Malcolm & Pereira

Case [2025] FedCFamC1F 256

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Malcolm & Pereira [2025] FedCFamC1F 256

File number(s): PAC 2118 of 2023
Judgment of: ANDERSON J
Date of judgment: 22 April 2025
Catchwords:

FAMILY LAW – FINAL PARENTING ORDERS – Allegations of family violence – Mother’s allegations accepted in part – Where the children live with the mother – Where the children have not spent any time with the father for in excess of four years – Consideration of the impact on the mother in the event of any order for time between the children and their father - Children to live with the mother – No orders for time between the children and their father

FAMILY LAW – APPLICATION FOR DISQUALIFICATON – Apprehended bias – Where an application for disqualification is made during contested final parenting proceedings – Whether comments from the bench and/or the conduct of the judicial officer with respect to the use of an interpreter for the father might cause a fair-minded lay observer to conclude that the Court will decide the competing parenting applications other than on its legal and factual merit – All grounds fail – application dismissed
Legislation:

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61D, 61DAB, 64B, 65AA, 65D, 67ZC, 68B

Australian Passports Act 2005 (Cth) s 11(1)(a)

Evidence Act 1995 (Cth) s 140

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)(e)
Cases cited:

Attwood v Attwood [2022] FedCFamC1F 6

Bant v Clayton (2015) 53 Fam LR 621

Bennett v Bennett (2001) FLC 93–088

Briginshaw v Briginshaw (1938) 60 CLR 336

Fitzwater & Fitzwater (2019) 60 Fam LR 212

H v R [2006] FamCA 878

Hedlund v Hedlund [2021] FedCFamC1A 84

Hickson & Matthew [2022] FedCFamC1A 161

Isles & Nelissen (2022) FLC 94-092

Johnson v Johnson (2000) 201 CLR 488

Keane & Keane (2021) 62 Fam LR 190

Michael Wilson & Partners Ltdv Nicholls (2011) 244 CLR 427

N and S and the Separate Representative (1996) FLC 92-655

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369
Division: Division 1 First Instance
Number of paragraphs: 212
Date of last submission/s: 26 February 2025
Date of hearing: 17-21 February 2025 & 26 February 2025
Place: Parramatta
Counsel for the Applicant: Mr Cohen
Solicitor for the Applicant: Gad & Co Lawyers
Counsel for the Respondent: Mr Schroder
Solicitor for the Respondent: Du and Associates
Counsel for the Independent Children's Lawyer: Mr MacPherson
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

PAC 2118 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MALCOLM

Applicant
AND:

MS PEREIRA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

22 APRIL 2025

THE COURT ORDERS THAT:

1.All previous parenting orders in relation to the children X born 2014 and Y born 2016 (“the children”) be discharged.

Parental Responsibility

2.The Respondent Mother (“the mother”) have sole parental responsibility for the…

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AGLC
Malcolm & Pereira [2025] FedCFamC1F 256
Case
[2025] FedCFamC1F 256
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with parenting proceedings between Mr Malcolm and Ms Pereira. Mr Malcolm sought sole parental responsibility for the children and for them to live with him. Ms Pereira, the children's current caregiver, opposed the father's application and sought to maintain the status quo. The legal issues before the court involved determining the children's best interests, the appropriate living arrangements, and whether there were grounds for disqualifying the judicial officer due to apprehended bias.

The court found that Ms Pereira's allegations of family violence were accepted in part. The children had not spent any time with Mr Malcolm for over four years, and any order for time between the children and their father would significantly impact the mother. The court concluded that the children's best interests would be met by them living with the mother and not spending any time with the father. All grounds for disqualifying the judicial officer due to apprehended bias were dismissed.

The final orders of the court were that all previous parenting orders were discharged, the mother was granted sole parental responsibility for the children, and the children were to live with the mother without any communication or spending time with the father. The court also issued an injunction against the father to protect the mother and children from harassment and communication. The Independent Children's Lawyer's application for costs was to be determined in subsequent written submissions.

Orders

Orders of the court

PAC 2118 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MALCOLM

Applicant

AND:

MS PEREIRA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

22 APRIL 2025

THE COURT ORDERS THAT:

1. All previous parenting orders in relation to the children X born 2014 and Y born 2016 (“the children”) be discharged.

Parental Responsibility

2. The Respondent Mother (“the mother”) have sole parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children.

Living and communication arrangements

3. The children live with the mother.

4. The children do not communicate or spend time with the Applicant Father (“the father”).

Restraints

5. The mother be restrained and an injunction is hereby granted restraining her from denigrating the father to or in the presence or hearing of the children or allowing any third party to do so.

6. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the mother and the children, the father is injuncted from:

(a) Entering or remaining in a place of residence, employment, education or health provider of the children or the mother;

(b) Harassing, abusing or communicating with the children or the mother by any means whatsoever including electronic means or social media or permitting any third party to do so on his behalf; and

(c) Making efforts to obtain details of the children’s residential address, school or any health or allied health practitioner upon whom the children or the mother attend from time to time or permitting any third party to do so on his behalf.

Costs

7. Within fourteen (14) days of the date of these Orders, the Independent Children’s Lawyer do file and serve Written Submissions limited to three pages in length with respect to the application made by the Independent Children’s Lawyer for an award of costs.

8. Within seven (7) days of receipt of the Written Submissions referred to at Order 7 herein, counsel for each party is requested to file and serve Written Submissions limited to three pages in length responding to the application for costs made by the Independent Children’s Lawyer.

9. In the event that the Independent Children's Lawyer does not comply with the terms of Order 7 herein there shall be no order as to costs.

Discharge of Independent Children’s Lawyer

10. The appointment of the Independent Children’s Lawyer be discharged.

Other

11. That pursuant to s 62B of the Family Law Act 1975 (Cth) (as amended), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

12. That pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) (as amended), 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 Fact Sheet, attached hereto and these particulars are included in these orders.

13. All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) (as amended) are dismissed.

AND THE COURT NOTES THAT:

A. Section 68C of the Family Law Act 1975 (Cth) provides that if a police officer believes, on reasonable grounds, that the father has breached the injunction as set out in Order 6 above by causing or threatening to cause bodily harm to the protected person or by harassing, molesting or stalking the protected person, such police officer may arrest the father without warrant.

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

The father commenced parenting proceedings on 30 April 2023 almost three years after separation. At that juncture, the father sought interim orders to spend time with the children. However, and on a final basis, the father sought orders that he have sole parental responsibility for the children and that the children live with him. That position was maintained when the father filed an Amended Initiating Application on 2 August 2024.BACKGROUND The father is 45 years of age. He is employed as a professional by a manufacturing company in Victoria.[2] [2] Father’s affidavit filed 8 February 2025, paragraph 3. The mother is 38 years of age. She lives in the suburbs of greater Sydney and has devoted herself to the care of the children. As such, the mother is not engaged in paid employment.[3][3] Mother’s affidavit filed 3 February 2025, paragraph 3. The parties met by the arrangement of their respective parents. The parties’ families hosted a Country B engagement ceremony in early 2013 and the parties’ married in an Islamic religious ceremony facilitated by a Shia Imam in mid-2013.[4] Despite this, the parties did not commence cohabitation until mid-2013 because the father was working in Country C in Region D.[5][4] Mother’s affidavit filed 3 February 2025, paragraph 24.[5] Mother’s affidavit filed 3 February 2025, paragraph 25. At some stage between October 2013 and April 2014[6], the father relocated to City E in Country F for his employment. The mother remained in Country B in circumstances where she was pregnant. However, she gave birth to the male child in City E in 2014.[7][6] Mother’s affidavit filed 3 February 2025, paragraph 30; Father’s affidavit filed 8 February 2025, paragraph 40.[7] Father’s affidavit filed 8 February 2025, paragraph 41; Mother’s affidavit filed 3 February 2025, paragraph 30. In 2016, the parties and the male child migrated to Australia.[8] The female child was born in Sydney in 2016.[8] Mother’s affidavit filed 3 February 2025, paragraph 31; Father’s affidavit filed 8 February 2025, paragraph 42. On the parties’ arrival in Australia and following the birth of the female child, the parties settled into traditional roles. That is, the father obtained full time employment in Sydney[9] and the mother cared for the children. Shortly after the birth of the female child, the parties moved into a three-bedroom home in Sydney. This appears to have been an unhappy time for the mother. Particularly, she says that the parties stopped being intimate and stopped sleeping in the same bedroom.[10][9] Father’s affidavit filed 8 February 2025, paragraph 45.[10] Mother’s affidavit filed 3 February 2025, paragraph 130. On 19 January 2020, the parties separated on a final basis. However, the mother says that the parties continued to live together until 18 September 2020 at which time she says that she left the former matrimonial home as a consequence of “incidents of child abuse by [the father] towards [the children] and violence towards me”.[11] The father subsequently learned through evidence given by the mother in proceedings in the Local Court of New South Wales, that in August 2020, the mother commenced a relationship with a third party.[12] That relationship was short lived. The mother has, however, remarried to a man referred to by the pseudonym, “[Mr G]”. The mother has elected to refer to her husband by a pseudonym due to her “fear of [the father] harming Mr G or his family”.[13][11] Mother’s affidavit filed 3 February 2025, paragraph 34.[12] Father’s affidavit filed 8 February 2025, paragraph 77.[13] Mother’s affidavit filed 3 February 2025, paragraph 284.

