Lishman & Ester (No 3)
[2025] FedCFamC2F 542
•1 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lishman & Ester (No 3) [2025] FedCFamC2F 542
File number: SYC 1736 of 2022 Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND Date of judgment: 1 May 2025 Catchwords: FAMILY LAW – PARENTING – Where the parties agree that the children should live with the mother and that the mother be granted sole decision-making responsibility – Where the mother seeks a positive order that the children have no contact with the father – Where the father resides in Country B – Where the father did not return from Country B to participate in these proceedings – Where the father has no immediate plans to return to Australia – Where the trial proceeded in the absence of the father’s affidavit – Where the Court accepts the mother’s evidence in full – Best interests considerations – Where the father failed to complete a men’s behavioural change course – Where the father is in arrears of spousal maintenance payments – Where the father has engaged in family violence, including coercive and controlling conduct – Where the Court is cautious in creating a parenting regime underpinned by indefinite supervision – Where it is not appropriate for the Court to make a positive order that the children either spend time or communicate with the father – Orders made for the children to live with the mother – Sole decision-making granted to the mother – Costs of the Independent Children’s Lawyer to be shared by the mother and father equally. Legislation: Family Law Act 1975 (Cth) ss 4, 43, 60B, 60CA, 60CC, 61D, 102NA Cases cited: Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Kellerman & Kellerman [2024] FedCFamC1A 126
Khatri & Khatri (2024) FLC 94-207; [2024] FedCFamC1A 152
Legal Aid ACT & Westwell (2021) FLC 94-013; [2021] FamCAFC 50
Lishman & Ester [2023] FedCFamC2F 1433
Lishman & Ester (No 2) [2024] FedCFamC2F 1673
Nardini & Legal Aid NSW [2019] FamCA 340
Saso v Saso (2023) 66 Fam LR 571; [2023] FedCFamC1A 65
Slater v Light (2013) 48 Fam LR 573; [2013] FamCAFC 4
Vandale & Cino [2024] FedCFamC1F 876
Re H-N (Children) (Allegations of Domestic Abuse) [2022] 1 WLR 2681
Re W (Children) [2012] EWCA Civ 528
Division: Division 2 Family Law Number of paragraphs: 96 Date of hearing: 26–28 November 2024 Place: Sydney Counsel for the Applicant: Mr O’Brien Solicitor for the Applicant: Marsdens Law Group Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Supreme Justice Lawyers Counsel for the Independent Children’s Lawyer: Ms Yu Solicitor for the Independent Children’s Lawyer: Hillcrest Family Lawyers Pty Ltd ORDERS
SYC 1736 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LISHMAN
Applicant
AND: MR ESTER
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:
1 MAY 2025
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
Decision-Making and Residence
2.The mother has sole decision-making powers in relation to long-term issues for X born in 2013, Y born in 2014 and Z born in 2021 (“the children”).
3.The children live with the mother.
Passports
4.Pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the mother has sole authority to apply for the issue and renewal of the children’s Australian passports.
5.Pursuant to section 65Y of the Family Law Act 1975 (Cth), the children are permitted to travel outside of the Commonwealth of Australia with the mother, without the father’s consent.
6.Upon issue of an Australian passport to the children, the passport shall ordinarily be retained by the mother.
Costs
7.The parties are to pay the costs of the Independent Children’s Lawyer by each paying the sum of $5,497.32 within 90 days of the date of these orders.
8.The mother has liberty to apply in respect to the question of costs in the event of such an application being filed within 14 days of the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ester & Lishman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
This judgment concerns three children: X, born in 2013; Y, born in 2014; and Z, born in 2021 (collectively, “the children”). The applicant, Ms Lishman, is the mother. She lives in Australia with the children. The respondent, Mr Ester, is the father. He lives in Country B.
The core issue in these proceedings is whether the father should be permitted to contact the children, and if it is safe for him to do so. Consistent with the recommendations of the Independent Children’s Lawyer (“the ICL”), I have made parenting orders that the children continue living with the mother and that she be granted sole decision-making responsibility. I will not, however, make a positive order prohibiting the children from spending time or communicating with their father. My written reasons will explain why I have preferred the submission of the ICL in that respect.
THE PARTIES
The mother was born in Country B in 1988 and is currently 37 years of age. The father was born in Country B in 1981 and is currently 43 years of age.
The parties’ families arranged for them to be married and the ceremony was held in 2010 in Country B. The parties emigrated to Australia in 2016 after living in Country C for four years. They had three children during the relationship who are now 3, 10 and 12 years of age.
In late 2021, the father travelled to Country B to visit his family. He returned in early 2022.
The parties separated on 18 February 2022, when the mother informed the father that she was going to Tasmania to visit her sister. The mother left the children in the care of the father at that time. She returned from Tasmania around a month later. Upon her return, the mother received an email from the father’s legal representative advising her not to return to the family home or to contact the father. Subsequently, the mother filed an urgent application for the children to be returned to her care.
The parties’ divorce took effect in mid-2023 (Order 6 of the orders dated 29 June 2023).
The mother is currently completing post-graduate studies and works full-time, mostly from home, as a professional.
The father cares for his parents in Country B and has been there since late 2022. He works as a professional and plans to stay for the “foreseeable future” (Family Report of Ms D dated 8 April 2024, paragraph 10). The children have not seen or communicated with him since late 2022. The father told the Family Report Writer that he will continue to reside in Country B for at least another year or two and that his return is dependent on his financial circumstances.
