Arendse & Pilkvist - [2025] FedCFamC2F 533

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arendse & Pilkvist [2025] FedCFamC2F 533

File number: MLC 9802 of 2020

Judgment of: JUDGE CHAMPION

Date of judgment: 1 May 2025

Catchwords:
FAMILY LAW – Parenting – Where the issue for decision was parenting orders for a 6 year old child– Where in 2022 the child’s brother who was then 6 years old was killed in a car accident in which the Father was the driver – Where the Father was sentenced to over one year imprisonment to be served in the community following a plea of guilty to criminal charges resulting from the car accident

FAMILY LAW – Re Andrew – Where the Mother suffers from PTSD and linked disorders as a result of the child’s death – Whether there was an unacceptable risk of physical or emotional harm to the child if he spent time with the Father – Whether the child spending any time with the Father would cause the Mother to suffer psychological degradation so as to impair her parenting capacity and deleteriously affect the child – Whether severing the child’s relationship with the Father had the potential to damage the child’s future development

FAMILY LAW – How competing considerations should be weighed – Held no unacceptable risk of direct physical or emotional harm to the child of him spending time with the Father – Held nonetheless the risk of a significant impact on the Mother’s parenting and therefore the child resulted in an order for no time being in the child’s best interests – Where the discernible impact on the Mother’s parenting could not be mitigated by the child’s time with the Father being supervised.

FAMILY LAW – Orders made for the Father to be able to correspond by gifts and cards after a moratorium of 12 months so as to provide an opportunity of the child re‑establishing a relationship with the Father

Legislation:
Evidence Act 1995 (Cth) ss. 91, 140

Family Law Act 1975 (Cth) ss. 60CA, 60CC, 65DAAA, 69ZT, 69ZX

Cases cited:
A & A (1998) 22 Fam LR 756; (1998) FLC 92-800

Albert & Plowman [2020] FamCAFC 23

Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222

Bielen & Kozma [2022] FedCFamC1A 221

Blinko & Blinko [2015] FamCAFC 146

Bruce & Bruce [2023] FedCFamC1F 936

Cole & Rudzik [2024] FedCFamC1A 103

Cottey & Backe (No. 2) [2020] FamCAFC 206

Dajani & Dajani [2025] FedCFamC1A 28

Darmadi & Binjori (2023) FLC 94-136; [2023] FedCFamC1A 29

Donaghey & Donaghey [2011] FamCA 13

Eastley & Eastley (2022) FLC 94-094

Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Franklyn & Franklyn [2021] FamCAFC 112

G v G [1985] FLR 894 at 897–898

Gavare & Ulrich [2024] FedCFamC2F 275

Isles v Nelissen [2022] FedCFamC1A 97

JG and BG (1994) FLC 92-515

Keane & Keane [2021] FamCAFC 1

Kellerman & Kellerman [2024] FedCFamC1A 126

Knopf & Knopf [2024] FedCFamC1F 359

Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200

M v M (1988) 166 CLR 69 at 76–77

Olivier & Olivier [2020] FamCA 639

Pickford & Pickford [2024] FedCFamC1A 249

Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341

Ransone v Ransone(No. 2) [2024] FedCFamC2F 1161

Re Andrew (1996) FLC 92-692

Summerby v Cadogen [2011] FamCAFC 205

U v U (2002) 211 CLR 238; [2002] HCA 36

Division: Division 2 Family Law

Number of paragraphs: 224

Date of last submissions: 20 March 2025

Date of hearing: 11–14 and 20 March 2025

Place: Melbourne

Counsel for the Applicant: Ms Taylor

Solicitor for the Applicant: Perry Weston Lawyers

Counsel for the Respondent: Ms Stavrakakis

Solicitor for the Respondent: McKean Park Lawyers

Counsel for the Independent Children's Lawyer: Mr Laidlaw

Solicitor for the Independent Children's Lawyer: Patford-Smith Legal Services
ORDERS

MLC 9802 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ARENDSE

Applicant

AND:
MS PILKVIST

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE CHAMPION

DATE OF ORDER:

1 MAY 2025

THE COURT ORDERS THAT:
Decision-making
1.Ms Pilkvist (the Mother) have sole decision-making responsibility about major long‑term decisions in relation to X, born in 2018 (X).

Live with order
2.X live with the Mother.

Spend time with order
3.Unless otherwise agreed between the Mother and Father in writing, X spends no time with Mr Arendse (the Father).

Contact orders
4.Except as set out in orders 5–13 below, X have no contact with the Father.
5.The Father notify the Mother within 7 days of any change to his email address or telephone number.
6.The Father is entitled to receive copies of school reports for X from X’s school and may provide a copy of these orders to X’s school as evidence of that entitlement.
7.The Mother keep the Father informed of any change of X’s address.
8.The Mother notify the Father as soon as is practicable in the event of any serious medical emergency involving X or if X is diagnosed with a serious and ongoing medical condition.
9.The Mother provide the Father with photographs of X not less than four times each year in March, June, September and November of each year.
10.The Mother facilitate X sending correspondence in form of cards, letters, gifts, and photographs addressed to the Father whenever X expresses the desire to do so.

X’s contact with the Father
11.After 1 May 2026 (12 months following the date of these orders) the Father may communicate with X as agreed in writing by the parties and, in the absence of agreement, by correspondence in the form of cards, letters gifts, and photographs addressed to the Mother (Correspondence) on no more than four occasions each year.
12.The Mother provide the Correspondence to X.
13.The Mother facilitate X reading any Correspondence.

Provision of orders to professionals
14.The Mother may provide a copy of these orders to any school, extracurricular activities or sporting activities attended by X.
15.The Mother and the Father may provide a copy of these Orders and reasons for judgment to X’s treating medical or allied health practitioners.
16.The Mother and the Father may provide a copy of these Orders and reasons for judgment to their treating medical or allied health practitioners.

Independent Children’s Lawyer
17.The Independent Children’s Lawyer will meet with X as soon as is practicable to explain these reasons for judgment and orders.
18.After the Independent Children’s Lawyer has complied with order 17 above, the Independent Children’s Lawyer is discharged.

Discharge of orders
19.All extant orders are discharged.
20.Except to reserve the parties’ position as to costs, all extant applications are dismissed.

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION

This case is about parenting orders for X, now aged 6, born in 2018. Mr Arendse is the Applicant Father, and Ms Pilkvist is the Respondent Mother.
The parties agree that the Mother be allocated sole decision-making responsibility for all decisions about major long-term issues about X and that I should order that X live with the Mother (orders 1 and 2). After trial, by consent, I made orders that discharged an earlier Airport Watchlist order.
The parties’ dispute is as follows. The Mother proposes (supported by the ICL) (Ex M14 and Ex ICL2) that I ought to order that X spend no time with, and have no contact with, the Father because of the principle established in Re Andrew (1996) FLC 92-692: namely that she is the primary caregiver and X spending time with the Father will have a significant impact on her parenting. The Father proposes that X’s current supervised time with the Father under interim orders (3 hours each alternate week end) is maintained and after 12 months that time gradually increase so that X — after approximately 24 months — will spend time each alternate weekend with the Father (Ex F8).
It is necessary to set out the following facts.
In mid-2016 the parties began living together. In 2016, their first child, Y was born. In March 2017 the parties separated and in December 2017 they reconciled. In 2018 X was born. In June or July 2020, the parties finally separated.
On 15 September 2022, by consent, the court made final parenting orders for Y and X. The orders were for the children to live with the Mother and spend time with the Father during term time each alternate weekend from Friday until Sunday and to spend time with the Father for half of the school holidays. Then, as now, the Father lived in Region B, north of Town C, near the extended paternal family who own farms in that area. The Mother then lived (and lives now) in metropolitan Melbourne. Although the geographical distance between the parties’ homes is a real issue, it is not the primary issue which frames the parties’ dispute.
The tragedy that frames this dispute is that in 2022 X’s older brother, Y, then aged 6, was killed in a car accident near the Father’s home. The Father was the driver. The Father and X were both also injured in the accident. In early 2024 the Father pleaded guilty to driving offences resulting from the accident. In mid-2024, in the NSW District Court, he was sentenced to over one year imprisonment, to be served in the community.
The accident led to the cessation of X’s time with the Father. When the parties could not agree as to the resumption of time spent, the Father commenced this proceeding.
Since about December 2023, under current interim orders, X has spent professionally supervised time — 3 hours each alternate weekend — with his Father in Melbourne.
WHAT ARE THE ISSUES FOR DECISION?
Under s. 60CA of the Family Law Act 1975 (Cth), I must regard X’s best interests as the paramount consideration.
The structure of these reasons is as follows.
First, I deal with the Mother’s Re Andrew case. The Mother is and always has been X’s primary caregiver.
Second, I consider the matters set out in s. 60CC(2)(a)–(f). I aim to put the Re Andrew discussion in the context of s. 60CC(2). In particular, under s. 60CC(2)(e), I consider the benefit to X having a relationship with his Father and the paternal family, including a baby brother, D, born in 2024, from the Father’s new relationship. A line of authority establishes that severing a child’s relationship with a parent has the potential to be “profoundly damaging for [the child’s] future development” (Bielen & Kozma [2022] FedCFamC1A 221, [47]).
Kirby J noted in U v U (2002) 211 CLR 238; [2002] HCA 36 at [119] that, in framing orders in X’s best interests, I must consider “conflicting material pointing in different directions”. Suffice to say at the outset, the Re Andrew considerations and the consideration of the potential damage to X of severing his relationship with his Father are considerations that point “in different directions.”
Third, I have concluded with the orders that are in X’s best interests.
SUMMARY
Mr E, the Family Report Writer, said X had “a hierarchy of needs” (Ex CE-4, [87]). Dr F, the single expert psychiatrist, had “no doubt” that there would be a “significantly deleterious effect on the mother’s mental health” of X spending ongoing supervised time with the Father with a view to progressing to unsupervised time (T295:L39). Acknowledging the effect on the Mother’s parenting is “quite difficult to predict,” Dr F had a real “concern” as to how X spending time with his Father would affect the Mother’s “capacity to care for her child” (T295:L40). Mr E was concerned that the continuation of X spending time with his Father would mean that the Mother’s “parenting [will be] so compromised that she will be no longer able to care for him and that he would have to live with the parent with whom his relationship is detrimental to his long-term [well-being]” (Ex CE-4, [87]).
Acknowledging that “determination of orders which promote the children’s best interests is not a … one-dimensional process” (Bruce & Bruce [2023] FedCFamC1F 936, [70]), in framing orders in X’s best interests I have accepted Mr E’s evidence that I ought to give relatively greater weight to the need to protect the Mother’s mental health than to the importance of X’s relationship with his Father and broader paternal family, including D, in circumstances in which those factors “point in different directions” as to the orders to be made.
The Mother is X’s primary carer. Because there is a real risk that X 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 X, it is in X’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.
The risk to X cannot be mitigated by X’s time being supervised. The weight of the expert evidence was that the deleterious effect on the Mother (and as a result to X) resulted from any time; whether the time was supervised or unsupervised. In Dr F’s opinion (which I accept), ongoing, recurrent contact between X 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” (T296:L4-5). X spending time with his Father would not allow her an opportunity to recover and was “triggering” of her PTSD (T296:L7).
Mr E, whose evidence I also accept, referred to the importance of “allow[ing] the door of opportunity to remain open for potential future connection” to be formed between X and his Father (Ex CE-4, [87]). So as to keep the door of opportunity fractionally open for X to re‑establish a relationship with his Father from 1 May 2026 (after a moratorium of 12 months) I will make orders that the Father may correspond with X by way of cards, gifts and photographs four times a year.
I can only make orders on the facts as they presently exist. The reformation of any more meaningful relationship between X and his Father in the future will depend on a significant change of circumstances and the court being satisfied that it is in X’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.
My reasons follow.
ISSUE 1: WILL X SPENDING TIME WITH THE FATHER CAUSE THE MOTHER TO SUFFER SUCH PSYCHOLOGICAL DEGRADATION AS TO SIGNIFICANTLY IMPAIR HER PARENTING CAPACITY AND DELETERIOUSLY AFFECT X?
I have found that there is a risk that the Mother will suffer psychological degradation by X spending time with his Father. That risk may have a significant impact on her parenting capacity and deleteriously affect X. As a result, I propose to make orders that X spend no time and have no contact with his Father (see i.e., Franklyn & Franklyn [2021] FamCAFC 112, [40]; Keane & Keane, [2021] FamCAFC 1, [73]-[82]; Knopf & Knopf [2024] FedCFamC1F 359, [238]-[240]).
What is the Re Andrew principle?
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)). The Mother, as the parent asserting that X should spend no time with the Father because of the impact on her mental health and resulting impact on her parenting, should be in a position to prove “by adducing evidence of sufficient weight, the basis of their contention” (Keane, [73]).
In Keane at [75] the Full Court noted that the Re Andrew principle as to the “impact of a genuinely held belief on the primary caregiver’s ability to parent” “has been expressed in a variety of ways” including that the impact of time:
a. “may so impinge upon her capacity as the primary caregiver of the children”
…
c.“as her likely being unable to continue to function effectively so as to adequately care for the children”
…
f.“have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child”
[Citations omitted]
The Full Court in Keane held that the relevant inquiry was whether the concerned parent’s parenting capacity will be “discernibly impaired” by the child spending time with the other parent (at [81]).
In Keane at [82] the Full Court (citing Blinko & Blinko [2015] FamCAFC 146 at [83]) said — relevantly to the current case — that:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt.
Each party referred me to Maguire J’s recent application of the Re Andrew principle in Knopf at [240] where His Honour cited the relevant principles drawn from A & A (1998) 22 Fam LR 756; (1998) FLC 92-800 at [3.27]-[3.29] (A & A was also referred to in Keane at [83]). In A & A the Full Court had said:
3.27 It is only in cases where the trial judge reaches a conclusion that objectively there was no unacceptable risk that that Judge would need turn to the separate question of the wife’s belief in the occurrence of the events in question as a separate matter, as the judgment of the Full Court in Russell and Close (25 June, 1993, unreported but frequently referred to in this area) demonstrated: see also, for example, Re Andrew (1996) FLC 92-692, which has some similarities with this case.
3.28 If the wife had such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. The reason for that, as explained in Russell and Close and in cases which have followed that since, is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.
3.29 It appears to us that his Honour’s approaches confused these two aspects. The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.

Having regard to those principles,
(1)the first enquiry is whether there is an “objectively an unacceptable risk” of X spending time with the Father (A & A, [3.29]);
(2)if not, does the Mother as the primary carer have a genuine belief that such a risk exists; and (A & A, [3.29]); and
(3)has the Mother proved, by adducing evidence of sufficient weight, that her parenting would be “discernibly impaired” (Keane, [73] [81]) or that there would be a “significant impact” (A & A, [3.29]) on her parenting capacity were X to spend time with the Father.
I turn next to those three Re Andrews issues in light of the evidence.
(1) Is there objectively an unacceptable risk of X spending time with the Father?
Is X at an unacceptable risk of physical harm because of the accident?
The sentencing judge’s finding, decision and judgment received as evidence before me
In 2024 the Sentencing Judge in the NSW District Court, sentenced the Father as to the driving offences as to which the Father had earlier pleaded guilty arising from the accident in 2022. The aggregate sentence was over one year imprisonment to be served in the community. The Father’s driving license was cancelled until mid-2024.
In the civil proceeding before me, contentious facts must be proved on the balance of probabilities and not beyond reasonable doubt as was the case in the criminal proceeding. Evidence before me included disputed matters as to the accident. It was nonetheless not practicable or appropriate for the parties to relitigate the circumstances of the accident. The Sentencing Judge’s sentencing remarks constituted the best evidence available before me of what had occurred in the accident in 2022.
Murphy J said in Donaghey & Donaghey [2011] FamCA 13 at [70] that it was somewhat “counterintuitive” for one court to adopt findings by another court as to contentious matters. Under the less adversarial trial procedures which apply to parenting proceedings, I received the Sentencing Judge’s “finding, decision or judgment” constituted by his sentencing remarks (Ex F10) without objection into evidence. The sentencing remarks were admissible under s. 69ZT(1)(c) and s. 69ZX(3)(b) of the Family Law Act. Section 69ZT(1)(c) provides that “Parts 3.2 to 3.8” of the Evidence Act 1995 (Cth) do not apply to child-related proceedings. But for s. 69ZT(1)(c), s. 91 of the Evidence Act 1995 – which is within Part 3.5 of that Act – would apply to exclude the admissibility of sentencing remarks (see i.e. Dajani & Dajani [2025] FedCFamC1A 28, [9] citing Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 at [9]).
What were the Sentencing Judge’s findings?
The Sentencing Judge said — and I agree — that (Ex F10, p 1 of 14):
This, like many matters arising from motor accidents, is a very tragic case. On the one hand there is an innocent child who has lost his life and whose family still mourns that loss. On the other hand, there is a relatively young man, the father of the victim, who has little criminal history and a recognised good character. His life too has been significantly affected not only because he faces the possibility of significant punishment, but also because he must live with the guilt of having taken his son's life and injuring his other child.
The Sentencing Judge observed (Ex F10, p 3 of 14):
Both of the boys were in the [vehicle] with the offender. The agreed facts are that [X] was in the front seat and [Y] was in the rear passenger seat and they both were not restrained as required or at all. In his evidence, the offender said that both boys were seated in the front seat with the single seatbelt across them. He said that their child seats were in the other [vehicle] – which had overheated – and, because he only intended to go out to undertake a short period of work, he did not put the seats into the [vehicle]. There was no objection to that evidence and the offender was not tested on it. I generally accept him as a credible witness and accept his sworn version of events.
In the evidence before me there continued to be some uncertainty as to whether both boys were in the front seat or whether Y was in the rear passenger seat. It is not necessary to decide.
The Sentencing Judge found that the vehicle was “on the incorrect side of the roadway” (Ex F10, p 3 of 14). The Sentencing Judge recorded that the vehicle travelled about 160 metres while not in control. The vehicle rolled several times impacting with the ground before coming to rest on its roof. Y was crushed and tragically killed.
The Sentencing Judge found that in terms of matters that could be proved beyond reasonable doubt (Ex F10, p 5 of 14):
First, there is no evidence that the offender was exceeding the speed limit. Secondly, there is no suggestion that the offender was affected by any drugs, alcohol or fatigue, or that he was distracted by his mobile phone or by anything else. Thirdly, the precise conduct which amounted to dangerous driving and other misconduct within the meaning of the relevant provisions was that, on account of some conduct, his vehicle came to be driving on the wrong side of the road. Everything flowed from his attempt to regain control of his vehicle from that point and resulted in the tragic death of his first son and injury to his youngest son, as well as to himself.
[Emphasis added]
The Father had failed properly to secure his sons in age-appropriate child seats. The Sentencing Judge said as follows (Ex F10, p5-6 of 14):
The actual offending was the manner of driving, not the senseless failure to properly put his sons in child seats. Further, although properly securing the children would likely have lessened the impact of the collision on them, I cannot say to the requisite standard that there would have been a different, less tragic outcome.
In the circumstances, the offending must be described as somewhere between reckless and careless for a brief moment…
The Father was cross-examined at the sentencing hearing. The Sentencing Judge accepted him as a “credible witness and accepted his sworn version of events” (Ex F10, p 3 of 14). The Father’s evidence was that he could not remember the circumstances of the accident. He said that, because he had no memory of the accident, he could not say whether he was on his mobile phone. The Mother does not accept that the Father truly has no memory of the accident and genuinely believes he was speeding and on his mobile phone. I will return to these issues below.
The injuries to X and the Father
The Father and X were airlifted to Melbourne hospitals.
X “suffered with a laceration to his right… knee and superficial grazes to his left upper limbs, bilateral thighs and knees.” In 2022, two days after the accident, the Mother discharged X from hospital. In her evidence the Mother said that X still has some physical scarring. X has some current eyesight concerns which may (or may not) be because of the accident. It was not proved that X has any ongoing physical impairment as a result of the accident.
The Father suffered fractured vertebrae. The Father has no material ongoing physical impairment from the accident. X’s direct trauma from the accident is more complicated and I will return to this issue below.
Does the Father’s history of driving offences mean that there is an unacceptable risk of X spending time with him?
In final address, the Mother submitted that the Father’s blemished driving history meant that objectively there was an unacceptable risk of physical harm to X if X spent time with him unsupervised. The Father was cross-examined on the basis of what was submitted to be a poor driving record. Over about a decade, before the 2022 accident, the Father had committed a number of traffic offences, mainly speeding offences and one offence of not wearing a seatbelt (Ex M1).
As noted, it was common ground that the boys were not properly restrained in age-appropriate car seats at the time of the accident. The Sentencing Judge was not persuaded beyond reasonable doubt that there would have been a different, less tragic, outcome had the boys been properly restrained in car seats.
The Father’s explanation as to why the car seats were not in the vehicle at the time of the accident was that another vehicle where car seats were installed had overheated the day before. He had not taken the trouble to switch the car seats from one vehicle to another. Before me, the paternal grandparents — Mr G and Ms J — corroborated this evidence about the overheated vehicle. The Sentencing Judge accepted the Father’s evidence as to the reason the car seats were not in the vehicle. I also accept the Father’s evidence.
The evidence before me was also that on one previous occasion the Father had left his home in Region B for a changeover at Suburb H — a midpoint between the parents’ homes — without a car seat. He borrowed a car seat from his Mother on changeover.
Although the Father’s driving record was not without blemish (Ex M1), his driving history was not of a type that can be said it was a harbinger of the tragic events of 2022. It has not been proved that the Father’s driving record or a careless attitude to the importance of the children’s car seats before 2022 means that there is an unacceptable physical risk of X spending time with the Father.
In his evidence before me, the Father readily accepted that he would accede to an injunction that he not drive with X in a motor vehicle.
Conclusion as to risk of physical harm
I find that there is not an unacceptable risk of physical harm to X of him spending time with the Father because of a risk of a repetition of the dangerous driving which occurred in 2022 (see i.e., Isles v Nelissen [2022] FedCFamC1A 97, [50] approving Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251, [139]).
Is X at an unacceptable risk of emotional harm from spending time with the Father because of the accident?
What is the Father’s level of acceptance of responsibility and insight into the accident?
Acceptance of responsibility and insight are closely related concepts. As Tree J said in Darmadi & Binjori (2023) FLC 94-136; [2023] FedCFamC1A 29 at [19], insight as to past conduct must “to some degree … predict a repetition of such conduct”.
I find that the Father has fully accepted responsibility for the accident and had the insight to acknowledge his responsibility for it. The first way in which the Father accepts responsibility was that he pleaded guilty to the offences. The Sentencing Judge accepted that the Father was “truly remorseful for his offending” and that he had “guilt and shame … for the death of one son and injury to his other son” (Ex F10, p 8 of 14). I make the same finding.
Mr E said that when the Father spoke to him of Y’s death, he said, “I am 100 percent responsible” (Ex CE-4, [25]). Mr E in his Addendum Report (Ex CE-5) noted that the Father presented as “expressing pain, anguish and remorse for the death of his son” (EX CE-5, [11]). Mr E reported at [6] that:
[The Father] has demonstrated a sincere articulation of his feelings of responsibility in the tragic accident resulting in the death of [Y].
I find that the Father has fully accepted responsibility for the accident and demonstrated substantial insight into his conduct.
The Sentencing Judge said of the Father that: “I find that the prospect of him reoffending is very low.” I agree.
It is no part of my role to punish further the Father for his responsibility for Y’s death in framing parenting orders for X.
The Father’s mental health
I have considered whether there an unacceptable risk of emotional harm to X of spending time with his Father because of the Father’s mental health. Dr F, consultant psychiatrist, made an independent assessment of the mental health of both parents (Ex CE-2). Dr F opined that the Father “has suffered from post-traumatic and depressive symptoms in the context of the death of his son” (Ex CE-2, [88]). Although he said that the Father had some personality vulnerabilities, Dr F did not diagnose that the Father had a major depressive disorder or post‑traumatic stress disorder. In the alternative, Dr F diagnosed the Father as having an “adjustment disorder with depressed and anxious mood” (Ex CE-2, [88]).
Relevantly, Dr F concluded as to the Father at [93] (Ex CE-2):
I do not see anything in terms of his mental state which is a contradiction to him having contact with the child…
I accept Dr F’s evidence. The Father’s mental health does not present an unacceptable risk of emotional harm to X of him spending time with the Father.
In conclusion as to the first enquiry as to the Re Andrew principle, there is no objectively unacceptable risk for X spending time with the Father because of an unacceptable risk of physical or emotional harm.
(2) Does the Mother as the primary carer have a genuine belief that such a risk exists?
In A & A at [3.29] (approved in Knopf at [240]), the Full Court found that even if objectively there is no unacceptable risk of emotional or physical harm to X from spending time with his Father I must consider whether the Mother — as the primary carer — has a “genuinely held belief” that such a risk exists.
The gravity of the accident and its tragic consequences, makes it straightforward to conclude that the Mother genuinely holds a belief that X would not be safe in the Father’s care. Indeed, the Father did not challenge that the Mother genuinely held this belief that there was a genuine risk. In Keane the Full Court observed that if the asserted belief was “entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt” (Keane, [82]). This is not a case in which the genuineness of her belief is open to doubt because it is “irrational” or “baseless” even though I have found that objectively there is not an unacceptable risk of X spending time with his Father.
The Mother said to Mr E and he recorded in his First Report (Ex CE-4, [31]):
[The Mother] stated that she felt [the Father] to be irresponsible and worried that despite the tragedy of [Y’s] death there to be a strong likelihood of similar irresponsible behaviours that could result in [X’s] safety being compromised with the comment “I will never think it is safe for [X] to spend time with him (the Father) again.”
In her evidence before me, the Mother acknowledged that she would never forgive the Father. Her evidence — given in a striking way and in a way which was plainly genuine — went far beyond a statement that she could not co-parent with the Father. She said that she could not even look at him. The Mother’s high level of anguish about Y’s death and her consequential genuine belief about X’s safety in the Father’s care was palpable.
The Mother has proved that she holds a genuinely held belief that X is not safe in his Father’s care.
The disputed facts as to the mobile phone, speeding and the communication of the fact of Y’s death
The central fact that underpins my conclusion that the Mother’s belief is genuine is the fact of Y’s death in a car accident where the Father was the driver.
It is necessary to say something about the disputed details of the accident.
The parties were in dispute as to whether the Father was using his mobile telephone at the time of the accident. The Mother’s evidence before me was that X had “repeatedly told hospital staff, myself, my family and even [the father] that he was on the phone at the time of the crash.”
The Mother believed that the Father was speeding at the time of the accident. The Mother’s case was that the Father routinely sped when driving near his home where the accident occurred.
The Mother also alleged that the Father did not tell her on the day the accident that Y had died but it was left to X to tell her of Y’s death. The implication was that because the Father had not (himself) told her about the death, that fact indicated he had not truly accepted responsibility for the accident.
The Sentencing Judge found that the allegation that the Father was using his mobile phone or was speeding were not proved beyond reasonable doubt. Contentious facts must be proved before me on the balance of probabilities not beyond reasonable doubt. Sometimes the different burden of proof yields a different result. The Mother has not proved her allegations on the balance of probabilities as to the mobile phone, speeding or that it was left to X to communicate the fact of Y’s death. As I have noted, the best evidence before me as to the circumstances of the accident were the Sentencing Judge’s findings. Although the fact of the accident was critical in the case before me, it was issues as to its aftermath that shape the orders I will make in X’s best interests rather than details which, if proved, may have aggravated the Father’s criminality.
I acknowledge both parents’ inextinguishable anguish about the events of 2022. I also acknowledge each parent’s version of the details of what happened may be important to their healing.
Even though the Mother has not proved on the balance of probabilities, on the Re Andrew analysis, I accept that the Mother genuinely believes that the Father was on his mobile phone, speeding and did not communicate the fact of Y’s death. Each of these beliefs contributes to her overarching genuine belief that it is not safe for X to spend time with his Father.
(3) Has the mother proved that there would be a “significant impact” on her parenting capacity if X were to spend time with the Father?
The third element of the principle in Re Andrew is whether the Mother has proved that her parenting would be “discernibly impaired” (Keane, [73], [81]) or that there would be a “significant impact” (A & A, [3.29]) on her parenting capacity were X to spend time with the Father.
I noted above that the level of impact on the primary caregiver’s ability to parent which engages the Re Andrew principle has been expressed in various ways. It has been expressed as having an effect that the parent will “unable to continue to function effectively”, as having an effect on the custodial parent “which will impair to a significant degree the emotional support … which the custodial parent can render the child” (Keane, [75](c) and (f)) to “discernibly impair the mother’s caregiving capacity” (Keane, [81]) and/or to have a “significant impact on that party’s capacity … so as to impinge on the best interests” of the child (A & A, [3.29]; Knopf, [240]). In Knopf at [291] McGuire J — having considered the totality of the evidence — concluded in that case:
I do not find that the mother has given or adduced cogent evidence to satisfy me that her parenting capacity would be sufficiently impaired, should [the child] spend unsupervised time with the father in the regime, terms and conditions anticipated above.
Relying on Knopf, the Father submitted that in this case the Mother “has not given or adduced cogent evidence to satisfy the court that her parenting capacity would be sufficiently impaired should X spend time with the father” (T457:L38-40). Whether the Mother was able psychologically to cope with X spending time with the Father was a question of fact for me as the trial judge.
The Mother has proved that there would be a significant impact on her parenting capacity if X were to continue to spend time with the Father.
As to the Mother’s psychological capacity, I must assess both the lay and the expert evidence. I found the way that Judge Glass introduced his consideration of the evidence in Gavare & Ulrich [2024] FedCFamC2F 275, at [48] of assistance. Judge Glass introduced his assessment of the evidence by writing that he would consider the mother’s “state of mind, her body, her capacity to function and her capacity to provide for [X’s] needs.”
The lay evidence
The Mother’s evidence – her trial affidavit
As to the Mother’s state of mind, the Mother’s evidence included the following at [52]:
Every time my son is required to see his father, I am reminded of how [Y] died whilst in his father's care. I blame myself for allowing harm to come to my children and for not being able to do anything to prevent [Y's] death. I cannot fall asleep at night without medication and even when asleep I cannot stay asleep because of nightmares about the manner of my son's death.

