Kristiansen & Kristiansen
[2025] FedCFamC1A 129
•24 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kristiansen & Kristiansen [2025] FedCFamC1A 129
Appeal from: Kristiansen & Kristiansen [2024] FedCFamC1F 827 Appeal number: NAA 4 of 2025 File number: BRC 11793 of 2021 Judgment of: MCCLELLAND DCJ, JARRETT & KARI JJ Date of judgment: 24 July 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING – Procedural fairness – Appeal from final parenting orders giving the father sole parental responsibility – Where the appellant asserts that the primary judge discriminated against her – Where the appellant asserts that the family report writer was not qualified to give an opinion on autism spectrum disorder – Where the grounds of appeal do not establish appellable error – Appeal dismissed – Costs order made against the appellant. Legislation: Family Law Act 1975 (Cth) ss 43(1)(c), 60B, 60CA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 12.17, 13.23
Anti-Discrimination Act 1991 (Qld)
United Nations Convention on the Rights of Persons with Disabilities art 23
Cases cited: Australian and Overseas Telecommunications Corporation Ltd v McAuslan (1993) 47 FCR 492
Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Boulton & Boulton (2024) FLC 94-202; [2024] FedCFamC1A 132
CharterLaw Legal Pty Ltd [2025] NSWSC 297
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; [1992] HCA 64
Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42
Comar & Comar (2020) FLC 93-958; [2020] FamCAFC 99
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jeffreys v Sheer [2025] NSWCA 31
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20
Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Russell v Duke of Norfolk [1949] 1 All ER 109
Number of paragraphs: 95 Date of hearing: 2 May 2025 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Litigant in person Counsel for the Respondent: Ms Shepherd Solicitor for the Respondent: Franklin Family Law Counsel for the Independent Children's Lawyer: Ms Brereton Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
NAA 4 of 2025
BRC 11793 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS KRISTIANSEN
Appellant
AND: MR KRISTIANSEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ, JARRETT & KARI JJ
DATE OF ORDER:
24 JULY 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the costs of the respondent in the fixed sum of $5,000 within 90 days.
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 Kristiansen & Kristiansen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, JARRETT & KARI JJ:
This proceeding involves an appeal by the appellant mother Ms Kristiansen (“the mother”) from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 6 December 2024. The mother was the respondent to the Initiating Application filed by the father, Mr Kristiansen, who is the respondent in this appeal (“the father”).
The orders subject of the appeal concern the parenting arrangements for the parties’ two neurodiverse children, X and Y, who are 11 and nine years of age. The primary judge’s orders provide that the children live with the father, who was granted sole parental responsibility, and to spend substantial and significant time with the mother.
For reasons that follow, we have found no error in the orders made by the primary judge and we have dismissed the appeal.
BACKGROUND
At the time of the final hearing, the father was 49 years of age, and the mother was 42 years of age. The parties began cohabiting in June 2008 and married within two years. Their two children, X and Y, were born in 2013 and 2016.
After X’s birth, the mother was diagnosed with post-natal depression. She spent time in a mental health facility in Brisbane.
Both children have been diagnosed with autism spectrum disorder (“ASD”) and both have National Disability Insurance Scheme (“NDIS”) plans to assist them. In that respect, X was diagnosed at the age of four with ASD level 2 and Y has been diagnosed with both ASD and attention deficit hyperactivity disorder (“ADHD”).
The mother is also neurodivergent and has been diagnosed with ADHD, ASD and complex post-traumatic stress disorder (“complex PTSD”), arising from childhood abuse and experiences. She also has a NDIS plan to assist her in respect to these conditions.
The parties separated under one roof on 19 June 2020. After separation, the mother, leveraging her teaching experience, started a play centre business to support families with neurodiverse children.
The mother vacated the home after obtaining a protection order in July 2020.
Without the father’s consent, after separation, the mother enrolled the children in a new school.
In August 2020, the father began spending time with the children under the supervision of the maternal grandmother.
By November 2020, the parents agreed that the children spend unsupervised time with the father as follows: week 1, from after school Friday to Saturday at 4.00 pm; and week 2, from after school Friday to Sunday at 5.00 pm.
The father commenced property and parenting proceedings on 3 September 2021. The property matter was resolved in August 2022.
The primary judge relied heavily on two family reports provided by Mr E, a qualified social worker. The first report, dated 15 July 2022, recommended that the children spend five nights a fortnight with the father, from Thursday to Tuesday. The second report dated 17 March 2023, highlighted concerns about the mother’s lack of support for the children’s relationship with their father and recommended that the children live predominantly with the father.
The concerns regarding the mother’s lack of support for the children’s relationship with the father was in the context where the mother had made multiple reports to authorities alleging potential sexual harm to Y while in the father’s care. None of these led to full investigations with police declining to take further action.
In November 2022, the father applied to vary the parenting arrangements to equal time.
