Family Court of Australia

  • Bennett & Bennett [2021] FamCA 182 (21 April 2021) – Family Court of Australia
    Abuse of children’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Family violence evidence’ – ‘Kennon principles’ – ‘Parenting proceedings’ – ‘Property proceedings’ – ‘Sexual abuse

    Proceedings: Parenting and property proceedings.

    Facts: The mother and father separated in 2016. The father was found guilty of assault and aggravated indecent assault in relation to their children. He was also found guilty of multiple assault and intimidation charges against the wife and children.


    1. Application to change the children’s surnames, issue of passports and overseas travel, and the father’s access to school information.
    2. Division of net available asset pool.

    Decision and reasoning: Parenting and property orders made.

    Parenting orders: It was in the children’s best interests that they eradicate their father’s name from their names, given the damage and violence he inflicted on them, noting that “[t]he children need to close this chapter in their lives and this is one practical way of assisting them to do so” (at [124]).

    Property orders: The decision of Kennon v Kennon was highly relevant to the facts: “where there is a course of violent conduct during the marriage which is demonstrated to have had a significant impact upon that party’s contribution to the marriage, this is a factor which the trial Judge is entitled to take into account in assessing the parties’ respective contributions under section 79 of the Act.” As per Baker J in Kennon at [84]:

    “The incidence of domestic violence in a marriage would generally be a relevant factor when a court comes to assess contributions…for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.”

    The wife’s entitlement was to 95% of the property comprising of the following:

    • The husband’s violence and conduct towards the children and wife made her role as a parent and homemaker far more arduous than it needed to be. Her entitlement for past contributions was assessed at 70% being direct financial contributions, contributions as parent and homemaker, and solely since separation in the most difficult of circumstances (given the husband’s behaviour and offending).
    • In relation to her future needs, her contribution to the children post-separation would continue to be overwhelming. Moreover, “the husband’s conduct towards the children…made her parenting role more arduous as the children have suffered psychologically from their father’s violence.” She would be solely financially, emotionally and psychologically supporting the children for the next 6 years. An adjustment of 25%.

    The husband was entitled to 20% of the pool, reducing the wife’s entitlement to 80%.

  • Pollard and Nordberg [2019] FamCA 365 (7 June 2019) – Family Court of Australia
    Alleged child victims’ – ‘Appeal against recovery order’ – ‘Best interests of the child’ – ‘History of domestic and family violence’ – ‘Interim parenting orders

    Proceedings: Appeal against grant of recovery order.

    Facts: The father had sought, and been granted, a recovery order for the return of the children following the mother’s unilateral removal of the children from the family home in Victoria. She took the children with her to her mother’s home in New South Wales. The mother alleged that the father has been violent to the children, independently of the allegations of his violent behaviour towards the mother.

    Issue: Whether the recovery order ought to be revoked pending a final order hearing.

    Judgment: Wilson J upheld the mother’s appeal against the father’s recovery order on the basis of family violence allegations against him, despite no expert report being admitted:

    [155]If I dismiss the mother’s appeal, the recovery order will operate in such a way that the children are physically, and if necessary, forcibly, returned by police to the father in Victoria. If the allegations of family violence are proved at trial, that means I will order the children to be returned to a violent environment. It must not be overlooked that the mother has alleged that the father has been violent to the children, independently of the allegations of his violent behaviour towards the mother. I refuse to make an interim order returning the children to the father in circumstances where the father may at trial be found to have engaged in family violence. In my judgment this court must act protectively towards the children and remove them from any risk associated with family violence. To do so is consistent with the imperative recorded in s 60CC(2A).
  • Behn & Ziomek [2019] FamCA 298 (10 May 2019) – Family Court of Australia
    Assault child’ – ‘Best interests of child’ – ‘Coercive control’ – ‘Family law’ – ‘Financial abuse’ – ‘Protection order’ – ‘Relocation’ – ‘Sexual abuse’ – ‘Supervised contact’ – ‘Systems abuse’ – ‘Unacceptable risk

    Matter: Application for children’s orders for relocation, mother to have sole parental responsibility, supervised contact

    Facts: The German national mother wished to return the Germany with the child. The court considered whether the child faced an unacceptable risk in spending time with the father.

    Issue: Application for leave to appeal.

    Decision and reasoning: Relocation allowed; mother to have sole parental responsibility.

    McClelland DCJ accepted that the child faced an unacceptable risk spending time with the father because (1) he had an extensive history of coercive and controlling behaviour towards the mother, and (2) his controlling nature manifest itself in physical violence towards the child.

    [200] His Honour accepted evidence that the father had a history of engaging in controlling and coercive conduct in respect to the mother and that that controlling nature had manifested in physical violence to the child. Matters found to constitute controlling and coercive conduct during the relationship included setting up a camera in their home, telling the mother an investigator was following her while she was overseas, questioning her presence at her brother’s wedding, frequent accusations of infidelity, inspecting her used underwear and telling her it tested positive for sperm; attending her medical appointments and attempting to sexually belittle mother by asking questions of and making comments alleging her infidelity to multiple doctors, sending her a divorce kit in response to an argument about money and financially controlling her by draining her bank account and using her credit card.

    His Honour accepted that the father’s post-separation manner of conduct of the proceedings and behaviour questioning medical treatment of the child amounted to coercive and controlling behaviour, as did calling the police for seven times for unnecessary police welfare checks. His Honour also accepted that the father’s assault of the child was child abuse.

  • Frangoulis and Xennon [2019] FamCA 103 (28 February 2019) – Family Court of Australia
    Anger management’ – ‘Application in a case’ – ‘Disputed compliance with therapy order’ – ‘Family law’ – ‘Family violence’ – ‘Interim parenting orders’ – ‘Substantially supervised contact’ – ‘Therapist's expertise disputed

    Matter: Father’s application in a case for reinstatement of contact with the three children X, Y and Z, additional make up contact and that the child X engage in re-unification therapy with the father with a therapist to be agreed or as nominated by the Independent Children’s Lawyer.

    Facts: The mother alleged serious family violence against the father. A previous interim order required the father to engage with either Mr B or another therapist nominated by the Independent Children’s Lawyer (“ICL”). The parties were in dispute as to whether the father had complied, the mother disputing the professional expertise of the father’s chosen therapist, who was neither Mr B nor nominated by the ICL. The father contended the ICL approved the father’s proposal to undertake the therapy with Mr F.

    Earlier orders provided for the father to have contact with the children supervised by Mr and Ms C in the first week on Saturday from 2:00pm until 5:00pm and in the second week on Sunday from 2:00pm until 5:00pm save and except that the father’s time with X is subject to her wishes. The mother stopped contact pursuant to that order alleging he had spent time with the children without supervision. Berman J had previously held that the father had contravened the supervision order.

    The mother referred to a report of Mr B dated 28 August 2017 which observed:

    “[the father] was not open to consideration of any difficulties with reactivity or emotional regulation. He was not open to consider any role that he might play in the conflict with [the mother] or any contribution to [X]’s difficulties or possible dilemmas that might arise for the other children. I have decided to terminate contact with [the father] after 2 visits, rather that continue for 6 consultations as had been initially ordered. I did not feel that further contact would enable any helpful resolution to this matter and was concerned that continued discussion might only serve to further entrench a fixed and limited position.” [17]

    The mother unequivocally stated she would reinstate the father’s contact once he had complied with the therapy requirement. Berman J expressed surprise that the parties had been unable to negotiate a resolution to the issues in the application.

