FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Moyle & Houston [2025] FedCFamC2F 426
File number(s): BRC 10532 of 2023 Judgment of: JUDGE WILLIS AM Date of judgment: 3 April 2025 Catchwords: FAMILY LAW – PARENTING – where the mother who had a psychiatric disorder passed away shortly after giving birth to twins – children initially placed with the Department who organise for children to live temporarily with the maternal grandparents and then supported the twins being placed with father – maternal grandparents seek orders for twins to live with them – grandparents subsequently agree to Consent Orders for twins to live with the father who is of aboriginal descent and for father to relocate in to the future with the children – when the father relocates the grandparents refuse to return children to his care and commence a second round of family law litigation – grandparents re-agitate issues of father’s mental health and allegations he lived in a household where he was subjected to family violence – where maternal grandparents now blame the father for the suicide death of the mother – family violence has occurred in both households – children of mixed racial heritage – maternal grandparents dispute Aboriginal father’s cultural knowledge – considerations of the children’s right to enjoy their culture with others within that culture Legislation: Family Law Act 1975 (Cth) Part VII, ss 60CC(2), 60CC(2A), 60CC(3), 60CE, 60CG, 61CA, 61F, 64B, 64C, 65C
Family Law Amendments Act 2023 (Cth)
Cases cited: D and F [2001] FamCA 382
Kay and Jasper and Ors [2007] FamCA 1646
Rice v Miller (1993) FLC 80,240
Division: Division 2 Family Law Number of paragraphs: 342 Date of hearing: 7, 8, 9 August, 9, 10, 11 September 2024 Place: Brisbane Counsel for the Applicants: Mr Selfridge Solicitor for the Applicants: Lake Dawson Lawyers Counsel for the Respondent: Ms Shepherd Solicitor for the Respondent: Tempest Legal Counsel for the Independent Children's Lawyer: Mr Dodd Solicitor for the Independent Children's Lawyer: Parker Family Law ORDERS
BRC 10532 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MOYLE
First Applicant
MR MOYLE
Second Applicant
AND: MR HOUSTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE WILLIS AM
DATE OF ORDER:
3 APRIL 2025
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
Parental Responsibility
2.The respondent father shall have sole parental responsibility and decision-making authority for X born in 2021 and Y born in 2021 (“the children”) in relation to all major long-term issues including but not limited to their health (current and future), religious and cultural upbringing, education (both current and future), and each child’s name.
Live with
3.The children are to live with the father.
Spend time with/communicate
4.The children will spend time and communicate with the applicant maternal grandparents at all times as agreed between the parties but failing agreement only at the following times:
(a)On the last weekend (the weekend will start at 10:00am Saturday and conclude at 3:00pm on Sunday) of…
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CaseChat Overview and Summary
The court was required to decide several critical issues, including the allocation of parental responsibility, the living arrangements for the children, and the specifics of visitation rights for the maternal grandparents. Additionally, the court had to consider the cultural upbringing of the children and the implications of their mixed racial heritage, as well as the impact of family violence in both households. The court also needed to address allegations that the father had lived in a household where he was subjected to family violence and whether these allegations affected his ability to care for the children.
In its reasoning, the court determined that the father should have sole parental responsibility over the children, including decision-making authority on major long-term issues such as health, education, and cultural upbringing. The court concluded that the children should live with their father, while the maternal grandparents would have specified visitation rights, including monthly weekend visits and additional time during school holidays. The court also imposed several restrictions on the maternal grandparents, such as prohibiting them from expressing views that the father contributed to the mother's death and restricting unsupervised time with their adult son. Furthermore, the court mandated that the children participate in Indigenous cultural events as determined by the father and that the maternal grandparents be restrained from discussing their negative views about the father with the children.
The court further ordered that all previous parenting orders be discharged and outlined specific guidelines for medical treatment, communication, and cultural events. It also established procedures for changeovers and imposed restrictions on the paternal grandfather to prevent unsupervised time with the children. The court emphasized the importance of maintaining communication between the parties and ensuring that the children's right to their cultural heritage is upheld. The final orders included provisions for the Independent Children's Lawyer to be discharged and for all outstanding applications to be dismissed.
Orders
Orders of the court
BRC 10532 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS MOYLE
First Applicant
MR MOYLE
Second Applicant
AND:
MR HOUSTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE WILLIS AM
DATE OF ORDER:
3 APRIL 2025
THE COURT ORDERS THAT:
1. All previous parenting Orders be discharged.
Parental Responsibility
2. The respondent father shall have sole parental responsibility and decision-making authority for X born in 2021 and Y born in 2021 (“the children”) in relation to all major long-term issues including but not limited to their health (current and future), religious and cultural upbringing, education (both current and future), and each child’s name.
Live with
3. The children are to live with the father.
Spend time with/communicate
4. The children will spend time and communicate with the applicant maternal grandparents at all times as agreed between the parties but failing agreement only at the following times:
(a) On the last weekend (the weekend will start at 10:00am Saturday and conclude at 3:00pm on Sunday) of each month, commencing on Saturday 26 April 2025.
Special Days
5. The children will spend time with the maternal grandparents on the Mother’s Day weekend from 10:00am Saturday to 3:00pm Sunday and in relation to the Father’s Day weekend the children will remain living with their father for the whole weekend.
