Hannigan & Hannigan
[2025] FedCFamC1A 117
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hannigan & Hannigan [2025] FedCFamC1A 117
Appeal from: Hannigan & Hannigan [2024] FedCFamC1F 806 Appeal number: NAA 378 of 2024 File number: SYC 6809 of 2024 Judgment of: AUSTIN, MCGUIRE AND RIETHMULLER JJ Date of judgment: 3 July 2025 Catchwords: FAMILY LAW – APPEAL – Appeal from interim parenting orders – Unacceptable risk – Significant allegations of family violence – Where the primary judge ordered no time between the appellant father and the children – Where the appellant contends the primary judge failed to identify specific risks posed by the appellant to the children – Past violent events may indicate the likelihood of future violence and unacceptable risk – Where the appellant argues the primary judge failed to assess the children’s best interests in accordance with s 60CC of the Family Law Act 1995 (Cth) – Best interests should be assessed “generally” and not solely with reference to the present – Where the appellant claims the primary judge erred in determining that the risk the appellant posed to the respondent mother’s parenting capacity was a form of family violence – The appellant’s argument conflates the legal definition of “coerces or controls” under s 4AB with the subjective experience of the respondent and its impact on her parenting capacity – A parent’s subjective experience is relevant to assessing their parenting capacity – No grounds of appeal established – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC Cases cited: Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
B and B (1993) FLC 92-357; [1993] FamCA 143
House v The King (1936) 55 CLR 499; [1936] HCA 40
Irvine and Irvine (1995) FLC 92-624; [1995] FamCA 68
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22
Pickford & Pickford (2024) FLC 94-230; [2024] FedCFamC1A 249
Re Andrew (1996) FLC 92-692; [1996] FamCA 43
SS & AH [2010] FamCAFC 13
Number of paragraphs: 44 Date of hearing: 3 June 2025 Place: Sydney Counsel for the Appellant: Mr Allan Solicitor for the Appellant: Dean Michael Solicitors Counsel for the Respondent: Mr Cox SC Solicitor for the Respondent: Watkins Tapsell Solicitors Counsel for the Independent Children’s Lawyer: Mr Chhabra with Ms Bromberger Solicitor for the Independent Children’s Lawyer: Gonzalez and Co ORDERS
NAA 378 of 2024
SYC 6809 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HANNIGAN
Appellant
AND: MS HANNIGAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AUSTIN, MCGUIRE AND RIETHMULLER JJ
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.Appeal NAA 378 of 2024 is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $21,491.61.
3.The appellant pay the Independent Children’s Lawyer costs fixed in the sum of $4,875.
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 Hannigan & Hannigan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, MCGUIRE & RIETHMULLER JJ:
The father appeals against interim parenting orders made by the primary judge on 27 November 2024 which provided that:
5.The children shall spend no time with the father and shall have no communication with the father, without the express written consent of the mother or an Order.
…
7.The father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the mother and/or the children.
BACKGROUND
The father is aged 37 and the mother is aged 39. The parties met in March 2011 and wed soon after in May 2011. There are two children of the marriage, X aged 10 years and Y aged 7 years.
The parties separated in March 2023, but continued to live under the same roof until May 2024 when the father was arrested by the police and charged with various offences against the mother and the eldest child. The children have not had any time with the father since his arrest.
A brief summary of the allegations against the father is set out in the mother’s written summary relied on before the primary judge:
a.Sexually assaulting the mother …
b.Coercing and pressuring the mother to have sex …
c.Kicking the mother in the stomach several times while she was seven months pregnant …
d.Pinning the mother up against a wall and punching the wall next to the mother’s head in the presence of the children and the maternal grandmother …
e.Throwing the mother into a bookshelf causing her to fall and the bookshelf to break
f.Slapping the mother …
g.Covertly recording the mother, and recording her without her consent …
h.Financially controlling the mother, and isolating her causing her to resign from her previous role …
i.Wrapping one of his arms around [X’s] neck placing her in a choke hold and dragging her about 10 metres …
j.Berating and yelling at [X] …
k.Threatening to whip [X] with a belt, removing his belt and slapping it on his hand . [X] has reported to the mother the father did beat her;
l.Tracking [X] through her GPS watch and getting angry when she didn’t answer his messages or calls.
(Mother’s Case Outline filed 15 November 2024, p.5–6)
Some of the mother’s allegations are supported by the evidence of other witnesses.
