Takenaka & Maddox [2025] FedCFamC1A 243 (19 December 2025)

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

1. By way of an Amended Notice of Appeal filed on 4 November 2025, Mr Takenaka ("the father") appeals from Orders 1-18, 19c, 20-26, 27, 27e, 28-29, and 31-42 made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 8 August 2025 as to the parenting of X born early 2019 ("the child") after a 10 day trial heard in four tranches from 1 October 2024 until 27 February 2025.
2. Ms Maddox ("the mother") and the Independent Children's Lawyer ("the ICL") oppose the appeal.
3. For the reasons that follow, the appeal is dismissed.

1. As will be seen, the primary judge's reasons are both extensive and comprehensive, comprising 404 paragraphs over 105 pages. The appeal books comprise 3,358 pages and the transcript comprises 1,375 pages. The reasons recite the evidence at trial, interspersed with factual findings and the reasons for them.
2. The mother was born and raised in Country S. The father has dual Australian and American citizenship. The parties met when the mother travelled to Australia for a holiday. The mother immigrated to Australia in 2007 on a skilled worker visa. The parties commenced living together sometime in 2008 and married early 2019. They separated in early 2021. The mother became an Australian citizen post-separation in mid-2024.
3. The child was born early 2019 and has dual Australian and American citizenship. She lives with selective mutism.
4. In late 2019, on holiday in Country S to visit her family with the child, the mother voluntarily visited Hospital B. The mother received inpatient treatment and was discharged two weeks later. She was diagnosed with major depressive disorder, single episode, severe psychotic symptoms specified as postpartum onset (at [41]-[42]).
5. On or around February 2020 upon returning to Australia, the mother voluntarily admitted herself to the Hospital C where she received inpatient treatment for four days. In late February 2020, she was voluntarily admitted again to Hospital C following a relapse of major depressive disorder due to medication non-compliance.
6. In March 2020, the mother was admitted to the Hospital D. She was placed on an Involuntary Treatment Authority. In late March 2020, the mother was transferred to the Treatment Unit E at Hospital F to receive specialist treatment for postnatal depression. Dr G was the mother's treating psychiatrist. She gave evidence at trial on subpoena issued by the father and was cross-examined by him (at [271]). The mother remained at the Treatment Unit E for a period of seven weeks. The child remained in the mother's primary care during her admission (at [44]).
7. The mother was discharged from the Treatment Unit E on 27 April 2020. She attended upon a psychologist until September 2020 when she was transitioned off her medications. The Involuntary Treatment Authority was discharged on 15 September 2020. The mother's symptoms had resolved (at [46]).
8. Dr H was the ch 7 single psychiatric expert who assessed both parents. The reasons record:
   1. Dr [H] retired quite suddenly in 2024 due to his own serious ill health and was not available for cross examination by the father. The report of Dr [H] was very comprehensive and explained clearly that the mother's mental health episode was directly related to her pregnancy and birth and that whilst the mother's mental health episode has now resolved. Dr [H] considered that:

This depressive illness which arose in the post-partum period is now in complete remission.

The risk of a recurrence of this depressive illness is now low as it arose in the post-partum period, and in the absence of the experience of pregnancy delivery and the post-natal life issues that can arise for a mother, there is no other life history of this sort of psychiatric illness for the Mother.

She is at very high risk of a recurrence of post-natal depression if she chooses to have another baby.

1. The father said he had sent Dr [H] some questions and he appeared to be quite indignant that Dr [H] had not replied to his questions...

...

1. The father asked Dr [G] in relation to the possibility of a recurrence:

[THE FATHER]: Yes. So the question is, Doctor, does the taking of these medications - if you stop taking them, even if it's tapered off, is there a risk in the future that these medications could cause a deterioration in mental health, because they've been stopped? Or, you know, can you provide a little bit of help on that?---

THE WITNESS: So the - at the time of her discharge, she was provided with recommendations as to the length of time she should take the medications that I have previously discussed. Depression is a recurrent condition, so it can recur. I have reviewed the community mental health team notes, and I understand that they were monitoring her medication use, post-discharge. They also were obligated to monitor her capacity and insight and whether or not she still met the requirements to be managed under the Mental Health Act. I am aware that her - she did cease medication, I think - I think about September 2020, when - and she had a review by the psychiatrist in the community, who determined that she no longer met the requirements for the Mental Health Act at that time, and she had been - so she had been self-tapering her 5 [sic] medication, and the - his advice was that all medication was to be ceased, because it was sub-therapeutic, but there were no depressive or psychotic symptoms on that review on 15 September 2020.

1. The single expert evidence is that the mother's condition was directly as a result of pregnancy and birth of a child. There is no acknowledgment by the father of the precise nature of the mother's past mental conditions relating to the birth of [the child]. He wishes to advance his own view, that the mother is now constantly susceptible to ongoing mental breakdowns. The father said at the end of the trial, after the evidence of two psychiatrists and the Family Report writer had been considered:

I do accept, your Honour, that you said yesterday that they said, I wonder, and that that's not a clinical diagnosis, so I do accept that. However, they still made that observation, that they think it's possible. Now, the point is - that I argue - is that it would be impossible to ignore that there is a possible risk of deterioration in the future, especially in high stress, which obviously as a single person having sole care of a child and perhaps even working full-time, that's going to place excess stress upon you in your life. So obviously, we don't want [the mother] to be stressed or have excess stress on her in the future.

1. Each of the experts have referred to the significance that this is a post-partum depression and psychosis. Dr [H] has observed of the mother's recovery that:

She has made an excellent response to appropriate, high quality medical and psychiatric assessment and treatment.

Her function to study and work now is a very positive point.

1. The evidence is that the mother's psychiatric condition was largely resolved by April 2020 but fully resolved by no later than September 2020.
2. I accept the uncontested evidence of Dr [H] and the evidence given by Dr [G], both of whom are in agreement about the diagnosis and recovery of the mother. I reject the father's elevation of his own opinions over those of the experts.

...

1. The mother submitted that there is nothing further she can do to recover and that no matter what she does the father just keeps on raising her mental health as an ongoing issue. I accept the force of this submission as it accords with the evidence, including that of the Family Report writer, and my own views of the father's conduct. I consider that the father is being quite strategic in the manner which he tells the Court and others about the mother's past mental health experience. It was clear that when the mother went to see [the child] at the father's sisters [sic] house, (during the period after [the child] had been taken from her by the father) the father's opinion was that the mother was mentally unwell and he called the ambulance to explain this. As soon as the Police arrived, they realised this and sent the ambulance away. Similarly, the information given by the father to the Police Vulnerable Persons Unit in September 2021 which resulted in the [Care Team J] calling on the mother in order to assess her (without notice), was also not substantiated, as the Acute Care Team concluded that the mother was in good mental health.

(Emphasis added) (Footnotes omitted)

1. Following separation in April 2021, the mother moved out of the home with the child.
2. On 9 August 2021, the father removed the child from the mother's care. He said he was concerned that the mother would not let him see the child (at [56]). On 13 August 2021, the mother attempted to check on the child while the child was staying with the father at his sister's house. The primary judge's reasons record:
   1. Subsequently some days later on 13 August 2021 whilst [the child] remained in the father's care, the mother had a Facetime session with the child and believed that she had suffered some sort of red mark or injury to her forehead. The mother became extremely worried. [The child] was still only two at this time. The mother, who had not had physical contact for four or five days with [the child], contacted the Police to have a welfare check done on [the child]. The police advised the mother that they could not help and that if she was really concerned, she could go to where [the child] was at [the] father's sister's home. The mother did this. Subsequently there was quite a scene at the father's sister's house upon her arrival. The father contacted triple 0 and said he needed an ambulance as the mother was suffering from a mental health episode. He told the ambulance that the mother had had a mental health episode the year before. The mother said that the father's family were not letting her out of the house nor were they letting her see [the child]. The father said the ambulance told him to keep the mother there. The police arrived before the ambulance and they spoke with the mother and determined that it was a dispute between the mother and father about [the child]. The police subsequently told the ambulance, who arrived after them that they were not needed. The father has tendered a video of this incident. There was no difficulty with the police talking to the mother.

1. On 16 and 19 August 2021, the mother spent time with the child while she was in the father's care. The primary judge's reasons record "[t]he father said that he did not trust the mother and believed that she would try and remove the child from his care" (at [61]).
2. On 22 August 2021, the mother removed the child from the father (at [62]). On 2 September 2021, the father spoke to the police saying he was "deeply concerned" about the mother's mental health (at [63]). On 7 September 2021, the father contacted the Care Team K about his concerns about the potential recent deterioration of the mother's mental health. Care Team K spoke to the mother who denied having any concerns for her mental health (at [64]).
3. On 30 September 2021, Care Team J called on the mother in person without notice after the father's contact with Care Team K. The mother's mental health was assessed for several hours. The primary judge's reasons record:
   1. ...After a few hours of interviewing the mother, it was concluded on the spot that the mother was in sound health and that [the child] was well looked after. The mother alleges that the father has been making false claims about her being mentally unwell in order to advance his position in this litigation.
   2. At this point, the father had reported the mother as having mental health episodes on at least four occasions to the police, ambulance and/or hospitals, following the mother moving out of the home on 27 July 2021.
4. The father commenced parenting proceedings on 17 November 2021, seeking the child be removed from the mother's full-time care and live with him.
5. On 23 February 2022, consent orders were made for the child to live with the mother and spend three hours each week on a Wednesday, Saturday and Sunday with the father, with that time slowly increasing. Supervised changeover was ordered to occur at Contact Centre L. After exchanges with the father, Contact Centre L refused to continue to facilitate changeovers. On 17 May 2022, further orders were made varying the supervised changeover location to Contact Centre M with time occurring each alternate Friday from 9am to 2pm and each Saturday and Sunday between 9am and 5pm.
6. The primary judge found:
   1. Since those orders were made by the Court, the father has hounded the mother during the three years to the trial, to ignore or set aside the orders for supervised handovers.

1. The reasons then record the history of the litigation from May 2022 until the trial:

Current Orders

1. This trial started in October 2024 and concluded in February 2025. At the commencement of the trial, the orders that the parties were operating on were the Orders of 17 May 2022 for supervised handovers and no overnight time with the father. These Orders provided for the child to live with the mother but spend time with the father on Saturday and Sunday every week, as well as each alternate Friday. All through the interim orders, allowance for the father's work roster have been made. The father attempted to have the interim orders reheard with a third interim hearing in September 2022, wherein he sought a change of residence and [as senior judicial registrar] dismissed that application, noting that there were not substantial changes in circumstances warranting a change of residence. After that, the father brought a review application before [a judge] which was dismissed.

2. The current orders do not provide for [the child] to have any weekend or holiday time with the mother.

...

COMPETING POSITIONS

1. The final position of the parties changed throughout the trial. The parties are in dispute about the number of days that [the child] will live with each party, if and when [the child] will start spending overnight time with the father, and where that overnight time will occur given the mother's concerns about the possibility of [the child] sleeping over with the father in the share house and the vulnerability of [the young child] generally and particularly given her mutism towards other adults. Each of the mother and father sought sole parental decision making. The father changed his position to shared decision making by the end of the trial.

The applicant father

1. The father sought to rely upon his amended initiating application filed 13 August 2024.

2. The father sets out a number of options/positions within his amended application. The father has sought throughout the years leading to the final trial, an Order that in certain circumstances the child will live with him primarily and that the mother could have supervised. At the same time, it is fair to say that the father often states that he wants to have the child live with him on an equal time arrangement which seems to have started with his first application of seeking a shared care arrangement with the mother where [the child] was to live with the father for 3 days and then the mother for 3 days.

