KJV Lawyers

03/03/2026

Children – Majority of Full Court finds no error in orders for reversal of care and six month moratorium on maternal time – Cases where trial judge is obliged to consider orders other than those sought by parties are “likely to be rare” (McClelland DCJ dissenting)

In Arrighetti & Qodirova [2026] FedCFamC1A 1 (12 January 2026) the Full Court (McClelland DCJ, Riethmuller & Kari JJ) heard 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 and communication with the parties’ only child.

The father was a 58-year-old self-employed consultant and the mother was a 50 year-old executive assistant. Their daughter was 10 years old.

The mother had been the primary carer for the child since birth.

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 ([2], [16], [162]). The father argued that the mother posed an unacceptable risk of harm due to her conduct and beliefs and that she was incapable of supporting the child’s paternal relationship ([30], [164]).

The mother did not propose any alternate orders should the father’s case of unacceptable risk be accepted. She was found to have “a steadfast and unshakeable belief” that the father had “sexually interfered” with the child [171] and that the father should be in jail [80]. In cross-examination, she said she would involve the police if the Court made orders in the father’s favour.

The Court did not accept that the child had been sexually abused by the father and found an unacceptable risk to the child in her mother’s care. The mother appealed.

In dissent, McClelland DCJ said the Court erred by not considering a range of potential orders that ensured the child maintained a relationship with the mother to the maximum extent possible. His Honour referred to the objects of Part VII of the Act at s 60B and said (from [117]):

“While the provisions of the United Nations Convention on the Rights of the Child (1989), (‘the Convention/CROC’) have not been incorporated into Australia’s domestic law – such that it bestows enforceable rights upon a child – it remains the case that, consistently with the objects of Part VII … the provisions of the Convention inform the exercise of Jurisdiction under the Act.

( … )

[126] In the Australian context, it has been determined that the principles reflected in the relevant articles of the Convention… provide that children have a right to be cared for by both parents, but this is subject to the child’s best interests…

[127] … [T]he precondition to any such child-parent relationship must be the safety of the child…

[128] Important context … is the fact that the mother had been the child’s primary carer since birth. There is no suggestion that the child suffered neglect or lacked care from her mother. …

[132] … [I]t was reasonably open for the primary judge to find that the child is at risk of emotional and, potentially, psychological harm in the unsupervised care of the mother…

[133] The relevant question becomes, however, whether the primary judge adequately considered measures along the possible spectrum of measures … to effect a supervision regime which was proportionate to the identified risk: (Keane & Keane [2021] FamCAFC 1… ).

( … )

[143] … [T]he obligation for the trial judge to consider a broader range of options than those submitted by the parties was, in my view, activated in this case. This is in circumstances where the child’s close relationship with her mother has been effectively dismantled and replaced with orders designed to achieve the speculative restoration of the child’s relationship with her father. While the father’s case, supported by the ICL, presented that this outcome was the preferable outcome of a difficult binary choice, I have found that this was not necessarily so – a broader range of measures should have been considered with a view to preserving a more significant and substantial relationship between the child and her mother.

[144] … [I]t was … necessary and appropriate for the primary judge to consider a range of regimes… Such options may have included… orders which would incrementally increase the amount of time the child spends with the mother; expansion of the potential locations at which the child spends time with the mother – thereby making the time more natural and enjoyable for the child – and considering a broader range of service providers, or possibly a trusted third party, who have the capacity to provide greater flexibility in supervision arrangements.”

Riethmuller & Kari JJ said (from [176]):

“It is particularly unfortunate … that in many of these difficult cases the parent making the allegations [of unacceptable welfare risk], either as a result of a psychological frailty, tactical positioning or some other nebulous reason, litigates on the basis that the choice for the court is either to accept the allegations and make orders that protect the child from harm, or reject the allegations and make orders that change the child’s care; as exemplified by the manner in which the mother in these proceedings prosecuted her case…

( … )

[178] What cannot be underestimated in cases of this nature, is the benefit of litigants reflecting upon and ‘reality testing’ all of the evidence the court is being asked to adjudicate upon when asked to make findings about allegations of abuse and/or unacceptable risk. Whilst the applicable standard of proof in parenting cases is the ‘balance of probabilities’, reality testing the evidence must always involve a consideration of whether there is sufficient evidence before the court, capable of acceptance, which permits a finding that abuse has been made out, and/or whether even absent such findings, unacceptable risk is made out (Isles & Nelissen [2022] FedCFamC1A 97… ).

( … )

[210] … [T]he primary judge specifically noted, no 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, frankly, showed her lack of capacity to consider the needs of the child in a scenario where the primary care orders did not reflect her preference. …

[211] We consider that the mother is bound by the manner in which her case was presented to the primary judge and that she should not be permitted to argue her case in this appeal on some different basis…

[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 promoting the best interests of the child. To find otherwise would tend to convert the hearing into a roving enquiry. Whilst every case will turn on its own facts and circumstances, we apprehend that where there is a significant and/or obvious issue, a primary judge would be obliged (not merely permitted) to consider orders outside the ambit of those proposed by the parties. In such cases there 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.

[216] We are not persuaded that the circumstances of this case obliged the primary judge to consider different options to those presented by the parties and the ICL. …

[217] … We are not persuaded consideration of the CROC is necessary in the context of this case as all of the considerations relevant to this case are within the ambit of s 60CC of the Act and there is no ambiguity that arises in the context of the facts of this case: see Ralton & Ralton [2017] FamCAFC 182 at [18] and Plaintiff S157/2002 v The Commonwealth [2003] HCA 2… If recourse to the CROC were appropriate, we are of the view that the issue is complex given that the CROC adopts a rights-based approach and the Family Law Act 1975 (Cth) adopts a relationships-based approach. Moreover, we are not persuaded that it is appropriate to consider the CROC where it was not raised in argument before the appellate court or the primary judge and as such none of the parties have had the opportunity to address the issues in argument.”

The appeal was dismissed. The mother was ordered to pay the father’s costs, fixed at $13,979.86.



Our latest notable cases this month also include summaries of cases that involve the following:

Children – Majority of Full Court set aside orders for no time – Child’s disclosures of sexual risk had been determined in 2022 – Court erred by limiting its consideration of unacceptable risk to the child’s further disclosures made in 2023 (Altobelli J dissenting)

Property – Court failed to refer to relevant principles when making injunctions against husband – Error in anti-suit injunctions that prevented the husband’s company from continuing District Court litigation against the wife as trustee

Children – Court had jurisdiction to make parenting orders for child who lived at a boarding school in the USA – Child to live with the mother in Adelaide pending an interim hearing as to her 2026 school

Property – De facto husband’s waste of sale proceeds considered under s 79(5) – Judge declines invitation to consider whether Shinohara conflicts with Trevi (where the Full Court held that notional add backs do not offend Stanford)

Children – Father engaged in coercive behaviour that included his filing a Response that sought that the child live with him and spend supervised time with the mother – Mother successfully opposed orders for family therapy and parenting coordination as compelling the parents to do so was likely to result in further conflict

Children – Section 65DAAA – Mandatory report by child’s psychologist not a significant change in circumstances as it was necessary to forensically consider the reported circumstances – No significant change in circumstances where the nature of the mother’s concerns were the same as she raised in previous litigation

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13/12/2025

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Find information in this hub to help you understand and prepare for the social media age restrictions.

05/12/2025

Financial Agreement – Husband’s negligence claim against his lawyer for s 90B agreement held to be void for uncertainty was not statute-barred as he suffered loss at the time separation occurred – Lawyer’s appeal allowed where husband was unable to establish that his lawyer’s negligence prevented him from obtaining a better outcome

In R Lawyers v Mr Daily [2025] HCA 41 (5 November 2025), the High Court (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ) heard a law firm’s appeal from a decision of the Full Court of the Federal Circuit and Family Court of Australia (“FCFCOA”) in a case involving a financial agreement and the lawyer who drew it.

Mr Daily made a s 90B financial agreement before his marriage to Ms Daily (“the BFA”) in 2005. R lawyers acted for Mr Daily in preparing the BFA. The parties married in 2005, had children in 2006 and 2009 and separated in 2018 ([17]).

The BFA was set aside in 2019 for being void for uncertainty and due to a material change in circumstances in relation to the care, welfare and development of their children that would result in hardship if it was not set aside. Mr Daily also made a claim in negligence against R Lawyers in relation to the advice given about the drafting of the BFA, part of which was upheld at first instance in the FCFCOA ([2])

Mr Daily successfully appealed the dismissal of the balance of the negligence claim as the Full Court of the FCFCOA held that it was not statute barred ([3]). R Lawyers appealed.

The majority (Gageler CJ, Jagot and Beech-Jones JJ) said (from [42]):

“To establish his case against R Lawyers in negligence, it was necessary for Mr Daily to prove on the balance of probabilities that the breaches of the duty of care owed to him by R Lawyers were a cause of loss or damage ‘(in the sense of detrimental difference)’. While that standard of proof is not exacting and ‘does not require certainty or precision’, that standard is not discharged by merely proving the loss of a possible chance of a better outcome. In some contexts, a lost opportunity may constitute loss or damage in tort but, even in those cases, the opportunity must itself be of some value; that is, it must be shown that there was a ‘substantial prospect of a beneficial outcome’ but for breach of the duty of care.