    Decision: Inter alia, Berman J ordered:

    1. That the father will attend upon Mr F for a further two (2) sessions and at the conclusion of which Mr F will prepare a report directed to the following matters:
      1. A summary of his expertise, experience or skillset in respect of family violence and anger management;
      2. A report directed to the father’s engagement with therapy and focussing on anger management and family violence;
    2. That to assist with the therapeutic intervention by Mr F, the father will provide to him the following:
      1. The report of Mr B;
      2. The report of Ms D;
      3. The judgments of 27 July 2018 and 19 November 2018.
    3. That upon the expiration of twenty one (21) days from the provision of the report by Mr F, indicating that the father has successfully engaged with counselling and therapy directed to family violence and anger management, the father’s time with the children will be reinstated pursuant to paragraph 1 of orders made 4 August 2017, with further amendment that his time with the children will only require the substantial presence of either Mr or Ms C.

    Berman J considered the father’s application for reunification therapy with his child:

    [49] … For reunification therapy to be appropriate I consider that there needs to be an assessment undertaken that would satisfy the Court that the potential risk to the child of engaging in what can be an intensive program is outweighed by the reasonable prospect of a successful reinstatement of X’s relationship with her father.

    [50] The concept of reunification therapy is not a matter of abstract consideration but rather, should be the subject of evidence that it is a proper therapeutic process and will be undertaken by a practitioner with demonstrated expertise.

    [51] A report should be obtained from the nominated practitioner that brings to account the issues raised in the proceedings and provides an assessment as to the prospects of success, limited or otherwise.

  • Farina & Lofts and Ors [2019] FamCA 27 (23 January 2019) – Family Court of Australia
    Damaging property’ – ‘Family violence evidence’ – ‘Kennon principles’ – ‘Physical violence and harm

    Case type: Interim ruling.

    Facts: The applicant and first respondent were in a de facto relationship for 14 years and have two children. They agreed that their respective contributions during the relationship (apart from the Kennon argument) should be regarded as equal ([8]-[10]). The first respondent alleged that the applicant’s conduct amounted to family violence, occurring during and subsequent to their relationship. Her evidence of such violence included a history of protection orders made against the applicant; allegations of physical, verbal, psychological, financial, emotional and mental abuse; allegations of property damage and animal cruelty; and allegations of exposing the children to family violence ([13]).

    Issue: The applicant sought a ruling on whether or not family violence evidence relied upon by the first respondent sufficiently met the requirements of the Kennon principles and resulted in an ‘additional adjustment’ to the first respondent.

    Held: Carew J ruled that the first respondent’s evidence was insufficient to establish that the Court should make an adjustment on the basis of the Kennon principles. Her Honour stated that ‘[w]hile it is settled at law that family violence can be a relevant factor in determining contributions in property proceedings, the difficulty often faced by a trial judge is the inadequacy of evidence to support any relevant finding and adjustment’. Even if there is no direct evidence as to how the conduct affected the victim’s ability to make his or her contributions, the impact may be inferred provided that the evidence clearly supports it. A person’s conduct will be relevant if it has had a ‘significant adverse’ or ‘discernible’ impact on the contributions of another ([6]).

    The applicant submitted that the evidence failed to demonstrate a discernible or significant adverse impact on the first respondent’s contributions ([15]). In relation to direct and indirect financial contributions, the first respondent deposed to finding it difficult to contribute financially because of the domestic violence inflicted upon her by the applicant. In relation to non-financial contributions for the welfare of the family, she gave evidence that the applicant also made it difficult for her to contribute as a ‘mother’ ([17]). The applicant further submitted that the first respondent’s evidence to occasionally feeling nervous or humiliated represented a personal impact on the first respondent, but fell short of establishing that those feelings had any discernible or significant impact on her ability to contribute ([18]).

    Carew J noted that the need to establish ‘fault’ has been replaced by a ‘no-fault’ system in order to obtain a divorce or other relief, such as a property settlement or spouse maintenance. The repeal of the ‘fault’ based system avoids the humiliation and expense associated with presenting the necessary evidence ([22]). Nevertheless, according to the Kennon principles, there are circumstances where conduct will be relevant to the determination of a property settlement application ([23]).

    Her Honour accepted the applicant’s submission that the evidence relied upon by the first respondent was insufficient to establish the impact of the conduct on her ability to make contributions or the quantification of that impact on her contributions, either expressly or impliedly ([24]).

  • Garrod & Davenort [2018] FamCA 825 (12 October 2018) – Family Court of Australia
    Coercive control’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘History of domestic and family violence’ – ‘Physical violence’ – ‘Systems abuse

    Issue: Parental responsibility.

    Facts: The mother alleged that the child was repeatedly struck by the father causing bruising and that the father engaged in intimidating conduct towards her and the child, often following drug use by the father. The father was subject to several intervention orders, none of which successfully prevented his violent and intimidatory conduct. One incident of violence followed the mother’s discovery the father had spent money set aside for payment of bills. The father was persistently in arrears of his child support obligations and viewed child support as a benefit to the mother.

    The mother led evidence that the father’s conduct towards her and the child made her highly anxious. The child allegedly made disclosures to the mother in July 2014 after spending time with the father that ‘daddy hit me’ and ‘he was just angry and he hit me’. The following day, the mother alleged a bruise appeared on the child’s hip. [344]

    Decision and Reasoning: The mother have sole parental responsibility for the child, the father have no contact with the child and there be a moratorium on the father seeking further parenting orders for a period of two years. The father’s conduct towards the mother and the child had made the mother highly anxious.

    It was held that that ‘the father’s behaviour ha[d] been manipulative and the violence, which has been physical violence as well as coercive controlling violence, insidious. It was often perpetrated in the presence of the child.’ [5]

    Despite the father’s recent admissions regarding his conduct, the Court was unconvinced that he does not pose an unacceptable risk to the child’s safety and wellbeing.[5]

    The Court considered the definition of ‘coercive controlling violence’. It was held that: ‘Coercive controlling violence is an ongoing pattern of use of threat, force, emotional abuse and other coercive means to unilaterally dominate a person and induce fear, submission and compliance in them. Its focus is on control, and does not always involve physical harm.’ [223]

  • Xuarez & Vitela (No 3) [2017] FamCA 1108 (22 December 2017) – Family Court of Australia
    Abuse of process’ – ‘Child-related proceedings’ – ‘Systems abuse’ – ‘Vexatious proceedings

    Case type: Application by both parties for a vexatious proceedings order.

    Facts: Mr Xuarez and Ms Vitela (both pseudonyms) had been involved in court proceedings in relation to parenting orders for over 10 years ([7]-[21]). The father had filed 19 separate Applications in a Case between 11 April 2012 and 16 November 2017 ([16]), which were all dismissed, and Notices of Appeal in relation to the dismissals ([17]). Both the mother and the father filed applications for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth).

    Issues: Whether the Court should make the vexatious proceedings order against the mother or the father or both.

