FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dever & Serano [2025] FedCFamC1F 255
File number(s): BRC 9850 of 2019 Judgment of: BAUMANN J Date of judgment: 17 April 2025 Catchwords: FAMILY LAW – CHILDREN – CONTESTED RESIDENCE – Where final orders were made by the Court in 2019 for regular time and equal shared responsibility – Where time has not occurred between the father and child since March 2021 due to the child allegedly expressing reluctance to spend time with the father – Where the mother and child unilaterally relocated approximately 1,000 kilometres from their usual place of residence – Where the mother asserts the child has made disclosures that the father has both physically and sexually abused her – Where father asserts the mother is an emotional risk to the child and seeks a change of residence – Final Orders made for the child to live with the father – Interim Orders made for a moratorium of time following which the child will spend supervised time with the mother Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Cases cited: Goode & Goode (2006) FLC 93-286
Isles & Nelissen (2022) FLC 94-092
Sampson & Harnett (No 10) [2007] FamCA 1365
Division: Division 1 First Instance Number of paragraphs: 111 Date of last submission/s: 3 November 2023 Date of hearing: 4 - 6 and 29 September 2023 Place: Brisbane Counsel for the Applicant: Mr M Alexander and Ms A Burke Solicitor for the Applicant: McInnes Wilson Lawyers Counsel for the Respondent: Mr A Collins Solicitor for the Respondent: Statewide Family Law Counsel for the Independent Children's Lawyer: Ms A Hellewell Solicitor for the Independent Children's Lawyer: Smithson Lawyers ORDERS
BRC 9850 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DEVER
Applicant
AND: MS SERANO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting orders are discharged.
Parental responsibility
2.That the Applicant father, Mr Dever, shall have sole parental responsibility for the child X born in 2013 (“the child”).
3.That the father must, within fourteen (14) days of making a major long-term decision in respect of the child (save for in an emergency), inform the mother of the decision made by him.
Living arrangements
4.That the child shall live with the father, from 4.00pm on Thursday 1 May 2025, unless the parents agree on an earlier date in writing.
5.That the Respondent mother, Ms Serano, shall attend, with the child, at a location in Region B nominated by the father, to handover the child to the father to permit Order 4 hereof to commence, and failing agreement of the location, handover shall occur at the Town C McDonalds restaurant.
Specific Issues
6.That the parents shall keep the other informed of:
(a)a residential address, postal address, email address and mobile telephone number for that parent;
(b)any change to the information…
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- Case
- [2025] FedCFamC1F 255
- Decision Date
CaseChat Overview and Summary
The court had to decide on the final and interim orders regarding the child's residence and contact with both parents. The legal issues included the best interests of the child, allegations of abuse, and the impact of the relocation on the child's well-being. The court found that the child would benefit from a meaningful relationship with both parents, but the mother's attitude and fixed beliefs had created a protective environment for the child that shielded her from engaging with the father. The allegations of abuse made by the child were either not true or grossly embellished.
The court ordered that the child would live with the father, with a moratorium on contact with the mother until supervised visits could commence. The court also ordered that the mother was to provide letters, gifts, and cards to the child on a fortnightly basis, provided they were child-focused. The mother was restrained from attending the child's school or contacting the child outside of the court-ordered arrangements. The court further ordered that the parties were to file and serve an affidavit regarding events since the change of residence and their proposed interim orders by a specified date, and that the proceedings be adjourned for a Case Management Hearing on a set date.
The final orders included the discharge of all previous parenting orders, the granting of sole parental responsibility to the father, and the requirement for the father to inform the mother of major long-term decisions regarding the child. The court also ordered communication and information-sharing requirements between the parents, as well as restrictions on discussing the proceedings or criticising the other party in the presence of the child.
Orders
Orders of the court
BRC 9850 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR DEVER
Applicant
AND:
MS SERANO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS ON A FINAL BASIS:
1. That all previous parenting orders are discharged.
Parental responsibility
2. That the Applicant father, Mr Dever, shall have sole parental responsibility for the child X born in 2013 (“the child”).
3. That the father must, within fourteen (14) days of making a major long-term decision in respect of the child (save for in an emergency), inform the mother of the decision made by him.
Living arrangements
4. That the child shall live with the father, from 4.00pm on Thursday 1 May 2025, unless the parents agree on an earlier date in writing.
5. That the Respondent mother, Ms Serano, shall attend, with the child, at a location in Region B nominated by the father, to handover the child to the father to permit Order 4 hereof to commence, and failing agreement of the location, handover shall occur at the Town C McDonalds restaurant.
Specific Issues
6. That the parents shall keep the other informed of:
(a) a residential address, postal address, email address and mobile telephone number for that parent;
(b) any change to the information at Order 6(a) within seven (7) days of such change occurring;
(c) the names and addresses of any treating medical or other allied health practitioners who treat the child; and
(d) as soon as reasonably practicable, any information concerning any serious medical condition, medical treatment, significant health issue or significant illness suffered by the child.
7. That each parent is hereby authorised to obtain from the child’s schools all notices, letters, and school reports in relation to the child (at that parent’s cost).
8. That the parties will not discuss these proceedings or criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the child.
9. That the parties shall encourage and not undermine each child’s relationship with the other party.
10. That this Order hereby authorises: -
(a) the mother to provide a copy of this Order and any Reasons for Judgment published in these proceedings to her psychologist, Ms D or such other treating health professional engaged by the mother;
(b) the father to provide a copy of this Order and any Reasons for Judgment published in these proceedings to the child’s:
(i) treating psychologist;
(ii) treating psychiatrist; and
(iii) Ms E.