As to her capacity to function, the Mother’s evidence was that since orders were made for supervised time “her GP has had to increase [her] anti-depressant dosage as [her] symptoms have worsened.” She deposed at [53] that:
I am currently on increased dosage of anti-depressants, anti-anxiety, anti-insomnia and anti-emetic medication. I need that medication to be able to get by and continue with daily activities and tasks.
She deposed that “I have completely lost the joy in my life” ([54]). The Mother, a woman of slight build, reported that she has gained approximately 20 kg in weight since the accident.
In her oral evidence, asked about co-parenting with the Father, she said that she could not even “look at him” (T208:L28-29). The way in which she gave his evidence admitted of no doubt as to the sincerity and depth of her feeling.
The Mother’s Victim Impact Statement
The Mother’s Victim Impact Statement read in the NSW District Court on the Father’s sentencing was in evidence before me (Ex M13). The Mother believed that the sentence was unduly lenient. The Mother’s view notwithstanding, the NSW DPP had communicated to her “that the Crown is not going to proceed with an appeal” (Ex F14). In her Victim Impact Statement, the Mother wrote:
I am only trying so hard because I want to fight for [X]. I want to be a walking shrine for [Y]. I want my baby to be remembered through me and my work.
But sometimes when I drive past a big tree when I’m by myself. I wondered how fast I would need to drive to that tree that to make sure that I would die the most violent and painless death.
The Father’s own recognition of the impact on the Mother
Mr E recorded that the Father said to him of the Mother’s statement in the Victim Impact Statement (Ex CE-4, [36]): “that it was not an idle threat made to control or manipulate the situation but rather a genuine expression of her grief and loss.” That is, there was evidence that the Father himself recognised the impact of the severity of the accident upon the Mother.
The expert evidence
Ms K
Ms K is a psychotherapist who has, since 22 May 2024, been providing ongoing treatment and assistance to the Mother and to X. The financial resources for Ms K’s engagement and the engagement of another person as a support worker became available on the acceptance of the Mother’s claim as to Y’s wrongful death. The “support worker” works with the Mother and X 15 hours weekly. The support worker was not named and did not give evidence although certain notes the support worker provided to Ms K were received in evidence under s. 69ZT. I give the support worker’s notes limited weight under s. 69ZT(2) as they have not been tested by cross-examination.
Ms K sees X at least monthly and, as a result, was able to give direct evidence as to her observations of X and the Mother. Ms K’s first report dated 28 August 2024 (Ex M8) and her updated report dated 26 February 2025 (Ex M9) were adduced into evidence.
On a visit to the Mother’s home Ms K in her First Report had noted limited functionality. Ms K noted (Ex M8):
Upon first entering the family home, and with respect, the house is cluttered, with no sense of order or viable function. There is no clear function, instead of a deep film of broken sadness. Relationships between each family member are functional but fractious and it’s obvious that since the accident each family member struggles with healthy communication, daily function and support of each other.
In her First Report, written over a year after Y’s death, at a time after X had commenced supervised time with his Father, Ms K had noted that the Mother “since the accident she has not cooked a family meal, nor had the ability to play with [X]” (Ex M8, p 12 of 20). Ms K’s First Report constituted cogent evidence of the significant impact on the Mother’s mental health and the resulting impact on X and the risk to him if she did not recover her mental health.
In her updated report made on 26 February 2025 Ms K recorded that things were improving. Ms K expressed the following conclusion as to X:
With support, [X] is progressing well. He is beginning to talk more about his brother and the car accident. He is learning to focus on his schoolwork and learn and participate in risk with safety. However, it has become apparent that [X] is trying to please (and not disappoint) each parent. When I ask him about [the Father], he says very little, and displays dislike. When he is with his Mum, he is overprotective and considers her wellbeing as his responsibility. This confirms confusion, a sense of responsibility, and a mixed sense of loyalty to each of his parents.
In the shadow of the trial, on 7 March 2025 (the trial commenced on 11 March 2025) X’s support worker reported to Ms K that X was having a rougher time than usual perhaps because of the imminence of the trial (Ex M11):
[X] said, “[Y] died a long time ago” and I asked if he was ok. He then said no “it hurts my heart a lot”
Further, in a text message from the support worker to Ms K received on 13 March 2025 — during trial — (Ex M12) the support worker wrote:
-[X] has been having a rougher week than usual
-biting the inside of his cheeks until bleeding
-got chocked [sic] on the playground by year 3 boy (although [X] is keeping quiet on how it happened and the year 3 boy had red on his neck too)
…
-his teacher told me (without a date to it) that [X] said “I hate [Mr Arendse] [the father] he killed my brother” [X] has said the same to me multiple times.
…
-[X] misses his brother
Dr F’s assessment of the Mother
In December 2024, as to the Mother, Dr F, in his “interview synopsis”, noted at [18] (Ex CE‑2):
Her affect was significantly distressed with depression and significant anxiety
Since Y’s death in 2022, Dr F described the Mother as having had a “very significant deterioration in her mental health” ([34]).
Dr F wrote the following at [34]:
…
She has had very pervasively depressed mood, feeling stuck in her grief, including feeling like the incident has just happened. She described insomnia and without medication would have as little as four hours per sleep, variable appetite with increased appetite connected to medication and 20 kilograms of weight gain, low energy, fatigue, suicidal ideation with a lot of fleeting thoughts, but she would not act on it because of her surviving son. She said that if both sons had died, she would not be alive today. She referenced thoughts of driving into a tree in her Victim Impact Statement in court.
Dr F made a formal diagnosis that the Mother was suffering from psychiatric disorders as follows at [87]:
[the Mother] has suffered from post-traumatic stress disorder and major depressive disorder, and persistent complex grief disorder.
Dr F continued that “these conditions are undoubtedly linked, but she meets the DSM-V criteria for each of them” ([87]).
Dr F said that the Mother “is triggered by contact” with the Father (Dr F, [41]).
Dr F opined at [93], [96], [97] that:
93.In my opinion, whilst I understand that there are many factors which the court must weigh up in determining the contact arrangements in this manner, I have no doubt that her mental state would significantly deteriorate were contact with [the Father] to resume, and this would have an impact on her parenting.
96. In my opinion, on the basis of [the Mother’s] mental health, contact with the father should not occur at present.
97. I note the recommendation of [Mr E] for recognition visits, but, in my opinion, from a psychiatric point of view, this should occur only when [the Mothers’] therapist(s) has determined that she has recovered enough to cope with this and determined that such contact would not have a significantly detrimental effect on her mental health. This is far from the case at present.
Dr L
I note, for completeness, that an earlier report of Dr L, consultant psychiatrist, was also in evidence (Ex F17). Dr L assessed the Mother and authored a report dated 29 April 2024. Dr L was not cross-examined. Dr L opined that the Mother was suffering from PTSD and persistent complex bereavement disorder. Dr L noted of the Mother (Ex F17, p 7 of 13):
She has intrusion symptoms, nightmares and flashbacks. She has persistent avoidance and emotional numbing, avoiding close relationships, avoiding seeing photos or talking to people and has not told any work colleagues about her experience. She describes a sense of emotional numbing to her family and son. She has negative alterations in cognition and mood, depressed mood, a sense of hopelessness, loss of interest and anhedonia. She described hyperarousal and increased heightened reactivity with disturbed sleep, concentration impairment, forgetfulness, poor energy and irritability toward her mother and stepfather. Her symptoms have persisted for more than a month and thus fulfilled duration criteria.
As to the Mother’s persistent complex bereavement disorder, Dr L stated that the Mother fulfills the relevant DSM-V criteria, noting that the Mother displayed the following symptoms:
… preoccupation with the circumstances of her son's death, intense sorrow and distress not improving over time, yearning and longing, detachment and isolation, loss of interest in activities and persistent feelings of emptiness with associated impact upon social functioning and relationships.
Dr F noted that his opinion was “in slight variance to that of [Dr L]” (Ex CE-2, [88]) but not as to substantive issues because each of the psychiatrists agreed that the Mother had “very significant anxiety and depressive symptoms”, those symptoms were ongoing and “exacerbated” both by the court proceedings and the prospect of X having contact with the Father (Ex CE-2, [88]).
First Family Report – 18 September 2024
In his First Report (Ex CE-4), Mr E recorded the following as to his meeting with the Mother on 4 September 2024 at [29]:
Soon after the conversation began [the Mother] began to breakdown in tears and remained in this emotionally dishevelled state throughout the entirety of the interview with brief periods of calm before returning to tears.
