Myrtle & Myrtle [2026] FedCFamC1A 23 (20 February 2026)

Aslett & Coren [2025] FedCFamC1A 92

Australia Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Deodes & Deodes and Ors (2019) FLC 93-905; [2019] FamCAFC 97

Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

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

Keighley & Keighley [2023] FedCFamC1A 146

Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52

Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21

Myrtle & Myrtle [2025] FedCFamC2F 1241

Pickford and Pickford [2024] FedCFamC1A 249

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

S S Hontestroom v S S Sagaporack [1927] AC 37

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Ors (1999) 160 ALR 588; [1999] HCA 3

Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8

U v U (2002) 211 CLR 238; [2002] HCA 36

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

1. The appeal be dismissed, with no orders as to costs.

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

1. This is an appeal from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 4 September 2025 ("Orders") in relation a child born in 2015. The child is the biological child of the first respondent ("mother") but not the appellant. The second respondent, who did not participate or appear at first instance or on appeal, is the putative father of the child.
2. At the hearing of the appeal, the appellant and the mother both appeared in person. The mother did not file a Summary of Argument or a Submitting Notice. However, she informed the Court at the commencement of the hearing that, whilst she opposed the appeal, she did not otherwise seek to be heard and joined with, and relied upon, the submissions of the Independent Children's Lawyer, who was represented by counsel.
3. In summary, relevant to the appeal, the Orders provide for the mother to have sole parental responsibility for the child and to be solely responsible for making decisions about major long-term issues for the child; for the child to live with the mother; for the child to spend time with the appellant four times per year, at quarterly intervals, for a period of two hours on each occasion, to be professionally supervised for the first two years and thereafter unsupervised; for the appellant to send gifts and cards to the child on her birthday and at Christmas; and for the appellant's name to be removed from the child's birth certificate.
4. Section 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that if, in dismissing an appeal under s 26(1), the Federal Circuit and Family Court of Australia (Division 1) is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form. This is an appeal under s 26(1)(c), being from a judgment of the Federal Circuit and Family Court of Australia (Division 2).
5. For the reasons, in short form, that follow, the appeal will be dismissed.

1. The appellant and the mother commenced a relationship in or about July 2014 and they commenced cohabitation in April 2015. They were married in mid-2015. They separated under one roof in 2018 and the mother left the matrimonial home, with the child, in September 2020.
2. In December 2014, the mother discovered that she was pregnant with the child, conceived with the second respondent, who is her former partner. At that early stage, the mother was intermittently in a relationship with both the appellant and the second respondent. The child has never had a relationship with the second respondent.
3. In March 2015, the appellant was charged with a stalking offence in relation to the mother, albeit unbeknownst to her at the time. He pleaded guilty and was fined, with no conviction recorded. The mother belatedly became aware of this fact, in late 2017 / early 2018. At or about that time, the mother also became aware that the appellant had been posting messages and photos of himself on an online forum seeking casual sexual partners. Upon her confronting the appellant, he attributed his behaviour to low vitamin B12 levels, allegedly impairing his cognitive functions and making him desperate for attention. Thereafter, the appellant and the mother separated in 2018 (at which time the child was approximately three years of age). They continued to live under the same roof for another two years until September 2020 (when the child was five years of age).
4. Three years later, in 2023, the appellant instituted proceedings in the Federal Circuit and Family Court of Australia (Division 2) for parenting orders in relation to the child.
5. Orders were made, at an interlocutory stage in the proceedings, which relevantly provided for the child to live with the mother and spend professionally supervised time with the appellant.
6. The trial of the proceedings was heard over three days in February 2025. As recorded above, the primary judge made the Orders and delivered reasons for judgment ("Reasons") on 4 September 2025.

