By Craig Nicol and Keleigh Robinson
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.”
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 …”
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.”
