Pierce & Pierce (No 2)
[2025] FedCFamC1A 162
•12 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pierce & Pierce (No 2) [2025] FedCFamC1A 162
Appeal from: Pierce & Pierce [2025] FedCFamC1F 409 Appeal number: NAA 338 of 2025 File number: SYC 4302 of 2024 Judgment of: ALDRIDGE, CAMPTON & CHRISTIE JJ Date of judgment: 12 September 2025 Catchwords: FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Where the grounds of appeal are dense, repetitive and prolix – Where the construction of Pt VII of the Family Law Act 1975 (Cth) directs focus to the consideration of safety to a child or another person when determining a parenting regime that best promotes the best interests of the child – Where no complaint on appeal has merit – Where serious, scandalous allegations are made by the appellant absent a scintilla of cogent evidence to support them – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum – Appellant referred to the NSW Legal Services Commissioner. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 60CG, 114UB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Mental Health Act 2007 (NSW)
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Shinohara & Shinohara [2025] FedCFamC1A 126
Number of paragraphs: 55 Date of hearing: 26 August 2025 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Grew Solicitor for the Respondent: De Saxe O’Neill Family Lawyers Counsel for the Independent Children's Lawyer: Mr Dean Solicitor for the Independent Children's Lawyer: NLS Law ORDERS
NAA 338 of 2025
SYC 4302 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PIERCE
Appellant
AND: MS PIERCE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE, CAMPTON & CHRISTIE JJ
DATE OF ORDER:
12 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed
2.The appellant pay the respondent’s costs fixed in the sum of $11,155.76 within 21 days.
3.The Principal Registrar is directed to forward a copy of these reasons and the transcript of the appeal hearing to the Legal Services Commissioner of New South Wales.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pierce & Pierce (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, CAMPTON & CHRISTIE JJ
By way of an Amended Notice of Appeal filed on 13 August 2025, Mr Pierce (“the father”) appeals from interim orders regulating the parenting of three children aged five, almost four, and approaching two years of age, made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 20 June 2025. Ms Pierce (“the mother”) and the Independent Children’s Lawyer (“the ICL”) oppose the appeal.
The orders subject to challenge provide for the mother to have sole decision-making responsibility for all major long-term issues, including medical decisions for the children, for the children to live with the mother and spend no time with the father, and injunctive orders restraining the father from contacting or attending upon the children’s daycare or school and medical practitioners.
The proceeding is listed for final trial commencing on 13 October 2025.
For the reasons that follow, the appeal is dismissed.
BACKGROUND
The parents commenced their relationship in late 2010 and married in late 2018. The eldest child was diagnosed with a medical condition in early 2023, generating substantial pain and a decrease in mobility.
The father experienced “manic episodes” shortly after the birth of the parties’ youngest child in early 2024 (at [15]). The mother said that the father was behaving irrationally and erratically and engaged in acts of physical violence. She relocated with the children to the maternal grandmother’s home. The father was involuntarily hospitalised pursuant to the Mental Health Act 2007 (NSW) for a month. The children remained living with the mother. The father attempted to re-establish contact with the children following his discharge from hospital having supervised time with the children at the mother’s discretion in February and March 2024.
On 9 July 2024, interim consent parenting orders were made, including the following notation:
A.The Parties agree that the children will spend time with the Father pending interim hearing facilitated by [the contact centre], with such time to occur in the community. The Mother has contacted [the contact centre] for the purposes of her intake process. The Father will do so within 48 hours. The Father’s agreement to spend time with the children through [the contact centre] is on a without admissions and without prejudice basis to his interim application and is not a concession that there is any requirement or need for the children’s time with him to be supervised.
(Emphasis in original)
In mid-2024, a Final Apprehended Domestic Violence Order (“ADVO”) was made in the Local Court for the protection of the mother. The father was thereafter arrested and charged with breaching the conditions of the ADVO. He was incarcerated later in the year for a few days. He was arrested again in early 2025 for further breaches of the ADVO and breaching bail conditions, being again incarcerated for 25 days. In early 2025, he pleaded guilty to all of the alleged breaches of the ADVO which included sending multiple abusive text messages to the mother on a single day, attempts to collect the children in violation of court orders, and unapproved visits to medical practitioners. He was placed on a corrections order. The total period of his incarceration was 33 days (at [21] and [94]). The father contends that the ADVOs were “malicious” and “obtained by fraud” (at [95]). Since early 2025, he has attempted to have the ADVO revoked.
On 10 October 2024, interim consent orders were made providing for the children to spend professionally supervised time with the father at a contact centre for two hours every Saturday between 10.00 am to 12.00 pm. The father’s failure to comply with the procedural and safety requirements of the contact centre service agreement led to it ceasing to provide the supervised time service (at [19] and [98]–[99]).
Notwithstanding these orders, the father contended before the primary judge that up until the date of that hearing the Court had “not made any material orders in [the parenting] proceeding” (at [97]).
Evidence was adduced as to the father arriving unannounced at the children’s daycare centre in early 2025 seeking access to the children. The centre enacted its lockdown protocol and called the police (at [23]). A further provisional ADVO was issued in early 2025 restraining and prohibiting the father’s conduct and naming the mother and the children as protected persons.
The eldest child’s health challenges have generated intensified conflict between the parties (at [24]–[34] and [36]–[60). The eldest child’s condition has necessitated ongoing specialist medical reviews, physiotherapy, pain management and the likelihood of future surgery. The father has at times disputed the appropriateness or necessity of these treatments. He has recorded conversations with the child’s specialist physician without obtaining consent. His engagement with treating physicians has also included threatening the treating medical specialists with legal action. His interactions resulted in both the specialist and the physiotherapist ceasing to treat the child by December 2024. The specialist resumed treatment of the child on 14 April 2025.
The primary judge concluded that the father exhibited “an alarming lack of insight in respect to the emotional and psychological needs of the children” (at [60]); had not exhibited the “required parental capacity to provide for the children’s developmental, psychological and emotional needs, in terms of s 60CC(2)(d) of the Family Law Act 1975 (Cth) (“the Act”)” but was “satisfied that the mother has that capacity” (at [63]); that the father failed to acknowledge the extent of his mental health challenges; and as a result had failed to take steps to address his mental health including by taking prescribed medication and engaging in a program to monitor his mental health (at [70]). Many of the father’s complaints on appeal are directed to these intermediate conclusions.
Giving context to these conclusions, the reasons record that in 2017, the father’s then treating consultant psychiatrist, Dr B, opined that the father lives with bipolar and borderline personality disorder (at [76] and [77]), noting that the father had been admitted in a manic state with paranoid delusions to a clinic in January 2015, and that the father had not been “entirely forthcoming” as to his mental health challenges and history. On 1 July 2024, another psychiatrist, Dr C, opined that the father has a bipolar illness on a background of ADHD. On 11 November 2024, the ch 7 single parenting expert, Dr E, recorded that the father accepted the diagnosis of bipolar disorder.
The father denies these diagnoses (at [84]). The primary judge said that any finding as to diagnosis would be a matter for the final hearing (at [81]). The reasons record that the ch 7 single parenting expert opined, and the primary judge accepted, an absence of ability of the father to accurately perceive events, and that his psychiatric presentation impairs his capacity to care for the children or to coparent (at [83]).
It is the father’s own case that he has not taken prescribed medication since December 2024 and that he has no need for it.
The mother adduced evidence of the father engaging in a pattern of coercive and controlling conduct, acts of physical violence and threats of violence to her and other people. The reasons record (at [87]):
87.While it is a matter to be determined at final hearing, there is a significant issue as to whether the father has engaged in conduct of that nature. This includes, if the mother’s evidence is to be accepted at final hearing that the father (mother’s affidavit filed 1 May 2025, paragraph 69):
•Banged his head against a wall until bleeding in front of the children.
•Cracked a glass sliding door during an argument in front of the children.
•Jumped from a balcony after becoming agitated at a celebration.
•Put his head through a wall at his mother’s home in front of the children.
The primary judge did not make findings as to the father’s alleged violence. That said, a finding was “unquestionably” made that the father had failed to comply with the ADVO (at [88]–[91]). The reasons record a significant volume of independent material to support that conclusion, coupled with the father’s guilty plea to the breach charges. The primary judge said (at [101]) that there is a realistic possibility that the evidence relied upon by the police for the purposes of the ADVOs will be found to have substance at the final trial, including by way of the father’s own statement to the police that he had adduced into evidence.
As to the interim order that the father spend no time with or communicate with the children, the reasons record:
68The children are, in my view, at an unacceptable risk in spending time with and communicating with the father primarily as result of the father’s failure to acknowledge his significant mental health challenges with consequent irrational and dysregulated behaviour. This has adversely impacted the mother and the children.
…
99The father’s failure to acknowledge the validity of orders of this Court, the ADVO and procedural and safety requirements of the Service Agreement with the professional contact service […], is a significant concern. This is particularly so in circumstances where he has engaged in conduct that has adversely impacted the mother and the children including interfering with the mother’s efforts to obtain appropriate medical treatment for the children including, in particular, [the eldest child].
100As earlier noted by reference to [SS v AH [2010] FamCAFC 13], despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility of considering the issue of risk. This is because the Court should not make orders for a child to spend time with a parent unless the court is satisfied that it is safe to do so: s 60CC(2)(e) of the Act.
…
102In the context of the father failing to acknowledge the validity of orders of this Court and the ADVO, and having regard to the father’s past problematic engagement with professional contact services to which I have referred, I am not satisfied that the father will comply with the protocols and procedures of any professional child contact supervision service. I therefore find that the father should not spend time with the children even if that time were to be supervised.