1. The gravamen of the mother's case at trial was that she was a victim of family violence by the appellant, both physically and by way of persistent coercive control, which aggravated her mental health issues, including depression and generalised anxiety.
2. The primary judge identified the central issue in the case to be whether the appellant posed an unacceptable risk of family violence to the child (Reasons at [24]).
3. In addition to the appellant and the respondent, their respective new partners gave evidence and were cross-examined, as was the Family Report writer.
4. The appellant conceded that he had perpetrated family violence on the mother in the form of stalking a decade earlier, prior to the commencement of cohabitation, but contended that his behaviour should be "understood in the context of him being frustrated by the mother's behaviour at the time and wanting to help her" (Reasons at [42]). He created a false Facebook profile and email address under a pseudonym to contact the mother and convince her to leave the second respondent.
5. The mother deposed to receiving thousands of Facebook messages and emails from the appellant under his pseudonym (albeit unbeknownst to her) from early September 2014 to November 2014, threatening the safety of her friends and family if she did not end her relationship with the second respondent, causing her significant distress and culminating in her attempting suicide.
6. Whilst he initially denied any other occurrence of family violence, as alleged by the mother, describing it as "petty, unsubstantiated, false and malicious", he subsequently admitted some history thereof, which the primary judge nevertheless described to be only "in a limited manner" (Reasons at [47]-[48]). Indeed, in his Outline of Case document at trial, he asserted that the mother was the perpetrator of family violence towards him. The primary judge recorded that, in cross-examination, he did not provide details of any specific occurrences, only that it was a very verbally abusive relationship and that passive-aggressive text messages were often exchanged between the mother and him (Reasons at [49]).
7. The primary judge said at [58]-[60] of her Reasons:
   1. In terms of assessing the [appellant's] credit, there is no dispute that on a number of occasions in the past the [appellant] was not truthful - both to the mother and also to others, including the police. This does not, of course, mean that the [appellant] has been untruthful in the evidence that he has given in these proceedings.
   2. However, the [appellant] was not frank and forthright in providing detailed information in his Affidavit material with respect to the facts and circumstances of the stalking charge. I suspect he must have known that the circumstances of the stalking charge would be a matter of some significance in these proceedings.
   3. I note that he gave great attention in his Affidavit to diminishing the mother and, despite consenting to the Protection Order in September 2023, spent considerable effort disputing the basis of the Protection Order. The [appellant] made no positive statements about the mother's parenting capacity either in the past or her ability in the future to care for the child.
8. At [164], the primary judge further said that the appellant was "less than frank and forthright in both his written and oral evidence".
9. Conversely, the primary judge said at [71] of her Reasons:

It was my assessment of the mother that when giving evidence before this Court she did the best she could. She gave evidence in a forthright and honest manner. She did her best to recall events, she was careful and measured, despite the difficult circumstances of the relationship with the [appellant].

1. In relation to the Family Report, the writer was cross-examined by counsel for the appellant, the mother and the Independent Children's Lawyer. The primary judge recorded that the Family Report writer expressed significant concerns regarding the appellant's past behaviour, particularly in relation to stalking, coercive control and manipulation within his relationship with the mother (Reasons at [76]). Whilst the appellant acknowledged his past stalking behaviours and the criminal charge, the Family Report writer opined that he appeared to downplay their seriousness, justifying them as youthful mistakes (Family Report, paragraphs 11.3 and 11.4), and that they reflected a broader pattern of coercive control (Family Report, paragraphs 11.7 and 11.8). The mother had reported various forms of control, including surveillance, financial control and restrictions on her movements, which the writer considered had a significant psychological impact on the mother. The Family Report writer also highlighted concerns about the appellant's more recent behaviour, during his supervised time with the child, which she opined to be manipulative in nature (Family Report, paragraph 11.16).
2. The Family Report writer opined that the appellant's ongoing lack of accountability for his past behaviours increased the risk of continued coercive control and that, given the impact on the mother's mental health and the potential risks posed to the child, she recommended that the child live with the mother and that the child's time with the appellant be dependent upon the Court's assessment of risk (Family Report, paragraphs 12.1 and 12.2).
3. In relation to assessment of risk, the primary judge noted that the Family Report writer opined that the appellant's insight was superficial and that his responses did not display understanding of the degree of the impact that his behaviours had on the mother (Reasons at [81]).
4. The primary judge said at [82] of her reasons:

... The Report Writer identified a number of the mother's statements as being indicia of coercion and control including surveillance, control through finances, timing of events, the severing or breaking up of existing relationships by the perpetrator, the mother's reports to her that no one believed her, that she could not leave the relationship and that it was not until the mother left the relationship that she understood how bad the emotional and psychological torment was.

1. The primary judge undertook a detailed analysis at [102]-[153] of the evidence regarding family violence, in its various forms, alleged by the mother, including the appellant's admissions thereof in cross-examination.
2. Her Honour recorded at [106]-[109]:
   1. During cross-examination, the [appellant], admitted that on some occasions when sending emails to the mother under the pseudonym, he would deliberately schedule the emails to be sent at times he knew he would be spending time with the mother to suggest that he was not the person behind sending those emails or messages. He also sent emails to himself under the pseudonym. He agreed that some of the messages were aggressive and dishonest. He agreed that he was trying to persuade the mother to end her relationship with [the second respondent]. He agreed that he was engaging in controlling behaviour, that he called the mother a "cunt", that he threatened physical violence. He stated that he sent between several hundred to a thousand text messages during a period of late August through to October. He stopped not long after the mother found out that she was pregnant and after the mother had stopped seeing [the second respondent], in around January 2015.
   2. The [appellant] agreed that he took further steps to deliberately alter the language and mannerisms used in his communication with the mother in an attempt to differentiate himself from the pseudonym. He would often attack the mother's personality and her intelligence in these messages.
   3. The mother gave evidence that the [appellant] messaged [the second respondent's] former girlfriend to elicit information regarding the nature of the mother's relationship with [the second respondent] which led to the mother being assaulted.
   4. In cross-examination the [appellant] agreed that he also sent a Facebook message to the mother's father ... The message, sent on 9 September 2014 at 2:51pm, was annexed to the mother's Affidavit. The message asserts the mother was "sleeping around", was taking drugs, was "destroying another person's life with her lies". The message ends with a suggestion that her father have a "chat with her".