LITIGATION HISTORY
On 17 March 2022, the mother initiated these proceedings seeking both parenting and property orders. Noting that the property aspect of this case was resolved by consent – with terms of settlement made on the last day of the trial – this judgment focuses solely on the parenting arrangements for the children.
On 7 April 2022, consent orders were made on an interim basis providing that the children would live with the father and spend time with the mother on 10 April 2022 and 13 April 2022. Those Orders were effectively discharged when the matter proceeded to an interim hearing on 26 April 2022.
On 26 April 2022, interim orders were made that the children would live with the mother and spend time with the father. The father was also directed to complete a men’s behavioural change program and to pay the mother $660 per week in spousal maintenance. The mother contends that he has been in arrears in respect to spousal maintenance since September 2022 and that the father is also in arrears of child support in the sum of $41,300.
The parties first appeared before me on 23 June 2023 for a Compliance and Readiness Hearing. In circumstances where the father had disengaged from the proceedings following his decision to relocate to Country B, I listed the parenting aspect of the case for a one day final hearing commencing on 18 October 2023. I made trial directions for that to occur. Orders were also made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) in light of allegations of family violence raised by the mother.
On 10 October 2023, at a further mention before me, the father’s legal representative indicated that the father wished to continue to prosecute the orders that he was seeking. I determined that, in those circumstances, the one day allocated would be insufficient for the matter to be heard and determined. Accordingly, on that day, I made orders:
(a)Vacating the final hearing listed for 18 October 2023, and setting the matter down for a four day final hearing commencing on 1 July 2024.
(b)Suspending the interim orders made on 26 April 2022 until the directions hearing on 7 November 2023.
(c)The father was directed to file an affidavit by 5 November 2023 addressing the following four issues:
(i)Confirming whether he had returned to live in Australia;
(ii)His intention to permanently reside in Australia;
(iii)His current arrangements as at 5 November 2023; and
(iv)What means of support he has to support the children in the event that he continues to live in Australia, including at times when the children are spending time with him.
On 1 November 2023, the father filed a Request to Attend by Electronic Communication which attached a medical certificate dated 10 October 2023 (which was dated the same day that the matter was last before the Court) indicating that he had an injury which precluded him from travelling from Country B to Australia.
At the directions hearing on 7 November 2023, I delivered ex-tempore reasons for judgment in circumstances where the father had not filed an affidavit as directed on 10 October 2023: Lishman & Ester [2023] FedCFamC2F 1433. Orders were subsequently made on that day confirming the final hearing commencing 1 July 2024 and suspending all existing parenting orders until the father returned to Australia and an Application in a Proceeding was filed seeking recommencement of time with the children. I did, however, determine that it would be appropriate for Order 21 of the orders made on 26 April 2022 to continue to apply. That order provided:
Both parties will do all acts and things to facilitate the children communicating with the other parent when the children are in their care by telephone/Skype/Facetime or other electronic communication device/App as the children may reasonably request.
The question of costs was also reserved and, in that respect, I cited the decision of Legal Aid ACT & Westwell (2021) FLC 94-013 at [40]–[42], where it was discussed that a party can be required to pay the costs of other parties to the proceedings despite having legal representation pursuant to the s 102NA Family Violence and Cross-Examination Scheme.
On 28 May 2024, the father filed a request to attend the final hearing on 1 July 2024 electronically. In support of this request, the father stated that he “lives overseas and is not able to travel to Australia due to his new full-time job and high travel costs”.
By way of orders made on 29 May 2024, the matter was listed for an interim hearing before me on 3 June 2024 to determine whether leave should be granted for the father to appear at the final hearing electronically.
On 3 June 2024, the final hearing dates were, again, vacated. I made orders setting the matter down for a four day final hearing commencing on 25 November 2024. Significantly, the following notations were also recorded:
THE COURT NOTES THAT:
A.In the event of a party failing to file evidentiary material in accordance with the timetable provided in these Orders, the matter may proceed on the basis of evidentiary material filed by the other party.
B.In the event a party does not appear in person at the final hearing, the case may be heard and determined in the absence of that party.
On 13 November 2025, the father filed an Application in a Proceeding seeking leave to appear at the final hearing electronically. That application was listed for interim hearing before me on 21 November 2024.
I refused to grant leave for reasons set out in my ex-tempore judgment, Lishman & Ester (No 2) [2024] FedCFamC2F 1673 at [10], which included:
In circumstances where this matter has previously been adjourned, and where it was made clear in the orders dated 3 June 2024, that the matter would proceed in the absence of a party, and where the father’s Application in a Proceeding was not made within 28 days as required by r 15.16, I am not satisfied that the final hearing should be adjourned.
In order to allow the father to make appropriate travel arrangements to return to Australia, I indicated that the hearing would proceed one day late. In my judgment, I also cautioned that if the father did not appear in person, the following consequences would occur:
… in the event the father does not attend, in person, at the commencement of the hearing at 10.00 am on Tuesday 26 November 2024, the case will proceed in the absence of the primary evidence, being, an affidavit of the father.
Counsel for the father will, however, be permitted to appear and tender such documents as are admissible in the proceedings, having regard to the broader evidentiary permissions in respect to parenting proceedings contained in the Family Law Act 1975 (Cth). Counsel for the father will also be permitted to cross examine witnesses presented by the mother and to make such submissions as counsel deems fit.