Mr E also recorded the Mother’s statement that “I will never think it is safe for [X] to spend time with [the Father] again” (Ex CE-4, [31]).
Mr E considered that even if X could tolerate spending time with the Father “the consequences for [X] could be that [the Mother’s] parenting is so compromised that she will no longer be able to care for him and then he would have to live with the parent with whom his relationship is detrimental to his long-term” (Ex CE-4, [87]).
In his First Report, Mr E recommended a “cessation to all spend time” because of the compromise to the Mother’s psychological well-being. The longer extract from Mr E’s First Report at [89] is as follows (Ex CE-4):
Though it is recognised that it will undoubtedly impact on his relationship with [the Father], and his half sibling [D], the importance for [X] and his mother to overcome the grief and loss of [Y] will likely only occur through [the Mother] being afforded the opportunity to heal and move forward in life or through the passage of time. Simultaneously it is these same two scenarios that will likely need to occur before [X] can be afforded the opportunity to be supported by [the Mother] in reconciling, and facilitating, any relationship with [the Father] in a greater capacity. To this end the Court may find it beneficial to protect the role of [the Mother] being the primary carer of [X] and grant her sole parental responsibility and a cessation to all spend time. This will allow [the Mother] the psychological space to care for [X] and provide for his psychological and emotional wellbeing without apprehension that has clearly been demonstrated to be compromised through litigation and the ongoing requirement to facilitate time spent with [the Father]. Given time and space it is hoped that with recognition cards and gifts sent by [the Father] to [X], it may allow the door of opportunity to remain open for a potential future connection to be formed.
In his First Report, in addition to the Father being able to send recognition cards and gifts (see above), Mr E recommended allowing the “door of opportunity to remain open” for re-establishing a relationship between X and his Father by means of “recognition visits… at a supervised contact centre four times a year”(at [91]).
Addendum Family Report – 17 February 2025
Mr E prepared an Addendum Report dated 17 February 2025 (Ex CE-5). He did not see the parents again for the purposes of preparing his Addendum Report. Between the date of his First Report and the Addendum Report, Mr E received and considered Dr F’s psychological evaluation of the Mother. As a result of considering Dr F’s report, Mr E made what he termed a “minor variation” to his recommendations.
Mr E’s recommendation in the Addendum Report (Ex CE-5, [15]) reflected his recommendation in his First Report to the extent that he opined that:
Given the professional insights of multiple clinicians into [the Mother’s] mental health and the impact of the potential ongoing supervised spend time upon her, it remains likely that [X] spending ongoing supervised time with the Father] will continue to have a detrimental effect upon her and stall both her and [X’s] road to recovery.
As to the “minor variation” to his recommendations in his Addendum Report —albeit that if his recommendation were accepted the variation would be of particular significance to the Father and X — at (Ex CE-5, [15]) Mr E opined that:
It is likely that the writer’s previous recommendation of recognition visits may in fact continue to inhibit the long-term mental health stability of [the Mother] and the Court may wish to consider a moratorium on time for a period until such time as [the Mother’s] treating mental health team determine that it would not have a significantly detrimental effect on her mental health.
Mr E said the following at [17] of his Addendum Report:
The Court may find it beneficial to support a moratorium on time between [X] and [the Father] until such time as the impact upon [the Mother] is not significantly detrimental to her mental health and her parenting capacity. Consideration of the parents utilising community based mediation to revisit this issue once [the Mother’s] mental health is stabilised or at the age of 12 years of [X].
In his oral evidence, Mr E also recommended that there not only be a moratorium on recognition visits but there be a moratorium on cards and gifts (T350:L36-37).
In effect, therefore, on Mr E’s recommendation, X would spend no time with the Father and there would be no contact between X and the Father at least for a period of time.
The report of Ms M
Ms M had been the Family Report Writer in the previous proceeding which culminated in the consent orders in September 2022 made by Williams J, before Y’s death.
After Y’s death, by consent and by further joint retainer, the parties again attended upon Ms M. Ms M authored a report dated 7 June 2023 (Ex F21). For the purposes of preparing her report Ms M had four appointments with the Mother and two interviews with the Father. Ms M observed X with both parents. Ms M noted that both parents presented with “symptoms of complicated grief and trauma” (Ex F21, [13], [25]).
In her 7 June 2023 report, Ms M recommended the gradual reintroduction of time between X and his Father. Ms M’s opinion was different from that of Mr E and Dr F. The fact that the Mother did not accept Ms M’s recommendation acted as a catalyst for the Father to commence the litigation as to which I am now providing reasons for judgment. Ms M wrote at [69]:
Overall and despite the catastrophic consequences of his actions, [the father] continues to present with appropriate attitudes about caregiving, particularly in the context of the need to support [X] in his development and welfare. [The Father] presents as attuned to the need for [X] to experience the emotional containment and psychological support that not only he can provide for the child’s psychological and emotional recovery, but also that can be provided by the paternal extended family and community.
Ms M also gave oral evidence. She adhered to the opinion set out in her written report of June 2023. Ms M noted that she had had significant dealings with the family, particularly in previous proceedings. She assessed that from her dealings with the family that the Mother had considerable “psychological capacity” and “psychological resilience” (T332:L14-15). She described the situation in terms of relative risks. In terms of those relative risks, in Ms M’s professional opinion, she assessed that the risk that the Mother’s capacity might deteriorate was (relatively) “less of a risk” than the risk to X of loss of contact with the Father (T337:L20‑26).
…I understand that the professional observation that – that [X] is at risk if time does commence with the father, that he’s – he’s at risk of losing his mother psychologically…her capacity might deteriorate to the extent that she’s just not capable. Given my – my understanding of the history though, as I’ve already explained, your Honour, I would see that as less of a risk than the risk to [X] for not having any contact whatsoever with his father or his paternal extended family.
[Emphasis added]
I note that Ms M’s description of the situation in terms of “relative risks” was not unlike Mr E’s description of relative risks though each reached divergent conclusions as to the importance of the risks. As noted, Mr E had referred to X’s “hierarchy of needs.” As to that hierarchy, in Mr E’s assessment, there was a risk that X spending time with his Father would so compromise the Mother’s parenting that she would no longer be able to care for him and that fact trumped the positive benefit for X of a relationship with his Father and extended paternal family (First Family Report, [87]). Ms M, in her professional opinion, reached the opposite conclusion and gave relatively greater weight to avoiding the risk of severing the relationship between X and the extended paternal family than the deterioration of the Mother’s psychological capacity with the resulting effect on her parenting.
Criticism of the Mother for not having engaged with a psychiatrist
Finally, I note that the Father was critical of the Mother for not having engaged with a psychiatrist, despite a recommendation that she do so. I take the parties as I find them. I do not accept that any criticism was well founded because I accept the Mother’s evidence that she has not engaged with a psychiatrist for reasons including expense and availability. The Mother has suffered a tragic bereavement. She has sought professional assistance to deal with her bereavement. The Mother’s pain at the situation in which she finds herself is palpable. It is more likely than not that the Mother will continue to seek out professional assistance for her own sake and for the sake of X.
What is my conclusion as to the Re Andrew argument?
Although Ms K reported that there has been some recent improvement in the Mother’s household, having traversed the evidence as to her “state of mind, her body, her capacity to function and her capacity to provide for [X’s] needs” (see Gavare, above) the totality of the lay and the expert evidence leads me to conclude that there would be a “significant impact” (A & A, [3.29]) and a risk that the Mother’s parenting would be “discernibly impaired” (Keane, [73], [81]) if X were to continue to spend time with the Father.
The “significant impact” relates both to a deterioration in the Mother’s “day-to-day” parental functioning: a struggle to cook a meal, to play with X and maintain a functional household (all issues Ms K referred to in her evidence). Mr E framed the concern as simply as the mother will not be able to “no longer able to care” for X. Mr E’s characterisation of the Mother at interview as “emotionally dishevelled” was striking. The concern also operates at a higher level. Unless the Mother recovers her mental health, she will be emotionally unavailable to X so as to support him in challenges at school (behavioural or academic), with his peers or to deal with his own trauma as a result of the accident.

I will return to how that “significant impact” ought to be weighed together with the loss to X of a relationship with his Father below.
ISSUE 2 : THE LEGISLATIVE PATHWAY SECTION 60CC(2)(A)–(F)
I turn next to the matters I must consider under s. 60CC(2)(a)–(f).
What orders will promote the safety of X and each person who has the care of X [s 60CC(2)(a)]?
I must consider what arrangements “would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm)” of X and “each person who has the care of the child.”
Does the Mother’s relationship with X promote his safety?
The Father accepts that the Mother “clearly loves” X as do the maternal grandparents who also live in the same household (Ex CE-4, [28]). On the proposal of both parties, the Mother will continue to be X’s primary carer. An order that X lives with his Mother promotes his safety.
Re Andrew and “safety”
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 X 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 X’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 X’s developmental, psychological and emotional needs would be undermined by orders that X spend time with the Father that is an issue that arises under s. 60CC(2)(d).
As to safety, I reiterate, but do not otherwise repeat my analysis above, that, objectively, there is no unacceptable risk of direct physical or emotional harm to X of him spending time with his Father because of the accident, the Father’s driving history or any lack of insight of the Father or failure to accept responsibility as to the accident.
What is the history of the Father’s family violence? [s. 60CC(2A)]
I must consider any history of family violence and any family violence order that applies or has applied to the child or a member of the child’s family.
Before the accident
In March 2017 — on a date before X was born — the Mother deposed that the Father headbutted her. In May and June 2018 — also on dates before X was born — there were photos of the Mother which depicted a bruised arm, injured fingers and an injured lip. The Mother said that the Father had caused these injuries. Under cross-examination, the Father steadfastly denied that he had caused these injuries.
The Mother deposed that in June 2020 the Father “assaulted” her. Victoria Police obtained an Interim Intervention order in the Father’s absence in mid-2020, naming the Mother and the two children as the protected persons. The Father deposed that the 2020 IVO application was finalised upon his entering into a 6 month undertaking with the Court. The Father was also charged with unlawful assault. This charge was ultimately withdrawn (Ex. ICL-1, p.2).
In Pickford & Pickford [2024] FedCFamC1A 249 Austin and Williams JJ wrote at [87] that judges need not make findings to resolve contested facts unless the findings “authentically influence the outcome” (citing M v M (1988) 166 CLR 69 at 76–77; Eastley & Eastley (2022) FLC 94-094 at [18] and [31]).
Each of these allegations of family violence is apt to be described as “historical” because of the passage of time.
On a date after each of these disputed events of violence, the court made final consent orders in September 2022 (Williams J) that it was in Y and X’s best interests to live with the Mother and spend time on alternate weekends and half-holiday time with the Father. I infer from the final orders made in September 2022 that even if the alleged episodes of historical family violence occurred as of September 2022 the court had then concluded — and the fact that the orders were made by consent discloses that the Mother agreed — that there was no unacceptable risk of X spending future time with the Father because of historical allegations of family violence.
Allegations of family violence are inherently serious but on the facts of this case, any residual significance of these events is driven to the periphery by the subsequent accident.
There is nothing about the historical family violence allegations — even if proved — which would cause me to conclude on a risk assessment that there was an unacceptable risk of X spending time with his Father.
I decline to make findings as to these disputed events of family violence because any findings will not “authentically influence the outcome” of the parenting orders I will make.
Has the Father engaged in family violence since the 2022 accident?
The Mother submitted that since Y’s death, the Father had engaged in a pattern of behaviour that the Mother “becomes distressed about and talks about as being relentless” (T78: L33-35). This submission was based on the cumulative effect of several events.
I infer that the Mother contended that the Father’s conduct constituted coercive or controlling behaviour. Coercive or controlling behaviour is family violence for the purposes of s. 60CC(2A) of the Act which must be considered under s. 60CC(2)(a). Alternatively, I understood the Mother to contend that the behaviour reflected adversely on the Father’s parenting capacity. A denial of family violence in circumstances in which it has been proved may also reflect upon a parent’s attitudes to the responsibilities and duties of parenthood and the capacity to provide for the emotional needs of children and therefore be relevant as to the capacity of a parent to provide for the child’s developmental, psychological, and emotional needs under s. 60CC(2)(d) (see, i.e., JG and BG (1994) FLC 92-515, 81-325).
The issues the Mother raised include the following (which I have ordered more or less chronologically).
There was a dispute about funeral arrangements and Y’s body. In late 2022, the Father’s lawyers sent a letter to the Mother that “the coroner required both parents to come to an agreement before they released [Y’s] body” and put certain proposals (Ex M2). The Mother submitted that the sending of a lawyer’s letter some days after Y’s death was highly insensitive.
The Mother criticised the Father because he had withheld permission in the first part of 2023 for the Mother to travel with X to Country U to meet the extended maternal family. The Father perceived the proposed travel to be unfair in circumstances in which X was spending no time with him and as a result no time with his paternal family.
The Mother appeared to criticise the Father because he had told X during supervised time that he and his partner, Ms N, were shortly expecting, or had recently had, a new baby, D, X’s half‑brother. D was born in 2024.
There is an unresolved child support dispute. The Mother has brought an application — yet to be decided — for merits review of a CSA determination in the Administrative Reviews Tribunal (ART). There was disputed evidence as to whether the Father used intemperate language in speaking to the Mother at the ART about the accident by saying: “For Fuck’s sake we’re not going to go through this again.” The Father denies that he said those words. Because of the Father’s alleged statements, the Mother made a subsequent IVO application, which is pending.
In Ransone v Ransone(No. 2) [2024] FedCFamC2F 1161 Judge Beckhouse at [4] said the use of the “vernacular” “poor parental communication”… to characterise the parental relationship” was “unfortunate” because (in that case) its “use masks or minimises a pattern of behaviour that the Father has engaged in to control the decisions of the mother and the lives of both the mother and the six year old child”. Her Honour was concerned that a descriptor such as “poor parental communication” may inappropriately suggest “a degree of mutuality” (Ransone, [4]). The phrase “high level of parental conflict” (or something like it) with its suggestion of mutuality also appears in the authorities. The inappropriate affixing a label to conduct which suggests mutuality when it is one parent’s conduct that is at issue may mask coercive or controlling behaviour where one party seeks to suborn the will of the other.
Doubtless each case will turn upon its own facts. In this case, it has not been proved — by reference to those events after December 2022 set out above individually or cumulatively — that the Father has engaged in coercive or controlling behaviour regardless of the Mother’s continuing distress. It has not been proved that the Father’s conduct since 22 December 2022 proves that he lacks insight which might be relevant to his parenting capacity under s. 60CC(2)(d).
The way in which the Mother perceives the Father’s conduct since the accident in December 2022 is a manifestation of her profound grief following Y’s death. Whatever the Father does, she finds the Father’s actions distressing, because she views those actions through the prism of his responsibility for the accident. In Olivier & Olivier [2020] FamCA 639 Gill said at [51]‑[52]:
It should be accepted that the definition of family violence goes well beyond physical assaults to encompass behaviours that, absent context may appear innocuous, but in context may be examples of coercion or control. However, the mere assertion that the conduct has the quality of being coercive or controlling does not make it so. It is necessary that the evidence, particularly where the behaviour is ambiguous and may bear an innocuous explanation, be sufficient to allow a characterisation of coercion or control.
By way of example, a pattern of disagreements and criticism can form controlling or coercive behaviour. Whether they do or not must be derived from consideration of their form, intensity, context and the impact upon a person. The mere fact of disagreement or criticism does not automatically equate to family violence
[Emphasis added]
As to some of the incidents I have traversed above one can readily understand both parental perspectives: the Mother’s anguish on receiving a lawyer’s letter some days after Y’s death and the Father’s (competing) perspective that certain arrangements even in the most difficult circumstances nonetheless had to be made. I can understand the perspective of the Father in wishing to communicate the excitement of a new baby to X and the Mother’s heartbreak that the news only reemphasised the tragedy of her loss.
As in Olivier, these “disagreements and criticism” on both sides do not amount to proof of coercive or controlling behaviour by the Father.
What are X’s views [s 60CC(2)(b)]?
Mr E deployed the word “ambivalent” in describing X’s attitude to his Father. Mr E wrote (Ex CE-4, [88]) that:
[X’s] own opinion was somewhat contradictory in that he has stated that he did enjoy the time with [the Father] but did not want [the Mother] to know this as he was fearful of how she may react indicating an enmeshment of his emotional wellbeing being tied to hers.
Mr E noted that X called the Father by his first name— thereby distancing him — as a marker of his ambivalence. Ms K noted that, in spending time with his Father, X experiences the conflict of being (on the one hand) a 6-year-old boy who loves his Father and (on the other hand) X also has directly and repeatedly said to his Father, whom “you killed my brother”. Ms K’s evidence was also that X is highly attuned to his Mother, who has stated that she will never forgive the Father as to the accident in 2022.
Although I note this ambivalence, because he is only 6 years old X is too young for me to place any material weight on his views.
What are X’s developmental, psychological, emotional and cultural needs [s. 60CC(2)(c)]?
X has suffered direct trauma because of the accident, not merely vicarious trauma via his parents. I accept Dr F’s opinion (Ex CE-2, [94]) that X’s “repeat references to his father killing his brother reveals significant ongoing trauma.”
Ms K’s evidence (which I also accept) corroborated Dr F’s opinion that X suffers direct trauma as a result of the accident. Ms K’s evidence was that X is unable to sleep on his own and he suffers nightmares and night terrors. He can become “severely anxious” and withdraw or act with “impulsivity.” X can become “very angry towards family members, school peers, teachers and his support worker.” He is not “great in listening nor following instructions.” X has “behavioural issues at school.” His teacher has reported “academic and behavioural regression.” X re-enacts car accidents in play and his play often involves fire, rescue and emergency services (Ex M8, p 8 of 20).
As a result, X has needs greater than many of his peers, particularly psychological needs, as a result of Y’s death and its aftermath.
What is the capacity of the parents to provide for X’s needs [S. 60CC(2)(d)]?
The Mother’s capacity
The evidence was that X’s relationship with his Mother was loving and appropriate. Ms M noted at [46] (Ex F21) that X “responded positively to [the Mother], who was quietly watchful, kind, cooperative and responsive, following [X’s] planned activities as well as guarding him at times”. Because the Mother lives with her own mother and her stepfather and the evidence was that they are significant people to X, he will also have a benefit of a relationship with the maternal grandparents.
As both parties propose that the Mother will continue as X’s primary caregiver, and that the parties’ principal dispute as to X’s spend time arrangements with the Father, it is the Father’s capacity that falls for primary consideration.
What is the Father’s capacity?
Dr F
Dr F wrote of the Father that “I do not see anything in terms of his mental state which is a contradiction to him having contact with” X (Ex CE-2, [93]). The issue, in Dr F’s professional opinion, as to mental health issues was not the Father’s capacity but the Mother’s capacity. Dr F wrote that that even though the Father’s mental capacity was not a contra-indicator as to time “such contact would be too detrimental to [the Mother’s] mental state.”
Mr E
Mr E was direct in his evidence that the Father was not a “bad person” (T345:L33). Mr E wrote at [83] of his First Report (CE-4):
…it is the writer’s opinion that there was no ill intent on the behalf of [the Father] and the accident was nothing more than that being an accident.
Mr E did not hold the professional opinion that there should be no time for X with the Father because of any lack of capacity.
Ms M
Ms M observed that the Father “demonstrated appropriate and sensitive parenting” (Ex F21, [62]). Ms M opined that X “did not experience his father as dangerous or unsafe; instead, he presented as delighted, organised and focussed” (Ex F21, [70]). Indeed, on the basis of Ms M’s report that X spending time with the Father (and the paternal family) would assist in his recovery (T332:L21-33), the Father submitted that spending time with the Father would help X heal.
The observational reports
In December 2023, under interim orders, X recommenced spending time with the Father each alternate weekend for up to three hours under professional supervision. There was a hiatus in these arrangements between approximately 7 July 2024 and 6 October 2024 because of the availability of professional supervisors. As at the date of trial, X had, nonetheless, spent supervised time with his Father on alternate weekends for more than 12 months.
Four professional supervisor’s reports were in evidence annexing the supervisor’s notes from each session (Ex F3, Ex F4, Ex CE-3, Ex F22). On balance, the observers recorded that X had a positive experience of supervised time with his Father.
From 17 December 2023 to 7 July 2024, X spent supervised time with the Father at O Centre, every alternate Sunday. Ms P, Senior Social Worker, provided a report of her observations of these sessions. She was not cross-examined. In the earlier sessions, X was observed to be comfortable around the Father and they interacted by playing, hugging and hi-fiving. X initiated several difficult conversations with the Father, including by asking “Why did you kill my brother?” and telling his Father, “my mum is never going to forgive you.” The Father was able to provide appropriate responses during these conversations. Ms P observed X continuing to interact comfortably with the Father after these conversations.
Ms Q, Director and Manager of R Centre, made three affidavits annexing three observational reports of professional supervisor, Ms S (Ex. F4, Ex. CE-3 and Ex. F22). Ms Q was not cross‑examined. Ms S was not called to give evidence. In the earlier sessions, commencing in October 2024, X was observed to be reserved around the Father by not replying to questions or engaging in activities. The supervisor noted that X said that his Father is a “bad person.” In later visits, X was observed to be more engaged. Ms S observed that X was happy to be around the Father, including laughing with him, hugging him, and appeared visibly to be relaxed and happy in the Father’s company. In the seventh session, on 5 January 2025, the Father showed X photos of different family members, and X said that he would like to meet D, his half-brother.
At the end of the evidence (14 March 2025), I dismissed the Mother’s oral application to suspend time. A further supervision visit occurred on (Sunday) 16 March 2025 after the close of the evidence and before final addresses, in which X “showed no resistance to starting the visit” but “did not hug his father upon arrival or departure”.
A difficulty in addressing X’s particular needs
Mr E identified one difficulty relevant to the Father’s capacity to provide for X’s needs was that there had been a “lack of consideration of the points made within [Ms K’s] report dated 9 September 2024” (Ex CE-4, [83]). As noted above, Ms K had identified that X has developmental challenges including that is unable to sleep on his own, nightmares, impulsivity, being quick to anger with family members, school peers and teachers, that he is not great in listening and following instructions and that X has behavioural issues at school (Ex M8). I accept Mr E’s evidence that this was a difficulty of increasing X’s time with the Father.
The Father, had, however, proactively via his lawyers taken steps to contact Ms K to seek “therapeutic support for [the Father] to help rebuild his relationship with [X].” The Father did not lack insight that X had an array of challenges in terms of his own needs and an array of challenges in rebuilding his relationship with his Father. To his credit, the father had worked positively in professional supervision through difficult issues in communication with X in the aftermath of the accident.
With reference to the evidence set out above, the Father has the capacity to provide for X’s developmental, psychological, and emotional needs consistent with the orders he proposes.
Is there a benefit to X of being able to have a relationship with his Father, his brother (D) and the paternal grandparents? [s. 60CC(2)(e)]
Re Andrew: the benefit of a relationship where it is safe to do so
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.
X’s relationship with the Mother
Because the parties agree that X should live with the Mother he will have the benefit of a relationship with her. I repeat that X’s relationship with his Mother was loving and appropriate.
I note that only on the Father’s proposal (not the Mother’s) will X have the benefit of a relationship with the Father and, therefore, both of his parents. Only the Father’s proposal permits X to have a relationship with his paternal grandparents and significantly with his baby brother, D.
Permission

