AMS v AIF

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raleigh & Pauley has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an appeal, by way of a Further Amended Notice of Appeal, against final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 9 May 2025. The primary judge ordered that the parties' two children, born in 2012 and 2015, live with the father, who was to have sole responsibility for making decisions about all major long-term issues. The orders provided for the children to spend each alternate weekend during the school term with the mother and half of school holidays.
2. An injunction was made pursuant to s 68B of the Family Law Act 1975 (Cth), restraining the mother from bringing the children, or permitting the children to be brought, into contact with Mr KK. The mother was also enjoined from denigrating the father or the father's parenting choices to the children, or in their presence or within their hearing.
3. The father has appealed the orders providing for the children to spend time with the mother.
4. Pursuant to a Further Amended Notice of Cross Appeal, the mother has appealed against the entirety of the orders.
5. The Independent Children's Lawyer supported aspects of the father's appeal.
6. The main issue on the appeal was whether or not the mother posed a risk of harm to the children due to her relentless denigration and criticism of the father and his parenting decisions in front of and to the children.
7. Relevantly, her Honour found:
   1. I find that the children are at risk of emotional and psychological harm in the mother's care, because the mother continues to subject and expose the children to her denigration of the father and his parenting choices as well as to her over valued ideas about health and nutrition. The harms include a risk that the children might become hypervigilant about their diet and their health or may adopt beliefs about health that are harmful because they are not supported by accepted scientific evidence. The children's self-esteem and their confidence may suffer if the mother is critical of the choices the children make about their food and their lifestyle. The children may suffer emotional harm due to the mother's denigration of the father and his parenting choices, because not only might they lose trust in the father to provide for their needs or may come to the view that the father is deliberately harming them, but they might also lose respect and faith in their mother.
8. However, after taking into account a number of matters, her Honour was of the view that the risk posed to the children was not unacceptably high, "provided that the children live primarily with the father and spend time with the mother for defined periods on alternate weekends, and during school holidays, and on Mother's Day" (at [204]). The primary judge added:
   1. I have determined that the children are not at an unacceptably high risk of harm if they live with the father and spend time with the mother. The benefits to the children of being able to resume their natural relationships with the mother outweigh the risk that the children will become aligned with the mother and reject the father. As the children mature, and with the counterbalances of the time that they spend with the father, they will most likely come to see the mother's negative comments for what they are, namely an unfortunate deficiency in the mother's functioning.
9. It is important to recognise at the outset that a judgment is presumed to be correct until a court of appeal is satisfied that it is clearly wrong (Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 per Kitto J).
10. The orders subject of the appeal are discretionary and consequently, the following principles in House v The King (1936) 55 CLR 499 ("House v The King") (at 504-505) apply:

...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...

1. In undertaking its task, an appellate court will avoid an overly critical or pernickety analysis of the primary judge's reasons (AMS v AIF (1999) 199 CLR 160).
2. It has to be said that both counsel for the mother and the father frequently strayed from these principles and from the need to demonstrate a material error and veered into running the appeal as if it were another first instance hearing. The focus on appeal is identifying relevant error - no more, no less. Submissions as to the merits of each side's position are, generally speaking, only relevant where the appellate court is satisfied that there is error and is proceeding to re-exercise the discretion. Error is not established simply by showing that another judge may have come to a different decision.

1. The father commenced with submissions on Grounds 2 and 7, under which it was asserted that the orders made by her Honour were unreasonable and plainly wrong. The submissions under those grounds were said to be informed and supported by the submissions under the remaining grounds, so it is convenient to deal with those two grounds last.

Did the primary judge take into account irrelevant considerations? (Ground 1)

1. At [203] of the reasons, the primary judge listed a number of matters that were taken into consideration in determining whether or not the risk of harm posed by the mother to the children was unacceptable or could be ameliorated in some way. It was submitted that items (h) and (i) "are not and could not be relevant to determining" that issue. Those two subparagraphs say:

(h) I am satisfied that the mother does not intend to cause emotional and psychological harm to the children, and that her behaviour arises due to her lack of insight and understanding, and an inability to appropriately manage her emotions and her impulses.

