Family Law Case Notes – March 2026

Children – Majority of Full Court finds no error in orders for reversal of care and moratorium on maternal time – Cases where trial judge obliged to consider orders other than those sought by parties “likely to be rare”
In Arrighetti & Qodirova [2026] FedCFamC1A 1 (12 January 2026) the Full Court (McClelland DCJ, Riethmuller & Kari JJ) dismissed an appeal from final parenting orders of Jarrett J that reversed a primary mother’s care in favour of the father and placed a six month moratorium on the mother’s time with the parties’ 10 years old daughter.

The child had not spent any time with the father since “early 2022” as the mother alleged that the father had a “sex addiction” and that the child was a victim of sexual abuse by him. The father argued that the mother posed an unacceptable risk of harm and that she was incapable of supporting the child’s paternal relationship.
The Court did not accept that the child had been sexually abused by the father and found an unacceptable risk in her mother’s care. The mother appealed.

Riethmuller & Kari JJ said (from [210]):

“… [N]o alternatives were provided by the mother if it were found that she was unwilling or unable to facilitate the child’s relationship with the father… This was a clear tactical decision by the mother in how she ran her case, which … showed her lack of capacity to consider the needs of the child in a scenario where the … orders did not reflect her preference. … ( … )

[212] We respectfully disagree with the Deputy Chief Justice that a trial judge is required to consider orders beyond the scope of those presented by the parties.( … )

[215] There may be cases where a primary judge must consider options beyond those put by the parties, however, such cases are likely to be rare, especially where there is an Independent Children’s Lawyer … [T]here would have to be notice to the parties to afford them procedural fairness so as to allow them to address the issues and call further evidence on the issues if required.”

Procedure – Preliminary views of trial judge not apprehended bias (Hogan J dissenting)
In Leena [2025] FedCFamC1A 241 (23 December 2025) the Full Court (Hogan, Altobelli & McNab JJ) allowed in part a mother’s appeal against property and parenting orders of Anderson J.

After a 10 year relationship and two children (aged 10 and 7), interim orders were made by consent for equal shared parental responsibility, for the children to live with the mother and that they spend 3 nights per fortnight with the father. At trial, the mother sought sole parental responsibility and alleged an unacceptable welfare risk. The father sought orders for 5 nights per fortnight.

At the conclusion of the first day of trial the judge indicated that subject to further evidence and the evidence of the single expert, the Court was “not persuaded… that the father presents a risk to these children [and] … that a reduction of time is in their best interests”.

At the conclusion of the second day of trial, the wife’s cross-examination remained ongoing and the Court said “… I am going to struggle to find, on the evidence I have heard…, that the father presents a risk to the children… I would urge everybody to consider the minute that has been circulated by the independent children’s lawyer” ([43]).

The mother argued the preliminary views amounted to judicial bias.

Hogan J said (from [68]):

“Had the comments made at the end of days one and two of the trial been made during the course of submissions, or even following the close of the evidence and as a precursor to the taking of submissions… I would not have been persuaded that it would be reasonable that a hypothetical fair-minded lay observer might apprehend that the… judge might not bring an impartial mind to the resolution of the issues… ( … )

[71] … [T]he combination of the comments made … , the directions he gave to counsel for the respondent to cross-examine the appellant about certain matters … is such that a fair-minded lay observer might reasonably apprehend that the… judge might not have brought an impartial mind to the resolution of the issues…”

Procedure – No error in order pursuant to r 15.13 that permitted wife to inspect court documents filed in husband’s parents’ property settlement proceedings
In Verber [2025] FedCFamC1A 240 (22 December 2025) the Full Court (McClelland DCJ, Riethmuller & Kari JJ) dismissed an appeal from orders made by Jarrett J.

Orders were made pursuant to r 15.13 of the Federal Circuit & Family Court of Australia Rules 2021 (Cth) that permitted the wife to inspect responses and affidavits of the husband (together with all orders made) in the husband’s parents’ family law property litigation.

In the husband and wife’s proceedings, the husband said that there was no matrimonial property. The wife sought inspection of the husband’s parents’ court files where: i) the husband was a party to his parents’ litigation; ii) the husband told the wife that his mother sought declarations in respect of her then residence; and iii) the husband opposed that order on the basis that all of the families’ assets belonged to him ([6]). Permission was granted as the Court found that the wife had a proper interest in the information ([15]-[16]).

The husband, his brother and a trustee company all appealed. The wife said that an order for inspection of documents was not a judgment capable of appeal.

