Righi & Fylan

Case [2025] FedCFamC1F 160

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Righi & Fylan [2025] FedCFamC1F 160

File number(s): SYC 9000 of 2022
Judgment of: SIMPSON J
Date of judgment: 18 March 2025
Catchwords:

FAMILY LAW – PARENTING – where one child aged 14 years has strained relationship with mother who lives overseas – where parties reached agreement on a number of issues but orders were not reduced to a consent minute – where parties were at odds as to specific arrangements for time while the mother is in and outside of Australia – orders made for child to live with father and spend time with mother – orders made for continuation of family therapy between the child and the mother – injunctions and restraints on each parent.

FAMILY LAW – COSTS – costs of the Independent Children’s Lawyer – parties’ financial circumstances – where the father deposes to expenses exceeding income – where the mother has current child support debt – order made for the payment of the ICL’s costs by the mother.
Legislation:

Family Law Act 1975 (Cth) pt VII, ss 60B, 60CA, 60CC, 60CG, 61B, 61C, 61CA, 61D, 64B, 68B, 68C, 102NA, 117

United Nations Convention on the Rights of the Child  
Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Legal Aid ACT & Westwell [2021] FamCAFC 50

U v U (2002) 211 CLR 238

Division: Division 1 First Instance
Number of paragraphs: 86
Date of hearing: 24, 25 and 26 February 2025
Place: Sydney
Counsel for the Applicant: Ms Bateman
Solicitor for the Applicant: Gad & Co Lawyers
Counsel for the Respondent: Ms Chauvet
Solicitor for the Respondent: SCB Legal Pty Ltd
Counsel for the Independent Children's Lawyer: Ms Bromberger
Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates

ORDERS

SYC 9000 of 2022

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

MS RIGHI

Applicant
AND:

MR FYLAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SIMPSON J

DATE OF ORDER:

18 MARCH 2025

THE COURT ORDERS, ON A FINAL BASIS AS TO PARENTING, THAT:

Parental decision-making

1.The father shall have sole decision-making responsibility for the child X born 2010 in relation to major long-term decisions as defined in section 4 of the Family Law Act 1975 (Cth) conditional upon the following:

(a)Not less than 28 days prior to making a decision, the father must notify the mother of the decision he is proposing to make in relation to the child;

(b)In the event the mother wishes to contribute to the decision to be made, the mother must notify the father of her views and/or opinion on the matter not later than 14 days after the father notifies her of his proposed decision;

(c)The father must make a genuine effort to take into account the mother's views in making the decision;

(d)The father shall notify the mother of the decision he intends to make no less than 7 days prior to taking any step necessary to enact the decision, including but not limited to…

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AGLC
Righi & Fylan [2025] FedCFamC1F 160
Case
[2025] FedCFamC1F 160
Decision Date

CaseChat Overview and Summary

The case of Ms Righi & Mr Fylan involved a complex dispute over the parenting arrangements of their 14-year-old child. The parties had separated, with the child living primarily with the father in Australia, while the mother resided in the United States. The dispute centred on the strained relationship between the child and her mother, along with serious allegations made by both parties against each other. The Federal Circuit and Family Court of Australia (Division 1) was tasked with determining the best interests of the child in relation to decision-making responsibilities, living arrangements, time-sharing, and the associated obligations and restrictions.

The primary legal issues before the court were the allocation of parental decision-making responsibilities, the living arrangements of the child, the specifics of time-sharing while the mother is in and outside of Australia, the continuation of family therapy, and the allocation of costs, including those associated with the Independent Children's Lawyer. The court had to weigh the competing allegations of family violence, coercive and controlling behaviour, and other conduct impacting the child's wellbeing. Given the contentious nature of the relationship between the parents and their respective impacts on the child, the court also needed to establish measures to protect the child from exposure to harmful interactions between the parents.