    Decision and Reasoning: The application made by the mother was granted, while the application by the father was dismissed. An order was made prohibiting Mr Xuarez from instituting proceedings against Ms Vitela or any of her legal representatives and dismissing all extant applications ([45]).

    Justice Carew at [29] cites Perram J in Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398 to set out 11 principles to consider when making an order in relation to vexatious litigants. Applying the principles to the father’s conduct, Carew J highlighted the facts that most of the applications were instituted without reasonable grounds, the father sought orders that the Court did not have jurisdiction to make, and the repetitive nature of the applications amounted to an abuse of process ([34]). It was noteworthy that in 2010, the father was declared a vexatious litigant in another court, in relation to proceedings where the father stalked the mother’s former legal representative ([37]). These facts justified the order being made against the father.

  • Janssen & Janssen [2016] FamCA 345 (1 February 2016) – Family Court of Australia
    Discretion to admit the audio recordings and transcripts into evidence’ – ‘Evidence’ – ‘Independent children’s lawyer’ – ‘Recordings made without consent’ – ‘Serious allegations of family violence’ – ‘Whether recordings were reasonably necessary to protect lawful interests

    Proceedings: Application relating to the admissibility of evidence and application as to whether the rules of evidence ought to apply in a Family Court hearing.

    Facts: On the first day of a four day hearing, counsel for the applicant (the mother) sought leave to tender voice recordings and transcripts that had been made without the knowledge of the father. Under s 7 of the Surveillance Devices Act 2007 (NSW), it is unlawful to record private conversations without the consent of the parties to that conversation unless the recording of the conversation falls within one of the exceptions in s 7(2) and (3).


    • Whether both the voice recordings and transcripts were admissible.
    • Whether there were ‘exceptional circumstances’ as per s 69ZT(3) requiring the proceedings to be determined according to the rules of evidence set out in the Evidence Act and not according to the procedures set out in s 69ZT(1) and (2) of the Family Law Act 1975 (Cth) (‘the FLA’).

    Reasoning/Decision: First, McClelland J held that both the voice recordings and the transcripts were admitted in evidence under s 7(3) of the Surveillance Devices Act 2007 (NSW) (the recordings were reasonably necessary to protect the applicant’s lawful interests) and, in the alternative, under s 138 of the Evidence Act (the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained improperly).

    McClelland J noted the ‘floodgates’ caution from senior counsel for the father i.e. that there was a danger of parties to a marital relationship experiencing difficulties surreptitiously recording their partner. However, in this regard, His Honour stated that his decision was very much one based on the facts of the case, including the allegations that the father had maintained a charming public face but had engaged in conduct within the family home that was alleged to have constituted family violence in terms of the provisions of s 4AB of the FLA. His Honour also had regard to the potential difficulty of obtaining evidence of family violence when it occurs behind closed doors without any witnesses present other than the perpetrator and victim. Further, His Honour noted that the recordings and transcript would be directly relevant to the issue of credibility as to whether family violence occurred in the proceedings (see [6]-[14]).

    Notwithstanding the findings above, senior counsel for the father submitted that the Court ought to exclude the voice recordings (permitting the inclusion of the typed transcript) because the danger of the evidence being unfairly prejudicial to the father outweighed its probative value (s 135 Evidence Act). This was because the mother had knowledge and control of the recording and the circumstances in which the conversation occurred and was recorded. McClellan J dismissed this argument and held the voice recordings were admissible. This could be a matter for cross-examination by the father: Huffman & Gorman (No. 2). Further, His Honour noted submissions from counsel for the applicant and counsel for the Independent Children’s Lawyer that an important aspect of the evidence contained in the tapes was not simply what was said but how it was said. This was relevant to whether the father’s behaviour could be modelled or mimicked by the children and whether the parenting abilities of the primary carer had been compromised as a result of the content and tone of the communication (s 69ZN of the FLA) (see [15]-[23]).

    Second, McClelland J held that the rules of evidence were to be applied in respect to the issues of the events on 10 September 2013 (these events were the subject of criminal proceedings) and to the issue as to whether the father made threats to the children or to the mother in respect to the children (s 69ZT(3)). For the remainder of the issues, the rules of evidence would not apply (s 69ZT(1) and (2)) and His Honour would therefore have the discretion to consider the probative value of such evidence. His Honour stated, ‘evidence in relation to the question of family violence will have to be established clearly, and matters of opinion put in appropriate context and given appropriate weight, depending upon who was expressing the opinion and on what basis, and the establishment of the necessary background facts’ (see [24]-[34]).

  • Sawyer & Sawyer [2015] FamCA 982 (10 November 2015) – Family Court of Australia
    Application to discharge the icl’ – ‘Independent children's lawyer’ – ‘Legal practitioners’ – ‘Negligence or bias

    Proceedings: Numerous applications including an application to discharge the ICL.

    Facts: The mother and the father separated in 2009.There were three children of their relationship. In 2012, a final parenting order was made with the consent of the parties and the Independent Children’s Lawyer (ICL). There was continued conflict between the parents. Numerous applications were considered by the court in this case in particular, an application brought by the father to discharge the ICL.

    Issues: Whether the ICL had been negligent and demonstrated bias towards the mother?

    Reasoning/Decision: The application was dismissed. Forest J referred to his previous discussion (in Dean & Susskind [2012] FamCA 897 at [19]-[28]) of the principles applicable to such an application:


    The role is to be discharged independently and professionally, but it is not inconsistent with that duty for an ICL to make submissions to the Court that particular findings of fact, supported by the evidence, be made or that particular evidence be preferred over other evidence, or that a particular course of action be taken by the Court. It is also beyond doubt that an ICL’s duty to advance what he or she independently considers is in the best interests of the children in the case, does not require the ICL to slavishly follow what the children might want or what either one or both of the parents consider is in the best interests of the children.[20]

    I consider it to be accepted principle that a court should be slow to remove or discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL. [21]

    It will, in my opinion, be a matter of considering the evidence presented on each application for the removal of an ICL to determine if it demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal. [26]

    Parents, particularly in high conflict parenting litigation, must understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case’. [27]

    The father submitted a number of facts as evidence of bias. First, the ICL sought the appointment of a new, female report writer (Ms C). The father argued that the ICL failed to give him an opportunity to argue against Ms C’s appointment and, by retaining Ms C, evidenced ‘significant gender bias’ by removing ‘the only male person within our entire court process’. The fact that the ICL disagreed with the father on the issue of appointing a new family report writer, as she was entitled to do, did not prove that the ICL failed to adequately consider the father’s argument. Further, the selection of a report writer alone, who happened to be female, did not demonstrate or prove gender bias (see [58]-[63]).

    Second, the father argued that the ICL demonstrated negligence or bias against him because she would not give him a copy of her instructions to the report writer. Forrest J noted that there is nothing in the Federal Circuit Court Rules or the Family Court Rules that obliges an ICL to provide copies of her instructions to an expert retained by her to each of the parents. Further, the father did not actually request the ICL to provide him with a copy of her instructions; he instead asked whether he would receive a copy of the instructions to which the ICL replied ‘you don’t see the letter of instruction’. In these circumstances, the ICL had not demonstrated negligence or bias that warranted her disqualification (see [65]-[70]).