1. Her Honour found that the appellant had engaged in stalking, which amounted to family violence in the form of coercive control (at [127]); verbal abuse, including threats of violence and coercion (at [134]); monitoring of the mother's movements (at [140]-[141]); controlling and coercive behaviour and attempting to manipulate the mother by deception after separation (at [149]); and posting emotionally charged statements about the mother and the child on Instagram between August 2023 and December 2024 (at [150] and [153]). In this latter regard, her Honour said (at [153]):

Such public commentary has the potential to expose the child to adult conflict, place emotional pressure on the child and compromise the child's privacy and sense of security. In my view, these posts are inappropriate public commentary on parenting proceedings and reflect poorly on the [appellant's] insight into the impact of his behaviour on the child.

1. In the circumstances, the primary judge concluded at [154]-[155]:
   1. For the reasons set out above, the Court finds that the [appellant] is a perpetrator of family violence and that the mother was the victim of that family violence. I also find that the child has, from time to time, been exposed to family violence. The family violence experienced by the mother has included severe coercive and controlling behaviour, manipulation of a serious nature and persistent verbal abuse all of which have caused her significant distress and diminished her sense of safety.
   2. The mother's evidence was that the volume, content, and tone of the stalking communications caused her to experience fear and distress and gave rise to a sense of being monitored and controlled, such that her ability to freely engage in daily activities was restricted. She further reported to the Report Writer that she reached a point of despair and had attempted to take her own life. Having regard to the snapshot of the communications annexed to her Affidavit, I accept that evidence.
2. The primary judge found (at [158]) that:

The intrusive harassment of the mother by the [appellant] extended beyond the 2014 stalking offending. The October 2020 course of conduct, involving mistruths and calculated actions, amounted to psychological mistreatment of the mother. This conduct is consistent with behaviour directed at dominance and the containment of the mother's authority.

1. The primary judge said at [159]-[161]:
   1. It is plain on the evidence that the [appellant] has previously manipulated circumstances to serve his own interests. He has been dishonest in his dealings with both police and health authorities. There is a lack of insight into the seriousness of his behaviour. There is no evidentiary basis upon which I could conclude that the [appellant's] behaviour would not be repeated in the future.
   2. What is alarming in the context of these parenting proceedings is the genesis of the [appellant's] behaviour being related to controlling the mother in her associations with the child's father. The [appellant's] evidence was that he decided to create a false pseudonym because he became "frustrated with the mother's behaviour cycle...knowing that she was seeing [the second respondent] and not myself". The fabrication by the [appellant] of the story in October 2020 again concerning the mother's association with the child's father ... was a deliberate and manipulative attempt by the [appellant] to exert control over the mother.
   3. This pattern of behaviour demonstrates a propensity to manipulate and coerce which in my view poses an ongoing risk not only to the mother's autonomy but also to the child's emotional well-being. It exposes the child to the risk of psychological harm by undermining the mother's capacity to parent free from harassment and coercive control.

1. The primary judge concluded (at [163]) that, notwithstanding the passage of time since both the appellant's stalking behaviour in 2014 and his dishonest conduct in October 2020, she was not satisfied that the lapse of time had, of itself, lessened the risk that he presented.
2. The primary judge accepted the evidence of the Family Report writer, in relation to the appellant, that:
   • he had only a superficial insight into his behaviour, including the impact thereof on the child (at [164] and [166]); and
   • his "repeated behaviour of contravening the Contact Centre service agreement, presenting the child with presents she could not keep, the letter from Santa concerning sentiments about her wishes to return home and Santa's inability to arrange, the apparent minimisation of the child's experiences create a risk of the [appellant] to perpetrate acts of coercion, control and manipulation" (at [165]).
3. The primary judge concluded (at [168]) that:

Having considered the past conduct of the [appellant] and his attitude to his past conduct, his behaviour towards the child post separation and the lack of evidence of his capacity to change, I am not satisfied that an arrangement which provides for the child to live with the [appellant] or to have extensive contact with the [appellant] would promote the safety of the child nor protect the child from being subject to family violence. I am satisfied that the [appellant's] demonstrated propensity for manipulation and dishonesty creates an unacceptable risk of psychological harm to the child.