On 7 August 2023, the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1), with the notations of the orders citing potential concerns about the mother’s mental health, the veracity of domestic violence allegations, and the mother’s partner’s involvement in the family law dispute.
Trial directions were made for the final hearing to commence on 25 March 2024. At that time, orders were made for the father to submit to a hair follicle test to address the mother’s concerns about drug use. The test results were negative.
The case was heard on 25 March 2024 to 27 March 2024 and extended to 3 May 2024 and 20 May 2024.
By way of summary the respective positions of the parties as at the commencement of the hearing were as follows:
·The father and the Independent Children’s Lawyer (“the ICL”) proposed that the children live primarily with the father, who would have sole parental responsibility (at [7]–[9]).
·The ICL also sought orders that the children would spend time with the mother, at least each alternate weekend from Friday after school until Wednesday before school, with school holidays shared equally (at [8]).
·The mother proposed that she have sole parental responsibility and that the children live with her (at [10]–[11]). She sought orders that the father’s time with the children would be each alternate weekend from Friday after school until Monday or Tuesday if Monday is a public holiday.
·The mother agreed to an equal sharing of school holiday time (at [11]).
Judgment was delivered on 6 December 2024.
THE JUDGMENT AT FIRST INSTANCE
Court Orders and Findings
The orders made by the primary judge were broadly consistent with those proposed by the ICL which, in turn, reflected the recommendations of Mr E, the family report writer.
The mother has appealed all the orders made by the primary judge. Those orders set out comprehensive parenting arrangements, providing for the following:
THE COURT ORDERS ON A FINAL BASIS:
1. That all previous Orders and parenting plans be discharged.
Parental responsibility
2. That the father have sole parental responsibility for the major long term issues of the children [child X] born 2013 (“[X]”) and [child Y] born 2016 (“[Y]”) (collectively “the children”).
3. That subject to the terms of this Order, in the exercise of the father’s sole parental responsibility, except in the event of an emergency, the father must:
(a) give a minimum of seven (7) days’ notice to the mother of any decision he intends to make;
(b) invite the mother to provide her opinion in writing with regards to the decision within seven (7) days;
(c) consider any opinion provided by the mother in writing;
(d) inform the mother in writing within seven (7) days of the final decision being made by him.
Care arrangements for the children
4. That the children shall live with the father from the commencement of the 2025 school year.
5. That the children shall spend time with the mother as agreed between the parents in writing and failing agreement, during school term times, each alternate weekend from after school (or 2.45pm) on Friday until before school (or 8.45am) on Wednesday commencing the second Friday of the new school term.
School holiday periods
6.That unless otherwise agreed between the parents in writing and subject to any Order providing for time on special occasions, the children spend time with:
(a) the father for the first half of the Easter, June/July and September/October school holiday periods in all even numbered years and the second half of the Easter, June/July and September/October school holiday periods in all odd numbered years;
(b)the mother for the first half of the Easter, June/July and September/October school holiday periods in all odd numbered years and the second half of the Easter, June/July and September/October school holiday periods in all even numbered years; and
(c)the parents during the Christmas school holiday period on a week about basis, with changeover to occur after school (or 5.00pm) on a Friday, with the children to spend time with the father in weeks one (1), three (3) and five (5) of the holidays in all even numbered years and weeks two (2), four (4), and six (6) in all odd numbered years, and with the father at all other times.
7.That for the purpose of these Orders, school holiday time shall commence and conclude as follows:
(a)With respect to the first half of the school holidays, the period shall commence with the conclusion of school on the last day of the school term and shall conclude at 5.00pm on the day calculated to be half of the holidays;
(b)With respect to the second half of the school holidays, the period shall commence at 5.00pm on the day calculated to be half of the holidays and shall conclude at 9.00am on the day school term commences; and
(c)the school holidays shall be deemed to commence with the conclusion of school on the last day the school term and conclude at 9.00am on the day school term commences and the number of nights in the school holiday period is used to calculate one half of the holiday period and if there is an uneven number of nights then the mother shall retain the additional night; and
(d)the usual arrangements pursuant to Order 5 hereof are suspended for the duration of the children’s school holiday time.
Special occasions
8. That the children shall spend time with each parent for Easter as follows:
(a)In odd numbered years with the father from 9.00am on Good Friday until 5.00pm on Easter Sunday;
(b)In even numbered years with the mother from 9.00am on Good Friday until 5.00pm on Easter Sunday; and
(c)And otherwise in the care of the parent they would ordinarily be pending time with pursuant to these Orders.
9. That the children shall spend time with each parent for Christmas as follows:
(a)In odd numbered years with the father from 9.00am on Christmas Eve until 5.00pm on Boxing Day; and
(b)In even numbered years with the mother from 9.00am on Christmas Eve until 5.00pm on Boxing Day.
10.That on each of the children’s birthdays, the children shall spend time with the parent they would not otherwise be living or spending time with on that day:
(a)from the conclusion of school until 6.00pm, if the birthday falls on a school day; and
(b)from 12.00pm until 4.00pm if the birthday falls on a weekend, public holiday, or during a school holiday period.
