Chreste & Franco (No 2) [2026] FedCFamC1F 89 (18 February 2026)

1. Weekend time for X with the father be suspended during all periods of school holidays.
2. X spend special occasions as follows:

(a) For Christmas:

(i) In even years:

1. With the mother from 3.00pm Christmas Eve through to 3.00pm on Christmas Day and each alternate year thereafter.
2. With the father from 3.00pm Christmas Day until 3.00pm Boxing Day and each alternate year thereafter.

(ii) In odd years:

1. With the father from 3.00pm on Christmas Eve through to 3.00pm on Christmas Day and each alternate year thereafter.
2. With the mother from 3.00pm on Christmas Day until 3.00pm on Boxing Day and each alternate year thereafter.

(b) On X's Birthday:

(i) In even years:

1. With the mother from after school or 4.00pm on the day preceding the birthday until 1.00pm or before school on the birthday and each alternate year thereafter.
2. With the father from 1.00pm or after school on his birthday until before school or 10.00am on the following day and each alternate year thereafter.

(ii) In odd years:

1. With the father from after school or 4.00pm on the day preceding the birthday until before school or 1.00pm on the birthday and each alternate year thereafter.
2. With the mother from 1.00pm or after school on his birthday until before school or 10.00am on the following day and each alternate year thereafter.

(c) If Easter occurs in a separate period to the Term 1 school holidays:

(i) In even numbered years X will spend time with the mother from the conclusion of school on Easter Thursday until 6.00pm on Easter Saturday, and with the father from 6.00pm on Easter Saturday until the commencement of school on Easter Tuesday (or 9.00am if not a school day).

(ii) In odd numbered years X will spend time with the father from the conclusion of school on Easter Thursday until 6.00pm on Easter Saturday, and with the mother from 6.00pm on Easter Saturday until the commencement of school on Easter Tuesday (or 9.00am if not a school day).

(d) On the mother's birthday with the mother from after school or 4.00pm on the day before until the return to school on the day after or if not a school day 6.00pm.

(e) On the father's birthday with the father from after school or 4.00pm on the day before until the return to school on the day after or if not a school day 6.00pm.

(f) On Mother's Day with the mother from 4.00pm on the day prior until the commencement of school on the Monday.

(g) On Father's Day with the father from 4.00pm on the day prior until the commencement of school on the Monday.

(h) For such further time or variations of the above as agreed between the parents in writing from time to time.

1. Changeovers for X that do not occur at school are to take place at B Business C Street, Town D at the appointed time.
2. Within 30 days of the date of these orders the father is to make appointments, at his own expense, with X's psychologist, Ms E, and X's occupational therapist so as to obtain information from them about support and to follow such information and recommendations whilst X is in his care.
3. Within 30 days of the date of these orders the father make an appointment with an officer of F Family Services and undertake such education as recommended by them (or otherwise as suggested by the Independent Children's Lawyer) in order to better understand X's ASD diagnosis.
4. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the parents and X, the parents be restrained from:

(a) Directly or indirectly threatening, harassing, abusing or assaulting the other party or X;

(b) Denigrating the other party or members of the other parent's family to or in the presence of X;

(c) Entering onto the other party's place of residence unless expressly provided for in these Orders or as otherwise agreed in writing;

(d) Intentionally damaging any of X's belongings and from knowingly permitting a third party to do so;

(e) Presenting X to school in clothing other than the prescribed school uniform or any other attire prescribed by the school;

(f) Using any form of physical discipline or chastisement on X or allowing a third party to do so.

1. X is not to be left unsupervised in the care of the paternal grandparents or either of them and the father is to remain present at all times if X is spending time with the paternal grandparents whilst in the father's care.
2. The father is restrained from bringing X into contact with the child, G, and will use all reasonable endeavours to prevent any third party from brining X into contact with G while X is in his care.
3. These Orders act as an authority for both parties to receive any information from X's school that would ordinarily be provided to parents and attend any school events that parents would ordinarily be invited to attend.
4. These Orders act as an authority for both parents to be able to receive any/all information from (and engage with) any of X's treating medical or health care practitioners that would ordinarily be provided to parents, including X's NDIS providers.
5. The mother ensure the father's contact details are added to X's enrolment and as an emergency contact at any school X attends.
6. The mother ensure the father receives all necessary information regarding X's health, including but not limited to:

(a) A copy of X's NDIS plan;

(b) Names and contact details of X's medical and NDIS service providers and any changes to those providers;

(c) Any prescription medication for X including how and when it is to be administered;

(d) Any diagnosis and/or treatment regime for X;

(e) X's routine when in the mother's care; and

(f) Any sole decisions the mother makes in regard to X's health.

1. Each parent is to inform the other as soon as practicable if X is involved in a serious accident or suffers a serious injury or illness while in their care.
2. The parents are to communicate all issues in relation to X by SMS test message or as otherwise agreed and will keep each other up to date with their current email address and mobile phone numbers.

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).

1. Ms Chreste ("the mother") is the applicant for parenting orders in respect of the one child of the parties namely X born 2016 (aged 9 years) ("[X]"). The mother seeks orders whereby she have the sole responsibility for decision-making for X, that he live with her and that he spend no time and have no communication with the father.
2. Mr Franco ("the father") argues for orders that X move to live with him and that there be a moratorium of 120 days with the child spending no time with the mother. The implication of the father's argument is that he have sole parental responsibility for the child where it is conceded between the parties that there is no communicative or cooperative parenting relationship.
3. The Court has the benefit of an Independent Children's Lawyer ("ICL") who proposes that the mother have sole decision-making responsibility for X and that the child continue to live with her. The ICL argued at the start of the trial that X continue to spend time and communicate with the father, albeit, reduced from the current regime to each second weekend between Friday and Sunday together with one half of the school holidays and special days. By the time of final submissions the ICL was advocating a greater reduction in X's time with the father.

