Arendse & Pilkvist
[2025] FedCFamC1A 153
•28 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Arendse & Pilkvist [2025] FedCFamC1A 153
Appeal from: Arendse & Pilkvist [2025] FedCFamC2F 533 Appeal number: NAA 239 of 2025 File number: MLC 9802 of 2020 Judgment of: AUSTIN J Date of judgment: 28 August 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where the orders make no allowance for the child to spend time with the father – Where the father caused a car accident which killed the child’s brother – Where the father pleaded guilty to criminal charges resulting from the car accident – Whether the primary judge failed to give sufficient weight to the child’s positive relationship with the father – Where the mother’s genuine belief the child was not safe with the father impaired her capacity as the residential carer – Where the primary judge expressly considered and weighed the factors which favoured the father’s case – Where the primary judge gave adequate reasons – Whether the primary judge made a discretionary error when making no order for the child to spend time with the father – Where the parties sought the cause be finalised and therefore no review mechanism could be built into the orders – Where the single expert psychiatrist and the court child expert gave uncertain prognostications as to the mother’s emotional recovery – Where the primary judge hoped to preserve a basal connection between the child and the father by making orders for the re-introduction of written communication between them after a moratorium of 12 months – Where refraining to make orders to restore or forbid the child’s future physical interaction with the father was neither an error of law, fact or discretion – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC, 64, 65AA, 65DAAA, 68F Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27
Hepburn & Noble (2010) FLC 93-438; [2010] FamCAFC 111
House v The King (1936) 55 CLR 499; [1936] HCA 40
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
M v M (1988) 166 CLR 69; [1988] HCA 68
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Re Andrew (1996) FLC 96-692; [1996] FamCA 43
Rice v Asplund (1979) FLC 90-725; [1979] FamCA 80
Number of paragraphs: 52 Date of hearing: 25 August 2025 Place: Newcastle (via Microsoft Teams) Counsel for the Appellant: Ms Cantrall Solicitor for the Appellant: Patford-Smith Legal Services Counsel for the Respondent: Ms Dellidis SC & Ms Taylor Solicitor for the Respondent: Perry Weston Lawyers The Independent Children's Lawyer: Did not participate ORDERS
NAA 239 of 2025
MLC 9802 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ARENDSE
Appellant
AND: MS PILKVIST
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
28 AUGUST 2025
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed on 18 July 2025 is dismissed.
2.The appellant shall pay the respondent’s party/party costs of the appeal, fixed in the sum of $9,948.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arendse & Pilkvist has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
This appeal, which is brought by the father from parenting orders made on 1 May 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 2), must be dismissed for the following reasons.
Background
The parties finally separated in 2020, at which point in time they had two children.
Final parenting orders were made with the parties’ consent in September 2022, providing for the children to live with the mother and spend time with the father.
Three months later, in late 2022, the elder child tragically died in a car accident caused by the father. He and the younger child (“the child”) were seriously injured. The father was prosecuted and later convicted of dangerous driving offences, for which he was sentenced to over one year imprisonment, served other than by full-time custody.
The accident caused the mother to stop the child from spending time with the father, to which decision he acquiesced for a while. The father commenced fresh parenting proceedings in June 2023 when the mother refused to allow the child to resume spending time with him.
Over the mother’s objection, interim orders were made in August 2023 requiring the child to spend professionally supervised time with the father for three hours each alternate weekend. Curiously, the interim orders were made before the Court found or the parties formally agreed, in July 2024, there were changed circumstances (formerly required by Rice v Asplund (1979) FLC 90-725, but now by s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) to thereby permit new orders varying those made in September 2022. Once that threshold was overcome, the dispute was heard by the primary judge in March 2025.
Judgment was delivered a few weeks later. His Honour ordered the mother have sole-decision making responsibility for the child (Order 1), that he live with her (Order 2), that he not spend any time with the father unless the mother agrees (Orders 3 and 4), and the father could only communicate with the child occasionally in writing after a moratorium of 12 months (Orders 10–13). Supplementary orders provided for the father to acquire important information about the child’s scholastic and medical progress (Orders 6 and 8). Otherwise, the orders were orthodox facilitative directions (Order 5, 7, 9 and 14–20).
The judgment embodied by those orders was premised upon the synthesis of the evidence with the principles distilled in Re Andrew (1996) FLC 96-692, with the result reasoned in this way: even though the father did not pose an unacceptable risk of harm to the child, the mother honestly and fervently believed he did and, if forced to support an enforceable regime of interaction between the child and the father, she could not emotionally cope and her parenting capacity would degrade. Since it was uncontroversial the child would continue to live with the mother, the degradation of her parenting capacity could not be tolerated, for otherwise the child’s best interests would not be served.
The thorough and sagacious reasons for judgment summarise the conclusion thus:
18.The Mother is [the child’s] primary carer. Because there is a real risk that [the child] continuing to spend any time with the Father — supervised or unsupervised — will have such a serious deleterious effect on the Mother’s psychological well-being that she will be unable to function as an effective parent for [the child], it is in [the child’s] best interests to make orders that he spend no time with his Father albeit that a consequence of those orders is that he will lose the benefit of a relationship with his Father.
…
223.Finally, therefore, I wish to record in these reasons that, on my assessment, [the child’s] Mother loves him and it is her mental health – not any intentional unwillingness – that means she cannot presently support [the child] having a relationship with his Father. I also wish to record in these reasons that, on my assessment, [the child’s] Father loves him and that [the child] would benefit from a relationship with him except that the Mother’s mental health will not permit it. I repeat that it is no part of my role further to punish the Father for the accident. In all the circumstances, I have given greater weight to the need for the Mother as [the child’s] primary caregiver to recover her mental health and concluded that [the child] spending any time with his Father is likely to have a significant adverse impact on her mental health, her parenting and, therefore, on [the child]. But for the Mother’s precarious mental health, it would be in [the child’s] interests to have a relationship with his Father.
The Appeal
By an Amended Notice of Appeal filed on 18 July 2025, the father appealed from all orders, though that cannot be correct. He cannot challenge the child’s residence with the mother or her conferral with sole decision-making responsibility for the child because, at the hearing in March 2025, he acceded to those orders (at [2], [155], [212] and [213]). He does not now contend those orders are invalidated by his acquiescence to them being disingenuous or by the lack of jurisdiction or power to make them, which are the only bases upon which they could be challenged (Harvey v Phillips (1956) 95 CLR 235 at 244).
The appeal is really directed to the orders which preclude the child from spending time with the father without the mother’s agreement and confining the manner of their written communication (Orders 3–4 and 10–13).
The four grounds of appeal allege discretionary errors and the lack of adequate reasons, though the grounds are difficult to isolate and discuss individually. In effect, the father contends the primary judge failed to give sufficient weight to the child’s positive relationship with him or how the promotion of their relationship would help overcome, first, the child’s traumatic loss of his sibling, and secondly, the child’s immersion in the mother’s acrimony towards him.
It is contended the primary judge failed to “genuinely and realistically consider” those factors (Ground 1), about which it is worthwhile observing two things. First, when a statute requires a Court to “consider” some factor, it imports an obligation to give the factor “proper, genuine and realistic consideration” (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [43]) but, secondly, in appeals which lie from discretionary judgments it is preferrable to eschew the use of aphorisms like the failure to give “proper, genuine and realistic consideration” to some feature of the case as a ground of appeal and to instead adhere to the tried and tested language governing the characterisation of grounds of appeal (House v The King (1936) 55 CLR 499 at 504–505). To do otherwise risks the appellate court “slid[ing] into impermissible merit review” (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30]) by simply substituting its discretionary decision for that of the primary judge, which is never satisfactory (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 48; Norbis v Norbis (1986) 161 CLR 513 at 539–540; Gronow v Gronow (1979) 144 CLR 513 at 519–520).
In the alternative to Ground 1, it is contended the primary judge failed to give adequate weight to those same factors (Ground 2) and failed to give adequate reasons to dispel such contentions (Ground 3), though it is difficult to conceive how the father can credibly prosecute the latter ground of inadequate reasons when he makes this concession in his Summary of Argument:
1.2The reasons supporting the orders are the result of an evidently careful and considered judgment.
(Father’s Corrected Summary of Argument filed 22 July 2025)
Otherwise, it is asserted the orders are manifestly unreasonable as a disproportionately severe response to the risk of the mother’s impaired parenting capacity (Ground 4).
Grounds 1, 2 and 3
It is useful to start the analysis of these grounds by contextualising the nature of the dispute.
In any parenting proceedings brought under Pt VII of the Act, the paramount consideration is the child’s best interests (s 60CA and s 65AA), which statutory exhortation always begs the value-laden question of what is in the child’s best interests? The “best interests” enquiry is necessarily general in nature, requiring an assessment of the various considerations prescribed by the Act and those developed as guidelines by judicial decisions, and produces an ultimate conclusion which is a value judgment leaving room for reasonable differences of opinion (Bondelmonte v Bondelmonte at [32]).
The Act stipulates, by the provisions of s 60CC, the factors which must be considered when determining what is in a child’s best interests. However, s 60CC is only the latest version of the statutory provision which specifies how the Court determines the answer to that question. When Re Andrew was decided long ago in 1996, s 64 was the relevant provision and, at that point in time, the residential parent’s honest belief about risk was germane to that parent’s “care-giving capacity” (s 64(1)(v)). Over time, s 64 was superseded by s 68F and then again by s 60CC, which has had two separate iterations.
Under the Act’s current structure, the residential parent’s honest belief about risk is relevant to his or her capacity “to provide for the child’s developmental, psychological [and] emotional … needs” (s 60CC(2)(d)) and also conceivably to the benefit the child is able to derive from safely having relationships with both parents (s 60CC(2)(e)), as it may be detrimental for the child to maintain a relationship with the non-residential parent if the residential parent would thereby be deprived of parenting capacity. At the very least, it is a miscellaneous consideration which is relevant to the “best interests” enquiry (s 60CC(2)(f)).
Appellate courts are empowered and expected to develop principles to guide the exercise of wide statutory discretion, notwithstanding some peripheral uncertainty over whether such principles then become binding rules or remain mere guidelines (Northern Territory v Sangare (2019) 265 CLR 164 at [24]; Latoudis v Casey (1990) 170 CLR 534 at [10] and [27]–[29]; Norbis v Norbis at 519–520, 533–534 and 536–539). As the High Court of Australia observed, the development of well-settled principles promotes decision-making consistency and diminishes the risk of arbitrary and capricious adjudication.
Two examples of principles developed for the exercise of the very wide judicial discretion under Pt VII of the Act are readily familiar: judges must be astute to protect children from unacceptable risks of harm (M v M (1988) 166 CLR 69; Isles & Nelissen (2022) FLC 94-092) and to avoid causing detriment to children by making orders which will compromise the parenting capacity of the residential parent (Re Andrew).
In Re Andrew, the trial judge made orders preventing the father from having unsupervised “access” to the child because the mother genuinely feared he was a danger to her and the child, even though her fear might have been “irrational and baseless”. On appeal, the disaffected father argued that the trial judge gave “too much weight to the mother’s attitude and not enough weight to the benefits that would flow from an access regime being put into place”, and further, “the irrationally held fear of the mother ought not amount to a veto power”, which were exactly the same arguments advanced here by the father both at first-instance and in the appeal.
Re Andrew and many other decisions of similar ilk (including most recently Keane & Keane (2021) 62 Fam LR 190 at [75]–[85]) establish that, even when a non-residential parent does not objectively pose an unacceptable risk of abuse to a child, the genuine fears of the residential parent about the existence of such a risk may impinge so profoundly upon that parent’s capacity and cause such disturbance within the residential household that interaction between the child and the non-residential parent should be curtailed nonetheless, as the need to accommodate the child’s best interests overrides any sense of injustice between the parties.
In this instance, the primary judge correctly integrated the Re Andrew guideline principles with the provisions of Pt VII of the Act (at [10]–[13] and [122]–[183]), saying in the reasons:
24.The Re Andrew principle does not create a binding rule which confines or modifies the statutory scheme. Further, the concerned parent does not have a right of “veto” over whether the child should have time with the other parent (Keane, [73], [77] and [80]; citing Marra & Marra (unreported, FamCAFC, 8 September 1993)) …
…
125.At times the Re Andrew issue was framed as a s. 60CC(2)(a) safety issue. At other times, it was framed as a s. 60CC(2)(d) capacity issue. The Re Andrew issue arises under both s. 60CC(2)(a) (safety) and s. 60CC(2)(d) (capacity). If [the child] spending time with the Father would have a significant adverse impact on the Mother’s mental health and on her parenting that would not be an arrangement which would promote [the child’s] safety or the Mother’s safety being matters to which I must have regard under s. 60CC(2)(a)(ii). If the Mother’s parenting capacity, as the primary caregiver, to provide for [the child’s] developmental, psychological and emotional needs would be undermined by orders that [the child] spend time with the Father that is an issue that arises under s. 60CC(2)(d).
…
168.Section 60CC(2)(e) refers to the benefit of the child of being able to have a relationship with the child’s parents, and other people has who are significant to the child “where it is safe to do so”. I accept that the words “where it is safe to do so” may have conceptual relevance to the risk of the risk of the mother suffering psychological degradation for the purpose of the Re Andrew analysis above but otherwise do not repeat my analysis.
Despite the father not posing any objective risk of harm to the child (at [50], [60] and [126]), the mother genuinely believed the child was not safe with him (at [65] and [73]), which belief impaired her capacity as the residential carer to support the child’s ongoing interaction with the father (at [77] and [119]). The primary judge’s conclusions about the child’s best interests were expressed this way:
184.In conclusion, the significant issues that frame the orders to be made include the following.
185.First, there is no unacceptable risk of direct physical harm or emotional harm to [the child] from spending time with his Father under s. 60CC(2)(a).
186.Second, with reference to the principles drawn from Re Andrew and subsequent cases, although there is no direct unacceptable risk of [the child] spending time with his Father, the Mother genuinely perceives there to be a risk. Because of the tragedy of [the deceased child’s] death in a car accident where the Father was the driver and the Father was found criminally responsible, the Mother’s genuine perception is not baseless. There is a risk of emotional harm because of the impact on the Mother’s mental health with the resulting impact on her parenting. There is a real risk that if time continues [the child] will suffer emotional harm because his Mother will be unavailable to him functionally and emotionally. On the lay and expert evidence before me, the Mother has proved that there would be a significant impact on her parenting were [the child] to continue to spend time with his Father. The Re Andrew principles point in the direction of an order for no time and no contact between [the child] and his Father.
The primary judge evidently applied the Re Andrew principles within the statutory paradigm created by ss 60CA, 60CC and 65AA of the Act, which exhort the paramountcy of the children’s best interests, so there was no legal error. The essential complaint within these grounds is the primary judge reached the wrong discretionary result. However, upon analysis, that complaint is groundless because his Honour neither heeded irrelevant considerations nor overlooked those which were relevant.
His Honour specifically acknowledged the features of the evidence which favoured the father’s case, being: the child would benefit from having a relationship with him and members of the paternal family (at [13], [181] and [187]); severing the child’s relationship with him had the potential to be damaging for his future development (at [13], [14] and [173]); the child was “highly attuned” to the mother’s sentiments (at [148]–[149]); the child’s supervised time with the father for more than 12 months was a “positive experience” (at [160]–[163]); the former court child expert opined the maintenance of the child’s relationship with the father should be prioritised over ensuring the stability of the mother’s parenting capacity (at [113]–[117], [159] and [176]); the father has the capacity to provide for the child’s developmental, psychological and emotional needs while they spend time together (at [167]); the child’s relationship with a step-sibling pointed in favour of promoting the child’s relationship with the father (at [177] and [187]); and the distance between the parties’ homes was not an insuperable impediment to the child spending time with the father (at [183]). All those factors were relevant.
However, the case was mutually conducted on the premise the child would inevitably remain in the mother’s residential care and, having taken the considerations favouring the father’s proposal into account, the primary judge found they were outweighed by the potential degradation to the mother’s parenting capacity if the child was to spend any time with him.
Of course, before orders are made to accommodate the subjective views of a residential parent at the expense of the non-residential parent, there must be a proper evidentiary basis for finding the residential parent’s capacity would be otherwise unduly impinged (Hepburn & Noble (2010) FLC 93-438 at [43] and [49]–[64]), but there was plenty of evidence to that effect in this instance.
The finding as to the degradation of the mother’s parenting capacity was based upon the collective expert opinion evidence given by the current court child expert, the single expert psychiatrist, another consultant psychiatrist, and the mother’s treating psychotherapist, which evidence the primary judge either quoted or summarised (at [16]–[20], [85]–[112], [120] and [189]–[192]). The mother’s lay evidence was also influential (at [79]–[82]). The primary judge considered and rejected the father’s submission that such evidence did not support a finding “the [mother’s] parenting capacity would be sufficiently impaired” if the child continues to spend time with him (at [76]).
In prosecuting these grounds of appeal, the father contended the primary judge failed to consider, adequately or at all, the need of the child to have ongoing interaction with him to help emotionally recover from the trauma of the loss of his sibling. In support of the contention, the father emphasised the countervailing expert opinion evidence given by the former court child expert, who thought the maintenance of the child’s relationship with him was more important than the preservation of the mother’s parenting capacity, though his submissions are rejected.
The primary judge accepted the child had acute psychological needs (at [151]–[153]) and expressly referred to the evidence given by the former court child expert about how the father was well placed to assist the child recover from his trauma (at [115]–[117], [159], [176] and [179]), upon which evidence the husband relied. The evidence was not overlooked, but the probative value of it was discounted.
The former court child expert conceded the primary judge should place greater weight on the more recent assessment of the mother by the single expert psychiatrist. The transcript reveals this question and answer during cross-examination:
[Counsel for the ICL]: Can I test, perhaps, the outer limits of some of what you’ve just said, and what I would like to do is put to you some further insights that have been given in evidence in the last day or so in the course of the proceeding. So, for example, [the single expert psychiatrist] stated his high level of concern in relation to the mother’s mental health, and couch that in the sense that he does not make the sort of recommendations he has made very lightly, and that’s it very rare for him to do so, so in circumstances where a consultant forensic psychiatrist who made an assessment of the mother as late as December last year and where you haven’t assessed her or seen her in some two years, would you not concede that his assessment is the one that his Honour ought to place weight on?
[Former Court Child Expert]: Yes, I would agree with that.
Transcript 14 March 2025, p.332 lines 35–44
The primary judge logically explained why the other expert opinion evidence was preferred (at [198]–[203]), which conclusion was not vitiated just because the father could point to the rejected inconsistent evidence of the former court child expert (Cizek & Mihov (2024) FLC 94-206 at [21]). Giving a rational explanation for the acceptance of some evidence and the rejection of other inconsistent evidence is integral to the proper exercise of judicial function.
His Honour found the evidence established the mother could not cope with the child spending any time at all with the father, whether it be supervised or unsupervised (at [16], [18], [23], [119], [186], [189] and [192]), which finding was entirely consistent with the evidence given by the single expert psychiatrist and the current court child expert. Their opinion evidence tallied with the factual evidence, as the mother’s adverse psychological symptoms were aggravated by the child spending even supervised time with the father under the interim orders (at [192]). She had to be medicated to comply with those interim orders (at [80] and [82]).
The father’s proposition that the imposition of professional supervision could satisfactorily attenuate the mother’s genuine fears was rejected, with the primary judge saying in the reasons:
19.The risk to [the child] cannot be mitigated by [the child’s] time being supervised. The weight of the expert evidence was that the deleterious effect on the Mother (and as a result to [the child]) resulted from any time; whether the time was supervised or unsupervised. In [the single expert psychiatrist’s] opinion (which I accept), ongoing, recurrent contact between [the child] and his Father was having a significant and cumulative adverse effect on the Mother’s mental health. Only a break in contact, would allow to the Mother “the opportunity to allow her mental health to improve and have an opportunity to have further treatment”… [The child] spending time with his Father would not allow her an opportunity to recover and was “triggering” of her PTSD …
…
197.[The current court child expert] opinion was broadly supportive of [the single expert psychiatrist’s] opinion. [The current court child expert] opined as to supervised time that “it remains likely that this will continue to have a detrimental effect upon her and stall both her and [the child’s] road to recovery” …
…
204.Before fixing on any orders that [the child] spend no time and have no contact with the Father, I must consider whether the risk to [the child] of a significant impact on the Mother’s parenting can be mitigated (see i.e., Bielen, above). This consideration is important in circumstances in which a no time order and no contact order will deprive [the child] of the benefit (at present) of a relationship with his Father, his [half-brother] and the broader paternal family.
205.Often, the court can mitigate the risk of an adverse effect on the child and avoid the last resort of a no time order by the mechanism of an order for supervised time (often ordered to ameliorate an otherwise unacceptable risk), or recognition visits or identity contacts or a provision that the parent with whom the child is spending no time provide cards or gifts so that the child knows of the parent.
206.The difficulty is that [the child’s] recurrent time and contact with the Father — whether that time is supervised or unsupervised — is triggering the Mother’s PTSD and the knock-on effect on her parenting. Any time — supervised or unsupervised — is likely to have a discernible impact on her parenting. Each fortnightly contact is triggering and cumulative. The weight of the expert opinions was that only by removing the trigger of recurrent time and contact — by a moratorium on all time and contact — could the Mother reduce her symptoms, pursue therapy and improve her functioning including as a parent.
207.Accepting that an order for no time and no contact is a last resort, I have decided that it is nonetheless in [the child’s] best interests that there be an order for no time and no contact between him and the Father. As to the orders I will make, I have given greater weight to the consideration of supporting the Mother as the primary caregiver to regain her mental health than to the consideration of the benefit of [the child] having a relationship with his Father and even if that time for [the child] with the Father which may otherwise be of benefit to him.
These grounds must fail because the primary judge expressly considered the factors which favoured the father’s case, weighed those factors, though not as heavily as he hoped, and gave adequate reasons to explain the result.
Ground 4
This ground asserts the outcome was “legally unreasonable” because the moratorium upon the child spending any time with the father operates indefinitely and is therefore disproportionate to the nature and magnitude of the risk of harm posed to the child by the impairment of the mother’s parenting capacity.
So framed, this ground of appeal could only feasibly be a complaint of inferred discretionary error, described by the High Court of Australia in House v The King at 504-505 in this way:
…It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
(Emphasis added)
The result embodied by the orders was an indefinite embargo on the child spending any time with the father without the mother’s consent, but the restoration of written communication between them 12 months hence, for which differentiation the primary judge gave satisfactory reasons.
There was a solid evidentiary foundation to find the mother could not presently cope with the child spending any time at all with the father – either supervised or unsupervised. The evidence for that finding is covered by the discussion of the first three grounds and need not be repeated.
Both parties sought orders to dispose of the cause finally, not merely temporarily (at [208]), which request was heeded. Hence, there could be no future review mechanism built into the orders (at [209]), as that would necessarily keep the litigation alive.
The single expert psychiatrist opined the mother would need “at least” six to 12 months to recover her emotional equilibrium, while the current court child expert suggested the stabilisation of the mother’s mental health could be re-visited as an issue six years hence. Given such uncertainty in their prognostications, the single expert psychiatrist and the current court child expert both recommended the imposition of an indefinite moratorium on the child’s interaction with the father – either by communicating or spending time with him (at [98], [108]–[112], [193]–[194], [197] and [209]). As it transpired, the primary judge was not ultimately persuaded to follow the expert advice of eliminating the father from the child’s life indefinitely.
While the findings about the mother’s current emotional state precluded any orders being made for any immediate communication or personal interaction between the child and the father, his Honour did not intend the shut the father out forever. Given the expert evidence about the mother’s prospective recovery of some degree of emotional stability, his Honour was astute to keep open the “door of opportunity” for the restoration of the child’s relationship with the father in two ways: first, by the re-introduction of written communication between them after 12 months had elapsed (at [20] and [211]); and secondly, by giving the mother the authority to permit the child to spend time with the father if and when she feels ready (at [214]). His Honour hoped to preserve a basal connection between the child and the father which might be reinvigorated at some indeterminate point in the future.
The prospect of the mother eventually adjusting to the idea of the child spending time with the father was entirely speculative at that point, in which event his Honour sensibly, or at least permissibly, thought it best not to guess when that might be. His Honour said:
21.I can only make orders on the facts as they presently exist. The reformation of any more meaningful relationship between [the child] and his Father in the future will depend on a significant change of circumstances and the court being satisfied that it is in [the child’s] best interests for the final parenting orders I will make to be reconsidered in accordance with the provisions of s. 65DAAA of the Act.
…
208.This is a tragic case. All parties agreed that I should make final orders, not interim orders, because of the stress that ongoing litigation was imposing on the parties. I must make prescriptive and enforceable orders. A court is not a therapeutic agency (Lainhart & Ellinson [2023] FedCFamC1A 200, [29]).
209.[The current court child expert] said while it was not possible to “crystal ball” the future, he recommended that the matter might be revisited when [the child] turned twelve years of age … Because I am making final orders there is no automatic mechanism to revisit this matter in 6 years (when [the child] is twelve years old). I will make final orders for now on the evidence before me and go no further. Even if it were in [the child’s] best interests to make orders preventing revisiting the matter until [the child] is 12 years old (and I am not persuaded that it is in [the child’s] best interests), I cannot prevent future reconsideration of my final orders. Under s. 65DAAA(1)(a) of the Act, a “significant change of circumstances” is a precondition to the court reconsidering final parenting orders. Circumstances may change because of any combination of an improvement in the Mother’s mental health, because [the child] will grow older such that his views assume a greater significance or because of the passage of time.
210.Although [the single expert psychiatrist] was prudently circumspect as to any prediction as to a timeframe over which the Mother’s mental health may improve, he reluctantly fixed upon an estimate of 6–12 months to allow the Mother to have an opportunity to recover her mental health. [The court child expert’s] evidence (which I accept) was that the moratorium ought to extend to time and to contact.
211.In framing final orders, it is in [the child’s] best interests to keep open the “door of opportunity” ([court child expert’s] phase) for [the child] to re-establish a relationship with his Father. I will order that the Mother four times annually provide photographs of [the child] to the Father. I will make orders for correspondence in the form of cards, letters, gifts and photographs on no more than four occasions each year after a 12 month moratorium. By those orders, the door of opportunity for [the child] to re-establish a future relationship with his Father, if the Mother’s mental health permits, will be at least fractionally open.
Hence the specific orders governing the child’s future communication with the father (Orders 11–13). But the decision to refrain from making a prescriptive order to either restore or unconditionally forbid the child’s future physical interaction with the father was neither an error of law, fact or discretion.
At the trial, in the hypothetical context of the father’s proposal being rejected, his counsel conceded his Honour could not validly make a speculative order to re-introduce the child to the father at some indeterminate future time, so he can hardly now contend in the appeal his Honour erred by acting in accordance with his concession. Counsel and his Honour had this exchange during final submissions:
HIS HONOUR: But if I’m against you, is there any fallback position that you would ask me to consider in terms of keeping the door of opportunity open because of its importance, having regard to the fact that if I were to make such an order, that would compound [the child’s] loss in a very real way? And I just wondered whether - - -
[Counsel for the father]: Yes.
HIS HONOUR: - - - you had turned your mind to anything that would keep the door of opportunity open if I’m against you on your primary case.
[Counsel for the father]: No, but can I address your Honour on that issue - - -
…
[Counsel for the father]: For the door to remain open so that [the child] – the loss can be, well, reduced or not as drastic, the court would have to go back a step, and find that the mother is able to promote the relationship and, on the evidence, it would be an aspirational order. Because on the evidence, the mother is clear that’s not going to happen, and there’s no evidence from the maternal grandparents. So, your Honour, I would have to say, on the evidence, it would be an invalid order on the evidence.
…
HIS HONOUR: Right, but it’s not part of your – an alternative case that you would put before me.
[Counsel for the father]: No. Your Honour - - -
HIS HONOUR: There’s just a – there’s just an all or nothing quality to your client’s position.
[Counsel for the father]: Your Honour with respect - - -
HIS HONOUR: Yes.
[Counsel for the father]: - - - it’s an all or nothing over both sides of the bar table, I’m sorry. So that’s not just my – that’s not my client.
(Transcript 20 March 2025, p.463 lines 7–18; p.463 lines 30–35; p.464 lines 6–19)
In support of this ground, the father submitted this:
5.36In circumstances where the primary judge has accepted the benefit to leave the door open for re-establishment of the relationship [between the child and the father], it would have been open to the primary judge to suspend time for a significant period of time and thereafter at a minimum facilitate recognition visits.
(Father’s Corrected Summary of Argument filed 22 July 2025) (Emphasis added, footnote omitted)
The submission is rejected for two reasons. First, on the available evidence, the duration of any finite moratorium period during which the child’s personal interaction with the father should be prohibited would have been no better than a guess. Secondly, even if was “open” for the primary judge to arbitrarily order when the child should resume spending time with the father (regardless of the mother’s agreement), the decision not to do so was not an appealable error for the reasons given. In this appeal, the father must demonstrate error in the decision, not just contend some other course was open.
It should be emphasised how the primary judge was eager to dispel any notion that the orders were intended to be punitive in nature (at [56], [180] and [223]). As always, the child’s best interests were paramount.
Disposition
The appeal is dismissed.
The mother sought her party/party costs of the appeal, assessed in the sum of $9,948, which she should have. The father opposed the costs application as to the quantum only, conceding a costs order was warranted if the appeal was wholly unsuccessful. The father suggested the mother’s party/party costs were more properly quantified at $6,000, but the submission is rejected. The mother’s party/party costs of $9,948 were reasonable when the father conceded he spent approximately $75,000 with his own lawyers to prosecute the appeal.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 28 August 2025
0
14
1