3. As to parental responsibility, the father originally sought sole parental responsibility but by the end of the trial submitted that he sought an order that the decision making be shared.

4. By the end of the trial, the father had told the Court he would wish to have time on a week-about basis in a staged approach as determined by the court. The father abandoned his previous "first option" which was four days on four days off, shared care arrangement on the basis of the evidence of the Family Report Writer, Ms [N] who said this type of arrangement would not be in the child's best interests. The father also abandoned his third position which was for the child to live with him, having been specifically asked to clarify whether he was still pressing this.

...

1. The mother's response seeks on a final basis that she have sole decision making responsibility in relation to the major long-term issues of the child, with the father to be consulted on significant decisions and that the child live with her. In terms of the child's time with the father, the mother proposes that between 8 February 2025 and 31 January 2026 the child spend time with the father each alternate Saturday and Sunday, daytime only, between 9am and 6pm. The mother has said in her evidence that she is prepared to move to an overnight at the end of the second semester in 2025.

2. By the end of the trial and after hearing from the Family Report Writer's evidence and considering all of the other evidence, the mother supported a proposal put forth by the ICL, which is that there is to be a very slow unfolding period of time put in place to enable the child to hopefully develop the ability to overcome her mutism. The mother proposed that the child be able to commence her formal schooling in starting prep in 2025, and that during the year, say September 2025 that the child then have one overnight with the father and that it very slowly increase over a period going forward. The mother stated that she supports the proposal for changeovers to occur at the McDonalds in [...] and seeks for there to be orders that provide "clear guidance if there is something happens, if something broke down or something, then where do we go from there".

3. The mother also seeks an order permitting her to apply for a [Country S] citizenship for [the child], which was made by consent on the final day of trial. At the end of the trial, the father also consented to the mother travelling to [Country S] with [the child] for an urgent visit given the serious illness of a close family member.

4. The mother's position at the end of the trial in terms of the father's proposal to travel overseas with [the child] was, that she seeks an order that the father must consult with and get the mother's consent for the child to go overseas, and that a bond be considered. The mother further stated that she does not agree for [the child] to travel overseas with the father this year, as she has not spent time away from the mother in a long time and it is not the best timing for [the child]. The mother seeks to be able to travel to [Country S] on a regular basis as a part of her parenting orders.

5. Generally, in relation to the living arrangements for [the child] the mother has adopted the draft submitted by the ICL noting that the ICL changed her submissions from the draft orders during the process of submissions.

(Emphasis in original) (Footnotes omitted)

1. To give further context to some of the grounds of appeal, the primary judge's reasons identify that each of the parties and the ICL had been overwhelmed by the voluminous amount of material returned on subpoena. The first tranche of the trial commenced on 1 October 2024. The matter was stood down to allow the parties to view updated material recently returned on subpoena. On Day 6 of the trial, being 11 February 2025, arrangements were made for each of the parties to attend the registry to view subpoena material. The primary judge's reasons summarise:
   1. The evidence in this matter has been voluminous, the ICL Counsel [...] has tried her best to canvass the subpoena material relevant to each party, and cross examine on the relevant parts to assist the Court. The mother and Father as self-represented litigants, each waded through much material noting in particular the father's material spanning over 600 pages.
   2. The father has been particularly distracted by the subpoena material. The father has been combing through the material, looking for any word or sentence that he considers damaging to the mother, regardless of the overall context. The father has been seemingly trying to memorise and then quote what is in the subpoena material rather than focusing on providing the court with answers in response to questions rather than reciting subpoena material.
   3. Added to that, is the lengthy affidavit prepared by the father and his numerous annexures (the father's trial affidavit is 581 pages (without an index) which also presented a challenge for the ICL and her Counsel and the Court in trying to assist these self-represented parties through cross examination and the court processes. The Father's material (which he has divided into three parts) dedicates significant time to a narration of all of the interim orders and case management hearings which he and the mother have attended. It has taken him considerable time albeit it has only limited relevance at a final hearing. The father has taken aim at the ICL any time throughout these proceedings when the ICL has not supported his case or his position, whether a major or minor issue, or when the ICL has not supported his ideas as to how the matter might be resolved. The father regards the ICL not supporting him on an issue at an interim (or final) hearing as a sign of bias and has reported to others his view that the ICL is biased. The father also told the Family Report writer that the ICL was biased and that he would bring an application to have the ICL removed. That never eventuated. The father also has various theories and suspicions about who has been doing things at court events or after court events, (usually the ICL but sometimes the mother) which he then links up to an event about something that did or did not happen to prove his theory.
   4. It seemed to me that each of the mother and father started to understand the child focus of the court and the ICL, more and more as the trial proceeded.
   5. Each of the parties have had other witnesses to support their case. The father decided to subpoena the mother's treating psychiatrist during the mother's hospital admission on [...] (Dr [G]) in 2020 to give evidence. The father also subpoenaed a worker from the contact Centre (witness K). The father was also given leave to call his mother late in the trial, in addition to his other witnesses.

1. The reasons include other matters relevant to the father's complaints on appeal:
   1. The father was cross examined at length by Counsel for the ICL, [...] which took three days. The father was then cross examined by the mother for a day and a half. The father who has a very strong sense that he is not being treated as fairly as the mother, has complained that he was cross examined for longer than the mother and queried why wasn't she cross examined for as long as I was. His cross examination took a long time firstly because his affidavit material was vast and invited cross examination. The father's affidavit includes 917 paragraphs (around 188 pages) and around 393 pages of annexures - 581 pages all up. Additionally, the father was not as responsive to questions being asked under cross examination and he was not prepared to make concessions against his own interests. This meant that he would deny propositions put to him and that required the cross-examiner to slowly go through each component of a particular issue, getting the father's agreement step by step to prove that his denial was inaccurate. A simple example is when it was suggested to the father that he lived in a share house to which the father said several times that "I don't live in a share house". He clearly does live in a share house but would not concede this, wishing to draw a distinction that he leases the house and then he sublets two rooms in the house. The father has given what I regard as a distorted versions of events at times, or told half-truths, to avoid admitting that he has been intimidating towards the mother or to portray himself in a good light and to portray the mother as being utterly unreasonable.

1. As to the father, the primary judge found unchallenged on appeal:
   1. Overall, I found that the father at times gave misleading evidence in order to portray himself in a better light. I do not accept the father has been candid with the court and I find him to be an unreliable historian.
   2. The father's communication with the mother is high handed and disrespectful. The father has a very domineering personality which he directs towards the mother or others in order to get what he wants. The mother is respectful, and anxious at the father's domineering communication and acts towards her. I accept that the father's communications and actions have caused the mother to be intimidated and fearful.

1. As to the mother, the primary judge found:
   1. The mother is an intelligent mature mother who showed exceptional child focus. Given the contents of the comprehensive body of evidence before the Court of the ongoing barrage of communications from the father which has contained a variety of threats and which has continued for years, I accept the mother's evidence that she has found this intimidating and caused her to be fearful of the father. The mother has faced the ongoing threat that if she did not do what the father wanted in terms of him having 50% shared care, or dealing with selective mutism as determined by him, and other issues, that he would use all avenues available to him to ensure that [the child] would not be travelling with the mother to return to [Country S] to see her maternal family, for at least another 10 or 14 years. The mother has had to face the father's continued behaviour in making false reports about her mental health in order to undermine the mother's standing and secure advantage in these proceedings and undergo unnecessary mental health examination because of the father's action. The mother has had to endure the constant threat, that if she does not do what the father wants, [the child] will be withheld by the father. The mother is well aware of the anxieties of [the child] which she has described in her material, and which appears to under lie [the child's] inability to speak to other adults. The mother has experienced the father attempting to isolate her closest friends.
   2. The mother was an impressive witness, who has given truthful evidence. Whilst the mother is not immune from criticism, I was satisfied that she has always supported [the child]'s relationship with the father and that the allegations that she has alienated [the child] from the father and tried to prevent [the child] from having a close relationship with the father are unfounded. The mother has a deep understanding of [the child]'s frailties and she is aware of how [the child] can be emotionally distressed and how to resolve that distress. I accept the mother's evidence as to the call she overheard in September 2024 when the father was telling [the child] that by her 6th birthday, he might not be here, he would be living in the USA he might have to go away and not see her again. The mother was genuinely distressed as to how much damage this statement of the father would cause [the child], already fragile, further emotional damage.
   3. The mother's evidence was not dented by way of cross examination by Counsel for the ICL or the father. The mother explained how limiting the Orders have been for her in terms of having no weekend time with [the child] and no holidays. Nonetheless, the mother has patiently waited for the final hearing and for four years complied with the Orders.
   4. The mother's material is succinct, and she has given an honest account of descriptions of incidents that have occurred which the mother says she has found intimidating and overbearing and which she has felt controlled by the father. I accept her evidence that she has felt intimidated and fearful of the father's unpredictable reactions and behaviours to herself or others.

1. As to the Child Impact Report, the primary judge said:
   1. At the time of her report Dr [O] held concerns about the proposed share care arrangement given the family violence issues identified as raised by the mother, and the lack of positive co-parenting relationship together with [the child]'s stage of development, which requires time to adjust to the change in care introduced recently.
   2. In recommending a Family Report be prepared to assess the risk identified, and inform on long term parenting arrangement, it was noted that the changeovers of care had been problematic, and if there is to be face to face contact between the parents this would increase the risk of [the child] being exposed to family violence. Dr. [O] therefore recommended the use of a Contact Centre for changeovers to establish less opportunity for conflict inflicted on [the child]. This recommendation was taken up through Orders of the Court, and as will be seen in the evidence, the father has strongly agitated with the mother that the need for this supervision of handovers is completely unnecessary.
2. The reasons record the substantial volume of evidence produced over the 10-day trial, particularising the conduct of the father and its impact on the mother. Findings were made that the father's conduct directed to the mother met the broad definition of family violence in s 4AB of the Family Law Act 1975 (Cth) ("the Act").
3. Findings were made as to the father engaging in patterns of intimidation and threats in a sustained campaign of intimidation and coercion against the mother over four years post-separation. This included voluminous communications (emails, texts, and messenger messages) containing threats that unless she complied with his demands, including for equal time and overnight care, the father would:

(a) Withhold the child;

(b) Seek orders that the child be removed from her primary care;

(c) Seek a recovery order;

(d) Subpoena the mother's mental health records;

(e) Release those records;

(f) Seek costs against her;

(g) Overseas litigation in the USA; and

(h) Involving the Federal Police Watchlist to prevent the mother from travelling internationally.