(i) The mother has demonstrated her capacity to provide for the day to day needs of the children over a long period of time leading up to the 2022 Final Orders, notwithstanding her over-valued ideas about diet and health.

1. The appellant submitted that the issue of the mother's intention could not be a factor that diminishes the likelihood of a recurrence of her poor behaviour. That may be so, but the paragraph was not limited to the topic of the likelihood of whether the poor behaviour would continue. As the introduction to [203] makes clear, the consideration was whether or not "the identified risks of harm are unacceptably high". Subparagraph (h) is relevant to that issue because if the mother did intend to cause emotional and psychological harm to the children, that would be a very good reason indeed for the risk being unacceptably high and unable to be ameliorated in anyway.
2. As to subparagraph (i), it is relevant to take into account a parent's capacity to provide for the day to day needs of the children, especially in relation to someone whose parenting ability is in question, because the difficulties facing that parent may impact that ability.
3. The considerations were clearly relevant to the overall issue and this ground does not succeed.

Was the mother likely to continue to take steps to overcome her difficulties? (Grounds 3(g) and 6(c))

1. The heading belies a difficulty in the way the Notice of Appeal was framed and argued. Ground 3 is most unhelpfully framed in the alternative, being a list of factors that the primary judge is said to have failed to consider or failed to adequately consider. They are quite distinct errors of principle. One falls clearly within those enunciated in House v The King and the other does not.
2. Failing to give adequate consideration to a matter has been regarded by this court for some time as being a submission in aid of an ultimate submission that the primary judge's decision was unreasonable or plainly wrong and not otherwise (Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065 at [37]; George & George [2024] FedCFamC1A 15; (2024) FLC 94-170 at [42]; Quintana & Konigsmann [2025] FedCFamC1A 30 at [74]; Xin & Qinlang (No 2) [2025] FedCFamC1A 132 at [17]). The conflation with failure to consider is most unhelpful.
3. Ground 6 asserts inadequate reasons. Whilst failing to consider a matter and inadequate reasons raise a similar issue, but in different ways, again they are the subject of different principles and combining them in the one ground or set of submissions is entirely unhelpful.
4. The criticisms raised by these aspects of the grounds are of the following paragraph of her Honour's reasons:
   1. I am convinced that the mother does not deliberately seek to harm the children, and that she loves them dearly and wants what is best for them. Although the mother is at a very early stage of accepting that her behaviour is harmful, I consider that she will continue to take steps to overcome her deficits so that the children can continue to have healthy relationships with both parents in the future. If the mother continues to criticise the father's parenting choices, and restricts the children's freedom to enjoy their relationships with both parents, then most likely the children will reject the mother, which would be a very sad outcome for the children.
5. It was submitted there is no evidence to support the finding that the mother will continue to take steps to overcome her deficits. Again, unhelpfully, the written submissions, save for one matter, do not refer to the evidence before the primary judge, but rather to counsel's own written submissions to the primary judge. Those submissions identify a number of reports or interim judgments that have alerted the mother to the risks posed to the children by her behaviour and the failure to do anything about it. One paragraph deals with the mother's engagement with PP Centre, which was very recent (father's written submissions filed 16 January 2025, paragraph 124). She had attended only four sessions with PP Centre. The notes do not record that the mother stated that she now accepted the validity of the concerns that had been raised about her behaviour.
6. The primary judge did not refer to the PP Centre notes. However, it is well-established as a matter of law that a trial judge need not "mention every fact or argument relied on by the losing party as relevant to an issue" (Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]. See also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [41]).
7. As to adequacy of reasons, a judge is not required to make an explicit finding on each disputed piece of evidence, provided the inference of a finding is sufficiently clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Rafferty & Spencer [2016] FamCAFC 97; (2016) FLC 93-710 at [30]).
8. Finally, the mere fact that a matter is not mentioned in the reasons does not mean it was overlooked.
9. The relevant finding was that the mother was at the very early stages of recognising the difficulties with her behaviour and that it was likely that she would continue to take steps to do so. Given the engagement with PP Centre, that is an available finding. However, it was a tentative finding, as is made clear by the last sentence of her Honour's paragraph, which indicates she clearly had in mind the possibility that the mother's behaviour would not continue to improve.
10. Her Honour said:
    1. The mother has completed at least six parenting courses, and she has provided some evidence in her affidavit about what she has learnt, but nonetheless she has continued to make inappropriate comments to the children during supervised visits and Zoom sessions. On the afternoon of the third day of the trial, when the mother was still in cross examination, she apparently reached out to her friend Ms RR, a psychologist and a witness for the mother, who recommended that the mother see [Dr OO] at PP Centre.
    2. It is positive that the mother has decided to engage with this service, and her ongoing engagement may bring about change for the benefit of the children. I accept the submissions made on behalf of the father and the Independent Children's Lawyer that there is currently no credible evidence that the mother has gained sufficient insight for the Court to be confident that currently she is able to resist her impulse to involve the children in the parenting dispute and to try to undermine the children's secure placement with the father, by denigrating the father and his parenting choices and exposing the children to her overvalued ideas.
11. I am not persuaded that any material error has been identified. In any event, any error is over a trivial point, not of itself material to the outcome.