The police have charged the father with a number of offences, to which he has either pleaded not guilty or not yet entered a plea (although he has not made clear denials of the conduct in his affidavit material). The charges against the father include:
(a)Common Assault;
(b)Possessing an unauthorised/prohibited firearm;
(c)Stalk/intimidate;
(d)Install/use device to record conversation;
(e)Intentionally record intimate images without consent;
(f)Intentionally choke a person without consent; and
(g)Sexual intercourse without consent.
The primary judge noted that the absence of evidence from the father was explained by his tactical decision to remain silent pending the determination of the criminal proceedings. This course was open to the father, but left only the mother’s evidence on these issues before the court. The primary judge assessed the evidence before him on this basis. There was no error in the approach of the primary judge in this regard.
The mother says that the children have been exposed to the father’s violence against her, including:
8.… separating the then 2-year-old [Y] from her mother by locking a bedroom door and raping the mother, exposing the children to his violence to the mother when [she says] he raped her on Christmas Day 2019 and when [X] came into the parties’ bedroom as the father was in the process of raping the mother in June 2023.
(Mother’s Case Outline filed 15 November 2024)
The mother’s evidence is also that “the father has continued to test the boundaries of [an Apprehended Domestic Violence Order], regularly getting petrol at the petrol station just outside the 1km radius [set by the order] … and standing outside her workplace” (Mother’s Case Outline filed 15 November 2024 at [10]).
The primary judge recounted a summary of the significant factual allegations and arguments of the parties (at [11]–[18]).
PRINCIPLES
The primary judge was required to determine interim parenting orders soon after the proceedings commenced, based upon limited evidence by affidavit. The determination was a discretionary judgment. In House v The King (1936) 55 CLR 499 at 504–505 the majority of the High Court said:
… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
Importantly, in the context of this appeal, as was said in SS & AH [2010] FamCAFC 13:
100.The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
GROUNDS OF APPEAL
Grounds 8–10 of the grounds of appeal were not pursued.
Grounds 1–7 were argued on the basis that they were different expressions of one central error: that the primary judge failed to “identify a particular risk within the [father’s] proposal for parenting orders” (father’s Summary of Argument filed 11 April 2025 at [1]; see also [5] and [13]). The father argued that this resulted in the primary judge being unable to assess the particular risks before determining what parenting orders were in the best interests of the children.
Ground 1
1.His Honour did not identify that the nature of any possible risk to the children in spending time with the [father]:
a.[His Honour] was therefore unable to correctly determine if a (presumed) risk was unacceptable, when considering what parenting order to make (s 60CG(1)(b) Family Law Act 1975 (C’th) (sic)).
b.His Honour found that it would benefit the children to have a relationship with the [father] if it was safe for them and the mother, and did not compromise the [mother’s] parenting capacity (at [43]). Having reached that finding, he then had to articulate a risk to that safety or to the [mother] and her capacity. His Honour did not do so.
The primary judge summarised the allegations of violence against the mother and children at the hands of the father. His Honour noted that, if established, these events “reflect poorly upon the father’s parenting capacity” and they were not “one-off or isolated allegations, but a long-standing pattern” (at [37]). The primary judge went on to note the adverse impacts upon children when exposed to violence, even if not the direct victims of violence (at [41]). The primary judge concluded:
44.… I am satisfied that there is a proper basis for concluding that there is the possibility of the existence of harm and that the magnitude of that risk of harm is such that the children would be at an unacceptable risk of harm if the father were to spend unsupervised time with them.
The father attempts to overcome the obvious conclusions drawn by the primary judge from the allegations, that the mother and children were at risk of violence (and its consequences) from the father in the future, by arguing that the conclusion “did not amount to a particular risk of family violence which could then be evaluated” (appellant’s Summary of Argument filed 11 April 2025 at [14]). Risks are the possibility of future events. A possible future event cannot be described with the same level of particularity as a past event.
When assessing risks, the High Court said in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 574 “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence”. It is obvious that past violence, especially if directed at a family member, is a sound basis for considering future violence to be a significant risk.
The evidence of past violence in this case was a strong foundation for the primary judge’s findings that the father presented an unacceptable risk to the children if he was to have time with them. It was not necessary for the primary judge to speculate as to the particulars of the possible future violence in the context of this case, for example whether the father would again try to choke one of the children, sexually assault the mother, or perpetrate some other form of violence. There was sufficient certainty as to the nature of the risks being considered for the purpose of the interim application in this case. This was undoubtedly the reason that this argument (that the risks were not sufficiently identified) was not raised before the primary judge, who recounted that:
45.The parties have framed the matter for determination in a narrow compass, albeit the consequences are significant. The father seeks only supervised time. The question then is whether the children are at an unacceptable risk of harm by spending supervised time with the father. The father says they are not while the mother and ICL say they are.