1. The mother is 47 years old. She is a healthcare professional by occupation. She has re-partnered with Mr H who works in transport. X is the mother's only child.
2. The father is 41 years of age. He is self-employed. He has remarried to Ms J who has two children of a previous relationship namely Mr K (aged 18 years) and L (aged 16 years). L primarily lives with the father and his wife, Ms J.
3. The mother lives in City M, Tasmania. The father lives in Town N, Tasmania. The parties live approximately 20 minutes apart.
4. The parties' relationship was brief. The father was imprisoned when X was born. Final separation of the parties occurred in 2017.
5. The father commenced family law proceedings in an application filed 31 March 2017 when the child was just an infant. Interim orders were made on 8 May 2017 for X to spend time with the father for two hours on three days each week.
6. Final parenting orders were made by consent on 31 October 2017 providing inter alia for X to live primarily with the mother and spend time with the father.
7. In 2018 a child, O, was born to the father and his then partner.
8. There have been ongoing issues in respect of child support payable by the father for X. On 19 November 2019 the father commenced proceedings in this Court seeking a Child Support Departure Order.
9. On 18 March 2022 the father brought contravention proceedings against the mother alleging 35 counts of contravention.
10. On 12 May 2022 final parenting consent orders were made by Judge Turnbull with orders for equal shared parental responsibility, X to live with the mother, and for X to spend weekend and holiday time with the father.
11. On 12 April 2023 the mother asserted that X disclosed physical and sexual abuse by a male foster child who was in the care of the paternal grandparents.
12. On 7 July 2023 the mother alleged that the father removed X from school in contravention of the extant orders and took X to his employment at P Company in further contravention of orders.
13. On 30 August 2023 the mother says that X disclosed an assault by a male foster child in the paternal grandparents' care and the mother made video recording of the disclosure.
14. On 4 January 2024 the mother asserted that X made a disclosure to her of the father hurting him and smacking him with further detailed disclosures on 25 January 2024 and 8 February 2024.
15. In February 2024 the mother pleaded guilty, without reasonable excuse, to one count of contravention. The balance of the counts were dismissed. A bond was imposed on the mother.
16. On 22 March 2024 the mother filed an Initiating Application seeking to discharge the 2022 orders, alleging unacceptable risk to X.
17. The mother asserted that the father ceased paying child support on 10 April 2024.
18. On 11 July 2024 there was an interim hearing before Senior Judicial Registrar Kaur with orders being made restraining the father from bringing the child into contact with or to the address of the paternal grandparents and otherwise the parties' final orders remain in full force and effect.
19. On 15th of August 2024 a Child Impact Report was released.
20. On 16 October 2024 there was an interim hearing before Senior Judicial Registrar Flintoff.
21. On 21 October 2024 Senior Judicial Registrar Flintoff gave the mother leave to proceed on an application with reference to s 65DAAA of the Family Law Act 1975 (Cth) ("the Act") and made orders restraining the father from taking X to his workplace and from using physical discipline on X.
22. On 19 December 2024 the mother stopped X's time with the father due to alleged concerns about the father's abuse of X.
23. On 13 January 2025 the father filed an Application a Proceeding seeking recommencement of time.
24. On 10 February 2025 the matter was transferred to Division 1 of this Court and was listed for hearing on 27 of March 2025.
25. On 8 May 2025 at an interim hearing Senior Judicial Registrar Conlan fount that no new alleged events had occurred since the hearing before Senior Judicial Registrar Flintoff and the orders remained in full force and effect.
26. On 16 May 2025 X recommenced his time with the father.
27. On 24 June 2025 Single Expert interviews were held.
28. During 2025 X has made disclosures to both his school and to Dr Q, the Court Child Expert, alleging physical abuse from father.

1. The mother raises an issue of unacceptable risk for X in the care of the father. She argues particulars of risk of physical assault, together with more general claims of neglect.
2. The mother argues that the Court should give substantial weight to what she says are the expressed views of X against having a relationship with the father.
3. The mother argued in her Case Summary that any relationship of time or communication between X and the father will negatively impact her own emotional and psychological welfare, with the inference that such would in turn, negatively impact her own parenting capacity. It eventuated that the mother did not prosecute this argument at the trial.
4. The father argues that the mother habitually ignores Court orders for time between he and X in that she acts unilaterally and in contravention of those orders. He argues the mother to have entered into a course of alienating X from him.
5. There are mutual issues of the parties' capacity to attend to X's physical and emotional welfare.
6. X suffers a diagnosis of autism spectrum disorder and there is an issue as to the father's acknowledgement, willingness and capacity to engage with X's health care professionals and provide appropriate support for X.

1. These are parenting proceedings and the Court is mandated at s 60CA of the Act in making parenting orders to have regard to X's best interests as its paramount consideration.
2. In determining those best interests, the Court is to reference the probative evidence and the parties' proposals to the mandatory considerations at s 60CC(2). Those considerations include arrangements which would promote the safety of the child with reference to family violence, abuse, neglect or other harm of either the child or person having care of the child.
3. The Court is to consider any views expressed by the child but within the context of the voluntariness, rationality and maturity of those views.
4. Reference is made to the capacity of the parents to attend to the child's physical, developmental, psychological and emotional needs.
5. The Court is to consider the benefit to the child of being able to have a relationship with his parents and other significant persons.
6. Section 60CC(2A) mandates the Court to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any relevant family violence orders.
7. In circumstances here where each of the parents acknowledge a mutual suspicious, critical, non-communicative, and non-cooperative parenting relationship, the Court is to consider issues of parental responsibility which is defined at s 61B of the Act as being all the duties, powers, responsibilities and authority which by law parents have in relation to children. In practical terms this relates to decision-making for children in respect of long-term important issues as opposed to the more mundane day-to-day decisions habitually made by parents for their children.
8. The Court may make an order for joint decision-making responsibility which would require consultation between the parents in respect of such decisions and for them to make a genuine effort to come to a joint decision. Alternatively, the Court may confer parental responsibility on one or other of the parents.
9. A primary argument mounted by the mother is one of unacceptable risk for X in the care of the father. There has been recent judicial interest and innovation in respect of unacceptable risk and prominently in the decision of the Full Court in Isles and Nelissen[1] where the Court considered the historical authorities in respect of the standard of proof for unacceptable risk of harm. That matter involved alleged sexual abuse of a child by the father but where the principle stands in respect of any form of risk. Where the task of trial judges is a fact-finding one with the standard of proof being one of on the balance of probabilities pursuant to the Evidence Act 1995 (Cth) at s 140, the Full Court in Isles found that the notion of unacceptable risk requires a predictive or prospective consideration based on possibilities rather than on the balance of probabilities. Essentially, the Court is to determine on the evidence and the facts whether there is an indication of present or future risk and whether such risk may be mitigated by tools available to the Court such to essentially turn an unacceptable risk into an "acceptable" risk. Consequently, it may be, therefore, that a Court is unable to make a positive finding of the occurrence of abuse but still find an unacceptable risk on the evidence as a possibility.
10. Whilst the task for trial judges in parenting matters is fundamentally based on findings as to the best interests of a child, it remains that a party making an assertion of fact carries an onus to prove that fact on the balance of probabilities. That is, it is not for a party standing accused to then carry an onus to prove the negative.
11. Trial judges have certain advantages in the fact-finding exercise in being able to see and hear parties and their witnesses give evidence and be cross examined. The Court has the opportunity to see the demeanour of witnesses giving evidence, together with hesitations and body language, where issues of credit are commonly prominent in the decision-making task of the Court. Importantly, however, the Courts must be alert to the emotional and complex subject matter of family law parenting proceedings, together with parties and witnesses being unfamiliar with the Court environment.

