Provenza & Provenza (No 4) [2025] FedCFamC1A 232 (15 December 2025)

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

1. These reasons explain the partial allowance of an appeal from parenting orders made on 5 August 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 2).
2. The appeal must succeed in a limited way because the primary judge lacked power to make some orders, though the error is easily remedied by discharging the affected orders. However, another problem requires rectification. The primary judge inexplicably made two suites of orders bearing the same date and they are not identical.

1. The parties separated in June 2022.
2. Shortly afterwards, the mother commenced proceedings against the father seeking parenting orders in respect of their children under Pt VII of the Family Law Act 1975 (Cth) ("the Act").
3. In November 2022, the father commenced financial proceedings between the parties under Pt VIII of the Act. The financial cause was resolved between the parties on 19 April 2023 by orders made with their consent, leaving only the parenting cause to determine.
4. The parties' three children were born between late 2007 and early 2014. The eldest child is very nearly an adult and the two youngest are presently aged 15 and 11 years.
5. In February 2025, the trial was fixed for August 2025. In July 2025, the father was ordered to file his Amended Response, his affidavit evidence, and his Case Outline document, but he did not do so. He was not present at Court when the procedural orders were made in July 2025 because he was in another court attending to other proceedings, but he was not at any disadvantage at the trial. Despite his procedural default, the father was permitted to rely upon an affidavit he filed on the first day of trial (at [19] and [25]) and his parenting proposal was clearly articulated (at [20]).
6. The parenting dispute was heard over two days in August 2025, at which trial the father was legally represented. Because he was bound by a final family violence order made by a State court (at [140]-[142]), the provisions of s 102NA of the Act applied and his lawyer was appointed by the State legal aid agency.
7. Judgment was pronounced ex tempore at the conclusion of the trial, but the reasons for judgment were not published until shortly afterwards on 2 September 2025. The orders made on 5 August 2025 (Orders 1-22) are different from the orders set out within the reasons for judgment delivered on 2 September 2025 (Orders 1-21), for which there is not and could be no satisfactory explanation. In the appeal, the parties did not wish to be heard against the proposition that the first suite of orders should be annulled, which result could be achieved either by the invocation of the slip rule (r 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules")) or by wielding appellate power (s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). This case is an exemplar of why judgment should be pronounced and the reasons for judgment delivered conjunctively.
8. Working from the orders set out at the commencement of the reasons for judgment delivered on 2 September 2025, in summary, her Honour ordered that: the mother have sole decision-making authority for the children in respect of their long-term care and welfare (Order 2); the children live with the mother (Order 3), about which the mother must inform the middle child (Order 11); the two youngest children have no interaction with the father (Order 4); the father is restrained from communicating with the youngest child (Order 6); the father is restrained from initiating communication with the middle child (Order 7); the father is restrained from communicating with the mother other than in exigent circumstances (Orders 8 and 10); the father is restrained from contacting the eldest child's counsellor Order 9); the eldest can please herself as to how she interacts with the father (Order 5); and the mother will hold the children's passports and they may travel overseas with her without the father's consent (Orders 12-15).
9. The orders wrought substantial change to existing arrangements. Until the trial, the eldest and youngest children lived with the mother, whereas the middle child lived with the father. The eldest child barely saw the father, the middle child spent time with the mother as he desired, and the youngest child spent time with the father (at [13]-[14]).
10. The substantial change to the pre-trial arrangements was the product of findings made about the father's state of mental health (at [98]-[118]), his commission of family violence against the mother to which the children had been exposed (at [119]-[171] and [215]-[226]), his tendency to provoke confrontation (at [172]-[214]), and aspects of his impaired parenting capacity (at [227]-[311]). The court child expert considered it "perilous" for the children to have any contact with the father until they are adults (at [337]) and the primary judge agreed (at [337]-[362]). The primary judge found the father posed an unacceptable risk of harm to the children which could not be satisfactorily ameliorated (at [363]-[365]).

1. The grounds of appeal are set out within the Notice of Appeal filed on 2 September 2025. The grounds of appeal were prepared by the father - not by the senior counsel who graciously appeared for him at the appeal on a pro bono basis.
2. The father does not assert any mistake of fact.
3. The grounds complain of errors within the orders (Grounds 3 and 5), legal error (Grounds 1 and 4), discretionary error (Grounds 2, 6, 7, 8, 9, 10, 11, 12 and 14), and inadequate reasons (Ground 13). Two grounds are plainly incompetent (Grounds 15 and 16).
4. Before addressing the grounds of appeal, it is necessary to explain the legal error which vitiates some orders.