1. The primary judge found these attempts at leverage and threats to be "high handed and disrespectful" and that "[t]he father has a very domineering personality", causing the mother to feel fearful and intimidated.
2. Findings were made that the father "constantly pressed the mother to operate outside of the Orders of the Court". A finding was made that his repeated false reports about the mother's mental health and attempts to involve police and health authorities were unfounded and harmful.
3. A finding was made that the father physically and aggressively removed the child from the mother's care on 9 August 2021 against her wishes, causing distress to both the mother and the child. He later appeared unannounced at the mother's garage on 1 September 2021, tried to open her car door, and knocked on windows while the mother and the child were inside. The primary judge accepted that the mother found the event to be intimidating and frightening.
4. Findings were made as to the father's efforts to threaten the mother's supports. He sent "cease and desist" emails and threatened domestic violence applications against the mother's friends (including Ms P, who gave oral evidence at trial) to deter them from supporting the mother. The primary judge found the father's conduct to be controlling and designed to isolate the mother from her support network.
5. The father told the child during a phone call that he might move to the USA, she might have a "new father," and he might not attend her sixth birthday. The primary judge accepted the evidence of the Family Report writer, Ms N, that the father by way of this conduct perpetrated emotional abuse, likely causing harm to the child.
6. As will be seen, the father, in prosecuting his appeal, refuses to accept these multitude of findings, or that they establish him occasioning family violence as defined by the Act. His approach to the appeal is to attempt to retry the case as to family violence.
7. The primary judge made further findings that the father's conduct towards others, including contact centres, the child's kindergarten and the ICL, was "domineering, threatening, intolerant and dismissive of the views of others".
8. The extensive written and oral evidence of the Family Report writer, Ms N, was accepted by the primary judge, including the reasons for an extremely slow introduction of overnight time, subject to the father's accommodation, to account for the child's selective mutism and anxieties; and as to the impact of the father's focus on the mother and his lack of insight into the effect of his behaviour on others. The primary judge accepted the evidence of Ms N as to the benefits of school being a "safe place" for the child.
9. The primary judge assessed the risk to the safety of the mother and the child cumulatively, by way of the totality of the evidence, concluding:
   1. I consider that the father's conduct and insistence of causing the mother intimidation and fear through all of his ongoing threats and behaviour, strongly suggests that [the child] needs to be removed from the possibility of being caught up in further conflict, which I consider is created by the father, not the mother. It is also apparent that the father has a complete absence of trust or respect for the mother. He regards her as untruthful, calculating, and manipulative. The father considers that the mother is responsible for interfering in his friendships, whereas the opposite is the position. The father's conduct has demonstrated the amount of anger he has towards the mother. Unfortunately, the father's animosity towards the mother, seemingly for leaving him, has not resolved over the past four years.
   2. It was suggested to the father by the Child Impact Report Writer, that the father would gain more from some personal counselling than getting advice from likeminded fathers. This was good advice but there is no evidence of the father taking it. I note also that the father has said he did the Post Orders Parenting Course some years ago. Clearly, that has not helped the father to peacefully navigate the separation from the mother or to engage in respectful co-parenting. As [the child] spends more time with the father and is therefore exposed to the father's attitudes and contempt of the mother, I consider that it is very likely that this will flow on to [the child] who will find herself most conflicted. It is possible that it will affect [the child]'s relationship with her primary career [sic], the mother**. [The child] already has anxiety and mutism**. I consider that the future Orders need to accommodate the need for [the child] to be quarantined from as much conflict as possible.
   3. In terms of the safety of the mother, I am satisfied that the more engagement and communication she has to have with the father, going into the future, that the more she will be subjected to the father's dictatorial and overbearing and controlling coercive behaviour. There is no evidence that the father has even a glimpse of insight to realize [sic] the gravity of his intrusive domineering behaviour and threats or that he has to desist from his behaviours described in these reasons.

Family Violence

1. The father categorically denies he has engaged in conduct that would constitute family or domestic violence. He accuses the mother of "faking" being afraid of him.

2. I accept the observations of the Family Report writer that there is a significant power imbalance in this relationship and that the father has conducted himself in an intimidating and at times frightening way towards the mother. I am satisfied he has been passively aggressive and demeaning towards the mother, and that he has been overbearing, dominating and threatening. He has a complete lack of respect for the mother.

3. The evidence that has been placed before the Court over this 11 day trial, comprehensively reveals that in a multitude of ways, the father has through a long series of events, been intimidating and threatening through voluminous communications, directly and indirectly (through and to friends and others) and his actions towards the mother, for a sustained period of some four years, since the mother they separated in April 2021, and the moved out in July 2021.

(Emphasis added)

1. While the primary judge found that the father loves the child and enjoys spending time with her, was capable of providing care during daytime visits and has maintained a relationship with the child despite conflict, his parenting capacity was significantly compromised by his controlling, domineering, and intimidating behaviour towards the mother and others involved in the child's care. He lacked insight into the child's developmental and emotional needs, prioritising his own desire for equal time over the child's vulnerabilities and best interests (at [292]).
2. Findings were made that the father failed to prioritise the child's needs, demonstrating poor judgment by insisting on overnight care in a share house with male tenants, despite the child's age, anxiety, and selective mutism, including that he refused to acknowledge risks associated with leaving the child unattended while he slept and showed alarming naivety about safety concerns. The primary judge found the father's share house arrangement unsafe for the child, and that the father refused to obtain suitable accommodation, prioritising rental income over the child's welfare.
3. The primary judge found that the father failed to engage constructively in the child's treatment for selective mutism, declining a parent-only session offered by the psychologist and that he ignored informative emails from the mother, admitting that he would not respond to them unless a question was asked, contradicting his complaints about poor communication. A finding was made that the father preferred to police the mother's parenting rather than actively parent.
4. Further findings were made that the father displayed rigidity, a lack of flexibility, and poor insight into the child's needs, including her anxiety and developmental vulnerabilities.
5. The reasons record:
   1. My findings in relation to the power imbalance between the mother and father, together with my findings as to family violence satisfies me that an equal time arrangement as proposed by the father is not possible and would place the mother in a position described by the Family Report Writer as 'fraught with danger' and similarly place [the child] in a position of being exposed to ongoing conflict and witnessing her mother being intimidated. [The child] would also be exposed to the father's ongoing mistrust and lack of respect for the mother. These factors combined with the father's lack of parenting capacity, preclude the prospect of the father's proposed shared care equal time arrangement. A shared care arrangement would necessitate ongoing communication between the parties at times on a daily basis, about all of the parenting issues relating to [the child]. Simple issues like items left behind at once [sic] house, would be seen by the father as opportunities to create major disputes. This would be most disadvantageous for [the child] in the long term and would result in the mother trying to parent in an atmosphere of ongoing fear. For the same reasons, even if the father had pressed his application to have [the child] to live with him primarily (which the father did not press at the end of the trial), that proposal would contain the same dangers and be unsafe for both [the child] and the mother.
6. The primary judge concluded that the perpetration of family violence upon the mother was central in not accepting that the father's proposal for equal time or shared care was in the child's best interests and directed the order as to the mother having sole parental responsibility for long-term decision-making for the child. The father's parenting capacity was found to be significantly impaired by his controlling behaviour, unsafe accommodation, and lack of child-focused insight, leading the primary judge to conclude that the child's best interests were met by a very slow, staged increase in the father's time, starting with daytime only and conditional overnight time, with strict restraints on accommodation and conduct.

1. The orders subject to challenge on appeal are:
   1. All previous Orders and Parenting Plans be discharged, save for the orders appointing an Independent Children's Lawyer and the final Orders by Consent (Orders 1 to 5) dated 27 February 2025.

Parental Responsibility

1. The mother shall have sole parental responsibility for the child [...] born [...] 2019 ("the child") and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the child including but not limited to:

(a) The child's education (both current and future); and

(b) The child's religious and cultural upbringing; and

(c) The child's health; and

(d) The child's name; and

(e) Changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

1. The mother will advise the father of any long term decision she has made concerning the child within 14 days of making that decision.

Living arrangements

1. The child is to live with the mother.

2. The child will live with the mother at all times, other than the times the child is to spend time with the father pursuant to these orders, restraints and conditions set out in these Orders.

3. As of the date of these Orders, the child will live with the mother until Saturday 23 August 2025 and have no contact with the father.

Time with the father

1. Commencing on Saturday 23 August 2025, the child will spend time during the day with the father between the hours of 9:00am to 4:00pm on each of Saturday and Sunday each alternate weekend until Saturday 20 September 2025.

Overnight time will only commence subject to conditions

1. The child's overnight time with the father (set out in the subsequent Orders herein) with the father is conditional upon:

(a) The father's compliance with the Orders and restraints relating to the child's accommodation referred to at Order 20 to 24 (inclusive).

Stage one - father to commence first overnight

1. Commencing on Saturday 20 September 2025 the child will spend time with the father from:

(a) 9:00am Saturday until 4:00pm Sunday each alternate weekend until Friday 20 March 2026; and

(b) This time will continue to occur each alternate weekend through the September and Christmas 2025 school holiday periods; and

(c) This overnight time is subject to the restraint set out in Order 20.

Stage two - father commences two overnights

1. Commencing on Friday 20 March 2026 the child will spend time with the father from:

(a) After school on Friday (or 3:00pm on a non-school day) until 4:00pm Sunday each alternate weekend until Friday 18 September 2026; and

(b) This time will continue to run each alternate weekend through the school holiday periods in April and June/July 2026; and

(c) This overnight time is subject to the restraint set out in Order 20.

Stage three - father commences three overnights

1. Commencing on Friday 18 September 2026 the child will spend time with the father from:

(a) After school on Friday (or 3:00pm on a non-school day) until the commencement of school on Monday morning (or 9:00am if not a school day) each alternate weekend.

(b) This overnight time is subject to the restraint set out in Order 20.

12. The child will live with the mother at all other times.

School holidays

Definition: The expression school holiday period for these orders means the period from 3pm on the last day of the school term to 3pm on the day immediately before the start of the next term.

1. From the September school holidays in the year 2026 the father's regularly occurring alternate weekend time (Friday to Monday morning) will continue to run uninterrupted through each of the school holiday periods including Christmas 2026.

(a) This alternate weekend time running through the school holiday periods will continue until the commencement of the September 2027 school holiday period; and

(b) This order is subject to the restraint in Order 20 herein.

1. From the September school holiday period in the year 2027 the child will spend time from Friday after school (or from 3.00pm if a non-school day) to 9.00am the following Tuesday with father:

(a) during the first week of the school holidays in Terms 1, 2, and 3; and

(b) On weeks 1, 3, and 5 of the 2027 Christmas school holidays; and

(c) This order is subject to the restraint in Order 20 herein.

1. From the September school holiday period in the year 2028 the child will spend time from Friday after school (or from 3.00pm if a non-school day) to 9.00am the following Wednesday with father:

(a) during the first week of the school holidays in Terms 1, 2, and 3; and

(b) On weeks 2, 4, and 6 of the 2028 Christmas school holidays; and

(c) This order is subject to the restraint in Order 20 herein.

1. From the September school holiday period in the year 2029 the child will spend time from Friday after school (or from 3.00pm if a non-school day) to 9.00am the following Thursday with father:

(a) during the first week of the school holidays in Terms 1, 2, and 3; and

(b) On weeks 1, 3, and 5 of the 2029 Christmas school holidays; and

(c) This order is subject to the restraint in Order 20 herein.

1. From September 2030 onwards the father will spend time with the child for the first half of all gazetted school holidays for Terms 1, 2, and 3, commencing in September 2030 (even year) and the second half of all gazetted school holidays for Terms 1, 2, and 3 in odd numbered years.

(a) This order is subject to the restraint in Order 20 herein.

1. Commencing in the 2030 Christmas school holiday period, the father will spend time with the child for one half of the holiday period, however that time is to be taken on a week on week off basis which will occur:

(a) in weeks 2, 4, and 6 in even numbered years; and

(b) in weeks 1, 3, and 5 in odd numbered years, alternating each year thereafter.

(c) This order is subject to the restraint in Order 20 herein.

Special Days

1. Notwithstanding any other Order herein the child will spend the following special occasions with each of the parents as specified below:

...

(c) When Chinese New Year falls on a school day, the child will always spend from after school or 3pm on Chinese New Year with the mother until 7pm on Chinese New Year Day with the mother, if she is not otherwise living with the mother pursuant to these Orders. When Chinese New Year falls on a weekend (that the child is not already living with the mother) the child will live with the mother from Chinese New Year eve from 9am to Chinese New Year Day at 7pm.

...

Restraints and Orders in relation to the child's overnight time with the father

1. The father is restrained from having overnight time with [the child] at his current share house at [...], Australia, or any other share house. To be clear, the term "share house" is any accommodation (including his own home or rented accommodation) in which the father is a tenant or has tenants.

2. In the event that the father wishes to have his overnight time with [the child] at his mother's home, he is to inform the mother in writing of this prior to collecting [the child] and he is to cause his mother to also provide written confirmation to the mother that [the child] is staying with her overnight.

3. In the event the father moves from his current share home and secures new accommodation in which there will be no tenants, he must provide written confirmation to the mother, as set out below, that he has now secured different accommodation which is not a share house, NOTING the findings of the Court that the current accommodation style of a share house is unsafe for the child. The father is to:

(a) Prepare in affidavit form, his commentary as to finding new accommodation and explain the nature of the accommodation to the mother; and

(b) provide the mother with the address of the new accommodation; and

(c) Annex a copy of the lease agreement; and

(d) Make a promise in the affidavit that he will not have tenants in the home and he will not be subletting by private agreement (as he currently does) allowing tenants to stay in the home; and

(e) Not withhold any relevant information from the mother; and

(f) Have the affidavit properly sworn and witnessed and send the affidavit and attachments to the mother.

1. Until such time as the mother provides her agreement in writing to any new accommodation referred to in Order 22 herein, the father's overnight time at his new home will not commence.

2. In the event that the father does not organise alternate accommodation for himself or take up the opportunity to spend overnight time with [the child] at his mother's, the father's overnight time will not occur and the time set out in these Orders will remain at daytime only on all of the days he spends time with [the child].

Changeovers

1. On school days, changeovers will occur to and from pre-school, school or vacation care where the time the child is delivered or collected, coincides with the Orders; or

2. On all other occasions including on a non-school day during the school holidays, the changeovers will occur inside the McDonalds Family Restaurant at [...] or other location as determined solely by the mother, from time to time.

Communication

1. When the child is not with the other parent, the parent with whom the child is spending time with, will ensure that the child has Facetime, or telephone time with the other parent at the following times and manner:

...

(e) The mother is at liberty to change the days and times of the calls, to accommodate the child's extra-curricular activities or other obligations, from time to time.

Other Orders

1. The general communications between the mother and father about the child shall occur through the use of parenting App and tea rents are the agree which App is to be used and each are to do all acts and things to download and set up that up within 14 days of this Order. In the event that there is disagreement as to which App is to be used, the mother is to nominate the App and the mother and father are to do all acts and things to download and use that App.

2. In the event that the child suffers a medical emergency whilst with either parent, that parent will immediately notify the other parent by phone and or text. If this occurs during the father's time, he is to inform the doctors and other medical professionals that the mother has sole decision making for all medical matters relating to the child.

...

1. The father is to keep the mother informed of his residential address at all times.

2. If the child has reason to be taken to the Doctor whilst the child is spending time with the father, he to inform the mother that day of the child's visit to the Doctor and provide the mother with the name of the Doctor and the advice given regarding the child's condition. The father is to also inform the Doctor that the mother has sole decision making in relation to the child's medical matters.

Overseas Travel

1. The Australian Federal Police give effect to this order by removing the name of the child [...] born [...] 2019 from the Family Law Watchlist and the father is restrained from placing the child's or mother's name on the watch list or taking any action to prevent the mother and child leaving Australia as they are permitted to do pursuant to the terms of these Orders.

2. Noting s65Y of the Family Law Act 1975 (Cth) this order is sufficient authority for the mother to remove the child (named in these Orders) from the Commonwealth of Australia or agree to the child travelling outside of the Commonwealth of Australia for the purpose of a holiday or educational reasons, for up to three weeks each year commencing in 2026 as set out in the Final Orders. In addition to that time, the mother is also permitted to remove the child from the Commonwealth of Australia from time to time in the event of serious illness or death of the mother's immediate family in Country S (parents, step parents and siblings). To affect this the mother will:

(a) give the father four weeks' notice of the time that the travel will be occurring save and except for an urgent trip due to illness or death of a family member, where four weeks' notice is not possible, at which time the mother will give the father notice of her intended urgent travel without undue delay; and

(b) Provide a copy of the child's return airline ticket and general travel itinerary NOTING THAT the mother is not required to list out the address of each and every person or relative that the mother is visiting or to provide their phone numbers or comply with other directions from the father for ongoing information; and

(c) Use her best endeavours to facilitate the child contacting the father via phone or Facetime (at the discretion of the mother) twice a week whilst she is overseas.

Passport

1. The mother will retain possession of the child's passports.

2. In terms of renewing the child's passport, within seven (7) days (or in the case of urgent travel, immediately upon receiving the application from the mother) of receiving a request to do so, the father will do all things and sign all documents necessary to renew the child's Australian passports from time to time as and when required.

3. In the event that the father refuses to sign the documents necessary to renew the child's Australia passport then the child shall be issued with a passport notwithstanding the failure of the parent to sign such documents (pursuant to section 11 of the Australian Passport Act 2005).

Restraints

1. The father is restrained from removing the child from the Commonwealth of Australia.

2. Pursuant to section 68B, for the personal protection of the mother and child, the father is restrained from attending within 100 meters of the mother's home and/or workplace.

3. The father is restrained from corresponding with the child's school and/or requiring the school to answer his questions/demands regarding the child's schooling NOTING THAT the mother has sole decision making about the child's education.

4. The father is permitted to attend the child's school, for the purposes of dropping off and collecting the child at times only as set out in these Orders, however, other than for this purpose, the father is not to attend school or school events and functions normally attended by parents unless he receives written agreement from the mother. If and when the father does attend at the child's school (as provided for in these Orders, his attendance is always subject to the discretion of the school authorities.

5. The father is restrained from discussing or revealing the contents of any subpoena material in this trial with anyone other with a lawyer acting for him, noting the father's assurance to the Court that he would not be doing this.

(Emphasis in original)

1. The father does not challenge on appeal the remaining orders as to other time the child spends with the parties on special days, other communication the child has with the parent she is not spending time with, the parties' keeping each other informed as to their current contact details, and procedural orders.

1. The primary judge in this matter exercised a broad discretion in making orders regulating the parenting of the child 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 ("House"), 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. The father frequently strayed from these principles, and from the need to demonstrate a material error, veering into running the appeal hearing as if it were another first instance trial. The focus on appeal is identifying relevant error - no more, no less.
2. The weight given to evidence in the exercise of discretion in making parenting orders that promote the best interests of children is a matter quintessentially for the primary judge. Error is not established simply by showing that another judge may have come to a different decision. As was identified in Kellerman & Kellerman [2024] FedCFamC1A 126:
   1. There is no doubt that in making parenting orders, the Court is exercising a very broad discretion. In CDJ v VAJ (1998) 197 CLR 172 the majority said "The evidence in residency cases is often such that the same body of evidence may produce opposite but reasonable conclusions." (at [140]). They added:
      1. The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [[1985] FLR 894 at 897-898], Lord Fraser of Tullybelton pointed out:

"The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."

1. The purpose of a Notice of Appeal is to identify with precision in the grounds of appeal the errors that are asserted. Unless an error is reasonably obvious, the onus is on the appellant to identify the error. While allowance is made for the father being without legal representation, he is bound by the same principles and obligations as any other litigant, in that the appeal is confined to the metes and bounds of the subject matters of his grounds of appeal. An appellate court cannot be expected to hunt through the broadly expressed arguments that are set out in an appellant's Summary of Argument with a view to distilling a concise ground or grounds of appeal, nor dig through many affidavits, transcripts and decisions in order to find material which may be relevant to the questions in the appeal (Newett and Newett (No 2) [2021] FedCFamC1A 11; (2021) FLC 94-051 at [34] referring to Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 at [3]).
2. The father's grounds of appeal are a gallimaufry of appellate terminology, conflating disparate categories of alleged errors to the making of specified orders. His mantra as to repetition of differing combinations of appellate phrases in each of his grounds features in a not dissimilar language in his Summary of Argument.

1. The father's Amended Notice of Appeal filed on 4 November 2025 sets out his grounds of appeal:

Part E - Preliminary Grounds of Appeal

1. Cumulative Factual Errors

The Trial Judge made multiple factual errors which cumulatively resulted in adverse findings against the Father and parenting orders contrary to the child's best interests under section 60CA of the Family Law Act 1975 (Cth).

...

15. Failure to Consider or Properly Weigh Family Violence Allegations Against the Mother

Admitted conduct by the Mother (e.g. removing and withholding the child) was not properly weighed, nor was its impact on the Father or child considered. Relevant counselling notes were excluded.

...

Ground One - Parental Responsibility [Order 2, 3, 32]

The primary judge erred in fact, procedural fairness and in the exercise of discretion under s 61C and 61D of the Family Law Act 1975 (Cth) by:

(a) making findings and orders for sole parental responsibility in favour of the mother that were not reasonably open on the evidence;

(b) failing to consider relevant contextual matters surrounding those findings; and

(c) providing broad and non-specific reasons that did not expose the path of reasoning, contrary to the principles in House v The King (1936) 55 CLR 499 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

Ground Two - Living Arrangements [Orders 4, 5, 7]

The primary judge erred in fact, law and in discretion in finding that the appellant had engaged in family violence and emotional abuse within the meaning of s 4AB of the Family Law Act 1975 (Cth), without identifying or properly analysing any specific conduct capable of satisfying the statutory definition, and by failing to apply the analytical framework in Pickford & Pickford [2024] FedCFamClA 249, thereby denying procedural fairness and leading to erroneous findings affecting the assessment of parenting capacity and the resulting parenting orders.

Ground Three - Overnight time subject to conditions [Orders 8, 20-24]

The primary judge erred in law, fact and discretion by finding that the appellant's living arrangements were unsuitable and posed a risk to the child, and by giving that issue significant weight under s 60CC(2)(f). [The primary judge]'s finding mischaracterised the appellant's home - his primary residence for ten years with two long-term tenants - as a "share house." The conclusion lacked evidentiary basis, ignored unchallenged evidence of stability and safety, and applied inconsistent reasoning between the parties, resulting in discriminatory and unreasonable restrictions on overnight time.

Ground Four - Extremely slow integration of time [Orders 7, 9-11 & 13-18]

The primary judge erred in law, fact, and discretion by adopting an extremely slow integration schedule for overnight time and holiday time, relying upon the unqualified evidence of Ms [N] (Family Report Writer) and the unsupported suggestions of the Independent Children's Lawyer (ICL) without any admissible expert foundation.

Ground Five - Overseas Travel [Orders 33, 35, 38]

The primary judge erred in law and in the exercise of discretion by, on her own motion and without application or notice, making permanent injunctions that (a) restrain the father from removing the child from the Commonwealth of Australia; (b) restrain the father from ever again placing the child or the mother on the Family Law Watchlist; and (c) require the mother to retain possession of the child's passports. These orders were made suo-motu, without any evidentiary foundation or submissions from the parties, and rested upon speculative inferences and generalised personality assessments rather than proof of any actual or prospective risk of abduction or non-compliance.