Evidence

Evidence Before The Court

It is against this background that the competing parenting applications fall for determination.EVIDENCE In support of his application, the father relied on:(a)Amended Initiating Application filed 2 August 2024;(b)An affidavit in the name of the father filed 8 February 2025; and(c)Some tendered documents.[17][17] Exhibits H1 to H3. On the morning of the second day of trial, the father sought permission to rely on an affidavit in the name of his solicitor, Mr Gad. Counsel for the mother and the Independent Children’s Lawyer opposed the father’s reliance on that document. I declined to receive the affidavit. When doing so, I noted that the father ought to have filed affidavit material to be relied upon by him at final hearing by 15 November 2024.[18] His trial affidavit without explanation was filed almost three months late. I discuss the father’s desire to rely on an affidavit in the name of his solicitor in further detail below.[18] Orders made on 16 September 2024. The mother relied on:(a)An Amended Response to Initiating Application filed on 4 August 2024;(b)An Affidavit in the name of the mother filed on 3 February 2025;(c)An Affidavit in the name of the maternal grandmother filed on 31 January 2025; and(d)Some tendered documents.[19][19] Exhibits W1 to W17. For her part, the Independent Children’s Lawyer relied on:(a)A Family Report prepared by a Court Child Expert published on 6 March 2024; and(b)Some tendered documents.[20][20] Exhibits ICL1 to ICL2. The Court excluded all annexures to the Affidavits having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).ANALYSIS OF THE PARTIES’ COMPETING PROPOSALS AND THE UNSATISFACTORY EVENTS OF DAYS ONE AND TWO OF THE TRIAL By his Amended Initiating Application filed on 2 August 2024, the father sought final orders to the effect that he have sole parental responsibility for the children and that the children live with him. The father’s application was unusual. It did not seek an immediate reversal of the children’s living arrangements. Instead, the father proposed the following:(a)That for a period of eight weeks after the making of final orders, the children spend time with the father in the presence of a qualified therapist on one occasion per fortnight;(b)That on the expiration of the eight-week period referred to above, and for a further period of eight weeks, the children spend time with the father on each Saturday between 10.00am and 11.00am;(c)That on the expiration of the period referred to above and for a further period of eight weeks, the children spend time with the father on each weekend from 10.00am on Saturday to 1.00pm on Sunday;(d)That on the expiration of the period referred to above and for a further period of eight weeks, the children spend time with the father on each weekend from the conclusion of school on Friday to the commencement of school on Monday;(e)Thereafter, the children live with the father.

Decision

Reasons for decision

At the conclusion of the proceedings, the Independent Children’s Lawyer made an application for costs. The mother’s counsel invited me to reserve my decision pending the delivery of judgment. I will make orders regulating the filing of written submissions on the question of costs.CONCLUSION The orders set out at the commencement of these reasons are those that most capably meet the children’s best interests.

Ratio Decidendi

Legal Principle Established

An injunction is not, by definition, a “parenting order”.[147] The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[148] Whilst counsel did not address me on the issue, the only power afforded to me to make the injunctive orders sought by the parties is pursuant to s 68B of the Act. Section 68B is not subject to the paramountcy principle — the words of the section lack any express reference thereto. This issue has been addressed in many authorities and, as summarised in Attwood v Attwood [2022] FedCFamC1F 6, has to some extent been reconciled:31.… Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.32.The Full Court in Bennett v Bennett (2001) FLC 93–088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v R (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93–074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.33.Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether … the injunction is appropriate for the welfare of the child, and is otherwise just or convenient[149].[147] Hedlund v Hedlund [2021] FedCFamC1A 84 at [118].[148] Family Law Act 1975 (Cth) s 65D(1) and s 67ZC. [149] Attwood v Attwood [2022] FedCFamC2F 6, [31]-[33]. Emphasis added. Having regard to Attwood and Bennett, I will consider the injunctive relief sought by giving careful consideration to the best interests of the children.