    Third, on the day of the interviews for the report, the father argued that the ICL demonstrated bias in directing the waiting arrangements in her office for the parents and children. Forrest J held that, at the interim stage, where the evidence invited a number of possible findings that could not be made without cross-examination of deponents, he was not in a position to say that the ICL had acted in a way that warranted her immediate discharge (see [71]-[78]).

    Finally, the father asserted that the ICL was incompetent as well as negligent and biased against him. Forrest J was not persuaded by the father’s evidence and held that (see [79]-[81]):

    ‘It is most certainly not the case that where a parent might be able to point to a mistake made by an ICL that the Court will necessarily accede to an application by that parent to discharge that ICL. The authorities I have discussed clearly disclose that significantly more than that is required’.

  • Theophane & Hunt [2014] FamCA 1038 (24 November 2014) – Family Court of Australia
    Family reports’ – ‘Impact of loss of relationship with parent’ – ‘Independent children’s lawyer’ – ‘No contact orders’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Protection of the parent’ – ‘Protection orders’ – ‘Rape’ – ‘Self-represented litigants’ – ‘Sexual and reproductive abuse’ – ‘Statutory framework’ – ‘Systems abuse’ – ‘Vexatious proceedings

    Proceedings: Application for final parenting orders.

    Facts: The parties had one child together. During the relationship, the mother alleged that the father often forced her to have non-consensual sex with him. The parties separated and the mother obtained a DVO against the father. The mother initiated proceedings seeking parenting orders and over the next four years a number of parenting orders were made and amended. However, after an incident at handover, the wife formed the belief the husband would abduct or remove the child from her care, and she attacked the father whilst in a dissociative state. She was convicted of unlawful wounding and sentenced to 18 months imprisonment, and immediately released on probation.

    The applicant father sought orders for sole parent responsibility for the child, who would live with him and spend supervised weekend and school holiday time with the mother. He argued that the mother presented an unacceptable risk of sexual, physical and emotional harm to the child (the mother suffered sexual abuse as a child). At the time of these proceedings, the father was committed to stand trial on six charges of rape of the mother and one charge of grievous bodily harm against the mother.

    The mother sought orders, supported by the Independent Children’s Lawyer, that she have sole parental responsibility for the child, who would live with her and spend no time, nor have any contact or communication with the father. She later amended her orders and sought to include provision for a card or letter for her birthday and for Christmas. The mother sought no contact as she believed any continued interaction between her and the father in relation to the child, was likely to adversely affect her capacity to parent the child.

    Issue/s: What parenting order was in the best interests of the child?

    Reasoning/Decision: Orders were made providing for the mother to have sole parental responsibility for the child and sole custody of the child, and for the father’s access and communication with the child to be limited to postal correspondence twice a year until the child turned eighteen. His Honour also made a vexatious litigant order against the father, restraining him from bringing further proceedings without leave of the court.

    In relation to making a no contact order, his Honour stated that it is a serious matter that a child neither spend time with nor communicate with a parent. Accordingly, such orders ought to be restricted to cases where the outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Three scenarios were considered in which ‘no contact’ orders had been made in the past. First, these orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child. Second, ‘no contact’ orders have been made where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed (on the basis of protecting the child from the consequences of that parent’s belief): Re Andrew. Finally, this approach was taken one step further in Sedgley & Sedgley where the Court held that while the welfare of the child may require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child. However, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation (see [55]-[58]).

    The best interest considerations in s 60CC let the court to determine the child live with her mother. His Honour accepted that by time the child turned 12 she would likely come into conflict with the father and was at real risk of harm from his coercive, controlling, dominating and self-serving personality traits (see [177]-[178]). Further, the father was to have no contact with the child except for a card/letter at Christmas and on the child’s birthday. It was found that the father deliberately calculated his interaction with the mother with a view to destabilising her mental health conditions, and even the smallest opportunity for debate or conflict with the mother would be seized upon by the father. If the mother was required to continue to interact with the father in any form of co-parenting, there was a substantial risk that she will either attempt to kill herself, attempt to kill the father, or both.

    It was ultimately decided that the prospect and magnitude of the risk of harm to the child if her mother was required to maintain contact with the father far outweighed any benefit the child would obtain by a continuation of any time or communication with her father. It was held that the best interests of the child lay with making a no contact order.

    In relation to family violence, his Honour was satisfied that on occasion the father had engaged in non-consensual sexual intercourse with the mother. However, it was both unnecessary and undesirable to make a finding regarding the father’s conduct in relation to the criminal offence of rape (see [168]-[169]). However, the father’s controlling and domineering behaviour was considered and had bearing on the court’s decision for no contact (see [170]-[171]).

    His Honour considered each of the many proceedings instituted by and conducted by the father and was “satisfied that on numerous occasions, either the proceedings have been instituted vexatiously or they have been conducted vexatiously.” He was “therefore satisfied that the father has frequently instituted or conducted vexatious proceedings.”[243]

    At [246] his Honour stated:

    I am satisfied that many of the applications that the father has brought or prosecuted in relation to the mother have been vexatious, although I accept that some, on occasion, have had merit. Some have been vexatious in the sense that they were intended to harass and intimidate the mother into either a further destabilisation and perhaps dissociation, or to attempt to otherwise coerce her to his will. Some were vexatious as being without reasonable foundation. Some may have been both.

    And at [248]:

    I accept that it is a grave matter to deny a parent the opportunity to litigate in relation to their child. However upon analysis, my order does not prevent the father doing so per se: if there is a legitimate basis for further litigation, sufficient to warrant a grant of leave, then he may do so. However he cannot be trusted with the unfettered right to issue proceedings against the mother in relation to the child, because he will abuse it. For that reason, any application for leave should be, in the first instance made ex parte: s 102QE(4).

    Note: this case was confirmed on appeal, see Theophane & Hunt and Anor [2016] FamCAFC 87.

  • Cannon & Acres [2014] FamCA 104 (6 March 2014) – Family Court of Australia
    Family violence’ – ‘Parenting orders’ – ‘Systems abuse’ – ‘Vexatious litigant’ – ‘Views of the child

    Proceedings: Parenting orders and vexatious proceedings order.

    Facts: Over many years, the mother and the 12 year old child experienced harassment, physical violence and stalking behaviour by the father. The father had little or no insight into the impact of his behaviour on the child. This was the third final parenting hearing. The current proceedings were brought about by the father in circumstances where the application was doomed to fail. Seeing the profound impact of these fresh proceedings on her mother, the child resolved that she no longer wanted to see or communicate with her father. Benjamin J was satisfied that the views were her own.


    • What parenting orders were in the best interests of the child?
    • Whether in the circumstances of this proceeding a vexatious proceedings order should be made and if so the nature and extent of that order.

    Reasoning/Decision: In making parenting orders, Benjamin J noted that the presumption of equal shared parental responsibility in s 61DA of the Act did not apply because there were reasonable grounds to believe here that the father had perpetrated family violence. This family violence included the father’s entrenched pattern of behaviour (referred to by a psychologist), the father’s stalking behaviour, the verbal abuse, harassment and the assaults by him on the child. Further, shared parental responsibility could not effectively operate given the views of the child, the approach adopted by the father and the impact upon the mother. Accordingly, Benjamin J made an order that the mother have sole parental responsibility for the child (see [379]-[384]). Benjamin J also made an order that the child spend no time with the father and have no communication with the father (see [387]-[404]).

