Needham & Shao (No 5)

Case [2025] FedCFamC1F 134

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Needham & Shao (No 5) [2025] FedCFamC1F 134

File number(s): SYC 5643 of 2020
Judgment of: ALTOBELLI J
Date of judgment: 21 February 2025
Catchwords:

FAMILY LAW – CONTRAVENTION – Where the applicant becomes self-represented during the course of the hearing – Where s 102NA of the Family Law Act 1975 (Cth) (“the Act”) prevents the applicant from cross-examining the respondent – Where the contravention proceedings are adjourned to ensure procedural and substantive fairness – Where the Court varies orders pursuant to s 70NBC of the Act.

FAMILY LAW – RECUSAL – Where the Court has previously made credit findings about the parties – Where the Court has informed the parties that there is an arguable case for recusal – Where the parties decline to prosecute a recusal application – Where the Court recuses itself.

Legislation: Family Law Act 1975 (Cth) s 70NBC, s 102NA
Cases cited: Needham & Shao (No 4) [2023] FedCFamC1F 862.
Division: Division 1 First Instance
Number of paragraphs: 33
Date of hearing: 21 February 2025
Place: Sydney
Counsel for the Applicant: Mr Jackson
Solicitor for the Applicant: Gad & Co Lawyers
Counsel for the Respondent: Mr Fantin
Solicitor for the Respondent: Jack Rigg Solicitors
Counsel for the Interested Party: Ms Hopper
Solicitor for the Independent Children's Lawyer: Ms Smith of Legal Aid NSW

ORDERS

SYC5643 of 2020

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

MS SHAO

Applicant
AND:

MR NEEDHAM

Respondent

ZZ COUNCIL

Interested Party

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

21 FEBRUARY 2025

THE COURT ORDERS THAT:

Evidence proceedings

1.Counsel for the Interested Party be excused from attending and further participating in these proceedings.

THE COURT NOTES THAT:

A.The Interested Party in these proceedings were concerned that the Applicant may seek to adduce the contents of a telephone conversation that was allegedly recorded in contravention of section 7 of the Surveillance Devices Act 2007 (NSW) (“Surveillance Devices Act”).

B.The Applicant conceded that they would not seek to adduce evidence of a nature that may offend s 7 of the Surveillance Devices Act.

C.Assurances were made to counsel for the Interested Party that if the Applicant sought to adduce evidence of a nature that may offend s 7 of the Surveillance Devices Act, that the Interested Party would be provided an opportunity to respond in whatever manner the Court deemed appropriate in the circumstances.

THE COURT FURTHER ORDERS THAT:

Contravention proceedings

2.The Application – Contravention filed by the Applicant on 18 December 2024, and the Application – Contravention filed by the Applicant on 1 November 2024 be adjourned to a date to be fixed.

3.Leave is hereby granted for counsel and solicitor for the Applicant to withdraw from the matter.

THE COURT FURTHER NOTES THAT:

D.Counsel for the Applicant indicated that the basis for his withdrawal was that his reasonable advice was not being followed.

E.Counsel for the Applicant indicated that his instructing…

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AGLC
Needham & Shao (No 5) [2025] FedCFamC1F 134
Case
[2025] FedCFamC1F 134
Decision Date

CaseChat Overview and Summary

In the matter of Needham & Shao (No 5), the Federal Circuit and Family Court of Australia addressed a dispute between Ms Shao, the applicant, and Mr Needham, the respondent, regarding the contravention and variation of parenting orders. The primary contention was the inability of the parents to agree on the means of communication between the child and the non-live-with parent. The Independent Children’s Lawyer and the ZZ Council were also involved in the proceedings. The legal issues before the Court included whether the contravention proceedings should be adjourned to ensure procedural and substantive fairness, and whether the Court should vary the existing parenting orders to facilitate communication between the child and the non-live-with parent. The Court also considered the issue of recusal based on previous credit findings made about the parties.

