Parenting - Testamentary Guardianship - Parenting Plan - Parenting Orders - Family Law Act 1975 (Cth)



Parenting

Family Law Act 1975 (Cth)

Testamentary Guardianship - Effect of



[#] What is a Parenting Order?: 

> See also, Reisy & Denton [2008] FamCA 403, [22].

> "51. Order 19 is unlike Orders 6(b)(iii) and 6(b)(iv), which were the subject of separate complaint under Ground 2. Those sub-orders condition the operation of Order 5, which is undoubtedly a parenting order because it stipulates how and when the children are to spend time with the mother. Orders 5 and 6 are thereby interlinked. By contrast, Order 19 is a self-standing order, untethered from any particular parenting order. It is not itself a parenting order under s 64B(2) of the Act, in which case the only other conceivable source of power for it is s 67ZC of the Act, but the limits of the power reposing in s 67ZC are not entirely unconfined (L v T (1999) FLC 92-875 at [51] and [55]–[60]; Jacks & Samson (2008) FLC 93-387 at [200]–[203], [216], [219]–[222], [224] and [226]). 52. We endorse the serious reservations expressed there by the Full Court as to how self-standing orders directing a party to accept therapeutic treatment are not usually made conformably with s 67ZC of the Act. As the Full Court earlier observed in Jacks & Samson (at [226]), that would take “unique circumstances”, which we are satisfied are not present here. This ground therefore succeeds because Order 19 was made without power. ... 59. Section 64B(2) of the Act enables a parenting order to “deal with” the time a child is to spend with a party and any aspect of a child’s care, welfare or development. Given the primary judge’s unchallenged and therefore undisturbed findings about the mother’s impaired psychological condition and her apparent refusal to acknowledge the extent of her impairment, sub-orders (b)(iii) and (b)(iv) are evidently the manifestation of her Honour’s conclusion concerning the safeguards needed to condition the way in which the children spend time with the mother so as to promote their best interests. The children’s welfare is liable to be compromised if the mother suffers psychological degradation, as would be implied by her future hospitalisation for psychological ill-health or her criminal prosecution. As such, sub-orders (b)(iii) and (b)(iv) were made within power as integral parts of the parenting orders (L v T at [49]–[60]; Jacks & Samson at [200]–[203], [210], [219]–[222], [224], [226]).": Oberlin & Infeld [2021] FamCAFC 66.

> "216. The father has met the transportation of the child from Tasmania to Melbourne over the years. The father has not had the insight to travel to Tasmania himself (this reflects the conflict that exists between the parents which has not been able to be reduced over the years and has been reflected in a number of family court hearings). The father has said he will assist in terms of the time that the child spends with either parent irrespective of the outcome in either Melbourne or Tasmania. I propose to make orders that require the father to meet the cost of the child travelling to live with the father and the mother to meet the cost of the child travelling to live with her.": Sony & Hansell (No 2) [2008] FamCA 810. 

> See also, in the context of child's international air travel where one parent lives overseas, whether Court used words "credit" and "offset" which are terminology under regime of child support liability, whether exercise powers under CSAA or CSRCA - child support: Whipp & Richards [2012] FamCAFC 11, [151]-[211]. 

> Mother's expenses associated with travelling to spend time with children (not a parenting order): "4. The matter that is before the Court today relates to the mother's application that the father contribute $25 towards her cost of travelling for the purposes of spending time with the two younger children, R and J, who reside with the father.  ... 6. The mother says that she needs the money from the father to enable her to take regular time with the children;  that she cannot afford the cost of petrol which would allow her to spend that regular time with the children and that the father can afford it and should pay it. 7. The father opposes the orders sought saying that the fair thing is that they are already both sharing the cost of transport, as they do the same amount of travelling or almost the same amount of travelling for each period of time spent and that the mother can afford the cost of transport on those occasions. ... 16. The mother asserts that it is an order that relates to the time the child is to spend with another person or other persons;  namely, it deals with the time the children are to spend with the mother. 17. It may well relate to the costs the mother may incur in making arrangements to spend time with the children.  The question may need to be determined as to whether that in itself is an order that deals with the time the children are to spend with the mother. 18. The other question which needs to be considered is whether the proceedings fall within the definition of section 64B(2)(i); namely, whether the order is a matter which deals with any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. 19. It is possible, in the wide wording of subsection 64B(2)(i), for consideration of orders in relation to the cost of transport to come within the wording of “any other aspect of the care” of these children. 20. If the matter is considered to be a parenting order, then the objects of Part VII would apply because if it is a parenting order, then the Court is obliged to consider the best interests of the children as the paramount consideration. ... 46. Based on evidence of the mother I find the mother can afford to pay for her share of the expense of travelling to collect and return the children on the occasions that they spend time with her.  The father is also spending his funds in relation to his costs of transporting the children on the occasions that they spend time with the mother.  ... 48. Another relevant circumstance is that the Child Support Agency has already carried out an assessment in relation to the contributions that the mother and father should make in relation to financial aspects concerning the children.  There is nothing before me in relation to the financial circumstances which make it necessary in the children's best interests to make an order as sought by the mother. 49. The mother should put aside her concerns about the father contributing all of the costs of transport (or contributing a further $25 to the cost of transport) and make arrangements in relation to her business and/or other costs which would permit her to spend the time with the children in accordance with the orders which have been made by consent.  The financial arrangements which have been disclosed in relation to the likely end of some of the costs when the event concludes in the middle of next month and when the costs in relation to her study conclude early in the New Year indicate the mother will have sufficient funds. 50. Taking all of those factors into account it is therefore in the best interests of the children and just in all the circumstances of this case that there be no order made requiring the father to contribute any further moneys towards the cost of transport. 51. I therefore dismiss the mother's application in relation to the contribution towards transport.  ... ": Orwin & Hansonn (No 2) [2009] FamCA 1033. 

> "108. It is not unreasonable to expect the father, within the next four years or so, to start contributing to the cost of his visits. By then, the parties might even have restored sufficient trust to consider enabling the children to visit the father in Australia, but the evidence does not presently support orders regulating the family’s affairs with that level of precision that far into the future. 109. The mother and Independent Children’s Lawyer sought to argue the existence of statutory power for the Court to order the mother to pay the money into an account for the father’s use, it being contended such an order would be a “parenting order” within the meaning of s 64B(2)(i) of the Act.[60] At least in the absence of more thoroughly reasoned argument, I reject those submissions. In proceedings under Part VII of the Act, a stand-alone order purporting to compel one party’s payment of money to another party (other than in the form of child maintenance pursuant to Division 7, which the proposed order certainly did not) does not wear the appearance of an order validly made under ss 64B, 67ZC, 68B, or 114 of the Act. [60] Exhibit ICL11, Order 5. 109. Even if power did exist to make the order in the terms proposed, the evidence did not justify making it. The mother plainly has no financial resources to meet such an order. She is entirely reliant upon the generosity of the maternal grandparents to provide such financial accommodation to the father which, even though it will probably be provided, might not be forthcoming.": Baxter & Baxter [2016] FamCA 572. 

> BUT SEE, also in obiter: "488. Clearly the provisions of s 66BA Family Law Act prohibit the court from making an order for the child maintenance.  Any provision for the support of the child would ordinarily be made pursuant to obligations that arise under the Child Support Legislation. 489. Counsel for the mother submitted that the court’s power to make such an order can be found in s 64B(2)(i) which is in the following terms:  The parenting order may deal with one or more of the following:(i)  any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child. 490. In support of his submission, counsel for the mother relied upon Love & Henderson (1996) FLC 92-653. In that case, Kay J dealt with an application by a father that a mother provide financial support to enable him to have access to the two children of the parties. In the circumstances of that case and at that time, there was no provision under the child support legislation for an application to be made on behalf of the parent, who was anything less than the substantial access parent, for support. 491. In Love & Henderson, Kay J found that the then s 64 Family Law Act provided that the court could make an order it considered proper having regard for the welfare of the child as the paramount consideration (s 64 FLA was the previous successor to s 60CA FLA). 492. His Honour found that where the legislation did not otherwise allow for provision of financial support to an access parent, His Honour could rely upon the general power to make orders which would promote the welfare of a child as the source of the necessary power. 493. Whilst counsel for the mother referred to s 64B(2)(i) as providing the court’s power, the power actually is not in s 64B(2) but rather is in s 65D(1) which is the power given to the court to make parenting orders as it thinks proper. Section 64B(2) sets out what is a parenting order. 494. The solicitor for the mother submitted on 26 May 2010 that the definition in s 64B(2)(i) was not wide enough to encompass the order as sought. 495. I am reticent given the minimal nature of the argument relating to the width of s 64B(2)(i) FLA to determine that issue if I do not need to. 496. In the event I assume there is power to make the orders sought by the mother the question is whether or not on the evidence that I had at the end of the hearing, that evidence was sufficient to support such an application. 497. I have already commented upon the evidence I have about each of the parties’ financial circumstances, and particularly the difficulty I have with the mother’s financial disclosure. I consequently conclude that it would be not a proper exercise of discretion to make the orders sought given the state of the financial information I have available to me.": Collu & Rinaldo (No 2) [2010] FamCA 439. 

> but consider how child support, child maintenance orders and considerations affect the use the general power to make orders; eg, matters that are covered by CSA not be a parenting order: Eg, see Jacobova & Stein [2016] FamCA 825. 

> "33. An order for sole parental responsibility is a parenting order within the meaning of s 64B(2)(c) of the Family Law Act.  A parenting order may be made in favour of a parent or some other person, relevantly here, the maternal aunt, as s 64C provides.": Banks & Patel [2024] FedCFamC1F 64, [33]. 

> "46. An order for the allocation of parental responsibility is a “parenting order” within the meaning of s 64B(2)(c) of the Family Law Act. Section 60CA of the Family Law Act provides that in deciding whether to make a particular parenting order (relevantly here, one for sole parental responsibility as the mother sought or one for equal shared parental responsibility as the father sought), a court (me in this instance) must regard the best interests of the child as the paramount consideration. It will be noticed that s 60CA is expressed in mandatory terms hence the use of the word “must”, thereby removing any discretion.": Gin & Hing (No 8) [2023] FedCFamC1F 954.

> "104. The Full Court considered the Court’s powers to make orders pursuant to s 64B(2)(g) as sought by the mother in the case of Oberlin & Infield (2021) FLC 94-017. The Court there was asked to consider whether s 64B(2)(g) empowered the Trial Judge to make an order in the following terms:- 20.      Not before 1 September 2022, the mother be permitted to file an application seeking to extend her time with the children or to discharge the requirement [for substantial attendance], upon the filing of an affidavit in support by a psychiatrist addressing the mother’s mental health, treatment she has received and the risk issues referred to in: (a)       [The single expert psychiatrist] report; (b)      [The family consultant’s] family report; and (c)       These reasons for judgment. 105. The Court found that that order, although styled as an injunction, could not have been made pursuant to ss 68B or 114(1) of the Act because it was not made for anyone’s personal protection, to restrain entry upon certain premises, to protect the marital relationship or property. The Court held that such order, if made pursuant to s 64B(2)(g)(ii) of the Act, goes further than that provision enables. At paragraph 34 of the judgment the Full Court noted that the order made positively forbids the mother from bringing any variation application for a period of two years, regardless of her changing needs and circumstances. As such, the Full Court concluded that the order purports to be something other than a “parenting order” within the meaning of s 64B(2)(g) of the Act and “is an injunctive fetter upon the mother’s right to bring further proceedings in respect of the children under Part VII of the Act as and when she sees fit”. 106. At paragraph 37 of Oberlin the Court held:- …Unless the restriction is validly imposed by an injunction (such as one made pursuant to s 102QB(2)(b) of the Act or, more unusually, perhaps pursuant to s 114(3) of the Act), or by an order requiring preliminary steps to be taken before a new application is made (pursuant to s 64B(2)(g) of the Act), no statutory power exists for an order to be made impeding a litigant’s entitlement to commence fresh proceedings under Part VII of the Act. Once any such fresh application is filed, the question of whether it may then be prosecuted depends on the applicant’s ability to demonstrate compliance with the guideline principle in Rice & Asplund. 107. The orders sought in the alternative by the mother seek to restrain the father from bringing any further parenting application within three years of the making of final orders.  Accordingly, the orders sought are in terms similar to those contemplated in the decision of Oberlin.   Having regard to the decision of the Full Court in Oberlin, I am satisfied that the Court does not have the power to make orders pursuant to s 64B(2)(g) of the Act as sought by the mother.": Safford & Kelso [2021] FedCFamC1F 165.

> "Section 64B(2)(g) of the Act defines a parenting order to include one which prescribes the conditions which must be fulfilled before an application is made to change parenting orders. That section provides: (2)      A parenting order may deal with one or more of the following: … (g)          the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of: (i)        a child to whom the order relates; or (ii)       the parties to the proceedings in which the order is made; However, the meaning of s 64B(2)(g) is shaped by the provisions of s 64B(4A) of the Act, which provides: (4A)        Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with: (a)       resolving any dispute about the terms or operation of the order; or (b)       reaching agreement about changes to be made to the order. Section 64B(4A) expressly states it does not limit the meaning of s 64B(2)(g) of the Act, but that does not mean the latter sub-section can be read so broadly as to empower the making of any condition imaginable to hinder a litigant’s right to re-contest parenting orders. There must be some proscription on the width of the sub-section, even if its limitations must be implied (Oberlin & Infeld (2021) FLC 94-017 at [38]–[41]). The exercise of statutory power to make an order either shutting out or restricting a litigant’s right to litigate is serious and must be exercised with due care, as is evident from jurisprudence concerning the analogous exercise of such power under what is now Pt XIB of the Act (Pencious & Searle (2017) FLC 93-085 at [72]–[75]; Marsden & Winch (2013) FLC 93-560 at [126]–[136] and [154]–[158]; Langmeil & Grange [2013] FamCAFC 31 at [23]–[24]; Marriage of Paskandy (2005) 33 Fam LR 509 at [63]). While Orders 20–22 stipulate the steps the mother must take if she wants to apply to vary the original orders regulating the time which the children spend with her, thereby broadly meeting the requirements of s 64B(2)(g) of the Act, the conditions imposed by the orders are not simply confined to the way in which she must first attempt to mediate the potential dispute before embarking on further litigation, in the manner envisaged by s 64B(4A) of the Act. Rather, the orders require her to obtain an independent psychiatric assessment, which the primary judge interpreted to mean a professional opinion which, of itself, would vindicate the variation application brought by the mother. In Oberlin & Infeld at [16]–[44], the Full Court discussed the caution with which a judge should contemplate and craft any order which conditions a litigant’s right to bring fresh proceedings under Pt VII of the Act, so as not to stray beyond express or implied statutory power. Those observations are pertinent here. Whether Orders 20–22 are construed generously to be substantive parenting orders made under s 64B(2)(g) of the Act or more conservatively as being merely procedural orders, it is hardly conceivable they can validly defeat or proscribe the application of established substantive legal principles, such as those promulgated in Rice v Asplund. The orders purport to eliminate the operation of such legal principles in certain circumstances. Section 65D(2) of the Act expressly envisages the need to vary parenting orders but, whenever any litigant applies to vary a parenting order, he or she must first demonstrate a material change in circumstances to warrant the variation application being entertained (Poisat & Poisat (2014) FLC 93-597 at [13]). Such obligations imposed by law cannot be relieved by an order, whether merely procedural or purportedly made in the guise of a substantive parenting order. Orders are made by courts to fulfil the law, not to undermine or circumvent it.": Halloran & Keats [2023] FedCFamC1A 56, [21]-[28]. 


[#.1] Jurisdiction - Parenting Orders - Children Habitual Residence in a non Convention Country


[#.A] Parenting Proceedings as Seeking the Court's Imprimatur re Orders Sought by Consent or otherwise

> "[88]  Importantly, the Court having given its imprimatur to those proposed parenting arrangements, it can also be said that the Court was actually satisfied that the time spending orders made on 14 August 2024 were ones that ensured the children’s safety and were in their best interests.": Vaughan & Vaughan (No 2) [2025] FedCFamC1F 129. 

> *** "[15]  At this stage I am not satisfied that it would be in the children’s best interests for me to make any particular order that might — with the court’s imprimatur as it were — sanction or support the children spending time with their father. But by the same token I would be loathe at this stage, if it were not absolutely necessary, to make an order expressly saying that they should not see their father. Similarly, in relation to the telephone communication. ... [17]  In my view that is a preferable course in this particular case than to either appear to give the court’s imprimatur as being in the children’s best interests that there should be the possibility of time with the father on the one hand, or to explicitly say that its in the children’s best interests that they should have no relationship with their father.": Barbero v Barbero [2013] FCCA 1486.

> "[16]  In October 2010, having attended a meeting at a Family Relationships Centre the parties entered into a parenting plan. It must be borne in mind the child was then two and a half years old. Their agreement was that she would spend four nights with her mother and three nights with her father each week on a rotating basis. As exchanges between bench and bar table would have indicated, I am concerned about the lack of regard the parties seem to have given to the observations made by the Family Consultant earlier referred to. It is difficult to see how this arrangement had regard to the child’s needs. While it might have suited the parties’ desire for each of them to be as involved in her life as possible and was practically easy to implement, it is unlikely that this is an arrangement that would have received the court’s imprimatur as being in the child’s best interests. But perhaps more will become known about how that arrangement actually came about at the final hearing.": Calvert & Mercer [2012] FamCA 759. 

> "[169]  My reasons and the Family Report will also be provided to DHS. It is important DHS is aware of the court's findings about the risks to C in her mother's care and does not view this court's adjudication of the parenting application as meaning the child is safe. As would be apparent the court had limited options and, once DHS declined the request to intervene, was left with only one place C said was acceptable to her. I point out there is no order that C lives with the mother. Action by DHS in relation to C, for example, to require the mother to accept their supervision or remove her if this is safe, would not bring them into conflict with orders under the Act. At both parties requests the injunction in relation to Mr S will no longer prevent C from residing in the same home with him and the mother. I have found it difficult to give this agreement the court's imprimatur. However, it is apparent neither the parents nor agencies such as Police, DHS, C's counsellors and medical practitioners have taken steps to enforce the order. I infer this is because the mother refuses to separate from Mr S and they have been terribly concerned C may, as she said she will, attempt to kill herself if she is removed. This court cannot place children in the hands of reluctant carers and it is thus inappropriate to continue an order which will not be enforced.": Salt & Houston [2011] FamCA 435. 

> "[6]  As will be explained below, the property has now been sold by the respondent and an amount in the order of $568,000 has been paid to the respondent out of the proceeds of sale of the property. This payment was not made pursuant to any order of the Family Court or pursuant to any form of agreement carrying the imprimatur of the Family Court as a registered binding agreement authorised by that Court. It was therefore a payment made under an informal arrangement between the parties to the relationship. I am satisfied that at the same time, the parties agreed that Ms Katherine Brandenburg should retain fulltime care of the children of the relationship as if a form of parenting order had been made. This appears to be continuing.": Angelou v Brandenburg [2024] SADC 114. 

> "[103]  The mother’s case here is, in my view, irresistibly a quest to have this Court give its imprimatur to her unilateral relocation of the children from Sydney to the City H area of New South Wales. ... [125]  I harbour concerns that should the Court give its imprimatur to the mother’s unilateral relocation and decision-making in respect of these children then the children’s stability and routine might be further disturbed after a full and forensic final trial in this matter.": Bonhomme & Bonhomme [2024] FedCFamC1F 854. 

> "[14]  It is for all of those reasons, and with the view to avoiding the potential for further litigation in the future, that I consider it appropriate to give the court’s imprimatur to the arrangements that the parties have been able to negotiate and agree with the assistance of the Independent Children’s Lawyer.": Vance & Tuffin [2023] FedCFamC1F 892. 

> "[76]  In the current matter, given these various considerations, on the basis of the evidence available to me, it seems incontestable that the de facto relationship, between Mr Hines and Ms Easton, came to an end on 14 May 2020. From this date, it is clear that there was no longer any public recognition that they were de facto spouses and they had ceased to commune together and share the elements of a common life. As such, I am satisfied that Mr Hines needs the court’s imprimatur to proceed with his application for de facto property settlement, the standard application period of two years, provided by section 44(5), began to run from 14 May 2020. Accordingly, Mr Hines is a little over six months out of time.": Hines & Easton [2023] FedCFamC2F 311. 

> "[14]  Further, the father’s email fails to engage with the reality that the mother has the benefit of an order (with his consent and the court’s imprimatur) allowing her to relocate to Country B with the children on 90 days’ notice.": Sameer & Gamil [2024] FedCFamC1F 54. 

> re Consent Orders: "[21]  At the commencement of trial on Monday 5 October 2020 the ICL made submissions as to why these orders, in all the circumstances, were in the best interests of the children. The ICL’s submissions were as follows: ... HIS HONOUR: Yes. Well as I say, I accept that submission in its entirety and it won’t go unrecorded, Ms Agresta, that submission. What I propose to do in this case, unlike what would usually occur in circumstances where the parties have submitted consent parenting orders, is I will deal in the ultimate judgment with these orders. And the judgment of the Court will give expression to the submissions that you have just made and also to the Court’s imprimatur of the sentiments that they contain. So, there will be a record of this going forward.": Imbardelli & Imbardelli [2020] FamCA 876. 

> re Informal Agreements: 

-> "[37]  It is not uncommon for parties to come to Court seeking orders under s 79 of the Act where there have been prior informal agreements between them. It is well established that parties cannot obtain finality in respect of the alteration of property interests unless and until they have the imprimatur of the Court by either a Binding Financial Agreement or a Court Order. The question, therefore, is as to the relevance, if any, of the informal agreement between these parties in 2011.": Badawi & Oakeson [2020] FCCA 1410.

-> "[518]  The trial judge found the mother ought to have known from her lawyer that the private agreement she allegedly struck with the father to divide their property and waive further claims upon one another was not binding without the imprimatur of the Court’s endorsement (at [827]). The trial judge found the mother’s lawyer informed her of that fact, but even if she ought not to have known as much, it did not assist her appeal because it was immaterial. Even if she was blissfully ignorant of it, and was entitled to be so, the trial judge’s comments about the unenforceability of any such agreement were correct. It would not oust the Court’s jurisdiction, it would not necessarily preclude a finding it would be just and equitable to adjust the spouses’ property interests, and it would not preclude property adjustment orders being made.": Duarte and Anor & Morse [2019] FamCAFC 93. 


[#.B] Effect of Order - Antecedent Agreements


[!] General Framework

> Herbert & Oliver [2023] FedCFamC2F 838 , [45]-[93]. 

> Mulroney & Mulroney [2023] FedCFamC2F 490. 

Interim parenting orders / Interim Hearings

> Query, whether any relevant expert reports are based on statements that have not been subject to cross-examination or tested against the totality of the evidence, whether vcan be relied on to make substantive findings at interim stage. See Goode [65]-[69].


[A] Joint Decision-Making for Major Long Term Issues

"Counsel for the applicant argued that, having regard to s 61DAA(1), an order for joint parental responsibility would not require the parties to make decisions about major long-term issues for X together, but it would impose upon the respondent an obligation to consult with the applicant in relation to each such decision and make a genuine effort to come to a joint decision. Counsel developed her argument by pointing out that the text of s 61DAA does not expressly impose an obligation on the parties to make any decision jointly. Rather, the obligation is to consult with each person in relation to a relevant decision to make a genuine effort to come to joint decision about it. She argued that this should be contrasted with the precursor to s 61DAA, s 65DAC. By s 65DAC(2) (now repealed), an order by which two or more people shared parental responsibility for making decisions about major long-term issues for a child was to be taken to require the decision to be made jointly by those persons. This subsection is conspicuously absent from s 61DAA and so, counsel argues, it should be presumed that the legislature no longer intended that such decisions must be made jointly. Thus, where there is an order for the parties to have joint responsibility for major long-term decision making for a child, the Act does not impose an obligation for such decisions to be made together by the people invested with joint decision-making capacity. I accept that an order that parties have joint responsibility for decision-making for a child will engage s 61DAA of the Act and will require persons in whom joint decision-making is vested to consult with each other and make a genuine effort to come to a joint decision in relation to decisions covered by the section. However, I consider that such an order will also require such decisions to be made jointly. I do not accept the conclusion that an order for parties to have joint responsibility for major long-term decision-making for a child means that they can make such decisions severally as the applicant contends. When determining the obligations cast upon parties by an order of the court, the starting point is the text of the order. The order proposed here by the applicant – that “the mother and father have joint decision making responsibility” for X – would by the terms of the order impose an obligation on them to make decisions for X (whether they be decisions relating to major long-term issues or otherwise) together. The terms of the order proposed by the applicant would not engage s 61DAA because that section only applies “if a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child” (my emphasis). The order proposed by the applicant does not do that. In any event even if it did, the terms of the order would impose the obligation to make the decision jointly. The phrase joint decision making responsibility proposed by the applicant, in my view, means just that – decision making by two or more people together, not separately. Nothing in the Act would suggest that an order in those terms should be read down or given anything other than its ordinary and natural meaning. The absence of a provision analogous to s 65DAC(2) from the present version of the Act supports this conclusion rather than points against it as the applicant contends. Its absence is unsurprising given the way in which the obligations set out in s 65DAC came to be engaged when that section was in force. It was engaged if there was an order for shared parental responsibility – a phrase that no longer appears in the Act and which carries with it no directive that decision-making should be undertaken jointly. The content of the phrase shared parental responsibility was supplied by s 65DAC, which by s 65DAC(2), required decisions to be made jointly. In the absence of s 61DAA(1), the phrase joint decision-making has a meaning commensurate with the ordinary meaning of the words that make it up. The work done by s 61DAA(1) is to supply further context to that phrase where that subsection is otherwise engaged. The applicant’s desire to be informed about and have input into decisions for X’s welfare is entirely understandable. The evidence demonstrates, however, that joint decision-making for X, whether that be for major long-term decisions or otherwise, is not a realistic possibility. The court should not make orders which are bound to fail. An order for joint decision-making in respect of X is bound to fail. That is not to say, however, that the ends that the applicant hoped to achieve by such an order cannot otherwise be accommodated by orders crafted to that purpose. I decline to make an order for joint decision making in respect of X. It is in X’s best interests for the respondent to have sole parental responsibility for decisions that need to be made about X’s health and education. However, it is necessary, I think, to cast upon the respondent an obligation to inform the applicant about the decisions that she intends to make for him in a timely way so that the applicant has the opportunity to make his views known to the respondent. She will then have the opportunity to take those views into account. There will be orders to that effect.": Cornwall & Cornwall (No 2) [2025] FedCFamC1F 99 , [88]-[85]. 

Realistic possibility of coparenting?

both parents committed and competent, Relocation to Canberra from Adelaide


[B] Sole Decision-Making for Major Long Term Issues


[B-A] Stalemates - joint decision making: 


[C] Spend time arrangements - factors


[C.A] Change of Primary Living Arrangements - Factors

> "[55]  While I am concerned about a range of issues, including the change to the children’s primary living arrangements, the separation of the children from their siblings and the father’s apparent inability to facilitate any relationship between the mother and the children prior to the proceedings coming before the court, those concerns must, as the Act requires come secondary to my consideration of the primary considerations in section 60CC(2).": Lake & Parnell [2020] FCCA 483.

> Tauber & Basler [2020] FamCA 159, [169] et seq.

> "[71]  The children have continued to attend at Suburb B State School. J is in Grade 4 and K is in Grade 2. Given that the mother lives at Town D, a change of the children’s primary living arrangements would necessitate a change of school and a cessation of their involvement in the football club in which they have been involved for some time. [72]  A change to the children’s primary living arrangements would also mean they no longer had the opportunity to spend daily time (during the working week) with the Applicant’s mother and her partner - with whom they have a strong and loving attachment and from whom they have obtained stability, certainty and care. A change in their primary living arrangements would also remove the children from the person - the Applicant - who has met their emotional, physical and financial needs for the substantial portion of their lives. [73]  Such a change to the children’s primary living arrangements would obviously provide them with an increased opportunity to spend time with both the mother and T. However, given the Family Report writer’s assessment of the strength of the children’s attachment to the Applicant, such a change would be likely to cause them significant disruption, distress and emotional harm.": Sharp & Underwood [2014] FamCA 301.

> "[127]  Under the heading “Conclusions and Recommendations”, Mr W suggested what might usefully follow, and that largely led to Dr S’s report. Importantly, Mr W, with his usual perceptiveness, framed the future determination of the proceedings in these terms: 87.… since [Y] is now so strongly aligned with her mother, any change in her primary living arrangements would be very emotionally traumatic for her. For this reason, the threshold [the father] will need to satisfy to demonstrate that the benefits of such a change would outweigh the costs, is likely to be very considerable indeed.": Standish & Standish [2012] FamCA 443.

> "[69]  The primary judge accepted the evidence of Ms J which included the following: 158.… If the children were to live with the Father, it would mean that they would have to change their primary place of residence which will likely have an impact upon them and take a period of adjustment.It is the writer’s view however that the impact upon the children of the continued allegations (if they are found to be ‘coached’, fabricated or otherwise) and the emotional harm caused by them would far outweigh the impact of a change of their primary living arrangements.": Jasapas & Johns (No. 2) [2020] FamCAFC 203.

> "[156]  The weight of the evidence is against changing the children’s primary living arrangements and placing them with the father. This would have a huge upheaval for all three children. I am not satisfied that the mother is physically and emotionally abusive of X or of the other two children. I am satisfied that X is emotionally disturbed and that his behaviour is incredibly challenging and difficult to manage, particularly when it comes to any attempt to set boundaries upon his behaviour and impose rules and discipline upon him. The situation is exacerbated by the father accepting at face value what X says in effect encouraging X to make complaints about his mother to him and reinforcing to X that he thinks X is unsafe in the mother’s care. The father undermines the mother’s parenting and, whilst it may well be unconscious, it encourages X’s behaviour.": Roache & Dooley [2017] FCCA 1027.

> "[178]  I have concluded that the impact on the children of the implementation of the mother’s proposal would see them removed from the stability and security that which has sustained and supported them through their parents’ acrimony. It would significantly reduce their opportunity to spend time with both of their grandmothers and would dislocate them entirely from all that has formed part of their lives to date. Such consequences may be acceptable and justified if the benefits to the children from such a change were thought to outweigh the imposts associated with such significant change. That is not the case here. Whilst changing the children’s primary living arrangements to living primarily with their mother would afford them the opportunity to spend more time with her and their siblings, it would come at a significant cost and one which is not, in my view, in their best interests.": Ford v Ford [2015] FamCA 164.

> "[41]  However, as stated yesterday, I also do not accept that the advantages to the child of a move to live primarily with the father are significant enough to warrant the likely impact on her functioning - both short and long term - of such a significant change to her primary living arrangements at this time. The mother clearly has been the parent who has undertaken the primary care of the child to date. She has been primarily responsible for making decisions about her education and dealing with medical matters. She has been responsible primarily for the manner in which the child presents at school and to Mr G and this should be seen as a credit to her parenting skills and capacities and as a reflection of the priority she has accorded to meeting the child’s needs.": Aquila & Monte [2014] FamCA 821.

> "[221]  Whilst a change to X’s primary living arrangements will likely be difficult for her and involve a great deal of disruption, I consider the long term benefits of being removed from the overwhelming exposure to the views of her mother and her views about the issues discussed in these Reasons — including that of X allegedly being abused by her father sexually, physically and emotionally — significantly outweigh the short‐term impacts.": Cogger & Druce [2022] FedCFamC1F 405. 


[C.B] Reintroduction to care by parent - unsupervised or supervised - graduated basis - interim


[D] Risks - Factors


[D.A] Prescription Cannabis, THC use 

> interim consent orders, Supervised time, injunction from using 2 hours prior to and during time with children: orders "13. The father shall not consume any cannabis for 2 hours prior to and during his time with the children, including prescribed cannabis.": Burwell & Jarvis (No 3) [2024] FedCFamC1F 148.

> "15. That the mother is hereby restrained by injunction from using or being under the influence of any substance (including but not limited to medically prescribed marijuana), or using non-prescribed marijuana or any other illicit substances, at any time Y is in her care or for 24 hours prior thereto.": Vance & Tuffin [2023] FedCFamC1F 892. 


[D.B] Methamphetamines


[E] "Default" Assumptions about Child's Best Interests (read the relevant decision for the appropriate context)


[E-A] Card and Gifts - Child's Best Interests


[E-B] Change of Surname - Child's Best Interests


[E-C] Child to spend time with parent against their expressed wishes - Child's Best Interests


[E-D] Overnight spend time - Child's Best Interests

Jing Zhi Wong

[E-E] Weekly time cf monthly time - Child's Best Interests


[E-E.1] Overseas Travel - Australian Citizens


[E-F] Unacceptable Risks to the Child - s 60CG: 

> similar considerations to those in s 60CC(2A)(a) factor, below. 

> Johnson & Page [2007] FamCA 1235: What amounts to unacceptable risk was the subject of extensive discussion by the Full Court in Johnson and Page [2007] FamCA 1235 where the Court held (in sum):  1. The best interests of the child will always be the decisive issue; 2. Unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable; 3. Where past abuse is alleged, the court is not required to reach a conclusion as to its existence but if the court does consider its existence then the Briginshaw civil standard of proof applies; 4. A failure to prove past abuse in accordance with the Briginshaw test does not prevent the court from considering the circumstances in determining whether unacceptable risk exists; 5. Focus in these matters should always be on the question as to whether there is an unacceptable risk for the child; 6. The onus of proof to be applied in reaching any conclusion as to unacceptable risk is the ordinary civil standard; and The individual components in reaching that conclusion need not be proven on the balance of probabilities. The Court may reach a conclusion of unacceptable risk based on an accumulation of factors where none or only some of which are established to that standard.

>  "[34]  The burden of proof in civil proceedings such as these, is that found in s 140 of the Evidence Act 1995 (Cth); namely “the balance of probabilities”. That section provides: (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a)the nature of the cause of action or defence; and (b)the nature of the subject matter of the proceeding; and (c)the gravity of the matters alleged.": Galvin & Pacotto [2024] FedCFamC1F 582.

Examples

> cf Lainhart & Ellinson, below. 

Jing Zhi Wong

[E-G] s 60CC Considerations - Child's Best Interests

Appeal

Framework

> Issues: "[38]  The issues in this matter are: (a)Did the father sexually abuse his niece in 1999/2000? (b)Is there a risk to X being exposed to sexual abuse or inappropriate sexual conduct by the father? (c)If the answer to (b) is yes, what orders may ameliorate the risk for X? (d)Was there family violence in the parties’ relationship? (e)If the answer to (d) is yes, what orders may ameliorate the risk for X? (f)Should the parents jointly hold parental responsibility and decision-making authority, or should the mother hold it solely?"

> "[69]  By virtue of subsections 60CC(2)(b), (c), (e) and (f) of the Act, the Court must have regard to: (a)The views expressed by the child; (b)The developmental, psychological, emotional and cultural needs of the child; (c)The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and (d)Anything else that is relevant to the particular circumstance of the child.   The weight to be given to any views expressed by a child is as the Court considers appropriate in the circumstances. As held in R v R (2000): There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so.": Liepina & Arterberry [2024] FedCFamC2F 1397. 

> pre-2024 jurisprudence: "[253]  Each child’s best interests are to be determined by reference to s 60CC of the Act. Section 60CC(2) provides that the primary considerations are “(a) the benefit to the child of having a meaningful relationship with each parent; and “(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.” Greater weight is to be given to child protection.": Mitchell & Boyle (No 2) [2022] FedCFamC1F 798. 

> "[22]  As described in the Explanatory Memorandum,2 the various considerations are designed to be non-hierarchical, non-exhaustive, able to allow different weight to be applied as appropriate to the individual child and, whilst guiding a court, permit flexible adaptation to each child’s specific circumstances. [23]  By their nature the considerations overlap and are entwined with each other. For example, issues of safety referred to at s 60CC(2)(a) can impact upon the capacity of a parent to provide for a child’s psychological needs (s 60CC(2)(d)), and in turn impact upon the benefits of having a relationship with that parent (s 60CC(2)(e)). Similarly, the views expressed by a child at s 60CC(2)(b) can be indicative of the emotional needs of the child (s 60CC(2)(c)). [24]  The considerations may point in different directions. It is the synthesis of all of the applicable considerations that will determine the outcome.": Kranz & Padmini [2025] FedCFamC1F 45. 

> Approach of the ICL: "[21]  As described in the Explanatory Memorandum, 2 the various considerations are designed to be non-hierarchical, non-exhaustive, able to allow different weight to be applied as appropriate to the individual child, and whilst guiding a court, permit flexible adaptation to each child’s specific circumstances. [22]  By their nature they overlap and are entwined with each other.[23]  For example, issues of safety referred to at s 60CC(2)(a) can impact upon the capacity of a parent to provide for a child’s psychological needs (s 60CC(2)(d)), and in turn impact upon the benefits of having a relationship with that parent (s 60CC(2)(e)). Similarly, the views expressed by a child at s 60CC(2)(b) can be indicative of the emotional needs of the child (s 60CC(2)(c). [24]  The considerations may point in different directions. It is the synthesis of all of the applicable considerations that will determine the outcome. [25]  In this case, following the parties and ICL forming a joint position that the children should live primarily with the father, much of the case was focussed upon the first consideration at s 60CC(2)(a), relating to the children’s safety in the care of the mother, and then its interplay with the benefits of relationship (s 60CC(2)(e)) with the mother. This also drew into consideration s 60CC(2)(b) and (c) as they relate to the needs of each of the children and the capacity of the parents to meet them.": Oyama & Oyama [2024] FedCFamC1F 738. 

Post 6 May 2024 Jurisprudence - Part VII FLA - Judge Taglieri

> See also, in the same decision: Father's anxiety and depressive conditions (no finding on FV), equal parenting time ordered, progression to equal time: "[69] A progression of the child’s time with the father to equal time within the next couple of years will most likely be of benefit. This will enable him to better experience the mutual strength of his relationship with both parties and allow exposure to different experiences and opportunities which each parent is likely to offer, including enjoying relationships with extended family. It will promote, a well-rounded upbringing, enabling him to develop his independence and flourish in the future, consistent with the tenor of the CCE’s opinion. [70] There is no material risk of harm posed to the child due to mental health concerns, warranting slower increase in the child’s time with the father.  I am satisfied that when the child is in the care of the father and his partner, he will likely be protected from the father’s anxiety or depressive symptoms should they manifest. In any event, the Court will make a protective order for the father to engage in psychological treatment which will likely mitigate possible harm. [71] Finally, there is no evidence that the child has experienced any harm due to the father being “sad”, which was the highest point of the mother’s case. It is also important in my view that children gain age-appropriate awareness of depressive and anxiety symptoms and can recognise those and empathise. [72] I consider that the father’s proposal to defer consolidation of the child’s time with him to a single block until 2032, fails to recognise the benefit of minimising opportunity for conflict by way of fewer changeovers. [73] The mother’s proposal to fix the child’s time with the father to a maximum of five nights, in my view, is not child-focussed or supported by any factors relating to risk of harm to the child. Instead, I consider the mother is motivated to remain the primary carer because of her own insecurities or because of her historical role as primary carer.[29] ...".

ss 60B, 60D, 60CC, 60CG

Evidence-based, prospective assessment of unacceptable risk - Isles & Nelissen

> Craig Nicol and Keleigh Robinson, 'Children – assessment of unacceptable risk…' (Proctor, 2 September 2022) <https://www.qlsproctor.com.au/2022/09/children-assessment-of-unacceptable-risk/>. 

> "Isles is a stroll through the history of unacceptable risk cases in our Court. If you ever have an unacceptable risk case, this is the place you need to start. It is almost a one stop shop for preparing and running unacceptable risk cases. It traverses and summarises the case law throughout the history of the court and it makes it very clear what is the “right way” and the “wrong way” to deal with an unacceptable risk case and how the court should approach it. ...": Sarah Louis Damon and Eliza G Tiernan, 'Risky Business: Isles & Nelissen – parenting cases involving allegations of unacceptable risk' (Vic Bar, 24 March 2024) <https://www.vicbar.com.au/Web/Web/Contents/Associations/Family/Digest/Risky-Business-Isles-Nelissen-parenting-cases-involving-allegations-of-unacceptable-risk.aspx>, archived at <https://archive.is/NuXR7>. 

> Pearce Decle, 'Unacceptable risk cases and the intersection of family and criminal law' (Paper, 2 August 2023) <https://www.legalaid.nsw.gov.au/content/dam/legalaidnsw/documents/pdf/for-lawyers/resources-and-tools/criminal-law/criminal-law-conference-papers/2023/unacceptable-risk-cases-and-the-intersection-of-family-law-and-criminal-law.pdf>, archived at <https://web.archive.org/web/20250415041323/https://www.legalaid.nsw.gov.au/content/dam/legalaidnsw/documents/pdf/for-lawyers/resources-and-tools/criminal-law/criminal-law-conference-papers/2023/unacceptable-risk-cases-and-the-intersection-of-family-law-and-criminal-law.pdf>. 

Is s 60CC relevant to parties?

(2)(a): what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:(i)  the child; and  (ii)  each person who has care of the child (whether or not a person has parental responsibility for the child)

> This factor appears to go to assessing risks and vulnerabilities of parents to child and to others.  

> includes a consideration of any unacceptable risks.

> "[132]  Having come to these conclusions, it is apparent that in undertaking the evaluative exercise discussed in Isles, I do not accept the mother’s contention that the father presents an unacceptable risk of harm.": Galvin & Pacotto [2024] FedCFamC1F 582.

> "[31]  The consideration of safety required by s 60CC(2)(a) and its corollary, risk of harm, demands no departure from the long standing approach set out by the High Court in M v M (1988) 166 CLR 69 (“M v M”), and recently expressed by the Full Court in Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”) and Eastley & Eastley (2022) FLC 94-094. [32]  As identified in Isles & Nelissen at [50], quoting Austin J in Fitzwater v Fitzwater (2019) 60 Fam LR 212 at [138], the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm”. The consideration involves the contemplation of both the potential harm, and the arrangements for the care of the child that are protective from such, as was required by M v M, (s 60CC(2)(a)). [33]  A further reference to “safety” is made at s 60CC(2)(e). By that provision the court is required to consider the potential benefits for a child to be derived from having a relationship with a parent or other person of significance to the child “where it is safe to do so”. In the context of a set of considerations that are designed for the weighing of different factors to determine best interests, “safe” should not be taken to have a fixed content or standard. This is consistent with its use in another statutory context where the High Court observed that “safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence”.3 [34]  Section 60CC(2)(e) requires the court to consider the risk of harm that accompanies the relationship, in whatever form it may take. The section does not contemplate consideration of the benefits of a relationship where such is not safe. It is consistent with longstanding case law that a child should not be exposed to an unacceptable risk of harm.": Kranz & Padmini [2025] FedCFamC1F 45. 