11.That on Mother’s Day the children shall spend time with the mother from 5.00pm on the Saturday before Mother’s Day until before school or 9.00 am on the Monday after Mother’s Day.
12.That on Father’s Day the children shall spend time with the father from 5.00pm on Saturday before Father’s Day until before school or 9.00am on the Monday after Father’s Day.
Changeover
13.That unless otherwise agreed between the parents in writing, changeovers will occur:
(a)at the children’s schools when changeover is occurring before or after school; and
(b) at all other times at Home Co, [B Shopping Centre], [Suburb C].
14.That the mother be at liberty to send a nominee on her behalf to changeover provided such nominee is known to the children.
Electronic communication
15.That unless otherwise agreed in writing, the parent with whom the children are living at any given time shall facilitate telephone (or similar electronic communication) between the children and the other parent as follows:
(a) between 5.00pm and 5.30pm on Thursdays; and
(b) at any reasonable time that the children request.
Communication between the parents
16.That the parents shall communicate in relation to the children through the parenting App “Talking Parents” save for in the event of an emergency in which case the parents are to telephone the other parent as soon as reasonably practicable.
17.That the parents will share a calendar on the Talking Parents App and will input the children’s medical and educational appointments within twenty-four (24) hours of making any appointment.
18.That upon receiving any documents or correspondence from a teacher, medical, psychiatric, and/or allied health provider about a matter concerning either of the children, the father.
19.That upon receiving any documents or correspondence from a teacher, medical, psychiatric, and/or allied health provider about a matter concerning either of the children, the father or mother shall provide a copy of it to the other parent within forty-eight (48) hours unless the other parent was copied into the correspondence.
20.That each parent shall keep each other updated with their respective mobile telephone number, email and address details and inform the other within forty-eight (48) hours of any changes to same.
NDIS
21.That the parents shall do all acts and things necessary to enable the father to be appointed as the NDIS nominee for planning and managing the children’s plan funding, and to be the sole point of contact for any NDIS plans for each of the children
22.That unless otherwise agreed between the parents in writing, the children’s NDIS support coordinator will be [E Organisation] (“support coordinator”).
23.That the parents hereby request that the support coordinator consult with both parents in preparing any NDIS applications and/or applications for review.
24.That the parents be restrained from using “[D Organisation]” to provide support for the children.
Therapy and medical
25.That except in the event of an emergency, the parents will utilise the one (1) general medical practitioner for the children, with the father to nominate such general medical practitioner and inform the mother of their contact details within fourteen (14) days.
26.That the father is to keep the mother informed as to the names and contact details of the children’s treating health care professionals and shall advise her of any change to the same within forty-eight (48) hours.
27.That the mother is restrained from taking the children to any psychologist or other allied health professional who is not engaged by the father or the NDIS support coordinator under the children’s NDIS plan.
28.That if there is a serious medical issue or emergency, the parent with whom the children are in the care of at that time shall contact the other parent forthwith or as soon as reasonably practicable to advise of the following:
(a) The details of the medical issue or emergency;
(b)The details (including name, address and phone number) of where the children are or will be taken to such as the medical practice or hospital; and
(c) The details of the outcome of the medical issue or emergency.
29.That these Orders are intended to be authority for the children’s treating allied health professionals to provide both parents with information pertaining to the children at the requesting parent’s expense.
30.That both parents will follow directions given by the children’s therapists and doctors.
Schooling
31.That unless otherwise agreed between the parents in writing, the parents will facilitate the children completing this current academic year at their current schools.
32.That subject to any rules set by the children’s school and/or extra-curricular activity provider, either parent is at liberty to attend any school event, sporting or extra-curricular event or other social event of the children which would be usual for parents to attend notwithstanding it may occur within the time the children are living with the other parent.
33.That each parent shall keep the other updated as to the contact details of the children’s after school care providers (if any) and extra-curricular activity providers.
34.That each parent is at liberty to contact the children’s school and obtain any and all information, reports, newsletters, school photographs and other documents from the school at the requesting parent’s expense.
35.That the parents do all acts and things necessary to allow each of the parents to be named on the children’s school record as being the persons to be contacted in case of an emergency.
36.That each parent shall make reasonable efforts to facilitate the children attending regular/established health, social and extracurricular activities when the children spend time
Other restraints
37. That each parent is restrained from:
(a)discussing these proceedings with the children or in their presence or hearing, or allowing any other person to do so;
(b)making critical or derogatory remarks about the other parent or members of their family to or in the presence or within the hearing of the children or allowing any other person to do so;
(c)making derogatory remarks about the other parent to the children’s schools or service providers including allied health professionals and medical practitioners; and
(d) physically discipling the children.
38.That the mother be restrained from allowing or encouraging the children to call any person other than the father, “dad” or their “second daddy”.