( … )

[44] Once the Division 1 Court concluded that it was not satisfied that Mr Daily ‘would not have entered into the marriage’ unless absolutely certain that the BFA would be held to be valid if it were to be challenged, the only possible remaining basis for establishing loss that Mr Daily articulated was that he ‘would have reached agreement with [Ms Daily] on the terms of a financial agreement consistent with his instructions to’ R Lawyers which made ‘sufficient provision for any child of the marriage’ so that it was not vulnerable to being set aside under s 90K(1)(d) of the FLA. That is, Mr Daily’s case before the Division 1 Court was that he would have agreed upon a financial agreement and it would have survived such a challenge and been effective upon separation (and been more favourable than the orders made against him under s 79 of the FLA).

( … )

[46] As noted, one ground of Mr Daily’s notice of contention is that… the Division 1 Court did not properly consider Mr Daily’s loss. However, as also noted, the Division 1 Court found that Mr Daily did not instruct R Lawyers to the effect that he wanted a financial agreement that “was effectively bullet proof against the application of s 90K(1)(d)” of the FLA and otherwise noted the absence of any evidence of the terms of a financial agreement that even amounted to a ‘reasonable attempt to avoid a potential application of s 90K(1)(d)’. Those findings were fatal to the second component of Mr Daily’s case.

[47] … [T]he second component of Mr Daily’s claim was bound to fail by reason of Mr Daily’s failure to adduce evidence establishing the fact of loss beyond the litigation costs wasted in unsuccessfully defending the validity of the BFA as not void for uncertainty. At trial Mr Daily did not adduce any evidence as to a form of financial agreement that a lawyer in 2005, exercising reasonable care and skill, would (or might) have drafted to avoid that financial agreement being set aside and to have that financial agreement be effective upon separation, including a financial agreement that addressed the potential that Mr Daily and Ms Daily might have had children. Nor did Mr Daily adduce any evidence from which it could have been inferred that Ms Daily would (or might) have agreed to such a financial agreement around that time.

[48] In this Court, Mr Daily asserted that there was such evidence but did not identify what it was beyond pointing to the Division 1 Court’s finding of negligence on the part of R Lawyers, and part of Mr Daily’s evidence of his instructions to the effect than he wanted the BFA to ‘include our plans and scenarios, including children’. The Division 1 Court’s findings of negligence on this topic, however, went no further than that R Lawyers failed to advise Mr Daily ‘what would happen upon the birth of a child and whether that might represent a material change in circumstances’.

[49] In some lawyer negligence cases a court can infer the particular steps that might have been taken had the lawyer discharged their duty… However, the lack of any evidence about what such a financial agreement should have provided in this case if there were children of the marriage could not be so inferred…

[50] It may be that a finding that Mr Daily suffered loss as a consequence of R Lawyers’ failure to exercise reasonable care and skill would not have required the precise terms of the counterfactual financial agreement to have been identified, but Mr Daily would have had to identify at least the scope, nature and likely monetary amount or range of monetary amounts that any provision for children would have entailed. Unless that was done there could not be any assessment of whether Ms Daily would (or may) have agreed to such a financial agreement, whether it would or may have survived a challenge on hardship grounds many years later and, if so, whether it would have secured a better outcome for Mr Daily compared to the orders the Division 1 Court made under s 79 of the FLA.

[51] R Lawyers’ additional ground of appeal must be upheld.”

Considering whether Mr Daily’s claim was statute barred, the majority continued (from [65]):

“Although a financial agreement has features of an agreement or simple contract, it is also very much a creature of statute. Insofar as a financial agreement deals with how property or financial resources of the parties to a marriage are to be dealt with in the event of a breakdown of the marriage, the financial agreement’s ultimate function is to define rights and obligations enforceable by an order made under s 90KA and avoid the operation of s 79. Critically, those parts of a financial agreement are not enforceable until after separation… Those parts of a financial agreement do not operate or attach any consequence to any property of a party to the financial agreement or have any other relevant effect at the time of the marriage… Further and unlike many classes of agreement, a financial agreement is also liable to be set aside on various grounds that relate to unknowable material changes in circumstances that have arisen after entry into the financial agreement, including circumstances relating to ‘the care, welfare and development of a child of the marriage’…

( … )

[71] … Mr Daily’s cause of action in negligence against R Lawyers did not accrue until (at least) the time of his separation from Ms Daily. It follows that Mr Daily’s claim against R Lawyers was not statute barred. The original grounds of the notice of appeal should be dismissed.”

Gordon & Edelman JJ delivered a separate judgment but agreed with the majority.

The High Court allowed R Lawyer’s appeal, set aside the relevant orders of the Full Court of the FCFCOA, instead ordering that the appeal to the Full Court of the FCFCOA be dismissed and that Mr Daily pay R Lawyer’s costs of the appeal.

Our latest notable cases this month also include summaries of cases that involve the following:

Property – Appeal from anti-suit injunction – A decision as to whether Australia is a clearly inappropriate forum is evaluative, not discretionary – Stay order set aside where evidence failed to establish that Australia was a clearly inappropriate forum

Property – Wife successfully resists indemnity costs despite being wholly unsuccessful in her appeal – Rejected settlement offers relevant but not determinative – Party/party costs ordered where her appeal was properly brought and arguable

Property – Husband and wife each had defined benefit superannuation interests – Interests put in separate asset pool but left undisturbed on the basis that the remainder of property interests were adjusted to reflect their respective pensions – Contributions to other party’s child (Robb & Robb contributions) not precluded under s 79(5)

Children – Property – Expert evidence may be influential but the Court is never obliged to accept it – No persuasive basis to use comparable cases to inform an acceptable “range” of outcomes given the discretionary nature of s 79

Procedure – Application by beneficiary of deceased husband’s estate to intervene in property case dismissed where application did not comply with Rules and applicant had no interest in the proceedings separate to that of the estate – Discovery and subpoenas sought from estate’s legal personal representative a fishing expedition based on speculation and conjecture

Divorce – No one aspect of separation is a determining factor when assessing the breakdown of the consortium vitae – Separation occurred notwithstanding ongoing sexual relations (and the wife becoming pregnant) after the husband’s asserted date of separation

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09/10/2025

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NSW Skills Lists NSW nominates highly skilled professionals in a range of occupations to help drive economic growth in our state. Skilled Nominated visa (subclass 190)Skilled Work Regional visa (subclass 491) The NSW Skills Lists outline the skills that are eligible for NSW nomination under the Skil...

29/07/2025

https://www.facebook.com/share/p/1Lwvm4Yi1S/?mibextid=wwXIfr

Australia’s Pacific Engagement stream visa (PEV) ballot for 2025 opens today!

It is a new ballot and registrations from the 2024 ballot are not included in this draw.

To be able to apply for a PEV, you must first be selected in the random ballot. Eligible citizens from participating countries can enter – people of all skill levels, genders and occupations are welcome.

Participating countries for the PEV 2025 program are:

• Federated States of Micronesia
• Fiji
• Kiribati
• Nauru
• Palau
• Papua New Guinea
• Samoa
• Solomon Islands
• Timor-Leste
• Tonga
• Vanuatu

Learn more about how to register here: http://spr.ly/6184fPJXK

08/07/2025

1 JULY 2025 VISA FEE INCREASES
Finally, the DHA have released confirmed increases for visa application fees impacting all applications lodged from midnight tonight (from 12.01am 1 July 2025 AEST).

The fee hikes apply across a range of Australian visa subclasses, including partner visas, skilled visas, employer-sponsored visas, student visas and more. Most are increased by around 3%, although the student visa has seen a bit more of an increase.

Below is a simple summary of some of the new visa fees compared to the old fees.

🇦🇺 Partner Visas (309/100, 300, 820/801)
Main applicant: $9,095 → $9,365

Additional applicant (18+): $4,550 → $4,685

Additional applicant (under 18): $2,280 → $2,345

💼 Skilled Migration Visas (189, 190, 491, 494)
Main applicant: $4,765–$4,770 → $4,910

Additional applicant (18+): $2,385 → $2,455

Additional applicant (under 18): $1,190–$1,195 → $1,230

👷 Employer Sponsored Visas (482 & 186)
Skills In Demand (482 visa)

Main applicant: $3,115 → $3,210

Additional applicant (18+): $3,115 → $3,210

Additional applicant (under 18): $780 → $805

Employer Nomination Scheme (186 visa)

Main applicant: $4,770 → $4,910

Additional applicant (18+): $2,385 → $2,455

Additional applicant (under 18): $1,190–$1,195 → $1,230

🧑‍🎓 Student Visas (Subclass 500)
Primary applicant: $1,600 → $2,000

Secondary applicant (over 18): $1,190 → $1,225

Secondary applicant (under 18): $390 → $400

This is one of the largest increases this year — a 25% jump for primary applicants.

🧑‍🔬 Graduate Visas (Subclass 485)
Primary applicant: $2,235 → $2,300

Secondary applicant (over 18): $1,115 → $1,150

Secondary applicant (under 18): $560 → $580

🏝️ Working Holiday Visas (WHV)
Application fee: $650 → $670

👨‍👩‍👧 Subclass 461 (New Zealand Citizen Family Relationship)
Primary applicant: $430 → $445

Secondary applicant (over 18): $220 → $225

Secondary applicant (under 18): $105 → $110

🧾 Bridging Visa B (BVB)
Application fee: $185 → $190

A minor increase, but important if you're travelling while waiting on another visa.

Why Are Visa Fees Increasing?
The Australian government adjusts visa application charges annually, usually in line with indexation.

08/07/2025

affray
/əˈfreɪ/
noun

1.
an instance of group fighting in a public place that disturbs the peace:

22/05/2025