1. In the course of the primary judge's consideration of the relevant factors in s 60CC(2) of the Family Law Act 1975 (Cth) ("Act"):
   • her Honour recorded the Family Report writer's expert opinion that it was clear the mother held significant concern in relation to the child's safety with the appellant, such that substantial unsupervised time with him would very likely impact upon her (at [180]);
   • her Honour found that the appellant did not demonstrate that he had the capacity or willingness to foster a positive relationship between the mother and the child (at [182]);
   • her Honour was not satisfied, on the evidence, that the appellant had the capacity to provide for the child's developmental, psychological and emotional needs (at [186]);
   • her Honour was not satisfied that there was a benefit to the child of maintaining a relationship with the appellant, nor that the child would be safe should she maintain a relationship with him (at [187]); and
   • her Honour was not satisfied that "extensive contact with the [appellant] would promote the safety of the child nor protect the child from being subject to family violence" (at [188]).
2. In relation to supervision of time to mitigate risk, the primary judge said (at [191]-[193]):
   1. While ordering long term supervision is far from ideal, in the circumstances of this case, it was an option which was recognised by the Report Writer as being a possibility as opposed to an order for no time.
   2. Long term supervision of contact is not in the best interests of the child. I propose to make Orders for the time the child spends with the [appellant] to be significantly abridged to limit the child's exposure to any denigration of the mother by the [appellant] and to limit the opportunity for coercion or manipulation of the child. Abridging the time that the child spends with the [appellant] will not completely dispel the risk that the [appellant] poses but it will ameliorate that risk. I propose to make an Order that the child will spend time with the [appellant] four times a year for a two-hour period. In my view this is a sufficient time regime for the child maintain [sic] some relationship with the [appellant] in a safe setting.
   3. I propose to make Orders for supervision of the child's time with the [appellant] to continue to be supervised for a period of two years and after that two-year period to suspend the requirement for supervision. The child is entering early adolescence. She is at an age where she is still quite dependent on adults for emotional regulation and protection and is vulnerable to influence or coercion. She is less equipped to establish and maintain personal boundaries. Providing for supervision for a period of time would ensure the child's well-being and to safeguard her from exposure to conflict or influence.
3. In relation to parental responsibility, including responsibility for making decisions about major long-term issues in relation to the child, the primary judge concluded (at [198]-[201]):
   1. In circumstances where the Court has found that the [appellant] has engaged in coercive and controlling violence as well as verbal abuse against the mother and in circumstances where the Court has found that the child has witnessed that family violence, any order other than one where the mother has sole decision making is likely to put the mother and the child at risk.
   2. There is no trust by the mother in the [appellant]. The [appellant's] past conduct, together with the circumstances surrounding the commencement of the relationship and his ongoing behaviours both during and following separation, demonstrate an absence of the trust and cooperation necessary for joint decision-making. To require the mother to share decision-making with the [appellant] would expose the child to ongoing conflict and instability.
   3. I accept the opinion expressed by the Report Writer that contact, and communication should be minimised between the mother and [appellant] such that it would be highly impracticable for them to have joint decision-making authority.
   4. Accordingly, it is not in the child's best interests that the [appellant] share in decision-making with the mother. An order providing for the mother to hold sole decision-making authority would mitigate the level of contact the mother and the [appellant] are required to have and would minimise the need for them to communicate thereby limiting the child's exposure to any conflict.

1. This is an appeal from a discretionary judgment. There is a strong presumption that a primary judgment is correct and free of error: Australia Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627.
2. It is well-settled that appeals from discretionary judgments must establish the type of error identified by the High Court of Australia in House v The King (1936) 55 CLR 499 at 504-505, namely:

... It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred ...

1. This passage was distilled by the Full Court in Aitken v Aitken [2023] FedCFamC1A 69; (2023) 66 Fam LR 314 at [40], as follows:

... [A]appellate intervention may be required where, in the exercise of a discretionary power, the primary judge:

• Acts upon a wrong principle;
• Allows extraneous or irrelevant matters to guide or affect the decision;
• Mistakes the facts;
• Fails to take into account some material consideration; or
• Makes a decision that, upon the facts, is unreasonable or plainly unjust.

1. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Ors [1999] HCA 3; (1999) 160 ALR 588 at [90], Kirby J said:

The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form...

(Footnotes omitted)

1. In Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178, McHugh J (with whom the plurality agreed), cited with approval S S Hontestroom v S S Sagaporack [1927] AC 37 at 47, where Lord Sumner pointed out that:

... not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrive at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.