39.That the parents be restrained from recording the children for the purposes of gathering evidence.
Other orders
40.That leave be granted to the parents to provide a copy of these Orders, if required, to:
(a) the children’s schools;
(b)the children’s service providers/allied health professionals/medical practitioners/specialists; and
(c) NDIS and the support coordinator and plan manager.
41.That each parent shall do all acts and things reasonably required by the other including the signing and execution of all necessary documents to give effect to the provisions of this order within fourteen (14) days of being requested to do so.
42.That if either parent refuses to or neglects to sign or execute or return a document within fourteen (14) days of the request to do so, then the Registrar of the Brisbane Registry of this Court is hereby appointed under s 106A of the Family Law Act 1975 to sign or execute such document on behalf of that parent upon lodgement of such document and filing of an affidavit on behalf of the requesting parent as to the said neglect or refusal.
IT IS NOTED:
A.That the interim arrangements in place for the 2024 school holidays (being week about) shall continue to apply until the commencement of the 2025 school year.
B.That pursuant to s 65DA(2) 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 the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
While appealing all orders, the mother only seeks to vary Orders 1–5, 18, 20–22, 24–27, and 39 of the orders made on 6 December 2024.
Orders 1–5 are the orders which allocate parental responsibility to the father and provide for the children to live with the father and spend five days per fortnight with the mother.
The mother’s challenge to Order 18 appears to relate to a typographical error. That order provides:
That upon receiving any documents or correspondence from a teacher, medical, psychiatric, and/or allied health provider about a matter concerning either of the children, the father.
By reference to Order 18, it appears that order should include the words “… or mother shall provide a copy of it to the other parent within forty-eight (48) hours unless the other parent was copied into the correspondence”.
Orders 20–22 and Orders 24–27 relate, firstly, to the parties keeping each other updated with any changes to their contact details and, secondly, the father assuming primary responsibility in respect to the children’s NDIS plans.
It is unclear why the mother challenges Order 39 which provides “[t]hat the parents be restrained from recording the children for the purposes of gathering evidence”.
If not an oversight or typographical error, on the part of the mother, it is a very concerning position for the mother to adopt. This is particularly so considering the primary judge’s statement (at [77]) that he viewed a recording of the mother and the children, produced by her:
… was a blatant evidence-gathering exercise by the mother that does her little credit. She can be seen to be coaching the children to express a view that was supportive and aligned with her own views. In doing so in such a way, she was, on my assessment, acting inappropriately and contrary to the children’s best interests.
The focus during the hearing of the appeal was in respect to those orders providing for exercise of parental responsibility, including in respect the children’s NDIS plans, and the live with and spend time orders.
PRIMARY JUDGE’S FINDINGS IN RESPECT TO SECTION 60CC(2)–(3) OF THE FAMILY LAW ACT
The primary judge recorded that, according to occupational therapist Ms L, the mother’s challenges arising from her neurodivergence, together with ADHD, ASD and complex PTSD, results in the mother experiencing high levels of fatigue, low energy levels, reduced motivation, chronic depression, high levels of anxiety, social isolation, loneliness, difficulties with social communication, poor executive functioning, frequent disassociation, difficulties with auditory processing, and differences in sensory processing (at [50]).
While the primary judge acknowledged the mother’s dedication and devotion to the children, his Honour found that the mother’s capacity to independently meet the children’s needs was compromised without the support she receives through the NDIS. In that respect, the primary judge found that the mother’s neurodivergence contributed to disorganisation, including hoarding behaviours and difficulty maintaining routines and appointments. The primary judge’s findings in respect to the mother’s parenting capacity were summarised at [74], as follows:
I am concerned that the mother’s reliance upon a number of external agencies has more to do with her lack of capacity because of her own needs to consistently meet the children’s needs without such support, a concern that I find does not exist in the father’s household, who I am satisfied will modify his work situation to meet the needs of the children …
The primary judge also found that the mother’s belief system and perceptions led to ongoing conflict and the undermining of the children’s relationship with their father.
This was evidenced by the mother initially continuing to press what was found to be unmeritorious allegations of sexual abuse. By the time of the trial, no such assertion was made by the mother’s counsel, nor was any such finding sought in the final submissions. The primary judge noted that there was no probative evidence to support the allegations of inappropriate behaviour by the father of a sexual nature and expressed concern that the mother allowed such a serious allegation to hang over the father’s head without any substantial evidence. The primary judge found that the father did not pose an unacceptable risk to the children in any way (at [47]).
Additionally, the primary judge found that the mother lacked the ability to co-parent effectively. This included findings that the mother struggled to give proper credit to the father’s efforts and was resistant to shared decision-making. This resulted in the mother having a strong desire to control the children’s treatment and parenting decisions, often to the exclusion of the father (at [57]).
As a result of those findings, the primary judge made orders for the father to have sole parental responsibility but subject to an obligation of consultation with the mother. The primary judge also made orders for the children to live primarily with the father and to spend five nights a fortnight with the mother as well as half of the school holidays.