1. The mother argues that the father presents as an unacceptable risk for X in any direct or communicative relationship. She says that X has been subjected to sexual assault by another older child whilst in the care of the father. She says that X complains of frequent physical abuse by the father. She says that the father is neglectful of his responsibilities to X and often delegates the same. She says that the father does not acknowledge or address X's autism diagnosis. For these reasons the mother says that the father's capacity to care for X is compromised.
2. Secondly, the mother argues that X consistently expresses a wish to have no relationship with the father and that the Court should give substantial weight to X's views.

1. The father says that X has endured litigation in these courts for the nine years since his birth. He says that the mother is unable or unwilling to comply with Court orders which permit X a relationship with him and, as such, the only opportunity for X to have a beneficial relationship with both of his parents is for a change of primary care for X from the mother to the father. He argues a case of alienation by the mother of X from the father.
2. The father denies the mother's allegations as to unacceptable risk for X and as to father's capacity.
3. The father says that he can provide X with a stable family unit, including his wife Ms J, and a continuing relationship with her children Mr K (aged 18 years) and L (aged 16 years).
4. The implication permeating the father's case is that the mother acts out of self-interest and/or personal agenda in prosecuting a case for cessation of X's relationship with the father.

1. In her Case Summary document, the ICL identifies the primary issues between the parties and confronting the Court, as set out above.
2. The ICL emphasises the long history of conflict, hostility and litigation between the parents.
3. The ICL recognises X's special needs by reason of his autism spectrum disorder ("ASD") diagnosis and the relative willingness and ability of the parents to address and support the child.
4. The ICL positively references the evidence as to X's overtly good relationship with each of his parents and argues for a maintenance of that relationship, albeit with X remaining in the primary care of the mother. The ICL places weight on the need to protect X from the climate of conflict manifested by his parents and hence advocates a substantial reduction in X's time with the father.
5. The ICL notes that X identifies as aboriginal through his maternal family, but, and correctly, that this cultural issue has not been agitated in the current proceedings with no evidence to indicate that either party does or intends to involve the child in aboriginal culture.

1. The mother presented as a voluble and expansive witness. She was at all times keen to both emphasise her own case and to gratuitously criticise the father. The mother's responses in cross-examination were consistently deflected towards criticism of the father and often unresponsive to the question.
2. I viewed the mother to be highly rigid in her views which were frequently both subjective and made out of self-interest with a rejection of any objective or independent evidence that might sit contrary to her views. For example, when it was put to her in cross-examination that the observations of the Court Child Expert psychologist of X with the father showed a close, mutually comfortable and supportive, friendly and happy relationship between X and the father, the mother's response was simply "Well that's her view". Such repetitive and clichéd responses by the mother were not uncommon.
3. Whilst consistent and assertive in her evidence, I did not always view the mother as a witness of the truth, but rather using her time in the witness box as an exercise in both self-justification and for criticism of the father.
4. Consistent with the mother's frequent breaching or ignoring of the Family Court orders, the mother was inflexible, dogmatic, and uncompromising in her evidence and unyielding when faced with objective or third-party evidence contrary to her own agenda.
5. The mother relied on her trial affidavit affirmed 4 November 2025. That document is similarly without positive comment of the father personally or in any aspect of his parenting of or relationship with X.
6. The mother's affidavit emphasises a history of child support disputes between the parties and noting no current receipt of child support from the father for X.
7. The mother's affidavit at [36] notes that in April 2023 X returned to the mother from time with the father complaining of physical and sexual assault by a child in the foster care of the paternal grandparents.
8. The mother variously references the child complaining of physical assault at the hands of his father and others, including in the paternal grandparents' home.
9. The mother's evidence is replete with assertions of X's upset and distress at school, which she attributes directly to his relationship with the father.
10. The mother, in her affidavit, asserts non-compliance with Court orders by the father as for instance at [81] where she says that the father denied her communication with X during summer holiday periods. She makes this complaint whilst apparently attempting justification for her own frequent and blatant disdain for Court orders.
11. The mother complains as to the treatment of the child by the father's wife, Ms J, based on X's complaints including that he is force-fed.
12. The mother says that X's demeanour and behaviour notably improve during times that she has stopped contact between X and the father.
13. The mother's affidavit makes frequent references to the father's incapacity to attend to X's hygiene.
14. The mother at [99] complains of damage to X's lunchbox and clothing incurred whilst in the care of the father.
15. At [107] and otherwise in her affidavit, the mother complains that X is taken by his father to his workplace and that the child is distressed by what he witnesses.
16. The mother's affidavit generally and frequently references X's distress at the prospects of spending time with his father and his refusal to go to his father.
17. The mother deposes as to having consulted with a psychologist, "on and off since 2016".
18. At [313] the mother deposes that X told her that he was bribed by the father to make the positive comments that he did to Dr Q about the father and apparently to show the positive demeanour observed by Dr Q.
19. The mother annexes at "annexure A" to her trial affidavit a letter from a general practitioner, Dr R, dated 10 December 2024 which is a letter addressed to the Court commencing "Dear Judge" and urging the Court to make an order for supervised time for X with the father.
20. Similarly, the mother annexes at "annexure B" a letter dated 12 December 2024 from Ms E, a registered psychologist stating in its final sentence:

...As such, it is advised that unsupervised access be discontinued until there has been an adequate investigation which results in the assurance that [X] is unequivocally emotionally and physically safe in the care of the father.

1. Counsel for the father, quite properly in my view, urged caution upon the Court in attributing weight to these unusual letters of "advice to the Court". Notably, the mother again unilaterally, stopped X's time with the father on 19 December 2024 and until a further Court order in May 2025. Further, the mother had brought an unsuccessful application before a Senior Judicial Registrar in this Court as recently as 16 October 2024, where she had sought to suspend X's time with the father, but where the Court rejected that application. Counsel for the father urges a contextual consideration of this evidence, but with the plausible conclusion that the mother had intended at all times to breach the order of 16 October 2024 and had obtained these letters in an evidence gathering exercise toward some justification of her further unilateral cessation of the X's time with the father on 19 December 2024.

