FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Friseal & Friseal [2025] FedCFamC2F 75
File number(s): HBC 14 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 28 January 2025 Catchwords: FAMILY LAW – parenting – mother alleging unacceptable risk due to father’s pervasive family violence including coercion or control – meaning of coercion or control – exercise of powers by child safety services without adequate assessment of facts – factual findings that children’s views not coerced or controlled by the father – child safety services actions adverse to interests of the children – resulting entrenched alignment of older children to father – younger child removed from father’s care and placed with mother without prior warning – not in the best interests of older children to live with mother – older children have made assessment of parenting and have strong wishes not to have contact with the mother – no unacceptable risk to children in father’s care – parenting orders for father to have sole decision making responsibility for the older children and that they reside with him – parenting orders for mother to have sole decision making responsibility for the younger child and that she reside with her – separation of siblings required Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Amendment Act 2023 (Cth)
Cases cited: Aldridge & Keaton (2009) 235 FLR 450
Brauner & Brauner (No 2) [2024] FedCFamC1F 748
Carlson & Fluvium [2012] FamCA 32
Carter & Wilson [2023] FedCFamC1A 9
Cottey & Backe (No 2) [2020] FamCAFC 206
Danton & Lancaster [2024] FedCFamC2F 1045
Dasreef v Hawchar (2011) 243 CLR 588
Garrido & Garrido [2024] FedCFamC2F 634
Hall & Hall (1979) FLC 90-713
In the Marriage of Boman (1981) 7 Fam LR 586
In the Marriage of Wotherspoon & Cooper (1981) FLC 91-029
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
Lennon & Sanil [2020] FamCAFC 109
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mitchell v Mitchell (1983) 9 Fam LR 267
MRR & GR [2010] HCA 4
Olivier & Olivier [2020] FamCA 639
R & R [2000] FamCA 43
Division: Division 2 Family Law Number of paragraphs: 147 Date of last submission/s: 14 January 2025 Date of hearing: 11-13 June 2024, 8-10 July 2024 and 7-8 November 2024 Place: Hobart Counsel for the Applicant: Ms Ryan Solicitors for the Applicant: Ms Daniels, PWB Lawyers Counsel for the Respondent: Mr Strong Solicitor for the Respondent: Ms Dalwood, Butler McIntyre & Butler Solicitor for the Intervenor: Mr Lee, Office of the Director of Public Prosecutions Counsel for the Independent Children's Lawyer: Mr Verney SC (direct brief) ORDERS
HBC 14 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FRISEAL
Applicant
AND: MR FRISEAL
Respondent
SECRETARY, DEPARTMENT FOR EDUCATION, CHILDREN AND YOUNG PEOPLE
Intervenor
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
28…
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CaseChat Overview and Summary
The primary legal issues before the court included the interpretation of "coercion or control" within the context of family violence, the adequacy of the child safety services' assessment of the facts, and the best interests of the children. The court had to weigh the mother's allegations against the factual findings that the children's views were not coerced or controlled by the father. Furthermore, the court needed to decide whether the actions taken by child safety services were in the best interests of the children and whether the removal of the youngest child from the father's care without prior warning was justified.
The court found that the father did not present an unacceptable risk to the children, and the older children had made their own assessments of the parenting situation and had strong wishes not to have contact with their mother. Consequently, the court determined that it was not in the best interests of the older children to live with their mother. The court recognised the entrenched alignment of the older children with their father and concluded that there was no need for separation of siblings, as the younger child would reside with the mother. The court issued detailed parenting orders, granting the father sole parental responsibility for the older children and requiring him to reside with them. Conversely, the mother was granted sole parental responsibility for the younger child and the authority to reside with her. The court also outlined specific arrangements for the children to spend time with each other and their parents, including supervised and unsupervised contact, travel arrangements, and electronic communication protocols. Additionally, the court mandated psychological treatment for the older children and imposed injunctions to protect the children and each other from abuse and derogatory conduct.