For reasons which we explain, those findings were reasonably open to the primary judge.
GROUNDS OF APPEAL
The grounds of appeal are:
1. The learned trial judge failed to afford the Respondent procedural fairness by discriminating against the Respondent’s diagnoses, which had a detrimental impact on the fairness of the case;
2.The trial judge failed to properly consider the evidence in relation to support workers’ engaged by the Respondent, and by doing so made a wrong determination of fact;
3. The trial judge failed to afford the Respondent procedural fairness by failing to recognise that the family report writer was insufficiently qualified to determine matters concerning Autism Spectrum Disorder.
PRINCIPLES REGARDING APPELLATE INTERVENTION
As this is an appeal from a discretionary judgment, it is necessary for the mother to establish grounds that fall within the principles identified by the High Court of Australia in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”). That is, appellate intervention may be required where the primary judge:
(1)Acts upon a wrong principle; or
(2)Allows extraneous or irrelevant matters to guide or affect the decision; or
(3)Mistakes the facts; or
(4)Fails to take into account a material consideration; or
(5)Makes a decision that, upon the particular facts, is unreasonable or plainly unjust.
In considering those questions there is a strong presumption that a primary judge’s decision is correct, and the onus rests on the appellant to show otherwise (Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627 and Boulton & Boulton (2024) FLC 94-202 at [19]–[20] and [22]).
The weight given to evidence in the exercise of a judicial discretion under the Family Law Act 1975 (Cth) (“the Act”) is a matter that is quintessentially for the primary judge. The fact that an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
Similarly, a finding of fact will not be disturbed unless those findings are demonstrated to be “glaringly improbably” or “contrary to compelling inferences” significant appellate restraint is required (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43] and Lee v Lee (2019) 266 CLR 129 at 148). It is not to the point that the appellate court may not have made the same findings (Edwards v Noble (1971) 125 CLR 296 at 304).
For reasons which we now explain, the mother has failed to satisfy us as to the existence of any appellable error in respect to the orders made by the primary judge.
CONSIDERATION
Ground 1: Failure to afford the mother procedural fairness by discriminating against her diagnoses
Procedural fairness refers to the obligation decisionmakers have to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case: Kioa v West (1985) 159 CLR 550 at 563 (Gibbs CJ), 585 (Mason J), 594 (Wilson J) and 612–613 (Brennan J). An essential requirement of procedural fairness is that the person concerned has a reasonable opportunity to present their case rather than that they actually do so. The focus is on procedure not outcome: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 (Tucker LJ); see also Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590–591 (Northrop, Miles and French JJ).
The primary judge gave every opportunity to the mother to present her case consistent with the principles of procedural fairness. The fact that the mother now expresses concern as to how her case was presented by her legal representatives does not justify the proceedings being characterised as lacking procedural fairness.
While framed as a procedural fairness challenge, the substance of this ground appears to be twofold: firstly, the mother argues the findings that the father was a more capable parent were not reasonably open in circumstances where, with assistance, the mother was a capable parent, and secondly, as a related issue, the primary judge discriminated against the mother based on her neurodivergence and need for external support.
In respect to the first aspect, the mother contends that the primary judge was in error in finding that the father was a more capable parent in circumstances where (mother’s Summary of Argument filed 26 March 2025, paragraphs 16(a)–(d) and 19):
·At [24] of the reasons, the primary judge commends the mother for starting a play centre business to support neurodiverse families, leveraging her teaching experience.
·At [75] of the reasons, the primary judge acknowledges the mother’s extensive experience with therapists and her consistent efforts to act in the children’s best interests.
·At [79] of the reasons, the primary judge describes the mother as being defined by her parenting role, emphasising her devotion despite personal challenges.
·At [90] of the reasons, the primary judge acknowledges the mother’s long-standing dedication to meeting her children’s needs.
·At [51] of the reasons, the primary judge stated that he is not critical of the mother seeking support and acknowledges her ability to manage numerous activities for her children.
Insofar as this ground challenges the finding by the primary judge that the father had superior parenting capacity, it is without merit. The primary judge’s reference to the mother’s parenting capacity and the efforts she made to support the special needs of the children was entirely appropriate. It shows proper consideration of the totality of the evidence. In that context, the primary judge made it clear to the parties that he wished to hear from them regarding what would be the optimum parenting arrangements that were in the best interests of the children. Determination of that question did not require a finding that the mother was an unsuitable parent. In fact, the orders made by the primary judge provide for the mother to have considerable input in respect to the children’s ongoing medical treatment, practical support, and therapy. The orders also provide for the children to spend substantial and significant time with the mother.
