Australian Coal and Shale Employees' Federation v Commonwealth

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).

1. This appeal relates to orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 2 May 2025. The relevant decision, Van Wyk & Van Wyk (No 2) [2025] FedCFamC2F 552, saw the finalisation of long-running and high-conflict parenting proceedings between the appellant father, Mr Van Wyk ("the father"), and the respondent mother, Ms Van Wyk (the "mother"). The orders established a comprehensive parenting regime intended to provide for the children's needs, then aged 14 and 11 years old, while reducing parental disputes and quarantining the children, as best as possible, from further conflict at [145].
2. Despite being framed in wide ranging terms, the father appealed only those orders allocating parental responsibility. Therefore, this judgment will primarily focus on aspects of the father's grounds of appeal which are relevant to that aspect of the orders.

1. In their reasons for judgment, the primary judge provided a detailed summary of the parties' relationship and personal circumstances at the time of final hearing at [2]-[31]. For the purposes of this appeal, it is sufficient to note the following:

· The mother and father immigrated from Country A to Brisbane in 2008 and commenced cohabitation in 2000.

· The parties were married in 2011 and separated on a final basis in March 2018.

· Since 2018, the father has been partnered with Ms F (married in 2023).

· Since 2019, the mother has been partnered with Mr M.

· Both parents have health and psychological challenges. The mother suffers from chronic pain and depression and is in receipt of a disability pension. She lives in rented accommodation and has not worked since 2020 due to health issues.

· The father receives psychological counselling and does not work full-time due to mental health challenges. He has assumed a stay-at-home parenting role and is actively involved in the youngest child's education and psychological care.

1. The parties' first child was born in 2009 and has been diagnosed with Attention-Deficit/Hyperactivity Disorder ("ADHD") and other learning disorders at [45]. She has engaged in self-harming behaviour and receives ongoing psychological support at [46].
2. The parties' second child was born in 2013 and has been diagnosed with ADHD, Oppositional Defiant Disorder, and severe learning disorders at [51]. He has expressed suicidal ideation in the past and receives psychological treatment and tutoring funded by the father at [54].
3. In their reasons, the primary judge acknowledged that both children expressed "clearly and unequivocally" their preference for continuing a week-about care arrangement and have strong bonds with both parents at [17].
4. The primary judge noted that the parties' relationship was "tumultuous" and high conflict, with mutual allegations of controlling behaviour and domestic violence being raised by both parties at [130]. It was also noted that mutual protection orders were made both during and after the relationship in relation to the parties.
5. This parental conflict has continued post-separation - particularly in respect of parenting decisions - and has been assessed by the family report writer, Ms C, as the most severe conflict she has seen in 20 years of practice at [119].
6. As a result of the intractable parental dispute, there have been multiple court events including the following:
   • In July 2019, Final Consent Orders were made for equal shared parental responsibility and a week-about care arrangement for both children.
   • In June 2020, the mother initiated proceedings seeking sole parental responsibility.
   • In February 2021, Orders were made for the children to undergo medical assessments and for a medico-legal report and family report to be obtained.
   • In March 2022, the medico-legal assessment of the parties by Dr D was released.
   • In May 2022 & September 2023, Family Reports by the single expert psychologist, Ms C, were obtained. These reports highlighted severe parental conflict and, to reduce the level of conflict, recommended sole parental responsibility to the mother.
   • In March 2024, Orders were made assigning responsibility for psychological and educational arrangements for the younger child to the father and to the mother for older child.
   • In late March 2024, the father filed an application for sole parental responsibility and change of residence. That application was later withdrawn.
   • In August and September 2024, the Final Hearing was conducted over four days.
   • In January 2025, Final Orders were made in respect of the younger child's school enrolment.
   • On 2 May 2025, Final Parenting Orders were made.