1. In Deodes & Deodes and Ors [2019] FamCAFC 97; (2019) FLC 93-905 at [44], the Full Court stated:

That an appeal court should not interfere with findings of fact which were open on the evidence is well-established: Edwards v Noble (1971) 125 CLR 296; Gronow v Gronow (1979) 144 CLR 513. So, too, is the recognition that appellate judges are in a "permanent position of disadvantage as against the trial judge" in assessing the evidence and the credibility of witnesses: Fox v Percy [(2003) [2003] HCA 22; 214 CLR 118] at 142-143.

1. The appellant filed a Notice of Appeal on 1 October 2025, an amended Notice of Appeal on 6 October 2025 and a further amended Notice of Appeal on 21 November 2025.
2. Notwithstanding the three incarnations of his Notice of Appeal, in his Summary of Argument, which was filed together with his further amended Notice of Appeal, the appellant nevertheless purported to address further grounds or sub-grounds of appeal not properly before the Court.
3. I am cognisant that, in Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072 at [242], the Full Court said:

It should be recognised that persons who represent themselves are almost always at a disadvantage in legal proceedings. Advocacy is a professional skill that has almost always been performed by highly trained lawyers in our legal system. They not only bring those skills to bear but also professional objectivity that a litigant in person lacks, particularly in family law proceedings. It is simply not possible to create a level playing field where one party is represented by a professional and the other is not. ...

1. However, in Keighley & Keighley [2023] FedCFamC1A 146 at [68], the Full Court, referring to this passage, nevertheless said that the fact the appellant, in that appeal, was self-represented, was "no defence to the criticisms of his further amended Notice of Appeal, his written Summary of Argument or his limited oral submissions". Those observations similarly apply to this appeal. See also Aslett & Coren [2025] FedCFamC1A 92 at [41]-[42].
2. Rule 13.10(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("Rules") provides that:

The grounds of appeal and the orders sought in a Notice of Appeal may be amended without permission at any time up to and including the date fixed for filing of the summary of argument by the appellant.

1. Such amendments occurred, for the second time, when the appellant filed his further amended Notice of Appeal on 21 November 2025, together with his Summary of Argument.
2. Rule 13.23(2)(a) of the Rules provides a Summary of Argument must set out, for each ground of appeal, a statement of the arguments setting out the points of law or fact (and the authorities) relied on. It does not permit arguments addressing other grounds of appeal not in a Notice of Appeal or an amended Notice of Appeal (and certainly not without leave of the Court).
3. In circumstances where the appellant filed three versions of his Notice of Appeal, the last of which was filed with his Summary of Argument, in which summary he sought to raise further grounds or sub-grounds of appeal, which were either devoid of merit or which overlapped with existing sub-grounds, leave was refused to the appellant.
4. Accordingly, these reasons for judgment only consider the three grounds of appeal in the appellant's further amended Notice of Appeal, and the sub-grounds particularised therein, namely: denial of procedural fairness; errors of law (in the finding of unacceptable risk); and failure to give adequate reasons.

1. Grounds of appeal in relation to procedural fairness are challenges to the integrity of the administration of justice and, thus, should be dealt with first, before other grounds of appeal: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at 581, 611-612, 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]-[10].
2. The appellant contends that procedural fairness was denied to him because the primary judge:
   • relied on affidavits filed late by the mother, without leave;
   • excluded evidence which he asserts to have been critical;
   • failed to deal with asserted major contradictions in the mother's evidence -

cumulatively resulting, it is said, in an unfair trial.

1. It will be readily apparent that the third of those sub-grounds is not a denial of procedural fairness; nevertheless, it will be considered below.
2. As to the first sub-ground, namely, reliance upon affidavits filed late by the mother, trial directions required the appellant to file his trial affidavits by 28 January 2025; the mother to file her trial affidavits by 3 February 2025; and the appellant to file any reply affidavits by 10 February 2025.
3. The mother filed her trial affidavit late, on 7 February 2025, and that of her new partner, on 14 February 2025. That is not to be condoned. However, the appellant, in turn, filed late a reply affidavit on 12 February 2025, in which he replied to the mother's late-filed trial affidavit. He can hardly be heard to complain.
4. The mother filed her Case Outline on 14 February 2025, in which she listed reliance upon the late-filed affidavits of her partner and herself. The appellant, who was represented by counsel, was therefore on notice, and unsurprisingly so.
5. The trial commenced on 17 February 2025. No objection taken by counsel to the mother's late-filed affidavits. Further, in respect of the affidavit of the mother's new partner, filed after the appellant's reply affidavit, counsel did not seek leave to adduce any oral evidence in chief or to rely upon a further affidavit or proof of evidence in reply to that evidence.
6. There is no merit to the appellant's first sub-ground of appeal.
7. As to the second sub-ground, namely, exclusion of evidence the appellant asserts to have been critical, he was the applicant at trial. In the course of cross-examination of the mother, who was the respondent then (and now), his counsel sought to tender an email purportedly sent by the mother to the police, and copied to him, in 2015, in order to contradict her evidence that she only became aware of his stalking in 2017 / 2018.
8. The email was not tendered through him, in which case he could have been cross-examined on it. It was only put to the mother by his counsel in cross-examination. She disavowed authorship of the email. She said three times that she did not recognise the document and had not seen it before, notwithstanding that it purported to have been sent from her email address. Further, she said that she did not believe she was the author thereof. See Consolidated Transcript 18 February 2025 p.122, lines 1-18.
9. The email had purportedly been copied to the appellant. It was self-evidently in his possession and that of his counsel. It was not tendered through him, in the course of his case.
10. In refusing the tender, the primary judge said (at Consolidated Transcript 18 February 2025 p.123, lines 43-45):