The Court found that it was necessary to adjourn the contravention proceedings to ensure fairness. This was partly due to the applicant becoming self-represented during the hearing and the statutory prohibition under section 102NA of the Family Law Act 1975 (Cth) that prevented the applicant from cross-examining the respondent. The Court exercised its powers under section 70NBC of the Act to vary the existing parenting orders to facilitate communication between the child and the non-live-with parent. The variation included specific instructions for the parents to use WhatsApp for communication and establish a WhatsApp group for this purpose. Additionally, the Court noted that the parties had declined to pursue a recusal application despite the Court providing them with opportunities to do so. Consequently, the Court decided to recuse itself from further involvement in the matter.

The Court's final orders included excusing counsel for the Interested Party from further participation, granting leave for the applicant's counsel to withdraw, and varying the existing parenting orders as detailed. The Court also ordered its recusal from any further matters in the proceedings and vacated all extant court events. The new orders aimed to ensure that the child and the non-live-with parent could communicate effectively, addressing the core dispute between the parents.

Orders

Orders of the court

SYC5643 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SHAO

Applicant

AND:

MR NEEDHAM

Respondent

ZZ COUNCIL

Interested Party

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

21 FEBRUARY 2025

THE COURT ORDERS THAT:

Evidence proceedings

1. Counsel for the Interested Party be excused from attending and further participating in these proceedings.

THE COURT NOTES THAT:

A. The Interested Party in these proceedings were concerned that the Applicant may seek to adduce the contents of a telephone conversation that was allegedly recorded in contravention of section 7 of the Surveillance Devices Act 2007 (NSW) (“Surveillance Devices Act”).

B. The Applicant conceded that they would not seek to adduce evidence of a nature that may offend s 7 of the Surveillance Devices Act.

C. Assurances were made to counsel for the Interested Party that if the Applicant sought to adduce evidence of a nature that may offend s 7 of the Surveillance Devices Act, that the Interested Party would be provided an opportunity to respond in whatever manner the Court deemed appropriate in the circumstances.

THE COURT FURTHER ORDERS THAT:

Contravention proceedings

2. The Application – Contravention filed by the Applicant on 18 December 2024, and the Application – Contravention filed by the Applicant on 1 November 2024 be adjourned to a date to be fixed.

3. Leave is hereby granted for counsel and solicitor for the Applicant to withdraw from the matter.

THE COURT FURTHER NOTES THAT:

D. Counsel for the Applicant indicated that the basis for his withdrawal was that his reasonable advice was not being followed.

E. Counsel for the Applicant indicated that his instructing solicitor was ad idem regarding the reasonableness of the advice and the need to withdraw from these proceedings.

F. Counsel for the Applicant offered to remain in the proceedings for the express purpose of assisting the Applicant in relation to any proposed variation of parenting orders in the matter pursuant to s 70NBC of the Family Law Act 1975 (Cth) (“the Act”).

THE COURT FURTHER ORDERS THAT:

Variation of parenting orders

4. Orders are made in accordance with the document marked “A” dated this day and attached hereto.

5. Pursuant to s 62B and s 65DA(2) of the Act, 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 Annexure A and these particulars are included in these orders.

UPON THE COURT’S OWN MOTION, THE COURT FURTHER ORDERS THAT:

Recusal

6. This Court recuse itself from any further matter in these proceedings.

7. All extant Court events listed before me be hereby vacated and adjourned to a date to be fixed.

THE COURT FURTHER NOTES THAT:

G. The Court provided the parties numerous opportunities to file a recusal application based on previous findings I have made in this matter. The parties did not make such an application.

H. The Court views in all the circumstances that the correct decision is to excuse itself from these proceedings.

“A”

1. That Order 25 of the Orders of this Court made 13 October 2024, and varied by way of Orders dated 23 January 2024, be further varied as follows:

1.1 Within two (2) hours of the date of this order the Respondent shall inform the Applicant of a mobile phone number which has international coverage and which can be utilised by “What’s App”.

1.2 Within twelve (12) hours of the date of this order the Applicant shall inform the Respondent of a mobile phone number which has international coverage and which can be utilised by “What’s App”.

