Blanc & Sarno [2026] FedCFamC1A 22 (18 February 2026)

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Mawhinney v Australian Securities and Investments Commission and Ors (2022) 405 ALR 292; [2022] FCAFC 159

Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

1. The appeal is dismissed.
2. The appellant shall pay the respondent's party/party costs of and incidental to the appeal, fixed in the sum of $3,994, payment of which falls due six months from the date of these orders.

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 the pseudonym Blanc & Sarno has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This appeal lies from final parenting orders made between the parties in respect of their only child under Pt VII of the Family Law Act 1975 (Cth) ("the Act") on 11 September 2025 and is dismissed for the following reasons.

1. The child was born in 2020 and was an infant when the parties' relationship ended in January 2021. The child has always since lived with the mother.
2. In early 2021, the State child welfare agency engaged with the family and facilitated the child spending some time with the father on a few occasions in March 2021.
3. Between March 2022 and April 2023, pursuant to a parenting plan struck by the parties, the child spent time with the father once each week for a few hours at a public location, with the mother to be in "substantial attendance" (the meaning of which is elusive and is hence a futile condition). That arrangement came to an end after an argument between the parties.
4. The father then commenced proceedings in June 2023.
5. In September 2023, interim orders were made providing for the child to spend time with the father once each week for a few hours under the supervision of a paternal family member.
6. More interim orders were made in March 2024 and August 2024, providing for the child to live with the mother and to spend supervised time with the father twice each week - on Wednesdays for a minimum of three hours, professionally supervised, and on Saturdays for five hours, supervised by the paternal grandmother.
7. After an argument between the father and the paternal grandmother in December 2024, the paternal grandmother refused to provide further supervision services and so the mother ceased compliance with the interim orders altogether.
8. In April 2025, the parties agreed to resume the child's visits with the father under professional supervision, but only on a fortnightly basis. That arrangement continued for the next two months until the trial.
9. The proceedings were heard in June 2025. At trial, it was common ground the child should live with the mother. The three salient issues were, first, whether the mother would have exclusive decision-making authority for the child, secondly, the frequency with which the child should spend time with the father, and thirdly, the conditions under which their visits would occur.
10. The mother and the Independent Children's Lawyer ("the ICL") contended for the mother to have exclusive decision-making authority for the child and for the child to spend time with the father once per month under professional supervision. The father wanted the parties to jointly make important decisions for the child, with whom he wanted to spend gradually increasing time, culminating in a regime of several nights each fortnight.
11. Judgment was pronounced in September 2025. The primary judge made orders largely reflecting those sought by the mother and the ICL. His Honour found the father posed an unacceptable risk of harm to the child, which risk could only be adequately contained by requiring her to indefinitely spend professionally supervised time with him.
12. Relevantly, the final orders provide for: the mother to have sole decision-making authority for all major long-term issues (Order 1); the child to live with the mother (Order 2); the child to spend professionally supervised time with the father for two hours each month (Orders 3-5); the parties' to communicate through a designated App (Order 6); the mother to provide the father with information about the child (Orders 7-8); the father's provision of occasional gifts to the child (Order 9); certain restraints upon the parties (Orders 10-11); and permission for the father to acquire the child's school reports and school photographs (Order 12).
13. The father appealed from only the orders regulating his interaction with the child and the mother (Orders 3-12). The mother resisted the appeal, though the ICL was not funded to participate.

1. The father moved on his Notice of Appeal filed on 9 October 2025.
2. Although seven grounds of appeal are pleaded, the father's Summary of Argument only addresses five grounds of appeal - none of which correlate with the seven pleaded grounds. The submissions within the Summary of Argument comprise, in part, a new suite of grievances. The father confirmed his Summary of Argument was prepared by an Artificial Intelligence tool, but evidently without regard for the contents of the Notice of Appeal. As has been observed many times before, the ambit of the appeal is marked out by the grounds of appeal pleaded in the Notice of Appeal - not by the submissions adventurously advanced in a Summary of Argument.
3. The father is self-represented in the appeal, for which due allowance is made, but that does not mean he is free to disregard the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Only the grounds of appeal within the Notice of Appeal will be addressed and the indiscriminate submissions within the Summary of Argument which fall beyond the ambit of the pleaded grounds will be disregarded.

1. This ground complains of procedural unfairness in these terms:
   1. Procedural unfairness: The hearing was procedurally unfair where the father's barrister failed to cross-examine on critical allegations and refused to put instructed evidence, resulting in the father's case not being properly tested and causing a miscarriage of justice.
2. This is clearly not an allegation of the primary judge's misconduct of the trial. Rather, the complaint is confined to the supposedly poor professional performance of the father's own counsel, contended to have been so incompetent as to have caused a miscarriage of justice.
3. The ground may be prosecuted in that form (D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [82] and [197]-[200]; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Mawhinney v Australian Securities and Investments Commission and Ors [2022] FCAFC 159; (2022) 405 ALR 292), though a miscarriage of justice is difficult to substantiate. In civil proceedings like this, a complaint by an appellant about the conduct of his or her own lawyer is ordinarily a separate civil or disciplinary matter between the appellant and the lawyer (Smits v Roach (2006) 227 CLR 423 at [46]), in respect of which neither the Court nor the respondent has any interest.
4. The underlying premise of this complaint is that counsel failed to adequately test the mother in cross-examination about conflicts in the evidence, thereby rendering the trial unfair. However, it is quite unclear from the ground whether the husband's dissatisfaction with the blunt attack upon the mother over certain factual discrepancies in cross-examination lies with counsel's negligent failure or deliberate forensic choice. The dichotomy is not illuminated by the Summary of Argument. Regardless, neither grievance can be substantiated.
5. The principal factual issue in the case was the father's alleged past commission of family violence, in respect of which issue the father did not then, and still does not now, seem to understand these fundamental propositions:

(a) the definition of "family violence" is very wide (s 4AB) and captures more than just physical assaults;

(b) some parts of the mother's evidence inevitably established his commission of at least some "family violence";

(c) barristers owe ethical duties of candour to the Court which transcend the duty of fidelity owed to the client, meaning they are not mere mouthpieces and cannot blindly follow the client's instructions (rr 23, 42, 43, 61, 64, 65 and 67 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic)); and

(d) it was pointless pursuing his reciprocal allegations of family violence against the mother, in so far as it supposedly affected the child's safety, when he acknowledged she was and would remain the residential parent.

1. The father denied committing family violence (at [98]), but it was inevitable his unconditional denial would be rejected and a contrary finding made that he did commit family violence. That is because, between 2020 and 2023, a State court made several final family violence orders against him to protect the mother, one of which he was found to have breached, though he apparently received no sanction (at [90]-[94]). Any challenge to the mother during her cross-examination over the reliability of those objectively verifiable facts would have been pointless, as they could be easily proven by the tender of the State court transcript (s 102NN(3)(a) of the Act) or other official records (s 102NN(3)(b) of the Act; s 178 of the Evidence Act 1995 (Cth)).
2. The reasons for judgment show the mother was challenged in cross-examination by the father's counsel about his alternate accounts of past allegedly violent incidents, at least to some extent (at [29]-[79]). The primary judge formed the impression the father's lawyers soundly exercised professional judgment about the factual challenges posed to the mother (at [224]). As was open, his Honour accepted the mother's evidence and found the father committed family violence on numerous different occasions (at [223]).
3. The father terminated his lawyers' retainer on the third day of trial due to his dissatisfaction with their forensic performance, but that occurred after the evidence had closed and he made no application to re-open the evidence. The primary judge adjourned the trial for a week to enable the father to prepare his final submissions (at [222]-[223]), following which he did not submit to his Honour that the state of the evidence was unsatisfactory on account of his lawyers' incompetence (at [224]).
4. This ground is rejected. No miscarriage of justice is demonstrated merely by alleging it.

1. These two grounds pertain to the primary judge's findings of how the father poses an unacceptable risk of harm to the child and the mother and are pleaded as follows:
   1. Misapplication of the M v M test: The primary judge erred in law by treating disputed allegations of past parental conflict and controlling behaviour as determinative of unacceptable risk to [the child], without adequate evidentiary foundation that unsupervised time would expose [the child] to an unacceptable risk of harm (M v M (1988) 166 CLR 69).

...

1. Inadequacy of reasons: The primary judge's reasons did not adequately explain how past incidents translated into a current unacceptable risk to [the child], why indefinite supervision was proportionate, or how extreme restrictions (gifts, school, communication) were necessary. The reasons are insufficient to permit proper appellate review.

1. The grounds contend the primary judge erred in the application of legal principle and did not give adequate reasons to explain the findings, but both complaints are without merit.
2. The primary judge made multiple factual findings of how the father reacted angrily and exposed the child to his tense confrontations with both the mother and the paternal grandmother in public places, and harassed the mother more generally, which conduct amounted to his commission of family violence (at [29]-[79]).
3. The father sought to excuse his behaviour in those instances as being out of character, which the primary judge did not accept. His Honour relevantly found this:
   1. I will order that [the child] spend time with the Father an ongoing professionally supervised basis. There are "multiple risks" ([Family Consultant], Family Report, Ex CE-2, [88]) as to the Father, including family violence and his past behaviour under the existing spend time with orders because of apparently compromised parenting capacity. He has not taken real responsibility for his past behaviour or demonstrated sufficient insight into the risks it poses to [the child]. The aggregate effect of those multiple risks is that there is an unacceptable risk of emotional harm to [the child] if she spends time with the Father on an unsupervised basis. There is nonetheless a benefit to [the child] of a relationship with Father (a relationship both the Mother and the ICL support). The unacceptable risk can be satisfactorily mitigated by making orders that [the child] spend time with the Father on an ongoing professionally supervised basis.

...

1. The evidence mainly traversed incidents as to the Father's past conduct. Some of that past conduct is family violence as defined in s. 4AB of the Act. In my assessment, significant aspects of the Father's conduct was behaviour "that coerces or controls" the Mother by seeking to suborn her will to meet his needs and wants as he assumes them to be. Some of the Father's conduct - continuing since the end of the relationship - during spend time arrangements - even if it did not meet the definition of family violence - has been erratic. Because of the Father's erratic behaviour - and the lack of acceptance of responsibility for it and insight as to it - I have concluded there is an unacceptable risk for [the child] if she spends unsupervised time with the Father. There may be some debate as to whether the Father's erratic behaviour is better categorised as family violence or conduct which reflected a lack capacity to provide for [the child's] needs. The description of the conduct (which I have particularised below) and the risk it poses to [the child] is more important than whether it is categorised as family violence [s. 60CC(2)(a)] or as behaviour which reflects negatively on the Father's capacity [s. 60CC(2)(d)]. Nonetheless, there is a benefit to a relationship with her Father. The unacceptable risk of unsupervised time can be ameliorated by orders for ongoing professionally supervised time so that [the child] can have the benefit of a relationship with the Father.

...

1. ... The pattern and frequency of events where the Father snaps, freaks out or has a panic response means that I am unable to discount these incidents of loss of control as isolated or aberrant in the sense of being at odds with his usual behaviour.

...

1. It is sometimes more instructive to look at the pattern of the Father's conduct rather than the merely individual instances. In counsel for the Mother's thoughtful final submissions, he noted that as to the incident on Christmas Day 2022 the Mother in her contemporaneous report to her lawyers about the Father arriving at her home unannounced and demanding that she "agree" that [the child] spend more time with him that "he does this to me all the time". There is the pattern of the Father's conduct in losing control - the fact that on a number of occasions he has "snapped", "freaked out" or had a "panic response" - that creates a risk to [the child]. There is also the pattern of his coercive and controlling behaviour - the pattern is him trying to coerce or control the Mother by demanding answers to his questions suggesting that she is engaging in family violence and continuously pressing for more time - so that the Mother submits to his wants and needs. The continuation of this conduct creates a risk of emotional harm to the Mother.

...

1. Here, as in JG & BG, the Father does not accept any responsibility for past violence, denies it having occurred and has not taken any "measures to prevent it recurring." I conclude, as did Chisholm J in JG & BG that the violence that has occurred is a serious adverse reflection on the Father's "attitudes to the responsibilities and duties of parenthood".

...

1. The Mother was insightful in her cross examination as to her concerns about the Father having unsupervised time with [the child] because he was not "stable" ...

...

1. In any risk assessment, different considerations arise as to what it means for [the child] should the Father repeat this behaviour and whether there is "a comparatively small risk of really serious harm" or a "virtual certainty of slight harm" (Isles v Nelissen (2002) 65 Fam LR 288; [2022] FedCFamC1A 97, [50] citing Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251, [139]-[142]).

...

1. In assessing whether there is an unacceptable risk to [the child] in spending unsupervised and overnight time with the Father, because of the pattern of behaviour where the Father has snapped, freaked out or panicked, my conclusion is that there is an unacceptable risk to [the child] of her spending time with the father without the protective arrangements of professionally supervised time.