Did the primary judge fail to take into account the risk of family violence and alignment? (Grounds 3(a), 3(b), 3(f) and 5(e))

1. The relevant subparagraphs of Ground 3 assert failing, adequately or at all, to consider "[t]he future risk of the children being exposed to family violence", "[t]he totality of the risks raised by the [father]" and "[t]he protective interventions which had ameliorated the risk of harm to the children following the 2022 final orders, including supervised time". As the family violence alleged is the denigration of the father, it is difficult to fathom the need for the three sub-grounds or the difference between them.
2. Ground 5 is a list of findings made by the trial judge that are said to not be supported by the evidence. Sub-ground (e) says that the relevant finding is "that by moving into the primary care of the [father] the risks to the children in the [mother's] care have been ameliorated to the fullest extent possible". There is then a reference to [251] of the reasons.
3. This highlights the confusing nature of the Further Amended Notice of Appeal. One ground dealing directly with the issue would have been much more helpful.
4. Paragraph 251 is in the following terms:
   1. I reject the submission by Counsel for the mother that the change of residence for the children which was ordered in the November 2022 proceeding was not in the best interests of the children. It was in the long-term best interests of the children that their primary residence be changed. The children have benefitted from the opportunity to live in a stable household free from repeated denigration of their other parent, and to develop their important relationships with the father, without the mother hindering the children's relationships by her highhanded and unco-operative approach to co-parenting. If the children had remained in the primary care of the mother, there was a high risk that they would suffer the psychological harms identified by the Court Child Expert, including the risk that the children might align themselves with the mother and develop loyalty binds, and the risk that they might become hypervigilant due to the impact of the mother's belief systems. Fortunately, by moving into the primary care of the father those risks have been ameliorated to fullest extent possible, noting that the mother has continued to expose the children to her negative views of the father and to her strongly held and overvalued beliefs about health, diet and healthy living.
5. It is hard to see how the change in primary care had not ameliorated the risk other than to the fullest extent. It is to be noted that this paragraph is reciting what has happened since interim orders were made for the children to be in the full time care of the father and had very limited exposure to the mother's views. Thus, the harmful impact on the children had been completely ameliorated. This was not her Honour opining as to what will happen in the future, which occurred at [233] and I have already discussed.
6. In an attempt to establish that the primary judge failed to consider the evidence as to family violence, the father's submissions referred to some 83 paragraphs of his trial affidavit. These paragraphs record a stream of derogatory and unsavoury comments made to him by the mother about his parenting of the children, often in front of them. Those statements conform with the large number of text messages in which the mother has said similar things. This led to the following finding of her Honour:
   1. The large volume of text messages where the mother has verbally abused and denigrated the father leads me to accept the submission of Learned Counsel for the father, and I find, that the mother engaged in behaviour which constitutes family violence as defined in s.4AB of the Act, by her repeated derogatory taunts which were aimed at coercing or controlling the father to do as she dictated.
7. The reference to these other statements made by the mother does not take the matter a lot further. It would not change the conclusion reached by the primary judge which was the one sought by the father.
8. It is true that in one paragraph of the affidavit it refers to the mother saying to the father "I could punch you in the face" and when asked to stop the aggressive behaviour, she replied "[a]ggression is punching you in the face" (father's affidavit filed 5 September 2024, paragraph 136). Yes, it is a further instance of family violence. Given the tidal wave of other comments, it is perfectly understandable why her Honour made no reference to it whatsoever. There was a clear finding of family violence made by the primary judge and taken into account by her Honour. This is a prime example of an overly pernickety approach to her Honour's reasons.
9. The second aspect of the submissions was that the primary judge should have found "there was an unacceptable risk of psychological harm to the children by being placed under sustained pressure and emotional manipulation by the [mother] to return to her primary care" (father's Summary of Argument in the appeal filed 7 August 2025, paragraph 44). However, as the submissions accept, there was discussion by her Honour about this very issue at [232] and [260]-[273]. That acceptance makes the submission that there was a failure to consider the issue unmaintainable. At best therefore, the submission becomes a question of weight, which bears upon the question of whether the outcome was unreasonable or plainly wrong.
10. Finally, it was submitted that her Honour's reasoning suffers from the same non sequitur as that identified in Hickson & Matthew [2022] FedCFamC1A 161 at [51]. In that case, McClelland DCJ said:
    1. I respectfully agree with submissions by both counsel for the mother and the ICL that there is, on the face of the orders made by the primary judge, a non sequitur between her Honour's finding of the child being exposed to an unacceptable risk of harm in the mother's care such that a change of residence is required while, at the same time, making orders that provide for the child to spend regular overnight time with the mother on an unsupervised basis.
11. There is a significant factual difference between the two cases. In this matter the primary judge did not find there was an unacceptable risk of harm. Her Honour found there was a risk of harm, but it was acceptable in the circumstances where the mother had limited time with the children. Although her Honour did not say so explicitly, it is clear that she considered that it was the length of time that the children spent with their mother which was the critical factor. Too long and the mother's behaviour would in fact become an unacceptable risk. However, in smaller time periods, it was not. No non sequitur has been identified and these grounds do not succeed.