> "[26]  26 The reference to “safety” at s 60CC(2)(a) is to a term that is wide in nature, and bounded only by its object – to keep children, and those who care for them, from harm. [27]  Although cogent examples of sources of harm are identified in the provision, that is, being subjected or exposed to family violence, abuse or neglect, these are not voiced in a manner to limit the scope of the term “safety”. They are voiced inclusively rather than exclusively, and sit in the company of the phrase “or other harm”. [28]  The consideration of safety and its corollary, risk of harm, demands no departure from the long standing approach set out by the High Court in M v M (1988) 166 CLR 69 (“ M v M ”), and recently expressed by the Full Court in Isles & Nelissen (2022) FLC 94-092 (“ Isles & Nelissen ”) and Eastley & Eastley (2022) FLC 94-094 . [29]  As identified in Isles & Nelissen at [50], quoting Austin J in Fitzwater v Fitzwater (2019) 60 FamLR 212 at [138] the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm”. The consideration involves the contemplation of both the potential harm, and the arrangements for the care of the child that are protective from such, as was required by M v M , s 60CC(2)(a). [30]  A further reference to “safety” is made at s 60CC(2)(e). By that provision the court is required to consider the potential benefits for a child to be derived from having a relationship with a parent or other person of significance to the child “where it is safe to do so”. In the context of a set of considerations that are designed for the weighing of different factors to determine best interests, “safe” should not be taken to have a fixed content or standard. This is consistent with its use in another statutory context where the High Court observed that “safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence”. 3 [31]  The paragraph requires the court to consider the risk of harm that accompanies the relationship, in whatever form it may take. The paragraph does not contemplate consideration of the benefits of a relationship where such is not safe. The provision is consistent with longstanding case law that a child should not be exposed to an unacceptable risk of harm. [32]  These considerations are prominent in this case where, although the parties are agreed that the children will live primarily with the father, and that they will have an ongoing relationship with the mother, the mother’s mental health is a circumstance that bears upon both benefit and safety. [33]  In its simplest form, the main issue is as to risk of harm posed to the children by the potential of the mother relapsing into poor mental health, in particular psychosis, including as to the potential effects of being exposed to such. Against that the issue is the sufficiency of different arrangements to render time with the mother as safe, while permitting the reaping of benefits to the children of the relationship with the mother. The extent, nature and availability of those benefits are also matters of contest between the parties.": Oyama & Oyama [2024] FedCFamC1F 738. 

(2)(b) any views expressed by the child

Influence by siblings, parent

Very young children < 4

5 year old, consistent presentation to ICL and family report writer (psychiatrist)

5 year old, developmental issues

7 and 9 years old

8 year old

12 year old child

14 year old

16 year old

see also, Children forced to spend time with parent against wishes. 

Children with cognitive disability

(2)(c) the developmental, psychological, emotional and cultural needs of the child

(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs

> Consideration of insight and parenting capacity, but not neglect that would engage 60CC(2)(a): "[47]  In cross-examination, the father said he additionally held concerns about the mother changing her principal place of residence from Sydney to City E in late 2022 and forcing the children, but mostly the youngest child, to then repeatedly endure road trips over the long distance between her homes in those cities. While that is a concern which does reflect upon the mother’s insight and parenting capacity, thereby engaging s 60CC(2)(d) of the Act, it has nothing to do with the mother’s alleged “neglect” of the children, such as to engage s 60CC(2)(a) of the Act.": Beltran & Preston [2025] FedCFamC1F 102.

> "[48]  Thirdly, the evidence of the children’s exposure to family violence since the parents have separated implicates only the mother, indicating her propensity to form serial romantic relationships with men who are violent, coercive or controlling,16 which she admitted in cross-examination. The court child expert said such conduct reflected unfavourably upon the mother’s insight and protective capacity and Mr E said it showed poor judgment on her part.17 The father relied on such evidence, but not so as to verify any risk of harm posed by her to the children to engage s 60CC(2)(a) — only as an aspect of her inferior parenting capacity to be more properly considered under s 60CC(2)(d) of the Act. Nor did the father raise the mother’s neglect of the children as an issue for consideration under s 60CC(2)(a) — only under s 60CC(2)(d) of the Act.": Hasip & Ruwan [2024] FedCFamC1F 638. 

> as was the approach of the Court in Walter & Stiller [2024] FedCFamC1F 575, [71]-[114]. 

> "[30]  Section 60CC(2)(c) and (d) go hand in hand. The applicants depose to her education needs, being to be enrolled at school. And X is to have further medical assessments. They already have X engaged in age-appropriate grief counselling and clearly understand X’s various needs having lived with her since birth.": Re Engberg [2024] FedCFamC1F 871.

> "[193]  The Independent Children’s Lawyer, in her Case Outline, addresses the s 60CC(2)(c) and (d) together. She points to the concerns raised with respect to the mother’s mental health and capacity for sound judgement and, accordingly, her ability to care for the children in a safe and secure environment. She submits, and I agree, that the evidence indicates that the mother has a mental health condition and that the deterioration in her general functional capacity over the past few years has been very significant, including in the level of her persecutory beliefs. She emphasises the risk identified by the Family Report writer with respect to the children spending time with the mother, particularly if the mother refuses to engage in mental health supports.": Hoyt & Hoyt (No 4) [2024] FedCFamC1F 581.

> "[110]  This consideration is intertwined with s 60CC(2)(c) just above and what I said there applies with equal force here.": Carey & Prescott (No 2) [2024] FedCFamC1F 512.

> "[96]  Subsection (2)(c) and (d) go hand-in-hand together: the developmental, psychological, emotional and cultural needs of the children and the capacity of each person to provide for those needs.": Regna & Eline (No 2) [2024] FedCFamC1F 566.

> "[56]  Section 60CC(2)(d) of the Act directs the court to consider the capacity of persons who have or it is proposed may have parental responsibility. If read narrowly, the section might preclude consideration of the capacity of persons who will spend time or communicate with a child but do not have parental responsibility (or are not proposed to have parental responsibility). In any event, s 60CC(2)(f) enjoins me to consider all relevant circumstances and so I propose to consider the capacity of each of X’s parents.": Bosch & Annema (No 3) [2024] FedCFamC1F 357. 

> "[67]  The capacity of a parent to ensure the safety of a child, is further a consideration under subsection 60CC(2)(d) of the Act, requiring consideration of the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs. [68]  If read narrowly, the section might preclude consideration of the capacity of persons who will spend time or communicate with a child but do not have parental responsibility (or are not proposed to have parental responsibility). In any event, s 60CC(2)(f) of the Act enjoins me to consider all relevant circumstances and this includes, in my view, the capacity of all such persons.": Liepina & Arterberry [2024] FedCFamC2F 1397. 

> "[40]  In terms of s 60CC(2)(d) of the Act, being the capacity of each person who has or is proposed to have parental responsibility for the child, for reasons I have set out, the paternal aunt has demonstrated that capacity. I note and respectfully agree with the submission of counsel that the paternal aunt has not been, at any stage, an agitator for disrupting the child’s life with the mother, but rather has joined the proceedings in circumstances where the evidence was such that unfortunately, as a result of life challenges, neither the mother, nor the father had the capacity to properly care for the child’s needs.[41]  For reasons which I have set out, the paternal aunt has clearly and admirably demonstrated her capacity to provide a caring, loving and supportive environment for the child. Regrettably and without judgement, the Court notes that as a result of their life circumstances, and the challenges they have confronted, the child’s parents have suffered the intergenerational effect of family violence and dislocated family lives which has adversely impacted their parental capacity.": Dalton & Nikolaou [2025] FedCFamC1F 151. 

> "[172]  I agree with the observations of Justice Harper in Heron & Heron [2024] FedCFamC1F 465 at [149] to the effect that s 60C(2)(d) of the Act includes a person “who has or is proposed to have parental responsibility”. I agree that this expression may embrace not just the person to whom parental responsibility is allocated by Court order, but also a person who has the limited parental responsibilities which may exist when a child spends any time with a parent, including privately supervised time. In this regard, I take account of my finding that the father lacks parenting capacity and lacks insight into the consequences of his behaviour. Certainly, the father has not addressed his addiction to illicit substances, nor has he obtained any assistance with respect to his mental health despite being urged to do so.": Kontou & Naggia [2024] FedCFamC1F 698.               Jing Zhi Wong       

> "[213]  I agree with the observations of Justice Harper in Heron & Heron [2024] FedCFamC1F 465 to the effect that s 60CC(2)(d) a person ‘who has or is proposed to have parental responsibility’. I agree that this expression may embrace not just the person to whom parental responsibility is allocated by Court order, but also a person who has the limited parental responsibilities which may exist when a child spends any time with a parent. In this regard, I take account of the likelihood that the father may lack capacity, because he lacks insight into his own behaviour and has sought to deny or minimise it. Certainly, the father has not yet successfully addressed those criteria referred to by the Single Expert. Particularly, the father had not yet: (a)developed insight into his problems; (b)demonstrated adequate boundary-setting; (c)demonstrated that he is able to manage the sibling dynamic; and (d)developed an ability to shield the children from parental conflict.258 [214]  The father’s inability to control the elder child’s behaviour at the family therapist’s office in September 2024 and the nature of his interaction with the children during the interview process by the Single Expert in November 2023 causes me to agree with the finding of the Single Expert that the father is unable at this juncture to provide the children with “emotional containment”. I also agree with the expert’s view that the children’s behaviour towards him may be evidence of “an attachment disturbance to the degree that the children need to act in a frenetic, needy, or regressed manner” in order to command his attention.259 [215]  Whist I accept that the children “appear to have problematic attachments to both parents”,260 I accept the Single Expert’s conclusion that absent parental conflict, the mother is showing some insight and “self-reported improvement” with respect to her ability to meet the children’s emotional needs.261": Mikula & Tripp [2024] FedCFamC1F 710. 

Note: effect or applicability of s 61DA in consideration of parental responsibility

> "[180]  The Act at s 61DA provides a presumption of it being in a child’s best interests for the parents to exercise equal shared parental responsibility for that child. “Parental responsibility’ is normally understood as the obligations that parents discharge in making important and long-term decisions for their children in matters such as religion, education and medical procedures as opposed to the more mundane decisions habitually made for children on a day-to-day basis. [181]  The presumption of equal shared parental responsibility does not apply, however, if the Court is satisfied that a parent of the child (or a person who lives with the parent of the child) has engaged in abuse of the child or another child, who at the time, was a member of the parent’s family or engaged in family violence. Alternatively, the presumption can be rebutted on evidence satisfying the Court that an order for equal shared parental responsibility would not be in the best interests of the child. [182]  Not surprisingly, in the matter now before me the mother seeks an order for sole parental responsibility arguing that the presumption does not apply by reason of the father’s family violence perpetrated on both herself and X during the relationship. She seeks to be relieved from even keeping the father advised of the decisions that she makes in respect of X To the contrary, the father initially asked for an order that the parents have equal shared parental responsibility limited to matters relating to “medical, health and religion for the child”, but that the mother otherwise exercise sole parental responsibility. He now concedes parental responsibility to the mother but with prior notification to him.": Knopf & Knopf [2024] FedCFamC1F 359. 

> "[127]  In relation to s 60CC(2)(d) of the Act, the Court is satisfied the mother has capacity to properly parent the daughters without input from the father, and to provide for their developmental, psychological, emotional, and cultural needs. The Court is firmly of the view that the father currently lacks parental capacity to properly meet the children’s developmental, psychological and emotional needs, due to his obsession with denigrating the mother, and his determination to disparage her. That denigration of the mother, if the children were exposed to the same, would cause greater harm to the children than the loss of a meaningful relationship with the father.": Ghani & Nassif (No 2) [2024] FedCFamC2F 1135.

> "[41]  Although the evidence is so far untested, it is sufficiently probative at this stage to demonstrate two forms of salient risk: first, by spending time with the father, even if only under supervision, the children are at risk of being exposed to the “family violence dynamics” which exist between the father and the mother (s 60CC(2)(a)(i)); and secondly, any orders which would require, or even permit, the mother’s proximity to the father while they exchange the children at a professional contact centre are liable to expose her to the same “family violence dynamics” (s 60CC(2)(a)(ii) and s 60CG(1)(b)). Fashioning orders to keep the parties well apart when they exchange the children at a contact centre could not entirely eradicate the mother’s vexation. [42]  The evidence currently suggests the mother could well be deeply emotionally disturbed by orders requiring the children to spend time with the father. That inference arises from the combination of the mother’s evidence and the corroborative opinion evidence given by the single expert. The inference is not foreclosed by the mother having been able to cope with a solitary chance meeting with the father at the shopping centre in 2023 or by her telling the single expert she would comply with any Court decision.39 The mother’s capacity to provide for the children’s needs is liable to degrade if she is required to ensure they regularly spend supervised time with him against her earnest wishes (s 60CC(2)(d)), which would be disadvantageous for them. [43]  It has long been recognised that, even if a non-residential parent does not pose an unacceptable risk of harm to the children, the genuine fears of the residential parent about the existence of such risk may so impinge upon that parent’s capacity and cause such disturbance in the residential household that interaction between the children and the non-residential parent should be curtailed in any event. The need to accommodate the children’s best interests overrides any sense of injustice between the parties (Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544 –546; A & A (1998) 22 Fam LR 756 at 768 –769; Hepburn & Noble (2010) FLC 93-348 at [43] and [49] –[64]). [44]  While it is far from ideal to temporarily perpetuate the father’s elimination from the children’s lives, two other considerations soften that detriment to the children. First, the single expert said the children have adapted well to their separation from the father.40 Secondly, there is no guarantee orders will eventually be made after a final trial to restore the children’s interaction with the father. It would likely be upsetting to the children if they are re-introduced to the father on an interim basis, only for the father to again be eliminated from their lives. It would be less disturbing for them to be deprived of interaction with the father in the interim with the prospect that their relationships with him will later be restored on a permanent basis. There is nothing to suggest the mother is or has been damaging the children’s relationships with the father, either deliberately or inadvertently.": Bustillo & Bustillo [2024] FedCFamC1F 556. 

(2)(e) Benefit to children having a relationships with both parents, and other people, when it is safe to do so

> "[106]  It is agreed between the parties that the children benefit from having a meaningful relationship with each of them. The Family Report writer set out extensively in her Report, and which has been set out above, the positive interactions between the children and the parties. Both these parents have real strengths with varied interests. They are well educated and have an opportunity to nurture talented children if they choose to focus on that.": Kelly & Hutchens [2024] FedCFamC1F 662.

> Where not in dispute: "[160]  It is not in dispute X has a close relationship with each of his parents and will benefit from being able to have a relationship with each of them and members of his extended family. There is no suggestion it is not safe for him to maintain those relationships.": Werner & Manz [2024] FedCFamC2F 1079.

> See also, Stafford & Perry [2025] FedCFamC1F 29..

> "[17]  These following provisional findings were made in respect of the children’s best interests in the anterior judgment: ... 62.Assuming the father does not pose any threat to the children’s safety, their emotional needs are best met by their enjoyment of healthy relationships with him (s 60CC(2)(c) and s 60CC(2)(e)). Ordinarily, children benefit from the development of good relationships with both their parents (U v U (2002) 211 CLR 238 at 285–286).": Bajek & Bajek (No 2) [2024] FedCFamC1F 526.

> "[42]  There is no evidence as to the views of the children (s 60CC(2)(b)). I am satisfied that it is to the benefit of the children to have a relationship with their father (s 60CC(2)(e)) provided it is safe for them and the mother to do so (s 600CC(2)(a)) and does not compromise the mother’s capacity to provide for the children’s developmental, psychological, emotional and cultural needs (s 60CC(2)(d)).": Hannigan & Hannigan [2024] FedCFamC1F 806.

> "[67]  There is no doubt, and it is not contested that there is a real benefit in the child having a meaningful relationship with both parents. [68]  The Child Court Expert, Mr M gave significant evidence during cross examination by the ICL in respect of the strength of the child’s relationship with the Father as follows: ICL: And you obviously observed a very strong bond between the Father and [X]? [Mr M]: Yes, and probably one of the strongest bonds I’ve seen for a boy who hasn’t seen his Father for eight months. It overwhelmed me, your Honour, if I could say that. I mean, that’s probably why I, sort of, went straight to alternate weekend again. I thought, well, [X] has been denied this relationship with his Father, partly by his Father’s own refusal to accept alternate weekend during the daytime, which I thought he should have just maximised the time he could spend with [X]. Instead, he sort of held his ground that no, he wanted overnight, and [X] was denied a relationship with him for eight months ICL: And that would have had quite an effect on [X], wouldn’t it, that length of time not having any time with his Father? [Mr M]: Yes, yes, and I would have expected him to be a little hesitant seeing his Father again, and you know, just sort of work his way in. But he rushed to him straight away, and it’s like they picked up a conversation as though they had just seen each other the week before. I was just really impressed by that bond. (Transcript 22 August 2024, page 232 lines 7-22)": Geiger & Geiger [2025] FedCFamC1F 34.

> "[128] The Court accepts that the mother has made reasonable attempts to facilitate and encourage the children’s relationship with the father through FaceTime calls. The children have continued to express a reluctance to speaking with their father. [129] The evidence does not support a finding that the father has the insight and capacity to have a meaningful relationship with the children. [130] There is limited evidence in respect of the children benefiting from having a relationship with the father, but any such benefit comes at a risk to the children.": Wells & Wells [2024] FedCFamC2F 1516.

former (2)(a) jurisprudence

> "[21] ... The objects use the words “meaningful involvement”. ... [24]  The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further. [25]  The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”. [26]  What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.": Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520. 

> 'meaningful' does not require there be an optimal or perfect relationship: "68. Brown J’s judgment in Mazorski contains, in my view, a well researched and thorough exposition of the amendments, with reference to the Explanatory Memorandum, and the legislation itself.  Her Honour’s discussion is helpful and her conclusions about s 60CC(2)(a) are cogent. 69. At paragraph 24 of her Honour’s reasons she sets out the dictionary definitions of “meaningful”, and then explains her conclusions on the effect of the term “meaningful relationship”.   I respectfully agree with her Honour’s conclusions at paragraph 26 where she says: What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant. 70. In Godfrey & Sanders (2007) 208 FLR 287 Kay J said, in the context of discussing a relocation proposal which involved the father spending less regular periods of time with his child than he was at the date of hearing, “even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.” 71. The question then raised in this appeal is - Did his Honour appropriately consider, give reasons and craft orders to enable these children to have a relationship with their father, which was, even if not optimal, important, significant and valuable to them, or were orders which would have fostered such a relationship, inappropriate because of risk of physical or emotional harm to them?": Moose & Moose [2008] FamCAFC 108. 

-> aff'd, Mattina & Falconi [2024] FedCFamC2F 931, [172]. 

(2)(f) anything else that is relevant to the particular circumstances of the child.

> in this case: mother's freedom to live wherever, wishes to live in Country B with child, impact on the happiness of the mother, personality profile, risk of retaining child overseas, relocation, legal safeguards.

Examples

> BUT QUERY, if they know of the causes for risk factor in the first place, risk of 'behind closed doors' condonation: "[166]  The mother’s concerns, as expressed to the Single Expert, turned out to be somewhat of a premonition. The evidence of each of the paternal uncle and the paternal grandmother demonstrated that each of them do not understand the full extent of the allegations made by the mother against the father. Further, insofar as they expressed any understanding of the allegations, neither the paternal uncle nor the paternal grandmother considered there to be any merit to the same. Under cross-examination by the mother’s counsel, the paternal uncle gave the following evidence: Mother’s counsel: What do you understand the allegations [against the father] to be? Paternal uncle: False. Mother’s counsel: Yes, but what do you understand them to be? Paternal uncle: Violent or something and bad with the children. Mother’s counsel: Any more specifics? Paternal uncle: No. [167]  The paternal grandmother’s evidence was similar. She gave oral evidence to the effect that she could not conceive of a situation where the children might be at risk in the care of the father. She further said that she could not accept that the situation “behind closed doors” might have been different. [168]  It was also incredibly unhelpful in my view that the paternal uncle and the paternal grandmother sought to comment on the mother’s mental health and/or criticise her parenting of the children in their affidavit material. Under the heading “My observations of … [the mother] as a parent”, the paternal uncle considered it appropriate to provide his assessment of the mother’s mental health.159 The affidavit of the paternal grandmother was also replete with criticism of the mother, the mother’s mental health and the mother’s parenting capacity.[169]  In circumstances where I have formed a view it is necessary to make orders, which do not undermine the mother’s parenting capacity, I will not make orders, which place the paternal uncle or the paternal aunt into the role of a supervisor.": Fujioka & Fujioka [2024] FedCFamC1F 695.