(Lishman & Ester (No 2) [2024] FedCFamC2F 1673 at [11]–[12])
The father decided not to return to Australia for the final hearing despite the Court’s indulgence to commence a day later than scheduled. As foreshadowed in my ex tempore judgment, the trial proceeded in the absence of the father’s primary evidence. I did, however, grant leave for his counsel to cross-examine the mother. That decision was made to ensure procedural fairness was afforded to both parties (Saso v Saso (2023) 66 Fam LR 571 at [19] and [29]) and in circumstances where I was confident that I could mitigate the risks and manage the case appropriately despite counsel for the mother’s concerns.
PARTIES’ PROPOSALS
The orders sought by the mother are contained in her Further Amended Initiating Application filed 19 November 2024, as follows:
1. That all previous parenting Orders be discharged.
[Proposed Order 2 struck through]
3. That the mother has sole decision-making powers in relation to long-term issues for [X] born [in] 2013, [Y] born [in] 2014 and [Z] born [in] 2021 (“children”).
4. That the children live with the mother.
5. That the children spend no time with the father.
6. That the mother have the sole responsibility for giving consent and making arrangements for the issue and renewal of the children’s passport.
7. That subject to any other requirements of the Department of Foreign Affairs and Trade a passport be issued to the children [X] born [in] 2013, [Y] born [in] 2014 and [Z] born [in] 2021 to enable them to leave Australia and it’s territories notwithstanding that the consent of the father has not been obtained.
8. That upon issue of an Australian passport to the children, the passport shall ordinarily be retained by the mother.
(Underline per the original)
The orders sought by the father are contained in his Further Amended Response filed 8 November 2024. The orders sought by the father are provided hereunder:
Time with Children
1.The children, [X] born [in] 2013, [Y] born [in] 2014 and [Z] born [in] 2021 (“the children”) live with the Mother.
[Proposed Order 2 struck through]
3.The children shall spend time with the father as agreed between the parties in writing, and failing such an agreement as follows during the time when the father is staying or residing in Sydney:
i.The children shall spend time with the father each alternate weekend from after school Thursday to before school Monday.
ii.Changeovers shall occur at school or day care or otherwise as agreed or failing agreement, at Hungry Jacks [Suburb E].
iii.The parent not ordinarily spending time with the children on their birthday shall spend time with the children from after school until 6.00 pm, or from 12 noon to 6.00 pm if it is a non-school day
iv.Notwithstanding any other order, the children shall spend time with the mother on Mother’s Day from 9.00 am to 6.00 pm.
v.Notwithstanding any other order, the children shall spend time with the father on Father’s Day from 9.00 am to 6.00 pm.
4.Both parties shall ensure that the children attend their extra-curricular activities.
5. Pursuant to s68B each parent is restrained from:
i.Changing the children’s schooling without the written consent of the other party
ii.Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children or any other person; and
iii.Denigrating the other parent, or a member of that parent’s family, and in this respect, each parent shall immediately remove the children from the presence of any other person that does so.
iv.Discussing any aspect of these proceedings and any associated proceedings and these orders and any allegations made in these proceedings with the children; or
v.Showing any documents or photographs related to these proceedings and/or any associated proceedings directly or indirectly to the children including through any third party.
vi.Interrogating the children or either of them in relation to events and or conversations that have occurred in the home of the other parent.
6. During the time the children are with either parent, the parent shall:
i.Respect the privacy of the other parent and not question the children about the personal life of the other parent.
ii. Speak of the other parent and their family respectfully
iii. Not speak of adult issues with the children.
iv.Not denigrate or insult the other parent and their family in the presence or hearing of the children.
v.Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Video Calls with Children
[Proposed Order 7 struck through]
8.Both parties should do all acts and things to facilitate the children communicating with the other parent each Saturday for up to 30 minutes between 6:00 PM to 7:00 PM and each Tuesday for up to 30 minutes between 6:00 PM to 7:00 PM when the children are in their care by Mobile/Laptop/Skype/ WhatsApp or other electronic communication devices/Apps and at such other times as the children may request or desire.
9.In case either parent is travelling or residing overseas, other parent will facilitate video calls of the children with the other parent each Saturday for up to 30 minutes between 6:00 PM to 7:00 PM and each Tuesday for up to 30 minutes between 6:00 PM to 7:00 PM when the children are in their care by Mobile/Laptop/Skype/ WhatsApp or other electronic communication devices/Apps and at such other times as the children may request or desire
10.Each parent to facilitate a video call between children and other parent for up to 30 minutes between 6:00 PM to 7:00 PM on Children Birthdays, Fathers/Mother’s Day, Father/Mother’s Birthday and [religious] Days.
11.Each parent to facilitate a video call between children and other grandparents for up to 30 minutes between 2:00 PM to 3:00 PM every Sunday.
School Holidays
[Proposed Order 12 struck through]
13.Commencing from the school holidays that fall at the conclusion of Term 1 in 2025, and in addition to the time otherwise provided for in these Orders, [X], [Y] and [Z] shall spend time with the father when the Father is staying or residing in Sydney:
i.For a block period of 7 nights in the school holidays that commence at the conclusion of Term 1 in 2025 commencing from the last day of the school term.
ii. For a block period of 7 nights in the school holidays that commence at the conclusion of Term 2 in 2025 commencing from the last day of the school term.
iii. For a block period of 7 nights in the school holidays that commence at the conclusion of Term 3 in 2025 commencing from the last day of the school term.
iv. For a block period of 7 nights in the school holidays that commence at the conclusion of Term 4 in 2025 commencing from the last day of the school term.
v. Above schedule to be followed for every year from 2025 onwards, unless agreed otherwise by both parties in writing.