1. The father presented as an unsophisticated but thoughtful witness. He was responsive in cross-examination. Unlike the mother, the father was able to make admissions against interest including being complimentary and positive in respect of aspects of the mother's parenting. His responses in cross-examination gave the impression of being genuine and considered. Again, unlike the mother, there was no indication of embellishment, exaggeration, or being selective in his responses.
2. The father gave blanket denials of the allegations of physical abuse of X made against him by the mother. He gave thoughtful but informed responses in respect of the allegation of X being sexually abused whilst in the care of his parents.
3. Notably in his evidence the father was so candid and genuine as to concede that his application for primary care of X was based solely on the mother's frequent unilateral cessation of time between he and X, often for months on end, and in breach of court orders. To this end, he admitted that he would be content to have a relationship of time-with for he and X should that time be consistent and free of what he says are continued spurious false allegations aimed at him.
4. The father said that he was able and willing to execute direct changeovers with the mother and on his part such changeovers would be free of conflict, abuse, or denigration.
5. I observed the father to be a calm and considered individual with a keen devotion to his son and as evidenced by the application that he pursues in this Court and its rationale. The father was calm of demeanour and temper in the witness box and whilst under vigorous and intrusive cross-examination and contrary to the picture painted of him by the mother being a man prone to gratuitous violence.
6. The father relied on his affidavit affirmed 3 November 2025 which provides a narrative of his relationship with X including its interruptions by reason of the mother's cessation of contact.
7. At [63] of his affidavit the father says that X calls him "dad" when in his company and apparently contrary to him being addressed as "[Mr Franco]" when in the care of the mother and as observed in a police video interview of the child made in 2023.
8. The father indicated only a fundamental knowledge and understanding of X's autism and epilepsy but where he has historically delegated those matters to the mother.
9. I observed the father to be a good and honest witness and without any indication from his evidence that he presents as a risk of physical abuse to X as argued by the mother.

1. Mr H is the mother's partner. He provided an affidavit affirmed 4 November 2025. He gave evidence and was briefly cross-examined.
2. Mr H is a hard-working transport worker who has been in a relationship with the mother for four years. He deposed to a good and close relationship with X. Mr H corroborates the mother's evidence as to X returning to their home after time with the father and complaining of being assaulted by the father. Mr H gave such evidence without noticeable emotion. He seemed oblivious to the anomaly in the father having spent considerable monies on pursuing an application to this Court whilst, on the evidence of Mr H and the mother, X consistently (including recently) claiming to have been punched and otherwise assaulted by the father.
3. Mr H was understandably supportive of his partner's case. He gave his evidence, however, in a detached and emotionless way being somewhat surprising where he says at [4] "I value and respect [X] as one of my own children...", but where he seems unresponsive, both actually and emotionally, to the serious allegations made by X as to having been punched consistently whenever in the care of his father.

1. Ms J is the current wife of the father. She has two children from a previous relationship being Mr K (aged 19 years) and L (aged 16 years). L lives in the family unit full-time and works with the father at his workplace. Mr K is a student and lives between his father and his mother. Ms J is employed in one of the father's businesses in City S. She works Tuesdays to Saturdays.
2. Like her husband, Ms K presented as relatively unsophisticated but honest in her evidence. She gave evidence consistent with her affidavit. She denied the allegations made against her by the mother of her hitting X or denigrating the mother to X.

1. Ms T is 21 years of age. She provided an affidavit in support of the mother affirmed 11 November 2025. Whilst carrying the same surname as the father, there is no indication of a biological relationship. She was previously a foster child of the father's parents.
2. The admissible part of Ms T's affidavit relates to three separate allegations against the father and his wife Ms J in respect of Ms T herself and being effectively particulars of harassment and/or personal abuse. The probity of such evidence in respect of X's best interests is therefore tenuous.
3. Ms T gave evidence and was cross-examined. She presented as a timid and perhaps reluctant witness. She did, however, adopt her affidavit which was highly particularised as to her three separate allegations as to time, date and place. She maintained her allegations in cross-examination.
4. Notably, the father was re-examined generally after the evidence of Ms T. Where Ms T's affidavit had been affirmed only on the second day of the trial. This was an entirely proper process and where the father gave denials as to the three allegations made against he and his wife (also supported by his wife in her evidence) but also gave alibis in respect of the allegations of 26 December 2024 and 18 September 2025. Specifically, he says that he and his family were in Hobart celebrating the Christmas season on 26 December 2024 and could not therefore have been at a supermarket in Town N (several hundred km away) at 11.00 am on that morning. Secondly, he says that he was otherwise employed as a contractor on 18 September 2025 when it is alleged that he harassed Ms T at her home.
5. Essentially, and as mentioned above, little probity rests with the evidence of Ms T. Notably, however, that evidence was given against the evidence and alibis of the father leaving the Court with a quandary of word-on-word evidence of the witnesses.

1. The mother in her case relies to a degree on a disclosure allegedly made by the child in or about April 2023 (when seven years of age) as to being sexually assaulted by a then 12-year-old boy, who was a foster child of the paternal grandparents. A police video interview was conducted with X in May 2023 by a male police officer and a female observer. The video occupies some 39 minutes.
2. The video records X being brought to the interview by his mother and a short separation period between the mother and X in the presence of the police officers.
3. Immediately upon the mother exiting the room, and seemingly before any attempted questions by the police officer or any comforting of X, X is heard to volunteer "I'm going to tell you what ['the father"] has done".
4. Throughout the interview X relates primarily to have been physically hit by the 12-year-old male foster child and apparently over an issue between the two involving a gaming console. X does relate, however, at some stage to having his penis touched whilst urinating in the toilet and during the course of these events generally.
5. Notably, at all times, X uses the word "penis" and is heard not to use any synonym commonly used by younger children.
6. Understandably at seven years of age, X often appeared distracted during the interview and not volunteering of evidence other than the initial revelation set out above. Consequently, he was repeatedly asked by the police officer to reference the subject matter such as "Tell me where you were when [the 12-year-old male foster child] was hurting you?"
7. At one stage X revealed that the "hurting" has happened at both his grandmother's house and his father's house.
8. At times X was unresponsive and even when the questioning by the police officer became leading such as:

Police officer: what happened when [the 12-year-old male foster child] touched your penis?

[X]: I don't know.

1. Whilst I have some sympathy for the interviewing police officer where X was just seven years of age, suffers autism, and was obviously distracted during the course of the interview, I find little probative assistance from the interview where any disclosures by X were extracted only with leading questions and often repeated leading questions.

1. Mr U is the principal of V School attended by X. Mr U gave an affidavit on behalf of the ICL sworn 5 November 2025. He attended for brief cross-examination.
2. Mr U disclosed that the information in his affidavit was from personal experience, speaking with the relevant teachers and staff, and from the school file on X.
3. Mr U confirmed to a degree the evidence of the mother that X has on occasions attended school having wet his pants. Further, confirmation was given that X is at times distressed and reluctant to transit to his father for changeover.
4. Specifically, Mr U referenced X's distress and reluctance in May 2025. His evidence in cross-examination elaborated on his affidavit evidence. He agreed that this was the first occasion for the child to see his father after five months of being denied time-with by the mother's cessation of time on 19 December 2024. Mr U said that the child's distress caused the child to go to his office. Mr U contacted the father who attended shortly thereafter at the school. Mr U stated that X's distress was alleviated immediately upon the father attending whereupon he quickly calmed and left easily with the father.
5. Mr U confirmed that X makes disclosures of being punched or hit/slapped by his father. Mr U confirmed the school had not independently viewed any injuries or similar to X.
6. Mr U elaborated on X's special needs and the responses given by the school. He confirmed that there had been no recent instances of X wetting his pants.
7. At [35] of his affidavit Mr U stated that the school is concerned being placed in a situation where they are confronted with X's reluctance and distress and put in a position where they must decide whether to send X with the father or have the mother collect him. Mr U was of the view that X's best interests are served by changeovers occurring away from the school. He stated, however, that X has not been exposed to direct parental conflict at the school.

1. Dr Q is a clinical psychologist who prepared a single expert report in this matter dated 22 September 2025. Dr Q read the comprehensive material prepared in this matter and updated on material prior to giving evidence on day six of the trial. She attended court and was extensively cross-examined.
2. Dr Q interviewed the parents and made observations of each parent with X between June and August 2025. At [106] Dr Q recommends that should the Court deem it appropriate for X to continue to have unsupervised contact with his father then "it is important that supports are put in place to increase adjustment to this arrangement and create greater consistency and safety for [X]". She emphasises engagement by the father with X's professional supports and involvement in engagement by the father and his wife with neuro divergent support and training.
3. At [107] Dr Q makes further general recommendations being:
   • Predictable family routines where possible across households.
   • Appropriate levels for monitoring and supervision in both homes for [X] according to his needs.
   • Possible avoidance of mid-week transitions between homes where children with ASD have been shown to have greater difficulties with mid-week transitions and it is found to be more disruptive to their coping and regulation.
   • Consideration of the impact of transitions on school days for [X]. ...
   • Consideration of a trial period of day visits only for [X] to see if it assists with his comfort and adjustment.
   • The inclusion of ASD focused family counselling for [X] and his parents (separately).
   • Consideration of supervised access for the paternal grandparents and [X].
   • Consideration of the role that [the father] and [the mother's] respective partners could play with regard to change overs and facilitation of transitions between care environments.
   • That the planned 6 weeks supervised visits for the [father] and [X] still progress so that there is further evidence of the relationship between them and [X's] comfort levels in his father's care.
4. Dr Q interviewed the mother who gave a history consistent with her affidavit material.
5. At [7] the mother reports experiencing behavioural issues with X which relate to X's time with the father and further that the father has placed X at risk of being sexually harmed by a child in the home of the paternal grandparents.
6. At [11] the mother confirmed that she has unilaterally ceased time between X and the father due to X returning to her in a distressed state and complaining that he has been "smacked" by the father.
7. At [12] the mother complains that X returns from the father "dysregulated and aggressive".
8. The mother confirms her own poor personal relationship with the father and a lack of communication between them.
9. Contrary to the case she brings to this Court, at [21] the mother reports to Dr Q that:

she is not seeking a custody arrangement and that she feels that [X] should be in her care. [The mother] stated that she feels that access should be supervised given all the allegations and have taken place.

1. At [24] Dr Q observes X to have interacted well with his mother but being dysregulated at times during the observation.
2. At [26] Dr Q reports:

[The mother] encouraged [X] to try and stay a little longer. [X] then said, "can I tell you something?" He then stated, "I don't want to stay at [the father's] anymore".

1. Dr Q interviewed the father. He too gave a history consistent with his affidavit material. He conveyed a simplistic form of relationship with X at [29] but agreed that X struggled with transitions.
2. At [30] the father confirmed his acceptance of X's diagnosis of ASD but stated that he treats X no differently at home than other members of the household albeit relating some of X's difficult traits.
3. Where the father prosecutes a case before this Court of primary care for X with him and a moratorium of four months for X spending time with the mother, he makes the following comments [33] and [34]:
   1. [The father] stated that he would like to see more of [X] if he could. He said that he works a lot and that he would like to reduce this and have [X] in his care more often. When asked about what he thought [X's] wishes were, [the father] stated he was not sure and that he did not talk to [X] about anything related to his care. The father stated that [X] has sometimes talked about his time in both of his houses and that he tells him he likes to see him and his mother.
   2. [The father] stated that he does not have any concerns about the care that [the mother] provides for [X] and that he knows that she takes very good care of him. [The father] stated that his only concern is that he felt [the mother's] household was a "dad-hated place". He said that he feels this way because of some of the things that [X] says that he has read in affidavits. [The father] stated he and his family do not talk about [the mother] in their home.
4. The father confirmed, like the mother, that there was a noncommunicative relationship between the parents. He also confirmed historical high conflict between the parents.
5. In respect of an issue raised by the mother, the father says at [42]:

[The father] stated that [X] receives NDIS support but that he is (sic) never really talked much about the services he receives and that he has not had any contact with the professionals that [X] sees. [The father] stated that if he knew who the supports were, he would be happy to contact them.

1. Further, and where the father brings a case here that he be the primary parent, he says at [45]:

[The father] stated that "[X] is just [X]. I just want to treat him like a normal young boy". [The father] said that he and [the mother] just need to make transitions for [X] more relaxed and normal and then things will be able to settle. [The father] stated that it may be good to have a 50/50 care arrangement as [X] just needs to live a normal life. He stated that he needs to not worry about anything else.

1. Dr Q observed X with the father. They were seen to sit close to one another and were talking and laughing prior to the formal observation.
2. Relevantly, Dr Q observes at [49] as follows:

[X] was invited to talk about what had been happening for the day and what was planned for the weekend. [The father] sat back and just let [X] talk and [X] presented as relaxed and cheerful. [X] spoke about his hopes to visit some computer game stores over the weekend and look at new games. [X] was observed to be quite playful with his father and would regularly joke with him.

... [the child] was observed at times to get up, walk around where his father was sitting and put his arms around his father's shoulders and hug him. [The father] was responsive to this and would reach up and hold [the child's] arm.

[X] was happy to leave the conversation and would often ask his dad questions like "What do you think dad? Should we do that this weekend?". During the course of the observation there was no distress observed in [X] and he appeared comfortable in the presence of his father.