Having referred to the mother’s devotion as a parent and the efforts she made, it was reasonably open to the primary judge to find that the father had greater capacity to provide for the children’s special needs. In that respect, the primary judge gave considerable weight to the opinion of the family report writer who had regard to substantial documentary evidence in respect to the impact of the mother’s conditions upon her. This included those noted at paragraph 40(c) of the father’s Summary of Argument filed 16 April 2025 as being:
i. Functional Capacity Assessment by [Ms L], Occupational Therapist dated 10 October 2023 (Exhibit 27, pp14 - 36);
ii. Letter from [Ms L], Occupational Therapist to Appellant Mother’s GP [Dr A] dated 28 November 2023 (Exhibit 31);
iii. Biopsychosocial Assessment and Social Work Report by [Ms P], Social Worker of [D Organisation] dated 5 December 202339 (Exhibit 27, pp 37 – 49); and
iv. Report by [Ms M], Social Worker dated 16 February 2024 (Exhibit 32).
(As per the original; footnotes omitted)
The mother’s neurodivergence and its impact was identified by the primary judge as a significant issue to be considered by him (Transcript 26 March 2024, p.209 lines 7–9). The mother acknowledged that the impact upon her daily functioning of that condition and other conditions were accurately described in those documents to which we have referred in the preceding paragraph (Transcript 26 March 2024, p.164 lines 32–35).
Having regard to the evidence as to the extent to which the mother’s daily functioning was impacted by those conditions, it was not discriminatory for the primary judge to determine that it is in the best interests of the children to live primarily with the father and for the father to exercise sole parental responsibly. This was in circumstances where the father was not reliant on external support (at [61(o)] and [74]) and where the primary judge found that the mother had failed to demonstrate capacity to collaboratively work with the father to address the children’s needs.
In respect to the alleged discrimination, the mother contends at paragraph 21 of her Summary of Argument:
The Anti-Discrimination Act 1991 (Qld) s 7(h) provides that discrimination is prohibited on the basis of impairment. Article 23 of the Convention on the Rights of Persons with Disabilities provides inter alia that ‘States parties shall take effective and appropriate measure to eliminate discrimination against persons with disabilities in all matters relating to… family, parenthood and relationships, on an equal basis with others…[and] [i]n no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.’
This contention is, with respect, misconceived. The focus of the Family Law Act 1975 (Cth) is on the rights of the child and not the rights of the individuals who are the child’s parents or carers. In that respect, the primary judge was under a statutory duty to make such orders as he considered to be in the “best interests of the child” (s 60CA of the Act). That duty, which is prescribed by federal legislation, is not negated, varied, or reduced by the operation of state anti-discrimination legislation including the Anti-Discrimination Act 1991 (Qld) (“the ADA”).
Moreover, legal proceedings do not fall within one of the categories of prohibited discrimination covered by the ADA as set out in ss 13–23.
The mother’s reliance upon article 23 of the United Nations Convention on the Rights of Persons with Disabilities is also misconceived. This is because legislation is necessary to render international obligations enforceable in a court (Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298). An obligation under an international treaty, that is not implemented by legislation, cannot confine the exercise of a statutory discretion such as that exercised by a judge of this Court (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 276).
It is the case that the existence of a treaty obligation alone – that is, without legislation implementing it in Australian law – allows a court to take an obligation, set out in a ratified treaty, into account to assist in resolving an ambiguity manifest in an Australian law (Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38). There is, however, no such ambiguity in respect to the Family Law Act1975 (Cth). The Act, at s 43(1)(c), provides that the Court, in the exercise of its jurisdiction, must have regard to the need to protect the rights of children and to promote their welfare.
The primary judge made orders that he considered to be in the child’s best interests, and which achieved that outcome, and there was no error in him doing so.
Accordingly, Ground 1 is without merit.
Ground 2: Failure to properly consider the evidence in relation to support workers engaged by the mother and by doing so made a wrong determination of fact
The mother’s argument in respect to this ground is summarised at paragraph 25 of her Summary of Argument, where she states:
… His Honour did not turn his mind to the possibility that the children would need to access their therapies at home, and did not discuss in any manner of depth, the therapies that the children have been recommended. His Honour concluded that it was the [m]other who required support services in the home, despite evidence to the contrary …
Specifically, the mother takes issue that the primary judge gave weight to the mother’s reliance on external support services at [51], [61(c)], [61(o)] and [74] of the reasons for judgment, rather than focussing on those services that were provided to meet the needs of the children.
In her oral submissions, the mother expanded upon that argument, explaining that her primary concern is that the primary judge, she contends, failed to recognise that most of the support services provided to her household were primarily in respect to her children’s needs and not her own.
The mother contends that the primary judge failed to consider her evidence, set out at Annexure “K-2” of her trial affidavit filed 7 March 2024, being a report from psychologist, Ms B from April 2023. That report states that, in the case of Y, the services she was recommended to receive included:
·A support worker for at least 10 hours per week to assist with daily living and community engagement.
·Fortnightly psychology sessions.
·Weekly occupational therapy sessions.
·Fortnightly speech therapy sessions.
·Weekly movement therapies.
