In a recent decision, the Federal Circuit and Family Court of Australia (Division 1) dismissed an appeal by a former step-father against parenting orders that significantly limited his time with his former step-child.
The case, Myrtle & Myrtle [2026] FedCFamC1A 23, serves as a powerful reminder of how courts assess the risk of family violence, the importance of being truthful in evidence, and the high bar for successfully appealing a parenting decision.
What Was the Case About?
The case concerned a child, born in 2015. The child’s mother was the first respondent. The appellant was the mother’s former partner and the child’s step-father. The child’s biological father did not participate in the proceedings.
The step-father had initiated court proceedings seeking more time with the child. However, the mother argued that she had been a victim of serious family violence at the hands of the step-father, including stalking, coercive control, and manipulation. She was concerned for her safety and the safety of her child.
The Trial Judge’s Decision
After hearing evidence from both parties, their new partners, and a court-appointed family report writer, the trial judge made final orders that:
The mother would have sole parental responsibility for the child.
The child would live with the mother.
The child would spend time with the step-father only four times a year for two hours, with the first two years being professionally supervised. After that, the supervision would end.
The step-father’s name was to be removed from the child’s birth certificate.
The trial judge found that the step-father was a perpetrator of family violence. The evidence showed a history of serious coercive and controlling behaviour, including:
Stalking: Before the relationship began, the step-father created fake online profiles to contact and manipulate the mother, which caused her significant distress and even led to a suicide attempt.
Ongoing Control: The behaviour didn't stop when the relationship ended. The judge found a pattern of manipulation, dishonesty, and attempts to control the mother, even years after they separated.
Lack of Insight: The step-father was described as "less than frank and forthright" in his evidence. He downplayed his past behaviour and showed little understanding of the harm he had caused. The judge found he had a "superficial insight" into his actions and that there was no evidence he had changed.
Unacceptable Risk: The trial judge concluded that the step-father’s "propensity for manipulation and dishonesty" created an unacceptable risk of psychological harm to the child.
The Appeal and Its Dismissal
The step-father, who represented himself, appealed the decision. He argued, among other things, that:
He was denied a fair hearing (procedural fairness).
The trial judge made an error of law in finding him an unacceptable risk.
The trial judge failed to give adequate reasons for her decision.
The appeal court found no merit in any of these grounds.
On Procedural Fairness: The court noted that the step-father had been given opportunities to respond to late-filed evidence and had not objected at the time. His complaints about evidence being excluded were not valid grounds for appeal.
On the Finding of Unacceptable Risk: The appeal court confirmed that the trial judge had meticulously reviewed all the evidence, including the family report and the history of family violence, before concluding that the step-father posed an ongoing risk. The finding was clearly open to her on the evidence.
On Adequate Reasons: The appeal court praised the trial judge’s reasons as "pellucid" (clear). Her decision was well-structured, and she had carefully explained why she made the orders she did.
The appeal was dismissed, and no order for costs was made.
Key Takeaways for Clients
This case highlights several important points in family law:
History Matters: A court will carefully examine a person's past behaviour, including family violence, dishonesty, and attempts to control a former partner. If that behaviour shows a pattern, the court may find it poses a risk to the child, even if the behaviour occurred years ago.
Insight is Crucial: It is not enough to simply deny past behaviour or say you have changed. A court will look for genuine insight and remorse. Downplaying serious conduct or blaming others can significantly harm your case.
Unacceptable Risk is a Key Concept: The court’s primary concern is the best interests of the child. If a parent or other significant person is found to pose an "unacceptable risk" of harm, the court will limit or even stop the child’s time with that person to ensure their safety.
Appeals are Difficult: An appeal is not a chance to re-run your case. To succeed, you must demonstrate a clear legal error by the trial judge, such as acting on a wrong principle, ignoring important evidence, or reaching a decision that was unreasonable. It is not enough to simply disagree with the outcome.
If you are involved in parenting proceedings, it is vital to seek legal advice to understand your rights and obligations. The court’s focus is always on creating a safe and stable environment for the child.
This information is a general summary and does not constitute legal advice. For advice on your specific situation, please contact our office.