Ground Six - Personal Protection Injunction pursuant to 68B [Order 39]

The primary judge erred in law, in fact and in the exercise of discretion, by making without evidentiary foundation, a personal-protection injunction under s 68B of the Family Law Act 1975 restraining the father from attending within 100m of the mother's home and/or workplace. The order was made suo-motu and without affording the father procedural fairness, in circumstances where neither the mother nor the Independent Children's Lawyer had initially sought such relief. Only until the conclusion of trial and upon delivering final submissions did the ICL at close of trial on the date of 27 February 2025 seek the injunction. This constitutes a miscarriage of discretion within the meaning of House v The King (1936).

Ground Seven - School Restraints [Order 40, 41]

The primary judge erred in fact, in law, and in the exercise of discretion by making, without evidentiary foundation, overly broad and disproportionate restraints preventing the father from corresponding with the child's school or attending school events except with the mother's consent. The breadth of the restraint - forbidding all correspondence or attendance absent maternal consent - fails to give weight to the benefit to the child of a meaningful relationship with both parents (s 60CC(2). The reasons did not expose the path of reasoning as required by Soulemezis v Dudley (Holdings) (1987) 10 NSWLR 247 and Bradto Pty Ltd v State of Victoria [2006] VSCA 89 at [35]. The orders therefore reflect error of law, fact, and discretion within House v The King (1936) 55 CLR 499.

Ground Eight - Subpoena Restraint [Order 42]

The primary judge erred in fact and discretion in finding that the father had disclosed subpoena material concerning the mother's mental health to his sister, when the transcript shows she referred only to a report about the child's emotional wellbeing and had not seen any subpoena material. This factual error unfairly supported the judge's broader, erroneous conclusion that the father had illegitimately weaponised the mother's mental health.

Ground Nine -New Evidence [Rule 13.39 Family Law Rules 2021]

New, credible evidence unavailable at trial has arisen in the eight months since its conclusion.

It could not reasonably have been obtained earlier and would likely have led to materially different findings regarding: (a) the mother's capacity to meet the child's educational requirements, and (b) the child's selective mutism condition. These findings underpinned orders granting the mother sole parental responsibility, sole residence during school terms,

and an extremely slow integration of overnight and holiday time.

The new evidence shows:

1. The mother's continuing failure to ensure the child's punctual school attendance.

2. The child's selective mutism is now in remission, undermining the factual basis for the restrictive time orders and supporting a material-change application under 65DAAA.

3. Post-trial use of a parenting App has significantly improved communication, rendering sole parental responsibility unsustained. (CDJ v VAJ (1998) 197 CLR 172)

Ground Ten - Procedural Unfairness: Evidence Excluded or Ignored [Rule 13.20(1)(b)]

The primary judge erred in law and in the exercise of discretion by failing to admit or consider probative evidence properly before the Court, including the father 's Revised Tender Bundle (25 February 2025), email submissions dated 18 March 2025 (Subpoena 16 - Department of Education), and expert psychiatric material and questions directed to Dr [G] and Dr [H] (Documents 75-77). The exclusion or disregard of this evidence denied procedural fairness and resulted in findings not open on the evidence, particularly those that the father had weaponised the mothers mental health, that the mother was a credible witness who would not abuse sole parental responsibility, and that the case was largely about domestic violence and not the relapse, or risk of relapse of the mothers mental health. The failure to consider relevant and credible material, constitutes an error of law and a miscarriage of discretion. (House v The King (1936) 55 CLR 499; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247)

Ground 11 - Denial of Procedural Fairness (Judicial Deference to a Partial ICL)

The primary judge erred in according undue deference to the Independent Children's Lawyer (ICL) during trial, despite evidence that the ICL's conduct lacked impartiality and favoured the mother. The ICL engaged in prolonged and unbalanced cross-examination of the father (19 hours across six days, compared with eight hours for the mother) and received undisclosed communications from the mother during the trial. The judge thereafter relied heavily on the ICL's submissions and assessments, reflecting unfair deference that compromised the appearance of impartiality and denied the father procedural fairness.

(Emphasis in original)

The father's Application in an Appeal to adduce further evidence on appeal filed on 18 November 2025

1. The application was supported by an affidavit filed by the father on 18 November 2025. In so far as the application sought to adduce evidence of audio and video recordings, those documents were tendered at the trial before the primary judge (Exhibits F4, F11 and M6) and are before me on appeal.
2. The application was opposed by the mother and the ICL.
3. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act") gives an unfettered discretion to admit further evidence on appeal. The High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172 ("CDJ v VAJ") laid down clear guidelines that are to apply to the reception of further evidence on appeal, observing (as to s 93A(2) of the Act, the predecessor of s 35 of the FCFCOA Act):
   1. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

...

1. .... The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

...

1. In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).

2. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.

...

1. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.

...

1. ... The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.

(Emphasis added) (Footnotes omitted)

1. Relevant to appeals concerning parenting orders, the High Court in CDJ v VAJ observed:
   1. The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better "custodian" of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
   2. The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interests in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
2. The father submitted that the further evidence was relevant to Grounds 1, 2, 4, 5, 7, and 10.
3. As to Ground 1 and Ground 2 he identified that the proposed further evidence would "undermine the factual foundations" recorded at [66], [162], [192], [276], [285], [286], and [371], such that a "materially different finding would likely have been made" as to the allocation of responsibility for long term decision making and as to live with arrangements. The identified paragraphs of the reasons record:
   1. At this point, the father had reported the mother as having mental health episodes on at least four occasions to the police, ambulance and/or hospitals, following the mother moving out of the home on 27 July 2021.

...

1. I consider that if the father was genuinely interested in [the child]'s condition and her therapeutic treatment, he would have grabbed the opportunity to have a one-on-one information session regarding selective mutism which was offered to him. Further, this was the perfect opportunity for the father to provide any background information or medical or psychological history of his own that may have been of relevance to the treating professionals. The father did not do this. Further, it is likely that the appointment is designed to be for parents only (without the child present), so that this information session can be conducted in the absence of [the child], which would be entirely appropriate. I do not accept the father's rambling answers that effectively said the psychologist told him it was not worth his while to go, and I consider that this part of his evidence was untruthful. I also reject the father's repeated statements to the court that he did not decline to go to the parent only session. This is another incident where the father could not bring himself to make a statement against his own interests.

...

1. Simultaneously while these debates are going on, the father became deeply suspicious that the mother is about to go overseas with [the child] alleging that [the child] was going on a trip. This leads to the father making more threats through multiple emails as seen below:

3:45pm today is the time within which a response is requested, and failing a sufficient answer [the child] will not be returned today. That question is on your intentions to remove [the child] from Brisbane for any reason and by any method with specific reference to flying, before the trial in October.

[The mother], Answer the previous question about taking [the child] outside of Brisbane or she will not be returning subject a new court hearing. [The child] is not permitted to travel. She will be withheld until her next kindergarten due date if you fail to disclose truthfully.

[The mother]. In the event that you attempt to take [the child] overseas this week by commercial air travel be aware that the Federal Police will detain you. In the event that you travel domestically this week with [the child], be aware that the truth of your travel will be obtained through cross examination at our final trial. While it is not illegal to travel domestically, it is extremely questionable to remove [the child] from much needed Kindergarten time to do so and questionable to obfuscate and lie about your travel plans to myself and by default the ICL. It is also a violation of the Court Rules on disclosure to refuse to co-operate on issues. In the event that you have lied about your intent to travel, it will only reinforce the evidence against you for a permanent Order for [the child] to remain on the Federal Police Watchlist until the age of 14 as presently requested, preventing [the child] from leaving Australia absent private commercial air travel. Be advised I will be calling [the child] via video call on Monday, Wednesday and Friday this week at 12.00pm, and the video calls may be recorded. Be advised also that [the child]'s Kindergarten may be subpoenaed to obtain all communications and information related to [the child]'s enrolment and attendance.

...

1. Dr [H] retired quite suddenly in 2024 due to his own serious ill health and was not available for cross examination by the father. The report of Dr [H] was very comprehensive and explained clearly that the mother's mental health episode was directly related to her pregnancy and birth and that whilst the mother's mental health episode has now resolved. Dr [H] considered that:

This depressive illness which arose in the post-partum period is now in complete remission.

The risk of a recurrence of this depressive illness is now low as it arose in the post-partum period, and in the absence of the experience of pregnancy delivery and the post-natal life issues that can arise for a mother, there is no other life history of this sort of psychiatric illness for the Mother.

She is at very high risk of a recurrence of post-natal depression if she chooses to have another baby.

...

1. The evidence is that the mother's psychiatric condition was largely resolved by April 2020 but fully resolved by no later than September 2020.

2. I accept the uncontested evidence of Dr [H] and the evidence given by Dr [G], both of whom are in agreement about the diagnosis and recovery of the mother. I reject the father's elevation of his own opinions over those of the experts.

...

1. I am satisfied that the mother's proposal wherein [the child] lives primarily with her mother as proposed by the mother, would enable [the child] to live in a peaceful home environment, provide [the child] with stability and routine, cause her less anxiety, and reduce the prosect of her being exposed to argument and conflict. The mother is acutely aware of [the child]'s fragilities and of her strengths. The mother has the requisite parenting capacity to provide for [the child]'s emotional and psychological needs, and her educational and medical needs. The mother supports and encourages her continuing engagement through language and other experiences in maintaining her cultural connection through the maternal family. The mother's proposal is the most advantageous for [the child] and is the arrangement that will be promote her best interests and enable [the child] to achieve her full potential in life.

1. As to Ground 4 and Ground 7 the father identified that the evidence challenges the findings as to the child's selective mutism, its impact on the rate and terms of the progression of the spend time regime between the child and the father, and the restraints as to the father corresponding with the child's school or attending school functions and events unless he receives written agreement from the mother. He identified a single relevant paragraph of the reasons:

...

1. As to the father's time, I will adopt the very slow and cautious approach for the reasons given in the evidence of the Family Report Writer. Ms [N] considered that it is unknown as to how [the child] will cope with the transition to overnight time, given her anxieties and selective mutism. I intend therefore, to make orders for a very gradual transition as to do otherwise could likely result in [the child] not coping with such a significant event, given everything else she is coping with. I consider that it is particularly important in light of [the child]'s selective mutism and the ongoing efforts to help her address this. The Family Report Writer said:

- - - something else be more appropriate for [the child]?---As [the primary judge] will know, the - obviously, the - the - the range of issues that come before her, if I'm talking, and if I'm making a recommendation for people, or for parents who have got a relatively reasonable form of co-parenting relationship, that - that being that, you know, there are not allegations of - of domestic violence - certainly not to the extent that we have got at the moment - but, you know, they managed to be able to be child-focused, then I would generally recommend the increments occur per school term. For this case, though, I think that a six-monthly interval is probably better. And if [the primary judge] was looking, and minded to consider the end of term 2 - so the school holidays for June - end of June, beginning of July - that would then make the next increment possibly into the next lot of school holidays, which would prevent there being any changes occurring for [the child] through that second half of her prep year. So I do agree that, all going well, and [the primary judge] not - or [the primary judge] considering that - what is in the best interests of [the child], I do agree that getting to potentially an end goal, or an outcome, of Friday to Monday will probably significantly help these parents, because changeovers can then occur within the school term, at the school. Initially, that may need to be supported by a family member, if - if [the primary judge]'s a bit concerned about that. But certainly, it will prevent the ongoing cost of a contact centre. And certainly, make it a more natural arrangement for [the child].