1. At the time of the trial, the father was already bound by a final family violence order protecting the mother and the two youngest children from him, which final order remains operable until July 2027 (at [140]-[142]). The order was made under the provisions of the Domestic and Family Violence Protection Act 2012 (Qld) pursuant to an application brought privately by the mother in July 2022 before the State court.
2. The father was charged with multiple breaches of the order and with other related offences, but the criminal prosecution was still pending at the time of trial (at [148]-[161] and [172]-[178]).
3. Despite the existence of the State family violence order, the mother applied for an injunction against the father under s 68B of the Act, though the primary judge made injunctions against the father in a different form.
4. Her Honour made these injunctions against the father, supposedly under s 68B of the Act, for the protection of the mother and the two youngest children:
   1. Pursuant to section 68B of the Family Law Act 1975 (Cth) ('the Act') the Father is hereby restrained by injunction from directly or indirectly communicating with [the youngest child], attending any place of employment of the Mother, attending the Mother's residence, attending the children's school, removing the children from the Mother's care and removing children from school.
   2. Pursuant to section 68B of the Act the Father is hereby restrained by injunction from communicating with [the middle child] but [the middle child] is at liberty to initiate communication with the Father.
   3. Pursuant to section 68B of the Act the Father is hereby restrained by injunction from communicating with the Mother via text message, phone, email social media or other means except in strict compliance with the order to return [the youngest child] to her care.
5. However, s 114AB of the Act provides as follows:

(1) Sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections.

(2) Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:

(a) where the person instituted a proceeding:

(i) the proceedings has lapsed, been discontinued, or been dismissed; or

(ii) the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and

(b) where the person took other action - neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.

1. The Queensland legislation under which the existing final family violence is operable is a prescribed State law for the purpose of s 114AB of the Act (reg 7 of the Family Law Regulations 2024 (Cth)).
2. Therefore, the provisions of s 114AB(2) of the Act deprived the primary judge of power to make the injunctions comprised by Orders 6, 7 and 8, as they either conflict or overlap with the terms of the operable State family violence order.
3. The error can be cured by discharging the offending orders.

1. This ground alleges that Orders 4 and 7 are inconsistent.
2. The orders provide as follows:
   1. [The youngest child and the middle child] shall spend no time nor communicate with the Father.

...

1. Pursuant to section 68B of the Act the Father is hereby restrained by injunction from communicating with [the middle child] but [the middle child] is at liberty to initiate communication with the Father.

1. The assertion of inconsistency is rejected.
2. Relevantly, Order 4 states the middle child should neither spend time nor communicate with the father, but it amounts to no more than a generic exhortation. It is not an in personam order prescriptively binding the parties individually, as it is neither a parenting order (s 64B(2)) nor an injunction (s 68B(1) or s 114(3)).
3. Order 7 recognises the middle child (who is now 15 years old) may wish to communicate with the father and may decide to do so, despite the intent of Order 4 and regardless of the findings made about how any such contact is repugnant to his best interests. Order 7 prohibits the father from initiating any communication with the middle child but does not preclude him from responding to communication initiated by the middle child.
4. Even if an inconsistency between the orders is discernible, the inconsistency falls away when Order 7 is discharged to cure the legal error already explained.

1. This ground alleges Order 7 is "unworkable and punitive".
2. The complaint need not be considered given the necessary discharge of Order 7.

1. This ground alleges the error of failing to apply s 60CA and s 60CC of the Act in the process of making Orders 1-5 and 11.
2. The contended failure to apply the paramountcy principle (s 60CA and s 65AA) is false. Her Honour referred expressly to those statutory provisions (at [57]) and concluded the orders were made to promote the children's best interests (at [385]).
3. Her Honour also expressly referred to the use to which s 60CC of the Act must be put (at [58]), though it is true the primary judge did not address the evidence under the rubric of each of the prescribed s 60CC factors. While it is usually safest to do so, to stave off allegations of legal error in an appeal, it is not mandatory for a judge to discuss seriatim the s 60CC factors in reasons for judgment. The extent to which such factors must be individually addressed depends upon the nature of the dispute conducted by the parties (Phillips & Hansford (No 2) (2019) FLC 93-917 at [43]; SCVG & KLD [2014] FamCAFC 42; (2014) FLC 93-582 at [98]-[103]).
4. The context of this dispute only required advertence to certain pivotal issues. It was agreed the eldest child could please herself with whom she lives and associates. The parties' dispute only concerned the two younger children. The mother and the ICL proposed they be kept away from the father, but he proposed they live with him and spend time with the mother.
5. As the case was run, the central issue was whether the father posed some material risk of harm to the children, as the mother and ICL both advocated, which issue the primary judge identified (at [30]). Her Honour dealt extensively with the evidence in so far as it reflected upon the need to keep the children safe from emotional harm caused by the father (at [98]-[362]). Her Honour found the children were not safe and could not be adequately made safe (at [363]-[365]).
6. The father conversely contended the mother posed an unacceptable risk of harm to the children, but such contention was difficult (if not impossible) to reconcile with his proposal for the two younger children to spend time with her (at [20]). Due to the father's default in compliance with procedural orders made in July 2025, the only documents he placed before the Court were an affidavit he belatedly filed and an exhibit. He did not file a Case Outline document. Aside from s 60CC(2)(a), no factor prescribed by s 60CC of the Act was engaged by either the father's evidence or his final submissions. The primary judge expressly addressed the father's stated concerns (at [61]-[92]) and concluded the children were not at any risk of harm while in the mother's care (at [93]-[96]), which finding entailed rejection of the case advanced by the father under s 60CC(2)(a) of the Act.
7. The father is bound by the way he conducted the trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497). He cannot now complaint of an appealable error by the primary judge's failure to individually address the other provisions of s 60CC of the Act, when he did not.

1. This ground alleges the primary judge misapplied the power wielded under s 68B of the Act by making injunctions which restrain his contact with the youngest child (Order 6), the eldest child's counsellor (Order 9), and the mother (Orders 8 and 10).
2. As already explained, there was no power to make Orders 6 and 8 pursuant to s 68B of the Act.
3. However, there is no error with Order 9, which provides as follows:
   1. Pursuant to section 68B of the Act the Father is hereby restrained by injunction from contacting [the eldest child's counsellor].
4. The order protects the eldest child's counsellor and the need for it was explained by the primary judge (at [374]).
5. Nor is there any error with Order 10, which provides as follows:
   1. If [the youngest child] comes into care of [the] Father, the Father shall immediately notify the Mother via text message that [the youngest child] is in his care and return [the youngest child] to his Mother's care within 30 minutes and the return shall be at the address nominated by the Mother.
6. The order requires the father to notify the mother if the youngest child seeks him out and, if that occurs, also requires him to promptly return the youngest child to the mother. The order amounts to a mandatory injunction and was satisfactorily explained in the reasons for judgment (at [363]-[365], [371] and [376]).

1. This ground alleges Orders 2-10 are vitiated because they are "extreme outcomes" and the primary judge did not consider any ameliorated alternatives, which proposition is rejected.
2. Order 2 vests the mother with sole decision-making authority for the children. The father agreed the mother should have that authority in respect of the eldest child (at [20(2)]). While the father wanted sole decision-making authority for the two younger children (at [20(5)]), he nevertheless recognised how decision-making authority could not be shared by the parties.
3. Order 3 provides that the children live with the mother, which could not possibly be an "extreme outcome" when the only two alternatives were for the children to live with one party or the other.
4. Order 5 permits the eldest child to spend time and communicate with the father when she pleases. The father proposed an order in those exact terms (at [20(1)]).
5. Orders 6, 7 and 8 are invalid for the reasons already explained.
6. The validity of Orders 9 and 10 have been explained in the discussion of Ground 4.
7. So, by the process of elimination, this ground devolves to a complaint about the "extreme" disproportionality of Order 4, which declares the two younger children should not have any form of interaction with the father. Even if this complaint can be properly construed as being one of discretionary error, it is rejected in the face of the unchallenged findings.
8. The primary judge relevantly found: the father is affected by a personality disorder which significantly impairs his function (at [105]-[106] and [117]); his harassment of the mother since separation has been relentless (at [164], [213]-[214] and [217]-[219]); he intimidates her (at [200]); he humiliates her (at [221]); he tries to wear down those who are opposed to him (at [180]-[181] and [194]); he uses the children to manipulate the mother (at [311] and [339]); he has perpetrated family violence upon the mother, to which the children have been exposed (at [215] and [225]); and it imperils the children's best interests to associate with him (at [337], [355] and [363]-[365]). Having made such adverse findings, the primary judge turned to consider whether the two younger children's safety could be ensured by the imposition of supervision and found not (at [363]-[365]).

