Aveskamp & Nosek [2025] FedCFamC1F 867 (26 November 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

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

1. I have before me what I intend to treat as an oral application by Counsel for the respondent, seeking leave to amend the father's Response to seek orders in terms of the document entitled, "Orders sought on behalf of the father" on which I have written, this morning, the words, "Provided by Counsel for the father" and inserted the date 26 November 2025.
2. Reference to that document establishes that the change sought to be made to the father's proposed orders is to, in essence, provide for ongoing supervision of the children's time with their mother - as opposed to a process by which, after the expiration of a three month moratorium and the provision of specified documents and information, the removal of supervision over the children's time with the mother would occur at the expiration of 17 months from the date on which the order finalising these proceedings is made.
3. So, in a sense, the difference is to continue, by way of long term supervision, that which was previously proposed to occur for a period of 17 months. It is to seek the provision of the continuation of supervision which could, on the orders currently sought by the respondent, have continued if the mother had failed to have complied with those preconditions set out - which included, for example, that time for a three month period be supervised by a suitably qualified psychologist.
4. The application to amend the orders sought by the father is opposed by the mother. Counsel, who appeared on her behalf, submitted, in essence, that:

(a) it would be unfair to permit this course given that aspects of the orders sought to be advanced on behalf of the father, if leave is granted to amend the Response, are very different such that contentions would now need to be put to him when he is called to give evidence and raised with other witnesses, including the author of the two Family Reports made available for the Court's assistance in the proceedings; and

(b) it was unfair to the mother to permit such a change at the time in the proceedings in which it occurs; and

(c) it is not proper; and

(d) prejudice is accorded to the mother's case because there would be an impost on Counsel in terms of the cross-examination to be undertaken of the father and those witnesses yet to be called.

1. I do not intend, in these Reasons, to give reasons that relate to the father's proposal to seek orders to be released from the constraints imposed by the Harman undertaking other than to say, as I have already expressed, that I am not persuaded that permitting the father to now seek orders as set out in Orders 30, 31 and 32 of the document provided by Mr Bunning on behalf of the father this morning causes any prejudice. I also note Mr Bunning's submission that the issue in relation to relief from the constraints imposed by the Harman undertaking have been a matter in issue as between the parties following the filing of an Application in a Proceeding on 21 February of this year and that this Application has yet to be dealt with.
2. As I have already made very clear in my discourse with Ms Black, who appears on behalf of the mother, I am not concerned about that aspect of the relief.
3. Mr Taylor, who appears for the Independent Children's Lawyer, does not oppose the grant of leave to the father to amend the orders formally sought.
4. In support of the Application, Mr Bunning, who appears for the father, submitted, in essence, that it is not uncommon for parties in this jurisdiction to seek to amend the orders they seek following the giving of aspects of the evidence. He submitted, in essence, that the father's position was always to seek the imposition of supervision over the children's time with the mother, albeit for the period to which I have already referred: namely, 17 months. Mr Bunning submitted that, given the place - if I can use that term - we have reached in this proceeding, it is entirely procedurally fair for the father, if his position has changed, to bring that to the Court's attention as soon as that position has changed. He noted that the father is yet to be cross-examined and submitted, I think quite properly, that, if the father's position had changed and he had sought leave to amend the Response following his cross-examination, that course would, in essence, absent the requirement for the father to be recalled, deprive the mother's legal representatives and the Independent Children's Lawyer of the opportunity to take up with the father the change of position and matters associated with it.
5. I am persuaded that it is appropriate and that the interests of justice support the grant of leave to the father to amend the Response to seek the relief set out in the document provided by Mr Bunning this morning.
6. I note that, at this point in the trial, the father is yet to be cross-examined. Further, the author of the two Family Reports is yet to be cross-examined. Therefore, the change in the orders sought by the father can be taken up with him during the course of cross-examination in the way that is thought appropriate by those who appear on behalf of the mother and the Independent Children's Lawyer. His change of position can also be the subject of questions asked of the author of the Family Report - again, in the manner and to the extent thought appropriate by those who appear on behalf of the mother and the Independent Children's Lawyer.
7. I am not persuaded that seeking the leave that has been sought at the time that it has been sought is procedurally unfair vis-à-vis the mother. I am not persuaded that it is improper.
8. I accept the submission that, once the father's position was conveyed to his legal representatives, it is proper that such change of position be brought to the attention of the mother and the Independent Children's Lawyer; and also, in the manner advanced, albeit by way of oral application to amend, to the knowledge of the Court, so that I am in a position, ultimately, to determine those orders which are in these children's best interests.
9. In arriving at the decision to accord the father leave, I also take into account the submissions made by Counsel for the Independent Children's Lawyer to the effect that, as well-known authority makes clear:

(a) this Court is not bound, in the orders it makes, by the proposals advanced on behalf of parents or on behalf of the Independent Children's Lawyer; and

(b) subject to the requirement to afford, to the parties who appear before it, procedural fairness, by way of knowing that the Court is contemplating an order of a particular type, it may, in the exercise of discretion, make those orders which it considers proper.

1. For those reasons, I grant, to the father, leave to amend the Response in the manner sought, such that the orders sought on his behalf are those orders set out in the document provided by his Counsel and to which I have already referred.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan.