Independent Children's Lawyer & Holgersen [2025] FedCFamC1A 131 (24 July 2025)

Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

P v Q (No 2) (2023) 67 Fam LR 399; [2023] WASCA 163

Panayotides & Panayotides (1997) FLC 92-733; [1996] FamCA 135

Queensland & Ors v Mr Stradford (2025) 99 ALJR 396; [2025] HCA 3

R v Cook; Ex parte Twigg (1980) 147 CLR 15; [1980] HCA 36

Teo & Guan (2015) FLC 93-653; [2015] FamCAFC 94

1. Leave to appeal from the orders made on 8 May 2025 is refused and the Amended Notice of Appeal filed on 18 June 2025 is dismissed.
2. The Notice of Contention filed on 9 June 2025 is dismissed.

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 Independent Children's Lawyer & Holgersen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This proposed appeal concerns the limits of the power vested in a Court exercising federal jurisdiction under Pt VII of the Family Law Act 1975 (Cth) ("the Act") to make an injunction restraining a party to the parenting cause from taking interlocutory steps in extraneous family violence litigation conducted before another court exercising State jurisdiction.

1. Proceedings between the parties in respect of their two children under Pt VII of the Act were commenced in 2021 ("the parenting cause"), which are now listed for trial in January 2026.
2. In early November 2024, while the children were spending time with the father, the elder child made allegations of her assault by the mother's new partner ("Mr B"), so the father reported her allegations to the police for investigation.
3. The elder child was interviewed by police on 6 December 2024, whom she told "everything is fine now" and that she did not wish to be interviewed. The police ultimately decided on 13 December 2024 that there was insufficient evidence to charge Mr B with any offence and so the investigation was terminated on 14 December 2024.
4. On 11 December 2024, just before the police investigation was completed, the father began extraneous litigation ("the family violence proceedings") by an application filed in the Magistrates Court of Western Australia seeking a family violence order against Mr B on behalf of the elder child under the provisions of the Restraining Order Act 1997 (WA) ("the State Act"). The father made the application on behalf of the elder child and applied for the family violence order to include the younger child as a protected person.
5. The application was first entertained by the Court on 19 December 2024, at which time Mr B was not present. The magistrate was satisfied the father's evidence fulfilled the statutory requirements and so an interim family violence order was made against Mr B for the protection of the children under the State Act.
6. In due course, the father's application to convert the interim family violence order to a final order in favour of the children against Mr B was adjourned for hearing in June 2025. Within the family violence proceedings, the father applied to the Court for an interlocutory order compelling the mother to make the elder child available to give evidence at the hearing of the final application in June 2025, which application was adjourned to May 2025 for hearing. The Court was empowered, but not obliged, to make such an order pursuant to s 53A of the State Act. The results of both the father's interlocutory application in May 2025 and the final hearing in June 2025 remain unknown in these appellate proceedings.
7. The mother did not want the elder child to be made a compellable witness in the family violence proceedings against Mr B, whose defence of the family violence application she supported. However, instead of simply letting Mr B oppose the father's interlocutory application within the family violence proceedings, the mother made her own interlocutory application within the parenting cause for an injunction to restrain the father from pursuing his interlocutory application in the family violence proceedings.
8. The magistrate entertained and dismissed the mother's application for the injunction against the father, despite the Independent Children's Lawyer ("the ICL") positively supporting it and the father acceding to it (at [37]).
9. The case was posited to the magistrate by the mother and the ICL as being an application for an "anti-suit injunction" (at [16]-[17]) but, since the parties to, and the issues in, the two sets of proceedings were different, the magistrate found there was no power to make an anti-suit injunction (at [21], [24]-[27] and [36]). The magistrate also rejected the proposition that s 68B of the Act was an alternate source of power to make the injunction (at [28]-[30] and [36]). The application was therefore dismissed on 8 May 2025, which dismissal occurred the day before the father's interlocutory application was due to be heard in the family violence proceedings.
10. Supposing the magistrate's decision to have been correct, neither the ICL's consent nor the father's acquiescence to the mother's dismissed application made any difference, as no Court can be consensually invested with power to grant remedies it does not have (Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 133; R v Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15 at 32).
11. Despite it being the mother's application which was dismissed, the decision was appealed by the ICL. The mother filed a submitting notice, but the father filed a Notice of Contention, now asserting the decision was correct.

1. The issue of standing to bring the appeal must first be addressed. The hearing proceeded on the premise that the ICL had standing to bring the appeal proceedings because of his status as the children's representative in the parenting proceedings. The elder child's interests were affected by the dismissal order (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 411 ALR 615 at [75]-[76]; Panayotides & Panayotides [1996] FamCA 135; (1997) FLC 92-733 at 83-888).
2. The ICL needs leave to appeal from the dismissal order. The decision under challenge is interlocutory in nature and was not made "in relation to a child welfare matter", because it does not pertain to the children's residence, the time they spend or communicate with someone, or the conferral of parental responsibility for them (regs 4.02(1)(a) and 4.02(2) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)). Hence, the subject order is a "prescribed judgment" from which leave to appeal is required (s 26(1)(f)(i) and s 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
3. The grant of leave ordinarily requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]-[57]). The ICL could not satisfy either limb of the test.
4. The solitary ground of appeal contends the magistrate erred by finding no power existed to grant the injunction sought by the mother and the ICL, but the proposition advanced by the ground is misconceived.
5. Putting aside any reservations about the limitation of the powers enjoyed by so-called "inferior" courts (Queensland & Ors v Mr Stradford [2025] HCA 3; (2025) 99 ALJR 396 at [2], [59], [67] and [240]-[242]; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16-17), it may be accepted for present purposes the magistrate had power to grant an anti-suit injunction, but only if the conditions for such relief were fulfilled (CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 389-394; P v Q (No 2) [2023] WASCA 163; (2023) 67 Fam LR 399 at [41]; Cole & Abati [2016] FamCAFC 78; (2016) FLC 93-705 at [34]-[37] and [63]-[67]; Teo & Guan [2015] FamCAFC 94; (2015) FLC 93-653 at [47]-[68], [86]-[100] and [105]). They were not fulfilled in this instance.
6. First and foremost, the mother was not seeking an injunction to restrain the father from prosecuting the extraneous family violence proceedings. Quite the contrary. She expected him to press ahead with his family violence application against Mr B. She was only seeking an order to restrain the father from taking an interlocutory step within those proceedings, in which case she was not seeking an injunction to restrain the prosecution of the other "suit" at all.
7. Secondly, even if her application had truly been for an anti-suit injunction, the family violence proceedings were not a "suit" the father needed to be restrained from pursuing because it did not impermissibly compete with the parenting cause. The parties to the two suits were different. The father and mother are parties to the parenting cause, whereas the father (as the elder child's representative) and Mr B were parties to the family violence proceedings. The legal and factual issues in the two suits were also different, even though the children's welfare is generically relevant to each. The parenting cause concerns the orders needed to regulate the children's care by their parents and their association with other adults within their milieu, whereas the family violence proceedings are singularly concerned with the children's protection from the alleged violent or threatening conduct of Mr B. The family violence proceedings were not unconscionable, vexatious or oppressive in any way. The two different causes were being ordinarily litigated in the same court - the Magistrates Court of Western Australia - albeit by exercising separate federal and State jurisdictions.
8. The misconception which underpinned the application brought by the mother before the magistrate, which enjoyed the ICL's active support, is revealed by these written submissions made to her Honour:
   1. As proceedings have been initiated by the [father] in two different jurisdictions/courts, it is necessary to consider which of those jurisdictions/courts is the appropriate forum to determine issues in so far as they relate to [the elder child].

...

1. It follows that the parenting issues in the [Family Court or Magistrates Court of Western Australia] as opposed to the [family violence proceedings] are the appropriate forum to determine issues in so far as they relate to [the children].