In its reasoning, the court considered the child's best interests as the paramount concern. The court awarded sole decision-making responsibility to the father, subject to certain conditions intended to ensure the mother's input is considered in major decisions. The child was ordered to live with the father, with detailed arrangements set out for the mother's visits to Australia, ensuring that the child spends time with her in a structured and safe manner. The court mandated continued family therapy between the mother and the child, with the mother responsible for scheduling and paying for these sessions. The court also imposed specific injunctions and restraints on both parents to protect the child from negative influences and communications. Finally, the court ordered the mother to contribute to the costs of the Independent Children's Lawyer, based on her financial circumstances and the lack of a reasoned basis for her not to contribute.

The court's final orders reflect a detailed and structured approach to parenting arrangements, aimed at facilitating the child's relationship with her mother while ensuring her safety and wellbeing. The orders include specific timelines for time-sharing, communication protocols, and restrictions on the parents' conduct to minimize conflict exposure to the child. The court's decision underscores the importance of maintaining a child-centric approach in complex family law disputes, balancing the rights and responsibilities of both parents.

Orders

Orders of the court

SYC 9000 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RIGHI

Applicant

AND:

MR FYLAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SIMPSON J

DATE OF ORDER:

18 MARCH 2025

THE COURT ORDERS, ON A FINAL BASIS AS TO PARENTING, THAT:

Parental decision-making

1. The father shall have sole decision-making responsibility for the child X born 2010 in relation to major long-term decisions as defined in section 4 of the Family Law Act 1975 (Cth) conditional upon the following:

(a) Not less than 28 days prior to making a decision, the father must notify the mother of the decision he is proposing to make in relation to the child;

(b) In the event the mother wishes to contribute to the decision to be made, the mother must notify the father of her views and/or opinion on the matter not later than 14 days after the father notifies her of his proposed decision;

(c) The father must make a genuine effort to take into account the mother's views in making the decision;

(d) The father shall notify the mother of the decision he intends to make no less than 7 days prior to taking any step necessary to enact the decision, including but not limited to communicating with a third party to enable the decision to take effect.

Live with

2. The child shall live with her father.

Spend time with - Mother residing in the United States

3. Unless otherwise agreed by the parties in writing, while ever the mother resides in the United States, the child shall spend time with the mother as follows:

(a) With the mother in Australia:

(i) In the event that the mother visits Australia for 7 days or less:

A. The child shall spend time with the mother from after school (or 3:00PM if not a school day) on the day after the mother lands in Australia until 5:00PM the day before the mother returns to the United States;

(ii) In the event that the mother visits Australia for between 8 days and 14 days:

A. The child shall spend time with the mother in a 7 night block with such time to commence after school (or 3:00PM if not a school day) on the day after the mother lands in Australia until 5:00PM on the seventh day thereafter;

(iii) In the event that the mother visits Australia for between 15 days and 21 days:

A. The child shall spend time with the mother from after school (or 3:00PM if not a school day) on the day after the mother lands in Australia until 5:00PM on the seventh day thereafter; and

B. The child shall spend time with the mother from after school (or 3:00PM if not a school day) on the 12th day the mother is in Australia until 5:00PM on the 19th day the mother is in Australia or the day before the mother departs Sydney, whichever is sooner;

(iv) In the event that the mother visits Australia for more than 22 days:

A. The child shall spend time with each of her parents in a 7/5/7 pattern whereby she spends 7 nights with the mother, followed by 5 nights with the father, followed by 7 nights with the mother, with such arrangement to subsist for the duration of the mother's trip to Australia, and for the purposes of this order:

I. The child's time with the mother shall commence after school (or 3:00PM if not a school day) on the day after the mother lands in Australia;

II. In the event that the mother's trip ends before the conclusion of an ordinary 7 night period that the child would otherwise spend with the mother, the child's time with the mother shall conclude at 5:00PM the day before the mother departs Sydney;

(b) For the purposes of order 3(a) the mother is to inform the father, not less than fourteen (14) days prior to her arrival in Australia, in writing, via email, of the following:

(i) Her arrival and departure date in Australia, including a photocopy of her airline ticket (with the PNR redacted).

(ii) The address where the mother will be residing, if spending time with the child.

(iii) A mobile telephone number for the mother whilst she is in Australia.

(iv) Names of the adult persons (if any) staying at the proposed address where the mother and child will be staying;

(c) With the mother in the United States:

(i) As and from the school holidays at the end of Term 2 in 2026, the child shall spend the Term 2 school holidays with the mother in the United States as follows:

A. The mother shall do all things and sign all documents necessary to book the child a return flight to the United States no less than 6 weeks prior to the child travelling to the United States, and which provides for the following:

I. The flight shall depart Sydney not earlier than the Saturday immediately following the child's last day of school attendance for Term 2; and

II. The return flight shall land in Sydney not later than the Saturday immediately prior to the child's first day of Term 3;

(ii) As and from the school holidays at the end of Term 4 in 2026, the child shall spend a block of three weeks in the United States with the mother as follows:

A. In years where the Term 4 holidays commence in an odd numbered year, the mother shall spend the first, second, and third week of the school holidays with the child;

B. In years where the Term 4 holidays commence in an even numbered year, the mother shall spend the third, fourth, and fifth week of the school holidays with the child;

C. The mother shall do all things and sign all documents necessary to book the child a return flight to the United States no less than 6 weeks prior to the child travelling to the United States, and which provides for the following:

I. The flight shall depart Sydney not earlier than the first day that the child is to spend time with the mother under these orders;

II. The return flight shall land in Sydney not later than the last day that the child is to spend time with the mother under these orders;

D. The child may travel either accompanied by the mother or as an unaccompanied minor, and in the event that the child travels unaccompanied, the parties shall do all things and sign all documents necessary to ensure that the child travels with the airline as an unaccompanied minor;

(iii) For the purposes of order 3(c)(ii):

A. The school holiday period shall be deemed to commence on the first day after the child concludes school attendance for the year, and each subsequent week of the school holiday period shall be deemed to commence seven days following thereafter.

B. The school holiday period shall be deemed to conclude on the day before the child resumes school attendance the next year;

(iv) For the purposes of order 3(c):

A. If the father is not travelling with the child, not less than fourteen (14) days prior to the proposed departure date, the mother must provide the father the following documents and information in writing:

I. A photocopy of all airline tickets for the child including the dates of departure and return to Australia;

II. The details of the telephone numbers at which the child can be contacted and the addresses of all places the child will be staying whilst outside of Australia;

(d) When the child is spending time with the mother, the mother shall provide the child with a separate bed and where possible, her own bedroom.

Changeover

4. Unless otherwise agreed by the parties in writing, where changeover does not occur at the child’s school, changeover shall occur at Suburb B Station.

Injunctions

5. Pursuant to section 68B of the Family Law Act 1975 (Cth), except as provided for by these orders, the father is restrained by injunction from:

(a) Attending upon the mother's place of residence at any time whether in Australia or in the United States;

(b) Initiating communication with the child while the child is spending time with the mother;

(c) Approaching the mother or coming within 50 metres of the mother at any time;

(d) Approaching the child or coming within 50 metres of the child at any time that the child is spending time with the mother.

6. Pursuant to section 68B of the Family Law Act 1975 (Cth), except as provided for by these orders, the mother is restrained by injunction from:

(a) Attending upon the father's place of residence at any time;

(b) Initiating communication with the child while the child is spending time with the father;

(c) Approaching the father or coming within 50 metres of the father at any time;

(d) Approaching the child or coming within 50 metres of the child at any time that the child is spending time with the father.

7. Pursuant to section 68B of the Family Law Act 1975 (Cth), both parents are restrained by injunction from:

(a) Making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent's family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the child or via written correspondence;

(b) Allowing any other person to make any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent's family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the child or via written correspondence.

8. Orders 6 and 7 herein are personal protection orders pursuant to section 68C of the Family Law Act 1975 (Cth).

9. Each parent be and is hereby restrained by injunction from:

(a) Discussing these proceedings with the child or in her presence or hearing.

(b) Showing the child any documents relating to these proceedings.

(c) Questioning the child in relation to her views or preferences concerning her living arrangements or the time she spends with the other parent.

(d) Encouraging the child to express particular views or preferences in relation to her living arrangements or the time she spends with the other parent.

Notifications and access to information

10. The parents shall give all consents, sign all documents and do all things necessary to ensure that the parents can obtain the following from the child's school at the requesting parent’s own cost:

(a) A copy of all school reports, progress reports, photo order forms and school newsletters;

(b) Notification for activities that the parties may decide to attend, such activities being those that parents are ordinarily entitled to, or invited by the school, to attend; and

(c) Notification of parent/teacher nights, with the school being informed that it is the desire of both parents to attend such events.

Medical

11. In the event of a medical emergency involving the child, the parent having care of the child at that time shall do all acts and things and sign all documents necessary to forthwith:

(a) Inform the other parent as to the emergency and state of health of the child;

(b) Provide to the other parent full particulars in relation to the medical practitioner and facility attended upon by the child within a timeframe that would allow the other parent to attend; and

(c) Provide any authorisation necessary for the other parent to attend upon the child and receive all information and records that parents of a child would be entitled to receive from the medical practitioner or facility, regardless of which parent presented the child.

12. The mother and father shall ensure the other parent is kept informed of:

(a) Any medical problems and illnesses suffered, and hospitalisations of, the child whilst in their care;

(b) Any medication that has been prescribed for the child; and

(c) Any medical practitioners the child has received treatment from.

13. These orders are authority for any medical practitioner, dentist, counsellor, or other allied health professional who treats the child to provide information to the other parent upon request by that parent, to the extent permitted by law.

14. The parents shall each keep the other informed of any medical practitioner, dentist, counsellor, or other allied health professional with whom the child is engaged, and provide full contact details to enable the other parent to speak with such health practitioners and these orders are sufficient authority for that to occur.

Parents' details and communication about and with the child

15. The parents shall communicate with each other about matters relating to the child via the AppClose parenting application.

16. Each parent shall keep the other informed of their mobile telephone number, residential address and email address and notify the other within 24 hours of any change thereto.

17. The mother is at liberty to communicate with the child by telephone or FaceTime or other digital communication means, on one occasion each week as agreed and failing agreement, at 9.00am on Sundays.

18. When the child is in the mother's care, the father is at liberty to communicate with the child by telephone or FaceTime or other digital communication means, on one occasion each week as agreed and failing agreement, at 9.00am on Sundays.

19. The parents shall afford the child privacy when she is communicating with the other parent and neither parent shall supervise those communications.

Authority

20. Each parent shall be at liberty to provide to the child's school and health practitioners a copy of these orders.

School events

21. Each parent shall be permitted to attend the child's school for the purposes of school carnivals, school assemblies, parent/teacher interviews and any other event to which parents are ordinarily invited.

Passport and travel documents

22. The parties shall do all things necessary to ensure the child has a current Australian Passport and they are to take all steps necessary to facilitate the renewal of the child's passport not less than 6 months prior to the date on which the child's passport is due to expire, including:

(a) Signing any passport application document partially completed and provided to them by the other parent; and

(b) Returning the signed and completed application to the other parent within 14 days of receipt of the document; and

(c) Sharing, equally, the applicable fee for the renewal of the child’s passport and the associated photographs.

23. The child's passport shall be held by the father when not otherwise required for the purposes of the child's travel in accordance with these orders, when the father shall provide the passport to the mother upon her request.

Family therapy

24. The mother continue to engage in family therapy with the child, from the date of these orders, for a period of 6 months or as recommended by the counsellor Mr C at D Psychologists.