> "[37]  The catch-all provision of s 60CC(2)(f) is that the Court must consider: “Anything else that is relevant to the particular circumstances of the child.” [38]  In my view, this is a significant factor. In August 2023, for reasons delivered, the Court sought to put in place arrangements that would correct what the Court found to be, contrary to the children’s best interests, the failure by the mother to support the children having a relationship with the father and the children’s embracing of that reluctance, if you like, in the way that they treated the father and engaged with him. It was a matter of great concern to the Court, and one earlier identified that the children were not at school. [39]  By January 2024, with, if not the consent, at least little opposition from the mother, who acknowledged her difficulty in having the children attend school, the change of residence occurred and the adjustment to living in the father’s home — a different home, where his parenting style is different — was given some time to settle down by reason of supervised time arrangements. The matter came back in April 2024, and the Court was confident enough, for the reasons articulated, that whilst the children would maintain their stability living in the father’s care, the mother should have time with the children on an unsupervised basis, and that was proceeding. [40]  The relevance is stability. I am concerned that on the trajectory which is now being developed, these children who had gained stability in the father’s care, in my view, will now lose that stability. However, there is a risk, in my view, particularly with Y at her age, that whatever allegation she is making against the father might be repeated to other authorities if the child is returned to the father’s care. I appreciate that is a broad speculation. In saying that, I do not in any way say that I make a finding that the mother has, opportunistically or otherwise, persuaded the children to make allegations in the last month or so that do not appear to have been made to anyone ever before, with the serious context that the police apparently believe they deserve. ... [48]  Let it be clear, the reasons why I am making this order in these terms is I believe the stability of these children, which is significant to their care, development, and welfare, should not be disrupted on the current evidence of mere allegations without any context or particulars for the three boys, but must, both to safeguard the father and to consider the nature of the allegations that might be true in some way raised against the father by Y, is why I have left Y in the mother’s care.": Tilmund & Tilmund (No 3) [2024] FedCFamC1F 673.

> Interim basis: "[76]  Another significant matter that arises pursuant to section 60CC(2)(f) is stability. These children have been through an awful lot since separation. In the leadup to separation, they have witnessed the parents engaged in high level conflict, at times seemingly violent. The mother has re-partnered since separation with a fellow by the name of Mr Q, about whom I know practically nothing, and he does not even get a mention in her material. The mother is going to be moving out of the property at K Street that she has been living in, so that will be yet another change of address for the children. [77]  If the mother has her way, then I have no idea, frankly, where either X, who does not want to leave his current school, or Y, will end up going to school. I simply do not know. Nor does the mother. What she is effectively seeking is a carte blanche order to be able to live where she wants to live within the City O area, and the children will simply have to fit in with that. [78]  The mother has a job in the City O CBD. There has always been quite a significant amount of travel required for the children to attend school. For a start, they go to three different schools. The distance between X’s school at Suburb G and Y’s school at Suburb E also involves some driving time. The fact of the matter is that a certain amount of driving time isbaked into the existing schooling arrangements. [79]  I am mindful of the decision in Re G: Children’s Schooling (2000) FLC 93-025 and of the mother’s right to freedom of movement and to live where she wishes, particularly if she is only moving to somewhere else in the City O area. But equally, I am not confident in giving the mother carte blanche when it comes to parental responsibility, particularly noting the complete uncertainty as to where she will in fact be living if she has her way, and noting some of her own behaviours to which I have referred, particularly, for example, the text messaging between herself and Z. [80]  The Court cannot be asked on an interim basis to uproot these children — X particularly against his wishes, who has clearly had a difficult time at school as it is — and simply place them wherever the mother deems fit. I will not make such an order on an interim basis. I consider that it would be tantamount to making a final order on very limited evidence, because the fact of the matter is that the change for the children’s schooling will be very significant if the mother has her way. I consider a much more appropriate child-focused and best interests outcome to be that the mother chooses to live somewhere where she will be able to continue to facilitate the children’s attendances at their current schools. This will involve a degree of sacrifice for her. Good parenting is sacrifice. It should not be the children who make the sacrifice. It should be the parents. ... [85]  Likewise, the mother’s proposal that the father simply spend an alternate Saturday pays lip service to the needs of the child to have a relationship with the father, and to the fact that her older brother Z spends half the time with the father. It also pays lip service to any risk factors that exist in the mother’s home.": Garnand & Garnand [2024] FedCFamC2F 971. 

> "[113]  In relation to s 60CC(2)(f) of the Act, the Court has taken into account the history of conflict between the parties where there have been competing recovery applications and family violence in the presence of the child, both at the time of the incident in giving rise to the ADVO and at the time of the dispute in relation to overseas travel and make-up time. The Court is satisfied that the orders proposed by the mother and ICL are most likely to prevent any future dispute in relation to the child and are in the best interests of the child.": Emmet & Bernardo (No 2) [2024] FedCFamC2F 1808. 

> Internationally to Australia: "[39]  The mother resists being forced to re-establish the children’s residence in Australia. Her desire to remain with the children in Country B must only yield if the children’s best interests demand that they live with her in Australia instead. Parents enjoy the entitlement to as much residential freedom as is compatible with their obligations pertaining to their children (U v U (2002) 211 CLR 238 at 262; AMS v AIF (1999) 199 CLR 160 at 223–224 and 231–232; Sampson v Hartnett (No.10) (2007) FLC 93-350). [40]  But the children’s best interests do not demand their return to live in Australia. They can recover their relationships with the father if they communicate with him regularly and, subject to him travelling to Country B, they are able to see him regularly. The paternal family apparently live in Country B in relative proximity to the maternal family, so the father is able to stay with his own family if he wishes to travel to Country B periodically for visits with the children. The cost of airfares is the only real expense for the father, but he sold the former family home in Australia and kept the net proceeds of sale so he has the capital to cover that expenditure.": Bajek & Bajek (No 2) [2024] FedCFamC1F 526.

> between Australian cities: "[179]  The mother holds a deep desire to relocate. If the court does not accede to the mother’s proposal, her aspiration and hope to advance her career and be with her family will be lost. It is highly likely that the mother will harbour some bitterness towards the father if she is unable to relocate with X She will most likely be unhappy. As much as she will attempt to conceal those feelings, they may nevertheless inevitably be transmitted to X in a way likely to affect his best interests. This more probably than not will have an impact on the positive co-parenting relationship the parents have attained. The mother can foresee a more positive life for herself and X if they are able to move. [180]  The mother will be confined to living in a place in which she does not wish with far less support from her family than if she lived in Sydney. She will be required to find alternate employment with such employment being able to provide her with a commensurate level of income to continue primarily financially providing for X, given the disparity in the parents’ income. [181]  The mother has been resilient to date. There have been no adverse impacts on her level of parenting capacity. She should not be penalised for showing such fortitude. [182]  The authorities are clear that the mother’s right to choose where she lives and works should only be interfered with if X’s best interests are so adversely affected so as to justify that interference and then the interference is legitimate only to the extent that is necessary to avoid such adverse effects.42 [183]  Having regard to my assessment of all of the section 60CC considerations and the proposal of the mother, I am satisfied that X living with the mother in Sydney does not so adversely affect his best interests so as to mitigate against a relocation which provides the mother with the ability to exercise her freedom of movement and live and work where she chooses.": Gulcan & Petroni [2024] FedCFamC2F 1314.

(2A)(a) Family Violence - any history of family violence, abuse or neglect involving the child or a person caring for the child

> ** "[80]  In addition, and when considering arrangements that would promote the safety of the child and each person who has the care of the child (whether or not that person has parental responsibility for the child), the Court must consider the following matters (s 60CC(2A)): (a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and (b)any family violence order that applies or has applied to the child or a member of the child’s family. [81]  The assessment of risk underpins the Court’s assessment of the child’s safety, and to that end in Deiter & Deiter [2011] FamCAFC 82 at [61] (“Deiter”), the Full Court of the Family Court (as it then was) identified: The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements — the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events…": Vaughan & Vaughan (No 2) [2025] FedCFamC1F 129.

> aff'd Edhouse & Edhouse (No 4) [2024] FedCFamC1F 647, [59]. 

(2A)(b) any family violence order that applies or has applied to the child or a member of the child's family.

(3) the right to enjoy ATSI culture

both parents Aboriginal

> "119. The child is of aboriginal descent. There is no evidence as to the extent, if any, the mother would wish the child to enjoy his aboriginal culture and the father’s evidence is that this was never a factor in the mother’s presentation and parenting. To his credit the father says that he would wish the child to be proud of his aboriginal heritage and in that regard I accept what he says. The Full Court in the marriage of B & R (1995) FLC 92-636 at 82-396 said:- It is not just that aboriginal children should be encouraged to learn about their culture, and to take pride in it in the manner in which other children might be so encouraged.  What this issue directs our minds to is the particular problems and difficulties confronted throughout Australia history, and at the present time, by aboriginal Australians in mainstream Australian society.  The history of aboriginal Australians is a unique one, as is their current position in Australian life. 120. The Full Court in Donnell & Dovey [2010] FamCAFC 15 said:- [321]        We consider that an Australian Court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and non-indigenous people relating to the concept of family.  This is not to say that the practices and beliefs of indigenous people are uniform, since it is well known that they are not.  However, it cannot ever be safely assumed that research findings based on studies of European/White Australian children apply with equal force to indigenous children, even those who may have been raise in an urban setting. [322]        In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic understanding of indigenous culture, at least to the extent this can be found in what the Full Court in B & R (supra) called “readily accessible public information”. It should not be expected that parties must approach the Court on the basis that the presiding judicial officer comes to the case with a “blank canvas”. 121. An obvious difficulty is that notwithstanding that the father would wish the child to be proud of his indigenous and non-indigenous heritage, there is nothing from the father as to how this would be promoted.  It may be that in the absence of any viable alternative, there is nothing reasonable that the father can do, but it seems to me that in a case where the father seeks the sole parental responsibility for the child these are matters which need to be the subject of careful consideration by him": Corelli & Gunther [2015] FamCA 81. 

> "780. Mr Ralph expressed the view that the child’s cultural needs were unlikely to be adequately met whilst he continued to live with the Farleys. He referred to the decision of the Full Court of the Family Court in the decision In the Marriage of B & R[33], where four themes emerged from a review of the literature: a)           A child whose ancestry is wholly or partly indigenous is treated by white society as “black”, resulting in connotations of an inferior social position; b)           The removal of an Aboriginal child to a white environment is likely to have a devastating effect, if it is coupled with long-term upbringing in that environment, especially if it results in exclusion from contact with the child’s family and culture; c)           Aboriginal children are better able to cope with racial discrimination from within the Aboriginal community, because that community actively reinforces identity, self-esteem and appropriate responses; and d)           Aboriginal children often suffer acutely from an identity crisis in adolescence, especially if brought up in ignorance of their aboriginality or in circumstances which deny or belittle their aboriginality.   [33] (1995) 19 Fam LR 594": Bartlett & Anor *& Farley [2009] FMCAFam 1237. 

Mother or father, and child identify as aboriginal

Relevance of recently discovered ATSI heritage

Right to exposure to culture subject to best interest considerations

Jing Zhi Wong

[E-G-A] Issues to be determined, examples: 


[E-H] Child Abuse, Neglect, sentenced by State Courts


[F] Reconsideration of Final Parenting Orders - s 65DAAA


[G] Testamentary Guardian - Effect of Appointment of Testamentary Guardian, and interaction with s 61C Family Law Act 1975 (Cth): 

?Uncertainty as to whether provision for appointment of testamentary guardian in circumstances where surviving parent exists, is inconsistent with s 61C(1) of the Family Law Act 1975 (Cth).

Criteria: Best interest of the child


[H] Orders Courts are Critical of: 

> DISTINGUISHING from Lainhart: "I am mindful of the decision of the Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200 wherein Austin J, delivering the leading judgment of the Court which with Aldridge J and McClelland DCJ agreed, observed that: 34.          …[I]f litigants are genuinely motivated to improve their parenting capacity, they will do so without the need for any order to regulate their decision.  On the other hand, if they do not genuinely desire any such improvement, any order intended to cajole such an outcome is likely to be unsuccessful at best and disregarded at worst. 29.          Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act.  Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences. That particular case involved an appeal from a decision of a trial judge who found that the father should only have supervised time with a child pending undertaking some cognitive behavioural therapy from a psychologist, upon the completion of which the father’s time would graduate to unsupervised time.  The Full Court set that decision aside, finding it was an unreasonable and inappropriate divestiture of judicial power to a psychologist. And in the course of Austin J’s reasons his Honour was critical of the decision to confer such power upon a third party, as well as noting that the orders were aspirational and unenforceable. I will not set out in detail what his Honour said, but I am certainly mindful of that decision here.  On one view, why should I order the father to undertake a ‘Parenting After Separation’ course?  He may learn nothing from it.  If his attitude to the course is the same as what I saw in the witness box, then he likely will learn nothing from it. However, he is an intelligent man.  He tells me he will do the course if the Court orders him to do so.  The course is clear in terms of what it teaches.  It is not a situation of uncertainty as was the case in Lainhart & Ellinson where it was not clear exactly what the purpose of the cognitive behavioural therapy was. I could tether the father’s overnight time to the requirement that he undertake a ‘Parenting after Separation’ course; this would be a legitimate parenting order within the meaning of section 64B(2) of the Act. The question is, really, whether I should do so – whether it would be an appropriate exercise of discretion.  What if, for example, the father learns nothing from the course?  What if he obdurately refuses to take anything on board?  These are all real possibilities in this case. But what is the alternative?  If I were to make an order that the father’s time remain stuck at eight (8) hour periods ad infinitum, this is not what the mother wants, nor do I consider that it would be in the best interests of X who will not always be an eight (8) year old boy. Like his older half-sister Ms F, X will grow up and learn to see all the adults in his life from his own perspective.  He will not always be a young boy, and he is someone whose long-term future needs to be balanced carefully. If I order that the father’s overnight time commence upon the father undertaking a PAS Course and with the expiry of the period of time referred to and recommended by the Family Report writer, I create the additional safeguard that the boy will have had the opportunity to grow a bit older and to develop that improved cognition and that greater understanding of the world and, perhaps, hopefully, to have reduced some of his anxiety. It is a matter of balancing up two possibilities.  Either I stop the father’s time at daytime visits, which no-one wants me to do, or I increase his time to include overnights when X is older, conditioned on him doing a PAS Course from which he may learn precisely zero, but he may learn something.  He may learn something significant; I simply do not know. I regard the PAS Course as a necessary precondition to at least give the father the opportunity to improve some of the jagged edges in his co-parenting and his parenting.  But knowing that it is a somewhat imprecise exercise that will not be re-visited by this Court I do not consider it an improper divestiture of judicial authority to the provider of a PAS Course because I do not consider the child will be at unacceptable risk in spending overnight time with the father. I do consider that the father’s time on an overnight basis will need to be inherently limited by reason of the attitudes and behaviours that I have seen on display from him as referred to in these reasons.  That is to say, time can graduate to overnight when the child is ten (10).  I believe that the child will cope, and I am satisfied that he will.  I hope – and I express it as a hope only – that the father will learn something from the PAS Course, but he will at least be required to do it and to be given the opportunity to improve his own parenting and his own attitudes for X’s sake. If the father attends the course and provides a certificate of completion, then he can have overnight time.  If the parenting arrangements go awry down the track because he continues to adopt an ‘all or nothing’, or a ‘black and white’ or a ‘you are with me or against me’ approach, the father will have only himself to blame. But I do not consider that it would be appropriate to deprive X of the opportunity and the benefit of a relationship with his father that is meaningful on the basis that the father may not complete the PAS adequately (in terms of learning). In short, it is the lesser evil to make the order the mother proposes than to simply fix the father’s time with X rigidly at daytime only.": Renna & Grenville [2023] FedCFamC2F 1638, [204]-[219], *[209].

-> cf whether such courses do ameliorate risk or improve parental capacity, turns on facts: Boerio & Nelson [2025] FedCFamC1A 99, [30]-[35]. 

> APPLICATION of Lainhart: "The Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200 at [29] held: Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences. In this matter, I am not satisfied that the father has demonstrated any capacity to undertake and implement therapeutic intervention in relation to his drug use. I find that the proposal of the ICL and the father is aspirational in its prediction of the father’s recovery from drug use and association. Throughout this hearing, the father failed to show any insight into the impact that his longstanding association with and use of drugs has had on his family. This included directly exposing X to his drug use. The father demonstrated no insight as to possible risks that he exposed the children to in dealing drugs from the former matrimonial home. When directly asked about his drug use and the impact it had on his family, he was clear that, in his mind, the only person disadvantaged was himself. I had the impression that he meant that he was disadvantaged because he had been caught in perpetrating falsehoods. This is in circumstances where the father was strident in his denials that his drug use had impacted on his decision-making and his parenting capacity. I do not find that it is appropriate that I make orders for the father to undergo drug testing or counselling given the findings made in relation to unacceptable risk. That is for the father to undertake if he forms the view that he has a problematic use of drugs and alcohol and/or he accepts my findings on family violence.": Clayton & Clayton (No 3) [2024] FedCFamC2F 994  [431]-[434]. 

> APPLICATION of Lainhart - therapy and testing for rehabilitation: "Ms G recommended in the second family report that both parties undertake psychological therapy. Ideally, they would follow this recommendation for the benefit of the children. However, neither party sought an order that the children’s time spent with the other be conditional upon them attending counselling. I referred earlier in my reasons to the mother’s attitude towards attending recommended counselling. I note in event, the Full Court’s observations in Lainhart & Ellinson[29] that: Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences. [29] (2023) FLC 94-166 at [29]. The orders I make are made on the basis of how each party presented at the time of the final hearing and not predicated on there being any change in their attitudes or parenting capacity. I expect the mother will find it difficult to accept the orders I make given her strong negative feelings about the father and her belief that there is no benefit to the children of spending time with him. The father will likely be disappointed that my orders do not provide for the children to spend more extensive time with him. Regardless of how they might feel about the orders I make, the parties are required to follow the orders. The expert evidence is clear that it is in the children’s best interests for them to support the children spending time with the father and for the children to be safeguarded against the parties’ negative feelings towards one another. The parties’ obligations arising from the orders, the consequences for non-compliance and services that can assist them to understand their parental responsibilities and adjust to and follow the court orders are set out in the information sheet which will be annexed to the final orders. I encourage them to each seek professional support from a psychologist or counsellor to support them to adjust to these orders including to support them to support the children to adjust to the orders. I will make an order authorising the parties to provide a copy of the final orders, my reasons and the second family report to any psychologist or counsellor they may each attend upon for this purpose.": Murati & Roca [2024] FedCFamC2F 1672, [230]-[233]. 

> APPLICATION of Lainhart - therapy and testing for rehabilitation: "The ICL seeks interim orders and that is supported by the Respondent.  The ICL orders as recited earlier seek orders that would direct the Respondent to undertake therapy and testing that would assist him rehabilitate.  Although the orders sought by the ICL do not go as far as those criticised by the Full Court and ruled as without power in the decision of Lainhart, observations in that case are apposite to this. 28          Courts exercising jurisdiction under the Act must decide justiciable disputes, by conventional adversarial procedure, between imperfect litigants on the available evidence according to law by making prescriptive and enforceable orders within statutory power to quell the controversy. That is the unique and essential function of judicial power (Rizeq v Western Australia (2017) 262 CLR 1 at [52]; Fencott v Muller (1983) 152 CLR 570 at 608; Harrington v Lowe (1996) 190 CLR 311 at 325). The judicial function cannot be delegated to others, apart from to registrars in limited circumstances, and only then subject to the right of de novo judicial review (Harris v Caladine (1991) 172 CLR 84 at 95, 120–122, 145, 150–151, 160 and 163–164). 29          Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences. The orders sought by the ICL border on being aspirational directions about how a litigant– in this case, the Respondent, should improve his parenting capacity in the hope of enhancing the children’s experience with him. I am bound by the observations of the Full Court. It was not argued before me that the ICLs orders were beyond power or that they were “untethered” or that they could not be authorised by reference to section 13C of the Act recited earlier, but in substance those orders are really a desperate plea by the ICL about what the Respondent could do to assist his children’s lives by assisting his own life. There is a conditional element to the orders sought by the ICL and the Respondent.  I am not satisfied that there should be further interim orders made on the state of the evidence at this point, hence I am left with the burden and responsibility of making final orders.": Payne & East (No 2) [2024] FedCFamC2F 377, [301]-[303]. 

> See also, Bretz & Jankowska [2024] FedCFamC1F 579, [323]-[324]. 

> See also, "[212] I have given serious consideration as to whether this is one of those cases where a conditional order is appropriate such as making the current living arrangements conditional on the mother engaging with or re-engaging with a drug and alcohol counsellor and providing them with the positive drugs tests and Dr B’s evidence. The challenges of making these types of orders are well documented in Oberlin & Infeld [2021] FamCAFC 66, Lainhart & Ellinson [2023] FedCFamC1A 200 and most recently Miyajima & Mikkelsen [2024] FedCFamC1A 208. In his written submissions the father says he no longer seeks an order for the mother to engage in drug and alcohol counselling given the mother’s previous attendance and denial of drug use. [213] I also considered whether interim orders should be made with further drugs tests to be completed but have decided that will not assist this family. Having ongoing proceedings on foot would only continue to subject the parties to ongoing scrutiny and stress. [214] The parties consent to an order being made for them to exercise joint decision-making for major issues concerning the children. I am satisfied that it is in the children’s best interests to make that order. Both parents will remain closely involved in the children’s care. [215] They also consent to an order for the father to complete a men’s behavioural change course and provide the mother with evidence of its completion. Whilst the parties consent to such an order, I am not satisfied that it is appropriate to make that as a final order. If the father is motivated to better understand his behaviour and commit to change, he will not need an order for him to either continue his counselling with Dr G or another experienced counsellor and/or complete such a course. If he needs an order to do it, it will have limited utility. I have formed the same view in regards the mother attending drug and alcohol counselling. I will make an order if the mother engages with a drug and alcohol counsellor the mother be permitted to provide them with copies of the HFT results, Dr B’s reports, a copy of these Orders and reasons should she wish to engage with further drug and alcohol counselling. She may feel more able to if she does not feel under surveillance. Both parents have commenced a tuning into kids course. [216] I will order that the children continue to live with the mother nine nights a fortnight during school terms.": Tomkins & Milliken (No 2) [2025] FedCFamC2F 280.


[H-A] Orders that require the co-operation of foreign authorities - aspirational request to foreign authorities


[I] Consent Orders Proceedings - issues

> Family Law Act 1975 (Cth) s 60CC(4): " (4)  If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3)."

> "I observe that s 60CC(5) of the Act provides: “If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3)”. Thus, in considering whether to make a consent order the court is not required to have regard to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). In the revised explanatory memorandum dated 27 March 2006 to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 it was said at paragraph 77: New subsection 60CC(5) provides that if the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may have regard to all or any of the matters set out in subsections (2) and (3). These subsections contain the primary and additional considerations that a court considers in determining a child’s best interests. This allows the court to take these considerations into account and is consistent with the Government’s policy of encouraging people to take responsibility for resolving disputes themselves, in a non-adversarial manner. The provision is essentially the same as the existing subsection 68F(3). However, s 60CA of the Act provides: “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.  In other words, although in considering whether to make an order with the consent of all parties to proceedings, the court is not required to have regard to all or any of the primary and additional considerations, the court must have regard to the legislative requirement of the best interests of a child.  In LexisNexis Butterworths, Australian Family Law, vol 1 (at Service 215) [s60CC.210] it is said: One of the clear implications of the principle that the child’s best interests are the paramount consideration, and one of the main practical ways in which the proceedings can be distinguished from adversary proceedings, is that the court is not limited to making orders as sought by one or other party.  The court may make different orders if it is persuaded that those orders will better serve the children’s best interests.  Where the court is minded to make orders not sought by either party, procedural fairness will require that the parties have an opportunity to address the court on whether such orders should be made.  Both points emerge clearly from U v U (2002) 29 Fam LR 74; FLC 93-112 (HC), and had previously been established by the Full Court: see In the Marriage of Guthrie (1995) 19 Fam LR 781; (1995) FLC 92-647; In the Marriage of Thorsby (1997) 22 Fam LR 785. Similarly, there are circumstances in which a trial judge should refuse to proceed with a hearing if the evidence is manifestly inadequate to enable a proper decision to be made, and where it is possible for that evidence to be obtained.  The judge in such circumstances has the right, and possibly the duty, either to require the parties to call additional evidence, or to call the evidence if it is available: see Re Evelyn (1998) 23 Fam LR 53 at 65; FLC 92-807 at 85,103. In my view, these observations apply whether the order is made by consent or in adjudicated proceedings.": Reid & Lynch [2010] FamCAFC 184,  [212]-[213]. 

> * "Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters to be considered when determining what parenting order is in the best interests of a child, in the particular circumstances of each case. However, s 60CC(5) provides that if the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection 60CC(2) or (3). Section 60CG nevertheless imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.": Spillett & Chambers [2023] FedCFamC1F 243, [10]-[11].

> *** cases after 6 May 2024:  "Sections 60B, 60CA, 60CC of the Act as amended provide the means by which the Court is to be satisfied that a parenting order is in the best interests of a child, but the provisions are not exhaustive and operate in the context of Division 12A. In my view, these provisions are intended to have application even when parties come to an agreement during the proceedings and invite the Court to make orders by consent. If it were otherwise, the welfare and safety of children would be at risk contrary to the objects of Part VII of the Act, including the Convention on the Rights of the Child that is now emphasised by the amendments. To illustrate that this is so, an extreme example is useful.  For example, if the parties invited the Court to make orders that a child live with a person convicted of sexual abuse of a child, the Court should not be bound to make the orders if it forms the view that the order is not in best interests of the child. The statutory scheme of the Act makes it plain, in my view, that for as long as there are pending proceedings before the Court, the Court's function and duty when making parenting orders is governed by the overriding objects of Part VII of the Act and the best interests of the child. This is the case even when a proceeding is to be concluded summarily by the making of final orders by consent. It is correct to observe that s 60CC(4) of the Act provides: If the Court is considering whether to make an order with the consent of all of the parties to the proceedings the Court may, but is not required, to have regard to all or any of the matters set out in subsections (2) and (3). But the word “may” in this context does not involve discretion to abandon the best interests of a child in consent order applications.  Rather, “may” is enabling and requires the Court to apply the same considerations as set out in subsections (2) and (3) when considering whether to make orders, but always applying its discretionary consideration to those provisions. In conclusion, in this instance with some reservation, I have been persuaded to make the orders in the consent minute because, I emphasise, at this time I largely accept the submissions of the ICL and am sufficiently satisfied that the orders sought are in the best interests of the children, including Y, at this juncture.  I also suspect very strongly that if I do not make the orders then the father may discontinue, leaving the state of affairs to be exceptionally unsatisfactory.": Garrido & Garrido [2024] FedCFamC2F 634, [21]-[26]. 

> "As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth). I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[53]  Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[54] [53] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2. [54] Sections 60B and 60CG of the Act. Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remains important because of the need to make parenting orders that promote the safety and welfare of children.[55] [55] Section 60CC(2)(a). I consider that the assessment of risk of harm to a child remains informed by the principles established MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97.": Coulson & Wayfield [2024] FedCFamC2F 979, [58]-[61].

> ** relatively short judgment: "These are parenting proceedings concerning the child, J, born in June 2005, in relation to which the parents have been able to reach an agreement with the Independent Children’s Lawyer, reflected in Orders that have been initialled by them and the Independent Children’s Lawyer and handed to me. Section 60CC(5) of the Family Law Act 1975 (Cth) (“the Act”) provides that if the Court is considering whether to make an Order with the consent of all the parties to the proceedings, the Court may, but is not required to, have regard to all or any of the matters set out in subsections (2) and (3) of s 60CC of the Act. I do not propose to make any findings with respect to the s 60CC matters, and my comments which follow do not purport to be such findings. I simply record, for the purpose generally, but also having regard to Rule 10.15A of the Family Law Rules 2004 (Cth), that this was a case that was the subject of a significant degree of expert evidence. That includes the Children and Parent Issues Assessment carried out by Ms Z, a Family Consultant, on 29 July 2010; an affidavit of Dr M, psychologist, filed 21 December 2010; and the Family Reports of Ms Z, Family Consultant, dated 15 July 2011 and 23 February 2012 respectively. My attention was also directed by the Independent Children’s Lawyer to what appears from subpoenaed documents obtained from Relationships Australia, and in particular, observations made as per an observational report provided on 6 March 2012. It is clear enough that J presents as an intelligent and well-behaved six year-old, and in that respect is a credit to both of her parents. Having regard to the evidence I have briefly referred to, I am satisfied that the Orders that the parties have been able to agree upon should be made in J’s best interests, and I now make Orders in terms of the Orders as reflected in the Minutes of Consent initialled by the parties and by the Independent Children’s Lawyer and now initialled by me and placed with the file.": Mawson & Mawson [2012] FamCA 172.  

> Supervision orders placed by Court - consent orders: "5. The central issue in the parenting proceedings and the event that instigated the separation of the parties are the allegations J made that the Father had sexually abused her.  The Father, on his affidavit material and in other settings, has always vehemently denied the allegations. ... 9. Given that neither of the parents have given evidence in terms of being cross-examined before me nor, for example, has the treating psychologist of J, namely, Ms G, nor other witnesses that would have been called had the trial proceeded, it is not possible for the Court to reach any firm conclusions or findings of fact concerning either that central issue nor, indeed, other issues in the proceedings. 10. Section 60CC(5) of Part VII of the Act provides that if the Court is considering whether to make an order with the consent of all the parties to the proceedings the Court may, but is not required to, have regard to all or any of the matters set out in subsections (2) and (3) of that section. 11. Subsection (2) of that section is a reference to the primary considerations the Court must have to regard to in determining what is in a child’s best interests.  Those are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.  Subsection (2A) requires that in applying those primary considerations the Court is to give greater weight to the need of protection referred to. 12. Cases such as this bring into sharp focus the competing considerations of the benefit to the child of having a meaningful relationship with both parents, and the need to protect referred to.  Because the subject allegations essentially go untested in terms of a trial contested to its conclusion, it is not open to the Court to make findings one way or the other concerning the central allegations I have referred to. 13. On the one hand, matters such as annexure B to the Mother’s affidavit filed 25 October 2012 which purports to be a journal or a series of entries made by J, is to say the least troubling if it is factually correct. 14. The consent orders that have been reached by the parties are neither consented to nor opposed by the Independent Children's Lawyer.  I was informed this morning that the Independent Children's Lawyer has a certain view about the allegations in terms of their veracity, namely, that she more readily dismisses them based on the exhibit that has been tendered this morning compiled from the police records. ... 18. One potentially troubling feature, so far as the orders are concerned, is that they allow for a progression of Y’s time with the Father given Y’s current age, progressing within a period of about nine months to being on an overnight basis, albeit supervised by Ms C.  I sought from the Mother’s Counsel an explanation as to any reconciliation between the Mother’s apparently firmly held view that something untoward happened as between the Father and J, and orders formulated in these terms concerning Y.  In the end it seemed that fundamental to the Mother’s consideration and in circumstances where it seems the proposed orders are largely consistent with the proposal she made at the outset or earlier today, is the evidence of Dr M, a psychologist, who undertook a sexual abuse risk assessment of the Father.  ... 21. I say all this conscious that it is the Father’s case that he maintains that there is nothing in the allegations, that is, whilst he has no idea why J would mount the allegations that she has, he is vehement in his denials of them and his position is that the allegations are false. ... 24. I would observe at this point, again in circumstances where it is clear that not all the evidence has been tested before me, that on the evidence, such as it is, it could not be concluded that the Mother’s fears concerning J could be classified as irrational or baseless, and the converse, of course, is that the Father’s denials of the allegations remain extant. 25. It is in these circumstances that the proposed orders are put before the Court which, as I have noted, contemplate a graduation of time between Y moving from supervision at B Contact Centre to supervision by Ms C. 26. I raised with the parties that consistent with authorities such as Champness & Hanson,[3] Moose & Moose [4] and Slater & Light[5] there needs to be, in this case, what can be conveniently described as a “sunset clause” so far as supervision orders are concerned. The parties thus expressed their consent to an order that the Father be at liberty, on and from Y attaining the age of 13 years, to make application to the Court concerning the provision for supervision.  That would obviate the Father having to otherwise show changed circumstances in bringing further proceedings.[6] ... 27. The essential basis upon which the Independent Children's Lawyer neither consented to nor opposed the orders is that she would seek or propose orders in somewhat different terms and in somewhat different timeframes.  However, the Independent Children's Lawyer does not oppose the orders on the basis that these are the orders that the parents of Y have been able to negotiate and reach and, absent any opposition in a substantial way by the Independent Children's Lawyer, I am satisfied on the matters I have briefly outlined that the orders meet Y’s best interests and ought be made. 28. On that basis and for these reasons, I make the orders signed by both the parents now initialled by me and placed with the file and confirm the additional order I have referred to with respect to the sunset clause matter.": Thistle & Thistle (No 2) [2014] FamCA 67. 

> See also, Austin & Austin [2024] FedCFamC1F 664, [11] et seq.

> *** "22.  However, the issue that I have to consider at the moment is whether I ought to make the consent orders now presented for the Court’s approval. ... 24. When the Court comes to make parenting orders under the Family Law Act, it must do so in accordance with Part VII of the Act. That requires the Court to apply the paramountcy principle set out in s.60CA of the Act. How a Court works out what is in a child’s best interests is determined by s.60CC and the matters set out therein. Section 60CC(5) provides that if the Court is considering whether to make an order with the consent of all of the parties to the proceedings, the Court may, but is not required to, have regard to all or any of the matters set out in ss.60CC(2) or (3). 25. Thus, if the orders were not to be made by consent, the Court is required to have consideration or give regard to those matters set out in sections 60CC(2) and (3). But in the case of consent orders, the Court may, not must, have regard to them. 26. Notwithstanding the provisions of s.60CC(5), it must be the case that the making of these orders, consent or otherwise, is nonetheless an exercise of the Court’s jurisdiction to make parenting orders. Only those orders which the Court considers on the evidence before it are in the best interests of the child should be made. 27. There is no evidence before me which would suggest that these orders are in [X]’s best interests.  The mother has filed no evidence which sets out his current arrangements, or the matters that are in place for his welfare.  The very fact that the Court came to the conclusion based upon objective evidence before it in May, 2012 that [X]’s best interests demand that he live with Mr Hogan suggests that there is a requirement upon Ms Thomas – and Mr Hogan to the extent that he joins in the application for the making of the consent orders – to place before the Court some evidence which suggests that the orders are in [X]’s best interests.  28. But there is none. I cannot be satisfied that the orders I am asked to make are in [X]’s best interests. The Independent Children’s Lawyer does not support them. I refuse to make them. 29. There is another reason to refuse to make the orders. Ms Thomas is in contravention of the orders made on 23 May, 2012. She concedes as much, and her noncompliance with those orders is wilful. 30. In Garning & the Department of Communities, Child Safety and Disability Services [2012] FamCA 354, Forrest J of the Family Court of Australia discussed the earlier decisions of the Full Court of the Family Court of Australia in Fahmi [1995] FLC 92-637 and Malpass & Mayson [2000] FamCA 1253. His Honour concluded that he should not consider the application then before him as a matter of discretion because the applicant was in contravention of earlier orders made by the Court. 31. Whether a Court hears a party who is in contravention of earlier orders is a discretionary matter.  There is no absolute rule that such a person has no right to prosecute an application before the Court or be heard in any proceedings before the Court. 32. In this present case Ms Thomas’ contravention is longstanding, wilful and there is absolutely no attempt by her to place any evidence before the Court as to [X]’s current circumstances or welfare.  In those circumstances, it seems to me that the Court should be slow to lend its assistance to a party who so clearly has treated the orders made by the Court and the Court itself, with such contempt.  The relevant discretion ought to be exercised against determining any application, even an oral application for the making of consent orders as presently stands before the Court. 33. In my view, the Court ought not make the consent orders that have been presented.  In summary, I come to that conclusion for these reasons: a)           the material before the Court is insufficient to satisfy the Court that the making of the orders is in [X]’s best interests; and b)           as a matter of discretion, I would nonetheless refuse to hear Ms Thomas further on the application, given that she is presently in wilful contravention of the orders made on 23 May, 2012, and there is no evidence from her about the current circumstances of the child. 34. I refuse to make the consent orders presented by the parties.": Thomas & Hogan [2013] FCCA 1108. 

Harris v Caladine jurisprudence

> See also [#.A] Parenting Proceedings as Seeking the Court's Imprimatur re Orders Sought above. 

Content of Orders not proper exercise of jurisdiction conferred OR contrary to statutory framework of the FLA

> "Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences  ... In this instance, the primary judge did not confine his role to simply deciding the case on its merits by reference to the evidence which the parties elected to adduce. His Honour tried, but failed, to formulate orders which would remedy the deficiencies in the evidence about the child’s future safety in the father’s care and dictate via the use of an intermediary how the child would be prospectively protected from the risk of harm, undoubtedly hoping that would prove beneficial for the child and the parties. However, orders of this type have been identified and criticised by the Full Court in the past (Re David (1997) FLC 92-776 at 84,575–84,576; Rader & Rader & Ors (No 2) [2019] FamCAFC 227 at [53]). ... ".

Parenting Plan

> "[10]  It is with all of that information in mind that the parties have conducted negotiations to resolve and finalise the parenting arrangements for both children. In essence, the arrangements are such that Y will continue to live with the father, and he shall spend alternate weekend time with the mother. The child X will continue to live with the mother, and, subject to any agreement between the mother and X’s father, the second respondent, X will spend time with the second respondent. Importantly, from my perspective, the children, who are siblings, will spend time together on alternate weekends and on special occasions when the child Y is spending time with the mother. I am conscious that both children are craving the opportunity to spend meaningful time with each other. So much so is obvious by those matters raised in the child impact report of 27 January 2023. [11]  This matter has had a difficult trajectory, given the competing risk factors that I have identified, and the difficulties that the mother in particular faces and has faced. Whatever the case may be, it strikes me that the current arrangements are the best that can be made of the current circumstances for these children. While I do have reservations about the appropriateness of the mother’s living arrangements, I hope that in due course, those arrangements will become more permanent and secure and, frankly, more humane than they presently are. [12]  However, doing the best that I can and understanding that the children’s needs are respectively being met by the present arrangements as they have been for some time, I am satisfied, as I say with some reservations, that the orders that the court is now being asked to make are ones that are in the children’s best interests. [13]  I make it clear, however, that I continue to have concerns, but in the absence of any other alternatives, the court is faced with some significant difficulty. While I am conscious that I could decline to make the orders and the parents could enter into a parenting plan, it is my view that it is more appropriate for orders to be made by this court, in all of the circumstances of these proceedings, and particularly given the long history of the matter. [14]  It is for all of those reasons, and with the view to avoiding the potential for further litigation in the future, that I consider it appropriate to give the court’s imprimatur to the arrangements that the parties have been able to negotiate and agree with the assistance of the Independent Children’s Lawyer. [15]  I am additionally comforted by the fact that both Department for Child Protection and the Independent Children’s Lawyer, while the latter having the same reservations as the court, do not propose to stand in the way of the agreement which the parties have reached.[16]  I am also comforted by the fact that the parties have been able to reach an agreement. In my view, that bodes well for the future.": Vance & Tuffin [2023] FedCFamC1F 892. 

> "[26]  The mother says that those minutes of consent should be made orders by consent, thereby bringing an end to the respective applications. [27]  As the High Court made clear in Harris & Caladine, the process of making consent orders involves the exercise of judicial (or, in many cases, quasi-judicial) discretion and is a judicial exercise that signifies the determination of what is in the children's best interests. [28]  I refuse to make the orders by consent. [29]  The reasons for failing to do so will be plainly obvious from the reasons for judgment made in the trial and the subsequent reasons delivered ex tempore on 19 May 2010. In short, I do not consider that the "agreement" embodies orders which are in the best interests of these two children. [30]  It is plain that the parents can agree on such arrangements as they consider appropriate in respect of the children. As Mr Grant points out, correctly, in my view, because the document is in writing, is signed and dated by the parties, and deals with the matters referred to in s 63C(2) of the Act, the document signed by the parties can constitute a parenting plan. [31]  Accordingly, it can govern the rights as between the parties for so long as they continue to agree to implement the parenting plan. [32]  It is quite another thing, however, for the court to give its imprimatur to orders which it does not consider to be in the best interests of the children.[33]  It is for those reasons that I refuse to make orders in the terms of the document entitled "Minutes of Consent" signed and dated by each of the parties. [34]  I should also point out that, if I was to make those orders by consent, it may be that, should the need arise for litigation in this court to occur in the future one or both parties may need to overcome a "Rice & Asplund" problem in respect of the orders which would be made by consent. [35]  It seems to me inappropriate that either party, and in particular the father, should confront that, as it were, hurdle in circumstances where he sought to make an application in the future pertaining to the best interests of these two children. [36]  For all of those reasons, I refuse to make the Minutes of Consent as orders by consent.": Fitzroy & Fitzroy (No 3) [2010] FamCA 867. 

> "[89] As a consequence, apart from the administrative necessity to establish the end of a marriage to avoid bigamy prosecution upon a subsequent marriage, separated spouses need not invoke the court’s jurisdiction to resolve any issues arising between them post the end of their marriage.20 They are free to make whatever arrangements they please in respect of the parenting of their children and the disposition of their property. Indeed, some aspects of the relevant legislative provisions encourage them to do so.21": Khoury & Khoury [2023] FedCFamC2F 1087.

Extent of Inquiry - Less Demanding than an Initiating / Adversarial Proceeding

> Harris v Caladine, ALR 204-5 (Mason CJ and Deane J); 219, 220 (Dawson J): "It does not follow that, when a consent order is sought in a s 79 application, it is necessary to conduct an inquiry into each of those factors. The court may be satisfied that a provision is proper by reference not only to the material before the court relating to the factors mentioned in s 79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in paras (a) to (f) and have taken them into account before consenting, the provisions “with respect to financial matters” proposed for incorporation in the consent order will be seen to be “proper”. The factor mentioned in para (g) may require independent inquiry by the court, but that question does not arise in this case. Nevertheless, when an application for a consent order in a s 79(1) matter is made there is a discretion to be exercised with reference to the propriety of the provisions with respect to financial matters. The making of a consent order in a s 79(1) matter is not automatic. ...  The Full Court on appeal from Maxwell J held that the review of the deputy registrar's decision was confined to an inquiry whether the parties did in fact consent to the terms of the order and whether the terms agreed upon were in a form appropriate to the type of order sought and were enforceable. ... Even if the consent pursuant to which an order is made under s 79 amounts to a contract between the parties, it is the order itself which is of legal significance. As Lord Diplock observed in de Lasala v de Lasala [1980] AC 546 at 560 , in related circumstances: Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order. And in the case of an application under s 79, even if there is consent amounting to a contract, that is not enough of itself to entitle the parties to an order. The requirements of the section must be satisfied. ...".

