) It is both legitimate and necessary that the court give consideration to:
(i) any recommendations of a family report writer;
(ii) the practical difficulties; and
(iii) the long term effects;
of long-term supervision upon a child (i.e. their best interests).
(Footnote omitted)
But indefinite professional supervision was the only alternative option to an indefinite embargo on any interaction at all between the children and the mother. There was no evidentiary premise upon which the primary judge could logically make the supervision period finite. The expense of indefinite professional supervision could be managed (at [173]–[174]), given the children’s visits with the mother could not be too frequent (at [168], [169] and [188]).
It is simply false for the mother to assert his Honour “fail[ed] to provide any reason for the order for indefinite supervised contact”. Moreover, the reasons do adequately explain the professional supervision order. This ground fails.
Ground 4
This ground alleges it was unreasonable and plainly unjust to make the order for “indefinite supervision”, but this ground must also be rejected.
The mother does not contend it was unjust to reverse the children’s residence. Nor does she contend it was unjust to impose the requirement for the time they spend time with her to be professionally supervised. The contention of unreasonableness extends only to the permanence of the supervision.
The reasons already given for the rejection of Ground 3 explain how the order requiring indefinite professional supervision was not unreasonable. It accorded with the opinion evidence given by the single expert and was adequately explained by the primary judge. The mother cannot now reasonably invite an inference of some unidentified appealable error when the result was entirely congruent with the evidence.
DISPOSITION
The appeal is dismissed.
The father and the ICL both sought their costs of the appeal from the mother.
The father should have his party/party costs, though not at the unrealistic assessment of $52,870 he claimed. The mother did not oppose the costs order but did contest its quantum. The grounds of appeal were confined and the father’s counsel’s oral submissions were succinct. Pursuant to s 114UB(5)(a) of the Act, costs are fixed at $15,000.
The ICL should also have her party/party costs, which she reasonably assessed in the sum of $6,075. The mother conceded an order in that sum.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Baumann & Williams. Associate:
Dated: 8 September 2025
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