1. In their reasons for judgment, the primary judge explained why they accepted and relied upon the expert evidence of the family report-writer, Ms C; finding her opinions and evaluations to be "careful, considered and insightful" and upon which the primary judge placed "considerable weight" at [128]. It was also noted that the Court had the benefit of various material produced under subpoena from schools, treaters and police at [62].
2. Ms C gave oral evidence in the proceedings and prepared two Family Reports: released in May 2022 and September 2023 respectively. She concluded that both parents were loving and committed caregivers but noted their inability to co-parent effectively at [17] and [23].
3. Ms C recommended allocating sole parental responsibility in respect of both children to the mother at [123] and [127]; citing the father's tendency to escalate conflict and the mother's greater insight into the children's needs at [23].
4. Ms C also expressed concern about the father's partner, Ms F, becoming involved in disciplinary matters concerning the children at [58]. This conduct, she opined, was contrary to their interests. Accordingly, she made recommendations to avoid such involvement occurring in her final family report (Family Report dated 26 September 2025, page 37).
5. Ultimately, Ms C supported the continuation of the week-about care arrangement; noting that both children expressed strong attachments to both parents and a desire to maintain equal time at [17].
6. The primary judge noted that the second child had been diagnosed as suffering with ADHD, oppositional defiant disorder, and had severe learning difficulties. It was also noted that the child had reported, to his therapist, suicidal ideation and emotional distress, particularly around school transitions and as a result of being caught in the middle of the parental conflict at [59] and [123].
7. In the context of that background, the primary judge accepted the views of the family report writer, Ms C, who gave both written and oral evidence of the negative impact of chronic parental conflict on both children, including the younger child, and the critical need for stability, predictability, and consistency in their lives at [144].
8. The primary judge stated, at [145] that:

It is of paramount importance that moving forward the children's caregivers prioritise the children's needs for safety, stability and security and being protected from any further conflict. Both parents and their partners need to support each other to understand the children's unique needs and to manage what may become further challenges.

1. The primary judge also accepted Ms C's opinion at [59] that:

The dynamic between the parents is highly likely to be having a negative impact on the children, it is creating stress for the children and at the very least is perpetuating their difficulties with learning and attention at school due to the stress of their home life.

1. The primary judge also noted Ms C's criticism of delays and disputes over the younger child's access to school-based support and psychological care, and specifically noted the importance of the younger child receiving consistent psychological treatment and educational support, free from parental conflict and disruption.
2. The primary judge accepted the recommendation of the family report writer to make parenting arrangements which would reduce conflict between the parents and provide the younger child with stability in both his schooling and psychological treatment; recommending that one parent be given clear responsibility for the younger child's therapy and tutoring to avoid further disputes and instability.
3. The primary judge further noted that, when previous orders allocated responsibility for the younger child's psychological treatment and tutoring to the father, (and for the elder child to the mother), there was less conflict between the parents, stating at [156] that:

When orders were made for the father to make the necessary arrangements for [the younger child] and the mother to make the necessary arrangements for [X], it appears there was less conflict.

1. The primary judge also found it relevant that the father had demonstrated a willingness to fund and organise the younger child's tutoring and psychological treatment, stating at [174] that:

The father gave evidence that he is prepared to continue to fund fully the ongoing tutoring for [Y]. It makes sense in my view that all of the arrangements should fall to him.

1. Accordingly, the primary judge made orders which, as stated at [184] are intended to have the practical effect that:

...for as long as is recommended by the school and/or any further Queensland assessment undertaken, the father will be solely responsible for making ongoing arrangements for the tutoring as required by [the younger child], including the payment of the tutoring. Additionally, for as long as psychological treatment is required for [Y], the father will be solely responsible for making those arrangements, including payment.