McClelland DCJ & Riethmuller J said (from [33]):

“The orders of the primary judge… were a command that something be done and determined the issue concerning inspection of the court files in another matter, which was an anterior step in the present proceedings… If the primary judge erred on the basis alleged in the grounds of appeal the result would be to permit the wife to inspect documents and obtain knowledge of their content, rendering any appeal after the final hearing largely nugatory… The orders… are appealable orders. (…)

[85] … [I]t is apparent that the wife was not ‘fishing’… The material the wife seeks has a real forensic purpose, if it is a previous inconsistent statement of the husband as to his property entitlements…, it would likely have real significance in her claim for a property settlement… ”

Kari J agreed with the appeal being dismissed but disagreed that an order for inspection was appealable.

Property – Court failed to refer to relevant principles when making injunctions against husband
In Aguirre [2026] FedCFamC1A 17 (9 February 2026) McClelland DCJ, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed in part a husband’s appeal against interim orders made by a Magistrate of the Family Court of Western Australia.

The parties were the husband, wife and a company (“B Pty Ltd”) of which the husband was sole director.

At first instance, the Court enjoined the husband from borrowing money, from increasing his wage, from selling assets and restricted his ability to access funds, including to pay legal fees ([41]). The Court ordered the husband pay maintenance of $794 per week plus … outgoings. The husband and B Pty Ltd sought leave to appeal.

The Court said (from [36]):

“ … [A]uthorities establish that the applicant for [an interlocutory] order must establish:

(a) That there is a real risk of assets being disposed of; and

(b) … [A]s a result of that risk, there is a real ground for believing that the applicant will be prejudiced in the remedy they are seeking.

[37] … [I]n Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 … Gleeson CJ … said …, that for the purpose of obtaining an order for the preservation of property … :

[A] plaintiff will need to establish … a danger that, by reason of the defendant absconding, or of assets being removed from the jurisdiction or disposed of within the jurisdiction or otherwise dealt with …, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.

[38] In Curtis v NID Pty Limited [2010] FCA 1072 … Edmonds J … observed that … solid evidence of a danger of dissipation or disposal of assets should be produced. … ( … )

[39] … [T]he magistrate made no reference to those … principles. Nor did the magistrate engage in the assessment as to the nature of the … husband’s expenditure with the intention of forming a view as to whether, unless restrained, there was a real risk of the … wife’s application for relief being thwarted or, at least, that the Court’s process would be frustrated …”

Costs – Party and party costs, solicitor and client costs and indemnity costs require evidence as to reasonableness of work done and rate charged
In Tekla [2025] FedCFamC1A 245 (23 December 2025) Riethmuller J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed a wife’s appeal from costs orders made against her after a 4 day property trial.

The parties agreed at a Conciliation Conference that the wife pay the husband $700,000 as a final settlement. The agreement did not culminate in final orders. The wife subsequently offered the husband $350,000, $200,000 and $550,000. At trial, the wife was ordered to pay the husband $717,000.

At first instance, the husband obtained costs orders of $73,895 for costs incurred after the Conciliation Conference and $5,060 for the costs application. The wife appealed the costs orders.

Riethmuller J said (from [6]):

“The affidavit in support of the respondent’s costs application was clearly inadequate. The claim for indemnity costs was not supported by a copy of the costs agreement between the respondent and the solicitor, despite the … requirements of r 12.13(4)… ( … )

[43] … [T]here was no evidence upon which the primary judge could find that the costs claimed (around three times the scale amount) ‘were reasonably incurred and fall comfortably within the range of costs charged in property settlement proceedings’…”

Re-exercising the discretion, the Court said (at [49]):

“For modest costs orders or orders in circumstances where costs are commonly ordered, a judge’s experience is often sufficient to fix a lump sum. For larger costs orders, particularly in litigation where it is uncommon to order costs (such as first instance family law work), the exercise of the discretion requires an evidentiary basis or at least a more structured reasoning process if reliance is to be placed upon court scales or judicial experience. As the determination of the quantum requires assessment of the reasonableness of the items of work done and the rate charged for that work, an itemised list, preferably prepared by a costs consultant as a short form or fully itemised bill of costs on the appropriate scale, is important evidence. This provides evidence of the actual work done, the rates charged and allows for a determination as to whether the work done and rates charged are reasonable. This approach is common in other jurisdictions, but, inexplicably, has not been widely adopted by family lawyers. ( … )”

Children – Personal protection injunctions pursuant to s 68B without power due to State family violence order
In Provenza (No 4) [2025] FedCFamC1A 232 (15 December 2025) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed in part an appeal from parenting orders made in respect of three children, the eldest being “very nearly an adult and the two youngest aged … 15 and 11” ([6]).

The mother filed an application for parenting orders but also applied privately and obtained a family violence order from the Magistrates Court of Queensland. The father had been charged for breaches of the family violence order, which were yet to be heard as at the date of the parenting trial ([18]).

Pre-trial, the eldest and youngest child lived with the mother, while the middle child lived with the father. The Court ordered that all three children live with the mother and the younger two children have no time with the father, based on findings as to “the father’s state of mental health”, “his commission of family violence against the mother” and the court expert’s view that it was “perilous” for the children to spend time with the father until they were adults ([12]).