Did the primary judge fail to consider the impact of the mother's behaviour on the children? (Grounds 3(c), 3(d) and 6(b))

1. Grounds 3(c) and 3(d) assert a failure to consider, adequately or at all, evidence that was relevant to the risk that the mother would continue to influence the children, and the impact of her behaviour in 2022 when there were orders providing for equal weekend time. Ground 6(b) then complains of inadequate reasons for finding "that the children were not adversely impacted by the [mother's] emotionally harmful behaviour". It can be dealt with simply - there was no such finding. That is made plain by the extensive consideration of whether the risk of harm was unacceptable or could be ameliorated in any way.
2. The primary judge gave extensive reasons covering the mother's behaviour and the effect on the children and the submission is really little more than an assertion that greater weight could have been given to that evidence and that a different outcome should have been the result.

Did the primary judge fail to consider future risk to the children? (Grounds 3(a), 3(e), 5(b), 5(g), 6(b) and 6(d))

1. These sub-grounds respectively assert:
   • The trial judge failed to consider the future risk of the children being exposed to family violence.
   • The trial judge failed to consider the totality of the evidence given by the Single Expert as to the risk of harm posed to the children.
   • The trial judge erred in finding that as the children mature, they will most likely come to see the mother's comments as an unfortunate deficiency in her functioning.
   • The trial judge erred in finding that by moving to the primary care of the father, the risks to the children have been ameliorated to the fullest extent possible.
   • The trial judge failed to give adequate reasons for the findings that the children were not adversely impacted by the mother's emotionally harmful behaviour and the finding that the risk of harm posed to the children was not unacceptably high.
2. The submissions that were made under these broad but diverse ground are generally to the effect that a different finding could have been made, or that if greater weight had been given to a particular part of the evidence, a different finding could have been made. That may be so, but that does not demonstrate error.
3. The submissions also do little justice to her Honour's reasons. For example, it was submitted:
   1. The trial judge made findings that the risks associated with persistent denigration was not unacceptable because (a) the children have a strong relationships with the [father] (b) living with the [father] the children would come to view the [mother's] behaviour as "an unfortunate deficiency in in the mother's functioning" and consequently the risks are likely to "diminish" over time [AB:124, par 267]. These findings are both unsupported by any evidence and irreconcilable with other evidence accepted by the trial judge.

(As per the original)

(Father's Summary of Argument in the appeal filed 7 August 2025)

1. The primary judge found that the mother's behaviour dated back as far as 2018 (at [68]) and that there were potential deleterious effects on the children (at [80]). However, her Honour also said that she accepted the Single Expert's evidence that the impact on the children will depend on a number of factors, including how each child interprets the mother's behaviour, the strength of the children's relationship with each parent and their loyalties (at [77]).
2. The children were found to be healthy, active children who would benefit from a relationship with both parents (at [220]-[221]). The primary judge found without challenge that both children have a warm and loving relationship with the mother, and "each child delights in spending time and communicating with her" (at [230]). There was no issue as to the strength of the children's relationship with the father. Taken in that context, her Honour's findings seem unremarkable. However, it is important to recognize that in creating parenting orders that operate in the future, that "[p]erceptions, predictions and even intuition and guesswork can all play a part in the making of an order" (CDJ v VAJ (1998) 197 CLR 172 ("CDJ") at [151] per McHugh, Gummow and Callinan JJ).
3. I am not satisfied that any error has been established.

Did the primary judge err in finding the injunction would ameliorate the risk of harm posed to the children by Mr KK? (Grounds 5(c), 5(d), 5(f) and 6(a))

1. These sub-grounds raise the following matters:
   • Whether there was evidence to support that an injunction would ameliorate the unacceptable risk to the children being exposed to family violence and drug use by Mr KK.
   • Whether there was evidence that an injunction would ameliorate the risk of being exposed to controlling and coercive behaviour perpetuated by the mother.
   • Whether there was evidence that moving into the father's care has protected the children from the risk of being exposed to Mr KK.
   • Whether the primary judge gave adequate reasons for finding the injunction would ameliorate the risk of psychological and emotional harm to the children, including exposure to family violence.
2. Her Honour said:
   1. The children have thrived in the care of the father. They have a positive relationship with each of their parents. They have been protected from the risk of suffering short-term and long-term psychological harm due to continual exposure to the mother's overvalued ideas, without the counterbalance of living in the primary care of the father. Moving into the primary care of the father has also protected the children from the risk of harm from being exposed to family violence and drug misuse in the mother's household, due to the presence of Mr KK.
3. The father submits that the finding in the last sentence is not open on the evidence. It seems to me that the logic in that last sentence is impeccable. Again, it is recording what has happened in the past, and living with the father has meant the children have not come into contact with Mr KK.
4. Nonetheless, the primary judge was alert to the fact that there were issues with Mr KK and that the mother had not been able to prevent Mr KK from coming into contact with the children (at [139], [149], [242] and [243]). The mother's evidence about having ended her relationship with Mr KK and his misconduct was suspect (at [206]). They are the reasons for the injunction.
5. Her Honour, in her reasons, warned the mother against any breach of the injunction involving Mr KK on her behalf. As to the injunctions against the mother, the primary judge did not find that the injunctions would have a material effect on her behaviour. Rather, her Honour stated:
   1. Some of the restraints which the court will make with respect to the mother's conduct are intended to ameliorate the risk that she will continue to perpetrate family violence by making repeated derogatory taunts to the father.
6. Essentially, the complaint is that the injunctions will be breached. That is a risk her Honour obviously took into account (hence the warning). If complied with, the children will be protected. If not, the consequences for the mother and her relationship with the children could be severe. Her Honour was also aware, from a joint letter to her chambers, that after judgment was reserved a provisional family violence order was made against Mr KK in favour of the mother.
7. No error is established under these grounds.

Did the primary judge fail to consider evidence in the risk of harm and the children's grief and loss? (Grounds 4, 5(a), 5(i) and 6(e))

1. Ground 4 asserts that the primary judge failed to consider material evidence in her assessment of whether the children were at risk of harm. The only evidence referred to in the ground was that the children's counselling sessions in 2023 and 2024 did not provide any support for the contention that the children were likely to experience any distress at not seeing their mother. Grounds 5(a) and 5(i) contend that the finding that the benefits of a relationship with the mother outweighed the risk of harm and that the children's relationship with the father might be affected by not spending time with the mother were not open on the evidence. Ground 6(e) asserts inadequate reasons for finding that the children would suffer loss and grief by not seeing the mother.
2. X was 11 years old when she spoke to the Single Expert clinical psychologist. She told him that she was missing the mother and was sad and angry about that. She said her sister misses the mother and cries about that a lot. She added that she felt closer to the mother and did not understand why she was not living mainly with her.
3. Y was 8 years old at the time of the interviews. She too missed the mother and preferred to be living with her. She wanted things to go back to the way they were.
4. The primary judge did not find the children's views to be determinative but did take them into account.
5. The Single Expert opined:
   1. Prior to the recent change of primary residence for the children, the children have been accustomed to experience the mother as their primary caregiver since their birth. It is very evident that the children perceive a strong sense of security and stability in their relationship with the mother and they view her as a loving, joyful and essential presence in their life. Unsurprisingly in this context, the change in primary residence is perceived as extremely confounding to the children and has seemingly created a profound sense of uncertainty, confusion, and distress for them.

...

1. An evaluation of how the change of primary residence has impacted the children and their adjustment to it is complicated by the fact that they have had regular access to the mother by phone at least since that time until very recently. Whilst this access to contact with the mother has likely mitigated against the impact of this change it is not considered that such mitigation has been overly effective. Despite this access of contact with the mother, the children are clearly experiencing a significant level of distress, confusion, and uncertainty in the context of their current living arrangements and restricted access to the mother. I fully concur with the mother's assertion that the children have experienced emotional and psychological harm as a result of the change of primary residence, elements of how this unfolded, and the unknown state of what the future holds for them.

(Single Expert Report dated 22 November 2023)

[COUNSEL FOR THE MOTHER]: Let's assume for the moment, shall we, that she has, and she has of her own volition sought the assistance and continues to engage in that assistance - so if you can assume that for me, then aren't we now dealing with a significant problem regarding the children's likely emotional and psychological future if they do not have a significant relationship with their mother? Isn't - doesn't that now become the problem here?

[SINGLE EXPERT]: As I said yesterday, that, to me, is the - is - if the children could speak to the court, I'm sure they would say that that is their biggest problem, that that is their - the thing that's hurting them the most, that they would like to be different, because of the impact it's having on - having - has had and is having on them, I would assume, still.

(Transcript 20 November 2024, p.562 lines 22-31)

1. There was ample evidence to support her Honour's findings. It is true that the Single Expert, in referring to the mother's difficulties, also said that "I think I said that if - if those factors aren't addressed adequately, that supervised time would be considered appropriate, yes, until they are addressed" (Transcript 19 November 2024, p.531 lines 15-16). That does not however, cast any shadow on the findings the subject of the grounds. It merely highlights the weighting exercise before her Honour.
2. The primary judge did not refer to the counselling notes. They were the subject of submissions by the father. Accepting for the moment that the notes are silent on whether the children would be distressed by not seeing the mother, the obvious question to ask is whether a position arose during the counselling that would makes comments on that issue likely. That would depend on what was being said and done during the sessions. It could well be that little weight could be attached to the notes for supporting the contention that the children did not miss the mother.
3. I can take that no further. Despite the notes being the subject of a specific ground of appeal, counsel for the father did not take me to them in an attempt to demonstrate they carried significant weight.
4. As I have said, a trial judge is not required to refer to every piece of evidence. I am not at all persuaded that her Honour did not have regard to the notes or that there was a material error in failing to refer to them. Her honour may well have decided they were of such little weight they did not need to be mentioned.
5. I am not satisfied of any error.

Were the orders plainly wrong or unreasonable? (Grounds 2 and 7)

1. The essential submission made to the primary judge was that the risk of the children spending anything other than limited supervised time with the mother was unacceptable. Her Honour said:

1. The court must consider whether the risks of harm are unacceptably high, and whether the risks can be ameliorated by any order other than, in this case, long term supervision of the children's time with the mother. Long term supervision would be an extreme measure and amount to recognition contact only and would not allow the children to develop a full and natural relationship with the mother. 2. There are a several factors to consider in deciding whether the identified risks of harm are unacceptably high including the following:

(a) The children live in the primary care of the father, and they have lived experiences in his primary care, including his love and devotion to them, which may counterbalance the harmful effects of comments which the mother makes about the father and his parenting choices. > > (b) The children are engaged with counsellors who have assisted the children to manage their situation, including the impacts of the mother's harmful behaviours. > > (c) The children have been repeatedly exposed to the mother's denigration of the father and his parenting choices over many years and notwithstanding this they have maintained close and loving relationships with both parents. > > (d) The children are generally healthy and happy, and they both function well at school academically and socially, and in the community. > > (e) The children love both parents and have expressed that they want to spend as much time as possible with the mother. They appear somewhat inured to her denigration of the father and have been observed to ignore or dismiss her comments and to reassure the mother that they do make healthy choices in relation to diet and lifestyle. > > (f) While there is a risk that the mother's comments to the children might negatively impact on their self-esteem, to date there is no evidence that the children have taken to heart the mother's harmful comments. > > (g) The eldest child is aware that the father considers that the mother struggles with her mental health. This awareness appears to have had no negative impact on the bond between the mother and the child and may assist the child to cope with the mother's comments and not internalise them. > > (h) I am satisfied that the mother does not intend to cause emotional and psychological harm to the children, and that her behaviour arises due to her lack of insight and understanding, and an inability to appropriately manage her emotions and her impulses. > > (i) The mother has demonstrated her capacity to provide for the day to day needs of the children over a long period of time leading up to the 2022 Final Orders, notwithstanding her over-valued ideas about diet and health.

1. Overall, I am of the view that the children are not at unacceptably high risk of harm in the mother's household, provided that the children live primarily with the father and spend time with the mother for defined periods on alternate weekends, and during school holidays, and on Mother's Day.
2. Only two of the matters noted in [203] were sought to be impugned by the father, unsuccessfully as it turned out. Her Honour added:
   1. I consider that there remains a risk that the mother's harmful behaviour may continue and even escalate. That risk exists whether the children's time with the mother is supervised or not. There is the risk of further litigation about the children's parenting arrangements, whether the Court makes an order that the children's time with the mother is supervised or not.
3. The primary judge then took into account the following:
   1. The mother's negative comments to the children over many years have not undermined the children's secure and loving relationships with the father. As the children continue to mature, and their relationships with the father are maintained by living in his primary care, the risk that the mother's harmful comments will impact the children's relationships with the father, or undermine the children's self-esteem or create hypervigilance in the children most likely diminishes, and must be weighed against the risk to the children of having their relationships with the mother reduced to identity style contact under supervision. I am satisfied that the strength of the relationship that each child has with the father increases their resilience against the harmful effects of the mother's conduct.
   2. The children love the mother, and they are loved by her in return. The mother has a great affection for the children. The children will miss the mother if they do not spend significant time with her. They may struggle to understand why they cannot spend time with the mother at her home. If the children are distressed, they may blame the father, and this may have a negative impact on their close and beneficial relationships with him. The children may feel sad and resentful that their views have not been heard. They will miss out on the positive parenting qualities of the mother, and all the activities they share and enjoy when they are with her, and their childhoods will be greatly diminished by the loss of their meaningful relationships with the mother. I consider that significant grief and loss will be visited on the children if in the long term they are confined to spending contact with the mother once each month under supervision.
4. As the Court also said in CDJ, it is perfectly reasonable for two trial judges to come to entirely opposite conclusions about the appropriate parenting orders to be made on exactly the same evidence. Error is not demonstrated by persuading the appeals court that if it had heard the matter, it would have come to a different outcome.
5. The decision before her Honour was not a black and white one, as her finely nuanced reasons make clear.
6. Taking all these matters into account, I am unable to conclude that the outcome was unreasonable or plainly wrong.