11. That both parents will communicate using the Talking Parents app or email, save in an emergency situation where the parents shall communicate by text message or mobile phone is permitted, and both parents will within seven (7) days download and register for the Talking Parents app.
12. That the father shall arrange, at his cost, to engage Ms E to explain these Orders to the child and will, as recommended by Ms E, have such further counselling session as are required.
THE COURT ORDERS ON AN INTERIM BASIS PENDING FURTHER ORDER:
Moratorium
13. That the child shall not communicate with; or spend time with the mother, from 1 May 2025 until the first scheduled supervised visit on the weekend of 27/28 July 2025.
Spend time with
14. That the child shall spend supervised time with the mother at all times as agreed between the parents and failing agreement for up to three (3) hours each alternate weekend (either on the Saturday or the Sunday as can be accommodated by the Contact Centre) on the following basis:
(a) The contact visits shall occur at F Contact Centre (“the Contact Centre”), unless otherwise agreed in writing between the parents;
(b) Both parents shall contact the Contact Centre by 15 May 2025 and attend to all required intake processes as directed by the Contact Centre; and
(c) The parents shall share equally in the costs of supervision and intake.
Communication
15. That commencing Thursday 31 July 2025 and each Thursday thereafter, the child shall communicate with the mother by telephone, or video call, on the following terms:
(a) The call shall be initiated by the mother to a mobile phone number nominated by the father, no later than 16 July 2025;
(b) The father shall ensure the nominated phone is fully charged and in a mobile reception area;
(c) The phone call or video call shall occur between 6.00pm and 6.30pm unless otherwise agreed between the parents; and
(d) The father shall be entitled to observe the call (but not interrupt) but neither parent shall be permitted to record the interaction between the child and the mother.
16. That once supervised time has commenced under these Orders, the mother is at liberty to provide letters, gifts and cards to the child on not more than a fortnightly basis provided such letters, gifts and cards are child focussed.
Restraints
17. That the mother is restrained and an injunction is hereby issued restraining her from:
(a) attending any school attended by the child unless otherwise agreed in writing by the father or provided for in this Order; and
(b) approaching the child or contacting the child in any way other than in accordance with this Order, unless otherwise agreed to in writing by the father.
Further Case Management
18. That these proceedings be adjourned for Case Management Hearing at 9.30am on 10 September 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
19. That the parties shall file and serve an affidavit as to events since the change of residence and their proposed interim orders they seek for the next (3) months, by no later than 4.00pm on 3 September 2025.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Whilst I accept this child is vulnerable and suffers consistent anxiety, she seems to be a delightful child with much potential. She has a strong, independent and forthright mother who she believes protects her from a “bad father” and schools that don’t understand her or meet her needs. X has had consistent discussions for a long time about events in her life and the mother demonstrates she believes her – never really providing any adult filter or challenging the child. The mother’s attitude and fixed beliefs provided a shield around the child from having to engage with the father. Removing the child from the Region B and hiding as she did was a calculated endeavour by the mother, which had the benefit, to the child, of not having to question her perceptions of past events – which, as I will find, have either not occurred or are grossly embellished. The child is the focus of the mother’s life and the child knows it and, whilst drawing comfort from the cocoon the mother has created around her, X’s separation anxiety has subsided. As I will now ultimately be compelled to discuss, the child’s anxieties are to be tested and explored once again.PRIMARY CONSIDERATIONS The child would benefit from a meaningful relationship with both parents. She has such a relationship with the mother now – but does not have one with the father. Of course s 60CC(2)(b) must be given greater weight.Risk Issues – Father The mother’s affidavit provides evidence of what she says the child has disclosed to her. The mother kept a journal on the advice of Ms E. The ICL, at paragraph 13 of the submissions accurately summarises the nature of the disclosures, and I deal with them sequentially: -Allegations of choking and/or strangling(a)It is alleged that the father choked and strangled X. Whilst the s 93A interview records the child’s words, I am confidently satisfied that the child’s performance – for that is what it was from the beginning – is not a truthful account. It not only lacks consistent particularisation but is of such severity that it is not possible for the mother to have been unaware of the both physical and emotional effects of the child at that time – not over 12 months after time ceased when first disclosed. The events leading up to the police interview allowed the child’s story to be shaped in an environment where this anxious little girl must have known of her mother’s support for her and not wanting to be separated from the mother achieved by having no time with the father. The submissions of the father (at paragraphs 103 to 118) are persuasive and I accept them as articulated.Taking nude photographs(b)It is possible, despite the father’s denials, that he had taken a photograph of the child smiling and not fully clothed. However there is no evidence to suggest this was a regular occurrence; that he did so for some form of sexual gratification or that he has paedophilic tendencies. The mother’s complete overreaction to the allegation (engaging the father’s employer etc.) strongly suggests she was looking to damage the father’s personal reputation and support her case rather than protect her child.The father hacking the mother’s computer and telephone (c)The mother’s beliefs, after investigation by police, reveal they are totally unfounded – as was the mother’s initial suspicions that the father had broken into her home. The mother’s beliefs were, I find, known to the child, only reinforcing the child’s concerns about the father.Allowing a man to sexual assault X (d)There is no believable evidenced of anything like X vaguely described occurring – but again the mother gripped a comment from the child and tried to make something of it. She failed.