Proudfoot & Lagenberg [2026] FedCFamC1A 38 (13 March 2026)

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

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

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

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Lorde & Chu [2014] FamCAFC 228

Marvel & Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Nellie & Nellie (2024) FLC 94-214; [2024] FedCFamC1A 171

Pachris & Tajir (No 3) [2023] FedCFamC1A 230

Pilot & Silver [2022] FedCFamC1A 191

Saha & Lahiri (No 3) (2023) FLC 94-158; [2023] FedCFamC1A 144

Shinohara & Shinohara (2025) FLC 94-266; [2025] FedCFamC1A 126

Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12

Warren v Coombes (1978) 142 CLR 531; [1979] HCA 9

1. The appeal is dismissed.
2. The appellant pay the respondent's costs of and incidental to the appeal at scale within 28 days from the date of agreement as to the quantum of costs or from the date of the assessment of 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 the pseudonym Proudfoot & Lagenberg has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By way of a Notice of Appeal filed on 18 December 2025, Mr Proudfoot ("the appellant") appeals from interim parenting orders made by a judge in the Federal Circuit and Family Court of Australia (Division 2) on 25 November 2025 pursuant to Pt VII of the Family Law Act 1975 (Cth) ("the Act").
2. Ms Lagenberg ("the respondent") and the Independent Children's Lawyer ("the ICL") oppose the appeal.
3. For the reasons that follow the appeal is dismissed.

1. The parents commenced cohabitation in late 2017 and separated in May 2025. They have three children, one aged seven and twins aged five. The appellant has a daughter aged 16 years from a previous relationship.
2. On 28 May 2025, the respondent commenced final parenting proceedings. Her Amended Initiating Application filed on 23 July 2025 sought a raft of interlocutory orders including that she have sole long term decision-making responsibility for the children; that they live with her; the appellant enrol in a men's behavioural change program; the appellant undertake hair follicle drug and alcohol testing; and that the matter be listed for interim hearing. The respondent filed affidavits in support of her interim relief on 28 May 2025 and 8 July 2025.
3. The respondent contended that the children were exposed to an unacceptable risk of harm to their safety if they spent time with the appellant by way of family violence, sexual risk and drug use. She contended significant deficiencies in the respondent's parental capacities.
4. On 23 July 2025, after the respondent had filed her evidence in support of her interim relief, orders were made extending the time for the appellant to file a Response to an Initiating Application to 6 August 2025.
5. The appellant's Response to an Initiating Application filed on 12 August 2025 sought interlocutory orders for restraints on the movement of the children; regulating the children's education and attendance on a medical practitioner; and for he to spend supervised, progressing to unsupervised, time, with the children; amongst other orders.
6. The appellant filed a single affidavit in response to the evidence adduced by the respondent, being an affidavit of an administration officer employed by his solicitors filed on 12 August 2025 annexing three drug test results, including one test recording a positive result for marijuana. Absent explanation, he did not file an affidavit of his own evidence.
7. Material was produced pursuant to s 67ZBE of the Act, including from the Queensland Police Service. On 13 October 2025, a Child Impact Report was released.

1. On 25 November 2025, the primary judge delivered ex tempore reasons for judgment:
   1. The mother, in her affidavit filed at the same time, gives evidence that she fled the premises, in which she was residing in with the father, because she said that she felt that he was escalating the risk he presented. She said that there has been an application for a domestic violence order (but I have no evidence of the result of that application).
   2. She said that she was concerned as to the domestic violence that she was experiencing at the hands of the father and the history of drug use of the father. The mother sought orders that the father have no contact with the children, and the children live with her.
   3. The father filed his notice of address on 27 June 2025, and he has since filed (on 12 August) a response to final orders, a genuine step certificate, a notice of child abuse, family violence or risk, as well as an affidavit from a solicitor which annexes one hair follicle test result and two urine analysis test results. He has not filed an affidavit himself.
   4. The most serious aspect raised by the mother is a matter where she says that she received information by looking at the father's phone. She said she saw a Snapchat history of his interactions with a person called [Mr C]. What the mother said is that there were two photos that were in this chat between the father and this person [Mr C]. The photos were of the father's other daughter who was aged 16. One of the photos showed her at age eight and the other shows a photo of her at the age of 16.