1. While the primary judge found both parents to be generally credible, it was noted that the father tended to minimise his role in the conflict and exaggerate the mother's shortcomings at [93]. The mother was found to be more consistent and child-focused in her evidence.
2. The judge found the level of conflict between the parties to be extreme and entrenched, with both parents contributing to the dysfunction. The father was found to have a pattern of escalating disputes and undermining the mother's authority at [11] and [179]. Comparatively, the mother was found to have greater insight into the children's emotional and developmental needs at [164].
3. The primary judge expressed great concern that the children were adversely affected by the ongoing conflict and the extent to which their emotional and behavioural issues were exacerbated by instability and tension between the parents at [145]. The primary judge noted that, nonetheless, and consistent with the observations of Ms C, both children had strong attachments to both parents and were found to have expressed a clear and long held desire to maintain the week-about care arrangement at [148].
4. In terms of parental capacity, the mother was found to be more attuned to the children's psychological and emotional needs, despite her own health challenges. The father was found to be capable in practical parenting and particularly effective in managing the younger child's educational and therapeutic needs at [161].
5. In the context of the children's current living arrangements, the mother's partner, Mr M, was found to be a positive and supportive presence in the children's lives. The primary judge agreed with the opinion expressed by Ms C that there was no evidence of the children being exposed to family violence in the home shared by the mother and Mr M at [142].
6. The primary judge, however, expressed some concern that the father's partner had contributed to household tension by involving herself in disciplinary matters concerning the children at [114] and [167].
7. As earlier observed, the primary judge found that the father had taken primary responsibility for the younger child's psychological treatment and educational support, which the primary judge assessed as being done competently at [161] and [166]. The primary judge also found that the mother was more involved in the older child's emotional wellbeing and schooling and noted that child's preference for this arrangement to continue at [178].

1. While the father appeals only those orders in respect to the allocation of parental responsibility, it is useful to provide a summary of the totality of the parenting orders as set out below:

• The existing week-about care arrangement was maintained for both children.
• This arrangement was found to be in line with the children's expressed wishes and their strong attachments to both parents.

• The younger child was to remain enrolled at his current school, as arranged by the father.
• The mother retained responsibility for the eldest child's schooling and related decisions.

• Handover arrangements were to continue as previously ordered, with minimal direct contact between the parents to reduce conflict.
• Communication between the parents was to be limited to matters strictly concerning the children and conducted via a parenting app.

• The father was directed to ensure that his partner, Ms F, did not involve herself in disciplinary matters or conflict with the children.
• The mother's partner, Mr M, was not subject to any restrictions, reflecting the Court's finding that his involvement was positive.

• Both children were to continue receiving psychological support.
• The father was to coordinate the youngest child's therapy, while the mother was to oversee similar arrangements for the elder child.

• ·Most relevantly to this appeal, the order in respect of parental responsibility was contained in Order 26 of the orders made 2 May 2025 and is set out below:

26. That the mother have sole parental responsibility and sole decision making for major long-term issues for the children, to the exclusion of the father save as provided for in these Orders, and in the exercise of this parental responsibility, the mother will (unless in an emergency):

1. Communicate by email with the father about a decision to be made, and the options (if any);
2. Consider any feedback provided to the mother by email from the father, should this feedback be given within a reasonable time; and
3. Inform the father by email of the decision made within seven (7) days of the decision being made.

1. In his Amended Notice of Appeal filed on 30 July 2025, the father appeals against Order 26, 26(a), 26(b), and 26(c), and relies on the following grounds of appeal:

Ground 1:

The Court failed to consider the Respondent's repeated non-compliance with past orders, including orders requiring psychiatric treatment and parenting programs, and her last-minute disruption of trial proceedings.

Ground 2:

The Court disregarded expert medical evidence ([Dr D], 2022 Medico-Legal Report), which identified significant psychiatric concerns, substance use, and parenting dysfunction.

Ground 3:

The Court failed to adequately assess risk to the children posed by the mother's conduct and psychological state.

Ground 4:

The Court failed to properly assess the history and impact of parental conflict and its cause.

Ground 5:

The Court gave excessive weight to [X's] expressed wishes, without properly assessing the influence of the mother's manipulation.

Ground 6:

The Court failed to properly consider the risk posed by the mother's partner, who is the subject of a Domestic Violence Order (DVO).

Ground 7:

The Court's decision is inconsistent with subsequent orders made by Judge Goodchild which gave the applicant significant responsibility for the children, including full responsibility for [Y's] medical, psychological and education for a period of 13 months without the Respondent's involvement.

Ground 8:

The Court erred in concluding that the Respondent would exercise superior parental judgement, despite extensive evidence of her repeated failure to meet the children's essential medical, educational, and psychological needs - including refusal to follow professional advice, obstruction of ordered support services, and excessive school absenteeism while the children were in her care. This concern was significant enough that the Court itself made orders compelling school attendance, yet still found the Respondent fit to hold sole parental responsibility - a finding inconsistent with the protective rationale of those orders.