The Mother was cross-examined on the basis that she has not given X “permission” to develop a relationship with his Father (T212:L29-43).
Father’s Counsel:        Does [X] not need your permission to allow him to have a relationship with his father?
The Mother:               If it causes me harm, then he shouldn’t be allowed to… because I look after him.
Father’s Counsel:        And if the court finds that it doesn’t cause you harm, then you would agree with me, would you not, that [X] needs your permission to have a relationship with his father, correct?
…
The Mother:               I follow the court rules.
The Mother’s genuine view that X is not safe with the Father underpins her denial of “permission” for X to develop a relationship with his Father. I do not find that she is engaged in any intentional attempt to undermine X’s relationship with his Father. Ms K’s evidence was that the Father’s lawyers — between the dates of Ms K’s two reports (28 August 2024 and 25 February 2025) (Ex M8 and Ex M9) — had contacted her “seeking therapeutic support for [the Father] to help rebuild his relationship with [X]” (Ex M9, p 8 of 15). The Mother did not shut down the possibility. Ms K said:
I discussed the idea with [the Mother], with mind of the possibility of further contact between [the Father] and [X]. [The Mother] and I could see the benefits of skilling both [X] and [the Father] when they are together. I suggested that we should wait for the outcome of final court proceedings.
[Emphasis added]
Relevant principles
The court is “pro-contact” because of the benefit to a child of contact with both parents. In Summerby v Cadogen [2011] FamCAFC 205 at [95] the Full Court said “the termination of a child’s relationship with one of [his] parents is a course of last resort (cited in Bielen at [53]). In Bielen at [47] the Full Court had observed (citing Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222, [55] and [88]) that the outcome of severing a child’s relationship with the parent had the potential to be “profoundly damaging for [the child’s] future development.” In Bielen, at [54], the Court continued that: “careful consideration is required on the part of a trial judge before reaching a conclusion of no time and no communication.”
The Mother as the parent asserting that X should spend no time with the Father should be in a position to prove “by adducing evidence of sufficient weight” the basis of their contention (Keane, [73]).
Child protection
Relevant child protection agencies in Victoria and New South Wales have made no recommendation as to whether it is in X’s best interests to spend time with the Father. After the accident, in early 2023, the DFFH in Victoria confirmed that its investigation and assessment was ongoing and it had not made any recommendation at that point in time (Ex F15). Also, soon after the accident, in early 2023 in a letter addressed to the Father, the NSW Department of Communities & Justice confirmed that its own investigation and assessment was ongoing. It had “not made a decision nor taken any action” to prohibit X spending time with the Father (Ex F16).
Ms M
As noted, Ms M opined at [87] that X’s “development and welfare will be facilitated by reconnecting with his father… and with the paternal extended family”. Also, as I have noted, in terms of relative risks, Ms M opined that if I order that X spends time with his Father the risk that the Mother’s psychological health might deteriorate with a discernible impact on her parenting was less of a risk than X’s loss of a relationship with his Father. I can (and do) accept that if I make orders for no time and no communication between X and his Father, X’s loss as a result of the accident will be compounded: he will have lost his brother and lost a relationship with his Father.
Relationship with D
The Father and Ms N have a son, D, born in 2024, who is about 9 months old. It is to be hoped that sibling relationships are lifelong relationships (see, i.e., Cottey & Backe (No. 2) [2020] FamCAFC 206, [77]). The support of X’s relationship with D is a factor in favour of an order that X spends time with his Father.
Mr E considered the estrangement between X and D consequent on a no time order but considered the risks to the Mother and X’s own recovery “outweigh[ed] the possible estrangement of the two brothers” (Ex CE-5, [16]).
What is my conclusion as to the benefit to X having a relationship with the Father?
Mr E opined, and I accept, that the Father was not a “bad person” (T345:L33). Mr E described him as an attentive Father. Mr E opined in his First Report that “time spent with the wider paternal family would likely be a positive for [X]” (Ex CE-4, [83]). Doubtless, the Father suffered a terrible loss in 2022. Ms M’s opinion was that the Father was an attentive parent and that time with his Father may help X’s recovery from his own trauma. I repeat that Dr F accepted that there was nothing in the Father’s mental state that was a contradiction to X having time with him (Ex CE-2, [93]).
The Father has accepted that he bears responsibility for the accident. It is no part of my role to further punish the Father for the accident.
By reference to the observational reports and other evidence, X would benefit from a relationship with his Father.
Is anything else relevant to X’s particular circumstances? [s. 60CC(2)(f)]
The parents live in two different states: NSW and Victoria
There is a long drive between the Mother’s home in metropolitan Melbourne and the Father’s home in Region B, some distance away.
Nonetheless, at the date of September 2022 consent orders, when X’s parents lived then where they live now, the travel distance between the parents’ homes was not then an insuperable obstacle to X spending time with the Father. Albeit that the father lives close to the accident site, I do not believe that fact alone is now an insuperable object to X spending time with him.
WHAT ARE MY CONCLUSIONS AS TO ORDERS IN X’S BEST INTERESTS?
In conclusion, the significant issues that frame the orders to be made include the following.
First, there is no unacceptable risk of direct physical harm or emotional harm to X from spending time with his Father under s. 60CC(2)(a).
Second, with reference to the principles drawn from Re Andrew and subsequent cases, although there is no direct unacceptable risk of X spending time with his Father, the Mother genuinely perceives there to be a risk. Because of the tragedy of Y’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 X 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 X 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 X and his Father.
Third, the benefit to X of a relationship with his Father and his paternal family, including D, points in the opposite direction of an order for X spending gradually increasing time with the Father.
Best interests are values not facts
In Kellerman & Kellerman [2024] FedCFamC1A 126, [22] a Full Court noted at [22] that “best interests are values, not facts”. The Full Court approved an earlier decision in G v G [1985] FLR 894 at 897–898 where it was pointed out:
All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
A hierarchy of needs
I have accepted the evidence of Dr F and Mr E that X spending time with the Father is likely to cause to the Mother such psychological degradation that her parenting capacity will be impaired with a deleterious effect upon X.
I have accepted Mr E’s evidence as to a “hierarchy of needs for [X]” (CE-4, [87]). In the hierarchy, Mr E’s expert opinion was that the need to protect the Mother as the primary carer from the risk of psychological degradation with the resulting effect on her parenting outweighed the loss to X of a relationship with his Father. Similarly, Dr F’s recommendations were underpinned by his assessment that the matter to be given the greatest weight was the need to protect the Mother’s mental state.
I am not bound to accept expert evidence (U v U (2002) 211 CLR 238 at 261; Albert & Plowman [2020] FamCAFC 23 at [19]–[22]). Expert opinion evidence is, nonetheless, liable to be influential, but not if it is discounted for valid reasons (Cole & Rudzik [2024] FedCFamC1A 103, [34]). The expert evidence of Dr F and Mr E has proved influential.
Dr F’s evidence was that the Mother has significant PTSD (and interlinked psychiatric conditions). The “persistent complex grief disorder” has meant that she has not been able to move through her grief about Y’s death, despite the passage of more than two years. The resumption of X spending time with the Father has aggravated her symptoms. Each time X spends time with his Father under the current interim fortnightly arrangements her PTSD is triggered. Dr F referred to contact between the Father and X as a “very significant trigger” for the Mother (T290:L32-33). Dr F said that the adverse impact upon her of repeating time is “cumulative” (T295:L42-43). Dr F’s recommendation is for all time and contact to cease. Dr F’s opinion was strongly expressed – he said that he made his recommendations not “lightly” and made recommendations of this kind “rarely.” I have set out a longer passage from Dr F’s evidence which encapsulated his opinion and recommendations below. I accept Dr F’s evidence.
A moratorium on time
In Dr F’s opinion there needs to be a moratorium on X’s time and contact with the Father. The purpose of the moratorium was to try to meet three conditions (1) for the Mother to reduce her symptoms; (2) to access therapy and (3) to improve her functioning First, a moratorium on time will (he opined) reduce the severity of the Mother’s symptoms of psychiatric illness. Second, once her symptoms reduced, she can engage in therapy to help her move through her bereavement. The third condition is that a moratorium on time will enable her to stabilise her functioning including as to her parenting.
Dr F was reticent to fix a timeframe on when these conditions might be achieved which in turn might underpin a change of circumstances so that a resumption of X’s time with his Father could be achieved in circumstances in which the mother’s mental health and parenting is not discernibly impaired. Dr F said (T291:L34-45):
I don’t – I’m not comfortable to put a clear time frame on it, because I think it’s very difficult to predict… But I think it would be sort of, if you’re talking about sort of treatment stabilisation and further therapy, you’re talking, sort of, six to 12 months, really, as a – I mean, I don’t want to put a specific time frame, but if you want a ballpark, I think you would need to give it adequate opportunity for the symptoms to be improved. Most therapies are – you’re talking about a longer time frame, six to 12 months, some therapies go on for longer than that, depending on which type of therapy you’re undertaking. So, I would say as a broad recommendation, you would need at least six to 12 months.
[Emphasis added]
The Father emphasised Ms K’s updated report that the Mother parenting was progressing. Any progress did not alleviate Dr F’s concerns. He opined the Mother was able to “compartmentalise in relation to the way she interacts with the child” (T315:L19-20). He said “she… holds things together when – when necessary, and that doesn’t necessarily mean that she’s okay (T315:L26-27). Dr F’s evidence about the Mother compartmentalising fitted within the framework of other evidence that although she was able to hold down full-time employment, the Mother often found herself crying in the car park after work (T179:L29-30).
As to the level of significant impact upon the mother’s parenting, and the grade of Dr F’s concern, if X spends time with the Father, Dr F said (T295:L32-47–T296:L1-9):
Counsel for the ICL : And I will ask you specifically in relation to the father’s proposal. Is there risk of that type with a proposal that has been urged upon the court that would see ongoing supervised time of a limited period but for 12 months followed by the graduated increase? What is the risk of that worst case scenario being triggered and occurring where the mother’s ability to provide that care to [X] could be compromised?
…
[Dr F]: Yes. So, I think it’s – it’s quite difficult to be black and white about it. I think – I have no doubt that a regime of that nature would have a significantly deleterious effect on her mental health. In terms of how serious that is and how that influences her capacity to care for her child is quite difficult to predict, but that would be my concern. And I think the way that – the way that trauma works, it – it is a cumulative thing. And so, as contact progresses over time, I think it can have a cumulative effect on her, which potentially could make her mental state worse over time.
…
I have very serious concerns that – that it will affect her ability to parent the children. And – and I don’t make – I don’t make recommendations like this lightly. In fact, I rarely make these sorts of recommendations to this – to this extent, because that’s how concerned I am about her mental health. And so, I think that it’s about the opportunity to allow her mental health to improve and have an opportunity to have further treatment. And I think that a regime of supervising – supervised contact from this point will not allow her any opportunity to recover and would also have a triggering factor, so whatever you do in terms of changes to her treatment, it’s unlikely that they’re going to have a significant positive effect, because you’ve got that stressor of that ongoing contact that’s there.
[Emphasis added]
Mr E’s opinion was broadly supportive of Dr F’s opinion. Mr E 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 [X’s] road to recovery” (Ex CE-5, [15]). I repeat that Mr E recommended a moratorium on time and on contact. Dr F’s opinion caused Mr E to withdraw his recommendation for identity contact four times annually. In his Addendum Report, Mr E wrote (Ex CE-5, [15]):
It is likely that the writer’s previous recommendation of recognition visits may in fact continue to inhibit the long-term mental health stability of [the Mother] and the Court may wish to consider a moratorium on time for a period until such time as [the Mother’s] treating mental health team determine that it would not have a significantly detrimental effect on her mental health.
What about Ms M’s different opinion?
Ms M had a different view. Ms M’s opinion — in her expert report dated 30 May 2023 to which she adhered in her oral evidence — was that X’s time with the Father ought gradually to be reintroduced with the aim of time returning to alternate weekend time and half-holiday time in line with the September 2022 orders.
I prefer the opinion of Dr F and Mr E to that of Ms M for the following (inter-related) reasons.
First, Ms M’s recommendations in her report were caveated “unless there is further information available that might indicate otherwise” (Ex F21, [94]). Between May 2023 (the date of Ms M’s written evidence) and the March 2025 trial further information became available which “indicate[s] otherwise”: notably, (1) the persistence of the Mother’s severe symptoms for a period of nearly 2 years between when Ms M last saw the Mother and the trial; (2) the fact that X’s resumption of time with the Father exacerbated the Mother’s symptoms; and (3) the fact that an independent psychiatrist had formally diagnosed the Mother as suffering from PTSD (and inter-linked conditions) after Ms M met with the family and wrote her report.
Second, Ms M expressed her opinion as to the mother’s “psychological capacity” and “psychological resilience” in the absence of knowledge of the diagnosis of the Mother’s psychiatric disorders and their persistence for years, not months. Ms M acknowledged the diagnosis of such disorders was outside the scope of her expertise (T330:L23-26). Significantly, as Dr F explained, a feature of the Mother’s bereavement disorder is its persistence: the Mother has not been able to move through the stages of grief for more than two years since Y’s death. It might have been hoped that the Mother’s symptoms would have reduced, not worsened, as time passed after Y’s death.
Third, the up-to-date nature of the expert opinions of Dr F and Mr E weigh in favour of preferring their opinions to the opinion of Ms M. Ms M last met with the Mother, the Father and X in May 2023. As of May 2023, X was spending no time with the Father. Dr F and Mr E saw the family much more recently. I caveat that observation with an acknowledgement that Dr F made no assessment of X.
On balance, I prefer Dr F’s assessment of the Mother’s current psychological state and Mr E’s expert opinion to that of Ms M because their opinions are more recent, they are anchored in a formal diagnosis of the Mother’s condition and they made their professional assessments after X’s time with the Father had resumed so that they could make assessments of the Mother’s mental health in that context in a way Ms M could not.
If time is supervised, does that mitigate the risk to X of a significant impact on the Mother’s parenting?
Before fixing on any orders that X spend no time and have no contact with the Father, I must consider whether the risk to X 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 X of the benefit (at present) of a relationship with his Father, his brother D and the broader paternal family.
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.
The difficulty is that X’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.
Accepting that an order for no time and no contact is a last resort, I have decided that it is nonetheless in X’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 X having a relationship with his Father and even if that time for X with the Father which may otherwise be of benefit to him.
ISSUE 3: WHAT ORDERS SHOULD BE MADE?
A moratorium on time and contact
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]).

Mr E said while it was not possible to “crystal ball” the future, he recommended that the matter might be revisited when X turned twelve years of age (Ex CE-5, [17]). Because I am making final orders there is no automatic mechanism to revisit this matter in 6 years (when X 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 X’s best interests to make orders preventing revisiting the matter until X is 12 years old (and I am not persuaded that it is in X’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 X will grow older such that his views assume a greater significance or because of the passage of time.
Although Dr F 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. Mr E’s evidence (which I accept) was that the moratorium ought to extend to time and to contact.
In framing final orders, it is in X’s best interests to keep open the “door of opportunity” (Mr E’s phase) for X to re-establish a relationship with his Father. I will order that the Mother four times annually provide photographs of X 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 X to re-establish a future relationship with his Father, if the Mother’s mental health permits, will be at least fractionally open.
Orders
Order 1 will give effect to the agreed position that sole decision-making responsibility as to all decisions about major long-term issues is to be solely allocated to the Mother.
Order 2 will give effect to the agreed position that X live with the Mother.
Order 3 will be that — unless agreed in writing — X spends no time with the Father.
Order 4 will be that — subject to some limited exceptions set out in orders 5–13 —X will have no contact with the Father.
Order 5 provides the Father is entitled to receive copies of X’s school reports. The Mother proposed this order.
Orders 6 and 7 are that the Mother will keep the Father informed of X’s address and any serious medical issue.
Orders 9 provides for the Mother to provide photographs of X to his Father four times a year. Orders 11–13 provide for the Father to communicate with X by way of correspondence after a 12 month moratorium. These orders are in X’s best interests so as to keep the door of opportunity open for X to re-establish a relationship with his father if there is a significant change of circumstances. In my assessment, the moratorium on time and the restricted contact ought sufficiently to protect the Mother’s mental health.
Orders 14–17 provide for the orders and reasons to be provided to professionals in X’s best interests.
Order 19 is that the ICL should meet with X to explain these orders.
The other orders require no elaboration.
Other matters
I anticipate that the Father may be devastated by the orders I will make and that the “door of opportunity” will appear closed in circumstances of orders for no time and contact for a period of 12 months.
Finally, therefore, I wish to record in these reasons that, on my assessment, X’s Mother loves him and it is her mental health – not any intentional unwillingness – that means she cannot presently support X having a relationship with his Father. I also wish to record in these reasons that, on my assessment, X’s Father loves him and that X 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 X’s primary caregiver to recover her mental health and concluded that X spending any time with his Father is likely to have a significant adverse impact on her mental health, her parenting and, therefore, on X. But for the Mother’s precarious mental health, it would be in X’s interests to have a relationship with his Father.
It is for those reasons that I have fixed on the orders that I will make.