    Benjamin J made a vexatious proceedings order prohibiting the father from instituting further proceedings without leave. This order was made under s 102QB(2) of the Family Law Act 1975 (Cth). At [420], His Honour noted that the fundamental differences between the old section (s118) and s 102QB were: (1) the test was no longer a court having frivolous or vexatious proceedings before it but rather whether or not there was a history of a person having frequently instituted or conducted vexatious proceedings; and (2) Vexatious proceedings were now defined by statute in s 102Q(1).

    To make an order under s 102QB(2), Benjamin J noted at [438] that a two part threshold test needs to be met, namely:

    • That there have been vexatious proceedings instituted or conducted in Australian courts or tribunals; and
    • That the person, in this case the father, has frequently instituted or conducted such proceedings.

    Applying this test, Benjamin J proceeded in three parts. First, His Honour determined a number of proceedings initiated by the father constituted vexatious proceedings on the facts (see [441]-[481]). Second, His Honour held that the proceedings amounted to the father ‘frequently’ instituting and conducting vexatious proceedings. In making this determination, Benjamin J noted that the test of ‘frequently’ was used as opposed ‘habitually and persistently’. The term ‘frequently’ is a relative term and is to be considered in the context of the facts of an individual case and, in this case, in the context of the litigation between these parties. This test was said to be satisfied on the facts (see [482]-[494]).

    Finally, with the threshold being met, Benjamin J considered whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. His Honour noted that a vexatious proceedings order must be considered in the context where there is a need to balance the serious step of restricting a person from commencing proceedings against the need to protect the mother and the child from the constant impact of litigation. In the circumstances, a vexatious proceeding was made (see [495]-[540]).

  • Modlin & Anstead and Anor [2013] FamCA 955 (6 December 2013) – Family Court of Australia
    Family reports’ – ‘No contact orders’ – ‘Parental capacity’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Protection of the parent’ – ‘Protection orders’ – ‘Self-represented litigants’ – ‘Single expert report

    Proceedings: Application for parenting orders.

    Facts: The mother and the father, who both had compromised mental health: the mother diagnosed as Bipolar and the father also being previously diagnosed as Bipolar, had two children together. Both children had intellectual and developmental disabilities. The parties separated and reconciled several times before final separation, with the mother obtaining Apprehended Domestic Violence Orders (ADVO) on a number of occasions. The father breached one of these orders in February 2010 by breaking into the mother’s home and assaulting the mother. He was charged and spent time in a psychiatric facility. The mother formed a relationship with another man (‘the stepfather’). In 2011, one of the children went temporarily missing in a National Park under the care of the father, the father deliberately sent photographs of his penis to the mother, and one of the children told the mother that the father swore at her. Contact ceased between the father and the children and the mother received victim’s compensation in relation to domestic violence by the father. Proceedings were commenced in relation to the parenting of the children.

    Issue/s: It was agreed that the mother and the stepfather would have parental responsibility for the children. However, some of the remaining issues were –

    • Whether the father should have shared parental responsibility or no responsibility for the children;
    • Whether or to what extent the father should spend time or communicate with the children.

    Reasoning/Decision: Orders were made giving the mother and stepfather equal shared parental responsibility for the children, giving the father no parental responsibility, making provision for the children to live with the mother and stepfather and to have no contact with the father, restraining the father from approaching the children, their school and residence and the parents from discussing proceedings with or near the children.

    The Court found that the s 61DA presumption of equal shared parental responsibility did not apply as the father engaged in family violence. Further, in relation to the children’s best interests, including consideration of the evidence about family violence, the Court determined that in any case the presumption would be rebutted on the evidence. It was held that any further contact between the father and the mother would destabilise the mother and prevent her from being able to adequately care for the children (see [197]-[205]). Additionally, on this basis, it was ordered that the father spend no time with either child (see [206]-[210]).

    Loughnan J also made a number of orders restraining the father from communicating with the children or the mother or stepfather. These orders were necessary for the physical and mental protection of the mother, especially in light of the evidence of family violence. However, Loughnan J ordered that, if required, the father communicate with the step-father through a post office box and be notified if the family relocated from the region (see [217]-[232]).

  • Schieffer & Schieffer [2013] FamCA 168 (20 March 2013) – Family Court of Australia
    Best interests of the child’ – ‘Children’ – ‘Inconsistency of parenting orders with existing family violence order made by state court’ – ‘Independent children’s lawyer’ – ‘Intersection of legal systems’ – ‘Living arrangements’ – ‘Parenting orders and impact on children’ – ‘Presumption of equal shared parental responsibility’ – ‘Protection orders

    Proceedings: Application for parenting orders.

    Facts: The parties separated and made consensual arrangements for the care of their child. In June 2012, the father detained the child citing a belief that the child had been sexually abused by the mother’s partner. Subsequently the mother, having happened upon the child and the father’s partner, attempted to detain the child herself. This resulted in an Apprehended Violence Order (AVO) being made against the mother in favour of the father’s partner. It applied to the child and the father as well as they lived with Ms E.

    The mother refuted the allegation of sexual abuse but her relationship with her partner had ended and the mother acceded to an order precluding any future contact between the child and her former partner. The father then contended that the mother’s deteriorated emotional state constituted a further risk of harm to the child and militated against the child’s return to live with the mother.

    Issue/s: What orders regarding the residence of the child and shared parental responsibility were in the best interests of the child?

    Reasoning/Decision: The Court was persuaded to make an order for the parties to have equal shared parental responsibility for the child, consistent with their mutual wish, the Independent Children’s Lawyer’s suggestion and the Family Consultant’s recommendation (see [95]-[100]). His Honour ordered that it was in the child’s best interests to live predominately with the mother. Although both parents were equally capable of meeting the child’s intellectual needs, he considered that the mother was better able to meet the child’s physical and emotional needs (see [106]). The child was to spend substantial and significant time with the father (see [105], [109]-[116]).

    The parenting orders were inconsistent with the existing family violence order, as the AVO prohibited the mother from approaching and contacting the child or the father. Although the order made an exception for contact that occurred pursuant to the Act, it was only for the restricted purpose of ‘counselling, conciliation, or mediation’. It was noted that where the terms of the parenting and family violence order were inconsistent, the parenting order should take precedence to facilitate communication between the parents regarding the child and to ensure the child was exchanged for periods of contact (see [91]-[94]).

  • Damiani & Damiani [2012] FamCA 535 (9 July 2012) – Family Court of Australia
    Court to consider family violence (60cc)’ – ‘Family violence in property proceedings’ – ‘Kennon adjustment’ – ‘People with mental illness’ – ‘Property proceedings

    Proceedings: Application for property orders.

    Facts: The parties married and lived together for 19 months. They had one child. The husband contributed the bulk of the capital to the marriage and was on a far superior income. The wife had cared for the child since separation, nearly eight years prior. During the marriage, the husband perpetrated family violence against the wife on five occasions, over a period of 15 months. This caused the wife to suffer from post-traumatic stress disorder. The wife claimed the family violence made her contributions in the role of homemaker and parent significantly more arduous. The husband had financially supported the wife and the child during the period since separation.

    Issue/s: Whether the court should make a Kennon style adjustment in the property settlement proceeding?

    Reasoning/Decision: The Court referred to the Full Court in Kennon where the principles regarding family violence making contributions more arduous lie. The Full Court’s further refinement of the Kennon principles in Spagnardi & Spagnardi was also noted (see [138]-[144].

    The Court discussed the approach regarding family violence in property proceedings as broken down into three steps: (1) Make findings of fact about one party’s conduct; (2) (If applicable) make findings about the physical or psychological effect of the conduct on the other party; and (3) Make findings of fact about the effect of the conduct of one party upon contributions made by the other party. It was also noted that it could not be assumed in a particular case that an effect on a party’s condition automatically means there is an effect upon the party’s contributions. At trial, the wife had to establish to the judge’s satisfaction a connection between any proven family violence in the case and the contributions she made (see [145]).

    On the facts, Watts J first concluded that the wife’s contributions in the role of homemaker and parent during the period over which the violence took place were made significantly more arduous by the violence of the husband. Second, while His Honour also held that the wife’s role as parent post-separation was made significantly more arduous by the family violence during co-habitation, His Honour observed that it was more difficult to make such an assessment. The wife did experience apprehension and heightened emotion around dealing with the husband’s time with the child after the separation. However, the effect of violence on contributions was not constant over the previous eight years, with the wife’s post-traumatic stress disorder having significantly dissipated (see [174]-[179]). Accordingly, it was appropriate to increase the wife’s assessed contributions by 25 per cent for the duration of the relationship and by 5 per cent post separation to take account of the effect of the husband’s conduct on the mother (see [179].

  • Russell & Russell [2012] FamCA 99 (7 March 2012) – Family Court of Australia
    Alleged breach of indian dowry law’ – ‘Dowry’ – ‘Family law’ – ‘Final parenting and child orders’ – ‘History of domestic and family violence’ – ‘Overseas relocation to india’ – ‘Parenting orders’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Rebuttal of presumption of equal shared parental responsibility’ – ‘Relocation’ – ‘Sole parental responsibility order

    Matter: Application for final parenting and child orders.

    Proceedings: Final parenting and child orders hearing, including application for overseas relocation.

    Facts: The mother had limited English skills, poor work prospects and no family support in Australia and there was a high level of conflict between the parties exacerbated by cultural issues. Both parties’ extended families remained in India. The mother alleged a history of family violence perpetrated by the father against the mother. The father stated that it was his intention to remain in Australia regardless of the final outcome. There were allegations that India’s dowry laws had been breached by the demand for and payment of dowry by the wife’s family to the husband’s family.

    Issue: Was the presumption of shared parenting responsibility rebutted? Ought the mother be allowed to relocate to India with the child?

    Judgment: Presumption of shared parenting responsibility rebutted, relocation allowed.

    Young J found the presumption of shared parental responsibility was rebutted due to the conflict between the parties, their lack of communication and cultural issues.

    The mother was permitted to relocate to India where she had family support available.

  • Kreet v Sampir [2011] FamCA 22 (18 January 2011); (2011) 252 FLR 234; (2011) 44 Fam LR 405 – Family Court of Australia
    Forced marriage’ – ‘Marriage occurring in a country other than australia’ – ‘Nullity application

    Proceedings: Nullity application.

    Facts: Ms Kreet (the wife), an Australian born woman, married Mr Sampir (the husband) on June 2009 in India. She travelled to India with her parents believing she was going to marry her Australian boyfriend, Mr U. Upon arrival, her parents confiscated her passport and was introduced to Mr Sampir. Her father told her that he would have Mr U’s sisters and mother kidnapped and raped if she refused to marry Mr Sampir. Under duress, the wife married Mr Sampir and submitted his Australian visa application to the authorities. She returned to Australia, resumed her relationship with Mr U and withdraw her sponsorship of the respondent’s visa application. She obtained an indefinite Intervention Order against her father.

    Issue/s: Whether the marriage was void?

    Reasoning/Decision: Section 23B(1)(d) of the Marriage Act 1961 (Cth) states that a marriage is void if ‘the consent of either parties is not real consent because: (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony’.

    While the legislation does not define duress in the context of a marriage, Cronin J found that ‘there was no reason to give it any other meaning than that which is normally known to the law. It must be oppression or coercion to such a degree that consent vanishes: In the Marriage of S (1980) FLC 90-820’ (see [39]).

    Cronin J was satisfied that ‘the wife’s physical state at the time of the ceremony was such that she was physically and mentally overborne. Her consent was not real because it was obtained by duress’ (see [43]).

  • Harridge & Harridge [2010] FamCA 445 (4 June 2010) – Family Court of Australia
    Children’ – ‘Risk assessment’ – ‘Unacceptable risk

    Proceedings: Parenting orders.

    Facts: The father of the two children subject to the parenting proceedings was convicted of three offences involving child pornography.

    Issue/s: What parenting orders were in the best interests of the child?

    Reasoning/Decision: Although this case did not relate to family violence, it contains observations relevant to risk assessment. The Court held that an allegation of potential risk of harm ought not to divert the court from the central task of assessing the best interests of the children. At [53] Murphy J quoted from an article by psychiatrist and barrister, Mahendra, who stated that risk assessment in any situation involves, in essence, asking the following questions:

    • What harmful outcome is potentially present in this situation?
    • What is the probability of this outcome coming about?
    • What risks are probable in this situation in the short, medium and long term?
    • What are the factors that could increase or decrease the risk that is probable?
    • What measures are available whose deployment could mitigate the risks that are probable?
  • Maluka & Maluka [2009] FamCA 647 (24 July 2009) – Family Court of Australia
    Children’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘Family law’ – ‘History of domestic and family violence’ – ‘Stalking’ – ‘Systems abuse’ – ‘Threats to kill’ – ‘Unacceptable risk

    Matter: Application that mother have sole parental responsibility, the children live with the mother, the mother be permitted to change the children’s names and relocate without notice to the father, that the father be restrained from bringing applications in relation to the children for a period of time.

    Facts: The mother alleged serious history of domestic and family violence throughout the history of the relationship, including “serious assaults of the mother, stalking, vandalism to property of the mother and her present partner, intimidation, threats of violence (including a history of death threats), verbal abuse, controlling behaviour, isolation and dominance”[4] such that the mother and children live in terror of the father and have done for years.

    Held: Mother have sole parental responsibility for the children and they reside with the mother, the mother be permitted to everything necessary to change the children’s surnames, the mother be permitted to relocate the residence of the children to any place in Australia without notice to or permission of the father, the father be subject to a restraining order.

    [396] “In many ways the facts as between the parties that I have determined in this case fit most, if not all, of the indicators of coercive controlling violence. The father has used coercion, control, violence, intimidation and threats throughout the relationship, including after separation. He seeks to intimidate and control the mother with the attendant violence, abuse, isolation and aggression. From time to time he focuses this on the children. He dominates and controls the children, particularly X, but his behaviour with regard to Y and her reaction to his verbal abuse of her in June 2008 is indicative of his continuing coercive controlling violence.

    [397] The father exercised economic power to control and manipulate the mother and effectively the children. He endeavoured to isolate mother and in effect continues to do so. In that process he denies or minimises his involvement and culpability.