103I am also of the view that there should be no communication between the father and the children in circumstances where the father has failed to acknowledge the validity of orders of the Court including restraints regarding the manner in which he is to engage with the children. There is therefore, in my view, an unacceptable risk that he will make comments reflecting upon his dispute with the mother and causing distress to the children.
104Accordingly, for these reasons, I am not satisfied that it is safe for the children to have a relationship with their father, in terms of s 60CC(2)(e) either by spending time with him or communicating with him unless and until he:
(1) Acknowledges the extent of his mental health challenges;
(2)Takes steps to stabilise his mental health including by taking prescribed medication where it is advised for him to do so; and
(3)Commits to a programme of ongoing monitoring of his mental health.
105I therefore agree with the submissions of counsel for the mother and also counsel for the ICL that there should be interim orders for the children to live with the mother and spend no time and have no communication with the father.
(Bold emphasis added)
Then as to interim long-term decision making, the reasons record:
114…The father’s continuing failure to acknowledge the validity of that order, particularly in circumstances where he pleaded guilty to breaching the order, is a matter of great concern. For reasons that I have earlier set out in detail, I am not satisfied that the mother would be safe in her interactions with the father in circumstances where he has failed to acknowledge the validity of the ADVO and he has failed to comply with its terms.
115Additionally, the father has engaged in conduct that has impeded the mother’s efforts to obtain appropriate health intervention for the children and, in particular, [the eldest child]. Her efforts to engage with the father in respect to that treatment have come to grief with the father taking the opportunity to communicate with the relevant medical health providers in an inflammatory and threatening manner.
116For these reasons, I am satisfied that the mother should have sole parental responsibility without the requirement to consult with the father in respect to major long-term issues impacting upon the children.
(Emphasis added)
THE APPEAL
The primary judge in this matter exercised a broad discretion in making orders regulating the parenting of the children pending trial pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”). It is well established that for an appellant to succeed in an appeal from an exercise of that discretion they must bring their appeal within one of the recognised categories of appellate intervention identified by the High Court in House v The King (1936) 55 CLR 499, namely the primary judge's discretion miscarried by:
(a)Making an error in approach or principle;
(b)Failing to consider a relevant circumstance and/or considering an irrelevant circumstance;
(c)Making an error in the findings of fact such that the finding is unsupported by the evidence; or
(d)Making orders that fall so outside a reasonable exercise of discretion that the orders were "unreasonable or plainly unjust".
The weight or importance given to evidence in the exercise of discretion in making interim parenting orders that promote the best interests of children is a matter quintessentially for the primary judge. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge.
An obligation rests with an appellant to succinctly identify in clear terms the errors alleged to be made in the judgment under challenge (Shinohara & Shinohara [2025] FedCFamC1A 126 at [20]). The father’s 28 repetitive and prolix grounds, conflating disparate categories of asserted error, are:
1.His Honour’s decision is plainly unjust in holding that guess work or intuition is to be used by the Court to determine whether the appellant has in fact been diagnosed with and in fact suffers bipolar disorder, borderline personality disorder and neurodivergence as well as mental illness/es, disorder/s and mental health issue/s as opposed to applying the principle to the evaluation of risk based upon facts amounting to more than mere speculation thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent instead of the appellant.
2.His Honour’s decision is plainly unjust given that His Honour dishonestly and knowingly applied a false positive caused by the appellant that the appellant in fact suffers from neurodivergence that was intended by the appellant to prove the knowingly false statements made by His Honour, the Commissioner of the New South Wales Police Force by their delegate/s, [Dr F, Dr C and Dr E], as well as the respondent’s friends, family and relatives, that the appellant in fact suffers purported mental illnesses, disorders and issues that he does not in fact suffer thereby causing the children to be at a significant risk of harm by causing the children to live with the respondent instead of the appellant.
3.His Honour’s decision is plainly unjust given that he has merely speculated that the appellant has in fact been diagnosed with and in fact suffers bipolar disorder, borderline personality disorder and neurodivergence as well as mental illness/es, disorder/s and mental health issue/s that he does not in fact suffer given that it was and remains an undisputed fact that none of the psychiatrists relied upon by His Honour in fact diagnosed the appellant as suffering any such illnesses thereby causing the children to be at a significant risk of harm by causing the children to live with the respondent rather than the appellant.
4.His Honour’s decision is plainly unreasonable given that he has merely speculated that the appellant has in fact been diagnosed with and in fact suffers bipolar disorder, borderline personality disorder and neurodivergence as well as mental illness/es, disorder/s and mental health issue/s that he does not in fact suffer given that it was and remains an undisputed fact that on His Honour’s own reasoning the psychiatrists relied upon reports of diagnoses by individuals who are not qualified to provide such reports thereby causing the children to be at a significant risk of harm by causing the children to live with the respondent rather than the appellant.
5.His Honour judgment is plainly unjust given that His Honour relied upon diagnoses of bipolar disorder, borderline personality disorder and neurodivergence as well as mental illness/es, disorder/s and mental health issue/s never in fact made and never in fact suffered by the appellant thereby causing the children to be at a significant risk of harm by causing the children to live with the respondent rather than the appellant.