The mother further contends that the primary judge failed to consider her evidence set out at Annexure “K-1” of her affidavit filed 7 March 2024, being a report from paediatrician, Ms C on 6 December 2022. That report states that, in the case of X, the services he was recommended to receive included:
·Co-regulation support from a trusted adult.
·Speech and language therapy.
·Psychological therapies to address emotional and behavioural regulation, as well as executive function challenges.
·Weekly occupational therapy sessions.
The mother contends that the primary judge’s failure to consider the evidence regarding the level of assistance provided to the children, as distinct to what she required, constitutes a miscarriage of discretion. In that respect, the mother refers to Comar & Comar (2020) FLC 93-958 at [26] and House v The King which highlight the necessity of decisionmakers, exercising judicial discretion, to consider all material matters.
Insofar as the mother argues that the primary judge was in error in finding that it was the mother who required in-home support services, there is substance in the submissions of both counsel for the father and the ICL that the mother’s submissions are ambiguous and fail to clearly identify the alleged error of fact as required by r 13.23(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). It is submitted, by them, that this procedural failure alone warrants dismissal of the appeal.
Even leaving determination of that issue aside, Ground 2 is without merit for the following reasons.
The primary judge acknowledged the children’s substantial therapy needs and the importance of meeting those needs within the parenting arrangements. Indeed, the primary judge specifically made it clear to all parties that his primary focus was upon achieving “optimal arrangements for the children” having regard to their special needs and which parent was best equipped to provide for those needs (Transcript 27 March 2024, p.237 lines 11–29).
In undertaking that task, the primary judge extensively considered the children’s needs, including the extent to which they required in-home support as outlined in their respective NDIS plans (at [74]).
The findings made by the primary judge in respect to the mother’s need for extensive external support to function and care for the children, as well as the challenges she faces due to her neurodivergent condition and the impact on her parenting ability, were reasonably open on the evidence presented during the trial. The relevant findings are summarised at [50] of the reasons for judgment, as follows:
(a) the mother has been diagnosed with ADHD, ASD, Complex PTSD (arising from childhood abuse and experiences), medical conditions, Anxiety and Depression;
(b)in November 2023, occupational therapist [Ms L] identified the following impairments of the mother because of psychological disability including:
(i) high levels of fatigue, low energy levels and reduced motivation;
(ii) chronically depressed and high levels of anxiety;
(iii) social isolation and loneliness;
(iv) difficulties with social communication;
(v)poor executive functioning including time management, organisation, working memory, initiation, problem solving, multitasking and diverted attention, concentration and impulsivity;
(vi) frequent disassociation and “losing time” in response to emotional distress;
(vii)difficulties with auditory processing and high sensitivity to auditory input; and
(viii)differences in sensory processing which impact on day-to-day functioning;
(c)the mother has an inability to work (she is a very experienced and skilled educator) such that she has claimed income protection payments through her Super Fund entitlements;
(d)she admits (Exhibit 50) she is struggling to maintain routines, organisation appointments and being able to connect at a “healthy family level” and has no family support. Her disorganisation has manifested in hoarding and a need to get assistance to “de clutter” her home, as an example;
(e)in early 2024, the mother had a NDIS plan approved (to early 2027) that includes Core Support Funding of approximately $46,000 per annum to support, assist or supervise the mother “with your personal tasks during day-to-day life that enables you to live as independently as possible”. Total Core Supports have been approved for the mother at approximately $169,000 over the three-year plan period; and
(f)the “shift notes” (Exhibit 71) for the period of May 2023 until March 2024 reveal the daily level of support the mother’s household receives and it involves tasks as collecting the children from and to school; helping the children with homework; domestic assistance and meal preparation.
Additionally, at [53], the primary judge referred to case notes identifying the level of assistance provided to the mother.
In summary, in respect to this ground of appeal, the primary judge carefully evaluated the evidence regarding the support workers engaged by the mother for herself and for the children. The judge also considered the children's documented need for support services at home, including daily living assistance, therapy sessions, and emotional support.
Accordingly, Ground 2 is without merit.
Ground 3: Failing to recognise that the family report writer was insufficiently qualified to determine matters concerning ASD
In respect to this ground, the mother contends that the family report writer gave evidence beyond his area of expertise contrary to the principles discussed in Clark v Ryan (1960) 103 CLR 486 and Australian and Overseas Telecommunications Corporation Ltd v McAuslan (1993) 47 FCR 492.
The mother contends that the family report writer’s qualifications as a social worker did not equip him to provide expert evidence in respect to neurodiversity or autism in circumstances where that was relevant to both the evaluation of the children’s needs and the capacity of the mother to provide for those needs. The mother notes that the family report writer conceded, during cross examination, that he had only a “layman’s understanding” of neurodivergence (mother’s Summary of Argument filed 26 March 2025, paragraphs 27–28).
In those circumstances the mother contends that the primary judge erred in giving significant weight the family report writer (at [62]).