Communication regarding Children matters
14.The parties shall forthwith register for and commence communicating with one another via the application “MyFamilyWizard” in relation to matters relevant to the care and wellbeing of the children.
15.That each of the Father and Mother shall ensure that the other is kept informed of:
i.any medical problems or illnesses suffered by the children while in their care.
ii. any medication that has been prescribed for the children;
iii. any school or religious functions which the children are to attend.
iv.any medical practitioners that the children have received treatment from and
v.any change in children school, tuitions […] and residential address.
vi.any other matter relevant to the children’s care, welfare and development.
16.That in the event that the children are hospitalised or receiving medical attention, the party with whom has the children in their care, shall notify the other party as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital, and in any event within two (2) hours.
17.The father and Mother are to each provide to the other with any medication prescribed for the children whilst in their care, along with information as to how that medication is to be taken and each party is to ensure that medication is taken as prescribed.
18.That these Orders are authority for any medical practitioner, dentist, counsellor or other health professional who treats the children to provide information to the other party upon request by the other party, to the extent permitted by law.
19.The Father and Mother are each permitted to liaise directly with the children’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about the children’s progress; and these Orders are authority for the school, sporting bodies and/or other organisations to release such information as requested by the other parent to the extent permitted by law.
20.That these Orders are authority for the children’s school to provide to both the Father and Mother with copies of the children school reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
21.The parties may attend any school or extracurricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like.
22.To facilitate compliance with these orders, each of the parties are at liberty to provide a copy of these orders to the children’s school, tuition centres and medical practitioner or any other person concerned with the welfare and wellbeing of the children.
Children Passports and International Travel
23.Both Father and Mother have the equal joint responsibility for giving consent and making arrangements for the issue and renewal of the children's passport.
24.Neither of the parents can take children outside Australia, without written consent of the other parent.
25.Arrangements should be made by both parents for children to travel to [Country B] to meet and connect with their grandparents and extended paternal and maternal family members (Aunts, Uncles, Cousins) residing in [Country B] every 18 months till they turn 18 years old.
26. The children’s passports shall ordinarily be retained by the father.
27.Neither of the parents can renew children’s passports without written consent of both parents.
Restrain from Relocating the Residence of the Children
[Proposed Order 28 struck through]
29.That the parties be restrained from relocating the children's residence to another location, unless pursuant to a Court Order or written consent from both parents.
30.That the parties be restrained from relocating the children's school to another location, unless pursuant to a Court Order or written consent from both parents.
[Proposed Orders 31–50 struck through]
(Underline per the original)
In respect to the father’s proposed orders, counsel for the father indicated that proposed Order 1, that the children live with the mother, is uncontroversial and advised the court that proposed Orders 3, 4, 6, 9, 17, 25 and 26 are not pressed.
The ICL largely supports the orders sought by the mother. They seek that the Court make orders as set out in their Case Outline filed 23 November 2024:
1. That all previous parenting orders be discharged.
2. That the Mother have sole decision-making responsibility for all long term decisions for the children [X] born [in] 2013, [Y] born [in] 2014 and [Z] born [in] 2021 (the children).
3. That the children live with the Mother.
4. Pursuant to s.11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the Mother has sole authority to apply for the issue and renewal of the children’s Australian passports.
5. Pursuant to s.65Y of the Family Law Act 1975 (Cth) the children are permitting to travel outside of the Commonwealth of Australia with the Mother, without the Father’s consent.
6. Pursuant to s.68B of the Family Law Act 1975 (Cth) the Father, including his servants or agents, are restrained from contacting the Mother or the children otherwise than in accordance with these orders.
7. Pursuant to s.68B of the Family Law Act 1975 (Cth) each parent is restrained from:
a. Using physical discipline on the children;
b. Discussing these proceedings in the presence or hearing of the children and shall ensure that no other person does so either; and
c. Denigrating the other parent or their family members in the presence or hearing of the children and shall ensure that no other person does so either.
8. Each parent is to pay to Legal Aid NSW half of the costs of the Independent Children’s Lawyer, unless otherwise exempt or waived.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
·Case Outline filed 19 November 2024;
·Further Amended Initiating Application filed 19 November 2024;
·Affidavit of the mother filed 1 July 2024;
·Affidavit of the mother filed 25 November 2024, addressing sexual assault allegations;
·Affidavit of the mother filed 1 October;
·Affidavit of the mother’s sister, Ms F, filed 25 September 2023;
·Affidavit of the mother’s brother-in-law, Mr G, filed 25 September 2023; and
·Exhibit W1, being texts exchanged between the mother and father on 29 December 2021.
For reasons previously explained, the father was not permitted to rely on his trial affidavit. A separate affidavit was filed by the father on 13 November 2024 which sets out the father’s reasons for his non-attendance at the final hearing. In respect to the father’s evidence, I have had regard to the documents tendered by counsel for the father at the trial, being Exhibits H1 to H7, and his Further Amended Response filed 8 November 2024. The father was also permitted to rely on the affidavits of Mr H and Mr J who were both called to give evidence and were cross-examined.