Did the primary judge err in the weight placed on certain evidence? (Grounds 1 and 3)

1. These grounds challenge the weight to be given to two different witnesses, the Single Expert clinical psychologist and the Single Expert forensic psychiatrist.
2. As I have already observed, such challenges cannot succeed on their own unless they are coupled with a submission that the outcome is plainly wrong. In Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 540, Brennan J observed:

The "generous ambit within which reasonable disagreement is possible" is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.

1. I would, however, merely observe that, in relation to the clinical psychologist, the primary judge did in fact place considerable weight on the evidence of the single expert and the nature of the children's relationship with the mother which was a significant plank in the findings supporting the orders made.

Did the primary judge fail to consider family violence by the father? (Ground 2)

1. The second ground is that the primary judge failed to consider whether aspects of the conduct of the father towards the mother were a form of family violence. The submission continued:
   1. The mother gave evidence that her relationship with the father was coercive and controlling in the following respects:
      1. The father's 'continuous applications to the Court' and threats to take her to Court and the emotional stress and trauma this has caused the mother.
      2. The father's unsuccessful costs application against the mother after the conclusion of the property proceedings saying he took her to Court because she 'got a lawyer' for the property proceedings.
      3. The father's threats to place an ADVO on her if she attended the children's extra-curricular activities.
      4. Making criminal allegations against her which resulted in stress, humiliation, financial stress as well as the loss of her employment. These charges were later withdrawn by police.
      5. Unfounded allegations by the father that the mother used drugs, which the mother deposes was all fabrications by the father in order to passively/aggressively denigrate her.
      6. A threat to call the police on 27 January 2023 when the children did not want to go with their father, in circumstances where he knew the trauma the children had faced when they were removed from the mother by police.

g. Significant and on-going financial control of her by the father.

(Footnotes omitted)

(Mother's Summary of Argument in the cross-appeal filed 6 August 2025)

1. However, the primary judge did find that there was no controlling behaviour on the part of the father at [121] and that he was not financially controlling at [235].
2. As to her subjective belief that the father's behaviour was violent, it is not dispositive. In Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230, the Full Court confirmed the focus needs to be on the behaviour and warned against relying too heavily on subjective perception (at [52] per Aldridge & Carew JJ; at [111] per Austin & Williams JJ).
3. This ground is not established.

Did the primary judge err in findings as to the mother's relationship with Mr KK? (Ground 4)

1. This ground challenges the finding that the mother and Mr KK had resumed a relationship. The mother said that they had been separated by August 2022. However, her Honour recorded that in early 2025, an ADVO was made against Mr KKfor the protection of the mother. The application recorded that they had been in intimate relationship for the last year and a half with a number of unreported incidences of family violence, including an incident in late 2024. Mr KK was noted to be storing his belongings at the mother's home. The finding by her Honour as to the existence of their relationship beyond August 2022 is inescapable.

1. There is no merit in the Notice of Cross Appeal and it too will be dismissed.

1. Both parties sought to rely upon a huge amount of further evidence in the appeal. Some of this was clearly available before the hearing which is, in itself, a sufficient reason for not admitting it. Indeed, there was an application made by both parties to adduce further evidence before the primary judge delivered her final reasons, which was refused. There was no appeal from that order.
2. The father was troubled about evidence that the mother relied upon, being snapshots of messages of his to suggest that he was conversing with male prostitutes and obtaining drugs. He seeks to rely on not only his own evidence as to that, but also the evidence of a single expert whose opinion was severely qualified by the fact that in order to opine definitively on the subject, he needed access to the relevant metadata on the mother's phone. It seems to be an exercise in peripheral litigation for the sake of it.
3. The proposed evidence is controversial, not directly relevant the question of the best interests of the children and is not directed to identifying error on the part of the primary judge. I am not persuaded that the further evidence relied upon by the father should be adduced on the appeal.
4. The position of the mother was that her evidence was essentially in reply to that of the father's. The father's application will be dismissed. It follows that the mother's application will also be dismissed.

1. The parties have unfortunately incurred significant costs in this matter. Each party has been wholly unsuccessful.
2. I am not persuaded that there is any reason for departing from the default position set out in s 114UB of the Act.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.