> cf, approach in Initiating Applications resulting in final orders by consent: Landring & Landring [2025] FedCFamC2F 147 -- ICL, CIR and Family Report. 

> Sakhagi & Brawn [2017] FamCA 188.

Challenging Consent Orders

History of Family Violence - Consent Orders


[I.A] Requisitions & Registrar Notifications - Consent Orders

Reasons for Requisition

> not just and equitable, 80/20 split: "[17]  That application for consent orders filed on 21 April 2017 gave rise to a requisition from Registrar K. Sudholz dated 18 May 2017 and notification of the consent orders being made for the following reasons:— •The Registrar was not satisfied that the outcome is just and equitable in circumstances where the parties have said that the contributions were equal (see items 68 to70 of the application for consent orders) and where there are no section 75(2) factors (see 71 of the application for consent orders). Accordingly, a statement of agreed facts signed by both parties must be provided addressing the basis for the adjustment of assets (inclusive of superannuation) of 80 per cent to the wife and 20 per cent to the husband. This includes a summary of the parenting arrangements for the children of the marriage including what is intended after the wife’s proposed return to [Country K]. •Item 72 is not clear what the other property is in the amount of $364,231.20. It appears to correlate to a liability owing by the husband in item 73 however there is no provision in the proposed minute of consent order for this amount to be paid to the wife. An explanation of this matter is required together with the additional $6,000. [18]  The husband and the wife were advised by Registrar Sudholz that the proposed orders were being returned pending a satisfactory response to this advice and if no response was received by 19 June 2017 the application for consent orders will be dismissed. The correspondence was addressed to the husband’s solicitors who were L Lawyers and to the wife in person at N Street, Suburb N.": B Pty Ltd Pty Ltd & Ors & Majid & Naima [2018] FamCA 612.

> Roussos v Vasco [2014] FamCA 1053, [131]. 

> Bard & Arthur [2009] FamCA 818. 

Remedial

Criteria - Curial Assessment of Application for Consent Orders


[I.B] Consent Orders - Appeal Against?

Setting aside Consent Orders

Summary Dismissal - Orders clear on their face - Appeal - allegation of inadequate explanation about effect of Orders


[I.C] Final Orders by Consent


[J] Parenting Plan

> Note, relation with BCSA. For BCSA, see Spousal/Maintenance in Wong on Family Law. 

> cf   Vance & Tuffin [2023] FedCFamC1F 892, [10]. 

> "[262]  Division 4 Pt VII of the Act allows parents from time to time to enter into a parenting plan which may have the effect of varying or revoking an order of a court. If at some future point in time the father formed the view that it was in the child’s best interest to have face to face time with her mother, then the parents could enter into a written arrangement to vary the orders that I have made. It was not suggested by the father or the Independent Children’s Lawyer in this case that I would make an order that the parenting orders may only be varied by a subsequent order of the court. The orders could be varied by a parenting plan.": Hammond and Hammond (No 2) [2014] FamCA 577. 

> "[955]  Division 4 Part VII of the Act allows parents from time to time to enter into a parenting plan which may have the effect of varying or revoking an order of a court. If at some future point in time the father formed the view, consistent with the child’s views, that it was in the child’s best interest to have face to face time with his mother or communication with his mother, then the parents could enter into a written arrangement to vary the orders that I have made. It was not suggested by the father or the Independent Children’s Lawyer in this case that I would make an order that the parenting orders may only be varied by a subsequent order of the court. The orders could be varied by a parenting plan.": Tyler and Sullivan [2014] FamCA 178. 

> *** "[6] The original order signed by the Registrar is on the court file. Unsurprisingly enough, it has that very document attached to it. The document reads as follows, under a bold heading, which says “Your Legal Obligations”, it reads: You must do everything a parenting order says. This includes taking all reasonable steps to follow the order. There are agencies in the community that can help you and your family adjust to and comply with the order (see details above). The order remains in force until a new parenting order or parenting plan changes it in some way. Even if the needs or circumstances of you, your children, or the other party change the court order applies until it is formally changed by a court or in some circumstances you enter into a parenting plan with the other party. [7] Unsurprisingly, it then reads: Sometimes people talk to each other about changing arrangements set out in the parenting order. These talks do not change the order." [8] Those obligations are part of the order.": Krinos & Krinos [2013] FamCA 88. 

> s 64D Family Law Act 1975 (Cth): 64D(1): " (1) Subject to subsection (2), a parenting order in relation to a child is taken to include a provision that the order is subject to a parenting plan that is:  (a) entered into subsequently by the child’s parents; and  (b) agreed to, in writing, by any other person (other than the child) to whom the parenting order applies.": 

-> EFFECT, see notes to repealed s 70NAC: "Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order."

-> see also, Parry & Sadler [2024] FedCFamC2F 603.

-> note s 64D(2) and orders: "14. Subject to Order 13 above and pursuant to s 64D(2) of the Family Law Act 1975 (Cth) the Order requiring supervision of the child when spending time with the mother may only be varied by a subsequent Order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth). ... [554] Given those events , particularly in 2017 through to the hearing, I am satisfied that the mother may use coercion or duress to gain agreement of the maternal grandparents to put in place unsupervised care by way of formal or informal parenting plan. These are exceptional circumstances, such as, in my view, would warrant the making of an order pursuant to s 64D(2) of the Act unless the unsupervised time was agreed to by the father.": Lucas & Wragge [2019] FamCA 72. 

-> *** see also, orders in: "28. That pursuant to s 64D(2) of the Family Law Act 1975 (Cth) neither the requirements for supervised time and no overnight time can be varied or discharged by way of a parenting plan. ... [372] Counsel for the mother submitted that there ought to be an order under s 64D(2) making it a requirement on the father and mother to come back to a court exercising jurisdiction under the Act in the event that the time is to go from supervised time to unsupervised time or to move to overnight time. ... [376] I am satisfied that such an order should be made in exceptional circumstances of this case, including the circumstances that give rise to a need to protect these children from physical and psychological harm and from being subjected to, or exposed to, abuse and family violence.  Further, there is substantial evidence that the father is likely to seek to use coercion or duress to gain the agreement of the mother to a parenting plan.": Jolly & Minton [2017] FamCA 837.

> "[58]  Significant changes relating to grandparents and parenting orders were introduced into the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). As seen, s 65C(ba) provides that a grandparent of a child may apply for a parenting order in relation to a child. There is then specific reference to "grandparents" in ss 60B, 60CC(3)(b)(ii), 60CC(3)(d)(ii) and 60CC(3)(f)(ii) of the Act. Also according to s 63C(2A) a parenting plan can refer to a grandparent however, a parenting plan requires the involvement and signature of the parents according to s 63C(1)(b)(ba). This means that a grandparent requires the cooperation of the parent to make a parenting plan.": Ni & Zang [2008] FamCA 1100. 

> "[29]  Significant changes relating to grandparents and parenting orders were introduced into the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). As seen, s 65C(ba) provides that a grandparent of a child may apply for a parenting order in relation to a child. There is then specific reference to "grandparents" in ss 60B, 60CC(3)(b)(ii), 60CC(3)(d)(ii) and 60CC(3)(f)(ii) of the Act. Also according to s 63C(2A) a parenting plan can refer to a grandparent however, a parenting plan requires the involvement and signature of the parents according to s 63C(1)(b)(ba). This means that a grandparent requires the cooperation of the parent to make a parenting plan.": Samson & Jacks [2008] FamCA 176. 

> "[23]  The document which the maternal grandfather prepared was signed by both parties and dated 2 September 2008. It provided for [X] to live with the mother in Darwin until he completed Grade 7. It provided that the mother was then to return to Queensland with [X] and that [X] was thereafter to live in a week about arrangement with the parents. It provided that if the mother chose not to return to Brisbane, [X] would live with the father in Queensland while he completed his secondary education. [24]  The document was on its face a parenting plan as defined in s 63C (1) of the Family Law Act.": Dewey and Metcalf [2009] FMCAFam 670. 

> "[30]  Division 4 of Part VII deals with parenting plans. This statutory scheme is again focussed on parents and children. For example, parents are encouraged to reach agreement (s 63B) and only parents can enter into a parenting plan (s 63C(ii)), though the plan may deal with the child’s interaction with other persons including grandparents. Thus, for example, the parents may enter into a parenting plan that deals with a child living with another person (s 63C(2)(a)), spending time with another person (s 63C(2)(b)), allocating parental responsibility to another person (s 63C(2)(c)), and communicating with another person (s 63C(2)(e)). Indeed s 63C(2A) expressly contemplates that the other person is a grandparent. [31]  Division 4 of Part VII therefore contemplates that parents may confer on grandparents by way of a parenting plan rights and responsibilities in relation to a child, but a grandparent cannot be a party to a parenting plan. Again Division 4 sends out mixed signals about the role of grandparents under Part VII of the Act. They clearly can be the beneficiaries of rights and responsibilities relating to children, but those rights and responsibilities are conferred on them by parents who enter into parenting plans.": Connor and Bourke and Anor [2008] FMCAFam 69. 

> "[80]  That then raises the question of whether the parties should be precluded from being able to vary these orders by parenting plan. Of course a parenting plan need be nothing more than a signed agreement (s 63C of the Act)": Cornwall & Cornwall [2022] FedCFamC1F 389. 

> If not signed by both parties, then not a PP: "[37] The parties attended a Family Dispute Resolution mediation on 8 November 2017 at the S Family Relationship Centre. A document was prepared as a result of that mediation and entitled “Parenting Agreement”, a copy of which is annexure ‘A’ to the father’s affidavit. However, the document never became a parenting agreement within the meaning of that term in the Act as it was not signed by either party.[2] As the document is not a parenting agreement and is patently the product of Family Dispute Resolution between the parties, having been conducted by persons described on the document as “family dispute resolution practitioners”, I cannot take notice of anything in that document past the title page as they are not admissible in evidence.": Langer and Franke [2020] FCCA 1852.  

-> NOTE: draft parenting plan circulated between the parties are not admissible as evidence in Family Court Proceedings: "[27]  The consequence of taking those provisions as a whole is that a document that is only a concluded agreement reached during or at the end of family dispute resolution process, where there is an inescapable inference that the document repeats the substance of what was said, or part of the substance of what was said is not admissible in Family Court proceedings. [28]  Where such a document has the additional steps such as being in writing, being signed by the parties and being dated and so complying with s 63C, that document would be admissible. The Father’s submissions were very much concerned with what was seen to be the unfairness or inconsistency between the parties being encouraged by provisions in the Act to reach agreement and then being restricted about evidence as to that agreement. I acknowledge the point and substance of those submissions. My conclusion is that the very different schemes of s 10J of the Act with s 131 the Evidence Act means that on occasions, not necessarily every occasion but certainly on occasions such as this one, the parties could, hypothetically, reach agreement during or at the end of this section of the dispute resolution process and then one or both parties, at different times, both rely upon and recant that agreement and that would not make the contents of the document admissible, unless s 63C was complied with and hence it was parenting plan. [29]  The circumstance that not being able to refer to the document may mean that the Court may be misled does not assist getting over or around the clear provisions of s 10J of the Act. If there was only without prejudice negotiations. [29]  The circumstance that not being able to refer to the document may mean that the Court may be misled does not assist getting over or around the clear provisions of s 10J of the Act. If there was only without prejudice negotiations or mediation privilege to be taken into account then in that circumstance s 131(2)(g) of the Evidence Act would apply.": Solomon & Todoro [2021] FedCFamC2F 694. 

> **** a document (though not expressed so) can constitute PP: "[30]  It is plain that the parents can agree on such arrangements as they consider appropriate in respect of the children. As Mr Grant points out, correctly, in my view, because the document is in writing, is signed and dated by the parties, and deals with the matters referred to in s 63C(2) of the Act, the document signed by the parties can constitute a parenting plan. [31]  Accordingly, it can govern the rights as between the parties for so long as they continue to agree to implement the parenting plan.": Fitzroy & Fitzroy (No 3) [2010] FamCA 867. 

> ?Proposed Orders (presumbaly signed by both parties) itself constitute a Parenting Plan: see argument advanced: "[30]  The appellant submitted in relation to the first ground of appeal in summary, as follows: ... A consent order which allowed for the payment of child care fees in a particular way did not oust either parent from making an application for child support. Additionally, it was not open to either parent to make an application for child support seeking an assessment that specifically required the child care fees to be paid. •In short, the provision for the payment of child care fees in the 12 July 2016 FCC Orders and Proposed Orders did not equate to the costs of the child under the CS Act and did not preclude an application for child support being made under the CS Act, thus s 66E of the Family Law Act 1975 (Cth) (Family Law Act) does not apply. •The reasoning in Selwood v Selwood [2014] FamCA 531 , which ruled that orders of the court requiring the husband to pay for half of the medical, travel and accommodation costs of the child were notultra vires,was directly applicable to the case before the Court. •Even if the Court were to find that the 12 July 2016 FCC Orders and Prospective Orders wereultra vires, they would have contractual force. •Although proceedings in the Family Court relating to a child’s welfare are “not strictly proceedings inter partes”, this is a reflection of the paramountcy of the child’s best interests and does not preclude consent orders from being enforceable as a contract. •The Proposed Orders constituted a parenting plan as they fulfilled the requirements of a parenting plan under s 63C(1) of the Family Law Act. The appellant submitted that on this basis the Proposed Orders, even if they were considered to be invalid as Orders of the Court, were still valid and enforceable as a parenting plan and binding contract. ... [33]  In relation to the first ground of appeal, the respondent submitted, in summary: ... •The proposed consent orders of 21 October 2016 were not made by the Federal Circuit Court. •A “parenting plan” could not operate as an enforceable contract between the parties to the extent that it dealt with child maintenance orders.": He v Secretary, Department of Education, Skills and Employment [2024] FCA 819. 

> ** Mutual undertakings as Parenting Plan - affirmed: "[15]  The parties did not convert their Mutual Undertakings into family court orders whether by 30 April 2019 or at all. The father deposed that the arrangements embodied in the Mutual Undertakings constituted a parenting plan; however, no further submissions were made on this issue or their legal effect. [16]  The father contested the mother’s evidence that the child had spent time in accordance with the Mutual Undertakings and asserted that there had been no substantial departures from the arrangements embodied in that signed agreement. In particular, the father complained: (1) the child had not been dropped off on no less than nine occasions in the period February — December 2020; (2) the child had repeatedly been denied access to his father by way of mobile phone; (3) the mother had returned the child’s mobile phone; (4) the mother restricted the child’s access to the father’s email address so that he could neither send nor receive emails to that address; (5) the mother further restricted the child in taking to his father’s residence anything other than the clothes he was wearing. ... [103]  At present there is no order for equal shared parental responsibility. Given the conflictual nature of the matter, it is inappropriate for this issue to be determined at this juncture. In making those observations, I do not overlook the parties Mutual Undertakings. While no submissions were made as to the particular status of that document, I accept that it is in writing, made between, and signed by, the parents of the child and is dated: Act, s 63C.": Belfort & Sedita [2021] FCCA 558. 


[K] Independent Children's Lawyer

Re K (1994)

> *** "In relation to appointments of separate representatives we consider that the broad general rule is that the court will make such appointments when it considers that the child's interests require independent representation. Subject to that broad general rule we suggest the following guidelines. Appointments should normally be made where:

(i) Cases involve allegations of child abuse, whether physical, sexual or psychological   In such cases we consider that the separate representative has an independent investigative role and that the child in any event should have an independent person looking after his or her interests. The separate representative can in such cases also fulfil the function of arranging for the collation of expert evidence and presenting that evidence to the court. (ii) Cases where there is an apparently intractable conflict between the parents   In this regard we lay stress upon the words ``intractable conflict'’. There is a dispute of course in all contested custody cases and there is usually a degree of conflict, but we have in mind that category of cases where there is a high level of long standing conflict between the parents. In such cases the child is very much a pawn in the dispute and is often used as such by either or both parents. In these circumstances we think it important that the child have the support and assistance of an independent person and that the court similarly have the assistance of such a person to present the child's point of view. (iii) Cases where the child is apparently alienated from one or both parents If the child is alienated from both parents, the need for such representation is obvious. Where the child is alienated from one of them, this may or may not be for good cause and may have been largely brought about or contributed to by the conduct of the parent from whom the child is not alienated. In most cases it seems to us to be highly desirable for the child to have access to a person independent of the conflict who will have his or her interests at heart and who will be capable of assisting the child and putting both the child's view and submissions as to the child's best interests to the court: see Law Council of Australia (1989) ``Law Council Submission on Role of Separate Representatives'’ Vol 4 No 4 Australian Family Lawyer, 15. In this regard we also see the separate representative as having an investigative role which may be of great assistance to the court. Further, the separate representative may well, in this and the previous category of cases, perform the role of an ``honest broker'’ as between the child and or the parents. (iv) Where there are real issues of cultural or religious difference affecting the child    Such cases are an increasing feature in our community and the child is often very much torn between the contesting parties. Again we think that the child is likely to benefit from the services of an independent separate representative, as may the court which may well be assisted by the independent investigative role of the separate representative and by evidence from an impartial source as to the nature of the cultural differences involved. (v) Where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child's welfare    Disputes of this kind typically raise claims that a homosexual parent and/or their new partner is unfit by virtue of that factor alone. It is clear, however, following cases such as In the Marriage of N (1977) 2 Fam LN 31 ; [1977] FLC 90-208 ; In the Marriage of Spry (1977) 3 Fam LR 11,330 ; [1977] FLC 90-271 ; In the Marriage of Cartwright (1977) 3 Fam LN 55 ; [1977] FLC 90-302 ; In the Marriage of L and L [1983] FLC 91-353 , and most recently In the Marriage of Doyle (1992) 15 Fam LR 274 ; [1992] FLC 92-286 that the nature of a party's sexual relationships is relevant to the court's proceedings only to the extent that it affects parenting abilities or the welfare of a child in a particular case: see Otlowski, M (1992) ``Doyle and Doyle; Family Court Awards Custody to Homosexual Father'’ Vol 11 No 2 University of Tasmania Law Review, 261. The particular kind of acrimony which arises in such cases, considered together with the court's obligation to make a decision from the viewpoint of a child's best interests, may warrant the appointment of a separate representative. This is so that the impact, if there is any, of a party or partner's sexual preference can be properly and dispassionately assessed for its relevance to the court's inquiry into the best interests of the child. (vi) Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare   Such conduct would include cases where there is a background of serious family violence. In using that term we make it clear that it extends beyond actual physical violence to circumstances where there is a history of serious threats or psychological and emotional abuse of one or other of the parents or some other person having significant contact with the child. It is obvious that if one party is in serious fear of the other the child may need separate representation to protect his or her position where the parent in fear may be overborne by the other. (vii) Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children      (viii) Any case in which, on the material filed by the parents, neither seems a suitable custodian   The need for the appointment of a separate representative in the above two categories of cases is self evident for all or most of the reasons stated in relation to previous categories. (ix) Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent        In these cases, we are particularly mindful of the important ``honest broker role'’ which can be played by a separate representative, especially if she or he is appointed early enough in the proceedings by a registrar during a directions hearing (pursuant to the delegation to order separate representation contained in O 36a r 2(ja)).          (x) Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child         In the case of the permanent removal of the child from the jurisdiction, as in this case, we accept the argument of counsel for the Commonwealth that the step has such drastic implications for the welfare of the child that a separate representative should normally be appointed. The result of an order may well be to permanently deprive the child of the opportunity of living in this country and of the culture in which he or she is being brought up, at least until he or she is adult, and may also create such a gulf between the child and his or her natural parent as to make it unlikely that the parent/child relationship will be resumed. Similar, albeit not as acute, consequences may follow if the removal is to a part of Australia which is physically remote from the child's usual place of residence and the circumstances of the parties make it unlikely that there will be worthwhile access. In either case we think it desirable that the child should have access to independent representation and that the court may well benefit from the independent appraisal which a separate representative can bring to such a case.        (xi) Cases where it is proposed to separate siblings        As the Full Court pointed out in In the Marriage of Bennett, supra, at Fam LR 413 ; FLC 78,266 , such a step is most serious from the point of view of the respective children. That was a case where the trial judge had made an order which had the effect of separating siblings and a separate representative was in fact appointed by the trial judge but only at the conclusion of the hearing for the purpose of explaining the decision to the children. Although the decision on the appeal did not turn on the issue of the appointment of a separate representative, the Full Court was critical of the appointment having been made at that late stage. In our view, in such cases, a separate representative should be appointed at an early stage of the proceedings. (xii) Custody cases where none of the parties are legally represented    This can occur through the choice of the parties, or the non-availability of legal aid. In such circumstances we consider it imperative that the child's interests be protected as soon as is practicable after this situation becomes apparent.  (xiii) Applications in the court's welfare jurisdiction relating in particular to the medical treatment of children where the child's interests are not adequately represented by one of the parties     In Re Jane (1988) 12 Fam LR 662 ; [1989] FLC 92-007 and Re Marion (1990) 14 Fam LR 427 ; [1991] FLC 92-193 [see also Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 ; 15 Fam LR 392 ; [1992] FLC 92-293 ] the Public Advocate of Victoria and the Secretary of the Northern Territory Department of Health and Community Services respectively adopted the dual role of protecting the public interest and the interests of the child. In those cases it was accordingly thought to be unnecessary to appoint a separate representative. In both of these cases the child was unable, due to intellectual disability, to express a point of view, and the child's interests were actively pursued by the public officer concerned. However, in any case where the child is capable of expressing a view, or where there is no party in a position akin to the public officials involved, we think it desirable that a separate representative be appointed. In the recent case of Re Michael (3 December 1993, Family Court at Melbourne, not reported) Treyvaud J took the view, with which we agree, that a separate representative should be appointed despite the involvement of the Public Advocate in circumstances where the child in question was capable of expressing a view and the Public Advocate was the applicant for orders dispensing with the need for parental consent to perform a surgical operation on the child in question and substituting himself as the person who could give a valid consent. The above categories of cases are not intended to be exhaustive and there will be other situations where the appointment of a separate representative is necessary. For example, where one of the parties is not a natural parent such a course may in some cases be considered desirable or necessary. As we have said, these guidelines are not intended to inhibit the discretion of judges, judicial registrars or registrars but to give them some assistance in the exercise of it.": Re K (1994) 17 Fam LR 537, 555-558; (1994) FLC 92-461. 