1. This ground alleges Orders 1, 2, 3 and 11 are vitiated because the primary judge "did not grapple with recent care patterns and foreseeable disruption, nor implement transitional safeguards to preserve schooling and relationships".
2. To the extent that this is a complaint of discretionary error, it is rejected. Her Honour realised the orders proposed by the mother and the ICL would entail an immediate reversal of residence for the middle child and the father's elimination from the lives of the two youngest children. Her Honour was persuaded orders to that effect were in the children's best interests. Such orders were consistent with the evidence given by the court child expert, whose evidence the primary judge accepted (at [54] and [330]-[337]).

1. This ground alleges Orders 4-9 represent a manifestly unreasonable result, which contention is rejected for the reasons given in discussion of Grounds 2 and 9 above.

1. This ground alleges Order 2, which allocates to the mother "sole decision-making authority" for all decisions related to the children's long-term care and welfare, is vitiated because the primary judge did not consider alternate "shared" models.
2. The complaint is absurd because it contradicts the case conducted by the father at trial. He realised the parties were unable to collaborate over decisions for the children and so one parent must have parental responsibility for each child. He proposed that the eldest child live with the mother, for whom she would have sole parental responsibility, and the two youngest children live with him, for whom he would have sole parental responsibility (at [20]).

1. This ground alleges Order 5, which permits the eldest child to make her own decisions about when she spends time and communicates with the father, is vitiated because it lacks any "scaffold".
2. The complaint is absurd because it contradicts the case conducted by the father at trial. He proposed an order to that precise effect (at [20(1)]).

1. This ground challenges Order 8, which must be set aside for legal error already explained, so it is unnecessary to address the father's complaint.

1. This ground alleges Orders 13-16, which permit the children to travel abroad with the mother regardless of the father's consent, are vitiated because they were made without necessary "findings, reasons or safeguards".
2. The complaint is rejected. The father was aware that orders to that effect were sought by the mother (at [17]). She was not challenged with the proposition such orders were unnecessary or should not be made. Her Honour was satisfied such orders should be made (at [382]-[384]).

1. These grounds allege Orders 17 and 18 were made "without balance" and without "findings".
2. Order 17 requires the father to re-imburse the mother for one-half the cost of the second family report by paying modest instalments over 12 months. When that order was provisionally put to the father's counsel for response during final submissions, counsel said the order was "difficult to resist" and said nothing more. In effect, the husband submitted to the order.
3. Order 18 permits the mother to furnish a copy of the orders to the children's schools and medical practitioners. The order was sensible, given the children would live with the mother and she would have sole decision-making authority for them. No error is shown.

1. This ground is pleaded as follows:
   1. Dismissal of extant applications without reasons (Order 22): Pending applications bearing on evidence and triage were summarily dismissed, foreclosing corrective case-management and compounding unfairness.
2. The ground is incomprehensible.
3. First, there is no Order 22. This must be a reference to the incorrect suite of orders.
4. Second, no applications were summarily dismissed. The parties' competing applications were substantively heard by trial conducted over two days.
5. Third, the assertion of "corrective case-management" being "foreclosed" is meaningless.
6. Fourth, the asserted "unfairness" is unparticularised.

1. This ground is pleaded as follows:
   1. Cumulative: Pending District Court of QLD - Harman Release and ventilation of Mens Rea submissions, currently scheduled for late September and early November procedural mentions.
2. The ground is meaningless.

1. This ground is pleaded as follows:
   1. The [father] seeks leave (to the extent required) to refine particularisation upon receipt of the 14 July and 5 August 2025 transcripts.
2. The appeal was filed on 2 September 2025.
3. The appeal registrar made procedural directions on 16 October 2025, requiring the father to file his Summary of Argument by 31 October 2025. The father had until that date to amend the grounds of appeal (r 13.10(1) of the Rules). He did not file any Amended Notice of Appeal.
4. The father failed to file his Summary of Argument on time but, by procedural orders made on 7 November 2025, he was given a further two weeks within which to do so. It was noted at that time how the extension to file his Summary of Argument could not be permissibly used as an extension of time within which to amend his Notice of Appeal without leave to do so.
5. The father failed to file a Summary of Argument which correlated with the pleaded grounds of appeal on time but, by procedural orders made on 24 November 2025, he was given two further days within which to do so.
6. The father abandoned an application to belatedly amend his appeal, so he is bound to the grounds originally pleaded, making this ground of appeal meaningless.

1. The appeal is allowed in part.
2. The orders pronounced by the primary judge on 5 August 2025 (Orders 1-22 inclusive) are set aside.
3. The orders published by the primary judge on 2 September 2025 (Orders 1-21 inclusive) are declared to be the judgment of the primary judge. However, Orders 6, 7 and 8 thereof are discharged. The appeal from all other orders is dismissed.
4. Neither party nor the ICL sought costs.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.