1.3 That within twenty-four (24) hours of the Applicant’s compliance with Order 1.2, the Respondent shall create a “What’s App” group called “[X] Communication” for X, born 2019 (“X”) and the Applicant to utilise for the purpose of facilitating communication between X and the Applicant when X is in the Respondent’s care and between X and the Respondent when X in in the Applicant’s care.

1.4 The Applicant shall communicate with X each Monday, Wednesday and Saturday between 7.45 and 8.15 am using the “What’s App” X Communication group established pursuant to Order 1.3.

1.5 That in the event that X has a commitment which will prevent him communicating with the Applicant in accordance with Order 1.4, the Respondent shall give to the Applicant not less than seventy-two hours notice that X is unavailable for the call and shall nominate three alternative dates and time not more seven (7) days) from the date of the missed call for the call to take place.

1.6 That within twenty-four (24) hours of being notified of the alternative times pursuant to Order 1.5 the Applicant shall chose such time and communicate her choice to the Respondent via the “What’s App” message function.

1.7 That when X is communicating with the Applicant the Respondent shall ensure privacy for X and not be present in the room other than for the purposes of assisting X to commence and conclude the call.

1.8 The parties shall communicate with each other about X by text message via WhatsApp except in emergencies when communication shall be by calling the other parent via WhatsApp, or if not possible, by calling the other parent via telephone.

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

I then proceeded to exercise the powers of the Court granted to it by s 70NBC of the Act, which in summary states that at any stage of contravention proceedings, the Court may vary a child related order that is a parenting order. Three Minutes of Order were proposed and marked MFI1, MFI2, and MFI3. MFI1 was the mother’s, MFI2 the father’s, and MFI3, the Independent Children’s Lawyer’s proposal.BACKGROUND By way of background, the orders that were allegedly contravened, and which are now sought to be varied pursuant to s 70NBC of the Act are final orders made by this Court on 13 October 2023. Specifically, the contravention applications related to Order 25 of the same, but incidentally involved other orders including Order 26. Order 25 states that:The parents will do all things necessary to enable and facilitate the non-live with parent to communicate with the child each Monday, Wednesday and Saturday at a time agreed between the parties or failing agreement between 8.00 am and 8.30 am in the country the child is residing in. I interpose by way of explaining that the mother resides in and is currently attending this hearing from the United States. The father and the child reside in and are present here in Sydney in Australia. Order 26 of those made 13 October 2023 is relevant. It states that:The above communication is to occur via FaceTime, telephone or such other “app” as utilised by the parties. A secondary order was made on 23 January 2024, which varied Order 25 of the orders made on 13 October 2023, as follows:The parents will do all things necessary to enable and facilitate the non-live with parent to communicate with the child each Monday, Wednesday and Saturday at a time agreed between the parties or failing agreement between 8.00 am and 8.30 am 7.30 am and 8.00 am in the country the child is residing in. It is to be noted that the dispute that comes before the Court arises out of, for all practical purposes, the inability of the parents to agree as to what means was to be used for communication. Now, of course, it is much more complicated than that. Beneath a dispute that arises out of a single order, maybe two orders, there are many unresolved matters that were clearly identified in my reasons for judgment dated 13 October 2023 (Needham & Shao (No 4) [2023] FedCFamC1F 862 (“the final reasons for judgment”)), only some of which will be referred to in passing. For example, in paragraph [1] of the final reasons for judgment, I said as follows:This case is about a child, [X], who was born [in] 2019 in Sydney (“the child”). Almost immediately after the child’s birth, and whilst he and his mother, the respondent in this matter (“the mother”), were still in hospital, the mother and the applicant father (“the father”) had their first major conflict about the child regarding breastfeeding. The child is now four years old, and for the entirety of his life, his parents have been involved in a seemingly intractable conflict about him. I note that [X] is now five […] and nothing has changed. For the entirety of his life, his parents continued to be involved in a seemingly intractable conflict about him.

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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