6.His Honour’s judgement is plainly unjust in holding that it is in the best interests of the children that they live with the respondent on the grounds that the purported ADVOs and criminal charges were and remain able to be actioned by the respondent and the Commissioner of New South Wales Police Force by their delegate/s thereby causing the children to be at a significant risk of harm by causing the children to live with the respondent rather than the appellant.
7.His Honour’s judgement is plainly unjust in holding that the children should not live with the appellant where His Honour has found that the appellant poses no risk to the children and not disputing the violence committed by the mother against the father and the children thereby causing the children to be at a significant risk of harm by causing the children to live with the respondent rather than the appellant.
8.His Honour’s judgement is plainly unjust given that it relies upon purported ADVOs and criminal charges admitted by the Court and the Commissioner of the New South Wales Police Force as having been maliciously obtained and prosecuted thereby causing the children to be at a significant risk of harm by causing the children to live with the respondent rather than the appellant.
9.His Honour’s judgement is plainly unjust given His Honour did not take into account material considerations in holding that the videos were of no relevance as described by the father given that these videos were not disputed by the mother nor the ICL and are entirely contrary to case put by the mother and the ICL thereby causing the children to be at a significant risk of harm by causing the children to live with the respondent rather than the appellant.
10.His Honour is plainly unjust given His Honour did not take into account material considerations in holding that the videos were of no relevance given that he was not a doctor and thus could not determine from the videos that [the eldest child] did not require medicinal marijuana and was stupefied by Clonidine thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
11.His Honour allowed irrelevant matters to guide him in placing weight upon purported reports of the Department of Communities and Justice (“the Department”) where there was no evidence whatsoever that the Department had spoken to any of [the eldest child’s] treating specialists thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
12.His Honour’s judgement is plainly unjust in holding that it is in the best interests of the children that they live with the respondent in the face of the undisputed findings of [Dr G] that (a) the mother caused [the exacerbation of the child’s medical condition] (b) [injury of the eldest child](c) the purported need for [medication] (d) the all but certain need for [the eldest child] to suffer a [surgical procedure] thereby causing the children to be at a unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
13.His Honour’s judgement is plainly unjust in holding that it is in the best interests of the children that they live with the respondent given that His Honour found that the appellant has never in fact been diagnosed with and does not in fact suffer bipolar disorder, borderline personality disorder nor neurodivergence thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
14.His Honour’s judgement is plainly unjust in holding that it is in the best interests of the children that they live with the respondent when His Honour did not turn his mind to the violence committed by the respondent upon the appellant and the children thereby causing the children to be at a unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
15.His Honour’s judgement is plainly unjust in holding that it is in the best interests of the children that they live with the respondent as His Honour required the appellant to provide objective evidence in corroboration of the violence committed by the mother upon the appellant and the children as stated by the appellant thereby causing the children to be at a unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
16.His Honour’s judgement is plainly unjust in holding that it is in the best interests of the children that they live with the respondent on the grounds that the respondent is the children’s primary attachment when no evidence was provided by the respondent to ground this finding as fact and in rejecting evidence provided by the father showing that the appellant is in fact the children’s primary attachment noting that the appellant did not admit the validity nor relevance of primary attachment theory.
17.His Honour’s judgement is plainly unjust in holding that the appellant required corroborating evidence of the facts stated by the appellant shewing that the respondent intentionally compelled the appellant within the meaning of Crimes Act 1900 (NSW) to take poisons including anti-psychotics that the respondent knew and knows the appellant does not in fact need thereby causing the children to be at a unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
18.His Honour judgement is plainly unjust as His Honour did not find that the facts deposed to by the appellant stating the family violence committed by the respondent in the instant case are materially analogous to that of Salah & Salah [2016] FamCAFC100 thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
19.His Honour’s judgement is plainly unjust as His Honour found that the appellant required corroborating evidence in respect of the facts provided by the appellant against [the contact centre] and relying upon the purported evidence of [the contact centre] instead of the facts provided by the appellant thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
20.His Honour’s judgement is plainly unjust as His Honour required corroborating evidence in respect of the facts provided by the appellant against the psychiatrists who are said to have attended upon the appellant thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
21.His Honour’s judgement is plainly unjust as His Honour found that the appellant required corroborating evidence in respect of the facts stated by the appellant against the Commissioner of the New South Wales Police Force, acting by their agent/s, shewing malicious prosecution, false imprisonment and aiding and abetting of the respondent in her and their malicious prosecution and false imprisonment of the appellant and criminal acts and actions against the appellant and the children thereby causing the children to be at a unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
