Australian Coal and Shale Employees' Federation v The Commonwealth

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maeve & Elide has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By Notice of Appeal filed 5 November 2025, Ms Maeve ("the appellant") appeals against final parenting orders made on 8 October 2025 by the primary judge in the Federal Circuit and Family Court of Australia (Division 1).
2. The appellant appeals orders which provide that Mr Elide ("the respondent") have sole decision-making authority for the two children, X and Y aged 11 years old and four years old respectively, at the time of the primary hearing (collectively "the children"). The orders allow for the children to live with the respondent and spend professionally supervised time with the appellant for two hours every month, with the costs of the supervised time to be split evenly between the parties. The orders also provide for the appellant to be restrained from various actions, such as entering the children's schools and contacting the children outside of the supervised time.
3. The appellant argues firstly that the orders were plainly wrong or unjust having regard to initially four, which then became three, stated factors, resulting in the primary judge erring in the exercise of discretion, and secondly that the primary judge failed to consider or inadequately considered that the risk posed in the orders was disproportionate to the risk, or could otherwise have been ameliorated.
4. During the course of the appeal, the appellant did not press Ground 1.3 of her Notice of Appeal and does not rely upon paragraphs 46 to 53 of her Summary of Argument filed 23 February 2026 ("appellant's SOA").
5. At the outset it is important to recognise that no appeal ground challenged the findings of the primary judge as to the facts.
6. The appeal fails for the following reasons.

1. This matter was a designated Magellan matter and the Department of Communities and Justice ("DCJ") was involved with the children.
2. The parties' accounts of their relationship varied in relation to inconsequential matters.
3. A significant issue for determination was the parties' opposing contentions that the other posed an unacceptable risk to the children. The appellant contended that the respondent posed an unacceptable risk to the children due to allegations of domestic violence and sexual abuse, and the respondent contended that the appellant posed an unacceptable risk of emotional and psychological harm to the children due to her mental health (at [8]).
4. By way of Initiating Application filed on 13 May 2024, the appellant sought sole parental responsibility for the children and that the children live with her. The appellant also sought that the children spend no time with the respondent and that the respondent be restrained from communicating, contacting or attempting to contact the children (at [26]).
5. The respondent's Response filed on 11 July 2024, sought, inter alia, that the parents both retain parental responsibility and that the children live with the appellant and spend time with the respondent on alternate weekends and for half of the school holidays (at [28]).
6. Interim orders were made by consent on 16 December 2024, for the children to live with the appellant and spend no time with the respondent (at [36]).
7. The respondent filed an Amended Response on 28 July 2025, in which he sought the following orders if the Court found that the appellant posed an unacceptable risk to the children (at [65]):
   • That the respondent retain sole parental responsibility for the children;
   • That the children live with the respondent;
   • An eight-week moratorium on time where the children have no communication with the appellant; and
   • Thereafter, the children spend alternate weekends with the appellant.
8. If there was no finding of unacceptable risk, the respondent sought the following (at [66]):
   • The appellant retain sole decision-making responsibility;
   • The children live with the appellant;
   • The appellant be restrained from moving more than 30 km from her residence; and
   • The children spend time with the respondent over an increasing regime of four to six stages dependent upon whether he relocates or remains at his current residence.
9. On the final day of the hearing the respondent further amended the orders he sought such that the children live with him, he retain sole decision-making responsibility and that the appellant spend professionally supervised time with the children every four weeks for two hours (at [67]).
10. The Independent Children's Lawyer ("ICL") largely supported the respondent's position and also provided an Amended Minute of Order on the final day of the hearing. The ICL sought that the children live with the respondent, the respondent retain sole decision-making responsibility for the children, and the children spend unsupervised time with the appellant for three hours on a fortnightly basis (at [71]).
11. In the current proceedings, the ICL filed a Submitting Notice on 24 December 2025.

1. By way of summary, the alleged risks regarding the respondent were described as follows:
   • The appellant alleged that throughout the parties' relationship, the respondent controlled their finances and would not allow her to spend money. The appellant alleged that the respondent controlled her phone, cars and who she communicated with. The appellant further alleged that the respondent forced her to have sex "on many occasions" (at [13] and [79]). The respondent denied these allegations.
   • The appellant alleged that shortly after separation, in January 2024, she observed X to have a rash and lumps on his stomach, complained of having sore testicles and disclosed that the respondent sexually touched him and threatened to kidnap him if he disclosed this (at [21]). The appellant reported the allegations to DCJ, who recommended she report this to a doctor and the police. The appellant took X to the doctor and made further allegations that X was demonstrating sexualised behaviours (at [22]).
   • From January 2024 to October 2024, the appellant made nine reports to DCJ in relation to the children (at [23]).
   • In July 2024, the City D Child Protection Response Program became involved with the family due to concerns that X was presenting with symptoms indicating possible sexual harm by the respondent (at [29]). During this investigation, X disclosed that the respondent had accidentally touched his "balls" in the shower, had touched his groin area when tucking him into bed, used physical discipline (pulled his ear) and that X was afraid of the respondent kidnapping him (at [30]). It was determined that sexual harm could not be substantiated on the balance of probabilities, however an Apprehended Violence Order was served on the respondent due to the physical discipline (at [31]).
   • The appellant alleged the respondent broke into her unit, and has stalked and harassed her and the children, including through "cyber stuff" (at [79]).

1. By way of summary, the alleged risks regarding the appellant were described as follows:
   • The respondent alleged that the appellant used excessive physical discipline in managing the children's behaviour (at [80]).
   • In 2024, a counsellor reported that X threatened to kill the appellant whilst holding a knife and previously told the appellant to "go fuck yourself" (at [126]).
   • The appellant's housing instability from October 2024 to August 2025 was damaging for the children, particularly X who thrives on routine (at [124]-[125]) and that during this period the children had significant absences from school and day care (at [126]).
   • The appellant's mental health was found by an Alternate Assessment to impact upon her and the children in times of crisis (at [115]).
   • On [...] January 2025, the appellant sought assistance from H Support Service and resided there for several months with the children (at [38]).
   • A Risk of Significant Harm Report was made on [...] February 2025 by workers at the H Support Service where the appellant was living, which recorded that the appellant presented in a "constant state of paranoia" which was "making the children feel constantly anxious and unsafe" (at [39] and [120]).
   • A further report to DCJ was made on [...] February 2025, which recorded that X had asked if the H Support Service was a "real" service, or if it was a test for the appellant, and that he reported he was scared the respondent would take him from school (at [40]).
   • The appellant denied changing her medications despite recommendations from a psychiatric registrar on [...] February 2025 (at [117]-[119]).
   • The appellant demonstrated "disturbing behaviour" while living at the H Support Service, including a belief that people were videotaping her, listening to her phone conversations and swapping her medication, and referring to the children as being possessed by the devil and refusing to give X his medication (at [119]-[120]).
   • On 4 March 2025, the appellant left the children at the H Support Service whilst she went grocery shopping (at [121]).
   • On 3 April 2025, the H Support Service staff recorded that the children were visibly upset and stated they were scared because the appellant was "going crazy". When staff attempted to speak to the appellant she stated she needed five minutes away from the children and that she did not care about the children as they were not listening to her. Staff were advised by X that the appellant broke his laptop, which the appellant agreed that she did as she was trying to parent X. The appellant later reported she did not regret breaking the laptop because X's behaviour had become difficult to manage (at [122]).
   • A report to DCJ on 4 April 2025 recorded that the appellant was "quite abusive to the children" and that she "often" locked them out of the bedroom at night (at [123]).

1. The parties also made the following cross-allegations (at [80]):
   • Financial control and monitoring of each other since separation;
   • Excessive physical discipline or the use of excessive physical force in managing the children's behaviours, particularly X;
   • Exposing the children to parental denigration; and
   • Threats to withhold the children from the other parent.

1. The primary judge made orders largely in accordance with those proposed by the respondent.
2. The primary judge found the appellant to be an unreliable witness (at [82]), compared to the respondent who was considered, careful and not evasive in his evidence (at [94]). Notably, the primary judge found several inconsistencies in the appellant's evidence regarding the alleged sexual abuse of X (at [103]-[106]).
3. The primary judge recognised that there was a risk of psychological harm to the children posed by a reintroduction between the children and the respondent, and separation from the appellant, noting that the children were closely aligned with the appellant and had expressed adverse sentiments towards the respondent (at [111]). The primary judge noted that the respondent recognised that his management of X's behaviour in the past was deficient and that he was committed to implementing strategies including counselling and external support, which would assist in ameliorating the emotional and psychological risk posed to the children (at [112]).
4. The primary judge found that the appellant's poor mental health and housing instability negatively impacted the children (at [124]). Furthermore, the primary judge found that the appellant's belief that the respondent sexually assaulted X would have long-term psychological impacts on X, not dissimilar as to someone who experienced sexual assault, with those impacts including trauma, education disengagement and difficulties in relationships (at [129]).
5. The primary judge noted that if the appellant's mental health improved, the risks could be ameliorated, however the Court had no confidence that the appellant was undergoing adequate mental health treatment that could ameliorate this risk (at [130] and [135]).
6. Due to the risks of the appellant undermining the children's relationship with the respondent, the Court ordered that the appellant spend only professionally supervised time with the children (at [158]). The primary judge noted that due to the costs of supervision, the appellant may spend no time with the children, however the respondent instructed his counsel that he was willing to contribute to or meet the costs of supervised time, although the respondent's willingness to meet all costs of supervised time is not reflected in the orders (at [159]).
7. It bears repeating that the appellant did not challenge the findings of the primary judge. Indeed, we observe in passing, based on all the material before us, it is difficult to perceive how such a challenge could have been successful.