Your daughter's nipple poking through her shirt is hot too.

1. The father and [Mr C] then engaged in virtual mutual masturbation over this chat; that is, they were both looking at the photos of the father's other daughter and both looking at the other person masturbating themselves.

2. The father, when spoken to by [the Child Impact Report writer] in the Child Impact Report, said - and I will use the direct words:

(The father) denied these concerns and contextualised this as an innocuous interaction with a couple who had a daughter of the same age. He considered (the mother) to be purposely framing this interaction in an attempt to interfere in his relationships and this had impacted his relationship with his 16-year-old daughter.

1. This shows an appalling lack of insight on the part of the father. To have two grown men masturbate over a photo of the 16-year-old daughter of the father, where it is that the other man has spoken about the child's nipple being "hot" is far from being "an innocuous interaction".
2. It is an obvious risk to the three children that are the subject children of this application.
3. There have been valiant attempts by [the solicitor], for the father, to try and dress this up as something that is not a criminal offence "because the police didn't charge the father with anything". The thrust of her argument is that if it isn't a criminal offence, there can be no reason for concern.
4. [The father's solicitor] also submitted that there is something strange in the way in which the matter was videotaped, or transferred, by the mother, and, because of that, the photograph produced by the mother today is something that the Court would not, in any way shape or form, find of any interest, let alone consider as being a risk factor.
5. But this is an exceptionally serious risk factor, and there is nothing I could see that could ameliorate this risk.
6. Whilst there are other risk factors such as domestic violence and drug use, I do not take those matters into account at all, because the father has denied the domestic violence, notwithstanding that there may very well be some issues that will go to trial in regard to that. I am disinclined to be able to make any sort of finding there.
7. With regard to the drug use, the father has shown that there are no opioids or amphetamines in the test results, though there is something for cannabis. The father says, through his lawyer, that he has a prescription for medical marijuana. However, he has not chosen to put an affidavit on to say that this has happened, and there is nothing before the Court to say that he has such a prescription.
8. But, in any event, this is not that great an issue, and it is well and truly outweighed by the very grave risk to the children. I cannot envisage how I could keep these children safe if they are with the father in circumstances where he has provided access to a photograph of his own daughter, to a stranger, for the sole purpose of allowing that stranger to use the photograph as a means of providing a sexual fantasy to aid to a masturbatory exhibition.
9. The father has displayed such a perverted sense of sexual mores that I cannot see, even in a supervised environment, that it is in the best interests of the children to spend time with him.

1. On 25 November 2025, the primary judge made the following orders challenged on appeal:
   1. The mother have sole parental decision making responsibility for the children [...] ("the children").

...

1. The children have no direct or indirect contact with the father.
2. Pursuant to s68B of the Family Law Act 1975 (Cth), and for the personal protection of the children and mother, the father injuncted from coming within 200 metres of:

(a) The children's residence;

(b) Any educational institution the children attend upon; and

(c) Any extracurricular activities the children participate in.

1. The primary judge in this matter exercised a broad discretion in making interim orders regulating the parenting of the children pursuant to Pt VII of the Act. It is well established that, except as to grounds asserting procedural error, for an appellant to succeed in an appeal from an exercise of that discretion they must bring their appeal within one of the recognised categories of appellate intervention identified by the High Court in House v The King (1936) 55 CLR 499, namely the primary judge's discretion miscarried by:

(a) Making an error in approach or principle;

(b) Failing to consider a relevant circumstance and/or considering an irrelevant circumstance;

(c) Making an error in the findings of fact such that the finding is unsupported by the evidence; or

(d) Making orders that fall so outside a reasonable exercise of discretion that the orders were "unreasonable or plainly unjust".

1. There is no justification for interference with the first instance judgment unless and until appealable error is demonstrated (Warren v Coombes [1979] HCA 9; (1978) 142 CLR 531 at 543, 544, 551, 552; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 204, 223-225).

1. The appellant's Summary of Argument foreshadowed the filing of an Application in an Appeal to adduce further evidence by way of:

(a) the affidavit of [Mr Proudfoot], filed on 13 February 2026;

(b) the affidavit of [Ms B], filed on 13 February 2026;

(c) the affidavit of [Ms D], filed on 13 February 2026;

(d) a four-page document which is headed "Solicitors Office Report Details", and which is the Queensland Police Service's record of report number [...], contained in the section 67ZBE documents produced to the Court on 5 August 2025; and

(e) the affidavit of [Ms Lagenberg], filed on 28 January 2026; and

(f) Annexure A of the affidavit of [Ms Lagenberg] filed on 8 July 2025 (Application for a Protection Order filed on 21 May 2025).

(Appellant's Summary of Argument filed 18 February 2026, paragraph 5)

1. The appellant asserted that this evidence would establish that the "primary judge erred in his reasoning". The appellant's Summary of Argument identifies the material as "fresh evidence" that was "not available prior to the hearing on 25 November 2025". Although unclear, it seemed from the appellant's submissions that most of the proposed further evidence either existed or was reasonably available but not adduced at the time of the hearing before the primary judge. The descriptor of "fresh evidence" may not be accurate. Evidence of facts and circumstances after 25 November 2025 may fall into that category. The appellant further said that the evidence was relevant to any re-exercise of discretion if the appeal is successful.
2. The appellant attempted to file an Application in an Appeal to adduce the identified further evidence in the appeal at 3.07 pm AEST on 9 March 2026, being the afternoon prior to the appeal hearing. The appeal judicial registrar refused to dispense with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") to permit the application to be filed.
3. It is uncontroversial that the proposed Application in an Appeal was not filed at least 14 days before the hearing of the appeal in compliance with rule 13.39(1) of the Rules and was not supported by an affidavit in compliance with r 13.39(2) of the Rules.
4. The further evidence sought to be relied upon, as identified in the appellant's Summary of Argument, had been filed in the primary proceedings in the Federal Circuit and Family Court of Australia (Division 2).
5. The appellant was granted leave during the hearing of the appeal to make an oral application to review the appeal judicial registrar's delegated determination made on 9 March 2026. The oral application was opposed by each of the respondent and the ICL. I was not persuaded that the appellant should be granted leave as sought and therefore dismissed the oral application for review at the hearing of the appeal. These are the reasons for the dismissal of the appellant's oral application which were reserved to form part of the substantive appeal reasons.
6. The appellant did not adduce evidence providing an explanation for his failure to file the Application in an Appeal and affidavit material in support thereof within the timeframe prescribed by the Rules. An evidentiary foundation must underscore the indulgence of leave as sought.
7. The appellant's submissions that firstly, neither the respondent or the ICL suffered any prejudice in the event he obtained leave to file the Application in an Appeal during the appeal, and secondly, that the objections of each of the respondent and the ICL were as to "form over substance", are not accepted.
8. I accept the submissions of the respondent and the ICL that the belated oral application for review fails to afford them procedural fairness. Each of the respondent and the ICL could not file material in the appeal responding to the further evidence sought to be adduced. The appellant conceded no capacity exists pursuant to the Rules for a respondent to an appeal to simply file an affidavit in an appeal. In addition, as identified during the hearing of the appeal, this Court did not have access to the further evidence sought to be adduced on the appeal. The requisite criteria to exercise discretion to grant the relief sought to achieve the demands of justice could not be considered (CDJ v VAJ (1998) 197 CLR 172). No application was made by the appellant to adjourn the appeal to mitigate these procedural hurdles. The appellant was responsible for the filing of the material sought to be adduced on appeal in the Federal Circuit and Family Court of Australia (Division 2). The challenges presented to the respondent, the ICL and to the Court in considering this late oral application is contrary to the fair and orderly conduct of appellate processes embodied in the Rules and the Federal Circuit and Family Court of Australia Act 2021 (Cth).
9. Additionally, the construction and import of the appellant's Summary of Argument and some of his oral submissions are to rerun the first instance hearing on appeal, attempting to shift the arena for determination of the dispute between the parents from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The appellant could, by application to the Federal Circuit and Family Court of Australia (Division 2) in its original jurisdiction pursuant to r 10.13(1)(c) of the Rules, challenge the orders made on 25 November 2025 based upon evidence of facts and circumstances that have occurred after the making of the orders. This is a question for a judge in the Federal Circuit and Family Court of Australia (Division 2). Such challenge, if made and successful, would render this appeal nugatory.
10. While this appellate Court has jurisdiction to entertain an appeal from the orders under challenge, that jurisdiction ought not be too readily exercised in these circumstances where the proper course, being to exhaust remedies available in the original court, is open (see Cooke & Morton [2018] FamCAFC 9; (2018) FLC 93-820 at [13] citing Lorde & Chu [2014] FamCAFC 228; endorsed in Saha & Lahiri (No 3) (2023) FLC 94-158). Significant public policy reasons are self-evident requiring parties to take a course which is more appropriate, and far less expensive (Nellie & Nellie [2024] FedCFamC1A 171; (2024) FLC 94-214). The appeal ought to be dismissed at this point. That said, as will be explained, a consideration of the grounds achieves the same conclusion.

1. The appellant's Notice of Appeal contains three grounds:
   1. The learned primary judge erred in finding (which is implicit throughout the reasons) that exhibit (6 pages), tendered on 25 November 2025, was a truthful representation of the communication history contained on the appellant's mobile telephone. (The particulars of the false representations contained in the exhibit will be set out in the appellant's outline of argument).
   2. The learned primary judge erred in finding (at para 16 of the reasons) that the appellant presented as a "very grave risk to the children".
   3. The learned primary judge erred in failing to find that the children could safely have contact with the appellate [sic] in a supervised setting.
2. The purpose of a Notice of Appeal is to identify with precision in the grounds of appeal the errors that are asserted to have been made by the primary judge. It sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230).
3. The appellant is bound by his grounds of appeal and cannot prosecute any issue not identified in his Summary of Argument (r 13.23 of the Rules). Only the grounds of appeal within the Notice of Appeal will be addressed. The indiscriminate submissions within the Summary of Argument which fall beyond the ambit of the pleaded grounds will be disregarded.
4. That said, insofar as the appellant's Summary of Argument and oral submissions alluded to a further grievance as to the primary judge failing to afford him procedural fairness because the appellant "did not have an opportunity to properly consider and formally respond to" the case asserted by the respondent, the complaint is twofold. Firstly an absence of notice of the interim order sought by the respondent as to no time or communication between the children and the father, and secondly by way of the Snapchat exchange document being adduced into evidence. Parties are bound by the way in which they choose to conduct the first instance hearing (Metwally v University of Wollongong (1985) 60 ALR 68). No application for an adjournment was made by the appellant's solicitor at the first instance hearing. A reading of the transcript does not suggest that the appellant said that he could not meet the case as clearly prosecuted by the respondent. The echoes of a failure to afford procedural fairness are hollow.

1. The critical feature of this appeal, being to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment, fails to expose that the primary judge erred in fact or law (Lee v Lee [2019] HCA 28; (2019) 266 CLR 129).
2. The grounds prosecuted by the appellant either assert factual errors or failing to make a finding as asserted by the appellant.
3. To succeed on the grounds asserting factual error, the appellant must demonstrate that the findings made subject to challenge were not reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296). Simply because other findings may also have been open on the evidence does not demonstrate that a finding of fact complained of was thus not open or available.
4. The transcript records that the Snapchat document was provided to the primary judge and was the subject of submissions during the hearing. The document was returned "to be filed". The appellant contested the content of the Snapchat document, making submissions to contextualise its content. The primary judge observed that no affidavit evidence was adduced from the appellant himself to support the submissions (Transcript 25 November 2025, p.12 lines 13-21).
5. As to Ground 1, the appellant did not adduce evidence that directly contradicted the facts established by the evidence adduced by the respondent. No application was made to cross-examine the respondent on the document in the interim hearing. The appellant must bear the forensic consequences of the way he conducted the interim hearing. All evidence must be weighed and assessed in light of the parties' respective capacities to produce it (Vetter v Lake Macquarie City Council (2001) 202 CLR 439). The appellant could have adduced direct evidence from himself about the Snapchat document and did not do so. The terms and form of his engagement with that subject matter permitted the primary judge to more easily make findings and draw available inferences against him from the evidence led by the respondent. The process of drawing inferences from established facts simply involves logical deduction. The ground is rejected.
6. As to Ground 2, the appellant submitted that the evidence by way of the Child Impact Report and the s 67ZBE material establishes that the primary judge's finding (at [16]) was not open on the evidence.
7. To give context to this ground, the appellant directed the primary judge to this countervailing evidence (Transcript 25 November 2025, p.3 lines 18-39, p.4 lines 4-5 and p.7 line 12 to p.8 line 36). The respondent submitted there were factual errors in the police report (Transcript 25 November 2025, p.6 lines 19-20). The appellant had "significant issues with respect to the tender documents of the mother" (Transcript 25 November 2025, p.8 lines 40-44) asserting, albeit absent evidentiary foundation, that he "did not share the photo" of his 16 year old daughter on Snapchat (Transcript 25 November 2025, p 9. lines 43-45).
8. The primary judge correctly identified that the author of the Child Impact Report had not seen the Snapchat document (Transcript 25 November 2025, p.13 lines 22-27). The evidence of the author of the Child Impact Report on this subject matter was weighed and considered by the primary judge (at [8]).
9. During oral submissions, albeit not a ground of appeal, the appellant asserted that the primary judge erred by failing to apply relevant principle by making findings on contested issues in an interim parenting hearing, citing Marvel & Marvel (No 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 at [122]-[123]. The father misinterprets applicable principle. Whilst findings of fact in interlocutory proceedings can safely be made on uncontested evidence, the findings made should be circumspect if the evidence upon which they are made is, or is liable to be, controversial. That said, a primary judge is not prohibited, despite constraints preventing the evidence from being tested, from making contested factual determinations in an interlocutory Pt VII hearing (Pilot & Silver [2022] FedCFamC1A 191; Shinohara & Shinohara (2025) FLC 94-266).
10. The primary judge's ex tempore reasons evaluated the nature and quality of the evidence as to the Snapchat document, including whether a primary or subsidiary fact is disputed, and the premise underscoring that dispute. Simply because evidence is disputed does not render it not credible or unreliable. These evaluations direct the process of weighing the probability of the competing factual disputes.
11. The principles in assessing whether risk is unacceptable as identified in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 remains a two-step process as to the consideration of conduct allegations applying the civil standard of proof and assessing the risk of recurrence. It is an evidence-based conclusion. In an interim parenting hearing, these considerations are conservatively directed to the likelihood of the postulated event and the prospect and magnitude of harm that may flow if the event occurs.
12. The finding of risk as made by the primary judge is correct if it was open on the available evidence. The appellant's contention that the finding under challenge was not open on the face of the evidence by way of the s 67ZBE material and the evidence in the Child Impact Report is rejected. It effectively amounts to a contention that the primary judge was obliged to accept the evidence identified by the appellant and to reject the countervailing evidence adduced by the respondent. A differing view of the evidence does not establish that a finding was not open (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118). Ground 2 has no merit.
13. Ground 3 is a challenge as to a failure to make a finding sought by the appellant. The ground fails to engage with the findings as to the appellant displaying an "appalling lack of insight" (at [9]), the absence of evidence to "ameliorate this risk" (at [13]) and the conclusions at [16] and [17] of the primary judge's reasons. The appellant can hardly complain that no finding as he sought was made. He did not adduce any evidence as to the availability of, conditions of, or mechanics of, the proposed supervision of time. The ground fails.

1. None of the grounds have merit. The appeal will be dismissed.

1. Neither the appellant nor the respondent filed costs notices.
2. In the event the appeal was dismissed the ICL did not seek costs. In that event the respondent, who is in receipt of a grant of legal aid, sought that the appellant pay her costs at scale. The appellant appropriately conceded that costs order, the appeal being wholly unsuccessful. An order should therefore be made that the appellant pay the respondent's costs of and incidental to the appeal at scale within 28 days from the date of agreement as to the quantum of costs or from the date of the assessment of costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.