Ground 1 cannot succeed on the facts of this case.
Ground 2
2.His Honour incorrectly ruled that the genuine fears of a primary carer about the existence of a risk was, in itself, a consideration in the risk assessment (at [46]).
a.The jurisprudence focuses on the effect upon children of the fears held by a party, and in particular the effect upon that party’s ability to care for the children.
b.While his Honour alluded to the possibility of risk to the children's welfare of the [mother’s] parenting capacity being adversely affected, at [47], he did not say how the [mother] would be affected, because there was no evidence about it. It was not sufficient only to allude to the possibility of parenting orders affecting the [mother’s] parenting capacity.
The mother is the undisputed primary carer. Adverse impacts upon the mother’s capacity to parent the children would affect the children. The primary judge noted that:
46.… The mother gives evidence of the [e]ffect upon her of what she says she has endured. She says she is fearful of the father and afraid for the wellbeing of the children and if they spend time with him. She describes the impact of him seeing the children or communicating with them as a continuation of his coercive control of her.
The summary given by his Honour is supported by the mother’s affidavit filed 25 September 2024 where she says:
140.By primarily focusing on himself and with the family violence inflicted, as set out in this affidavit, [the father’s] behaviour adversely infected the day to day routine of the children and me. His assault on [X] over his requirements to watch his television show on 21 July 2023, is but one of many examples of his abuse. Others are of his threats or reality of him beating her with his belt and verbally abusing her when she was involved in soccer. [X] is now having therapeutic treatment for possible emotional social and educational impacts on her and [Y]. The girls have suffered trauma through witnessing, hearing and seeing the violence and abuse of me and more broadly, throughout their lives. They have suffered the loss of knowledge and contact with their siblings in [Country J].
141.Neither the children nor I presently know the extent of the behavioural, emotional, social, educational and developmental trauma caused to us by his behaviour. The children do not feel safe in his care or even his company.
142.I fear that [the father] will hurt or kill me and/or the children. I live with that fear all the time. [The father] is seen regularly near my place of work. He makes no overt threats to me, but his mere presence triggers my deep fears of him. I am always looking over my shoulder and I am similarly fearful for the well-being of our children.
The primary judge also noted:
47.There has been no testing of the mother’s assertions, so I am not in a position to second guess her assertions or reject them outright. If her evidence is accepted, there may be a logical and rational basis for her fears and for the conclusion of coercion or control. I cannot ignore the possibility of risk to the children’s welfare of her parental capacity being adversely affected by the children spending time with the father even on a supervised basis in circumstances where, on the father’s proposals, the mother is the undisputed primary carer and the person with sole parental responsibility.
As this interim hearing took place around three months after the Initiating Application was filed by the father, the primary judge had to do the best he could with the limited material available. At this early stage of the proceedings (where there was not yet expert evidence: see [49] and [54]) it was not possible for his Honour to form a view as to the specific impacts upon the mother’s parenting that flowed from the alleged violence on the evidence then available. However, there was evidence of allegations of significant violence which, if true, would clearly support the mother’s claim of “deep fears” which, on ordinary experience, create a real risk of significant impact upon a person’s capacity to function. That is, in deciding whether to allow time between the father and children, “the Court had to bear in mind the obvious effect the respondent’s conduct must have had upon their [primary carer]”: Irvine and Irvine (1995) FLC 92-624 at 82,273. On the material before his Honour, at this early stage of the proceedings, it was open to his Honour to reach these conclusions.
Ground 2 must be dismissed.
Grounds 3 and 7
It is convenient to address Grounds 3 and 7 together. The Amended Notice of Appeal (Exhibit A on the appeal hearing) contained only two subparagraphs of the original Ground 3:
3a.His Honour incorrectly determined that the children’s interests were to be determined by reference to what may be in their future interests, even if it is not in their present interests, using unidentified risk as the basis for determination (at [49]).
c.His Honour’s reasoning was not informed by evidence, did not follow the mandate in section 60CC(2)(c) Family Law Act about the children’s various needs, and did not identify or acknowledge any of the vicissitudes that attend decisions about distant, future matters (including the level of maturity or resilience of older children, changes in parenting ability and capacity in the future, and the relative importance of parenting figures to children at different stages of their childhoods).
…
7.Further again, his Honour did not take into account the developmental, psychological, emotional and cultural needs of the children, nor the capacity of the [father] and [mother] to each provide for those needs (s 60CC(2)(d)).
