Novotna & Magomadova [2025] FedCFamC1F 720 (7 October 2025)

1. The Mother do all acts and things and sign all necessary documents to instruct her immigration lawyers to pursue all necessary paths for the purpose of obtaining a visa to remain residing in Australia.
2. In the event that the Mother is unsuccessful in obtaining a bridging visa or any other visa which would permit to her to continue to reside in Australia then the Mother is permitted to relocate the residence of X born 2024 (hereinafter referred to as "the child") from the Commonwealth of Australia to Country B pending the final determination of these proceedings.
3. During the period that the child resides in Country B the Mother shall have sole decision-making in relation to the major long-term decisions for the child.
4. The child spend time with the Father in Country B as agreed between the parties in writing.
5. Whilst the child is residing in Country B the Mother facilitate communication by way of FaceTime, Skype or any other platform agreed by the parties between the child and the Father at times as agreed between the parties and failing agreement each Monday, Wednesday and Friday between 10 pm and 11 pm Australian Eastern Standard time.
6. Within 48 hours of the making of these Orders the parties do all acts and things and sign all documents necessary and comply with all directions of the Judicial Registrar of the Federal Circuit and Family Court of Australia for the authorising of the release of the child's passport to the mother.
7. In the event of a medical emergency in respect of the child the Mother will inform the Father as soon as practicable and authorise all medical authorities to provide information to the father as to the child's diagnosis and progress as may be requested by the Father.

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. These are settled reasons for judgment that were delivered orally on 7 October 2025. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references have been included.
2. There are competing interim parenting applications with respect to the child, X, who was born 2024. The child is referred to by both her parents as X, and that is what I will call her during these Reasons.
3. The parties are in dispute over various issues, however, the matter has come before me today because the mother is in Australia on a visitor's visa which requires her to leave Australia by [...] November 2025. Thus arises the question of what should happen for X if her mother is required to leave Australia.
4. The parties have provided me with Case Outline documents which set out the documents they are relying on, and the orders that they are seeking. The mother made some oral amendments to her application during the course of these submissions. I also have the ICL's Case Outline document. The Independent Children's Lawyer ("ICL") relies on the Child Impact Report. In addition, I have tender bundles provided by both the father and the mother's legal representative, and I have had regard to all the material.
5. Towards the end of submissions, the father raised the possibility of an adjournment which I dealt with as an oral application. He sought the adjournment so an update Child Impact Report could be obtained. His submissions about this were on the basis that since the Child Impact Report was completed, his relationship with X has developed. She is now 18 months, as opposed to 11 months as she was at the time of that assessment, and is spending significantly more time with him.
6. The application for the adjournment and update report was opposed by the ICL and the mother. The ICL made submissions that the Child Impact Report is likely to be consistent between now and what was observed in early 2025, in so much as the significant parts of that report refer to X's attachments. Her primary attachment is to her mother. That is unlikely to have changed in any significant way, given her age and what I understand about the basis of attachment. She has lived all her life primarily in the care of her mother, and she looks to her mother to meet most of her needs.
7. The father does not dispute that. His concern is the development of his relationship with X. What was clear from the Report is that she enjoys a very good relationship with both her parents. Both were attentive to her. She interacted well with them. The ICL further submitted that there would likely be a delay of some three to four months for a Child Impact Report, and the visa expiry date is [...] November 2025, in one month's time.
8. The Child Impact Report supports, in my view, the submission that if there were no issue of the mother's migration status, X would continue to spend increasing times with her father, commensurate with her age and state of development. The father was concerned that the Report relied on historical matters with respect to him, in particular, a history of family violence and other aggressive behaviour for which he has been criminally charged. He says that is not the person he is now. The report also refers to the mental health difficulties that he has had in the past. He regards these matters as having been given an unreasonable weight by the report writer.
9. Looking at the Child Impact Report as it stands, the report writer has properly identified the issues that I must have regard to under section 60CC of the Family Law Act 1975 (Cth) in determining what is in X's best interests. I also accept the submissions made by the ICL about the report adequately grappling with the issues of attachment and X's need for safety, on the material that was available to the report writer.
10. In those circumstances, an update would likely tell me that X's relationship with her father is progressing well, because that is the trajectory that has been identified in the report. I have no evidence nor submission that that is not the case. X's relationship with her father is developing well, and she is able to spend increasing periods of time, as is acknowledged by the orders in place. As I said, there is no submission that would be to the contrary of that. I therefore refuse the application for the adjournment.
11. The father then raised the possibility of a private report that may be able to occur on a faster basis. The difficulty is I have no evidence at all about what would be possible in timing, or cost. I understand, from the matters before me, that payment would likely be problematic, given what I understand of the costs of those reports and the financial difficulties otherwise in this matter, particularly as regards the mother's immigration issues. That application is refused.
12. The matters that I must have regard to in determining a parenting application is what orders are in the child's best interests, as the paramount consideration. In order to determine what is in the child's best interests, I must have regard to those matters that are set out in the legislation at section 60CC of the Act and in particular, section 60CC(2). The other important aspect of the matter that I am being asked to determine is whether there should be an order for sole decision-making. That also requires me to determine matters that are in X's best interests.
13. The first aspect of those considerations is set out at section 6CC(2)(a) of the Act:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