Orders
Orders of the court
HBC 14 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS FRISEAL
Applicant
AND:
MR FRISEAL
Respondent
SECRETARY, DEPARTMENT FOR EDUCATION, CHILDREN AND YOUNG PEOPLE
Intervenor
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
Parental responsibility and live with
1. All previous parenting orders in respect of X born in 2008 (“X”), Y born in 2009 (“Y”) and Z born in 2015 be and are hereby discharged.
2. MR FRISEAL ("the father") have sole parental responsibility for the children X and Y and sole decision-making authority in respect of all decisions concerning their major or long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth).
3. X and Y live with the father.
4. Upon revocation of the current Child Protection Order made July 2023 in respect of Z, MS FRISEAL ("the mother") have sole parental responsibility for Z born in 2015 ("Z") and sole decision-making authority in respect of all decisions concerning her major or long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth).
5. Z live with the mother.
6. For the purposes of Order 2 and 4 of these Orders and exercising sole parental responsibility:
(a) The father must within seven (7) days of making a decision advise the mother in writing of any decisions that he has made for X and Y that concern "major or long-term issues".
(b) The mother must within seven (7) days of making a decision advise the father of any decisions that she has made for Z that concern "major or long-term issues".
Spend time with arrangements for Z if all children are residing in Tasmania
7. For a period of six (6) months from the date of these Orders, Z is to spend time with the father and X and/or Y at dates and times that can be facilitated by a professional supervision service agreed by the parties and in default of agreement at City B Children’s Contact Service.
8. For the purpose of Order 7 of these Orders, the mother and father are to do all acts and sign all documents required for enrolment with the professional supervision service.
9. After the father has spent six (6) consecutive months of time with Z referred to in Order 7 of these Orders, Z is to spend unsupervised time with the father, X and Y in Tasmania as follows:
(a) For two (2) months, every second Saturday from 10 am until 2pm; and
(b) After the expiry of two months referred to in order 9(a) every second Saturday from 10 am until 3pm Sunday; and
(c) For five days in the first week of each term school holiday commencing after the end of Term 3 in 2025 and each year thereafter; and
(d) For seven days during each Christmas/summer school holiday period; and
(e) Such other additional times agreed in writing between the parties.
Spend time with arrangements for X and Y and the mother in Tasmania
10. From the date of these orders X and Y are to spend time with the mother in accordance with their wishes in Tasmania, which wishes may be communicated by them through their treating psychologist to the mother and father.
11. In the event that X or Y express a wish to spend time with the mother as referred to in order 10 the father must facilitate X and Y's wishes in respect of them spending time with the mother and must attempt to reach agreement with the mother as to the dates, frequency and duration of visits in writing and, if agreement cannot be reached, will be as follows:
(a) For two hours each fortnight on the opposite week to when Z spends time with the father, X and Y; and
(b) Changeover will be at or outside D Venue.
Spend time arrangements for the children if the mother and Z live in Western Australia
12. Each year in the school holidays after end of Term 2, providing X and Y wish to spend time with the mother and communicate this through their psychologist to the mother and father, they will spend the first week of those holidays in Western Australia with the mother and Z.
13. Each year in the school holidays after end of Term 3, Z will spend five days with the father, X and Y in Tasmania.
14. Each year in in the summer school holidays after Term 4, Z will spend seven days with the father, X and/or Y in Tasmania.
15. X and Y are to spend time with the mother in Western Australia at such other additional times as may be agreed in writing between the parties.
Cost of airfares and travel between Tasmania and Western Australia
16. For the purpose of the spend time arrangements referred to in Orders 13 and 14 of these Orders, the mother is to pay for the airfares and travel costs for Z to travel to Tasmania.
17. For the purpose of the spend time arrangements referred to in Order 12 and 15 of these Orders, the father is to pay for the airfares and travel costs for X and Y to travel to Western Australia.