The ICL relies upon their Case Outline filed 23 November 2024, the Family Report of Ms D dated 8 April 2024 and Exhibit ICL1, being a Country Information Report from the Department of Foreign and Trade Affairs dated 25 January 2022.
LEGAL PRINCIPLES IN PARENTING PROCEEDINGS
Parenting proceedings are to be determined in the context of two objects set out in s 60B of the Act. They are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
[Note omitted]
Additionally, when exercising jurisdiction under the Act, the Court is required to have regard to a number of principles set out in s 43(1), which relevantly, in respect to parenting proceedings, includes:
(c) the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure protection from family violence;
In Bielen & Kozma (2022) FLC 94-123 at [30], the Full Court stated that: “the welfare of the child necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being”.
Applications for final parenting orders must be determined with the paramount consideration of the children’s best interests pursuant to s 60CA of the Act. The Act provides guidance as to the matters that the Court must consider in determining what orders are in the best interests of the child. These are set out in s 60CC(2) of the Act and are set out below:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering paragraph (2)(a) of the Act, the Court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
(s 60CC(2A) of the Act)
TREATMENT OF THE PARTIES’ EVIDENCE
In circumstances where the mother’s evidence was not contradicted by an alternative narrative provided firsthand by the father and where the veracity of her evidence was not undermined by the process of cross-examination, I have accepted the mother’s evidence in full. This is in circumstances where the mother’s evidence is plausible and internally consistent including, in particular, the fact that her evidence in respect to the father failing to show adequate interest in the welfare of the children is consistent with his approach to this litigation.
Comparatively, I give little weight to the evidence from the father’s additional witnesses, Mr H and Mr J. Both witnesses purported to corroborate the father’s evidence but that is in circumstances where the father has not been tested on his evidence.
I give no weight to the evidence of Mr J in circumstances where he conceded that much of his evidence about alleged conversations with the mother or statements made by the mother was based on second-hand hearsay from his wife. Moreover, Mr H has given no satisfactory explanation as to why his wife did not provide evidence in these proceedings.
Accordingly, wherever there is a conflict or inconsistency, I prefer the evidence of the mother.
BEST INTERESTS CONSIDERATIONS
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child)
As earlier noted, I am required to consider whether there has been a history of family violence in the parties’ relationship.
The evidence of the mother satisfies me that during the course of the parties’ relationship and subsequent to their separation, the father has engaged in a pattern of coercive and controlling conduct, including incidents of actual physical violence. These have been detailed in the mother’s affidavits and are set out below.
The father engaged in verbal and emotional abuse of the mother by frequently shouting at her and using derogatory expressions. This often occurred in the presence of the children. Examples of derogatory comments about the mother and her family included the father using names such as “[…] [bastard child] […] [vagina or fucker], […] [motherfucker]” (Mother’s affidavit filed 1 July 2024, paragraph 13(b), as per the original).
The father grabbed, pushed and dragged the mother on multiple occasions (Mother’s affidavit filed 1 July 2024, paragraphs 12–13). Her evidence in that respect is corroborated by photographs attached to her affidavit showing bruising on her arms and legs (Annexure “A” to the mother’s affidavit filed 1 July 2024). I am satisfied that on one occasion, the father pulled the mother’s hair and dragged her while she was holding the youngest child (Mother’s affidavit filed 1 July 2024, paragraph 13(j)).
A further example of abusive behaviour is the father’s criticism of the mother’s parenting, accusing her of being neglectful of the children and undermining her judgement by accusing her of exaggerating health issues affecting the children (Mother’s affidavit filed 1 July 2024, paragraph 13(g)).
I am also satisfied that the father engaged in controlling behaviour by attempting to limit the mother’s contact with her family. This included preventing her from attending her sister’s wedding or visiting her sister when hospitalised (Mother’s affidavit filed 1 July 2024, paragraph 13(c)).
I am also satisfied that the father refused to allow the mother to use birth control (Mother’s affidavit filed 1 July 2024, paragraph 13(f)). He was also dismissive of the mother’s complaints of pain during labour and delayed taking her to the hospital as he thought the “pain might be fake”. The delay resulted in the parties’ youngest child being born in the car (Mother’s affidavit filed 1 July 2024, paragraph 13(h)).
I am also satisfied that the father engaged in financially controlling behaviour. This included not allowing the mother to have a separate bank account or separate access to funds (Mother’s affidavit filed 1 July 2024, paragraphs 13(a), 16 and 18). I am also satisfied that the father scrutinised the mother’s expenses and often left the joint account without funds, preventing the mother from acquiring essentials for herself and the children. This resulted in the mother being placed in a situation where she would have to plead her case to the father to obtain money for essentials for herself and the children. Annexures “B” and “C” to the mother’s affidavit filed 1 July 2024, provide examples of texts from the mother to the father seeking that money be transferred into the joint account in December 2021 for living expenses and groceries, including while the father was in Country B and the mother was left to care for the children by herself for two months.
I also accept the mother’s evidence that the father criticised her for attempting to advance her educational qualifications rather than being a “devoted wife”. In that context, the father interfered with the mother’s educational advancement, including while she was pursuing her studies, by controlling her access to technology, and specifically, hiding her phone and laptop battery to prevent her from studying (Mother’s affidavit filed 1 July 2024, paragraph 13(a) and (l)). I am also satisfied that the father retained the mother’s academic transcripts from her studies, preventing her from applying for jobs.