(Mother's Written Submissions filed 28 April 2025)

1. The error is obvious. Decisions under Pt VII of the Act about the future care of the children cannot be made by the magistrate exercising State jurisdiction under the State Act and, conversely, family violence orders under the State Act cannot be made by the magistrate exercising federal jurisdiction under Pt VII of the Act. Two different causes of action seeking quite different remedies were initiated in two quite different jurisdictions.
2. The Act and the State Act set up complementary federal and State jurisdictions and, to the extent there is an overlap of power to make family violence orders, the Act expressly provides it does not impinge upon the concurrent operation of State law (s 114AB).
3. It is unlikely any contradictory orders will be made in the two separate proceedings but, to the extent the mother perceives any State family violence order which either has been or might be made against Mr B will clash with a parenting order she seeks enabling the children to have some form of interaction with him, the terms of any such State family violence order must yield to the terms of the parenting orders subsequently made in the children's best interests pursuant to Pt VII of the Act (s 68Q).
4. Both the Act (ss 68L, 68LA and 100B) and the State Act (s 53A) make express provision to shield children from personal involvement in litigation which concerns them. Both statutes set up a rebuttable presumption against children being called as witnesses, which presumption is replicated in counterpart provisions of some other States' legislation governing family violence orders (s 41(4) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); s 49(1) of the Personal Safety Intervention Orders Act 2010 (Vic); s 148 of the Domestic and Family Violence Protection Act 2012 (Qld)).
5. Within the parenting cause, the ICL represents the children's interests and neither parent has made an application under s 100B of the Act to call the children as witnesses. However, in the family violence proceedings, the father was freely able to apply for permission to call the elder child as a witness and Mr B was freely able to oppose it, assisted by the presumption embedded in the State Act which militated against the grant of the father's application.
6. By the application the mother brought within the parenting cause, seeking an injunction restraining the father from conducting the family violence proceedings as he sees fit, she was improperly attempting to influence the orderly progress and disposition of ancillary proceedings to which she was neither a party nor in which she had any legal interest. It was not for the magistrate in the parenting cause to fetter the discretion enjoyed by the other magistrate in the family violence proceedings under s 53A of the State Act.
7. It was alternatively posited by the mother and the ICL that s 68B of the Act was a source of power to make the injunction on two alternate bases: either because the provision empowers injunctions to be made within Pt VII proceedings when deemed appropriate for the "welfare of the child", defined to include the "personal protection" of a child (s 68B(1)(a)), or alternatively, because in proceedings under the Act other than those conducted under Pt VII, it would be "just or convenient" to grant the injunction in relation to a child (s 68B(2)).
8. Section 68B(2) had no application because the proceedings pending before the magistrate were a parenting cause conducted under Pt VII of the Act. Therefore, only s 68B(1)(a) of the Act could conceivably have empowered the injunction sought.
9. But to construe s 68B(1) so broadly as to permit the injunction for which the mother applied would impinge upon, and artificially restrict, the full remit of s 100B, as it expressly allows the Court to compel children to give evidence in parenting causes if justified, though the justification for such an exceptional order would rarely exist. Section 68B(1) cannot logically circumscribe the operation of s 100B of the Act in that way.
10. Section 68B(1) of the Act is only intended to empower the making of family violence orders of the sort made under the auspices of the State Act - restraining one person from assaulting, molesting, or threatening a child or another person associated with the child - provided no such family violence order has already been made by a State court (s 114AB of the Act). It saves the parties from having to separately initiate State proceedings for a restraining order when federal proceedings under Pt VII of the Act are already afoot.
11. The magistrate correctly found there was no scope to make the injunction sought against the father on any of the premises advanced by the mother and the ICL.
12. Even if the magistrate's decision had been infected by some error, no hardship is experienced by the children (whom the ICL represents) if the magistrate's decision stands, because Mr B was able to separately argue for the dismissal of the father's application for permission to call the elder child as a witness in the family violence proceedings.

1. Leave to appeal should be refused.
2. The father did not seek costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.