Specific Factual Issues

> "[58] I am also concerned at the serious allegations of drug use and family violence concerning Mr Oakley. These concerns have been of such moment that they have involved the police in the past, but, as I have already said, these issues have not been teased out in any great detail at this stage. [59] In this context I am concerned at the lack of impartial evidence about the parenting capabilities of both Mr Oakley and Ms Taber.  I am also concerned at the lack of certainty and the high level of ambivalence about what precisely occurred on 8 February 2009.  However, I think it basically unlikely that the mother would have agreed to an open-ended arrangement for [X] to go and live with her paternal grandparents. ... [103] I am going to make an order that the children be independently represented.  I think this case meets a number of the criteria set out by the Full Court in the case of Re K [(1994) FLC 92-461. ... [107] I am also going to adjourn the matter for about six weeks, so that the independent children's lawyer can be engaged at an early stage.  I think that will also be the time when consideration should be given to the engagement of some sort of formal assessment process in respect of these two children, which needs, I think, to be done sooner rather than later.  I also suspect that the independent children's lawyer may wish to subpoena documents, but that of course is a matter for the independent children's lawyer when appointed.": Haight & Taber [2009] FMCAFam 576.

> "[28] In this case, however, there is evidence of the Father’s criminal convictions for offences of violence. There has also been an apprehended violence order issued. [29] Family violence is clearly a relevant issue and has been discussed in a number of judgments, including In the Marriage of Patsalou[4], to which Mr Crawford referred, and In the Marriage of JG and BG[5]. The Court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. [30] Habitual drug use is also a matter of concern. It is the Mother’s view that the Father is “addicted to marijuana” and would smoke marijuana 4 or 5 times a day. The Mother deposes: The effect of use of this drug on [Mr Lamb] is that he was not responsive or would not react to any communication or activities that were occurring around him.[6] ... [31] Whilst it is important that the children have a meaningful relationship with their father, the concern about their safety from harm is such that supervision of the Father’s time with them is still indicated. The evidence is, of course, untested, but the Court needs to adopt a conservative approach until the evidence can be tested. [32] Clearly, this is a case where the Court should consider that the children’s interests should be independently represented by a lawyer under the provisions of s.68L of the Act. The circumstances come within the guidelines set out in Re K[7].": Lamb & Vernon [2010] FMCAFam 1372.

> "[71] The Court must consider the benefit to [X] of having a meaningful relationship with both of his parents. Provided that they abstain from the use of illicit substances, which has on their own evidence been a battle for both of them, there is likely to be a benefit in having a meaningful relationship with each of them. However, that relationship must not be marked by abuse or abrupt changes in the child’s arrangements, which would clearly be destabilising for him. [72] The need to protect the child from physical or psychological harm is clearly related to the parents’ substance abuse issues. Until these matters are under control, the child will be at risk. [73] To my mind, there is merit in the Family Consultant’s recommendation and the father’s application for the interests of this child to be independently represented by a lawyer under the provisions of s.68L of the Act. There is a high level of longstanding conflict between the parents, exacerbated by their history of illicit drug use. The mother makes claims of family violence, which the father denies. There is no issue that the mother has been diagnosed with mental illness, currently described by Dr F as “adjustment disorder with anxious mood”,[16] but it appears that the mother is undergoing appropriate treatment in this regard. ... [74] However, the issues in this case fall clearly within the guidelines for separate representation of the child set out by the Full Court of the Family Court in Re K[17]. An order will be made that the child’s interests will be independently represented, and Legal aid NSW will be asked to assist in providing a suitably qualified Independent Children’s Lawyer for [X].": Mallery & Cavendish [2012] FMCAFam 1434.

> "[44] I am aware of the allegations by the Mother of the Father’s drug use, which, quite clearly from her affidavit, has occurred in the past. There is no up-to-date evidence there, but it would certainly be the Court’s view that it should act with caution. The Court is of the view that use of illicit drugs and time with children do not go well together. I am aware of the fact that there is a considerable conflict between the parties. It would not be to the benefit of this child for that conflict to be in evidence in her presence or hearing. Indeed, it would be harmful and unsettling to her, and I propose to make injunctive orders in that respect.": Garra-Marsh & Garra-Marsh [2012] FMCAFam 277.

No ICL appointed - where drug issues are no longer live - no live issues of FV

Procedural

Concession - Error of Law

ICL Appointment - Challenge Parties' Evidence

   

[K.A] Legal Aid - ICL's Costs 

> 'What is an Independent Childen's Lawyer' (Michael Lynch, 7 February 2022) <https://www.michaellynchfamilylawyers.com.au/independent-childrens-lawyer-defined/>. 

> "Parties are entitled to seek a reconsideration of the contribution amount by completing and returning a financial statement to VLA to assess whether the contribution should remain, be reduced, or be waived. The assessment is based on VLA’s means test. If parties neglect or fail to meet the ICL’s costs, ICLs are required to consider making a cost application against parties if they think it is appropriate in the circumstances. Such circumstances include where a party’s assets and income are so significant that it would be an inappropriate burden on the public purse to fund an ICL, or where a party’s conduct has resulted in significant additional funding being expended on the ICL file. ICLs must also consider what impact a cost order might have on the children.": Monica Blizzard, 'The role of an Independent Children’s Lawyer' (KHQ, 25 November 2019) <https://khq.com.au/blog/independent-childrens-lawyer/>. 

> LAQ Grants Policy Manual: <https://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Grants-Policy-Manual>. 

> Weekly Income, see 'The Means Test' (Legal Aid Queensland, Webpage) <https://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Grants-Policy-Manual/The-Means-Test>; *** See also, 'Table 1' (LAQ, Webpage) <https://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Grants-Policy-Manual/Table-1-initial-contributions-table>, archived at <https://archive.is/J6cVX> -- contribution free threshold and maximum threshold (deferred contribution). 

> Assets Test. 

> s 114UC, Family Law Act 1975 (Cth). 

>  Rule 3.11, Federal Circuit and Family Court (Family Law) Rules 2021 (Cth). 

> NSW: $3,630 per party up to but not including defended hearing: 'Independent Children's Lawyer resources and tools' (Legal Aid NSW, Webpage) <https://www.legalaid.nsw.gov.au/for-lawyers/resources-and-tools/family-law-resources-and-tools/family-law-resources-independent-childrens-lawyer>, archived at <https://archive.md/4VFGJ>. 

> QLD: 

-> 'Family Law Fees - ICL Files' (LAQ, 1 August 2024) <https://www.legalaid.qld.gov.au/files/assets/public/v/3/work-instructions/grants/family-law-fee-overview-icl.pdf>, archived at <https://web.archive.org/web/20250724105033/https://www.legalaid.qld.gov.au/files/assets/public/v/3/work-instructions/grants/family-law-fee-overview-icl.pdf>. 

-> 'Scale of fees – family law: Independent Children’s Lawyer matters' (LAQ, June 2025) pp 5-7 <https://www.legalaid.qld.gov.au/files/assets/public/v/9/about-us/scale-of-fees/scale-of-fees-family-law.pdf>, archived at <https://web.archive.org/web/20250724105216/https://www.legalaid.qld.gov.au/files/assets/public/v/9/about-us/scale-of-fees/scale-of-fees-family-law.pdf>.  


[K.B] Resources for Parents - ICL's Role and Kids


[L] Family Report Interview - Court Children's Service

What is

Scope, Interviews, etc

> ** Sean Moriarty, 'The Family Report Process (including Obligations and Responsibilities)' (Paper) <https://seanmoriarty.com.au/wp-content/uploads/2021/07/FamilyRepExplanatoryInformation.pdf>, archived at <https://web.archive.org/web/20230327111620/https://seanmoriarty.com.au/wp-content/uploads/2021/07/FamilyRepExplanatoryInformation.pdf>. 

Preparation of Report - Scope

> The matters set out in ss 60CC, 61D(3), 61DAA of the Family Law Act 1975.

> Any views expressed by the child.

> The impact upon the child and upon his relationship with the father if the Court made orders as sought by the mother.

> The impact upon the child and upon his with the mother if the Court made orders as sought by the father.

> Any current mental health conditions of the parties.

> A diagnosis and prognosis to include proposed treatment to address the diagnosis and prospects of recovery or reoccurrence.

> An assessment of parental capacity, including the ability to care for and protect the child.

> The ability of each party to facilitate a relationship with the other parent.

> Any other factors relevant to the best interests of the child.

> What, if any, interventions might assist the parents to achieve a cooperative parenting outcome. 

> What, if any, interventions would assist the parents to resolve potential disputes about the parenting Orders or the changing needs of the children in the future. 

> any issues of risk or safety to the children or either parent and the impact upon the children and their relationship with both parents if the Court made orders as sought by the parent A/B. 

Evidence, Weight to be Drawn from Family Report

?Discharge of Orders requiring Family Report Interviews - Not in Best Interest of Child


[M] Misc

Jing Zhi Wong

[N] Court Process

> "[42]  These are parenting proceedings. The court must have regard to the principles in child related proceedings, and the best interests of the children. Section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides: (1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), is to facilitate the just resolution of disputes: (a)according to law; and (b)as quickly, inexpensively and efficiently as possible. [43]   Section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) provides, relevantly: Principles for conducting child-related proceeding Application of the principles (1)The court must give effect to the principles in this section: (a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and (b)in making other decisions about the conduct of child-related proceedings. Failure to do so does not invalidate the proceedings or any order made in them. (2)Regard is to be had to the principles in interpreting this Division. Principle 1 (3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. Principle 2 (4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings. Principle 3 (5)The third principle is that the proceedings are to be conducted in a way that will safeguard: (a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and (b)the parties to the proceedings against family violence. Principle 4 (6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties. Principle 5 (7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible. [44]  In Hearne & Hearne [2015] FamCAFC 178, in considering an application for an adjournment, the Full Court held at [56]: … on an application to adjourn proceedings a court is required to take into account not only the individual circumstances of the parties, but the effect on the court as a publicly funded resource, the effect on other litigants, the court’s case management principles, and “the need to maintain public confidence in the judicial system” (AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, per French CJ, at [5]). [45]  In Mertens & Mertens [2016] FamCAFC 136, Kent J summarised the factors to be taken into account in an application for an adjournment. These include the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by an order for costs, and the impact upon other litigants before the court were an adjournment granted. [46]  The application is be considered in the context of the orders sought by the father. Those orders are that the children spend time with and communicate with the father in accordance with their wishes, that he be entitled to send letters, gifts and cards, that he be entitled to attend school events, that there be an order for equal shared parental responsibility and decision-making, and that the mother keep the father informed about medical issues. There is no order sought for specific time or communication between the father and children. [47]  It is common ground that the earliest release date of the father is late 2028, and an ADVO prohibits the father from approaching the mother or children until 2034. [48]  The issues before the court for determination are narrow. The proposed witnesses last had an opportunity to make observations of the children and father more than four years ago. The children were at that time aged six and four; they are now ten and eight years. The father’s orders are for time in accordance with the children’s current views of their father, and any desire they have now to see him or communicate with him. There is a report available where the children have been able to express a view, and the Single Expert has been able to consider the broader context of the views expressed by the children, and their maturity in expressing those views. An ICL has been appointed, who is required as part of their role to ensure any views expressed by the children are fully put before the court. [49]  The matter has been before the court for more than four years. An adjournment would result in an undue delay to the proceedings. The mother and the children are entitled to finality. The father did not comply with the orders of Justice Brasch made on 7 December 2023. He did not file a Minute of Orders, nor did he advise on the outcome of his appeal by 28 March 2024, as directed. He was legally represented at the time of the orders and the filing date. There was no explanation proffered of why that did not occur. [50]  There is no proof of evidence of any of the proposed witnesses. No submissions were made as to how their evidence may be relevant to a determination of the issues currently before the court. [51]  The solicitors for the father took steps promptly after the s 102NA order was made. I accept that the father being in custody hampers the ability of those appearing for him to prepare the matter. I stood the matter down in excess of two hours to allow counsel for the father to confer with his client and take instructions. The father filed his affidavit on 5 November 2024, outside the directions for filing. No objection was taken to that affidavit. [52]  The father will not be released from custody until, at best, late 2028. During any adjourned period, the father will remain in custody with the attendant difficulties of obtaining instructions. I am not confident the situation would be different at an adjourned date. [53]  An adjournment needs to be considered against the ability of the court as a publicly funded resource to provide timely resolution to other litigants awaiting trial dates, where time has been allocated to the hearing of this matter. This matter has already taken up considerable court resources. Allocated hearing dates are a resource that are squandered if the matter is adjourned on the first day of the hearing. The hearing would be delayed by months if not heard within the days already allocated, given matters otherwise listed for hearing. [54]  Taking all those matters into account, the application for an adjournment was refused.": McKowan & McKowan [2025] FedCFamC1F 105. 


[O] Subpoenas

> Treating doctors, hospital service, clinics. 

> Services Australia, Medicare information, prescriptions and medications: Medicare Benefits Scheme (MBS) summaries; Pharmaceutical Benefits Scheme (PBS) summaries; medical service provider reports, employment records for current or former employees; Notices of Past Benefits (NoPB): 'Request information using subpoenas and other court orders' (Services Australia) <https://www.servicesaustralia.gov.au/request-information-using-subpoenas-and-other-court-orders?context=22>. 

-> Darley & Darley (No 2) [2020] FamCAFC 193. 

-> "It is well settled by the authority that a subpoena must be issued for a genuine forensic purpose and must identify what appear to be relevant documents. In Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 Wigney J observed the following at [22] ...": Darley & Darley [2020] FamCAFC 4. 

-> "[44]  Documents produced under subpoena by the Pharmaceutical Benefits Scheme set out the dates on which the mother was prescribed medication and the dates on which she filled the prescriptions. Since February 2020 she has been prescribed a wide range of medication including Gabapentin and desvenlafaxine from a number of prescribing practitioners.": Rivers & Rivers [2020] FCCA 2052. 

-> "[76]  The case was then adjourned for an interim hearing scheduled for 19 November 2019. Subpoena were issued to Mr M and to the Department for Human Services, which is the Commonwealth instrumentality administering the pharmaceutical benefits scheme. Ms Yeatman sought the production of all prescriptions issued and filled on behalf of Mr Parfrey.": Parfrey & Yeatman [2019] FCCA 3713.

> 'Subpoena for the production of documents to the Queensland Police Service' (DA Family Lawyers, Webpage) <https://dafamilylawyers.com.au/subpoena-production-documents-police/>: "If you are considering issuing a subpoena for the production of documents directed to the Queensland Police Service, you may find the following information helpful to include in the schedule to the subpoena: 1.     Any audio tapes and/or videotapes; 2.    Police referrals to any hospitals (including suspected child abuse or neglect teams – SCAN), specialists including but not limited to social workers, psychologists, psychiatrists, therapists, counsellors, educational specialists and the reports, records and assessments obtained and/or provided; 3.    Criminal histories, CRISP System crime reports, QP9 court briefs; 4.    Diary notes, police notes and signed copies of official police notebooks; 5.     All statements and documents including but not limited to signed statements by the accused, the complainant, the informant, professional or other witnesses, police witnesses; 6.    Drawings; 7.    Photographs; 8.    Bench charge sheets, running sheets, activity logs, current sheets; 9.    Domestic Violence Applications, Protection Orders; 10.   Any information management systems, IMS sheets; and 11.   All traffic history including but not limited to all driving under the influence and traffic charges."

Note


[P] Parent's New Partners - Re-partnered - Effect on Proceedings


[Q] Affidavits


[Q.A] Parenting Applications - Co-Parenting Applications - AppClose - OurFamilyWizard

> Eg, see especially: "[206] The Mother sought that the parties continue to communicate using AppClose or a similar parenting app. This proposal enjoyed the support of the ICL. The Father opposed this. Although he acknowledged having found AppClose useful, he expressed concern about the app not being based in Australia, with the consequence that the parties’ personal information was sent overseas. He sought that the parties communicate with each other via text message with respect to matters regarding X’s care, health and welfare. [207] As submitted by the ICL, Appclose is an appropriate means of communication between separated parents because it maintains a record of the conversations between the parties and is designed to ensure that they remain measured. This is particularly important in this case because the Father has demonstrated an inability at times to control the tone and content of his communications such that he is at times rude and disrespectful in his communications with the Mother notwithstanding the protective factor of the purpose-designed parenting app. In light of this fact and the significant levels of conflict between the parties, I am not satisfied that it is in X’s best interests for communication between the parties to take place outside a parenting app and in the absence of those protections.": Luga & Hayes [2025] FedCFamC2F 6.

> "[260] I am going to order that, except in an emergency, the parties communicate by a parenting app as agreed and, failing agreement, through the app called AppClose, and communicate by text in the case of emergency. I want the parents to communicate by an app because apps like this are designed to help these parents. They are going to need some help, and the apps do not permit messages to be deleted or removed. They keep them as a record, and they also warn parents and prompt them if they are sending something inappropriate. These parents need this help. Text messages only in emergency.": Jinks & Gamba [2023] FedCFamC2F 959.

> "[218] I acknowledge the mother will find it difficult to communicate with the father given her past experience of family violence perpetrated by the father and her fixed attitude towards him. However, she did not adduce evidence of any attempt she has made to communicate with the father and to consult with him in respect of major long-term decisions about the children since separation, from which I can assess it is not practicable or in the children’s best interests for that to occur. Aside from her past experience of family violence, she has not raised any recent or current safety concerns that cause me to be concerned for her safety, including her psychological or emotional safety by being required to communicate and consult with the father. She did not for example adduce evidence from a treating or other expert to support that communicating with the father would be detrimental to her psychological or emotional health rather than uncomfortable or difficult for her. She is adamant she does not have anxiety although I find she likely is anxious about the children spending time with the father. The parties have previously reached an agreement to use a parenting communication app, AppClose, to communicate in relation to the children as recommended by Dr W in the first family report. This has been provided for in the April 2023 and August 2023 orders. Dr W suggested this form of communication may make the parents more accountable for how they communicate with each other. The mother does not allege the father has communicated with her using that tool or otherwise in an inappropriate manner since those interim orders were made. The parties have agreed to a like order being made on a final basis.": Murati & Roca [2024] FedCFamC2F 1672.

> "... [138] ... 138.         If the Court determines to grant [Mr Sipos] spend time arrangements with his children at his parent’s home, it will be important that changeover occurs at a Police station. It is important that [Ms Hidalgo] feels safe and is protected from any prospect of harm. Any contact regarding arrangements for the children should be through a parenting app such as AppClose.": Sipos & Hidalgo [2024] FedCFamC2F 1814.

> "[143] The father’s evidence is suggestive of difficulties in the previous use of My Family Wizard in communications between the parties. The father proposes the use of a free app known as “APPCLOSE”. I will order that the parties utilise APPCLOSE for normal communications between them in respect of X.": Harvie & Beale (No 4) [2025] FedCFamC1F 14.

> "[56] The father described his current communication with the mother as “not great” and that any conversations between he and the mother “flared up pretty quick.” He has been assisted by Ms H in this regard and with the parties recently commencing use of the ‘AppClose’ application.": Roche & Donato (No 2) [2023] FedCFamC2F 1225.

> "[354] The mother initially sought orders to facilitate the parties communicating via AppClose, in like terms to the February 2024 orders made by consent. The father continues to seek an order to that effect. The updated minute of orders sought by the mother and the independent children’s lawyer does not include any provision to govern the parties’ communication. [355] Given the parties’ acknowledged communication difficulties and having regard to the recommendation of the single expert psychologist and the family report writer that the parties communicate via a parenting application, I will make orders providing for the parties to use AppClose to communicate in relation to the children to the extent required by the orders I make, unless otherwise agreed in writing. [356] I will also make provision for phone calls where urgency is required but only if a message is first sent by AppClose explaining the urgency and the other parent does not promptly respond. I do so recognising there might be a need to communicate with urgency, for example, if there is a late change to supervised time arrangements or an emergency relating to the children. [357] I make this order to safeguard the mother from unwelcome communications from the father, including communications constituting family violence, with the aim of supporting her parenting capacity and reducing the risk of the children being exposed to or impacted by family violence or parental conflict. [358] The father seeks an order that each of the parties ensure they are in possession of a working telephone number and email address for the purposes of communicating about the children. Such an order is unnecessary. The orders I make requiring the parties to use AppClose for their communication or phone for urgent communication will require the parties to maintain the required technology to facilitate compliance with that order.": Britt & Britt (No 3) [2025] FedCFamC2F 113.