These grounds allege that the primary judge failed to have regard to the considerations in s 60CC(2)(c) of the Family Law Act 1975 (Cth), which refers to “the developmental, psychological, emotional and cultural needs of the child” because the primary judge failed to have regard to the “present” interests of the children.
Section 60CA of the Act does not limit the considerations in a parenting case to the “present” best interests of the child but requires “best interests” generally to be considered. An appropriate assessment of a child’s best interests requires consideration not only of the present but also the possibilities that the future holds, requiring the balancing of different aspects of the case. The primary judge considered these issues saying:
49.Each party proposes a stay of the proceedings pending determination of the criminal proceedings so that, on the basis of the father’s submission, the matter is unlikely to be revisited for another 12–18 months. The consequence of the way the parties have chosen to conduct the proceedings means there is no expert evidence as to the risk of harm to the children by a reintroduction of time with their father only to have the possibility of that time then suspended by a final order (as the mother seeks) or incarceration as opposed to the possible risk of harm to them by a continuation of the existing regime of no time. The children have not seen their father for five months and on balance I am satisfied (in combination with the possibility of risk to the mothers parenting capacity) where there is no expert evidence, that there is a lesser risk to their welfare when continuing the status quo as opposed to resuming time only for them to face the possibility of it then stopping again.
The father attempted to minimise the relevance of the risks in this case by likening them to the “vicissitudes of life”. The phrase “vicissitudes of life” is a literary way of describing the inevitable changes in fortune that the future holds for everyone. It is not an appropriate description of the relevant risks in this case which are not only significant and foreseeable but also risks from which the children can and ought to be protected.
The central issue in the interim proceeding was the risk to the children of the impact of violence by the father. The potential impact of the alleged violence was clearly central to the considerations pursuant to s 60CC(2)(d). The primary judge specifically considered this provision (at [43]) and also that it would be of benefit to the children to have a relationship with their father when weighing the matters relevant to the exercise of the discretion.
The father’s argument under these grounds cannot be accepted.
Ground 4
4.His Honour wrongly ruled that the [mother’s] claim about a risk to her parenting capacity was a form of family violence, as defined by [the Act] (at [46]–[47], [54]).
a.Orders by which children spend time with a parent are not a form of ‘family violence’ within the meaning of s 4AB(1) Family Law Act. They are not a form of violence, threat, or coercive or controlling behaviour.
b.His Honour was in error to include that claim in the assessment of whether an unacceptable risk of family violence existed (at [54]).
This ground mischaracterises what the primary judge said in the reasons. At [46], the primary judge identified the mother’s belief that the father seeing the children would be a “continuation of his coercive control of her.” The primary judge found that if the mother’s evidence is accepted “there may be a logical and rational basis for her fears and for the conclusion of coercion or control” (at [47]). The primary judge did not conclude that the mother’s subjective beliefs were sufficient for the definition of “coercive or controlling behaviour” in s 4AB of the Act (see Pickford & Pickford (2024) FLC 94-230); rather, that a conclusion that the father had engaged in “coercive or controlling” may be open to the court on the mother’s evidence of the past events.
The father’s argument conflates two different concepts: the first is the statutory definition of “coerces or controls” (s 4AB), and the second is how the experiences of the mother may affect her parenting capacity (Re Andrew (1996) FLC 92-692). The Court determines the suite of parenting orders made in a child’s best interests, which discretionary judgment is necessarily influenced by whether one parent has been the subject of coercive or controlling behaviour by the other and, even if objectively not, how the subjective belief in such behaviour committed by the alleged perpetrator might nonetheless impinge upon the parenting capacity of the alleged victim. The considerations relevant to determining a child’s best interests are not limited or constrained by the statutory definition of family violence in s 4AB. There was no error by the primary judge in this regard.
This ground cannot succeed.
Ground 5
5. His Honour incorrectly determined that a ‘friend’ supervisor was generally inappropriate in parenting cases (at [52], [54]).
a.The principle is that it is generally inappropriate for friends to be supervisors where there is a relevant risk of harm to the children, because friends are ‘not neutral’ and thus unable to respond protectively to that risk.
b.The principle is not – or alternatively should not be – that it is appropriate in all cases to discount or rule out an appropriate friend to act as a supervisor where the risk relates to the other parent’s parenting capacity and there is no direct risk of harm to the children (as per [47] of his Honour reasons).
c.Identification of a relevant risk to children is central to determining whether a friend supervisor is appropriate. The Court should not close off the possibility of supervision by a friend of an unconflicted, functional relationship between a parent and a child, when that relationship is not the subject matter of any real or imminent risk of family violence.
(Emphasis in the original)
The father proposed that a friend of his (with whom he currently shares a residence) be engaged to supervise time between him and the children (after seven professionally supervised occasions where he would spend time with the children). The primary judge correctly identified the guidance of the Full Court in B and B (1993) FLC 92-357 at 79,781 that:
… Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children's behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.
For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring. …
At [51]–[53], the primary judge analysed the evidence of the father’s friend in accordance with the guidance provide in B and B, saying:
51.The father’s evidence is that he seeks to move out of [his friend’s] home to an independent residence. His evidence does not indicate how supervision could be properly implemented either in his home or that of [his friend’s] when time under his proposal proceeds to overnight weekend time.
52.I am not satisfied that the supervisor proposed by the father ameliorates or mitigates, as counsel for the father submits, the possibility of a risk of harm to these young children. The [friend’s] affidavit does not reveal that he has any knowledge of the charges, or the broad sweep of allegations made by the mother. A mere statement in his affidavit that “I have been listed by choice as an acceptable person for bail in [the father’s] criminal proceedings”… is insufficient.
53.There is no evidence that the proposed supervisor is aware of what it is he is to be watching out for or aware of when he is supervising …
We do not accept the father’s argument that B and B establishes a “general principle”. The reasons in B and B identify important considerations (and the underlying basis for those consideration) in cases “where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring” (at 79,781). The primary judge did not “close off the possibility of supervision by a friend”. Rather, his Honour analysed the evidence as to the capacity of the proposed supervisor to meet the complex and nuanced obligations upon a supervisor in the circumstances of this case. It was open to the primary judge to conclude that he was “not satisfied … that supervision mitigates the unacceptable risk” and that “in the absence of expert evidence, the children’s best interests are met by a no time order” (at [54]).
This ground is therefore unsuccessful.
Ground 6
6.His Honour did not compare the evidence of a good co-parenting relationship, in the last twelve months of co-parenting, with the [mother’s] concern about the children interacting with the [father] (and it being a form of coercive control over her; at [46]–[47]).
a.Further, his Honour missed the significance of that evidence (despite passing reference to some of it at [21]); the chief significance was its inconsistency with the [mother's] concerns, and its recent timing.
In support of this ground, the father relies upon the evidence that the parties separated but remained living under the one roof and co-parenting from March 2023 until May 2024. The primary judge referred to this evidence, saying:
21.The father’s counsel in his oral submissions reiterated the historical nature of the mother’s allegations and that most of the mother’s allegations are directed towards his conduct to the mother. He also referred to various text messages attached to the father’s solicitor’s affidavit which it was said demonstrated a good co-parenting relationship and are inconsistent with a risk to the children.
The evidence of the events following separation is arguably inconsistent with the mother’s allegations against the father. However, the nature of significant family violence is such that the evidence is not necessarily inconsistent with the mother’s allegations but may reflect the extent to which the alleged conduct had impacted upon the mother. As the Full Court said in Amador & Amador (2009) 43 Fam LR 268:
81.The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted. Clearly if they do so it is evidence which may assist the court in determining an allegation.
The period of co-parenting and living under one roof whilst separated are not sufficient, in the context of this case, to show that the mother’s evidence should have been disregarded or given little or no weight. It is one circumstance that must be considered in light of the other circumstances of the relationship of the parties and the complex dynamics that may arise in cases involving family violence.
In substance, the father’s complaint under this ground is that the primary judge placed too much weight upon the evidence of the mother in light of the events of March 2023 to May 2024. This argument was carefully constructed by categorising the many past claims of violence as “historical”, so as to minimise their importance. The argument founders for three reasons: first, in this case there is evidence of violence following separation (placing X in a “choke hold” in July 2023, at [15]); secondly, the time that has passed since an event is but one factor in determining the risk of the behaviour recurring; and thirdly, a purely transactional approach to violence would ignore the reality that violence commonly causes long-term psychological impacts, even if the violence is not repeated.
The father has not established that the primary judge’s discretion was legally unreasonable in the sense discussed in House v The King.
CONCLUSION
As the father has not succeeded on any of the grounds of appeal, the appeal must be dismissed.
The father has been wholly unsuccessful on the appeal. The father did not seek to be heard against the orders for party and party costs if unsuccessful in the appeal. It is appropriate that the father pay the mother’s and Independent Children’s Lawyer’s costs of the appeal on a party and party basis. The costs sought by the mother ($21,491.61) and the Independent Children’s Lawyer ($4,875) are reasonable. It is appropriate to make lump sum costs orders in the circumstances of this case.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, McGuire and Riethmuller. Associate:
Dated: 3 July 2025
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