    [399] The effect of that long term violence, control and manipulation imposed by the father on the mother has from time to time undermined the mother’s parental authority and undermined her parenting role…”

    Note this case was subject to further litigation, although the judge’s comments about the type of family violence experienced were not challenged. See for example Maluka & Maluka [2011] FamCAFC 72; (31 March 2011).

  • HZ & State Central Authority [2006] FamCA 466 (7 June 2006) – Family Court of Australia
    Child abduction’ – ‘Hague convention’ – ‘History of domestic and family violence’ – ‘Parenting proceedings’ – ‘Separation

    Matter: The mother’s appeal against orders made by Bennett J on 11 April 2006 requiring the return to Greece of three children, C, D and E pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

    Facts: The mother was an Australian-born woman of Greek parentage and the father was Greek. They met and married in Greece and throughout the marriage the mother and three children resided with the father’s parents in Greece. With the father’s consent the mother brought the children to Australia for what she said was a holiday and conceded that the habitual residence of the children was Greece. There was evidence of threatening text messages from the husband to the wife and the eldest child’s evidence of the father’s violence and threatening behaviour towards the mother and his own mother in the presence of the children supported the mother’s allegations.

    Grounds: The trial judge erred in failing to find that Article 13(b) (grave risk of physical or psychological harm or place them in an intolerable situation) and Article 13(c) (the eldest child’s views should be taken into account) should prevent the return of the children.

    Held: Appeal dismissed. The court was unable to identify error in the trial judge’s decision.

    The court acknowledged the limitations of the Hague Convention in cases where domestic and family violence is alleged:

    [48] The operation of the Convention which has the effect of potentially sending a mother back into a situation of risk to her own physical wellbeing has been a matter of significant academic criticism …

    [75]…As we have already indicted, the return of these children to Greece was anticipated to be in their mother’s company. She had found accommodation for herself remote from that of the father. She led no evidence to suggest that the Greek authorities would be unable to provide her and the children with appropriate protection pending her utilising lawful means to relocate the children from Greece. The finding by the trial Judge that the mother had not persuaded her that the return of the children to Greece would raise a grave risk of harm to the children or otherwise place them in an intolerable situation was a finding clearly open to the trial Judge.

    [78]…Given that these were children who were born in Greece and had spent effectively the entirety of their life in Greece until the mother unilaterally determined to retain them in Australia, Greece was clearly the appropriate forum for issues relating to the welfare of these children to be determined. In those circumstances it was appropriate for her Honour to place significant weight on the first of the objects referred to in Article 1 of the Convention namely the prompt return of the children who had been wrongfully retained in Australia.

  • T and N (2003) FLC 93-172; [2003] FamCA 1129 (4 November 2003) – Family Court of Australia
    Anger management course’ – ‘Applications’ – ‘Applications and orders for child residence, contact and parenting orders (in fam law proc)’ – ‘Children’ – ‘Consent orders’ – ‘Contact proceedings’ – ‘Family violence’ – ‘Inadequate undertakings’ – ‘Independent children’s lawyer’ – ‘Judge refusal to accept consent orders for unsupervised contact’ – ‘Legal representation’ – ‘Parenting proceeding’ – ‘People affected by substance abuse’ – ‘People with children’ – ‘Safety and protection of victim and witnesses’ – ‘Women

    Proceedings: Orders sought by consent for supervised and unsupervised time with the father

    Facts: The parties had two children. There was a history of violent and abusive conduct by the father against the mother and one of the children (including that he bit the child as a baby). This resulted in a number of periods of separation and reconciliation, with a number of Apprehended Violence Orders being brought against and breached by the father (see [17]-[24], [27]-[28]). The father also regularly smoked cannabis (see [25]-[26]). In April 2001, the mother left the family residence without notice, taking the children with her. At the hearing, the parties attempted settlement. The parties and the Independent Children’s Lawyer proposed consent orders for children to progress from supervised to unsupervised to block periods of time with the father, who would give undertakings regarding his conduct, discipline of the children, substance use and participation in an anger management course.

    Issue/s: What orders were appropriate in the best interests of the children?

    Decision and Reasoning: Moore J declined to make the consent orders as proposed as the untested evidence raised concerns for the judge that the orders may not be in the children’s best interests. Instead, the judge made orders by consent for supervised contact only. The allegations against the father indicated him to be a violent and abusive person who represented a high risk of harm to the well-being of the mother and a high risk of harm to his children.

    While Her Honour acknowledged that the parents’ consent to arrangements about their children is a powerful, and in most cases a deciding, factor, consent does not displace the obligation of the Court to make orders that are in the best interests of children (see [39]). Moore J also expressed her concern that the Independent Children’s Lawyer would provide support for the proposed consent orders in the face of behaviour that had the potential to place the children in serious jeopardy and in light of orders that would give no protection whatsoever to the children (see [40]).

  • M & M [1998] FamCA 1742 (12 November 1998) – Family Court of Australia
    Children’ – ‘Contact’ – ‘Exposing children’ – ‘Family violence’ – ‘Impact of violence on children’ – ‘Inability to acknowledge inappropriateness of behaviour’ – ‘Relevance of family violence in cases concerning the welfare of children’ – ‘Supervised by court

    Proceedings: Contact orders.

    Facts: The parents had two children together (B and E) and the mother had another son from a previous relationship (D). The children had witnessed violence by the father against their mother, siblings and extended family. The father had several convictions for assault against the mother and one against D, and had been subject to AVOs. After separation, B and E lived with the father, with interim orders made for the mother to have contact with the children. At trial, the parties agreed that B and E should live with the mother but a number of issues were left to be determined. At hearing, a counsellor gave evidence that both children displayed concerning behaviours consistent with early onset and repetitive physical violence.

    Issue/s: One of the issues was what contact should the children have with the father?

    Reasoning/Decision: On the evidence, the Court held that it was in the children’s best interest that all but in the very short term they should have no contact with the father. Orders were made to reduce contact over the space of 12 months to minimise the distress that could be caused to the children by immediate complete separation (see [96]-[100]). The Court held that the father’s abusive behaviour presented a ‘multi-faceted danger for the children’ including danger of injury as well as “fear, insecurity & vigilance”. It was held there was a risk of the children learning behaviour from the father which would affect their future interactions e.g. the daughter accepting abuse as part of life and the son believing violence is acceptable. See [94]-[95].

  • In the Marriage of JG and BG (1994) 122 FLR 209; (1994) FLC 92-515; (1994) 18 Fam LR 255 (30 September 1994) – Family Court of Australia
    Child welfare’ – ‘Children’ – ‘Custody proceedings’ – ‘Impact of domestic violence on children’ – ‘Impact of family violence on children’ – ‘Parenting’ – ‘Parenting proceedings’ – ‘Parties represented by counsel’ – ‘People with children’ – ‘Relevance of family violence in cases concerning the welfare of children

    Facts: The case concerned the custody of two children aged four and two. The wife alleged that the husband had been physically and verbally violent towards her on a number of occasions.

    Issue/s: What is the relevance of family violence in custody, guardianship and access matters?

    Decision and Reasoning: The court accepted that the relevance of family violence will vary according to the nature of the proceedings.