Personal protection orders were also made pursuant to s 68B of the Act that restrained the father from directly or indirectly communicating with the younger two children, attending the mother’s place of employment, attending the children’s school or removing the children from the mother’s care or school.

Austin J said (from [17]):

“… [The father was already bound by a final family violence order protecting the mother and the two youngest children…, which… remains operable until July 2027… ( … )

[20] Her Honour made … injunctions against the father, supposedly under s 68B of the Act, for the protection of the mother and the two youngest children… ( … )

[23] … [T]he provisions of s 114AB(2)… deprived the… judge of power to make the injunctions… as they either conflict or overlap with the terms of the … State family violence order.”

Property – De facto husband’s waste of sale proceeds considered under s 79(5) – Judge declines invitation to consider whether Shinohara conflicts with Trevi
In Chambers & Spillett (No 3) [2025] FedCFamC1F 902 (15 December 2025) Carew J heard property adjustment applications in respect of a 6 to 8 year de facto relationship that produced two children ([1]).

Each party sought a property adjustment of 65 per cent in their favour. The mother (“the applicant”) was earning about $40,000 per annum. The father (“the respondent”) had been unemployed since 2021 but had previously earned between $140,000 to $170,000 per annum.

Initial contributions included the respondent’s investment property in Tasmania. It had limited equity at the commencement of the relationship but was sold and realised $233,010 of net sale proceeds after separation ([43]).

The Court said (from [29]):

“In … Shinohara … the Full Court held that the recent amendments to ss 79 and 90SM of the Act now preclude the … established approach of including … ‘add backs’ in the balance sheet. This decision has been criticised in a recent article… by two former judges of the former appellate division of this Court, with the Hon Michael Kent KC and the Hon Garry Watts AM writing with Mr Sydney Williams KC and Mr Paul Doolan concluding:

Given that arguably there are two conflicting Full Court decisions – Shinohara and Trevi … it may be open to trial Judges to maintain the methodology established by the jurisprudence over 30 years. …

[30] Having regard to my approach to the proposed ‘add-back’ and liability relating to the Tasmanian property, I need not take up the invitation suggested in the article to consider whether Shinohara conflicts with Trevi. ( … )

[53] The respondent has failed to properly account for about $230,000 … [He] admits to using many thousands of dollars each month on his gambling habit. … In my view, a significant portion of proceeds from the sale of the Tasmanian property constitute a material wastage caused intentionally or recklessly …”

Orders were made for a 65:35 division in favour of the applicant.

Children – Court had jurisdiction to make parenting orders for child who lived at a boarding school in the USA
In Marley & Chadwick [2025] FedCFamC1F 922 (16 December 2025) Parker J heard a mother’s application for urgent, interim parenting orders for the parties’ 15-year-old daughter, “X”.

The urgency was due to the parents’ disagreement as to X’s care where she lived in the USA at a boarding school (“D School”) which was to close in December 2025. The mother lived in Adelaide. The father lived in “Country B”. The mother sought orders that X live with her and that she be permitted to enrol X at a school in Adelaide for 2026. The father contested the Court’s jurisdiction.

Both children of the marriage were born in Country B and were dual citizens of Australia and the USA ([5]). They had bought a property in Adelaide in 2022 and the mother and X commenced living there in January 2023. The parties separated in February 2024.

The Court said (from [33]):

“… [E]xercise of the jurisdiction conferred on the Court under Part VII of the Act by virtue of satisfaction of the enumerated subsections of section 69E may be affected by the operation of Subdivision B of Division 4 of Part XIIIAA of the Act… In particular, sections 111CC and 111CD of the Act provide a ‘series of qualifying connections’ that must apply before the Court may exercise jurisdiction…( … )

[39] … [B]oth Country B and the USA are non-convention countries.

[40] In circumstances in which X is not present in Australia and is present in a non-convention country, the… Court’s ability to exercise jurisdiction (if Subdivision B applies), … turns on the question of whether X is habitually resident in Australia. ( … )

[43] … As explained by Austin J in Bajek [2024] FedCFamC1F 466] … the effect of s 111CC is to ensure the provisions within Subdivision B apply only in the event of jurisdictional conflict between an Australia court and a ‘competent authority’ ( … )

[57] … [T]he father … bears the onus of establishing the existence of a relevant competent authority… He has adduced no evidence … of any competent authority in either Country B or the USA. ( … )

[68] … I am not satisfied on the evidence … that there is an issue under the Act of whether this Court, as opposed to a competent authority in either Country B or the USA has jurisdiction to take measures directed to the protection of the person of X. … Subdivision B does not apply, and the Court may exercise its jurisdiction to make parenting orders in accordance with section 69E of the Act.”

March 2026

Craig Nicol and Keleigh Robinson,
Co-editors, The Family Law Book