> "[8] The father resumed time with the children in late September 2022. Orders were made by consent for the father and mother to attend for a psychological assessment upon Dr H or another suitable psychiatrist or psychologist as nominated by the ICL, for the parties to communicate using AppClose or other suitable application in relation to arrangements for the children and their welfare and that the mother attend the Tuning into Kids Program. Both parties were restrained from physically disciplining the children and from allowing the children to watch age-inappropriate content and movies. The ICL was at liberty to apply to the Court on short notice for appropriate Interim Orders including consideration of whether the mother’s time should be suspended.": Tamela & Hester [2023] FedCFamC1F 969.

> "[203] The father and the Independent Children’s Lawyer promoted orders to the effect that the parties utilise the “AppClose” parenting application to communicate or otherwise by SMS text message or telephone in the event of any emergency. I agree that such an order is appropriate. In order to give effect to such an order, I will also make an order that each party keep the other advised of his/her mobile telephone number and advise the other party to any change to these details within seven days of such change occurring.": Kerimowa & Chong [2025] FedCFamC1F 277.

> "[52] The parties are required to keep each other informed of their contact details. The proposed orders are that the parties are to communicate through either the ViTo app or AppClose. It is anticipated the communication will primarily be between Ms D and the mother, but it may be necessary for the father and the mother to communicate, and if they are to do so, they are to use that App. All communication is to be civil, polite, not involve derogatory or offensive language, and shall be solely directed to the issue relating to X and to compliance with these orders.": Charr & Dalton (No 3) [2023] FedCFamC1F 259.

> Eg, orders "17. The parties shall communicate with each other in relation to the care and wellbeing of the children through the AppClose application (“the app”) and all communications shall be conducted in a polite and respectful manner.": Kerger & Kerger [2022] FedCFamC1F 859. 

> EG, orders "11. That the parties communicate by Appclose or in cases of emergency by text or phone and all communications must be cordial and child focussed.": Borrell & Lamont (No 2) [2025] FedCFamC2F 635.

> Eg, orders "16. That except in the case of an emergency, the Father and the Mother utilise the AppClose parenting application, (or any other agreed parenting application should AppClose become unavailable) to communicate in relation to matters pertaining to such communication to remain civil and child focussed noting that AppClose includes functionality for voice calls.": Belloumi & Belloumi [2023] FedCFamC2F 1144.

> Eg, orders: 11. ... All communications between the parents shall be facilitated using the AppClose application and forthwith the parents shall do all acts and things reasonably necessary to register with that application and shall forthwith notify each other that they have done so. ... Injuctions 12. Save for notifying each other of their registration with AppClose, the parents are restrained, and an injunction shall issue prohibiting them from communicating with each other than via AppClose and the only purpose of such communication is to facilitate the time the children shall spend with each of them.": Carlevaro & Carlevaro [2024] FedCFamC2F 1736.

> order "9. The parties shall communicate via AppClose only.": Merritt & Bruckner (No 7) [2024] FedCFamC1F 877.

> Bradley & Holder [2024] FedCFamC2F 1436.

> change of app to be consistent with State DVO: "[155] Exhibit 6, being the consolidated version of the parties’ competing proposal and apparent agreements was not a straightforward document. It contained orders in six different colours to denote who proposed what, and who agreed with what, and was, at times, internally inconsistent. For example, agreed Order 3 in Exhibit 6 required the parties to use the “Talking Parents” App for parental communications. However, agreed Orders 49-51 referred to using something called “AppClose”. In that instance, I will make the orders but use Talking Parents as that is what the parties are using now and is required by the domestic violence order. Further, Exhibit 6 has four weeks notice for overseas travel in one order and eight weeks in another. I have made the orders consistent at eight weeks because that is enough time to seek relief through the Court if there is a problem.": Malo & Annick [2024] FedCFamC1F 194.

> "[106] Both parties exhibit evidence of WhatsApp or AppClose communications between them, which make clear that their relationship is full of tension. The mother gives evidence of feeling controlled and the father’s tendency to be critical and intimidating.": Baumann & Tanev (No 2) [2023] FedCFamC1F 81.

> "[49] Both parties annexed to their trial affidavits their messages on the AppClose app used by them to communicate in relation to X. ... [97] The Mother agrees with the Father that the parties’ communication is exceptionally poor and that they struggle to co-parent. As previously noted in this judgment, she also annexed to her trial affidavit copies of the communications between her and the Father via AppClose. As noted, those documents evidence very poor communication, the parties’ inability to compromise or listen to each other in relation to their views about X’s care and shows the Father using demeaning and aggressive language when the Mother does not agree to his request for extra or make-up time.": Whiteoaks & Marton [2021] FedCFamC2F 471.

> Eg, "[26] Mr Yadav submits that Ms Jangra’s oral evidence that her “AppClose messages are full of his blames and shames and threats” is unsupported by the tendered messages. The first difficulty with the submission is that Ms Jangra’s evidence in that respect was not challenged. When Mr Yadav’s counsel was taken to a particular exchange between the parties, he conceded that he had in fact blamed Ms Jangra in AppClose messages. [27] The submission then morphed into an assertion that his Counsel was “not aware of any threats in the AppClose messages”. Contrary to that submission, Ms Jangra gives the following unchallenged evidence: [Mr Yadav] often threatens me with [Ms G] (and the ICL) including for example, in about [late] 2022 and [early] 2023 telling me that if I did not agree with his demands (for example about [sports] and his relative's wedding) he will tell [Ms G] and the ICL and that I am breaching the orders and will be punished including for example messaging through AppClose, "By not letting the children attend the wedding events, you'll be directly defying the Court and all of its judicial officers and the officially appointed Family Expert. I and any person would recommend you NOT to do so if you really care about the children yourself" and "Please note that the ICL and [Ms G] the Court appointed Family Therapist are the extended arms of the Judiciary and their recommendations are serious and decisive ...".[9]": Yadav & Jangra [2024] FedCFamC2F 1480.

> "[9] ... Exhibit V: AppClose record of text messages (pages 317 to 331 mother’s tender bundle);": Bennett & Harper [2024] FedCFamC2F 1479.

> eg, potential for misuse - evidence that it is to be used to micromanage: "[58] The parents are, by this point in the litigation, clearly at odds about what they believe to be best for X. They also still struggle to communicate with one another — the Father continues to have misgivings about the Mother’s psychological state and methods of communication, and the Mother lacks trust in the Father after he thrice breached the injunction against consuming alcohol and, further, failed to raise these breaches with Mr F. The Father says that the Mother bullies, harasses, and micromanages him over AppClose, although he did not press for an order that the Mother undergo a psychological assessment. This is despite his evidence that the Mother would have ‘episodes’ in which she would ‘blow up’ in stressful situations, become verbally and physically aggressive, only calming down and returning to ‘normal’ if he would apologise. He also expressed concerns that the Mother overinflates his statements into ‘lies’. For example, the Father told X he might ‘one day’ get a rabbit, which the Mother says was a lie to gain X’s favour. Further the Mother has, on occasion, allegedly told the Father that he has no right to have anything to do with X. Some extracts from the AppClose communications and emails between the parents reflect these concerns to an extent, noting that these extracts date from the immediate aftermath of final separation: ... [184] As outlined at the end of the chronology, and notwithstanding the parties’ consent as to equal shared parental responsibility, there lingers some apprehension about the parents’ capacity to meaningfully and respectfully communicate with each other. The Mother initially sought an order for sole parental responsibility obliging her to provide the Father with information particularly about X’s education and health. The parties have since agreed on an order for equal shared parental responsibility and, while their communication has improved significantly, it remains a little shaky in the face of big and perhaps difficult decisions. The parents struggled to communicate immediately following separation in 2018. Indeed, they did not verbally communicate at all for some months leading up to the final hearing, with their communications taking place purely through AppClose. Communication difficulties are predictable in the aftermath of relationship breakdown but, moving forward, and in light of the order for equal shared parental responsibility being agreed, I must satisfy myself that such arrangements will be functional. I have already concluded that, given their improvements (together with the proposed therapy, loose supervision, and injunction against alcohol consumption), it is likely that the parents will not return to the Court to re-ignite litigation about X. I must still assess whether, in the context of equal shared parental responsibility and s 65DAC, they are capable of fulfilling those obligations. [185] Both the Mother and the ICL support an order for equal shared parental responsibility, and do not specifically raise issues as to the parents’ capacity to reach joint decisions. The Father’s evidence raises some issues, including allegations that the Mother ‘parents’ him and micromanages his time with X through AppClose. The Father says that, at the moment, he would not be confident that he and the Mother could work out between them whether X could attend family weddings or other family or friends’ functions or events. He said that maybe one day they could, but not at the moment. The fact that the Father expressed hesitation at the possibility of negotiating one-off instances of whether X would attend certain events perhaps indicates that they cannot yet communicate effectively enough to jointly exercise parental responsibility. This is particularly concerning since the Mother said that, if her proposal is adopted by the Court, she recognises the possibility of more time beyond that proposed, to be arranged by negotiation between herself and the Father. This is her position despite her evidence that they have not again communicated at the impressive standard shown when her father passed away in early to mid-2022. She hopes, however, that continued therapy can improve their relationship as co-parents and their communication to this end. In particular, in light of the remaining restrictions upon X’s time with the Father, X will benefit if the Mother can develop more benevolent and positive approach towards the Father.": Briggs & Briggs [2022] FedCFamC2F 1356.


[R] Recovery of Children - International Abductions

Enforcement of Orders - Recovery

> Art 23, 26(2).


[R.A] Recovery of Children - Within Australia

> directed to Centrelink, for example with s 67P leave to disclose.


[S] Information Sharing Material


[T] Practice and Procedure, where Parenting Orders sought would be inconsistent with a State or Territory family violence order

> "[22]  As has been seen, the MRO of 19 February 2001 expressly excepted from the scope of its prohibition any communication or conduct authorised or required by a court exercising Family Law jurisdiction. In addition, s 68S(1) of the Family Law Act provides, among other things, that: If a section 68R contact order is inconsistent with a family violence order, the section 68R contact order prevails and the family violence order is invalid to the extent of the inconsistency. ... [68]  Section 68R deals with the situation where a court is making a contact order that is inconsistent with what is obviously an existing family violence order. The conflict was the reverse in the present case but, in the present circumstances, the provision imposes an obligation on the court to explain the extent to which the inconsistency arises and to deal with the issues in a way that should make it clear to the parties what their obligations are. Section 68S(1) provides that: If a section 68R contact order is inconsistent with a family violence order, the section 68R contact order prevails and the family violence order is invalid to the extent of the inconsistency. [69]  It was submitted that the effect is a marking out of the field covered by Commonwealth law to the exclusion of state law, or the extent to which contact orders give an authority to act despite state law, confining it by reference to the Restraining Orders Act in Western Australia. It may well have been that the Commonwealth order could not have prescribed those parts of the Bail Act that deal with protective bail conditions. The legislation does not purport to do so. The court was asked to take this into account in the context of the question of inconsistency as between the Family Law Act and the Bail Act. Section 68T of the Family Law Act deals with the situation where a court has before it an application for a family violence order. In such a case, it has jurisdiction under the Family Law Act and may vary the contact order, so long as it also makes a restraining order or a family violence order under the Family Law Act. ... [96]  In my opinion, there is nothing in Pt VII of the Family Law Act to indicate that the powers conferred by s 64B(2)(b) (in respect of contact between a child and another person or persons) s 64B(4), (namely, a “contact order”), and s 65D(1), (namely a “parenting order”) are to be exercised other than in conformity with the general law of the state, including the Bail Act. [97]  Section 68S, when read with ss 60D(1) and 68P of the Family Law Act makes specific provision for the circumstances in which, the jurisdiction of the Family Court to make contact orders in relation to a child of a marriage may be exercised, notwithstanding the provisions of state legislation relating to a “family violence order”. [98]  In my view, s 68S was not applicable in this case because the Bail Act is not a prescribed law of the state for the purposes of the definition of “family violence order” in s 60D of the Family Law Act: see reg 12BB and Sch 8 to the Family Law Regulations 1984 (Cth). [99]  Section 68S provides for the specific circumstances in which an order can be made under the Family Law Act, notwithstanding a prohibition contained in a specific state law. Section 68S provides that: (1) If a section 68R contact order is inconsistent with a family violence order, the section 68R contact order prevails and the family violence order is invalid to the extent of the inconsistency. (2) Any of the following persons may apply to a court having jurisdiction under this Part for a declaration of the extent to which a section 68R contact order is inconsistent with a family violence order: (a)the applicant and the respondent in the proceedings for the section 68R contact order; (b)if the person against whom the family violence order is directed is not covered by paragraph (a) — that person; (c)if the person protected by the family violence order is not covered by paragraph (a) — that person. (3) The court to which an application for a declaration is made must hear and determine the application and make such declaration as it considers appropriate. [100]  In my opinion, the specific provision in s 68S is not consistent with the existence of any broader general power to make orders under Pt VII of the Family Law Act that have effect, notwithstanding the prohibitions in the general criminal law of the state. If the orders made under the Family Law Act were to have that effect, Div 11 of Pt VII of the Act would be unnecessary. ... [137]  In the event a contact order made under the Family Law Act is inconsistent with a family violence order, which includes an order under the Restraining Orders Act, the contact order will prevail and the family violence order is invalid to the extent of the inconsistency: s 68S(1) of the Family Law Act. There is no suggestion that the misconduct restraining order is, in terms or effect, inconsistent with the September 2000 order. No issue of inconsistency arose in this case because the misconduct restraining order expressly excluded conduct authorised or required by orders of a court exercising Family Law jurisdiction. The only issue was whether the respondent’s conduct was “authorised or required” by the September 2000 order. ... [152]  Parenting orders (which includes contact orders) are dealt with in Divs 5 and 6 of Pt VII of the Family Law Act. Division 11 of Pt VII deals with the relationship between a contact order and a family violence order. A “family violence order” is defined by s 60D of the Family Law Act to mean an order made under a prescribed law of a state or territory to protect a person from family violence. The Restraining Orders Act is a prescribed law: reg 12BB and Sch 8 to the Family Law Regulations 1984 (Cth). The Bail Act is not. Accordingly, the misconduct restraining order made on 19 February 2001 is a family violence order. If a contact order is inconsistent with a family violence order, the contact order prevails and the family violence order is invalid to the extent of the inconsistency: s 68S(1) of the Family Law Act. [153]  In limited circumstances, a state court that has jurisdiction in relation to matters arising under Pt VII of the Family Law Act, may in the course of proceedings for the making or variation of a family violence order make, revive, vary, discharge or suspend a contact order: s 68T of the Family Law Act. Otherwise, a state court with jurisdiction under s 69J has (limited) power to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order: ss 65D(2) and 69N.": Dunne v P [2004] 212 ALR 413; [2004] WASCA 239. 

> "FAMILY LAW — Jurisdiction — Where this Order is inconsistent with an existing interim Intervention Order — Where this Order is to have priority. ... [64]  I am satisfied that the interim orders set out at the commencement of these reasons are consistent with the best interests of X and Y. On the evidence before me, I am satisfied that this interim order does not expose any person to an unacceptable risk of family violence. [65]  This is a proceeding in which I make orders within the meaning of s 68P(1) of the Act which applies in circumstances where: (a)a court: (i)makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or (ii)makes a recovery order (as defined in section 67Q) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or (iii)grants an injunction under section 68B or 114 that expressly or impliedly requires or authorises a person to spend time with a child; and (b)the order made or injunction granted is inconsistent with an existing family violence order. [66]  If an order is made that is inconsistent with an existing family violence order (as this interim parenting order is) the court is required to identify the inconsistency, give a detailed explanation of how the contact provided for by the order is to take place and explain the order, its purpose and the parties’ obligations under the order to all relevant persons (s 68P(2)). In my view, the inconsistency between the Intervention Order and this interim parenting order are self-evident, appreciated by all parties and were effectively traversed in the submissions made by the parties. No party contended that the father should be prohibited from coming into contact with the boys, as provided in the Intervention Order provides. [67]  The extant Intervention Order is, itself, an interim order. As indicated above, I respectfully suggest that, if any order is made by the Magistrates’ Court in City N on 23 June 2022, that such order be expressed to be subject to any order made under the Family Law Act 1975 in proceedings MLC10303/2018. [68]  This order need not be explained to the children. It is not in their best interests to do so. [69]  To the extent of the inconsistency, which is significant, the Family Court this Order is to take precedence over the Intervention Order. [70]  Lastly, I have made the direction to provide documents to the Department and Magistrates Court in City N, noting the proceedings are next returnable on 23 June 2022.": Silver & Pilot [2022] FedCFamC1F 438.


[T.A] Queensland State Courts - Inconsistencies between its Orders and FCFCOA Parenting Orders


[T.B] Family Violence Orders - Orders on Family Violence - State and Territory cf Commonwealth Orders


[U] Obligations to comply with orders - Contravention - Parenting Order - Statutory Annexure: 

> "[132]  On the plus side of the ledger for the mother, it is true that she has complied with the 2018 orders. On the minus side of the ledger, however, there are some real lingering problems that remain. I begin with something described by the father in his evidence in the following way: Why do you say the mother doesn’t facilitate a relationship with you? — The little things, resistance at handover. The mother says to the child, “It’s not up to me”. [133]  To me, that is not a ‘little thing’ at all. The father may see it that way and in some ways I can see why he does, but that is really more a reflection on his part of perhaps a lack of legal training or knowledge. It is incumbent upon a parent to promote a relationship with the other parent and to actively encourage a child to go with the other parent at handovers. I accept that this can be a difficult thing to do and I make no bones about that. But the orders themselves made by this Court include a specific annexure under the heading ‘Parenting Orders, Obligations, Consequences, Who can help’, and, under the heading or subheading ‘Your Legal Obligations’ it reads: You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example, where the order states your children are to spend time with another party, you must not only ensure that the children are available, but must also positively encourage them to go and do so. [134]  The mother’s statement to the child that, “It’s not up to me”, does not reflect encouragement in the least. It reflects the very passivity warned against in the ‘parenting obligations’ referred to. Moreover, those parenting obligations themselves derive from older Family Court authorities to much the same effect. [135]  I do not regard the mother saying “It’s not up to me” as a little thing; I regard it as a very serious problem. [136]  Moreover, it is also apparent that even though the child has been going with the mother to handovers (since the Family Report) that it has been a constant struggle. The child is reluctant to go, at least that is how she expresses herself when she is with the mother. It should not be this difficult. It would not be this difficult if the mother actively and genuinely encouraged the child to go instead of giving her, at best, mixed signals and, in my view, on balance, negative signals.": Derren & Schuyler [2023] FedCFamC1F 1255. 

> "[16]  Additionally, attached to all parenting orders is the fact sheet entitled “Parenting Orders — obligations, consequences and who can help”. That sets out the legal obligations imposed on parties by orders as follows:— You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. [17]  The case law confirms the requirement of that positive obligation. For instance, in Stevenson & Hughes [1993] FamCA 14 , Nygh J (with whom Fogarty and Gun JJ agreed) said at paragraph 25:— It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. [18]  Cronin J made similar observations in Ackersley & Rialto [2009] FamCA 817 . His Honour said that the Mother had the responsibility of ensuring:— …that if the children claimed that they would not accept the orders, as a responsible parent, she would discipline them in the same way as any other parent would discipline a child by removing privileges if the child was defiant. [19]  In the matter of Stamp & Stamp [2014] FCCA 1269 , Riethmuller J very helpfully sets out observations made in a number of cases with respect to the meaning of ‘reasonable attempt’ which includes:— (a)the live with parent must actively encourage the child’s attendance; (b)the Court needs to consider whether, in reality, the primary carer has taken reasonable steps, rather than just looking at what has occurred ‘on the face of things’; (c)a mere request that a child telephone or come to the telephone is insufficient; (d)it is not sufficient for the primary carer to say it is up to the child, or to imply so; (e)the primary carer ought to make the child understand that they require the child to spend time with the other parent; (f)delivering a child to the changeover location and doing nothing further to encourage or discourage is not sufficient; (g)the primary carer is expected to bring to bear all the authority they have over the child to ensure they attend; (h)the primary carer’s invitation to attend should not suggest that the primary carer does not mind if the child does not wish to attend; and (i)token efforts at compliance by uttering a few phrases is insufficient. [20]  Whether the Court is satisfied reasonable attempts have been made to comply will ultimately depend on the facts and circumstances of each case.": Welsh & Welsh [2021] FCCA 149.

> Delahunty & Delahunty [2019] FamCA 304, [79] et seq.

> Stamp & Stamp [2014] FCCA 1269, [21] et seq.

> Ericsson & Beesley (No.3) [2016] FCCA 2111, [26] et seq.

> Hatch v Vining [2019] FCCA 1705, [80] et seq.

> Shelton & Wakeford [2017] FCCA 2610, [13] et seq.

> McCulloch & Pickett [2017] FCCA 212, [53] et seq.


[V] Judicial Role in 

Encouraging Settlements

Precedent - Guiding

End Litigation - Bring Finality - Parenting - Children are removed from ongoing litigation and can settle into a routine


[W] Delay in Judgment Delivery