This witness has disavowed the document, she says she has never seen it before. She says that she never sent it.

1. Further, her Honour said (at Consolidated Transcript 18 February 2025 p.125, lines 1-4):

I will disallow it. I can't see that it sits at all [sic], this witness has disavowed it. It could have gone on in evidence before, and there could have been proper investigation of the source of that document. Your bloke [sic] could have been cross-examined about it, he can't now. It's too late in the day, I won't allow it.

1. In the circumstances, the primary judge's refusal to accept the tender of the email was not a denial of procedural fairness to the appellant. It must also be viewed in the context of the appellant's undisputed creation of a false Facebook profile and an email address under a pseudonym to contact the mother; his admissions in relation thereto; and the primary judge's findings as to his credit. Further, other than in relation to the mother's credit, it was the fact that the stalking occurred, rather than when she became aware of that fact, that was of relevance and significance.
2. There is no merit to the appellant's second sub-ground of appeal.
3. As to the third sub-ground, as referred to above, albeit incorrectly listed under the rubric of an asserted denial of procedural fairness, the appellant's further amended Notice of Appeal contends that the primary judge failed to deal with asserted "major contradictions" in the mother's evidence, explained in his Summary of Argument to be an assertion that her Honour failed to "properly weigh" such contradictions. That has nothing to do with procedural fairness.
4. In Gronow & Gronow (1979) 144 CLR 513 at 519-520, Stephen J said:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. ...

1. The weight or importance given to evidence is a matter quintessentially for a primary judge, unless an appellant can show that the primary judge was "plainly wrong". See CDJ v VAJ (1998) 197 CLR 172 at 230-231 per Kirby J. See also Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 at 614, per Gibbs CJ, citing with approval the statement of Latham CJ in Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519.
2. The appellant's Summary of Argument narrows the scope of those asserted contradictions to when the mother became aware of his stalking and whether it predated 2017 / 2018. However, notwithstanding that a few inconclusive documents to which the appellant points may have suggested that the mother became aware of his stalking earlier than she said in her affidavit and oral evidence, her evidence was unshaken in cross-examination and accepted by the primary judge, who found her to be a credit-worthy witness. Further, as observed above, it was the fact that the stalking occurred, rather than when the mother became aware of that fact, that was of relevance.
3. There is no merit to the appellant's third sub-ground of appeal, certainly not as a denial of procedural fairness, but also not otherwise.
4. In the circumstances, the appellant's first ground of appeal, contending a denial of procedural fairness, fails.

1. By this ground, the appellant contends that the primary judge erred in law in making her finding of unacceptable risk because the primary judge:
   • relied on "speculative impressions from the Family Report instead of actual facts"; and
   • failed to consider the contact supervision reports which, he asserts, evidenced "safe, positive parenting",

such that the finding of unacceptable risk was not open. Further, the appellant contends that her Honour did not consider mitigation options to her.

1. In his Summary of Argument, the appellant submits, inter alia, that the primary judge did not identify any conduct by him that created a "present or future risk to the child".
2. This ground of appeal is misconceived and can be dealt with in short compass.
3. In concluding that unsupervised time with the appellant posed an unacceptable risk to the child, it is manifest from her Reasons that the primary judge carefully considered the totality of the evidence. That included the unshaken evidence of the mother and expert evidence of the Family Report writer, both of which her Honour substantially accepted, as was well open to her to do, together with the admissions and concessions made by the appellant.
4. The primary judge was cognisant of the need to protect the child from family violence in the future, referring at [167] to Pickford and Pickford [2024] FedCFamC1A 249 at [8]-[12] per McClelland DCJ.
5. Her Honour acknowledged (at [95]) that the "issues of family violence and risk are two separate questions" and that it "is important that they are not conflated", referring to Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 at [83]. In that case, the Full Court further said at [85]-[86]:

85. The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton [2019] FamCAFC 198; (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children's best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.

86. We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of "unacceptable risk" cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.

(Emphasis in original)

1. Contrary to the appellant's Summary of Argument, and as referred to above, the primary judge clearly identified conduct by him that created a present and future risk to the child, which her Honour considered to be unacceptable. Her Honour then proceeded to consider how that risk could be managed or mitigated.
2. The primary judge found, on the totality of the evidence (which included that of the contact supervision centre), that, inter alia:
   • the appellant was a perpetrator of family violence and that the mother was a victim thereof (at 154]);
   • the child had, from time to time, been exposed thereto (at [154]);
   • the family violence experienced by the mother included severe coercive and controlling behaviour, manipulation of a serious nature, and persistent verbal abuse, all of which had caused her significant distress and diminished her sense of safety (at [154]);
   • the volume, content, and tone of the stalking communications caused the mother to experience fear and distress, and gave rise to a sense of being monitored and controlled, such that her ability to freely engage in daily activities was restricted (at [155]);
   • the mother had reached a point of despair and had attempted to take her own life (at [155]);
   • the appellant had a quick temper, would swear, call the mother names, say that she was not a fit mother because she had mental health issues and threaten her, using the child as a weapon (at [156]);
   • the appellant's intrusive harassment of the mother extended beyond the 2014 stalking offending and included a course of conduct in October 2020, involving mistruths and calculated actions on the part of the appellant which amounted to psychological mistreatment of the mother and was consistent with behaviour directed at dominance and the containment of the mother's authority (at [158]);
   • the appellant had previously manipulated circumstances to serve his own interests and had been dishonest in his dealings with both police and health authorities (at [159]);
   • the appellant lacked insight into the seriousness of his behaviour and there was no evidentiary basis upon which her Honour could conclude that his behaviour would not be repeated in the future (at [159]);
   • the genesis of the appellant's behaviour, which was related to controlling the mother in her associations with the second respondent, the child's biological father, was "alarming" and continued until October 2020, at or about the time of physical separation (at [160]);
   • this pattern of behaviour demonstrated a propensity to manipulate and coerce, which posed an "ongoing risk", not only to the mother's autonomy, but also to the child's emotional well-being, exposing the child to the risk of psychological harm by undermining the mother's capacity to parent free from harassment and coercive control (at [161]);
   • notwithstanding that the stalking behaviour had occurred 10 years earlier and that the dishonest conduct had occurred some five years earlier, her Honour was not satisfied, on the evidence, including that of the Family Report writer, that the lapse of time had, of itself, lessened the risk that the appellant presented (at [163]);
   • whilst her Honour accepted the evidence in relation to the observations of the supervised time between the child and the appellant in 2023-2024, his repeated behaviour of contravening the contact centre's service agreement, presenting the child with presents she could not keep and a letter from Santa Claus concerning sentiments about her wishes to return home and the inability of Santa Claus to arrange same, created a risk of the appellant perpetrating acts of coercion, control and manipulation (at [165]);
   • as recently as in the period between August 2023-December 2024 (with the trial being listed two months later, in February 2025), the appellant's Instagram posts constituted inappropriate public commentary on the parenting proceedings and reflected poorly on his insight into the impact of his behaviour on the child (at [166]);
   • having considered the past conduct of the appellant and his attitude thereto, his behaviour towards the child post separation and the lack of evidence of his capacity to change, her Honour was not satisfied that an arrangement which provided for the child to have extensive contact with him would promote the safety of the child or protect her from being subject to family violence (at [168] and [188]); and
   • her Honour was satisfied that the appellant's demonstrated propensity for manipulation and dishonesty created an unacceptable risk of psychological harm to the child (at [168]).
3. So parsed, it is manifest that the primary judge considered the issues of family violence and risk as two separate questions, without conflation.
4. In relation to the mitigation of that established risk of family violence, her Honour found that orders for the child to spend significantly abridged supervised time with the appellant would limit the child's exposure to any denigration of the mother by the appellant and limit the opportunity for coercion or manipulation of the child. Further, whilst such orders would not completely dispel the risk posed by the appellant, they would ameliorate that risk. (See Reasons at [192].)
5. Her Honour acknowledged (at [191]) that ordering long term supervision was far from ideal, but that it was an option which was recognised by the Family Report writer as being a possibility, as opposed to an order for no time.
6. In ordering that the child's time with the appellant be supervised for a period of two years, and then proceed unsupervised, her Honour said at [193]-[194]:
   1. ... The child is entering early adolescence. She is at an age where she is still quite dependent on adults for emotional regulation and protection and is vulnerable to influence or coercion. She is less equipped to establish and maintain personal boundaries. Providing for supervision for a period of time would ensure the child's well-being and to safeguard her from exposure to conflict or influence.
   2. As she grows older, I consider that the child's growing maturity may assist her in managing more independence, she may have a stronger sense of self and greater resilience and ability to articulate her wishes and discomforts. I expect that she would be more resilient to inappropriate behaviour and less susceptible to influence. As such the supervision will cease after a period of two years.
7. In circumstances where the primary judge made findings, which were entirely open to her on the evidence, of family violence and of an unacceptable risk thereof, and considered and determined how to mitigate that risk, there is no merit to the second ground of appeal and it fails.

1. In addition to contending that the primary judge's "reasoning was not explained, preventing meaningful appellate review" and that the Orders made by her Honour "departed from all parties' positions without explanation", the appellant misconceivedly also contends, under this rubric, that her Honour further:
   • did not follow the statutory pathway under s 60CC of the Act; and
   • ignored key evidence, namely, supervision records and "documentary contradictions".
2. As to the asserted failure to give reasons, in Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 at 18:

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:--

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b) justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

1. In AMS v AIF (1999) 199 CLR 160 at [150], Kirby J said that-

... an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. ...

(Emphasis added)

(Footnote omitted)

1. In Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62], the plurality (Gleeson CJ, McHugh and Gummow JJ) said:

... A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.

1. The primary judge's Reasons have been considered extensively above and they are pellucid. As will be apparent, they manifestly disclose the gravamen of the decision, namely, why her Honour made findings, which were well open to her, of family violence and unacceptable risk and how her Honour considered such risk might best be mitigated. Nothing further need, or can, be said in this regard.
2. Insofar as the appellant contends that the primary judge "departed from all parties' positions without explanation", the appellant relevantly sought an increase in time with the child, unsupervised, leading to week-about time and holiday time. The mother relevantly sought that the child spend no time with the appellant and spend time with second respondent by agreement.
3. A judge is not bound by the proposals of the parties. In U v U [2002] HCA 36; (2002) 211 CLR 238 at [80], Gummow and Callinan JJ said, referring to Part VII of the Act as it then stood:

We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. ... But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.

1. Rather, the proposals of parties to parenting proceedings define the parameters of the issue, within which the outcome is not binary. Metaphorically, the appellant's and the mother's proposals are the proverbial goal posts at the opposite extremities of the football field within which the match between them takes place; where the ball lands within that field, and whether a goal or a point is scored, is unknown by them, but, to be considered, the ball must not land out of bounds.
2. In this case, the primary judge ordered neither that no time be spent between the appellant and the child, as the mother sought, nor that the appellant spend unsupervised time with the child, equally with the mother, as he sought. Rather, to adopt the metaphor in the preceding paragraph, the ball landed within the field bounded by the goal posts constituted by the parties' respective proposals. It was a result that was "on the cards". Accordingly, there is no merit to the appellant's complaint in this regard.
3. Insofar as the appellant contends that the primary judge did not follow the statutory pathway under s 60CC of the Act, her Honour referred to the relevant statutory provisions at [85]-[93] of her Reasons.
4. At [100]-[168] of her Reasons, the primary judge considered and made findings regarding the matters required by s 60CC(2)(a) and, related thereto, by s 60CC(2A), namely:
   • what arrangements would promote the safety (including safety from being subjected to or exposed to family violence, abuse, neglect or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child);
   • any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
   • any family violence order that applies or has applied to the child or a member of the child's family
5. At [169]-[174] of her Reasons, the primary judge considered and made findings regarding the matters required by s 60CC(2)(b), namely, any views expressed by the child.
6. At [175]-[178] of her Reasons, the primary judge considered and made findings regarding the matters required by s 60CC(2)(c), namely, the developmental, psychological, emotional and cultural needs of the child.
7. At [179]-[186] of her Reasons, the primary judge considered and made findings regarding the matters required by s 60CC(2)(d), namely, the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs.
8. At [187]-[194] of her Reasons, the primary judge considered and made findings regarding the matters required by s 60CC(2)(e), namely, the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so.
9. At [195] of her Reasons, the primary judge referred to s 60CC(2)(f) and said that all relevant matters had been considered.
10. It is manifest that the primary judge followed the legislative pathway and the appellant's suggestion to the contrary is entirely devoid of merit.
11. Insofar as the appellant contends that the primary judge ignored key evidence, namely, supervision records and asserted "documentary contradictions", these complaints have been considered and addressed above and found to be without merit. They are not improved by repetition.
12. The third ground of appeal fails.

1. The appeal will be dismissed, with no orders as to costs, in circumstances where the appellant and the mother were self-represented and no such order was sought by the ICL.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.