22.His Honour erred in quarrelling with the “legality” of the evidence of [Dr G’s] expert opinion dated 28 October 2024 when neither the mother, nor the purported ICL, pointed to any law that caused the recording to be inadmissible rather than taking into consideration and applying the fact that [Dr G] made findings that: (a) The conduct of the mother, her friends, family and relatives in knowingly and intentionally causing [the eldest child] to perform impact activities caused [the exacerbation of the eldest child’s medical condition]; (b) The conduct of the mother, her friends family and relatives in knowingly and intentionally causing [the eldest child] to perform impact activities caused the all but certain need for [the surgical procedure]; (c) The conduct of the mother, her friends family and relatives in knowingly and intentionally causing [the eldest child] to perform impact activities caused the purported need for [medication]; (d) the conduct of mother, her friends family and relatives in knowingly and intentionally causing [the eldest child] to perform impact activities caused [the exacerbation of the eldest child’s medical condition] thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
23.His Honour’s decision is plainly unjust given that His Honour found that the mother’s safety is the paramount consideration as opposed to the safety of the children and what is in the best interests of the children thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
24.His Honour’s decision is plainly unjust given that the facts of the appellant concerned a range of behaviour from verbal and emotional abuse to physical abuse in the form of the mother committing attempted murder upon the children and grievous bodily harm upon [the eldest child]. The mother concedes that the mother, her friends, family and relatives intentionally and knowingly caused [the eldest child] to engage in impact activities against the advice of [the eldest child’s] treating medical specialist [Dr G] knowing and intending that doing so would cause [the exacerbation of the eldest child’s medical condition], the all but certain need for [the surgical procedure], the purported need for [medication] and [the eldest child’s injury], again, the appellant’s case is on materially analogous in the sense of the family violence reported by the appellant with Salah & Salah [2016] FamCAFC 100 and His Honour was bound to find in favour of the appellant and thereby the children.
25.His Honour erred in causing filing of purported trial affidavits during the period during which a Notice of Appeal was able to be filed by the appellant thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
26.His Honour’s decision is plainly unjust given that His Honour elevated an Order that was never made expressly to an expressly made Order thereby causing the children to be at an unacceptable risk of harm by causing the children to live with the respondent rather than the appellant.
27.His Honour’s decision is plainly unjust given his reliance upon purported evidence of [H Centre] given the fact that it took no issue with [the eldest child] performing impact activities.
28.His Honour’s decision is plainly unjust given that the facts of the appellant concerned a range of behaviour from verbal and emotional abuse to physical abuse in the form of committing attempted murder upon the appellant, as committed by the mother, the mother committing attempted murder upon the children and grievous bodily harm upon [the eldest child]. The mother concedes: (a) that neither the mother nor the Commissioner of the NSW Police Force sought a “no contact” Order ‘condition 6’ (‘no contact condition’) (b) that the mother made false statements of domestic violence against the appellant stating that she ‘wanted’ to be ‘bruised’ (c) that the purported criminal charges and ADVOs were malicious and imprisonment false.
(Emphasis added)
It is counterintuitive for a ground of appeal to contend simultaneously a material error of fact or other discretionary error and to also contend that no specific error can be identified but that the decision can be demonstrated to be unjust or plainly unreasonable.
The father’s Summary of Argument comprises 14 paragraphs, being one and a half pages in length. It does not identify or address any specified ground of appeal, making no reference to the Appeal Book. It utterly fails to comply with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). During the hearing of the appeal, the father said that the Summary of Argument was a “breakdown summary” of the 28 grounds recorded in the Amended Notice of Appeal. The father obtained leave for the contents of his Notice of Appeal filed on 18 July 2025 to become his Summary of Argument in support of the grounds identified in the Amended Notice of Appeal.
THE FATHER’S APPLICATION IN AN APPEAL TO DISPENSE WITH THE OBTAINING OF THE TRANSCRIPT FILED ON 13 AUGUST 2025
On 19 August 2025, the determination of this application was adjourned to the hearing of the appeal. An order was made at the hearing of the appeal discharging the order made by the appeal registrar for the father to obtain and file the transcript.
THE FATHER’S THIRD AMENDED APPLICATION IN AN APPEAL FILED ON 21 JULY 2025
The father sought leave to adduce evidence on appeal by way of his affidavit sworn on 19 July 2025 and filed on 21 July 2025. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) gives an unfettered discretion to admit further evidence on appeal. The discretion exists to serve the demands of justice and is informed by a consideration of a number of factors (CDJ v VAJ (1998) 197 CLR 172; Hsiao v Fazarri (2020) 270 CLR 588 at [43]). The father conceded that the additional evidence to be adduced in the affidavit was available at the time of the hearing before the primary judge. He did not explain why he neglected to adduce it. He said the evidence was relevant to Ground 2 and conceded that the content of the proposed further evidence was not known to the primary judge. He could not explain how the evidence, of which the primary judge had no knowledge, could establish error, or why it was necessary to receive it to avoid an error that could not otherwise be remedied by the application of conventional appellate principles. The Application in an Appeal to adduce further evidence will be dismissed.