1. The further evidence sought to be adduced on appeal relevant to Ground 1 and Ground 2 was said to challenge the primary judge's findings sourced from the evidence of two experts as to the mother's resolution of her mental health challenges by September 2020 (at [285] and [286]), the historical family violence of the father and its effects (at [108]-[201]), including using the father's description (but not a descriptor used by the primary judge) as to him "weaponising" the mother's mental health, and as to his parenting capacity and the mother's parenting capacity (at [371]).
2. The categories of further evidence sought to be adduced on appeal are:

(a) A clinical note produced on subpoena by Hospital F during the mother's admission in 2020. The content of the note was repeated in the father's trial affidavit. Hospital notes were considered by each of Dr H and Dr G. The subject matter of the clinical note was canvassed in cross-examination of the mother and Dr G. It was available for tender at trial.

(b) A clinical note dated March 2020 as to the mother expressing a desire to go to Country S. The father submitted this evidence was relevant to the findings as to family violence and to Ground 5 as to the injunction preventing him from travelling with the child and the mother being permitted to hold the child's passport. The document was produced on subpoena and available to tender at trial.

(c) Emails of the father in September 2024 as to the availability of experts for cross-examination and the father's objections to evidence. The father submitted that this evidence demonstrates "the significant efforts [he] went to" to have a medical specialist (Dr G and Dr H) give expert evidence on selective mutism other than the "unqualified opinion" of the family report writer.

(d) A clinical note dated 24 October 2024 produced on subpoena recording the father seeking involvement in the child's "canine therapy". The father submitted this evidence "directly refutes" the primary judge's finding as to him lacking interest in the child's condition and therapeutic treatment (at [162]). The transcript records that this was provided to the Family Report writer during her cross-examination (Transcript 26 February 2025, p. 142 line 16 to p.143 line 3).

(e) An application for school enrolment form completed by the mother recording incorrect contact information for the father and not identifying him as an emergency contact. The father submitted this evidence was contrary to the primary judges' finding (at [371]) as to the mother's parenting capacity. The document was produced on subpoena, being released to the parties on the second last day of the trial. The child's school enrolment was extensively canvassed at trial. The father said that he cross-examined the mother on this document during the trial (Transcript 25 February 2025, p.66 line 35 to p.69 line 41).

(f) A note from the child's teacher dated 28 January 2025 recording the child communicating with various people at school produced on subpoena on the second last day of the trial. The document was available to the father to tender at trial.

(g) An email from the father to the primary judge's associate dated 18 March 2025 attaching the document at (e) above and identifying specific pages of the subpoena material to which leave had been granted to inspect during the proceedings he proposed to tender into evidence. Each of the documents either identified in the body of the email or attached were available to the father to tender at trial. In addition, the father sought to tender an email dated 10 November 2025 that he directed to Law Firm Q, the duty lawyer, requesting confirmation as to his attendance with them on 14 March 2025. He said these documents are relevant to the complaint in Ground 10 as to a lack of procedural fairness because evidence was "excluded or ignored".

(h) App communications between the parents over a period of five months post-trial. The father submitted that "[t]his neutral period" demonstrated "[t]here are no communication issues precluding shared parental responsibility or shared care".

(i) Controversial documents as to the child's late attendance at school on 83 occasions from 29 January 2025 to 13 November 2025. The father said this evidence established an error in the findings as to the mother's capacity as a parent.

(j) A video recording of the child on 9 May 2025 speaking into a microphone sent by the mother to the father. The father said this was evidence that the child's selective mutism is improving. The father submitted this evidence was relevant to the rate of the integration of overnight time between him and the child and him attending school events.

1. The documents at (a) to (f) were available to tender at trial with comparatively little diligence, as were the documents identified in, or attached to, the father's email dated 18 March 2025 at (g). The father did not explain why he failed to adduce them into evidence at trial. The transcript records those materials being made available for inspection during the trial.
2. The emails only at (g) dated 18 March 2025 and 10 November 2025, but not the attachment at (e), will be admitted into evidence on appeal for consideration of Ground 10.
3. The balance of the documents at (a) to (f) are shards of evidence that do not fall into the category of that identified by the High Court in CDJ v VAJ.
4. As to the documents at (h) to (j), tellingly, the father said that these documents achieve (one) of the thresholds prescribed by s 65DAAA of the Act, being an asserted significant change in the circumstances of the child, to ignite an application to vary the parenting orders under challenge. Irrespective of the merit of his contention, during the hearing of the appeal the father accepted that these documents, and hence the controversial facts he asserts they establish, could not produce an outcome before the primary judge that is likely to have been different.
5. I am not satisfied that the further evidence at (a) to (f), the attachments to (g), and the evidence at (h) to (j) has any impact on the appeal and thus does not meet the requirements identified by the High Court, namely that it is necessary to receive it to avoid an error "which cannot be otherwise remedied by the application of the conventional appellate procedures" (CDJ v VAJ at [109]).
6. The father's Application in an Appeal filed on 18 November 2025 is allowed in part as to the adducing by way of further evidence in the appeal his email to the primary judge's associate dated 18 March 2025, and the email to the duty lawyer dated 10 November 2025. It is otherwise dismissed.

1. The father's complaints identified as "preliminary grounds of appeal" one and fifteen were recorded in the father's Notice of Appeal filed on 5 September 2025 and not deleted in his Amended Notice of Appeal filed on 4 November 2025. The appellant placed a line through the remaining 26 grounds from his Notice of Appeal in his Amended Notice of Appeal in accordance with r 2.52(3)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). Leaving aside whether each of the "preliminary" complaints are recognisable or competent grounds of appeal, neither were addressed in the father's Summary of Argument. An order made by the appeal judicial registrar on 3 October 2025 afforded an indulgence to the father for his Summary of Argument to be double in size to that prescribed by the Rules, his summary being thirty pages in length (see r 13.23(2)(c) of the Rules).
2. Rule 13.23(2)(a) of the Rules provides:

(2) For the purposes of subrule (1), a summary of argument must:

(a) set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript); and

(4) Issues not identified in the summary of argument may not be advanced at the hearing of the appeal except with leave of the appeal court.

1. Exchange occurred during the hearing of the appeal as to the father's capacity to seek leave to make an oral application for leave to make submissions in support of each of the "preliminary grounds of appeal" one and fifteen. The father did not make an oral application during the hearing of the appeal for leave to make submissions in support of these grounds or to dispense with the Rules to enable him to do so. Given the failure of his Summary of Argument to elucidate them, they are rejected.
2. Ground 8 is directed to Order 42, restraining the father from discussing or revealing the contents of subpoena material to others except his lawyers. He assured the primary judge that he would not do so. No appeal competently lies from this order because it does not constitute a "judgment" (s 7(1) and s 26(1) of the FCFCOA Act). It did not determine the proceeding, nor any issue in the proceeding, nor did it conclude any substantive legal rights of the parties, and hence cannot be the subject of appeal (The Commonwealth v Mullane [1961] HCA 28; (1961) 106 CLR 166; Yule v Junek [1978] HCA 4; (1978) 139 CLR 1 at 14; Rilak (No 2) [2022] FedCFamC1A 100; Jess & Jess (No 3) [2023] FedCFamC1A 2; Ancer & Ancer [2024] FedCFamC1A 90 at [18]-[19]).
3. Ground 9 appears to be, but is not, a proper ground of appeal. It is directed to the procedural application to adduce further evidence in the appeal determined earlier in these reasons and hence is determined.
4. As the grounds mix asserted errors of procedure, law, fact, and discretion, I will adopt an approach of grouping the categories of complaint as best as they can be understood. Ground 11 complains as to apprehended bias and a failure to afford procedural fairness. Grounds 1, 2, 5, 6 and 10 raise concerns of procedural fairness. Consistent with principle it is appropriate to deal with those grounds first as to those specific complaints, as they go to the integrity of the trial process (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577). The other complaints posed in those grounds will be considered later.

1. The construction of the father's ground, the content of his Summary of Argument, and the authorities relied upon in support of the ground, each direct a complaint of apprehended bias of the primary judge. During the hearing of the appeal the father confirmed that the complaint was made of the ICL, not the primary judge. He sought by way of the ground that the "ICL should be dismissed from any future hearings". The ground as prosecuted is incompetent.
2. These complaints must be considered in context. The ICL is appointed pursuant to s 68L of the Act. Section 68LA of the Act prescribes the role and duties of an ICL. The ingredients of the father's complaints as to the conduct of the ICL's discharge of her function include:
   1. During trial, the ICL tendered Document 55 (ICL 3 - Bundle of Emails), consisting of emails sent unilaterally by the mother to the ICL during the hearing (EAB Vol 4: 2918-2937). These were not disclosed to the father, contrary to procedural fairness and the ICL's obligations of neutrality.
   2. Between 2 October 2024 and 12 February 2025, the ICL [...] cross-examined the father for 19 hours and 28 minutes across six trial days (2 Oct 2024; 3 Oct 2024; 4 Nov 2024; 10 Feb 2025; 11 Feb 2025; 12 Feb 2025). In contrast, the mother was cross-examined over three days for 8 hours and 49 minutes. This disparity in both duration and scheduling highlights a procedural imbalance.
   3. [Counsel for the ICL] raised numerous written and oral objections against the father, but none against the mother, reinforcing the appearance of partiality. She also sought harsh injunctive orders, including arrest provisions under s 114, that were not open on the evidence.
3. Albeit not explicitly contended, the father said that these factors established that the ICL did not act impartially in her dealings with the parties (s 68LA(5) of the Act).
4. These complaints require context by way of background:

(a) The father complained 10 months prior to trial that he apprehended bias on the part of the ICL. The father's complaints motivated the ICL to apply to withdraw from the proceedings on 26 September 2025. The father did not support the ICL's unsuccessful application to withdraw (Transcript 26 September 2024, p.2 line 39 to p.18 line 6).

(b) The reasons record:

1. .... the lengthy affidavit prepared by the father and his numerous annexures (the father's trial affidavit is 581 pages (without an index) which also presented a challenge for the ICL and her Counsel and the Court in trying to assist these self-represented parties through cross examination and the court processes...The father has taken aim at the ICL any time throughout these proceedings when the ICL has not supported his case or his position, whether a major or minor issue, or when the ICL has not supported his ideas as to how the matter might be resolved. The father regards the ICL not supporting him on an issue at an interim (or final) hearing as a sign of bias and has reported to others his view that the ICL is biased. The father also told the Family Report writer that the ICL was biased and that he would bring an application to have the ICL removed. That never eventuated. The father also has various theories and suspicions about who has been doing things at court events or after court events, (usually the ICL but sometimes the mother) which he then links up to an event about something that did or did not happen to prove his theory.

...

1. On 24 September 2024, four working days prior to the trial which was listed to commence on 1 October 2024, the ICL emailed the Court seeking to bring an urgent application to withdraw on the basis that the father in his affidavit filed 29 August 2024 had made unfounded allegations about the ICL with respect to apprehended bias. The Court listed the matter on short notice for hearing of the urgent application on 26 September 2024.