2. The Father did not put before me evidence as to what steps he had taken to address his own behaviour so as to provide a level of assurance to me - given my obligation to act protectively towards [the child] - as to how prospectively I could be assess that risk was acceptably low that he would not snap, freak out or panic in future situations in which he was with [the child] as a Father alone and unsupervised in circumstances in which [the child] is a young child and unable to act to protect herself.

3. The Father did not put evidence before me as to how orders for supervised time would promote the safety of the Mother and her protection from emotional harm.

(Emphasis added)

1. The primary judge identified the father as posing a risk of harm to the child by synthesising the factual findings with binding legal principles, against which the father failed to explain his bare submission that the primary judge fell into legal error, so the proposition is rejected.
2. In any event, his Honour importantly found the father's conduct was just as significant to the outcome of the cause whether it was considered as posing a risk to the child's safety (s 60CC(2)(a)) or as evidence of his impaired parenting capacity (s 60CC(2)(d)), so the findings were sufficiently reasoned and explained, in which event the second complaint is also rejected.
3. The father complains in his Summary of Argument of the primary judge relying upon factual allegations which were "unproven", but that complaint is rejected. Some factual allegations were found proven against the father according to the civil standard of proof and, importantly, the finding he posed a risk of harm to the children is not a finding which needs to be proven on the balance of probabilities (Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 at [1]-[7] and [50]-[55]).

1. These two grounds are pleaded as follows:
   1. Indefinite supervision order: The primary judge erred in principle by ordering indefinite professional supervision, contrary to appellate authority that such orders are a measure of last resort, and by failing to provide for review or progression.
   2. Failure to consider less restrict alternatives: The primary judge failed to consider relevant options such as supported or therapeutic contact, staged progression, or other safeguards, and instead imposed the most restrictive order.
2. Both grounds are complaints about the permanent professional supervision imposed by the orders, but his Honour well understood such orders are orders of last resort and found there was no reasonable alternative.
3. The primary judge relevantly said this:
   1. The significant number of events of family violence and erratic behaviour means that there is a high chance of the recurrence of behaviour of a similar kind that the Father has engaged in in the past, in the future.

...

1. I have considered whether there is any reason to think that past events are not a guide to the future. Because the Father lacks any insight into his past conduct, his past conduct is likely to recur. He has not taken up [the psychologist's] recommendation of psychological assistance or adopted any other measure or sought external assistance to address his behaviour. Without taking any measures to prevent the recurrence the behaviour, given the frequency of his past conduct there is no reason to think that his behaviour is likely to change.

...

1. In assessing whether there is an unacceptable risk to [the child] in spending unsupervised and overnight time with the Father, because of the pattern of behaviour where the Father has snapped, freaked out or panicked, my conclusion is that there is an unacceptable risk to [the child] of her spending time with the Father without the protective arrangements of professionally supervised time.

...

1. The Father did not put evidence before me as to how orders for unsupervised time would promote the safety of the Mother and her protection from emotional harm.

...

1. If [the child] is to spend time safely with the Father, there is no feasible option other than professionally supervised time. A parenting plan did not work. Supervision by family members has not worked. A breakdown in the in the Father's relationship both with his own Mother (the paternal grandmother) and with his brother has meant that although existing interim orders have provided for d[the child] to spend time with the Father supervised by family members the supervision of [the child's] time with the Father by family members is not an available option. The Father did not argue that I should make orders for [the child's] time spent with him to be supervised by family members.

...

1. There is case law that "orders for long-term or indefinite supervision are generally discouraged as being undesirable". Nonetheless, such orders "have never been prohibited when the only unpalatable alternative is the complete elimination of a parent from a child's life." The only satisfactory way to ameliorate the risk to [the child] of spending time with the Father and for [the child] to have the benefit of a relationship with her Father is to make an order for ongoing professionally supervised time (Lainhart & Ellinson [2023] FedCFamC1A 200, [36]).

(Emphasis in original)

1. The primary judge's conclusions about the need for professional supervision were consistent with the expert opinion evidence (at [195] and [198]).
2. The father's complaint about the indefinite nature of the supervision is misguided. The parties and the ICL sought final (not interlocutory) orders, so the litigation had to be finalised, as is usual (s 95). There was neither an application nor any justification to keep the litigation alive for some later review of the orders. If there is some material change in circumstances warranting future revision of the orders, the father may bring fresh proceedings (s 65D(2) and s 65DAAA).
3. No error of principle or reasoning is demonstrated. The grounds are rejected.

1. This ground alleges the primary judge erred by making further orders which restricted the father's communication with the mother (Orders 5(c) and 6), his ability to give the child gifts (Order 9), and his liberty to attend her school (Order 11), which restrictions were said to be "disproportionate, punitive, and unsupported by evidence".
2. To be a competent ground of appeal, this complaint can only be construed as either a contention of discretionary error (in so far as the orders are said to be disproportionate or punitive) or legal error (in so far as the orders are said to lack any evidentiary premise).
3. Both forms of complaint must fail.
4. The primary judge had to make orders to promote the child's best interests but, in contemplating the nature of orders which would do so, his Honour had to also be conscious of keeping the mother safe from harm (s 60CC(2)(a) and s 60CG(1)).
5. The order proscribing the father's communication with the mother was explained this way in the reasons for judgment:
   1. Under s. 64B(2)(e) I may make a parenting order dealing with "the communication a child is to have with another person or other persons".
   2. The Mother's counsel characterised the Father's communication as "relentless"... a characterisation with which I agree. A recurrent theme of the AppClose messages is the Father demands - and then demanded again - that the Mother answer his questions.
   3. As a result, the Mother sought to restrain the Father from initiating AppClose communications and that he "be permitted to reply once to each such query from the Mother unless he is expressly invited by the Mother to provide a further reply".
   4. I have been concerned that the terms of the Mother's proposed order - restraining the Father from initiating AppClose communications - overreached and its interpretation (as to whether or not the Mother had invited the Father's views) would risk becoming a locus for further parental dispute. The Mother has persuaded me, however, that the Father's past pattern of relentless communication warrants an order limiting the Father's messages to the Mother. A continuation of the Father's past pattern of relentless AppClose communication imposes an unreasonable burden on the Mother and the continuation of the status quo is therefore not in [the child's] best interests.

...

1. I will make orders restraining the Father from initiating any communication with the Mother via AppClose except to reply to any message (order 6(b)). I have simplified the order the Mother proposed to try and avoid its interpretation being disputed.

1. The order restraining the father's liberty to give the child gifts was explained this way in the reasons for judgment:
   1. The Mother's counsel noted (and I agree) that there was another "recurring theme' ... in the AppClose messages of the Father pressing toys on [the child] and the Mother resisting. Intertwined with this theme was the evidence that the Father offered financial support conditional on [the child] spending more time with him ...

...

1. The Mother's counsel (supported by the ICL) urged an order imposing a blanket ban on the Father giving toys and gifts to [the child]. I, however, accept [the Family Consultant's] evidence that the Father is a well-intentioned parent although unpredictable in his behaviour. I propose to temper the Mother's proposed order prohibiting the Father giving toys and gifts to [the child] with exceptions for [the child's] birthday, Easter and Christmas. I have no doubt that the Father loves [the child] and it would overreach to deprive her of gifts from the Father on those special occasions. Limiting gifts to those special occasions will, however, remove the burden of the Father's past conduct of continually pressing toys and gifts on the Mother (order 9).

1. The order restraining the father's liberty to attend the child's school was the unremarkable corollary of the determination that the child could not have any interaction with the father other than subject to supervision by a professional service provider.
2. As can therefore be seen, the orders which are the subject of challenge under this ground had an evidentiary premise and were not manifestly unreasonable.

1. This ground complains the primary judge failed to consider the child's views, which is simply false. His Honour stated in the reasons for judgment:
   1. [The child] is 4 years old and [...] months old. [The child] expressed no views which have been recorded by [the Family Consultant]. Given [the child's] very young age, I could not afford any weight to [the child's] views in any event.

1. The appeal is dismissed.
2. The concluding point made by the father in his Summary of Argument is this:

26. Absent those errors, a materially different outcome was plainly open.

1. The father's submission is misconceived. A different outcome might have been open, but that is not the test for appellate interference with a discretionary judgment, strongly presumed to be correct (Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627) and, unless the father positively demonstrates legal, factual or discretionary error (House v The King (1936) 55 CLR 499 at 504-505), the discretionary judgment stands.
2. Given the appeal was wholly unsuccessful and the mother was legally aided, she sought a costs order against the father to recoup her legal aid costs, quantified at $3,994. The father opposed the costs application on the premise of his indigence. While he has no assets of any significant value, the father is employed and earns an income of approximately $65,000 per annum. In an exercise of discretion, the father should pay the mother's party/party costs, fixed in the sum of $3,994, though he should have six months within which to pay.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.