Ground 9:

The Court's judgement is inconsistent with historical interim and final orders made over the past three years that consistently ruled in favour of the Appellant following opposition by the Respondent.

Ground 10:

The Court gave undue weight to an implicit presumption that the mother was the more capable parent, without adequately considering the Appellant's proven primary parenting role over a sustained period, undertaken due to the Respondent's psychiatric instability and prolonged disengagement.

Ground 11:

The Court failed to give adequate consideration to the Respondent's past conduct, including the strategic use of a false rape allegation later dismissed by police as unreliable, made the day after a DVO was issued against her.

Ground 12:

The Court erred in giving determinative weight to the views of the Independent Children's Lawyer (ICL) and the family report writer, who both demonstrated a clear and unreasonable preference for the Respondent - even in circumstances where doing so directly compromised the best interests of the children.

Ground 13

The Court's allocation of sole parental responsibility to the Respondent is internally inconsistent with its specific finding that the Appellant should retain responsibility for [Y's] psychological and educational needs, despite those being the most complex parenting responsibilities in the matter.

1. As explained to the father at the appeal hearing, an appeal to the Full Court of the Federal Circuit and Family Court of Australia ("the Full Court") is not by way of a re-hearing of the merits of the case presented at first instance (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30]). In a typically succinct and pertinent summary, Austin J recently explained, "it is not the role of an appellate court to simply substitute its opinion for that of the trial judge" _(_Arendse & Pilkvist [2025] FedCFamC1A 153; (2025) FLC 94-270 at [13]).
2. In making orders pursuant to Pt VII of the Family Law Act (Cth) 1975 ("the Act"), the primary judge was exercising a broad discretion reposed, by that Part of the Act, in the Court. Accordingly, the primary judge's conclusions attract the standard of appellate review articulated in House v The King (1936) 55 CLR 499 ("House v The King"). This requires "in substance, identification of an error of principle or a material error of fact, or, if no specific error can be identified, demonstration that the decision is 'unreasonable or plainly unjust'" at 505.
3. There is a strong presumption as to the correctness of the primary judgment with the appellant carrying the onus of establishing material error (Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 and Boulton & Boulton [2024] FedCFamC1A 132; (2024) FLC 94-202 at [19]- [20] and [22]).
4. The weight given to evidence, in the exercise of a judicial discretion under the Act, is a matter that is quintessentially for the primary judge. The fact that an Appellate Court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
5. Similarly, a finding of fact will not be disturbed unless those findings are demonstrated to be "wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences"(Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43] and Lee v Lee [2019] HCA 28; (2019) 266 CLR 129).
6. For reasons that follow, the father has failed to establish an appealable error in respect of the orders made by the primary judge in this case.

Ground 1: The Court failed to consider the Respondent's repeated non-compliance with past orders, including orders requiring psychiatric treatment and parenting programs, and her last-minute disruption of trial proceedings.

1. This ground of appeal is without merit. The primary judge made findings that both parents were responsible for the delay with aspects of the children's psychological treatment at [74].
2. The primary judge clearly explained why orders were made for the mother to exercise sole parental responsibility for the children, other than in respect to certain matters impacting the younger child.
3. I respectfully agree with and adopt the submissions of the Independent Children's Lawyer, which noted the following findings by the primary judge (Summary of Argument filed 27 August 2025, paragraph 13):
   1. In the circumstances of this case, it was clear that there should be only one decision-maker with respect to major long-term decisions for the children.
   2. Parental conflict was the harm to the children that the Court was most concerned with and the children had been harmed by their exposure to it.
   3. The respondent has historically acted appropriately in obtaining support for the children and following the recommendations of treating specialists. The respondent has engaged with and sought support from the schools for the children and that she had consulted the appellant with respect to decisions to be made.
   4. If the respondent was solely responsible for making decisions about major long-term issues for the children she would consult with the appellant before making those decisions and she would take account of his views unlike the appellant.
   5. There was no evidence that the respondent is not capable of meeting the children's psychological, emotional, developmental and cultural needs and on balance, was satisfied that the respondent is able to assess the best interests of the children and to communicate with service providers in a manner that does not jeopardise the children's access to those providers.
   6. After referring to Ms C's observations as to the appellant's history of scrutinising professionals who were involved with the children and his acceptance in cross-examination that his behaviour at times can be seen as undermining, found the appellant has capacity to a limited extent to be the sole decision maker with respect to [Y's] psychological treatment and extra-curricular tutoring.

