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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Ms Kristiansen appeals against the final parenting orders made by the primary judge in the Federal Circuit and Family Court of Australia (Division 1). The central issue was the allocation of parental responsibility and the determination of the children's living arrangements. The primary judge found that it was in the children's best interests for the father to have sole parental responsibility and for the children to primarily live with him. The mother contends that the primary judge did not properly consider evidence regarding the support services the children require, failed to consider the effect of her diagnoses on her capacity to parent, and discriminated against her by finding her less capable of parenting than the father.
The appeal court found that the primary judge provided the mother with procedural fairness by allowing her to present her case. The mother's contention that the primary judge discriminated against her because of her diagnoses was rejected. The primary judge appropriately considered all the evidence and made findings based on the children's best interests. The court found that the mother did not establish any procedural unfairness or error in the primary judge's determination that the father was a more capable parent.
The appeal court dismissed the mother's appeal and ordered her to pay the father's costs of $5,000 within 90 days. The final parenting orders made by the primary judge remain in place. The appeal court found no merit in the grounds of appeal and upheld the primary judge's determination that it was in the children's best interests for the father to have sole parental responsibility and for the children to primarily live with him.
Orders
Orders of the court
NAA 4 of 2025
BRC 11793 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
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.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
Judgment was delivered on 6 December 2024. THE JUDGMENT AT FIRST INSTANCECourt 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 responsibility2. 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 children4. 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 periods6.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 occasions8. 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.Changeover13.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 communication15.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 parents16.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.NDIS21.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 children22.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 medical25.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.Schooling31.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 timeOther restraints37. 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 orders40.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”.
Ratio Decidendi
Legal Principle Established
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.CONSIDERATIONGround 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.