For the following reasons, this ground of appeal is also without merit.
A party is bound by the way they conducted their case at first instance (Metwally v University of Wollongong (1985) 60 ALR 68 at 71 and Jeffreys v Sheer [2025] NSWCA 31 at [66]). At the hearing at first instance the mother had the opportunity to challenge the qualifications of the family report writer and she failed to do so.
This was in circumstances where the family report writer was jointly instructed by both parties on two occasions, with no objections raised by the mother during his appointment. The role of the family report writer was limited to assessing parenting arrangements, not providing medical or psychological diagnoses of the children or the mother.
The mother was in possession of the reports of the family report writer prior to the hearing and the mother did not apply to present independent evidence to counter the opinions expressed by the family report writer in respect to the mother’s parenting capacity or in respect to her preparedness to support the children’s relationship with the father.
The primary judge set out why he gave weight to evidence provided by the family report writer (at [61]) including noting that the family report writer gave attention to all relevant evidence and appropriately weighed it in his reports. This included reviewing the mother’s affidavits and additional materials, such as a functional capacity assessment, a biopsychosocial assessment, and reports from a psychiatrist concerning the mother. The family report writer was also subject to extensive cross examination particularly regarding his methodology and his conclusions.
Having considered the evidence provided by the family report writer, in the context of the evidence considered by the primary judge in respect to the mother’s neurodiversity and the level of assistance that she required, it was reasonably open for the primary judge to give significant weight to the opinions expressed by the family report writer.
In that respect, the primary judge noted that the family report writer was “an experienced social worker and report writer” who had interviewed the family and observed the children with the parents in May 2022 and subsequently on 17 January 2023 (at [31] and [33]).
The primary judge noted the fact that, in addition to those interviews and material that he had available for the preparation of his two reports, the family report writer had received the affidavits of the parties and the subpoenaed material. The primary judge noted that the additional evidence, to which the family report writer had access, did not result in the family report writer changing his recommendations or opinions (at [61(b)]).
Relevantly, the primary judge also gave weight to the views of the family report writer that the mother lacked the ability to support the children’s relationship with the father and the likelihood that, during the children’s time with the mother, they would be exposed to the mother’s negative narrative about the father at a time in their lives where they lacked the ability to “reality test their situation” (at [61(i)]). The risk identified as being the potential to diminish the “children’s confidence and trust in the father’s role as a parent” (at [61(i)]). That opinion was based on a broader assessment of the mother’s conduct and not simply reports concerning the impact of her neurodiversity and autism.
The primary judge was also entitled to give weight to the family report writer’s comparative assessment of the father who the family report writer opined would be a good role model for the children and, in giving weight to the opinion of the family report writer, the primary judge found the father to be well-functioning and a parent who cared about and loved the children (at [61(f)]).
For these reasons, Ground 3 is also without merit.
DISPOSITION
In circumstances where we have found all grounds of appeal to be without merit, the appeal must be dismissed.
In circumstances where the mother has identified a technical error in the wording of Order 18 of the final orders, that is unrelated to her grounds of appeal, that matter should be raised with the primary judge for correction pursuant to r 10.13 of the Rules.
COSTS
The ICL does not seek an order for costs. However, in circumstances where it has been found that the appeal is without merit, the father seeks an order for costs on an indemnity basis.
Ordinarily, having regard to s 117(2A)(e) of the Act, an appellant who has been wholly unsuccessful, in a case that is found to be unmeritorious, will be required to meet the costs of the respondent. We are satisfied that should be the order in this case.
We are not, however, satisfied, that the circumstances of this case fall within the “exceptional” category of cases where indemnity costs should be ordered: Kohan and Kohan (1993) FLC 92-340 at 79,614; D & D (Costs) (No 2) (2010) FLC 93-435 at [26]–[28] and Phillips & Hansford (2020) FLC 93-941. As a general rule, the Court is reluctant to order indemnity costs against an unrepresented litigant: CharterLaw Legal Pty Ltd [2025] NSWSC 297 at [24]. We are not satisfied that the circumstances of this case justify departure from that general principle.
Rule 12.17(1)(a) of the Rules permits the Court to order costs in a specific amount. The power to do so is to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”: Graham & Squibb (2019) FLC 93-892 at [92] quoting Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120.
In exercising our discretion in this matter, pursuant to s 117(2A)(g) of the Act, we have had regard to the findings made by the primary judge in respect to the impact of the mother’s neurodivergence and autism and the challenges that those conditions present for her. Those challenges were not disputed by the father or the ICL. Having regard to those challenges and the Schedule of Costs provided by the father, we consider it is just to require the mother to pay the father’s costs in the sum of $5,000 within 90 days of these orders.
ORDERS
The appeal is dismissed and the mother is to pay the father’s cost of the appeal in the fixed sum of $5,000 within 90 days.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices McClelland, Jarrett & Kari. Associate:
Dated: 24 July 2025
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