1. A trial judge is not required to refer to or mention every fact or argument relied on by a party at first instance (Whisprun Pty Ltd formerly Northeast Exports Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]).
2. The father's assertions that the mother's ability to make "decisive decisions" (Outline of Submissions at paragraph 4, Exhibit 36) and parenting capacity was otherwise impacted by mental health considerations, was challenged by the Counsel for the Independent Children's Lawyer who correctly noted that the was the father's contentions were not supported by medical evidence from Dr P (Consolidated Transcript, 13 September 2024 p 437-438). It was, therefore, reasonably open for the primary judge to accept the evidence that the mother's parenting capacity was not adversely impacted by mental health considerations.
3. In respect of the second aspect of this ground of appeal, it is not apparent that the father contended that he should be the preferred parent to exercise parental responsibility on account of the mother's repeated non-compliance with past orders, including non-compliance in respect to a parenting plan, or the manner in which she conducted the litigation.
4. It is not appropriate for an appellant to conduct, what is often referred to as, an "arm-chair" appeal by scrutinising every aspect of the trial with a view to searching for appealable error (Pantoja & Pantoja [2025] FedCFamC1A 104; (2025) FLC 94-260 at [27]). This is particularly so where the issue was not raised at first instance.
5. Therefore, this ground of appeal fails.

Ground 2: The Court disregarded expert medical evidence (Dr D, 2022 Medico-Legal Report), which identified significant psychiatric concerns, substance use, and parenting dysfunction.

1. This ground of appeal is based on a false premise. The primary judge considered the evidence of Dr D at [77]. The primary judge did not disregard it. Critically, the weight the primary judge gave that evidence was quintessentially a matter for their Honour (Barbir & Erickson (No 2) (2023) FLC 94-168 at [43]).
2. This ground of appeal fails.

Ground 3: The Court failed to adequately assess risk to the children posed by the mother's conduct and psychological state.

1. Again, this ground of appeal is without merit. The primary judge carefully considered the evidence in respect to the mother's mental health at [76] - [78].
2. Therefore, is ground of appeal also fails.

Ground 4: The Court failed to properly assess the history and impact of parental conflict and its cause.

1. It is of significant concern that the father has made this ground of appeal. The impact of the parental conflict upon the wellbeing of the children was central to their Honour's reasoning and the orders made.
2. The primary judge accepted the evaluations, recommendations and opinions expressed by Ms C at [128]. This included, at [59] accepting the opinion of Ms C that:

The children's presentation is significantly predisposed by the complex family dynamics, very hostile relationship between the parents, and inconsistent rules and messages between houses. The children are aware of ongoing disagreements and differing opinion between the parents. The dynamic between the parents is highly likely to be having a negative impact on the children, it is creating stress for the children and at the very least is perpetuating their difficulties with learning and attention at school due to the stress of their home life.

1. The primary judge, at [144], accepted the further opinion of Ms C that:

In my opinion the children have suffered emotional harm due to the acrimonious nature of the parties' separation, the children's exposure to the conflict and the parties unwillingness to prioritise the children's needs above their own. The parties have now lost sight about what [are] the children's best interests. The level of contempt the parties displayed toward one another is toward the more extreme end of the spectrum and this will inhibit the children with being able to have the foundation they need to feel safe and create an environment characterised by stability, predictability and consistency. The animosity between the parents has resulted in the children being caught up in the dispute and feel torn as their loyalties are divided. The parties contempt for one another has inhibited the parents from being able to resolve disputes quickly in relation to [X's] high school enrolment, prevented The younger child from receiving his medication, The younger child receiving a timely cognitive assessment by the school guidance officer, and from the children being assessed from an Educational and Developmental Psychologist as recommended in the initial report. Even relatively simple issues, such as communication about elective subject selection, uniforms and medication scripts, are highly contentious. In my opinion, the children's well-being is not prioritised by either parent.

1. Also, at [59] the primary judge accepted the opinion of Ms C that:

There are also now very clear indicators that the children are experiencing emotional distress from being subjected to the intense ongoing parental dysfunction in conflict. The children have been exposed to the conflict and their parent's animosity towards one another. This is highly likely to have impacted upon their sense of emotional security, and the animosity explains the children's difficulties with educational achievement, attention, learning and disruptive behaviour for [Y]. With his recent suicidal ideation expressed at school and his withdrawal and isolation, he is in distress and has started to have a worrying impact on his mood and on mental health at the tender age of just 10 years old. ... The ongoing, intractable conflict will have almost certain impacts on [X] and [Y's] brain development, and this in turn will impact on their ability to emotionally regulate. The legacy of such exposure to conflict on a regular basis can impact on their ability to safely enjoy a relationship with both parents. The emotional harm the children have suffered from the parent's acrimonious separation could reverberate in the children for years to come.

1. The reasons make it clear that the primary judge made a finding that both parties contributed to the conflict between them. In so far as this ground of appeal conveys the father's attitude that the mother was the sole cause of the conflict, he is wrong. Specifically, the primary judge accepted he opinion of Ms C at [11] that the father exhibited significant personality traits which contributed to the dysfunction in the parenting dynamic. Further, the father is described as highly reactive, especially to perceived criticism or negative judgment, obsessive and preoccupied with perceived wrongdoings by the mother, rigid and concrete in his views with poor insight into the impact of his behaviour on others, and impulsive with a strong need to exert control over the mother at [23].
2. The father was found to have a propensity to criticise the mother and scrutinise and discredit professionals involved with the children, particularly when their views differ to his own at [11]. He was found to be "highly suspicious" of the school, including the youngest child's school guidance officer, even when the younger child the child was in distress and expressing suicidal ideation at [123].
3. The father was also found to have denigrated the mother in front of the children. This was noted by both children who reported the father calling the mother "lazy" and an "idiot" at [58] and [49].
4. The judgment clearly explains why, as a result of the father's personality traits and behaviour, the primary judge made orders for the mother to exercise parental responsibility in respect to the majority of decisions concerning the children. In that respect, for instance, at [126], the primary judge accepted the opinion of Ms C that:

The father's behaviour is more of an undermining of the clinicians. He seeks to undermine the mother, he seeks to want to know exactly what she said, and to correct whatever statements she said about him. He's very much in the camp of wanting to impress clinicians, and to impress the service, to make it look like he is the better parent, and he is the parent who's child focused, and he's calm, and he's regulated, in order to create a point of difference between himself and the mother. But I think the father's kind of pathology is much more in the sense of undermining the clinicians, triangulating them, and trying to present himself as the parent who's most responsible, and more able to care for the children than the mother.

1. The primary judge's acceptance of the "opinions, evaluations and recommendations" of Ms C at [128] was consistent with the weight of evidence presented in the case and was reasonably open for their Honour to do so. It follows that no error has been established in the primary judge so doing.
2. This ground of appeal fails.

Ground 5: The Court gave excessive weight to X's expressed wishes, without properly assessing the influence of the mother's manipulation.

1. The primary judge appropriately gave significant weight to the views of the older child, who is now 15 years old. These views were found to be consistent with her lived experience of the father including his denigration of the mother at [47]. Contrary to the contention underlying this ground of appeal, it was the father who was found to have engaged in manipulative behaviour. At [47], the primary judge noted that Ms C had reported that, without prompting during the interviews, the eldest child:

spontaneously stated that her father told her about the family report interviews and he advised her "a couple of weeks ago" to say that she wants to spend more time with him and live with him as she and her brother would be able to receive a "proper education".

1. Accordingly, this ground of appeal is also without merit and fails.

Ground 6: The Court failed to properly consider the risk posed by the mother's partner, who is the subject of a Domestic Violence Order (DVO).