Christmas Days
6. In odd numbered years the children will spend from 10.00am on Christmas Eve to 10.00am on Boxing Day with the father.
7. In even numbered years the children will spend from 10:00am Christmas Eve until 10:00am Boxing Day with the maternal grandparents.
School holiday time
8. The children will spend block time with the maternal grandparents during the school holiday periods as set out below:
(a) Commencing in 2025 for one block of 7 nights (one week) to occur once each year. The timing of the one week holiday will be as agreed between the parties in writing and failing agreement as otherwise nominated by the father;
(b) Commencing in 2026 and continuing thereafter, for two (2) separate blocks of seven (7) nights (not to be combined) each year. The timing of each separate week each year will be as agreed between the parties in writing and failing agreement, as otherwise nominated by the father;
(c) When the children are spending block time with the maternal grandparents pursuant to Orders 8(a) and 8(b) herein, the maternal grandparents are to facilitate a video call from the children to the father twice each week on Tuesdays and Fridays from 6.00pm to 6.30pm.
9. The children will live with the father at all other than when they are spending time with the maternal grandparents pursuant to these Orders.
Medical treatment for the children
10. The maternal grandparents are not to present the children to any medical facility, general practitioner, or allied health professional, without first obtaining the father’s written permissions, except in the case of a genuine medical emergency whilst the children are in their care, at which point the maternal grandparents are to comply with the provisions of Orders 11(a) and (b) below.
11. Should either child suffer any injury or require emergency treatment while they are spending time with the maternal grandparents, the maternal grandparents are to:
(a) Immediately (either the maternal grandmother or grandfather) notify the father of the emergency, and where the child or children have been taken, together with the identity of the person treating the child/children;
(b) Immediately ensure that any treating professional is aware of the Court’s Orders that only the father may make long term medical decisions for the children.
Telephone/video calls
12. Each Wednesday the father will facilitate the children spending time with the maternal grandparents by telephone/ video call between 5:30pm and 6:00pm with the maternal grandparents to initiate the call/s to a number nominated by the father, noting that from time to time the father is at liberty to nominate another day of the week if this scheduled time conflicts with the children’s schooling routines or extra-curricular activities.
13. The father will facilitate the children spending time with the maternal grandparents by telephone/ video call on each of the children’s birthdays, the maternal grandparents' birthdays and on Easter Sunday between 5.30pm and 6:00pm with the maternal grandparents to initiate the call/s to the number nominated by the father.
Cultural events
14. That upon the father giving one (1) weeks’ notice to the maternal grandparents (except in case of an emergency where such notice is not possible at which time the notice will be as soon as possible) that the children will be attending an Indigenous cultural event or cultural celebration (as determined solely by the father) at a time when the children would otherwise be with the maternal grandparents as provided for in these Orders, then the children’s scheduled time with the maternal grandparents will be postponed and alternative time will occur on a date as agreed between the parties but which must occur within four (4) weeks of the postponement.
Changeover
15. All changeovers for the children (to give effect to these Orders) will occur at Venue OO located PP Street, Town QQ unless otherwise agreed in writing by the parties, and if not agreed the handover location will be as nominated by the father. In the event that the father relocates, the changeovers will occur at a location as agreed between the parties and failing agreement, as nominated by the father at a location approximately halfway between the father’s and maternal grandparent’s homes.
Restraints
16. The maternal grandparents are restrained from discussing with the children (in their presence or hearing) their views that the father contributed to the mother's death.
17. The maternal grandparents are restrained from leaving the children unsupervised with their adult son Mr JJ.
18. The father is restrained from leaving the children with the Paternal Grandfather, Mr EE.
Other Orders
19. The Father is at liberty to provide a copy of his psychiatric assessment by Dr KK to his treating psychologist, other mental health practitioners or general practitioners.
20. The father and the maternal grandparents are at liberty to provide a copy of these Orders to the children’s school/daycare and all of their medical health providers, the Police, and any other statutory body.
21. The ICL is to forthwith provide a copy of these Orders and this judgment to the Department of Families, Seniors, Disability Services and Child Safety.
22. The parties are to keep each other informed as to their residential addresses, telephone number, and email contact details, and inform each other of any change to those details within 24 hours of such change.
23. The Maternal Grandparents are permitted to attend the schooling/daycare of the children by attending assemblies and other celebrations at the children's school/day-care, or extra-curricular activities that parents would normally be invited to attend, any Mother's Day and Grandparent’s Day activities, however, their attendance is subject always to the discretion of the school authorities or organising body NOTING THAT the father has sole parental responsibility for children which includes making major decisions about their education and all other long term issues.
24. That this order is sufficient authority to any school or daycare provider for the children to release information to the maternal grandparents that would normally be released to parents (noting the maternal grandparents have no authority to make educational decisions and that the father has sole parental responsibility for all major long term issues which includes making decisions relation to the children’s education) such as school reports or newsletters, and the maternal grandparents are at liberty to request school/daycare photo orders at their own expense.
25. The parties are to continue to use a parenting app for all general ongoing communication, however they are to use telephone or other immediate communication in the event of a genuine emergency involving the children.
AND THE COURT FURTHER ORDERS THAT:
26. The Independent Children’s Lawyer is discharged 28 days from the making of these orders or such further appeal period.
27. All outstanding Applications are otherwise dismissed and removed from the list of cases awaiting finalisation.
NOTATION:
28. Pursuant to s.65DA(2) of the Family Law Act 1975 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 “Parenting Orders – obligations, consequences and who can help” and these particulars are included in 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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