    Chisholm J went on to consider the relevance of family violence in proceedings relating to children. His Honour considered at [257] that although it is ‘not the objective of the law in custody and similar proceedings to punish wrongdoers or to provide compensation or redress for victims’, family violence is by no means irrelevant. His Honour held that ‘[family violence] is to be taken into account if it is relevant to the determination of the child’s welfare, which is the paramount consideration’. The standard of proof is the civil standard on the balance of probabilities. However, the conduct of a parent is relevant in custody matters only to the extent that it relates to the welfare of the children.

    Where violence is directed at the children themselves, or occurs in the presence of the children, it is obviously and directly relevant to their welfare (see [260]). However, other forms of violence could also be relevant to the welfare of the children such as violence affecting the custodial parent, threats, etc. The Court must assess the nature and extent of the harm in light of the evidence and findings before them. See [261].

    The Court also stated that it may be possible for the court to decline to make findings in relation to family violence, where it could determine the case without reference to them.

  • In the Matter Of: Re K Appeal [1994] FamCA 21; (1994) FLC 92-461 (10 March 1994) – Family Court of Australia
    Alleged murder of mother by father’ – ‘Custody’ – ‘Family law’ – ‘Murder’ – ‘Over-emphasis of conduct of father’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Prejudice’ – ‘Separate representation’ – ‘Welfare of child

    Matter: Father, grandparents and paternal aunt’s appeal against orders granting sole guardianship and custody of the child to the maternal aunt and permission for her to remove the child from Australia to the United States where she resided.

    Facts: The mother died and the father was charged with her murder and was awaiting trial at the time of the hearing before the trial Judge. Those proceedings concerned applications by the maternal aunt and the paternal grandparents and aunt for custody of the only child of the marriage. The applicant father indicated that he supported the application of the grandparents and paternal aunt that they be granted custody of the child. The trial Judge made a finding that on the balance of probabilities the husband shot the wife.



    • As he was unrepresented and awaiting trial for murder the trial judge should have made interim rather than final orders, exercised his discretion to stay or adjourn the proceedings, or at least adjouned final determination until the conclusion of the criminal proceedings.
    • The trial judge failed to give reasons or adequate reasons for his decision to make final orders.
    • It was neither necessary or desirable for his Honour to have made the finding that the husband shot the wife.

    Grandparents and paternal aunt:

    • The trial judge failed to give adequate weight to the evidence of Mrs Holmes in support of the appellants’ case, particularly in relation to methods of dealing with grief in eastern European families.
    • The trial judge over-emphasized the conduct or involvement of the husband in the wife’s death and this influenced him against the proposals of the appellants.

    Intervention by Commonwealth Attorney-General:

    The case warranted the appointment of a separate representative pursuant to s 65 of the Family Law Act because (a) permanent removal of the child from the jurisdiction was contemplated which would likely lead to cessation of any contact with the father; and (b) the relationships between and circumstances involving the parties and interveners.

    Decision and reasoning: Appeal dismissed.

    In considering the Attorney-General’s intervention, the Full Court (Nicholson CJ, Fogarty and Baker JJ) suggested guidelines for appointment of separate representatives for children involved in proceedings, one of which was that separate representatives should normally be appointed where there is an apparently intractable conflict between the parents:

    [95] 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.

    [96] 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.

  • Murray & Director of Family Services ACT [1993] FamCA 103 (6 October 1993) – Family Court of Australia
    Child abduction’ – ‘Hague convention’ – ‘History of domestic and family violence’ – ‘Motorcycle gang’ – ‘Parenting proceedings’ – ‘Separation’ – ‘Weapons

    Matter: Appeal against Hague Convention return order.

    Facts: The husband was a member of the New Zealand motorcycle gang known as “the Mongrel Mob”. The mother brought her children aged five, four and two to Australia from New Zealand. Her evidence was that she was the victim of several violent attacks which included head butting, punching, kneeing her at the base of the spine. She had received death threats. The acts of violence either took place in the presence of or in close proximity to the children.

    She said the husband had an arsenal of weapons which included firearms, knives, chains and meat cleavers and was likely to use the weapons against her. The husband whilst admitting to a ‘turbulent’ relationship with the wife and some incidents of violence said her claims were exaggerated. The trial Judge had rejected regulation 16(3)(b) defence commenting that it was not possible to determine the veracity of the allegations and that the evidence relating to them would be available only in New Zealand.

    Held: Appeal dismissed.

    The Full Court in rejecting the mother's appeal characterised the evidence as:

    “almost entirely directed at the prospective threat to the wife of a return to New Zealand and more particularly to a return by her to Dunedin.” [170]

    They said:

    [171] Whilst there is nothing that requires the wife to return to New Zealand, it is obviously desirable and from the point of view of the children that she does so. However, there is no requirement imposed by this court that she or they must return to Dunedin. It is open for her to return to another part of New Zealand where the danger to her may be less and it is of course open to her to seek orders from the New Zealand courts both for personal protection and interim and final custody immediately upon her arrival in New Zealand. She can also, if she wishes, seek leave from the New Zealand court to take the children to Australia.

    [172] As his Honour pointed out, New Zealand has a system of family law and provides legal protection to persons in fear of violence which is similar to the system in Australia.

    [173] It would be presumptuous and offensive in the extreme for a court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand courts or that relevant New Zealand authorities would not enforce protection orders which are made by the courts.

    [174] In our view and in accordance with the views expressed by this Court in Gsponer's case, the circumstances in which Regulation 16(3) comes into operation should be largely confined to situations where such protections are not available…

    [175] For us to do otherwise would be to act on untested evidence to thwart the principal purposes of the Hague Convention which are to discourage child abduction and where such abduction has occurred to return such children to the country of habitual residence so the courts of that country can determine where or with whom their best interests lie. These children are New Zealand citizens who have lived all their lives in New Zealand and it is for a New Zealand court to determine their future.

  • In the marriage of Merriman and Merriman [1993] FamCA 115; (1994) FLC 92-497; (1993) 116 FLR 87 – Family Court of Australia
    Allegations of violence and abuse’ – ‘Interim custody application’ – ‘Issues of welfare of children and stability’ – ‘Physical violence and harm

    Proceedings: Interim custody application

    Facts: Parties married in 1978 and separated under one roof in March 1993. There are 2 children of the marriage aged 13 and 9 at the hearing. There was corroborated evidence of violence perpetrated by the father on the mother. The husband was convicted of assault upon the wife earlier in the same year of the hearing. He was “ordered not to assault, molest or interfere with” the mother. Regardless of these orders he continued to contact the mother and make threats to her and her family. The husband also verbally abused and belittled the mother in front of the children during the marriage. There were also multiple occasions of physical abuse throughout the marriage. Since separation the husband had given the 13 year old daughter Rohypnol and shared a bed with her. He was advised by the Department of Community Services not to do this. Also post separation, the father took out a life insurance policy for the mother. The mother moved from the matrimonial home to her mother’s house in June 1993. The children remained with the father.

    Issues: In light of the father’s history of domestic violence and threats, what interim arrangements should be made for the care of the children?

    Reasoning/Decision: Due to the violence of the father, the Court held that he was a risk to the children both physically and developmentally (he is an “inappropriate role model”). It was held that the children were to remain in the former matrimonial home to “preserve stability for the children and for their safety” and their mother was to have interim care of the children. The father was restrained from coming within 2 miles of the home due to “serious concerns as to the safety of the wife and the children”.