Needham & Shao (No 5)
[2025] FedCFamC1F 134
•21 February 2025
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 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:
1.1Within 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”.
1.2Within 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”.
1.3That 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.
1.4The 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.
1.5That 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.
1.6That 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.
1.7That 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.
1.8The 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Needham & Shao has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case is about X, born 2019, who is five years old (“the child”). The matter came before me to hear two contravention applications filed by the child’s mother (“the mother”). One Application – Contravention was filed on 1 November 2024, the other Application – Contravention was filed 18 December 2024 (“the contravention applications”).
The hearing of the contravention applications was adjourned on the oral application of the mother who lost her legal representation. Because of the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”), this meant that she could not cross-examine the child’s father (“the father”) (collectively “the parents”)), which, of course, would have self-evidently been prejudicial to her case. The father opposed the granting of the adjournment, in particular, raising issues about the futility of such an adjournment having regard to the evidence before the Court.
I decided to grant the adjournment in circumstances where, notwithstanding some of the concerns expressed on behalf of the father which resonate with the Court, it was, nonetheless, procedurally and substantively unfair if the mother were not to be granted the adjournment.
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 am7.30 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.
At paragraph [10], I also observed as follows:
An important dynamic in this case needs to be recognised. This long running, intense and intractable litigation has created great anxiety for both parents, and the Court will find, consistent with the evidence of the single joint expert, [Mr S] (“[Mr S]”), that this anxiety is inexorably, but probably inadvertently, transmitted to the child.
That paragraph continues to apply to this child and to the parents.
At paragraph [64] of the final reasons for judgment, the Court raised concerns about the unreliability of the mother’s evidence, whilst simultaneously acknowledging concerns about the father’s evidence and the intense stress that the parents were under as a result of this intractable conflict. At paragraphs [133] and [134], the Court observed what will be described as a curious paradox:
But for the issue of the intractable parental conflict that exists in this case, with all of its consequential, attitudinal and practical issues, and despite the character and personality weaknesses that both parents possess, each parent seems to have adequate capacity to provide for the needs of the child, including emotional and intellectual needs. As noted earlier, [Mr S] frankly acknowledged that if one parent died, the other would be more than capable of caring for the child.
The parental conflict is problematic. It is possible, but not necessarily likely, that this conflict will abate with the end of this litigation, and with the mother’s return to the USA, it is possible that both parents will feel freer to move on with the rest of their lives…
Regrettably, paragraph [134] represented the triumph of optimism over reality.
Paragraph [133], though, represents a dynamic that is still present, even today. That is that each parent presents to the Court, through their evidence, as having a high capacity to conduct normal lives, and to be adequate parents in relation to the child, until the moment they come into contact with each other. At which point it is almost like they become different people.
At paragraph [162] of the final reasons for judgment, I discuss risk in relation to the child, and I say there that the evidence before the Court does not indicate that the risk of harm to the child is anything other than that which was previously identified; the risk of continued exposure to the intractable conflict between the parents. I note that nothing has changed.
The issue that has presented on the evidence before the Court, untested as it is, is the fact that the child has been unable to have sustained and unproblematic communication with the mother. This is an issue that could have and should have been resolved without the intervention of this Court, but for the intractable conflict that the parents continue to be engaged in and have been since the day that the child was born.
THE PROPOSALS
There are three proposals before the Court. These will be annexed as schedules to these reasons for judgment. The mother’s proposal MFI1 (schedule one), the father’s proposal MFI2 (schedule two) and the Independent Children’s Lawyer’s proposal; MFI3 (schedule three).
The father’s proposal is, in short, to reduce the frequency of the child’s time with the mother, on the basis that, the history of the matter to date indicates that most of the attempts at communication since the orders were made have been problematic and resulted in the child being exposed to parental conflict. The other concern that the father has is being able to, in effect, moderate or supervise the child’s time with the mother by being present, even if it is not directly, but perhaps even in the vicinity of the communication occurring. This is put on the basis that it is a measure to protect the child from what the father describes, in his evidence, as inappropriate conversations between the child and the mother. The reduction of time is advanced as a measure to reduce the child’s exposure to the parental conflict. The evidence of both parents in this case shows a long history of sustained problematic communication.
The mother’s proposal addresses the issue of parental conflict that the Court has identified by suggesting that there be a significant increase in the frequency of the child’s time with the mother. Instead of the three days currently, and contrary to the father’s proposal to reduce it to one day, the mother proposes that communication between her and the child increase to six days each week, together with the option of additional video communication. The mother’s case seems to focus on what she perceives to be the father’s persistent obstruction to the implementation of the existing Orders 25 and 26. In reality, when the evidence of the parents is put together, it appears that they simply have not been able to satisfactorily agree to the means of communication, and whether the father should be present or not.
The Independent Children’s Lawyer’s proposal is that the existing Orders be maintained at three times a week, with provision for a specified form of communication, namely, WhatsApp, and also provision of orders that provide for make-up time. There is also a proposed Order at 1.7 of MFI3 in relation to privacy, in the sense that the father not be present in the room other than for the purposes of assisting the child to commence and conclude the call.
DISCUSSION
This is, of course, an interim hearing. I have, of course, the final reasons for judgment, which include findings of fact in respect of which no appeal has been lodged. Further, I am entitled to form impressions from the material before the Court, and the matters that were put before me.
Some things are crystal clear. For example, that the intractable parental conflict continues. What I will describe as the rigid thinking of both the parents, and their struggle to conceptualise what it must be like, either to be the child, or the other parent, is plainly manifest. That is not to say that it is equal. The father, in his sworn evidence, for example, at paragraphs 37 and 72 of his Affidavit filed 20 February 2025, deposes to some self-limitations, and provides a reflection that he could have done better. That acknowledgment and reflection is absent from the mother’s sworn evidence. The Court gave the mother an opportunity to reflect on her behaviour that opportunity to provide some insight was not taken.
The father and the Independent Children’s Lawyer both propose that the application known as WhatsApp be used. The proposed orders formulate a quite prescriptive regime for what is known as a group call between the child and the parents; established using that application. I gave the mother the opportunity to explain what was wrong or inappropriate about using WhatsApp. It is clear that it is not her preference. In her proposal she nominates a number of other applications, including Microsoft Teams, as preferences. What is plain from the evidence of the parents is that the prior use of Microsoft Teams has been entirely problematic. The Court simply does not understand why the mother would suggest that it continue in the circumstances of this case.
The impression that is created is a sad one, from the child’s perspective. The struggle between the parents about which application they should be using to communicate with each other and with the child is, in effect, a power struggle. A power struggle that is inextricably linked to their intractable conflict, which has not abated, in the least bit, since final orders were made.
No compelling case is made by the mother against the use of WhatsApp. I do not accept her contentions that, whilst she would comply with the order, it could not be done as quickly as the orders say. No plausible reason was advanced why she could not download the WhatsApp application to make the implementation of the father’s and Independent Children’s Lawyer’s proposed order possible.
A strong impression is formed that during the course of communication, or during attempts at communication between the child and the mother, that the child has been exposed to the intractable parental conflict of the parents. A further impression is formed that it is likely that, the mother, and possibly also the father, have said things in the presence of the child, in the context identified above, that are clearly inappropriate. The orders that were originally made on 13 October 2023 were intended to be prescriptive, but as long experience in this jurisdiction demonstrates, parents in conflict seem to find holes in even prescriptive orders.
The orders that are proposed, certainly by the Independent Children’s Lawyer, and to a certain extent the father, are prescriptive, or certainly more prescriptive in nature. It is regrettable, from the child’s perspective, that the parents seem to approach any problem relating to him as a battle to be fought, rather than a problem to be solved.
VARIATION OF ORDERS
The Court intends to make orders consistent with those proposed by the Independent Children’s Lawyer, save for these changes. I believe that most of these changes are not controversial as between the father and the Independent Children’s Lawyer.
In Order 1.1, where it says 48 hours, I am going to make that two-hours. In Order 1.2, where it says 48 hours, I am going to make that twelve hours. In Order 1.4, I am going to change it to when Monday, Wednesday and Saturday between 7:45 am and 8:15 am, instead of 7:30 am to 8:00 am. The orders will otherwise be made in terms of the document that I have marked A, initialled and dated today’s date. I do not intend to remove any requirement for the father to excuse himself, other than for the purposes of assisting the child to commence and conclude the call.
It is noted that the father agrees for orders to be made that allow for make-up time. The mother’s proposal is, frankly, unrealistic, and does not respond to the issues before the Court. The proposal shows not just a lack of insight into the needs of the child, but also a focus on her own rights and entitlement, as well as an inability to see that she too has contributed to the conflict and the dilemma that the child faces. The contravention applications will be adjourned to a future date.
RECUSAL
I have given the following matter long consideration. I choose to recuse myself from any further involvement in this matter, and I vacate any listing of this matter that is before me.
The common law says that I do not need to provide reasons for recusing myself. Nonetheless, I will provide some brief reasons for the parents. I have reached the point in this matter, remembering that I have been on this journey with you since 2020. If I cannot further help you to in relation to the child, then there is no point me being involved in the matter. I appreciate that I have given you multiple opportunities to ask me to recuse myself, based on the findings I made in my final reasons for judgment dated 13 October 2023, and you have not taken that.
I do not know whether that reflects some confidence in my judgment or merely reflects the pragmatic reality that I know more about the child in this case than anybody else does. Your reasons for not making the recusal application are yours. My reasons for recusing myself is that I just do not think I can help you anymore. It may be that a fresh face might have different perspectives. I think, I have reached the end of my capacity to assist the child and to assist both of you. I am sure the Court can find another judicial officer in whose hands you will be well looked after.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 3 March 2025
SCHEDULE ONE
Video Communication Between the Applicant and the Child
1.The Applicant shall have scheduled video calls with the child, X, on the following days and times:
a.Monday, Wednesday, Thursday, Friday, Saturday, and Sunday at 7:30 AM (child’s local time).