2. Submissions were primarily based on the fact the father had made a range of accusations of bias about the ICL. The father did not press any application in this regard, nor was there any evidence apparent that would have supported that. During this mention, the Court inquired with each of the mother and father as to whether they sought to have the ICL withdraw. Each of the mother and father advised the court that they did not seek to have the ICL withdraw and that they did not wish to have the trial delayed for probably another eight months or more as per the indication of the ICL Counsel as to the proposed course of withdrawing all that would follow from that withdrawal. The ICL Counsel proceeded with the application for the ICL to withdraw. The father appears to be under the mistaken view that if the ICL does not agree with him on every point and position, that the ICL is biased. There are many self-represented parties who criticise the ICL if they don't consider the ICL is supporting them, and this was the position in this matter. After hearing the submissions of the ICL and parties, the ICL's request to withdraw was refused and reasons were provided accordingly. The trial proceeded on the listed dates.

(Emphasis added)

1. As a starting point, it is an unexceptional incident of the function of an ICL to make forensic decisions throughout pre-trial processes and during a trial. Section 68LA(2) of the Act requires that an ICL must form an independent view, based on the evidence available, of what is in the best interests of the child, and act consistently with those best interests in the proceeding. The father could not identify any authority to support his contention that an apprehension of bias of an ICL in conducting a Pt VII child related proceeding pursuant to Pt XI Div 4 of the Act could result in a miscarriage of justice.
2. A judge does not enquire of a litigant or their lawyers during a trial as to how the litigant's interests are protected and promoted. Absent application, it is not appropriate for a trial judge to be asked to determine how the duties of an ICL should be discharged, or to interfere with, or meddle in, the way an ICL decides to discharge their duties, unless there is some foundation identified to the judge to support a compliant that their engagement is other than proactive and in accordance with the Act.
3. The father's complaint as to bias by way of Ground 11 is a derivative of dissatisfaction with the ultimate result. It has no value on appeal and is rejected.

Depravations of procedural fairness - Grounds 1, 2, 5, 6, 10 and 11

1. The father incorporates into these grounds complaints as to restricting cross-examination; denials of opportunities to be heard in the making of s 68B injunctions; refusal or neglect to accept documents to be tendered into evidence; "reliance on untested documents" (being those produced on subpoena adduced into evidence and the author of the document not being available for cross-examination); the admission into evidence of the Child Impact Report and the report of the ch 7 single psychiatric expert, Dr H, when neither expert was cross-examined; complaints as to "punitive and disproportionate" orders; complaints as to the weight given by the primary judge to individual pieces of evidence; and broad complaints as to judicial intervention absent context. The effect, he contends, was a denial of procedural fairness which impugned the orders subject to challenge, but implicitly not the orders unchallenged on appeal.
2. As a concept, procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). Procedural fairness requires each party to be given an adequate opportunity to be heard and present their case (Kioa v West (1985) 159 CLR 550). It is only the opportunity to present evidence and argument which the interest of justice requires, not the actuality of it.
3. Ground 1 and Ground 10 contend subcategories of complaint as to a failure to afford procedural fairness.
4. The first subcategory is as to what the father identified as his "revised tender bundle" bearing a date of 25 February 2025. The father submits that his attempt to adduce the bundle into evidence was unfairly refused, making some references to the transcript to support his compliant. His submission is not supported by the transcript. It records:

[THE FATHER]: Okay. And your Honour, I've submitted more material, which I'm seeking to be able to use as evidence. I've distributed a copy electronically to everyone. I only have a paper copy of this material myself. It's relevant in relation to questioning and answers that [the mother]'s given previously in her cross-examination.

It's relevant to the case. It's relevant to a lot of stuff. It's relevant to documents that I'm wanting you to have a copy of. It's relevant - - -

[THE PRIMARY JUDGE]: Basically, you don't get to keep adding to your evidence.

[THE FATHER]: Yes, I understand.

[THE PRIMARY JUDGE]: Just listen. What day are we up to, [the father]?

[THE FATHER]: This would be day eight.

[THE PRIMARY JUDGE]: Okay. So we don't just keep saying, "great, I think I've thought of a few more things." You asked me in the witness box, could you re-give one of your answers? And the answer is no, because you were given every opportunity to give your answers. You don't get to go home and think about them overnight and come back and say, "I would like to give another answer." So I have no clue, at this point, in the cross-examination as to why I will be receiving any more evidence from you.

[THE FATHER]: Well I guess, your Honour, I will just have to cover it as we go and see if you want to accept it at that point in time.

(Transcript 25 February 2025, p.3 line 43 to p.4 line 21) (Emphasis added)

1. The trial continued for two more days, being 26 and 27 February 2025. The father accepted at the hearing of the appeal that he said to the primary judge that he would tender the bundle into evidence later in the trial, that he had the opportunity to do so, and that he did not avail himself of that opportunity. No error on the part of the primary judge is established. This subcategory, as to a failure to afford procedural fairness, is misconceived.
2. The second subcategory is directed to the further evidence adduced on appeal, being the email the father sent to the primary judge's chambers on 18 March 2025 attaching a further volume of documents. The father submits that the "failure [of the primary judge] to deal with properly lodged, procedurally orthodox, post-trial submissions was a denial of procedural fairness". It is necessary to unpack this subcategory of complaint.
3. Assuming the further evidence establishes that the father was advised by a duty lawyer to unilaterally email the primary judge's chambers to provide the attached material and not, as he asserts, to file an Application in a Proceeding to re-open the evidence, the father agrees that neither the mother, the ICL, or chambers replied to his email. If the advice of the duty solicitor to the father was not to file an application to re-open, it was mistaken. The father did not explain why he failed to follow up the absence of reply to the email or take any further action over the following five months that judgment remained reserved after the email was sent.
4. This complaint is not a manifestation of procedural unfairness. The doctrine of procedural fairness is concerned only with the fairness of a hearing up until the time of its conclusion. The doctrine has no application thereafter (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; (2021) 272 CLR 329). The father agreed at the hearing of the appeal that he could not establish that the email had come to the attention of the primary judge. He did not explain on appeal how a failure of the primary judge to afford procedural fairness can occur absent knowledge of the relevant action or inaction subject to complaint.
5. If that conclusion is in error, the father did not file an Application in a Proceeding to re-open. He had ample opportunity to do so. Further, the "new" evidence attached to the email was not new at all. It was available for inspection on production of subpoena during the trial, and hence available for tender at trial. It was not.
6. Additionally, the gravamen of the submission of the father that, if an application for re-opening was made, the decision would have been different had the further evidence been adduced, is not established. Nothing in the father's proposed additional evidence could reasonably have met the discretionary criteria to re-open. The purported further evidence was tangential and largely irrelevant to the primary judge's reasoning and hence could not have led to a different outcome nor any practical injustice. He did not demonstrate on appeal that any alleged procedural error, if it occurred, cold meet the threshold of materiality to the outcome (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321).
7. The third subcategory of procedural complaint is that the primary judge **"**refused" to permit the father to take formal objections at the commencement of the trial and hence he did not have the opportunity to be heard. The father could not identify in the transcript where he requested the primary judge to consider the objections, albeit he had reduced them to writing. In circumstances where he did not ask, he could not be refused. This complaint as to a failure to afford procedural fairness on this basis is meritless.
8. The father then shifted the ground of the third subcategory of procedural complaint to:

(a) The admission into evidence of a raft of documents produced on subpoena, including hospital and medical notes, and contact changeover centre records because the authors of these documents were not available for cross-examination. The substance of this complaint by the father is incompatible and irreconcilable with him tendering the same categories of documents as part of his case; and

(b) The primary judge "preventing" him from cross examining some of the court experts on the contents of their reports.

1. These derivative complaints are dealt with in short compass:

(a) During the hearing of the appeal the father was directed to the provisions of s 102NL of the Act, providing that the applicability of the provisions of Pt 3.2 and Pt 3.3 (hearsay and opinion) of the Evidence Act 1995 (Cth) are excluded from operation in child-related proceedings. He accepted that any complaint as to the admission of this evidence did not engage a procedural fairness complaint but dissolved to an issue as to the weight to be given to that evidence; and

(b) The ch 7 single psychiatric expert Dr H was unavailable to give oral evidence at trial. The primary judge's reasons record "Dr [H] retired quite suddenly in 2024 due to his own serious ill health and was not available for cross examination by the father" (at [276]). The father's complaint on appeal as to being prevented from asking Dr H his prepared questions reduced to writing is illogical (Transcript 1 October 2024, p.5 lines 9-27). His complaint as to a denial of opportunity to cross-examine Dr H by the primary judge is misconceived. The opportunity did not ever exist and hence could not be denied. The father did not identify in his Summary of Argument, or by reference to the Appeal Book or transcript during the hearing of the appeal, any objection to the Child Impact Report of Dr O dated 15 July 2022 being tendered into evidence, or as to any request being made for that expert to be available for cross-examination.

1. As to the same procedural complaints raised in Grounds 2, 5 and 6 in different ways, the father was afforded the opportunity over the four tranches of the trial extending over a period of five months to present his own case and to challenge the case made against him by the mother and the ICL, achieving the basal requirement of procedural fairness. He issued subpoenas to give evidence to both Dr G, the wife's treating psychiatrist in 2020, and a witness from the professional contact changeover service. The father sent subpoena material from the Mental Health Service R to the Family Report writer, Ms N, during her cross-examination (Transcript 26 February 2025, p.142 line 16 to p.143 line 2). He cross-examined the mother, Dr G, and Ms N, as to the contents of Dr H's report and the hospital and medical notes. He made submissions as to the weight to be given to the evidence. He made submissions responding to the application of the mother and the ICL for personal protection injunctions, notwithstanding relief of this character emerged in the last tranche of the trial.
2. The father's contention made during the appeal that the primary judge, the mother, or the ICL, were obliged to adduce evidence from a witness with expertise as to selective mutism, such that the adducing of evidence of this character was the responsibility of anyone other than himself, is folly.
3. The father made bare assertions as to judicial interventions, making some references to the transcript. Those references over the 10 days of trial record the process and considerations of the primary judge making determinations of justiciable disputes by conventional procedure between imperfect litigants. The primary judge did so in compliance with, and in discharge of the obligations "to actively direct, control and manage the conduct of the proceedings", mandated by Pt XI Div 4 of the Act in child related proceedings, to quell the controversies between the parties as they arose (Lainhart & Ellinson [2023] FedCFamC1A 200; (2023) FLC 94-166). The father's complaints, if they be as to excessive judicial intervention, are baseless.
4. The father has not made out any failure to afford him procedural fairness. The grounds as to a failure to afford procedural fairness are wholly rejected.
5. Those remaining parts of the father's complaints in Grounds 1, 2, 5, 6, 10 and 11 as to an alleged failure to give "any" consideration to the contended issues in the grounds, or failures to give them "proper" consideration, invoke something akin to a weight complaint in the evaluation of evidence. These complaints are considered in conjunction with other grounds.

Legal error as to approach or principle - Ground 2 and Ground 5

1. Ground 2 complains the primary judge had failed to apply what was said to be "the analytical framework" articulated by the Full Court in Pickford & Pickford [2024] FedCFamC1A 249 ("Pickford") as to findings of family violence. The Full Court in Pickford recorded disagreement between joint judgments in interpreting the definition of family violence in s 4AB(1) of the Act and the approach to findings of coercive control. The definition in the Act is:

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

1. The father identified the following paragraph from the decision of the Full Court in Pickford underscoring his ground:

1. When determining an allegation that a person has engaged in behaviour that coerces or controls a family member, a trial judge will undertake a forensic examination of all relevant evidence to:

(a) identify the behaviour about which complaint is made; > > (b) identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator; > > (c) identify the impact of the behaviour on the alleged victim (mere assertion by the alleged victim that they feel coerced or controlled is insufficient); > > (d) make all relevant factual findings; and > > (e) explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.