1. Considering that, as I have already briefly referred to, there is a history in the father's criminal record of crimes of violence, and in particular, family violence.
2. I only have before me his criminal record. I do not have the supporting COPS entries. It is clear that there have been aspects of the father's behaviour, in his background, that have caused him to come to the attention of the police and to be convicted of some crimes of violence. This has included breaches of Apprehended Violence Orders ("AVOs") in the past. The father noted that he has addressed that issue. He agreed, through consent orders, to attend a Men's Behaviour Change Program. I note that he has previously, I think in 2015, been ordered to attend an anger management program. Nothing that I have seen in the father's material tells me what happened as a result of that. I appreciate it is ten years ago, but I do not know what it is that he says he learnt from that program. I note there were other convictions post that for crimes relating to violence. The AVO in place protecting the mother certainly postdates that.
3. A Men's Behaviour Change Program has not been completed by the father. Initially the Consent Order was appealed by the father. That Appeal was subsequently abandoned. He tells me there have been issues with respect to him being able to complete that course, given that he is employed at C Business. He has a shifting roster over the opening hours of 7 am and 9 pm. The particular course referred to in the Order is Relationships Australia, which does not have an online component. I do not have any evidence directly before me about the inquiries he has made about online courses or enrolment, nor do I have any evidence of any enrolment at all. The difficulty is that is something he acknowledged was important for him to do, because it is the subject of a consent order. The father tells me that he has changed, and he is not the same person he was when the matters were dealt with through the criminal courts, that evidence being available in the mother's tender bundle. It would have been of assistance to have known that he had committed to and completed a course that directly deals with issues of family violence.
4. That is particularly relevant to the allegations that the mother makes in this matter. These are only allegations at this stage. I am not in a position to make findings. I have not heard evidence from the parties, and this is not a final hearing. What I have before me is an AVO granted for the protection of the mother. There are a series of incidents set out in the material produced by the Department of Communities and Justice in particular between November and December 2024. This was at a time the parties' relationship was deteriorating. Those matters support the concerns raised by the mother.
5. The mother describes a variety of behaviour by the father which could be characterised as being demeaning of her and her family, including threats to kill himself, extreme jealousy of her, and attempts to control her movements and behaviour. The courses, such as Men's Behaviour Change, are specifically geared to address those sorts of issues, and that is why it would have been of assistance if he had completed the course.
6. The father has provided to me, in his tender bundle, a report from his psychologist. What that tells me is that he has been consulting Ms D since April 2025, with sessions focused on supporting his mental health in the context of ongoing Family Court proceedings. The report is dated 2 June so I can infer that between April and June, he has seen Ms D on at least a number of occasions. I do not know from the report the specifics, but sessions are referred to in plural.
7. The report refers to him demonstrating resilience, and engaging in parenting education. This is supported by the other material, that he has engaged in various parenting courses, and actively implements strategies discussed in therapy. He is described as maintaining a strong child-focused approach, and speaking frequently of his daughter as a central protective factor and source of motivation. Ms D goes on to acknowledge his good insight into his mental health and utilises previously learned coping strategies. He has demonstrated self-awareness and a consistent commitment to parenting in a way that supports his daughter's emotional and developmental needs. All of these matters are very significant, and no doubt, extremely beneficial to the father and to X. The report does not address anything with respect to work on matters concerning family violence as raised by the mother, and which may have been present in previous relationships of the father's, as the police material would suggest. I do not say that critically of the report writer because I do not know what information she has been given from the report, and I do not have that in evidence from the father.
8. Whilst it is commendable that he has been regularly consulting with a psychologist, the issue of family violence does not appear to have been addressed. He submitted the allegations do not involve physical violence. As I raised with him, the concerns are not simply that. It is those matters described by the mother: demeaning behaviour, the impact on her of threats to kill himself, how he may engage in coercive or controlling behaviour which does not necessarily involve violence, and the impact of those types of behaviours on X. Although she is a very young child, she would likely be as many young children are, affected by the moods of her parents and the environment around her.
9. There will be an opportunity for the father to attend a Men's Behaviour Change Programme when the father is able to organise it. The issue of the breach of AVO was raised, and the father made clear that it was solely around telephoning the mother to advise that he had appropriately taken X to hospital after she had a breathing issue whilst in his care. The solicitor for the mother confirmed that was the sole basis of the breach. The matter has not yet been dealt with by the Local Court and will be later in October. It does not present me with a matter about which I am concerned, given the agreed facts surrounding the incident.
10. In terms of safety for X, there is the possibility of her being exposed to conflict if the father were to engage in another relationship, and matters of family violence arise within another relationship. That again would put X at risk of being exposed to conflict. The father tells me he has no intention of engaging in another relationship, rather is focusing on being a parent. In the short-term, I have no doubt what he says is correct. These are longer-term issues that need to be addressed. I hope the father does that because that is a significant for X that she sees her parents in healthy relationships.
11. In terms of the risk that the father identifies to X's safety, whilst it may not fit entirely comfortably within this section of the Act, it is around the risk of living in Country B. He raises that it is a developing country, and that he is concerned about the standard of healthcare that would be available for her. As an Australian child she would be entitled access to Medicare and to education through state schools and the like. I do not have any evidence about what would be available to her in any detail in Country B. I accept the disparity is likely to be there and may well be quite large.
12. The father has noted the complaint he has about the hospital treatment for X when she was born. He has written a letter of complaint to the hospital, which I have before me, along with the hospital's response, which may not have particularly dealt with the complaints. I appreciate his concerns about the healthcare system and I note those matters that are contained in that letter. I do so, although I also have to acknowledge because they are matters of public record, that within Australian hospitals, there have been shocking incidents for young children that have resulted in the deaths of some babies at the time of birth. And that is not historical. That is relatively recent. So, I completely appreciate the concerns that he is raising, but things do go wrong within hospital systems here, and I have no doubt, elsewhere.
13. In terms then of the next of the matters that I must consider, X is not yet of an age to express any view. It is clear, from the way she behaves towards both her parents, that they have close and loving relationships.
14. The next factor that I must consider is:

(c) the developmental, psychological, emotional and cultural needs of the child.

1. X is a child of a mix of Country B and Australian cultural heritage. Her parents are of that mix. Through each of them, she will be able to be provided with connections to her culture. I have no doubt both will promote those connections because both strike me as competent and capable parents, who would want their daughter to know all of her background and all of her history.
2. X is a child who is entirely dependent on her caregiver, given her age. That is why I have spent some little time dealing with the importance of attachment relationships for her because at her age and stage of development, that is critically important. The Child Impact Report referred to those matters and the slow approach required to appropriately manage her developing relationship with her father by increasing periods of time. The parties have commenced that, and X is observed to be settled in those arrangements by the Child Impact Report. That that speaks well for the parenting that she has been given, and given primarily by her mother. I accept that demonstrates, as the father himself acknowledged, the importance of that relationship for her development and for her emotional and psychological security.
3. The next factor is:

(d) 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.

1. In part I have touched on this already. The father made it explicit to the Court during his submissions that he values the mother's parenting capacity, that he appreciates the input she has in X's development, and how well she is developing. The trajectory that was anticipated in the Child Impact Report is clearly being maintained for X. This is no criticism of the father. It is simply the fact that the mother has had care of X for the majority of her life. For an early part it was absent the father, because he was not in the same country. No criticism of him about that.
2. The father gives evidence there have been times he has had X in his sole care. Whilst there might be dispute about some of those matters, the mother having raised the father was at times disinterested in X, what is clear is that he has taken opportunities to care for his daughter. He has done so well, which has been at least over the course of this year, and prior to that, given the observations made by the Child Impact Report writer.
3. With respect to where there are disputed facts, I am not making a finding. I simply accept, on the evidence, that the father has demonstrated a capacity to develop and maintain a close relationship with his daughter, and that no doubt he will continue to do so, given the observations made previously. On his capacity to settle X when the mother left the room during the observations, it was noted by the report writer at paragraph 11, "Mr [Magomadova] did an excellent job of soothing her, picking her up and walking with her ... distracting her with cuddles and humour". When she became tired during the observation, he was attentive to that and was able to settle her to sleep, and then, to transition her back into a pram and her mother's care. Now eight months on with reliable, consistent time having occurred, I accept that his skills are developing to manage the different needs that she has at her age.
4. In terms of the mother's capacity, a description of X as a delightful, settled child who appears to be developing normally made by the Child Impact Report writer really underpins the work that the mother has put into X. The observations make it clear the closeness of their relationship, that she is an organised parent, that she is a resilient parent. She has been able to meet X's need for routine and comfort, and that is in circumstances where she is in a country with limited support, without a capacity to earn an income because of the nature of the visa that she is on, and where circumstances for her have been undeniably difficult. Her capacity to manage in those circumstances makes it clear the parenting skills and capacity that she possesses.
5. The next factor is:

(e) 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.

1. There is no question in this matter that X benefits from the relationship she currently has with both her parents, and that it is close, that it is loving, that it is important for her, and that it is important for her that those relationships are able to continue. It is also clearly a matter where she has an established relationship now with her paternal grandparents, that she has spent significant time with them. There are people in the mother's family in Country B, as the mother has referred to, who would also form important relationships for her. I note the mother's proposal that she intends living with her mum initially on her return to Country B. Those are all people who will, no doubt, provide for X important relationships into the future. The essential difficulty is the ability of the mother to remain in Australia.
2. There is no evidence provided that would enable me to make the orders that the father seeks with respect to splitting his superannuation on an interim basis and allowing the mother access to those funds to fund her immigration application. Neither parent is close to the age where they are able to access those funds. It would require utilising hardship provisions. I have no evidence about what those might be for the relevant superannuation fund. Whether the father is able to access hardship provisions may be an option that can be explored. The father indicated he may choose to do that. He has raised this matter with the mother's solicitors and found their response unhelpful. The difficulty is they are not in a position to give the father legal advice. That is not their role, and they are, in fact, not able to do that. I also could not assume that in the one month available, that would be resolved such as would allow a visa to be granted that would permit the mother to stay in Australia past [...] November 2025. There is simply no evidence that would permit me to find that. If that were to happen, that would be the best outcome for X that could be envisaged.
3. The orders proposed by the ICL make provision for the mother pursuing, to the extent she can, all visa options. I propose making that order.
4. What this matter requires is then a weighing of the benefit and the risk to X. That is, the benefit to her of remaining in Australia with her father, the benefit to her of remaining with her mother and living in Country B, and the risks to X of each of those proposals. I accept that if she cannot live in the same country as both her parents, there will be an emotional and psychological toll on her. In terms of considering the amount of detriment, if I can describe it that way, separating X from her primary carer is likely to be overwhelming for her. She has lived the entirety of her life in her mother's primary care.
5. The potential risks for her, particularly in terms of her emotional and psychological development, of being separated from her primary carer at this stage of her life, are highly significant. The risk of being separated by her father, I do not negate. I accept that that is also a risk. But in terms of X's development, I regard the risk of being separated from a primary carer as more significant.
6. In terms of the risk of living in Country B whilst these proceedings are being determined, I accept it is not the same as Australia. She may not have access to the standard of healthcare that she would have here, for example. However, my concern is higher with respect to the emotional and psychological damage to her. In my view, that risk is significant, and such damage is often lifelong. In weighing those risks if the mother is required to return to Country B, X should travel with her.
7. Nothing in the orders that I make will disturb the current orders for time, nor the spouse maintenance order that is currently in place. In terms of decision-making, in the circumstances of the mother's imminent return to Country B an order should be made for sole decision-making. That is the only practical answer given the geography involved. I am also taking into account the allegations raised with respect to family violence, which may make it difficult for the parents to come to joint decisions with respect to matters like X's health. I have dealt, already, with the issues of family violence, which is set out at section 60CC(2)(a), under the earlier matters dealing with family violence. And I do not propose going further into those matters now. I accept the orders sought by the ICL adequately address the matters that need to be addressed.
8. These are not final proceedings, so the orders that I am making are not the orders concluding the matter. I say that because some of the orders sought by each of the parties anticipate final orders. One would hope that with respect to the property matters, those could be resolved, given the limited nature of those matters. I will be returning the matter to the Registrar so that directions can be made to manage the matter to a final hearing. At that time the outcome of the mother's visa issues will be absolutely known. Her circumstances in Country B will be known and the way communication, as I propose ordering, is travelling will also be known.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Boyle.