Nirmal & Daphne [2026] FedCFamC1A 175

Summary

The parties married in 2011 and separated in August 2023, after a marriage of some 12 years. They have two children, aged 11 and 9, each with significant health and behavioural needs. Following a contested final hearing in Division 2, the primary judge ordered that the children live with the mother, that she have sole parental responsibility, and that the father spend time with them, supervised until January 2027 and then progressing to unsupervised and overnight time. The primary judge found that the father had engaged in a pattern of coercive and controlling conduct, and identified two specific incidents of family violence. In the first, in September 2023, he sat outside a child’s bedroom near the doorway while the mother was inside. In the second, in August 2025, he sent an associate, unknown to the mother, to her front door to confront her about alleged breaches of parenting orders. The self-represented father appealed on six grounds carrying more than 30 particulars, and also sought to adduce a 497-page affidavit as further evidence.

Riethmuller J dismissed the further evidence application, as the material was available at trial and amounted to an attempt to run the case differently on appeal. On the substantive grounds, the father established one error. The primary judge had found the September 2023 incident controlling because the father’s position “could have deprived” the mother of her freedom of movement and that was how she felt. Applying Pickford & Pickford (2024) FLC 94-230, his Honour held that the test for controlling behaviour under s 4AB of the Family Law Act 1975 (Cth) is objective, and only the test for fear is subjective. Because no finding of fear had been made about that incident, the finding could not stand. The error did not, however, produce a miscarriage of justice. The primary judge had described the incident’s weight as “negligible”, and the August 2025 incident, which was upheld as family violence, together with the broader findings about parenting capacity, carried the outcome. The Court also rejected a challenge to the Independent Children’s Lawyer based on the Ebner apprehended bias test. That test concerns decision makers, whereas an Independent Children’s Lawyer’s role under s 68LA will often require a case contrary to one or both parents. Time limits imposed on cross-examination at the outset of the trial were held to be appropriate and “to be encouraged”. Excluding the parties from the registry while the Independent Children’s Lawyer explained the orders to the children involved no procedural unfairness.

The decision gives practical guidance on proving coercive or controlling family violence. Evidence of how a party felt will not, by itself, establish control. What is needed is evidence that the other party’s conduct objectively controlled, or coerced, the person concerned. The judgment also confirms the limited avenues for challenging an Independent Children’s Lawyer, and strongly endorses active trial management of cross-examination, which places the onus on counsel to object or seek more time when it is needed.