18. For the purpose of the spend time arrangements referred to in Orders 12, 13, 14 and 15 of these Orders:
(a) The parent obliged to pay for the cost of travel will arrange the bookings and make payment for return flights at least seven (7) days before the date of travel and must provide a copy of the itinerary to the other parent; and
(b) The primary care parent who is facilitating the child or children to spend time interstate with the other parent is to ensure that the children are at the departure airport and board the booked flight; and
(c) The parent who is to spend time with the child/children must ensure they collect the child/children from the destination airport.
Electronic communication between siblings and parents
19. The father is to facilitate X and/or Y communicating with Z and the mother as follows:
(a) At least once per week for a period of up to 20 minutes on a day and time agreed between the parties in writing and in the event of no agreement, each Sunday at 5:00pm; and
(b) At such further times as requested by the children.
AND FOR THE PURPOSES OF THIS ORDER the father is to initiate the means of communication and the mother ensure any relevant communications devices are charged and ready for use and Z and the mother engage in the communication.
20. The mother is to facilitate Z communicating with X and/or Y and the father as follows:
(a) At least once per week for a period of up to 20 minutes on a day and time agreed between the parties in writing and in the event of no agreement each Wednesday at 5:00pm; and
(b) At such further times as requested by the children.
AND FOR THE PURPOSES OF THIS ORDER the mother is to initiate the means of communication and the father ensure any relevant communication devices are charged and ready for use and X and/or Y and the father engage in the communication.
21. The means of communication for the purposes of Orders 19 and 20 of these Orders are to be in an electronic mode agreed between the parties in writing and in default a messaging app.
22. All communications and written agreements between the parents required by these Orders must be by text or email and the parties are to:
(a) Only communicate in respect of arrangements to give effect to these Orders; and
(b) Confine communications to child focused and parenting related matters pursuant to these Orders.
Psychological treatment and supports
23. Within twenty-eight (28) days of the date of these orders the father is to obtain a mental health care plan for each of X and Y, which treatment plan will be with a child psychologist nominated by the Independent Children’s Lawyer and the father must ensure that treatment proceeds according to recommendations made by any treating professional.
24. If either party wishes to suggest a child psychologist for treatment referred to pursuant to order 23 of these orders, they must provide their suggestions in writing to the Independent Children’s Lawyer within fourteen (14) days of the date of this order.
Injunctions
25. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children and each other, the parties are each hereby restrained by injunction from the following:
(a) Physically abusing or disciplining the children or physically abusing each other;
(b) Being verbally abusive, yelling or denigrating the children or each other;
(c) Being physically or verbally abusive, yelling or denigrating the other parent in the presence of the children;
(d) Denigrating the other party's family or loved ones to the children, and the parties will each remove the child/children from any third party doing so whilst the child/children are in their respective care; and
(e) Discussing these proceedings and parenting disputes with or in the presence of the children.
26. The Independent Children's Lawyer, as soon as practical is to inform Z of the orders made by the Court, explain them, and answer any questions she may have in an age-appropriate way.
27. The Intervenor has leave to provide a copy of the orders made today and Reasons for Judgment in these proceedings to the Magistrates Court, Children’s Division.
28. The Independent Children’s Lawyer and/or the parties have liberty to provide copy of the orders made today and Reasons for Judgment to:
(a) Any treating child psychologist for X and Y;
(b) Any medical or allied health professional who treats the children; and
(c) Any school the children are attending or may attend in the future.
29. The appointment of the Independent Children’s Lawyer be extended for a period of 2 months from the date of these orders.
30. The Father is to deliver X and Y to the Hobart Registry of the Federal Circuit and Family Court of Australia at 2.00pm today 28 January 2025 for the purpose of the Court informing them of the final parenting orders made and for this purpose the Independent Children’s Lawyer is to be present.
AND THE COURT NOTES THAT:
A. Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if they hold reasonable belief that the Orders for personal protection in Order 25 of these Orders have been breached.
B. Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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