Finally, it is clear from the mother’s evidence that the father weaponised the mother’s faith against her and used her religious beliefs as a tool to demand her obedience to the him and to otherwise control her behaviour and movements. This is illustrated in Exhibit W1 for instance, where the father tells the mother in a text sent on 29 December 2021: “You should fear [God] for taking all his Blessings foregranted [sic] with your always complaining behaviour” (as per the original).
In the context of those findings, I respectfully agree with and adopt the submission of the ICL set out below:
Where the Father has not completed any behavioural change or anger management program as previously ordered by way of the 26 April 2022 interim orders and now recommended at FR [133], when viewed against the totality of the allegations and evidence in these proceedings, the ICL considers that the risk of the children being exposed to family violence, abuse or denigration of their Mother in the Father’s household has not been ameliorated to the extent where the Court could form any positive state of satisfaction as to the children being able to safely spend any unsupervised time with the Father, including having any communication with him. Notably, notwithstanding the Father’s position that the children may remain living with the Mother, the Father continues to denigrate the Mother extensively in his affidavit material which tends to suggest that the children would similarly be exposed to his negative views of the Mother, and have their relationship with the Mother be undermined, if they are to spend unsupervised time with him.
(Case Outline of the ICL filed 23 November 2024, paragraph 12)
Views of the children
I accept the validity of the observations and consequent opinions expressed by the Regulation 7 Family Consultant, Ms D, in her Report dated 8 April 2024.
In her Report, Ms D noted that X (aged 11 years at the time of interview) expressed that he feels sad about not seeing his father and manages this by distracting himself with sports (Family Report of Ms D dated 8 April 2024, paragraph 84). He worries that if he does see his father, he would not know him anymore. X mentioned that he enjoyed staying up late at night to watch cartoons with his father and recalled a beachside holiday where his father helped him manage a big wave (Family Report of Ms D dated 8 April 2024, paragraph 85). At the time of the interview, X expressed a desire to spend equal time with both of his parents (Family Report of Ms D dated 8 April 2024, paragraph 86).
Ms D also noted that Y (aged 9 years at the time of interview) also misses his father and would like to have him in his life. He mentioned that he would be happy to spend equal time with both of his parents (Family Report of Ms D dated 8 April 2024, paragraph 90).
The mother acknowledges the desire of the two older children to spend time with their father (Annexure “A” to the mother’s Case Outline filed 19 November 2024, paragraphs 14–15).
Ms D did not interview Z who was aged 2 years at the time of the interview.
The two older children had not spent time with their father since his departure to Country B in December 2021, being approximately two years prior to their interview with the Family Report Writer.
In that context, I respectfully agree with the submission of the ICL that neither of the older children seemed to demonstrate appropriate awareness as to the risks of spending time with their father with respect to the findings of family violence that I have made (ICL’s Case Outline filed 23 November 2024, paragraph 14). I also agree that, while appropriate weight needs to be given to the views of the older children, neither of them are at an age or level of maturity where their views would be considered determinative of the final orders made by the Court.
The developmental, psychological, emotional and cultural needs of the children
Ms D observed that X is at a stage where he is seeking independence and exploring self-identity. As such, he needs a secure emotional base where he feels accepted and loved to build confidence and a sense of identity (Family Report of Ms D dated 8 April 2024, paragraph 96).
Ms D opined that Y is developing physical competency and emotional literacy and he needs positive reinforcement to support his sense of accomplishment and the development of his identity (Family Report of Ms D dated 8 April 2024, paragraph 97).
Ms D also opined that, unfortunately, X and Y have exhibited signs of trauma and aggressive behaviour. She stated that this is possibly due to the conflict between their parents. Ms D recommended that the children may benefit from counselling. No orders were, however, pressed for that to occur and I am satisfied the mother will make an appropriate assessment as to whether counselling for the children is necessary.
Ms D observed that Z is developing independence and confidence and, therefore, needs a nurturing environment to explore and develop ideas. Ms D cautioned that being very young and having spent an extensive amount of time away from his father, Z is likely to feel like his father is a stranger to him (Family Report of Ms D dated 8 April 2024, paragraph 97). Ms D advised that, should reunification between Z and the father occur, a structured reintroduction plan be implemented.
In terms of cultural needs, Ms D noted that the family is religious, and both parents were born in Country B. The children are learning to speak Country B language and are actively involved in their religious and local communities (Family Report of Ms D dated 8 April 2024, paragraph 28). I am satisfied that the mother is appropriately maintaining connections with their cultural heritage and extended family in Country B, which Ms D noted is important for the children’s cultural identity.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
Ms D observed that the mother presented as a warm, articulate, and intelligent woman who cares deeply for her children (Family Report of Ms D dated 8 April 2024, paragraph 24). Ms D opined that, based on the history that has been provided and her observations, the mother has solely been meeting all of the children’s needs since the father’s departure to Country B (Family Report of Ms D dated 8 April 2024, paragraph 109).
Ms D further opined that the mother’s parenting style is strength-based and authoritative, nurturing and responsive, and she sets firm limits with the children (Family Report of Ms D dated 8 April 2024, paragraph 61). Ms D commended the mother’s parenting capacity in encouraging the children to assist around the home and uses a merit system to motivate and reward them (Family Report of Ms D dated 8 April 2024, paragraph 7). I accept the opinion of Ms D that the mother is actively involved in the children’s lives, supporting their development, goals, and well-being.