CONSIDERATION
The father conducted the appeal without legal representation. Until recent times he held a practising certificate, appearing in proceedings under the Act and the FCFCOA Act. He said he was outside of Australia at the time of the hearing of the appeal, obtaining the indulgence to appear electronically.
At the commencement of the hearing of the appeal, enquiry was made of the father as to why the prosecution of his appeal was not an abuse of process where, if his appeal was successful and orders were made as he sought on the re-exercise of discretion that the children immediately live with him:
(a)How he would be in a position for the children to live with him in circumstances where he had not disclosed whether he would return to Australia, and if he did, when he would so return; and
(b)Having regard to the proximity of the final hearing, and strong discretionary factors being indicative that it would not be in the interests of the children to have multiple changes to their living arrangements in short compass.
The father either elected not to engage with these enquiries or was incapable of engaging with them. Notwithstanding this failure or neglect, and both the density and repetitive content of the grounds and the circular oral submissions made by the father during the hearing of the appeal, to give some semblance of structure to these reasons, we will adopt the approach of grouping the categories of complaint made in his appellate challenges, as best as we can understand them. To do otherwise by addressing each individual ground of appeal would occasion a waste of judicial resources, highlighted by the failure of the father to make elucidated submissions providing clarity to the grounds.
Portions of the grounds, including but not limited to Ground 23, make complaint as to an error in the identification of principle and its application in the assessment of a conclusion as to a child or person being exposed to an unacceptable risk of harm to their safety. During the hearing of the appeal, the father submitted that the primary judge failed to apply principle as identified by this Court in Isles & Nelissen (2022) FLC 94-092 (“Isles”).
The construction of Pt VII of the Act subsequent to the 2024 amendments places a consideration of the safety of a child or another person as a focused starting point in the considerations being weighed in determining a parenting regime that best promotes the best interests of the child and are to be given their ordinary meaning (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355):
·A parenting order must not expose a person to an unacceptable risk of family violence (s 60CG).
·The Court must consider the arrangements that promote the safety of the children and other persons (s 60CC(2)(a)).
·The Court must consider whether any family violence order applies and any history of family violence, abuse or neglect involving children or a person caring for them (s 60CC(2A)).
The principles in assessing whether risk is unacceptable as identified in Isles remains a two-step process as to the consideration of the conduct allegations applying the civil standard of proof and assessing the risk of recurrence. In an interim parenting hearing, these considerations are conservatively directed to the likelihood of the postulated event and the prospect and magnitude of harm that may flow if the event occurs.
The reasons record the identification of applicable principle (at [29]–[33]). The complaint as to a failure to apply applicable principle is no more than a bald assertion made absent any further elucidation. The reasons, as recorded herein, are a textbook application of principle for the purposes of Pt VII of the Act and its implementation. No merit ever existed to the father’s complaint. It is not established.
The father’s complaints as to factual error fall into sequential sub-categories.
The first is as to a purported finding of fact that the father lives with a bipolar diagnosis (including but not limited to Grounds 1–5 inclusive and 13). The father’s submissions in support of the complaint were confusing and on occasion nonsensical. He submitted that the impugned finding as to a diagnosis was by way of “guesswork or intuition” and “mere speculation rather than evidence”. He then said that “there is no evidence whatsoever” as to him living with any mental health illness or challenge. The father’s fixated repetitive complaints on this subject matter are misconceived and forlorn.
The reasons record the extensive objective sources of evidence as to the diagnosis of the father’s mental health challenges, adduced from his treating psychiatrists and the ch 7 single psychiatric parenting expert. They expressly record:
71To the contrary, the father contends that his history of poor mental health is not a relevant consideration in determining parenting arrangements because, according to the father, he has never been diagnosed with borderline personality disorder and does not require medication. At the outset, I would make the point that, irrespective of definition or label, the evidence is such that, even in the context of these interim proceedings, I am satisfied that the father has had a history of significant mental illness and that has impacted his conduct which has, in turn, adversely impacted the mother and the children.
…
81I note that, at the final hearing, the father wishes to challenge [Dr E’s] diagnosis of the father’s mental health. Nevertheless, even without having regard to the consistent reference by the father’s treating health professionals that he has a personality disorder, the observations made by [Dr E] of the father’s conduct and manner are relevant.
The primary judge did not make a finding as to the father’s diagnosis as complained but rather recorded the expert evidence in the context of the father’s irrational and dysregulated behaviour and its adverse impacts on the safety of the mother, the children, and others. This, coupled with the father’s failure to acknowledge the extent of his challenges and his failure to take steps to address his conduct, including taking prescribed medication and failing to engage in a program of ongoing monitoring of his health in the context of his history, were indicative of predictive or prospective risk. The foundations for that intermediate conclusion of the primary judge are recorded in significant detail (at [73]–[105]).