1. The primary judge found Mr M to be a credible witness and impressed as a supportive partner to the mother and as having a positive relationship with the children at [84] and [89].
2. Contrary to that which is asserted by the father in this ground of appeal, the primary judge had regard to an incident of violence which occurred between the mother and Mr M in April 2022 at [132] - [134]. In so doing, the primary judge noted that Mr M "generally accepted" the accuracy of the police records in respect to the incident at [91]. Further, at [132], the primary judge recorded their finding in relation to the incident as follows:

There is currently a Protection Order in place between the mother and her partner. Both were cross-examined about the incident that led to the order being obtained. The children were not present at the time. The ICL submits that there is no evidence of an ongoing pattern of family violence in the mother's home and there has been no further police involvement. I accept that submission.

1. It is not the case that the primary judge failed to properly consider the incident. I am satisfied that the findings made by the primary judge, in light of that consideration, were reasonably open to them on the evidence.
2. This ground of appeal fails.

Ground 7: The Court's decision is inconsistent with subsequent orders made by Judge Goodchild which gave the applicant significant responsibility for the children, including full responsibility for Y's medical, psychological and education for a period of 13 months without the Respondent's involvement.

1. As noted by Counsel for the Independent Children's Lawyer, this ground of appeal is without merit. Interim orders are invariably made in the context of an abridged process where the parties' competing evidentiary assertions are not properly tested (Goode and Goode (2006) FLC 93-286 at [18] confirming Cowling v Cowling [1998] FamCA 19; (1998) FLC 92-801 at [18]).
2. Appropriately, the primary judge carefully considered the totality of evidence presented in the substantive hearing of this matter. In fact, it would have been an error on the part of the primary judge to have evaluated that evidence through the lens of the outcome of previous interim hearings.
3. This ground of appeal therefore fails.

Ground 8: The Court erred in concluding that the Respondent would exercise superior parental judgement, despite extensive evidence of her repeated failure to meet the children's essential medical, educational, and psychological needs - including refusal to follow professional advice, obstruction of ordered support services, and excessive school absenteeism while the children were in her care. This concern was significant enough that the Court itself made orders compelling school attendance, yet still found the Respondent fit to hold sole parental responsibility -a finding inconsistent with the protective rationale of those orders.

1. This ground of appeal has been addressed in respect to my consideration of Ground 4. For similar reasons, this ground of appeal fails.

Ground 9: The Court's judgement is inconsistent with historical interim and final orders made over the past three years that consistently ruled in favour of the Appellant following opposition by the Respondent.

1. This ground of appeal has been addressed in respect to my consideration of Ground 7. For similar reasons, this ground of appeal fails.

Ground 10: The Court gave undue weight to an implicit presumption that the mother was the more capable parent, without adequately considering the Appellant's proven primary parenting role over a sustained period, undertaken due to the Respondent's psychiatric instability and prolonged disengagement.

1. This ground of appeal has been addressed in respect to my consideration of Grounds 3 and 4. For similar reasons, this ground of appeal fails.

Ground 11: The Court failed to give adequate consideration to the Respondent's past conduct, including the strategic use of a false rape allegation later dismissed by police as unreliable, made the day after a DVO was issued against her.

1. The primary judge specifically noted that the mother did not, for the purpose of the proceedings, press historical allegations of sexual abuse previously made by her against the father. At [141] the primary judge noted:

The mother alleges family violence in her relationship with the father. The father denies the allegations. She alleges sexual assault upon her by the father. The father denies the allegation. The Court is not requested by the mother to make any finding with request to those allegations. Indeed, the mother, in her affidavit evidence states that she will not be "retelling" that aspect of their history. I am satisfied that the fact of the dissolution of the relationship ameliorates any risk to the children of family violence between the mother and the father.

1. As noted by the Independent Children's Lawyer, while the mother was cross examined in respect to the allegations, it was not submitted that the mother had made false allegations to gain a strategic advantage in the family law litigation or otherwise (Independent Children's Lawyer, Summary of Argument filed 27 August 2025 at paragraph 48).
2. The judgment makes clear that the primary judge did not make findings in respect of the allegations of sexual abuse made by the mother. That is, while not making any positive finding that the allegations of sexual abuse had occurred, the primary judge equally did not make any findings that the mother's allegations were false. The issue was simply not addressed. In my view, it did not need to be addressed by the primary judge in determining what orders were appropriate in respect of the issue of parental responsibility. Specifically, the absence of such a finding cannot be said to have had a material impact on the orders made by the primary judge in respect of the exercise of parental responsibility. It was an issue that did not need to be addressed (Rafferty & Spencer [2016] FamCAFC 97; (2016) FLC 93-710 at [30]).
3. This ground of appeal fails.