Ms D noted that the father had been actively involved in the children’s lives prior to his departure for Country B in 2022. This included in respect to aspects of practical care of the children and their education.
Ms D noted, however that the father had been residing in Country B for more than 12 months and, as at the date of interview for the family report, had no immediate plans to return to Australia (Family Report of Ms D dated 8 April 2024, paragraph 60). That has been borne out by subsequent events with the father remaining in Country B despite every encouragement for him to return to Australia, including for the purpose of participating in these parenting proceedings to assist the Court to make orders that are in the best interests of the children.
Having regard to that period of absence, I respectfully agree with and adopt the submissions of counsel for the mother that:
The Father has left the Mother and the children on multiple occasions to live in [Country B]. This has been done without regard to the impact that his actions had on the children’s developmental, psychological or emotional needs.
The Wife is reported as noting how difficult these periods were for the children to process: [63] Family Report.
The Husband does not understand the detriment that his life choices have on the needs of the children and could not provide an answer to the Family Consultant when asked this question directly: [60] Family Report.
He is not focussed on the child’s needs, is not present to assess what those needs are, and cannot meet them. In conjunction with the other matters raised [relating to family violence], the Husband is not well placed to be able to meet the needs of the children.
(Case Outline of the mother filed 19 November 2024, paragraphs 20–23)
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
Ms D was an impressive and thoughtful witness. The process of cross-examination only strengthened rather than detracted from my confidence in the validity of her observations and her opinion.
In her oral testimony, Ms D expressed concerns about the father’s past behaviour, including family violence and coercive control, and the need for the Court to ensure that the children would not be at risk of such behaviour if they were to spend time with him.
Ms D also stated that the mother’s mental health and stability are crucial for effective parenting. She noted that the mother’s anxiety and stress related to the father’s behaviour could negatively impact her ability to care for the children.
Having regard to both of those matters, Ms D stated the children would only benefit from spending time with their father if he successfully completed a suitable behavioural change program or anger management program, and consistently engages in new behaviours rather than old ones that reflect a pattern of coercive and controlling behaviour. I find this is unlikely to occur where the father has not completed such programmes and I am not satisfied that he is likely to do so in circumstances where he has not demonstrated a preparedness to change his behaviour. This was also reflected in the following notation:
F.On 26 April 2022 the Father was ordered to attend and complete a men’s behavioural change program as soon as practicable. The Court is informed by the Father that despite numerous enquiries and/or attempts, the Father has to date been unable to enrol in such a course.
(Orders dated 30 August 2022)
Ms D also emphasised the importance of consistent relationships for children. As earlier noted, Ms D cautioned that the inconsistent presence of a parent can be disruptive and impactful on a child’s sense of self, self-worth, ability to form appropriate attachments in the future, and potentially their mental health. In that context, Ms D expressed concern if the father was to re-enter the children’s lives and then separate again, including by returning to Country B. She stressed that children might blame themselves for the absence. Having regard to the history of the parties’ relationship and the father’s past conduct, I am satisfied that if the father is to return to Australia and have a presence in the children’s lives, it is likely that his presence will be relatively short-lived before he returns to Country B.
Summation of best interests considerations
I have found that the mother has been subjected to family violence in the form of coercive and controlling behaviour, with actual acts of physical violence. Without dismissing the veracity of the mother’s allegations of sexual assault, it has been unnecessary for me to determine whether the sexual assault as set out in her affidavit filed 25 November 2024 occurred.
In Khatri & Khatri (2024) FLC 94-207 at [86], the Full Court, by reference to Re H-N (Children) (Allegations of Domestic Abuse) [2022] 1 WLR 2681 (“Re H-N”) at [31], highlighted the harm caused to children by domestic abuse, particularly abuse involving an element of coercive control:
… the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour:
i.Is directed against, or witnessed by, the child;
ii.Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;
iii.Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;
iv.Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.
While that passage refers to exposure to abusive conduct during the parents’ intact relationship, logic compels the conclusion that the consequences of such exposure are long lasting. This was recognised in Re H-N where the UK Court of Appeal stated at [52]:
Professionals would now, rightly, regard as “old fashioned” the approach [of previous Family Violence legislation] where protective measures were only triggered in the event of “violence” or “actual bodily harm”. In like manner, the approach of regarding coercive or controlling incidents that occurred between the adults when they were together in a close relationship as being “in the past”, and therefore of little or no relevance in terms of establishing a risk of future harm, should, we believe, also be considered to be “old fashioned” and no longer acceptable. The fact that there may in the future be no longer any risk of assault, because an injunction has been granted, or that the opportunity for inter-marital or inter-partnership rape may no longer arise, does not mean that a pattern of coercive or controlling behaviour of that nature, adopted by one partner towards another, where this is proved, will not manifest itself in some other, albeit more subtle, manner so as to cause further harm or otherwise suborn the independence of the victim in the future and impact upon the welfare of the children of the family.
In this case, the father’s failure to acknowledge the impact of his coercive and controlling behaviour and to take steps to address it, increases the likelihood that his conduct will impact the mother and the children in the future: Re W (Children) [2012] EWCA Civ 528 at [15].
I find that in circumstances where the father has failed to acknowledge and address his past coercive and controlling conduct, that there is an unacceptable risk that he will continue to engage in that conduct in the future and, for the reasons which I have explained, I am satisfied that exposure to such conduct would be harmful to the children and the mother as the carer.