The second sub-category of complaint focuses on the ADVOs and the father’s criminal charges, including but not limited to Grounds 6 and 8. The factual error asserted by the father is illustrated by his use of the identifier “purported ADVO”, by which he puts into issue the validity of the final ADVO. It is the father’s case that there was no warrant for the primary ADVO and that the police, on behalf of the mother, maliciously obtained and prosecuted the ADVO. Hence it is his position that because the foundation or basis of the primary ADVO is not valid, any police charges of breaches of it, or of bail undertakings, have no effect and are irrelevant. The primary judge did not make any findings about the conduct underscoring the ADVO. The evidence is unequivocal that the father has been charged with breaches of the ADVO, had been incarcerated on being charged, and then plead guilty to the charges. The challenge as to the factual findings regarding the ADVO breaches, charge and conviction was contrary to the objective evidence. The fact that the father was evasive when directed to these facts at the appeal hearing is revealing.
The third sub-category of factual complaint emerges from Ground 2. The ground makes very serious allegations that the primary judge “dishonestly and knowingly” applied a “false positive” (whatever that may mean) and that the primary judge made “knowingly false statements”, each said to be centred on the following paragraph of the reasons:
57The father’s conduct in so behaving, in my view, is confirmatory of [Dr E’s] opinion that the mother’s management of [the eldest child’s medical condition] had been a focus of hyper-fixation (Report of [Dr E] dated 11 November 2024, paragraph 111). Specifically, on the basis of the mother’s evidence, I accept that the father has a hyper-fixation regarding the appropriateness of the care provided by various professionals to [the eldest child], despite himself lacking the qualifications of a medical practitioner. The mother, on the other hand, has acted entirely appropriately in respect to the children’s care including attending to their medical needs.
To give context to this paragraph, the reasons record the father’s foundations as to why the children were at an unacceptable risk of harm in the mother’s care (at [35]–[42]). They include that the mother has failed to curtail the eldest child’s activities as advised by his treating specialist and that the mother administers harmful medication to the child. The reasons record a conclusion that the father has not presented evidence to establish to the requisite degree the existence of risk he contends (at [43]). The reasons then record the evaluation of the extensive subsidiary evidence (at [43]–[56]) including the father disrupting the eldest child’s medical appointments, the father threatening legal action against the eldest child’s treating specialist and the father recording conversations with the specialist without consent, underscoring the acceptance by the primary judge of the opinion of the ch 7 single parenting expert as to the father’s hyper fixation on the treatment of the eldest child (at [57]). Such opinion is supported by the analysis of a letter dated 16 December 2024 from the father’s treating psychiatrist (at [58]) and documents produced by the Department of Communities and Justice (“DCJ”) (at [59]). The reasons later record:
82In particular, [Dr E] noted the father’s propensity to “fixate” including on the mother’s alleged wrongdoing and showed a lack of insight into his own behaviour (Report of [Dr E] dated 11 November 2024, paragraphs 120–121). The father’s propensity to hyperfocus was evident in his court appearance before me.
83[Dr E] opined that the father lacked the ability to accurately perceive events including in respect to the mother’s compliance with the treatment regime prescribed for [the eldest child’s] condition. [Dr E] expressed concern that the father’s psychiatric conditions will continued to impair his capacity to care for the children or coparent (Report of [Dr E] dated 11 November 2024, paragraph 136). During the proceedings before me, the father continued to challenge the validity of court orders despite him consenting to those orders. He maintained that position in his Written Submissions in Reply (paragraph 23), stating that there was “no ‘live with’ Order made on 10 October 2024” in circumstances where that is a necessary conclusion from the consent orders that provided that the children were to spend limited supervised time with the father.
The father must demonstrate that any material finding made subject to challenge was not reasonably open (Edwards v Noble (1971) 125 CLR 296). Simply because other findings of fact may also have been open on the evidence does not demonstrate that a finding of fact complained of was thus not open or available. Findings of fact are not wrong merely because an appellant can point to some countervailing evidence (Cizek & Mihov (2024) FLC 94-206). It is not enough to displace a factual finding by establishing a differing view (Fox v Percy (2003) 214 CLR 118 at [17]). To establish an error of fact, it is necessary for an appellant to establish that the impugned finding of fact was either demonstrably wrong by incontrovertible facts or uncontested testimony; glaringly improbable; or contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]). The father did not identify any evidence in the Appeal Book as to why the finding of his hyper fixation was not open. His complaints are nothing more than his view that the primary judge ought to have reached a different conclusion. Ground 2 is rejected.
An allegation of judicial misconduct must never be made lightly or recklessly and certainly ought not be made absent any cogent evidence to support it. The father, notwithstanding his training, qualifications, and experience, expressly maintained the allegations identified in Ground 2 during the hearing of the appeal. He knew, or ought to have known, that the allegation was absent any foundation and is grossly disrespectful. It echoes professional alarm should the father seek to renew his practising certificate.