1. Dr Q conducted a PAI Assessment on each of the parents. The mother's profile was within normal limits indicating no significant areas of challenge or distress. She denied any major mental illness. She was described as seeing herself as a generally positive and caring person but as one having discomfort with conflict in the past and may have struggled to assert herself leaving her prone to heightened emotions. At [60] and [61] Dr Q concludes in respect of the mother's assessment:
   1. In summary, [the mother] presented as personable and friendly. The results of interview and the PAI assessment do not indicate any signs of mental illness, although there was a tendency for [the mother] to minimise symptoms in her responses. She denies any history of mental illness or disorder, but there are no records to verify this.
   2. [The mother] presented as highly organised, routine and focused on her goals. She acknowledges the difficulty of the past few years, and it is likely that that she has experienced periods of anxiety and low mood in relation to conflict with [the father]. [The mother] does demonstrate some challenges with the regulation of her emotions when she is stressed.
2. Dr Q describes the father as being calm and laid-back during interviews. The Father's PAI Assessment results were made difficult in their interpretation due to "very high levels of defensiveness and minimisation" with his response profile not being entirely consistent with self-reports in interview and file information.
3. At [65] the father was assessed as having a high level of confidence but finding it difficult to understand the feelings and positions of others.
4. At [66] Dr Q summarises at the father's assessment thus:

In summary, the assessment material is difficult to interpret due to validity issues which are the result of high defensiveness. This said, [the father] does not appear to be suffering from any clinical syndromes or disorders such as anxiety or depression. He has personality traits that indicate that is more detached in his emotions and may find it hard to sympathise with others, particularly if he is in conflict with them. He is generally a confident person and may find it difficult to accept shortcomings in his own behaviour.

1. In respect of a prime issue for this Court, Dr Q comments at [76]:

In relation to [X's] physical safety, [X] has previously made disclosures to several different sources regarding physical discipline and smacking in his father's home. [The father] strongly denies this. Police investigations concluded that [X] certainly prefers his mother's home, but they found that there was insufficient evidence for physical abuse in the father's home. It is hard to pinpoint the nature of these disclosures given [X's] communication difficulties; however, their presence is a clear indication of distress and feelings of being unsafe.

1. At [82] Dr Q notes that X was reluctant to be interviewed without his mother but at one stage, presumably in the presence of the mother, indicated spontaneously that he wanted to live with his mother. Similarly, he indicated that he did not want to live with his father and did not want to see him later that particular day.
2. Further, and in respect of a primary issue of unacceptable risk for X in the father's care, Dr Q comments at [85]:

[X's] disclosures of being harmed by his father while in his father's household are of concern and clearly a contentious matter in this case. Given [X's] communication difficulties and [the father's] denial of all the allegations, it is difficult to determine what [X] has experienced in his father's house. This said, there is evidence to suggest that [X] feels unsafe at times. It is difficult to determine with any certainty whether or not his fear and distress are in relation to discipline in his father's home, or whether it is a consequence of [X's] awareness of the high conflict between his parents and the inconsistency of the care arrangement for [X] across both homes. [X's] interactions with his father during this assessment did not indicate feelings of discomfort or fear from [X], and it is likely that he would find it difficult to mask such feelings if they were present.

1. The Dr Q notes and comments on the child's diagnoses. At [88] she indicates the file material showing X has traits of Pathological Demand Avoidance ("PDA").
2. At [94] Dr Q opines that should a relationship be safe and consistent then there are clear benefits to X being able to establish connections with both of his parents and families.
3. Throughout her report and as evidenced at [96] Dr Q emphasises that children with ASD are very sensitive to conflict and may not have the necessary skills to manage or regulate in the presence of conflict, particularly when it exists in their care environments.
4. Also, relevantly to the father's case, at [103] Dr Q opines that it is very evident that X is aware of his mother's feelings towards his father with collateral evidence to suggest that he is aware that his mother is upset when he is in his father's care. Dr Q suggested this would be a difficult concept for X to navigate and one which would continue to impact on his security and safety whilst having contact with his father.
5. Dr Q gave evidence and was cross-examined by counsel for the ICL, the mother and the father. She essentially maintained her views and recommendations set out in her report.
6. It was clear from Dr Q's evidence that she saw the conflict between the parents as a major contributor to the child's anxieties and perhaps as a rationale of his reluctance to go to his father. Dr Q did not, however, rule out some validity to X's claims of being physically disciplined in the father's care but agreed that his observed demeanour in the company of the father sat contrary to the allegations made by the mother and her partner, Mr H, that X complained on each and every occasion on return from the father of being assaulted by the father including in the visits immediately prior to the commencement of this trial. As such, I gleaned from Dr Q's evidence that she placed her highest concern on the issue of conflict between the parents.
7. Dr Q agreed with counsel for the mother that the father's failure to actively engage with X's health providers would cause the mother anxiety and in her role as X's primary carer where she is, on the evidence, quite clearly a parent dedicated to attending to X's diagnoses and their ramifications.
8. Where the father seeks orders from this Court that he become the primary carer for X with a moratorium of four months' contact for the child with the mother, Dr Q agreed with counsel for the mother that a child such as this one suffering his diagnoses would thrive on routine and, conversely, would suffer a "catastrophic" negative impact by being removed from his primary carer in the terms sought by the father.
9. During extensive cross-examination by counsel for the father, Dr Q agreed that aspects of the mother's behaviour might be seen as consistent with her being on a course of alienation of X from the father. Notably, Dr Q was taken to the chronology set out above where mother has on a number of occasions acted unilaterally to cease contact for X with the father and has done so against a background of her bringing unsuccessful interim applications to this Court to stop or suspend X's time with the father. In this respect Dr Q was emphatic that the mother should accept any findings of this Court made contrary to her firm belief that X has been the subject assault or, at least, physical corporal punishment in the father's care in order to dilute the conflict between the parents that is obviously so negatively impacting X.

1. Ms W is a social worker at V School. She has assisted X since Term 1 2025 with consultations each two or four weeks.
2. Ms W gave an affidavit sworn 11 December 2025 and was not required for cross-examination.
3. The content of Ms W's affidavit is essentially unremarkable where she relates complaints made by the child of being assaulted by his father similar to those made by the mother.
4. Ms W says that she has met on occasion with the mother but has never met the father.
5. Relevantly, however, Ms W deposes at [17]:

I have seen [X] once in the last two weeks and upon asking him how he was he gave me a thumbs up and said, "really good actually". Upon speaking with [the mother], she advised that [X] had been at his dad's before I spoke with him. This was surprising to me as [X] had not usually presented in this way after spending time with his dad.

1. Ms Y is a Child Safety Practice Leader in Tasmania. She did not provide an affidavit and attended court under subpoena. Given the limitations on her giving evidence as to notifiers, there was little, if any, probity in Ms Y' evidence. She did confirm, however, that the paternal grandparents remain under investigation in respect of the alleged abuse matters concerning foster children in their home.