Having concluded that the children would be exposed to such conduct, should orders be made for them to spend time with their father, the question becomes whether steps can be taken to mitigate against that risk. Counsel for the ICL appropriately referred the Court to authorities which have determined that, while each case necessarily needs to be considered in the context of its particular facts and circumstances, caution should be taken before creating a parenting regime underpinned by protracted or indefinite supervision: Slater v Light (2013) 48 Fam LR 573.
Moreover, while appropriate professional supervision may mitigate against the extent to which the father engages in abusive conduct, or in conduct that belittles the mother in front of the children, it would not remove the risk to the children of the father becoming involved in their lives and then departing as he has done in the past.
In balancing the desirability of the children maintaining a relationship with their father as against questions of risk, the scale has been tipped against making orders for the children to spend time with the father by an additional consideration. That consideration is that the making of such orders are essentially academic in circumstances where the father is living in Country B and despite insistence that he return to Australia to participate in these proceedings in person, he has failed to do so. Accordingly, the question as to whether such orders should be made is essentially to engage in a futility, at least unless and until the father has a change of attitude, such that he wishes to return to become part of the children’s lives on an ongoing and indefinite basis.
The ICL seeks that there be no order as to time or communication as distinct from a positive order for no time. In that context, the ICL was not challenged on her advice to the Court that she had the benefit of meeting the children in the week prior to the hearing, and that, during the discussion, the children expressed some curiosity about the father and seemed open to the idea of seeing or hearing from him again.
To her credit, the mother gave unchallenged evidence that she would not prevent the children from contacting the father in the future if they expressed a wish to do so, and she would not stand in the way of them receiving emails from him on their school email addresses.
Relevantly for the purpose of considering s 60CC(2)(a) and, specifically, the potential impact on the mother as the children’s carer, I accept the mother’s evidence that her emotional well-being would be adversely impacted by orders providing for the father to contact the children in her home which would necessarily be the case if orders were to be made for the children to have video conferencing time with the father.
Moreover, I respectfully agree with the submission by the ICL that the potential danger of making an order for the children to spend time and/or communicate with the father is that the father will not consistently avail himself of that opportunity. Consequently, the father may cause distress to the children if he disengages with the children, as he has done in the past, disappointing the children who may have had expectations of the commencement of an ongoing relationship with the father.
I have also considered the possibility of risk being mitigated by the father attending a behavioural change program. Based on the father’s failure to comply with past recommendations and orders from this Court to that effect, I have no confidence that he would do so in the future. I also have no confidence that the father would be open to changing his pattern of behaviour given he has failed to acknowledge his past coercive and controlling conduct. Moreover, the Court must make orders on the basis of the parent’s presentation, not wishful thinking based on the speculative possibility that they may change in the future: Kellerman & Kellerman [2024] FedCFamC1A 126 at [52].
For all of the reasons that I have articulated, I am satisfied that it is not appropriate for the Court to make orders that the children either spend time or communicate with the father. However, I accept the merit of the argument presented by the ICL that, given the desire of the two older children in particular to maintain contact with their father, together with the mother’s preparedness to permit that to occur in the future, that the door should not be closed on that possibility. I therefore will make orders as proposed by the ICL.
Parental responsibility
For reasons that I explained in Vandale & Cino [2024] FedCFamC1F 876 at [288]–[297], potential exposure to family violence is a very relevant consideration in determining whether an order should be made for parental responsibility pursuant to s 61D of the Act.
In this case, I am satisfied that requiring the mother to consult with the father in respect to major long-term issues impacting upon the children, as defined in s 4 of the Act, would expose the mother to the father’s coercive and controlling conduct, which I have found he is likely to continue to engage in the future. I will therefore make orders for the mother to have sole parental responsibility as proposed in Order 3 of the mother’s Minute of Order.
By reference to the opinion of Ms D, I am also satisfied that it is in the children’s best interests to be able to maintain their religious and cultural connection to relatives who live overseas. I respectfully agree with the submission of counsel for the mother and the ICL that there is no reason the mother should not be able to travel overseas with the children.
In that context, I also agree that in order to avoid future disputation and possible litigation, it is appropriate and in the children’s best interests for the mother to be empowered to obtain a passport for the children and to be permitted to leave Australia and its territories notwithstanding that the consent of the father has not been obtained.
ORDERS AND COSTS
Accordingly, for all of the reasons that I have set out, I make the final orders as sought by the mother and ICL, save to the extent that I do not make the order the mother seeks “that the children spend no time with the father”. In respect to that issue, I have explained why I accept the submissions of the ICL that the orders should simply be silent in respect to that question.
The ICL has sought an order for costs which she proposes to be shared equally between the parties. For reasons that I explained in Nardini & Legal Aid NSW [2019] FamCA 340 at [23]–[25], I am of the opinion that it will usually be in the interests of justice and in the public interest for an order to be made in favour of costs incurred by the ICL when they assist the Court in parenting matters.
The ICL has been invaluable in the assistance that has been provided to the Court in this matter particularly in circumstances where the father has failed to engage in the proceedings. The ICL has also played an invaluable role in communicating the views of the children.
In those circumstances, I am satisfied that it is appropriate that an order for costs should be made in favour of the ICL and that both parties share in that cost by paying the sum of $5,497.32 each.
I should indicate that the making of that order in no way precludes the mother from making an application for an order for costs in her favour which, of course, would be considered on its merits should that occur in the future.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge McClelland. Associate:
Dated: 1 May 2025
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