No Contact, No Consent: Court Protects Children from Violent Father in Landmark Parenting Ruling

📘 Introduction

In McKowan & McKowan [2025] FedCFamC1F 105, Justice Boyle of the Federal Circuit and Family Court of Australia (Division 1) handed down a powerful judgment emphasising the paramountcy of children’s safety over parental rights. Amid a backdrop of prolonged and serious family violence, the Court made final parenting orders granting the mother sole parental responsibility and denied the incarcerated father any contact or communication with the children. The ruling is a robust application of Part VII of the Family Law Act 1975 (Cth), focusing on the best interests of children subjected to family violence.

📂 Facts and Issues

Key Facts:

• The parties had two children (born 2014 and 2016).
• The father was incarcerated following a 2022 jury conviction for multiple domestic violence offences against the mother.
• A final ADVO was granted in 2022 protecting the mother and children until 2034.
• The father’s earliest possible release is late 2028.
• The children had not meaningfully seen or communicated with the father since 2020.
• The mother sought sole parental responsibility, change of children’s surnames, and no contact orders.
• The Independent Children’s Lawyer (ICL) supported the mother’s position.

Legal Issues:

1. Should the mother be granted sole parental responsibility?
2. Should the children spend time or communicate with the father?
3. Should the mother be permitted to change the children’s surnames?
4. Should there be any restrictions on the children’s international travel?

⚖️ Application of Law to Facts

1. Sole Parental Responsibility

Under s 61D(3) and s 60CC of the Family Law Act 1975, the Court must consider the best interests of the children. The father was incarcerated, offered no reliable mechanism for shared parenting, and rejected responsibility for his conduct. The mother had already been managing decisions competently in his absence. The Court found it was not safe nor feasible for her to consult the father, especially given the history of intense coercive control and threats of violence (e.g., paragraph [123]).

2. Time and Communication

The Court applied the principles in M v M (1988) 166 CLR 69 and Isles & Nelissen (2022) FLC 94-042, assessing that the risk to the children was real and could not be mitigated. The children had expressed fear of their father and aligned with their mother for safety. Any form of communication—including cards or gifts—was found likely to trigger distress (paras [90]–[107]).

3. Name Change

Section 60CC factors supported the children’s and mother's psychological protection. The name “McKowan” was associated with public knowledge of the father's crimes, causing emotional harm. The Court accepted that changing the names would protect the children from reputational harm and emotional distress (paras [126]–[131]).

4. International Travel

No credible evidence showed the mother posed a flight risk. Her strong ties to Australia and prior responsible conduct supported allowing her unrestricted travel with the children (paras [132]–[134]).

🧠 Judgment Analysis and Judicial Reasoning

Justice Boyle applied a child-centric lens rooted in s 60CA of the Family Law Act, mandating that the best interests of the child are paramount. The Court’s approach was heavily informed by:

• Past and proven family violence (paras [72]–[83]),
• Children’s emotional distress and fear (paras [93]–[99]),
• Impracticality of shared parenting while incarcerated (paras [120]–[124]), and
• Unreliability of the father’s communication proposals (e.g., via his partner).

The father’s continued denial of wrongdoing and his conspiracy theories about the justice system (para [81]) indicated a lack of insight, which the Court found disqualifying for future parental engagement.

Precedents cited:

• M v M (1988) 166 CLR 69 – Risk assessment must be based on evidence.
• Isles & Nelissen (2022) FLC 94-042 – Evidence-based conclusions about risk.
• Mertens & Mertens [2016] FamCAFC 136 and Hearne & Hearne [2015] FamCAFC 178 – Adjournment principles.
• Evidence Act 1995 (Cth) s 138 – Illegally obtained evidence was excluded.

🧾 Take-Home Lessons

• Safety overrides connection: In high-risk family violence cases, the child's safety and emotional stability will justify orders eliminating contact—even indirect communication.
• No insight, no access: Courts scrutinise whether an abusive parent has acknowledged and addressed past behaviours; denial can bar any parenting rights.
• Evidence matters: Attempts to tender inadmissible or improperly obtained evidence will be rejected.
• Name matters: Courts will allow name changes if they serve the child’s welfare, especially where a parent's conduct could stigmatise the children.