I certify that the preceding two hundred and twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.
Associate:
Dated: 1 May 2025

File number:	MLC 9802 of 2020
Judgment of:	JUDGE CHAMPION
Date of judgment:	1 May 2025
Catchwords:	FAMILY LAW – Parenting – Where the issue for decision was parenting orders for a 6 year old child– Where in 2022 the child’s brother who was then 6 years old was killed in a car accident in which the Father was the driver – Where the Father was sentenced to over one year imprisonment to be served in the community following a plea of guilty to criminal charges resulting from the car accident FAMILY LAW – Re Andrew – Where the Mother suffers from PTSD and linked disorders as a result of the child’s death – Whether there was an unacceptable risk of physical or emotional harm to the child if he spent time with the Father – Whether the child spending any time with the Father would cause the Mother to suffer psychological degradation so as to impair her parenting capacity and deleteriously affect the child – Whether severing the child’s relationship with the Father had the potential to damage the child’s future development FAMILY LAW – How competing considerations should be weighed – Held no unacceptable risk of direct physical or emotional harm to the child of him spending time with the Father – Held nonetheless the risk of a significant impact on the Mother’s parenting and therefore the child resulted in an order for no time being in the child’s best interests – Where the discernible impact on the Mother’s parenting could not be mitigated by the child’s time with the Father being supervised. FAMILY LAW – Orders made for the Father to be able to correspond by gifts and cards after a moratorium of 12 months so as to provide an opportunity of the child re‑establishing a relationship with the Father
Legislation:	Evidence Act 1995 (Cth) ss. 91, 140 Family Law Act 1975 (Cth) ss. 60CA, 60CC, 65DAAA, 69ZT, 69ZX
Cases cited:	A & A (1998) 22 Fam LR 756; (1998) FLC 92-800 Albert & Plowman [2020] FamCAFC 23 Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 Bielen & Kozma [2022] FedCFamC1A 221 Blinko & Blinko [2015] FamCAFC 146 Bruce & Bruce [2023] FedCFamC1F 936 Cole & Rudzik [2024] FedCFamC1A 103 Cottey & Backe (No. 2) [2020] FamCAFC 206 Dajani & Dajani [2025] FedCFamC1A 28 Darmadi & Binjori (2023) FLC 94-136; [2023] FedCFamC1A 29 Donaghey & Donaghey [2011] FamCA 13 Eastley & Eastley (2022) FLC 94-094 Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 Franklyn & Franklyn [2021] FamCAFC 112 G v G [1985] FLR 894 at 897–898 Gavare & Ulrich [2024] FedCFamC2F 275 Isles v Nelissen [2022] FedCFamC1A 97 JG and BG (1994) FLC 92-515 Keane & Keane [2021] FamCAFC 1 Kellerman & Kellerman [2024] FedCFamC1A 126 Knopf & Knopf [2024] FedCFamC1F 359 Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200 M v M (1988) 166 CLR 69 at 76–77 Olivier & Olivier [2020] FamCA 639 Pickford & Pickford [2024] FedCFamC1A 249 Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 Ransone v Ransone(No. 2) [2024] FedCFamC2F 1161 Re Andrew (1996) FLC 92-692 Summerby v Cadogen [2011] FamCAFC 205 U v U (2002) 211 CLR 238; [2002] HCA 36
Division:	Division 2 Family Law
Number of paragraphs:	224
Date of last submissions:	20 March 2025
Date of hearing:	11–14 and 20 March 2025
Place:	Melbourne
Counsel for the Applicant:	Ms Taylor
Solicitor for the Applicant:	Perry Weston Lawyers
Counsel for the Respondent:	Ms Stavrakakis
Solicitor for the Respondent:	McKean Park Lawyers
Counsel for the Independent Children's Lawyer:	Mr Laidlaw
Solicitor for the Independent Children's Lawyer:	Patford-Smith Legal Services

MLC 9802 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ARENDSE Applicant
AND:	MS PILKVIST Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	1 MAY 2025