1. By her Notice of Appeal, amended as indicated at [4] herein, the appellant outlines the following grounds of appeal:
   1. The primary judge erred in law, in that the exercise of discretion resulting in an outcome that was plainly wrong or unjust, having regard to:

1.1. The failure to consider the impact of parenting Orders on the children;

1.2. The ages of the children;

1.3. The severance of the children's relationship with a parent with whom they had lived as a primary carer after separation; and

1.4. The failure to consider or give adequate weight to the mitigation of risk.

1. The primary judge erred by failing to consider, or failing to give adequate consideration to:

2.1. Whether any condition would sufficiently ameliorate the risk as identified by [the primary judge]; and

2.2. Whether any other Order was available to enable the children to have the benefit of a relationship with [the appellant].

1. The appellant seeks orders for sole parental responsibility for the children, and that the children live with her and spend no time with the respondent. In the alternative, the appellant seeks that the matter be remitted to be re-heard by another judge of the Federal Circuit and Family Court of Australia (Division 1). The appellant seeks that the following orders made by the primary judge on 8 October 2025 be set aside:

Parenting

1. All previous parenting orders in relation to X and Y ("the children") be and are hereby discharged.

Parental Responsibility

1. The [respondent] have sole decision-making authority for the children for all "major long-term issues" as defined in s 4(1) of the Family Law Act 1975 (Cth).

Live With

3. The children live with the [respondent].

...

Time With The [appellant]

1. The [appellant] spend professionally supervised time with the children at C Family Service every four weeks at a time to be agreed between the parties and C Family Service for a period of two hours and failing agreement on the fourth Sunday from the date of these orders and every fourth Sunday thereafter from 10:00am until 12:00pm or otherwise the [appellant] spend time and communicate with the children as agreed between the parties in writing.

8. To facilitate the supervised service contact time:

(a) the parties do all acts and things within 14 days to enrol the children with C Family Service;

(b) the parties pay half of the intake fee each; and

(c) the parties pay in equal share the professional service fee on an ongoing basis.

...

Specific Issues

...

1. Each party inform the other of any change in residential address, mobile telephone number and email address within 48 hours of such change occurring.

2. Each party must ensure that the other is kept informed as soon as is reasonably practicable of:

(a) any medical problems or illness suffered by the children, whilst in the care of the parent;

(b) any medication that has been prescribed for the children;

(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children; and

(d) any other matters relevant to the children's welfare.

1. The [appellant] is restrained form the following pursuant to s 68B of the Family Law Act 1975 (Cth):

(a) entering or attending upon any of the third-party locations where the children may be in attendance, including but not limited to schools, daycares, extracurricular activities, and treating practitioners;

(b) attempting to collect the children from any third-party location where the children may be in attendance but not limited to schools, daycares, extracurricular activities and treating practitioners; and

(c) contacting the children through any means such as telephone, Facetime, messenger, text or email.

1. A presumption exists at law that a primary judge's decision is correct, and the onus rests on the appellant to demonstrate otherwise (Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621). The principles in an appeal against a discretionary decision are well settled. To succeed in the appeal, the appellant must establish some error in the decision-making process of the type identified in House v The King (1936) 55 CLR 499 at 504-505. It is not sufficient that the appeal Court would have come to a different decision on the same facts. The appellant must establish at least one of the following points: that the primary judge erred at law, failed to take into account some material consideration, took into account some irrelevant consideration, or that the decision was "plainly wrong" in the sense that it was not a proper exercise of discretion (CDJ v VAJ (1998) 197 CLR 172).
2. The case before the primary judge was about unacceptable risk of abuse to two children. In Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 at [85] the Full Court explained that whilst the assessment of risk is an evidence-based conclusion and is not discretionary, it is only the overall judgement, expressed in the form of orders made in the children's best interests, which entails an exercise of discretion. The appeal is against the orders made by the primary judge.
3. In the same decision the Full Court also explained at [83] and [86] that the civil standard of proof applies to the question of whether or not allegations of past abuse are proven on the balance of probabilities, but does not apply to a prospective finding about unacceptable risk, and that even if the prospect of sexual abuse is only possible, but not probable, the risk may be too high to tolerate.
4. These observations of the Full Court above continue to apply notwithstanding the recent amendments to Pt VII of the Family Law Act 1975 (Cth), with its adoption of concepts of promoting the safety of children (Barnabas & Phineus (2025) FLC 94-284 at [17]).
5. It is important for appellate judges not to be seduced by any skilfully disguised invitation by the appellant for the Court effectively to step into the shoes of the primary judge and determine for itself, based on a fresh and retrospective interpretation of the evidence, that it would come to a different decision on the same facts. This invitation misconceives the nature of the appeal. Moreover, such an invitation invites reconsideration of possibilities, not probabilities, and arguably the primary judge was best placed to consider that.
6. It is well settled that the appeal is by way of re-hearing, and the appellant must establish appealable error. The central principle was described by Flick J in Robertson v Knott Investments Pty Ltd (No 3) [2010] FCA 1074; (2010) 63 AILR 101-289 at [23] in the following terms:

...[E]rror must be demonstrated for the appellate court to be entitled to disturb the decision of the primary decision-maker ... Furthermore, the manner in which the case is conducted by the parties on appeal ought not depart from the manner in which the case was conducted at trial, and generally, the appeal arena is not the appropriate forum to raise new arguments": Tasmanian Sandstone Quarries Pty Ltd v Legalcom Pty Ltd [2010] SASCFC 6 at [34] per Gray J (Nyland and Kourakis JJ agreeing).

1. The contention of error of law in the exercise of discretion resulting in an outcome that was plainly wrong or unjust was made by reference to three remaining factors. These three factors are: impact of the orders upon the children; age of the children; and mitigation of risk.
2. The primary judge was plainly aware of all these factors, considered them, made findings, and then assessed the risk to the children as being unacceptable.
3. The primary judge referred to, and considered, the impact of the orders on the children at [76]-[77] and [143]-[145] of the reasons.
4. The age of the children was clearly an important consideration for the primary judge and was referred to in numerous places in the reasons as identified in the appellant's SOA.
5. The primary judge was also clearly cognisant of the mitigation of risk issues (at [130]-[137]) given the context of what the appellant correctly described as the "drastic" reduction in the appellant's time with the children. The primary judge concluded, consistently with the evidence in our view, that a change of residence was required to mitigate the risks faced by the children in the care of the appellant.
6. The contention found at paragraph 45 of the appellant's SOA is that "if time was to be supervised there is no reason why that couldn't have been each alternate weekend". This was developed on the basis that the risk of the appellant imparting her views upon, and thus destabilising, the children's relationship with the respondent was similar whether supervised time occurred fortnightly or monthly. This merely reveals the true nature of the challenge to the discretionary decision of the primary judge, and the transparent attempt to convince appellate judges to substitute their own discretion despite all the disadvantages appellate judges experience.
7. There is nothing plainly wrong or unjust in the exercise of the discretion of the primary judge which led to the making of the orders appealed from. Indeed, neither could counsel for the appellant, nor we, articulate any other orders that the primary judge could reasonably have made given the findings about the appellant's mental health and her unwillingness to address the same. Even if, as counsel for the appellant hypothesised, the appellant became willing to engage with her mental health issues after the scrutiny of litigation had ended, the primary judge would have been confronted with the issues raised in Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC 94-017 at [51]-[52] and Lainhart & Ellinson [2023] FedCFamC1A 200; (2023) FLC 94-166 at [11]-[36] in circumstances where the primary judge had considered, and in our opinion on the facts of this case properly declined, to make interim orders.

1. In essence the contention in this ground is that the primary judge erred by failing to consider, or by giving inadequate consideration, to other conditions (presumably as to the children's time with the appellant) that would sufficiently ameliorate the identified risk, or any other order that would enable the children to have a relationship with the appellant.
2. It is important to understand that the findings of the primary judge as to unacceptable risk of abuse, and the need for supervision are multifaceted. The primary judge found that the appellant was an unreliable and combative witness (at [62] and [82]-[93]). These findings are not disputed. The primary judge also found that the appellant experienced poor mental health including delusional thinking in respect of which she was not medication-compliant, and where there could be no reasonable confidence that she would seek treatment and comply with recommendations (at [113]-[127]). That further finding is not disputed on appeal.
3. Correctly, we observe, at paragraph 28 of the appellant's SOA, she tacitly, if not expressly, acknowledges that the primary judge could make a finding of some risk of emotional and psychological harm to the children in her care. The contention is, however, that the identified risk did not rise to the threshold of an unacceptable risk. Neither the appellant's SOA nor the oral submissions advanced by her counsel, however, reveal any dissection or discussion elucidating from her perspective what facts resulted in a finding of acceptable risk, but not unacceptable risk, and which might have led to other conditions on her time.
4. For our part we cannot discern what other conditions on the appellant's time with the children could reasonably have been ordered given the unchallenged evidence before the primary judge.

1. The appeal fails and is dismissed. No orders for costs were sought.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Altobelli, Riethmuller & Schonell.