2.The Applicant shall have additional video communication with the child at reasonable times, provided such calls do not occur before 6:30 AM or after 9:00 PM (child’s local time). The Respondent shall not interfere with or restrict these additional calls.
3.All video communication shall take place on a dedicated device belonging to the child, and the Respondent shall ensure that:
a.The device remains charged, functional, and accessible to the child at all scheduled and additional call times.
b.The child has independent access to the device without requiring the Respondent’s permission or involvement.
c.The Respondent does not withhold, disable, or restrict the child’s access to the device.
4.Video communication shall be facilitated using the following platforms, including but not limited to:
a.Microsoft Teams
b.Google Meet
c.Messenger Kids (via a dedicated account for X on facebook, controlled by the Applicant)
d.Caribu (for interactive play)
5.The Respondent shall not be present during video calls, except in cases where the child requests assistance with technical issues and such. If such assistance is required, the Respondent must immediately leave the area once the issue is resolved.
6.The Respondent shall not obstruct, interrupt, or otherwise interfere with the Applicant’s communication with the child.
7.If any scheduled call is missed or disrupted, the Applicant shall be entitled to an immediate makeup call on the following day at 6pm (child local time)
8.The Respondent shall ensure that the child is not discouraged, influenced, or coached regarding communication with the Applicant.
SCHEDULE TWO
RESPONDENT FATHER PROPOSED AMENDMENTS TO ICL’S MINUTE OF ORDER
1.That Order 25 of the orders made 13 October, 2024 and varied by way of orders dated 23rd January, 2024 be further varied as follows:-
1.1Within
forty-eight (48)two (2) hours of the date of this order the father shall inform the mother of a mobile phone number which has international coverage and which can be utilised by “What’s App”.1.2Within
forty-eight (48)two (2) hours of the date of this order the mother shall inform the father of a mobile phone number which has international coverage and which can be utilised by “What’s App”.1.3That within t
wenty-four (24)four (4) hours of the Mother’s compliance with order 1.2 the father shall create a “What’s App” group called “[X] Communication” for X and the mother to utilise for the purpose of facilitating communication between X and the mother when X is in the father’s care and between X and the father when X in in the mother’s care.1.4The mother shall communicate with X each
Monday,Wednesdayand Saturdaybetween7.30 and 8.00 am7.45am and 8.15amusing the “What’s App” X Communication group established pursuant to Order 1.3by the father calling the mother via WhatsApp.1.5
1.5 That in the event that X has a commitment which will prevent him communicating with the mother in accordance with Order 1.4 the father shall give to the mother 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
1.6 That within twenty four hours of being notified of the alternative times pursuant to order 1.5 the mother shall chose such time and communicate her choice to the father via the “What’s App” message function.1.7
1.7 That when X is communicating with the mother the father 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.1.8The parties shall communicate with each other about the child by text message via WhatsApp, except in emergencies when communication shall be by calling the other parent via Whatsapp.
SCHEDULE THREE
IN THE FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA
AT SYDNEY
DIVISION ONE Matter No. SYC5643 OF 2020BETWEEN: MS SHAO
(Applicant)AND: MR NEEDHAM
(Respondent)AND: INDPENDENT CHILDREN’S LAWYER
INDEPENDENT CHIDLREN’S LAWYERS
PROPPOSED MINUTE OF ORDER9.That Order 25 of the orders made 13 October, 2024 and varied by way of orders dated 23rd January, 2024 be further varied as follows:-
1.1Within forty-eight (48) hours of the date of this order the father shall inform the mother of a mobile phone number which has international coverage and which can be utilised by “What’s App”.
1.2Within forty-eight (48) hours of the date of this order the mother shall inform the father of a mobile phone number which has international coverage and which can be utilised by “What’s App”.
1.3That within twenty-four (24) hours of the Mother’s compliance with order 1.2 the father shall create a “What’s App” group called “[X] Communication” for X and the mother to utilise for the purpose of facilitating communication between X and the mother when X is in the father’s care and between X and the father when X in in the mother’s care.
1.4The mother shall communicate with X each Monday, Wednesday and Saturday between 7.30 and 8.00 am using the “What’s App” X Communication group established pursuant to Order 1.3.
1.5That in the event that X has a commitment which will prevent him communicating with the mother in accordance with Order 1.4 the father shall give to the mother not less than seventy-two hours (72) 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.
1.6That within twenty-four (24) hours of being notified of the alternative times pursuant to order 1.5 the mother shall chose such time and communicate her choice to the father via the “What’s App” message function.
1.7That when X is communicating with the mother the father 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.
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