1. It is common ground and sadly blindingly obvious that these parents have no personal, co-parenting or communicative relationship. X has never enjoyed the benefit of any cooperative parenting relationship. Rather, litigation has been a constant for him throughout his nine years. The evidence in this matter satisfies me that there are no prospects for any improvement in cooperation, communication or respect between his parents. To the contrary, suspicion, blame, accusation, and conflict in every aspect of X's parenting remains unabated.
2. The parents are, from my observations of them in the witness box, of diametrically opposite personalities. The mother is voluble and assertive. She is rigid of thought. She is disdainful and contemptuous of any opinion contrary to her own and including the findings of courts which do not agree with her views. She is active and combative in her litigation leaving me with the finding, on the balance of probabilities, that she will be unlikely to accept any findings of this Court in respect of X that do not sit with her entrenched views and opinions.
3. The father is passive in the extreme. He is firm but not combative. He, unlike the mother, was able to be objectively positive and even congratulatory of aspects of the mother's parenting. His passivity, however, extends to effective delegation of both parental responsibility and primary care to the mother. He volunteered in the witness box that he would be content with an ongoing time-with relationship with X should it be consistent. He has not seen the need to actively engage with X's health care professionals being content to leave those issues to the mother who discharges those responsibilities capably.
4. I do not find X to be at an unacceptable risk of physical harm in the care of the father. In reaching this conclusion, I do not find, on the balance of probabilities, that X has been assaulted consistently as he claims to the mother and others. There are no observations or medical evidence of injury or bruising to X consistent with his revelations. His claims of assault by the father and contemporaneous statements that he does not want to go to the father sit distinctly uncomfortably with the observations made by Dr Q of X and the father together at the interviews for her assessment. Similar observations were made by the school principal when X quickly and easily calmed with the father in the principal's office after many months of no time-with and when X was overtly initially resistant of going with the father. Similarly, the school social worker, Ms W, notes X being positive and keen in respect of recent visits to his father. Further, the evidence of the mother and her partner, Mr H, do not have the ring of truth in respect of X's asserted disclosures to them of being assaulted on "each and every" return from visits to his father including those immediately prior to this Court case. I find some merit in the submission of counsel for the father that it is highly improbable that a litigant (the father) should spend in excess of $160,000 (disclosed on his costs notice) to prosecute a parenting case where he habitually assaults the relevant child including on visits up to the commencement of the trial.
5. Consequently, therefore, where I find, on the balance of probabilities, that no assaults have occurred on X in the terms alleged by the mother but where I accept that X is frequently vocal in not wishing to transit to the father (as evidenced by the school principal), then I accept Dr Q's alternative hypothesis being X is so enmeshed in the parental conflict that rejection of his father simply provides him with respite from such conflict. That is, where his primary attachment is to his mother then it is easy for him to make statements to his mother which will not oblige him to go to his father. Such an emotional strategy by this child is also explained by and compounded by his diagnosis of Autism Spectrum Disorder.
6. Counsel for the father vigorously argues that the mother has positively and deliberately set out on a course of alienating X from the father. Should this be the case then this in itself is a form of abuse and, should it continue, then it would present as an unacceptable risk to the child's emotional welfare. Nevertheless, the various observations of X being comfortable with his father are counter-suggestive to, at least, a successful alienation by the mother. Where litigation has continued with the same themes now for some nine years then it is unlikely that the mother's motive is one of positive and deliberate alienation of X from the father.
7. It follows, therefore, the focus falls on the mother's attitude or intent absent a finding of alienation and where I find on the balance of probabilities that she is likely genuine but mistaken in her belief that X has been assaulted in the care of the father. The mother conceded in the witness box that she had not considered the possibility that X may tell her what he thinks she would like to hear so as to avoid the conflict involved in transitioning to his father. The mother's rigidity in these views fits with her uncompromising, entitled, and combative personality. It also fits her views that she is a superior parent to the father and where the evidence suggests a high degree of vigilance and suspicion on her part compounded by an obvious personal dislike of the father.
8. Given the above, I place no weight on X's frequent statements that he wants no time with the father. Again, independent observations suggest a comfortable and interactive relationship between X and the father.
9. More generally, I find the mother to be a keen, skilful and dedicated parent. She has competently accepted and discharged the responsibilities of dealing with X's diagnosis. Her only fault in my view is her inability to value the father as a meaningful adult in X's life.
10. The father's parenting style and ambitions are different than those of the mother. This does not, however, designated him as an incapable parent. Rather, he has been prepared to delegate to the mother the role that she craves. This does not make him a lesser parent. It makes him a different parent. Generally, I accept the submissions of counsel for the father that there is no empirical evidence to ground the plethora of criticisms made by the mother as to the father's capacity.
11. In final submissions counsel for the mother conceded that she no longer prosecutes a case that any direct relationship between X and the father would have a negative impact on her own parenting capacity.
12. It is proper that I deal briefly with an issue that, in my view, gained disproportionate attention in this trial. The mother adduced evidence from Ms T who alleges that the father stalks and or harasses her. Firstly, the relevance of such to X's best interest is in my view tenuous if any. Nevertheless, there arose a credit issue between the father and Ms T as to her allegations where the father provided alibis in respect of the particulars alleged by Ms T. Suffice to say that I am satisfied, on the balance of probabilities, as to the father's alibis where he has provided various documentary corroboration. If necessary, therefore, I prefer the evidence of the father over that of Ms T. A question remains, therefore, as to why the mother should adduce such evidence?

1. It is trite to observe that I am not bound simply by choosing between the proposals for parenting orders put by each of the parties and the ICL. It is, however, informative and helpful to consider each of those three proposals.
2. The father maintains his position for orders changing primary care, and presumably parental responsibility, from the mother to him. His logic is obvious and understandable. He says that this is the only way for X to have a future relationship with both parents. He says that the past is the best indicator of the future in that the mother will inevitably, if only by her own admissions in court, continue to act unilaterally to stop X's time with him and to breach any court orders if they do not fit her agenda. He mounts this case on a claim of alienation which I reject as set out above. He also seeks a moratorium on time for X with the mother to allow X to settle into his care without the mother's negative influences.
3. There are, however, a number of factors which argue against the father's proposals being in X's best interests. First and foremost, importantly, the mother's behaviour or its potential continuation is just one factor among many to consider towards X's best interests. It is not of itself determinative.
4. Secondly, I place some considerable weight on Dr Q's view that a removal of X from the primary care of the mother would have "catastrophic" consequences for his emotional and psychological welfare. I accept X has a close, attached, and primary dependent relationship with his mother. These traits are compounded by his ASD diagnosis. Whilst the father and X have an established relationship, it is one of a different type than that between X and the mother.
5. In this respect I am grateful to counsel for the mother for alerting me to a recent decision of the Full Court in Dever & Serano[2] which involved a change of primary care order made by the Judge at first instance albeit factually different to the matter now before me where that child had no direct relationship with the non-primary parent. After confirming that the attitude or intent of the primary parent is not of itself determinative of the child's best interest, the Full Court at [37] - [39] helpfully set out matters that may arise for consideration:

37. ...