Each of the first, second and third sub-categories of factual complaint dovetail into a complaint as to the substance and integrity of the subsidiary considerations grounding the intermediate conclusions that the father poses an unacceptable risk to the safety of the children and the mother, and that the mother does not pose a risk to the safety of the father or the children (at [43], [59]–[60] and [104]). This complaint includes, but is not limited to, Ground 7, and focuses on family violence. It is a complaint as to weight. The primary judge expressly considered the counter allegations as to family violence, recording that no finding was made as to these allegations, they being a matter for the trial judge (at [87]–[88]).
A consideration of the parties’ own evidence, and other objective sources of evidence identified in the reasons, ground the primary judge’s conclusion that the mother does not pose an unacceptable risk to the children’s safety (at [43]), and the father’s complaint in that regard has no merit. The reasons then go on to record a consideration of evidence as to the historical emotional dysregulation and erratic behaviour of the father and his non-compliance with court orders by way of ADVOs. This evaluation is then coupled with a lack of insight by the father into his behaviour and its impact, and a failure to accept responsibility for that behaviour. The primary judge weighed, in assessing the father’s parental capacity, his failure to acknowledge the impact on the children of removing them from the mother’s care and his incapacity to identify the likelihood of his future behaviour presenting a risk. On appeal, the father did not establish why these conclusions were not open on the evidence.
The father complains as to a factual error as to the children’s primary attachment being with their mother. The mother had been, objectively since separation, “the primary carer for the children” (at [3]). The father did not explain why that finding, or what was recorded (at [62]) as to the children having a primary attachment to their mother as opined by the ch 7 single parenting expert, was not open on the evidence, or was glaringly improbable, or contrary to compelling inferences.
The father makes a series of complaints as to the failure of the primary judge to make findings as sought by him including as to family violence alleged to be occasioned upon him by the mother (Ground 18), expanded by allegations as to the mother attempting to poison him (Ground 17); as to the mother occasioning family violence upon the eldest child (Ground 24); as to the mother attempting to murder him and the eldest child (Ground 28); and as to the mother’s use of the police as her agents for malicious prosecution and false imprisonment (Ground 21). The gravamen of these complaints has been considered and determined earlier in these reasons. Other complaints as to a failure of the primary judge to make findings of fact sought by the father as to his version of the circumstances prompting the contact centre to withdraw their professional supervision services (Ground 19) and as to his psychiatric presentation (Ground 20), were not supported by the father identifying that the findings that he sought were mandated by way of uncontroversial facts or compelling inferences. They are not established.
In so far as the father complains that the primary judge failed to take into account material considerations (including but not limited to Grounds 9, 10, 12 and 14), these subject matters were expressly considered in the reasons at:
(a)[7] as to the video recordings sought to be adduced by the father;
(b)[45], [47], [49], [51]–[52] and [54] as to Dr G’s evidence; and
(c)[36]–[43] and [66]–[67] as to the alleged family violence committed by the mother.
The complaints were always misconceived and fail.
Ground 11 contends that the primary judge considered an irrelevant matter, being the evidence adduced from the DCJ because the DCJ officer did not speak with the eldest child’s treaters. The complaint is a nonsense and is rejected. The remaining grounds and subject matters of complaint by the father are nonsensical.
CONCLUSION
The appeal will be dismissed.
Irrespective that the father was acting as a litigant in person and not as a solicitor at the appeal hearing, the significant professional alarm generated by the content and prosecution of Ground 2 cannot be ignored. In addition, we raised with the father during the hearing of the appeal, the reasons for his unilateral deluge of email communications (about which we were informed, but which we have not read) in the lead up to the hearing of the appeal which he made absent invitation to the Chief Justice’s chambers, each of our chambers, and to the appeal registrar. The father could offer no adequate explanation.
The father’s grossly disrespectful statements directed to counsel for the ICL after the conclusion of the appeal during costs submissions, calling him a “dickhead” and later a “twat”, resulted in the father’s participation in the appeal being terminated.
We will direct the Principal Registrar to forward a copy of these reasons and the transcript to the Legal Services Commissioner.
COSTS
In the event the appeal failed, the mother sought that the father pay her costs at scale of $11,155.76. The ICL did not seek costs. It is anticipated that the father would oppose the making of any costs order.
The relevant principles as to costs are well settled. While the starting position established by s 114UB(1) of the Act is that each party pays their own costs, s 114UB(2) allows the Court to make such orders as to costs as it considers just if there are justifying circumstances. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 114UB(3) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 114UB(3) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient.
During the hearing of the appeal, the father implicitly claimed to be impecunious. That is not a bar to a costs order (Northern Territory v Sangare (2019) 265 CLR 164 at [27]). The father has been wholly unsuccessful in what was at all times a misconceived appeal, especially when consideration is given to the proximity of the appeal hearing to the dates allocated for the final trial. The circumstances justify a costs order in favour of the mother. The quantum of the costs sought by the mother at scale, as itemised in her costs notice filed for the appeal, is reasonable. An order will be made that the father pay the mother’s costs of $11,155.76 within 21 days.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Campton & Christie. Associate:
Dated: 12 September 2025
0
14
4