Lishman & Ester (No 3)

Case [2025] FedCFamC2F 542

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…

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AGLC
Lishman & Ester (No 3) [2025] FedCFamC2F 542
Case
[2025] FedCFamC2F 542
Decision Date

CaseChat Overview and Summary

In the case of Lishman & Ester, the parties were involved in a parenting dispute concerning their three children, X, Y, and Z. The Federal Circuit and Family Court of Australia addressed the matter, with Ms. Lishman seeking sole decision-making responsibility and no contact between the children and their father, Mr. Ester. Mr. Ester, who resided in Country B, did not participate in the proceedings, having no immediate plans to return to Australia. The trial proceeded in the absence of the father's affidavit, and the court accepted the mother's evidence in full. The primary issues for determination were whether it was in the best interests of the children to have no contact with their father and the appropriateness of sole decision-making powers being granted to the mother.

The court deliberated on the best interests of the children, considering factors such as the father's failure to complete a men's behavioural change course, his arrears of spousal maintenance payments, and his history of engaging in family violence, including coercive and controlling conduct. The court also expressed caution in establishing a parenting regime that would require indefinite supervision. Given these circumstances, the court determined that it was not appropriate to make a positive order for the children to spend time or communicate with their father. Consequently, the court ruled that the children should live with the mother, granting her sole decision-making powers concerning long-term issues. Furthermore, the court ordered that the children's passports be issued and retained by the mother, and that the costs of the Independent Children’s Lawyer be shared equally by both parents.

The final orders of the court included discharging all previous parenting orders, granting the mother sole decision-making powers and residence for the children, and permitting the children to travel outside Australia with the mother without the father’s consent. The court also mandated that the children’s passports be issued and retained by the mother. Additionally, the court ordered that the parties share the costs of the Independent Children’s Lawyer equally. The form of the order is subject to review for minor typographical or grammatical errors or to record any variation to the order.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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