• Any harm the child has suffered, or is at risk of suffering, if a change of residence is ordered;

• The capacity of each parent to meet the child's needs;

• The child's wishes and feelings;

• The child's physical, emotional, and educational needs;

• The importance of maintaining a relationship with the non-resident parent and the implications of ceasing contact;

• The desirability of continuity in schooling and educational arrangements, as well as involvement in sport and other extra-curricular activities;

• Practical and logistical arrangements for care during and after any change in residence;

• The likely impact on the child of any change in living circumstances including loss of contact with significant members of the broader family, friends and even beloved family pets;

• The availability and appropriateness of therapeutic support for the family; and

• The need for any transitional arrangements to support the child's integration into a new family environment.

1. The Court should be reluctant to make an order for a change of residence if such an order would cause emotional distress to a child and cause significant disruption to their lives solely on the speculative hope that a meaningful relationship with the non-resident parent might develop (Cramond & Cramond [2013] FamCA 368 at [187]; Parran v Mayfield [2013] FamCA 992 at [113]).
2. The Court should also be mindful of the capacity of the parent, with whom the child is to reside, to put in place the emotional scaffolding necessary to support the child during the period of likely traumatic change: Dworak & Watts (No 2) [2024] FedCFamC1F 13 at [217].

1. Given my findings above within the context of X's particularly close relationship with his mother, the father's historical parenting role, and the child's special needs, I am not satisfied that X's best interests are served now by orders that the father assume X's primary care accompanied by a moratorium of a number of months of no time for X with the mother. Importantly, however, this determination is subject to the caveat which I reference below in respect of the mother's adherence to court orders.
2. The mother maintains her proposal that there be no relationship between X and the father. Her case is based, on my understanding, on the following:

(i) That the father present as an unacceptable risk of perpetrating physical abuse on X. I have found to the contrary.

(ii) That the father lacks capacity to properly parent X. I reject that submission. To the contrary, I find that the father is capable of maintaining a valuable relationship with X albeit not in the same role as assumed by the mother. The mother's criticism of the father for not engaging with X's health professionals can be alleviated by simple assertive orders of this Court. I accept the submission of counsel for the father that the mother has not proven on the balance of probabilities her assertions as to the father's incapacity.

(iii) That the orders sought by the mother would relieve X of his distress at the entrenched and overt conflict between his parents. Where I find that X's reluctance/refusal at times to transit to his father is grounded on his response to this parental conflict then the mother is undoubtably correct in this submission. Where I find, however, by reason of her attitude, unilateral cessation of time, and disdain for court orders, that the mother is a prime instigator of this conflict then such a result would be both perverse and contrary to X's best interests.

1. I am not persuaded, therefore, the mother's proposal is in X's best interest but rather that X will benefit by maintaining an ongoing and frequent relationship with the father while continuing to live in the primary care of the mother. The caveat to this finding is, however, that the mother must adhere to the orders that this Court will make. She must understand that the Court does not to expect parents to necessarily agree or be enamoured with the orders that they make in respect of children. Nevertheless, these parents must, having charged the Court with determining the child's best interests, objectively respond and respect orders made in their child's best interests. Should the mother continue to act unilaterally and show consequential disdain for court orders then it might be said to be inevitable or irresistible that a subsequent court will put greater weight on the negative attitude and behaviour of breaches of the mother leading to a higher likelihood of a change of primary care for the child from the mother to the father. It follows that this mother must understand that she is very much on notice and will continue to act unilaterally or breach orders at her peril.
2. The ICL opened her case proposing essentially a continuation of the status quo in the form of orders made by Judge Turnbull in May 2022 albeit removing the Wednesday evening time for X with the father. By the time of final submissions, however, the ICL's position had changed to reducing the time between X and the father to alternate Saturdays between 10.00am and 5.00pm (with limited time on special days) whilst maintaining primary care in the mother and with parental responsibility for decision-making to vest in the mother. This proposal was put against the submissions of counsel for the ICL criticising the mother's attitude, unilateral action, and disdain for court orders referenced above. That proposal would remove for X the current enjoyment of quality time with his father over full weekends and block periods during school holidays (subject to the mother's frequent unilateral cessation of time).
3. I can only assume that the position put by the ICL was based on an adoption of some comments made by the Court Child Expert, Dr Q, which I understood to be a conservative approach to ensuring a successful establishment of relationship between X and the father given X's enmeshment with his mother and X's historical responses to the conflict between his parents. I am not, however, persuaded by such an argument. I have, however made findings as to the nature of X's relationship with his father. The observations of Dr Q herself and others is of a comfortable direct relationship between X and the father which indicates a well-established relationship of a particular type. Further, I am of the view that the Court should be cautious in giving the mother any sense of validation for her behaviour and frequent breach of court orders with what I have found to be a lack of insight into the value of the relationship for X with his father. The relationship between X and his father is one of its own particular style which will, in my view, thrive on quality time between them. The evidence of the father himself is that he is content with the weekend and holiday relationship with X should it be consistent. This enables X to know his father for the parent he is. The father's ambivalence towards engaging with X's health professionals can be addressed by court orders which I am confident that the father would follow. As such, I am not persuaded that there are reasons sufficient to reduce X's time with the father save for the Wednesday nights which I accept on a cost/benefit basis provides limited quality time as against the potential for conflict and a disruption to X's routine where such is important given his diagnosis of ASD.
4. It follows that I find X's best interest be served by a continuation of him spending each alternative weekend and half the school holidays with the father but with X living in the primary care of his mother.
5. It also follows circumstantially and in respect of the concessions of each party as to a lack of co-parenting and communication, that the mother should have sole parental responsibility for important decision-making for X but where it be appropriate that she do so on notification to the father.
6. Where Child Safety investigations continue in respect of the paternal grandparents and the foster children in their care and given, as I accept, some ambivalence from the father in respect of X's revelations of assault at the hands of another child in that household then I accept that supervision of X in the company of the paternal grandparents is appropriate.
7. Changeovers not taking place at school will continue to take place at Town D a point between City M and Town N. There is, of course, potential here for conflict between the parents but alternatives such as a Contact Centre changeover are not practically or geographically available in this case and I am not inclined to obligate third parties in respect of changeovers. It falls, therefore, to the parents to desist from conflict in the presence of their son where the evidence at this trial, and historically, highlights the negative impact on this young child of such parental conflict and poor behaviour.
8. The memorandum of orders sought by the ICL suggests orders in respect of X's aboriginality. However, I can find no evidence of any probity given or adduced in respect of this issue. I recall no cross-examination in respect of the issue. I did not receive submissions from any counsel in respect of this issue. As such, I have no evidence of any substance to ground any such orders. I say, however, that it would behold the father to consider any reasonable request by the mother which would permit X's involvement with his aboriginal heritage.
9. Given my findings above I am persuaded to make the injunctive orders between the parties set out in the ICL's Memorandum of Orders Sought and to assist in alleviating exposure for X to parental conflict.

I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire.

[1] (2022) FLC 94-092; [2022] FedCFamC1A 97 ("Isles").

[2] [2025] FedCFamC1A 202.