Ground 12: The Court erred in giving determinative weight to the views of the Independent Children's Lawyer (ICL) and the family report writer, who both demonstrated a clear and unreasonable preference for the Respondent - even in circumstances where doing so directly compromised the best interests of the children.

1. It was the case that the primary judge substantially agreed with and adopted the submissions of the Independent Children's Lawyer. However, the primary judge clearly explained why they did so. This articulation included meticulous consideration of, and with reference to, evidence presented in the proceedings, including, but not limited to, that which was presented by the Independent Children's Lawyer to support their case.
2. That evidence included the expert evidence presented by Ms C which, as I have earlier indicated, was accepted by the primary judge as having been carefully considered and deserving of significant weight.
3. Moreover, as earlier indicated, the weight afforded to particular evidence is a matter that is quintessentially for the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
4. In this case, it was reasonably open for the primary judge to give significant weight to the evidence of Ms C and to assess the merits of the submissions by the Independent Children's Lawyer in the context of the totality of the evidence presented in the proceedings, including the evidence of Ms C which was, appropriately, referenced in the judgment in considerable detail.
5. This ground of appeal therefore fails.

Ground 13: The Court's allocation of sole parental responsibility to the Respondent is internally inconsistent with its specific finding that the Appellant should retain responsibility for Y's psychological and educational needs, despite those being the most complex parenting responsibilities in the matter.

1. There is no such inconsistency in the reasons of the primary judge. As explained in my consideration of Ground 4, the primary judge clearly explained why, leaving aside aspects of the exercise of parental responsibility in respect to the younger child, they allocated parental responsibility for major long-term decisions impacting the children, to the mother.
2. In respect to the younger child, the primary judge allocated parental responsibility to the father in respect to the following;
   • ·Firstly, making decisions regarding the child's psychological treatment.
     • · This includes arranging appointments, ensuring attendance, and covering the costs.
     • · This is subject to the father's obligation to communicate with the mother about decisions (unless in an emergency), consider her feedback, and inform her of the decision within seven days.
   • ·Secondly, making decisions regarding the child's tutoring.
     • · This is subject to the father informing the mother of any arrangements made, including the tutor's name and contact details, within seven days.
3. I have earlier set out the basis of the reasoning of the primary judge for allocating parental responsibility to the father in respect to those two matters. By way of summary that evidence was as follows:
   • ·The father had already been responsible for facilitating the child's engagement with a psychologist and paying for the sessions and, moreover, gave evidence that he was "prepared to continue to fully fund the ongoing tutoring" at [174].
   • ·Despite other instances of conflict between the parties, this arrangement had not resulted in significant conflict between the parties at [161].
   • ·Even though the father was found to have previously shown rigidity and undermining behaviour, the primary judge found that the father had the capacity to manage responsibility in respect to the child's psychological care at [165] -[166].
4. The primary judge explained that they gave sole decision-making for the younger's tutoring to the father because he had already been funding and organising the child's tutoring competently, which occurred at the father's home, and that the arrangement had been functioning smoothly; with the mother facilitating drop-offs when the younger child was in her care at [175].
5. There was no inconsistency in reasoning. The primary judge clearly explained that decision-making responsibility in respect to the younger child's psychological and educational support was allocated to the father to ensure continuity of care, and protect the child's emotional wellbeing; especially given his history of suicidal ideation and severe learning difficulties.
6. At the same time, as explained in addressing Ground 4, the primary judge sought to protect the mother from being exposed to concerning features of the father's personality traits and behaviour in respect to other aspects of the exercise of parental responsibility concerning both children.
7. For these reasons, this ground of appeal also fails.

1. As there is no merit in any of the grounds of appeal, the appeal will be dismissed.
2. The mother was self-represented and did not seek an order for costs. The Independent Children's Lawyer also indicated that they did not seek an order for costs.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland..