Arendse & Pilkvist

Case [2025] FedCFamC1A 153

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…

Continue reading Arendse & Pilkvist

Sign in free to access the full text

Details
AGLC
Arendse & Pilkvist [2025] FedCFamC1A 153
Case
[2025] FedCFamC1A 153
Decision Date

CaseChat Overview and Summary

In the appeal of Arendse v Pilkvist, the father challenged final parenting orders made by a judge of the Federal Circuit and Family Court of Australia in May 2025. The primary orders made no provision for the child to spend time with the father, who had caused a fatal car accident that killed the child’s brother. The mother had stopped the child from spending time with the father following the accident, a decision with which the father initially acquiesced. The father later commenced fresh parenting proceedings, which resulted in interim orders made in August 2023 requiring the child to spend supervised time with the father. However, the primary judge did not make orders for the child to spend time with the father in his final orders, which were handed down in March 2025. The father appealed on the basis that the primary judge failed to give sufficient weight to the child’s positive relationship with him and made a discretionary error in not making any orders for the child to spend time with him.

The appeal raised questions about whether the primary judge gave sufficient weight to the child’s positive relationship with the father and whether he made a discretionary error when making no order for the child to spend time with him. The court considered that the primary judge had expressly considered and weighed the factors which favoured the father’s case and had given adequate reasons for his decision. The court also considered that 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. The court found that the primary judge had appropriately balanced the child’s need for a relationship with the father against the mother’s emotional distress and belief that the child was not safe with the father.

The appeal was dismissed and the father was ordered to pay the respondent’s party/party costs of the appeal, fixed in the sum of $9,948. The primary judge had made orders for the re-introduction of written communication between the child and the father after a moratorium of 12 months in the hope of preserving a basal connection between them. The court found that this was an appropriate outcome in the circumstances. The court noted that the parties had sought the cause be finalised and therefore no review mechanism could be built into the orders. The court also noted that the single expert psychiatrist and the court child expert gave uncertain prognostications as to the mother’s emotional recovery.

Orders

Orders of the court

NAA 239 of 2025

MLC 9802 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.