2. The gravamen of the father's complaint as to legal error by way of Ground 2 is that the primary judge found his "lawful procedural conduct" to constitute family violence causing the mother fear. As identified by the Full Court in Pickford:

1. The definition [of family violence] is exclusive, not inclusive. Notwithstanding the obvious breadth of the definition, it is disjunctive and admits of "violent, threatening or other behaviour" amounting to "family violence" in only one of two ways, being behaviour of that sort which:

(a) "coerces" or "controls" a family member - which is an objective concept focussing upon the characteristic nature of the perpetrator's behaviour towards the victim; or > > (b) causes the family member to be "fearful" - which is a subjective concept instead focussing upon the victim's reaction to the perpetrator's behaviour.

3. While a party is entitled to exert a legal right, the finding subject to challenge was as to the mother's reaction of being threatened, harassed and intimidated by the father's repeated strategic use of litigation. This finding falls into the definition in s 4AB(1) of the Act as behaviour that constitutes family violence. Further, as recorded earlier herein, numerous paragraphs in the primary judge's reasons are unassailable as to the application of relevant authority in making findings as to family violence within the definition of s 4AB of the Act. The complaint as to legal error in Ground 2 is misconceived.
4. Ground 5 makes complaint as to a failure of the primary judge "to apply the structured criteria" in Line & Line [1996] FamCA 145; (1997) FLC 92-729 when "assessing [him as an] alleged flight risk". He did not identify any particulars of that "structured criteria". The father's Summary of Argument restricts complaint in Ground 5 as to discrete orders restraining him from removing the child from Australia (Order 38), restraining him from placing the child or the mother on the Family Law Watchlist (Order 33) and allowing the mother to retain the child's passports (Order 35). While he asserts that the mother poses a flight risk, Country S not being a signatory of the Hague Convention on the Civil Aspects of International Child Abduction (1980), he does not challenge that part of Order 33 permitting the child to travel outside of Australia with the mother.
5. Contrary to the father's submissions, there is no requirement at law to provide "equal treatment to the parents" when making travel orders. A mandate of a parenting order is that it must promote the best interests of the child. The reasons make it plain as to consideration of relevant s 60CC and s 68B factors on these subject matters (at [392]-[399] and [403]-[404]). The complaint as to legal error in Ground 5 has no merit. The father's complaints as to the restriction on his travel with the child being "disproportionate, unsupported by evidence, [and] inconsistent with the treatment of the mother's travel" are complaints as to alleged factual error or as to weight in the evaluation of evidence.

1. The primary judge's findings were informed by impressions of the reliability of the various witnesses as the evidence unfolded. That includes findings of secondary facts, which are based on a combination of advantage enjoyed by a primary judge in the impressions gained from witnesses, and "other inferences from primary facts" (Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]).
2. To succeed with these complaints the father must demonstrate that the findings made subject to challenge were not reasonably open (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. An impugned finding of fact will only be disturbed if it was either demonstrably wrong by incontrovertible facts or uncontested testimony, glaringly improbable, or contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550).
3. The evaluative conclusions under challenge as to family violence as recorded earlier in these reasons are derived from a culmination of primary and secondary findings based in part upon the primary judge's assessment of the father as he gave his evidence, and of his demeanour and credibility, and reliant on inferences and conclusions drawn from other aspects of the evidence. The father's behaviours were meticulously evaluated over the four years since separation The father does not identify that the findings as to family violence were "not open" or glaringly improbable or contrary to compelling inferences. Findings of fact are not wrong merely because an appellant can point to some countervailing evidence (Cizek & Mihov [2024] FedCFamC1A 151; (2024) FLC 94-206). Any challenge as to an error of fact by way of Ground 2 and Ground 10 have no merit.
4. Ground 3 challenges the conclusion as to the father's share house arrangement being unsafe for the child because the:
   1. ...Unchallenged evidence showed the father as sole leaseholder for ten years, with two lawful subtenants and a dedicated room for the child, who had safely attended there at daytime for 3 years.
   2. The court ignored uncontradicted photographic and affidavit evidence confirming the home's safety and failed to apply equal scrutiny to the mother's comparable living arrangements...
5. The finding as to risk is not wrong because the father may establish a differing view (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [17]). He has not established that the multifaceted prospective conclusions as to his accommodation posing a risk to the safety of the child (at [218]-[224], [252], [350] and [354]) are demonstrably wrong.
6. The father's Summary of Argument makes the integers of a contended factual error by way of Ground 5 difficult to distil. His submission that the orders under challenge were absent "evidentiary foundation" and that there was no evidence to ground a finding as to him posing a risk of abduction to the child, are plainly wrong. They fail to engage with the express considerations and findings in the reasons (at [392]-[399] and [403]-[404]). As considered earlier, the challenge to the findings as to the father's propensity to direct coercive and controlling behaviour upon the mother and that he had maintained an abundance of anger directed to the mother over the four years since separation, such that he could not stop ruminating about her, was unsuccessful. The conclusions of the primary judge as to:

(a) The father's threats to remove the child from the jurisdiction;

(b) Having no confidence that the father would return the child, and that he may persuade others to assist him in that endeavour;

(c) That he would not respect and comply with any travel orders; and

(d) As to him using the airport watch list to threaten and coerce the mother, referring to a text message where he said he would do that very thing,

were all open on the evidence. The father did not articulate why they were not. His complaints as to factual error by way of Ground 5 are not established.

1. In Ground 6 the father asserts that the evidence does not "justify" Order 39 made for the personal protection of the mother and the child, reflecting a factual challenge. Within this context, he asserts that his conduct does not warrant a finding that he has occasioned family violence. The contentions as to factual error underscoring the discretion to order s 68B injunctions for personal protection are meritless for the reasons identified earlier (at [400]). His derivative contention that there was no legal basis for Order 39 is no more than a bare assertion and has no merit. Ground 6 as to a factual error was always misconceived.
2. In Ground 7 the father, using the same formula as in Ground 5 and Ground 6 but with different language, complains that there was "no evidentiary foundation" for the making of Order 40 and Order 41, identified by him as the "school restraints". Again, the complaint fails to engage with the express considerations and findings in the reasons (at [402]-[403]) including finding that the father's communication with the school about the child will be deliberately problematic and designed to cause difficulty as has occurred in the past during his interactions with daycare centres. The primary judge identified a threatening communication from the father on this subject matter in February 2025. His submission as to a failure to balance the prospective conduct if he attends the school is a baseless weight complaint. His ultimate complaint is that the restraint orders under challenge, in his view, are disproportionate and oppressive, and can only be a product of the father electing to ignore the clearly established findings of the primary judge. Ground 7 as to factual error rings hollow.

Discretionary error as to failing to consider a relevant circumstance and/or considering an irrelevant circumstance, complaints as to weight - Grounds 2, 3, 4, 5, 6, 7, and 10

1. These grounds as to failing to consider a relevant matter mix these complaints with those of inadequate reasons. While they raise a similar issue, but in different ways, they are the subject of different principles. Combining them in the grounds or in sets of submissions is entirely unhelpful.
2. As to the discretionary complaints made in Grounds 2, 3, 5, 6, 7 and 10, they in essence re-engineer the contended legal and factual errors considered earlier in these reasons and are not established for the reasons considered earlier. The father's grievances are nothing more than his view that the primary judge ought to have reached different conclusions and hence are rejected.
3. The primary judge was not required to mention every fact or argument relied on by the father, nor was she required to make an explicit finding on each disputed piece of evidence, provided the inference of a finding is sufficiently clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Rafferty & Spencer [2016] FamCAFC 97; (2016) FLC 93-710 at [30]). The father did not identify on appeal any contended omitted fact that would have been material to the determination made. As considered earlier in these reasons, the evaluation of the issues in dispute at trial clearly established features of the evidence leading the primary judge to prefer one factual conclusion over another.
4. As to Ground 4, the implicit complaint as to the weight afforded by the primary judge to the Family Report writer's evidence is sourced from a challenge to the expertise of the witness. The father did not raise that issue at trial. He is bound by his case at trial and cannot raise such an issue on appeal (Metwally v University of Wollongong (1985) 60 ALR 68).
5. As raised during the hearing of the appeal, in so far as each of the grounds direct complaint that the primary judge did not place enough weight on pieces of evidence which the father perceived was favourable to his case, so analysed, they are not competent grounds of appeal that lie from this discretionary judgment (House). Complaints in an appeal about too much or too little weight being attributed to some portion or portions of the evidence are meaningless unless it is contended that the overall result was manifestly unreasonable or unjust (Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065). No ground of appeal asserts the appealed decision fell into that category.
6. The discretionary challenges in Grounds 2, 3, 4, 5, 6, 7 and 10 fail.

1. The grounds assert insufficient reasons were given by the primary judge for reaching certain findings. They are not complaints that the reasons were inadequate to explain the overall judgment - only that the reasons were inadequate to explain certain findings.
2. The grounds are answered and rejected by advertence to well-known legal principles. It is only necessary that the appellate court be able to discern from the reasons, either expressly or by implication, the path by which the ultimate result has been reached (Bennett & Bennett [1990] FamCA 148; (1991) FLC 92-191; Yarrow & Yarrow [2022] FedCFamC1A 135). The content and detail required of reasons for judgment will vary according to the nature of the jurisdiction being exercised and the particular matter which is the subject of the decision (DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 at [32]-[33] ("DL v The Queen")). There is generally no obligation to give reasons for why individual pieces of evidence are accepted or rejected (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407 at [67]). Here, as considered and determined throughout the consideration of the father's grounds, the primary judge's reasons explain each particular finding of fact that was critical or determinative (DL v The Queen at [130]). The reasons plainly explain the outcome and are therefore adequate, even if the father disagrees with the decision. The grounds challenging the adequacy of the reasons of the primary judge are arid.

1. No ground of appeal was successful. The appeal, as amended, fails and will be dismissed

1. In the event the appeal was dismissed the mother sought costs of $1,045 and the ICL sought costs on a party and party basis at scale fixed in the sum of $20,000. The costs notice filed by the ICL evidenced that Legal Aid had paid $35,061.40 to the ICL in responding to the appeal.
2. The father opposed any order for costs.
3. The relevant principles as to costs are well settled. While the starting position established by s 114UB(1) of the Act is that each party pays their own costs, s 114UB(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 114UB(3) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 114UB(3) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient.
4. The father's submissions focused on his contended difficult financial circumstances. Financial impecuniosity, without more, is not a sufficient reason for depriving those opposing the appeal of their costs. The father was wholly unsuccessful in the appeal. That circumstance alone justifies an order that the father pay the costs of the mother and the ICL.
5. The volume of material in the appeal and engaging with its irregular construction is reflected in the costs paid by Legal Aid to the ICL up to the date of the hearing of the appeal. The ICL's costs notice provides a schedule as to the items of costs paid, concluding that the quantum of the fixed costs sought by the ICL are eminently reasonable. The quantum of the wife's costs in obtaining legal advice to respond to the appeal are modest.
6. The circumstances justify orders for costs of the appeal in favour of the mother and the ICL. The father did not seek that if costs were ordered that they be assessed. The fixing of costs avoids the prospect of further satellite disputes. It is just that pursuant to s 114UB(5)(a) the father pay within 28 days the mother's costs fixed at $1,045 and the ICL costs fixed at $20,000.

I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.