25. That if Mr C is unavailable to provide that therapy, the mother and the child shall participate in therapy/counselling with another therapist/counsellor at D Psychologists, as recommended by Mr C.

26. The mother shall be responsible for scheduling the family therapy sessions and shall provide to the father, in writing, particulars of the appointments once made (and prior to the appointments occurring).

27. When the mother is present in Sydney, the mother shall ensure that the child attends upon all family therapy appointments as booked by the mother and the father shall facilitate the child being available for such appointments.

28. When the mother is not present in Sydney, father shall ensure that the child attends upon all family therapy appointments as booked by the mother.

29. The costs of the family therapy shall be paid by the mother.

30. The mother is permitted to take the child to a General Practitioner to seek to obtain a mental health plan for the child for the purposes of any subsidisation of the family therapy.

Independent Children's Lawyer

31. Upon publication of these orders, I DIRECT the Independent Children's Lawyer to explain these orders to the child by arrangement with the parties.

32. Within 90 days of the date of these orders, the mother pay the sum of $6,876 being one half of the Independent Children's Lawyer's costs as may be directed by Legal Aid NSW.

33. The oral application made by the Independent Children's Lawyer for their costs to be paid by the parties is otherwise dismissed.

34. The order of appointment of the Independent Children's Lawyer be discharged on the day after compliance with order 31 herein.

35. The parenting proceedings be otherwise removed from the active pending cases list.

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

These reasons, accordingly, address the parenting matters requiring determination. BACKGROUND The parties married in Country E in 2001. Between their marriage and final separation in 2018, (with the precise date being in dispute) the parties lived in various countries, including Country E, the United States, the United Kingdom and Australia, pursuing employment opportunities and spending time with family. The child was born in 2010 in Australia. The father and the child travelled to Country E in mid-2018 to visit family. The father asserts that while he was in Country E in mid-2018, the mother advised him by telephone that she considered the marriage to be at an end. The mother disputes these events both as to the actions attributed to her and the date of separation. The mother contends that the marriage ended in December 2018. It is uncontroversial that since late 2018, the child has lived with the father (variously in Country E and then in Australia) and that the mother has had only limited time with and communication with the child since the marriage ended. The parties disagree about the events which subsequently occurred which have resulted in the child not spending time (beyond very limited occasions of face-to-face time) with the mother and they also disagree about the extent to which each of the parents have attempted to facilitate the child’s relationship with her mother. The father made serious allegations in respect of aspects of the mother’s conduct towards the child (of an historical nature) which he says could impact the safety of the child in her care. The father alleges that at the beginning of 2018, the mother engaged in behaviour to the child which may have involved inserting her fingers into the child’s vagina while assisting the child in showering (being his understanding of events based on reports by the child and his subsequent observations of the child). The father did not contend that such conduct was indicative of sexual abuse and those events did not lead the father to take action with external welfare or policing agencies at that time. The father also alleges that the child made certain other disclosures to him in February 2024 about conduct by the mother to the child, involving touching of the child on her buttocks (the date of the events being unclear). The mother alleges that the father had engaged in family violence and behaviour which she describes as coercive and controlling of her. Those allegations were not well particularised in her trial affidavit but were the subject of some discussion with the Report writer. The mother alleges that the father has not supported her relationship with the child, that he has in fact obstructed her attempts to resume a relationship with the child, and that his poor attitude to the mother has acted to influence the child and her apparent reluctance to spend time with her mother. There are no family violence orders in place and neither party has applied for such an order against the other, previously.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I will, however, make an order that the mother pay 50 per cent of the Independent Children’s Lawyer’s costs, the mother’s share being $6,876. There was no reasoned basis offered as to why the mother ought not pay some part of the costs of the Independent Children’s Lawyer. Based on her financial circumstances, I do not find that such an order will cause her financial hardship. In all of the circumstances of this case, I find that it is just and proper for the mother to make that contribution.CONCLUSION It is for these reasons that I am satisfied that the orders herein are in the best interests of the child.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.